Supreme Court of Canada –  3 S.C.R. 45
A victim of Indian residential schools tries to have the responsible order recognized responsible for the actions of its religious congregation for the actions of one of its employees that was not an educator. Although such a claim was successful in Blackwater, it was not in this case.
Can the Catholic Order operating a residential school be liable for sexual assault committed on site by one of its employee?
In this case, the Oblates were not responsible for the aggressions since the aggressor had no educational charge, and the Order took precautions (8 against 1).
Between: E. B.
And: Order of the Oblates of Mary Immaculate in the Province of British Columbia
Interveners: Canada and British Columbia
In 1831, the first residential school for Indian, the Mohawk Indian Residential School in Brantford, Ontario, near the Six Nations reserve is opened. In 1849, the federal government rolled out a new program to assimilate Aboriginal in Canadian society. Its cornerstone is the Indian Residential Schools, as recommended by pastor Egerton Ryerson and Nicholas Flood Davin, which goal was to “erase the Indian” within the Aboriginal individual. Adults were more difficult to subject so they concentrated their efforts to children on in 1856. (Saganash, 2005: 90-91). An Order in council was adopted by the federal government in 1892 to finance the schools and to run them partnership with various religious organizations (Valaskakis, 2005: 105).
All Indian, Métis and Inuit children aged five to fifteen were taken from their family for ten months per year and were brought in these institutions, for the most located near urban centres, far from their native communities. They were required to abandon their traditional way of life, their language, their culture under fear of physical and psychological abuse, and in the worst cases, sexual abuse (RCAP, 1996). At its peak in the 1930, there were more than 80 residential schools in operation across the country and 75% of all Aboriginal children were enrolled. They were mainly used between the 1850s to the 1970s, but the last Indian residential school closed its door in 1996 in Saskatchewan (Dion and Kipling, 2003: 29).
Christie residential school
In 1938, the Order of Oblates of Mary Immaculate in the Province of British Columbia, hereafter the Oblates, bought, from the Benefictine Order, lands and buildings on Meares Island, British Columbia. One of which was the Christie Indian Residential School, which they started to operate later that year. The Oblates were responsible for the children’s care and their education. The maintenance of school was the responsibility of a secular staff, mostly made up of First Nations adults, relatives of the students.
In 1956, B. left his community of Queens Cove on British Columbia’s West Coast for residential school. Between 1957 and 1962, while attending Christie Indian Residential School, B. suffered sexual abuse from Martin Saxey, a lay employee of First Nations descent hired by the Oblates as a baker and an odd-job man. B. was lured to Saxey’s living quarter in promise of candy. At that time, B. felt threatened by Saxey and did not alert the Oblates on his behavior.
In 1965, B. graduated and left Christie Indian Residential School. In 1969, the partnership between the religious organizations and the federal government ended and it took the 52 schools still opened in charge (Valaskakis, 2005: 106). In 1971, the Chrisite Indian Residential School ceased its operation. In 1986, Saxey died.
In 1995, B. was contacted by the RCMP which was investigating numerous cases of abuse that had occurred in residential school throughout the country. He confessed to the abuse he suffered at the hands of Saxey during his time at Christie Indian Residential School. He also started to seek medical help and detailed subsequently the abuse to his health professionals.
B. wanted to seek damages from Saxey for the abuse he endured. Since he is now dead, his estate is liable, but it insolvent at the time. B. turned to the Oblates for reparation.
B.: The Oblates are liable on two grounds. The first being their direct fault in allowing the abuse to happen. The second being their vicarious liability. As an employer, they have to answer for the misconduct of Saxey, their employee.
The Oblates: There was no evidence at the time of misconduct by Saxey’s part. The rules forbidden interaction between the lay staff and the student, even if they were member of the same family. Also, they are not liable for the injuries suffered by B. because there were other traumatic events happen after his passage at Christie Indian Residential School that could have contributed to the development of alcohol addiction and emotional troubles (E.B. v. Order of Oblates, 2001).
