A little-noticed British Columbia court decision could boost the chances of Crees who are involved in a class-action lawsuit against a residential school in Brantford, Ontario.
The ruling will also probably open the floodgates for other class actions by Native people across the country.
The B.C. Court of Appeal recently decided to authorize a class action in the case of a school for deaf children in that province. Although it wasn’t a school for Natives, the deaf kids suffered similar sexual and physical abuse as in the residential schools.
The ruling could be an important precedent for a class-action lawsuit that has been requested by about 1,000 former students of the Mohawk Institute Residential School, in Brantford.
The former students, who include some Crees from Quebec and Ontario, are seeking $2.3 billion in compensation for abuse.
“Potentially, it’s very helpful. They’d look at something like that (ruling),” said Russell Raikes, a London, Ontario lawyer who represents the Mohawk Institute students.
The court is expected to decide some time this year whether the class action can proceed. The final amount of compensation requested will also change as more former students come forward.
The B.C. ruling has already inspired three new class actions that have been requested in the province. If the court authorizes them to go ahead – and that’s still a big if – they would cover all 16 residential schools that operated in the province.
One lawsuit is targeted at each of the churches involved – United, Catholic and Anglican.
It’s unexplored legal territory because, normally, class actions are authorized in cases where all the claimants were affected by pretty much the same thing, like a toaster that blew up.
In residential schools, there may have been different types of abuse over different periods of time, and different abusers.
The advantage of class actions is they are much cheaper and faster than individual court action for each abused student.
“The cost goes down significantly per student with a class-action lawsuit because you don’t have to prove the same thing for each plaintiff,” said Raikes.
“For example, the loss of culture and language – once you show there was an attempt to eradicate the culture and language, you don’t have to prove that (for every person).”
Raikes is also working on two other potential class actions. One involves Crees and others who attended three Anglican-run schools in northern Ontario, including Shingwauk Residential School in Sault Ste. Marie and another school in a Cree community.
The other case concerns the United Church’s Mount Elgin Residential School in southwestern Ontario.
Raikes is still investigating whether these two cases will be filed as class actions.
Class actions aren’t, however, always the best way to go for residential school survivors.
One disadvantage is that all former students may be automatically included in a class action, depending on how the case is framed.
They have the right to opt out, but if they don’t for some reason, they can be forced to testify.
“It forces everyone to the starting line. The concern is people may not be ready,” said David Paterson, a Vancouver lawyer involved in two residential-school lawsuits in B.C.
“If you don’t give evidence, you won’t get any damages and you can’t file another case later.”
Paterson filed the landmark Port Alberni residential school lawsuit in 1995, the first-ever in the country.
That lawsuit set a big precedent in 1998 when the court ruled for the first time that the United Church and the federal government were liable for abuse at a residential school.
The court is now determining the amount of compensation.
The Port Alberni case involves only 30 people and is not a class action. For bigger cases, a class action is the best route, Paterson said.
The federal government, perhaps not surprisingly, doesn’t agree.
“I don’t think this is the best way to handle these claims,” said James Ward, a lawyer in the federal Justice Department’s office in Vancouver.
“I really think the government is taking a fair look at these cases. If a claim looks to be valid, we settle it,” he said.
Ward said class-action lawsuits will complicate the federal government’s program of delivering counselling to residential-school plaintiffs.
The plaintiffs have a right to the counselling as part of the basic health-care rights of First Nations. They often need counselling because of how traumatic it is to get up in court and talk about the abuse they went through. Some former students have even committed suicide during the court proceedings.
Ward said a class action will make it hard to reach everyone who needs counselling: “How do we provide the same sort of support to these people?”