Last Updated: Tuesday - 01/04/2011

Church can't be sued in residential school cases — court

OTTAWA — The Alberta Court of Appeal has backed the Catholic Church's long-held position that it cannot be sued for Indian residential school abuses because it is not a legal entity.

However, individual Catholic religious congregations such as the Missionary Oblates of Mary Immaculate, Grandin Province, can still be held legally accountable.

Oblate provinces, under contract to the federal government, operated about half of the more than 100 residential schools.

"We view 'The Roman Catholic Church' in Alberta law as no more than an ecclesiastical entity incapable of being sued," said the court in upholding the appeal of the Archdiocese of Grouard-McLennan Aug. 28.

The panel said the archdiocese had presented "persuasive evidence" that the Church is not recognized as a legal entity in Alberta.

"We therefore hold that, based on the record before her, the case management judge should have struck out the Church from the statement of claim."

The appeal court's ruling over-turns an order made by Madam Justice Nation in January dismissing an application by the Archdiocese of Grouard-McLennan to disallow the naming of the Catholic Church as a defendant in a test case, on the grounds it is not a legal entity.

The archdiocese was named as a defendant in a residential school claim launched by an anonymous claimant known only as "John Doe" and the Crown.

Backing the archdiocese as intervenors in the appeal hearing were the Diocese of Calgary, the Sisters of Charity of Providence of Western Canada and the Synod of the Diocese of Calgary.

The issue before Nation was not whether the Catholic Church may have been involved in the structure and operation of the residential schools but whether it could be successfully shown that it was a suable legal entity in Alberta," said the panel.

The court said that since 1615, when the Franciscan Recollet Fathers, followed by the Jesuits, arrived in New France, "the Church has by careful design avoided all attempts to submit itself to secular legal disciplines, including incorporation by royal charter, legislatures, or statutory recognition beyond the ecclesiastical sense."

Liability for thousands of abuse claims filed against the federal government and the four denominational churches that ran the schools has been a stumbling block for the Catholic Church in talks with the federal government that began over a year ago.

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