Residential School Lawsuits Trial in Newfoundland and Labrador Delayed

By Sue Bailey
Daily Courier
November 18, 2014

http://www.kelownadailycourier.ca/news/national_news/article_0bc8028e-5254-5935-b2cd-1f4a45c0b42b.html

Former Newfoundland and Labrador residential school students suing for an apology and compensation listened Tuesday to procedural wrangling that could delay their case for months.

Judge Robert Stack of the provincial Supreme Court said he'll likely rule Monday on a federal application that derailed what was supposed to be the first day of a two-month trial.

Lawyer Jonathan Tarlton, who's defending the federal government in five certified class-action lawsuits, raised concerns that pre-trial filings weren't complete.

Lawyers for the province and former operators of the schools blamed a procedural misunderstanding as they told Stack they weren't ready.

At issue was the extent to which these third- and fourth-party defendants, named by Ottawa and the province respectively, were expected to take part in the first of a proposed two-phase trial.

The first part was to examine whether Ottawa breached any fiduciary or trust relationship with aboriginal students. The second phase would assess potential negligence involving all parties.

Lawyer Kirk Baert, representing the plaintiffs, said his legal team had taken pains to keep the already seven-year-old litigation focused on the federal government alone. His concern, he told Stack, was that additional defendants would raise complex and protracted issues.

Ottawa's move to involve the province, which in turn involved the former operators, did exactly that, Baert said.

"We are, in effect, hostage of those proceedings. But we shouldn't be, not after seven years."

Baert urged Stack to minimize any further delays. He also proposed a timeline that would blend the two phases and require all parties be ready no later than September 2015 for a 12-week trial.

There are more than 1,000 Metis, Inuit and Innu plaintiffs seeking an apology and damages for alleged sexual and physical abuse along with cultural losses. Many of them were devastated to find they were excluded from Prime Minister Stephen Harper's apology in 2008 and a related compensation package for rampant abuse at Indian residential schools.

Lawyers for the federal government deny it was responsible for schools located in St. Anthony, Cartwright, North West River, Nain and Makkovik that opened before the province joined Confederation in 1949.

"The schools in this case were not Indian residential schools," says its statement of defence. "Canada did not, either under the Indian Act or by other purpose or authority, create, operate or manage the schools."

The International Grenfell Association ran three of the institutions, while the German-based Moravian Missionaries ran the other two.

Steven Cooper, another lawyer representing plaintiffs, said outside court that Ottawa after 1949 had the same legal duty to aboriginal students in Newfoundland and Labrador schools as elsewhere in Canada.

He said yet another delay means more aging plaintiffs already in their 70s and 80s won't get their day in court.

"We have people who were going to school in 1949. They will not live to see the end of 2015," he said.

"They'll go to their graves without recognition, without an apology, and without a bit of money to leave for their grandchildren."

Stack asked the 13 lawyers gathered on behalf of the various parties to meet Dec. 15 for a case management conference.