By Kathleen Martens
WINNIPEG – If he had to do it over again, Dan Ish would make a few changes.
Top of the list for Canada’s chief adjudicator? Forcing lawyers to apply to the court to be part of the Indian Residential Schools Settlement Agreement’s Independent Assessment Process (IAP).
That way they would be approved and monitored throughout the process of obtaining compensation for their clients, former residential school students. A relationship of trust that Ish says several lawyers have violated during his six-year term.
“It’s been a very difficult job for me,” Ish said in a telephone interview from Saskatoon. “I travel all the time, I don’t live in the city (Regina) where the main office is. After a while you just run out of steam and that’s what happened to me.”
Those are some of the reasons Ish has resigned from the high-profile position as head of the Indian Residential School Adjudication Secretariat (IRSAS). He’ll leave the post in June to make room for a new adjudicator he says will need to be hired for at least the next four years.
That’s a lot longer than he signed up for and, at 66, Ish says he’s ready to move on. He’s already served six years of what was originally supposed to be a five-year term.
“Six years! My God, I’m older than dirt…There’s absolutely no question that had the original schedule stayed in place I’d have stayed till the end of it. Or even if we were a year away from completing , I’d complete it. But we’re four years away from completing it.”
That’s double the time Canada thought the process would take. But Ish says IRSAS received triple the number of expected applications from former students for compensation for serious physical and sexual abuse. Already $1.8 billion has been spent.
Ish says that’s been a highlight of the job-seeing abuse survivors get compensated. The secretariat trains and oversees more than 100 adjudicators who preside over the confidential compensation hearings with claimants and their lawyers.
“The adjudication side runs very well. The roughest side is the job that fell to me,” he said, referring to the issue of monitoring private lawyers involved in the process. No other parties to the settlement agreement took responsibility, Ish said, noting the Assembly of First Nations was interested but lacked the resources to do it.
“We went after (Winnipeg lawyer Howard) Tennenhouse, and then got involved with (Calgary lawyer David) Blott and (Vancouver lawyer Stephen) Bronstein…and numerous other cases (with lawyers) that didn’t get to that level but where we intervened on behalf of claimants to make sure they got what they were entitled to.
Ish personally reported Tennenhouse to the Law Society of Manitoba, who eventually disbarred the veteran lawyer and repaid clients nearly a million dollars. A Vancouver judge barred Blott and others he worked with from further IAP work after claimants complained of wrongly being charged loans, fees, penalties and interest-something forbidden under the IAP. The investigation into Blott’s action cost taxpayers $3.5 million.
And just last month, the IRSAS requested an investigation into Bronstein but settled for a “review” of his practice and alleged connection with a paroled murderer doing IAP intake work.
“And it hasn’t been fun. That part’s been no fun at all. Like, it’s a totally negative part,” Ish said.
Ish says there was nothing written into the agreement about monitoring or regulating lawyers, nor was it part of his job description. But he says it will be part of the job for his successor.
Meanwhile, IRSAS does have authority over legal fees and Ish says lawyers regularly challenge the payment decisions.
For each IAP application, Canada pays lawyers 15 per cent and they can request up to another 15 per cent from claimants. Ish says lawyers were often seeking the full 30 per cent even though the settlement agreement reserved that amount for the most complicated cases.
“Again, when we started that I thought it would be a small deal but it turned out to be a huge deal. Because early on the lawyers threw everything but the kitchen sink to try to thwart the supervision or the assessment of their fees.”
Ish said arguing its position in court cost IRSAS about a million dollars, adding: “The courts are quite clear. One judge said 30 per cent must be reserved for the most complex of cases.”
In hindsight, Ish says there should have been a process where lawyers have to qualify to represent claimants and then go through training before signing an agreement to abide by certain regulations.
It wouldn’t solve all the issues but it would streamline the process, he noted.
More than 100 lawyers are involved in the IAP across Canada. Their professional association – the law society in each province or territory – is responsible for disciplining them. The Law Society of Manitoba disbarred Tennenhouse, but the Law Society of Alberta has yet to take disciplinary action against Blott.
Meanwhile, Ish is not the only official involved in the settlement agreement to move on. Sources say in the past five years, there have been three executive directors of the IAP, four directors general of Resolution Services, two assistant deputy ministers, two courts counsel and now two chief adjudicators.
Ish, a former university professor, will return to his labour law practice. He also sits on various boards including one that regulates the finance industry in Canada.