First Nations Child & Family Caring Society of Canada et al. v. Attorney General of Canada (representing the Minister of Indigenous and Northern Affairs Canada)

First Nations Child & Family Caring Society of Canada et al. v. Attorney General of Canada (representing the Minister of Indigenous and Northern Affairs Canada)
Collection
Canadian Human Rights Tribunal
Date
2020-05-28
Neutral citation
2020 CHRT 15
File number(s)
T1340/7008
Decision-maker(s)
Marchildon, Sophie; Lustig, Edward P.
Decision type
Ruling
Grounds
National or Ethnic Origin
Race
Decision Content
Canadian Human Rights Tribunal
Tribunal canadien des droits de la personne
Citation: 2020 CHRT
15
Date:
May 28, 2020
File No.:
T1340/7008
Between:
First Nations Child and Family Caring Society of Canada
- and -
-Assembly of First Nations
Complainants
- and -
Canadian Human Rights Commission
Commission
- and -
Attorney General of Canada
(Representing the Minister of Indigenous and Northern Affairs Canada)
Respondent
- and -
Chiefs of Ontario
- and -
Amnesty International
- and -
Nishnawbe Aski Nation
Interested parties
Ruling
Members:
Sophie Marchildon
Edward P. Lustig
Table of Contents
Compensation Process Ruling on Outstanding Issues in Order to Finalize the Draft Compensation Framework 1
I. Introduction 1
II. Reconciliation and Jordan River Anderson and his Family 3
III. Framework for the Payment of Compensation under the Compensation Decision (Draft Compensation Framework and Draft Notice Plan) 4
IV. The COO and the NAN Request for the Compensation Decision Order to Apply Equally to First Nations Persons On or Off Reserve in Ontario 5
V. The COO and the NAN Request that the Category of Eligible Caregivers Be Expanded from Parents or Grandparents to Other Caregivers 10
VI. The NAN Request Relating to Remote First Nations Communities 15
VII. Definitions for Essential Service, Service Gap, Unreasonable Delay 19
A. Service Gap 20
B. Essential Service 35
C. Unreasonable Delay 44
VIII. Retention of Jurisdiction 50
Annex 1: General Principles 51
Compensation Process Ruling on Outstanding Issues in Order to Finalize the Draft Compensation Framework
I. Introduction
[1] This ruling follows this Tribunal’s compensation decision and orders rendered on September 6, 2019 (First Nations Child & Family Caring Society of Canada et al. v. Attorney General of Canada (representing the Minister of Indigenous and Northern Affairs Canada), 2019 CHRT 39 [Compensation Decision]) and subsequent ruling on additional compensation requests emanating from some parties arising out of the compensation orders (First Nations Child & Family Caring Society of Canada et al. v. Attorney General of Canada (representing the Minister of Indigenous and Northern Affairs Canada), 2020 CHRT 7).
[2] In the Compensation Decision, Canada was ordered to pay compensation in the amount of $40,000 to victims of Canada’s discriminatory practices under the First Nations Child and Family Services Program (FNCFS program) and Jordan’s Principle. This Panel ordered Canada to enter into discussions with the Assembly of First Nations (AFN) and the First Nations Child and Family Caring Society of Canada (Caring Society) and to consult with the Canadian Human Rights Commission (Commission) and the interested parties, the Chiefs of Ontario (COO) and the Nishnawbe Aski Nation (NAN), to co-develop a culturally safe compensation process framework including a process to locate the victims/survivors identified in the Tribunal’s decision, namely First Nations children and their parents or grandparents. The parties were given a mandate to explore possible options for the compensation process framework and return to the Tribunal. The AFN, the Caring Society and Canada have jointly indicated that many of the COO, the NAN and the Commission’s suggestions were incorporated into the Draft Compensation Framework and Draft Notice Plan. The Panel believes that this is a positive outcome.
