Canada (Attorney General) v. First Nations Child and Family Caring Society of Canada

Canada (Attorney General) v. First Nations Child and Family Caring Society of Canada
Court (s) Database
Federal Court Decisions
Date
2021-09-29
Neutral citation
2021 FC 969
File numbers
T-1559-20, T-1621-19
Notes
Reported Decision
A correction was made on March 5 2024
Decision Content
Date: 20210929
Dockets: T-1559-20
T-1621-19
Citation: 2021 FC 969
Ottawa, Ontario, September 29, 2021
PRESENT: The Honourable Mr. Justice Favel
BETWEEN:
ATTORNEY GENERAL OF CANADA
Applicant
and
FIRST NATIONS CHILD AND FAMILY CARING SOCIETY OF CANADA, ASSEMBLY OF FIRST NATIONS, CANADIAN HUMAN RIGHTS COMMISSION, CHIEFS OF ONTARIO, AMNESTY INTERNATIONAL AND NISHNAWBE ASKI NATION
Respondents
and
CONGRESS OF ABORIGINAL PEOPLES
Intervener
JUDGMENT AND REASONS
TABLE OF CONTENTS
I. Nature of the Matter 4
II. Background and Context 6
A. The Complaint 6
B. FNCFS Program 7
C. Jordan’s Principle 8
D. Parties before the Tribunal 9
III. Procedural History 9
A. Canada’s motion to strike the Complaint 10
B. Retaliation 10
C. The Merit Decision 11
D. Decisions following the Merit Decision 14
E. Compensation Decisions 21
(1) The Compensation Decision: T-1621-19 21
(2) Additional Compensation Decision 23
(3) The Definitions Decision 24
(4) The Trusts Decision 24
(5) The Framework Decision 24
F. Jordan’s Principle Eligibility Decisions 25
(1) Interim Eligibility Decision 25
(2) Eligibility Decision: T-1559-20 25
(3) 2020 CHRT 36 28
(4) The Framework Decision 29
IV. Issues and Standard of Review 29
V. Parties’ Positions 32
A. Compensation Decision 32
(1) Applicant’s Position 32
(2) Caring Society’s Position 34
(3) The AFN’s Position 35
(4) The Commission’s Position 35
(5) The COO’s Position 36
(6) NAN’s Position 36
(7) Amnesty’s Position 36
(8) CAP’s Position 37
B. Eligibility Decision 37
(1) The Applicant’s Position 37
(2) The Caring Society’s Position 38
(3) The AFN’s Position 39
(4) The Commission’s Position 39
(5) The COO’s Position 40
(6) NAN’s Position 40
(7) Amnesty’s Position 41
(8) CAP’s Position 41
C. Procedural Fairness 41
(1) Applicant’s Position 41
(2) Position of the Respondents and Intervener 42
VI. Analysis 42
A. Preliminary Matter – Motion 42
B. The Compensation Decision 44
(1) Reasonableness 44
(2) Compensation Decision Conclusion 80
C. The Eligibility Decision 81
(1) Reasonableness 85
(2) Eligibility Decision Conclusion 98
D. Procedural Fairness 99
VII. Some Thoughts on Reconciliation 103
VIII. Conclusion 106
I. Nature of the Matter [1] This is a judicial review brought by the Applicant, the Attorney General of Canada representing the Minister of Indigenous Services Canada [Canada]. The Applicant requests that various decisions of the Canadian Human Rights Tribunal [Tribunal], all of which are listed below, be set aside and remitted to a different panel. The applications for judicial review, as amended, relate to the following Tribunal decisions:
1)The September 6, 2019 decision in First Nations Child & Family Caring Society of Canada v Attorney General of Canada, 2019 CHRT 39 [Compensation Decision]. This is the decision at issue in the Federal Court File T-1621-19. The following Tribunal Decisions modified the Compensation Decision:
The April 16, 2020 decision in First Nations Child & Family Caring Society of Canada v Attorney General of Canada, 2020 CHRT 7 [Additional Compensation Decision];
The May 28, 2020 decision in First Nations Child & Family Caring Society of Canada v Attorney General of Canada, 2020 CHRT 15 [Definitions Decision];
The February 11, 2021 decision in First Nations Child & Family Caring Society of Canada v Attorney General of Canada, 2021 CHRT 6 [Trust Decision]; and
The February 12, 2021 decision in First Nations Child & Family Caring Society of Canada v Attorney General of Canada, 2021 CHRT 7 [Framework Decision].
