Documentation:Torts/Negligence Institutional abuse

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TORT LAW
CASEBOOK
Introduction
Dignitary Torts
Defamation • Discrimination • Harassment • Intentional infliction of mental suffering • Invasion of privacy • Trespass to the person
Property Torts
Interference with goods • Interference with land • Non-natural use of land • Private nuisance • Public nuisance
Negligence Tort
Duty of care • Breach of duty • Damage • Causation • Remoteness
Negligence Categories
Employment • Environmental pollution • Harmful products • Hosting patrons and guests • Infliction of mental injury • Misrepresentation • Occupation of premises • Professional services • Public authorities • Pure economic loss • Relational economic loss • Rescuers • Shoddy goods or structures • Treatment of indigenous children • Unborn children
Dishonesty & Abuse of Position Torts
Abuse of process • Breach of confidence • Conspiracy • Fraud • Inducing breach of contract • Injurious falsehood • Intimidation • Malicious prosecution • Misfeasance in public office • Passing off • Spoliation • Unlawful interference with economic interests
Strict Liability
Keeping dangerous animals • Non-natural use of land • Ultrahazardous activities • Vicarious liability
Defences
Apportionment of liability • Consent • Defamation defences • Defence of property • Denials • Excuses • Illegality • Legal authority • Limitation • Necessity • Self-defence
Remedies
Apologies • Damages • Injunctions • Insurance • Legal costs • Mitigation • Proprietary
Tort Law & Legal Systems
Charter values • Class actions • Concurrent actions • Constitutional torts • Indigenous dispute resolution • No-fault compensation schemes
Tort Theory
Instrumental theories • Constructive theories • Critical theories • Reflexive theories
Study Resources
1L strategy • Answer exercises • Quizzes • Beswick's course site • Opening Up Tort Law Project
Index
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Negligent treatment of indigenous children
Throughout Canada's history, Indigenous children have been subjected to institutional abuse designed to erase them of their culture. For example, the residential school system and the Sixties Scoop were large-scale efforts premised on the goal of assimilation.[1][2] Because of these policies, Indigenous children faced gross mistreatment, the effects of which continue to be felt generations later. Many lawsuits have been filed as result. While tort litigation affords opportunities for civil redress, it also presents risks and obstacles that can make recovery difficult to achieve.[3]

Institutional abuse of indigenous children

Residential schools

Residential Schools Podcast Series
External view of Kamloops Indian Residential School taken at a distance.
Kamloops Indian Residential School.
In a three-part podcast series, podcast host Shaneen Robinson-Desjarlais and her guests discuss the experiences of First Nations, Metis, and Inuit youth at residential schools.[4]

Canadian residential schools were government-sponsored religious institutions, created by churches and the Canadian government to educate and assimilate Indigenous youth into Euro-Canadian society at the expense of their Indigenous culture.[1] The first school was set up in 1831 and the last did not close until 1996.[1] Throughout that time period, over 130 schools operated, approximately 150,000 children were made to attend, and an estimated 6,000 children died at school (though the exact number is difficult to pinpoint due to poor record-keeping).[1][5]

Many students suffered from physical and/or sexual abuse from staff while attending residential schools.[1] They were excessively punished, at times even beaten, chained, or confined.[1] Allegations of sexual abuse were met with little response from the government and church officials, and perpetrators rarely faced consequences beyond termination of employment.[1] Because schools were poorly funded, students were also malnourished and vulnerable to diseases such as tuberculosis and influenza.[1]

The residential school system has caused lasting impacts on Indigenous communities, including lower health outcomes, suicidal ideation, and other mental health difficulties spanning across generations.[6]

The Canadian government has taken some steps toward reconciliation, such as compensation packages for survivors, public apologies from former prime minister Stephen Harper and prime minister Justin Trudeau, and the establishment of the National Day for Truth and Reconciliation as a national holiday in Canada.[1] Nonetheless, further steps are necessary to address the harmful legacy of the residential school system.[7]

Sixties Scoop

The Sixties Scoop
In this episode of the Breezy Breakfast Hour Radio, Sixties Scoop survivor Mike O'dah ziibing Ashkewe talks about his experience as an adoptee.[8]

