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
2019-02-21
Neutral citation
2019 CHRT 7
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: 2019 CHRT
7
Date:
February 21, 2019
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 and Edward P. Lustig
Table of Contents
I. Context 1
II. Motion for relief 12
A. Summary of the parties’ positions 12
B. Law analysis 16
III. Analysis 22
IV. Order 33
I. Context
[1] The Complainants, the First Nations Child and Family Caring Society (the Caring Society) and the Assembly of First Nations (the AFN) have filed a human rights complaint alleging that the inequitable funding of child welfare services on First Nations reserves amounts to discrimination on the basis of race and national ethnic origin, contrary to section 5 of the Canadian Human Rights Act, RCS 1985, c H-6 (the CHRA).
[2] In a decision dated March 14, 2011 (see 2011 CHRT 4), the Tribunal granted a motion brought by the Attorney General of Canada (for the Minister of Indian and Northern Affairs Canada) (INAC), for the dismissal of the Complaint on the ground that the issues raised were beyond the Tribunal’s jurisdiction (the jurisdictional motion). That decision was subsequently the subject of an application for judicial review before the Federal Court of Canada.
[3] On April 18, 2012, the Federal Court rendered its decision, Canada (Human Rights Commission) v. Canada (Attorney General), 2012 FC 445 (Caring Society FC), setting aside the Tribunal’s decision on the jurisdictional motion. The Federal Court remitted the matter to a differently constituted panel of the Tribunal for redetermination in accordance with its reasons. The Respondent’s appeal of that decision was dismissed by the Federal Court of Appeal in Canada (Attorney General) v. Canadian Human Rights Commission, 2013 FCA 75 (Caring Society FCA).
[4] In July 2012, a new Panel, composed of Sophie Marchildon, as Panel Chairperson, and members Réjean Bélanger and Edward Lustig, was appointed to re-determine this matter (see 2012 CHRT 16). It dismissed the Respondent’s motion to have the jurisdictional motion re-heard, and ruled the Complaint would be dealt with on its merits (see 2012 CHRT 17).
[5] 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 Decision), this Panel found the Complainants had substantiated their complaint that First Nations children and families living on reserve and in the Yukon are denied equal child and family services, and/or differentiated adversely in the provision of child and family services, pursuant to section 5 of the CHRA.
[6] In the Decision, this Panel 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. Delays were inherently built into the process for dealing with potential Jordan’s Principle cases. Furthermore, Canada’s approach to Jordan’s Principle cases was aimed solely at inter-governmental disputes between the federal and provincial government in situations where a child had multiple disabilities, as opposed to all jurisdictional disputes (including between federal government departments) involving all First Nations children (not just those with multiple disabilities). As a result, INAC was ordered to immediately implement the full meaning and scope of Jordan’s Principle (see the Decision at paras. 379-382, 458 and 481). The Decision and related orders were not challenged by way of judicial review.
[7] Three months following the Decision, INAC and Health Canada indicated that they began discussions on the process for expanding the definition of Jordan’s Principle, improving its implementation and identifying other partners who should be involved in this process. They anticipated it would take 12 months to engage First Nations, the provinces and territories in these discussions and develop options for changes to Jordan’s Principle.
[8] In a subsequent ruling (2016 CHRT 10), this Panel specified that its order was to immediately implement the full meaning and scope of Jordan’s Principle, not immediately start discussions to review the definition in the long-term. The Panel noted there was already a workable definition of Jordan’s Principle, which was adopted by the House of Commons, and saw no reason why that definition could not be implemented immediately. INAC was ordered to immediately consider Jordan’s Principle as including all jurisdictional disputes (including disputes between federal government departments) and involving all First Nations children (not only those children with multiple disabilities). The Panel further indicated that the government organization that is first contacted should pay for the service without the need for policy review or case conferencing before funding is provided (see 2016 CHRT 10 at paras. 30-34). Again, the ruling and related orders were not challenged by way of judicial review.
[9] Thereafter, INAC indicated that it took the following steps to implement the Panel’s order:
It corrected its interpretation of Jordan’s Principle by eliminating the requirement that the First Nations child on reserve must have multiple disabilities that require multiple service providers;
It corrected its interpretation of Jordan’s Principle to apply to all jurisdictional disputes and now includes those between federal government departments;
Services for any Jordan’s Principle case will not be delayed due to case conferencing or policy review; and
Working level committees comprised of Health Canada and INAC officials, Director Generals and Assistant Deputy Ministers will provide oversight and will guide the implementation of the new application of Jordan’s Principle and provide for an appeals function.