2)The July 17, 2020 decision in First Nations Child & Family Caring Society of Canada v Attorney General of Canada, 2020 CHRT 20 [Eligibility Decision]. This is the decision at issue in the Federal Court File T-1559-20. The following Tribunal decisions modified and confirmed the Eligibility Decision:
The November 25, 2020 decision in First Nations Child & Family Caring Society of Canada v Attorney General of Canada, 2020 CHRT 36 [2020 CHRT 36], as incorporated into the Framework Decision.
[2] The Compensation and Eligibility Decisions originate from a January 26, 2016 Tribunal decision (First Nations Child & Family Caring Society of Canada v Attorney General of Canada, 2016 CHRT 2 [Merit Decision]). The Merit Decision dealt with a February 23, 2007 human rights complaint [Complaint] made by the First Nations Child and Family Caring Society of Canada [Caring Society] and the Assembly of First Nations [AFN]. The Tribunal found sufficient evidence to establish a prima facie case of discrimination under section 5 of the Canadian Human Rights Act, RSC, 1985, c H-6 [CHRA]. In the Merit Decision, the Caring Society and the AFN established that First Nations children and families living on reserve and in the Yukon were denied equal child and family services under section 5(a) of the CHRA and/or were adversely differentiated under section 5(b) of the CHRA. The Tribunal’s finding of discrimination pertains to Canada’s funding of the First Nations Child and Family Services Program [FNCFS Program] and the funding of Jordan’s Principle for related health services to First Nations children.
[3] Section 5 of the CHRA states that “it is a discriminatory practice in the provision of goods, services, facilities or accommodation customarily available to the general public (a) to deny, or to deny access to, any such good, service, facility or accommodation to any individual, or (b) to differentiate adversely in relation to any individual, on a prohibited ground of discrimination.”
[4] The application for review of the Compensation Decision is dismissed.
[5] The application for judicial review of the Eligibility Decision is dismissed.
II. Background and Context [6] The background context and procedural history leading to these applications for judicial review are complex to say the least. The underlying matters in this application have been ongoing for over a decade. The submissions and the record in these applications were extensive. While only two sets of decisions are the subject of this judicial review, it is useful to provide an overview of some key concepts and related Tribunal decisions to establish the proper context.
A. The Complaint [7] In 2007, the Caring Society and the AFN filed the Complaint with the Canadian Human Rights Commission [Commission]. They alleged that Canada was violating the CHRA by discriminating against First Nations children and families who live on reserve by underfunding the delivery of child and family services. They argued that this discrimination was based on race and national or ethnic origin. The Complaint noted the dramatic overrepresentation of First Nations children in foster care, the need for the proper implementation of Jordan’s Principle (discussed in more detail below), and the systemic and ongoing nature of the discrimination. The Complaint also described past efforts by the Caring Society, AFN, and others to advocate for program reform and additional funding. The Commission exercised its discretion and referred the Complaint to the Tribunal for a hearing.
[8] Canada filed a judicial review application requesting that this Court quash the Commission’s referral decision and prohibit the Tribunal from hearing the Complaint. In November 2009, the application was stayed (Canada (AG) v First Nations Child and Family Caring Society of Canada (24 Nov 2009), Ottawa T-1753-08 (FC)). Canada sought judicial review of the stay decision and this Court dismissed the application (Canada (AG) v First Nations Child and Family Caring Society of Canada, 2010 FC 343).
B. FNCFS Program [9] In Canada, each province and territory has its own legislation that governs the delivery of services to children and families in need. However, First Nations children living on reserve and in the Yukon receive child and family services from the federal government through the FNCFS Program. This is because the federal government has “legislative authority” over “Indians, and lands reserved for the Indians” under section 91(24) of the Constitution Act, 1867, (UK), 30 & 31 Vict, c 3, reprinted in RSC 1985, Appendix II, No 5. The separation of powers is the driving force behind the types of jurisdictional disputes discussed in this decision.
