2012 FC 445, 2012 FC 445

[2013] 4 F.C.R. 545 2012 FC 445 T-578-11 Canadian Human Rights Commission ( Applicant ) v. Attorney General of Canada, First Nations Child and Family Caring Society, Assembly of First Nations, Chiefs of Ontario, Amnesty International ( Respondents ) T-630-11 First Nations Child and Family Caring Society ( Applicant ) v. Attorney General of Canada, Assembly of First Nations, Canadian Human Rights Commission, Chiefs of Ontario and Amnesty International ( Respondents ) T-638-11 Assembly of First Nations ( Applicant ) v.

Attorney General of Canada, First Nations Child and Family Caring Society, Canadian Human Rights Commission, Chiefs of Ontario and Amnesty International ( Respondents ) Indexed as: Canada (Canadian Human Rights Commission) v. Canada (Attorney General) Federal Court, Mactavish J.—Ottawa, February 13, 14 and 15; Toronto, April 18, 2012.

Human Rights — Aboriginal peoples — First Nations child welfare services — Judicial review of decision by Canadian Human Rights Tribunal dismissing without full hearing on merits complaint that Government of Canada underfunding child welfare services for on- reserve First Nations children — Complaint alleging funding formula inequitable, discriminatory, failing to account for divergent needs — Government arguing, inter alia, Canadian Human Rights Act , s. 5 (prohibiting discrimination in provision of services) not applicable as Government not delivering child welfare services itself, no discrimination in provision of those services as funding not provided for anyone other than on-reserve First Nations children (i.e. no comparator group available) — Tribunal determining having authority to dismiss complaint without full viva voce hearing, no comparator group required under Act, s. 5(a), finding of discrimination under Act, s. 5(

b) requiring comparison, no adverse differentiation in provision of services under s. 5(

b) herein as Government not providing child welfare services to recipients other than First Nations children living on reserves — Whether Tribunal able to dismiss complaint without full hearing on merits; process in deciding comparator group issue fair; Tribunal erring in failing to consider complaint under s. 5(a); s. 5(

b) requiring comparator group in all cases; Tribunal erring in concluding no relevant comparator group herein — Tribunal having authority to determine process to be followed — Tribunal correctly deciding full evidentiary hearing not always necessary if parties given opportunity to adduce evidence, make submissions — Tribunal having to consider facts, issues in every case — As to Canada’s international human rights obligations, proper monitoring, enforcement thereof not requiring Tribunal hold viva voce hearing on merits — Tribunal erring in not providing reasons why complaint could not proceed under s. 5(a) — Tribunal also unreasonably interpreting “differentiate adversely” in s. 5(b) — Requiring comparator group under s. 5(

b) only creating anomalous results — Comparator group evidentiary tool, not part of definition of discrimination — Requiring comparator group in every case limiting First Nations peoples’ protection under Act —

Interpretation of s. 5(

b) accepting sui generis status of First Nations consistent with Canadian Charter of Rights and Freedoms values — Unreasonable for Tribunal to conclude no appropriate comparator group available herein as Tribunal failing to consider material fact — Applications allowed.

Practice — Evidence — Canadian Human Rights Tribunal dismissing complaint that child welfare services for on-reserve First Nations children underfunded — Tribunal breaching procedural fairness in considering extrinsic evidence without advising parties, providing opportunity to respond — Not necessary for applicants to show actual prejudice — Only necessary to show breach of fairness may reasonably have caused prejudice.

Construction of Statutes — Canadian Human Rights Tribunal dismissing complaint that child welfare services for on-reserve First Nations children underfunded — Tribunal unreasonably interpreting “differentiate adversely” in Canadian Human Rights Act , s. 5 (

b) as meaning comparator group required in every case — Phrase “differentiate adversely in relation to any individual” meaning to treat someone differently because of individual’s membership in protected group — Act, ss. 5(b), 6(b), 7(

b) having to be read together, accorded harmonious

interpretation —

Interpretation of phrase “differentiate adversely” confirmed when regard had to French version — Unreasonableness of Tribunal’s

interpretation further supported by case law under Act, Canadian Charter of Rights and Freedoms, s. 15 . These were applications for judicial review of a decision by the Canadian Human Rights Tribunal dismissing without a full hearing on the merits a complaint that the Government of Canada underfunds child welfare services for on-reserve First Nations children. The complainants alleged, inter alia , that the formula used by the Government to fund First Nations child and family services (Directive 20-1) results in inequitable levels of child welfare services provided to First Nations children living on reserves as compared to other

Canadian children living off-reserve, and that this inequity amounts to discrimination on the basis of the children’s race and national or ethnic origin. Maintenance and operations funding streams characterize Directive 20-1. The complainants contended that the “per child” operations formula fails to account for the divergent child welfare needs across communities. The complainants further asserted that Directive 20-1’s emphasis on maintenance funding means that less disruptive measures are often unavailable for children living on reserves. The Government argued that

section 5 of the Canadian Human Rights Act did not apply because it does not itself deliver child welfare services to First Nations children living on reserves. The Government also argued that because it does not provide funding for child welfare services for anyone other than First Nations children living on reserves, it could not discriminate in the provision of these services.

The Government submitted that it was not appropriate to compare the level of services provided by provincial child welfare authorities to the services provided to on-reserve First Nations children, and that such a cross-jurisdictional comparison could not amount to adverse differential treatment by one service provider on the basis of a proscribed ground (comparator group issue).

The Tribunal determined that it had the authority to dismiss a human rights complaint without a full viva voce hearing on the merits where the facts of the case were clear and uncontroverted or where the issues raised pure questions of law, provided that the parties had had the opportunity to be heard. The Tribunal was satisfied that no comparator group is required to establish discrimination in cases where a service is denied altogether as contemplated by paragraph 5(

a) of the Act. The Tribunal held that a finding of discrimination under paragraph 5(

b) of the Act requires a comparison to be made to the treatment accorded by the service provider to a different service recipient who does not share the personal attribute identified as the basis for the discriminatory practice. Given that the Government did not provide child welfare services to recipients other than First Nations children living on reserves, it followed that there could be no adverse differentiation in the provision of services under paragraph 5(

b) of the Act. The issues were whether the Tribunal has the power to decide issues that could result in the dismissal of a human rights complaint without conducting a full hearing on the merits of the complaint that provides the parties with an opportunity to adduce viva voce evidence; whether the process followed by the Tribunal in deciding the comparator group issue was fair; whether the Tribunal erred in failing to consider the complaint under paragraph 5(

a) of the Act; whether paragraph 5(

b) of the Act requires that there be a comparator group in all cases; and whether the Tribunal erred in concluding that there was no relevant comparator group in this case. Held , the applications should be allowed. The Tribunal correctly concluded that it had the authority to determine the process to be followed in deciding the issues raised by a human rights complaint. The Tribunal also correctly decided that it does not always have to hold a full evidentiary hearing in relation to each and every issue raised by a complaint in order to decide substantive issues coming before it.

A reading of subsections 48.9(1) and (2), 49(1), 50(1), 50(3) and 53(1) of the Act shows that it is part of the Tribunal’s adjudicative role to identify an appropriate procedure to secure the just, fair and expeditious determination of each complaint coming before it.