Supreme Court of British Columbia (2001): The Oblates are liable on the ground of vicarious liability as an employer since they operated their residential school under strict discipline and in a constant climate of fear which enhanced the risk of sexual abuse towards children that materialize in B.’s case.
Court of Appeal of British Columbia (2003): In the absence of a sufficient connection between the abuse suffered by B. and Saxey’s functions in the school as a baker and an odd-job man, which gave him no authority over the children residing in Christie, the decision is overturned. Also, Saxey’s actions were unknown, unauthorized, unforeseen and unforeseeable by the Oblates, his employer. The residential school gave Saxey opportunity to commit the abuse, which does not suffice to hold his employer liable for his wrongful conduct
McLachlin, Major, Bastarache, Binnie, LeBel, Deschamps, Fish, Charron
For vicarious liability to be imposed, one must investigate the employee’s duties to determine to if they gave him any opportunities for wrongdoing. The employer will be held liable if there is a connection between the tort and the tortfeasor’s entrusted duties and if the tort is a direct materialization of risky environment created by the employer. In this case, Saxey cannot be included in the Oblates’ “enterprise risk”. Saxey was not entrusted with any responsibilities relating to the children’s education, including being in a position of authority. In order to have an effective and fair compensation, the notion of vicarious liability must not be pushed too far.
As for the Oblates’ direct fault, evidence presented at trial showed that they took precautions to prevent students’ abuse by the secular staff by segregating their living quarters from the dormitories. Also, there was always an Oblate present if a child was to travel with a lay employee. There was no negligence on the Oblates’ part.
Starting in 1992, survivors of the Indian residential system started to come forward with the tales of humiliation, slave labour and abuse suffered at the hand of their educators. The Report of the Royal Commission on Aboriginal Peoples, published in 1996, highlighted in its first volume how the system was used for assimilation of the Aboriginal people and its disastrous effects on this population. (RCAP, 1996; Valaskakis, 2005: 104). In the late 1990s, books documented the Indian Residential School experience with testimonial, court documents, researches began to be published (Id., 111). In 2005, it was estimate by the Aboriginal Healing Foundation that some 93,000 former Residential school students were still alive (Id..: 107).
Swamped by court action in civil liability by former Indian Residential School student for damages they endured during their stay, INAC and religious organization wanted to create a out of court process to access, validate and settle legal claims of sexual and physical abuse. In 2002, INAC announced its National Resolution Framework to address these issues which put in place the Alternative Dispute Resolution Process (ADR). The ADR started to process applications in 2004 by an independent decision-maker outside of the federal government, it lasted until 2006. A former student that was victim of these types of abuse and that it was not considered as an acceptable punishment at the time of the occurrence. If the application was considered, the independent decision-maker called the adjudicator held a private hearing with the victim and heard its testimony without the presence of the perpetrator, but he was allowed to have an audio copy of the account. No cross-examination was allowed. The amount awarded varied from $3500 to $250,000 (Olthuis, Kleer and Townshend, 2008: 359-360).
At the same time in 2005, the federal governmental and the religious organization that operated Indian Residential Schools wanted to settle all Canadian litigations in relation with Indian Residential Schools, either individual or class action. Former Supreme Court Justice, Frank Iacobucci was mandated as chief negotiator for the federal government. After conducting negotiations throughout the country with the plaintiffs’ attorney and representatives of the AFN, the Inuit, the Anglican Church of Canada, the Presbyterian Church of Canada, the United Church of Canada and the different Roman Catholic entities, an Agreement-in-Principle was reached in late 2005 and the Final Settlement Agreement was approved by the federal government in 2006. Claimants could opt out of the Settlement by August 20, 2007, meaning that they could continue their court cases against the federal government and the religious organization involved. All other cases were dismissed at that date after all nine court jurisdictions approved approve the Settlement. (Anderson v. Canada (Attorney General), 2010; Olthuis, Kleer and Townshend, 2008: 361). National Aboriginal leaders view this Settlement as serving justice to all victims of the Indian Residential School system and helping them achieve a healing process and seeking reconciliation with Canada (AFN, 2007).
