Residential Schools: The Legal Rights of Survivors of Abuse
The residential school system forcibly separated and alienated First Nations children from their families and communities. When generations of aboriginal children returned from residential schools, they brought back with them the trauma and shame from the devastating experiences they suffered. Psychological and emotional abuse was continuous. Physical and sexual abuse was also widespread.
The legacy of residential schools includes: loss of self-esteem and identity; loss of language and culture; damage to parenting skills; difficulty in communicating and articulating feelings; alcohol, drug and gambling addictions; family violence; impaired earning capacity; anger and shame.
Today, thousands of survivors are trying to heal from the residential school experience. This healing journey is a very challenging and personal process.
To address the effect that the residential school system still has on aboriginal communities, survivors and their families participate in various healing programs. Activities such as healing circles, counselling and art therapy can help residential school survivors rebuild their personal, family and community life.
In addition, survivors can choose to pursue litigation to obtain monetary compensation through the Courts from the Government of Canada and the Churches.
The Litigation Path
One means by which victims of physical and sexual abuse may obtain redress is through the Courts. Residential schools survivors have successfully sued Canada and the Churches for abuse they suffered while attending residential school.
Each case is different. Individual survivors should, at their earliest opportunity, talk to a lawyer who practices in this area to determine their legal rights and options. The following comments provide some general information on the state of the law as of early 2004.
Financial compensation:
If the Court finds the defendants (Canada, the Church and/or the perpetrator of abuse) liable, it will award damages – financial compensation – to the plaintiff, the survivor, for the harm caused. Damages are meant to restore to the plaintiff the position he/she would have been in had the assaults not been committed. The past cannot be undone and Courts are left with the difficult task of measuring "pain and suffering". Regrettably, for many aboriginal people, their "original position" can be different from that of other Canadians due to First Nations' historical socio-economic disadvantage. As a result, the Canadian legal system has at times undervalued claims of abuse made by aboriginal people.
Recent Court decisions:
The British Columbia Court of Appeal has recently rendered its decision in three residential school cases: E.B., Blackwater and Aleck.
In E.B., the plaintiff brought an action against the Oblates of Mary Immaculate for the sexual abuse he suffered at the Christie Residential School between 1957 and 1962. The trial judge found the Oblates vicariously liable for the wrongful acts of the employee of the school. Vicarious liability flows from the fact that the abuser was employed by the Oblates.
The British Columbia Court of Appeal set aside the trial judge's decision. The Court held that for the Oblates to be vicariously liable for the employee's actions, there had to be a sufficient connection between the duties of the employee and the wrongful conduct. The perpetrator of sexual abuse in this case was a baker and was not assigned any supervisory or child care obligations. His duties did not require him to have any contact with the students. The Court of Appeal concluded that this was not a sufficient connection between his duties and the sexual abuse. The Court concluded that the Oblates were not vicariously liable. The Court of Appeal did, however, send the issue of whether the Oblates were liable in negligence back to trail.
The E.B. case has been appealled to the Supreme Court of Canada.
In a second residential school case, Blackwater, the British Columbia Supreme Court found Canada and the United Church liable for the sexual abuse suffered by various survivors of the Port Alberni Residential School during the 1930's through the 1960's. Liability for the horrific sexual crimes perpetrated by the dormitory supervisor was apportioned 75 per cent against Canada and 25 per cent against the Church. The trial judge awarded damages ranging from $15,000 to $145,000. The Church and Canada appealed the trial judge's decision.
The British Columbia Court of Appeal found in Blackwater that Canada was indeed liable because it had always maintained that the school employees were employees of the Crown. On the other hand, the Court found that the Church was not vicariously liable because it was a non-profit charitable organization. Canada was, therefore, found to be 100 per cent liable for damages caused by the sexual assaults. Finally, the Court of Appeal increased the compensation awarded to some of the plaintiffs because the trial judge had not adequately recognized the aggravating factors: the abuser's position as a member of the school staff, the plaintiffs' young ages at the time, and the nature of the wrongful conduct.
Finally, in Aleck, four former students of St. George's Residential School brought an action against Canada and the Anglican Church for the sexual assaults committed by a dormitory supervisor in the 1960s and 1970s. At the British Columbia Supreme Court, the plaintiffs were successful in obtaining judgment for damages ranging between $130,000 and $150,000 for the psychological harm they suffered. The Court did not, however, award damages for income loss.
