Residential schools agreement stands despite Ontario court's ruling (fwd)

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Residential schools agreement stands despite Ontario court's ruling
http://generalsynod.anglican.ca/stories/news.php?newsItem=2004-12-10_r.ans

Toronto, December 10, 2004 -- An Ontario Court of Appeal decision to
certify a class of plaintiffs in a lawsuit for abuse at a native
residential school "does not change or threaten in any way" the
agreement between the Anglican church and the federal government that
caps the church's liability at $25 million, says Archdeacon Jim Boyles,
General Secretary of the national church.

The decision by the Ontario Court of Appeal allowed lawsuits by former
students at the Mohawk School in Brantford, Ont., to proceed as a class
action. The former students are suing the Anglican diocese of Huron and
the federal government.

In a letter sent to all Anglican bishops earlier this week, Mr. Boyles
said that any future findings of liability against the church for the
sexual or physical abuse of students at the schools would be shared
between the church and the government under the terms of the 2003
agreement.

The agreement says that the church and government would share in the
payment of any awards on a 30/70 per cent basis.

It also requires the church to contribute $25 million over five years to
a Settlement Fund out of which the church's share of court-ordered
awards would be paid. Once the Settlement Fund is expended, the
government will pay all awards.

Mr. Boyles also said that issues of liability for the loss of language
and culture by residential schools students would be decided at a
future date.

The full text of the General Secretary's letter to Canadian bishops
follows:

You will have read in the media that the Ontario Court of Appeal ruled
last week on the Cloud case, which is an application for certification
as a class under class action legislation in Ontario. Cloud and others
attended the Mohawk School in Brantford, Ontario, in the Diocese of
Huron. The court overruled the lower courts and certified the class,
which, subject to further appeals, allows the case to proceed as a
class action. In allowing the appeal the court redefined the common
issues, with the result that the class action is now focused primarily
on issues of physical and mental harm, with issues of loss of language
and culture claims being much less significant.

The government may decide to seek leave to appeal this decision to the
Supreme Court of Canada, which would delay the action for a further
period.

Questions have been raised about the possible impact of this decision on
the Settlement Agreement between the Federal Government and ourselves. I
have consulted with our legal counsel for the General Synod and the
Diocese of Huron. This court decision does not change or threaten in
any way the March 2003 Settlement Agreement. Since the focus has
shifted to claims of physical and sexual abuse, any court awards would
be shared on a 70/30 basis between the government and the church, with
the church portion being paid from the Settlement Fund. The maximum
amount of payment remains at $25M. Once that amount has been paid out,
the government is responsible for 100% of all payments for physical and
sexual abuse claims.

The issue of liability for loss of language and culture will be decided
at a future date. Although some resolution of these claims may occur in
the Cloud case, the issue exists in many other cases too. For example,
it is an issue in another class proceeding filed in Ontario, called the
Baxter case, where it is sought to certify a national class action on
behalf of all students who attended all residential schools throughout
Canada, and it is an issue in the test cases which are proceeding
though the process established in Alberta. The Settlement Fund does not
cover such claims if liability is found. There are however, provisions
in Section 6 of the Agreement that provide some protection for the
church if liability for language and culture claims is imposed against
the church. We continue to believe that such claims are not
compensible, and that if they are found to be so, the government bears
full responsibility.

We continue to believe that the ADR process as established by the
government is an effective way to resolve claims. There are aspects of
the process that could be improved, and we have joined with others in
pointing these out to the government and in seeking changes.

Through these evolving legal developments we continue to hold high our
primary goal as a church, to seek healing for those who have been
harmed by their experience in the residential schools. Church
representatives have attended a few ADR hearings, as requested by the
claimants, not to defend, but to offer support and express the church's
profound regret that the residential schools system in which it was
involved has caused so much damage in the aboriginal communities in
Canada.

Archdeacon Jim Boyles
General Secretary