May 15, 2017

Case Brief: Brown v. Canada (Attorney General), 2017 ONSC 251

Brown v. Canada (Attorney General), 2017 ONSC 251 (CanLII)

Facts: Representative plaintiff brings motion for summary judgment asking certified common issue be answered in favour of class members. No dispute about fact that thousands of Aboriginal children living on-reserve were apprehended and removed from their families by provincial child welfare authorities from 1965 to 1984, and placed in non-Aboriginal foster homes, or adopted by non-Aboriginal parents. Also, no dispute that this caused great harm: loss of Aboriginal language, culture and identity. Class certified in 2010 ONSC 3095. Two appeals followed, 2011 ONSC 7712 (Ont.Div.Ct.), and 2013 ONCA 18 (ONCA). Matter re-heard. Class re-certified in 2013 ONSC 5637. Appeal granted, 2014 ONSC 1583 (ONCA). Appeal denied, certification affirmed, 2014 ONSC 6967 (Ont.Div.Ct.).

Issue: Whether Canada can be found liable in law for the class members’ loss of Aboriginal identity after they were placed in non-Aboriginal foster and adoptive homes?

Holding: When Canada entered into the 1965 Agreement and over the years of the class period, Canada had a common-law duty of care to take reasonable steps to prevent on-reserve Indian children in Ontario, who had been placed in the care of non-Aboriginal foster or adoptive parents, from losing their Aboriginal identity. Canada breached this common-law duty of care.

Reasoning: Per Edward P. Belobaba:
The common issue focuses on three things: (i) Ontario 1965 Agreement, (ii) action/inaction of Canada (not Ontario), and (iii) the time period after the Aboriginal children had been placed in non-Aboriginal foster or adoptive homes. The class period covers 19 years, from the time when Canada entered the 1965 Agreement (Dec 1965), to the time when Ontario amended its child welfare legislation to recognize for the first time that “Aboriginality” should be a factor to be considered in child protection and placement (Dec 1984). The stated goal of the 1965 Agreement was to make available to the Indians in the province the full range of provincial welfare programs. Canada could have enacted its own child protection statute, but didn’t. Also, Ontario could have extended its statute to apply on-reserve (s. 88, Indian Act), but didn’t.
Instead, Canada chose to fund the provincial extension as an exercise of its spending power, whereby Canada reimbursed Ontario for the per capita cost of the provincial programs so extended, in accordance with a formula set out in the 1965 Agreement. More than just a federal spending agreement, the 1965 Agreement reflected Canada’s concern that the extension of provincial laws would respect and accommodate the special culture and traditions of the First Nations people living on-reserve, including their children. Ontario’s undertaking to provide provincial welfare programs on-reserve was subject to Canada’s obligation to fully consult with the Indian Bands and secure their concurrence, because it was viewed that forcing the provincial services on the Indian peoples against their wishes would be a serious breach of faith. Canada was prepared to exercise its spending power to fund the extension of provincial programs to reserves but only with the advice and consent of every affected Indian Band to every one of the 18 provincial programs that were being so extended. Canada’s obligation to consult was intended to include explanations, discussions, and accommodations, and it was meant to be a genuinely meaningful provision that applied to all 18 provincial programs, including child welfare services.
However, no Indian Bands were ever consulted and the full reach of the provincial child welfare regime was extended to all reserves without any consultation or concurrence on the part of any Indian Band. Thus, Canada breached the 1965 Agreement, specifically s. 2(2), by failing to consult the Indian Bands. The evidence showed that if the Indian Bands had been consulted they would have suggested that some contact be maintained with the removed children during the post-placement period so that they would know that they were loved and “could always come home”; and that the “white care-givers” be provided with information about the removed child’s Indian Band, culture and traditions and the various federal educational and financial benefits that were available to the Indian children. Additionally, had the Indian Band’s been consulted, it follows that it would have been far less likely that the children of the Sixties Scoop would have suffered a complete loss of their Aboriginal identity. Finally, if Canada had honoured it obligation to consult the Indian Bands, the information about the child’s Aboriginal identity and culture and the available federal benefits would have been provided years sooner (than the 1980 booklet, Adoption and the Indian Child, that encouraged adoptive parents to inform their adopted Indian children of their heritage and rights) and would probably would have been provided, via the Children’s Aid Society, to both foster and adoptive parents (not just adoptive parents)