The "Sixties Scoop" refers to the systemic removal of Indigenous youth from their homes during the 1960s.[2] Children were apprehended from their families by child welfare workers, usually without consent from their parents or communities, and then adopted into non-Indigenous families across Canada and the United States.[2][9] This effort was a reflection of Canada's paternalistic views toward Indigenous peoples and was undertaken for the erasure of Indigenous culture.[2] The suppression of their identities and abusive conditions often led adoptees to experience psychological and emotional struggles, including low self-esteem, shame, loneliness, and confusion.[9][2] As a result of the Sixties Scoop, Indigenous children also became severely overrepresented in the child welfare system, and this overrepresentation continues to persist today.[9]

Public authority liability for institutional abuse

Direct liability in negligence

To establish direct liability for negligence, a plaintiff must prove a duty of care, a breach of said duty, damage, and causation in fact and law.[10]

In Blackwater v. Plint, former attendees of Alberni Indian Residential School ("AIRS") brought a claim for the sexual abuse they suffered at the hands of their dormitory supervisor, Plint.[11] The plaintiffs also alleged that Canada as a public authority had been negligent in its failure to take adequate steps to ensure students' safety from sexual predators.[12] Following a trial, the British Columbia Supreme Court found that there was sufficient proximity between Canada and the plaintiffs to make out a duty of care, and that Canada's failure to protect students against sexual abuse could be categorized as operational in nature and therefore open to tort liability.[13]

The Court highlighted that the standard of care for government agencies is one of reasonableness and that it should take into consideration the standards of the time period in which the alleged negligence occurred (in this case, the 1940s to the 1960s).[14]

Ultimately, the Court was not satisfied that there was a breach of duty, finding that the evidence could not prove that Canada had actually known or ought to have known about the sexual assaults.[15] Even if Canada had known or ought to have known that the abuse was happening, there was no evidence of the preventative steps that should reasonably have been taken during the relevant time period.[16] As a result, the Court rejected the claims of direct liability against the government of Canada.[17] This holding was upheld by the Supreme Court of Canada.[11]

Vicarious liability for agents’ intentional abuse

Public authorities, including federal and provincial governments, may be held responsible for the abuse of Indigenous youth by their agents under the doctrine of vicarious liability.[11] Vicarious liability makes an employer liable for the wrongdoing of an employee where "there is a significant connection between the conduct authorized by the employer and the wrong."[18] Vicarious liability is generally appropriate where the employer created or enhanced a risk from which the harm manifested, despite the fact that the wrong might have been contrary to the employer's wishes.[19]

The imposition of vicarious liability may be justified because of two key policy considerations: it provides an adequate remedy for the victim; and it creates a deterrent effect so that employers are encouraged to protect against the risk of future harm.[20]

In Blackwater v. Plint, the Supreme Court of Canada upheld the trial judge's conclusion that the government of Canada and the United Church of Canada were vicariously liable for the sexual abuse inflicted upon the former residential school attendees at AIRS.[21] At the trial level, the judge found that Canada had exercised control over the principal of AIRS and the activities there such that a finding of vicarious liability was appropriate.[22] Specifically, Canada had control over the manner in which Plint exercised his duties, and it issued directives to the principal through correspondence, regulations, and budget reviews.[22]

Class actions

Plaintiffs may find it beneficial to sue public authorities in the form of a class action lawsuit. A class action proceeding allows individuals who have suffered similar harms to put forward a united claim and hold a larger entity, such as the government, accountable.[23] A class action suit also helps promote greater access to justice, improve judicial efficiency, and incentivize defendants to modify their behaviour.[24] A potential drawback of class actions is that they can be prolonged and unwieldy and attract exorbitant legal fees that heavily reduce plaintiffs' eventual compensation.[25]

Frontal shot of a large two-story building that served as the Mohawk Institute Residential School.
Mohawk Institute Indian Residential School in Brantford, Ontario, Canada in 1932.

