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
2021-02-11
Neutral citation
2021 CHRT 6
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: 2021 CHRT
6
Date:
February 11, 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
Compensation Process Ruling on Four Outstanding Issues in Order to Finalize the Draft Compensation Framework 1
I. Context 1
II. Trust Provisions 3
A. Position of the Parties 5
B. Analysis 9
III. NAN’s Role in the Compensation Process 32
A. Context 32
B. Position of the Parties 34
C. Analysis 34
IV. Jordan’s Principle Discrimination Eligibility Timeframe 35
A. Context 35
B. Position of the Parties 39
C. Analysis 41
V. Retention of Jurisdiction and Tribunal’s Role 41
A. Context 41
B. Commission’s Submissions 42
C. Analysis 43
D. Conclusion 48
Compensation Process Ruling on Four Outstanding Issues in Order to Finalize the Draft Compensation Framework
I. Context
[1] This ruling arises in the context of a complaint filed by the First Nations Child and Family Caring Society of Canada (the Caring Society) and the Assembly of First Nations (the AFN) that Canada provided inequitable and discriminatory funding for First Nations children living on reserve and in the Yukon. In particular, this discrimination is found in inadequate funding for child welfare services and inappropriate application of Jordan’s Principle. The Tribunal agreed with the Caring Society and the AFN that Canada’s conduct was discriminatory for reasons provided 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). The Tribunal retained jurisdiction to address the complex remedial matters in this case (see especially Merit Decision, paras. 493-94 and 2016 CHRT 10, paras. 1-5).
[2] The Tribunal found the complaint was substantiated. More specifically, the Tribunal found that Canada’s conduct was systemic and discriminatory because its design, management and control of the First Nations Child and Family Services Program (FNCFS Program), along with its corresponding funding formulas and the other related provincial/territorial agreements have resulted in denials of services and created various adverse impacts for many First Nations children and families living on reserves across Canada. The Tribunal identified a number of discriminatory harms from Canada’s funding approach, management and control of the Program. Furthermore, the Tribunal found that Canada provided inadequate funding for a variety of child and family services provided to First Nations children. For example, Canada provided inadequate and fixed funding for operational costs and prevention services. Accordingly, First Nations Child and Family Services Agencies (FNCFS Agencies) were unable to provide provincially and territorially mandated levels of service. The funding formula further contained an incentive to remove children from their home rather than provide supports to promote their wellbeing in the care of their parents or existing caregivers. The failure to coordinate the FNCFS Program with other programs, whether federal, provincial or territorial, created gaps, delays and denials of services for First Nations children. Moreover, the narrow definition and inadequate implementation of Jordan’s Principle resulted in service gaps, delays and denials for First Nations children and families.
[3] The Tribunal agreed with the Caring Society and the AFN that Canada’s conduct was discriminatory for reasons provided 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]. The Tribunal retained jurisdiction to address the complex remedial matters in this case (see especially Merit Decision, paras. 493-94 and 2016 CHRT 10, paras. 1-5).
[4] The Tribunal ordered Canada to pay compensation to the First Nations children who have experienced the pain and suffering of being separated from their homes, families and communities or have experienced gaps, delays and denials in services as a result of the discrimination found in the Merit Decision and their parents or grandparents caregivers who have experienced the pain and suffering of having their children unnecessarily removed from their homes, families and communities or have experienced gaps, delays and denials in services as a result of the discrimination found in the Merit Decision (see 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), 2019 CHRT 39 [the Compensation Decision]) In the Compensation Decision, the Tribunal directed the parties to negotiate a culturally sensitive and trauma informed process to compensate the victims of the discriminatory practice (para. 269). The Tribunal remained available to resolve any disagreements that arose in the process of drafting the compensation framework. The parties have engaged in a collaborative process to create the Framework for the Payment of Compensation under 2019 CHRT 39 (the Draft Compensation Framework). The parties have requested direction from the Tribunal when they were unable to agree (e.g. 2020 CHRT 7, 2020 CHRT 15, and 2020 CHRT 20). The parties indicate they are close to finalizing the Draft Compensation Framework in order to submit it to the Tribunal for approval.
