Supreme Court rules on residential schools (fwd)

[phil cash cash]

Supreme Court rules on residential schools

 By DEBORAH GYAPONG
 http://bcc.rcav.org/05-10-31/index2.htm

 OTTAWA (CCN)  The Supreme Court of Canada (SCOC) has ruled that the
United Church of Canada is 25 per cent liable and the government of
Canada is 75 per cent liable for general damages in a B.C. residential
school case involving sexual abuse.

 The Oct. 21 SCOC decision dealt only with sexual abuse by a dormitory
supervisor, not physical abuse or cultural deprivation.

 In a unanimous decision, the SCOC overturned a B.C. Court of Appeal
decision that held the government 100 per cent liable, and upheld the
original 1998 trial ruling in the case involving the Alberni Indian
Residential School.

 Under vicarious liability, an employer can be found liable for damages
even if not guilty of any misconduct, on the basis of having hired an
employee who, in the course of his job, harmed someone.

 One may sympathize with the situation of the Church, which generally
acts with laudable motives and now finds itself facing large claims for
wrongs committed in its institutions many years ago, wrote Chief Justice
Beverly McLachlin for the court. However sympathy does not permit courts
to grant exemptions from liability imposed by settled legal principle.

 United Church representative Rev. James Scott told the news media he
welcomed the court decision.

 The United Church has always accepted that it had responsibility, he
said, according to the Oct. 22 Ottawa Citizen.

 What is does is it clarifies for everyone, the government, the
plaintiffs, and the church the question of vicarious liability, in
other words, what percentage of responsibility should be allotted to
the government and the churches.

 The ruling is expected to have ramifications for other residential
school lawsuits, as well as the work of retired SCOC Justice Frank
Iacobucci, who was appointed by the federal government last May to help
develop a comprehensive settlement for abuse victims.

 He [Justice Iacobucci] has an enormous task, said Rod Donlevy, who
represents 41 Catholic entities involved in residential schools
litigation. Hes fair-minded, hes diligent, hes bright. This thing just
is mammoth.

 Im sure as a former Supreme Court justice hes going to look at that
decision, he said in a telephone interview from Saskatoon. Where it
factors in to what hes doing will have to be something hell have to
determine.

 In other words, Donlevy says the implications for other decisions,
especially the looming Baxter class action suit, remains murky.

 The Baxter lawsuit seeks compensation for every residential school
student across Canada, covering a period of 50 years, as well as their
parents and their children. It involves the controversial subjects of
cultural deprivation and loss of language.

 Though the plaintiffs claim there was cultural deprivation, that claim
has never been recognized anywhere in the world by a court, Donlevy
said, so what they are asking the courts to do is create law or to
recognize this as a cause of action.

 Canada also says loss of culture and loss of language, if proven, are
not compensable, he said.

 Donlevy said Catholic entities have settled or tried to settle in
proven cases of sexual abuse.

 None of the entities has anything to be ashamed of, he said, referring
to the transparent way in which they have handled the cases. They have
worked as diligently and openly as they possibly can.

 The SCOC decision did not deal with physical abuse, only sexual abuse.

 If Im complaining because I got slapped in Grade Two  Im not saying
thats right, but those were the standards of the day  should that be
actionable? I dont think so, Donlevy said.

 The standards of the day were corporal punishment. Before we had Dr.
Spock and Sesame Street had anyone heard about time-outs? Weve become a
much more knowledgeable society, but until the 1980s every school was
still issued a strap.

 National Chief Phil Fontaine of The Assembly of First Nations (AFN)
told CBC Radio Oct. 21 he held the government solely responsible.

 Were going after the government. We hold the government 100 per cent
liable, and this is our position, he said.

 Donlevy points out that when residential school victims launched the
Baxter class action suit in 2002, they filed their complaint against
the government and none of the religious organizations, but the
government named the religious entities as third parties in the action.

 Donlevy is concerned that only one side is coming out.

 I find that sisters who have testified give the other side of the story
on residential schools: the commitment and care they gave to the
students, he said. That kind of gets lost in the wash.

 The AFN speaks of formers students and how theyre dying, he said. Our
sisters and religious men are at least 20 years older and there are
very little additions to the congregations in terms of vocations not
being sought.

 Recently, the 41 Catholic entities complained to Deputy Prime Minister
Anne McLellan, who is responsible for the residential school file, that
her office had ignored a proposal they had put together at the request
of her deputy minister.

 The groups had set aside $54 million to back their proposal, $29
million in cash and assets and $25 million in in-kind contributions, to
back their proposal.

 Sister Gloria Keylor, the spokeswoman for the 41 entities, told the
Western Catholic Reporter Oct. 24 that the proposal did not include
compensation for damages and she explained why.

 We worked in the residential schools but we did not run them, we did
not operate them; that was the federal governments responsibility, she
said.

 She expressed their frustration and disappointment at having worked for
two years with McLellans deputy minister and reached what they thought
was a resolution, only to find they are being forced into another round
of talks.

 The group said it had made continued requests to meet with McLellan to
discuss the proposal, which was submitted in March, but to no avail. A
letter asking her to respond by Oct. 7 was not answered. Justice
Iacobuccis report is due by the end of March.