2021 FC 969, 2021 FC 969

EDITOR’S NOTE: This document is subject to editorial revision before its reproduction in final form in the Federal Courts Reports . T-1559-20 T-1621-19 2021 FC 969 Attorney General of Canada ( Applicant ) v. First Nations Child and Family Caring Society of Canada, Assembly of First Nations, Canadian Human Rights Commission, Chiefs of Ontario, Amnesty International and Nishnawbe Aski Nation ( Respondents ) and Congress of Aboriginal Peoples ( Intervener ) Indexed as: Canada (Attorney General) v.

First Nations Child and Family Caring Society of Canada Federal Court, Favel J.—By videoconference, June 14-18; Ottawa, September 29, 2021. Human Rights — Judicial review of decisions by Canadian Human Rights Tribunal (Tribunal) in 2019 CHRT 39 (Compensation decision), 2020 CHRT 20 (Eligibility decision) — Both decisions originating from Tribunal decision in 2016 CHRT 2 (Merit decision) — Merit decision establishing that First Nations children, families living on reserve and in Yukon denied equal child, family services under Canadian Human Rights Act ( CHRA ), s. 5 (

a) and adversely differentiated under s. 5 (b) — Finding of discrimination pertaining to Canada’s funding of First Nations Child and Family Services Program (FNCFS Program), funding of Jordan’s Principle for related health services to First Nations children — In Compensation decision, Tribunal awarding compensation to First Nations children, parents, or grandparents — In Eligibility decision, Tribunal confirming that categories of children currently used by Canada appropriate for purposes of Jordan’s Principle — However, adding two additional categories of First Nations children eligible for Jordan’s Principle — Applicant essentially submitting that Tribunal exceeded its authority under CHRA , that reasonable exercise of remedial jurisdiction must be consistent with nature of complaint, evidence and statutory framework — Also submitting no evidence related to two additional classes of First Nations children, that Tribunal denied it procedural fairness — Arguing that Tribunal only had authority to deal with complaint, that there was insufficient evidence of individual harms before Tribunal — Whether Compensation, Eligibility decisions reasonable; whether Canada denied procedural fairness — Compensation decision reasonable — Nothing in language of CHRA preventing awards of multiple remedies — Large, liberal approach to human rights legislation permitting this method — Tribunal not going beyond scope of complaint — Not transforming complaint from systemic discrimination to individual discrimination, therefore not unreasonably awarding damages to individuals — First Nations children, their families identified as subject matter of complaint or, alternatively, as victims — Evidence of both systemic, individual discrimination, evidence of harms entitling Tribunal to award remedies for both — Tribunal properly assessed inter-relationship between complaint, parties’ statements of particulars — Complaint form not serving purposes of pleading — Inappropriate to read quasi-constitutional legislation in way that denies victims resolution of their complaint because of technicality — Applicant not prejudiced by alleged transformation of complaint — Applicant could not contest compensatory consequences of systemic harm when appearing to accept finding that widespread discrimination occurred — Tribunal sought to enable negotiation, practical solutions to implementing its order, to give full recognition of human rights — Properly analyzed CHRA , understood that victims, complainants can be different people — CHRA , s. 50(3) (

c) giving Tribunal broad discretion to accept any evidence it sees fit —Tribunal not necessarily needing to hear from all alleged victims of discrimination in order to compensate all of them — Nothing in CHRA requiring testimony from small group of representative victims — No need in this case to particularize specific harms flowing from removal of children from their families — Tribunal considered removal itself, harm to dignity — Testimony of children, other victims therefore unnecessary — Tribunal not erring in finding extensive evidence of both individual, systemic discrimination — CHRA not designed to address different levels of damages or engage in processes to assess fault-based personal harm — Open for Tribunal to find that financial awards under CHRA serving particular purposes unique to human rights context — Tribunal’s finding of wilful, reckless discrimination not unreasonable — Tribunal reasonably exercised its jurisdiction as permitted under CHRA — Jordan’s Principle not beyond scope of Tribunal’s inquiry — Eligibility decision not unreasonable — Inclusion of two additional categories of children not beyond Tribunal’s jurisdiction or scope of complaint — Clear nexus between Eligibility decision, original complaint — Live issue for Tribunal to define meaning of “First Nations child” — Extending eligibility for Jordan’s Principle beyond confines of Indian Act not meaning Tribunal acted outside jurisdiction — Eligibility decision prevented future discrimination — Tribunal enjoying large remedial jurisdiction — Eligibility decision not determining legal effect of who is First Nations child — Rather, determining parameters to assist parties in deciding who is eligible for Jordan’s Principle, compensation — Applicant not denied procedural fairness — Applications dismissed.

Indigenous Peoples — Canadian Human Rights Tribunal (Tribunal) awarding compensation to First Nations children, parents, or grandparents in 2019 CHRT 39 (Compensation decision) , confirming that categories of children currently used by Canada appropriate for purposes of Jordan’s Principle in 2020 CHRT 20 , but adding two additional categories of eligible First Nations children (Eligibility decision) — Both decisions originating from Tribunal decision in 2016 CHRT 2 (Merit decision) following complaint alleging that

Canada discriminating against First Nations children and families by underfunding services — Merit decision establishing that First Nations children, families living on reserve and in Yukon denied equal child, family services under Canadian Human Rights Act ( CHRA ), s. 5 (

a) and adversely differentiated under s. 5 (b) — Tribunal’s finding of discrimination pertaining to Canada’s funding of First Nations Child and Family Services Program (FNCFS Program), funding of Jordan’s Principle for related health services to First Nations children — In Eligibility decision, Tribunal adding two categories of First Nations children eligible for Jordan’s Principle — Whether Compensation, Eligibility decisions reasonable — Compensation decision reasonable — Tribunal’s dialogic approach contributing to goal of reconciliation between Indigenous people, Crown — Tribunal not going beyond scope of complaint — Not transforming complaint from systemic discrimination to individual discrimination, therefore not unreasonably awarding damages to individuals — First Nations children, their families identified as subject matter of complaint or, alternatively, as victims — Evidence of both systemic, individual discrimination, evidence of harms entitling Tribunal to award remedies for both — Jordan’s Principle not beyond scope of Tribunal’s inquiry — Eligibility decision not unreasonable — Inclusion of two additional categories of children not beyond Tribunal’s jurisdiction or scope of complaint — Clear nexus between Eligibility decision, original complaint — Live issue for Tribunal to define meaning of “First Nations child” — Fact Tribunal extending eligibility for Jordan’s Principle beyond confines of Indian Act not meaning that Tribunal acted outside its jurisdiction or determined that status provisions invalid — Eligibility decision determining parameters to assist parties in deciding who is eligible for Jordan’s Principle, compensation.

These were applications for judicial review of various decisions of the Canadian Human Rights Tribunal (Tribunal), and more specifically, of its decision in First Nations Child & Family Caring Society of Canada et al. v. Attorney General of Canada (representing the Minister of Indigenous and Northern Affairs Canada) , 2019 CHRT 39 (Compensation decision) and in First Nations Child & Family Caring Society of Canada et al. v. Attorney General of Canada (representing the Minister of Indigenous and Northern Affairs Canada) , 2020 CHRT 20 (Eligibility decision).

Both decisions originated from the Tribunal decision in First Nations Child & Family Caring Society of Canada et al. v. Attorney General of Canada (for the Minister of Indian and Northern Affairs Canada) , 2016 CHRT 2 (Merit decision). The Merit decision dealt with a human rights complaint made by the respondents First Nations Child and Family Caring Society of Canada (Caring Society) and the Assembly of First Nations (AFN).

The Caring Society and the AFN alleged that Canada was violating the Canadian Human Rights Act ( CHRA ) by discriminating against First Nations children and families who live on reserve by underfunding the delivery of child and family services. It was established in the Merit decision that First Nations children and families living on reserve and in the Yukon were denied equal child and family services under paragraph 5(

a) of the CHRA and/or were adversely differentiated under paragraph 5(b). The Tribunal’s finding of discrimination pertained to Canada’s funding of the First Nations Child and Family Services Program (FNCFS Program) [1] and the funding of Jordan’s Principle [2] for related health services to First Nations children. The Tribunal ordered that the applicant immediately cease its discriminatory practices and engage in any reforms needed to bring itself into compliance with the Merit Decision. It also ordered the immediate implementation of Jordan’s Principle’s full meaning and scope.

In the Compensation decision, the Tribunal found that there were victims of Canada’s discriminatory practices who were entitled to compensation. The Tribunal found that Canada’s practices resulted in First Nations children being removed from their homes, families, and communities. According to the Tribunal, Canada acted with little to no regard for the consequences of the removal of First Nations children. As a result, the Tribunal awarded compensation to First Nations children, parents, or grandparents.