[5] This ruling addresses four issues that arise from the Draft Compensation Framework submitted by the parties on October 2, 2020. The parties specifically requested the Tribunal to provide direction concerning a contested issue between the parties regarding the creation of a trust fund for some categories of beneficiaries. The AFN, the Caring Society and the NAN argue the Canadian Human Rights Act, RSC 1985 c H-6 [CHRA or the Act] provides jurisdiction to implement a trust fund for victims who were legally unable to manage their own finances. Second, Nishnawbe Aski Nation (NAN) requested an amendment to the Draft Compensation Framework to reflect its participatory rights as an intervening interested party in this case. Third, NAN requested an amendment to the Draft Compensation Framework to change the time period for which First Nations children would be eligible for Jordan’s Principle compensation. Finally, the Tribunal requested submissions to ensure that the Tribunal’s role in the Draft Compensation Framework was within the Tribunal’s jurisdiction.
[6] The Tribunal issued a letter ruling dated December 14, 2020 to the parties with reasons to follow. This is analogous to an oral decision with reasons to follow, which the Panel used to expedite the process of finalizing the compensation framework. This ruling provides the reasons contemplated in the Panel’s December 14, 2020 letter. Following this letter ruling, the parties were able to finalize the Draft Compensation Framework and, on December 23, 2020 they submitted the final version to obtain a final consent order on the issue of the compensation process.
II. Trust Provisions
(i) Context
[7] The Compensation Decision determined that compensation would be payable directly to the victims of the discriminatory practice instead of into a fund that would provide services for their benefit. However, the Tribunal recognized “that it is not appropriate to pay $40,000 to a 3-year-old” and that a process for paying funds to minor beneficiaries was required (para. 261). The Tribunal determined in 2020 CHRT 7 that the provincial or territorial age of majority would determine when First Nations children would receive direct control of their compensation funds (paras. 8-36).
[8] The Draft Compensation Framework contains provisions for payments for individuals who lack the legal capacity to manage their own finances. These provisions apply only to individuals who lack the legal capacity to manage their own finances:
10.1. Where the beneficiary has the legal capacity to manage their own financial affairs, the compensation shall be paid directly to the beneficiary.
…
10.3. Where the beneficiary does not have the legal capacity to manage their own financial affairs, the compensation shall be held in trust for the beneficiary.
[9] Section 10.3 also stipulates that for these beneficiaries, their compensation shall be held in trust.
[10] Sections 10.4 and 10.5 provide for the appointment of up to three Appointed Trustees to manage the trust funds in accordance with a Trust Agreement:
10.4. The Parties will select up to three (3) business entities that specialize in holding, administering and distributing funds held in trust for the benefit of the beneficiaries who do not have the legal capacity to manage their own financial affairs (the “Appointed Trustees”). The administration fees charged by the Appointed Trustees shall be paid for by Canada and shall not encroach on the beneficiaries’ entitlement.
(emphasis added).
10.5. The Appointed Trustees shall hold the funds in trust pursuant to a trust agreement agreed to by the Parties (the “Trust Agreement”). The Trust Agreement shall outline the following requirements:
a) The powers, responsibilities and requirements of the trustee to hold and manage the funds for the benefit of the beneficiaries;
b) The distribution provisions for income and capital;
c) The criteria for encroachment on capital;
d) The removal and replacement of trustees;
e) The accounting and report requirements; and
f) Any other appropriate related provisions.
[11] Canada does not agree with the proposed appointment of Appointed Trustees pursuant to a Trust Agreement and accordingly the parties request the Tribunal’s adjudication of these provisions in the Draft Compensation Framework.
A. Position of the Parties
(ii) Canada
[12] Canada objects to the provisions in the Draft Compensation Framework relating to paying funds into trust for children who do not have legal capacity to manage their own affairs. Canada acknowledges the advantages of the proposed measures but disputes that the Tribunal has the jurisdiction to implement them. Canada contends that the measures in the Draft Compensation Framework would inevitably cover ground fully covered by express provisions in the Indian Act, RSC 1985, c I-5 or provincial law relating to children’s property.
[13] Canada argues that under the Indian Act, the Minister has exclusive authority to deal with the property of any beneficiary who lacks the legal capacity to manage their own property. For adults who lack legal capacity, that authority is found under section 51. For children, the authority is under section 52, with the additional stipulations in sections 52.1 and 52.2 that contemplate a role for Band Councils and parents.