Canada appealed the awards arguing that the trial judge had failed to take into account circumstances and events in the lives of the plaintiffs, other than the sexual assaults in the school, that could have contributed to their psychological trauma. On that issue, the British Columbia Court of Appeal allowed Canada's appeal and found that the trial judge had not considered whether those factors could have potentially contributed to the plaintiffs' loss. The question of the appropriate level of damages was sent back to the trial judge for reconsideration.
The plaintiffs cross-appealed the judge's refusal to award any compensation for income loss. The Court of Appeal allowed the cross-appeal. It held that the trial judge should have considered the evidence that the plaintiffs had suffered income loss as a result of the psychological injuries caused by the sexual assaults. Then, the judge should have compared the plaintiffs' present earning capacities with what their original earning capacities would have been absent the sexual assaults. That matter was sent back to the trial judge as well.
Intergenerational impact of residential school:
The legacy left by the residential school system continues to affect aboriginal communities. Family and community members are negatively affected by the survivors' experience at residential school. The Courts have not yet resolved whether the litigation option is open to family members of residential school survivors.
On March 27, 2003 the Ontario Court of Appeal handed down the Bonaparte decision (also known as the Lafrance decision). In that case, the children of deceased individuals who had attended residential school brought an action against Canada and the Catholic Church for breach of fiduciary duty based on the loss of their culture and language. The plaintiffs in the action had not attended residential school themselves and were born after their parents had left the residential school system. The Court allowed the claim of the children of residential school survivors to proceed to trial. The issue of intergenerational impact, therefore, remains to be resolved by the Courts.
Alternative Dispute Resolution
In December 2002, the federal government announced that an alternative process to litigation would be available in the fall of 2003 to residential school survivors. The Alternative Dispute Resolution (ADR) process resolves claims outside the courtroom. The government promises that it will address claims in a "more efficient, safe and sensitive manner" than the Courts. The claims will be managed through an application process, following a hearing before an independent adjudicator.
The ADR process is intended to be faster, more private, less adversarial and less stressful than litigation. Some elements of the program seem, however, problematic.
First, the model is based on a points system. Thus the abuse is "measured" in points and compensation offered accordingly. The Minister responsible for Indian Residential Schools Resolution Canada has stated that the ADR process would "generate the same level of compensation on validated claims that any full court proceeding would have produced". However, the "points" system put into place limits on the amount of monetary compensation awarded, while a judge in Court has greater latitude.
Further, the government will offer only 70 per cent of the compensation figure arrived at. Only claimants who attended Presbyterian, Anglican and Ontario Spanish residential schools will be eligible to receive the whole compensation package agreed upon due to agreements reached between the government and those religious denominations. Further, all residential school survivors who suffered abuse after April 1, 1969 will also receive the full amount of compensation awarded regardless of what school they attended.
Canada does not have any agreements in place with the United or Catholic Church. Claimants who attended schools run by those churches will, therefore, only receive the full amount of compensation awarded if those church organizations agree to contribute their 30 percent.
A fair award of damages would focus not merely on the nature and number of assaults, but rather on how the assaults affected the particular residential school survivor.
An approach based on a chart or checklist of misconduct is arbitrary (because it ignores the impact of the assaults upon the victim). It does not generate the "same level of compensation" that Court proceedings would produce (as the Minister promised) because it excludes an entire head of damages—compensation for lost income and impaired earning capacity. While the claimants are awarded extra "points" for their resulting loss of opportunity (such as diminished work capacity), the compensation offered grossly undervalues the damages that a judge would award after carefully considering a claimant's individual history.
Finally, several residential school survivors may choose to participate in this ADR process as a group. While a group will have more room to negotiate how the process is carried out, a one-size-fits-all process may fail to address the individuality of each survivor's experiences.
Residential school survivors seeking monetary compensation must choose between the ADR process and litigation. They should ensure they select the mechanism that better suits their needs.
These are very personal issues for survivors and each individual must decide what he/she wishes to do. We also encourage all survivors to seek counselling. You may wish to contact the Indian Residential School Survivors Society at 1-800-721-0066.