Several class actions have been pursued in Canada seeking to hold public authorities liable for the mistreatment of Indigenous children. As aforementioned, Blackwater v. Plint involved a class of former attendees of Alberni Indian Residential School who sought to hold the Canadian government responsible for the sexual abuse they experienced from a dormitory supervisor.[11]

In Cloud v. Canada, the plaintiffs represented former students of the Mohawk Institute Residential School and their families, alleging that students suffered harm as a result of attending the institution.[26]

In Brown v. Canada, the class members consisted of approximately 16,000 Indigenous plaintiffs who were removed from reserves in Ontario during the Sixties Scoop. They sued the government of Canada for their loss of cultural identity caused by this policy.[27]

Settlement agreements

In the news
Judge approves $23B settlement agreement, largest in Canadian history
The Federal Court of Canada approved a settlement agreement between Canada and First Nations families who experienced discrimination as a result of Ottawa's underfunding of child welfare services.[28]

This video contains more details on the history of the case.[29]

Under provincial class proceedings legislation, a settlement of a class action proceeding is not binding without court approval.[30] The court must find that the settlement agreement is fair, reasonable, and in the best interests of the class.[31]

Legislation
Class Proceedings Act, 1992, SO 1992, c 6, s 29(1).
Discontinuance, abandonment and dismissal for delay

Court approval required

29 (1) A proceeding under this Act may be discontinued or abandoned only with the approval of the court, on such terms as the court considers appropriate.

The class action lawsuit of Brown v. Canada was concluded by a settlement agreement. Canada agreed to pay $500–700 million to cover individual payments for Sixties Scoop survivors, with payments capped at $50,000 each and no proof of harm necessary.[32] Canada would also pay $50 million to fund the establishment of a national foundation dedicated to memorializing the stories of Sixties Scoop survivors and furthering reconciliation.[32]

It was estimated that each individual payment would come out to be between $25,000 and $50,000.[33] While the Ontario Supreme Court acknowledged that this was a modest amount, the Court found that the payment would nonetheless be fair, reasonable, and in the best interests of the class considering the many risks that would come with litigation.[34] Class counsel in Brown considered that the settlement value "exceeds our best day in court."[35]

Challenges and obstacles to tort litigation

Establishing a duty of care

Establishing a common law duty of care in a context where it is not yet recognized requires the application of the Anns/Cooper test, which asks (1) whether there is a sufficient relationship of proximity between the parties to give rise to a prima facie duty of care; and (2) whether such a duty should be negated by policy considerations.[36]

The second stage of the Anns test in particular may pose a challenge to Indigenous plaintiffs alleging mistreatment. Successfully proving a duty of care against the government will depend on whether a judge classifies the allegation of negligence as a core policy decision or an operational implementation, the former of which is immune to tort liability.[37] In cases involving institutional abuse such as residential schools, the public authority defendant may attempt to frame the allegation as an inadequate government policy rather than a negligent failure to implement that policy.[38]

When it comes to class action certification, class action members must prove that their claims raise common issues.[39] Here, the commonality of duties owed to the class members may also be contested. In the case Cloud v. Canada, the Ontario Divisional Court found that the experiences of former residential school students differed too greatly "to support the notion that the respondents owed identical duties to each student, nor could it be said that, to the extent these duties were breached against one, they were breached against all."[40] However, the Ontario Court of Appeal disagreed. It was of the view that the claim of systemic negligence in operating the school and the systemic duty of care to all students were common issues that met the commonality requirement for certification.[41]

Proving breach of duty

Given that the standard of care takes into account the standards applicable to the time period in which the allegedly negligent act or omission occurred, Indigenous plaintiffs may struggle to prove that such standards were breached.[42] It must be shown that the act or omission was unreasonable as measured against the standards of the time.[42]

In Blackwater v. Plint, the judge considered the relevant time period of the 1940s to 1960s and found that there was insufficient evidence showing that preventative steps to address the possibility of sexual assaults at the residential school in question should reasonably have been taken.[16] For example, the plaintiffs were unable to demonstrate that Canada's hiring procedures for residential school staff fell below the standards at the time,[43] nor could they prove that the level of monitoring and supervision employed at the residential school strayed from the time period's expected standards.[44]

Another significant hurdle in proving a breach of duty lies in evidentiary issues. Because the alleged negligence may stem from events that occurred long ago, objectively verifiable evidence is not always available.[45] A judge may be left primarily to assess subjective reports from plaintiffs and witnesses.[46]

