Small satisfaction

For those who were physically victimized, only a small degree of satisfaction comes from squaring off against an abuser – something few plaintiffs get to do anyway, given that defendants are usually represented by legal counsel and not required to appear in court. "Right now there’s only one place to resolve these issues, and that’s in court," says Russell Raikes, a lawyer with Cohen Highley Vogel & Dawson in London, Ont. "Until there’s another option, or they invent a better mousetrap, that’s the way to go," adds the man whose client list includes hundreds of claimants in cases involving the Mohawk Institute Residential School, an Anglican-run institution that operated in Brantford, Ont. In this class-action suit, Raikes’s clients (including descendants of residential-school attendees) are suing for about $2.4 billion, for breach of fiduciary duty, assault, battery, breach of treaty rights, loss of care, guidance and companionship. So great is the total number of lawsuits and dollars involved, that some 40 lawyers from B.C. to Nova Scotia who represent plaintiffs in residential-school cases have banded together to form the Canadian Residential School Litigation Council Group. Its mandate is to share ideas and possible strategies for successfully taking churches and the government to court.

"We are up against a well-organized, seemingly limitless-resourced opponent," says Raikes, who helped found the by-invitation-only group that convenes mostly over the phone. "We want to keep each other informed, support one another, and have the ability to bounce views off each other." One lawyer who is not a member of this group is Tony Merchant, a Regina-based lawyer with approximately 3,000 residential-school clients. The Merchant Law Group has made very few friends of late, having been accused of inappropriately soliciting clients by going onto reserves. It is an accusation Merchant himself flatly denies, insisting that whenever anyone from his firm has gone to a reserve, it has been in response to an invitation from band leaders. Merchant says he abhors the recent delays in residential-school cases that are coming as a result of "cross-claiming" tactics adopted by the government.

"There’s a number of reasons for delay," Merchant recently told the Anglican Journal. "One, we’ve had 16 people die. They get nothing. Two, the standard insurance-company reason for delay is that people then get sick of it and you can get them to settle for less money. You just wear them out … The next financial motive is, ‘Why pay now when we can pay in a year?’ or ‘Why pay now when we can pay in three years?’"

Besides lawsuits, one of the ways government, churches and Natives are looking at resolving the legacy of residential schools is through alternative dispute resolution. Although it is not necessarily cheaper than the courts, ADR provides a less adversarial, less hostile approach to resolving differences. "There has been a general lack of knowledge about residential schools and the harm they did, [and] there’s a real lack of certainty about the cost of resolving these cases and what it means for the Canadian taxpayer," says George Thompson, a lawyer, former deputy minister of Justice and, until very recently, the Justice Department’s point man on alternative dispute resolution. "There is a real shared sense that ADR is a better way to go," says Thompson.

Dispute resolution or mediation is simply assisted negotiation involving a neutral person who facilitates discussion between parties and their representatives. ADR is seen by many as the best chance for healthy resolutions because it allows for two-way communication, the possibility of mutual understanding, and the opportunity for people to say they are sorry and for others to hear these apologies. "The single most important thing about mediation is the ability for parties to meaningfully participate in the process," says Leslie Macleod, a Toronto-based specialist in conflict resolution. "It gives people the opportunity to truly hear and understand each other."