Lorien’s concerns involved both quantum and liability. How much was his claim worth for pain and suffering and future income loss? Which experts should he use? Who would pay for them?
With respect to liability, he had a much more pressing issue. Vermont at the time was not a ‘contributory negligence state’. That meant that, in such circumstances, Lorien could sue and/or collect from only one person or firm. If that person or firm was liable then they could then sue others. The complex issue would drive most lawyers to avoid such cases.
Also concerning liability, the evidence was destroyed in the fire, and there was no subsequent inspection of the remains to suggest a potential cause.
Regarding all of these matters, one of our lawyers before coming to our office had dealt with similar issues in Vermont.
My response to Lorien was basically a series of questions asking about the medical and employment status of his client, the actions and support of his tribal council, the names of all parties in Vermont, and the identity of the manufacturer and supplier of the trailer, the stove and the generator. Perhaps the next question bothered Lorien most of all: “Who’s the local judge?” Relative to the political sentiments in that county, the next query was automatic: “How does he feel about the aboriginal community?” The potential in the States to choose your preferred jurisdiction had to be considered.
The failure to preserve evidence was a key aspect in the entire case. Lorien believed the distributor of the trailer arrived on scene very quickly to remove the damaged trailer. With it he took the damaged generator and kerosene stove. That was his principal defendant. Our advice was to sue everyone involved in the manufacturing, sale and ownership of the trailer and then let the courts decide. No doubt the tribal band and the project coordinator would ultimately be involved.
Because the incident involved an event in Vermont with resulting treatment in Ontario, Lorien was dutifully advised to maintain legal action in both venues. He had already done that, but once again he appreciated the concurrence with his actions.
Fortunately, Lorien’s client had filed tax returns in Ontario, even though his native status did not require him to do so. That would be most beneficial in proving a significant income loss as his past records, we were told, confirmed a regular stream of income that could be extrapolated into the future.
The next morning I emailed Lorien, sending him a list of medical experts in his area. I had talked to several of these care providers before sending the email, just to make sure that they were all on board and did not anticipate immediate payment for their efforts and reports. Lorien’s gratitude was immense. Three years later the case was settled.
Before that case was resolved, Lorien called our office once again. His concern was harassment. “Why are natives always blamed whenever the police find a burned vehicle?” With the major recession preparing to devastate the economic lives of many communities, the tendency to commit crimes for petty gains was becoming too common.
Not everyone was rich enough to lose their shirts in Ponzi schemes. Theft from offices, warehouses, salvage yards, and even pharmacies were no longer front page news. Residential burglaries also became the quick fix for many impoverished persons trying to make ends meet or purchase tomorrow’s narcotics. It was all about the need for quick cash.
However, the $1,000 antique could no longer be fenced for even $100. The era of stolen car phones and auto radios had long vanished. Meanwhile the automobile maintained its desirable value among thieves.
Lorien’s concern remained very real. “Why are natives always being accused of stealing and torching cars?” The accusation didn’t make sense. If someone wanted to profit from a theft, why destroy the goods that he could fence? Conversely, if a native stole a vehicle why would he ever burn the vehicle in his own front yard?
Unfortunately there was nothing we could do to help Lorien. His issue was determined by preconceived notions in society. As cruel as it was, the perception that Indians are prone to commit major crimes including theft and arson of a white man’s vehicle was commonplace and seemed quite acceptable in the infantile minds that decided that the white man was cultured and the native was not.
Following the settlement of his Vermont case, Lorien called our office once again, not just to express his gratitude but rather to pose another query. It was obvious that his clients could never be stereotyped. This query was legitimate on an issue that is taxing to so many lawyers and which judges are hard press to determine with any reliability.
Lorien’s client was a woman who operated a business with a store on the reserve and also by internet. The latter included clients throughout North America and several firms in Europe. Her family—mainly her daughters—were also involved in the family’s agricultural enterprise in Mexico. The products that she sold in her store and by internet involved: oil paintings, wax candles and decorations, reproduction of native artifacts, wood carvings, and artistic reproductions of ancient maps. Her skill was first class.
Unfortunately, the woman was convinced sad times would never happen. She never filed tax returns, so it was going to be hard to establish a future wage claim with some reliability. To her benefit, though, she had records of her expenses relative to her enterprise in Mexico. The latter she had to complete to file tax returns there. It was the Mexican agricultural produce that saved her claim. The woman had always thought of herself as being very thorough. Regretfully reality proved her not to be so. Then again fate smiled when a link to the website governing the Mexican business produced invoices for the supplies relative to her domestic business. All of that was not possible without our office’s direct intervention. Accountants had, to that time, avoided participation in the claim as they were prone to do when an aboriginal person was involved who had not filed complete tax forms and lacked supporting documents. Even with the ledgers we found, obtaining the service of an accountant proved to be impossible.
