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Miller, Jim --- "The Alberni Residential School Case: Blackwater v Plint" [2001] IndigLawB 73; (2001) 5(12) Indigenous Law Bulletin 20

The Alberni Residential School Case:

Blackwater v Plint

2001 BCSC 997
Supreme Court of British Columbia, Canada
Brenner CJ
10 July 2001
http://www.courts.gov.bc.ca/jdb-txt/SC/01/09/2001BCSC0997.htm

by Jim Miller

On 10 July 2001 Chief Justice Brenner of the Supreme Court of British Columbia handed down judgment in Blackwater v Plint (‘the Alberni case’). This Native residential school abuse case, which in its final phase involved only seven plaintiffs claiming CAD$5 million, had been initiated by 22 former students of the Alberni Indian Residential School (‘AIRS’). Willie Blackwater, for example, was no longer involved in the case that bore his name when the judgement was handed down. Not only was the case memorable for the gravity of its issues but also its length: there had been 13 days of hearings in 1998, 30 in 1999, and 49 in 2000.

What are Residential Schools?

The Alberni case was a noxious product of Canada's residential schools for indigenous people, in particular for Indians (First Nations) and Inuit. Although Christian church groups had experimented with boarding schools in the French colonial period (1608-1763) and during Britain's colonial rule to 1867, the modern system of residential schools emerged in the 1880s. To facilitate its policy of assimilation, the Government of Canada (‘the Government’) undertook a program of forcibly removing indigenous children from their homes and placing them in residential schools. Government prescribed the curriculum, appointed or approved the appointment of staff, supplied the finance and, in theory at least, provided inspection and general oversight. The churches supplied the principal and much of the staff, provided religious instruction and contributed to the costs of operation. Most were run by the Roman Catholics, about one-third by the Church of England and the remainder by the United Church of Canada (‘the United Church’). (Methodists and most Presbyterians joined with Congregationalists in 1925 to form the United Church of Canada, the country's largest Protestant denomination.)

The institutions operated on a half-day system that combined half a day of classroom instruction with a half-day of supposedly instructive work in the fields, shops, kitchens or laundry of the institution. In reality, the half-day system often led to exploitation of student labour to subsidise the schools and interfered with academic learning. Overwork, excessive proselytisation, coercive cultural assimilation, neglect, and physical and sexual abuse provoked opposition among Native communities. This opposition combined with government and missionary disillusionment with the schools led to a decision to discontinue residential schools in 1969.

Residential Schools Litigation

Litigation over residential school abuse began in the late 1990s and quickly mushroomed.

Fundamentally, the legal actions were rooted in the deficiencies of the residential schools, particularly in respect to inferior pedagogy, overwork of students, poor food and other forms of care, and coercive assimilation measures. Most claimants sought damages for physical abuse and loss of culture, particularly language, with some also claiming for sexual abuse.

Government underfunding had often led to the hiring of poorly qualified staff, and government neglect of its duty to oversee the schools had contributed to the hiring and retention of workers who abused students. Although claimants generally sought compensation from the Government, the Government routinely cross-sued the relevant Christian denomination. By 2000 this tactic, referred to as the Government's ‘third-partying’ a church, threatened to bankrupt portions of the churches. By early 2001 some 8500 former students were engaged in litigation, the financial liability for which might well exceed CAD$1 billion.

Background to the Alberni Case

The Alberni case was launched by former students of AIRS, which had been located near the town of Alberni on Vancouver Island, British Columbia. Opened in 1891 by the Presbyterian Church and administered by the United Church post-1925, AIRS was largely financed by the Government and operated on a day-to-day basis by the Church. It became notorious in the 1990s as the site where one especially vicious sexual predator had abused students. Arthur Plint, who worked as a boys’ dormitory supervisor on two extended occasions between 1948 and 1968, was convicted and is now serving an eleven-year term for assaults on male students. Plint was named as a respondent in the Alberni case, along with a number of former United Church officers. The principal respondents, however, were the Government and the United Church.

The Issues

The critical issues in the case included:

The Decision

Chief Justice Brenner held that the Government and the United Church owed a duty of care to the plaintiffs and were vicariously liable for the actions of Arthur Plint. However, he dismissed claims of negligence against the United Church and the Government on the grounds that there was no evidence that either had actual knowledge of the sexual assaults. He also held that neither had breached their fiduciary duty to the plaintiffs because the necessary elements to a breach of fiduciary cause of action - being intentionally disloyal or acting dishonestly to the plaintiffs - were not made out.

On the time limit question, Chief Justice Brenner ruled that all claims except those based on sexual assault were time-barred, thus dismissing the claims for cultural loss and physical abuse. He upheld six of the seven claims relating to sexual abuse and awarded damages according to the frequency and severity of the abuse. One claimant, the sole woman among the seven and the only claimant whose allegations did not focus on Plint, was found not to have made a convincing case. The remaining six awards ranged from a high of CAD$145 000 for a former student who had been subjected to ‘anal and oral rapes [that] were extremely violent and brutal and were accompanied by threats’[1] and a low of CAD$10 000 for a student involved in ‘two instances where Plint took his hand and placed it on Plint’s genital area while both were fully clothed. There were additional similar assaults by Plint.’[2] This litigant had ‘not proved that any of the psychological difficulties he has experienced in his life after leaving AIRS were likely caused by the incidents he described.’[3] The other awards were for $125 000, $85 000, $20 000 and $15 000, bringing the total to CAD$400 000.

In apportioning liability, the judge heartened the churches by ruling that the Government should shoulder 75 per cent of the responsibility and the United Church only 25 per cent.

Negotiations post-Alberni Case

By the time the Alberni case was handed down the Government and the churches involved in residential schooling were engaged in talks intended to divide costs of blanket settlements of the large body of claims. Opinion polls indicate that the Canadian public supports a division of costs between government and churches, although at a level less favourable to the churches than Chief Justice Brenner’s apportionment of liability in the Alberni case. In spite of this case, the residential school abuse litigation file is still open, expanding and horribly complex.

J.R. (Jim) Miller, F.R.S.C., is Canada Research Chair and Professor of History at the University of Saskatchewan.

[1] Para 532.

[2] Para 766.

[3] Ibid.


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