The wait isn’t over for more than 3,500 former residents of Ontario’s three large institutions, many of whom suffered abuse at the hands of staff, as the wait for legally-agreed-upon compensation drags on. According to the website of Koskie Minsky LLP, the law firm handling the settlement, these victims, who have cerebral palsy, Down Syndrome, and other intellectual disabilities, suffered “…psychological trauma, pain and suffering, loss of enjoyment of life, and exacerbation of existing mental disabilities.” Charges included choking, kicking, sexual assault, neglect, and even controlling residents with cattle prods.
The December 2013 settlement promised the victims compensation of up to $42,000, depending on the severity of their claim. They have yet to receive any payment.
That’s because Crawford Class Action Services, which is administering the payouts, will not give out any money until they have comprehensively assessed each of the 3,568 claims. Crawford estimates that eligible class members will receive their payments by the end of the summer, but notes that this timeframe is subject to change. Even those with relatively simplistic claims have to wait until the other 3,567 have been processed. Some of the more complex individual applications are over 2,000 pages long.
In an interview with Update Friday for this article, Marilyn Dolmage, Litigation Guardian to one of the lead plaintiffs, Marie Slark, was not impressed. “We have not understood the delays. Many things weren’t decided until April this year, when the settlement was a year-and-a-half earlier.” While she understands the need to make sure things are done properly, Dolmage is frustrated that many of the things that are holding the process up should have been done before the settlement was reached, and that the goalposts keep being moved back. “We don’t object to doing it right. We just don’t understand why so much had to be dealt with after the settlement was in place. We think the delays are because the settlement was poorly worded.” For its part, Koskie Minsky’s website advises that payments may be ready by the end of the summer, again with the proviso that this is subject to change.
In addition to the long wait times, recipients are frustrated at their lack of options. Crawford will not issue previews of the amount claimants can expect to receive, and they cannot appeal the final amount. Only those who have been disallowed entirely can take advantage of a 30-day appeal window. The only relief is that payments will not be subject to taxes or claw backs, or affect disability, welfare, or unemployment benefits.
Allegations of abuse at the Southwestern, Rideau, and Huronia regional centres date back decades, with evidence showing that staff worked together to cover it up. In 1977, summer student Carol Higgins wrote a tearful letter to Huronia administration, saying “I think it’s good that staff [s]tand up for each other and stick together. However at H.R.C., it seems to be the wrong kind of loyalty. It is loyalty that says ‘I won’t report you for beating up that resident if you don’t report me for beating up this one.’” Another employee who reported abuse, Patricia Pandke, stated in 1989 that the only reason she hadn’t said anything sooner was that she “…[had] a genuine fear of what these people might do to my family and myself in the event that one or all chose to seek revenge.” Even as recently as 2000, a Ministry of Community and Social Services Review Report said that staff preferred to remain anonymous when discussing mistreatment problems due to fear of reprisals from coworkers. Expert evidence in 2013 showed that such abuse, and silence on the part of the staff, continued well into the 2000s.
Slark, who, along with her brother and sister, spent many years at Huronia, was forcibly silenced any time she spoke up and refused to do work at the facility, telling Update Friday “They shut me up by putting me on medication. About three years, three different kinds of medications.” All three institutions were shuttered by 2009.
That is just the tip of the proverbial iceberg when it comes to how victims were treated. Dolmage, who used to be a social worker at Huronia, and has been investigating this case for 47 years, described men who were sexually abused every night. A 75-year-old gentleman who used to live there “…still sleeps in his clothes in his closet because of what happened to him. He’s had his feet stomped on, he can’t wear proper shoes, his hands are injured so badly from being beaten…There are many people living in Community Living group homes who never got over this.”
When Slark was transferred from the facility to a Huronia foster home, the conditions were terrible, but she didn’t tell Marilyn (who was her social worker at the time) for fear of being made to return to the even worse institution.
Children as young as 10 or 11 years old, referred to as ‘ward workers’, were forced to look after others with greater disabilities. They had no training, which often led to disastrous results. According to Dolmage, former residents recalling such childhood experiences say things like, “I didn’t know how to look after these people. I was just a kid myself. I fed him…he choked, and the next day, they weren’t there. And now I realize they died, and I think what I did killed them.”