[14] Canada cites Saskatchewan, British Columbia and Ontario legislation to identify who should have control of a child’s property under provincial jurisdiction. It does not address any other provincial legislation. Section 45 of the Children’s Law Act 2020, S.S. 2020, c. 2, gives authority over a child’s property in Saskatchewan to the parents, unless otherwise ordered by a court. Sections 47 to 51 of the Ontario Children’s Law Reform Act, RSO 1990, c. C-12 give preference to parents as the guardians of a child’s property. The British Columbia Family Law Act, SBC 2011, c. 25 provides, at sections 175-181, that a trustee of a child’s property must be appointed by a court.
[15] Canada argues that there are many specific laws dealing with the property of minors. Subsections 53(2) and (3) of the CHRA do not demonstrate an intention by Parliament to allow the Tribunal to impose the trust provisions in the Draft Compensation Framework. Furthermore, the provincial and Indian Act provisions demonstrate that it is not necessary for the Tribunal to impose a trust framework. Canada further adds that the Tribunal must respect the existing property laws applicable to beneficiaries.
(iii) The Caring Society
[16] The Caring Society supports the trust provisions in the Draft Compensation Framework. The Caring Society submits that these provisions provide a clear, uniform, and culturally and trauma informed approach that would be lacking if Canada’s position is adopted.
[17] The Caring Society views beneficiaries who lack legal capacity as among the most vulnerable victims in this case. The proposed Appointed Trustee would protect compensation for this group. The centralized approach will create a predictable, clear and universal approach for all beneficiaries across Canada who lack legal capacity that is capable of clear oversight and protections.
[18] The Caring Society relies on the findings of the Youth in Care Canada report previously accepted by the Panel, that it is vital that persons who cannot manage their own financial affairs, receive culturally appropriate and trauma informed services to avoid further harm.
[19] The Caring Society outlines the burdens that would fall on families in the absence of the Appointed Trustee. The Caring Society agrees that compensation cannot be paid directly to those who lack legal capacity. The provincial, territorial and Indian Act regimes contemplate the appointment of a guardian of property as a default regime of last resort. The proposed Appointed Trustee provides an alternative to the default “last resort” statutory regimes in a manner that will more effectively implement the Tribunal’s orders.
[20] The Appointed Trustee avoids four obstacles for beneficiaries who lack legal capacity. First, it avoids the challenge of determining the legislative provisions that apply to the individual under the provincial, territorial, or Indian Act legislative regimes, depending on which legislative framework applies to the individual. The complexity of engaging with the legislation may require beneficiaries to hire legal counsel that would in effect reduce their compensation. Second, the legislative regime within a jurisdiction is often different for adults and children who lack legal capacity. Third, the administrative steps imposed on families under the provincial, territorial and Indian Act regimes may result in some families not completing the necessary steps and beneficiaries therefore not receiving compensation. Fourth, the default regimes do not contain provisions to ensure beneficiaries receive culturally appropriate and trauma informed services.
[21] The Caring Society further elaborates on some barriers potentially facing guardians of property for minors under the default regimes. These barriers undermine the principles of safeguarding the best interests of the child beneficiaries and making the payment process as simple as possible for beneficiaries. First, the application process is often burdensome. In most cases, the parent or guardian will be required to make an application to be appointed the guardian of property. This process may involve a court application, with associated court fees and the possible need to hire counsel. The process will vary between provinces and even in some cases within a province based on the amount of compensation a beneficiary will receive. Quebec in particular has different processes depending on whether the value of the property is above or below $25,000. Second, accounting processes are a significant administrative burden on a guardian of property. The specific accounting requirements vary between provinces and territories and, at least in Quebec, within the province based on the amount of compensation received. Third, guardians of property for a minor are often required to post a bond. The requirements again vary across Canada. The requirement to post a bond adds another burden to seeking compensation.
[22] The Caring Society identifies that there are also burdens for individuals seeking to be appointed a guardian of property for an adult who lacks legal capacity. First, there is an application process. While it involves many of the same challenges as processes involving minors, there is the further requirement of proving a lack of capacity. The requirement to demonstrate an absence of capacity increases the potential for contested litigation. There are similar provisions for financial security to be required by the guardian. In some cases, there is a requirement to present a plan for managing the property. The Caring Society notes that some legislation, such as the Adult Capacity and Decision-making Act, SNS 2017, c. 4, s. 7(1)(c), requires the court to be satisfied that appointing a guardian of property is the least restrictive measure. Secondly, the standards to which guardians of property are held are high. It requires appropriate judgement and record keeping. Guardians of property take on a legal risk that they would be held responsible if funds are mismanaged.
