Education+or+Subordination

D.G. Reaume & P. Macklem, ‘Education for Subordination: Redressing the Adverse Effects of Residential Schooling’, a research paper submitted to Royal Commission on Aboriginal Peoples (Canada) [Note: for a briefer and more generalized summary, see the final section ("Summary") on pp. 216-217 CB] ** B. The General Nature of Fiduciary Obligation ** “Substantively, fiduciary duties are duties that the judiciary has created and enforced as against persons who are, in law or fact, empowered to act in relation to a particular matter in the interests of another person” * not a well defined area of law; * has largely developed around circumstances of //property// or business relationships – can be hard to adapt the notion to new/other circumstances * usually court starts with trying to find fiduciary //relationship// * certain traditional categories of fiduciary relationships exist, but Dickson J. in //Guerin// noted that these are not exhaustive * be careful: not every aspect of fiduciary relationship is fiduciary * Wilson J has suggested distinguishing between fiduciary //relationship// and //duty// * the wider the //scope// of the fiduciary //element// in a relationship, the more likely it is that the whole relationship is a fiduciary one * //Frame v. Smith// set out criteria: (1) fiduciary has scope for exercise of some discretion or power; (2) fidicuiary can **unilaterally exercise** that power/discretion so as to affect beneficiary’s legal or practical interests; (3) beneficiary is particularly vulnerable * //Lac//: Sopinka J. for majority said vulnerability is indispensable [Eva’s note: Sopinka J. //was// in majority, and LaForest in minority, on the question of existence of fiduciary duty] ** C. The Fiduciary Obligations of Government ** * judiciary has held that a fiduciary relationship exists between Crown and Aboriginal communities in Canada, BUT the nature and scope of this fiduciary relationship have not been precisely defined/determined/explained – so there’s always debate ** i) Equitable Fiduciary Duties and Aboriginal Land Rights ** * //Guerin//: Crown owes fiduciary duties to Aboriginal people, and this is triggered by a VOLUNTARY surrender of Indian land * //Lower Kootenay Indian Band v//**.** //Canada// and //Guerin// both involved land surrenders to the Crown that were for a specific purpose and for limited period *What if it’s not voluntary surrender, but unilateral governmental action? And what if that action was before 1982 (i.e. before advent of s.35(1) CA1982)? Conservative view says that before 1982, fiduciary obligations were //not// triggered by unilateral govt action, though cases like //Sparrow// and //Delgamuukw// suggest some recognition of fiduciary responsibilities regarding pre-1982 unilateral Crown extinguishments. · **// this matter of surrender or extinguishment of land rights is comparable to governmental involvement in the residential school system, and it’s reasonable to view the relationship between the Crown and Aboriginal communities through the lens of fiduciary principles whether with respect to land or education //** ** ii) Fiduciary Duties and the Constitution ** · **recognition and affirmation of Aboriginal rights in s.35(1)** bolsters the possibility fiduciary duties attaching to governmental involvement in the residential school system · important principles emerge from //Sparrow// *** more expansive view that fiduciary obligations are not only triggered by voluntary surrender of Aboriginal land, but also by unilateral extinguishments of Aboriginal rights *** consultation with the affected Aboriginal people is of potential importance if seeking to justify s. 35(1) infringements *** court also implicitly suggested that Crown’s fiduciary relationship with First Nations is not exhausted by requiring governments to consult in order to justify infringement · **//The elasticity of a __generalized__ fiduciary obligation//** (resisted by some, as in //Apsassin v. Canada// but promoted by academics such as Slattery) **//provides a necessary flexibility for making fiduciary principles appropriate “yardsticks” with which to assess Crown participation in the residential school system.//** ** D. The Fiduciary Obligations of the Churches ** ** it can be challenging to adapt the notion of fiduciary obligations to new situations like liability of Churches; ** one starting point is to separate questions of duty owed to children inresidential schools from question of duty owed to their parents ** another distinction can be between individual nuns/clergymen who taught or supervised at schools, and more remote parts of the Church hierarchy ** i) Fiduciary Obligations Owed to Students ** ** Is the relationship fiduciary //per se//? Does it give rise to a presumption that it creates fiduciary obligations? ( à consider whether enough “like” established fiduciary relationships, or see if it fits the //Frame// test) ** even if fiduciary relationship //per se//, was there a fiduciary //duty// owed? ** a) A presumptively Fiduciary Relationship? ** ** school officials had virtually total control over lives of children in their care and can be seen as acting //in loco parentis// – seems comparable to La Forest J’s mention of parents’ “great power” to affect the welfare of their children ** b) The Test in //Frame v. Smith// ** ** (1) school officials can be seen to have discretion or power over children ** (2) unilateral exercise of power: decisions made about operation of the residential schools affected children’s vital practical interests *** judicial authority seems to support this view [see //M.