The Lawyers Weekly
Vol. 22, No. 26
November 8, 2002

Calgary

The General Synod of the Anglican Church and two church dioceses are off the hook in a large number of Alberta residential school claims spanning 60 years, Alberta Queen's Bench Justice Terrence McMahon having found that liability should be limited to the church's Missionary Society, which actually ran the schools.

There are more than 4,000 claimants, in about 1,480 Indian Residential School actions in Alberta. More than 500 of those claimants relate to the seven Anglican Church schools and residences operated in Alberta and the Northwest Territories. The claims allege the plaintiffs suffered a variety of abuses while at one or more of the schools.

The Synod of the Diocese of Calgary, the Synod of the Diocese of Athabasca, and the General Synod of the Anglican Church of Canada sought summary judgment to have the claims against them dismissed.

They argued that they had no involvement with the schools that would ground any legal liability. In particular, they said the management, operation and control of the schools was the responsibility of the Missionary Society of the Anglican Church of Canada (the MSCC), a distinct corporate body. An organization with little money and few assets, it consists of all members of the Anglican Church of Canada and its work is governed and controlled by its board of management.

The MSCC took over responsibility for the schools in the Diocese of Calgary in1919 and for those in the Diocese of Athabasca in 1923. Its role ceased after March 31, 1969, when Canada took over operation of the schools. Thereafter, some church officials continued to have a limited involvement in the schools, particularly in the form of chaplain services.

Justice McMahon ruled that after the transfer to the MSCC, the dioceses "did not retain any direct role in the operation or management of the schools or the employees. ... They were the geographic locations for the schools, but nothing more."

The judge said the dioceses could not be directly liable for any harm done during this period, either in negligence or for breach of fiduciary duty, nor vicariously liable. "It was not and could not be argued that the Diocese was a guarantor of the good conduct of all Anglican clergy within its borders."

The government of Canada, main defendant in the actions, has claimed contribution and indemnity from the churches, arguing that the church should be treated as one corporate entity. Similarly, the plaintiffs argued that the "operation of the schools was a common or joint enterprise of the MSCC, the Dioceses and the General Synod" in furtherance of a national missionary policy.

As this work was national in scope, the plaintiffs argued that it came under the jurisdiction of the General Synod. They submitted that "although Anglican involvement in the residential schools may have been primarily carried out in a civil sense by the MSCC after 1919, the involvement of the MSCC was on behalf of the entire Church."

Justice McMahon rejected these arguments, stating that the Dioceses and the MSCC were "distinct bodies with different management, executives, objectives, authority and responsibility" and that they served different constituencies, "one local, one Canada wide."

He reasoned that it could not be said that one was "a mere agent or puppet of the other," nor that either was "a mere instrumentality of the other."

Although the MSCC was operated with funds donated by parishes and dioceses, Justice McMahon accepted the Church's argument that "charitable financial support does not lead to legal liability."

The judge also found the shared interest in the advancement of the Anglican faith was "an insufficient basis upon which to ignore the distinct corporate legal structures of these bodies."

He also held that the "consideration of a potentially unjust result (such as being left with a claim against a defendant with empty pockets)" was an "insufficient basis upon which to ignore otherwise legitimate corporate structures."

Granting summary judgment, he dismissed all claims in relation to the dioceses for the period when the MSCC was responsible for running the schools. All claims against the General Synod were dismissed.

Vaughn Marshall of Calgary's Docken & Company, who argued the case on behalf of the plaintiffs, said the national church "no longer faces the risk of bankruptcy. But in terms of the outcome for the plaintiffs, this won't make any difference," since the federal government remains the principal defendant with the deepest pockets.

Reasons in Re Indian Residential Schools, [2002] A.J. No. 1265, are available from FULL TEXT: 2226-031, 44 pp.