TORONTO, Dec. 16, 2003 -- The Anglican Church of Canada's commitment to raising $25-million for a residential schools settlement fund has not changed, despite a British Columbia Court of Appeal ruling that the government is solely responsible for liability arising from abuse at the schools.
In a statement, Archdeacon Jim Boyles, General Secretary of the Anglican Church's General Synod, said the church will study all the implications of the judgement. He noted that the federal government has 60 days in which to decide if it will appeal the B.C. court decision to the Supreme Court of Canada.
He also stressed that throughout the residential schools' negotiations with the government, the chief goal of the Anglican church was to effect healing and reconciliation with former students of the schools who suffered physical and sexual abuse.
The has not changed either, he said.
In a unanimous judgement released last week, the B.C. Court of Appeal allowed an appeal by the United Church against a previous judgment that had assessed liability at 75 per cent against the government and 25 per cent against the church in a case of sexual abuse by a residential school employee.
In overturning that decision, the B.C. court ruled that "the church should not, in this case, have been held liable for the wrongdoings of (the employee) even if there is some merit to be found in the contention that it was, in some degree, his employer".
Archdeacon Boyles noted that the position taken by the courts is what the Anglican church had argued for several years before it reached an agreement with the federal government capping its liability at $25-million earlier this year. That agreement committed the Anglican General Synod and the church's 30 dioceses to collectively raise a $25-million settlement fund over the next five years. Money from this fund will be used to compensate former residential schools students with proven claims, but the government assumes responsibility for all claims after the $25-million fund has been expended. To date, Anglicans have generously contributed more than $7-million to the fund and $1.5 million has been paid to about 60 claimants.
Archdeacon Boyles noted, however, that there is a clause in the Anglican church's agreement that says if the government and another church negotiate terms more favourable to that church than those in the Anglican agreement, then the more favourable terms will apply to the Anglican church as well. He said he would seek further discussions with the government in this regard.
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"Blair v. Ontario Conference of the Seventh-day Adventist Church and Larry Milliken and Joyce Milliken, Ontario Court General Division, Daudlin J. August 12, 1998 (unreported)". "Although this decision is being appealed, it was thought that our members would be interested in the reasons for the dismissal of the action".
"The Ontario Conference of the Seventh-day Adventist Church ... was sued by the Plaintiff as having been responsible for sexual abuse allegedly occasioned to he by the defendant Larry Milliken her alleged foster father who at the time of the alleged sexual abuse was also a pastor in the SDA Ontario. ... The SDA Ontario maintained that it had no duty of any sort to the Plaintiff, and denied liability, vicarious or otherwise for the personal actions of Milliken which actions the Plaintiff admitted were taken outside the scope of his functions as a pastor in the Church" (p. 60). "While we will await to see what the Supreme Court of Canada says further on issues of vicarious liability, what cases such as Mombourquette and Blair tell us is that the religious rationale for establishing clergy and the moral position that clergy occupy can hope to have some influence in directing the court away from imposing vicarious or fiduciary liability upon ecclesiastical corporations for immoral acts of that clergy that fall outside of sanctioned conduct. In simpler words, clergy can and do have private lives. The separation of private life from public duty can be a difficult distinction to make" (p. 72).
TORONTO June 17, 1999 -- The Supreme Court of Canada has delivered two rulings which may have a significant impact on the ability of charitable organizations to provide residential care facilities and a range of other social services.
In a case involving the Children's Foundation of Vancouver, the court ruled that the Foundation was vicariously liable and will have to pay damages for sexual abuse committed by one of its employees. However in a similar case involving the Boys and Girls Club of Vernon, the court did not hold the club vicariously liable, based in part on a finding that the club provided a recreational rather than a residential facility.
Vicarious liability is a principle in civil law. It results in one person (or organization) being held legally responsible for the wrongful action committed by someone else. An employer may be found vicariously liable for the actions of an employee, and may be required to pay damages as a result, even when the employer did nothing wrong.
Archdeacon Jim Boyles, General Secretary of the Anglican Church, said "The church will have to reassess the degree of risk arising from participating in such activities as summer camps, nursery schools and shelters for the homeless.
