"Sad Legacy" of Canada's residential schools taken into account in ways other than sentencing

Mr. Justice Bakan considered a plaintiff's connection to residential schools when deciding whether to allow an action that was brought outside of the two month notice period required by section 294(2) of the Vancouver Charter. It also was also taken into account when addressing whether the plaintiff was contributorily negligent. In the decision, Mr. Justice Bakan quoted from the Executive Summary of the Truth and Reconciliation Committee (2015) to show how the plaintiff's family issues growing up mirrored the experiences of many other children of residential school survivors, as outlined in the report.

The plaintiff, Bobbi O'Shea, was put into custody on March 27, 2008 after consuming crack cocaine and causing a public disturbance, culminating in her detainment. While in custody at the Vancouver City Jail, Ms. O'Shea attempted to obstruct the guard's view of her or did so incidentally. As a result, the guards put Ms. O'Shea in a restraint device, which immobilized her in a seated position on the floor. She was kept in this restrained position for over an hour, which she claims caused her harm and distress. She brought an action for assault or, in the alternative, negligence.

Ms. O'Shea's notice was late, in contravention of section 194(2) of the Vancouver Charter. However, Mr. Justice Bakan found that the delay had been reasonable on account of Ms. O'Shea's life circumstances.

"I find Ms. O'Shea's difficult life circumstances in this matter, when viewed in context of ‘the broad systematic and background factors affecting aboriginal people' are analogous and relevant in the analysis of whether Ms. O'Shea's delay in providing notice was reasonable in a tort action." (para. 100)

Further, Mr. Justice Bakan found that the City had not been prejudiced by the delay in receiving notice. Accordingly, Ms. O'Shea's action was allowed to proceed.

Regarding the substance of the action, Mr. Justice Bakan found that an assault had not been committed by restraining Ms. O'Shea. However, there was a breach of duty of care while Ms. O'Shea was detained which the City was vicariously liable for.

The City argued that Ms. O'Shea was liable for contributory negligence. Mr Justice Bakan did not agree. On account of Ms. O'Shea's life circumstances, which included being an intergenerational residential school survivor, Mr. Justice Bakan found her reactions to her detention and restraint to be neither surprising nor negligent.



Other Author

Ramsey Glass (RGlass@blg.com)


Aboriginal Law