Residential school suit can proceed as a group

December 4, 2004

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 Raikes , the 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.

Raikes ' 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 Goudge , 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 fourteen hundred."

Calgary lawyer Vaughn Marshall, who represents 600 residential school survivors from the Blood and Peigan reserves in southern Alberta, welcomed the decision.

"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 unfair."

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 Anne McLellan , the minister in charge of Ottawa's residential schools strategy, declined to comment on Friday's court decision.