Working with a lawyer
Should you hire a lawyer?
It’s your decision whether you want to hire a lawyer. Although the IAP does not require you to have a lawyer, all of the parties to the Settlement Agreement believe that claimants benefit from having legal representation. In fact, the agreement builds in repayment to you of lawyer’s fees related to your claim, to a specified maximum.
You can decide to hire a lawyer at any stage in the process.
Even though the IAP does not take place inside a courtroom, it can be complicated and involves difficult legal concepts and processes. If you hire a lawyer, the lawyer will be responsible for all aspects of your claim. This would allow you to focus on healing and preparing emotionally for the hearing, where you will be sharing the details of your residential school experience and how it affected your life.
Other reasons you might want to hire a lawyer
- A lawyer understands the rules and processes of the IAP, including what legal tests and standards of proof need to be met for your claim to be successful.
- A lawyer will prepare your claim for the hearing, including collecting mandatory documents
- A lawyer will ensure that you are awarded maximum compensation. Statistics show that claimants who have a lawyer receive higher compensation awards.
- A lawyer can give you peace of mind because the technical aspects of your claim are looked after.
- If your claim is awarded compensation, your costs for hiring a lawyer will be at least partly covered by the IAP, and in some cases, completely covered.
- Having a lawyer represent your interests at the hearing is usually less stressful than handling the hearing yourself.
Having a lawyer also gives you additional options that may help resolve your claim more quickly. These options include:
- Negotiated Settlements: It may be possible to resolve your IAP claim without a hearing. Depending on the facts of your claim, your lawyer can ask the Government of Canada if a settlement can be negotiated. If the government agrees, your lawyer would then negotiate with the Government of Canada to find a settlement amount that all parties are satisfied with. Settlements can be negotiated only by claimants represented by a lawyer. During negotiations, your claim is still active – the parties will continue to collect any outstanding mandatory documents. The Secretariat shares these documents among the parties, but also retains copies in case the negotiation is unsuccessful and an IAP hearing is needed after all.
- Short-Form Decisions: If you’re in the standard track and you have a lawyer, you may have the option of a short-form decision at your hearing. With the short-form decision, the adjudicator writes the decision at the hearing if the hearing includes final submissions. Because the parties agree to the amount at the hearing, short form decisions mean that you receive your compensation award sooner. You don’t have to wait additional time after a hearing for the adjudicator’s decision. In the accelerated hearing process, if your claim is in the standard track, your lawyer can still request a short-form decision. It will be provided to you about two weeks after final submissions.
The parties that participate at the hearing (the adjudicator and the Government of Canada representative) generally have legal training. In fact, they are often certified lawyers. It is best for you as a claimant to be equally prepared for the hearing by having your own lawyer attend the hearing to represent your interests.
Finding a lawyer
If you decide to hire a lawyer, it is important to find one that is trustworthy. You will be trusting your lawyer to not only deal with a sensitive issue, but to keep your interests first and foremost. You will have to speak openly and honestly because your lawyer will need to know all the facts about your claim. You may find it helpful to speak with other former students who have completed their claims to ask them who they would recommend.
Any certified lawyer can take on your claim. Already, more than 600 law firms across Canada have represented IAP claims. To find one that you feel comfortable with, you can call 1-877-635-2648 to be transferred to a Claimant Support Officer who can provide a list of lawyers accepting referrals for IAP claimants.
When you’re searching for legal representation, speaking with more than one lawyer is a good idea to help make sure you find one that has agreeable terms and is trustworthy. Here are some questions you should ask every lawyer you speak to:
- What percentage of the awarded claim do you charge for legal fees?
- How many IAP claimants have you represented? How many were successful?
- What, if anything, will I have to pay if my claim receives zero compensation?
- Will I have to pay tax? If so, what is the rate?
- Will we meet in person before the hearing? How soon will you return my phone calls?