[10] It also stated it would engage in discussions with First Nations, the provinces and the Yukon on a long-term strategy. Furthermore, INAC indicated it would provide an annual report on Jordan’s Principle, including the number of cases tracked and the amount of funding spent to address specific cases. INAC also updated its website to reflect the changes above, including posting contact information for individuals encountering a Jordan’s Principle case.
[11] While the Panel was pleased with these changes and investments in working towards enacting the full meaning and scope of Jordan’s Principle, it still had some outstanding questions with respect to consultation and full implementation. In the 2016 CHRT 16 ruling, the Panel requested further information from INAC with respect to its consultations on Jordan’s Principle and the process for dealing with Jordan’s Principle cases. Further, INAC was ordered to provide all First Nations and First Nations Child and Family Services Agencies (“FNCFS Agencies”) with the names and contact information of the Jordan’s Principle focal points in all regions.
[12] Finally, the Panel noted that INAC’s new formulation of Jordan’s Principle once again appeared to be more restrictive than formulated by the House of Commons. That is, INAC was restricting the application of the principle to “First Nations children on reserve” (as opposed to all First Nations children) and to First Nations children with “disabilities and those who present with a discrete, short-term issue for which there is a critical need for health and social supports.” The Panel ordered INAC to immediately apply Jordan’s Principle to all First Nations children, not only to those residing on reserve. In order for the Panel to assess the full impact of INAC’s formulation of Jordan’s Principle, it also ordered INAC to explain why it formulated its definition of the principle as only being applicable to First Nations children with “disabilities and those who present with a discrete, short-term issue for which there is a critical need for health and social supports” (see 2016 CHRT 16 at paras. 107-120). This third ruling was also not challenged by way of judicial review.
[13] In May 2017, the Panel made additional findings in light of the new evidence before it and has partially reproduced some of them below for ease of reference:
Accordingly, the Panel finds the evidence presented on this motion establishes that Canada’s definition of Jordan’s Principle does not fully address the findings in the Decision and is not sufficiently responsive to the previous orders of this Panel. While Canada has indeed broadened its application of Jordan’s Principle since the Decision and removed some of the previous restrictions it had on the use of the principle, it nevertheless continues to narrow the application of the principle to certain First Nations children. (see 2017 CHRT 14, at para.67).
Furthermore, the emphasis on the “normative standard of care” or “comparable” services in many of the iterations of Jordan’s Principle above does not answer the findings in the Decision with respect to substantive equality and the need for culturally appropriate services (see Decision at para. 465). The normative standard of care should be used to establish the minimal level of service only. To ensure substantive equality and the provision of culturally appropriate services, the needs of each individual child must be considered and evaluated, including taking into account any needs that stem from historical disadvantage and the lack of on-reserve and/or surrounding services (see Decision at paras. 399-427), (see 2017 CHRT 14, at para.69).
However, the normative standard may also fail to identify gaps in services to First Nations children, regardless of whether a particular service is offered to other Canadian children. As The Way Forward for the Federal Response to Jordan’s Principle – Proposed Definitions document identifies above, under the “Considerations” for “Option One”: “The focus on a dispute [over payment of services between or within governments] does not account for potential gaps in services where no jurisdiction is providing the required services.” (see 2017 CHRT 14, at para.71).
This potential gap in services was highlighted in the Pictou Landing Band Council v. Canada (Attorney General), 2013 FC 342 case and in the Decision. Where a provincial policy excluded a severely handicapped First Nations teenager from receiving home care services simply because he lived on reserve, the Federal Court determined that Jordan’s Principle existed precisely to address the situation (see Pictou Landing at paras. 96-97). Furthermore, First Nations children may need additional services that other Canadians do not, as the Panel explained in the Decision (see 2017 CHRT 14, at para.72):
In her own recent comprehensive research assessing the health and well-being of First Nations people living on reserve, Dr. Bombay found that children of Residential School survivors reported greater adverse childhood experiences and greater traumas in adulthood, all of which appeared to contribute to greater depressive symptoms in Residential School offspring (see Annex, ex. 53 at p. 373; see also Transcript Vol. 40 at pp. 69, 71). (see 2016 CHRT 2 at para. 421).