"In some cases, the court's ruling may make it impossible for charitable organizations to continue working with young people, or others who are vulnerable, in residential settings."
The court appears to have moved toward a standard of absolute liability -- meaning that an organization could act reasonably and prudently, taking all reasonable steps to ensure the safety of children in its care, select its staff or volunteers scrupulously, train them appropriately and supervise them diligently, and still be liable if one of them commits a criminal act. The risk of liability in such circumstances may be too great, and may cause some organizations to withdraw from dealing with young people in residential settings.
Archdeacon Boyles called on governments to ensure that organizations dedicated to serving and protecting children can continue to do so, without fear of arbitrary or unreasonable liability for actions over which they have no control. "Anyone who works with children has a responsibility to ensure their safety, and we strongly support that. Our concern is that this ruling could boomerang and operate to the detriment of children, and we think the government needs to take a look at that."
The rulings are complex and deal at some length with many different factors which must be taken into account in assessing vicarious liability, Archdeacon Boyles noted, making it impossible to speculate on how the rulings will be applied in individual cases.
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TORONTO -- September 1, 1999 -- The British Columbia Supreme Court has ruled that the Government of Canada and the Anglican church are jointly responsible for sexual abuse committed in the early 1970s by a dormitory supervisor at St. George's Indian Residential School in Lytton, B.C.
The ruling clears the way for the plaintiff in the case to receive compensation, according to Archdeacon Jim Boyles, the church's General Secretary.
The sexual abuse which began in 1970 ended in 1973, when the supervisor, Derek Clarke, was dismissed after the school's principal received a complaint. Clarke was subsequently convicted, and the facts of the abuse were not in dispute in this case. The issues in the case related to the liability of the government, which owned and administered the school and paid the salaries of its staff, and the church, which was involved in the school's operation.
The Diocese of Cariboo, based in Kamloops, and the church's General Synod, its national body, were found jointly liable, along with the federal government. Mr. Boyles said it is not clear whether the Diocese of Cariboo has the financial resources to meet its share of the obligation, but he pledged that the national church will ensure the church's portion of the compensation is honoured.
The Right Reverend Jim Cruickshank, Bishop of Cariboo, said he will meet with leaders in his diocese at his earliest opportunity to consider options which, he said, include the possibility of declaring bankruptcy.
The diocese is home to fewer than 5,000 Anglicans in 17 parishes. Nine of the parishes are self-supporting. The Diocese of Cariboo is part of the Ecclesiastical Province of British Columbia and Yukon, Archbishop David Crawley, the Province's senior bishop, said he will work with the Diocese of Cariboo as it considers its future.
Mr. Boyles said the church has not yet decided whether to appeal the judgment, which allocated 60 percent of direct liability to the church, and 40 percent to the government. "We are disappointed by that finding and do not believe it represents an appropriate share of the government's liability," he said. "In the meantime, however, we want to ensure that the plaintiff receives his due settlement as quickly as possible, regardless of any subsequent appeal."
Mr. Boyles noted the church's primary work in relation to Aboriginal persons today is focused on healing and reconciliation. A healing fund was established in 1991. To date it has made more than 40 grants, totaling almost $500,000, to assist community-based healing initiatives.
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Contact: Doug Tindal, Director of Information Resources, 416-924-9199 ext. 286; 905-335-8349 (residence); Archdeacon Jim Boyles, General Secretary 416-924-9199 ext. 280; The Most Reverend David Crawley Archbishop of Kootenay and Metropolitan of British Columbia and Yukon, 250-762-3306.
"We may be witnessing a trend in Canada in recent years that expands the concept of institutional liability, if only slightly. Courts recognize the great expense to Plaintiffs in pursuing litigation and are more inclined to consider policy factors to determine whether a Plaintiff is owed compensation. Courts are motivated by two factors: providing a just and practical remedy to those who suffer a wrong perpetrated by an employee, as well as deterring future harm, i.e. encouraging employers to implement steps to prevent abuse. While such recompense is often just and due there is a danger that compensation will be ordered to be paid by parties wholly innocent of any misconduct" (p. 344).
