Ontario judge rules Fort William sanatorium not a residential school

The family of an 84-year-old Indigenous woman who tried to get a former sanatorium in what is now Thunder Bay, Ont., designated as a residential school says they're "disheartened" by a recent ruling.

Ruth Ann Henry was the applicant in an amended request for direction, filed in 2014, to get the "Fort William Indian Hospital Sanatorium School" added to the residential school settlement agreement. That would have meant survivors of the facility could have applied for compensation for years spent at the facility.

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Earlier this month, Ontario Superior Court Justice Paul Perell dismissed the application, ruling that the sanatorium does not satisfy the criteria necessary to add an institution to the residential school settlement agreement.

In his ruling, Perell noted that, in order for an institution to qualify, it must have housed children who were away from the family home, under the authority of the Government of Canada "for the purpose of education." The judge ruled that Indigenous students were placed at Fort William, first and foremost, for medical treatment.

"Though the applicant urges me to accept that placement of Aboriginal children at Fort William was merely an extension of the education provided to them, in light of the aforementioned evidence, I cannot," Perell wrote. "Though I accept that at least some Aboriginal children received education while residing at Fort William, I do not accept that Canada placed them there 'for the purposes of education.'"

Facility had numerous components

According to evidence submitted by Canada laid out in the judge's ruling, the sanatorium opened in 1935 under the auspices of the Tuberculosis Society of Northwestern Ontario and effectively closed for that purpose in 1974. During that time, the building also housed a "provincial school," for at least 20 years, plus an "Indian day school," operated jointly by the federal and provincial governments which was open in the early 1950s.

After the day school closed, evidence showed Indigenous students at the facility attended the provincial school, which the judge ruled was run by a Fort William Sanatorium School Board, without any involvement from the federal government. However, the tuition costs for the First Nations students attending the school were covered by Ottawa.

According to evidence submitted, the sanatorium admitted tuberculosis patients, not exclusively but including, Indigenous students who contracted it at residential school.

In launching the request for direction from the courts, survivors pointed to close links between residential schools and sanatoriums, arguing that, in some cases, the two institutions were nearly indistinguishable.

"The [education] of the students was still the responsibility of the [federal] government and they provided that," Ruth Anne Henry's son Larry told CBC News. "But it never showed that, or it never clearly indicated that, in that particular ruling and it should have."

"Knowing that our treaty rights, the education the Government of Canada had a responsibility also to provide that while they were in the facility."

Perell ruled that correspondence between federal officials at the time showed that "whether students received education while at Fort William was entirely dependent on the state of their health."

In his ruling, the judge also said that, while Canada "had some involvement in aspects of its operation at various times, as well as the welfare of some of the children resident there, this level of involvement did not rise to the standard" necessary to declare the sanatorium a residential school.

"I sympathize with the situation of those who were transferred from [residential schools] to Fort William," Perell wrote in his conclusion. "These young people contracted serious illnesses ... were subsequently diverted to the sanatorium and were away from their communities during times of significant health challenges." But he said the residential schools agreement was not designed to encompass "all residential placements."

Evidence left as a 'legacy'

In light of the judge's ruling, Larry Henry said the family is considering its next steps.

"When our ruling came out, [the court] recognized the education component, they recognized the students that went to the sanatoriums from the residential schools," he said. "So that sort of gives support in putting forward a particular class action lawsuit."

Henry said the evidence his mother gave about her time at the Fort William sanatorium "is open" and that it can be used should any further legal action take place. He said that she sees her testimony and evidence as her "legacy to help and move the discussions about the survivors that went to these institutions for treatment but also have been left out of the Indian Residential School Agreement."

"We know for a fact that there's other cases out there," Henry said. "We're leaving the door open for discussions right now and see where we stand."