The first court hearing on the Indian Residential Schools Settlement Agreement (IRSSA) began Aug, 29, with Ontario Superior Court Justice Warren Winkler questioning how “realistic” the goal is of resolving – within the agreement’s prescribed six-year period -cases involving former students who have alleged sexual and physical abuse. During the hearing held at the Ontario Superior Court of Justice in Toronto, government lawyers said it was the agreement’s intent that 2,500 hearings be held every year for cases that will undergo the Independent Assessment Process, in lieu of the current Alternative Dispute Resolution (ADR) process, which they described as “seriously flawed.” There are currently 10,000 cases involving physical and sexual abuse in courts across Canada and 5,000 in the ADR, they said, adding that the intent is for courts to hear an average of 10 cases per day. (The Anglican Church of Canada, which operated 26 of 80 boarding schools attended by natives from the mid-19th century into the 1970s, has been named in about 2,000 residential schools abuse lawsuits.)
The schools agreement, announced last fall by the government and later approved by all churches that administered residential schools, also entitles about 80,000 former students to a common experience payment of $10,000 plus $3,000 for each year spent in residential school. Justice Winkler questioned whether there are enough resources, both human and financial, to handle such a caseload. “This is a very big undertaking. What are the schematics of the resources?” asked Justice Winkler. He said his past involvement in class action suit deliberations have shown that some hearings, especially those that require settlements for loss of income and future care “cannot possibly be cleaned up in one day.” (In 2001, Justice Winkler oversaw a court-approved settlement on the case involving deadly E. coli contamination of the water of Walkerton, Ont.; he also approved a $79-million settlement between the Red Cross and class action plaintiffs infected with hepatitis C through the use of tainted blood.) “A good benchmark would be the ADR process. How long did each case last?” Justice Winkler asked the defendants, representing the federal government. He was told that each took about three-and-a-half years to be resolved. Justice Winkler also asked what power the courts would have to monitor the administration of cases. “These are serious practical questions,” he said. “I know what works and what doesn’t…I have to be satisfied that you can deliver on your promises. You have to show me that resources can match the demand. You want people to take these cases seriously. If there are complaints they’ll come back to me. Who will hear the appeals?” Government lawyers asked for more time to consider Justice Winkler’s questions and comments. The start of the hearing, which is expected to end Aug. 31, was filled with plaintiffs, lawyers and church representatives (including the Anglican Church of Canada) and had to be moved to another courtroom to accommodate an overflow crowd. Aside from Ontario, eight other provincial and territorial courts must conduct hearings on the schools agreement. All nine courts must approve the agreement before it is final.