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
2021-11-16
Neutral citation
2021 CHRT 41
File number(s)
T1340/7008
Decision-maker(s)
Marchildon, Sophie; Lustig, Edward P.
Decision type
Ruling
Grounds
National or Ethnic Origin
Race
Notes
Summary:
This case is about systemic racial discrimination against First Nations children. In an earlier decision, the Tribunal found that Indigenous Services Canada underfunded child and family services for First Nations children including prevention services. Prevention services support the principle of “least disruptive measures” to keep children in their homes, families and communities as much as possible. This principle recognizes the importance of keeping the bond between parents and children. It ensures that everything is done to avoid removing a child from home. The underfunding and lack of services led to First Nations children being removed from their homes, families and communities and placed in care as a first resort rather than as a last resort. In contrast, other children usually benefited from prevention services. Indigenous Services Canada also took a narrow view of Jordan’s Principle. This denied services to First Nations children. This is systemic racial discrimination.
Decision Content
Canadian Human Rights Tribunal
Tribunal canadien des droits de la personne
Citation: 2021 CHRT
41
Date:
November 16, 2021
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
Member:
Sophie Marchildon
Edward P. Lustig
Table of Contents
Major Capital and Small Agencies Reimbursement Motion 1
I. General Context 1
A. The Tribunal’s Approach 3
II. Major Capital Context 20
III. Major Capital Party Submissions 23
A. The Caring Society 23
B. The Chiefs of Ontario 26
C. Assembly of First Nations 26
D. Nishnawbe Aski Nation 27
E. Commission 27
F. Canada 29
IV. Major Capital Analysis 34
A. Prior Major Capital Analysis 34
B. FNCFS Major Capital Analysis 52
C. Capital to Support the Implementation of Jordan’s Principle Analysis 94
V. Supplementary Financial Administration Act Party Submissions 108
A. The Caring Society 108
B. The Chiefs of Ontario 110
C. Assembly of First Nations 110
D. Nishnawbe Aski Nation 111
E. Commission 111
F. Canada 113
VI. Financial Administration Act Analysis 115
VII. Reallocation Party Submissions 126
A. The Caring Society 126
B. Canada 127
VIII. Reallocation Analysis 128
IX. Capital for Band Representative Services and Prevention Services in Ontario Party Submissions 130
A. The Chiefs of Ontario 130
B. Nishnawbe Aski Nation 132
C. Canada 134
X. Capital for Band Representative Services and Prevention Services in Ontario Analysis 136
XI. Small Agency Reimbursement Context 153
XII. Small Agency Reimbursement Party Submissions 156
A. The Caring Society 156
B. Commission 158
C. Assembly of First Nations 159
D. The Chiefs of Ontario 159
E. Nishnawbe Aski Nation 159
F. Canada 159
XIII. Small Agencies Analysis 161
XIV. Proposal to Parties and Retention of Jurisdiction 164
XV. Order 165
Acknowledgement
The Tribunal is releasing this ruling in painful times in Canada were over a thousand unmarked graves of First Nations children who attended residential schools have been discovered and more continue to be discovered. Long before the heart wrenching discovery in Kamloops, the Truth and Reconciliation Commission called upon the Canadian government to provide funding to locate the children who died in residential schools. This call to action was published in 2015.
Many of the children who attended residential schools were forcibly removed from their homes, families and communities. The Tribunal heard evidence on residential schools and made numerous findings in that regard in 2016. It found there was a transformation of Residential Schools into an aspect of the child welfare system. The primary role of many Residential Schools changed from a focus on “education” to a focus on “child welfare”. Despite this, many children were not sent home, because their parents were assessed as not being able to assume responsibility for the care of their children. The Tribunal found that Indian Residential Schools are one example of a collective trauma that is part of a larger traumatic history that Indigenous Peoples have already been exposed to. The history of Residential Schools and the intergenerational trauma they have caused is another reason - on top of some of the other underlying risk factors affecting Indigenous children and families such as poverty and poor infrastructure - that exemplifies the heightened need of First Nations People to receive adequate child and family services, including least disruptive measures and, especially, services that are culturally appropriate. The Tribunal found the evidence in this case not only indicates various adverse effects on First Nations children and families by the application of AANDC’s FNCFS Program, corresponding funding formulas and other related provincial/territorial agreements, but also that these adverse effects perpetuate historical disadvantages suffered by Aboriginal peoples, mainly as a result of the Residential Schools system.
