The Supreme Court of Canada has ruled that churches are definitely liable for abuse suffered by Indian children in a now-defunct residential school system, but that liability should be shared with the federal government.In a ruling released Oct. 21, the high court restored an earlier British Columbia Supreme Court ruling that said the federal government should bear 75 per cent of the cost of any judgments awarded to plaintiffs who attended the schools and the churches should pay 25 per cent. The government operated the system and the Roman Catholic, Presbyterian, Anglican and United churches administered various schools. The Supreme Court decision overturned a December, 2003, British Columbia Court of Appeal judgment that applied a doctrine of “charitable immunity” to exempt churches from any liability. The case was based on a lawsuit brought against the federal government and the United Church of Canada by seven former students of the Port Alberni Indian Residential School on Vancouver Island. It is known as the Blackwater case. The unanimous Supreme Court judgment said that “the church exerted sufficient control over the operations at the residential school that gave rise to the wrong to be found vicariously liable with Canada.” Plaintiffs said they had been sexually and physically abused by a dormitory supervisor, Arthur Henry Plint, who worked at the school for 20 years until 1968. In 1995, Mr. Plint was sentenced to 11 years in prison for indecent assault. “The trial judge’s factual findings clearly support a conclusion that the church was one of (Mr. Plint’s) employers in every sense of the word. None of the considerations relied on by the Court of Appeal — Canada’s degree of control over the residential school, the church’s specific mandate of promoting Christian education and the difficulty of holding two defendants vicariously liable for the same wrong — negate the imposition of vicarious liability on the church. Similarly, the Court of Appeal erred in exempting the church from liability on the ground of charitable immunity,” the judgment read. Anglican Church of Canada officials will be consulting with their legal counsel concerning the judgment, said Ellie Johnson, acting general secretary. Under an agreement with the federal government reached in 2002, the Anglican church pays 30 per cent of any damage judgment; the federal government pays 70 per cent. The 75/25 ruling by the Supreme Court may change that. “If the United Church is only paying 25 per cent, the we would consider approaching the government to change our agreement,” said Ms. Johnson in an interview. Under the accord, Anglican liability is capped at $25 million, and the Supreme Court decision does not change that, she noted. “At this point, we haven’t considered renegotiating the amount, although that, too, we will discuss with our legal counsel. But the money would be spread more widely and potentially not run out quite as fast,” she said. “It is also clear from this judgment that the government is primarily responsible but that the churches, too, bear some responsibility. This, for the Anglican church, is not different from what we have already acknowledged,” Ms. Johnson added. Jim Sinclair, general secretary of the United Church of Canada, said the church is “satisfied with the decision.” He noted that it “clarifies the legal situation. It doesn’t knock us off the track because our priority remains the interests of the survivors. We have been settling on the basis of 25 per cent. It is not just a matter of legal accountability; we felt we had a moral and theological obligation.” The United church’s liability is not capped and it has paid out about $5-6 million in damages, according to James Scott, responsible for residential schools at the United Church office. The United Church of Canada ran about 13 schools in the 80-school national system and the Anglican church operated about 26.
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