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Five questions: Canada’s Application for Judicial Review in the Caring Society case

Updated: Oct 29, 2019

Note: This commentary only provides a general overview with some discussion which does not contain legal advice and should not be construed as such. The record of this human rights complaint is vast and it is not covered in its entirety. Please refer to the numerous decisions on CanLII and the Caring Society's website for more information.

In brief:

  • The Caring Society, together with the Assembly of First Nations*, filed a human rights claim, alleging Canada discriminated against First Nations children and their families on reserve as a result of significantly underfunding child welfare services. This underfunding resulted in unnecessary removal of children from their homes or gaps/delays in services under Jordan's Principle.

  • The tribunal** found the complaint substantiated. The tribunal had outstanding questions on the question of compensation and indicated it would address those outstanding questions at a later time. This was in 2016.

  • The tribunal awarded $40,000 (total limit allowed under its statute) in damages for the wilful and reckless discriminatory conduct and for pain and suffering from the discriminatory conduct, three years after the 2016 decision and in 2019.

  • Canada filed an application for judicial review (JR) following the 2019 decision. Canada also asked for a stay of the 2019 order pending outcome of the JR. Canada argues, among other things, it will be irreparably harmed by having to pay damages if the tribunal did not have jurisdiction to award damages.

  • Canada alleges the tribunal did not have jurisdiction to award such damages because, generally speaking, there is no identifiable harm or put differently, identifiable children experiencing the harm. In essence, Canada is asking for vulnerable children and their families to "out" themselves in a public process or to access their remedies, likely putting the children and families in harm's way. See comments under "Additional Comments" below.

  • Canada likely filed for JR when it did because it would have not likely met the test to ask for an extension after the deadline. The deadline fell on a day during federal election. Specifically, Canada would likely not show a continuing intention to pursue the matter or that the interests of justice would be served if it filed after the 30-day deadline.

*Please note that there are two interested parties that provided assistance to the tribunal in understanding the relevance of certain evidence and particularities of certain circumstances (Source).

**Please note that I refer to the panel members of the tribunal that determined the matter as the "tribunal" for ease of reference throughout.

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The Caring Society Case

What is the Caring Society case?

The Caring Society is short for the First Nations Child & Family Caring Society. They are the applicants in a Canadian human rights tribunal decision against Canada (AG, for the Minister of Indian and Northern Affairs Canada, as they were then-known). The Caring Society, together with the Assembly of First Nations, alleged discrimination in providing child and family services, including its management of same (the “Program”), to First Nations on reserve and in the Yukon, on the basis of race and/or national/ethnic origin, by providing inequitable and insufficient funding for same. Specifically, the applicants alleged that the funding formula used by Canada to fund First Nations child and family services contributes to inequitable funding levels of child welfare services being provided to those on reserves compared to other children off reserve.

The complaint focuses on a series of cost-sharing agreements with Ontario and other agreements with British Columbia and Alberta to provide child and family services to certain First Nations reserves with a similar agreement in the Yukon. Provision of such services in Northwest Territories and Nunavut are not subject to the complaint.

The Program was developed to address concerns over lack of child and family services provided by the provinces to First Nations reserves. Provinces were reluctant to provide services over financial concerns and given Canada’s jurisdiction over same (Constitution Act, 1867, section 91(24)). In 1965, Canada entered into the agreement with Ontario to extend services to First Nations children and families on reserve. Provinces raised concerns over child and family services in 1970s and early 1980s. This resulted in creation of community-specific agencies. Canada funded these agencies through ad hoc agreements. In 1986, Canada put a moratorium on funding these agencies which remained in place until 1990 with the implementation of the Program.

