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From CBC News - Last Updated Fri, 21 Oct 2005

Ottawa not fully liable for residential school claims: Supreme Court

The Supreme Court of Canada ruled Friday that Ottawa should not be held fully liable for damages suffered by students abused at a church-run school on Vancouver Island.

INDEPTH: Residential Schools Timeline

The court also said charities such as the United Church of Canada cannot claim immunity from damage claims because they try to do good work.

"Parties may be more or less vicariously liable for a wrong depending on their level of supervision and direct contact," said the unanimous ruling in the case known as Blackwater v. Plint.

RELATED: A Lost Heritage: Canada's Residential Schools

The United Church carried out most of the day-to-day operations at Port Alberni Indian Residential School, where six aboriginal students claimed they were abused by a dormitory supervisor from the 1940s to the 1960s. The federal government appointed the school's principal and owned the land on which the building was located.

Originally, a British Columbia judge said vicarious responsibility for the students' physical, sexual and mental abuse should be split 75-25 between the federal government and the church. The provincial Court of Appeal then ruled that Ottawa held 100 per cent vicarious liability for damage claims by the former students.

Friday's ruling restored that portion of responsibility to 75 per cent, assigning 25 per cent of the liability to the United Church of Canada.

As employer, church had no immunity

The Supreme Court said people who worked at the school were employed by the United Church of Canada, so the church must accept some responsibility for their actions.

The justices rejected the B.C. Court of Appeal finding that the United Church held charitable immunity from vicarious responsibility in the case.

"Exempting non-profit organizations when government is present would not motivate such organizations to take precautions to screen their employees and protect children from sexual abuse," the ruling said. "The presence of the government does not guarantee the safety of children, particularly where, as in this case, the non-profit organization has day-to-day management of the institution."

Lead claimant to get $200,000

As a result of the decision, the United Church will have to pay one quarter of roughly $200,000 in damages awarded to the lead claimant in the case, Frederick Leroy Barney.

The ruling has implications for other Canadian churches that ran residential schools for native students throughout the 20th century, including the Roman Catholic, Anglican and Presbyterian churches.

Many religious organizations have warned that having to pay damages in abuse cases will leave them severely short of funds, meaning they may have to sell off church buildings and restrict operations.

AFN Press Release on this ruling - OTTAWA, Oct. 21, 2005

Supreme Court Blackwater v. Plint Decision Re-Affirms Federal Government's Liability in Residential Schools Cases

The National Chief of the Assembly of First Nations acknowledged the Supreme Court of Canada' decision today in Blackwater v. Plint, commonly known as the Barney case.

The decision, written by Chief Justice Beverley McLachlin, reaffirmed that the federal government and the church are both individually and jointly liable for damages in residential schools cases. A plaintiff in the Barney case can recover 100% of his losses against either the federal government or the church. If the federal government compensates a plaintiff in full, it can, if it wishes, recover 25% of its payment from the church.

"Today's decision confirms our belief that the federal government must now accept 100% liability for the tragic circumstances of the residential schools," stated National Chief Phil Fontaine. "While churches may have run many of the schools, they did so at the behest of and with the approval of the Crown. Ultimately, the federal government established the residential schools, was in a supervisory position for the schools, and is responsible for what happened at the schools. The Supreme Court affirmed the trial judge's finding in Barney that the federal government was actually in a better position that the church to supervise the situation and prevent the loss. This Supreme Court's decision makes it clear that the government has no excuse for not paying damages in legal actions on residential schools."

The National Chief also reiterated his call for the Government of Canada to move swiftly to settle residential schools claims in a fair, just and expedient manner.

"We prefer negotiation over litigation when it comes to resolving this tragic legacy of the residential schools, but it is increasingly clear that there is going to be resolution one way or another," stated the National Chief. "The abuses many of us faced, as well as the loss of our languages, cultures and sense of community, affect us not only as individuals but as First Nations as a whole. There is a clear need for compensation, reconciliation and truth-sharing, but it must be done soon, because the average age of survivors is nearing 60 and the effects on our lives and communities continue to this day. There will be a First Ministers Meeting on Aboriginal Issues at the end of November. We want to talk about the future, and this compels us to resolve this outstanding legacy of the past so we can move forward together. The time to debate is over. We need resolution now."

The Assembly of First Nations is the national organization representing First Nations citizens in Canada.

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For further information: Don Kelly, AFN Communications Director, (613) 241-6789 ext. 320, cell.: (613) 292-2787; Ian McLeod, AFN Bilingual Communications Officer, (613) 241-6789 ext. 336, cell.: (613) 859-4335; Nancy Pine, Communications Advisor, Office of the National Chief, (613) 241-6789 ext. 243, cell.: (613) 298-6382