Court decision allows students' children to sue

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Three Ontario Court of Appeal justices have ruled that the children-and perhaps the grandchildren?of former residential school students can sue the federal government for loss of culture.

The 3-0 ruling was handed down March 27. Mr. Justice Jean-Marc Labrosse wrote the court's decision. Madame justices Louise Charron and Eileen Gillese concurred.

It's estimated that 17,000 people attended residential school. The court decision opens up the possibility that all of their descendants can now sue for loss of language, culture and family connections.

Many residential school survivors claim that being raised in institutional settings, even when there was no physical or sexual abuse, meant they did not learn parenting skills. They say they were unable to nurture their children because they were removed from the nurturing influence of their own parents.

Russell Kronick, Q.C. and Joseph Griffiths made the arguments in court on behalf of 56 plaintiffs who attended St. Peter Claver Industrial School for males and St. Joseph School for females, two Roman Catholic residential schools at Spanish, Ont., between 1934 and 1960. They also represented 189 of the plaintiffs' children.

The government had originally succeeded in having the claims thrown out by a lower-court judge, who agreed that it was "plain and obvious" that the government owed no fiduciary duty to individuals who didn't exist at the time.

The appeals court considered that argument and then ruled otherwise. Legal observers all expect the Crown will appeal the decision to the Supreme Court of Canada.

"The Crown submits that the law has always distinguished between an unborn child and a child after birth," Labrosse wrote. "It is the Crown's position that the secondary plaintiffs are asking the court to ignore this distinction and to take a further step in recognizing a duty of care owed to future generations of children not yet conceived."

The appeal court took note of a Supreme Court of Canada decision that the court must look especially closely at cases involving the Crown's relationship with Aboriginal peoples.

"[It] is a very dynamic area of Canadian law. The nature and extent of the particular obligations that may arise out of this relationship are matters that remain largely unsettled in the jurisprudence," the court wrote.

The Crown tried to persuade the court that the claims by descendants of survivors were not fiduciary in nature. The court rejected that argument.

"We do not agree with the Crown's contention that the pleading discloses none of the essential ingredients necessary to found a fiduciary relationship because the claims for breach of fiduciary duty are in effect nothing more than individual claims based on family relationships and not claims as Aboriginal people," the judge wrote.

"As noted earlier, however, the existence of a fiduciary relationship, in and of itself, does not suffice. There must be a particular context that could give rise to the imposition of a fiduciary obligation. In this respect, we agree with the motions judge's conclusion that, with the implementation of the 'residential school policy,' the federal Crown 'assumed a duty to act in a fiduciary capacity with respect to the education of Aboriginal peoples.' However, in the factual context of this case, we do not agree with his further conclusion that it is plain and obvious that the fiduciary duty did not extend to the secondary plaintiffs simply on the basis that they were not yet in existence at the time. This ignores the essence of the secondary plaintiffs' claim. They allege that the very purpose of the Crown's assumption of control over the primary plaintiffs was to strip the Indian children of their culture and identity, thereby removing, as and when they became adults, their ability 'to pass on to succeeding generations the spiritual, cultural and behavioral bases of their people.' Hence, the secondary plaintiffs claim that they were specifically targeted y the governmental policy. They further allege that they were profoundly and adversely affected as a result."

Darcy Merkur, a lawyer with the Toronto law firm Thompson Rogers, works on the national class action lawsuit filed by residential school survivors. He said the decision is welcome news for his clients.

"Ontario's highest court, the Ontario Court of Appeal, has decided that children of residential school survivors may proceed with lawsuits against the government of Canada. Thousands of residential school survivors have sued the government of Canada alleging that they were abused at residential schools. Now children of residential schools who believe that their life has been impacted by their parents' experience at residential school are free to sue as well," he said. "The decision will help the national class action being advanced by a group of law firms. The national class action is on behalf of residential school survivors and their family members and alleges that the government of Canada is responsible for the cultural, emotional, physical and sexual abuse that occurred at the residential schools, including the intergeneration impacts of that experience."