[23] Overall, the Caring Society submits that the proposed trust provisions are consistent with a broad interpretation of the CHRA that is aimed at effectively remedying the discrimination at issue. The proposed provisions best protect the specific interests of the particularly vulnerable group of beneficiaries who lack legal capacity to manage their own finances.
(iv) Assembly of First Nations
[24] The AFN supports the trust provisions in the Draft Compensation Framework. The provisions provide a national approach with clear rules and norms on how funds are to be distributed to beneficiaries.
[25] The AFN is aware of the risk that parents or guardians deplete the funds they hold in trust for a child. The proposed provisions protect vulnerable beneficiaries from this risk. The trust provisions contemplate that all of the funds will be preserved until a child beneficiary reaches the age of majority. These provisions contrast with provincial, territorial and the Indian Act regimes that contemplate that trust funds can be encroached upon so long as it is in the best interest of the beneficiary. In particular, there is a possibility under at least some provincial regimes to encroach on the trust funds to pay for some maintenance and support expenses. Similar encroachments are possible for activities that directly benefit the child such as healthcare, education and sports. These encroachments are particularly problematic when the guardian is the state. The AFN is concerned about a process that would likely see some beneficiaries not having any funds left when they reach the age of majority.
[26] The trust provisions provide a consistent national regime. This permits uniform direction on how the trust funds will be managed. It also alleviates the burden on individual guardians of property to navigate the process for managing funds themselves. The AFN notes, much as the Caring Society does, the different regimes that apply across Canada and even in some instances within a jurisdiction based on the amount of compensation at issue. The AFN raises concerns that the reporting requirements under existing legislation are inadequate to safeguard the compensation funds because, if there is an abuse of funds, it is difficult to seek to have it remedied until a minor beneficiary reaches the age of majority. At that point, any remedy is likely to require expensive litigation. In relation to the Indian Act in particular, the funds are not invested in a manner that permits reasonable returns.
[27] The AFN submits that the Tribunal has jurisdiction to approve the trust provisions in the Draft Compensation Framework. The Tribunal’s remedial jurisdiction stems from the quasi-constitutional nature of the CHRA and the broad remedial discretion provided under section 53 of the CHRA. The AFN relies on Merrill Petroleums Ltd. v. Seaboard Oil Co., 1957 CanLII 631 (AB QB), 22 W.W.R. 529 at p 557 for the proposition that a trust instrument can supersede provincial law. The various provincial and territorial Trustee Acts reinforce the supremacy of trust deeds over general legislative provisions. For example, Manitoba’s The Trustee Act, C.C.S.M. c. T160 provides at section 4 that
Nothing in this Act authorizes a trustee to do anything that he is in express terms forbidden to do, or to omit to do anything that he is in express terms directed to do, by the instrument creating the trust.
Similarly, the Ontario Trustee Act, R.S.O. 1990, c T.23 provides, at section 68, that
Nothing in this Act authorizes a trustee to do anything that the trustee is in express terms forbidden to do, or to omit to do anything that the trustee is in express terms directed to do by the instrument creating the trust.
[28] The AFN believes that the trust provisions in the Draft Compensation Framework are within the scope of the remedies available to the Tribunal. Furthermore, these provisions will give effect to the Tribunal’s direction that the parties establish a process that will ensure that minors have their compensation “secured in a fund that would be accessible upon reaching majority” (Compensation Decision, para. 261).
(v) Other Parties
[29] The NAN indicated it supports the Caring Society and the AFN’s position on the trust provisions. The Commission and the Chiefs of Ontario (COO) take no position.
B. Analysis
[30] The Tribunal has the jurisdiction under section 53 of the CHRA to approve the trust provisions in the Draft Compensation Framework. This will be explained below.