There is no statutory or regulatory impediment that would preclude the bringing of a motion to have the Tribunal determine a substantive issue in advance of a full hearing of the complaint on its merits, or from deciding such a motion, as long as the Tribunal provides the parties with a full and ample opportunity to adduce the evidence necessary to decide the issue and to make submissions. Nothing in the Federal Court or the Federal Court of Appeal case law states that the Tribunal can only dismiss a human rights complaint without a full hearing on the merits in cases of abuse of process.

The Federal Court’s decision in Canada (Human Rights Commission) v. Canada Post Corp. states that the Tribunal is not obliged to hold a full hearing in relation to every complaint that the Commission refers to it. However, the Tribunal’s power to dismiss a human rights complaint in advance of a full hearing on the merits should be exercised cautiously.

In every case, the Tribunal must consider the facts and issues raised by the complaint before it, and will have to identify the appropriate procedure to be followed so as to secure as informal and expeditious a hearing process as the requirements of natural justice and the rules of procedure allow. The process adopted by the Tribunal will have to be fair, and will always have to afford each of the parties “a full and ample opportunity … to appear … present evidence and make representations” in relation to the matter in dispute.

Finally, the proper monitoring and enforcement of Canada’s international human rights obligations do not require that the Tribunal hold a viva voce hearing on the merits. Provided that the Tribunal operates independently, and that the procedures it follows are fair and are able to address the issues in question, Canada will meet those obligations. There was a breach of procedural fairness as the Tribunal considered extrinsic evidence without advising the parties in deciding the motion, and without affording the parties any opportunity to respond to it.

The Tribunal did not distinguish between the material filed by the parties in relation to the Government’s motion to dismiss and the materials filed in relation to the merits of the complaint. The parties were not aware of this and had no opportunity to address or respond to any of the extrinsic material. The applicants need not show actual prejudice resulting from the Tribunal’s consideration of extrinsic evidence in order to prove that they have been denied procedural fairness. They need only show that the Tribunal’s breach of fairness may reasonably have prejudiced them.

The sheer volume of extrinsic materials vetted by the Tribunal raised concerns about the fairness of the process followed in relation to the motion to dismiss. The Tribunal erred in failing to provide reasons as to why the complaint could not proceed under paragraph 5(

a) of the Act. Most of the submissions before the Tribunal were directed at the question of whether there could be discrimination under

section 5 of the Act as a whole. The parties made no attempt during the hearing of the motion to address the differences in wording between paragraphs 5(

a) and ( b ). The absence of reasons on this point meant that this aspect of the Tribunal’s decision lacked the justification, transparency and intelligibility required of a reasonable decision. The Tribunal’s

interpretation of the term “differentiate adversely” in paragraph 5( b ), that every case requires a comparator group in order to establish discrimination in the provision of services, was unreasonable. The ordinary meaning of the phrase “differentiate adversely in relation to any individual” on a prohibited ground of discrimination is to treat someone differently because of the individual’s membership in a protected group. This

interpretation is in accordance with the purpose of the Act and the intention of Parliament. The Tribunal’s

interpretation of “differentiate adversely” as the term is used in paragraphs 5( b ), 6(

b) and 7(

b) of the Act did not fall within the range of possible acceptable outcomes which are defensible in light of the facts and the law. Paragraphs 5( b ), 6(

b) and 7(

b) must be read together and accorded a harmonious

interpretation. Therefore, the Tribunal erred in attempting to distinguish case law arising under paragraph 7(

b) on the basis that disability cases bring with them particular and individualized situations. This

interpretation of the phrase “differentiate adversely” as it is used in paragraph 5(

b) is confirmed when regard is had to the French version of the legislation, and to the incoherence that the Tribunal’s

interpretation would create between paragraphs 5(

a) and (

b) by establishing different legal and evidentiary requirements in order to establish discrimination under each provision. Requiring a comparator group in every case brought

under paragraph 5(b), but not for complaints brought under paragraph 5(a), would create anomalous results. The unreasonableness of theTribunal’s

interpretation of paragraph 5(

b) was further supported by the case law that has developed under the Act and under

section 15of the Canadian Charter of Rights and Freedoms (Charter). A comparator group is not part of the definition of discrimination. Rather, itis an evidentiary tool that may assist in identifying whether there has been discrimination in some cases. The Supreme Court of Canadarecognized, in Withler v. Canada (Attorney General), that there may be cases such as the present where there is no appropriatecomparator group By interpreting paragraph 5(

b) of the Canadian Human Rights Act so as to require a mirror comparator group in everycase in order to establish adverse differential treatment in the provision of services, the Tribunal’s decision meant that, unlike otherCanadians, First Nations people will be limited in their ability to seek the protection of the Act if they believe that they have beendiscriminated against in the provision of a government service on the basis of their race or national or ethnic origin. This was not areasonable outcome. An

interpretation of paragraph 5(

b) that accepts the sui generis status of First Nations, and recognizes that differentapproaches to assessing claims of discrimination may be necessary depending on the social context of the claim, is one that is consistentwith and promotes Charter values. Finally, it was unreasonable for the Tribunal to conclude that there was no appropriate comparator group available in this case, as itfailed to consider a material fact, i.e. the Government’s own adoption of provincial child welfare standards as the appropriate comparatorfor the purposes of its child welfare programs.

The decision of the Tribunal was set aside, and the matter was remitted to a differently constituted panel of the Canadian Human RightsTribunal for redetermination in accordance with these reasons. STATUTES AND REGULATIONS CITED Canadian Charter of Rights and Freedoms, being

Part I of the Constitution Act, 1982,

Schedule B, Canada Act 1982, 1982, c. 11 (U.K.)[R.S.C., 1985, Appendix II, No. 44], s. 15. Canadian Human Rights Act, R.S.C., 1985, c. H-6, ss. 2 (as am. by S.C. 1998, c. 9, s. 9), 3 (as am. by S.C. 1996, c. 14, s. 2), 5, 6, 7, 11,41(1)(c), 48.1(2) (as enacted by R.S.C., 1985 (1st Supp.), c. 31, s. 65; S.C. 1998, c. 9, s. 27), 48.2(2) (as enacted idem), 48.9(1) (asenacted by S.C. 1998, c. 9, s. 27), (2) (as enacted idem), 49(1) (as am. idem), 50(1) (as am. idem), (2) (as am. idem), (3)(c),(d),(e) (as am.idem), 51 (as am. idem), 53(1) (as am. idem), 67 (repealed by S.C. 2008, c. 30, s. 1).

Federal Courts Rules, SOR/98-106, rr. 1 (as am. by SOR/2004-283, s. 2), 317 (as am. by SOR/2002-417, s. 19; 2006/219, s. 11(F)). Indian Act, R.S.C., 1985, c. I-5. TREATIES AND OTHER INSTRUMENTS CITED Convention on the Rights of the Child, November 20, 1989, [1992] Can. T.S. No. 3. International Covenant on Civil and Political Rights, 16 December 1966, [1976] Can. T.S. No. 47. International Covenant on Economic, Social and Cultural Rights, 16 December 1966, [1976] Can. T.S. No. 46. International Convention on the Elimination of All Forms of Racial Discrimination, March 7, 1966, [1970] Can. T.S. No. 28.