The Tribunal ordered Canada to define eligibility for victims, create an appropriate methodology to govern distribution, and consult with the other parties who could provide comments and suggestions about the orders. In the Eligibility decision, the Tribunal confirmed that the categories of children currently used by Canada were appropriate for the purposes of Jordan’s Principle.

However, the Tribunal found, inter alia , that two new categories proposed by the Caring Society were within the scope of the complaint and thus eligible for Jordan’s Principle: First Nations children, without Indian status, who are recognized as citizens or members of their respective First Nations; and First Nations children, residing on or off reserve, who do not have Indian Act status and who are not eligible for Indian Act status, but have a parent/guardian with, or who is eligible for, Indian Act status. In 2021, the Tribunal approved the parties’ compensation framework and its accompanying schedules.

The applicant essentially submitted that the Tribunal exceeded its authority under the CHRA in making the orders in question, that a reasonable exercise of remedial jurisdiction must be consistent with the nature of the complaint, the evidence and the statutory framework, and that both decisions failed on these points. The applicant submitted that there was no evidence related to the two additional classes of First Nations children which the Tribunal ruled were eligible for consideration.

The applicant also submitted that the Tribunal denied it procedural fairness by, inter alia , changing the nature of the complaint in the remedial phase; failing to provide notice that it was assessing the ongoing nature of the discrimination; and failing to provide sufficient reasons concerning the individual remedies. The applicant argued that the Tribunal only had authority to deal with the complaint, which was in relation to an allegation of systemic underfunding. It also submitted that there was insufficient evidence of individual harms before the Tribunal.

The issues were whether the Compensation and Eligibility decisions were reasonable, and whether Canada was denied procedural fairness. Held , the applications should be dismissed. The Compensation decision was reasonable. The Tribunal’s approach to the retention of jurisdiction has precedent. There is nothing in the language of the CHRA that prevents awards of multiple remedies. The large, liberal approach to human rights legislation permits this method. The fact that the Tribunal remained seized of this matter allowed it to foster dialogue between the parties.

This dialogic approach contributes to the goal of reconciliation between Indigenous people and the Crown. The decision in Canada (Attorney General) v. Grover supports the basis for the dialogic approach. The Tribunal did not go beyond the scope of the complaint in arriving at its decision. The Tribunal did not transform the complaint from systemic discrimination to individual discrimination and, therefore, did not unreasonably award damages to individuals.

It was evident that from the outset, First Nations children and their families were identified as the subject matter of the complaint or, alternatively, as victims. In the present matter, there was evidence of both systemic and individual discrimination and evidence of harms entitling the Tribunal to award remedies for both. Discrimination is not to be understood in a binary way, or to be an “either or” proposition. The Tribunal properly assessed the inter-relationship between the complaint and the parties’ statements of particulars.

It stated that the complaint form is just one aspect of the complaint and that it does not serve the purposes of a pleading. This appeared to be consistent with the overall objective of the CHRA . The applicant’s argument that the respondents did not identify the victim of the complaint was technical in nature. It is inappropriate to read quasi-constitutional legislation in a way that denies victims resolution of their complaint because of a technicality. A complaint form only provides a

synopsis of the complaint, which will become clearer during the course of the process, and as the conditions for the hearing are defined in the statement of particulars. On the face of the record herein, the applicant was not prejudiced by the alleged transformation of the complaint. The applicant could not contest the compensatory consequences of systemic harm when the applicant appeared to accept the Tribunal’s finding that widespread discrimination occurred.

The quantum of compensation awards for harm to dignity are tied to seriousness of the psychological impacts and discriminatory practices upon the victim, which does not require medical or other type of evidence to be proven. The decisions following the Merit Decision were not an “open-ended series of proceedings.” Rather, the subsequent proceedings reflect the Tribunal’s management of the proceedings utilizing the dialogic approach. The Tribunal sought to enable negotiation and practical solutions to implementing its order and to give full recognition of human rights.

The Tribunal properly analyzed the CHRA and understood that victims and complainants can be different people. Paragraph 50(3) (

c) of the CHRA gives the Tribunal broad discretion to accept any evidence it sees fit, even if that evidence would not be available in a court of law, including hearsay. The Tribunal does not necessarily need to hear from all the alleged victims of discrimination in order to compensate all of them for pain and suffering. There is nothing in the CHRA that requires testimony from a small group of representative victims either. In this case, there was no need to particularize the specific harms flowing from the removal of children from their families.

It is the removal itself and the harm to dignity that the Tribunal was considering. The testimony of children and other victims was therefore unnecessary. The Tribunal did not err in finding that it had extensive evidence of both individual and systemic discrimination. The idea that victims should be barred from individual remedies because of the systemic nature of the harm is unsupported by the language in the CHRA . The CHRA is not designed to address different levels of damages or engage in processes to assess fault-based personal harm.

The Tribunal made human rights awards for pain and suffering because of the victim’s loss of freedom from discrimination, experience of victimization, and harm to dignity. This falls squarely within the jurisdiction of the Tribunal. It was open for the Tribunal to find that financial awards under the CHRA serve particular purposes that are unique to the human rights context. The Tribunal’s finding of wilful and reckless discrimination was not unreasonable. The Tribunal properly considered the factual record in determining whether to award damages.

There was more than enough evidence in the form of independent reports to ground this finding. The Tribunal reasonably determined

definitions for the terms “essential services”, “service gaps”, and “unreasonable delay”. The Tribunal based its determinations on the Compensation decision and with the overall goal of remedying and preventing discrimination. It reasonably exercised its jurisdiction as permitted under the CHRA . The issues pleaded were broad enough to encompass matters relating to Jordan’s Principle. The Tribunal made rulings in 2016 and 2017 that expressly rejected the applicant’s argument that Jordan’s Principle was beyond the scope of the Tribunal’s inquiry.

The applicant did not succeed in establishing that the Eligibility decision was unreasonable. The inclusion of two additional categories of children was not beyond the Tribunal’s jurisdiction or the scope of the complaint. It was within the general and remedial jurisdiction of the Tribunal to prevent further discrimination by adding additional categories for eligibility that extend beyond the Indian Act . As for the scope of the complaint, there was a clear nexus between the Eligibility decision and the original complaint.

Additionally, it was a live issue for the Tribunal to define the meaning of “First Nations child” because the parties had not yet determined the scope of this term. Just because the Tribunal extended eligibility for Jordan’s Principle beyond the confines of the Indian Act , does not mean that the Tribunal acted outside its jurisdiction or that it determined that the status provisions were invalid. The Eligibility decision prevented future discrimination, which is consistent with the purpose of the Tribunal’s jurisdiction.

The Tribunal enjoys a large remedial jurisdiction and this jurisdiction should be interpreted liberally in light of the quasi-constitutional nature of the CHRA . The Eligibility decision was not determining the legal effect of who is a First Nations child. Rather, it determined certain parameters to assist the parties in deciding who is eligible for Jordan’s Principle and, consequently, compensation. Finally, the applicant was not denied procedural fairness. The Tribunal afforded all parties a full picture of what was to be determined at each stage of the proceedings and sought submissions from the parties.

There were no surprises. STATUTES AND REGULATIONS CITED Act respecting First Nations Inuit and Métis children youth and families , S.C. 2019, c. 24 ,

Preamble, s. 8. An Act to amend the Indian Act in response to the Superior Court of Quebec decision in Descheneaux c. Canada (Procureur général) , S.C. 2017, c. 25 . 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]. Canadian Human Rights Act , R.S.C., 1985, c. H-6, ss. 5 , 40(1) , 50(3) (c), 53 . Child Youth and Family Services Act , 2017, S.O. 2017, c. 14, Sch. 1 . Constitution Act, 1867 , 30 & 31 Vict., c. 3 (U.K.) (as am. by Canada Act 1982 , 1982, c. 11 (U.K.),

Schedule to the Constitution Act, 1982 , Item 1) [R.S.C., 1985, Appendix II, No. 5], s. 91(24). Constitution Act, 1982 ,

Schedule B, Canada Act 1982 , 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], s. 35(1). Human Rights Code , R.S.B.C. 1996, c. 210 . Indian Act , R.S.C., 1985, c. I-5, ss. 6(2) , 52 , 52.3 . TREATIES AND OTHER INSTRUMENTS CITED United Nations Declaration on the Rights of Indigenous Peoples , UNGAOR Res. A/61/295 [being

Schedule to the United Nations Declaration on the Rights of Indigenous Peoples Act , S.C. 2021, c. 14 ]. CASES CITED APPLIED:

Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653; Grover v. Canada (National ResearchCouncil), (FC), [1994] F.C.J. No. 1000 (QL), sub nom. Canada (Attorney General) v. Grover, ,24 C.H.R.R. D/390, 80 F.T.R. 256; R. v. Desautel, 2021 SCC 17, 456 D.L.R. (4th) 1. DISTINGUISHED: Canada (Secretary of State for External Affairs) v. Menghani, (FC), [1994] 2 C.F. 102, (1993), 110 D.L.R. (4th) 700(T.D.); Whiten v. Pilot Insurance, 2002 SCC 18, [2002] 1 S.C.R. 595; Hughes v. Canada (Attorney General), 2019 FC 1026, 309A.C.W.S. (3d) 591; Youmbi Eken v.

