'My judges don't even get a day off'

Lawyers involved in the second lawsuit launched on behalf of Ed Horne's sexual abuse claimants handed Justice Beverly Browne a tough problem this week: how to conduct a massive civil trial within a Nunavut Court of Justice that is already overstretched.

"My judges don't even get a day off," Browne said Feb. 5, as lawyers for each side began to present her with competing proposals on how to try the case.

In the 2006 annual report of the Nunavut court, Browne, who also serves as chief judge, said the appointment of a fourth Nunavut judge was "essential."

That's because the Nunavut court now copes with a crushing workload driven by thousands of new criminal cases each year and a rapidly mounting number of civil cases. In 2006, the number of new civil cases opened rose to 734, up from 430 in 2002.

This week, Browne learned from lawyers that a civil trial of the second Ed Horne lawsuit could require four to six months of court time, more than 100 witnesses, thousands of pages of documents and many hundreds of thousands of dollars in costs.

Geoffrey Budden, a lawyer from Mt. Pearl, Nfld., filed the lawsuit in February of 2004 on behalf of 69 Nunavut claimants from Cape Dorset, Sanikiluaq, Kimmirut and Grise Fiord. All of them want compensation for damages they allege to have suffered as a result of Horne's sexual molestation.

Instead of agreeing to the type of out-of-court dispute resolution process that was used to secure a $21.5 million settlement for an earlier group of claimants, lawyers for the governments of Nunavut and the Northwest Territories responded with a vigorous defence that they're still maintaining.

For that reason, Budden says his clients need a process in which every one of those witnesses would be prepared to give evidence – not once, but twice.

That's because he wants the process "bifurcated," or divided into two trials. Under his proposal the first trial would deal with the liability question, in the hope that his clients will soon start getting money for counselling and healing.

The second trial, Budden said, would deal with the question of damages – a determination of how much compensation the two governments should pay each victim.

And he says that as long as the governments of Nunavut and the Northwest Territories continue to deny many of his client's claims, that's the only way they can prove their credibility.

"Nothing will save the plaintiffs from having to testify, as long as the defendants challenge their credibility," Budden said in court.

Budden said the first trial should be split between Sanikiluaq, Cape Dorset and Kimmirut.

As Budden made his arguments, Robert Dewar, the Winnipeg lawyer representing the GN and the GNWT, sat shaking his head and making notes.

Under Dewar's proposal, the Nunavut court would hold a mini-trial involving only eight of the 69 complainants.

Arguing that Budden's proposal is "neither fair nor efficient," Dewar said a judge's mind could be prejudiced by hearing the same thing over and over from 69 witnesses.

"I'm not sure if I'm going to go along with you there," Browne said, turning her head to give him a bemused smile.

Dewar said, however, that it may be difficult for the court to figure how much damage Horne's abuse actually caused.

"Some came from difficult circumstances… Is this person's dysfunction today attributable to Mr. Horne? Or is it attributable to everything that went on in this person's life? There is a tendency for people to seize upon Mr. Horne as a scapegoat for everything that went wrong in their lives."

Dewar also suggested that the lawsuit is not one claim, but 69 individual claims that could have been submitted separately.

For his part, Budden said "he strongly resists" the choice of eight complaints that Dewar wants to move into a trial, saying the government lawyer chose the ones that best help their defence.

"The defence has cherry-picked those who give them certain advantages," Budden said.

As well as deciding how to manage a trial, Browne will also have to decide on a request from Budden to bring more witnesses into hearings of discovery, including Joe Handley, a former deputy minister of education, and a long list of former bureaucrats who worked in the Baffin region in the 1970s and 1980s.

Budden said evidence from those witnesses is crucial to proving negligence on the part of the territorial government, a key element of the lawsuit.

A big part of Handley's potential evidence is likely related to a letter he wrote to Bert Rose, then the superintendent of education for the Baffin region, early in 1986.

That letter, along with many other documents, now sits in a sealed file.

Budden alleges in his motion that there is evidence ­showing the territorial government had policies and procedures under which teachers involved in sexual misconduct with students were let off with either a warning or were allowed to resign.