Article divided into sections: Finding the Pocket -- Assess Damages Early in Litigation -- Damage Quantum -- Gather Evidence and Prepare Briefs -- Institutional Issues: Assessment of Claims -- Experts -- Punitive Damages -- Concluding Remarks.
"This article is based in part on a presentation of the same title made by the author as part of the 3rd Annual National Summit on Institutional Liability for Sexual Assault and Abuse, 2002 (Toronto: Canadian Institute, 2002)".
The federal government's decision to appeal a British Columbia Court of Appeal ruling that found it completely liable for physical and sexual abuse at the Alberni Indian Residential School is disappointing because it will prolong the uncertainty for those seeking compensation, says Archdeacon Jim Boyles, general secretary of the Anglican Church of Canada's General Synod.
Many of the people seeking compensation for abuse while they attended the school are now elderly while others are unwell and the human approach to dealing with their claims would be to expedite them rather than seek further legal delays, Archdeacon Boyles noted.
These delays could also put at risk the government's own alternative dispute resolution process, Archdeacon Boyles said.
In a unanimous decision released in December , the B.C. Court of Appeal allowed an appeal by the United Church against a previous judgment that assessed liability at 75 per cent against the government and 25 per cent against the church in a case of sexual abuse by a school employee. The B.C. Court of Appeal ruled that the federal court was wholly liable.
The government announced today that it would seek leave to appeal this decision to the Supreme Court of Canada.
In a statement, the federal minister for Indian Residential Schools Resolution and the Attorney General said the B.C. ruling needs to be clarified because it differs from principles on the vicarious liability of non-profit organizations for the abuse of children in their care as enunciated by the Supreme Court of Canada.
In deciding to appeal this ruling, the federal government has also said that until the case is resolved, the agreement it has with the Anglican Church where the government pays 70 per cent of compensation and the church pays 30 per cent, will continue.
The Anglican General Synod and each of the church's 30 dioceses are currently involved in raising money for a $25-million Settlement Fund created by the agreement between the church and the federal government. This fundraising will continue.
Archdeacon Boyles stressed in his statement that the church's legal and moral commitment to the Settlement Fund remains despite anything the courts might do. The church's five-year commitment to raising $25 million for the settlement fund is intact, he said.
As of the end of last year, more than $8-million had been raised and $2.2 million paid to people with proven claims of abuse at residential schools.
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"W.R.B. et. al v. Arthur Henry Plint, The United Church of Canada, Her Majesty the Queen in Right of Canada as represented by The Minister of Indian Affairs and Northern Development et. al  B.C.J. No. 1320, Brenner, J. June 4, 1998 (unreported)."
"In these actions the plaintiffs seek damages for sexual assaults committed against them while students or residents at the Alberni Indian Residential School (AIRS) during various years between 1943 and 1970. In this portion of the proceedings the Court tried the issue of vicarious liability of the Defendants Her Majesty the Queen in Right of Canada (Canada) and/or The United Church of Canada (United Church) for these assaults. Plint was convicted of multiple counts of sexual assault and at the time of this hearing was serving sentences totaling 12 years. There was no contest with respect to the fact that assaults did occur, and the issue of damages for them was to be dealt with at a subsequent hearing" (p. 75). After a detailed consideration of legislation regarding Indian residential schools, the history of AIRS, the 1911 and the 1962 agreements, and a co-operative advancement of the respective interests of the parties that the term joint venture was apt. Accordingly he found that both Canada and the United Church vicariously liable for the acts of Plint" (p. 76).
An Ontario Court of Appeal decision to certify a class of plaintiffs in a lawsuit for abuse at a native residential school "does not change or threaten in any way" the agreement between the Anglican church and the federal government that caps the church's liability at $25 million, says Archdeacon Jim Boyles, General Secretary of the national church.
The decision by the Ontario Court of Appeal allowed lawsuits by former students at the Mohawk School in Brantford, Ont., to proceed as a class action. The former students are suing the Anglican diocese of Huron and the federal government.
In a letter sent to all Anglican bishops earlier this week, Mr. Boyles said that any future findings of liability against the church for the sexual or physical abuse of students at the schools would be shared between the church and the government under the terms of the 2003 agreement.
