Ruling in N.L. residential schools says Canada 'abused process'

A judge in St. John's has ruled that the federal government has abused the process in a class action lawsuit involving former residents of residential schools in Newfoundland and Labrador. 

Judge Robert Stack, of the Supreme Court of Newfoundland and Labrador, awarded costs to the province of Newfoundland and Labrador and the more than 1,000 people in the class action who claim they were abused at residential schools in the province.

As well, the Newfoundland and Labrador has been released from the case. 

The class action involves former students from aboriginal communities who attended residential schools in Labrador and northern Newfoundland.

The federal government has maintained that the schools at the centre of the class action were not created under the Indian Act and therefore were not true residential schools. The schools were created before Newfoundland entered Confederation in 1949. 

Stack on Wednesday found that the federal government's attempt to re-litigate a decision made two years ago in the long-running court battle constituted a "collateral attack" on the prior decision — a ruling that pleased one of the lawyers representing former residents. 

"Canada's primary tactic over the eight years that this case has been litigated has been to delay its timely resolution," Kirk Baert, lead counsel for the plaintiffs, said in a news release.

"Class members are elderly and have died in the interim without any access to justice."

Stack used strong language in dealing with the federal government's attempt, saying "it is unconscionable that a party would raise an important legal issue mid-trial that has already been decided against it – with its concurrence – earlier in the same proceeding."

Baert also noted that Stack's ruling found that "Canada's attempt to assign fault to [Newfoundland and Labrador] for the administration of the Indian residential schools of that province stands no chance of success."

Last month, St. John's-based lawyer Ches Crosbie called on the new Liberal government to settle the class action. 

Because of their status, members of the Newfoundland and Labrador class action were not included in a historic June 2008 apology that the Government of Canada made to other residential school students. 

Opening statements in the trial began in September. The trial is expected to wrap up next spring.