Residential school suit can
proceed as a group
The Ontario Court of
Appeal has certified Canada's first residential schools class-action lawsuit,
a decision that multiplies the federal government's potential abuse
liabilities and paves the way for a second, larger class action on behalf of
all 90,000 surviving former students across Canada.
In a unanimous decision
Friday, the court also criticized Ottawa's controversial alternative dispute
resolution program for former students, calling it "deficient" and
skewed against aboriginal plaintiffs.
"This is a huge
step forward for us," says Russell
lawyer seeking over $1 billion in damages for thousands of people with links
to the now-defunct Mohawk Institute Residential School near Brantford, Ont.
The lawsuit names the
federal government, the Anglican general synod, the incorporated diocese of
Huron and an English charity called the New England Company as defendants.
' Ontario class action aims to
compensate about 1,400 native people who attended the school between 1953 and
1969. It seeks damages for a range of alleged harms from physical and sexual
abuse to forcible confinement and loss of language.
The lawsuit also seeks
compensation for thousands of relatives of former students, for the
"care, guidance and companionship" that many students failed to
provide their families as a result of their alleged suffering in the school.
Three years ago, a lower
Ontario court refused to certify the case, arguing the varied experiences of
the students weren't common enough to constitute a single legal action.
Ontario's highest court
has disagreed, saying there's enough evidence of alleged common suffering to
allow the case to proceed. It also said residential school claims can be
better resolved in a class proceeding than through thousands of individual cases.
"Access to justice
would be greatly enhanced by a single trial of the common issues,"
writes Justice Stephen
, adding that many
former students are "aging, very poor, and in some cases still very
emotionally troubled by their experiences at the school . . . (the claims)
can probably be dealt with even more efficiently in one trial than in
Calgary lawyer Vaughn
Marshall, who represents 600 residential school survivors from the Blood and
reserves in southern Alberta, welcomed the
"It has significant
application throughout Canada, especially Alberta, which has the largest
number of residential school lawsuits of any province," said Marshall.
"The Ontario Court
of Appeal essentially confirms in its ruling that the federally-run
Alternative Dispute Resolution Program is inadequate and unfair, which two
weeks ago the Assembly of First Nations had also pronounced as inadequate and
Marshall said the
decision has momentous implications for another large class action which has
yet to be certified. The Baxter class action, a national class action filed
in Ontario which includes claims for improper confinement, language and
cultural destruction, and damaging psychological and emotional battery, is
almost certain to be approved by the court, he added.
"I think the
Ontario court's approval of the Baxter class action will sound the death
knell for the federal government's ADR program which, in my view, is intentionally
and shamelessly unfair," said Marshall.
Deputy Prime Minister
, the minister in charge of Ottawa's
residential schools strategy, declined to comment on Friday's court decision.
Calgary Herald 2004
Copyright (c) 2004
Interactive, a division of
. All rights reserved.