SURVIVORS Society
(formerly the Provincial Residential School Project)
How Do I Start a Civil Lawsuit?
The first thing to do is to choose a lawyer. (See Choosing a Lawyer)
Once you have chosen your lawyer, s/he will let the court, and those who you feel are responsible for what happened to you, know that you are asking for compensation. It can take up to take two years before the case goes to trial.
What happens next?
There are two question and answer sessions before the trial takes place. One will be "in person" and the other "on paper".
The "in person" session gives lawyers for the Defendants a chance to ask you questions about your experience at school. It is your chance to tell your story to the opposing lawyers, who will report back to the Defendants. The session is called an "Examination for Discovery". Your lawyer has the same chance with the Defendants.
The opposing lawyers may then submit a list of written questions for you to answer, with the help of your lawyer. These are called "interrogatories". Your lawyer can do the same thing with the Defendants.
THE TRIAL
What Do I have to Prove to the Judge?
You and your lawyer have to prove two things to the
A. that the abuse happened to you:
First, you must convince the judge that the abuse happened to you. This may seem unfair. For many survivors of abuse, it brings up memories and pain. Once again, you are trying to convince someone that you are telling the truth. That it did happen. It is important to have a lot of support as you go through this process:
family, friends, elders, counsellors It takes great strength and courage. If you are ready, it can also be an important part of your healing journey: speaking out, being heard, standing up to those who try to deny it happened.
In a civil trial, you must convince the judge only that it is more likely than not that the abuse happened. The legal wording is: "on the balance of probabilities", or, it is more probable that it happened than that it didn't happen. (This is much easier to prove than in a criminal case, when the judge must be 100% sure, "beyond a reasonable doubt", that the abuse occurred).
B. that the government and the church are responsible for the actions of the person(s) who hurt you:
Your lawyers will spend time trying to convince the judge that the Government and Church are responsible for the actions of the person(s) who abused you since the Federal Government hired the church to run the school. The church hired and supervised the school staff and therefore are also responsible for their actions.
What Compensation Might I Receive?
If your lawyers are successful, and it is decided that the Government and the Church are responsible, the judge will then decide how much compensation s/he feels is appropriate for you to be given.
If you do receive compensation, it may affect any government assistance you are receiving, including income assistance and disability benefits. Ask your lawyer about this.
It is important to think about making the compensation last as long as possible, making the money work for you. Ask your lawyer to provide you with a financial advisor.
Choosing a Lawyer
How do I Find a Lawyer?
There may not be a lot of lawyers where you live, so you may decide to find a lawyer from a large city who knows more about residential school issues. It is better to choose an experienced lawyer than one new to the issue.
For advice on choosing lawyers contact the Native Courtworkers, other lawyers, or people you know who have already searched for a lawyer. The Project has a list of lawyers who are working on similar cases.
What Should I Ask a Lawyer?
Do not be afraid of interviewing lawyers. It is important for you to feel comfortable with the person you choose. Remember that you are doing the hiring. Ask the lawyer to write down the answers so that you can look at them later.
1. Will you cover my travel expenses to meet with you? To attend the trial?
2. What is your estimate of how much "disbursements" will be?
3. What is your experience with residential school or historical abuse cases?
4. Why would you want to work on my case?
5. How much do you think I might receive as compensation?
6. What do you know about First Nations people?
What If I Don't Have Money For a Lawyer?
Lawyer's fees are usually between $150.00-$250.00 per hour. If you do not have the money to pay a lawyer, you and your lawyer can agree that if you win your case, and only if you win, your lawyer will receive a percentage of the compensation. This is called a "Contingency Agreement". The most a lawyer may take as payment is 40%. Usually, however, the rate is 25% to 33.3%, depending on how much work the lawyer has had to do. The details of how your lawyer will be paid must be in writing and you must sign it. Before you sign the Agreement, it is wise to get advice from another lawyer, legal aid, or a Native Courtworker to be sure that the Agreement is fair.
In addition to your lawyer's fee, if you win, you must also pay your lawyer back for the costs of bringing your case to trial. Lawyers call these expenses "disbursements". Be sure to ask the lawyer for a rough estimate of expenses, so you are not surprised later. Disbursements can add up to a lot of money.
Compensation = What court awards you - (Disbursements + Lawyer Fees)
Guidelines For Lawyers Acting for
Survivors of Aboriginal Residential Schools
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Civil Process