[3] However, some elements of the Draft Compensation Framework are not agreed upon by all parties and interested parties. In particular the two interested parties, the COO and the NAN, made additional requests to broaden the scope of the Compensation Decision orders with which the other parties did not agree, as it will be explained below. Further, the COO and the NAN made a number of specific requests for amendments to the Draft Compensation Framework. The NAN’s requests mainly focus on remote First Nations communities, some of which will be discussed below. This reflects the complexity of this case in many regards. The Panel is especially mindful that each First Nation is unique and has specific needs and expertise. The Panel’s work is attentive to the inherent rights of self-determination and of self-governance of First Nations which are also important human rights. When First Nations parties and interested parties in this case present competing perspectives and ask this Tribunal to prefer their strategic views over those of their First Nations friends, it does add complexity in determining the matter. Nevertheless, the Panel believes that all the parties and interested parties’ views are important, valuable and enrich the process. This being said, it is one thing for this Panel to make innovative decisions yet, it is another to choose between different First Nations’ perspectives. However, a choice needs to be made and the Panel agrees with the joint Caring Society, AFN, and Canada submissions and the AFN’s additional submissions on caregivers which will be explained below. At this point, the Panel’s questions have now been answered and the Panel is satisfied with the proposed Draft Compensation Framework and Draft Notice Plan and will not address all of the interested parties’ suggestions that were not accepted by the other parties (i.e. the Caring Society, the AFN and Canada) ordered to work on the Draft Compensation Framework. The Panel will address the contentious issue involving specific definitions including some suggestions from the NAN concerning remote First Nations communities and two substantial requests from the COO and the NAN to broaden the scope of compensation below. For the reasons set out below, the Panel agrees with the Caring Society, the AFN and Canada’s position on the COO and the NAN's requests.
[4] Discussions between Canada, the AFN and the Caring Society on a compensation scheme commenced on January 7, 2020. The discussions resulting in the Draft Compensation Framework and Draft Notice Plan have been productive, and the parties have been able to agree on how to resolve most issues. At this point, there remains disagreement on three important definitions on which the parties cannot find common ground. These definitions are “essential service”, “service gap” and “unreasonable delay”. While the Panel is not imposing the specific wording for the definitions, the Panel provides reasons and guidance to assist the parties in finalizing those definitions as it will be explained below.
[5] The Caring Society, the AFN and Canada wish to clarify the proposed process for the completion of the Tribunal’s orders on compensation. As the AGC outlined in its April 30, 2020 letter, the Complainants and the Respondent are submitting the Draft Compensation Framework and Draft Notice Plan for the Tribunal’s approval in principle. Once the Tribunal releases its decision on the outstanding Compensation Process matters, the Draft Compensation Framework will be adjusted to reflect said orders and will undergo a final copy edit to ensure consistency in terms. The Complainants and the Respondent will then consider the document final and will provide a copy to the Tribunal to be incorporated into its final order. The Panel agrees with this proposed process.
[6] The Panel wishes to thank the Caring Society, the AFN, Canada, the COO, the NAN and the Commission for their important contributions to the realization of the Draft Compensation Framework.
II. Reconciliation and Jordan River Anderson and his Family
[7] In its recent ruling dealing with three questions related to the compensation process (2020 CHRT 7), the Panel asked the parties to consider whether compensation to the estate of Jordan River Anderson and the estate of his deceased mother and also to his father and First Nations peoples in similar situations should be paid as part of this Tribunal’s compensation process. While the Panel did not make a final determination on this issue, the Panel requested further submissions from the parties and interested parties on this point.
[8] While the AFN and the Caring Society agreed with the spirit of this possible amendment to the Tribunal’s compensation orders, they feared this could jeopardize the compensation process as a whole given that Canada opposes it. Canada previously submitted that with respect to compensation under Jordan’s Principle, the Panel was clear. At paragraph 251 of the Compensation Decision, compensation was granted for a defined period, Dec. 12, 2007- to November 2, 2017. These dates were also placed in bold in the judgment.
[9] Canada argues that their comments on the temporal scope above do not suggest a reopening of these compensation orders under Jordan’s Principle. Additionally, Canada submits that the complaint mentioned Jordan’s Principle and did not mention services prior to the adoption of Jordan’s Principle in December 2007.