The Tribunal found there are approximately three times as many First Nations children in state care as there were at the height of Residential Schools.
The Panel recognizes the incommensurable pain of families, communities and Nations and honors their courage on their healing journey and quest for justice. It is time for a true paradigm shift in Canada so that we do not repeat history.
The mass removal of children from their homes, families, communities and Nations found in this case must stop now.
The helpline for residential school survivors can be reached at: 1-866-925-4419.
* While the Panel recognizes this broader context of the suffering Indigenous Peoples experience in Canada, the Panel can only address the legal dispute before it.
Major Capital and Small Agencies Reimbursement Motion
I. General Context
[1] This ruling addresses a number of related motions brought in the context of the Tribunal’s retained jurisdiction of the implementation of remedies in a complaint brought by the First Nations Child and Family Caring Society of Canada (the Caring Society) and the Assembly of First Nations (the AFN) against Canada on behalf of First Nations children and families. The first motion relates to Major Capital funding to support service delivery to First Nations children. The second relates to the scope of reimbursement for small First Nation Family and Child Services Agencies (FNCFS Agencies). Another issue addressed in this ruling is an Ontario-specific request for Capital funding for Band representatives and prevention services.
[2] The Tribunal found in 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 [the Merit Decision] that Canada engaged in discriminatory practices contrary to the Canadian Human Rights Act, RSC 1985, c H-6 (the CHRA) in its provision of services to First Nations children and families. In particular, the Tribunal found that the management and funding of the First Nation Child and Family Services Program (FNCFS Program) resulted in systemic racial discrimination and “resulted in denials of services and created various adverse impacts for many First Nations children and families living on reserves” (para. 458). The assumptions in the funding formulas resulted “in inadequate fixed funding for operation (capital costs, multiple offices, cost of living adjustment, staff salaries and benefits, training, legal, remoteness and travel) and prevention costs (primary, secondary and tertiary services to maintain children safely in their family homes)” (para. 458, emphasis added). In other words, the systemic racial discrimination resulted in the mass removal of First Nations children from their homes, communities and Nations.
[3] The Panel also found Canada’s definition and implementation of Jordan’s Principle to be narrow and inadequate, resulting in service gaps, delays and denials for First Nations children.
[4] The Tribunal has issued a number of subsequent rulings providing direction and guidance to establish substantive equality remedies to not only eliminate the discrimination already experienced by First Nations children but also to ensure that similar discriminatory practices do not occur in the future. The specific decisions that relate to each of the requests for remedies are discussed in the relevant sections. The Tribunal has retained jurisdiction over the determination of appropriate remedies to ensure, in particular, that the ultimate long-term remedies will be effective at eliminating the discrimination found and in preventing similar discrimination in the future.
[5] In an effort to promote reconciliation and recognizing the grassroot knowledge and expertise of First Nations, the Tribunal encouraged the parties to resolve as many of the remedial issues as possible through consultation. The parties have done so through the Collaborative Committee on Child Welfare (CCCW) and have been effective at resolving a number of issues. Some of the issues in this ruling arise from discussions that occurred at the CCCW but on which the parties were unable to reach an agreement.
[6] In light of the parties’ reference to the Financial Administration Act, RSC 1985, c F-11 in their submissions on funding of Major Capital to provide the infrastructure to support service delivery to First Nations children, the Panel requested further argument on the role of Canada’s financial legislation and policies. The parties’ further submissions addressed the role of the Financial Administration Act in general and beyond the confines of the Major Capital issue. The Panel has also addressed the outstanding dispute between the parties on reallocation of budgeted funds as that also relates to the Financial Administration Act issue.
