Ontario's highest court has cleared the way for tens of thousands of descendants of aboriginals who attended residential schools to sue the federal government for intentionally eradicating their culture.
The Ontario Court of Appeal ruling allows the children of residential school students to sue over a policy they believe systematically destroyed their rights, language, culture and way of life.
"This sets an important precedent," said Joseph Griffiths, a lawyer for the plaintiffs. "This is largely uncharted territory. I think our clients will be very pleased to hear that the law extends to them."
The 3-0 ruling was a blow to government lawyers who argued that the law does not recognize a right to sue for individuals who were not born at the time alleged wrongdoing occurred.
The ruling also flew in the face of government warnings that the court could open floodgates to innumerable claims from children - and possibly grandchildren - of the approximately 17,000 people who attended the residential schools.
Mr. Griffiths said in an interview that the ruling also "throws a huge wrench" into a massive federal program to settle residential school claims in return for claimants waiving any right to sue.
"The government will look at this decision as a bad one, and will almost undoubtedly seek to appeal to the Supreme Court of Canada," he predicted.
Mr. Griffiths and Russell Kronick, Q.C. - the senior lawyer for the plaintiffs - represent 56 plaintiffs who attended two Roman Catholic residential schools in Spanish, Ont., between 1934 and 1960. They are suing the church and the government for assault, sexual abuse, wrongful confinement, forced labour and negligence.
The lawyers also represent 189 children of the primary plaintiffs.
"We are saying that the children of the residential school students suffered their own type of harm - especially to the transmission of their culture and heritage," Mr. Griffiths said.
"In order to have a cause of action, you normally have to suffer harm firsthand," he said. "The Court of Appeal has recognized that the injuries suffered here are historical. I think this is novel in its entirety. We were unable to find any cited cases in which a policy has this sort of effect on future generations."
The government had initially succeeded in having the claims thrown out by a lower-court judge. The judge agreed that it was "plain and obvious" that the government owed no fiduciary duty to an individual who didn't exist at the time of the alleged injurious act.
"The Crown submits that the law has always distinguished between an unborn child and a child after birth," Mr. Justice Jean-Marc Labrosse wrote yesterday. "It is the Crown's position that the secondary plaintiffs are asking the court to ignore this distinction and to take a futher step in recognizing a duty of care owed to future generations of children not yet conceived."
He noted that the Crown warned that ruling for the plaintiffs would create "the spectre of indeterminate liability," and radically extend the law into an area that belongs to elected legislatures - not the courts.
However, Judge Labrosse, Madam Justice Louise Charron and Madam Justice Eileen Gillese were not deterred. Without considering the merits of the case itself - issues that can only be dealt with at trial - they said a trial can proceed.
On a separate issue, the court ruled against the descendants being able to pursue claims under the Family Law Act for damages suffered by their relatives.
Lawyers for the federal government could not be reached for comment last night.