Common Experience Payment
One element of this Settlement is the Common Experience Payment (CEP) which is the payment of a lump sum to all former students who lived in one of the recognized Indian Residential School and were alive on May 30th, 2005. (Indian Residential Schools Settlement Agreement, s. 1.01 and 5.01). For their first year spent in an Indian Residential, a former student will receive $10,000 and an additional $3,000 for each school year he attended the school after the first one (Id.: s. 5.02). The government of Canada acts as the trustee for the $1.9 billion put aside by all parties for the payments of the CEP (INAC, 2010). The CEP is initiated by the deposit of an application by a former student to Service Canada. Then, it is submitted to INAC for a research in order to verify if the student attended a recognized Indian Residential School and the length of his stay. After the information is confirmed, payment is made to the former student. If he is unhappy with the decision, he can request Reconsideration for any missing school years. An appeal to the CEP Appeal Administrator which a committee of seven lawyers representing the counsel for the Canadian government, the religious organization, the AFN, the Inuit representative and other involved in the settlement. At each stage, the applicant can submit further information for their claim (INAC, 2009). As of June 2010, 95,000 of the 100,000 and more applications for a CEP had been process with an eligibility rate of 80%. The 76,000 recipients split a $1,56 billion payment. The deadline to apply for a CEP was set for September 19, 2011 (INAC, 2010).
Independent Assessment Process
Another part of the Settlement was Independent Assessment Process (IAP), similar to the ADR in its form: out of court, non-adversial with an emphasis on the claimant (INAC, 2010b). Its objective was to process and assess the claims of sexual and physical abuse if it was in connection to its attendance to a Indian Residential School, committed by one of its adult employee, both religious and secular, when he was under the age of twenty-one. It also included, in some cases, abuse committed by other students of the Indian Residential School if the staff had or should have knowledge of it, and any other wrongful act committed by an adult employee that caused psychological damages to the claimant (Indian Residential Schools Settlement Agreement – Schedule D, s. I). To determine the compensation amount, each acts proven are worth “compensation points” that are then added for a grand total. Aggravating Factors, costs for future care, income loss and consequential loss of opportunity also impacted the amount given (Id., s. II). The limit to depose an application was September 19th, 2012 (INAC, 2010b).
The federal government also allocated $20 million over five year for Commemoration initiatives to pay tribute, honour, educate, remember and acknowledge the Indian Residential School system and its impacts on aboriginal communities throughout Canada. For example, the National Residential School Survivors’ Society, which was created in 2003, received such funding and work to promote Indian Residential School survivors’ interest, to support healing and reconciliation and to create awareness in Aboriginal and Canadian communities (NRSSS, 2009). The Agreement also provided funds for healing initiatives to be managed by the Aboriginal Healing Foundation for a five years period (Indian Residential Schools Agreement, s. 8.01). This NGO received $125 million which that were redistributed to community-based initiatives that help Indians Residential Schools survivor to cope with the physical and sexual abuse they suffered that to mend inter-generational impacts. The federal government has not renewed its funding (Aboriginal Healing Foundation, 2010).
Truth and Reconciliation Commission
The Settlement Agreement also provided for the creation of a Truth and Reconciliation Commission by the government of Canada. Its objectives are to acknowledge the Residential School experience, provide a setting that former students, their families and other community members feel safe to intervene by promoting a holistic and cultural approach, organize reconciliation events at the national and community levels, educate Canadian about the Indian Residential School system and its impacts on Aboriginal peoples, elaborate an historical record of the system for further studies and uses by the public, report to the parties of the Settlement on the Indian Residential Schools, its impacts and consequences and its legacy and commemorate the survivor of the system (Truth and Reconciliation Commission of Canada, 2010a).
