The wrong precedent

Ottawa is arguing that it cannot, as it appeals a Canadian Human Rights Tribunal order to compensate First Nations children and caregivers for the inadequacies of the child and family services provided to them. The CHRT ruled in 2016 that the federal government discriminated against First Nations children by underfunding on-reserve child welfare services. In 2019, the tribunal awarded up to $40,000 to children who had been made wards of the state. The government says it is not opposed to compensation per se, and is actively negotiating a solution – only that the CHRT exceeded its statutory authority in making the orders that it did.

"Canada does not dispute that its child and family services funding system was broken and needed immediate and substantial reform," the government's factum to the Federal Court reads. "The issue here is whether the children should receive compensation in a Tribunal proceeding that focused on systemic discrimination, rather than in a class action in this Court where the rules better protect the interests of victims."

The government contends that no individuals were party to the litigation, and furthermore, the CHRT's decision defined the definition of "First Nations child" as including those who did not live on reserves and did not have Indian Act status, which they say is an issue of identity that First Nations themselves have not yet decided.

University of Ottawa law professor Paul Daly agrees that the government is right to have concerns that the CHRT doesn't have a roving commission of inquiry to remedy problems as it sees fit.

"What the government is saying is that [the CHRT] has to act within the procedures it has set for itself, and if it's dealing with a systemic discrimination claim, it can't turn around then and use that as a platform for giving remedies to individuals," says Daly.

Daly points to the 2012 ruling by the Supreme Court of Canada in Moore v. British Columbia (Education), in which the CHRT found there to be both discrimination against a child who has dyslexia and systemic discrimination against severe learning disabilities students in general. It ordered a range of systemic remedies, which the Supreme Court ruled the CHRT could not do because it was not a Royal Commission.

"This case is the flip-side of that – that you can't give individual remedies for a systemic issue," says Daly. "Everyone is arguing that it's systemic; it can't turn around and say that it's about remedying harm suffered by individuals. How significant is this? There is a point of principle there about when the federal government is a respondent before the Canadian Human Rights Tribunal."

The government is concerned because any time before it goes before the tribunal in the future, it will need to know what it is getting into, says Daly. And government lawyers need to give ministers advice on what the outcomes are going to be.

"If tribunals are using individual complaints to deal with systemic matters, or using systemic matters to deal with individual complaints, that makes it difficult for the federal government to run its operations effectively," says Daly. "Even if it really wants to comply, as in this case, there is more unpredictability if the tribunal is not following the procedural routes it has set out for itself."

Anne Levesque, also a law professor at the University of Ottawa, serves as counsel for the First Nations Child and Family Caring Society. She counters that the CHRT didn't overreach its jurisdiction because it ordered human rights damages, which is one of many types of available compensation under the Human Rights Act.

"That is compensation for the notional infringement of dignity that is presumed to be suffered when you experience discrimination," says Levesque. "It recognizes that discrimination is a social wrong, and we need to put a monetary value to that."

Levesque also notes that the CHRT can make orders for special compensation, which are equivalent to punitive damages in torts, where discrimination is wilful and reckless.

"The tribunal found that Canada knew its child and welfare program and funding structures were harming First Nations kids, and despite that, it continued to fail to act, and continued to violate the Human Rights Act," says Levesque. "I think this is completely consistent with the purpose of the Act, which is to eradicate discrimination, and it puts a cost to discrimination."

In its factum, the government disputes the "wilful and reckless" description, saying that such a finding is unprecedented and an example of how the CHRT paid no regard to the principle of proportionality, and that it was a striking departure from established precedents.

Levesque counters that this ruling is not about the government's intent, but that it turned a blind eye to the discriminatory impacts of its practices.

"For decades, Canada has known that its child welfare funding did not compare to what people were getting off-reserve, that it was having harmful impacts on First Nations kids and was incentivizing their removal from their homes," says Levesque. "If there is ever one example of wilful and reckless discrimination, this is it. The tribunal ordered $20,000 to every First Nations child and caregiver in light of that [Ed. Note: for the wilful and reckless discrimination portion of the global award]."

Another of the government's arguments is that the CHRT treated this case as a class-action without applying the class-action principles that the Federal Court would apply, including safeguards in proceedings.

"You can immediately see why a government as an institutional respondent would be concerned that about the possibility of a class-action proceeding without safeguards, and that this could be used in other cases before the Human Rights Tribunal, or by other tribunals," says Daly.

On the other hand, a tribunal is not bound to apply the same rules and procedures as a court does, Daly says. In principle, it can develop a class-action-type procedure if it sees it as the best way of fulfilling its mandate, which means it would have to be argued in Federal Court.

Objections to the class action are a red herring, says Levesque. "It was a systemic claim," she argues. "If Canada was of the view that the tribunal didn't have jurisdiction to hear cases involving large groups of victims, it should have argued that in the hearings on the merits."

Mary Birdsell, executive director of Justice for Children and Youth in Toronto, says the amount of money spent litigating this issue could have been better spent improving the lives of First Nations children.

"I understand that one of their beefs is that the tribunal by their persistent oversight has created an unending piece of litigation, but it's also part of a broader unending resolution of a problem," says Birdsell. "From an equality-seeking position on behalf of children, from an organization that is interested in the active pursuit of truth and reconciliation, the government's ongoing litigation doesn't sit well with that other aspirational element of Canadian government and Indigenous governments' interaction."