United Nations. Committee on the Rights of the Child. General Comment No. 2 (2002): The Role of Independent National Human RightsInstitutions in the Promotion and Protection of the Rights of the Child. UN Doc. CRC/GC/2002/2 (15 November 2002), online:<http://www.unhchr.ch/tbs/doc.nsf/0/ec1dcd23712e20a8c1256c4f0034fd50/$FILE/G0245736.pdf>. United Nations. Committee on the Rights of the Child. General Comment No. 5 (2003): General measures of implementation of theConvention on the Rights of the Child (Articles 4, 42 and 44(6)). UN Doc.

CRC/GC/2003/5 (3 October 2003), online:<http://www.unhchr.ch/tbs/doc.nsf/(symbol)/CRC.GC.2003.5.En>. United Nations Declaration on the Rights of Indigenous Peoples, GA Res. 61/295, UN Doc. A/61/49 (2007). Universal Declaration of Human Rights, GA Res. 217 A (III), UN Doc. A/810, (1948), at p. 71, Art. 8. CASES CITED applied: Canada (Human Rights Commission) v. Canada Post Corp., 2004 FC 81, [2004] 2 F.C.R. 581, [2004] CLLC 230-015, 245 F.T.R. 263,affd 2004 FCA 363, 329 N.R. 95; Canada (Canadian Human Rights Commission) v. Canada (Attorney General), 2011 SCC 53, [2011] 3S.C.R. 471, 337 D.L.R. (4th) 385, 26 Admin.

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Canada (Department of National Health and Welfare), , 146F.T.R. 106, 38 C.C.E.L. (2d) 121 (F.C.T.D.). AUTHORS CITED Aboriginal Affairs and Northern Development Canada. National Social Programs Manual, 2012, online: <http://www.aadnc-aandc.gc.ca/DAM/DAM-INTER-HQ-HB/STAGING/texte-text/hb_sp_npm_mnp_1335464147597_eng.pdf>. Baines, Beverly. “Equality, Comparison, Discrimination, Status” in Fay Faraday, Margaret Denike and M. Kate Stephenson, eds. MakingEquality Rights Real: Securing Substantive Equality under the Charter. Toronto: Irwin Law, 2006. Canada. House of Commons.

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Section 15 at Twenty” in Sheila McIntyre and Sanda Rodgers, eds. Diminishing Returns: Inequality and the Canadian Charter of Rights and Freedoms . Markham, Ont.: Butterworths, 2006. applications for judicial review of a decision by the Canadian Human Rights Tribunal ( 2011 CHRT 4 ) dismissing without a full hearing on the merits a complaint that the Government of Canada underfunds child welfare services for on-reserve First Nations children. Applications allowed. APPEARANCES Philippe Dufresne , Daniel Poulin and Samar Musallam for applicant Canadian Human Rights Commission.

Nicholas McHaffie and Sarah Clarke for applicant First Nations Child and Family Caring Society of Canada. David C. Nahwegahbow and Joanne St. Lewis for applicant Assembly of First Nations. Jonathan D. N. Tarlton and Melissa Chan for respondent Attorney General of Canada. Michael Sherry for respondent Chiefs of Ontario. Justin Safayeni for respondent Amnesty International. SOLICITORS OF RECORD Canadian Human Rights Commission , Ottawa, for applicant Canadian Human Rights Commission. Stikeman Elliott LLP , Ottawa, for applicant First Nations Child and Family Caring Society of Canada.

Nahwegahbow Corbiere , Rama, Ontario, for applicant Assembly of First Nations. Deputy Attorney General of Canada for respondent Attorney General of Canada. Michael Sherry , Mississauga, Ontario, for respondent Chiefs of Ontario. Stockwoods LLP , Toronto, for respondent Amnesty International. Table of Contents Paragraph 1. Introduction 1 2. The parties 11 A. The complainants 11 B. The Canadian Human Rights Commission 14 C. The interveners 15 D. The respondent to the complaint 18 3. The human rights complaint 19 4. Background to the complaint 25 A.

The First Nations Child and Family Services Program – National Program Manual 32 B. Directive 20-1 35 C. Enhanced prevention focused funding 47 D. The 1965 Indian Welfare Agreement with Ontario 50

E. The alleged discrimination 53 5. The procedural history of the complaint 63 A. The proceedings before the Commission 64 B. The Federal Court proceedings 69 C. The Tribunal proceedings 75 6. The Tribunal decision 100 7. The issues on these applications 108 8. The procedural issues 113 A. Does the Tribunal have the power to decide issues that could result in the dismissal of a human rights complaint without conducting a full hearing no the merits of the complaint that provides the parties with an opportunity to adduce viva voce evidence? 115 B. Was the process that was followed by the Tribunal in deciding the comparator group issue fair? 159 9. The

section 5 issues 206 A. The Tribunal’s failure to consider the complaint under paragraph 5(

a) of the Act 207 B. Does paragraph 5(

b) of the Canadian Human Rights Act require that there be a comparator group in all cases? 222 i. Standard of review 231 ii. The purpose of the CHRA and its

interpretation 243 iii. The ordinary meaning of “differentiate adversely” 251 iv. The French and English versions of paragraph 5( b ) 272 v. The incoherence created between paragraphs 5(

a) and ( b ) 276 vi. The role of comparator groups in a discrimination analysis 280 vii. The Supreme Court of Canada’s decision in Withler 316 viii. The lessons to be learned from Withler 332 ix. The significance of the repeal of

section 67 of the Canadian Human Rights Act 341 x. The international law arguments 348 xi.

Summary of conclusions regarding the need for a comparator group under paragraph 5(

b) of the Act 357 C. The failure of the Tribunal to consider Canada’s own choice of provincial child welfare standards as an appropriate comparator 367 10. Conclusion 391 The following are the reasons for judgment and judgment rendered in English by Mactavish J.: 1. Introduction [ 1 ] The Government of Canada funds child welfare services for First Nations children living on reserves.

The provinces fund child welfare services for all other Aboriginal and non-Aboriginal children. [ 2 ] The First Nations Child & Family Caring Society and the Assembly of First Nations filed a human rights complaint with the Canadian Human Rights Commission in which they allege that the Government of Canada underfunds child welfare services for on- reserve First Nations children.

They say that the result of this underfunding is that the level of some of the services provided for these children is inadequate, and that other child welfare services otherwise available to Canadian children are not available to First Nations children living on reserves. The complainants allege that this amounts to discrimination in the provision of services customarily available to the public on the grounds of race and national or ethnic origin. [ 3 ] The Canadian Human Rights Commission referred the complaint to the Canadian Human Rights Tribunal for hearing.

Following a preliminary motion brought by the Government, the Tribunal dismissed the complaint [ First Nations Child and Family Caring Society of Canada and Assembly of First Nations v. Attorney General of Canada (representing the Minister of Indian Affairs and Northern Development) , 2011 CHRT 4 ].

The Tribunal determined that there could be no adverse differential treatment in the provision of child welfare services to First Nations children living on- reserve as no other group receives child welfare services from the Government of Canada. [ 4 ] The Tribunal held that in order for the complainants to establish adverse differential treatment under paragraph 5 (

b) of the Canadian Human Rights Act , R.S.C., 1985, c. H-6 (the Act [or CHRA]), a comparison had to be made between the child welfare services provided by the Government of Canada to First Nations children living on reserves, and similar services provided to others by the same service provider. According to the Tribunal, paragraph 5(

b) of the Act does not permit a comparison between services provided by two different service providers to two different sets of recipients. [ 5 ] In the absence of a proper comparator group, the Tribunal concluded that there could be no finding of adverse differential treatment on the part of the Government of Canada.