The chair of the Commission is held by Justice Murray Sinclair of the Manitoba’s Court of Queen’s Bench. He is of Aboriginal descent and was the province’s first Aboriginal judge. The other commissioners are Marie Wilson, a former reporter of the CBC, and Chief Wilton Littlechild, a lawyer and a former Member of Parliament who has served as Regional Chief for the Treaties 6, 7 and 8 in Alberta (Truth and Reconciliation Commission, 2010b). The Commission was established in 2008, but had trouble getting off the ground until 2010 due to resignation of the appointee for the chairperson, Justice Harry LaForme, in late 2008. In a public statement, he cited insubordination on the part of the two other commissioners as the main motive of his decision. During his tenure, he also fought the federal government over the spending power of the commission’s $60 million budget. He felt should that it should have been left in the hand of his team in order to avoid political interference and unnecessary delays in his work (CBC News, 2009). The two other commissioners, Claudette Dumont-Smith and Jane Brewin Morley, were heavily criticized for their conduct and resigned at the beginning of 2009 (CBC, 2010). The Commission held its first national event in June 2010 in Winnipeg where survivors of the Indian Residential School were invited to share their stories confidentially or publically by recording their statement. They could also attend traditional healing and mediation session and meet with the religious organizations’ representative to achieve reconciliation (Truth and Reconciliation Commission, 2010c).
In 2008, Prime Minister Harper issued an official apology to former student of Indian Residential School in the Chamber of the House of Commons on behalf of the federal government. He valued this statement as the first step towards achieving healing and reconciliation and asked Aboriginal peoples for forgiveness for treating generation of children so badly and causing systemic social problems in communities (Government of Canada, 2008). Aboriginal leaders received this apology, but feared that without meaningful actions on the federal’s part to improve social, cultural, political and economical conditions of Aboriginal peoples, it would amount to an empty promise (QNW, 2008). The Anglican Church of Canada issued their apology in 1993 (Anglican Church of Canada, 2010), the Presbytarian Church in 1994 (Anglican Church of Canada, 1994), the United Church of Canada in 1998 (United Church of Canada, 2008) and the Royal Canadian Mounted Police in 2004. (RCMP, 2007). The Roman Catholic Church as yet to apologize.
Blackwater v. Plint,  3 S.C.R. 3
Anderson v. Canada (Attorney General), 2010 NLTD(G) 106
B.(E.) v. Order of the Oblates of Mary Immaculate, 2003 BCCA 289
B. (E.) v. Order of Oblates, 2001 BCSC 1783
Aboriginal Healing Foundation. 2010. FAQs. Online. http://www.ahf.ca/faqs. Retrieved on August 25, 2010.
Anglican Church of Canada. 2010. Anglican Church of Canada’s Apology to Native People. Online. http://www.anglican.ca/rs/apology/apology.htm. Re
Anglican Church of Canada. 2008. The confession of the Presbyterian Church as adopted by the General Assembly, June 9th, 1994. Online. http://www.rememberingthechildren.ca/press/pcc-confession.htm. Retrieved on August 24, 2010.
Assembly of First Nations. 2007. AFN National Chief Applauds the Finalization of the Indian Residential Schools Settlement Agreement. Ottawa: Assembly of First Nations.
Assembly of First Nations. 2004. Report on Canada’s Dispute Resolution Plan to Compensate for Abuses in Indian Residential Schools. Ottawa: Assembly of First Nations
Brant Castellano Marlene, Archibald Linda and Mike DeGagné. 2008. From Truth to Reconciliation: Transforming the Legacy of Residential Schools. Ottawa: Aboriginal Healing Foundation.
CBC News. 2009. Chairman quits troubled residential-school commission. Online. http://www.cbc.ca/canada/story/2008/10/20/truth-resignation.html. Retrieved on August 25, 2010.
CBC News. 2010. FAQs: Truth and Reconciliation Commission. Online. http://www.cbc.ca/canada/story/2008/05/16/f-faqs-truth-reconciliation.html. Retrieved on August 25, 2010.
Dion Stout Madeleine and Gregory Kipling. 2003. Aboriginal People, Resilience and the Residential School Legacy. Ottawa: Aboriginal Healing Foundation.
