Judge slams ADR, rules class action can proceed

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While ruling that a lawsuit launched by former Ontario residential school students could proceed as a class action, a panel of three Ontario appellate court judges vehemently discarded arguments that the federal government's alternative dispute resolution (ADR) process would be a better way to settle the dispute.

Justice Stephen Goudge, a former lecturer in both labour law and Native rights at the University of Toronto law school, wrote the unanimous decision which was released on Dec. 3. Justices Michael J. Moldaver and Marvin Catzman agreed with his reasons.

The lawsuit was originally filed in October 1998 by former students of the Mohawk Institute Residential School. The school building is located in the city of Brantford on Six Nations of the Grand River First Nation land and now houses the Woodland Cultural Centre, a museum dedicated to Iroquois or Haudenosaunee culture.

Children and other family members of the former students also allege they were harmed by the abuses their relatives suffered in the schools and are demanding compensation. Altogether, with former students, their siblings and their children, the number of people involved as plaintiffs in the case is 1,400.

The defendants are Canada, the Anglican Church and the New England Company, an evangelical English charitable organization that dates back to the 17th century.

The court noted that the defendants had attempted to introduce new evidence during the appeal that held up the ADR process as a preferable way to settle claims made by former residential school students.

"Even if we were to admit this fresh evidence, I do not agree that this ADR system displaces the conclusion that the class action is the preferable procedure," Justice Goudge wrote. "It is a system unilaterally created by one of the [defendants] in this action and could be unilaterally dismantled without the consent of the [former students]. It deals only with physical and sexual abuse. It caps the amount of possible recovery and, most importantly in these circumstances, compared to the class action it shares the access to justice deficiencies of individual actions."

The case, known as M.C. (also known as Cloud) v. Canada, has now been certified as a class action and, unless one of the three parties named as defendants appeals to the Supreme Court of Canada, will proceed to trial.

Survivors and their lawyers all over the country welcomed the ruling. A press release from Thomson, Rogers, the Toronto law firm that is attempting to get a national class action lawsuit certified, said all survivors of the schools would be "thrilled" by the judges' conclusions.

"This is a great step forward for the victims of these institutions," said Alan Farrer of Thomson, Rogers. "This sets the stage for our class action on behalf of residential school victims all across the country."

The national chief of the Assembly of First Nations (AFN) also welcomed the ruling, which reinforces his organization's recently released report that was critical of the ADR process.

"Between 1922 and 1969, students at the Mohawk Institute Residential School, like First Nations and other Aboriginal people at residential schools across Canada, were allegedly abused in many ways," Phil Fontaine said. "There are specific incidents of emotional harm and physical and sexual abuse, as well as the loss of language and culture that impacts our people to this very day. Today's decision recognizes that these abuses affected all the students of the school, as well as their families."

He called on the government to address the deficiencies with ADR.

"We support the survivors in this class action because there is currently no acceptable alternative except the courts," he said. "Survivors and their families are rejecting the government's dispute resolution process because it is adversarial and often serves to re-victimize survivors. This decision speaks to the limitations of the current [A]DR procss and limitations of access to justice for individuals. The Cloud class action that is certified today emphasizes the need for the government to respond to the AFN report and, more important, work with First Nations and survivors to create a better process that truly leads to justice, restitution and reconciliation."

The class action will allow experiences common to all residential school students to be examined by the court in one case. The plaintiffs claim the school was run in a way that was designed to create an atmosphere of fear, intimidation and brutality. They also claim that physical discipline was frequent and excessive and that food, housing and clothing were inadequate. They say staff members were unskilled and improperly supervised and students were cut off from their families and were forbidden to speak their Native languages and were forced to attend and participate in Christian religious activities. It is alleged that the aim of the school was to promote the assimilation of Native children.

The court certified claims for breach of fiduciary duty, negligence and breach of Aboriginal rights. The court found that dealing with all of the facts and issues raised in the case should be dealt with in one trial because it would save time and expense. The court also found that access to justice would be greatly enhanced by a class action. The plaintiffs claim more than $1 billion in damages.

Russell Raikes, one of the lawyers acting for the former students, said the judge's comments about the ADR process were tremendously important.

"They tried to introduce that on the appeal for the first time and say, 'Look at us, we've got this ADR program," he said. "So when you're deciding whether or not to certify this, you should take into account that there's this ADR program that we've put in place so this is not the preferable procedure. You should make them go with individual lawsuits or the ADR route.' What the court said is, 'Your ADR program is unilatral. You can withdraw it unilaterally; you can change it unilaterally. It's not adequate for these reasons."

Raikes said the government had a self-serving motive for setting up the ADR, but Native people saw through it.

"I think [the government] came forward with the ADR program hoping people would rush to line up at the door to take what was being offered even though it was very narrow, very limited, and would then sign off on their other claims and would save the government some money. And I think people were smarter than that," he said.

He urged the defendants to accept the decision and not slow the process further by appealing the decision to the Supreme Court of Canada. He noted that even if there is no appeal it will take close to a year to get to trial and many of the plaintiffs are elderly and in poor health.

"History favours that they will appeal. But I'd say that they shouldn't. I'd say it's a well-written, well-reasoned decision by a unanimous panel of the court of appeal, which is the highest court in this province and I'd say on a moral basis they shouldn't do it. These people have been through enough," the lawyer said. "Let's get to resolving the issues and let's do it in an expeditious way using the vehicle that the court of appeal has said we should use. I'd say that just on a moral basis I don't think the Crown should be seeking leave to appeal. But that's up to the Crown, of course. I think that decision will be made at a very high level."