Frequently Asked Questions

1. Is the United Church being sued because of what happened in the schools?

It has become painfully clear that physical and sexual abuse took place in many of the schools within the residential school system. In order to hold the government and the churches accountable for these criminal acts perpetrated by some employees of the schools, former students have filed thousands of lawsuits against these institutions. There are two mechanisms through which an abuse claim can be filed. A former student can file a lawsuit in court or, since 2004, claims can be made by application through the government’s Alternative Dispute Resolution (ADR) process.

Since 1995, former students of the residential schools with which our church was affiliated have named the United Church, along with the federal government, in over 1,000 abuse claims.

An early precedent-setting lawsuit against the United Church was a “group” claim with 29 defendants from the Alberni residential school, known as the Blackwater case. The case went to trial in a British Columbia courtroom in 1998. Although the United Church settled out of court with most of the claimants, the trial was important because the judge ruled on issues of vicarious liability (who was ultimately responsible for the actions of employees?) and proportionality (to what degree were they responsible?) before awarding damages to six remaining claimants. The judge ruled that both the federal government and the church were liable and set the proportion at 75%/25% respectively. The Supreme Court of Canada upheld this ruling in 2005.

The United Church continues to settle claims out of court as quickly and fairly as possible and to pay its share of financial settlements awarded by the adjudicators in the Alternative Dispute Resolution process.

Our church has also been named in several “class action” lawsuits filed on behalf of all former students. The recent Indian Residential Schools Settlement Agreement is intended to address the claims and thereby replace the class actions.

For more background, see Baxter Class Action (March 2004) and Implications of the Supreme Court Decision in the Barney (Blackwater) Lawsuit (October 2005).

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2. Can abuse claims be settled without going to court?

Civil trials can be lengthy and costly. Their adversarial nature is often devastating for victims of abuse. Many choose not to put themselves through this experience. The United Church strives to settle claims out of court, and we support alternate resolution processes.

In November 2003, the federal department Indian Residential Schools Resolution Canada launched the Alternative Dispute Resolution (ADR) mechanism to resolve abuse claims more effectively through a less formal process. Under the ADR, an adjudicator hears the claimant’s story in a setting of the claimant’s choosing and then asks questions to determine a settlement award. The claimant does not require a lawyer but may choose to have one. He or she can also have support persons present.

The United Church sends a volunteer representative to each ADR hearing unless the claimant does not want a church person present. The role of our representative is to witness and acknowledge the claimant’s story and experience, to offer our apology for the range of harms suffered in residential schools, and reiterate our commitment that this never happen again.

It has been our experience that a church presence at ADR hearings and at healing ceremonies can go beyond financial compensation in assisting with healing.

If the Residential Schools Settlement Agreement is implemented, the ADR process, with several significant revisions, will become the Independent Assessment Process. ADR applications will be accepted until the day the courts issue the Approval Orders on the Settlement Agreement.

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3. What if false or suspect claims are made?

Claims put forward either through the courts or the Alternative Dispute Resolution (ADR) process are subject to verification. In the court process, an “examination for discovery” or other inquiry procedures are undertaken by lawyers to establish the facts as nearly as possible. These “facts” become the basis for a negotiated out-of-court settlement or for the decision of a judge if the case goes to trial.

With respect to the ADR applications, the federal department of Indian Residential Schools Resolution Canada does research to verify the student attendance records and the employment of the accused perpetrator. In more serious cases, medical records may also be required. During the ADR hearing the adjudicator listens to the claimant’s story, asks clarifying questions, and hears submissions from the claimant’s lawyer. The adjudicator then makes a decision on the claim.

Since by nature sexual abuse in particular is carried out in secret, it is difficult to completely validate every claim. We recognize that many victims of sexual and physical abuse have great difficulty coming forward to tell their story precisely because they have been told not to tell or that no one will believe them. Stories of abuse are often too horrific and humiliating for anyone to pretend that such things happened.

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4. Does the church have financial resources to meet our legal and moral obligations?

Yes. The General Council set up the Residential Schools Fund and has regularly provided resources to cover legal and settlement costs through allocations from the Reserve Fund and the Morrison Bequest. Money has not been drawn from the Mission and Service Fund or from other assets or ministries of the church.

In addition to settlement costs, the Residential Schools Fund also finances the work of the Residential Schools Steering Committee, the Residential Schools staff, costs related to the attendance of United Church volunteer representatives at Alternative Dispute Resolution (ADR) hearings, and communications tools such as the quarterly Residential Schools Update.

Liability insurance may assist in recovering some costs. We are continuing to pursue these issues with the insurance companies involved.