Netrium Networks Inc., 2019 CHRT 44; Canada (Attorney General) v. Hislop, 2007 SCC 10,[2007] 1 S.C.R. 429. CONSIDERED: First Nations Child & Family Caring Society of Canada et al. v. Attorney General of Canada (representing the Minister of Indigenousand Northern Affairs Canada), 2020 CHRT 7; First Nations Child & Family Caring Society of Canada et al. v. Attorney General ofCanada (representing the Minister of Indigenous and Northern Affairs Canada), 2020 CHRT 15; First Nations Child & Family CaringSociety of Canada et al. v.

Attorney General of Canada (representing the Minister of Indigenous and Northern Affairs Canada),2021 CHRT 7; First Nations Child & Family Caring Society of Canada et al. v. Attorney General of Canada (representing the Ministerof Indigenous and Northern Affairs Canada), 2020 CHRT 36; 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; First Nations Child & FamilyCaring Society of Canada et al. v.

Attorney General of Canada (representing the Minister of Indigenous and Northern Affairs Canada),2019 CHRT 1; First Nations Child and Family Caring Society of Canada et al. v. Attorney General of Canada (for the Minister of Indianand Northern Affairs Canada), 2016 CHRT 10; First Nations Child & Family Caring Society of Canada et al. v. Attorney General ofCanada (representing the Minister of Indian and Northern Affairs), 2016 CHRT 16; First Nations Child & Family Caring Society ofCanada et al. v.

Attorney General of Canada (representing the Minister of Indigenous and Northern Affairs Canada), 2017 CHRT 14;First Nations Child & Family Caring Society of Canada et al. v. Attorney General of Canada (representing the Minister of Indigenousand Northern Affairs Canada), 2017 CHRT 35; First Nations Child & Family Caring Society of Canada et al. v. Attorney General ofCanada (representing the Minister of Indigenous and Northern Affairs Canada), 2018 CHRT 4; First Nations Child & Family CaringSociety of Canada et al. v.

Attorney General of Canada (representing the Minister of Indigenous and Northern Affairs Canada),2019 CHRT 7; Canada (Attorney General) v. Ennis, 2021 FCA 95, [2021] 4 F.C.R. 3; Hughes v. Elections Canada, 2010 CHRT 4;Canadian National Railway Company v. Canadian Human Rights Commission, (FCA), [1985] 1 F.C. 96, sub nom. ReC.N.R. Co. and Canadian Human Rights Commission, (1985), 20 D.L.R. (4th) 668, (C.A.) revd on other grounds (SCC), [1987] 1 S.C.R. 1114; Moore v.

British Columbia (Education), 2012 SCC 61, [2012] 3 S.C.R. 360; Polhill v.Keeseekoowenin First Nation, 2017 CHRT 34; Canada (Canadian Human Rights Commission) v. Canada (Attorney General),2010 FC 1135, [2011] 1 F.C.R. D-9; Lemire v. Canada (Human Rights Commission), 2014 FCA 18, [2015] 2 F.C.R. 117; Canada(Attorney General) v. Johnstone, 2013 FC 113, [2014] 3 F.C.R. 170, affd 2014 FCA 110; British Columbia v. Gregoire,2005 BCCA 585, 262 D.L.R. (4th) 186. REFERRED TO: First Nations Child & Family Caring Society of Canada et al. v.

Attorney General of Canada (representing the Minister of Indigenousand Northern Affairs Canada), 2021 CHRT 6; Canada (Attorney General) v. First Nations Child and Family Caring Society of Canada(November 24, 2009), T-1753-08 (F.C.); Canada (Attorney General) v. First Nations Child and Family Caring Society of Canada,2010 FC 343, 187 A.C.W.S. (3d) 426; Canada (Canadian Human Rights Commission) v. Canada (Attorney General), 2012 FC 445,[2013] 4 F.C.R. 545; Canada (Attorney General) v. Canadian Human Rights Commission, 2013 FCA 75, 444 N.R. 120; Canada(Attorney General) v.

First Nation Child and Family Caring Society of Canada, 2019 FC 1529, 313 A.C.W.S. (3d) 136; O’Grady v. BellCanada, 2020 FC 535, 322 A.C.W.S. (3d) 603; Canada (Attorney General) v. Zalys, 2020 FCA 81, [2021] 1 F.C.R. D-17; Ontario Assn.of Architects v. Assn. of Architectural Technologists of Ontario, 2002 FCA 218, [2003] 1 F.C. 331; Gitxsan Treaty Society v. HospitalEmployees’ Union, (FCA), [2000] 1 F.C. 135, sub nom. Gitxsan Treaty Society v. H.E.U. (1999), 177 D.L.R. (4th)687 (C.A.); Reid v. Canada (Citizenship and Immigration), 2020 FC 222, 315 A.C.W.S. (3d) 538; R. v.

Nat Bell Liquors Ltd., (UK JCPC), [1922] 2 A.C. 128, (1922), 65 D.L.R. 1; Canada (Canadian Human Rights Commission) v. Canada (AttorneyGeneral), 2012 FC 445, [2013] 4 F.C.R. 545; Robichaud v. Canada (Treasury Board), (SCC), [1987] 2 S.C.R. 84;Canada (Canadian Human Rights Commission) v. Canada (Attorney General), 2011 SCC 53, [2011] 3 S.C.R. 471; Canada (SocialDevelopment) v. Canada (Human Rights Commission), 2011 FCA 202, 420 N.R. 136; Collins v. Canada (Attorney General),2013 FCA 105, 444 N.R. 259; Battlefords and District Co-operative Ltd. v. Gibbs, (SCC), [1996] 3 S.C.R. 566; JaneDoe v.

Canada (Attorney General), 2018 FCA 183, [2019] 1 F.C.R. D-6; Grant v. Manitoba Telecom Services Inc., 2012 CHRT 20;Public Service Alliance of Canada v. Canada (Treasury Board), (1998), 32 C.H.R.R. D/349, ; McKinnon v. Ontario(Ministry of Correctional Services), 1998 CarswellOnt 5895, (ON HRT), 32 C.H.R.R. D/1; Panacci v. AttorneyGeneral of Canada, 2014 FC 368, 452 F.T.R. 302; Public Service Alliance of Canada v. Canada Post Corporation, 2005 CHRT 39;Opheim v. Gagan Gill & Gillco Inc, 2016 CHRT 12; Stevenson v. Canadian Human Rights Comm., (FCA),[1984] 2 F.C. 691, (1983), 150 D.L.R. (3d) 385 (C.A.); Chopra v.

Canada (Attorney General), 2007 FCA 268, [2008] 2 F.C.R. 393. AUTHORS CITED Brodsky, Gwen, Shelagh Day and Frances Kelly. “The Authority of Human Rights Tribunals to Grant Systemic Remedies” (2017), 6:1Can. J. of Hum. Rts. House of Commons Debates, 2nd Sess., 39th Parl., No. 36 (12 December 2007). APPLICATIONS for judicial review of the decisions by the Canadian Human Rights Tribunal awarding compensation to First Nationschildren, parents, or grandparents (2019 CHRT 39) and adding two categories of First Nations children eligible for Jordan’s Principle(2020 CHRT 20). Applications dismissed.

APPEARANCES Robert Frater, Q.C. , Max Binnie and Meg Jones for applicant. David Taylor and Sarah Clarke for respondent First Nations Child and Family Caring Society of Canada. David C. Nahwegahbow for respondent Assembly of First Nations. Brian Smith and Jessica Walsh for respondent Canadian Human Rights Commission. Maggie Wente and Joel Morales for respondent Chiefs of Ontario. Stephen Aylward and Justin Safayeni for respondent Amnesty International. Akosua Matthews for respondent Nishnawbe Aski Nation. Andrew Lokan for intervener Congress of Aboriginal Peoples.

SOLICITORS OF RECORD Deputy Attorney General of Canada for applicant. Conway Baxter Wilson LLP/s.r.l. and Clarke Child & Family Law , Ottawa, for respondent First Nations Child and Family Caring Society of Canada. Nahwegahbow Corbiere , Rama, Ontario, for respondent Assembly of First Nations. Canadian Human Rights Commission , Ottawa, for respondent Canadian Human Rights Commission. Olthuis Kleer Townshend LLP , Toronto, for respondent Chiefs of Ontario. Stockwoods LLP , Toronto, for respondent Amnesty International. Falconers LLP , Toronto, for respondent Nishnawbe Aski Nation.

