Unconscionable and Unenforceable

The practices of some “form-filler” companies who assisted residential school survivors with filing their claims under the Indian Residential Schools Settlement Agreement (IRSSA) were described as “unconscionable” in a decision from the Manitoba Court of Queen’s Bench issued last week.

The form-filler companies were charging a contingency fee of some 15-25% of settlement amounts paid to claimants under the Agreement. The terms of the IRSSA permit lawyers to charge a maximum legal fee of 30% of a settlement, of which the federal government will pay up to 15%. Where form-fillers were used, many claimants paid fees over and above the 30% cap on legal fees.

The decision followed from a Request for Direction brought by the Chief Adjudicator under the Independent Assessment Process (IAP). As reported here and here, concerns had been raised by the Chief Adjudicator, Dan Shapiro, about the fees and practices of certain lawyers and form filling agencies associated with them.  The Request for Direction sought orders to ensure that claimants were not being charged excessive fees beyond those permitted and approved under the IRSSA and, where excess fees had been charged, sought direction in terms of recovery of those fees on behalf of the claimants.

According to news reports (as of posting, the decision still isn’t available on CanLII), Mr. Justice Schulman ruled that most of the work of the form-fillers should have been done by lawyers at no extra charge and as such, the fees in excess of the approved legal fees, were charged in violation of the terms of the IRSSA. The Court also commented on the unequal nature of the bargaining relationship between the IAP claimants and the form-filling companies, noting that the behaviour of the form-fillers in obtaining consent to the contingency agreements was “unconscionable.”

The Request for Direction was brought as a pilot or test case with respect to just one of numerous form-filling companies affiliated with law firms. A number of other firms were however served with notice of the proceeding.

As Dan Shapiro noted, in an April 2014 interview with the Globe and Mail:

The whole Independent Assessment Process was designed to provide redress for historic wrongs for abuses that occurred at residential schools and it would be very unfortunate if part of the legacy of the IAP was that claimants were being revictimized by people that they were vulnerable to and trusted.

I agree, but would have used stronger language. Further victimization of these survivors by professionals retained to assist them in the redress process is disappointing and shameful.

The Law Society of Manitoba is apparently looking into the allegations.

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Comments

  1. “[L]awyers’ collective responsibility to uphold the public interest in the administration of justice” – Jamie Maclaren

    “The Law Society of Manitoba is apparently looking into the allegations.” – Karen Dyck

  2. Sarah Sutherland

    Thank you Karen for your insightful post.

    The case is now on CanLII and can be accessed here: http://www.canlii.org/en/mb/mbqb/doc/2014/2014mbqb113/2014mbqb113.html.

    Should you wish to post this on CanLII Connects or see what others may say about it, you can do that here: http://canliiconnects.org/en/cases/2014mbqb113.

  3. Thank you Sarah for saving me the effort of checking again!

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