[7] The Panel also requested the parties to confirm which submissions they were relying on to address the outstanding issues in this motion, which the parties did through correspondence dated September 1, 2020.
[8] In the interest of supporting the parties in moving forward with their discussions and negotiations, the Panel issued its ruling in a brief letter-decision dated August 26, 2021 with reasons to follow. This decision provides the Panel’s reasons in support of its orders.
A. The Tribunal’s Approach
[9] The Panel reviewed the scope of the CHRA remedies and the purpose of the legislation in earlier decisions. The Panel continues to rely on the approach it set out in these previous decisions. This section summarizes some of the salient points from those decisions.
[10] Throughout those decisions, the Panel consistently cited sections 2, 53(2) and 53(3) of the CHRA. Those provisions are as follows:
Purpose
2 The purpose of this Act is to extend the laws in Canada to give effect, within the purview of matters coming within the legislative authority of Parliament, to the principle that all individuals should have an opportunity equal with other individuals to make for themselves the lives that they are able and wish to have and to have their needs accommodated, consistent with their duties and obligations as members of society, without being hindered in or prevented from doing so by discriminatory practices based on race, national or ethnic origin, colour, religion, age, sex, sexual orientation, gender identity or expression, marital status, family status, genetic characteristics, disability or conviction for an offence for which a pardon has been granted or in respect of which a record suspension has been ordered.
Complaint substantiated
53 (2) If at the conclusion of the inquiry the member or panel finds that the complaint is substantiated, the member or panel may, subject to section 54, make an order against the person found to be engaging or to have engaged in the discriminatory practice and include in the order any of the following terms that the member or panel considers appropriate:
(a) that the person cease the discriminatory practice and take measures, in consultation with the Commission on the general purposes of the measures, to redress the practice or to prevent the same or a similar practice from occurring in future, including
(i) the adoption of a special program, plan or arrangement referred to in subsection 16(1), or
(ii) making an application for approval and implementing a plan under section 17;
(b) that the person make available to the victim of the discriminatory practice, on the first reasonable occasion, the rights, opportunities or privileges that are being or were denied the victim as a result of the practice;
(c) that the person compensate the victim for any or all of the wages that the victim was deprived of and for any expenses incurred by the victim as a result of the discriminatory practice;
(d) that the person compensate the victim for any or all additional costs of obtaining alternative goods, services, facilities or accommodation and for any expenses incurred by the victim as a result of the discriminatory practice; and
(e) that the person compensate the victim, by an amount not exceeding twenty thousand dollars, for any pain and suffering that the victim experienced as a result of the discriminatory practice.
Special compensation
53 (3) In addition to any order under subsection (2), the member or panel may order the person to pay such compensation not exceeding twenty thousand dollars to the victim as the member or panel may determine if the member or panel finds that the person is engaging or has engaged in the discriminatory practice wilfully or recklessly.
[11] In addition, the Panel relied on subsection 16(1) which is referenced in section 53(2)(a):
Special programs
16 (1) It is not a discriminatory practice for a person to adopt or carry out a special program, plan or arrangement designed to prevent disadvantages that are likely to be suffered by, or to eliminate or reduce disadvantages that are suffered by, any group of individuals when those disadvantages would be based on or related to the prohibited grounds of discrimination, by improving opportunities respecting goods, services, facilities, accommodation or employment in relation to that group.
[12] The Panel considered the appropriate approach to interpreting the CHRA in 2015 CHRT 14 in order to determine how to assess a retaliation issue (paras. 12-30). The Panel relied on the modern approach to statutory interpretation that “the words of an Act are to be read in their entire context, in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament” (para. 12). Further, it is incumbent on adjudicators to consider the special nature of human rights legislation in applying the CHRA, as noted in cases such as CN v. Canada (Canadian Human Rights Commission), 1987 CanLII 109 (SCC), [1987] 1 SCR 1114 [Action Travail des femmes] and B. v. Ontario (Human Rights Commission), 2002 SCC 66. The Panel also elaborated on Robichaud v. Canada (Treasury Board), 1987 CanLII 73 (SCC) and Ont. Human Rights Comm. v. Simpsons-Sears, 1985 CanLII 18 (SCC), [1985] 2 SCR 536 [O’Malley] that the purpose of the CHRA is to eliminate discrimination and that it is not necessary that the behaviour intends to discriminate.
