Two Supreme Court of Canada rulings on vicarious liability have added yet another turn to the legal labyrinth surrounding the residential schools issue.
An employer can he held vicariously liable for the actions of an employee, and may be obliged to pay damages as a result, even when the employer did nothing wrong.
In one of the cases on which the court ruling was based, the Children’s Foundation of Vancouver was found vicariously liable and will have to pay damages for sexual abuse committed by one of its employees. In the other case, the court did not hold a Vernon boys and girls club vicariously liable for sexual abuse, based in part on a finding that the club provided a recreational rather than a residential facility.
While the two cases did not involve residential schools, the court rulings could have a great bearing on numerous claims by Native people who suffered sexual and other abuse at residential schools sponsored by Ottawa and run by several churches.
The stakes are high. With more than 3,000 outstanding lawsuits filed by former students against Ottawa and the churches that ran the schools, there has been some media speculation that the final cost to the federal government could be as high as $2 billion.
One of the many unknowns is how much of the cost will be borne by the churches. Two pending court decisions could provide some answers.
In one of the cases, the Anglican Church along with the federal Minister of Indian Affairs is being sued by a former student who alleges he was sexually assaulted by the former dormitory supervisor at St. George’s Residence at Lytton, B.C. The church has argued that the federal government was fully responsible for the school.
In a second case, The United Church of Canada has appealed last fall’s ruling by a judge that both the federal government and the church were vicariously liable for abuse at a residential school at Port Alberni, B.C.
Because there are no court precedents, both cases may establish precedents in relation to the other cases, Archdeacon Boyles said.
Meanwhile, he said the federal government has proposed 12 pilot projects to see if there are alternative ways of responding to the claims. The projects involve identifiable groups of about 50 former residents of residential schools in each project.
Archdeacon Boyles said the church is working with the federal Department of Justice to see if and how the church can participate in these projects where the site was Anglican. It wants a better way of resolving the claims than the adversarial approach that is part of the court system. Michael McAteer is a freelance writer based in Toronto.