Those who died before their claims could be determined have been disqualified from payment
Workers demolish the last section of Woodlands school in New Westminster, B.C. Tuesday, October 18, 2011.
Photograph by: Jason Payne , PNG
The provincial government has hidden behind B.C.’s archaic wrongful death law to avoid compensating families of victims of abuse at the infamous Woodlands School.
B.C. Supreme Court Justice Lauri Ann Fenlon says Victoria was following long-settled, if unloved, law by stiffing them.
Vancouver lawyer David Klein complained in provinces that updated similar 19th-century legislation, such as Ontario, Quebec or Alberta, the claims would be uncontroversial.
“It’s worse than cynical — it’s heartless,” Klein said.
“You would think having acknowledged that the abuse had occurred, having acknowledged that compensation should be paid, the province would pay it. But they really have been taking a what I call a scorched earth approach to defending this case for a group of individuals who were entirely at their mercy.”
Originally opened in 1878 as the provincial insane asylum, Woodlands came to serve as a multi-faceted facility for disturbed kids, orphans, wards and runaways. In the 1950s, there were nearly 1,400 people living on the New Westminster site finally shuttered in 1996.
In July 2002, B.C. Ombudsman Dulcie McCallum produced a report that found there was horrendous systemic abuse at the institution.
But more than a decade later, people are still waiting for compensation.
A class-action lawsuit on behalf of victims was launched the same year and a settlement agreement reached in Oct. 2009.
It provided compensation for individuals confined after Aug. 1, 1974 who suffered physical, sexual, emotional or psychological abuse, but still the wheel turned slowly.
Klein’s law firm has been handling more than 700 claims but because of survivors’ disabilities, particularly their poor communications skills, progress has been glacial.
Of the roughly 100 resolved cases so far, the government has paid out $2.6 million.
There are about 500 or so to go and the process that was supposed to take one or two years is stretching into a six- or seven-year ordeal with Victoria refusing to talk about expediting matters.
“It’s very sad, very sad,” Klein said.
Worse, these three victims, identified only by their initials, died before their claims could be determined: V.T. on Jan. 14, F.G. on May 9 last year and T.A. on Nov. 15, 2012.
As a result, their claims became subject to the province’s wrongful death laws and the rights of estates.
Family members were therefore leery of continuing a claim under the Settlement Agreement because the law has not been updated for the 21st century.
For two decades now, lawyers and bereaved families have been asking the government to reform the laws, especially the Family Compensation Act, which is based on 1847 British legislation designed to compensate only for income earners who die. Basically, the law places no value on people who don’t earn money including children or people with disabilities.
And in 2007, Victoria issued a Green Paper that promised change — nothing happened.
As a result, the families asked the court for an opinion in this case before needlessly incurring further legal expense.
The lawyers tried everything to shame the province into doing what was right — not a chance.
Justice Fenlon said right off the bat it was an uphill battle because of hoary law that such personal injury claims did not survive death.
“The Settlement Agreement focuses entirely on compensation for physical and psychological harm,” she said.
Unfortunately, Justice Fenlon added, those claims do not survive death.
“While it may seem unfair that the deceased claimants’ estates will not be able to recover on their behalf, there is a policy reason for barring such recovery,” she explained.
“Damages in such cases are meant to provide some comfort to the person who suffered the physical and psychological distress. The law concludes that payment of damages to the estate of a person who has suffered such distress no longer serves that purpose.”
Still, some contract claims can survive death — a debt or payment due under a contract, for instance — and the lawyers maintained these claims should be seen in that light.
The justice said no.
The three had not settled their claims and that meant no debt existed — the overall agreement did not say everyone held at the facility deserved compensation nor fix a set sum of money payable; instead it established a process for resolving claims.
“Entitlement had not yet been established, let alone a damage award fixed under one of the categories of compensation,” Justice Fenlon said.
She also shot down the suggestion that the estates could launch their own claim for damages.
“The Settlement Agreement arose from events that took place as far back as the 1970s and the potential for some class members to pass away before resolution of their claims should have been within the parties’ contemplation,” Justice Fenlon noted.
“An express provision would be expected if the parties intended estates to have the right to continue claims under the Settlement Agreement.”
Klein was appalled.
“We see the province shirking its responsibility,” he said.
“They will not pay a penny more than a judge tells them that they have to pay regardless of any moral or ethical obligation.
“So, when you look at the specifics of this case, what you see, over and over and over again, is the province subjecting a group of abused, marginalized and abused individuals to even more marginalization and abuse.”