But judge also urges out-of-court resolution

Justice Beverly Browne ruled last week that the best way for the Nunavut court to manage its massive Ed Horne sexual abuse lawsuit is for lawyers to pick 10 sample claimants and then argue those cases in a single trial next February.

"A trial involving all plaintiffs would be difficult to manage," Browne said in her ruling, issued April 25.

Lawyers acting on behalf of 69 Nunavummiut who demand compensation for sexual abuse by Ed Horne, a former territorial government teacher, principal and education consultant, filed the lawsuit against the governments of the Northwest Territories and Nunavut on Feb. 5, 2004.

At the time, they hoped to win a settlement similar to a $21.5 million deal that an earlier group of 82 Ed Horne victims won in 2002 through an out-of-court alternative dispute resolution process.

But when confronted by the second group in 2004, the territorial governments responded with an aggressive defence that is forcing the two sides into a protracted trial.

In a motion made this past February, lawyer Geoffrey Budden, who represents the claimants, proposed dividing the trial into two parts, and then doing two successive trials for all 69 plaintiffs.

But Robert Dewar, the Winnipeg lawyer who represents the two territorial governments, said such a process would be too long, too repetitive and two costly. He then presented Browne with eight "representative sample" cases picked from the list of 69 and said the court should try them in a shorter, single trial.

Budden objected to the eight sample cases, saying Dewar "cherry-picked" the ones that gave the territorial governments the greatest advantage.

And Budden said that an early trial on only the liability issue might lead to the early release of government money for counseling and healing.

A second trial dealing only with the ultimate size of a damage award, could be held after the liability, Budden suggested.

Such a process 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.

Browne resolved the dispute by saying the court should try 10 representative sample cases in a single trial. The 10 cases would be chosen in negotiations between the two sides and if the lawyers can't agree, then Brown would pick them after hearing submissions.

In her judgment, she repeated earlier warnings about the precarious state of Nunavut's court system, whose three judges must cope with many hundreds of new civil and criminal cases each year.

"Counsel were cautioned about the challenges the judiciary in Nunavut face with an ever-increasing workload and a limited number of judges," Browne said.

To oversee the trial, which is tentatively set for February 2009, Browne said the Nunavut court would use Justice Ronald Veale, who normally sits on the Supreme Court of the Yukon.

It's not yet clear where that trial would be held, but parts of it are likely to take place in Cape Dorset and Sanikiluaq, since 63 of the 69 plaintiffs are from those two communities.

Normally, most civil suits do not lead to trials and are instead settled out of court in negotiations between lawyers.

In her judgment, Browne suggested there's still reason to hope for an out-of-court deal, despite the many issues that separate the two sides.

"Settlement of the claims is elusive to date. A looming trial date may encourage all involved to focus on resolution," Browne said.

Browne also rejected a request from Budden to have Mark Cleveland, a former deputy minister of education with the Government of the Northwest Territories, dropped as the NWT government's "corporate representative."

Budden said the court should instead appoint Joe Handley, who was appointed as the GNWT's deputy minister of education in 1985 just a few months before Horne's sexual abuse of Inuit children first came to light.

It's expected that Handley's evidence would be highly controversial, and possibly expose some form of negligence on the part of GNWT officials in the 1970s and early 1980s.

Browne said, however, that Cleveland should remain as the GNWT's representative.

And she said that Budden is free to call Handley to give evidence at the trial.

Various letters and other written documents connected to the lawsuit are sealed and prohibited from being published until after they are filed at the trial.

In his February motion, Budden alleged the existence of policies and procedures between 1971 and 1985 that allowed territorial government teachers to receive warnings or be allowed to resign their jobs when caught in acts of sexual misconduct with students.

He also alleged the existence of policies and procedures aimed at the deliberate destruction of documents related to teachers caught in acts of sexual misconduct with students.

Those allegations have yet to be proven in court ­- but if they are, it's likely that they would be used to support a hefty claim for damages.