Woodlands survivors see a legal opening

Although phase one of a class-action lawsuit against the B.C. government is slated for January 2010, legal manoeuvring continues to plague Woodlands survivors who have been fighting for justice since 2002. But a February appellate court decision brought former residents an element of hope.

Woodlands was a government-run residential facility in New Westminster that was home to a staggering 9,125 unwanted children and disabled adults. Today there are an estimated 2,200 survivors of the institution, which operated between 1950 and 1996.

Class-action members sought an order for the release of an estimated 2.2 million pages of Woodlands-related documents, including records on involuntary sterilization. The court agreed, but the government appealed.

On February 13, 2009, justices unanimously ruled that the province must release the documents, but Victoria was slow in responding. In March, another ruling, this one by Supreme Court Justice Deborah Satanove, bolstered the February decision.

“In a case-management conference March 24 and 25, Judge Satanove ordered the province to answer all questions,” Woodlands survivor and class-action representative Bill McArthur told the Georgia Straight. “The province wanted just to respond to questions about sexual abuse, but the judge wants to look at all the practices at Woodlands, including the lack of educational and vocational resources. This is a great victory for us.”

McArthur added this as well: “She’s asked the province to provide individual residents’ files and the files [ex-ombudsman] Dulcie McCallum and the PGT [Public Guardian and Trustee of B.C.] accessed to write their reports on Woodlands, and staff files and occurrence reports”¦And she wasn’t very happy that the province had only provided 62 document files so far.”

McCallum’s 2001 review of conditions at Woodlands found widespread physical, sexual, and psychological abuse. Released in 2002, her report urged government to apologize and compensate victims. The B.C. Liberal government apologized but refused to pay compensation, and still denies that systemic abuse occurred. Survivors launched a class-action suit in 2002.

In the 2005 case Arishenkoff v. British Columbia, the court found the Crown and its agents couldn’t be held liable for any wrongdoing prior to the implementation of the Crown Proceedings Act of August 1, 1974.

In 2006, government offered a settlement, but the offer required each person to prove their abuse before an arbitrator, who would determine damages based on each assault. Some assaults (e.g., anal versus vaginal rape) were worth more than others.

Calling the offer “degrading and dehumanizing”, McArthur instructed class counsel Poyner-Baxter to reject the offer. Jim Poyner then asked the court to remove McArthur as plaintiff and to divide the class into pre- and post-1974 claimants. McArthur sought new counsel and asked the court to remove Poyner-Baxter, and in 2007 the court agreed. Poyner appealed—an appeal abandoned after Poyner-Baxter and new class counsel David Klein agreed to work together.

But in 2008, citing Arishenkoff, the province applied to exclude all members resident at Woodlands prior to August 1, 1974, and the court agreed, eliminating more than 1,000 potential claimants. Klein appealed—that decision is still pending.