[10] The NAN also made submissions in favour of such broadened compensation orders as described above. However, upon consideration, the Panel does not want to jeopardize the compensation process as a whole.
[11] In light of the above, the Panel strongly encourages Canada to provide compensation to Jordan River Anderson’s estate, his mother’s estate, his father and siblings as a powerful symbol of reconciliation.
III. Framework for the Payment of Compensation under the Compensation Decision (Draft Compensation Framework and Draft Notice Plan)
[12] The Panel has studied the Draft Compensation Framework and Draft Notice Plan alongside all the parties’, including interested parties’, submissions and requests. The Panel approves the Draft Compensation Framework and Draft Notice Plan “in principle”, with the exception of the issues addressed below. The “in principle” approval should be understood in the context that this framework is not yet finalized and that the parties will modify this Draft Compensation Framework and Draft Notice Plan to reflect the Panel’s reasons and orders on the outstanding issues regarding compensation. The Draft Compensation Framework, Draft Notice Plan and the accompanying explanations in the joint Caring Society, AFN and Canada submissions provide the foundation for a Nation-wide compensation process. The opt-out provision in the Draft Compensation Framework addresses the right of any beneficiary to renounce compensation under this process and pursue other recourses should they opt to do so. The opt-out provision protects the rights of people who disagree with this process and who prefer to follow other paths. The Panel expects that the parties will file a final Draft Compensation Framework and final Draft Notice Plan seeking a consent order from this Tribunal.
[13] The reasons on the outstanding compensation issues are included below.
IV. The COO and the NAN Request for the Compensation Decision Order to Apply Equally to First Nations Persons On or Off Reserve in Ontario
[14] The Panel has considered all the parties and interested parties’ submissions to determine this request. In the interest of brevity, the Panel has not reproduced all of those submissions. Rather it focuses on the COO’s submissions on this point, summarized below, given that the Panel provides reasons to the COO explaining why it does not accept its request.
Key Positions of the Parties
[15] The COO submits that in Ontario, the Compensation Decision Order should apply equally to First Nations persons on or off reserve. From an Ontario-specific perspective, the COO urges the Panel to consider the scope of the definition of “beneficiary” for the purposes of First Nations people in Ontario who would benefit from the Compensation Decision Order. The NAN adopts the COO’s submissions on this point.
[16] The COO advances that the Panel’s findings with respect to the delivery of child and family services in Ontario pursuant to the Memorandum of Agreement Respecting Welfare Programs for Indians (1965 Agreement) at First Nations Child and Family Caring Society of Canada et al. v. Attorney General of Canada (for the Minister of Indian and Northern Affairs Canada), 2016 CHRT 2 [Merit Decision] (found at paras. 217-246) rightly centre the locus of racial discrimination in the 1965 Agreement [1] . The Panel held, at paragraph 392, that there was discrimination under the 1965 Agreement because First Nations children did not receive all the services set out in the Ontario child welfare legislation, the Child and Family Services Act, RSO 1990, c C.11 [CFSA], and its predecessors (now replaced by the Child, Youth and Family Services Act, 2017, SO 2017, c 14, Sch 1 [CYFSA]). Rather, Canada underfunded services to First Nations children under the 1965 Agreement by funding only some of the services set out in provincial legislation, and failed to keep up to date with Ontario legislation (Merit Decision at paras. 222-226).
[17] The COO submits the resulting discrimination runs through Ontario’s programs and funding formulas, which apply equally to First Nations children receiving services from First Nations child welfare agencies and those receiving services from provincial “mainstream” child welfare agencies, as noted by the Panel in the Merit Decision at para. 222. The programs and funding formulas apply equally whether on or off reserve.
[18] The COO contends that it is helpful to remember that the 1965 Agreement does two main things. One, it requires Canada to pay a cost-share to Ontario, and that cost-share is indeed based on a calculation that uses the population of registered Indians mainly (though not exclusively) on reserve. Two, it requires Ontario to make the listed services available to “Indians” throughout the province, and not merely to those on reserve. The very nature of the 1965 Agreement is that service provision extends, via the Government of Ontario, both on and off reserve.