Paliare Roland Rosenberg Rothstein LLP , Toronto, for intervener Congress of Aboriginal Peoples. The following are the reasons for judgment and judgment rendered in English by F avel J: TABLE OF CONTENTS I. Nature of the Matter 1 II. Background and Context 6 A. The Complaint 7 B. FNCFS Program 9 C. Jordan’s Principle 12 D. Parties before the Tribunal 15 III. Procedural History 16 A. Canada’s motion to strike the Complaint 17 B. Retaliation 19 C. The Merit Decision 20 D. Decisions following the Merit Decision 29

(1) 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 10 (2016 CHRT 10) 30

(2) First Nations Child & Family Caring Society of Canada et al. v. Attorney General of Canada (representing the Minister of Indian and Northern Affairs) , 2016 CHRT 16 (2016 CHRT 16) 33

(3) First Nations Child & Family Caring Society of Canada et al. v. Attorney General of Canada (representing the Minister of Indigenous and Northern Affairs Canada) , 2017 CHRT 14 (2017 CHRT 14) 35

(4) First Nations Child & Family Caring Society of Canada et al. v. Attorney General of Canada (representing the Minister of Indigenous and Northern Affairs Canada) , 2017 CHRT 35 (2017 CHRT 35) 41

(5) First Nations Child & Family Caring Society of Canada et al. v. Attorney General of Canada (representing the Minister of Indigenous and Northern Affairs Canada) , 2018 CHRT 4 (2018 CHRT 4) 45

(6) First Nations Child & Family Caring Society of Canada et al. v. Attorney General of Canada (representing the Minister of Indigenous and Northern Affairs Canada) , 2019 CHRT 7 (Interim Eligibility Decision) 49 E. Compensation Decisions 52

(1) The Compensation Decision: T-1621-19 52

(2) Additional Compensation Decision 57

(3) The

Definitions Decision 59

(4) The Trusts Decision 60

(5) The Framework Decision 61 F. Jordan’s Principle Eligibility Decisions 62

(1) Interim Eligibility Decision 63

(2) Eligibility Decision: T-1559-20 64 (3) 2020 CHRT 36 70

(4) The Framework Decision 72 IV. Issues and Standard of Review 73

(1) Was the Compensation Decision reasonable? 73

(2) Was the Eligibility Decision reasonable? 73

(3) Was Canada denied procedural fairness? 73 V. Parties’ Positions 84 A. Compensation Decision 85

(1) Applicant’s Position 85

(2) Caring Society’s Position 89

(3) The AFN’s Position 91

(4) The Commission’s Position 93

(5) The COO’s Position 95

(6) NAN’s Position 96

(7) Amnesty’s Position 97

(8) CAP’s Position 98 B. Eligibility Decision 99

(1) The Applicant’s Position 100

(2) The Caring Society’s Position 103

(3) The AFN’s Position 106

(4) The Commission’s Position 109

(5) The COO’s Position 110

(6) NAN’s Position 111

(7) Amnesty’s Position 112

(8) CAP’s Position 113 C. Procedural Fairness 114

(1) Applicant’s Position 114

(2) Position of the Respondents and Intervener 115 VI. Analysis 116 A. Preliminary Matter – Motion 116 B. The Compensation Decision 121

(1) Reasonableness 121 (

a) The Scope of the Tribunal’s Jurisdiction 125 (

b) Scope of the Complaint 140 (

c) Class Action 175 (

d) Principles of Damages Law 180 (

e) Wilful and Reckless 195 (

f) Definitions in the

Definitions Decision 204 (

g) Inadequate Reasons 217 (

h) Jordan’s Principle Compensation 221 (

i) Compensation to Caregivers 225

(2) Compensation Decision Conclusion 231 C. The Eligibility Decision 232

(1) Reasonableness 239 (

a) The Scope of the Tribunal’s Jurisdiction & the Scope of the Complaint 239 (

b) Implications for Compensation Decision 259 (

c) Alleged Lack of Evidence 263 (

d) Non-Party First Nations 266 (

e) Determining Complex Questions of Identity 270

(2) Eligibility Decision Conclusion 276 D. Procedural Fairness 280 VII. Some Thoughts on Reconciliation 297 VIII. Conclusion 302 I. Nature of the Matter [ table of contents ] [ 1 ] This is a judicial review brought by the applicant, the Attorney General of Canada representing the Minister of Indigenous Services Canada (Canada). The applicant requests that various decisions of the Canadian Human Rights Tribunal (Tribunal), all of which are listed below, be set aside and remitted to a different panel. The applications for judicial review, as amended, relate to the following Tribunal decisions:

(1) The September 6, 2019, decision in First Nations Child & Family Caring Society of Canada et al. v. Attorney General of Canada (representing the Minister of Indigenous and Northern Affairs Canada) , 2019 CHRT 39 (Compensation Decision). This is the decision at issue in the Federal Court File T-1621-19. The following Tribunal Decisions modified the Compensation Decision: (

i) The April 16, 2020, decision in First Nations Child & Family Caring Society of Canada et al. v. Attorney General of Canada (representing the Minister of Indigenous and Northern Affairs Canada) , 2020 CHRT 7 (Additional Compensation Decision); (ii) The May 28, 2020, decision in First Nations Child & Family Caring Society of Canada et al. v. Attorney General of Canada (representing the Minister of Indigenous and Northern Affairs Canada) , 2020 CHRT 15 (Definitions Decision); (iii) The February 11, 2021, decision in First Nations Child & Family Caring Society of Canada et al. v.

Attorney General of Canada (representing the Minister of Indigenous and Northern Affairs Canada) , 2021 CHRT 6 (Trust Decision); and (iv) The February 12, 2021, decision in First Nations Child & Family Caring Society of Canada et al. v. Attorney General of Canada (representing the Minister of Indigenous and Northern Affairs Canada) , 2021 CHRT 7 (Framework Decision).

(2) The July 17, 2020, decision in First Nations Child & Family Caring Society of Canada et al. v. Attorney General of Canada (representing the Minister of Indigenous and Northern Affairs Canada) , 2020 CHRT 20 (Eligibility Decision). This is the decision at issue in the Federal Court File T-1559-20. The following Tribunal decisions modified and confirmed the Eligibility Decision: (

i) The November 25, 2020, decision in First Nations Child & Family Caring Society of Canada et al. v. Attorney General of Canada (representing the Minister of Indigenous and Northern Affairs Canada) , 2020 CHRT 36 (2020 CHRT 36), as incorporated into the Framework Decision. [ 2 ] The Compensation and Eligibility Decisions originate from a January 26, 2016, Tribunal decision ( First Nations Child & Family Caring Society of Canada et al. v. Attorney General of Canada (for the Minister of Indian and Northern Affairs Canada) , 2016 CHRT 2 (Merit Decision)).

The Merit Decision dealt with a February 23, 2007, human rights complaint (Complaint) made by the First Nations Child and Family Caring Society of Canada (Caring Society) and the Assembly of First Nations (AFN). The Tribunal found sufficient evidence to establish a prima facie case of discrimination under

section 5 of the Canadian Human Rights Act , R.S.C., 1985, c. H-6 ( CHRA ). In the Merit Decision, the Caring Society and the AFN established that First Nations children and families living on reserve and in the Yukon were denied equal child and family services under paragraph 5(

a) of the CHRA and/or were adversely differentiated under paragraph 5 (

b) of the CHRA . The Tribunal’s finding of discrimination pertains to Canada’s funding of the First Nations Child and Family Services Program (FNCFS Program) and the funding of Jordan’s Principle for related health services to First Nations children. [ 3 ]

Section 5 of the CHRA states that “[i]t is a discriminatory practice in the provision of goods, services, facilities or accommodation customarily available to the general public (

a) to deny, or to deny access to, any such good, service, facility or accommodation to any individual, or (

b) to differentiate adversely in relation to any individual, on a prohibited ground of discrimination.” [ 4 ] The application for review of the Compensation Decision is dismissed. [ 5 ] The application for judicial review of the Eligibility Decision is dismissed. II. Background and Context [ table of contents ] [ 6 ] The background context and procedural history leading to these applications for judicial review are complex to say the least. The underlying matters in this application have been ongoing for over a decade. The submissions and the record in these applications were extensive.

While only two sets of decisions are the subject of this judicial review, it is useful to provide an overview of some key concepts and related Tribunal decisions to establish the proper context. A. The Complaint [ table of contents ] [ 7 ] In 2007, the Caring Society and the AFN filed the Complaint with the Canadian Human Rights Commission (Commission). They alleged that Canada was violating the CHRA by discriminating against First Nations children and families who live on reserve by underfunding the delivery of child and family services.