As a result, the Tribunal dismissed the complaint without a full hearing on the merits. [ 6 ] These reasons relate to three applications for judicial review brought with respect to that decision. [ 7 ] For the reasons that follow, I have concluded that although the Tribunal had the power to decide this issue in advance of a full hearing on the merits of the complaint, the process that it followed was not fair as the Tribunal considered a substantial volume of extrinsic material in arriving at its decision. [ 8 ] I have also concluded that the decision was unreasonable as the Tribunal failed to provide any reasons as to why it could not

consider the complaint under paragraph 5 (

a) of the Canadian Human Rights Act . Paragraph 5(

a) of the Act makes it a discriminatory practice to deny a service to any individual on the basis of a prohibited ground of discrimination. [ 9 ] The Tribunal also erred in its

interpretation of paragraph 5(

b) of the Act, and in concluding that the complaint could not succeed in the absence of an identifiable comparator group. In interpreting paragraph 5(

b) the way it did, the Tribunal applied a rigid and formulaic

interpretation of the provision—one that is inconsistent with the search for substantive equality mandated by the Canadian Human Rights Act and Canada’s equality jurisprudence. [ 10 ] Finally, in making the factual determination that no appropriate comparator group was available to assist in its discrimination analysis, the Tribunal erred in failing to consider the significance of the Government’s own adoption of provincial child welfare standards in its funding policies. 2. The Parties A.

The Complainants [ 11 ] The human rights complaint in issue in this proceeding was brought by the First Nations Child & Family Caring Society and the Assembly of First Nations who will be referred to collectively in these reasons as “the complainants”. [ 12 ] The First Nations Child & Family Caring Society (the Caring Society) is a non-profit organization committed to research, policy development and advocacy on behalf of First Nations agencies that serve the well-being of Aboriginal children, youth and families, including children living on reserves.

The Caring Society has a particular interest in the prevention of, and the response to the mistreatment of Aboriginal children. [ 13 ] The Assembly of First Nations (AFN) is a national advocacy organization that works on behalf of over 600 First Nations on issues such as Treaty and Aboriginal rights, education, housing, health, child welfare and social development. B. The Canadian Human Rights Commission [ 14 ] Amongst other responsibilities, the Commission is charged with the investigation and conciliation of complaints of discrimination brought pursuant to the Canadian Human Rights Act .

In the event that the Commission determines that an inquiry is warranted, it may refer the complaint to the Canadian Human Rights Tribunal for hearing. In appearing before the Tribunal, the Commission is statutorily mandated to represent the public interest having regard to the nature of the complaint: see

section 51 [as am. by S.C. 1998, c. 9, s. 27] of the Act. C. The Interveners [ 15 ] Two organizations were granted “Interested Party” status before the Tribunal and both appeared as interveners in this Court. [ 16 ] Amnesty International is an international non-governmental organization committed to the advancement of human rights across the globe.

It was granted interested party status before the Tribunal to assist it in understanding the relevance of Canada’s international human rights obligations to the complaint, and its submissions in this Court were limited to the international law issues. [ 17 ] The Chiefs of Ontario is a non-profit organization representing the political and other interests of the 132 First Nations in the Province of Ontario.

It was granted interested party status before the Tribunal to speak to the particularities of on-reserve child welfare services in Ontario, and its submissions in this Court were largely related to this subject. D. The Respondent to the Complaint [ 18 ] The complaint names Indian and Northern Affairs Canada as the respondent in this case. It is the government department charged with primary responsibility for meeting the federal government’s constitutional, treaty, political and legal responsibilities to Canada’s First Nations and Inuit peoples.

It appears that the department has undergone at least one name change since the complaint was filed, and is now known as Aboriginal Affairs and Northern Development Canada. To avoid confusion, it will be referred to in these reasons as the “Government of Canada” or simply “the Government”. 3.

The Human Rights Complaint [ 19 ] The complainants filed their human rights complaint with the Commission in February of 2007. [ 20 ] The complaint alleges that the funding formula used by the Government of Canada to fund First Nations child and family services (known as Directive 20-1 [in Aboriginal Affairs and Northern Development Canada. National Social Programs Manual , 2012] results in inequitable levels of child welfare services being provided to First Nations children living on reserves as compared to other Canadian children living off-reserve.

The complaint further alleges that this inequity amounts to discrimination in the provision of services to First Nations children on the basis of the children’s race and national or ethnic origin. [ 21 ] According to the terms of Directive 20-1, the funding formula aims to ensure that First Nations children living on reserves receive a “comparable” level of child welfare services to that provided to other Canadian children.

However, the complaint alleges that studies have revealed that 22 percent less funding is available on a per child basis for First Nations children living on reserves than is provided to children living off reserves in the average province. [ 22 ] The complaint further alleges that the funding formula set out in Directive 20-1 provides unlimited resources for First Nations children who have been removed from their homes and are in foster care.

However, child welfare services designed to allow abused or neglected children to remain safely in their homes with the necessary support services (known as “least disruptive measures”) are allegedly grossly underfunded. The result of this is that a disproportionate number of First Nations children are removed from their

homes, thus perpetuating the legacy of the residential school system. [ 23 ] Moreover, the complaint alleges that jurisdictional disputes between the Government of Canada and the provinces result in delays in the delivery of child welfare services to First Nations children living on reserves, and in certain of these services being denied altogether. [ 24 ] The complaint concludes by asserting that the alleged discrimination is systemic and ongoing.

The complainants contend that the Government of Canada has been aware of the problem for years, and has been presented with studies confirming the inequity in 2000 and again in 2005 and 2006. Yet, according to the complaint, the discriminatory treatment of First Nations children living on reserves continues. 4.

Background to the Complaint [ 25 ] Because of the way that the hearing unfolded before the Tribunal, it did not make detailed factual findings regarding the manner in which child welfare services are actually delivered to First Nations children living on reserves, or with respect to the nature and scope of the Government of Canada’s role in that regard. [ 26 ] However, in order to put the issues raised by these applications for judicial review into context, it is helpful to have a more fully- developed understanding of the complainants’ allegations as they relate to the way child welfare services are provided to First Nations children living on reserves. [ 27 ] It should, however, be made clear at this juncture that what follows is primarily a description of the complainants’ allegations .

It is provided solely for the purpose of putting the Tribunal’s decision into context and providing a framework for the issues raised by these applications for judicial review. Nothing in the following description should be understood to be findings of fact made by this Court. The responsibility for making the necessary factual findings in order to determine whether there has been discrimination within the meaning of

section 5 of the Canadian Human Rights Act rests exclusively with the Canadian Human Rights Tribunal. [ 28 ] Child welfare is ordinarily a matter falling within provincial jurisdiction. Provincial or territorial child welfare laws apply to all children living within the province or territory in question.

Provincial and territorial governments ordinarily fund child welfare services for their residents, except where the child is a “Registered Indian” living on a reserve. [ 29 ] Pursuant to the First Nations Child and Family Services Program, funding for child welfare services for First Nations children living on reserves is provided by the Government of Canada. It transfers funds to the provinces or territories, to Bands or tribal councils, or directly to government-authorized First Nations child and family services agencies operating on reserves.

