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Not liable, but still responsible

By David Wilson

United Church officials admit they were caught off-guard by the December appeals court ruling in British Columbia that placed liability for sexual and physical assaults at the Alberni Indian Residential School entirely on the shoulders of the federal government. They cautioned, however, that it was not the end of the United Church's residential school legacy. Rather, it was a waypoint on a long journey.

But a significant one, nevertheless. The church had asked the Court of Appeal for British Columbia to overturn a 1998 lower-court ruling that found the United Church, which ran the Vancouver Island school, and the federal government, which owned it, jointly liable for sexual assaults committed by a pedophile employed as a dormitory supervisor in the 1950s and '60s. That ruling, based on the judge's view that the church and government were partners in residential schools, opened a floodgate for thousands of other lawsuits from former students who allege they were abused in schools run by various denominations across the country.

The five-judge appeal court disagreed with the trial judge, concluding that the church was not in partnership with the government at Alberni but rather was its agent. The government employed the pedophile, the judges said, and therefore is 100-percent liable for his actions.

"I don't think it's what anybody expected the court would do," said Rev. James Scott, the United Church's officer for residential schools. But he added that there was little rejoicing in the church's senior echelons. For one thing, the federal government or the seven plaintiffs in the case could try to bring the matter before the Supreme Court of Canada; they have until the middle of next month to decide. For another, the ruling doesn't change the church's view, formalized in a document adopted by decision-makers late last year, that it is morally responsible for its part in the residential school system.

"[The] judgment should not be seen as a way for the United Church to avoid responsibility," Scott said in a statement, "but rather as an invitation to intensify our efforts to work towards healing and right relations with First Nations peoples and to live out our 1998 apology to residential schools survivors."

* * *

Twenty-seven survivors of abuse at the Alberni Indian Residential School sued the federal government and the United Church after ex-dormitory supervisor Arthur Henry Plint pleaded guilty to 36 counts of sexual assault and was sentenced to 11 years in prison in the mid-1990s (see related story on next page).

By the time a three-year-long trial ended in 2001, 20 plaintiffs had reached out-of-court settlements. After the first phase of the trial in 1998, the church, in a controversial move, decided to appeal the judge's finding of joint, vicarious (or indirect) liability . Later, the church, the government and the seven remaining plaintiffs appealed B.C. Supreme Court Justice Donald Brenner's final judgment that apportioned liability and set damages ranging from $12,000 to $190,000.

The Court of Appeal focused on two key issues in granting the church's appeal on joint liability. Writing for the panel, Justice William Esson said courts are increasingly reluctant to hold non-profit organizations such as churches liable if another larger and better-heeled party is involved on whom liability can be reasonably imposed. In this case, that party is the Government of Canada. The court also cited a 1966 Labour Relations Board case where Ottawa's own lawyers successfully argued that the employees at residential schools were employees of the federal government, insisting that the Minister of Indian Affairs "possesses the absolute legal authority to construct and operate these schools."

While it may have seemed at the time that the senior church officials who oversaw the operation of the Alberni Indian Residential School were acting for the church, the court found that for the most part they were "performing on behalf of Canada functions which were fundamentally those of Canada." And while the church had some freedom to provide religious instruction, the duties of the dormitory supervisor who committed the assaults were "not directed at providing `Christian education'," the court continued. "His position would have been essential to the operation of the residential school had there been no religious component." With Ottawa found fully liable, the appeal judges said the issue of apportionment that loomed heavily over the trial for many months was "essentially academic."

Elsewhere in the 60-page decision, the judges:

- rejected the plaintiffs' claim for damages relating to loss of culture and language. Those were not issues in the original cause of action, the judges said, and in any event they would not have stood up under B.C.'s 30-year statute of limitations;

- dismissed the government's appeal against the lower-court finding that it had breached its duties under law to the plaintiffs;

- dismissed an appeal raised by four of the plaintiffs on the grounds that they were unfairly limited in giving evidence;

- ordered a new trial for a female plaintiff whose allegations of sexual assault had been dismissed by the trial judge.

Church officials said it would take time to digest the particulars of the judgment and to assess how it will affect ongoing residential school issues. The United Church still faces more than 600 unresolved lawsuits in connection with the 13 residential schools and residences for Native children it ran for Ottawa. An appeal by the government to the Supreme Court could slow the progress of court cases and out-of-court negotiations. In its statement the church said it is "committed to ensuring that this decision not delay efforts to resolve residential school claims as quickly as possible."

The judgment could also affect the as-yet-uncertified $12-billion Baxter Class Action launched on behalf of all residential school survivors and their families (Church, December). The United Church is among three denominations named by Ottawa as third-party co-defendants. And the judgment will undoubtedly loom large in any future talks between the United Church and Ottawa aimed at resolving residential school lawsuits. The United Church, citing mainly theological and ethical concerns, has been reluctant to enter into the same kind of multi-million-dollar liability-cap deals the Anglican and Presbyterian churches have reached with Ottawa.

The Anglicans agreed to pay $25 million, and the Presbyterians $2.1 million, as their share of the liability for abuses that occurred at residential schools they ran.

The status of damages the United Church has already paid as well as the role the church would have in a possible Supreme Court challenge were also among the unknowns the church's residential school steering committee was wrestling with in the wake of the B.C. decision. One thing was clear, however: officials do not view a favourable legal decision as the beginning of the end of the United Church's residential school response. "The judgment, even if it stands up, is a judgment regarding legal liability," said Scott. "It is not a vindication of the church."

The church will continue to accept responsibility for the harm done by -- and in -- residential schools, he said. "We are on a healing journey. This is a denominationally defining moment.... It calls forth from us the need to think deeply about who we are, as Christians and Canadians, to live out the faith that drives us."

The best thing about the B.C. decision, he said, is that it might signal a shift away from the costly and time-consuming business of dealing with lawsuits toward "a bigger emphasis on healing and right relations."

Author's photo
David Wilson is the editor-publisher of The Observer.
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