Gabriel Ellen. 2008. Reaction to Government of Canada’s Apologies for Residential School System. Kahnawake: Quebec Native Women.
Indian and Northern Affairs Canada. 2010a. Comment Experience Payments – Information Update on the Common Experience Payment. Online. http://ainc-inac.gc.ca/ai/rqpi/cep/index-eng.asp. Retrieved on August 24, 2010.
Indian and Northern Affairs Canada. 2010b. Independent Assessment Process. Online. http://ainc-inac.gc.ca/ai/rqpi/inasspr/index-eng.asp. Retrieved on August 24th 2010.
Indian and Northern Affairs Canada. 2009. Common Experience Payment Process Overview. Online. http://ainc-inac.gc.ca/ai/rqpi/cep/ov/index-eng.asp. Retrieved August 24th, 2010.
Government of Canada. 2008. Statement of Apology to former students of Indian Residential School. Ottawa: Government of Canada.
Government of Canada et al. 2006a. Indian Residential Schools Settlement Agreement. Ottawa: Government of Canada.
Government of Canada et al. 2006b. Indian Residential Schools Settlement Agreement – Schedule D, Independent Assessment Process (IAP) for Continuing Indian Residential School Abuse Claims. Ottawa: Government of Canada.
Milloy John Sheridan. 1999. A National Crime: the Canadian Government and the Residential School System, 1879-1986. Winnipeg: University of Manitoba Press.
National Residential School Survivor’s Society. 2009. Purpose and Mandate. Online. http://www.nrsss.ca/. Retrieved on August 24, 2010.
Olthuis Kent, Kleer Nancy and Roger Townshend. 2008. Aboriginal Law Handbook. 3rd edition. Toronto: Carswell.
Royal Canadian Mounted Police. 2007. RCMP apology. Online. http://www.rcmp-grc.gc.ca/aboriginal-autochtone/apo-reg-eng.htm. Retrieved on August 24, 2010.
Royal Commission on Aboriginal Peoples. 1996. Report of the Royal Commission on Aboriginal Peoples – Looking Forward Looking Back. Vol. 1. Ottawa: Supply and Services Canada
Reimer Gwen. 2010. The Indian Residential Schools Settlement Agreement’s Common Experience Payment and Healing: A Qualitative Study Exploring Impacts on Recipients. Ottawa: Aboriginal Healing Foundation.
Saganash Diom Roméo. 2005. Les pensionnats pour Autochtones, outils d’assimilation – Un héritage honteux, in Labelle Michelle, Anonius Rachad and Georges Leroux (dirs.), Le devoir de mémoire et les politiques du pardon : 85-100. Québec : Presses du l’Université du Québec.
Truth and Reconciliation Commission of Canada. 2010a. Our Mandate. Online. http://www.trc.ca/websites/trcinstitution/index.php?p=7. Retrieved on August 24, 2010.
Truth and Reconciliation Commission of Canada. 2010b. Meet the Commissioners. Online. http://www.trc.ca/websites/trcinstitution/index.php?p=5. Retrieved on August 24, 2010.
Truth and Reconciliation Commission of Canada. 2010c. Plans Set to Bring Together Canadian, Create Greated Awareness and Understanding at TRC National Event in Winnipeg. Online. http://www.trc.ca/websites/trcinstitution/File/pdfs/TRC%20NE%20News%20Release%20Eng%20June01%2010.pdf. Retrieved on August 24, 2010.
United Church of Canada. 2008. Apology to Former Student of United Church Indian Residential Schools, and Their Families and Communities. Online. http://www.united-church.ca/beliefs/policies/1998/a623. Retrieved on August 24, 2010.
Valaskakis Gail Guthrie. 2005. Les pensionnats indiens – Souvenir et réconciliation, in Labelle Micheline, Antonius Rachad and Georges Leroux (dirs), Le devoir de mémoire et les politiques du pardon : 101-126. Québec : Presses de l’Université du Québec.