(i) Scope of Trust Law and Guardianship Law
(a) General Principles
[31] The AFN correctly articulates the general principle that legislative regimes regarding trusts contemplate specific provisions in a trust deed that can take precedence over most aspects of the legislation. In particular, Merrill Petroleums Limited v. Seaboard Oil Company, 1957 CanLII 631 (AB QB), at page 557, aff’d 1958 CanLII 499 (AB CA) supports the proposition that while the common law and statutes might impose some duties on trustees, the specific provisions of the trust are governed by the trust agreement:
While it is also true that there are certain general obligations imposed by law on any trustee (e.g., the duty not to profit from the trust at the expense of the beneficiaries) the more specific obligations and duties of a trustee are set forth in the instrument creating the trust—in other words, except for those general duties imposed by law on all trustees, the terms of a trust are to be found within the four corners of the trust instrument.
[32] Provincial and territorial legislation relating to trusts contemplates the existence of a separate trust instrument managed by another trustee that is different from the regimes contemplated in provincial or territorial guardianship legislation. Similarly, there is no provision in the Indian Act that ousts the ability of an individual lacking legal capacity from benefiting from a trust deed and having their property managed by a trustee in accordance with the trust deed.
[33] The Caring Society provided the Tribunal with Whaley Estate Litigation on Guardianship in which with Lionel J. Tupman states at page 85 that establishing a trust is an alternative to relying on the default provisions in Ontario legislation that contemplates the appointment of a guardian of property:
Trust Terms
Further alternatives may exist having some bearing on the appointment of a guardian under [Ontario’s Children’s Law Reform Act], including various trust arrangements which may provide authority for the property to be held in trust by a parent or other individual/trustee, a will that contains trust terms, the designation of a trustee or a trust or trust settlement (inter vivos trust).
(Lionel J. Tupman, “Guardianship of Property” in Whaley Estate Litigation on Guardianship, Kimberley A. Whaley and WEL, edited by Laura Cardiff (2015), Available online at https://welpartners.com/resources/WEL-on-guardianship.pdf)
[34] The proposition that a specific trust agreement is an alternative to relying on the guardianship provisions of legislation is a general proposition not limited to the specifics of the Ontario legislation. It applies across provincial, territorial and Indian Act legislation and provisions on guardianship.
[35] A review of provincial legislation supports the proposition that trust law generally contemplates that a trust agreement can take precedence over provisions in trust legislation. For example, the Ontario Trustee Act, RSO 1990, c T.23 at s. 67 and 68 provides that the powers in the Act are in addition to those established in the trust agreement and that nothing in the Act authorizes a trustee to do anything they are prohibited from doing by the trust agreement. The Alberta Trustee Act, RSA 2000, c T-8 does not have a general provision explaining the relationship of the Act to trust agreements but has provisions such as s. 35(6) that confirm that specific provisions of the Act are limited by the terms of the trust agreement. Similarly, the British Columbia Trustee Act, RSBC 1996, c 464 has various provisions such as s. 27(5) that stipulates that the section only applies if a contrary intention is not expressed in the trust agreement. It is clear that, in general, provincial legislation contemplates operating harmoniously with a trust agreement. In fact, it appears that much of the legislation is written to provide a default set of rules in the event that a trust agreement does not address an issue. A reading of this legislation does not support Canada’s assertion that provincial legislation ousts the Tribunal’s ability to structure a remedy in the form of a trust. Rather, it provides a framework that would give full effect to any trust created.
(b) Indian Act Regime
[36] Canada raises concerns that the Indian Act provides a complete scheme to address the property of individuals within the scope of the Act who lack the legal capacity to manage their own property. Canada identifies sections 51, 52 and 52.1-52.5 as setting out the applicable Indian Act regime. Canada’s submissions on this matter provide little analysis beyond identifying these statutory provisions.
[37] On an initial reading, the provisions of the Indian Act appear to support the proposition that only the Minister may manage the property of an individual with Indian Act status who lacks legal capacity. For example, section 51(1) provides that “[s]ubject to this section, all jurisdiction and authority in relation to the property of mentally incompetent Indians is vested exclusively in the Minister.” Similarly, for children, section 52 provides that “[t]he Minister may administer or provide for the administration of any property to which infant children of Indians are entitled, and may appoint guardians for that purpose.” While there are provisions for appointing another individual to manage the property, the appointed guardian of property’s powers flow from the Minister’s approval (s. 51(2)(a) and s. 52.2).
