An Ontario Court of Appeal decision to certify a class of plaintiffs in a lawsuit for abuse at a native residential school “does not change or threaten in any way” the agreement between the Anglican church and the federal government that caps the church’s liability at $25 million, says Archdeacon Jim Boyles, General Secretary of the national church.
The decision by the Ontario Court of Appeal allowed lawsuits by former students at the Mohawk School in Brantford, Ont., to proceed as a class action. The former students are suing the Anglican diocese of Huron and the federal government.
In a letter sent to all Anglican bishops earlier this week, Mr. Boyles said that any future findings of liability against the church for the sexual or physical abuse of students at the schools would be shared between the church and the government under the terms of the 2003 agreement.
The agreement says that the church and government would share in the payment of any awards on a 30/70 per cent basis.
It also requires the church to contribute $25 million over five years to a Settlement Fund out of which the church’s share of court-ordered awards would be paid. Once the Settlement Fund is expended, the government will pay all awards.
Mr. Boyles also said that issues of liability for the loss of language and culture by residential schools students would be decided at a future date.
The full text of the General Secretary’s letter to Canadian bishops follows:
You will have read in the media that the Ontario Court of Appeal ruled last week on the Cloud case, which is an application for certification as a class under class action legislation in Ontario. Cloud and others attended the Mohawk School in Brantford, Ontario, in the Diocese of Huron. The court overruled the lower courts and certified the class, which, subject to further appeals, allows the case to proceed as a class action. In allowing the appeal the court redefined the common issues, with the result that the class action is now focused primarily on issues of physical and mental harm, with issues of loss of language and culture claims being much less significant.The government may decide to seek leave to appeal this decision to the Supreme Court of Canada, which would delay the action for a further period.
Questions have been raised about the possible impact of this decision on the Settlement Agreement between the Federal Government and ourselves. I have consulted with our legal counsel for the General Synod and the Diocese of Huron. This court decision does not change or threaten in any way the March 2003 Settlement Agreement. Since the focus has shifted to claims of physical and sexual abuse, any court awards would be shared on a 70/30 basis between the government and the church, with the church portion being paid from the Settlement Fund. The maximum amount of payment remains at $25M. Once that amount has been paid out, the government is responsible for 100% of all payments for physical and sexual abuse claims.
The issue of liability for loss of language and culture will be decided at a future date. Although some resolution of these claims may occur in the Cloud case, the issue exists in many other cases too. For example, it is an issue in another class proceeding filed in Ontario, called the Baxter case, where it is sought to certify a national class action on behalf of all students who attended all residential schools throughout Canada, and it is an issue in the test cases which are proceeding though the process established in Alberta. The Settlement Fund does not cover such claims if liability is found. There are however, provisions in Section 6 of the Agreement that provide some protection for the church if liability for language and culture claims is imposed against the church. We continue to believe that such claims are not compensible, and that if they are found to be so, the government bears full responsibility.
We continue to believe that the ADR process as established by the government is an effective way to resolve claims. There are aspects of the process that could be improved, and we have joined with others in pointing these out to the government and in seeking changes.
Through these evolving legal developments we continue to hold high our primary goal as a church, to seek healing for those who have been harmed by their experience in the residential schools. Church representatives have attended a few ADR hearings, as requested by the claimants, not to defend, but to offer support and express the church’s profound regret that the residential schools system in which it was involved has caused so much damage in the aboriginal communities in Canada.
Archdeacon Jim Boyles
General Secretary
For more information please contact VIANNEY (SAM) CARRIERE, Director of Communications, 416 924 9199 EXT. 306;[email protected] or Archdeacon Jim Boyles, General Secretary of General Synod, 416 924 9199 ext. 280,[email protected]
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