Dr. Bombay’s evidence helps inform the child and family services needs of Aboriginal peoples. Generally, it reinforces the higher level of need for those services on-reserves. By focusing on bringing children into care, the FNCFS Program, corresponding funding formulas and other related provincial/territorial agreements perpetuate the damage done by Residential Schools rather than attempting to address past harms. The history of Residential Schools and the intergenerational trauma it has caused is another reason - on top of some of the other underlying risk factors affecting Aboriginal children and families such as poverty and poor infrastructure - that exemplify the additional need of First Nations people to receive adequate child and family services, including least disruptive measures and, especially, services that are culturally appropriate. (see 2016 CHRT 2 at para. 422).
[14] Also, in the 2017 CHRT 14 ruling the panel made additional findings that are relevant to the questions before us as part of this ruling:
Therefore, the fact that it is considered an “exception” to go beyond the normative standard of care is concerning given the findings in the Decision, which findings Canada accepted and did not challenge. The discrimination found in the Decision is in part caused by the way in which health and social programs, policies and funding formulas are designed and operate, and the lack of coordination amongst them. The aim of these programs, policies and funding should be to address the needs for First Nations children and families. There should be better coordination between federal government departments to ensure that they address those needs and do not result in adverse impacts or service delays and denials for First Nations. Over the past year, the Panel has given Canada much flexibility in terms of remedying the discrimination found in the Decision. Reform was ordered. However, based on the evidence presented on this motion regarding Jordan’s Principle, Canada seems to want to continue proffering similar policies and practices to those that were found to be discriminatory. Any new programs, policies, practices or funding implemented by Canada should be informed by previous shortfalls and should not simply be an expansion of previous practices that did not work and resulted in discrimination. They should be meaningful and effective in redressing and preventing discrimination. (see 2017 CHRT 14, at para.73, emphasis added).
Canada’s narrow interpretation of Jordan’s Principle, coupled with a lack of coordination amongst its programs to First Nations children and families (…) along with an emphasis on existing policies and avoiding the potential high costs of services, is not the approach that is required to remedy discrimination. Rather, decisions must be made in the best interest of the children. While the Ministers of Health and Indigenous Affairs have expressed their support for the best interest of children, the information emanating from Health Canada and INAC, as highlighted in this ruling, does not follow through on what the Ministers have expressed. (see 2017 CHRT 14, at para.74).
Overall, the Panel finds that Canada is not in full compliance with the previous Jordan’s Principle orders in this matter. It tailored its documentation, communications and resources to follow its broadened, but still overly narrow, definition and application of Jordan’s Principle. Presenting a criterion-based definition, without mentioning that it is solely a focus, does not capture all First Nations children under Jordan’s Principle. Furthermore, emphasizing the normative standard of care does not ensure substantive equality for First Nations children and families. This is especially problematic given the fact that Canada has admittedly encountered challenges in identifying children who meet the requirements of Jordan’s Principle and in getting parents to come forward to identify children who have unmet needs. (see 2017 CHRT 14, at para.75).
[15] Further in the ruling, the Panel wrote:
Despite Jordan’s Principle being an effective means by which to immediately address some of the shortcomings in the provision of child and family services to First Nations identified in the Decision while a comprehensive reform is undertaken, Canada’s approach to the principle risks perpetuating the discrimination and service gaps identified in the Decision, especially with respect to allocating dedicated funds and resources to address some of these issues (see Decision at para. 356) (…) (see 2017 CHRT 14, at para.78).
Despite this, nearly one year since the April 2016 ruling and over a year since the Decision, Canada continues to restrict the full meaning and intent of Jordan’s Principle. The Panel finds Canada is not in full compliance with the previous Jordan’s Principle orders in this matter. There is a need for further orders from this Panel, pursuant to section 53(2)(a) and (b) of the Act, to ensure the full meaning and scope of Jordan’s Principle is implemented by Canada (…), (see 2017 CHRT 14, at para.80).
The orders made in this ruling are to be read in conjunction with the findings above, along with the findings and orders in the Decision and previous rulings (2016 CHRT 2, 2016 CHRT 10 and 2016 CHRT 16). Separating the orders from the reasoning leading to them will not assist in implementing the orders in an effective and meaningful way that ensures the essential needs of First Nations children are met and discrimination is eliminated. (see 2017 CHRT 14 at para.133).
[16] The above will also inform some of the reasons in this ruling.