[13] In the Merit Decision, the Panel determined that funding was a service (paras. 40-45). In reaching this conclusion, the Panel relied on both prior cases relating to funding and the quasi-constitutional nature of the CHRA that required that the statute “be interpreted in a broad, liberal, and purposive manner” appropriate to its special status (para. 43).
[14] Similarly, in the Merit Decision, the Panel reviewed the objective of the CHRA to promote substantive equality (paras. 399-404). As stated in section 2 of the CHRA, “all individuals should have an opportunity equal with other individuals to make for themselves the lives that they are able and wish to have and to have their needs accommodated, consistent with their duties and obligations as members of society” (emphasis from Merit Decision at para. 399). Achieving substantive equality will often require making distinctions to ensure that disadvantaged groups can benefit equally from services offered to the general public. Assessing substantive equality requires consideration of the full social, political and legal context of the claim. For First Nations, that includes Canada’s colonial attitude and resulting stereotyping and prejudice. It also involves the specific example of the Indian Residential Schools System and the Sixties Scoop. The CHRA requires that Canada not perpetuate these historical harms and disadvantages through the provision of its services.
[15] The Panel reviewed the Tribunal’s remedial powers (Merit Decision at paras. 474-490). The Panel reviewed sections 53(2)(a) and 53(2)(b) of the CHRA that collectively allow the Tribunal to order a respondent found to engage in a discriminatory practice to cease the discrimination, redress the discrimination so similar discrimination does not occur in the future, and provide to the victims the opportunities they were denied. The Panel recognized that the requests for immediate relief were consistent with the purpose of the CHRA but also acknowledged the need for balance espoused by AANDC. Accordingly, the Panel ordered Canada to cease its discriminatory practices and reform the FNCFS Program and Memorandum of Agreement Respecting Welfare Programs for Indians [1965 Agreement] to reflect the findings in the Merit Decision and to immediately implement the full meaning and scope of Jordan’s Principle rather than apply its narrow definition. However, achieving substantive equality requires refocusing policy to respect human rights principles and appropriate social work practices. It requires more than funding reforms. The Panel recognized the complexity of an effective remedy in this case. Accordingly, the Panel indicated it would require further submissions to ensure its remedial orders were fair, practical, meaningful and effective.
[16] The Panel retained jurisdiction after the Merit Decision until the outstanding remedial issues were addressed (paras. 493-494). The Panel continued in its subsequent rulings to retain jurisdiction until the remedial issues are resolved.
[17] In 2016 CHRT 10, the Panel set out in more detail the various remedial issues (paras. 1-5). The Panel identified that the remedial process involved determining compensation and implementing program reform in the immediate, medium and long-term.
[18] The Panel reiterated the remedial principles of the CHRA that it would use to craft an effective and meaningful remedial order (2016 CHRT 10 at paras. 10-19). The quasi-constitutional nature of the CHRA required a broad, liberal and purposive reading. The remedial powers under section 53 of the CHRA must be interpreted to achieve the equality objective and purpose articulated as the purpose in section 2 of the CHRA. The purpose of an order is not to punish a person but to eliminate and prevent discrimination. The Tribunal must ensure its remedial orders effectively promote the rights protected under the CHRA and vindicate the losses suffered by victims of discrimination. In doing so, the Tribunal must take a principled and reasoned approach that considers the particular circumstances of the case and the evidence presented. Constructing an effective remedy in a complex case such as this one often demands innovation and flexibility. Section 53(2)(a) and (b) of the CHRA provide for this flexibility. Those provisions can override an organization’s right to manage its own affairs and can support a remedy of specific performance. They support provisions educating individuals about human rights. Section 53(2)(a) is designed to address systemic discrimination which requires addressing discriminatory practices and attitudes which requires considering historical patterns of discrimination.
