What is your position on the issue?

Answer 1

July 10, 2001

The long-awaited decision* by British Columbia Supreme Court Chief Justice Donald Brenner was released on Tuesday, July 10, 2001.

The 325 page written reasons for the Decision relates to the final two phases of a three-year trial that began in February 1998. 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.

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 judgement, therefore, deals with the remaining 7 plaintiffs.

This decision, which deals with the issues of direct liability and damages, follows a June 1998 decision in the first-phase of the trial, which dealt with issues of vicarious liability. In that decision, Chief 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.

It is important to note that in the 1998 Decision Justice Brenner did not specify the percentage of liability for either the United Church or the Federal Government. He reserved that judgement until now.

In his written reasons for the July 10, 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 judgement recognizes that reality."

Iverson adds, "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."

Additional key elements of Mr. Justice Brenner's Decision are:

1. Canada and The United Church of Canada were found vicariously liable for the provable damages suffered by six of the remaining seven plaintiffs.
2. The claim of a seventh plaintiff was dismissed.
3. The claims against Canada and the church for direct liability based on negligence and for breach of fiduciary duty were dismissed.
4. Claims of the plaintiffs other than those based on misconduct of a sexual nature were barred pursuant to the provisions of the Limitation Act.
5. Damages ranging from $145,000.0to $10,000.0were awarded to the six remaining plaintiffs.

Iverson says that in the coming weeks he expects both the church's legal counsel and the Residential Schools Steering Committee will study Justice Brenner's Decision in greater depth. In the meantime however, the church has prepared the following responses to questions that are likely to be asked about the Decision:

1. Is this Decision a victory for The United Church of Canada?

No. This Decision follows a long and painful three-year trial. It has been particularly difficult for the survivors who have had to tell and re-tell their stories in an adversarial court environment. What this experience points to is the need to find alternative ways of dealing with claims related to the legacy of residential schools. The Executive of the General Council has committed the church to explore all such reasonable alternatives.

2. It has been reported that damage awards that are lower than expected upset the plaintiffs. What is your position on this issue?

Mr. Justice Brenner has given his reasons for the damages awarded. It would be inappropriate for us to comment on any particular award. In general, we are supportive of just compensation for proven cases of abuse related to residential schools. We are committed to finding more humane ways of achieving this goal than can be found in a three-year trial.

3. The United Church appealed the Decision of Mr. Justice Brenner related to vicarious liability. Will you be continuing with this appeal?

In the next few weeks the Residential Schools Steering Committee will be studying the recent Decision of Mr. Justice Brenner. One of the issues with which we will be dealing is whether or not this Decision has any impact on our appeal of his previous Decision.

4. Will this Decision have any impact on the current conversations between the government and the churches with relation to residential schools?

Whatever the Decision had been the fact remains that conflict between the churches and the government with regard to apportionment of responsibility has prolonged this and other legal processes and detracted from the primary focus which should be just settlement of claims.

Mr. Justice Brenner's clear description of the relative responsibilities of church and government should prove to be helpful in moving toward a just agreement between church and government with regard to issues of responsibility. Mr. Justice Brenner makes it clear in his Decision that because Canada had the ultimate decision with regard to employment of the principal, extensive supervisory authority over the operations of the school, control of funding, the statutory and non-delegable responsibility for the children who attended the school, it is appropriate that "Canada bear a greater share of the fault."

This sort of statement is helpful in countering a common public perception that residential schools were essentially church institutions supported by the state. In reality Mr. Justice Brenner's Decision confirms the fact that they were state schools in which the churches played a role.

5. Does this Decision mean that the United Church will no longer have to be concerned about the impact of residential schools on the life of the church?

No. In fact, the church's responsibility in relation to the legacy of residential schools is much deeper than what is reflected in court decisions. The residential school system was one manifestation of a profoundly damaged relationship between First Nations and non-First Nations in this land. The lack of respect for First Nations culture and spirituality, the separation of children from family and community which marked this relationship continue to have their effect in the present generation. As a church and as members of the Canadian nation we are committed to processes of truth telling, just resolution of claims, reconciliation between nations and communities and the building of new relationships between First Nations and non-First Nations based on respect and justice