Court finds government discrimination against FN children; compensation could reach $2 billion
The Federal Court has upheld two key rulings in First Nations child welfare litigation: a landmark compensation order for First Nations children and their families, and a determination that the federal government ultimately assumes responsibility for the provision of services to First Nations children.
“It’s a giant victory,” says Sarah Clarke of Clarke Child and Family Law in Toronto, who was co-counsel for the respondent First Nations Child and Family Caring Society of Canada in the case.
“I can’t explain how important this decision is,” she told Canadian Lawyer. “I'm not aware of any other case in Canadian history where the Human Rights Tribunal has awarded compensation to this number of victims -- and it's been upheld by the Federal Court. It’s an enormous victory for the kids and for the complainants and the interested parties.”
An estimated 54,000 children and their parents or grandparents could be eligible to receive compensation, which could cost the federal government more than $2 billion.
Federal Court upholds findings of discrimination
The case focused on two areas of discrimination, says Clarke: the delivery of child welfare services through the federal government's child welfare program, and the delay or denial of social services to First Nations children as a result of jurisdictional disputes between the federal and the provincial or territorial governments. Both parts of the case were fully litigated between 2007 and 2016.
In 2016 the Canadian Human Rights Tribunal found that the federal government was discriminating with respect to both issues: the delivery of child welfare services to First Nations children, and the Jordan’s Principle rule, that says when there is jurisdictional disagreement over which level of government should provide a service to First Nations children, Ottawa must take the responsibility.
In September 2019 the tribunal ordered the federal government to pay $40,000 -- the maximum it can award -- to each First Nations child removed from her or his home after 2006, as well as to their parents or grandparents (depending on who the primary caregiver was), and as long as the children were not taken into the child welfare system because of abuse. The federal government appealed those awards.
In Canada (Attorney General) v. First Nations Child and Family Caring Society of Canada, the Federal Court found that the government failed to establish that either of the tribunal's decisions were unreasonable.
The government had argued that the tribunal overreached and was wrong to order Ottawa to pay $40,000 — the maximum allowed under the Canadian Human Rights Act — to each child affected by the on-reserve child welfare system since 2006.
"No one can seriously doubt that First Nations people are amongst the most disadvantaged and marginalized members of Canadian society," Federal Court Justice Paul Favel wrote in his decision, released Wednesday.
"The Tribunal was aware of this and reasonably attempted to remedy the discrimination while being attentive to the very different positions of the parties."
Justice Favel also found that the Attorney General of Canada, who had filed the application for a judicial review and a stay of the order from the Canadian Human Rights Tribunal, had "not succeeded in establishing that the compensation decision is unreasonable."
What victims are entitled to receive as compensation under the Canadian Human Rights Acts differ from what plaintiffs would get in a tort case, explains David Taylor, a partner in Conway Litigation in Ottawa and co-counsel for the respondent Caring Society.
“The $40,000 per victim amount was divided between $20,000 for pain and suffering -- which is about the indignity of having had to go through discrimination -- and then $20,000 for the wilful and reckless nature of the discrimination, which is really about the federal government, having known about the discrimination” and having done nothing about it.
The harm being compensated for was the children being removed from their homes, and the parents or caregiving grandparents losing them, and so the $40,000 per victim amount is a base amount. If there are “worse harms,” there are other, additional means to compensate for those harms, he says.
Eligibility of claimants
The Tribunal had ruled that Jordan’s Principle should apply to children who are members of a First Nation even if they do not have status under the Indian Act, as well as to those whose parents are eligible for status.
“We argued that First Nations should be able to identify their own kids, and the tribunal agreed,” says Clarke.
Wednesday’s decision also confirmed, for the purposes of eligibility, “that First Nations people decide who First Nations children are,” Taylor adds.
Standard of reasonableness
In considering the Canadian Human Rights Tribunal rulings in the case, “it really was open to the Federal Court to send certain things back or agree with Canada on certain parts of the decision,” says Clarke, “but that’s not what happened.”
“What it really demonstrates … is a real operationalization of Vavilov,” she adds. “What the Federal Court did here was take to heart the direction and guidance given by the Supreme Court in Vavilov about how to look at decisions like those of the Canadian Human Rights Tribunal and assess them within the reasonableness framework.” In this case, the Tribunal “has been seized of this case for more than 10 years, and has been intimately involved in every moving aspect” of it.
In a statement to Canadian Lawyer, Indigenous Services Minister Marc Miller said that “Canada is reviewing the Federal Court’s decision and further information will be forthcoming.
“Canada remains committed to compensating First Nations children who were removed from their families and communities and to continue implementing significant reform of the First Nation Child and Family Services Program, recognizing that class actions have been filed, including by the Assembly of First Nations and [Xavier] Moushoom. Jordan’s Principle continues to ensure that First Nations children can access the products, services and supports they need when they need them.
“We continue to work with Indigenous governing bodies to implement An Act respecting First Nations, Inuit and Métis children, youth and families, under which First Nations are enabled to exercise their jurisdiction in relation to child and family services and make decisions in the best interest of their children.
“These are important steps in redressing the intergenerational impacts of colonization.”
With files from The Canadian Press.