[10] At the time the Complaint was filed, FNCFS agencies were funded by Canada according to a funding formula known as Directive 20-1 or as the Enhanced Prevention Focused Approach. In Ontario, funding is provided to FNCFS agencies under the 1965 Child Welfare Agreement. Where there are no FNCFS agencies within a province, provinces provide the service and may be reimbursed by Canada.
[11] The purpose of the FNCFS Program is to ensure that on reserve and Yukon-based First Nations children and families receive culturally appropriate assistance or benefits that are reasonably comparable to services provided to residents in other provinces. On reserve and Yukon-based First Nations children and families also receive other kinds of social services and products from the federal government.
C. Jordan’s Principle [12] Jordan’s Principle is named after Jordan River Anderson, who was from Norway House Cree Nation in Manitoba. Jordan had complex medical needs. His parents surrendered him to provincial care so that he could receive the necessary treatment. Jordan could have gone to a specialized foster home but Canada and Manitoba disagreed over who should pay the foster care costs. Jordan died at age five having never lived outside the hospital. Based on these circumstances, Jordan’s Principle was established. Jordan’s Principle is described in the Merit Decision as follows:
Jordan’s Principle is a child-first principle and provides that where a government service is available to all other children and a jurisdictional dispute arises between Canada and a province/territory, or between departments in the same government regarding services to a First Nations child, the government department of first contact pays for the service and can seek reimbursement from the other government/department after the child has received the service. It is meant to prevent First Nations children from being denied essential public services or experiencing delays in receiving them (at para 351).
[Emphasis in original.]
[13] The House of Commons unanimously passed Jordan’s Principle on December 12, 2007 in House of Commons Motion 296:
That, in the opinion of the House, the government should immediately adopt a child first principle, based on Jordan’s Principle, to resolve jurisdictional disputes involving the care of First Nations children.
[14] A Memorandum of Understanding on Jordan’s Principle [MOU] was signed between Aboriginal Affairs and Northern Development Canada [AANDC] and Health Canada in 2009. The MOU indicated that AANDC’s role in responding to Jordan’s Principle was by virtue of the range of social programs it provides to First Nations people, including special education, assisted living, income assistance, and the FNCFS Program. The MOU was renewed in 2013.
D. Parties before the Tribunal [15] The Caring Society and the AFN were co-complainants before the Tribunal. The Caring Society is a non-profit organization committed to research, policy development, and advocacy on behalf of First Nations agencies serving the well-being of children, youth, and families. The AFN is a national advocacy organization working on behalf of over 600 First Nations. The Commission represented the public interest. Canada was the Respondent. After the Tribunal requested an inquiry into the Complaint, the Tribunal granted interested party status to the Chiefs of Ontario [COO], who advocates on behalf of 133 First Nations in Ontario, and Amnesty International [Amnesty], an international non-governmental organization committed to the advancement of human rights across the globe. Nishnawbe Aski Nation [NAN], representing 49 First Nations’ interests in Northern Ontario, and the Congress of the Aboriginal Peoples [CAP], representing off-reserve First Nations, Métis, and Inuit, were added after the Merit Decision.
III. Procedural History [16] While it is not possible to summarize every legal argument or submission relied on by the parties in every proceeding, I will summarize the Tribunal’s main decisions or rulings and the main submissions that are relevant to disposing of the applications before this Court.
A. Canada’s motion to strike the Complaint [17] In December 2009, the Applicant brought a preliminary motion at the Tribunal to strike the Complaint. It argued that its responsibility to fund the FNCFS Program and Jordan’s Principle did not constitute a “service” within the meaning of the CHRA. It also characterized the Complaint as a cross-jurisdictional comparison of services and argued that such comparisons cannot establish discrimination.
[18] In March 2011, the Tribunal granted the Applicant’s motion to strike based on the comparison issue. However, in April 2012, this Court quashed that decision and reinstated the Complaint (Canadian Human Rights Commission v Canada (AG), 2012 FC 445). In March 2013, the Federal Court of Appeal dismissed the Applicant’s appeal of that decision (Canada (AG) v Canadian Human Rights Commission, 2013 FCA 75).