The degree of supervision and control exercised by the Government of Canada over these services is a matter of dispute between the parties. [ 30 ] Parliament has not legislated in the area of child welfare, but has instead adopted provincial standards for the delivery of child welfare services on reserves. Government funding for child welfare is complex, and involves three governing policies and hundreds of bilateral and trilateral agreements.

One of these arrangements has been described by the Supreme Court of Canada as “an example of flexible and co-operative federalism at work and at its best”: see NIL/TU,O Child and Family Services Society v. B.C. Government and Service Employees’ Union , 2010 SCC 45 , [2010] 2 S.C.R. 696, at paragraph 44 . [ 31 ] The complaint was originally brought solely with respect to one of the three governing policies, namely Directive 20-1.

It was subsequently broadened to include the First Nations Child and Family Services Program, which includes Directive 20-1, the more recent Enhanced Prevention Focussed Approach (EPFA) program, and the special agreement governing child welfare services in Ontario known as the “1965 Indian Welfare Agreement” [ Memorandum of Agreement Respecting Welfare Programs for Indians ]. A.

The First Nations Child and Family Services Program – National Program Manual [ 32 ] I understand the respondent to agree that the Government’s “National Program Manual” for First Nations child and family services [Indian and Northern Affairs Canada. First Nations Child and Family Services: National Program Manual , Ottawa, 2004] covers all three of the funding policies governing the delivery of child welfare services to First Nations children living on reserves. [ 33 ]

Section 1.3.2 of the Manual provides that: 1.3.2 The primary objective of the [First Nations Child and Family Services] program is to support culturally appropriate child and family services for Indian children and families resident on reserve or Ordinarily Resident On Reserve, in the best interest of the child, in accordance with the legislation and standards of the reference province . [Emphasis added.] [ 34 ] Funding is primarily provided to recipients through one of the three different arrangements referred to above, each of which is more fully described below.

The Government of Canada also has other arrangements or agreements directly with some jurisdictions (such as First Nations governments) which specify how it will fund child welfare services in that jurisdiction. B. Directive 20-1 [ 35 ] Directive 20-1 is a funding formula that originally applied to the provinces and the Yukon Territory. It did not, however, apply to the province of Ontario, nor did it apply to a small number of agencies that operated under separate funding agreements. Directive 20-1 came into effect in 1991. [ 36 ] The “Principles” governing the Directive 20-1 program are set out at

section 6 of the document.

Section 6.1 provides that “[t]he department … is committed to expanding First Nations Child and Family Services on reserve to a level comparable to the services provided off reserve in similar circumstances ” (emphasis added). [ 37 ] Directive 20-1 continues to apply in British Columbia, Manitoba, Newfoundland, New Brunswick and Yukon. Yukon’s situation

is somewhat unique in that the Government of Canada funds services there for all First Nations children, both on- and off-reserve. Two First Nations child and family services agencies in Saskatchewan also operate pursuant to Directive 20-1. [ 38 ] The complainants’ human rights complaint does not address child welfare services in Nunavut or the Northwest Territories.

This is because funding for child welfare services in these territories is provided by or through the territorial governments with funding from the territorial governments’ own budgets, a portion of which comes from transfer payments from the Government of Canada. [ 39 ] The way in which funds flow from the Government of Canada to the beneficiaries differs from province to province, and in some cases within different parts of the same province, depending on the specific agreements in place. [ 40 ] Directive 20-1 is characterized by two distinct funding streams: maintenance and operations. [ 41 ] In the maintenance stream, the Government reimburses approved costs incurred by provincial or First Nations child welfare agencies for maintaining a child in care outside the family home.

Maintenance funding is based on provincial and territorial rates established by the Government of Canada. [ 42 ] In contrast, funding for operations is calculated according to the population of eligible children on a reserve, plus an amount per band and a further amount for remoteness (where applicable). “Eligible” children are registered Indians with at least one parent resident living on a reserve. [ 43 ] Operational funding covers all other expenses associated with on-reserve child welfare, including programs and services to support children and families, staff salaries and benefits, and operational costs such as travel, bookkeeping, rent and facilities. [ 44 ] The distinction between maintenance and operational funding under Directive 20-1 is central to the complainants’ discrimination claim.

They contend that the “per child” operations formula fails to account for the divergent child welfare needs across communities.

For example, an isolated reserve with a high proportion of residential school survivors obtains equal funding to an urban reserve with ready access to off-reserve community resources. [ 45 ] Indeed, the complainants allege that the greater the number of at-risk children in a given community, the fewer the services that are actually available to each child. [ 46 ] The complainants further assert that the separation between the two funding streams has resulted in an increase in the number of First Nations children unnecessarily being taken into care.

Directive 20-1’s emphasis on maintenance funding means that “least disruptive measures” such as addiction services, special needs support services, counselling, and parenting education (which are funded from the limited “per child” operations budget) are often unavailable for children living on reserves. C. Enhanced Prevention Focussed Funding [ 47 ] In 2007, the Government of Canada developed the Enhanced Prevention Focussed Approach to child welfare funding.

The EPFA was developed as a pilot project in Alberta, but has since been applied to Saskatchewan and Nova Scotia (since 2008), and Quebec and Prince Edward Island (since 2009). The Government anticipates that other jurisdictions will transition to this formula by 2013. [ 48 ] Under the EPFA, agencies submit a multi-year business plan with performance targets. The plan is then approved by the Government of Canada and the relevant provincial government.

The funding formula under the EPFA includes budget categories for maintenance, operations and prevention, with allocated resources spread over a five-year period. [ 49 ] Although initially developed to provide greater flexibility to agencies in the allocation of their funds, the complainants take issue with a number of aspects of the EPFA. They allege that maintenance funding—the most costly element of child welfare programs—is capped, and that any deficit in maintenance costs must thus be covered by funding from the least disruptive measures or operations budgets.

The complainants further allege that funding for preventative services is decreased in the third, fourth and fifth years of the plan. D.

The 1965 Indian Welfare Agreement with Ontario [ 50 ] Child welfare services are provided to First Nations children living on reserves in Ontario pursuant to a federal-provincial agreement known as the “ Memorandum of Agreement Respecting Welfare Programs for Indians ” (or 1965 Indian Welfare Agreement). [ 51 ] Pursuant to this agreement, the Government of Canada reimburses Ontario an agreed-upon share of the costs of delivering child welfare services to on-reserve children, including the costs of maintaining children in care.

The Government provides additional funding to First Nations and First Nations child and family services agencies for prevention services. [ 52 ] One of the stated objectives of the 1965 Indian Welfare Agreement is to see that the needs of First Nations communities are met in accordance with the standards applicable to non-First Nations communities. E. The Alleged Discrimination [ 53 ] The complainants point out that a 2009 Report of Parliament’s Standing Committee on Public Accounts [

Chapter 4, First Nations Child and Family Services Program – Indian and Northern Affairs Canada of the May 2008 Report of the Auditor General: Report of the Standing Committee on Public Accounts , March 2009] concluded that “[t]he average per capita per child in care expenditure of the [Department of Indian Affairs and Northern Development] funded system is 22% lower than the average of the selected provinces”: at page 5. [Footnote omitted.] [ 54 ] This underfunding, the complainants say, translates into fewer services being available to First Nations children living on-reserve as compared to children living off-reserve.