It took a visit to his office, and weeks in ours assembling all of the documents, recopying same, and then in one office assembling them all by date. We then talked to the suppliers who all admitted none of their accounts were in arrears. We then emailed the buyers in Europe. With statistics produced by the provincial government on the average income and profit margins from similar enterprises, we were able to start piecing together the various aspects and ingredients that would formulate her income loss.
Ultimately we did a comparison of her annual expenses and noted a 23% increase in those expenses following the accident. That 23% was a definite loss figure. Based on her available capital to purchase new supplies, we were able to reasonably conjecture a profit margin. It was less than what it should have been but certainly within reasonable expectations. That term ‘reasonable expectations’ was always difficult for any side in any litigation process to adequately confront. Any projection that avoids gross exaggeration could be deemed to be somewhat reasonable. We went a step further comparing the increase in costs on a yearly basis so that we could then assume the same annual increases for her sales.
The woman was severely scarred as a result of the motor vehicle accident. Her need for ongoing dental work would continue for years. A minor brain injury was diagnosed. Psychologically, she was a mess. Being defaced was hell for this previously successful woman. She went into a shell. Her daughters left permanently to work full time in Mexico. They had had enough of their mother’s outrageous outbursts. Her husband too bolted the scene. Her life had collapsed.
Lorien achieved an excellent result, using the mediation process to finalize the settlement. His gratitude was overtly expressive.
We met one time after that. The evening conversation over supper was far more serious and reflective. Although he was native by birth in Moosonee, and having worked almost exclusively for the aboriginal community, he admitted he was worried about the future of some First Nations. “You can’t dance and drum forever.” Lorien was devoted to the total campa
ign to preserve native culture, but was becoming concerned by the vocal few whose suggestions were being misinterpreted as dogma as if such activities were solely the foundation of the aboriginal community.
Repeatedly in that conversation Lorien stressed health, education, support for seniors and jobs. “Why do we import goods from China, when we can make them here?” The ‘here’ to which he referred were the native communities. He added, “Pay our people a reasonable wage to make the products we import from China. The more you pay our workers, the less you hand out as social welfare to the chiefs and their counsel.”
Lorien further added that he felt that even those with tribal cards should file tax returns and then be eligible to receive the better benefits available to Canadians off the reserve. So much of what he said made sense. “We must put an end to separate standards and conditions for education and health care.”
He had my agreement.
When asked if he would ever contemplate the position of chief, he spoke candidly. “Never. It’s a thankless job. Look at them. They all try hard, but they are stuck in the middle of a whirlpool. The federal government withholds funds, the provincial government waffles, and residents can never be satisfied with the conditions that bind them to poverty without human expectations.”
The conversation expanded beyond provincial matters to include issues pertinent to the east coast. In particular, we spoke at length about the dispute regarding fishing rights in New Brunswick. Lorien was well-versed on the subject, which led me to suggest that he should join their legal team. He politely replied that he had already considered it.
As he had to be up early the next morning, we concluded our meeting by once again expressing mutual appreciation. We bid goodbye that day with a promise to never end our struggles for an improved quality of life for all Canadians.
Two months later redundancy claimed my position. Meanwhile Lorien continues to surpass clients’ expectations.
2015
PASCAL
“Never enough.” The words were scrawled in large script on the single page. Placed uniquely in the centre of the coarse wooded desk, the message was abundantly clear. Remnants of other projects were strewn in a manner reflecting forgotten importance. In many respects it truly symbolized the entire room and unfortunately the remainder of his dying days.
Retirement years had done me well. After being forced into that situation by workplace redundancy more than four years prior, I explored various activities to fill my days. Ever mindful that we are never able to add a moment to our life’s span, the keen desire was to contribute in some deliberate way to help someone. The uncertainty of life and death had already followed me daily in the handling of tens of thousands of claims for people I would never meet again. Retirement years were just an extrapolation of that training, this time giving me the chance to assist others without having to report to any supervisor on how and what I accomplished. “The Golden Years” are always good for that. No supervision.
This visit to that retirement home in the last week of August was not my first. There had been two other elderly patients that I had already been visiting on a weekly basis. Spending time with the infirm is not difficult. What makes the process trying is the reality that each person still has family. Where are they? In spite of that dismay, I persevered until the time had come for each person to rest eternally.
Outside the building I toured the gardens. The entire realm provided an extraordinary release from the tensions of the daily world. The gardens were amass with arrangements of black-eyed susans, echinacea, geraniums, chrysanthemums, begonias and roses. The trees provided pinnacles skyward to heaven as well as broad shelter beneath their spreading bows. Fruit trees especially created a sense of fulfilment with apples, pears, plums and nectarines. On the incline beyond the far fence, golden wheat swayed with the breeze creating an immaculate contrast with the shades of green and floral displays. Within the grounds there was a stream that was diverted into several tributaries. Across each, ornate wooden bridges provided access. A series of Christian statues, and shrines revering the symbols of Hindu, Jewish and Muslim faiths affirmed ecumenical grandeur.