They argued that this discrimination was based on race and national or ethnic origin. The Complaint noted the dramatic overrepresentation of First Nations children in foster care, the need for the proper implementation of Jordan’s Principle (discussed in more detail below), and the systemic and ongoing nature of the discrimination. The Complaint also described past efforts by the Caring Society, AFN, and others to advocate for program reform and additional funding.

The Commission exercised its discretion and referred the Complaint to the Tribunal for a hearing. [ 8 ] Canada filed a judicial review application requesting that this Court quash the Commission’s referral decision and prohibit the Tribunal from hearing the Complaint. In November 2009, the application was stayed ( Canada (Attorney General) v. First Nations Child and Family Caring Society of Canada (November 24, 2009), T-1753-08 (F.C.). Canada sought judicial review of the stay decision and this Court dismissed the application ( Canada (Attorney General) v.

First Nations Child and Family Caring Society of Canada , 2010 FC 343 , 187 A.C.W.S. (3d) 426). B. FNCFS Program [ table of contents ] [ 9 ] In Canada, each province and territory has its own legislation that governs the delivery of services to children and families in need. However, First Nations children living on reserve and in the Yukon receive child and family services from the federal government through the FNCFS Program.

This is because the federal government has “legislative authority” over “Indians, and Lands reserved for the Indians” under subsection 91(24) of the Constitution Act, 1867 , 30 & 31 Vict., c. 3 (U.K.) (as am. by Canada Act 1982 , 1982, c. 11 (U.K.),

Schedule to the Constitution Act , 1982 , Item 1) [R.S.C., 1985, Appendix II, No. 5]. The separation of powers is the driving force behind the types of jurisdictional disputes discussed in this decision. [ 10 ] At the time the Complaint was filed, FNCFS agencies were funded by Canada according to a funding formula known as Directive 20-1 or as the Enhanced Prevention Focused Approach. In Ontario, funding is provided to FNCFS agencies under the 1965 Child Welfare Agreement.

Where there are no FNCFS agencies within a province, provinces provide the service and may be reimbursed by Canada. [ 11 ] The purpose of the FNCFS Program is to ensure that on reserve and Yukon-based First Nations children and families receive culturally appropriate assistance or benefits that are reasonably comparable to services provided to residents in other provinces. On reserve and Yukon-based First Nations children and families also receive other kinds of social services and products from the federal government. C.

Jordan’s Principle [ table of contents ] [ 12 ] Jordan’s Principle is named after Jordan River Anderson, who was from Norway House Cree Nation in Manitoba. Jordan had complex medical needs. His parents surrendered him to provincial care so that he could receive the necessary treatment. Jordan could have gone to a specialized foster home but Canada and Manitoba disagreed over who should pay the foster care costs. Jordan died at age

five having never lived outside the hospital. Based on these circumstances, Jordan’s Principle was established.

Jordan’s Principle is described in the Merit Decision as follows [at paragraph 351]: Jordan’s Principle is a child-first principle and provides that where a government service is available to all other children and a jurisdictional dispute arises between Canada and a province/territory, or between departments in the same government regarding services to a First Nations child, the government department of first contact pays for the service and can seek reimbursement from the other government/department after the child has received the service.

It is meant to prevent First Nations children from being denied essential public services or experiencing delays in receiving them. [Emphasis in original.] [ 13 ] The House of Commons unanimously passed Jordan’s Principle on December 12, 2007, in House of Commons Motion 296: … That, in the opinion of the House, the government should immediately adopt a child first principle, based on Jordan’s Principle, to resolve jurisdictional disputes involving the care of First Nations children. [ 14 ] A Memorandum of Understanding on Jordan’s Principle (MOU) was signed between Aboriginal Affairs and Northern Development Canada (AANDC) and Health Canada in 2009.

The MOU indicated that AANDC’s role in responding to Jordan’s Principle was by virtue of the range of social programs it provides to First Nations people, including special education, assisted living, income assistance, and the FNCFS Program. The MOU was renewed in 2013. D. Parties before the Tribunal [ table of contents ] [ 15 ] The Caring Society and the AFN were co-complainants before the Tribunal. The Caring Society is a non-profit organization committed to research, policy development, and advocacy on behalf of First Nations agencies serving the well-being of children, youth, and families.

The AFN is a national advocacy organization working on behalf of over 600 First Nations. The Commission represented the public interest. Canada was the respondent. After the Tribunal requested an inquiry into the Complaint, the Tribunal granted interested party status to the Chiefs of Ontario (COO), who advocates on behalf of 133 First Nations in Ontario, and Amnesty International (Amnesty), an international non-governmental organization committed to the advancement of human rights across the globe.

Nishnawbe Aski Nation (NAN), representing 49 First Nations’ interests in Northern Ontario, and the Congress of the Aboriginal Peoples (CAP), representing off-reserve First Nations, Métis, and Inuit, were added after the Merit Decision. III. Procedural History [ table of contents ] [ 16 ] While it is not possible to summarize every legal argument or submission relied on by the parties in every proceeding, I will summarize the Tribunal’s main decisions or rulings and the main submissions that are relevant to disposing of the applications before this Court. A.

Canada’s motion to strike the Complaint [ table of contents ] [ 17 ] In December 2009, the applicant brought a preliminary motion at the Tribunal to strike the Complaint. It argued that its responsibility to fund the FNCFS Program and Jordan’s Principle did not constitute a “service” within the meaning of the CHRA . It also characterized the Complaint as a cross-jurisdictional comparison of services and argued that such comparisons cannot establish discrimination. [ 18 ] In March 2011, the Tribunal granted the applicant’s motion to strike based on the comparison issue.

However, in April 2012, this Court quashed that decision and reinstated the Complaint ( Canada (Canadian Human Rights Commission) v. Canada (Attorney General) , 2012 FC 445 , [2013] 4 F.C.R. 545 ). In March 2013, the Federal Court of Appeal dismissed the applicant’s appeal of that decision ( Canada (Attorney General) v. Canadian Human Rights Commission , 2013 FCA 75 , 444 N.R. 120). B. Retaliation [ table of contents ] [ 19 ] In 2013, the Tribunal held a hearing into the allegations that the applicant had retaliated against the Caring Society’s executive director, Dr. Blackstock.

The Tribunal found that the applicant had retaliated against Dr. Blackstock by prohibiting her participation in a COO meeting held at the Minister’s Office. The Tribunal ordered the applicant to pay $10 000 for retaliation and $10 000 for pain and suffering ( First Nations Child & Family Caring Society of Canada et al. v. Attorney General of Canada (for the Minister of Indian and Northern Affairs Canada) , 2016 CHRT 2 [cited above]). The applicant did not seek judicial review of that decision. C.

The Merit Decision [ table of contents ] [ 20 ] The Complaint hearing took approximately 70 days from February to October 2013. There were 25 witnesses and 500 documentary exhibits. Partway through the hearing, there was a three-month delay when the Caring Society discovered that the applicant had knowingly failed to disclose 100 000 documents (Merit Decision, at paragraphs 14–16). Many of these documents were later held to be “prejudicial to Canada’s case and highly relevant” (First Nations Child & Family Caring Society of Canada et al. v.

Attorney General of Canada (representing the Minister of Indigenous and Northern Affairs Canada) , 2019 CHRT 1 (2019 CHRT 1), at paragraph 13). The Tribunal issued a consent order, requiring the applicant to compensate the Caring Society, the AFN, and the COO for “lack of transparency and blatant disregard” for the Tribunal process and because of “the serious impacts it had on the proceedings” (2019 CHRT 1, at paragraph 30). [ 21 ] The applicant’s submissions before the Tribunal included an overview of its commitment to the funding of the FNCFS Program, Jordan’s Principle, and other programs.

It submitted that there was insufficient evidence to substantiate the Complaint and that the documentary evidence should be given little, if any weight. The documentary evidence included Auditor General reports, provincial Children’s Advocates reports, the Blue Hills report, and the Wen:De reports. It also submitted that the Tribunal lacked jurisdiction to assess violations of international law or to provide remedies for any such alleged breaches. The Tribunal was also exceeding its jurisdiction by intruding into the role of the Executive branch of the government and formulating policy and funding decisions.

[ 22 ] The applicant also submitted that Jordan’s Principle was not a child welfare concept. Therefore, it was beyond the scope of the Complaint. Canada’s response to Jordan’s Principle did not demonstrate a prima facie case of discrimination. [ 23 ] The applicant did not argue that the Tribunal lacked jurisdiction to grant financial awards. Rather, Canada argued that there was insufficient evidence brought by the complainants to support the requested monetary award for “victims” or “[children] being removed from their home”. [ 24 ] The Tribunal found that the applicant had violated

section 5 of the CHRA in two ways. First, the FNCFS Program discriminated against First Nations children and families on reserve and in the Yukon. The FNCFS Program resulted in inadequate fixed funding that hindered the delivery of culturally appropriate child welfare services, created incentives for its agencies to take First Nations children into care, and failed to consider the unique needs of First Nations children and families. [ 25 ] Second, the applicant discriminated by taking an overly narrow approach to Jordan’s Principle. This resulted in service gaps, delays, and denials.

