Residential schools position under attack

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The federal government's attempts to limit its legal liability for the damage inflicted on Aboriginal people by the residential school system will be in the bull's eye if a class action lawsuit is certified and allowed to proceed.

Ontario law provides an opening to expand the realm of legal liability into areas where the federal government has refused to go so far-loss of language and culture, harm experienced by parents who were deprived of their children, and loss of education.

Three lawyers from the Toronto law firm Thomson Rogers are working with a consortium of other lawyers from across the country to get the class action suit before the courts. Lawyers representing about 4,000 of the current 12,000 plaintiffs have joined the consortium so far.

Charles Baxter, 52, is the representative plaintiff in the legal action. He is a member of the Constance Lake First Nation (Ontario) band council. He was nine years old in 1959 when a plane carrying Indian Affairs officials and RCMP officers plucked him off his family's trapline to take him away to residential school. He was 32 years old before he saw home again.

As the representative plaintiff, Baxter is exposing himself to the hardships of the litigation process-re-living the sexual and physical abuse before an open court and being cross-examined by government lawyers-so that others will not have to. He was asked why he decided to take on that difficult role.

"For those other people who are still out there who cannot come forward. Maybe they'll have courage knowing someone is out there starting this movement, this complaint, to go forward," he said.

A total of 66 people in the Constance Lake community formed the first group. They sought legal advice from a lawyer in Thunder Bay who contacted the Toronto firm.

"We realized that being silent was not the way to approach," Baxter said. "The goal of our group in Constance Lake First Nation was that if we went forward it would not only be for us or for myself, it would be for all survivors that are still out there in the isolated areas that do not have access to legal resources. So someone has to start the process of complaint. Our group feels that it's not a story, it's an event that took place across Canada. They destroyed our childhood. It did damage to the relationship of the children and the parents."

Estimates of the amount of damages that will be claimed by plaintiffs in the lawsuit approach $12 billion. The legal proceeding is not against the churches, but solely against the government.

Two of the Thomson Rogers lawyers, managing partner Alan Farrer and Darcy Merkur, met with Windspeaker in their Bay St. offices on Dec. 9.

"You've got to understand how brave it is for Charles Baxter to stand up-in a room, on television or radio and knowing he's going to have to do it in a courtroom-and re-live these indignities that he was subjected to. He's a proud man. He's a big guy. He's a tough guy. And now he has to explain what happened to him when he was a youngster. It is not easy," said Farrer.

The federal government estimates that more than 90,000 survivors are still living. Only 12,000 have advanced claims. If the government's area of liability is increased beyond physical and sexual assault, most of the 90,000 survivors will have some sort of claim for compensation.

"Our position clearly is that the Crown, essentially, was the parents," Farrer said. "They took over the role of parents and there can't be any more important fiduciary duty than the role of parent. We believe that the Crown recognizes that in those instances where it severely sexually abused or severely physically abused students they have been prepared to recognize that there might be some liability. They've still been very slow in even resolving those cases. But there's a whole other aspect to this. And that's the kidnapping, the confinement, the mere fact of being subjected to that experience, which went beyond simply being there but deprivedthem of the opportunity to speak the language, depriving them of the opportunity to learn more about their culture, punishing them for even trying to do that. All of these things have to be advanced. We've learned from talking to survivors that these things are vitally important to them. If the government wants to pigeonhole this and say this is just a sex abuse case-which is heinous to start with-I think they're missing the boat because the survivors understand that it was more than that. Our claim seeks redress for everything."

It's expected the case for certification of the class action will make it to court in the summer or fall of 2003. A judge must be persuaded that all the plaintiffs suffered similar enough experiences that they can all be addressed in one legal action.

The Ontario Court asked Thomson Rogers to notify all the law firms representing survivors. That has been done and now the lawyers are waiting to hear from their colleagues.

"We are proposing one class action. We're not seeking to exclude anyone. The way Ontario legislation works, if you don't want to participate you have the ability to opt out and say 'I will pursue this on my own.' But otherwise, Ontario is prepared to take control of the claim and to advance it on behalf of all the survivors and all of their family members," said Farrer.

Tony Merchant of Regina's Merchant Law Group said his firm will not be joining.

He believes that, since most of the schools were in Western Canada, it makes sense to pursue legal action in Western Canada. He said courts in the Western provinces are already settling cases and the Ontario courts will take time to become comfortable with the claims. Merchant also said class action lawsuits take control away from the individual plaintiffs.

The opt-out aspect of class action law in Ontario could also spell trouble for future litigants, said Tony Merchant.

"Since you have to know about it to opt out, it could be settled before you even become aware you ha a claim," he said. "If you didn't claim your money at the time the settlement was reached, you'll be out of luck."

The fees lawyers will earn are lower per client in class actions. Whereas lawyers representing one client can charge up to 40 per cent of the damage award if a case goes to trial, in class actions the percentage has averaged between 10 and 20.

"When anyone asks about fees, I always point out that the beauty of the class action in terms of protecting the public from contingency fee arrangements is that the court approves any legal fees. The court takes control of the process," said Darcy Merkur.

Many survivors claim that, beyond being forced to abandon their culture and language and learn Christianity and European culture, they were not educated at the schools. The loss of education is a key aspect of the litigation.

"That is an aspect of the confinement claim. Someone like Charles who went to school and doesn't recall being in the classroom for the first few years, recalls working, recalls being in the barns, recalls being in the fields, that's a universally recalled experience there. They were working. We say the government had not only a fiduciary duty to educate them but a legal duty to educate them and they had an obligation under the treaties to educate them. And we say they failed in all those duties," said Allan Farrer.

"The cost per student was significantly lower than it was for non-Aboriginal students at the end of the day. So from that perspective we tell the government 'Bump up what you should have been paying back in the 1920s and pay this old deficiency and you'll be a lot closer,' said Merkur.

Charles Baxter said the people in his community decided it was time to find a lawyer when they saw that a government-funded institution, the Aboriginal Healing Foundation, staffed by Native people was staying between the lines that were arbitrarily set down by the federal government.

"I think what cuts this root for the survivors was the heaing foundation, when Jane Stewart made an apology with that $350 million. This is what triggered the survivors is they had no say on that apology dollar funding. They were ticked off where they could not say how to use those dollars. The government dictated the format and established the [Aboriginal Healing Foundation] to run the funds and we had to meet their criteria and their format," Baxter said.