[38] The Indian Act provisions are far sparser than the trust provisions in provincial and territorial legislation. They do not provide any explicit guidance on how the provisions interact with a trust agreement. However, some of the case law and general trust principles provide relevant insight and support a conclusion that the Indian Act does not preclude the Tribunal ordering the proposed trust provisions.
[39] First, a number of cases show how the Minister has broadly applied the provisions to enable others to manage property covered by the applicable Indian Act sections. In Desmoulin (Committee of) v. Blair, 1991 CanLII 8345 (ON SC) the Minister made an order under section 51(3) of the Indian Act that the individual’s property would be managed in accordance with the laws of Ontario, and consequentially, by a guardian of property. In Dickson (Estate of), 2012 YKSC 71, the facts highlight the Minister’s efforts to find another appropriate individual to manage the property. In Polchies v. Canada, 2007 FC 493 monies payable to children were paid to parents. Some parents set up trust funds for their children. Furthermore, paragraph 62 confirms that the Minister does not have exclusive responsibility for the property of all children with Indian Act status living on reserve:
since the discretion conferred on the Minister by section 52 can be triggered by the simple existence of two conditions (the existence of property to which infant children of Indians are entitled and the fact that they reside on a reserve), it would create an absurd result to say that the Minister must administer or provide for the administration of all property of all Indian children residing on reserves.
Similarly, 1985 Sawridge Trust v. Alberta (Public Trustee), 2012 ABQB 365 involves litigation about a trust that has child beneficiaries with Indian Act status. Collectively, these cases support an inference that the Indian Act regime is applied as a last resort, in a manner analogous to the default regimes under provincial legislation. The Indian Act does not preclude a trust agreement with a trustee acting on the authority of the trust agreement rather than the Indian Act.
[40] Second, the nature of a common law trust is to split title, or ownership, of property. The trustee has legal control of the property but not the right to benefit from the property. The beneficiary does not have legal control of the property but has the right to the benefits that flow from the property. There is a general principle in property law that one cannot give what one does not have. Under the proposed trust provisions, Canada would pay the compensation funds to the trustee. The trustee would receive legal control of the funds while the beneficiary would receive the right to benefit from the compensation funds. The property interest the trustee assumes over the property - the legal control of the compensation funds – has not yet passed to the beneficiary. Accordingly, the property does not come under the scope of the Indian Act because the legal control of the property has not yet passed to the beneficiary. The beneficiary who lacks legal capacity cannot give control of their compensation funds to the Minister under the Indian Act because they do not have the right to legally control their compensation funds until the funds are paid out in accordance with the terms of the trust agreement.
[41] Similarly, patrimony in a civil law trust would not come under the scope of the Indian Act because legal control of the property has not yet passed to the beneficiary. As explained by the SCC, “the trust in Quebec civil law does not result from the division of ownership but rather from the transfer of property in a patrimony created for a particular purpose and not held by anyone” (Yared v Karam, 2019 SCC 62 at para. 17).
[42] In conclusion, past practice and the nature of trust law both support that the Indian Act does not preclude the creation of the proposed trust provisions in the Draft Compensation Framework.
(c) Provincial Legislative Regimes
[43] Canada also argues that the provincial law provides a complete legislative regime that precludes the Tribunal imposing the proposed trust provisions. Canada specifically cites Saskatchewan’s Children’s Law Act 2020, S.S. 2020, c.2; Ontario’s Children’s Law Reform Act, RSO 1990, c. C-12; and British Columbia’s Family Law Act, SBC 2011, c. 25. While the following analysis does not comprehensively review every provincial and territorial regime, it considers all the statutes referred to by Canada in its argument that the Tribunal lacks jurisdiction. Further, the generally similar structure of these common law statutes supports analogous reasoning that the role of trusts is largely similar in the provinces and territories not canvassed.
[44] The current legislation in force in Saskatchewan is The Children's Law Act, 1997, SS 1997, c C-8.2. The Children's Law Act, 2020, SS 2020, c 2 received royal assent on March 16, 2020 but, per s. 93, comes into force by order of the Lieutenant Governor in Council. That has not occurred as of the date of this ruling. Regardless, the relevant provisions of the legislation are the same as in the 1997 Act, subject only to being renumbered. References to the 2020 legislation are provided in brackets after the reference to the 1997 legislation that is currently in force.
