Supreme Court clarifies liability

Church must pay 25 per cent of residential school abuse settlement

By DEBORAH GYAPONG
Canadian Catholic News
Ottawa

The Supreme Court of Canada (SCOC) has ruled that the United Church of Canada is 25 per cent liable and the Government of Canada 75 per cent liable for general damages in a British Columbia residential school case involving sexual abuse.

This ruling is expected to have ramifications for other residential school lawsuits, as well as the work of retired SCOC Justice Frank Iacobucci, who was appointed by the federal government last May to help develop a comprehensive settlement for abuse victims.

"He (Iacobucci) has an enormous task," Rod Donlevy, who represents 41 Catholic entities involved in residential schools litigation.

"I'm sure as a former Supreme Court justice he's going to look at that decision," he said in a telephone interview from Saskatoon. "Where it factors in to what he's doing will have to be something he'll have to determine."

Donlevy says the implications for other decisions, especially the looming Baxter class action suit, remains murky.

The Baxter lawsuit seeks compensation for every residential school student across Canada, covering a period of 50 years, as well as their parents and their children. It involves the controversial subjects of cultural deprivation and loss of language.

Cultural deprivation

"Though the plaintiffs claim there was cultural deprivation, that claim has never been recognized anywhere in the world by a court," Donlevy said. "So what they are asking the courts to do is create law or to recognize this as a cause of action."

"Canada also says loss of culture and loss of language - if proven - are not compensable," he said.

The Oct. 21 SCOC decision, however, dealt only with sexual abuse by a dormitory supervisor.

Employer is liable

Under vicarious liability, an employer can be found liable for damages even if not guilty of any misconduct, on the basis of having hired an employee who, in the course of their job, harmed someone.

"One may sympathize with the situation of the Church, which generally acts with laudable motives and now finds itself facing large claims for wrongs committed in its institutions many years ago," wrote Chief Justice Beverly McLachlin for the court. "However sympathy does not permit courts to grant exemptions from liability imposed by settled legal principle."

United Church representative the Rev. James Scott told the news media he welcomed the court decision.

"The United Church has always accepted that it had responsibility," he said, according to the Oct. 22 Ottawa Citizen.

"What it does is it clarifies for everyone, the government, the plaintiffs, and the Church the question of vicarious liability. In other words, what percentage of responsibility for the generalized harms that were done in the schools and specifically the physical and sexual abuse can be ascribed to the government and how much to the Church," he told CBC Radio Oct. 22.

Donlevy said Catholic entities have settled or tried to settle in proven cases of sexual abuse. "None of the entities has anything to be ashamed of," he said, referring to the transparent way in which they have handled the cases. "They have worked as diligently and openly as they possibly can."

The SCOC decision did not deal with physical abuse, only sexual abuse.

"If I'm complaining because I got slapped in Grade 2 - I'm not saying that's right, but those were the standards of the day - should that be actionable? I don't think so," Donlevy said.

The Assembly of First Nations (AFN) National Chief Phil Fontaine told CBC Radio Oct. 21 he holds the government solely responsible.

"We're going after the government. We hold the government 100 per cent liable and this is our position," he said.

Gov't brought in churches

Donlevy points out that when residential school victims launched the Baxter class action suit in 2002, they filed their complaint against the government and none of the religious organizations, but the government named the religious entities as third parties in the action.

Donlevy is concerned that only one side is coming out.

"I find that sisters who have testified give the other side of the story on residential schools - the commitment and care they gave to the students," he said. "That kind of gets lost in the wash."

Recently, the 41 Catholic entities complained to the Deputy Minister Anne McLellan who is responsible for the residential school file that her office had ignored a proposal for healing and reconciliation the entities had put together at the request of her deputy minister.

The groups set aside $54 million to back their proposal, but now must wait until Iacobucci files his report in March.

Spokesperson for the entities, Sister Gloria Keylor, told the WCR earlier this month the proposal did not include compensation for damages.

"We worked in the residential schools, but we did not run them, we did not operate them; that was the federal government's responsibility," she said.

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