[19] The COO submits that from the perspective of a First Nations child, parent, or grandparent as a service recipient, the service they received was discriminatory both on and off reserve. The system of service provision under the 1965 Agreement does not draw a reserve-based distinction at the service delivery level.
[20] The NAN’s Chiefs Committee on Children, Youth, and Families has highlighted that NAN First Nations have members who live off-reserve in Ontario who have also experienced discrimination in child and family services. The NAN submits these individuals should not be excluded from eligibility for compensation solely for reasons of off-reserve residency.
[21] The NAN adopts and relies upon the submissions of the COO on the topic of eligibility for off-reserve First Nations children and their caregivers in relation to the 1965 Agreement.
Reasons on Compensation Off-Reserve in Ontario
[22] The Panel understands the COO’s comment on First Nations children, parents or grandparents’ perspective as service recipients and it is true to say that the Panel found the 1965 Agreement discriminatory. Given this important perspective, the Panel reviewed the record, its own findings, the complaint, the parties’ and the interested parties’ Statements of Particulars and amended Statements of Particulars, the parties’ and interested parties’ final arguments, the remedies requested in 2014, 2019 and 2020 and the Tribunal’s own findings in the Merits Decision. After a thorough review of the documents referred to above, the Panel finds it does not support the COO’s position of a broadened compensation under the Compensation Decision to include those children who were removed off-reserves. The COO’s own Statement of Particulars mentions on-reserve First Nations and adopts the Commission’s theory of the case and requested remedies contained in its amended Statement of Particulars which refer to on-reserve First Nations. The Commission and the COO’s final arguments, while addressing the 1965 Agreement’s discriminatory impacts, did not adduce sufficient evidence and arguments on off-reserve children and families. Rather, they focused towards on-reserve First Nations in Ontario and, in so doing, were able to meet their onus. The Tribunal’s findings were made after having carefully considered the COO and the Commission’s positions, the evidence, the submissions and the final arguments. Moreover, the Panel crafted its Compensation Decision orders based on the above. The Panel posed compensation questions to the parties prior to the compensation hearing held in 2019. The COO did not make written submissions on the issue of compensation. In their oral submissions, the COO advised it is content with the other parties’ requests for compensation.
[23] The Panel did invite parties to propose categories of children that could be added so the COO and the NAN’s request is completely understandable, however, the requests need to be connected to the claim and supported by the evidence and the findings. The Panel to arrive at its Merit Decision and rulings, did not consider if First Nations children in Ontario were unnecessarily removed from their homes off-reserves under the 1965 Agreement because it was not argued, proven or requested until now. The Panel believes that doing so now would require additional evidence and submissions and that it would be unfair to authorize this to take place at this late stage. In fact, in its ruling granting the NAN interested party status, the Tribunal wrote:
However, given we are at the remedial stage of these proceedings, the NAN’s written submissions should only address the outstanding remedies and not re-open matters already determined. The hearing of the merits of the complaint is completed and any further evidence on those issues is now closed. The Panel’s role at this stage of the proceedings is to craft an order that addresses the circumstances of the case and the findings already made in the [Merit] Decision (see 2016 CHRT 11, at para.14).
[24] Additionally, reopening matters to adduce new evidence and arguments could jeopardize the compensation process entirely as it may be viewed as unfair by some parties and this could significantly delay compensation to the victims identified in this case. The new evidence that the Panel accepts is geared towards the effectiveness and implementation of the Panel’s orders for immediate, mid-term and long-term reform including the order to cease and desist from the discriminatory practices identified in the Merit Decision and in its subsequent rulings. The off-reserve discriminatory impacts of the 1965 Agreement towards First Nations children off-reserve can be addressed by reform of the 1965 Agreement and Jordan’s Principle but unfortunately not under the Tribunal’s Compensation Decision orders outside of Jordan’s Principle orders.