[19] In retaining jurisdiction, the Panel cited Grover v. Canada (National Research Council), 1994 CanLII 18487 (FC), 24 CHRR D/390 at paras. 32-33 for the proposition that retaining jurisdiction on complicated orders designed to address systemic discrimination ensures discrimination is effectively remedied.
[20] In 2016 CHRT 16, the Panel noted that it is Indigenous Services Canada (ISC) and the federal government’s responsibility to implement the Tribunal’s orders and remedy the discrimination found in the case. ISC must also communicate its response to the other parties and the Tribunal so they can ensure the discrimination has been remedied (para. 9). The Panel also indicated that while it shared the desire to implement a remedy quickly, this is a complex matter and the Panel is committed to ensuring all parties have an opportunity to fully present their positions (para. 13).
[21] In 2017 CHRT 14, the Panel considered the burden of proof on parties at the remedial stage (paras. 27-30). Section 53(2) of the CHRA requires the Tribunal to consider whether a remedy is appropriate if discrimination is established. To do so, the Tribunal must assess the evidence available to it but may request additional information and submissions from the parties if required. The process is focused on gathering the necessary information to craft effective orders. Accordingly, the question of the burden of proof is not material unless there is a gap in the evidentiary record.
[22] Similarly, the Panel’s focus is not on making orders determining whether Canada has complied with previous orders (2017 CHRT 14 at para. 31). Instead, the focus of the retained jurisdiction is to ensure the Panel’s orders are effective and rectify the adverse effects of the discriminatory practices identified in the Merit Decision. Furthermore, the Panel’s objective is to ensure that Canada’s implementation of its orders is sufficiently responsive to the systemic discrimination detailed in the Tribunal’s findings. That process will take time and it is valuable to address as many issues as possible immediately while awaiting the evidence to support long-term reform.
[23] Furthermore, the Panel’s approach has been to provide guidelines to encourage the parties to work out between themselves the details of the remedy (2017 CHRT 14 at para. 32).
[24] The Panel set out why the unique circumstances of this case required Canada to consult with the other parties in the remedial stage (2017 CHRT 14 at paras. 113-120). Section 53(2)(a) sets out the authority to order consultation with the Commission. The Panel distinguished the current case from Canada (Attorney General) v. Johnstone, 2013 FC 113 that found that ordering consultation with other parties was not appropriate. The other parties’ expertise in this case is invaluable. Furthermore, the Crown has a trust-like relationship with Indigenous peoples which requires Canada to act honourably in its dealings with First Nations and to treat them fairly. This relationship also manifests as a fiduciary relationship and in the duty to consult. Section 1.1 of An Act to amend the Canadian Human Rights Act, S.C. 2008, c. 30 confirms that the CHRA does not derogate from this relationship. In addition, the best interests of the child are central to this case. The other parties in this case include professionals with specific expertise in First Nations child and family services. These organizations have the knowledge to make recommendations to improve the cultural appropriateness of Canada’s response. Finally, consultation with First Nations is consistent with Canada’s stated remedial approach in this case.
[25] In 2018 CHRT 4, the Panel already considered Canada’s arguments about how the separation of powers limited the Tribunal’s remedial jurisdiction under the CHRA. The Panel has already answered Canada’s argument and continues to rely on those findings (paras. 21-83). Without repeating all those findings, it is helpful to reiterate that in making its orders the Tribunal does not seek to usurp the powers of other branches of government. It is operating under its quasi-constitutional Statute that permits it to address past discriminatory practices and prevent future ones from occurring. This is provided for in the Act under section 53 (2) (a).
[26] Section 53(2)(a) of the CHRA gives this Tribunal the jurisdiction to make a cease-and-desist order. In addition, if the Tribunal considers it appropriate to prevent the same or a similar practice from occurring in the future, it may order certain measures including the adoption of a special program, plan or arrangement referred to in subsection 16(1) of the CHRA (see National Capital Alliance on Race Relations (NCARR) v. Canada (Department of Health & Welfare) T.D.3/97, pp. 30-31). The scope of this jurisdiction was considered by the Supreme Court of Canada in CN v. Canada (Canadian Human Rights Commission), 1987 CanLII 109 (SCC), [1987] 1 SCR 1114, [Action Travail des Femmes]).
