Frederick Leroy Barney, et al. v. Her Majesty the Queen in Right of Canada as represented by The Minister of Indian Affairs and Northern Development, et al.
(British Columbia) (Civil) (By Leave)
(Publication ban in case)
Torts - Intentional torts, Damages, Negligence.
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In 1996, twenty-seven former residents of the Alberni Indian Residential School ("AIRS") brought four actions against the United Church and Canada for damages for sexual abuse and other harm that occurred while residents at the school during the 1940's, 1950's and 1960's. Canada owned and maintained the land and buildings from 1911 until the school was closed in 1973. Canada and the Presbyterian Church entered into a written contract in 1911 that governed their relationship. In 1925 the United Church of Canada was formed and from that time on, the United Church was involved in running AIRS. In 1962, Canada and the Church entered into a new agreement. In this agreement, Church officials were referred to as the "Management", but Canada had to approve the Church's selection of principal.
The first set of reasons in 1998 dealt with the issue of vicarious liability of Canada and the United Church for the actions of certain staff members who were alleged to have sexually assaulted and committed other acts of violence against the plaintiffs. The second set of reasons, issued in 2001, dealt with other liability issues and damages. Many cases had settled between the first and second phases. The trial judge found that the allegations of paedophilic sexual assault by Arthur Plint, who was employed as a dormitory supervisor at the school from 1948 until 1953 and again from 1963 until 1968, had been established in six actions. All other causes of action for cultural losses, negligence and breach of fiduciary duty were dismissed as statute-barred. Specifically, the trial judge ordered that all claims except those of a sexual nature were dismissed as statute-barred. Plint was held liable to the six plaintiffs for sexual assaults committed against them. Canada was held liable on the basis of a breach of a non-delegable statutory duty to the six plaintiffs for sexual assaults committed against them by Plint. The six plaintiffs were granted judgment, jointly and severally, against Canada, the United Church and Plint.
The six plaintiffs were also granted punitive damages assessed against Plint. The Church and Canada were jointly granted judgment against Plint. The trial judge held that Canada and the United Church were jointly liable on the basis of vicarious liability for the sexual assaults committed by Plint, apportioned 75 per cent against Canada and 25 per cent against the Church. With all parties appealing, the Court of Appeal held that Canada was solely liable to the six plaintiffs on the basis of vicarious liability.
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