[25] Nonetheless, in the Merit Decision, the Panel found the 1965 Agreement discriminatory and found:
AANDC’s design, management and control of the FNCFS Program, along with its corresponding funding formulas and the other related provincial/territorial agreements have resulted in denials of services and created various adverse impacts for many First Nations children and families living on reserves. Non-exhaustively, the main adverse impacts found by the Panel are:
[…]
The application of the 1965 Agreement in Ontario that has not been updated to ensure on-reserve communities can comply fully with Ontario’s Child and Family Services Act (see Merit Decision at para. 458, emphasis added).
Despite being aware of the adverse impacts resulting from the FNCFS Program for many years, AANDC has not significantly modified the program since its inception in 1990. Nor have the schedules of the 1965 Agreement in Ontario been updated since 1998. Notwithstanding numerous reports and recommendations to address the adverse impacts outlined above, including its own internal analysis and evaluations, AANDC has sparingly implemented the findings of those reports. While efforts have been made to improve the FNCFS Program, including through the EPFA and other additional funding, those improvements still fall short of addressing the service gaps, denials and adverse impacts outlined above and, ultimately, fail to meet the goal of providing culturally appropriate child and family services to First Nations children and families living on-reserve that are reasonably comparable to those provided off-reserve (see Merit Decision at para. 461, emphasis added).
Pursuant to these sections of the CHRA, the Complainants and Commission request immediate relief for First Nations children. In their view, this can be accomplished by ordering AANDC to remove the most discriminatory aspects of the funding schemes it uses to fund FNCFS Agencies under the FNCFS Program and child and family services in Ontario under the 1965 Agreement; and, requiring AANDC to properly implement Jordan’s Principle. Moving forward in the long term, the Complainants and Commission request other orders that AANDC reform the FNCFS Program and the 1965 Agreement to ensure equitable levels of service, including funding thereof, for First Nations child and family services on-reserve (see Merit Decision at, para. 475, emphasis added).
The AFN requests similar reform, including commissioning a study to determine the most effective means of providing care for First Nations children and families and greater performance measurements and evaluations of AANDC employees related to the provision of First Nations child and family services. Similarly, in Ontario, the COO requests that an independent study of funding and service levels for First Nations child welfare in Ontario based on the 1965 Agreement be conducted (see Merit Decision at para. 478, emphasis added).
The Panel is generally supportive of the requests for immediate relief and the methodologies for reforming the provision of child and family services to First Nations living on reserve, but also recognizes the need for balance espoused by AANDC. AANDC is ordered to cease its discriminatory practices and reform the FNCFS Program and 1965 Agreement to reflect the findings in this decision. AANDC is also ordered to cease applying its narrow definition of Jordan’s principle and to take measures to immediately implement the full meaning and scope of Jordan's principle (see Merit Decision at para. 481).
[26] The 1965 Agreement is discriminatory and needs to be entirely reformed and the Ontario Special study of the 1965 Agreement may be a helpful tool to achieve this goal for the benefit of First Nations children in Ontario.
[27] For those reasons, the Panel denies the COO and the NAN’s request to broaden the scope of compensation to include First Nations children who were not resident on reserves or ordinarily resident on reserves and who were unnecessarily removed from their off-reserve homes.
V. The COO and the NAN Request that the Category of Eligible Caregivers Be Expanded from Parents or Grandparents to Other Caregivers
Key Positions of the Parties
[28] In sum, the COO believes that the reality of families in First Nations communities means that aunts, uncles and other family members may well have been caring for children at the time of removal, and submits that such people should not be precluded from entitlement to compensation.
[29] In sum, the NAN submits it is not unusual in NAN First Nations for individuals other than parents or grandparents to act in a primary caregiving capacity. This reality is not reflected in the Compensation Decision Order. The NAN requests the category of eligible caregivers be expanded from parents or grandparents to include aunts, uncles, cousins, older siblings, or other family members and kin who were acting in a primary caregiving role.
[30] While the Panel issued the Compensation Decision after thoughtful deliberations, the Panel still reconsidered its decision based on the NAN and the COO’s suggestions. However, for the reasons explained below, the Panel denies their request.
