OTTAWA
The Dene National Chief says he's ready to contact the Vatican to force Catholic groups involved in the Indian Residential School Settlement Agreement to pay money still owed to survivors.

Dene National Chief Bill Erasmus is denouncing a 'loophole' found by the Catholic Church to get out of paying $25 million in settlements to residential school survivors - NNSL file photo

"I have the Indian residential school file at AFN (Assembly of First Nations) so I'm quite prepared to do that," said Bill Erasmus.

Aboriginal groups across the country were shocked to learn that a miscommunication between lawyers has allowed the Catholic Church to walk away from a multi-million dollar fundraising campaign for residential school survivors, after national media outlets reported the facts of the case last week.

As part of the 2007 Indian Residential School Settlement Agreement 50 Catholic groups that ran the schools - referred to as the "Catholic entities" in the case - were required to pay for abuses suffered by students. The original agreed settlement stated the Catholic entities were required to pay out $79 million - $29 million to the Aboriginal Healing Foundation, provide $25 million in "in kind" services and fundraise another $25 million through the campaign.

According to court documents, the federal government took the Catholic entities to court in 2013 in an effort to make them pay an outstanding balance of $1.6 million owed to the Aboriginal Healing Foundation.

In June 2014, Gordon Kuski, a lawyer for the Catholic entities, wrote to Alexander Gay, a lawyer for the federal government, asking to "settle all matters between the parties" in exchange for $1 million.

Gay responded to Kuski and raised the amount to $1.2 million.

Court documents state that Kuski's request aimed to release the Catholic entities from all of its obligations under the agreement - including the fundraising campaign.

Kuski sent a draft release letter to Gay in September, 2014. In response, Gay stated that his clients agreed to the $1.2 million amount but paperwork and wording in the release documents would need to be determined. Kuski e-mailed back and stated they "had a deal."

The case was settled on July 16, 2015.

Justice Neil Gabrielson, the judge who decided the case in July 2015, said the scope of the release was at issue.

The Catholic entities believed the release would end all obligations under the settlement agreement, while the federal government believed the release only applied to the Aboriginal Healing Foundation fundraising campaign.

Gabrielson concluded that Gay had technically agreed to the terms outlined in Kuski's September 18 draft release letter.

"Although Mr. Gay responded to that letter by saying (in part) "we have no agreement on the terms of the settlement," the balance of the email from Mr. Gay to Mr. Kuski sent September 18, 2014 at 11:37 a.m. would lead a reasonable bystander to conclude that there was no controversy over including general releases and indemnities in accordance with... the Settlement Agreement."

While Gay had stated in his e-mail that his client would need to be consulted regarding the document's terms and wording, Gabrielson said that didn't necessarily include changing the "essential terms of the deal."

Gabrielson also noted that formal documentation was not needed to make the terms legally binding.

"Neither Mr. Kuski's settlement offer letter of June 26, 2014 nor Mr. Gay's e-mail acceptance of Sept. 18, 2014 make mention of any settlement being conditional upon execution of formal documents," Gabrielson wrote.

An appeal of the case was abandoned by the Trudeau government six days after it took office, according to national media reports.

Erasmus said the judge's decision was letting the Catholic groups responsible for residential schools off

the hook.

"They found a loophole to get out of it," Erasmus said. "They found a technical way of getting out of the agreement so they don't have to pay the millions of dollars they agreed to."

Pierre Baribeau, a lawyer for the Catholic entities, said they never committed to raising the money. Instead, they agreed to a "best efforts" campaign.

"There was no guarantee whatsoever," Baribeau said. "We said we will do best efforts, similar to what is done by hospital foundations or university foundations. That's what we subscribed to. But we didn't subscribe to a guarantee."

The campaign has raised about $4 million.

Baribeau said fundraising failed because people didn't want to donate to a campaign that had already received so much money from the government.

"It was not successful to say the least, because there was a strong resistance to put money in this campaign and the main reason being the federal government already is paying billions of dollars to the survivors' families and communities," he said. "So obviously it was confusing to say the least for the Canadian public."

Baribeau also said the federal government was informed throughout the process that fundraising was falling flat.

"Each year, they received financial statements of the campaign," he said. "I was one of the two chief negotiators for the Catholics, I had met with the federal government several times for many years and we informed them of the evolution of the campaign."

Even if the campaign had been failing, the Catholic groups were still responsible for providing the $25 million, Erasmus said.

"It's a moral issue," he said. "The Church was to make best efforts to raise money, depending on how you interpret that, the church has a lot of money."

He said he believes the Catholic groups allowed the campaign to collapse.

"To me, it appears that the church never had any intent to pay and all they need to say is that they did all their best efforts."

Erasmus also questioned why the federal government never appealed the court's decision.

"So many people have been harmed, generations of people for many, many years," he said.

"The church should be making every effort to deal with these issues and to right the wrongs."

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