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Take Part in Civil Legal Proceedings | ||
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Most forms of physical and sexual abuse constitute crimes under the Criminal Code, but an even broader range of wrongful conduct can give rise to a civil action. If one person causes harm to another intentionally, or even unintentionally, that harm may constitute a civil wrong. To obtain compensation (usually monetary), persons who have been harmed have the right to sue the person or persons they believe to be responsible for the harm done. Although both may deal with the same events, a civil action operates independently of the criminal justice process. It may be started whether or not there has been a criminal investigation or prosecution. A survivor could sue by themselves. A number of people who have suffered similar harm at the hands of the same person or persons may wish to sue together. This is called a class action. Civil Process
If a survivor decides to take part in civil proceedings, the federal government will pay for the travel costs of the support people. In Ontario, the Law Society of Upper Canada has guidelines for its members who act for survivors in institutional child abuse cases. To view these guidelines, download the PDF here (the information starts on page 36). In Alberta, there is a process of having "test" cases to determine the issues to help settle claims involving similar issues.
Class Action A class action is when a group of plaintiffs (people suing) asserts a common right through one person or a small number acting as their agent. The Indian Residential Schools Alternative Dispute Resolution Process website has a list of five proposed class actions which have been started on behalf of former students who wish to pursue their claim in court. These class actions are "proposed" because each must be certified by a court before it can proceed. That means that the judge gives permission to the people suing to resolve the claims together. The government opposes certification in the courts. So far only one of the class actions have been certified. Here is a list of the five proposed class actions that are seeking certification:
It is interesting to note that the Baxter National Class Action is in direct response to the ADR process. The plaintiffs' lawyers are claiming for the loss of language and culture. They have developed an alternate settlement plan which would give an attendance-based settlement to every former resident on the grounds of the harm arising from the residential school system as it was implemented. Damage in excess of this baseline would be negotiated by the plaintiffs' lawyers. The ADR has been criticized for low awards and a process that requires an excessive amount of expensive process in each individual case.
Cases The following explain two important cases in British Columbia. You can find links to these and other cases at www.irsr.gc.ca/english/links_court.html. St. George's, Lytton F. S. M. v. Clarke [1999] B.C.J. 1973 (BCSC) and 2004 BCCA 23 The first case involving the Anglican Church of Canada to go to trial resulted from abuse which took place at St. George's School in Lytton, British Columbia. The school was founded by the New England Company, an independent mission agency based in England. It was later sold to the Government of Canada. A former dormitory supervisor at the school had been convicted of sexually abusing boys in his charge. In the civil case for damages arising from this abuse, a survivor sued the Government of Canada, the General Synod, and the Anglican Diocese of Cariboo. The amount of damages was agreed before the case went to trial. At issue was the proportion of damages to be borne by the government and the church. Evidence given at the trial established that the dormitory supervisor and the principal of the school were both employees of the Government of Canada. The principal of the school was also a priest. Because of this, Madam Justice Dillon of the British Columbia Supreme Court concluded that the church and government were joint employers, and she found both vicariously liable for the abuse. Madam Justice Dillon also concluded, based on probability rather than direct evidence that the bishop of the day would have known about the abuse, but did not report it to federal authorities. As a result, Madam Justice Dillon ruled the church was guilty of a cover-up and awarded it 60 percent of the liability. The appeal of this case by the Anglican Church to the British Columbia Court of Appeal was abandoned so the trial judgment prevailed.
Alberni Indian Residential School Blackwater (W.R.B.) v. Plint 2003 BCCA 671 The lawsuit, which was launched by former students of the Alberni Indian Residential School, named both the Canadian Government and the United Church of Canada as defendants. Chief Justice Brenner made two decisions in this case: one in 1998 and another in 2001. In June 1998 Justice Brenner made a decision in the first-phase of the trial, which dealt with issues of vicarious liability. In that decision, Justice Brenner concluded that both the Federal Government and The United Church of Canada were vicariously liable for sexual assaults committed by Arthur Henry Plint, a dormitory supervisor at the now closed Alberni Indian Residential School. Justice Brenner did not specify the percentage of liability for either the United Church or the Federal Government. He reserved that judgment until the 2001 decision. Of the original 28 plaintiffs in the case, twenty-one had reached out-of-court settlements with the church and the government. Mr. Justice Brenner's written judgment, therefore, deals with the remaining 7 plaintiffs. In the 2001 decision, Justice Brenner ruled that the apportionment of liability for the Government of Canada would be 75% and for The United Church of Canada, 25%. Commenting on the percentage split, the Reverend David Iverson, chair of the United Church's Residential Schools Steering Committee said, "The Decision is a step in the right direction. The church has always maintained that the major control and decision-making with regard to the schools lay with the federal government. Historians who have studied the system have concurred with this view. The judgment recognizes that reality." Iverson added, "This fact, however, does not take away from the church our responsibility for our complicity with federal government policy in relation to the residential school system." On appeal to the BC Court of Appeal that court ruled on December 10, 2003 that the Government of Canada was 100% vicariously liable for the abuse that occurred at the United Church operated Alberni Indian Residential School. This decision is being appealed to the Supreme Court of Canada on the issue of whether a non-profit organization should be held vicariously liable for the wrongful actions of its employees.
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