The tribunal held that the history and objectives of the Program, among related agreements, ensured First Nations children and families on reserve and in the Yukon received such services comparable to other provincial residents in similar circumstances. As a result of Canada’s design, management and control of the Program, including its funding formulas and related agreements, the tribunal held that such resulted in denials of services and various other adverse impacts for First Nations children and families on reserve. Such adverse impacts include:

  • Inadequate fixed funding for operations and prevention costs, preventing agencies to provide child welfare services (especially culturally relevant services) and providing incentives to force children into care because of the structure and implementation of the funding formula

  • Incentives in the funding formula to take children into care resulted in continued discriminatory practices and thus, perpetuating adverse impacts

  • Failure to adjust funding levels since 1995 and failure to account for inflation/cost of living since its implementation

  • Failure to update and ensure on-reserve communities comply with Ontario’s Child and Family Services Act

  • Failure to coordinate the Program and other related agreements with other federal departments and governmental programs for First Nations on reserves, resulting in service gaps, delays and denials for First Nations children and families

  • Narrow definition and inadequate implementation of Jordan’s Principle, resulting in service gaps, delays and denials for First Nations children

The tribunal ordered that Canada cease the discriminatory practices, and reform the Program and the original 1965 agreement to reflect the tribunal’s various findings. The tribunal further held that Canada “benefited for many years from the money it failed to devote to the provision of equal child and family services for First Nations children.”

Why can’t Indigenous people take care of it themselves?

The issue is not whether Indigenous people can take care of the issue themselves. The issue is whether Canada discriminated against First Nations children and family on reserve and in the Yukon on the basis of race and/or national/ethnic origin by providing inequitable and insufficient funding for those services. Having weighed all the evidence on a balance of probabilities, the tribunal found the complaint substantiated. On a whole, the evidence indicated the worst case of discrimination including Canada's own and continuing awareness of its own discriminatory conduct.

What is this order for $40,000?

Under the Act, the tribunal may order compensation not exceeding $20,000 to the victim for any pain and suffering that the victim experienced as a result of the discriminatory practices. The tribunal may also order special compensation under the Act if the person engages in discriminatory practices “wilfully or recklessly”. So, in total, the tribunal may order $40,000. This $40,000 is reserved for the “worst cases.” Victims, from the tribunal’s decision, include children and families (parents or grandparents) affected by the discriminatory practices but does not include those caregivers who inflicted abuse on children.

Under the Act, the tribunal may consider evidence or information that it sees fit, whether or not that evidence or information is or would be admissible in court. This includes the range of reports it reviewed that established the discriminatory funding regimes and related agreements. Such evidence may include evidence by affidavit or oath, similar to the expert evidence the tribunal considered.

The particulars of the compensation award is in light of the continued discriminatory and the fact it would be unreasonable to require vulnerable children to testify on the harms done to them as a result of Canada’s discriminatory conduct. In awarding the $40,000, the tribunal rejected much of Canada’s arguments that the tribunal did not have jurisdiction (or authority under the Act) to award such compensation to groups representing the interests of children, but no specific individual children. Further, the tribunal rejected Canada’s position that there was no evidence of harm to the victims.

The tribunal ordered such to avoid a case-by-case analysis, relying on the analogous Indian Residential School Settlement Agreement’s common experience payment. However, the tribunal did not make a final determination on the compensation process, and allowed the parties to discuss possible options and return to the tribunal with proposals if any by December 10, 2019.

What is a judicial review and why would someone file an application for judicial review?

Judicial review is a process where a court reviews a lower body’s decision and/or decision-making process. Judicial review ensures that decision makers do not abuse their power and offers limited recourse when power is misapplied.

The federal court has jurisdiction to review decisions of any federal board, commission or other tribunal. This includes the Canadian Human Rights Tribunal. The grounds for judicial review are errors of fact, errors of law and errors of mixed fact and law. Examples of errors in law include breaching procedural fairness, acting without jurisdiction, or erroneous finding of fact, among other things.

An application for judicial review must be applied within 30 days of the original decision. This is a statutory deadline. However, a party may file for an extension following the deadline, requesting an extension of the deadline. The request for an extension of the deadline is high and it considers: (1) whether the party seeking the extension has a continuing intention to pursue the matter, (2) whether the position taken by the party seeking the extension of time has some merit, (3) whether the other party is prejudiced by the delay, and (4) whether there is a reasonable explanation for the delay. Analysis of the factors depend on the circumstances of each case. The overriding decision is whether the interests of justice will be served.

The federal court may grant an extension when, for example, a potential outcome affects only a small group of people and the decision being challenged is narrow, concerning particular actions of people over a certain period of time. Conversely, an order refusing to grant an extension may include one that impacts many members of the public and certainty or finality is heightened. See, for example, Canada (AG) v Larkman, 2012 FAC 204. Parties cannot consent to extend a statutorily-imposed deadline. It is likely Canada filed because it would have not met the test for an extension. Namely, it is likely that Canada did not have a continued intention to pursue the matter and that justice would not be served if an extension was allowed (i.e., Canada was causing further delay).

