Church may appeal share of damages

The Anglican Church has paid the victim in the first residential schools judgment against the church. The General Synod — the church’s national body — has paid both its and the Diocese of Cariboo’s share of damages to the plaintiff in the case involving a sexual-abuse victim who attended St. George’s Indian Residential School in Lytton, B.C. But both are still considering appealing the decision that found the church responsible for 60 per cent of damages owed.

If an appeal is successful, the money would be recovered from the federal government, not the victim. An appeal would not be about the total amount of damages — they were agreed on before the civil trial.

What the church is considering challenging is how much, if anything, it owes, as opposed to the federal government.

B.C. Supreme Court Justice Janice Dillon found Ottawa responsible for the other 40 per cent of the undisclosed award. The perpetrator of the crime was found guilty in an earlier criminal trial and is currently in jail. He was a federal civil servant at the time of the offences. “We had expected that more responsibility would be assigned to the government since it owned the school, funded its operation and was primarily responsible for appointing the principal and staff,” Archdeacon Jim Boyles said in a press release from the church’s official news agency.

The judgment also takes “a rather confusing approach in lumping together the General Synod and the Diocese of Cariboo as ‘the church,'” he said. “Failing to distinguish between them is like failing to distinguish between the Government of Canada and the Government of British Columbia, on the grounds that it’s all ‘the government.'”

The school in Lytton was never owned by the church. An English missionary company established it in 1901. However, the bishop of Cariboo had influence in nominating senior staff to the school and the school was treated as a parish of the diocese.

Although the perpetrator of the sexual abuse was a caregiver, his supervisor was the principal and an Anglican deacon, later a priest. The principal was also suspected of abusing children although he was cleared of such charges at a trial before his death.

General Synod is getting independent legal advice on whether to appeal the Aug. 30 ruling. The insurance company that covers General Synod’s legal expenses in the case also urged the church to file the notice of appeal, the church’s general secretary, Archdeacon Boyles, said in the news release.

Costs of an appeal could approach $50,000 and General Synod has been negotiating with its insurer to cover those costs if it proceeds. The Diocese of Cariboo has no such insurance. Cariboo should be able to come up with its half of the church’s bill for this case but that will likely exhaust its financial reserves, said regional archbishop David Crawley, speaking on behalf of the diocese.

With several more cases outstanding involving the former residence supervisor Derek Clarke, and no insurance coverage to help, the diocese does not know how it could pay any future bills. Cariboo has set up a task force which is investigating “various legal aspects of what happens when they run out of money and can’t pay for the judgments if further judgments come along,” Archbishop Crawley said. “The people of Cariboo are enormously faithful to God and to their church and they will see that (the life of the church) carries on,” he said. “I think that they’re responding quite bravely.”

General Synod is also getting legal advice on what assets are protected and what monies are available to pay for any future settlements, Archdeacon Boyles said in an interview. That includes settlements that could be reached through so-called alternative dispute resolution, an avenue that would avoid court.

The church’s pension fund, that covers all clergy and some lay staff, is protected. Money in trust for specific purposes or deposited in a consolidated trust fund is also protected. The consolidated fund works like a mutual fund, Archdeacon Boyles said, for organizations including the Anglican Foundation, dioceses, some parishes and various church groups.

Assets that could be made available for settlements include undesignated bequests, General Synod funds and money belonging to the Missionary Society of the Anglican Church of Canada. If necessary, the national office’s building at 600 Jarvis St. in Toronto could also be sold. The total value of these assets is about $10-million, Archdeacon Boyles said.

Asked what the church would do without a national headquarters, Archdeacon Boyles said, “we’re not planning on the worst case scenario. We are saying, this is what we have. We would like the (federal) government to acknowledge that the continued viability of the Anglican Church is an important goal for public policy. We believe the way to accomplish that goal is to limit the amount the church would contribute to settlements.”

The Lytton case is the first to be decided involving the Anglican Church, so the outcome could well set a precedent for future rulings, an issue the church is taking into account while it considers how to proceed.

General Synod did try to get removed from the case on the grounds it had no involvement in the school but Justice Dillon refused. She also decided to treat the diocese and General Synod as one entity — the church — citing, among other things, the fact they shared one lawyer in the case. The church may reconsider sharing a lawyer in these kinds of lawsuits, following the Lytton decision.

The Diocese of Huron has already retained its own lawyer for lawsuits involving the Mohawk Institute Residential School in Brantford, Ont.

In Qu’Appelle, however, the church and diocese are currently sharing a lawyer in the Gordon Indian Residential School cases. Examination for discovery (a kind of mini-trial involving just lawyers and witnesses) has begun in one case and Archdeacon Boyles has testified. There is no indication yet when the actual trial might begin but the discovery is intended to be used for subsequent Gordon’s cases as well.

At least one legal expert says it’s not a good idea to have a single lawyer for two parties if one party is going to argue it should be dismissed from the case. “Everybody has their own strategy and there may be perfectly valid reasons why they chose to go that way,” said Ken Thornicroft, a lawyer, arbitrator and associate professor of law and labour relations at the University of Victoria. “But it does seem to me to be inconsistent with the argument that these are separate, independent bodies. And if each one’s going to point the finger at the other, I don’t see how a single lawyer can represent both bodies. I think you’re in a conflict of interest.”

Meanwhile, as a way of avoiding the adversarial nature of the courtroom — but not necessarily saving any money — the Anglican Church and other churches continue to work with the federal government and Native groups to pursue alternative dispute resolution.

A key issue for the church is the potential cost. “The claims against the church amount to many times the assets General Synod would have available,” Archdeacon Boyles said. “Therefore, entering into ADR projects risks settlements that threaten the life of the church. We are in negotiations with the government to see if there is a way a cap could be placed on the amount the church would contribute to settlements within the ADR pilot projects.”

Shawn Tupper, acting director for residential schools in the Department of Indian Affairs said, “what we’re trying to do is determine how the churches can continue to be involved in these processes and also continue to survive beyond them.”

First Nations groups have acknowledged that it isn’t their intention “to wipe organizations out,” Mr. Tupper said, but to have people take responsibility for what happened. He’s hoping the Anglican Church can get involved in four of 12 pilot projects they’re planning.

However, in exploratory talks, former students at Walpole Island, Ont., and the Mohawk Institute in Brantford, Ont., said they’re not interested in ADR.

Former students at St. Paul’s in Cardston, Alta., and Gordon’s Residential School in Sask., have signalled interest.

ADR would involve people who were sexually or physically abused and are seeking compensation. Participants would work with the church and the government to develop a compassionate process that also ensures claims are validated and damages properly assessed. The result would be individual settlements for validated claims and possibly community programs for healing and reconciliation.

The Council of General Synod has authorized participation in two such projects. The lawsuits have not led to any substantial budget cuts yet at the national church level, but at least one planned hiring in the Partners in Mission office has been deferred indefinitely. No major reductions are planned for next year but the 2001 budget may be affected.