The Innu day school class action moves forward, with negligence claims against Canada struck
The Supreme Court of Newfoundland and Labrador has given a partial green light to the Innu day school class action launched in 2024 on behalf of as many as 2,000 Labrador Innu survivors. Innu Nation Inc. v. Canada (Attorney General), 2026 NLSC 101, is a split ruling: some claims survive, while others are struck.
What got certified in the Innu day school class action, and what didn’t
Two classes were certified in this August 26, 2026 decision:
- Survivor Class: former students of Innu Day Schools in Sheshatshiu, Natuashish, Davis Inlet, and Old Davis Inlet from 1949 to 2009
- Innu Governments Class: three collectivities (Innu Nation Inc., Mushuau Innu First Nation, and Sheshatshiu Innu First Nation) advancing collective claims for loss of language, culture, and community wellbeing
Justice Peter N. Browne of the Supreme Court of Newfoundland and Labrador certified the following claims to proceed:
- abuse-based negligence against the Province of Newfoundland and Labrador
- breach of fiduciary duty (per se, ad hoc, and sui generis) against both governments
- infringement of Aboriginal rights under s. 35 of the Constitution Act, 1982
- breach of the Honour of the Crown against both governments
However, the following claims are struck without prejudice, with leave to amend:
- the entire claim for systemic negligence against Canada
- the language and culture negligence claims against the Province
Why the negligence claims against Canada were struck
The plaintiffs’ pleadings acknowledged that Canada did not operate the schools day-to-day. As its role was limited to funding and participation in educational committees, that was not enough to ground a private law duty of care.
To apply the core policy immunity principle, the court drew on the Supreme Court of Canada’s decisions in Cooper v. Hobart, 2001 SCC 79, and Nelson (City) v. Marchi, 2021 SCC 41:
- decisions about allocating government resources, designing programs, and balancing social, political, and budgetary priorities are protected from negligence liability
- only operational conduct — that is, the actual implementation of policy — can attract a duty of care
- Canada’s role, as described in the pleadings, fell on the policy side of that line
The same reasoning struck the Province’s language and culture negligence claim. Rather than operational acts, those were policy choices about curriculum design, language-of-instruction decisions, and resource allocation. As such, the language and culture negligence claim was struck without prejudice, with leave to amend.
Fiduciary duty, Aboriginal rights, and the Honour of the Crown
In this Innu day school class action, all three forms of fiduciary duty survived:
- Per se fiduciary duty: akin to the parent-child relationship courts have applied to school boards
- Sui generis fiduciary duty: building on Wewaykum Indian Band v. Canada, 2002 SCC 79, which confirmed Crown-Indigenous obligations extend beyond reserve lands
- Ad hoc fiduciary duty: grounded in the plaintiffs’ pleading of discretionary control over Innu children’s education and their vulnerability as dependents of state-controlled institutions
On s. 35 Aboriginal rights, Justice Browne noted that jurisprudence on Indigenous language, culture, and governance continues to evolve. He could not conclude the asserted rights were incapable of recognition in Canadian law.
The Honour of the Crown claim also survived. While the court acknowledged it is not a standalone tort, it confirmed it is a “flexible and capacious doctrine” from which specific legal obligations can arise, citing Quebec (Attorney General) v. Pekuakamiulnuatsh Takuhikan, 2024 SCC 39. Consequently, striking the claim without a full evidentiary record was not an option.
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