Feds appeal residential school liability decision

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A court ruling that might have sped up settlement of residential school compensation claims has instead been appealed to the highest court in the land.

Justice Minister Irwin Cotler and Denis Coderre, the minister responsible for the Office of Indian Residential School Resolution Canada (IRSRC), made the call on Feb. 9-the federal Crown will appeal the Blackwater case to the Supreme Court of Canada.

In the Blackwater decision, the British Columbia Court of Appeal ruled unanimously that the federal government is "100 per cent vicariously liable" for abuse that occurred at the Alberni Indian Residential School. The court said the government was liable because it controlled every aspect of the operation of the school.

The government is appealing that decision on the broader issue of the liability of non-profit organizations in these kinds of cases.

"There is a larger principle at issue-namely, vicarious liability of non-profit organizations for the wrongful actions of [their] employees respecting children in their care," said Cotler. "The B.C. Court of Appeal decision is at variance with the principles as enunciated by the Supreme Court of Canada in these matters. Accordingly, the principle of vicarious liability of non-profit organizations for the abuse of children in their care needs to be underscored, and the fundamental principle of child protection afforded."

Vicarious liability is a legal term that means that people in positions of authority must be responsible for the actions of people they have authority over.

IRSRC spokesperson Nicole Dauz explained that the government couldn't leave the B.C. ruling hanging because it was inconsistent with previous rulings.

"With the court of appeal decision, they didn't even rule on whether the United Church was vicariously liable. Because the United Church is a non-profit, they said 'we're not even going to look at the issue of whether they have liability for the actions of their employees.' It is true that the ruling says that the government is 100 per cent liable, but it didn't look into whether or not the church had liability," she said. "If non-profit organizations aren't liable for the actions of their employees when they care for children, that's no good. The Supreme Court ruled that the Children's Foundation was liable for the actions of some employees when they had abused some children. So we already have that on the books. So we look to that to say it's even more important for it to go to the Supreme Court."

Assembly of First Nations (AFN) National Chief Phil Fontaine attacked the government decision, saying he was "disappointed and angered."

"The government should give the survivors their due and seek contribution from the churches later if they insist on engaging in endless litigation," he said. "An appeal is not in the interests of equality, fairness, justice or a timely resolution for residential school survivors. The government is leaving the survivors hanging, while pursuing legal arguments that are irrelevant to them."

He accused the government of stalling.

"This is nothing more than a delay tactic," he said.

The AFN had hoped the Blackwater case would not be appealed so that fighting between the government and the churches would end and survivors who had received, or were about to receive judgements, could get paid quickly. Many are elderly and sick.

"We have always maintained that the federal government is solely responsible because they established and maintained the schools," Fontaine said. "It was the federal government that dragged the churches into the court cases. Time is of the essence if the survivors of these schools and their children are going to see justice."

Calgary lawyer Vaughn Marshall represents members of southern Alberta's Blood Tribe in their residential school compensation action. He disagreed with the national chief about the government decision.

"The bottom line is, I think it's going toclarify the whole issue," he said. "To simply say that it's a delaying tactic, I don't know. I actually believe that it will clarify matters, especially in view of the Oblate decision yesterday (Feb. 19)."

In that case, a survivor won leave to appeal a court decision that ruled in favor of the Oblates. It is a case that also deals with aspects of vicarious liability.

"I think the [Blackwater] decision is going to be granted leave. And it's going to be decided together with the Oblate decision. It is my hope, and it is my expectation, that the Supreme Court of Canada is going to find that firstly, Canada is 100 liable," he said. "I believe that the churches are also going to be found liable, whether it's 100 per cent I really don't know, but there's a strong argument to be made for that. Once the plaintiff gets a judgement, they're going to be able to pursue that judgement strictly against Canada and it will be up to Canada to make a claim against the churches to get an apportionment. But make no mistake, in that scenario the government of Canada has to pay 100 per cent on the judgement."

If that happens it will be in part because of an argument made by government lawyers in a previous case.

"One of the things that I found interesting from [Blackwater] was that Canada had even made the point that where two defendants are held jointly liable in tort on grounds such as vicarious liability . . . each defendant should be liable to a plaintiff for 100 per cent of the damages," Marshall said. "The defendants have to decide amongst themselves as to how the apportionment is going to go. That doesn't directly affect the defendant," Vaughn Marshall.

He said another case the Supreme Court justices are deliberating right now could also be extremely important. Marshall was the trial lawyer when the Alberta Court of Queen's Bench ruled that the international Catholic Church can't hide behind Section 8 of the State Immunity Act. The Catholic Church previously had ben considered a state and entitled to diplomatic immunity. It had asserted that immunity to avoid liabilities. The decision was overturned in the Alberta appellate court and arguments have recently been made in the Supreme Court. A decision is expected soon.

So far, the Catholic Church has refused to involve itself in any compensation for residential school survivors. If the high court takes away the protection of the State Immunity Act, the international church will be open to lawsuits related to abuse committed by priests.

"The decision that is before the court is an incredibly important decision," said Marshall.

But he said that will be a matter for the government and the church to work out if the court finds that both are vicariously liable for residential schools.

"No matter whether that case against the Roman Catholic Church worldwide is won or lost, it should make no difference to the plaintiffs in the residential school cases because once they get their judgements they should be able to collect 100 cents on the dollar from the federal Crown. The federal Crown will then have to pursue the churches national, locally or against the Holy See," the lawyer said.

None of this affects the alternative dispute resolution (ADR) process at the moment, said Nicole Dauz, although lawyers say that if Canada is found to be 100 per cent liable then the ADR will need to be changed.

"As far as we're concerned it is business as usual because a majority of our claims are settled out of court. We've settled over 1,000 claims and there's only 16 court judgements involving 26 claimants. All the rest have been out of court," she said.

She was asked about decisions in the infamous Mount Cashel case and another in London, Ont. where non-Native victims of abuse by clergymen were awarded large sums, sums far larger than those of the ADR process.

"When it's broken down, the award for the damages was either $150,000 or $175,000 and that is on par with our compensaton rules in our ADR process. The larger amount of money-over a million dollars-was for loss of future earnings," she said. "The government does not compensate for that in the ADR process. The reason being is it's very difficult. The ADR process was set up to expedite the process and the amount of paperwork and the experts that are required to prove that is quite expensive and that's why it's not part of the ADR process."

Native people who want to pursue a claim for loss of earnings-as well as loss of language and culture-will have to go to court because the ADR does not deal with those claims.

Dauz said that reports that few people were signing up for ADR were not accurate.

"We're very pleased with the uptake. The toll-free help desk has received more than 3,500 requests for the application forms for ADR," she said, adding that between 100 and 150 applications for ADR have been received.

She said the first ADR hearings are expected to be held in late spring or early summer.