B. Retaliation [19] In 2013, the Tribunal held a hearing into the allegations that the Applicant had retaliated against the Caring Society’s executive director, Dr. Blackstock. The Tribunal found that the Applicant had retaliated against Dr. Blackstock by prohibiting her participation in a COO meeting held at the Minister’s Office. The Tribunal ordered the Applicant to pay $10,000 for retaliation and $10,000 for pain and suffering (First Nations Child & Family Caring Society of Canada v Attorney General of Canada, 2016 CHRT 2). The Applicant did not seek judicial review of that decision.
C. The Merit Decision [20] The Complaint hearing took approximately 70 days from February to October 2013. There were 25 witnesses and 500 documentary exhibits. Partway through the hearing, there was a three-month delay when the Caring Society discovered that the Applicant had knowingly failed to disclose 100,000 documents (Merit Decision at paras 14-16). Many of these documents were later held to be “prejudicial to Canada’s case and highly relevant” (First Nations Child & Family Caring Society of Canada v Attorney General of Canada, 2019 CHRT 1 at para 13 [2019 CHRT 1]). The Tribunal issued a consent order, requiring the Applicant to compensate the Caring Society, the AFN, and the COO for “lack of transparency and blatant disregard” for the Tribunal process and because of “the serious impacts it had on the proceedings” (2019 CHRT 1 at para 30).
[21] The Applicant’s submissions before the Tribunal included an overview of its commitment to the funding of the FNCFS Program, Jordan’s Principle, and other programs. It submitted that there was insufficient evidence to substantiate the Complaint and that the documentary evidence should be given little, if any weight. The documentary evidence included Auditor General Reports, provincial Children’s Advocates reports, the Blue Hills Report, and the Wen:De Reports. It also submitted that the Tribunal lacked jurisdiction to assess violations of international law or to provide remedies for any such alleged breaches. The Tribunal was also exceeding its jurisdiction by intruding into the role of the Executive branch of the government and formulating policy and funding decisions.
[22] The Applicant also submitted that Jordan’s Principle was not a child welfare concept. Therefore, it was beyond the scope of the Complaint. Canada’s response to Jordan’s Principle did not demonstrate a prima facie case of discrimination.
[23] The Applicant did not argue that the Tribunal lacked jurisdiction to grant financial awards. Rather, Canada argued that there was insufficient evidence brought by the Complainants to support the requested monetary award for “victims” or “[children] being removed from their home.”
[24] The Tribunal found that the Applicant had violated section 5 of the CHRA in two ways. First, the FNCFS Program discriminated against First Nations children and families on reserve and in the Yukon. The FNCFS Program resulted in inadequate fixed funding that hindered the delivery of culturally appropriate child welfare services, created incentives for its agencies to take First Nations children into care, and failed to consider the unique needs of First Nations children and families.
[25] Second, the Applicant discriminated by taking an overly narrow approach to Jordan’s Principle. This resulted in service gaps, delays, and denials. The Tribunal stated the following about the connection between the FNCFS Program and Jordan’s Principle:
In the Panel’s view, while not strictly a child welfare concept, Jordan’s Principle is relevant and often intertwined with the provision of child and family services to First Nations, including under the FNCFS Program. Wen:De Report Three specifically recommended the implementation of Jordan’s Principle on the following basis, at page 16:
Jurisdictional disputes between federal government departments and between federal government departments and provinces have a significant and negative effect on the safety and well-being of Status Indian children […] the number of disputes that agencies experience each year is significant. In Phase 2, where this issue was explored in more depth, the 12 FNCFSA in the sample experienced a total of 393 jurisdictional disputes in the past year alone. Each one took about 50.25 person hours to resolve resulting in a significant tax on the already limited human resources (at para 362).
[Emphasis in original.]
[26] The Tribunal found that the Applicant was aware that the FNCFS Program was creating inequalities and disparities for First Nations children trying to access essential services. It also noted that there were evidence-based solutions, as referenced in the National Policy Review reports of 2000 and the three Wen:De Reports, which Canada participated in. Despite having awareness of the problem and potential solutions, the Applicant had failed to make any substantive changes to address the issues (Merit Decision at paras 150-185). This decision also referred to the 2008 Auditor General Report, the 2008 and 2010 Report on the Standing Committee on Public Accounts, the 2011 Status Report of the Auditor General, and various other reports and testimonies (Merit Decision at paras 186-216).