The agreement says that the church and the government would share in the payment of any awards on a 30/70 per cent basis.
It also requires the church to contribute $25 million over five years to a Settlement Fund out of which the church's share of court-ordered awards would be paid. Once the Settlement Fund is expended, the government will pay all awards.
Mr. Boyles also said that issues of liability for the loss of language and culture by residential schools students would be decided at a future date.
The full text of the General Secretary's letter to Canadian bishops follows:
"You will have read in the media that the Ontario Court of Appeal ruled last week on the Cloud case, which is an application for certification as a class under class action legislation in Ontario. Cloud and others attended the Mohawk School in Brantford, Ontario, in the Diocese of Huron. The court overruled the lower courts and certified the class, which, subject to further appeals, allows the case to proceed as a class action. In allowing the appeal the court redefined the common issues, with the result that the class action is now focused primarily on issues of physical and mental harm, with issues of loss of language and culture claims being much less significant.
The government may decide to seek leave to appeal this decision to the Supreme Court of Canada, which would delay the action for a further period.
Questions have been raised about the possible impact of this decision on the Settlement Agreement between the Federal Government and ourselves. I have consulted with our legal counsel for the General Synod and the Diocese of Huron. This court decision does not change or threaten in any way the March 2003 Settlement Agreement. Since the focus has shifted to claims of physical and sexual abuse, any court awards would be shared on a 70/30 basis between the government and the church, with the church portion being paid from the Settlement Fund. The maximum amount of payment remains at $25M. Once that amount has been paid out, the government is responsible for 100 % of all payments for physical and sexual abuse claims.
The issue of liability for loss of language and culture will be decided at a future date. Although some resolution of these claims may occur in the Cloud case, the issue exists in many other cases too. For example, it is an issue in another class proceeding filed in Ontario, called the Baxter case, where it is sought to certify a national class action on behalf of all students who attended all residential schools throughout Canada, and it is an issue in the test cases which are proceeding though [sic i.e. through] the process established in Alberta. The Settlement Fund does not cover such claims if liability is found. There are however, provisions in Section 6 of the Agreement that provide some protection for the church if liability for language and culture claims is imposed against the church. We continue to believe that such claims are not compensible, and that if they are found to be so, the government bears full responsibility.
We continue to believe that the ADR process as established by the government is an effective way to resolve claims. There are aspects of the process that could be improved, and we have joined with others in pointing these out to the government and in seeking changes.
Through these evolving legal developments we continue to hold high our primary goal as a church, to seek healing for those who have been harmed by their experience in the residential schools. Church representatives have attended a few ADR hearings, as requested by the claimants, not to defend but to offer support and express the church's profound regret that the residential schools system in which it was involved has caused so much damage in the aboriginal communities in Canada.
Archdeacon Jim Boyles
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That the Council of the General Synod receive and refer to the Officers for appropriate action, the following resolution from the Council of the North: That the Prolocutor, request on the Council's behalf, the advice of the Officers of the General Synod with regard to diocesan liabilities and precautions in relations to:
a) Sunday schools and church camps
b) the licensing of lay readers. CARRIED #36-99-11
Article discusses several cases including "B. (W.R.) v. Plint" involving the Alberni Indian Residential administered by the United Church of Canada and "Mowatt v. Clarke" involving the St. George's Indian Residential School in Lytton, B.C., administered by the Anglican Church of Canada. "In Bazley and Jacobi, the Supreme Court of Canada was not prepared to accept the proposition that non-profit organizations should be exempted from the application of vicarious liability. That question now flows into the political arena: McLachlin J. said that `it is for the legislature to consider whether relief should be granted to limit the legal exposure of non-profit organizations to prosecution for sexual abuse'. Part of the theory underpinning the imposition of vicarious liability, that an employer is in a better position to redistribute the costs of the abuse because of its greater assets and the ability to pass on the costs of entrepreneurship to the consumer, loses some of its force in the non-profit sector" (pp. 100-101).
Author is the Vice-Chancellor of the Anglican Diocese of Toronto.