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Tony Merchant

Justice before money

Tony Merchant

No racism in Canada, you say? Feds appeal award on grounds that plaintiff comes from a bad family.

Perhaps the most consistent and ongoing injustice in Saskatchewan has been against the aboriginal people. It has been entrenched and severe. Walk down any urban street or visit a reserve and there see the heartbreaking evidence that Natives are economically oppressed and have lost dignity among the alcohol, drugs, gambling and the corruption within their own leaders who have sold them out over and over again for the privilege of hanging out with the oppressers.

And oppresser is exactly the right word to describe Canada's politicians, bureaucrats and functionaries. The government has used outrageous and unfair tactics to keep ordinary Indians from receiving any justice at all. Tony Merchant has identified the injustice and placed it on the national agenda. Certainly, he stands to make a lot of money but, as he points out, he is rich already. Merchant is right to speak of cultural eradication. That fairly describes what was done within the residential school system. While outrageous sexual abuse certainly occurred, the acts of perverted priests and nuns were a symptom of the larger problem. Within the context of Merchant's claims, every aboriginal person who attended a residential school is eligible for a piece of the federal money which has been set aside, because they were sent to these schools to be stripped of their culture.

Lawrence Joseph

It may be galling to FSIN vice-chief Lawrence Joseph that a non-aboriginal lawyer is taking these cases to court. But Joseph should be careful to speak of ethics.

So far, the FSIN has done little more than make the record regarding the crimes against aboriginal people in Saskatoon. The expensive shadow investigation is doing little, does not advertise and stopped demonstrating for justice almost before it began. The demonstrations last winter were large and effective and clearly showed that people were prepared to come out in large numbers to voice their outrage at the police. The last year of relative silence on this and other issues speak loudly of complacency. Merchant, on the other hand, has risked scorn from his profession.


Law firm strikes goldmine: Native residential school suits could mean $100 million for Sask. company

A Saskatchewan law firm could gross $100 million handling lawsuits filed by survivors of Indian residential schools.

Tony Merchant, senior partner with the Merchant Law Group, confirmed the number in an interview this week.

The outspoken Regina lawyer, who was recently reprimanded for misleading advertising in soliciting business from former residential school students, doesn't apologize for the haul.

Tony Merchant

In fact, Merchant compares himself and other lawyers representing students to America's crusading consumer activist, Ralph Nader. "I think this is one of the few areas where lawyers should be commended for seeing a wrong and getting compensation for their clients," he said.

"This is the Ralph Nader of lawyers, doing good for society by addressing a problem. There was no other way First Nations people were going to receive compensation except for the fact lawyers fought hard."

The Merchant Law Group, a 40-lawyer firm with offices in four provinces, represents about 4,300 people who attended the schools, which were established by the federal government at the turn of the century to assimilate aboriginal children into mainstream society.

That's nearly two-thirds of the 7,000 former students who have filed suit against the federal government and the churches who ran the schools, most of which were closed in 1960s. The total could soon rise to 10,000 if the courts accept several class-action suits.

Ottawa believes there are 15,000 valid claims which will cost at least $2 billion to settle over the next 10 years. A government spokesperson said the estimate is conservative.

The plaintiffs in many suits allege they suffered sexual, physical and emotional abuse at the schools. Others accuse the government and the churches of committing cultural genocide by forcing them to leave their communities and attend schools where they were forbidden to use their languages and practise their culture. So far, the government has paid out $27 million settling 300 cases.

The Merchant Law Group charges its clients a contingency fee of between 17.5 per cent and 40 per cent, depending upon at what stage in the legal process a case is settled.

Saskatoon lawyer Barry Singer, who represents 180 former students of a Yorkton-area school, said he believes the government is floating the $2-billion figure to alarm taxpayers and shift the focus to the contingency fees charged by lawyers. He said the figure may be a lot lower, particularly if Ottawa stops dragging its feet in handling the cases.

The federal government has set up a $350-million healing fund and offered a formal apology for the residential school system. But just a handful of lawsuits have been settled in the past two years.

"I think it's a number ($2 billion) they throw out so there's an editorial next day in the Globe and Mail about how everybody should sit down and talk about these things," said Singer.

"That's why those things are leaked."

Merchant also condemned the government for its delay tactics, which he says only re-victimizes his clients and drives up costs for taxpayers.

But he believes the government will eventually have to pay. He suggested the $100 million estimate of his firm's potential gross earnings is not only accurate, but likely conservative. When asked if he's going to get rich off the lawsuits, he said: "I'm already rich.

"We thought we would do well financially and I think we will do well financially," said the prominent Liberal, who is appealing the reprimand and $15,000 fine levied by the Law Society of Saskatchewan.

