Church immunity in abuse overturned

London Free Press, Canada/October 22, 2005
By John Ward

Ottawa -- The Supreme Court of Canada laid out what may be far-reaching legal parameters yesterday in a case about abuse in a church-run residential school for native children.

In doing so, however, it demolished the appeal brought by a survivor of abusive conditions in the school and sparked disappointment among some.

Deputy Prime Minister Anne McLellan called it "a very important decision."

"I think this is a very positive step and probably establishes some pretty important principles that apply well beyond residential schools," she said.

In a unanimous, 9-0 decision the high court overturned a B.C. Court of Appeal finding that the United Church, which ran the school, has immunity against liability.

The decision by Chief Justice Beverly McLachlin confirmed a trial judge's finding that the federal government and the church were liable for 75 per cent and 25 per cent of damages respectively.

The ruling also found the government and church jointly responsible, so if the church goes bankrupt, the government pays 100 per cent.

Phil Fontaine, national chief of the Assembly of First Nations, welcomed that finding.

"This Supreme Court decision makes it clear the government has no excuse for not paying damages in legal actions on residential schools."

The court also ruled there was no breach of fiduciary duty involved in the abuse at the Port Alberni Indian Residential School. That duty would have imposed a higher standard of responsibility on the government.

McLachlin also found that, by the standards of the 1940s to '60s when the abuse happened, there was no negligence involved.