The Woodlands survivors' struggle for justice took another step sideways this month after Madam Justice M. Anne Rowles allowed their former class-action law firm, Poyner Baxter, to appeal a court order removing it as class counsel. Since 2001, Poyner Baxter has represented the residential-school survivors in their battle against the B.C. government.
"I'm afraid that this appeal will blow our window of opportunity for the class-action lawsuit to begin in January 2008," said Bill McArthur, the class-action plaintiff. The trial is slated for 27 weeks.
Poyner Baxter's appeal follows a June 2007 decision by Justice B. Butler, who ruled that Poyner Baxter had ignored the wishes of the plaintiff and failed in its duty of loyalty.
Gregg Schiller, coordinator for the We Survived Woodlands group, said Butler's decision was the first ray of hope survivors have experienced in their long legal battle.
"Survivors, family members, and supporters are disappointed to hear the judge [Rowles] has given Jim Poyner the opportunity to appeal after Judge Butler removed him.”¦No one has any confidence or trust in the points system negotiated by Poyner," he said.
David Klein, who now represents McArthur and more than 100 other survivors, said the uncertainty over the Poyner appeal and who will represent the class action will delay the trial. No date for the appeal has yet been set.
Conflict arose in 2006 after Poyner Baxter presented survivors with a government settlement offer, negotiated in secret, that was based on a controversial points system that survivors condemned as demeaning and inhumane. (The points system would establish differing rates of compensation based on whether abuse involved, for instance, anal or oral sexual acts as opposed to rape or straight physical torment.) The survivors, who were children when they were abused, would have to prove their abuse, and although point systems are common in Native residential-school settlements, the Woodlands settlement lacked "common experience" compensation.
"No one is in favour of this settlement agreement except the government and Poyner Baxter," Klein said. "We retained an expert in institutionalized abuse, and he and Dulcie McCallum [B.C.'s former Ombudsman] agree it's a bad deal."
Schiller said survivors were hoping to negotiate a settlement that would give each of them a $15,000 common-experience payment. "But Premier Campbell and Attorney General Wally Oppal won't meet with us, saying the matter is before the courts," he said.
In a 2004 appellate court decision, Oppal decided in favour of Poyner Baxter's bid to represent the Woodlands survivors.