[27] Consequently, any order made by the Tribunal, especially in systemic cases, has some level of impact on policy or spending of funds. To deny this power to the Tribunal by way of decisions from the executive would actually prevent the Tribunal from doing its duty under the Act which is quasi-constitutional in nature. Throughout its existence, the Tribunal has made orders on numerous occasions that affect spending of funds. Sometimes orders amounting to millions of dollars are made (see for example Public Service Alliance of Canada v. Canada Post Corporation, 2005 CHRT 39 at para.1023 affirmed by the Supreme Court of Canada, see Public Service Alliance of Canada v. Canada Post Corp., [2011] 3 SCR 572, 2011 SCC 57).
[28] In addition, specific remedies impacting policy are often made to remedy discrimination. This is particularly true of systemic cases. These remedies have been confirmed in National Capital Alliance on Race Relations (NCARR) v. Canada (Department of Health & Welfare), 1997 CanLII 1433 (CHRT), 28 CHRR 179 and Action Travail des femmes. Moreover, remedial orders may impose positive obligations on a party. Further, the orders must flow from the Tribunal’s findings and must be responsive to those findings.
[29] The Tribunal also discussed section 16 of the CHRA relating to the adoption of a special program, plan or arrangement and prevention of future discrimination by relying on National Capital Alliance on Race Relations v. Canada (Department of Health & Welfare), 1997 CanLII 1433 (CHRT) in 2018 CHRT 4 at para. 34:
Section 53(2)(a) of the CHRA gives this Tribunal the jurisdiction to make a cease-and-desist order. In addition, if the Tribunal considers it appropriate to prevent the same or a similar practice from occurring in the future, it may order certain measures including the adoption of a special program, plan or arrangement referred to in subsection 16(1) of the CHRA (see National Capital Alliance on Race Relations (NCARR) v. Canada (Department of Health & Welfare) T.D.3/97, pp. 30-31). The scope of this jurisdiction was considered by the Supreme Court of Canada in CN v. Canada (Canadian Human Rights Commission), 1987 CanLII 109 (SCC), [1987] 1 SCR 1114, [Action Travail des Femmes]). In adopting the dissenting opinion of MacGuigan, J. in the Federal Court of Appeal, the Court stated that:
...s. 41(2)(a), [now 53(2)(a)], was designed to allow human rights tribunals to prevent future discrimination against identifiable protected groups, but he held that "prevention" is a broad term and that it is often necessary to refer to historical patterns of discrimination, in order to design appropriate strategies for the future..... (at page 1141).
(emphasis added)
[30] The Panel rejected Canada’s argument that the separation of powers prevented the Tribunal from issuing orders affecting policy or public spending that would remedy the discrimination in this case. This is not a case where the Panel has made an order directing a specific amount of funding to prevent future discrimination. Exempting Canada from the remedial scope of the CHRA on the basis of the separation of powers is not consistent with the purpose of the CHRA and would reduce the Tribunal’s adjudicative role to an advisory one. Human rights law recognizes cost constraints through the bona fide justification defence but Canada has not made that argument (2018 CHRT 4 at paras. 45-46).
[31] In crafting its orders, the Panel is not interested in becoming involved in the details of program or policy design by for example choosing between policies as long as systemic discrimination is eliminated. The Panel’s objective in the remedial orders is to ensure that discriminatory policies cease to be used and the discrimination is remedied. The Panel is willing to make further orders if the discriminatory practices continue. Not to do so would be unfair to the successful parties. It is important to distinguish policy choices made by Canada that satisfactorily address the discrimination, in which the Panel refrains from intervening, from policy choices made by Canada that do not prevent the practice from reoccurring. To explain this, if the Panel finds that Canada is repeating history and choosing similar or identical ways to provide child welfare services that amounted to discrimination, the Panel has justification to intervene. While the Panel is willing to make further orders if Canada implements policies that fail to address the discrimination, it will not intervene if Canada implements policies that address the discrimination (2018 CHRT 4 at paras. 48-54).
