Supreme Court of Canada –  3 S.C.R. 3
The Court recognizes the potential responsibility of religious organizations for offenses committed in residential schools. It also recognizes that the federal government is responsible for these crimes.
Can the government of Canada and the United Church of Canada be liable to former residential school students? If so, on what legal basis, and what damages can be awarded?
Canada and the United Church are jointly responsible for the actions of the teacher Plint in a proportion of 75/25%, and are required to pay damages (unanimous decision).
Between: Frederick Leroy Barney et al.
And: the Crown of Canada (Aboriginal Affairs Canada)
And: United Church of Canada
Interveners: Assembly of First Nations, Women’s Legal Education and Action Fund, Native Women’s Association of Canada and Disabled Women’s Network of Canada
From the late 1800s to the 1970s, Aboriginal children were educated in residential schools as per the Indian Act and the Indian Residential School Regulations: they were taken away from their families and their communities for months at a time in order to be assimilated into Canadian society.
These schools were mostly operated by religious congregations (Roman Catholic, Presbyterian, Methodist, Anglican, United Church). In the great majority of cases, children were forbidden to speak their Native language or to express their culture. Many of these children were abused physically, mentally or sexually. Around 130 residential schools existed on Canadian territory and about 150,000 children were educated in that system. The effects of the residential school system are still being felt by today’s generations (Olthuis, Kleer and Townshend, 2008: 356).
The Port Alberni Case
In 1891, the Presbyterian Church of Canada (predecessor to the United Church of Canada) established the Alberni Indian Residential School in Port Alberni, British Columbia, to educate Vancouver Island’s Aboriginal children at the elementary and high school levels. They were strictly disciplined with corporal punishment, and some were sexually abused. The Church received some financial aid from the federal government to operate the school.
In 1925, Canadian Methodists, Congregationalists and part of the Presbyterian Church merged to form the United Church of Canada. From that moment onward, this congregation operated the Alberni Indian Residential School. In 1969, the federal government took over the operations of the Alberni Indian Residential School. In 1973, the Alberni Indian Residential School closed.
In 1996, 27 former students took action against the United Church in four different cases, seeking damages for torts committed during the 1940s, 1950s and 1960s. All of the plaintiffs, including Barney, claimed to have been sexually assaulted by Plint, one of the school’s dormitory supervisors.
Barney: The Government of Canada did breach its fiduciary duty. It has proven to be negligent in its administration of the residential school system since it did not take the necessary measures to prevent abuse of the school’s Aboriginal pupils, it failed to investigate the students’ claims and it did not reasonably supervise the school’s employees, hence creating an environment where the children were more vulnerable to abuse.
Canada: The fault assessment be apportioned equally between the Government of Canada and the United Church.
Supreme Court of British Columbia (1998): Plint is liable to six of the plaintiffs (Barney being one of them) for sexual assault. The other claims of physical and psychological abuse are statute-barred, meaning that too much time had elapsed between the tortious acts and the introduction of an action in court. The Government of Canada is held liable in regard to its breach of the Indian Act by delegating Aboriginal children’s education and care to a religious organization. As for the damages, the Government of Canada and the United Church were held jointly and vicariously liable in a 75-25 proportion.
Court of Appeal of British Columbia (2003): The United Church is exempted from liability according to the doctrine of charitable immunity. Only the federal government is liable.
McLachlin, Major, Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron
The federal government and the United Church did not know of the risk of sexual abuse towards Aboriginal children placed in their care at the time the tortious acts were committed. By examining the facts in a contemporary light, the measures in place at the Alberni Indian Residential School were clearly insufficient in providing a safe environment for the students, free of the risk of sexual abuse by adult employees in a position of authority. But if the Court were to evaluate the extent of the federal government’s and the United Church’s duty according to the standards of the 1940s to the 1960s, the claims of negligence against those two defendants would have to be dismissed.
As for the evaluation of the Government of Canada’s and the United Church’s vicarious liability for the tortious acts committed by Plint, both parties are jointly liable for the sexual assault of the children: while managing a federal program, the United Church had hired Plint with the Government of Canada’s consent; both parties had sufficient control over him. The fault assessment and the damages for the Government of Canada and the United Church is established in a 75-25 proportion.
The defence of the United Church based on the doctrine of charitable immunity is rejected. The principle underlying this doctrine is that a non-profit organization cannot be at fault, and therefore be liable in a court of law if the risk introduced to the victims by the government is greater than the risk introduced by the organization itself since the government is in a better position to bear the loss.
In reality, the presence of the governmental entity does not safeguard children from sexual abuse in cases where an institution is managed by a non-profit organization. Even though the United Church’s motives were charitable at the time, they do not exempt it from correctly supervising its employee.
Sections 113 and 114 of the Indian Act provided at the time that the Governor in Council could authorize the Minister of Indian Affairs to establish, operate and maintain residential schools and could enter into an agreement with religious organizations for their management. When constructing these provisions, the use of “may” instead of “shall” showed that there was no broad statutory duty of care required of the federal government to protect Indian children’s safety and welfare. And by stating that it could enter into an agreement with a religious organization, the text suggested that the management of such a system could be delegated to one of those entities.
As for Barney’s argument concerning the federal government’s breach of its individual fiduciary duty towards him, it cannot succeed since the argument was only raised before the Supreme Court; and it would be unjust and unfair to the other parties, who did not have an opportunity to challenge the pretentions in lower courts.
In the trial court’s evaluation of the damages, it made no error in law when it did not consider traumas other than the sexual abuse since they did not arise from the tortious act, Plint’s sexual abuse of Barney, and they are subject to a statutory limitation period. Concluding otherwise would go against legislative intent and hold liability without any legal evidence.
See E.B. v. Order of the Oblates of Mary Immaculate in the Province of British Columbia,  3 S.C.R. 45 for more details.
E.B. v. Order of the Oblates of Mary Immaculate in the Province of British Columbia,  3 S.C.R. 45
Olthuis John, Kleer Nancy and Peter Townshend. 2008. Aboriginal Law Handbook, 3rd ed. Carswell.