Asking these questions will ensure that you know what to expect from, and the financial terms of, the relationship with your lawyer. You should be clear on these matters before signing any retainer agreement with a lawyer to ensure peace of mind and a positive working relationship.
Remember – your lawyer works for you. It’s your lawyer’s responsibility to help you understand the IAP rules and processes and to keep you informed on the progress of your claim. Don’t be afraid to ask questions if you’re unsure about something.
Communication with your lawyer
Your lawyer will be in the best position to act in your best interests if all communication about the Independent Assessment Process is first directed to him or her. That’s why the Secretariat will communicate directly with your lawyer if you hire one.
This is standard practice in Canada for anyone who hires a lawyer.
- If you have a lawyer for your claim, the Government of Canada will help pay your legal fees, up to 15% of the amount of your award (Canada’s contribution). This payment for legal fees does not come out of your award; it is in addition to your award. You will need to pay anything above 15% and you may also have to pay taxes on the legal fees.
- The maximum your lawyer can charge you is 30% of your compensation award.
- You can negotiate the fee your lawyer will charge.
- In most cases, you will also be responsible to pay taxes – HST or the combination of PST and GST – on the legal fees, unless all the legal work is done on reserve for a Status Indian.
- If your claim is successful, the Government of Canada will also reimburse your lawyer for any reasonable and necessary disbursements, such as the cost of obtaining records required for your claim.
You can find some examples of how legal fees are charged in Examples of compensation and payment of legal fees
Legal fee reviews
If you have a lawyer, your decision will come with a form asking you if you want the adjudicator to examine your legal fees. Adjudicators review legal fees in all cases. In addition, where fees are claimed that are above 15% of the compensation award, if you return this form, the adjudicator will:
- make sure the fee the lawyer is charging is legal
- make sure the fee makes sense for how much work the lawyer had to do
This is done to ensure that lawyers cannot take advantage of claimants by charging fees that were not earned. Lawyers must provide their fee agreements to the adjudicator. When deciding whether legal fees are fair and reasonable, the adjudicator considers many factors, including how complex the claim was and the skill shown by the lawyer.
If the adjudicator decides the fee is not fair, the adjudicator has the power to order the lawyer to reduce the fee. Claimants will receive a copy of the adjudicator’s legal fee ruling, which will state the compensation amount a claimant is to receive. If you’re in this situation and receive less than the amount written in the legal fee ruling, ask your lawyer for an explanation. If you’re not satisfied with the explanation, you can use the toll-free Info-Line at 1-877-635-2648 to contact the Chief Adjudicator to follow up. You can also contact your provincial/territorial law society.
If you have a complaint about your lawyer
All parties to the IAP want fairness and integrity as foundations to the process. To learn about your rights as a client, contact your provincial/territorial law society for the code of conduct that lawyers must follow. Further, the Secretariat has developed a document called Expectations of Legal Practice in the IAP. You can obtain a copy of this document by calling the Info-Line at 1-877-635-2648. This document outlines what is expected of lawyers who are representing IAP claimants. It can help you understand what to expect from your lawyer.
To support claimants who have a complaint about their lawyer or representative, the IAP has appointed an Independent Special Advisor to the Court Monitor dedicated to handling these complaints. You can bring your complaint to the Independent Special Advisor by calling 1-866-879-4913 or the Chief Adjudicator by calling the Info-Line at 1-877-635-2648. You can also make a complaint to your provincial/territorial law society if you feel your lawyer is not conducting himself or herself properly.
If you’re having problems when working with your lawyer, talk to your lawyer about it. If after following these steps you still have concerns, hiring a new lawyer might be an option to pursue.
Your lawyer must respect your right to change legal counsel, and must assist in sending the file to the new lawyer. A lawyer that takes over a file from another lawyer must protect you from any claims for legal fees, disbursements, taxes, or otherwise by any previous lawyer.
If a lawyer withdraws from a claim, it does not necessarily mean the claim itself is withdrawn. Claimants have the right to continue with their claim by finding another lawyer or proceeding without a lawyer.