On December 10, 2003, a five-justice panel of the BC Court of Appeal held in Blackwater et al v. Plint, that the United Church of Canada is not liable to plaintiffs who endured sexual abuse at residential schools. Rather, the court held that the Government of Canada alone is responsible to pay to the plaintiffs 100 per cent of their damages based on Canada’s vicarious liability for the acts of its employee, the dormitory supervisor who abused the children left in his care. The case involved the Alberni Indian Residential School, which was associated with the United Church of Canada. Other religious denominations also associated themselves with the operation of these schools, including the Roman Catholic Church, the Anglican Church and the Presbyterian Church.
In regards to the government alone being liable to the plaintiffs, the court considered it significant that Canada had previously argued in the context of labour proceedings in the 1960s that the individuals employed at residential schools were properly characterized as employees of the Crown, as opposed to employees of the Church. The court also considered that the only aspect of the operation of the school over which the United Church had unfettered discretion was the provision of Christian education to the children. Other aspects of the school’s operations were effectively controlled by the government. The court applied the policy considerations governing the application of vicarious liability as established by the Supreme Court of Canada in Bazley v. Curry, noting that the character of the United Church as a non-profit charitable organization is one factor that weighs in favour of not imposing vicarious liability upon it in circumstances where, as in Blackwater, the injured party can obtain full recovery from the government.
The Court of Appeal declined to deal with the issues raised in the appeal concerning the argument that the government was liable to the plaintiffs based on the notion of non-delegable duty, in addition to vicarious liability. The court held that it was unnecessary to render a decision on this issue in order to decide the appeals. In dealing with liability issues, the court upheld the decision of the trial judge dismissing the plaintiffs’ claim in negligence and for breach of fiduciary duty against both the government and the United Church.
On the issue of damages, the court upheld the awards made by the trial judge. The court agreed that the plaintiffs were not entitled to damages for past income loss. However, the court awarded $20,000 to one of the five plaintiffs involved in the Blackwater appeal, for lost future earning capacity.
The court was divided on the issue of two plaintiffs’ appeals with respect to the awards for non-pecuniary and aggravated damages. The majority of the court determined that with respect to two plaintiffs, the awards for non-pecuniary and aggravated damages should properly be increased from $20,000 and $15,000, awarded by the trial judge, to $35,000 and $25,000 respectively. The court declined to interfere with the trial judge’s awards of non-pecuniary and aggravated damages with respect to the other four plaintiffs involved in the Blackwater appeal.
The United Church was represented by Christopher Hinkson, QC, and Bernard Buettner of Harper Grey Easton. The plaintiffs, except DS, were represented by Peter Grant, Dianne Soroka and Allan Early of Hutchins Soroka & Grant; and by David Patterson of David Patterson Law Corp. The Government of Canada’s legal team was led by Mitchell Taylor, counsel, and included Marjan Double and Lisa Riddle, counsel, Department of Justice. Nuu-Chah-Nulth Tribal Council, the intervenor, was represented by Hugh Braker, QC, and Robert Freedman of Braker & Company.