Court says class action on schools may proceed.

In a victory for former students of Indian residential schools, the Ontario Court of Appeal on Dec. 4 ruled unanimously that pupils who attended the Mohawk Institute near Brantford, Ont., may file suit as a group.

Former students, alleging they were subjected to a range of abuses including physical brutality, inadequate food and clothing and forced participation in Christian religious activities, sought to include all 1,400 native children who attended the school between 1922 and 1969.

The class action--the first schools lawsuit in Canada to be certified--names as plaintiffs the government of Canada, the Anglican diocese of Huron and the New England Company, a British charitable organization that operated the school. General Synod (the national office of the Anglican Church of Canada) is not named in the suit which seeks $1 billion in damages.

Archdeacon Jim Boyles, the national church's general secretary, said in a statement that the decision does not affect the church's settlement agreement with the federal government which capped church liability at $25 million.

In certifying the class action, the court of appeal reversed decisions by lower courts, which had declined to approve a class action on the grounds that the students' abuse claims varied. However, Court of Appeal Justice Stephen Goudge, writing on behalf of the three-judge panel, said the plaintiffs "seek to represent many who are aging, very poor and in some cases still very emotionally troubled by their experiences at the school ... Access to justice would be greatly enhanced by a single trial of the common issues."

The ruling also criticized the government's alternate dispute resolution process, designed to give former students of all schools with abuse claims faster access to a hearing and a potential settlement. "(The process) does not compare favourably with a common trial," said the judgment. "It deals only with physical and sexual abuse. It caps the amount of possible recovery."

Archdeacon James Dugan, development officer for the London, Ont.-based diocese of Huron, said the diocese was saddened by the ruling. "We were not managers or operators of the school. We (are) disappointed that we continue to be part of the suit," he said. Although the New England Company and, after 1922, the federal government, ran the school, the diocese of Huron nominated clergy twice to the position of principal.

The appeal court's decision could have ramifications for a much larger class action, filed in the Ontario Superior Court of Justice on behalf of all living former students of residential schools, estimated to number about 90,000. That action, which has not been certified, seeks $12.5 billion in damages.

The Mohawk Institute: opened in 1828 and ceased operating as a school in 1969.