(K.)//, for instance] but it’s harder to determine with respect to less tangible interests ex. the interest of acquiring an education that’s actually helpful to them, the interest of maintaining language and culture ** (3) vulnerability: precisely because of power exercised by school officials, children were totally under their control, peculiarly vulnerable *** vulnerability arises from inability of beneficiary to prevent the injurious exercise of power or discretion, combined with grave inadequacy or absence of other legal or practical remedies *** comparable to the father in //Frame// *** note that they were largely unable to complain to their parents or school officials about their mistreatment ** c) Other Conditions on Establishing a Fiduciary Duty ** ** beyond //Frame// test, some say there may be other grounds ** **unilateral undertaking**: ex. //Guerin// and //Hospital Products Ltd. v. U.S. Surgical Corp// (cited in //Frame//) note the element of the fiduciary **//unilaterally// //undertaking//** such duties – it seems clear that the Churches did undertake to act in the best interests of the children in their care ** **problem: does violation have to be self-interested in order to justify finding fiduciary duty + breach?** i.e. does the person have to //benefit// from his conduct? *** perhaps such a requirement was more appropriate in context of property – this is an example “of how the doctrine developed primarily in one particular context is ill-suited to other contexts” *** maybe it’s better to look for malice or total failure to recognize legitimacy of beneficiary’s interests *** and anyway, maybe the school officials //did// seek to benefit inasmuch as they were aiming to convert Aboriginal peoples to Christianity ** d) A Cause of Action of Last Resort? ** ** challenge: Sopinka J’s suggestion that breach of fiduciary obligation should be a ground of liability of last resort (//LAC//) i.e. judicial reluctance on the matter ** see also //Norberg//: Sopinka J and majority preferred to classify the situation under the rubric of breach of professional duty; it’s also worrisome that he would have awarded lower damages than any member of the court ** McLachlin J. disagreed with Sopinka in //Norberg//: stated that this should be called breach of fiduciary duty and called for higher damages; La Forest supported her view in his statements in //H.(K.)// ** McL’s view indicates that the various other torts don’t fully cover the wrong done – adding up all the individual instances of abuse doesn’t really capture the “enormity” of the wrong done; moreover, the tort of battery will only get at the instances of physical and sexual abuse but cannot really get to more nebulous but real harms (damage to self-esteem, loss of language and culture, etc.) ** “At best, the Sopinka approach will require plaintiffs to go through all th emisbehaiour of the school officials to first ask whether it constituted some other tort, and reserve breach of fiduciary obligation only for htose aspects not covered by the common law. At worst, it betokens a desire to restrict recovery to the sorts of tangible legal interests traditionally protected by the common law, refusing to acknowledge the separate harm that abuse of power occasions when it touches personal rather than economic interests.” ** · this takes us back to the basic[| relationship] between **common law and equity (**fiduciary duty is part of the latter) and whether to recognize new situations in which courts can use their powers to provide a remedy: *** the purpose of equity is to mitigate the rigours of the common law *** questions arise as to whether new grounds of liability bear some resemblance to previous interventions of equity *** the question becomes: does deliberately depriving a community of its cultural and linguistic heritage and giving them a deficient education a kind of wrongdoing that the courts should use their equitable powers to remedy? ** ii) Fiduciary Obligation Owed to Parents ** · was there a further duty to parents i.e. not to destroy the parent/child [|relationship]? · removing children from families for schooling seems to meet the //Frame// test *** hard for parents to find out what was going on in the schools, let alone intervene · “one might argue that an obligation arose not to conduct the children’s education in a way that was more disruptive of normal parent/child [|relationships] than was absolutely necessary” o note: family visits were discouraged, correspondence censored, and children were made to feel shame about their own traditions which they identified with their parents · note, though, that Wilson’s extension of fiduciary law in //Frame// has not yet gone so far to protect family relations in the eyes of the majority of the Court http://capturehimbonus.blogspot.com/