The Tribunal stated the following about the connection between the FNCFS Program and Jordan’s Principle [Merit Decision, at paragraph 362]: In the Panel’s view, while not strictly a child welfare concept, Jordan’s Principle is relevant and often intertwined with the provision of child and family services to First Nations, including under the FNCFS Program.

Wen:De Report Three specifically recommended the implementation of Jordan[’s] Principle on the following basis, at page 16: Jurisdictional disputes between federal government departments and between federal government departments and provinces have a significant and negative effect on the safety and well-being of Status Indian children […] the number of disputes that agencies experience each year is significant. In Phase 2, where this issue was explored in more depth, the 12 FNCFSA in the sample experienced a total of 393 jurisdictional disputes in the past year alone.

Each one took about 50.25 person hours to resolve resulting in a significant tax on the already limited human resources . [Emphasis in original.] [ 26 ] The Tribunal found that the applicant was aware that the FNCFS Program was creating inequalities and disparities for First Nations children trying to access essential services. It also noted that there were evidence-based solutions, as referenced in the National Policy Review reports of 2000 and the three Wen:De Reports, which Canada participated in.

Despite having awareness of the problem and potential solutions, the applicant had failed to make any substantive changes to address the issues (Merit Decision, at paragraphs 150–185).

This decision also referred to the 2008 Auditor General Report, the 2008 and 2010 Report on the Standing Committee on Public Accounts, the 2011 Status Report of the Auditor General, and various other reports and testimonies (Merit Decision, at paragraphs 186–216). [ 27 ] The Merit Decision recognized that the applicant’s discriminatory funding practices caused First Nations children and families living on reserves and in the Yukon to suffer.

It found that “these adverse impacts perpetuate the historical disadvantage and trauma suffered by Aboriginal people, in particular as a result of the Residential Schools system” (Merit Decision, at paragraph 459). The Tribunal ordered that the applicant immediately cease its discriminatory practices and engage in any reforms needed to bring itself into compliance with the Merit Decision. It also ordered the immediate implementation of Jordan’s Principle’s full meaning and scope.

Finally, the Tribunal sought submissions on remedies. [ 28 ] The Tribunal remained seized of the Complaint in order to oversee the applicant’s efforts to bring itself into compliance with the Merit Decision. It also remained seized to resolve outstanding issues related to victims’ financial compensation. The applicant did not seek judicial review of the Merit Decision. D. Decisions following the Merit Decision [ table of contents ] [ 29 ] After the Merit Decision, the Tribunal held several times that it retained jurisdiction to monitor matters to ensure discrimination ceased.

The complexity of this proceeding is reflected in the summaries of certain other decisions, the most pertinent of which are below.

(1) First Nations Child and Family Caring Society of Canada et al. v. Attorney General of Canada (for the Minister of Indian and Northern Affairs Canada) , 2016 CHRT 10 (2016 CHRT 10) [ table of contents ] [ 30 ] In April 2016, the Tribunal ordered the applicant to take immediate action on certain findings in the Merit Decision and to provide a comprehensive report on actions taken. While it acknowledged that the applicant was taking immediate steps to consult on ways to remedy the discrimination, it reminded the applicant that it had ordered the immediate cessation of the discrimination.

The Tribunal also explained that there is an increased need to retain jurisdiction because remedial orders responding to systemic discrimination can be difficult to implement. [ 31 ] The Tribunal advised that it would address the outstanding questions of remedies in three steps [at paragraphs 4 and 5]: …. First, the panel will address requests for immediate reforms to the FNCFS Program, the 1965 Agreement and Jordan’s Principle. This is the subject of the present ruling.

Other mid to long-term reforms to the FNCFS Program and the 1965 Agreement , along with other requests for training and ongoing monitoring will be dealt with as a second step. Finally, the Parties will address the requests for compensation under ss. 53(2) (

e) and 53(3) of the CHRA . [ 32 ] The applicant did not seek judicial review of this decision.

(2) First Nations Child & Family Caring Society of Canada et al. v. Attorney General of Canada (representing the Minister of Indian and Northern Affairs) , 2016 CHRT 16 (2016 CHRT 16) [ table of contents ] [ 33 ] In September 2016, the Tribunal found that the applicant was restricting the application of Jordan’s Principle to First Nations

children on reserve, as opposed to all First Nations children. The Tribunal also found that the applicant was similarly restricting its application to First Nations children with “disabilities and those who present with a discrete, short-term issue for which there is a critical need for health and social supports” ( 2016 CHRT 16 , at paragraph 119 ).

The Tribunal clarified that Jordan’s Principle extends to all First Nations children, whether they live on or off reserve (2016 CHRT 16, at paragraphs 118–119). [ 34 ] The Tribunal requested that the applicant provide further information on its consultations regarding Jordan’s Principle and the process for dealing with claims. It ordered Canada to provide the names and contact information of all Jordan’s Principle focal points to each FNCFS agency.

The Tribunal noted that the applicant’s new formulation of Jordan’s Principle once again appeared to be more restrictive than that created by the unanimous House of Commons motion and ordered Canada to address this ( 2016 CHRT 16 , at paragraphs 118–119 and 160 ). Canada did not seek judicial review of this ruling.

(3) First Nations Child & Family Caring Society of Canada et al. v. Attorney General of Canada (representing the Minister of Indigenous and Northern Affairs Canada) , 2017 CHRT 14 (2017 CHRT 14) [ table of contents ] [ 35 ] In May 2017, the Tribunal found that the applicant had still not brought itself into compliance with the prior rulings on Jordan’s Principle.

This decision also addressed NAN’s submissions concerning a tragic situation in Wapekeka First Nation (Wapekeka), located in northern Ontario. [ 36 ] In July 2016, Wapekeka made a proposal to Health Canada seeking funding for an in-community mental health team. In the proposal, Wapekeka alerted Health Canada to concerns about a suicide pact amongst a group of young girls. In January 2017, two twelve-year-old children tragically took their own lives. [ 37 ] NAN amended its notice of motion seeking remedies with respect to the loss of these children. NAN filed two affidavits to support its amended motion.

One affidavit was from Dr. Michael Kirlew, a community and family physician for Wapekeka, and an Investigating Coroner for Ontario’s northwest region. Dr. Kirlew’s evidence was that a Health Canada official had told him that Health Canada delayed responding to the Wapekeka proposal because it came at an “awkward time” in the federal funding cycle. [ 38 ] The applicant filed an affidavit of Robin Buckland, then Executive Director of the Office of Primary Health Care within Health Canada’s First Nations Inuit Health Branch (FNIHB) and national lead for Jordan’s Principle. In cross-examination, Ms.

Buckland agreed that the Wapekeka proposal identified an example of a “service gap” for children. She could not explain why Canada was not meeting the needs identified in the proposal. [ 39 ] NAN submitted that there is a need to define what constitutes a “service gap” under Jordan’s Principle. Doing so will help ensure First Nations children properly receive sufficient government services. NAN also argued that a claimant should not automatically be denied compensation eligibility if they are unable to demonstrate a specific request for a service or support.

NAN’s submissions informed the definition of “service gap” included in the Tribunal’s ordered compensation framework (Compensation Framework). [ 40 ] The Tribunal gave precise directions on how to process Jordan’s Principle claims, reiterating two of its key purposes. First, an important goal of Jordan’s Principle is to ensure that First Nations children do not experience gaps in services due to jurisdictional disputes. Second, because First Nations children may have additional needs, the delivery of services can go beyond what is otherwise not available to other persons.

The Tribunal noted that a key concept of Jordan’s Principle is that it is a child-first principle that applies equally to all First Nations children, whether resident on or off reserve.

(4) First Nations Child & Family Caring Society of Canada et al. v. Attorney General of Canada (representing the Minister of Indigenous and Northern Affairs Canada) , 2017 CHRT 35 (2017 CHRT 35) [ table of contents ] [ 41 ] The applicant sought judicial review of 2017 CHRT 14 with respect to certain details about case conferences and timelines but discontinued this application after the Tribunal issued a consent order in November 2017.

The Tribunal found that the applicant was in substantial compliance with its directions regarding Jordan’s Principle. [ 42 ] The Tribunal set out key points to inform the applicant’s definition and application of Jordan’s Principle. First, the applicant must eliminate service gaps and engage a child-first approach that applies equally to all First Nations children, whether on or off reserve. Additionally, if a government service is available to all other children, the department of first contact must pay for the service without first engaging in any administrative procedure for funding and approval.