The poor treatment of many former residents has led to concerns that the compensation levels may not be adequate. Dolmage thinks this way, saying “We did all this work, and the money is not going to the people who should be getting it…The most people can get is $42,000. And this is for being raped every night of your life.”
One of the positive outcomes of the case is that family members have been allowed access to their loved ones’ patient files. According to the file for Ms Slark’s brother, Tommy, his hip got fractured so badly one day at Huronia that it needed reconstruction with plates, and he simultaneously hit his head hard enough to cause him regular Grand Mal seizures ever since. Tommy’s file claims that the incident was an accident on his part. The family finds this suspicious, however, as a random fall would be unlikely to cause that kind of damage to a man
who was only 17 at the time. They also point to the fact that it was his left hip that got fractured, but the right side of his forehead. There was also evidence of sexual activity on Tommy’s part—claims reviewers may argue that it was consensual, even though he has not engaged in any such activities since leaving the institution. For claimants who can speak for themselves, no supporting documentation is needed to back up their claims—in fact, the only way they can be denied is if the government specifically finds a file that says, for instance, ‘This man was not raped.’ However, it works the opposite way for people who can’t speak. The key point is that the person must be able to say they were abused in these ways. Since Tommy does not speak, and since his file, which was written by staff, doesn’t directly say he was assaulted, he may get the minimum compensation of just $2,000. Dolmage says that any settlement money not distributed to claimants will be returned to the government, and that Koskie Minsky pocketed fees of $6 million from the three cases, with an additional $8 million in profits.
This huge profit does not seem to have translated into huge respect for the firm’s clients. Slark bemoans the fact that even their legal team at Koskie Minsky may not have the best interests of her and her fellow claimants at heart. She says the reason they settled instead of going to trial was that Koskie Minsky assured them this method would get them paid much sooner. “The lawyer said to us, ‘How would you like to have your money this fall,’ and we said, ‘That would be nice,’ but we didn’t get our money in 2013 [or 2014].”
This brings to light an issue with the settlement that is particular to this case—that disability-related accommodations should have been written into the agreement. Estate executors of people who die before receiving their compensation—and there have been many, according to Dolmage—are entitled to claim for them. However, many of these people don’t have wills, and some, due to the specific nature of their challenges, legally cannot. On top of this, Slark (again, one of the lead plaintiffs) did not understand the settlement she was forced to agree to. Koskie Minsky was the only party that was required to sign. This firm is currently representing complainants in 16 similar class-action suits.
Since reaching the settlement, Slark and fellow lead plaintiff Patricia Seth (whose Litigation Guardian is Dolmage’s husband, Jim) have become champions for equal treatment of people with disabilities. Last week, they were awarded the Tanis Doe Award for Canadian Disability Studies and Culture (English Language) for their dedication to this case. The ceremony took place at the Canadian Disability Studies Association conference held by the Congress of the Federation of the Humanities and Social Sciences. They were the first people outside of professors and PhD students to win this award. Marie has also started an initiative to tell her story visually through fabric art, her creation of which was looked down upon when she started learning it at Huronia.
In addition to the payouts, the settlement also called for a public apology from the premier and the placement of over 60,000 documents into the public record. While Premiere Kathleen Wynne’s apology was initially appreciated, Slark finds her promises of repentance empty considering the ambiguous wait times, small expected payout, and the fact that the settlement only covers abuse—not neglect. A marked cemetery at the Huronia site will honour the 2,000 people who died at the institution over the years. Most had previously been in unmarked graves.
While the graveyard will be appreciated by survivors and their families as both a memorial and a symbol, it’s also a stark reminder of what’s at stake. As more and more time passes, survivors are less and less likely to be able to take advantage of what little compensation they are deemed eligible for. “We’re really concerned,” Dolmage stated, cutting through the semantics and getting to the heart of the matter, “because these are elderly, vulnerable, fragile people—many of them—and more and more of them are dying.”
– Daniel Share-Strom