The settlement agreement signed a decade ago with the survivors of Indian residential schools offered compensation to former students who lost jobs as a result of the trauma they suffered as children. But fewer than 20 people have ever successfully claimed that money.
As the Independent Assessment Process (IAP) created to compensate those who survived physical, sexual or emotional abuse at the schools winds down, some people question whether those who were scarred by their experiences at the church-run institutions have been treated fairly.
Former students making an income-loss claim under the IAP were invited to choose one of two tracks. The consequential loss of opportunity (CLO) track required no supporting documents to prove harms. The actual income loss (AIL) track involved more invasive questioning and a higher burden of proof that a survivor's inability to retain employment could be attributed to abuse at the schools.
A successful AIL claim could add as much as $250,000 to the basic compensation payout, which averaged $91,713.
Numbers provided this week to The Globe and Mail by the adjudication secretariat of the IAP show just 18 of the more than 38,000 people who say they were abused at the schools have successfully claimed for actual income loss.
Most survivors went straight to lawyers to make their claims, but some used form-filling companies that were started to help survivors with the compensation process. A Winnipeg man whose family ran such a firm says the number of successful AIL claims was so small because it was easier for lawyers and cheaper for the government when survivors did not press for the larger amount.
"The lawyers were the ones who benefited more than the survivors" by going for a quicker but smaller claim, William Aitken said.
He also says the IAP secretariat told his firm it was filing too many claims for loss of income.
Phil Fontaine, the former chief of the Assembly of First Nations who was instrumental in obtaining the settlement agreement, said he does not understand why obstacles were placed in the way of survivors who wanted to claim for lost income.
"It is pretty clear that this was one of the outcomes of abuse and we anticipated that there would be a significant number of those applying under the IAP" for actual income loss, Mr. Fontaine said in an interview.
David Paterson, a Vancouver lawyer who sat on the subcommittee of the IAP oversight committee that determined what was intended by the income-loss provision of the settlement agreement, said "the adjudicators have interpreted that provision very, very narrowly."
Kathleen Mahoney, a law professor at the University of Calgary who helped draft the settlement and has worked for survivors making claims, said applying to the AIL track "was quite a steep hill to climb."
The survivors would have to prove that a link between their inability to hold a job and the abuse was probable, not just plausible, and the adjudicators would apply the same standards of proof as a court of law, Prof. Mahoney said. The claimants also would have to show a resurfacing of the trauma disrupted an established pattern of earnings.
Given that the income of residential-school survivors tends not to be high, "your actual loss of income, if you could go through all those hoops, might not be sufficient to justify all the effort that it's going to take and the delay that's going to result in them getting their reward," Prof. Mahoney said.
Mr. Aitken said many survivors were persuaded not to apply for loss of income.
The form-filling company he ran with his father, Allan, helped survivors file their compensation claims and then passed the claims on to lawyers for the adjudication process.
Any time a school survivor said they lost income as a result of trauma, the Aitkens filed a claim for actual income loss. They would compile the documents required and let the adjudicators decide whether the claims were reasonable.
But officials from the IAP secretariat "actually lined up a phone call [in July, 2009,] with my father and one of the lawyers that we were working with at the time and they said it was concerning the amount of claims that we were submitting with actual income loss," Mr. Aitken said. "And they effectively asked us to stop and switch it over to loss of opportunity. They said it would slow down the process."
Soon after that conversation, the lawyers working with the Aitkens switched their claims from actual income loss to loss of opportunity, Mr. Aitken said. The documents provided by the IAP show that 48 of the 91 claims for AIL in 2009 were withdrawn and only one was successful.
Dan Shapiro, the chief adjudicator of the IAP, chose not to be interviewed for this story, but issued a statement saying his secretariat has not discouraged claims for actual income loss. Rather, he said, the secretariat has provided information to claimants to ensure that, if they go that route, they are assisted by experienced personal-injury lawyers and understand the legal and emotional risks.
Mr. Aitken said he believes lawyers or AIP adjudicators persuaded many survivors not to file, or to abandon, claims for actual income loss and take less compensation than they deserved. The attitude of the IAP and the government toward the claims, Mr. Aitken said, was, "Let's bang these out like widgets and use a short-form decision."