Further, the applicant should only engage in clinical case conferencing with professionals who have the relevant competencies and training. These consultations are only required as reasonably necessary to determine the requestor’s clinical needs.

The department of first contact can seek reimbursement after the recommended service is approved and funding is provided. [ 43 ] The Tribunal further stated that where a government service is not necessarily available to all other children or is beyond the normative standard of care, the department of first contact must still evaluate whether a requested service should be provided. The department of first contact must pay for the service the First Nations child requests, without engaging in any administrative procedure before the recommended service is approved and funding is provided.

The applicant may also consult with the family, First Nation community, or service providers to fund services within set timeframes. [ 44 ] Lastly, while Jordan’s Principle can apply to jurisdictional disputes between governments and within the same government, such disputes are not a requirement for the application of Jordan’s Principle.

(5) First Nations Child & Family Caring Society of Canada et al. v. Attorney General of Canada (representing the Minister of Indigenous and Northern Affairs Canada) , 2018 CHRT 4 (2018 CHRT 4) [ table of contents ] [ 45 ] In February 2018, the Tribunal again dealt with issues of noncompliance by the applicant. It found that discrimination was continuing to occur on a national scale and the lack of prevention programs was leading to a disproportionate apprehension of First Nations children.

The applicant was ordered to pay FNCFS agencies’ actual costs for certain matters and create a consultation committee where all the parties would meet to discuss the implementation of the Tribunal’s orders.

[ 46 ] The applicant raised concerns about the fairness of the Tribunal’s approach to remedial jurisdiction. However, the Tribunal found no unfairness and stated that it would remain seized to ensure discrimination is eliminated.

Specifically, the Tribunal found that “any potential procedural unfairness to Canada is outweighed by the prejudice borne by the First Nations’ children and their families who suffered and, continue to suffer, unfairness and discrimination” ( 2018 CHRT 4 , at paragraph 389 ). [ 47 ] The Tribunal reiterated its intent to move forward to the issue of compensation ( 2018 CHRT 4 , at paragraph 385 ).

The applicant did not seek judicial review of this ruling. [ 48 ] While not part of the ruling, I pause to note that on March 2, 2018, the parties signed a Consultation Protocol that covered significant principles governing the parties’ discussions. It also acknowledged the Tribunal’s three-stage approach to remedies.

(6) First Nations Child & Family Caring Society of Canada et al. v. Attorney General of Canada (representing the Minister of Indigenous and Northern Affairs Canada) , 2019 CHRT 7 (Interim Eligibility Decision) [ table of contents ] [ 49 ] The Caring Society brought a motion for relief to ensure that the definition of “First Nations child” as articulated in 2016 CHRT 2, 2016 CHRT 10 , 2016 CHRT 16, and 2017 CHRT 14 was defined.

The proposed motion read [at paragraph 27]: An order that, pending the adjudication of the compliance with this Tribunal’s orders of Canada’s definition of “First Nations Child” for the purposes of implementing Jordan’s Principle, and in order to ensure that the Tribunal’s orders are effective, Canada shall provide First Nations children living off-reserve who have urgent service needs, but do not have (and are not eligible for) Indian Act status, with the services required to meet those urgent service needs, pursuant to Jordan’s Principle. [ 50 ] The Caring Society brought this motion because the Caring Society had recently paid for the medical services of a First Nations child (S.J.).

S.J. did not have status under the Indian Act , R.S.C., 1985, c. I-5 ( Indian Act ) but had one parent with subsection 6(2) Indian Act status. In other words, S.J. lacked status because of the second-generation cut-off rule.

For this reason, and because of S.J.’s off- reserve residence, Canada refused to pay for the medical expenses (Interim Eligibility Decision, at paragraph 80). [ 51 ] The Tribunal ordered the following [at paragraph 87]: The Panel, in light of its findings and reasons, its approach to remedies and its previous orders in this case, above mentioned and, pursuant to section 53 (2) a and b of the CHRA , orders that, pending the adjudication of the compliance with this Tribunal’s orders and of Canada’s definition of “First Nations child” for the purposes of implementing Jordan’s Principle, and in order to ensure that the Tribunal’s orders are effective, Canada shall provide First Nations children living off-reserve who have urgent and/or life-threatening needs, but do not have (and are not eligible for) Indian Act status, with the services required to meet those urgent and/or life-threatening service needs, pursuant to Jordan’s Principle.

E. Compensation Decisions [ table of contents ]

(1) The Compensation Decision: T-1621-19 [ 52 ] On March 15, 2019, prior to the hearing on compensation, the Tribunal sent the parties written questions about their respective positions on the topic. In short, the combined submissions of the Caring Society and AFN were that Canada should pay compensation for every child affected by the FNCFS Program that was taken into out-of-home care and that the compensation should be paid to First Nations children and their parents or grandparents.

Further, the compensation should be retroactive to 2006 until such time that the Tribunal deemed the applicant compliant with the Merit Decision. The other respondents echoed these submissions. In response, the applicant opposed the claims made for individual financial compensation on the basis that the Tribunal lacked jurisdiction to grant such awards in cases about systemic discrimination. [ 53 ] The Tribunal found that there are victims of Canada’s discriminatory practices who are entitled to compensation. At paragraph 11 of the Framework Decision, the Tribunal provided a succinct

summary of the Tribunal’s ruling in the Compensation Decision: …. In the Compensation Decision , the Tribunal ordered compensation for children who were apprehended from their homes to start as of January 1, 2006. In this decision, the Tribunal determined that children who were apprehended from their home prior to January 1, 2006 but remained in care as of January 1, 2006 were within the scope of the Compensation Decision and eligible for compensation (paras. 37-76).

Finally, the Tribunal determined that compensation should be paid to the estates of beneficiaries who experienced Canada’s discriminatory conduct but passed away before being able to receive compensation (paras. 77-151). [ 54 ] The Tribunal found that Canada’s approach to funding was based on financial considerations. Further, Canada’s practices resulted in First Nations children being removed from their homes, families, and communities, which led to “trauma and harm to the highest degree causing pain and suffering” (Compensation Decision, at paragraph 193).

According to the Tribunal, Canada acted with little to no regard for the consequences of removal of First Nations children from their families. As a result, the Tribunal awarded First Nations children, parents, or grandparents $40 000 each. Pursuant to paragraph 53(2) (

e) of the CHRA , the first $20 000 was for pain and suffering. Pursuant to subsection 53(3) of the CHRA , the remaining $20 000 was awarded as special compensation for the discriminatory practices under the FNCFS Program and Jordan’s Principle. [ 55 ] The Tribunal did not order that Canada immediately pay compensation. Instead, the Tribunal ordered Canada to define eligibility for victims, create an appropriate methodology to govern distribution, and consult with the other parties who could provide comments and suggestions about the orders.

The Tribunal directed that the consultations should generate procedures that would allow, but not obligate, First Nations to identify children for the purposes of Jordan’s Principle. This interim ruling would remain in effect until a final order. The Tribunal retained jurisdiction. [ 56 ] The applicant judicially reviewed the Compensation Decision and requested a stay pending a decision on the Merit. In response, the Caring Society sought to stay the application for judicial review. Both motions were dismissed ( Canada (Attorney General) v.

First Nation Child and Family Caring Society of Canada , 2019 FC 1529 , 313 A.C.W.S. (3d) 136).

(2) Additional Compensation Decision [ table of contents ] [ 57 ] Notwithstanding the applicant’s pending judicial review application, in February 2020 the applicant, the AFN, and the Caring Society provided the Tribunal with a draft Compensation Framework. The parties also asked the Tribunal for guidance and clarification regarding compensation. In April 2020, the Tribunal clarified that: (

a) Child beneficiaries should gain unrestricted access to their compensation upon reaching their province’s age of majority; (

b) Compensation should be paid to eligible First Nations children (and to the parents or grandparents) who entered into care before and remained in care until at least January 1, 2006; and (

c) Compensation should be paid to the estates of deceased individuals who otherwise would have been eligible for compensation (Additional Compensation Decision, at paragraphs 36, 75, 76 and 152). [ 58 ] There remained some elements of the draft Compensation Framework that were not agreed upon.

(3) The

Definitions Decision [ table of contents ] [ 59 ] On May 28, 2020, the Tribunal clarified the terms used in the Compensation Decision including “essential service”, “service gap”, and “unreasonable delay”. The decision also affirmed that eligible family caregivers did not extend beyond parents or grandparents. The Tribunal directed the parties to adopt three

definitions to reflect its reasons in the finalization of the draft Compensation Framework.

(4) The Trusts Decision [ table of contents ] [ 60 ] The Tribunal held that compensation payable to minors and individuals lacking capacity is to be paid into a trust. The Tribunal again retained jurisdiction and was empowered to resolve any individual disputes over compensation entitlements.