[17] The Tribunal’s May 26, 2017 order (2017 CHRT 14) required Canada to base its definition and application of Jordan’s Principle on key principles, one of which was that Jordan’s Principle is a child-first principle that applies equally to all First Nations children, whether resident on or off reserve.
[18] Canada challenged some aspects of the 2017 CHRT 14 ruling by way of a judicial review which was subsequently discontinued following a consent order from this Tribunal essentially amending some aspects of the orders on consent of the parties and pertaining to timelines and clinical case conferencing. No part of this judicial review questioned or challenged the Tribunal’s order that Canada’s definition and application of Jordan’s Principle must apply equally to all First Nations children, whether resident on or off reserve.
[19] In 2017 CHRT 35, the Tribunal amended its orders to reflect the changes suggested by the parties. The Jordan’s Principle definition ordered by the Panel and accepted by the parties is reproduced in bold below:
Jordan’s Principle is a child-first principle that applies equally to all First Nations children, whether resident on or off reserve. It is not limited to First Nations children with disabilities, or those with discrete short-term issues creating critical needs for health and social supports or affecting their activities of daily living.
Jordan’s Principle addresses the needs of First Nations children by ensuring there are no gaps in government services to them. It can address, for example, but is not limited to, gaps in such services as mental health, special education, dental, physical therapy, speech therapy, medical equipment and physiotherapy.
When a government service, including a service assessment, is available to all other children, the government department of first contact will pay for the service to a First Nations child, without engaging in administrative case conferencing, policy review, service navigation or any other similar administrative procedure before the recommended service is approved and funding is provided. Canada may only engage in clinical case conferencing with professionals with relevant competence and training before the recommended service is approved and funding is provided to the extent that such consultations are reasonably necessary to determine the requestor’s clinical needs. Where professionals with relevant competence and training are already involved in a First Nations child’s case, Canada will consult those professionals and will only involve other professionals to the extent that those professionals already involved cannot provide the necessary clinical information. Canada may also consult with the family, First Nation community or service providers to fund services within the timeframes specified in paragraphs 135(2)(A)(ii) and 135(2)(A)(ii.1) where the service is available, and will make every reasonable effort to ensure funding is provided as close to those timeframes where the service is not available. After the recommended service is approved and funding is provided, the government department of first contact can seek reimbursement from another department/government;
When a government service, including a service assessment, is not necessarily available to all other children or is beyond the normative standard of care, the government department of first contact will still evaluate the individual needs of the child to determine if the requested service should be provided to ensure substantive equality in the provision of services to the child, to ensure culturally appropriate services to the child and/or to safeguard the best interests of the child. Where such services are to be provided, the government department of first contact will pay for the provision of the services to the First Nations child, without engaging in administrative case conferencing, policy review, service navigation or any other similar administrative procedure before the recommended service is approved and funding is provided. Clinical case conferencing may be undertaken only for the purpose described in paragraph 135(1)(B)(iii). Canada may also consult with the family, First Nation community or service providers to fund services within the timeframes specified in paragraphs 135(2)(A)(ii) and 135(2)(A)(ii.1) where the service is available, and will make every reasonable effort to ensure funding is provided as close to those timeframes where the service is not available. After the recommended service is provided, the government department of first contact can seek reimbursement from another department/government.
While Jordan’s Principle can apply to jurisdictional disputes between governments (i.e., between federal, provincial or territorial governments) and to jurisdictional disputes between departments within the same government, a dispute amongst government departments or between governments is not a necessary requirement for the application of Jordan’s Principle.
Canada shall not use or distribute a definition of Jordan’s Principle that in any way restricts or narrows the principles enunciated in order 1(b).
[20] While it is accurate to say the Tribunal did not provide a definition of a “First Nation child” in its orders, it is also true to say that none of the parties including Canada sought clarification on this point until now. To be fair, on this issue, the Panel believes that it should focus on ensuring its remedies are efficient in light of the evidence before it and, in the best interests of children, more than on Canada’s compliance.
[21] The parties who have been discussing the issue outside the Tribunal process have not yet reached a consensus on this issue. Therefore, the adjudication of the compliance with this Tribunal’s orders of Canada’s definition of “First Nations child” for the purposes of implementing Jordan’s Principle is now being requested by the Caring Society.