[27] The Merit Decision recognized that the Applicant’s discriminatory funding practices caused First Nations children and families living on reserves and in the Yukon to suffer. It found that “these adverse impacts perpetuate the historical disadvantage and trauma suffered by Aboriginal people, in particular as a result of the Residential Schools system” (Merit Decision at para 459). The Tribunal ordered that the Applicant immediately cease its discriminatory practices and engage in any reforms needed to bring itself into compliance with the Merit Decision. It also ordered the immediate implementation of Jordan’s Principle’s full meaning and scope. Finally, the Tribunal sought submissions on remedies.
[28] The Tribunal remained seized of the Complaint in order to oversee the Applicant’s efforts to bring itself into compliance with the Merit Decision. It also remained seized to resolve outstanding issues related to victims’ financial compensation. The Applicant did not seek judicial review of the Merit Decision.
D. Decisions following the Merit Decision [29] After the Merit Decision, the Tribunal held several times that it retained jurisdiction to monitor matters to ensure discrimination ceased. The complexity of this proceeding is reflected in the summaries of certain other decisions, the most pertinent of which are below.
1)First Nations Child & Family Caring Society of Canada v Attorney General of Canada, 2016 CHRT 10 [2016 CHRT 10]
[30] In April 2016, the Tribunal ordered the Applicant to take immediate action on certain findings in the Merit Decision and to provide a comprehensive report on actions taken. While it acknowledged that the Applicant was taking immediate steps to consult on ways to remedy the discrimination, it reminded the Applicant that it had ordered the immediate cessation of the discrimination. The Tribunal also explained that there is an increased need to retain jurisdiction because remedial orders responding to systemic discrimination can be difficult to implement.
[31] The Tribunal advised that it would address the outstanding questions of remedies in three steps:
First, the panel will address requests for immediate reforms to the FNCFS Program, the 1965 Agreement and Jordan’s Principle. This is the subject of the present ruling.
Other mid to long-term reforms to the FNCFS Program and the 1965 Agreement, along with other requests for training and ongoing monitoring will be dealt with as a second step. Finally, the Parties will address the requests for compensation under ss. 53(2)(e) and 53(3) of the CHRA (2016 CHRT 10 at paras 4-5).
[32] The Applicant did not seek judicial review of this decision.
2)First Nations Child & Family Caring Society of Canada v Attorney General of Canada, 2016 CHRT 16 [2016 CHRT 16]
[33] In September 2016, the Tribunal found that the Applicant was restricting the application of Jordan’s Principle to First Nations children on reserve, as opposed to all First Nations children. The Tribunal also found that the Applicant was similarly restricting its application 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” (2016 CHRT 16 at para 119). The Tribunal clarified that Jordan’s Principle extends to all First Nations children, whether they live on or off reserve (2016 CHRT 16 at paras 118-119).
[34] The Tribunal requested that the Applicant provide further information on its consultations regarding Jordan’s Principle and the process for dealing with claims. It ordered Canada to provide the names and contact information of all Jordan’s Principle focal points to each FNCFS agency. The Tribunal noted that the Applicant’s new formulation of Jordan’s Principle once again appeared to be more restrictive than that created by the unanimous House of Commons motion and ordered Canada to address this (2016 CHRT 16 at paras 118-119, 160). Canada did not seek judicial review of this ruling.
3)First Nations Child & Family Caring Society of Canada v Attorney General of Canada, 2017 CHRT 14 [2017 CHRT 14]
[35] In May 2017, the Tribunal found that the Applicant had still not brought itself into compliance with the prior rulings on Jordan’s Principle. This decision also addressed NAN’s submissions concerning a tragic situation in Wapekeka First Nation [Wapekeka], located in northern Ontario.
[36] In July 2016, Wapekeka made a proposal to Health Canada seeking funding for an in-community mental health team. In the proposal, Wapekeka alerted Health Canada to concerns about a suicide pact amongst a group of young girls. In January 2017, two twelve-year-old children tragically took their own lives.
[37] NAN amended its notice of motion seeking remedies with respect to the loss of these children. NAN filed two affidavits to support its amended motion. One affidavit was from Dr. Michael Kirlew, a community and family physician for Wapekeka, and an Investigating Coroner for Ontario’s northwest region. Dr. Kirlew’s evidence was that a Health Canada official had told him that Health Canada delayed responding to the Wapekeka proposal because it came at an “awkward time” in the federal funding cycle.