Reasons on Compensation Eligibility for Additional Caregivers
[31] The COO and the NAN made extensive suggestions on how this compensation process could potentially work to include an expanded category of caregivers. Many suggestions have merit, however, the approach proposed by the NAN and the COO significantly departs from the approach the Tribunal adopted in the Compensation Decision where it agreed with the Caring Society and the AFN that children should not be retraumatized by being forced to testify about their circumstances and the trauma of being removed from their homes. This approach is paramount and is reflected in the Compensation Decision.
[32] The Panel entirely agrees with the AFN’s compelling submissions, summarized below, and believes those submissions are a full answer to the COO and the NAN’s request on this issue. Moreover, the AFN’s submissions convey the Panel’s findings, goal and approach to compensation and reasons why it chose to adopt such an approach. The Panel’s decision was carefully crafted to shield children from additional trauma and to account for the need to adopt a culturally safe and appropriate process.
[33] Moreover, unless the parties in this case agree in a settlement to create an adjudicative function outside the Tribunal, the Tribunal has no jurisdiction to order the creation of another tribunal to delegate its functions under the Canadian Human Rights Act, RSC 1985, c H-6 in order to adjudicate compensation arising out of its compensation orders. The AFN, the Caring Society and Canada reject this approach and the Panel agrees with them. This is consistent with the Panel’s Compensation Decision.
[34] Furthermore, the AFN submits it is deeply concerned about the COO and the NAN’s request to expand the definition of “caregiver” to other individuals. Both the COO and the NAN’s proposals would greatly complicate the compensation process and give rise to competing claims of who was the rightful caregiver. The Panel believes this to be true.
[35] The AFN notes that this Panel’s Compensation Decision Order was modeled after the Indian Residential Schools Settlement Agreement’s Common Experience Payment. The trigger that would entitle an individual to compensation is the apprehension of a child or the denial or delay of a service under Jordan’s Principle. There would be no reason for a person to justify any individual harm, nor would it require an individual to provide evidence to justify why they are entitled to compensation. This Panel opted to adopt a similar approach to the Common Experience Payment in determining eligibility for compensation to victims to avoid the burdensome and potentially harmful task of scaling the suffering per individual in remedies that are capped. A simple administrative process of verification is all that is required to make the payments as the government is in possession of the relevant documentation. Both the COO’s and the NAN’s recommendations would mark a significant departure from the Common Experience Payment model. Currently, one must demonstrate that they or their child/grandchild was apprehended/removed or impacted by the misapplication of Jordan’s Principle. Upon verification they would be paid compensation. However, both the COO and the NAN suggest that the compensation process now include an adjudicative function whereby a parent or grandparent must participate in contested proceedings along with the child’s uncles, aunts, cousins or other relatives. Under this proposed process, the parent/grandparent may have to prove: (1) they were the relevant caregiver; (2) they were financially responsible or paid more to support the child; (3) they loved the child more than others; and (4) they maintained a parental role or bond. They may also be expected to obtain the child’s written testimony that they believed their parents/grandparents were the primary caregivers. Again, the Panel believes this to be exact.
[36] The AFN submits that this proposed process is not in the best interests of the beneficiaries. This process will be traumatic for all involved, especially the child who might face pressure, coercion, bullying and stress in stating who stood in their life as the parental figure.
[37] Much like the COO and the NAN, the AFN agrees that every child is very important to the extended family. It is often recognized in First Nations that “it takes a community to raise a child”. As such, every member of the child’s family, the Chief and Council, educators, health professionals and others all owe a sacred duty to the child. Children are the most precious resource of a First Nations community.
[38] Building on the importance of family that both the COO and the NAN identify, the AFN acknowledges that other factors also play a significant role in how First Nations children are raised. For instance, this Panel has accepted evidence that housing shortages in First Nations communities exist. Typically, this results in more than two families living in a single housing unit. Often members of the same family would occupy such a residence. It therefore would not be unusual for a child to live with their parents, grandparents, uncles, aunts or older cousins. Strong family bonds are created in such a setting and a child may rely on more than one adult figure for things such as getting food to eat, seeking assistance in homework, etc.