The lack of preventative services for on-reserve children, in particular, means that a

disproportionately high number of Aboriginal children are in care. [ 55 ] The complainants have provided a “Fact Sheet” from the Indian and Northern Affairs Web site that observes that the disproportionate placement rates for First Nations children living on reserves “reflect a lack of available prevention services to mitigate family crisis”. [ 56 ] Indeed, the complainants allege in their complaint that an estimated 30 to 40 percent of children “in care” in Canada are Aboriginal.

They also note that the Report of the Standing Committee on Public Accounts found that 5 to 6 percent of First Nations children living on reserves are in care, which is almost 8 times the percentage of children living off-reserve who are in care. [ 57 ] Dr. Cindy Blackstock, the Executive Director of the Caring Society, filed an affidavit with the Tribunal in connection with the Government’s motion to dismiss. According to Dr.

Blackstock’s affidavit, there are now more First Nations children living away from their families in the care of child welfare authorities than there were at the height of the residential schools program. [ 58 ] The complaint further alleges that various studies have revealed that the level of child welfare services provided to on-reserve children is less than the level of services provided to off-reserve children, notwithstanding the greater needs of First Nations children living on reserves.

These greater needs result from poverty and poor housing conditions, as well as from exposure to family violence and substance abuse. [ 59 ] The complainants have also produced a 2000 [First Nations Child and Family Services] Joint National Policy Review: Final Report conducted by the Government of Canada and the Assembly of First Nations which observed that much of the dysfunction in First Nations communities is attributable to the fall-out from the residential schools experience. [ 60 ] This Review also appears to be the foundation for the claim that there is 22 percent less funding available on a per child basis for First Nations children living on reserves as compared to the provincial average.

It should, however, be noted that the Government vigorously disputes this claim.

As will be discussed later in these reasons, the Government filed an expert report prepared by KPMG with the Tribunal in connection with the merits of the case that takes issue with this allegation. [ 61 ] The Auditor General of Canada and the Standing Committee on Public Accounts have also concluded that child welfare services for First Nations children living on reserves continue to be underfunded. [ 62 ] The complainants allege that they have made repeated attempts to have the Government address inequities in funding through negotiations and political means, but to no avail.

The long-term failure of the Government to address this problem in a meaningful fashion has led to the filing of the human rights complaint. 5. The Procedural History of the Complaint [ 63 ] Because the complainants have challenged the way in which the Tribunal handled this case, it is necessary to review the process that culminated in the decision under review. A.

The Proceedings Before the Commission [ 64 ] After the complaint was filed with the Commission and an assessor had been appointed to examine the complaint, the Government of Canada wrote to the Commission asking that it decline to deal with the complaint under paragraph 41(1) (

c) of the Canadian Human Rights Act . The Government argued that the complaint was outside the Commission’s jurisdiction and did not disclose a prima facie case of discrimination. [ 65 ] Amongst other things, the Government argued that it does not itself deliver child welfare services to First Nations children living on reserves. As a consequence,

section 5 to the Canadian Human Rights Act (which prohibits discrimination in the provision of services) had no application. This argument has become known as the “services issue”. [ 66 ] The Government of Canada also argued that because it does not provide funding for child welfare services for anyone other than First Nations children living on reserves, it could not discriminate in the provision of these services. It was not appropriate, the Government submitted, to compare the level of services provided by provincial child welfare authorities to the services provided to on- reserve First Nations children.

The Government further argued that such a cross-jurisdictional comparison could not amount to adverse differential treatment by one service provider on the basis of a proscribed ground. This is the “comparator group issue”. [ 67 ] The assessor recommended that the Commission deal with the complaint. He observed that the funding issue had been exhaustively examined by various experts in the field, who had made numerous recommendations for improvement. The question was whether the alleged lack of funding and the structure of the funding formula were discriminatory.

The assessor concluded that this could not be determined without an inquiry. He thus recommended that the complaint be referred to the Tribunal, without an investigation, for further inquiry. [ 68 ] In a decision dated September 30, 2008, the Commissioners accepted the assessor’s recommendation. In so doing, the Commissioners observed that the determination of whether a prima facie case of discrimination had been established was one that should properly be made by the Tribunal.

The Commissioners also stated that there was enough information in the complaint to demonstrate a sufficient link to a prohibited ground and an alleged discriminatory practice. B. The Federal Court Proceedings [ 69 ] The Government of Canada then brought an application for judicial review of the Commission’s decision to refer the complaint to the Tribunal for a hearing, citing both the services and the comparator group issues as grounds for review.

In turn, the complainants brought a motion to strike the Government’s notice of application, or, in the alternative, to stay the application until the Tribunal could deal with the complaint on its merits.

[ 70 ] Prothonotary Aronovitch refused the complainants’ motion to strike the Attorney General’s application: Canada (Attorney General) v. First Nations Child and Family Caring Society of Canada (24 November 2009), T-1753-08 (F.C.). She was satisfied, however, that it would be “just and equitable” to stay the Government’s application for judicial review pending the Tribunal’s decision: at page 6. [ 71 ] Prothonotary Aronovitch noted that the complainants had submitted that the issues raised by the Government’s application were novel and complex, and could not be separated from the merits of the complaint.

The complainants further argued that if the issues were determined on the basis of the limited record before the Court, it would deprive them of a full hearing on a complete record. Because the issues were complex and of importance to First Nations people, the complainants submitted that a full exploration of the issues before the Tribunal was warranted. [ 72 ] In accepting the complainants’ arguments, Prothonotary Aronovitch observed: “The subject matter of the complaint being serious and complex, I agree that it should not be determined in a

summary fashion and in the absence of the factual record necessary to fully appreciate the matters in issue”: at page 5. She went on to note that “[t]here is an interest … in allowing a full and thorough examination in the specialized forum of the Tribunal, of issues which may have an impact on the future ability of aboriginal peoples to make discrimination claims”: at page 6. [ 73 ] Prothonotary Aronovitch’s decision was subsequently upheld by Justice O’Reilly: see Canada (Attorney General) v.

First Nations Child and Family Caring Society of Canada , 2010 FC 343 . [ 74 ] Accordingly, the Attorney General’s application to judicially review the Commission’s referral decision was stayed pending the outcome of the Tribunal proceedings. Prothonotary Aronovitch subsequently granted a further stay pending the outcome of these applications for judicial review of the Tribunal’s decision. C. The Tribunal Proceedings [ 75 ] Once the complaint was referred to the Tribunal, Grant Sinclair, the then-Chairperson of the Tribunal, assumed responsibility for the management of the proceeding.

At the first case management conference on February 4, 2009, the Government raised both the services and the comparator group issues, asking the Tribunal to make preliminary decisions in relation to these matters. Mr. Sinclair refused to deal with either of the issues on a preliminary basis. It was his view that the issues were complex, and required a full hearing. [ 76 ] The hearing commenced on September 14, 2009 with an opening statement from Dr. Blackstock on behalf of the Caring Society. Mr.