Establishing factual and legal causation

Causation requirements have come to limit the ability of courts to recognize the harms Indigenous peoples suffered at residential schools as well as Canadian society's responsibility for such harms. Professor Kent Roach has argued that the application of tort's causation principles has too often led to Indigenous victims effectively being blamed for the consequences of abuse they have suffered.[47]

Factual causation

To prove factual causation, a plaintiff must generally meet the "but for" test. This requires demonstrating on a balance of probabilities that if it were not for the defendant's negligence, the plaintiff's injury would not have occurred.[48]

In cases of residential school trauma such as historical sexual assault, a plaintiff is likely to be claiming for chronic psychological injuries. However, the plaintiff's life history may include other stressful experiences that are unrelated to the sexual abuse.[49] When the plaintiff comes before the court, they may have various psychological conditions such as post-traumatic stress disorder, depression, and substance abuse.[49] The British Columbia Supreme Court has said that "[u]ravelling the question of causation in these cases arising as they do from torts committed so long ago is a daunting task."[49]

Legal causation

Establishing legal causation requires a plaintiff to show that their injury is not too remote or unrelated to the breach of duty to warrant recovery.[50]

The Canadian government and churches sometimes employ the crumbling skull principle in their defence of residential school cases to undermine the establishment of legal causation. This principle is premised on the logic of corrective justice and "allows defendants to argue that they should not be held responsible for compensating harm that pre-existed a wrongful act or that was caused by factors other than a wrongful act."[51] In other words, the defendant does not have to put the plaintiff in a better position than their original position.[52] The government and churches have attempted to reduce damages by showing that Indigenous plaintiffs were already damaged prior to attending residential schools,[53] often pointing toward their histories of family violence, alcoholism, and poverty.[54]

A particularly aggressive example of this approach can be observed in Blackwater v. Plint, where the government used the crumbling skull principle to argue that damages for sexual abuse experienced by students at Alberni Indian Residential School should be reduced because the plaintiffs had already been damaged by prior non-sexual abuse at the school.[55] Although the British Columbia Supreme Court acknowledged that the approach was "anomalous", it subsequently admitted that such was the result of the non-sexual abuse being statute-barred.[55]

Rebutting defences

By nature, residential school cases usually involve events that occurred long ago, well past the expiration of ordinary limitation periods.[56] The government has raised the defence of limitation on multiple occasions to successfully bar recovery for claims unrelated to sexual abuse. For example, in Blackwater v. Plint, the only claim that was allowed to proceed was that of sexual abuse, as all others were statute-barred.[57] In M.M. v. Roman Catholic Church of Canada et al., the plaintiffs' claims were similarly dismissed due to limitation periods and the passage of time.[58]

The former Attorney General of Canada Jody Wilson-Raybould sought to reduce the zealous pleading of limitation defences in litigation with the Crown through issuing a Directive on Civil Litigation Involving Indigenous Peoples, Guideline #14 of which provides:[59]

"In cases where litigation is long delayed, equitable defences such as laches and acquiescence are preferable to limitation defences. However, these defences should also be pleaded only where there is a principled basis and evidence to support the defence and where the Assistant Deputy Attorney General's approval has been obtained."

Another strategy that has been employed involves the blaming of a co-defendant. For example, both the government of Canada and the Church in Blackwater blamed each other for the abuse that occurred.[60] While this strategy is not directed toward the plaintiffs themselves, it can be hurtful to plaintiffs who seek an acknowledgement of responsibility in order to properly heal.[61]

Discussion questions

  • Is the common law an answer to redressing the injustices suffered by victims of institutional abuse? Or is it part of the problem?
  • What are the advantages and challenges of seeking recourse for institutional abuse through a tort action?
  • What alternative rights of recourse, outside of litigation, are available to historically marginalised victims?
  • How might Indigenous legal principles, such as principles of restorative justice or collective healing, operate within a tort framework or provide alternative frameworks for addressing grave historical injustices?
  • Watch this Breakfast Television story on the Mohawk Institute Residential School.[62] Why is it important that such sites of historic injustice are preserved?


