Using the Courts
to Address
Historical
Wrongs
John McKiggan: Arnold Pizzo McKiggan
A Brief History of
Canada’s Indian
Residential
School Litigation
John McKiggan: Arnold Pizzo McKiggan
2
Overview
Cultural Assimilation
“ We confess that, with the encouragement
and assistance of the Government
of Canada, The Presbyterian Church in
Canada agreed to take the children of
Aboriginal peoples from their homes and
place them in Residential Schools.”
Presbyterian Apology 1998
4
Apology continued…
“ In these schools, children were
deprived of their traditional ways,
which were replaced with EuroCanadian customs that were helpful
in the process of assimilation.”
5
Apology continued…
“ In a setting of obedience and
acquiescence there was opportunity
for sexual abuse and some were so
abused. The effect of all of this for
Aboriginal peoples, was the loss of
cultural identity and loss of a secure
sense of self.”
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Individual Lawsuits

1995 fewer than 12 claims filed

By 2005 over 12,000 claims filed

90% allege physical abuse

60% allege sexual abuse

Canada denies liability: Pleads
limitation defences
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Individual Lawsuits
Blackwater claim filed 1996
8
Blackwater

B.C. Trial decision: Canada 75% Churches
25%

B.C. Court of Appeal: Canada 100%
responsible (vicarious liability)

Supreme Court of Canada: Affirms 75/25
split
9
 Individual
Lawsuits
 Blackwater
 Royal
Commission on
Aboriginal People (RCAP ) 1996
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 Individual
Lawsuits
 Blackwater
 R.C.A.P.
 Canada’s
“Secret” strategy
memo
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“Secret” strategy memo
…an apology…may imply
legal responsibility for the
conduct in question.
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“Secret” strategy memo
… it should be labeled as an
‘Acknowledgement and
expression of Regret” rather
than an ”Apology” per se.
13
“Secret” strategy memo
A full scale public inquiry
on past child abuse in
residential schools could
entail considerable risks…
14
“Secret” strategy memo
…the publicity surrounding
an inquiry could increase
demands for compensation,
and the risk of additional
legal action against the
government.
15
“Secret” strategy memo
…there is a general
disinclination by persons
who have suffered abuse to
testify on such a personal
and painful matter in a
public and adversarial
forum.
16
“Secret” strategy memo
At least until an adverse
judicial decision is made, a
litigation approach may
well keep the number of
claimants down to a
minimum.
17
“Secret” strategy memo
The issue has been raised as
to the possibility of a great
number of former residential
school students launching a
massive class action against
the Crown…it is unlikely that
such an application would be
successful.
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 Individual
Litigation
 Blackwater
 R.C.A.P.
 “Secret”
strategy memo
 Bernard
Class Action
(Shubenacadie School) 1996
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Bernard Class Action

Nora Bernard files Class Action for all
former Shubenacadie school students

Claims loss of language and culture for all
students

Canada unsuccessfully attempts to strike
claim as class action

Bernard claim joins Baxter National Class
Action 2002
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 Individual
Lawsuits
 Blackwater
 R.C.A.P.
 “Secret”
strategy memo
 Bernard
Class Action
 Statement
of Reconciliation
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Statement of Reconciliation
“ The Government of Canada today
formally expresses to all
Aboriginal people in Canada our
profound regret for past actions of
the federal government which
have contributed to these difficult
pages in the history of our
relationship together. ”
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 Individual
Lawsuits
 Blackwater
 R.C.A.P.
 “Secret”
strategy memo
 Bernard
Class Action
 “Statement
of Reconciliation”
 Cloud
Class Action (Mohawk
School) 1998
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Cloud Class Action

Claim on behalf of all survivors of Mohawk
Institute and their families

Canada and Church oppose certification: 2001

Ontario Court of Appeal certifies Cloud Class
Action: 2004

Canada’s leave to appeal to Supreme Court of
Canada denied: 2005
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 Individual
Lawsuits
 Blackwater
 R.C.A.P.
 “Secret”
strategy memo
 Bernard
Class Action
 “Statement
 Cloud
of Reconciliation”
Class Action
 Baxter
National Class Action 2000
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Baxter National Class Action

Claim for all students who attended a
Residential School in Canada since 1920

Claims on behalf of parents and children
of survivors

Loss of language and culture, emotional,
psychological, physical and sexual abuse

Canada files 81 third party claims against
religious organizations - significant delay
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
Individual Lawsuits

Blackwater

R.C.A.P.

“Secret” strategy memo

Bernard Class Action

“Statement of Reconciliation”

Cloud Class Action

Baxter National Class Action

Canada starts A.D.R. projects: 2003
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A.D.R. Projects
Government study concludes:
“Arguments against certification will be
strengthened by the establishment of an A.D.R.
model that is a ‘preferable procedure’ to class
proceedings. In this regard, creating a model
that is more ‘preferable’ to class proceedings
should be an overarching consideration in the
building of the model.”
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Court Critical of ADR
“It is a system unilaterally created by one of the
respondents in this action and could be
unilaterally dismantled without the consent of
the appellants. It deals only with physical and
sexual abuse. It caps the amount of possible
recovery…it does not compare favourably with a
common trial.”
Cloud: Ontario Court of Appeal
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
Individual Lawsuits

Blackwater

R.C.A.P.

“Secret” strategy memo

Bernard Class Action

“Statement of Reconciliation”

Cloud Class Action

Baxter National Class Action

A.D.R. projects
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Lawsuits Continue
12000
ADR Projects
10000
Baxter
8000
Cloud
6000
4000
Canada’s
“Apology”
Bernard
2000
0
1995
1996
1997
1998
1999
2000
2001
2002
2003 2004
2005
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May 30, 2005
 Canada
appoints federal negotiator
 Former
Supreme Court of Canada
Judge, Honourable Frank
Iacobucci
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November 2005
 Canada
 Churches
 Counsel
for Residential School
Survivors
 Assembly of First Nations
 Agreement
in Principle
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December 2006
National Class Action settlement
receives certification and
approval
34
Settlement Highlights
35
Common Experience Payment

80,000 potential claimants

2 Billion Dollars: Compensation for
Residential School students living on May 30,
2005

Every former student receives $10,000 plus
additional $3,000 for each year of residence

Average payment $24,000.00
36
Independent Assessment
Process
Compensation for:

Physical abuse

Sexual abuse

Serious psychological abuse

Further payments could total over 2 Billion
Dollars
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Truth and Reconciliation

$60 Million for Truth and Reconciliation
Commission

Promote education and awareness of Indian
Residential School system and its legacy

Provide students, families and communities
opportunity to share Residential School
experiences in safe and culturallyappropriate environment

Establish a research centre for access to
records collected through the work of the
Commission
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Commemoration
$20 Million for events and memorials to
commemorate the legacy of Indian
Residential Schools
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Healing
$125 Million to Aboriginal
Healing Foundation, to
support healing programs and
initiatives
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The largest class
action
settlement in
Canadian history
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The largest
historical redress
settlement in the
world?
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Thank you for
listening!
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