Sinclair then addressed a number of housekeeping matters, including the granting of interested party status to the Chiefs of Ontario and Amnesty International. The hearing then adjourned to the week of November 16, 2009, when it was anticipated that the hearing of evidence would begin. The case was scheduled for 13 weeks of hearing, and it was expected that hearing would be completed in February of 2010. [ 77 ] On November 2, 2009, Shirish Chotalia replaced Mr. Sinclair as Chairperson of the Tribunal. She immediately became involved in the management of the case. Four days after she took office, Ms.

Chotalia held a case management conference with the parties. She advised the parties that she wanted them to work together to narrow the scope of the complaint and to reduce the number of witnesses to be called. [ 78 ] In the course of the November case management conference, the Chairperson asked counsel for the Government why it had not sought a stay of the Tribunal proceedings pending the outcome of its judicial review application in the Federal Court.

Counsel responded that he had been instructed not to seek a stay from the Tribunal, but that his client was contemplating bringing a motion to have the services and comparator group issues dealt with “in a

summary fashion and before the merits are dealt [with]”: joint application record, Vol. 11, at page 3018. While the Chairperson expressed a concern as to how the necessary evidence would get before the Tribunal to decide the issue, the parties did not discuss the matter further at that time. [ 79 ] The Chairperson asked the parties to file affidavits for each of their proposed witnesses, outlining the witness’s evidence-in- chief. She indicated that the parties would then have the option to cross-examine the affiants.

This disclosure would allow the Tribunal and the parties to understand the evidence and to identify the points in dispute. [ 80 ] All of the parties strongly opposed this last-minute change in approach to the management of this case. They all felt that the Chairperson’s requests would impose onerous burdens on them. Counsel for the Caring Society observed that the case was ready to proceed on its merits in eight days’ time, suggesting that the Chairperson was now unilaterally imposing a discovery process on the parties that was more onerous than that in a civil action in a superior court.

Counsel for the Government of Canada was also concerned that his client was being asked to plead its defence before hearing the complainants’ evidence. [ 81 ] The case management conference concluded with all counsel agreeing to seek instructions with respect to the Chairperson’s suggestions. Counsel also agreed to see if progress could be made in relation to an agreed statement of facts. [ 82 ] As a result of this case management conference, there was some confusion on the part of the parties as to whether Mr. Sinclair remained seized with the case.

Counsel for the Caring Society wrote to the Tribunal on November 9, 2009, seeking clarification of this issue. The Government of Canada responded, arguing that the former Chairperson had not been seized of the matter, taking no position as to who should preside over the case. The Commission also wrote to the Tribunal submitting that Mr.

Sinclair had indeed been seized with the matter. [ 83 ] The parties did not receive any response from the Tribunal in relation to this issue at that time, although the Chairperson subsequently canvassed the idea of appointing a three-person panel to hear the case with the parties in the course of a case management conference held in December of 2009. None of the parties raised any objection to this proposal, apart from the concern being expressed that the appointment of a panel not further delay the proceedings. Similarly, none of the parties objected when the new Chairperson assumed sole carriage of this matter.

[ 84 ] While the Caring Society has raised the issue of Mr. Sinclair’s status in its notice of application, it confirmed at the hearing that it is not seeking any relief in this regard. I note that subsection 48.2(2) [as enacted by R.S.C., 1985 (1st Supp.), c. 31, s. 65; S.C. 1998, c. 9, s. 27] of the Act gives the Tribunal Chairperson the discretion to decide whether or not to allow a member whose term has expired to complete any inquiry that the member had begun. Moreover, Mr. Sinclair had not yet heard any evidence in this case, and he was thus not seized of the matter.

There is also no evidence as to whether he was even available to continue dealing with the case. In these circumstances, I do not intend to address this issue any further. [ 85 ] On November 12, 2009, the Tribunal issued a direction, vacating the November 16–20, 2009 dates that had been set for the commencement of the hearing on the merits. Counsel for the Caring Society again wrote to the Tribunal raising concerns about the Tribunal’s unilateral action, the delay of the proceedings and the fairness of the process the Tribunal was following.

The Tribunal did not respond to this letter. [ 86 ] A second case management conference was held with the new Chairperson on December 14, 2009. In the course of this conference, the Chairperson suggested that the parties engage in a mediation process in an effort to identify ways to streamline the proceedings. While concerns were repeatedly expressed about the ongoing delay of the hearing, the parties ultimately agreed to engage in such a process, and they subsequently participated in some seven days of meetings with the mediator.

This process did not result in an agreement being reached on any of the substantive issues. [ 87 ] In the meantime, counsel for the Government advised the Tribunal during the December 14 case management conference that it would be filing its motion on December 21, 2009 to have the complaint dismissed. The Chairperson set January 19, 2010 for the hearing of the motion.

Without consulting with the parties, the Tribunal subsequently vacated all of the remaining dates that had been set aside for the hearing on the merits. [ 88 ] On December 21, 2009, the Government of Canada filed its motion to dismiss the complaint for want of jurisdiction with the Tribunal, arguing that the complaint did not come within the purview of sections 3 [as am. by S.C. 1996, c. 14, s. 2] and 5 of the Canadian Human Rights Act .

A copy of the relevant statutory provisions is attached as an appendix to these reasons. [ 89 ] The Government’s motion was based upon the services and comparator group issues, and was supported by a brief affidavit from the Director of the Social Reform Program Directorate at the Department of Indian Affairs and Northern Development. [ 90 ] The following day, the Caring Society filed a motion with the Tribunal to amend its complaint to include allegations of retaliation. The retaliation issue arose when Dr.

Blackstock was allegedly excluded from a meeting with Government representatives. [ 91 ] Counsel for the Government responded to the Caring Society’s motion by letter dated January 29, 2010, in which it sought to clarify what had occurred at the meeting in issue. [ 92 ] The Tribunal has never dealt with the Caring Society’s motion to amend the complaint, nor did the Caring Society ever follow up with the Tribunal in order to have the motion addressed. [ 93 ] The Caring Society raised the Tribunal’s failure to deal with its motion to amend its complaint to allege retaliation in its memorandum of fact and law, suggesting at the hearing that it is evidence of unequal treatment on the part of the Tribunal.

The Caring Society does not, however, allege bias on the part of the Tribunal, nor does it seek any specific relief in this regard. As a result, I do not intend to deal further with this issue, particularly in light of the fact that Dr.

Blackstock’s allegations of retaliation are evidently now the subject of a separate human rights complaint. [ 94 ] The Caring Society continued to object to the fairness of the process being followed by the Tribunal in relation to the Government’s motion to have the complaint dismissed, alleging, amongst other things, that the motion was premature, and that the evidentiary record was not sufficient to decide the motion. [ 95 ] Nevertheless, the complainants subsequently filed substantial affidavit evidence and documentary material with the Tribunal in response to the Government’s motion to dismiss.

The parties also cross-examined the deponents of the affidavits filed by the opposing side, and filed the transcripts of the cross-examinations with the Tribunal. [ 96 ] The record before the Tribunal on the motion to dismiss was ultimately approximately 2 000 pages in length, plus an additional amount of legal authorities. As will be discussed later in these reasons, this number becomes important in relation to the fairness of the process followed by the Tribunal in dismissing the complaint. [ 97 ] The motion to dismiss was finally heard on June 2 and 3, 2010.