(5) The Framework Decision [ table of contents ] [ 61 ] In this decision, the Tribunal addressed the process for compensation to First Nations children and beneficiaries as well as their parents or grandparents. The Tribunal approved the parties’ revised Compensation Framework and its accompanying schedules. The Compensation Framework was consistent with, and subordinate to, the Tribunal’s orders. One of the features of this decision was that victims could opt out of the compensation process. Within the present judicial review, this decision is being challenged under the Eligibility Decision. F.

Jordan’s Principle Eligibility Decisions [ table of contents ] [ 62 ] The rulings from 2016 to 2018, including the Merit Decision, did not expressly define the term “all First Nations children” in connection with eligibility under Jordan’s Principle. In February 2017, one of Canada’s witnesses said that status under the Indian Act was not a mandatory requirement for receipt of services under Jordan’s Principle. The following decisions contemplated whether non- status First Nations children are eligible for Jordan’s Principle.

(1) Interim Eligibility Decision [ table of contents ] [ 63 ] In February 2019, the Tribunal issued an interim ruling. The applicant was ordered to provide non-status First Nations children living off reserve who had urgent and/or life threatening needs with the services required to meet those needs, pursuant to Jordan’s Principle. The Tribunal ordered that this interim relief applied to

(1) First Nations children without Indian Act status who live off reserve but are recognized as members by their Nation, and (2) those who have urgent and/or life-threatening needs. This interim relief order applied until a full hearing decided the definition of a ‘First Nations child’ under Jordan’s Principle.

(2) Eligibility Decision: T-1559-20 [ table of contents ] [ 64 ] In May 2019, contrary to what was stated by one of Canada’s officials in February 2017 (see paragraph 62 above), the then Associate Deputy Minister Mr. Perron said that “since the beginning” Canada understood the Tribunal’s orders as applying only to children registered under the Indian Act . Canada ultimately broadened its approach to include non-status First Nations children who ordinarily reside on reserve.

However, the Caring Society remained concerned that this approach was still too narrow and did not comply with 2017 CHRT 14 , as it excludes children living off reserve. Accordingly, the Caring Society brought a motion for clarification and interim relief. [ 65 ] At the Eligibility Decision hearing the Caring Society noted that there were three categories of children that Canada agreed were within the scope of the 2017 CHRT 14 Order: (

a) A child, whether resident on or off reserve, with Indian Act status; (

b) A child, whether resident on or off reserve, who is eligible for Indian Act status; and (

c) A child, residing on or off reserve, covered by a First Nations self-government agreement or arrangement (Eligibility Decision, at paragraph 25). [ 66 ] The Caring Society also argued that Canada was improperly excluding the following categories: (

a) Children, residing on or off reserve whom a First Nations group, community or people recognizes as belonging to that group, community or people, in accordance with the customs or traditions of that First Nations group, community or people;

(

b) First Nations children, residing on or off reserve, who have lost their connection to their First Nations communities due to the operation of the Indian Residential Schools System, the Sixties Scoop, or discrimination within the FNCFS Program; and (

c) First Nations children, residing on or off reserve, who do not have Indian Act status and who are not eligible for Indian Act status, but have a parent/guardian with, or who is eligible for, Indian Act status (Eligibility Decision, at paragraph 26). [ 67 ] The applicant argued that it was not appropriate to expand the scope of Jordan’s Principle as requested by the Caring Society. The Caring Society’s request extended beyond the Complaint, the particulars, the evidence, and the Tribunal’s jurisdiction, as evidenced by the lack of consensus amongst the complainants.

It also submitted that it was complying with the orders by providing Jordan’s Principle eligibility to: registered First Nations children on or off reserve; First Nations children who are entitled to be registered; and Indigenous children, including non-status Indigenous children who are ordinarily resident on reserve (Eligibility Decision, at paragraph 73). [ 68 ] After reviewing submissions on self-government and self-determination, treaties, international obligations, and constitutional principles, the Tribunal found that it was not determining citizenship or membership of First Nations but only eligibility for Jordan’s Principle.

In so doing, it confirmed that the categories currently used by Canada were appropriate for the purposes of Jordan’s Principle. The Tribunal did find, however, that two new categories proposed by the Caring Society were within the scope of the Complaint and the evidence and thus eligible for Jordan’s Principle: (

a) First Nations children, without Indian status, who are recognized as citizens or members of their respective First Nations; and (

b) First Nations children, residing on or off reserve, who do not have Indian Act status and who are not eligible for Indian Act status, but have a parent/guardian with, or who is eligible for, Indian Act status. [ 69 ] The Tribunal refused to admit the third category (those who lost their connection to their First Nations communities due to the Indian Residential Schools System, the Sixties Scoop, discrimination within the FNCFS Program, or other reasons).

The Tribunal further stated that the applicant should let the admitted categories of First Nations children “through the door” (including those who were already being admitted by virtue of Canada’s expanded definition) and then assess case-by-case whether the actual provision of services would be consistent with substantive equality principles (Eligibility Decision, at paragraph 215).

At this point, Canada sought judicial review of this decision. (3) 2020 CHRT 36 [ table of contents ] [ 70 ] The parties made joint submissions on a proposed eligibility process for Jordan’s Principle and asked the Tribunal to approve the eligibility criteria. Accordingly, the Tribunal ordered that cases meeting any one of four following criteria are eligible for consideration under Jordan’s Principle: (

a) The child is registered or eligible to be registered under the Indian Act , as amended from time to time; (

b) The child has one parent/guardian who is registered or eligible to be registered under the Indian Act ; (

c) The child is recognized by their Nation for the purposes of Jordan’s Principle; or (

d) The child is ordinarily resident on reserve. [ 71 ] The Tribunal reconfirmed it would retain jurisdiction for the time being. The Tribunal committed that it would cede its jurisdiction once the parties confirm eligibility criteria and a mechanism for implementation is developed and effective.

(4) The Framework Decision [ table of contents ] [ 72 ] On February 12, 2021, the Tribunal approved the parties’ revised Compensation Framework and its accompanying schedules. This Compensation Framework is consistent with, and subordinate to, the Tribunal’s Orders. Under the Compensation Framework, an Administrator will oversee the compensation process and victims can opt out. IV. Issues and Standard of Review [ table of contents ] [ 73 ] Having reviewed the parties’ submissions and arguments, the issues in this matter are:

(1) Was the Compensation Decision reasonable ?

(2) Was the Eligibility Decision reasonable ?

(3) Was Canada denied procedural fairness ? [ 74 ] The parties agree that the appropriate standard of review is reasonableness ( Canada (Minister of Citizenship and Immigration) v. Vavilov , 2019 SCC 65 , [2019] 4 S.C.R. 653 ( Vavilov )), save for any submissions on procedural fairness. [ 75 ] The applicant submits that a reasonableness review is a “robust exercise” where both the reasoning process and the outcome must bear the hallmarks of reasonableness ( Vavilov , at paragraphs 12–13, 67, 72, 86, 99–100 and 104 ).

It submits that a failure to respect the statutory context or binding jurisprudence renders a decision unreasonable as does the failure to follow a logical line of reasoning or to properly consider the evidence ( Vavilov , at paragraphs 102 and 122–124 ). [ 76 ] The Caring Society submits that the applicant is actually proposing a correctness review. It submits that the Tribunal’s findings of fact are not open to review in the absence of special circumstances.

The Caring Society submits that the “robust exercise” referred to by the applicant finds “its starting point in the principle of judicial restraint and demonstrates a respect for the distinct role of

administrative decision makers.” The Caring Society cites Vavilov , at paragraphs 5 and 74 , in support of this position. Accordingly, this Court should take a position of restraint and pay attention to the Tribunal’s expertise in light of a lengthy, complex case comprised of mostly uncontested rulings ( O’Grady v. Bell Canada , 2020 FC 535 , 322 A.C.W.S. (3d) 603, at paragraph 31 ). [ 77 ] The AFN states that the Court should accord respectful deference to the factual and legal determinations of the Tribunal given the lengthy process and numerous rulings and orders. The AFN also asks this Court to accept the Tribunal’s

interpretation of the broad remedial provisions of the CHRA . It submits that an administrative decision maker has a large permissible space for acceptable decision- making where: the evidence before that decision maker permits a number of outcomes; the decision maker relies on its expertise and knowledge; and where there is little in the way of constraining legislative language ( Vavilov , at paragraphs 31, 111–114 and 125–126 ; Canada (Attorney General) v. Zalys , 2020 FCA 81 , [2021] 1 F.C.R. D-17 , at paragraph 79 ). [ 78 ] The Commission also submits that a reasonableness review starts from a position of judicial restraint. Accordi

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