"But many of us are taken with the passion of this process. These are very compelling stories. There is a deep-seated hurt (in aboriginal communities). A gigantic hurt. I don't think there's a single, solitary First Nation person who hasn't been affected by the residential schools, whether they attended or not."

Sean Tupper, head of the Department of Indian Affairs and Northern Development's (DIAND) residential school unit, said the government's estimate of 15,000 valid claims is based on an analysis of abuse committed at the Mount Cashel orphanage in Newfoundland and 12 other institutions across the country.

"We realized that roughly 12 to 15 per cent of the population was abused. They presented validated claims. Our number (of 15,000) is based on 100,000 residential school survivors across the country."

Tupper said the government estimates it will cost $140,000 to deal with each case, a total which includes its own legal costs. However, he said recent court decisions in British Columbia suggests the estimate could be low.

Harold Jimmy, a Cree man who complained to the law society after receiving a solicitation letter from Merchant, said he's appalled lawyers could receive hundreds of millions of dollars handling the cases.

"It's unfortunate. I don't want to minimize the pain and suffering of the victims. But my contention all along is the government has admitted wrongdoing, the churches have admitted wrongdoing, why are the lawyers involved? We should be focused on healing."

Meanwhile, Federation of Saskatchewan Indian Nations (FSIN) vice-chief Lawrence Joseph said he is disappointed and disturbed by Merchant's admission.

In a statement, he blames DIAND for refusing to act "when it became undeniable that the residential schools were agents of cultural genocide." He said residential school survivors have no other choice but "to go to lawyers who don't seem to have any ethical dilemma about getting rich off the tragedy of an entire people."

He said legal action would not have been necessary if Ottawa had negotiated "a better settlement" with the FSIN and other Indian groups.


Saskatchewan Law Society Charges Merchant

May, 2000: The Law Society of Saskatchewan has charged Tony Merchant with conduct unbecoming a lawyer because of the way he recruited First Nation clients in residential school abuse cases.

The Regina lawyer's law firm, The Merchant Group, is handling more than 4,300 residential school cases in the Prairies and British Columbia. He faces three charges related to two Natives in Saskatchewan. The charges relate to his marketing activities and raising unjustified expectations.

This past weekend Canadian lawyers were told to stop aggressively pursuing victims of residential school abuse.

The Canadian Bar Association adopted new rules that ban the profession from shopping for individual victims through phone calls, letters or door knocking. The Association unanimously passed the resolution following complaints from aboriginal groups that lawyers have harassed former students to launch sexual abuse lawsuits against the federal government and churches.

The new rule stresses that lawyers cannot initiate communications with individual aboriginals by telephone or mail in an effort to solicit them as clients or ask them whether they were sexually assaulted.


Cultural eradication issue raised

Regina lawyer Tony Merchant, whose firm represents close to half of the residential school plaintiffs, said he will argue that the cultural eradication policy led inescapably to physical abuse and therefore could be seen as a civil harm for which damages could be awarded.

"Cultural eradication had to evolve to physical abuse," he told Windspeaker. "How could you make a six-year-old child not speak his language without being sadistically brutal?"

But Merchant admitted that no one knows whether cultural eradication will be considered a civil harm until the courts decide.


Residential Schools The Abuse Continues in the Justice System

A residential school is not entirely to blame for the abuse suffered by a former student, say federal court lawyers. The lawyers addressed a judge in a Regina courtroom today. They argued that part of the responsibility for the abuse should fall on the shoulders of the Indian band

The suit is being launched by a former student at the Gordon Residential school. The lawyers want the judge to add the Gordon First Nation to the list of defendants in the lawsuit. According to federal lawyers, advisors from the band were responsible for administering the school so they must be part of the suit.

A lawyer involved in the case says Ottawa's argument is weak. "Now they geared up with a whole spat of new and aggressive lawyers and the battle has now become a lawyer's battle that's bad for First Nations people. I think the cabinet should intervene and say stop," says Tony Merchant.The case has been adjourned until next week.


Feds point finger back at Native bands

REGINA (CP) _ Ottawa is trying to wash its hands of its legal responsibility to former students of government-run Indian residential schools, a Regina lawyer charged Wednesday.

Through third-party legal claims, the government is trying to point blame at Indian bands, said Merrilee Rasmussen, who represents the Gordon First Nation.

"The government's actions may be driven by legal necessities in defending the lawsuits, but it is morally repugnant," she said.

A government lawyer will argue in a Regina court today that the Gordon First Nation should be added as a third party in former student Wilbert Papequash's lawsuit against the government and the Gordon Residential School's former administrator, William Peniston Starr.

Should the court side with the government, the Band could find itself sharing the blame and liability if Papequash's lawsuit is successful.

"This is politically explosive," said Papequash's lawyer Jeff Scott, noting it could have far-reaching ramifications for First Nations.