[39] According to the AFN, despite the close kinship, the biological parents or grandparents of the child remain the most important figures in the child’s life, followed by the child’s siblings.
[40] Additionally, the AFN submits this Panel took notice of the widespread poverty many First Nations individuals suffer. Poverty related issues, systemic discrimination in the criminal justice system, and pursuit of economic opportunities can result in one or both parents leaving the community for a short period of time. During the brief period of a parent’s absence, a grandparent or other family member may care for the child.
[41] Under the COO and the NAN’s proposal, any of these adults living in the same dwelling as the child, and those who temporarily are looking after a child while their parents are away working or temporarily incarcerated would be able to contest an application for compensation filed by a parent. The AFN submits that the compensation plan has to be practical and very clear on who is eligible for compensation.
[42] Both the COO and the NAN assert that guidelines can be developed by the parties to address these types of competing claims. However, determining what types of caregiving was provided and the length of time associated therewith would require intrusive and in-depth investigation into potential beneficiary’s history. It is clear that this form of compensation process would be ripe for abuse. There is the potential that people could be compensated whom the apprehended child may not even know or remember. In the circumstance of a child who was apprehended, this system raises the specter that individuals who cared for the child on and off for a few months could become entitled to compensation. In addition, situations may arise where a family member filed and obtained compensation prior to and without the knowledge of the parents or grandparents applying for compensation. The Panel agrees with the AFN’s position.
[43] The AFN submits that both the COO and the NAN appear to focus on those individuals who were willing to assist in caregiving and/or contributing financially towards the care of a child as a determining element of compensation. The AFN submits that this may not be the best approach. The purpose of compensation is not meant to repay expenses or address the inconveniencing of family members. Rather, compensation is meant to compensate for the trauma of losing a family member who was apprehended as a result of Canada’s discrimination.
[44] The AFN adds that when compensation is expanded to other caregivers, the compensation is no longer for the loss of a biological child or grandchild by apprehension or misapplication of Jordan’s Principle. The nature and purpose of the compensation changes to that of compensating people for their time, expense and love for the child. The AFN submits that the purpose of the compensation awarded by the Panel is to compensate a biological parent or grandparent for the loss of their child to a system that targeted them because they were First Nations.
[45] The AFN submits the compensation scheme is meant to be objective, not subjective. To investigate the relationship between an adult and child removes the objective element and replaces it with an interrogatory process, which goes against AFN’s strong position that children in care not be subjected to the same traumatic process as Residential School survivors in the Independent Assessment Process. The Panel finds this to be the correct interpretation of the approach taken by the Panel in the Compensation Decision.
[46] Additionally, the COO asserts that caregivers beyond parents and grandparents aligns more closely with the family structures and practices experienced in many First Nations communities.
[47] However, the AFN contends that the COO references Canadian case law and legislation to suggest principles such as physical care, presentation of a parent-like relationship, financial contributions and intention to treat a child like their own should be determinative in this assessment. Likewise, while the NAN asserts First Nations laws, practices and traditions should be the guiding factors in determining who may be a potential caregiver, the NAN also seeks to avail to Canadian jurisprudence and legislation to compel the Central Administrator to make a subjective consideration on who is the most appropriate caregiver. This would import an adjudicative function into the compensation process that would likely require the creation of an industry that employs third party adjudicators and lawyers.
[48] The AFN strongly disagrees with the suggestion that a child’s perspective on who the appropriate caregiver is should be taken into account. The NAN does not propose a method on how the child’s perspective will be recorded. The only viable mechanism to adduce this information would be to question current or former children in care or Jordan’s Principle candidates about which caregiver, parent or grandparent they loved more, or who is more deserving of compensation. This approach would be traumatic as it effectively puts the relationship between a child and their family members on trial, which would certainly stress and potentially harm the emotional bonds between a child and their family members.