When no decision was forthcoming from the Tribunal, counsel for the Caring Society wrote letters to the Tribunal in August and December of 2010, asking when a decision could be expected. The Tribunal did not respond to either of these letters. [ 98 ] In November of 2010, counsel for the Government of Canada requested an opportunity to make submissions regarding a recent Supreme Court of Canada decision. The Assembly of First Nations also requested leave to comment on Canada’s endorsement of the United Nations Declaration on the Rights of Indigenous Peoples [GA Res. 61/295, UN Doc. A/61/49 (2007)].

The parties’ exchange of submissions on both matters was completed by December 23, 2010. [ 99 ] In February of 2011, the Caring Society, Amnesty International and the Commission each wrote to the Tribunal, once again expressing their concern regarding the delay in the delivery of a decision on the motion to dismiss. When no response was received from the Tribunal, the Caring Society commenced an application in this Court seeking an order of mandamus to compel the Tribunal to render a decision in relation to the Government’s motion to dismiss the complaint.

This application was discontinued when the Chairperson released her decision on March 14, 2011, dismissing the complaint. 6. The Tribunal Decision

[ 100 ] I will discuss the Tribunal’s analysis of certain issues in greater detail later in these reasons, as I examine each of the grounds for judicial review.

However, the following brief synopsis of the decision will assist in putting the ensuing discussion into context. [ 101 ] The Tribunal determined that it had the authority to dismiss a human rights complaint without a full viva voce hearing on the merits where the facts of the case were clear and uncontroverted or where the issues involved raised pure questions of law, provided that the parties had had a full and ample opportunity to be heard. [ 102 ] The Tribunal considered whether the Government’s funding program for child welfare services for First Nations children living on reserves constituted a “service” within the meaning of

section 5 of the Canadian Human Rights Act . The Tribunal concluded that the Attorney General had not met its burden in establishing that the facts necessary to decide the issue were clear, complete and uncontroverted.

The Tribunal held that the services question was “a fact-driven inquiry”, that there were material facts in dispute, and that the evidentiary record on the motion was not sufficient to decide whether the Government of Canada provides a “service” to First Nations children living on-reserve. [ 103 ] The Tribunal was, however, satisfied that the comparator group issue raised a pure question of law and that the parties had had a full and ample opportunity to be heard in relation to the issue.

According to the Tribunal, there was no additional evidence that the complainants could provide that could further their position. [ 104 ] Paragraph 5 (

a) of the Canadian Human Rights Act makes it a discriminatory practice to deny a service or access to a service to an individual on the basis of a prohibited ground. The Tribunal was satisfied that no comparator group is required to establish discrimination in cases where a service is denied altogether. [ 105 ] Paragraph 5(

b) of the Act makes it a discriminatory practice to “differentiate adversely in relation to any individual [in the provision of services], on a prohibited ground of discrimination.” The Tribunal held that a finding of discrimination under paragraph 5(

b) requires a comparison to be made to the treatment accorded by the service provider to a different service recipient who does not share the personal attribute identified as the basis for the discriminatory practice. [ 106 ] The Tribunal then considered whether two different service providers could be compared to each other in order to find adverse differentiation under paragraph 5(

b) of the Act. Specifically, the Tribunal asked itself whether it could compare the child welfare services provided by the Government of Canada to those provided by the provinces in order to determine whether the Government of Canada had committed a discriminatory practice in the provision of services. [ 107 ] In concluding that such a comparison could not be made, the Tribunal held that paragraph 5(

b) required a comparison to be made to services provided to others by the same service provider. Given that the Government of Canada did not provide child welfare services to recipients other than First Nations children living on reserves, it followed that there could be no adverse differentiation in the provision of services under paragraph 5(

b) of the Act. As a result, the Tribunal dismissed the complaint. 7. The Issues on These Applications [ 108 ] The issues raised by these applications for judicial review are the following: 1. Does the Tribunal have the power to decide issues that could result in the dismissal of a human rights complaint without conducting a full hearing on the merits of the complaint that provides the parties with an opportunity to adduce viva voce evidence? 2. Was the process the Tribunal followed in deciding the comparator group issue fair? 3. Did the Tribunal err in failing to consider the complaint under paragraph 5 (

a) of the Canadian Human Rights Act ? 4. Does paragraph 5(

b) of the Canadian Human Rights Act require that there be a comparator group in all cases? and 5.

Did the Tribunal err in concluding that there was no relevant comparator group in this case? [ 109 ] It will also be necessary to identify the appropriate standard of review to be applied in relation to the Tribunal’s decision on each of these issues. [ 110 ] It is also important to understand what is not in issue in these applications. [ 111 ] None of the parties has sought to judicially review the Tribunal’s decision on the services issue, and that issue is thus not before me. [1] [ 112 ] The Government also argued before the Tribunal that its funding formulae are an expression of pure executive policy, and that the issues raised by the complaint are thus not justiciable.

However, the parties agree that the justiciability issue is not before me in these applications. 8. The Procedural Issues [ 113 ] The applications for judicial review raise two issues with respect to the process that was followed by the Tribunal in this case. The first is whether the Canadian Human Rights Act permits the Tribunal to decide an issue that could determine the outcome of a case before embarking on a full hearing on the merits of the complaint that allows the parties to lead viva voce evidence.

The second is whether the process followed by the Tribunal in this case was fair to the parties. [ 114 ] I will first consider whether the Tribunal has the authority to address issues on a preliminary basis in advance of a full hearing on the merits. The fairness of the process that the Tribunal followed in this case will be addressed further on in these reasons. A. Does the Tribunal have the Power to Decide Issues that Could Result in the Dismissal of a Human Rights Complaint without

Conducting a Full Hearing on the Merits of the Complaint that Provides the Parties with an Opportunity to Adduce Viva VoceEvidence? [115] The Commission characterizes this issue as “whether the Tribunal had the jurisdiction to summarily dismiss the complaint on themerits”, whereas the Caring Society states the issue as “whether the Tribunal erred in dismissing the complaint without a hearing”. [116] Neither characterization properly identifies the issue before the Court as the premise underlying each description is erroneous.The Tribunal did not dismiss the complaint “summarily” or “without a hearing”.

It did conduct a hearing on the comparator group issue.The parties were able to adduce evidence addressing the issue, and were able to challenge the evidence led by the opposing side. Eachparty was also afforded the opportunity to appear and to make submissions to the Tribunal in relation to the comparator group question.What the applicants really take issue with is the form that the hearing took. [117] The applicants argue that the process the Tribunal followed in this case raises a true question concerning its jurisdiction.

As aresult, they say that the Tribunal’s choice of procedure should be reviewed against the standard of correctness. [118] In contrast, the Government of Canada contends that the Tribunal’s conclusion that it had the authority to decide a discrete issueon the basis of a preliminary motion, in advance of a full hearing on the merits, involves the

interpretation of the powers conferred on theTribunal by its enabling legislation. As a consequence, the Government says the issue is reviewable on the reasonableness standard. [119] I need not resolve this issue as I am satisfied that the Tribunal correctly concluded that it had the authority to determine theprocess to be followed in deciding the issues raised by a human rights complaint.

The Tribunal also correctly decided that it does notalways have to hold a full evidentiary hearing in relation to each and every issue raised by a complaint in order to decide substantiveissues coming before it. [120] The applicants submit that the Canadian Human Rights Act requires the Tribunal to inquire into each complaint referred to it bythe

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