Ottawa fights church's win in abuse case

Native residential schools: Government appeals Alberta ruling

Richard Foot

National Post

Friday, January 10, 2003

Less than two months after it announced an historic deal with the Anglican Church of Canada -- pledging co-operation in resolving Indian residential school claims -- the federal government has launched legal action to overturn the Church's most important residential school court victory to date.

The government and lawyers for former students of native schools have filed notices to appeal a sweeping ruling, made in October by Justice T.F. McMahon of the Alberta Court of Queen's Bench.

The judge dismissed almost all abuse claims against the Anglican Church by former students of residential schools in Alberta. He said because the schools were operated or supervised by the Missionary Society of the Anglican Church -- and not by the Church itself -- then only the society, a separate corporation without significant assets, could be held liable.

Although the claimants are still free to sue the government, which owned the schools, the judgment prevents hundreds from also seeking compensation from the General Synod of the Anglican Church, the national Anglican body, or two Alberta dioceses.

The ruling was hailed as a victory for the Church, which has spent millions of dollars in recent years defending itself against residential school claims across Canada.

Archdeacon Barry Foster, executive officer of the Diocese of Calgary, said a different decision from the court "would have meant three, four or five more years of litigation. Going to trial is expensive and we would have been looking at an increasing amount of our operating budget going to litigation costs."

The Alberta decision may have also strengthened the Church's position in its long negotiations with the federal government, in which both parties were searching for ways to share the burden of residential school claims. In mid-November the two groups finally agreed to co-operate on the issue.

Leaders for the Anglican Church agreed to pay 30% of all compensation awarded in validated claims against the government and the Church. In return, Ottawa would cap the Church's liabilities at $25-million and halt the practice of dragging the Church into any lawsuits in which it was not already named.

Archdeacon Jim Boyles of the Anglican General Synod said the deal allows the Church to "generally leave behind its entanglement in litigation."

Weeks later, however, the government filed papers with the Alberta Court of Appeal seeking to re-entangle the Anglican Church in hundreds of lawsuits in that province.

This week, lawyers for native plaintiffs did the same thing. Vaughn Marshall, a Calgary lawyer who represents former students, says the Anglican Church is trying to hide behind corporate veils, in the same manner as the Vatican did "over the affairs of the [scandal-plagued] Roman Catholic diocese in Boston."

Although many Anglicans expected the Alberta ruling would be appealed, an atmosphere of goodwill had developed following the November deal with Ottawa.

Mr. Boyles said yesterday that agreement is designed "to end Church and government fighting in the courts, thereby enabling claims to be processed more quickly."

The agreement, however, has not yet been ratified by the Church's dioceses, which are being asked to contribute millions of dollars toward the deal.

"The government filed the Alberta appeal because it had to protect its interests in case the [November] agreement is not ratified," Mr. Boyles said, adding he expects Ottawa to withdraw its appeal once the deal is ratified.

Tony Merchant, a Regina lawyer whose firm represents thousands of residential school claimants, has maintained the government's soft public words on residential school issues do not match its increasingly hard-nosed tactics in court.

In Saskatchewan, he says, federal lawyers recently started asking judges to strike down abuse claims on the technical basis that they are barred by statutes of limitations -- a strategy Ottawa had formerly disavowed. "There is something seriously reprehensible about government lawyers applying to strike down claims on technicalities ... while Cabinet ministers say they are going to pay these kinds of claims and deal fairly with First Nations people."

Federal residential school officials could not be reached for comment yesterday.

Copyright 2003 National Post

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