[22] Upon consideration, the Panel believes the issue of a “First Nations child” definition is best addressed by way of a full hearing. The Panel Chair has requested the parties to make arguments on international law including the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), the recent UN Human Rights Committee’s (“UNHRC”) McIvor Decision findings that sex discrimination continues in the Indian Act, Aboriginal law, human rights and substantive equality, constitutional law and other aspects, in order to allow the panel to make an informed decision on the issue of the “First Nation child” definition following the upcoming hearing. Doing this analysis through a multi faceted lens is paramount given the probable incompatibilities between the UNDRIP and the Indian Act. Additionally, if the current version of the Indian Act discriminates and excludes segments of women and children, it is possible that but for the sex discrimination, the children excluded would be considered eligible to be registered under the Indian Act. In those circumstances the child would be considered by Canada under Canada’s Jordan’s Principle eligibility for registration criteria for First Nations children who are not ordinarily resident on-reserve and, who do not have Indian Act status. While this should not be read as a final determination on Canada’s current policy under Jordan’s Principle, the Panel also wants to ensure to craft effective remedies that eliminate discrimination and prevent it from reoccurring. Needless to say, it cannot condone a different form of discrimination while it makes its orders for remedies. Hence, the need for a full and complete hearing on this issue where the above will be addressed by all parties.
[23] During the January 9, 2019 motion hearing, Panel Chair Marchildon, expressed the Panel’s desire to respect Indigenous Peoples’ inherent rights of self-determination and self-governance including their right to determine citizenship in crafting all its remedies. Another important point is that the panel not only recognizes these rights as inherent to Indigenous Peoples, they are also human rights of paramount importance. The Panel in its Decision and subsequent rulings, has recognized the racist, oppressive and colonial practices exerted by Canada over Indigenous Peoples and entrenched in Canada’s programs and systems (see for example 2016 CHRT 2 at para.402). Therefore, it is mindful that any remedy ordered by the Panel must take this into account. In fact, in 2018 CHRT 4, the Panel crafted a creative and innovative order to ensure it provided effective immediate relief remedies to First Nations children while respecting the principles in the UNDRIP, the Nation-to Nation relationship, the Indigenous rights of self-governance and the rights of Indigenous rights holders. It requested comments from the parties and no suggestions or comments were made by the parties on those specific orders. The Panel has always stressed the need to ensure the best interests of children is respected in its remedies and the need to eliminate discrimination and prevent it from reoccurring.
[24] This Panel continues to supervise Indigenous and Northern Affairs Canada now, Indigenous Services Canada’s, implementation and actions in response to findings that First Nations children and families living on reserve and in the Yukon are denied equal child and family services, and/or are differentiated adversely in the provision of child and family services, pursuant to section 5 of the CHRA [see 2016 CHRT 2 (the Decision)].
[25] At the October 30-31, 2019 hearing (October hearing), Canada’ witness, Dr. Valerie Gideon, Senior Assistant Deputy Minister of the First Nations and Inuit Health Branch at the Department of Indigenous Services Canada, admitted in her testimony that the Tribunal’s May 2017 CHRT 14 ruling and orders on Jordan’s Principle definition and publicity measures caused a large jump in cases for First Nations children. In fact, from July 2016 to March 2017 there were approximately 5,000 Jordan’s Principle approved services. After the Panel’s ruling, this number jumped to just under 77,000 Jordan’s Principle approved services in 2017/2018. This number continues to increase. At the time of the October hearing, over 165 000 Jordan’s Principle approved services have now been approved under Jordan’s Principle as ordered by this Tribunal. This is confirmed by Dr. Gideon’s testimony and it is not disputed by the Caring Society. Furthermore, it is also part of the new documentary evidence presented during the October hearing and now forms part of the Tribunal’s evidentiary record. Those services were gaps in services that First Nations children would not have received but for the Jordan’s Principle broad definition as ordered by the Panel. In response to Panel Chair Sophie Marchildon’s questions, Dr. Gideon also testified that Jordan’s Principle is not a program, it is considered a legal rule by Canada. This is also confirmed in a document attached as an exhibit to Dr. Gideon’s affidavit. Dr. Gideon testified that she wrote this document (see Affidavit of Dr. Valerie Gideon, dated, May 24, 2018 at exhibit 4, at page 2). This document named, Jordan’s Principle Implementation-Ontario Region, under the title, Our Commitment states as follows:
No sun-setting of Jordan’s Principle. Jordan’s Principle is a legal requirement not a program and thus there will be no sun-setting of Jordan’s Principle (…) There cannot be any break in Canada’s response to the full implementation of Jordan’s Principle.