  1. ↑ 1.0 1.1 1.2 1.3 1.4 1.5 1.6 1.7 1.8 Miller, JR (10 October 2012). "Residential Schools in Canada". The Canadian Encyclopedia.
  2. ↑ 2.0 2.1 2.2 2.3 2.4 Sinclair, Niigaanwewidam James; Dainard, Sharon (22 June 2016). "Sixties Scoop". The Canadian Encyclopedia.
  3. ↑ Brown v. Canada, 2018 ONSC 3429 (§12.4.1) at para 21.
  4. ↑ Historica Canada (21 February 2020). "Residential Schools Podcast Series". The Canadian Encyclopedia.
  5. ↑ Carleton, Sean; Gerbrandt, Reid (October 17, 2023). "We fact-checked residential school denialists and debunked their 'mass grave hoax' theory".
  6. ↑ Toombs, Elaine (20 January 2023). "Intergenerational residential school attendance and increased substance use among First Nation adults living off-reserve: An analysis of the aboriginal peoples survey 2017". Frontiers in Public Health. 10: 2–3.
  7. ↑ Menzies, Peter (25 March 2020). "Intergenerational Trauma and Residential Schools". The Canadian Encyclopedia.
  8. ↑ Breezy Breakfast Radio Hour (19 June 2023). "Episode 132: The Sixties Scoop". PodBean.
  9. ↑ 9.0 9.1 9.2 Indigenous Foundations (2009). "Sixties Scoop". University of British Columbia.
  10. ↑ Mustapha v. Culligan of Canada Ltd., 2008 SCC 27 (§17.1.2).
  11. ↑ 11.0 11.1 11.2 11.3 Blackwater v. Plint, 2005 SCC 58 (§19.7.2).
  12. ↑ Blackwater v. Plint, 2001 BCSC 997 at para 76.
  13. ↑ Blackwater v. Plint, 2001 BCSC 997 at paras 76–79.
  14. ↑ Blackwater v. Plint, 2001 BCSC 997 at para 83.
  15. ↑ Blackwater v. Plint, 2001 BCSC 997 at paras 228–230.
  16. ↑ 16.0 16.1 Blackwater v. Plint, 2001 BCSC 997 at para 231.
  17. ↑ Blackwater v. Plint, 2001 BCSC 997 at para 232.
  18. ↑ Blackwater v. Plint, 2005 SCC 58 (§23.1.3) at para 20.
  19. ↑ Bazley v. Curry, 1999 CanLII 692 at para 41.
  20. ↑ Bazley v. Curry, 1999 CanLII 692 (SCC) at paras 30–32.
  21. ↑ Blackwater v. Plint, 2005 SCC 58 (§23.1.3) at paras 18–19.
  22. ↑ 22.0 22.1 Blackwater v. Plint, 1998 CanLII 13299 (BCSC) at paras 124–126.
  23. ↑ Klein Lawyers LLP (1 September 2023). "Why Are Class Action Lawsuits Important?". Klein Lawyers LLP.
  24. ↑ Watson, Garry D. (2002). "Class Actions: The Canadian Experience". Duke Journal of Comparative and International Law. 11(2): 269–271
  25. ↑ Mainville, Sara; Gray, Christina; Steele, JC; Praud, Shayla (10 November 2023). "The Challenges with Indigenous Class Actions and Contingency Fees in the Era of Indigenous Self-Determination". JFK Law LLP.
  26. ↑ Cloud v. Canada (Attorney General), 2004 CanLII 45444 (ONCA) (§19.7.1).
  27. ↑ Brown v. Canada (Attorney General), 2017 ONSC 251 (§19.7.3).
  28. ↑ Major, Darren; Stefanovich, Olivia (24 October 2023). "CBC News". Judge approves historic $23B First Nations child welfare compensation agreement.
  29. ↑ Global News (24 October 2023). "Federal Court approves historic $23B First Nations child-welfare settlement". Youtube.
  30. ↑ See e.g. Class Proceedings Act, 1992, SO 1992, c 6, s 29(1); Class Proceedings Act, SA 2003, c C-16.5, s 35(2).
  31. ↑ Dabbs v. Sun Life Assurance (1998), 1998 CanLII 14855 (ONSC).