Rose greeted me at the front desk. She was totally inspiring in appearance and courtesy. Her light complexion had been tanned by the late summer sun. Brown hair was thick and tied in a bun to not hinder her chores. Her smile above all else was captivating. It was so rare to find anyone in that position to appear so enthusiastic.
The introduction was longer than usual as this particular patient had not had any other visitors. I had to explain my interest, the source of the referral, and my expectations. She promised me she could give me more information about the infirm person, but only if he signed the authorization.
That process seemed somewhat strange to me, as I was told that he had developed Alzheimer’s and may not want to see me. Did he have the capacity to even know what he was signing? Was I just wasting my time?
After waiting in the lobby for more than ten minutes she returned with the signed sheets, keeping them neatly within her file. That dossier also included my resume and notes she had taken after reviewing the medical reports. The patient had been referred to this residence by his family doctor in Midland.
“He may not say much,” she advised before providing any details of the patient’s life. Her advice after that was a series of short comments.
Pascal was his name. He was in his seventies. That meant he was born before the end of the war. He was born near Belleville, a home birth in a native community. Rose stressed that. Upon hearing the information I immediately concluded that the home birth took place as they generally did in the reserves in order to avoid the hospital. Once there were hospital records, the name and age of the child were public records so that it would be impossible for a child to avoid a Residential School.
“He worked in Toronto.” That intrigued me. “On the sky-scrapers,” she continued. “After that he worked with the missions helping others.”
“The Victor Mission?” I enquired.
“No. The army centre,” she added referring to the Salvation Army hospice.
Rose mentioned that the doctor believed he also helped with legal aid cases, and eventually headed north to Midland. There he struggled to make ends meet while doing whatever he could in the native community.
“Probably why he calls himself ‘Huron’.” That stopped me instantly, as the last person in the Huron Nation had died years before. “It seems to have given him purpose,” she added.
Enquiries, regarding his Alzheimer’s, provided inconsistent answers. At one point I mentioned dementia and was abruptly corrected. Regarding doctors, there were none currently being seen, just medication to control the affects. Speech and concentration were significantly compromised. “He’s worse late in the day.” Her summary was consistent with other such cases.
Any questions I may have had regarding the care and commitment were immediately dispelled when I was informed that he had no medical plan, and no funds. “They basically took him off the street.” That this residence and care were all ‘pro bono’ astounded and inspired me. In our computer age, when the whole world concentrates exclusively on input and output, it was a blessing to encounter a niche where humanity counted.
Rose led me upstairs to the second-floor room. Pascal had fallen asleep, huddled under his blankets facing the wall. “Always needs two covers,” she advised. His heavy breathing clearly conveyed he was in another world. “Doesn’t snore,” she added, “just breathes hard even when he’s up.”
The comments led me to conjecture that maybe there were other issues. However, who was I to judge. So often with my own clients in the past there was a general reluctance to ever tell any doctor the complete story. That could have been the case here. Rose then left me alone in the room. “He should be up by four” was her parting expression.
I followed her out of the room and proceeded to
the gardens. They reminded me so much of St. Bernard’s Convalescent Hospital in North York. However, here, the technology was much more enhanced. As one neared a particular statue, a hymn could be heard. The statue of the Sacred Heart intrigued me. It was so much a copy of the one at the Carmelite Abbey in Niagara Falls. “Wonder if it was the same artisan.” The thought was automatic.
At 3:30PM I was back in his room; Pascal had just awoken. My entrance startled him and his first impulse was to press his buzzer for security. I introduced myself. He didn’t seem to understand, so I repeated the information. “Do you want me to open the window?” That question broke the ice. He just nodded and smiled. The breeze was instantly refreshing, filling the room with a fragrance. Considering all of the visits I had ever made, I always found fresh air to spark up a conversation. It did so this time.
Pascal looked very much his age. His wrinkled complexion could hardly be noticed under the forest of wiry hairs most men would call beards. There was no structure to the matted hair that continued up his sideburns and into the course thick locks that covered his temples and ears.
“Do you have a bowl?”
Either he chose not to answer or had difficulty with the words.
I left, and after a brief search returned with a bowl of soapy water, a face cloth and a towel. Thirty minutes later, the dirt in his hair was cleansed and his chin was shaved. Tomorrow, I pledged to myself, I would wash his hair again with better water and appropriate shampoo.
Queries about his past met with silence initially. Only after he figured I was a friend did he open up. However, his speech was rattled, most of the time just incoherent mumbling. I sensed that maybe he had spent too many hours in bed, which had caused phlegm to build up in his throat. The offer to take him outside initially met with his reluctance. In reply to the second offer, he mentioned supper. When I suggested we would be back for supper, he started to pull back the covers.
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