[26] The Panel is delighted to hear that thousands of services have been approved since it issued its orders. It is now proven, that this substantive equality remedy has generated significant change for First Nations children and is efficient and measurable. While there is still room for improvement, it also fosters hope. We would like to honor Jordan River Anderson and his family for their legacy. We also acknowledge the Caring Society, the AFN and the Canadian Human Rights Commission for bringing this issue before the Tribunal and for the Caring Society, the AFN, the COO, the NAN, and the Canadian Human Rights Commission for their tireless efforts. We also honor the Truth and Reconciliation Commission for its findings and recommendations. Finally, the Panel recognizes that while there is more work to do to eliminate discrimination in the long term, Canada has made substantial efforts to provide services to First Nations children under Jordan’s Principle especially since November 2017. Those efforts are made by people such as Dr. Gideon and the Jordan’s Principle team and the Panel believes it is noteworthy. This is also recognized by the Caring Society in an April 17, 2018 letter filed in the evidence (see Dr. Valerie Gideon’s affidavit, dated December 21st, 2018, at Exhibit A). This is not to convey the message that a colonial system which generated racial discrimination across the country is to be praised for starting to correct it. Rather, it is recognizing the decision-makers and the public servants’ efforts to implement the Tribunal’s rulings hence, truly impacting the lives of children.
II. Motion for relief
[27] The Caring Society, makes a motion for further relief to ensure that this Tribunal’s Orders of January 26, 2016 (2016 CHRT 2), April 26, 2016 (2016 CHRT 10), September 14, 2016 (2016 CHRT 16) and May 26, 2017 (2017 CHRT 14) are effective, specifically regarding the definition of “First Nations Child” in those orders. This motion is made under Rule 3 of the Canadian Human Rights Tribunal Rules of Procedure, pursuant to Rules 1(6), 3(1), 3(2), and 5(2), and pursuant to the Canadian Human Rights Tribunal’s continuing jurisdiction in this matter. The proposed motion will be heard orally. The Caring Society submits that the motion is for:
An order that, pending the adjudication of the compliance with this Tribunal’s orders of Canada’s definition of “First Nations Child” for the purposes of implementing Jordan’s Principle, and in order to ensure that the Tribunal’s orders are effective, Canada shall provide First Nations children living off-reserve who have urgent service needs, but do not have (and are not eligible for) Indian Act status, with the services required to meet those urgent service needs, pursuant to Jordan’s Principle.
[28] The Tribunal heard the parties’ submissions on the motion for relief on January 9, 2019 and took the matter under reserve.
A. Summary of the parties’ positions
[29] In sum, the Caring Society contends that Canada’s failure to seek direction from the Tribunal or to take measures to address urgent requests from First Nations children who do not have Indian Act status and who are not ordinarily resident on-reserve risks undermining the effectiveness of the Tribunal’s orders by risking irremediable harm to these children.
[30] In November 2018, the Caring Society intervened to pay for medical transportation for a young First Nations child without Indian Act status who required a medical diagnostic service to address a life-threatening condition because Canada would not pay due to the child’s off-reserve residence and lack of Indian Act status.
[31] The AFN submits, the Caring Society's motion raises questions of “First Nations children” that are entitled to benefit from Jordan's Principle and whether that includes non-status Indians. This in turn raises the issue of First Nations citizenship. The issues of First Nations children and citizenship go to the heart of First Nations jurisdiction and self-determination. The AFN takes these issues very seriously, as demonstrated by the AFN Resolutions attached as exhibits to the Affidavit of Cindy Blackstock affirmed December 5, 2018, and filed in support of the Caring Society’s motion.
[32] The AFN takes the position that the questions raised in this interim motion deserve a full hearing before the Tribunal prior to any decisions are made that have the potential for far-reaching implications on First Nations and their jurisdictions.
[33] Nevertheless, the AFN is mindful of the concerns raised by the Caring Society’s motion, particularly in that irreparable harm could be caused to innocent children who might be denied the benefits of Jordan’s Principle. Accordingly, the AFN does agree, in part, with the Caring Society’s motion for interim relief. The AFN suggested interim solutions with possible parameters should the Tribunal decide to grant the Caring Society’s motion. This will be discussed later.
[34] Moreover, the AFN notes that the Panel indicated awareness of and sensitivity to the issue of First Nation self-determination in its previous Decisions. The AFN respectfully requests that the Panel continue to exercise caution in issuing orders that have implications for First Nations, particularly with respect to their autonomy, self-determination and self-government. This should be taken into account in a ruling on the Caring Society’s interim motion.
