Ottawa, Not Churches, Should Pay School Abuse Claims, Court Rules

By Mark Hume
The Globe and Mail [Canada]
December 13, 2003

VANCOUVER -- A British Columbia Court of Appeal decision has thrown into doubt a federal government policy in which Ottawa has been sharing the costs of sexual-abuse claims with churches that ran Indian residential schools.

In a decision this week, the court found the federal government -- and not the United Church -- was liable for compensation payments arising from sexual-abuse cases at a Vancouver Island school.

The judgment, which involves claims filed by seven former residents of the Alberni Indian Residential School, raises questions about whether Canada alone will have to make all the compensation payments to about 12,000 aboriginals who allege they were sexually or physically abused in the schools.

"It's an incredibly important decision," Keith Howard, a spokesman for the B.C. Conference, United Church of Canada, said yesterday.

"We don't know yet what this judgment fully means and of course we'll have to wait to see if the feds or any of the plaintiffs appeal, but it certainly seems significant."

Chris Hinkson, a lawyer for the United Church, said his client did not dispute that people were abused at the residential school.

"The reality is, a lot of people were terribly abused . . . this ruling doesn't mean they're not going to be cared for."

However, the judgment appears to change drastically the legal guideposts that the government and the churches have been using to determine who should pay what.

An earlier B.C. Supreme Court decision found the United Church responsible for 25 per cent of the compensation and the government for 75 per cent.

That decision, reached in 1998, prompted the government to pursue agreements with several churches, in which compensation was to be shared on a 70-30 split.

Earlier this year, both the Anglican Church of Canada and the Presbyterian Church agreed to share compensation payments with the government. The Roman Catholic Church has been resisting the federal government's call for shared liability, arguing Ottawa should deal with the church-affiliated organizations that operated the schools. Those Catholic organizations ran 57 schools and were facing claims from about 70 per cent of the claimants.

"I think this decision will be significant to all churches," said Gerry Kelly, who served on the Catholic organizations' Task Group on Indian Residential Schools.

"It overturns the only situation in which a church entity was found vicariously liable . . . and it's significant because the working relationship [between churches and the government] was the same in all residential schools."

Nicole Dauz, a spokeswoman for Indian Residential Schools Resolution Canada, said more time is needed to analyze the ruling.

"It's a complex judgment and we really are taking very careful assessment of it before responding. We may be able to respond next week."

The government has set aside $954-million for compensation payments to abused students from residential schools. The main government thrust is to move away from the courts into other methods of dispute resolution, but some claims, such as the Alberni ones, have gone to trial.

In his landmark 1998 decision, Mr. Justice Donald Brenner of the B.C. Supreme Court had ruled that Canada should pay 75 per cent of those claims and the United Church 25 per cent.

In overturning that judgment the Appeal Court has shifted the burden to the federal government.

The Alberni claims arose from the sexual abuse of students by Arthur Henry Plint, a dormitory supervisor for 10 years, until 1968.

Judge Brenner had ruled "the Church . . . acted as the agent of Canada in providing supervision and management" of the school.

But the five Appeal Court judges rejected that view. Referring to a 1966 labour case involving a residential school owned and operated by the Oblate Brothers, the court noted that the Canada Labour Relations Board had stated: "The authority to build and operate schools for Indian children belongs to Parliament. It is, therefore, the Minister who possesses the absolute legal authority to construct and operate these schools."

The Appeal Court concluded that while the church hired Mr. Plint, he in fact worked for the government, which paid the bills.

The Appeal Court concluded: "Here, the Government of Canada is admittedly liable for the wrongs done by Plint . . . the Church should not, in this case, have been held liable "

There were 130 Indian residential schools in Canada . Approximately 90,000 former students are still living.


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