[38] The Applicant filed an affidavit of Robin Buckland, then Executive Director of the Office of Primary Health Care within Health Canada’s First Nations Inuit Health Branch [FNIHB] and national lead for Jordan’s Principle. In cross-examination, Ms. Buckland agreed that the Wapekeka proposal identified an example of a “service gap” for children. She could not explain why Canada was not meeting the needs identified in the proposal.
[39] NAN submitted that there is a need to define what constitutes a “service gap” under Jordan’s Principle. Doing so will help ensure First Nations children properly receive sufficient government services. NAN also argued that a claimant should not automatically be denied compensation eligibility if they are unable to demonstrate a specific request for a service or support. NAN’s submissions informed the definition of “service gap” included in the Tribunal’s ordered compensation framework [Compensation Framework].
[40] The Tribunal gave precise directions on how to process Jordan’s Principle claims, reiterating two of its key purposes. First, an important goal of Jordan’s Principle is to ensure that First Nations children do not experience gaps in services due to jurisdictional disputes. Second, because First Nations children may have additional needs, the delivery of services can go beyond what is otherwise not available to other persons. The Tribunal noted that a key concept of Jordan’s Principle is that it is a child-first principle that applies equally to all First Nations children, whether resident on or off reserve.
4)First Nations Child & Family Caring Society of Canada v Attorney General of Canada, 2017 CHRT 35 [2017 CHRT 35]
[41] The Applicant sought judicial review of 2017 CHRT 14 with respect to certain details about case conferences and timelines but discontinued this application after the Tribunal issued a consent order in November 2017. The Tribunal found that the Applicant was in substantial compliance with its directions regarding Jordan’s Principle.
[42] The Tribunal set out key points to inform the Applicant’s definition and application of Jordan’s Principle. First, the Applicant must eliminate service gaps and engage a child-first approach that applies equally to all First Nations children, whether on or off reserve. Additionally, if a government service is available to all other children, the department of first contact must pay for the service without first engaging in any administrative procedure for funding and approval. Further, the Applicant should only engage in clinical case conferencing with professionals who have the relevant competencies and training. These consultations are only required as reasonably necessary to determine the requestor’s clinical needs. The department of first contact can seek reimbursement after the recommended service is approved and funding is provided.
[43] The Tribunal further stated that where a government service is not necessarily available to all other children or is beyond the normative standard of care, the department of first contact must still evaluate whether a requested service should be provided. The department of first contact must pay for the service the First Nations child requests, without engaging in any administrative procedure before the recommended service is approved and funding is provided. The Applicant may also consult with the family, First Nation community, or service providers to fund services within set timeframes.
[44] Lastly, while Jordan’s Principle can apply to jurisdictional disputes between governments and within the same government, such disputes are not a requirement for the application of Jordan’s Principle.
5)First Nations Child & Family Caring Society of Canada v Attorney General of Canada, 2018 CHRT 4 [2018 CHRT 4]
[45] In February 2018, the Tribunal again dealt with issues of noncompliance by the Applicant. It found that discrimination was continuing to occur on a national scale and the lack of prevention programs was leading to a disproportionate apprehension of First Nations children. The Applicant was ordered to pay FNCFS agencies’ actual costs for certain matters and create a consultation committee where all the parties would meet to discuss the implementation of the Tribunal’s orders.
[46] The Applicant raised concerns about the fairness of the Tribunal’s approach to remedial jurisdiction. However, the Tribunal found no unfairness and stated that it would remain seized to ensure discrimination is eliminated. Specifically, the Tribunal found that “any potential procedural fairness to Canada is outweighed by the prejudice borne by the First Nations children and their families who suffered and, continue to suffer, unfairness and discrimination” (2018 CHRT 4 at para 389).
[47] The Tribunal reiterated its intent to move forward to the issue of compensation (2018 CHRT 4 at para 385). The Applicant did not seek judicial review of this ruling.
[48] While not part of the ruling, I pause to note that on March 2, 2018 the parties signed a Consultation Protocol that covered significant principles governing the parties’ discussions. It also acknowledged the Tribunal’s three-stage approach to remedies.
