B.C. Natives church back on hook for school abuse Court overturns ruling that Ottawa solely responsible

CanWest News Service/October 22, 2005
By Shannon Kari

The Supreme Court of Canada has ruled that the federal government and United Church of Canada are both responsible for the cost of claims filed by victims of abuse at residential schools.

The Supreme Court, in a unanimous decision released yesterday, found the federal government was 75% at fault and the United Church 25% at fault, for abuse at a B.C. residential school.

The high court overturned a British Columbia Court of Appeal ruling that said the federal government was solely responsible for claims filed by nearly 30 former students who attended a Vancouver Island residential school in the 1940s, '50s and '60s.

The children at the Alberni Indian Residential School were cut off from their families and culture and disciplined by corporal punishment. Some students were repeatedly and brutally sexually assaulted, the court noted.

The B.C. Court of Appeal said the federal government maintained "detailed control" over the church-run schools, and it considered the employees to be "Crown employees."

The Supreme Court decision, written by Chief Justice Beverly McLachlin, said the "incontrovertible reality is that the church played a significant role in the running of the school. It did so for the government of Canada, but also for its own end of promoting Christian education to Aboriginal children."

However, the court rejected the federal government's argument that liability should be split equally between the government and the church.

Assembly of First Nations national chief Phil Fontaine welcomed yesterday's ruling.

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

Rev. James Scott, the United Church's general counsel officer for residential schools, said they are satisfied with yesterday's judgment. "The United Church has always accepted that it had responsibility," he said.

The decision restored the original division of fault as ordered by Justice David Brenner, in his 1998 trial ruling.

About 350 of the nearly 1,000 claims filed against the United Church by former residential school students have been resolved out of court, with the federal government usually paying out 70% of each financial settlement, said Rev. Scott. He said the church has paid out more than $5-million in compensation and legal expenses to date.

Mr. Fontaine told the Canadian Press that First Nations prefer negotiation to litigation in settling claims, "but it is increasingly clear that there is going to be resolution one way or another."

The Supreme Court also overturned the B.C. Appeal Court finding that charitable organizations may be exempt from any liability in these lawsuits. The court observed that "the government itself may be considered a non-profit institution," and should not escape liability.

Rev. Scott stressed that the United Church "was not asking for charitable immunity. This was a legal issue raised by the federal government."

Former Supreme Court Justice Frank Iacobucci was appointed in May as the government's chief negotiator to compensate more than 80,000 former students at all church-run residential schools.

Deputy Prime Minister Anne McLellan praised yesterday's ruling, saying it should be of assistance to Judge Iacobucci.