Class action proceeds against federal, NWT, Nunavut governments

A Nunavut judge is allowing a class action lawsuit against the Attorney General of Canada and the commissioners of Nunavut and the Northwest Territories to proceed.

The class action seeks damages for former students of Maurice Cloughley who allege they were sexually abused by him between 1967 and 1981. Lawyers behind the action said there are at least 50 members. 

Alan Regel, a lawyer with the firm Cooper Regel, told Cabin Radio the action will focus on students who say they were sexually assaulted or had pornographic photos taken of them after 1969. Cases prior to that fall under the federal Indian day school class action.

According to court documents, Cloughley was a teacher in several communities in the NWT and what is now Nunavut between 1959 and 1987.

In June 1995, he was charged with 22 sexual offences against some of his former students. In February 1996, as part of a mid-trial plea agreement, Cloughley pleaded guilty to nine of those charges while the remaining 13 were stayed. He was sentenced to 10 years’ imprisonment. 

Lawyers applied for the class action to be certified on February 14, 2020. In Nunavut, class actions have to be certified by a judge as the territory does not have class action legislation. 

In a written decision on Monday, Justice Paul Bychok said the action will help class members who live in remote communities where there are no resident lawyers, to pursue their claim. He said a class action will also allow the court and class members to allocate resources more efficiently than several independent actions. 

“Given the ongoing vulnerability of our youth in our remote communities, class action litigation may have a beneficial educational impact,” he added.

Government responsibility

The NWT and Nunavut had not contested the certification, but they did object to the inclusion of a claim that the governments owed a fiduciary duty of care to – or an obligation to act in the best interests of – the former students in the action.

The territories argued there are a limited number of circumstances where governments owe a fiduciary duty, and they are not typically determined on a group basis.

Justice Bychok disagreed.

He noted the government forced Inuit off the land and into artificial and newly created remote settlements where they established and maintained health care, housing, schools, and law and order.

“Government exercised colonial power over Inuit and enforced it, in part, by armed authority,” he wrote.

Authorities also placed Cloughley in a position of power over his students, Bychok continued.

“These Inuit children were extremely vulnerable by the very essence and structure of this student-teacher relationship. Mr Cloughley abused his authority and power over these children.” 

The action’s statement of claim alleges the governments are vicariously liable or responsible for the abuse as they failed to investigate Cloughley’s background or suitability as a teacher in remote, isolated communities; put little or no restrictions on him; failed to monitor his activities; and did not implement safeguards to ensure, if he did abuse his position of trust and power, it would be quickly detected and stopped.

The claim also alleges the governments fostered a cultural perception among Nunavummiut that Kabloonaks (white people) and government workers were to be respected and obeyed and that failure to do so would be punished. 

“It was impressed upon the children, including the plaintiffs, by their parents and Elders that whatever Cloughley did was not to be criticized, undermined, or complained about,” the claim states.

According to the claim, that enabled Cloughley to abuse students at his home, schools, and other places in the communities, sometimes during school hours. It alleges he created an “environment of sexuality” to manipulate students and discourage them from reporting what was taking place.

Claim alleges shame, fear

The claim alleges students endured physical and psychological pain, humiliation, betrayal, shame, embarrassment about their bodies, and fear that photographs taken of them would surface.

“Those children who were depicted in the pornographic materials Cloughley created are re-victimized each time their image is viewed,” the claim states. “They will live the rest of their live[s] with the knowledge Cloughley, or others he may have shared their images [with], may be viewing their images at any time.”

The defendants – the three governments – have not yet filed any statement of defence in response to the claims. Cloughley, who is not a named defendant, could not be immediately reached for comment.

The class action comes after several of Cloughley’s former students filed two separate civil lawsuits in the years leading up to 2008.

According to court documents in one of those suits, Cloughley was living in New Zealand in 2008 and had been a resident there since 2003. The documents note that, in news reports from the city where he lived, Cloughley appeared as a “somewhat romantic figure given the fact he has sailed the world, written two books” and worked in remote Indigenous settlements in Canada.

In December 2016, three plaintiffs filed a notice asking the court to certify a class action seeking damages on behalf of Cloughley’s former students.

Representatives of the class action can now file their statement of claim with the court and the defendants can respond to the claims.