6)First Nations Child & Family Caring Society of Canada v Attorney General of Canada, 2019 CHRT 7 [Interim Eligibility Decision]
[49] The Caring Society brought a motion for relief to ensure that the definition of “First Nations child” as articulated in 2016 CHRT 2, 2016 CHRT 10, 2016 CHRT 16, and 2017 CHRT 14 was defined. The proposed motion read:
An order that, pending adjudication of the compliance with the 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 (Interim Eligibility Decision at para 27).
[50] The Caring Society brought this motion because the Caring Society had recently paid for the medical services of a First Nations child [SJ]. SJ did not have status under the Indian Act, RCS, 1985, c I-5 [Indian Act] but had one parent with section 6(2) Indian Act status. In other words, SJ lacked status because of the second generation cut-off rule. For this reason, and because of SJ’s off-reserve residence, Canada refused to pay for the medical expenses (Interim Eligibility Decision at para 80).
[51] The Tribunal ordered the following:
The Panel, in light of its findings and reasons, its approach to remedies and its previous orders in this case, above mentioned and, pursuant to section 53(2) a and b of the CHRA, orders that, pending the adjudication of the compliance with this Tribunal’s orders and 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 and/or life threatening needs, but do not have (and are not eligible for) Indian Act status, with the services required to meet those urgent and/or life threatening service needs, pursuant to Jordan’s Principle (Interim Eligibility Decision at para 87).
E. Compensation Decisions (1) The Compensation Decision: T-1621-19 [52] On March 15, 2019, prior to the hearing on compensation, the Tribunal sent the parties written questions about their respective positions on the topic. In short, the combined submissions of the Caring Society and AFN were that Canada should pay compensation for every child affected by the FNCFS Program that was taken into out-of-home care and that the compensation should be paid to First Nations children and their parents or grandparents. Further, the compensation should be retroactive to 2006 until such time that the Tribunal deemed the Applicant compliant with the Merit Decision. The other respondents echoed these submissions. In response, the Applicant opposed the claims made for individual financial compensation on the basis that the Tribunal lacked jurisdiction to grant such awards in cases about systemic discrimination.
[53] The Tribunal found that there are victims of Canada’s discriminatory practices who are entitled to compensation. At paragraph 11 of the Framework Decision, the Tribunal provided a succinct summary of the Tribunal’s ruling in the Compensation Decision:
In the Compensation Decision, the Tribunal ordered compensation for children who were apprehended from their homes to start as of January 1, 2006. In this decision, the Tribunal determined that children who were apprehended from their home prior to January 1, 2006 but remained in care as of January 1, 2006 were within the scope of the Compensation Decision and eligible for compensation (paras. 37-76). Finally, the Tribunal determined that compensation should be paid to the estates of beneficiaries who experienced Canada’s discriminatory conduct but passed away before being able to receive compensation (paras. 77-151).
[54] The Tribunal found that Canada’s approach to funding was based on financial considerations. Further, Canada’s practices resulted in First Nations children being removed from their homes, families, and communities, which led to “trauma and harm to the highest degree causing pain and suffering” (Compensation Decision at para 193). According to the Tribunal, Canada acted with little to no regard for the consequences of removal of First Nations children from their families. As a result, the Tribunal awarded First Nations children, parents, or grandparents $40,000 each. Pursuant to section 53(2)(e) of the CHRA, the first $20,000 was for pain and suffering. Pursuant to section 53(3) of the CHRA, the remaining $20,000 was awarded as special compensation for the discriminatory practices under the FNCFS Program and Jordan’s Principle.
[55] The Tribunal did not order that Canada immediately pay compensation. Instead, the Tribunal ordered Canada to define eligibility for victims, create an appropriate methodology to govern distribution, and consult with the other parties who could provide comments and suggestions about the orders. The Tribunal directed that the consultations should generate procedures that would allow, but not obligate, First Nations to identify children for the purposes of Jordan’s Principle. This interim ruling would remain in effect until a final order. The Tribunal retained jurisdiction.
[56] The Applicant judicially reviewed the Compensation Decision and requested a stay pending a decision on the Merit. In response, the Caring Society sought to stay the application for judicial review. Both motions were dismissed (Canada (AG) v First Nations Child and Family Caring Society of Canada, 2019 FC 1529).