Why did Canada file an application for judicial review?

Generally, Canada sought to have the tribunal’s compensation decision set aside and an order for monetary compensation, or alternatively, set aside this decision and remit it back to the tribunal for determination in accordance with the directions of the court. Canada also asked for a stay of the 2019 order pending outcome of the judicial review.

A stay requires Canada to show that it raised serious issues to be tried; that it will suffer irreparable harm absent a stay; and that the balance of convenience lies in Canada’s favour.

On serious issues, Canada alleges that the individual remedy was not responsive to the original systemic complaint and the order for compensation is disproportionate. This is despite the evidence Canada engaged in discriminatory conduct that adversely impacted First Nations children and their families.

On irreparable harm, Canada alleges the potential conflict due to simultaneous proceedings before the Tribunal and Federal Court; the improper devotion of resources, namely money; and the fact Canada is precluded from recovering money paid out to First Nations children and their caregivers on reserve in the event of a conflicting decision on review. In other words, Canada is/was worried about paying money that it can’t recover that it paid out if the tribunal is wrong (so to speak) in its decision. This assumes that Canada will pay out such money before December 2019.

On the balance of convenience, Canada alleges that refusing to grant the review would be binding in Canada unless appeal is sought in the federal court of appeal and in the absence of a stay, the resources (namely, money) that may be lost if there are potentially conflicting judgments if Canada complies with the orders.

Additional Comments:

The application filed by Canada assumes that it will implement such orders in a timely and orderly fashion, and before December 2019. Such is not true based on the tribunal’s decision (Also, let's be real here. It’s Canada.). Canada further acknowledges that it must respect the orders but effectively challenges same. Further, the balance of convenience only lies with Canada because it created its own hardship. This hardship being the loss of billions of dollars for discriminatory funding regimes over several decades it knew about. Having created your own hardship isn’t the same as irreparable harm to establish the balance of convenience. Canada made its own bed.

In addition to the above, challenging the 2019 order requires at least some individuals to prove their harm on an individual basis. This would in effect cause more harm, given the adversarial process embedded in these processes and procedures. Canada’s challenge of this order ignores that many First Nations children and families may experience targeted harassment and discrimination in their community, jeopardizing their privacy and safety, for having to individually prove the harm in a public process.

For example, having lived and worked in Indigenous communities with many at-risk youth and children, we would have to be cautious when taking photos or documenting our engagement with such communities. This is because such individuals could be outed in terms of their location if care was not taken. Thus, their location would be kept private for many reasons including their own safety from potential abusers. Canada is basically asking vulnerable parties to out themselves in order to participate in a public process or receive remedies. This is similar to the holding by the Supreme Court of Canada in allowing a public advocacy organization to advance arguments on behalf of its constituency who included sex workers.

Briefly, in Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society (SWUAV), the issue was whether SWUAV could advance arguments on behalf of its constituents, primarily Indigenous sex workers. The SCC noted that the lower court judge did not understand how the sex workers were willing to be witnesses but not plaintiffs. Justice Cromwell noted the following:

However, being a witness and a party are two very different things. In this case, the record shows that there were no sex workers in the Downtown Eastside neighbourhood of Vancouver willing to bring a comprehensive challenge forward. They feared loss of privacy and safety and increased violence by clients. Also, their spouses, friends, family members and/or members of their community may not know that they are or were involved in sex work or that they are or were drug users. They have children that they fear will be removed by child protection authorities. Finally, bringing such challenge, they fear, may limit their current or future education or employment opportunities (para 71).

Challenging the tribunal’s 2019 order would have a similar effect on the children’s and their families’ safety and privacy: Outing them in order to participate in a public process or receive remedies.

With this being said, Canada argues in its application that children who are removed for valid reasons (i.e., domestic violence) would benefit from the compensation, and thus, ignoring the tribunal’s 2019 order that compensation should not apply to adults who inflict abuse. From my perspective, the analogous application of the compensation fund to Indian Residential School survivors is the most appropriate order given the vulnerability, safety and privacy of First Nations children and their families.



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