This article was originally published in Maclean's Magazine on June 26, 2000
Churches Face Native Litigation
It was not your standard sermon. When Rev. Chris Rushton spoke from the pulpit at St. Joseph's Roman Catholic Church in downtown Ottawa three months ago, his topic was native residential schools and the role of Canada's Oblate orders in running them. Most congregants were aware that such schools had existed - in a long-ago time, in some faraway place. But suddenly Rushton's message hit close to home. After outlining residential-school litigation against his own order, the Oblates of St. Peter's Province, Rushton said that St. Joseph's - a city landmark that also runs a soup kitchen and a women's centre - was among the Oblate-owned assets that were vulnerable should settlements force the order to start liquidating assets. "I can understand them sitting in the pews there and saying 'Oh my gosh,' " said Rushton, his order's provincial superior. "St. Joe's would be the last asset to go. But does anybody really want to it be sold? Lives for 150 years have been connected to this place."
Canada's largest Christian churches - Catholic, United, Anglican and Presbyterian - are being swamped by thousands of residential-school lawsuits. For more than a century, these religious denominations ran and managed the residential schools for the federal government, which paid for them. In many cases, the suits now threatening the economic viability of the churches have been filed by former students. But an increasing number have been launched by the federal government, which has started so-called third-partying - taking legal action to make the churches co-defendants in residential-school suits filed against Ottawa. That, on top of the lawsuits already facing the churches, has created a situation "unprecedented in Canadian society," says Cynthia Gunn, the United Church's in-house lawyer, who mainly handles residential-school lawsuits. "In terms of the volume and the number of claims coming forward, no one's seen anything like this before."
The churches are reeling. As of May 1, 6,324 individual plaintiffs had filed civil suits against Ottawa and the churches. According to the federal government, that number could double. Church officials argue that just defending these suits - let alone settling them - will almost certainly bankrupt some parishes, religious orders and dioceses. Recently, officials of the Anglican Church, Canada's third-largest religious organization with 2.2-million members, announced that the general synod - the church's national head office in Toronto - will be bankrupted by next year should the legal battles continue. Those settlements could reach into the billions; the general synod, which is fielding about 350 suits by 1,600 plaintiffs, has assets totalling about $10 million. "It's out of control," says Jim Cruickshank, the Anglican bishop of the Cariboo diocese in the B.C. interior, which has run through its own cash reserves and is all but legally bankrupt. How far out of control? In an ongoing case involving the St. George's school in Lytton, B.C., Cruickshank says his diocese can no longer afford to send a lawyer to court every day.
The United Church, which has assets of about $4 billion, has yet to use the "b-word," says Brian Thorpe, but the organization's senior adviser for residential-school issues admits that the costs of mounting legal defences have become staggering. "Settlements are one thing," he said, "but it's the cost of litigation that is killing us." Thorpe, who began his Toronto-based job two months ago, says the United Church now has nine lawyers working on lawsuits from 450 plaintiffs that have been filed against the institution.
All that legal brainpower hasn't come cheap. Last year alone, the United Church spent $2.3 million in legal costs. For all that, only one case has gone to court. That trial, now in its third laborious year, involves the sexual abuse of 30 students at the Port Alberni Indian Residential School on Vancouver Island. The slow pace has proved a difficult wait for some of the plaintiffs. Recently, 22 of them settled out of court with the United Church and the federal government. This came after a British Columbia judge ruled in 1998 that both Ottawa and the church were "vicariously liable" for abuse in the school.
It was a stunning defeat for the churches. Last August, that was compounded when another B.C. Supreme Court judge ruled that the Anglican general synod and the Cariboo diocese were liable for 60 per cent of an undisclosed amount of damages owed to a student who was sexually abused at the St. George's school. The federal government was apportioned the remaining 40 per cent. The settlement was paid, but the synod is now appealing, arguing Ottawa should pay a larger percentage. "We were there, we participated, but there's no question it was a federal system," says Thorpe of the residential schools. "It was public policy that created them."
In his spartan Regina office, the Right Rev. Duncan Wallace, Anglican bishop of the Saskatchewan diocese of Qu'Appelle, is on the front lines of residential-school litigation. When asked how many lawsuits there are against his diocese, he smiles and says they are so numerous the lawyer doesn't bother sending him full copies of the statements of claim anymore. But he acknowledges there are up to 350 lawsuits, and says the justice department is behind most of them, bringing third-party actions against the diocese. "Once you get into those numbers it's all meaningless," Wallace says. "We only have funds to deal with the first 50 or so." Wallace says the suits have cost his already teetering diocese $250,000 over the past two years - "that's without a single settlement" - and will probably force it into bankruptcy (his diocese's annual operating budget is only $650,000). And he fears that church donations could start dropping off if people think their contributions are going into a pit of litigation.
The churches have formed an alliance to extricate themselves from the morass of lawsuits - with Ottawa's help. One option would be for the government to pay the churches' legal costs. Under another plan now under discussion with Ottawa, the churches would contribute a predetermined amount of money to a larger federal fund. It would then be distributed to former residential-schools students. But getting Ottawa on side is only part of the battle. Convincing natives still embittered by what they endured in residential schools to go along with the scheme may prove to be an even greater challenge.
Maclean's June 26, 2000