[35] The Commission takes no position on this point except for highlighting the fact that no party has disputed the Tribunal’s jurisdiction to make an order as the one sought by the Caring Society.
[36] The COO and the NAN take no position on the motion. NAN added it does not object to the AFN’s letter dated January 7, 2019 which includes the AFN’s submissions on the Caring Society’s motion.
[37] In sum, Canada objects to the motion and submits it is premature and requests that the Tribunal exercise its discretion to refuse to hear the motion for relief at this interlocutory stage. Canada asks that the motion be dismissed.
[38] Canada is having ongoing discussions on the issue of “First Nation child” with the parties in this case and nations across Canada. Canada argues that Indigenous identity is a complex question (see Dr. Valerie Gideon’s affidavit, dated December 21st, 2018, at paragraphs 40-41). It is defined in the Indian Act and that definition is being used and implemented in all Government of Canada programming, including Jordan’s Principle. The definition of a “First Nations child” for the purposes of Jordan’s Principle is an issue that Canada hopes to continue working on through consultation with First Nations leadership outside the Tribunal process.
[39] In any event, Canada argues the Caring Society has not demonstrated a strong prima facie case as per the Supreme Court decision in R. v. Canadian Broadcasting Corporation, 2018 SCC 5, (CBC) and, that the test for serious issue when a mandatory injunction is sought, is higher and more difficult to meet. Canada submits that Brown J. held that the moving party “must demonstrate a strong prima facie case that it will succeed at trial.” The moving party must show a “strong likelihood on the law and the evidence presented that, at trial, the applicant will be ultimately successful in proving the allegations ...” and this should apply regardless of this case being a human rights case. Furthermore, Canada contends that the Caring Society has not brought an actual case that shows irreparable harm. The evidence before the Tribunal concerns a child who was seeking transportation costs to participate in a case study designed to approve a molecule for future use in a diagnostic procedure. Canada further submits, there is no evidence that the child faced irreparable harm if the transportation costs were not paid. In any event, the costs were paid by the Caring Society and there is no evidence that irreparable harm would occur in the future if the remedy is not granted. Canada adds that irreparable harm is harm which either cannot be quantified in monetary terms or which cannot be cured by the time a final decision is made (see RJR MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311).
[40] On the balance of convenience, Canada argues it is not in the interests of justice to grant an order that is too vague to be properly implemented or enforced. In considering the balance of convenience and the public interest, it does not assist an applicant to claim that a given government authority does not represent the public interest. Canada argues that the Caring Society must demonstrate the public interest benefits that flow from the granting of the relief sought and failed to do so. Additionally, Canada submits that the public interest is better served by a continuation of the use of the current definition of “First Nations child” for the purposes of Jordan’s Principle. It allows for the application of consistent, objective parameters regarding eligibility for Jordan’s Principle.
[41] Furthermore, according to the AGC, Canada has given direction and training to its employees based on the July 5, 2018 definition described in Dr. Gideon’s affidavit. She has explained that it will be difficult to address the needs of children in a consistent and fair manner without a clear definition of “First Nation child”. Also, the Caring Society’s proposed definition is open ended and not clearly defined. Granting the requested relief and ordering the government to apply such a definition will introduce confusion and uncertainty in Canada’s attempt to implement Jordan’s Principle in a fair and consistent manner.
[42] According to Canada, it has set up a process to verify if a child and/or the family/guardian is registered or is eligible for status by working directly with the Office of Indian Registry. When a request is submitted on behalf of a non-status child, the Jordan’s Principle Focal Point works with the requestor to understand if the child would be eligible for registration by learning about the parents’ status, potential status under Bill S-3, as well as with the Office of the Indian Registrar. If there is uncertainty as to the eligibility of the child, the Focal Point can err on the side of caution and approve the request within the domain of “best interests of the child”, particularly where there are concerns about meeting the ordered timeframes (see Dr. Valerie Gideon’s affidavit, dated December 21st, 2018, at paras 35-39).
[43] The Caring Society disagrees with Canada that it needs to demonstrate a strong prima facie case since we are in the context of a human rights case. Rather, it argues that the appropriate criteria is found in the Manitoba (A.G.) v. Metropolitan Stores Ltd. [1987] 1 SCR 110 (Metropolitan) case and that all that is necessary is to satisfy the court that there is a serious question to be tried as opposed to a fri