Form-filling companies ‘illegal’ and ‘unconscionable’: Manitoba judge

By Kathleen Martens
APTN
June 11, 2014

http://aptn.ca/news/2014/06/11/form-filling-companies-illegal-unconscionable-manitoba-judge/

WINNIPEG – A residential schools lawyer is distancing himself from a form-filling company after a judge ruled they are illegal.

Ken Carroll of Winnipeg says he’s cut ties with the company – First Nations Residential School Solutions – and given up his financial stake in the firm.

“I have worked with a form filler organization and the original concept proposed by them involved my owning a 25 per cent interest in that company. But that interest was abandoned very early in my involvement in the process as soon as I recognized problems with the concept which was over a year before we engaged in our first hearing and about 18 months before the incidents being reported upon,” Carroll said in a two-page statement sent to APTN Investigates.

Carroll says he divested himself well before Justice Perry Schulman’s strongly worded decision of June 4, in response to a request-for-direction from the Indian Residential Schools Adjudication Secretariat.

The secretariat asked Schulman to clarify whether form-filling agencies are allowed to profit from residential school survivors. A form-filling role was contemplated during negotiations that led to the Indian Residential Schools Settlement Agreement, but not included in the final version.

Several form-filling agencies have been operating across Canada, recruiting survivors for lawyers and helping them complete their forms for compensation for abuse suffered at the schools.

But survivors have complained to the secretariat, questioning the services and related fees. In the Ken Carroll case, Schulman said the legal and form-filling fees have, at times, exceeded the 30 per cent cap on fees that Canada is paying lawyers for the compensation applications.

In sum, Schulman, of Manitoba’s Court of Queen’s Bench, agreed form-fillers are wrongly benefitting from the process and treading on what amounts to legal work.
He urged any survivor with a contract to pay a form-filling company to ignore it.

“I conclude that any service agreements between form fillers and claimants which purport to be assignments or directions to pay are void,” Schulman wrote. “I further conclude that any such agreements providing for compensation on a contingency fee basis are also void.

“Finally, I hold that all form filler agreements amounting to contracts for entities not regulated by a provincial or territorial law society to provide legal services are contrary to public policy and also void.”

Schulman ordered all form-filling agencies within 30 days to reveal how many clients they had and what they were charged. He then told the monitor to make recommendations on how survivors should get their money back.

Schulman said these moves should help preserve the integrity of the compensation program known as the Independent Assessment Process (IAP) and the rights of survivors, who are recognized in the settlement agreement as “vulnerable persons.”

The judge was very upset to hear some survivors were “coerced” into signing contracts with form-filling agencies, calling the practice “unconscionable.”

Chief Adjudicator Dan Shapiro applauded the judgement.

“It confirms that practices which deprive claimants of the full amount of the settlements that they are entitled to under the settlement agreement will be prohibited by the court,” he said in an e-mailed statement. “It really sends a message that the court will stand in favour of the integrity of the settlement agreement.”

Carroll also likes the judgement: “We support the goals of this process in protecting the interests of the disadvantaged and we provided little opposition through this court process other than to clarify our limited involvement in the unfortunate incidents that transpired,” he said in a faxed statement.

“I also recognize the court’s need to exercise caution to ensure that this conduct has not since reoccurred by monitoring of our clients’ monies and full disclosure. I am confident that no similar incidents have occurred since the events of October 2012.”