(2) Additional Compensation Decision [57] Notwithstanding the Applicant’s pending judicial review application, in February 2020 the Applicant, the AFN, and the Caring Society provided the Tribunal with a draft Compensation Framework. The parties also asked the Tribunal for guidance and clarification regarding compensation. In April 2020, the Tribunal clarified that:
a)Child beneficiaries should gain unrestricted access to their compensation upon reaching their province’s age of majority;
b)Compensation should be paid to eligible First Nations children (and to the parents or grandparents) who entered into care before and remained in care until at least January 1, 2006; and
c)Compensation should be paid to the estates of deceased individuals who otherwise would have been eligible for compensation (Additional Compensation Decision at paras 36, 75, 76, 152).
[58] There remained some elements of the draft Compensation Framework that were not agreed upon.
(3) The Definitions Decision [59] On May 28, 2020, the Tribunal clarified the terms used in the Compensation Decision including “essential service”, “service gap”, and “unreasonable delay”. The decision also affirmed that eligible family caregivers did not extend beyond parents or grandparents. The Tribunal directed the parties to adopt three definitions to reflect its reasons in the finalization of the draft Compensation Framework.
(4) The Trusts Decision [60] The Tribunal held that compensation payable to minors and individuals lacking capacity is to be paid into a trust. The Tribunal again retained jurisdiction and was empowered to resolve any individual disputes over compensation entitlements.
(5) The Framework Decision [61] In this decision, the Tribunal addressed the process for compensation to First Nations children and beneficiaries as well as their parents or grandparents. The Tribunal approved the parties’ revised Compensation Framework and its accompanying schedules. The Compensation Framework was consistent with, and subordinate to, the Tribunal’s orders. One of the features of this decision was that victims could opt out of the compensation process. Within the present judicial review, this decision is being challenged under the Eligibility Decision.
F. Jordan’s Principle Eligibility Decisions [62] The rulings from 2016 to 2018, including the Merit Decision, did not expressly define the term “all First Nations children” in connection with eligibility under Jordan’s Principle. In February 2017, one of Canada’s witnesses said that status under the Indian Act was not a mandatory requirement for receipt of services under Jordan’s Principle. The following decisions contemplated whether non-status First Nations children are eligible for Jordan’s Principle.
(1) Interim Eligibility Decision [63] In February 2019, the Tribunal issued an interim ruling. The Applicant was ordered to provide non-status First Nations children living off reserve who had urgent and/or life threatening needs with the services required to meet those needs, pursuant to Jordan’s Principle. The Tribunal ordered that this interim relief applied to (1) First Nations children without Indian Act status who live off reserve but are recognized as members by their Nation, and (2) those who have urgent and/or life-threatening needs. This interim relief order applied until a full hearing decided the definition of a “First Nations child” under Jordan’s Principle.
(2) Eligibility Decision: T-1559-20 [64] In May 2019, contrary to what was stated by one of Canada’s officials in February 2017 (see paragraph 62 above), the then Associate Deputy Minister Mr. Perron said that “since the beginning” Canada understood the Tribunal’s orders as applying only to children registered under the Indian Act. Canada ultimately broadened its approach to include non-status First Nations children who ordinarily reside on reserve. However, the Caring Society remained concerned that this approach was still too narrow and did not comply with 2017 CHRT 14, as it excludes children living off reserve. Accordingly, the Caring Society brought a motion for clarification and interim relief.
[65] At the Eligibility Decision hearing the Caring Society noted that there were three categories of children that Canada agreed were within the scope of the 2017 CHRT 14 Order:
a)A child, whether resident on or off reserve, with Indian Act status;
b)A child, whether resident on or off reserve, who is eligible for Indian Act status; and
c)A child, residing on or off reserve, covered by a First Nations self-government agreement or arrangement (Eligibility Decision at para 25).
[66] The Caring Society also argued that Canada was improperly excluding the following categories:
a)Children, residing on or off reserve whom a First Nations group, community or people recognizes as belonging to that group, community or people, in accordance with the customs or traditions of that First Nations group, community or people;
b)First Nations children, residing on or off reserve, who have lost their connection