This is the first application in Canada to be brought before the courts, although more will likely follow involving other students and Bands, said Trevor Sutter, spokesman for Indian Affairs.

To date, more than 4,600 former residential school students from across Canada have sued the federal government, churches and individuals over allegations of abuse and cultural genocide.

Court documents indicate the government will argue the residential school advisory board was composed of First Nation members who reported to and were directed by the First Nation, and had an obligation to supervise school staff.

"It is absolutely ridiculous," said Rasmussen. "Going after these advisory boards is like holding ... parent-teacher advisory committees legally responsible for what happens in their schools.

"Just because parents are involved in the school and want a say in their children's education does not mean they are responsible for how things unfold. They are not legally responsible for the hiring and supervision of staff or the day-to-day operation of the school."

But Sutter said involving all the parties who had a role in the administration of residential schools will ensure a complete and accurate understanding of the facts.

Papequash, 28, launched his lawsuit in 1997 alleging that while he attended the residential school between 1979 and 1985 he was sexually assaulted by Starr.

His case was to go to trial in November but Scott said the government's application could cause further delays.

Papequash is one of more than 400 former Gordon residential students who have filed abuse lawsuits against the federal government and former employees at the school.

Starr was convicted in 1984 of molesting 10 male students.

Pirie said generally the winning party has their court costs paid, and if the decision is split, the costs are balanced.

"In this case, it sounds like the court made a specific point of mentioning his behaviour and essentially penalizing him in costs. That is rare when you look at the huge number of cases that are heard in the court, but it does happen," he said.

The ruling stemmed from Merchant's dispute with Revenue Canada over assessments of his taxes from 1990, 1991, and 1992. He appealed the assessments to the Tax Court of Canada.

In his April 1998 ruling, which found in part for both Merchant and Revenue Canada, Justice Donald Bowman described Merchant as a very successful Saskatchewan lawyer. "He was a rainmaker -- a person who brought the firm a large number of clients and contributed significantly to the prosperity of the law firms in which he was a partner."

Recently, Merchant publicly confirmed that Merchant Law Group, a Regina-based firm with offices in four provinces, could gross $100 million handling lawsuits filed by the survivors of abuse suffered at Indian residential schools. The firm represents some 4,300 former residential students -- nearly two-thirds of such cases filed against the federal government and churches which ran the schools.

Bowman took Merchant to task for being unco-operative in the course of an audit. The judge noted the system of assessment, objection and appeals from income tax assessments ordinarily works well. "It does not work if the appeal process is treated, as it was here, as an exercise in gamesmanship and obfuscation," he stated.

The judge said a substantial part of the trial was devoted to proving small expenditures, which should have been resolved at the assessments level if the audit wasn't impeded. Bowman said he wasn't criticizing the lawyer who represented Merchant -- "he had an impossible client."

Bowman said Merchant was given great leeway. "He has, however, treated this court, its rules, the orders of the court and counsel for the respondent, who is an officer of the court, with disdain."

The federal appeal court commented on similarly "unacceptable behaviour from an officer of the court" in Merchant's attempt to file a legal memorandum in excess of the 30 pages allowed by the court's rules.

Eventually, a 30-page memorandum was filed, but the type font was so small and the pages so full, again in violation of the rules, that it likely would have been at least 45 pages in length if the court rules were complied with, Letourneau noted.


Gov't to appeal ruling in residential school suit

REGINA (CP) -- The attorney general of Canada is appealing an award granted to a sexual abuse victim who successfully sued both a former residential school administrator and the government.

The man, now 40, was granted a $400,000 award last May from the federal government and convicted pedophile William Peniston Starr.

On Friday, Federal lawyer Thor Kristiansen told a panel of three Appeal Court judges that the victim, who cannot be named, had a troubled family background that had nothing to do with Starr's abuse.

Kristiansen argued other family members had problems with alcohol that had nothing to do with Starr.

"The causal relationship between the Starr abuse and the alcoholism is questionable," Kristiansen said, arguing the damages Justice John Klebuc ordered to be paid were too high.

Starr was convicted of sexually abusing the victim, who was 13 when the abuse began. The older man was a federally employed administrator at a government-owned residential school on the Gordon Reserve, 170 kilometres north of Regina. The victim met his abuser through a boxing club Starr organized.

Starr was sentenced in 1993 to 4½ years in prison after pleading guilty to sexually assaulting 10 male students, aged seven to 14, between 1968 and 1984. He has since been sued by hundreds of former students.

Tony Merchant, lawyer for the victim, said Klebuc was right to find the federal government liable for Starr's actions. He also agreed with Klebuc's ruling that the abuse was responsible for the victim's alcohol, legal and employment problems later in life.

The three-judge panel reserved its decision.