[32] In particular, the Panel highlights the following passages from 2018 CHRT 4:
[51] Indeed, the Supreme Court in Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Communauté urbaine de Montréal, 2004 SCC 30 (CanLII) has also directed human rights tribunals to ensure that their remedies are effective, creative when necessary, and respond to the fundamental nature of the rights in question:
[52] Despite occasional disagreements over the appropriate means of redress, the case law of this Court, (…), stresses the need for flexibility and imagination in the crafting of remedies for infringements of fundamental human rights (…) Thus, in the context of seeking appropriate recourse before an administrative body or a court of competent jurisdiction, the enforcement of this law can lead to the imposition of affirmative or negative obligations designed to correct or bring an end to situations that are incompatible with the Quebec Charter. (see at para. 26),(emphasis ours),
[53] If the past discriminatory practices are not addressed in a meaningful fashion, the Panel may deem it necessary to make further orders. It would be unfair for the Complainants, the Commission and the interested parties who were successful in this complaint, after many years and different levels of Courts, to have to file another complaint for the implementation of the Tribunal’s orders and reform of the First Nations’ Child welfare system.
[54] It is important to distinguish policy choices made by Canada that satisfactorily address the discrimination, in which the Panel refrains from intervening, from policy choices made by Canada that do not prevent the practice from reoccurring. To explain this, if the Panel finds that Canada is repeating history and choosing similar or identical ways to provide child welfare services that amounted to discrimination, the Panel has justification to intervene.
(2018 CHRT 4 at paras 51-54).
[33] The Panel previously distinguished immediate relief orders from long term reform:
Finally on this point, while Canada advances that it needs to consult with all First Nations’ communities, which in our view remains paramount for long term reform, the Panel does not think consultation prevents Canada from implementing immediate relief. In so far as Canada’s position is that it cannot unilaterally make decisions, the Panel finds Canada has done so: namely to maintain the status quo in some areas even when the needs of specific communities or groups have been clearly identified and expressed in numerous reports filed in evidence in this case and, referred to, in the [Merit] Decision’s findings.
(2018 CHRT 4 at para. 55).
[34] The Panel recognized the value of Canada engaging in broad consultation with First Nations’ communities as part of its reforms of child and family services. However, the Panel did not find that consultation could delay immediate reform (2018 CHRT 4 at para. 55).
[35] The Panel reiterated the objectives of the CHRA at multiple points in its reasons, including in 2018 CHRT 4 at para. 165:
… the CHRA’s objectives under sections 2 and 53 are not only to eradicate discrimination but also to prevent the practice from re-occurring. If the Panel finds that some of the same behaviours and patterns that led to systemic discrimination are still occurring, it has to intervene. This is the case here.
(2018 CHRT 4 at para. 165).
[36] The Panel determined that a phased approach to remedies was needed to ensure short term relief was granted first, then mid-term and long-term relief, and complete reform which takes much longer to implement. The Panel understood that if Canada took 5 years or more to reform the Program, there was a crucial need to address discrimination now in the most meaningful way possible with the evidence available now. It may be necessary for the Panel to remain seized to ensure both that discriminatory practices are addressed and that there is an appropriate plan in place to ensure they will not reoccur (2018 CHRT 4 at paras. 384-389).
[37] In 2019 CHRT 7, the Panel described the remedial provisions of section 53(2)(a) of the CHRA as an injunction-like power to order that a discriminatory practice cease (paras. 45-55).
[38] The Panel discussed the purpose of individual financial compensation as a remedy in 2019 CHRT 39 [the Compensation Decision]. Individual remedies both validate the victims’ suffering and deter future discrimination (para. 14). Damages for wilful and reckless conduct in particular send a message that human rights are to be respected (para. 15). These remedies contrast with the other remedies aimed at preventing discrimination (para. 229). More generally in the Compensation Decision, the Panel reiterated its earlier comments on the remedial purpose of the CHRA, including noting that the Panel was obliged to consider the specific circumstances of the case, including as set out in the Statement of Particulars, the submissions and the evidence (para. 94-111).