  32. ↑ 32.0 32.1 Brown v. Canada (Attorney General), 2018 ONSC 3429 (§12.4.1) at paras 7–8.
  33. ↑ Brown v. Canada (Attorney General), 2018 ONSC 3429 (§12.4.1) at para 17.
  34. ↑ Brown v. Canada (Attorney General), 2018 ONSC 3429 (§12.4.1) at para 21.
  35. ↑ Brown v. Canada (Attorney General), 2018 ONSC 3429 (§12.4.1) at para 22.
  36. ↑ Blackwater v. Plint, 2001 BCSC 997 at para 68–69.
  37. ↑ Blackwater v. Plint, 2001 BCSC 997 at para 79.
  38. ↑ Blackwater v. Plint, 2001 BCSC 997 at para 77.
  39. ↑ Cloud v. Canada (Attorney General), 2004 CanLII 45444 (ONCA) (§19.7.1) at para 51 citing Hollick v. Toronto (City), 2001 SCC 68 at para 18.
  40. ↑ Cloud v. Canada (Attorney General), 2004 CanLII 45444 (ONCA) (§19.7.1) at para 16.
  41. ↑ Cloud v. Canada (Attorney General), 2004 CanLII 45444 (ONCA) (§19.7.1) at paras 58, 64.
  42. ↑ 42.0 42.1 Blackwater v. Plint, 2001 BCSC 997 at paras 83, 219.
  43. ↑ Blackwater v. Plint, 2001 BCSC 997 at para 209–218.
  44. ↑ Blackwater v. Plint, 2001 BCSC 997 at paras 219–221.
  45. ↑ Blackwater v. Plint, 2001 BCSC 997 at para 337.
  46. ↑ Blackwater v. Plint, 2001 BCSC 997 at para 338.
  47. ↑ Roach, Kent (August 2014). "Blaming the victim: Canadian law, causation, and residential schools". University of Toronto Law Journal. 64 (4): 571.
  48. ↑ Clements v. Clements, 2012 SCC 32 (§16.1.2) at para 8.
  49. ↑ 49.0 49.1 49.2 Blackwater v. Plint, 2001 BCSC 997 at para 365.
  50. ↑ Mustapha v. Culligan of Canada Ltd., 2008 SCC 27 (§17.1.2) at paras 11–12.
  51. ↑ Roach, Kent (August 2014). "Blaming the victim: Canadian law, causation, and residential schools". University of Toronto Law Journal. 64 (4): 572.
  52. ↑ Athey v. Leonati, 1996 CanLII 183 (SCC) at para 35.
  53. ↑ Roach, Kent (August 2014). "Blaming the victim: Canadian law, causation, and residential schools". University of Toronto Law Journal. 64 (4): 575.
  54. ↑ Roach, Kent (August 2014). "Blaming the victim: Canadian law, causation, and residential schools". University of Toronto Law Journal. 64 (4): 575 citing Blackburn, Carole (2012). "Culture Loss and Crumbling Skulls: The Problematic of Injury in Residential School Litigation". Political and Legal Anthropology Review. 35 (2): 298.
  55. ↑ 55.0 55.1 Blackwater v. Plint, 2001 BCSC 997 at para 377.
  56. ↑ Farrow, Trevor CW (August 2014). "Residential schools litigation and the legal profession". University of Toronto Law Journal. 64 (4): 603.
  57. ↑ Blackwater v. Plint, 2005 SCC 58 (§19.7.2) at para 82.
  58. ↑ M.M. v. Roman Catholic Church of Canada et al., 2001 MBCA 148.
  59. ↑ Attorney General of Canada (2018). "Directive on Civil Litigation Involving Indigenous Peoples".
  60. ↑ Blackwater v. Plint, 1998 CanLII 13299 (BCSC) at paras 16–18.
  61. ↑ Farrow, Trevor CW (August 2014). "Residential schools litigation and the legal profession". University of Toronto Law Journal. 64 (4): 606.
  62. ↑ Breakfast Television (30 September 2020). "Inside The Mohawk Institute Residential School". Youtube.
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