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S.C.O.C. sends B.C. residential school abuse case back to trial

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  • Don
    Friday, Oct 28, 2005 S.C.O.C. sends B.C. residential school abuse case back to trial http://www.mytelus.com/news/article.do?pageID=bc_home&articleID=2070599
    Message 1 of 1 , Oct 28, 2005
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      Friday, Oct 28, 2005



      S.C.O.C. sends B.C. residential school abuse case back to trial
      http://www.mytelus.com/news/article.do?pageID=bc_home&articleID=2070599

      OTTAWA (CP) - The Supreme Court of Canada says a case of sexual abuse at a British Columbia residential school run by a Roman Catholic religious order must go back to the lower courts.
      In an 8-1 decision Friday, the justices ruled that a trial court should decide whether the Oblate order, which ran a residential school for native children off Vancouver Island in the 1950s and 1960s, was negligent in the sexual assaults committed by Martin Saxey, a school baker and handyman.

      The victim, identified only as E.B. in court documents, was abused by Saxey from age seven until about age 11, although he told no one about it out of shame.

      He won more than $233,000 in damages against the Oblates in 2001, but the British Columbia Court of Appeal overturned that decision in 2003.

      The trial court found the Oblates "vicariously" liable and made no finding of direct liability or negligence.

      The Supreme Court ruled five years ago that this vicarious liability - a kind of indirect responsibility - only applies to employers where there is a strong connection between the employee's job and the wrong committed.

      A residential school case earlier this month held the United Church and the federal government vicariously liable for abuse committed by a dorm supervisor, who was directly involved with children.

      This case was different, the court of appeal said, because Saxey had no supervisory role over children at the Meares Island school.

      "In its view, the trial judge paid insufficient attention to the absence of any strong connection between the sexual abuse and Saxey's job on the fringes of school life as a baker, part-time motorboat operator and odd-job man," Justice Ian Binnie wrote in Friday's ruling.

      He agreed with the appeal judges that the trial judge made a mistake.

      "The trial judge's approach effectively put all the (Oblate) employees on the same footing, without giving due weight to the fact that it was Saxey who harmed the appellant by intentional wrongs that for present purposes must be taken to have been unknown, unauthorized, unforeseen and unforeseeable."

      An earlier ruling on vicarious liability held that "servants may commit acts, even on working premises and during working hours, which are so unconnected with the employment that it would seem unreasonable to fix an employer with the responsibility for them."

      The latest ruling says the case should return to the lower court, which must decide if the Oblates were actually negligent in dealing with Saxey, who had a manslaughter conviction when he was hired.

      "Whether or not the (Oblates) can be shown to be directly at fault in a way that contributed to Saxey's sexual assault on the appellant is a matter that will have to be determined by the trial judge."

      The school, which opened in 1900, closed in 1971. Saxey, himself an aboriginal, died 30 years ago.



      © The Canadian Press, 2005



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