[45] The key provision in Saskatchewan’s 1997 legislation is section 32 [section 47]. The provision provides that “any moneys due and payable to the child” would be payable to the guardian of property under the Act. However, the establishment of the trust agreement would have the effect of not making money due and payable to the child until it is paid out from the trust fund in accordance with the provisions of the trust agreement. Accordingly, the provisions of the statute are not engaged. The analysis with respect to the Indian Act that the nature of the trust makes it so that the child cannot grant a property right they do not have applies equally under this legislation. While Canada is correct that section 30 [section 45] provides that the default provision is that the parents are the default guardians of property for a child, that does not displace the child’s ability to benefit from a trust administered by a trustee other than the child’s parents or other court appointed guardian.
[46] In Ontario, the pertinent legislation is the Children's Law Reform Act, RSO 1990, c C.12 and the Trustee Act, RSO 1990, c T.23. The Children’s Law Reform Act does not specifically contemplate the child being the beneficiary of a separate trust agreement. The only provisions that specifically relate to the payment of compensation of over $10,000 to children are found in the Trustee Act which provides, at section 36(6), that compensation may be paid into the court. However, the Public Guardian and Trustee, whose office includes the Accountant of the Superior Court of Justice that is responsible for administering funds paid into court, indicates that a trust agreement is capable of directing that the appointed trustee manages the child’s funds instead of having the money paid into court or paid to a court appointed guardian:
1. Why is children’s money held in court?
Ontario law requires children’s assets to be held in court, unless:
a law or court order provides otherwise
a document such as a Will or trust instrument provides otherwise
a court has appointed a guardian of the child’s property
(Office of the Public Guardian and Trustee, “Accountant of the Superior Court of Justice”, Question 1, p. 3 (p. 5 of the pdf), https://www.attorneygeneral.jus.gov.on.ca/english/family/pgt/ascj.pdf).
[47] While Canada is again correct that sections 47-51 of the Ontario Children's Law Reform Act give priority to parents as the guardians of a child’s property, it does not displace the possibility that the child is the beneficiary of a trust fund. Further, in the recent case of Santella v. Bruneau (Litigation Guardian of), 2020 ONSC 2937 the court refused to appoint a parent as the guardian of property not because of any evidence the parent would abuse the trust but because payment of the inheritance into the court would better protect the funds in the unlikely event the parent lost capacity or became bankrupt. It is not clear that the current case law supports a preference for parents to manage large sums of money in trust for their children.
[48] In British Columbia, the governing legislation is the Family Law Act, SBC 2011, c. 25. Section 177 stipulates that “[a] person having a duty to deliver property to a child may discharge the duty by delivering the relevant property to a trustee who is authorized to receive that property”. The definitions in section 175 define a trustee to include a person authorized under a trust agreement. Accordingly, the legislation contemplates that Canada’s compensation obligations arising from the Tribunal’s orders can be discharged by making a payment to an authorized trustee. Furthermore, this analysis indicates that Canada is incorrect in its assertion that these provisions require that a trustee be appointed by a court order.
[49] The specific statutes referred to by Canada do not support the proposition that there is a preference, let alone a requirement, that compensation to minor beneficiaries must be in accordance with the provisions in the various common law Acts instead of through the proposed trust provisions in the Draft Compensation Framework.
(d) Conclusion
[50] The trusts and guardianship laws referred to by Canada do not preclude the Tribunal approving the trust provisions contained in the Draft Compensation Framework. First, the general structure of trust law contemplates that the statutory framework can exist harmoniously with a trust agreement. The statutory framework is not intended to preclude or limit the creation of trusts. Second, the Indian Act regime is capable of supporting separate trusts that exist with a structure outside the Indian Act. The Indian Act is best understood as providing provisions in the event that other structures are not in place to manage the property of an individual who lacks legal capacity. And finally, the provincial regimes contemplate, often explicitly, payments into trusts instead of the last resort appointment of guardians of property.
(ii) Scope of CHRA Remedial Provisions
[51] Section 53 of the CHRA reads as follows:
53 (1) At the conclusion of an inquiry, the member or panel conducting the inquiry shall dismiss the complaint if the member or panel finds that the complaint is not substantiated.
(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.
(3) In addition to any order under subsection (2), the member or panel may order the person to pay such compensation not exceeding tw