Are class-action lawsuits the best way for survivors of residential schools to get justice?
That question is going to be on many lips in coming months as the first class-action cases start winding their way through the courts.
The federal government and lawyers for Native people are already sparring about whether class actions will help or hurt residential-school survivors.
At stake are billions of dollars in compensation payments.
The supporters of class actions say they are faster and cheaper than filing hundreds or thousands of individual lawsuits.
They predict that class actions will start blossoming across the country after a recent decision of the British Columbia Court of Appeal, known as the Jericho case.
The B.C. court decided to authorize a class action in the case of a school where deaf children were sexually and physically abused.
After the Jericho decision, three new class actions were quickly filed in B.C. covering all 16 residential schools in the province.
That has federal officials alarmed.
James Ward, a lawyer for the federal Justice Department in Vancouver, said class actions aren’t the right way to go for residential-school survivors.
“I think they’re going to have a harder case proving we’re liable,” he said. “It just seems a bit strange to be taking the harder route on this.”
Ward said the big question in the coming court battles will be whether the school was directly responsible for abuse perpetrated by its employees, or merely indirectly responsible. In other words, how much did school officials know about the abuse?
The answer to that question could make a huge difference in how class actions are decided and how much compensation is awarded.
Ward said the problem is courts will likely require proof of direct responsibility in class-action cases. This is harder to establish, he said.
In the Jericho ruling, the court said the deaf kids have to prove the school knew the abuse was going on and knew the students were at risk, according to Ward. In other words, they have to prove the school was directly responsible for the abuse.
However, in residential-school cases so far, courts have said that schools were only indirectly or “vicariously” responsible for the actions of employees, according to Ward.
“That’s the easy way for plaintiffs to prove liability,” he said.
Whether Ward is right or not will be clearer when the first residential-school class action comes before the courts for authorization later this year.
Russell Raikes is involved in that case, and he thinks Ward is wrong. “You’re responsible for the actions of an employee,” said Raikes, a London, Ontario lawyer who represents 1,000 former students of the Mohawk Institute Residential School in Brantford, Ont. Some of the students are Crees from Quebec and Ontario.
Raikes said proving direct responsibility is not necessarily harder than indirect responsibility. In the Mohawk Institute case, he said the students are alleging that the school was both directly and indirectly responsible for the abuse.
“With all due respect to counsel on the other side, it would be very surprising to me to hear you can’t have vicarious liability in a class action,” he said.