[49] Finally, the AFN does not support the COO’s proposal on how to address Ontario’s CYFSA and under-identification. The Ontario CYFSA was enacted in 2017. It replaced the former Ontario CFSA which was in place in Ontario from 1990-2017. The 1990 CFSA does not include an interpretation section which outlines the definition of “child in need of protection”. Therefore, the COO’s concerns would only capture children and youth beneficiaries from 2017 to 2020 and will not apply to the majority of beneficiaries in Ontario, much less the rest of Canada. The original taxonomy suggested by the Complainants and the Respondent would apply in almost all circumstances and cover those children impacted by the CYSFA. The Panel accepts this position.
[50] For those reasons, the Panel denies the COO and the NAN’s request for additional orders to expand the category of caregivers in this compensation process.
VI. The NAN Request Relating to Remote First Nations Communities
Key Positions of the Parties
[51] The NAN provided a reply to the responding joint submissions filed on behalf of the Caring Society, the AFN, and Canada and to the additional submissions filed on behalf of the AFN and on behalf of Canada. The NAN’s reply submissions address two novel issues raised in the joint submissions and additional submissions: (1) conflicting messages regarding the Framework’s responsiveness to remote First Nations; and (2) Canada’s suggestion that it would be procedurally unfair for this Tribunal to consider the NAN and the COO’s submissions of May 1, 2020 regarding caregivers given that the round of submissions was closed on March 16, 2020.
[52] In sum, the NAN submits that the parties oppose the NAN’s proposed modification to section 6.3 of the Draft Compensation Framework, a modification which would list considerations specific to remote First Nations, when determining resourcing requirements on the basis that such inclusion “risks excluding the unique needs of other First Nations communities.” At the same time, the Caring Society, the AFN and Canada oppose affirmation of the unique needs of other First Nations through incorporation of a proposed guiding principle that would affirm that “the compensation process is intended to be responsive to the diversity (linguistic, historical, cultural, geographic) of beneficiaries and of First Nations.” For the NAN, these are contradictory messages. In the context of proceedings in which substantive equality has been central, the NAN is surprised and confused by the opposition to the proposed guiding principle.
[53] The NAN argues that the concern regarding section 6.3 can be addressed by a simple drafting change indicating that the specific considerations listed by the NAN are not an exclusive or exhaustive list. The NAN provided the following copy of section 6.3, with the NAN’s initial proposed modifications underlined, and the NAN’s new proposed modification underlined and in bold:
6.3 First Nations will require adequate resources to provide support to beneficiaries. Canada will assist First Nations where requested by providing reasonable financial or other supports. In providing these support and determining what constitutes “reasonable financial or other supports” and what constitutes “sufficient resources” in section 6.2(b), consideration will be given to all relevant factors, including the particular needs and realities of remote First Nations with limited resources or infrastructure for providing support to beneficiaries, and who face increased costs in provision of services due to remoteness.
[54] The NAN contends that in its submission of May 6, 2020, the AFN opposes the NAN’s position that the Compensation Framework needs to be implemented in a way that takes into account regional specificities. However, in the same submissions, the AFN states that “regional considerations are adequately incorporated into the Draft Compensation Framework.”
[55] With respect to the NAN’s submission, the Caring Society, the AFN and Canada submit the intention is not for “discussions to continue” on any substantive issues outlined in the Draft Compensation Framework, Draft Notice Plan and accompanying products prior to or after the final rulings. For greater clarity, the Complainants and the Respondent have not filed the Draft Compensation Framework, Draft Notice Plan and accompanying products subject to any right by the NAN to return before the Tribunal “should an issue of concern arise”. It is the view of the Caring Society, the AFN and Canada that this was not the process envisioned by the Tribunal.
Reasons on the Proposed Modifications to Section 6.3
[56] The Panel is not privy to the Parties discussions on this Draft Compensation Framework and does not wish to rewrite the framework achieved by the Caring Society, the AFN and Canada in consultation with the Commission and the interested parties, the COO and the NAN. However, the Panel finds there is merit to the NAN’s argument and finds the proposed amendments to section 6.3 above