Fiduciary Duty of Care: A fiduciary duty can only be imposed on Federal Crown in two ways. First, a duty may arise as a result of the Crown’s assumption of discretionary control over a specific Aboriginal interest. The interest must be a communal Aboriginal interest in land that is integral to the nature of the Aboriginal community and their relationship to the land, and must be predicated on historic use and occupation. Second, in cases other than ones involving lands of historic use or occupation, a fiduciary duty may arise if three elements are present (i) an undertaking by the alleged fiduciary to act in the best interests of the alleged beneficiary, (ii) a defined person or class of persons vulnerable to a fiduciary’s control, and (iii) a legal or substantial practical interest of the beneficiary that stands to be adversely affected by the alleged fiduciary’s exercise of discretion or control. The degree of discretionary control must be “equivalent or analogous to direct administration of that interest”.

Common Law Duty of Care:
(i) Section 2(2) of the 1965 Agreement: This section creates a common-law duty of care and provides a basis in tort for the class members’ claims. A common-law duty of care arises out of the fact that the 1965 Agreement is analogous to a third-party beneficiary agreement. Canada undertook the obligation to consult in order to benefit Indian Bands. The Indian Bands are not parties to the Agreement. But, a tort duty can be imposed on Canada as a contracting party in these circumstances.
(ii) Anns-Cooper Test:
First Stage: Do the facts disclose a relationship of proximity in which failure to take reasonable care might foreseeably cause loss or harm to the plaintiff? If “yes”, then a prima facie duty of care exists, then proceed to the second stage.
Second Stage: Are there any residual policy reasons why this prima facie duty of care should not be recognized?


Fiduciary Duty of Care: A fiduciary duty of care is cannot be established on the evidence. Particularly, regarding the third element, there is no evidence that Canada undertook or assumed such a degree of discretionary control over the protection and preservation of aboriginal identity that it amounted to a “direct administration of that interest”. Fiduciary duty has a meaning as a legal term and should not be used “as a conclusion to justify a result”.

Common Law Duty of Care:
(i) Section 2(2) of the 1965 Agreement: The claim in tort flows directly from the fact that at the time of entering the 1965 Agreement, Canada assumed and breached the obligation to consult with the third party Indian Bands. The law attaches a duty of care in circumstances where there is not only a unique and pre-existing “special relationship; based on both history and law but a clear obligation to consult the beneficiaries about matters of existential importance. Although it could be argued the third-party beneficiaries were the Indian Bands, not the apprehended children, this argument is not likely to withstand scrutiny in the First Nations context where notions of good faith, political trust and honourable conduct are meant to be taken seriously, and where Canada’s breach of the 1965 Agreement was so flagrant.
(ii) Anns-Cooper Test:
First Stage: Under the first stage, a prima facie duty of care is clearly established on the evidence and because it is beyond dispute that a special and long-standing historical and constitutional relationship exists between Canada and Aboriginal peoples that has evolved into a unique and important fiduciary relationship. It is also beyond dispute that given such close and trust-like proximity it was foreseeable that a failure on Canada’s part to take reasonable care might cause loss or harm to Aboriginal peoples, including their children. Also, during the class period in question, Canada accepted its care and welfare of the Aboriginal peoples was a “political trust of the highest obligation”, and there can be no doubt that the Aboriginal peoples concern to protect and preserve their Aboriginal identity was and remains an interest of the highest importance.
Second Stage: Canada has not advanced a credible policy consideration that would negate the common-law duty of care. Therefore, a common-law duty to take steps to prevent Aboriginal children who were placed in the care of non-Aboriginal foster or adoptive parents from losing their Aboriginal identity is established.