[39] The Panel reviewed the appropriate approach to the Tribunal’s retention of jurisdiction in 2020 CHRT 7 at paragraphs 51 to 57. The Panel indicated that the retention of jurisdiction in this case allowed the parties to request amendments to the Panel’s orders if their expertise and experience identified a means to improve the orders’ effectiveness. The Panel recognized that implementing remedies in this case would involve discussion and negotiation between the parties. That is a complex process which requires flexibility. The Panel reviewed prior caselaw that concluded that it may be appropriate, in particular in the case of complex remedial orders, for the Tribunal to retain jurisdiction while the order is implemented.
[40] One of those cases the Panel reviewed was Berberi v. Attorney General of Canada, 2011 CHRT 23:
… the wide remedial powers set out therein, coupled with the principle that human rights legislation should be interpreted liberally, in a manner that accords full recognition and effect to the rights protected under such legislation, enables the Tribunal to reserve jurisdiction on certain matters in order to ensure that the remedies ordered by the Tribunal are forthcoming to complainants (see Grover at paras. 29-36).
(2020 CHRT 7 at para. 54 citing Berberi v. Attorney General of Canada, 2011 CHRT 23 at para. 13).
[41] In 2020 CHRT 24, the Panel also noted that it should not remain seized with the case indefinitely once long-term remedies are addressed and that it should not constantly address new issues. However, the Band Representative Services issue falls squarely within the scope of its orders and monitoring in order to eliminate discrimination and prevent it from reoccurring. (para. 23).
[42] Further, the Panel notes its comments at paras. 21-23:
[21] The Panel issued orders in 2018 CHRT 4 and remained seized of the implementation of those orders. The Panel has jurisdiction to answer requests for clarification of those orders, especially if the parties disagree on their interpretation. The Panel does not view this motion as a new issue. Rather, it is an issue of interpretation and implementation of the order and is one of the reasons why the Panel remained seized of its orders.
[22] The spirit of the 2018 CHRT 4 ruling is to remain seized of the implementation of the orders and to amend those orders if subsequent studies and/or new information show additional details on best practices and specific needs that were not accounted for given the lack of data. This was always part of the Panel’s goal for long-term relief and has not changed.
[23] … In fact, in 2018 CHRT 4 at paragraph 444, the Panel wrote:
The Panel retains jurisdiction over the above orders to ensure that they are effectively and meaningfully implemented, and to further refine or clarify its orders if necessary. The Panel will continue to retain jurisdiction over these orders until December 10, 2018 when it will revisit the need to retain jurisdiction beyond that date. Given the ongoing nature of the Panel’s orders, and given that the Panel still needs to rule upon other outstanding remedial requests such as mid-to long term and compensation, the Panel will continue to maintain jurisdiction over this matter. Any further retention of jurisdiction will be re-evaluated following further reporting by Canada (emphasis added).
[43] In 2021 CHRT 6, the Panel reviewed the scope of the CHRA remedial powers (paras. 51-76). The limitations on the CHRA’s remedial powers are those set out at section 54 limiting remedies against individuals who secured employment or accommodation in good faith. The Panel confirmed that interpreting the CHRA required using the modern approach to statutory interpretation in the context of the special nature of human rights legislation, as the Panel identified in earlier rulings.
[44] The Panel reviewed key case law interpreting the remedial scope of the CHRA with a particular focus on Action Travail des femmes and Robichaud (2021 CHRT 6 at paras. 59-75). These cases indicate that the Tribunal has significant discretion in awarding remedies but that this discretion must be guided by the purpose of the legislation to prevent and remedy discrimination. The remedies must be effective. It is not to be read narrowly to limit the Tribunal’s remedial tools given both general legislative interpretation principles and its quasi-constitutional status. Systemic remedies, such as supported under section 53(2)(a) of the CHRA by reference to section 16(1), are often required in cases of systemic discrimination. The main purposes of such a systemic remedy in Action Travail des femmes are countering the effects of systemic discrimination including addressing the attitudinal problem of ste