Responding to the TRC in the First Year Tort Law Classroom

One of the many gifts I received when I joined UVic was a first-year tort law program developed by Elizabeth Adjin-Tettey, Donald Galloway and John McLaren that paid attention to the impact of the tort law system on vulnerable and marginalized people. Over the years we have been particularly attentive to the ways in which Survivors of sexual, physical and cultural abuse in residential settings have used (or tried to use) tort law actions to seek redress from individual perpetrators, and institutional and state officers. For example, we have used Muir v. Alberta 1996 CanLII 7287 (AB QB) to discuss the historical and social context of the institutionalization of persons with disabilities, and the eugenics movement that underpinned the state-sanctioned sterilization that is at issue in Muir. And we have examined the problem of limitation dates for historical abuse Survivors that the TRC identifies in Call to Action No. 26 through discussion of M(K) v. M(H) [1992] 3 SCR 3 and the legislative amendments that some legislatures have passed to eliminate limitation dates for sexual abuse claims, and in some cases, physical abuse claims (see e.g. ss 3(1)(i)-(k) BC’s Limitation Act). Limitation dates are not the only problem for historical abuse Survivors, and I have also discussed government use of Crown proceedings legislation to create cut-off dates that restrict recovery.

The history and legacy of the residential schools have always been part of our discussions of the advantages and disadvantages of tort actions for Survivors seeking justice. In particular, this legacy has been at the heart of our discussions of the development of vicarious liability doctrine – from the promise for Survivor compensation signalled by the expansion of the meaning of “scope of employment” in cases such as Bazley v. Curry ([1999] 2 SCR 534) and Blackwater v Plint (2005 SCC 58) in which non-profit, charity and government employers were vicariously liable for abuse perpetrated by their employees, through to the narrowing of the doctrines signalled in cases such as B(E) v Order of the Oblates of Mary Immaculate in the Province of British Columbia, (2005 SCC 60). In classroom discussions I have drawn on Bruce Feldthusen’s “Civil Liability for Sexual Assault in Aboriginal Residential Schools: The Baker Did It” http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2431786 and Sheila McIntyre’s “Guardians of Privilege: The Resistance of the Supreme Court of Canada to Institutional Liability for Child Sexual Abuse” in Sanda Rodgers, Rakhi Ruparelia & Louise Belanger-Hardy, eds, Critical Torts http://store.lexisnexis.ca/store/ca/catalog/booktemplate/productdetail.jsp?prodId=prd-cad-00721&changeLocale=fr_CA. Bruce’s piece in particular is a powerful indictment of the tort law system’s response to residential school Survivors’ claims. His suggestion that the Supreme Court of Canada could create a new form of strict liability in cases of child abuse in institutional settings generates classroom discussion about the vulnerability of children in institutional care, litigation strategy, and the appropriateness of courts creating new common law doctrine to achieve “just” results.

I am on sabbatical this year, so I’m not teaching torts, but I’ve been thinking about how to respond to the Truth and Reconciliation Commission’s Calls to Action the next time I’m in the classroom. For the Report and the Calls to Action demand more of my torts class than I’ve provided to date. And given that the TRC was created as part of the agreement to settle Survivors’ class action lawsuits against the federal government and the Anglican, Presbyterian, United and Roman Catholic churches in Canada (http://www.residentialschoolsettlement.ca/IRS%20Settlement%20Agreement-%20ENGLISH.pdf), the tort classroom seems a particularly fitting place from which to respond to the TRC Report and its Calls to Action.

So here are some preliminary thoughts …

For a few years now I’ve been feeling that, despite the attention in our course to the effect of tort law on marginalized and vulnerable people, I do not sufficiently problematize the question of the tort law system’s ability, procedurally and substantively, to provide healing – both psychological and physical. So I am thinking of trying to do this more consciously with students through examining the residential schools litigation process.

This examination would explore residential school Survivors’ efforts to seek justice through the civil system and could include discussion of the history of the residential schools, and the barriers to Survivors’ claims that we have traditionally covered – limitation dates, vicarious liability doctrine and Crown proceedings legislation. Damage assessment has not generally been a topic we cover in torts, as students can take remedies and restitution in their upper years. But I think there would need to be discussion of the ways in which traditional damage categories and quantification methods do not adequately recognize and respond to the harms that residential school Survivors have suffered, particularly their cultural and language losses.

The residential schools litigation process could be used (1) to explore the challenges and benefits for Survivors’ in pursuing civil claims; (2) to think about the benefits and pitfalls of alternative settlement dispute processes; and (3) to evaluate both the substantive and procedural aspects of the Indian Residential Schools Settlement Agreement itself. In her article “Righting Past Wrongs Through Contextualization: Assessing Claims of Aboriginal Survivors of Historical and Institutional Abuses” (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1816464) my colleague Elizabeth Adjin-Tettey argues that a compensation process should be judged by “how well it addresses the full range of harms suffered by survivors, their families and communities.” This question could easily be the touchstone for this examination of the residential schools Survivors’ efforts to seek justice.

I have not yet determined what I would assign, nor have I reflected on how I would engage with these issues in the classroom, but I do have a sense of some of the resources I would look to in developing the curriculum and pedagogy. These would include the TRC reports and some of the materials on the history and legacy of the residential schools referenced in the other posts on this site. Elizabeth and I have written about the problems of limitation dates here: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1932455), and I’ve written about the problem of crown proceedings legislation here: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2130833. Both Bruce’s article and Elizabeth’s (referenced above) provide comprehensive overviews of the problems residential school Survivors face navigating the tort system, including the inadequacies of the remedies.

The common law tort system’s inability and unwillingness to address the cultural and language loss claims in the residential schools litigation is the subject of Zoë Oxaal’s “‘Removing that which was Indian from the Plaintiff’: Tort Recovery for Loss of Culture and Language in Residential Schools Litigation” (2005) 68 Saskatchewan Law Review 367 and Carole Blackburn’s “Culture Loss and Crumbling Skulls: The Problematic of Injury in Residential School Litigation”, (2012) 35 PoLAR: Political and Legal Anthropology Review 289, an analysis of the challenges that Survivors faced in making cultural and language loss claims in Blackwater v. Plint, based on a close reading of the audiotapes of the court proceedings. More generally, much can be drawn from a collection of essays devoted to Truth, Reconciliation and Residential Schools in the Canadian Journal of Law and Society (Volume 27(1)) and the recent special issue of the University of Toronto Law Journal (Volume 64(4)) on The Residential Schools Litigation and Settlement.

I’m keenly aware that these ideas respond only to the TRC call to ensure that law students understand the history and legacy of the residential school system, and the challenges within the civil justice system for residential school Survivors’ claims, particularly for those whose claims are not covered by the Settlement Agreement as their litigation continues to wind its way through the system. What I have yet to reflect on is the imperative that the TRC’s work creates for us to design a law school curriculum that engages with Indigenous legal orders. And I expect I will be thinking about this challenge for some time.

I would love to hear from colleagues about what you have done, or are thinking of doing, in your torts classes to respond to the TRC Calls to Action and to the imperative of engaging with Indigenous legal orders, and about additional resources you have found helpful for students or for your own teaching practices.

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