Last Updated: Friday - 09/24/2010
Week of December 22, 2003
Residential school bombshell
Court rules Ottawa 100 per cent liable for residential school abuses
By ART BABYCH
Canadian Catholic News
A decision by the British Columbia Court of Appeal undermines the federal government's claim that the Church organizations that ran Indian residential schools are legally liable for abuses in the institutions.
It also removes justification for the government's "share the blame" practice of naming the Church as a third-party defendant in lawsuits where abuse victims did not seek compensation from the church.
In its ruling Dec. 10, the appeal court found the federal government 100 per cent liable for plaintiff's claims in a lawsuit launched in 1996 by 27 former students of the Alberni Indian Residential School against the federal government and the United Church of Canada.
"It appears that the fact that the Church is in the category of a non-profit charitable organization is one which weighs in favour of not imposing vicarious liability upon it in circumstances where, as in this case, the injured party can make full recovery from Canada," wrote Mr. Justice William Esson.
"I find support for that view of the matter in certain of the policy considerations taken into account by the Supreme Court of Canada in what is now the leading decision in this area, (Bazley v. Curry) . . . in which judgment was delivered after the trial decision in this case on the issue of vicarious liability."
In 1998, Chief Justice Donald Brenner of the B.C. Supreme Court Chief found the government and the Church vicariously liable for sexual assaults committed by Arthur Henry Plint, a dormitory supervisor at the Alberni Indian Residential School. In 2001, Brenner ruled that the apportionment of liability was to be shared 75 per cent by the Government of Canada and 25 per cent by The United Church of Canada. But the appeal court judgment places all the liability on the government.
However, the Rev. James Scott of the United Church's Residential Schools Steering Committee, said the ruling does not alter the Church's moral responsibility to the survivors of residential schools, their families and their communities.
"Today's judgment should not be seen as a way for the United Church to avoid responsibility, but rather as an invitation to intensify our efforts to work towards healing and right relations with First Nations peoples, and to live out our 1998 Apology to Residential Schools survivors," said Scott.
He also noted that his Church decided to immediately pay its 25 per cent share of compensation awarded to the plaintiffs following Brenner's 2001 ruling.
But the implications of the appeal court's decision reach beyond the United Church to Catholic organizations such as the Missionary Oblates of Mary Immaculate, which ran more than half of the schools. Over 70 per cent of the almost 5,000 lawsuits filed by about 12,000 former students are from former students who attended schools run by Catholic Church organizations.
The ruling "effectively removes the foundation for the assumption that a Church organization holds a vicarious liability," said Gerry Kelly, director of the aboriginal affairs secretariat of the Canadian Conference of Catholic Bishops, who called it "a "very significant decision."
He said in a CCN interview that the court reinforced the basic assumption of the churches and Church organizations that they have a moral obligation to work toward healing and reconciliation but not an obligation to share compensation with the federal government.
"That should free Church organizations to really focus on not only what the Gospel calls us to, but our whole mission," he said.
A spokesperson in the Office of Indian Residential School Resolution Canada (0OIRSRC) said officials are studying the 167-page appeal court judgment before commenting on it. Former Prime Minister Jean Chretien established the office in June 2001 to further the government's commitment to "achieving a fair and equitable resolution of long-standing cases of abuse at Indian Residential Schools," he said.
With an annual budget of almost $60 million, the office had been the responsibility of cabinet minister Ralph Goodale until Dec. 12 when he was appointed finance minister in the cabinet of the new prime minister, Paul Martin.
The Anglican and Presbyterian national churches, which operated some of the residential schools, earlier signed agreements with the government to pay 30 per cent of the compensation awarded to former students with validated claims. In the case of the Anglican Church, the compensation could not exceed $25 million over a five-year period while the Presbyterian Church was to pay a maximum of $2.1 million.
Catholic Church organizations involved in the operation of residential schools did not agree to the goverment's unilateral proposal for a 70-30 split, in part, they said, because it "completely ignores in-kind contribution and the ongoing role and value of Church ministry especially in aboriginal communities."
The government's plan also provided no cap on Church liability and did not recognize that only those organizations directly involved should be liable.