Wiyasiwewin Mikiwahp Native Law Centre Case Watch
Motion granted for summary judgment of the certified common issue of the Sixties Scoop class action. Liability of the federal government was found in favour of the class members.
(This is the first of three consecutive Wiyasiwewin Mikiwahp Native Law Centre Case Watch Blog posts regarding the Sixties Scoop Class Action judgements.)
The Court, and both parties, agree that the common issue should be summarily decided. Brown v. Canada (AG), 2010 ONSC 3095 was certified as a class proceeding. The certified common issue, which focused on the liability of Canada, was answered in favour of the class members. The class action has proceeded to the damages stage.
The Sixties Scoop happened and great harm was done. There is no dispute about the fact that thousands of Aboriginal children living on reserves in Ontario were apprehended and removed from their families by provincial child welfare authorities over the course of the class period and were placed in non-Aboriginal foster homes or adopted by non-Aboriginal parents. It was Patrick Johnson, the author of a 1983 research study on “Native Children and the Child Welfare System” that coined the name “Sixties Scoop.” He took this phrase from the words of a British Columbia child-protection worker who noted that provincial social workers “would literally scoop children from reserves on the slightest pretext.” There is uncontroverted evidence of the impact on the removed Aboriginal children. The loss of their Aboriginal identity left the children fundamentally disoriented, with a reduced ability to lead healthy and fulfilling lives. The issue before the Court was 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.
Canada entered into the Canada-Ontario Welfare Services Agreement (“the 1965 Agreement”) in December 1, 1965 to December 31, 1984 (19 years), and is at the core of the common issue. The focus of the common issue is the action or inaction of Canada (not Ontario) and only on the time-period after the Aboriginal children had been placed in non-Aboriginal foster or adoptive homes. Therefore, the common issue asks whether Canada had and breached any fiduciary or common law duties to take reasonable steps in the post-placement period to prevent the class members’ loss of Aboriginal identity.
The class definition includes the estimated 16,000 Aboriginal children who were removed from reserves in Ontario and placed in non-Aboriginal foster homes or adoptive homes. The stated goal of the 1965 Agreement was to “make available to the Indians in the province the full range of provincial welfare programs” and also reflected Canada’s concern that the extension of the provincial laws would respect and accommodate the special culture and traditions of the First Nations peoples living on the reserves, including their children. Ontario’s undertaking to extend the provincial welfare programs as set out in section 2(1) was made “subject to (2).” Sub-section 2(2) of the Agreement said “[n]o provincial welfare program shall be extended to any Indian Band in the Province unless that Band has been consulted by Canada or jointly by Canada and by Ontario and has signified its concurrence.” This section was intended to include explanations, discussions and accommodations. It was meant to be a genuinely meaningful provision.
No Indian Bands were ever consulted before provincial child welfare services were extended to the reserves. The Court found that by failing to consult the Indian Bands, Canada breached s 2(2) of the 1965 Agreement. Nothing in s 2(2) explicitly obliged Canada to actually undertake the consultations referred, however, the undertaking to do so can be implied from the language and context of the provision. A contractual term can be implied if it is a contractual term that must have been intended by the parties and is necessary or obvious in light of the particular circumstances of the agreement. If Canada had honoured its obligation to consult the Indian Bands under s 2(2) of the 1965 Agreement, the information about the child’s Aboriginal identity and culture and the available federal benefits would have been provided years sooner. Canada failed to take reasonable steps to prevent the loss of Aboriginal identity in the post-placement period by failing, at a minimum, to provide to both foster and adoptive parents the kind of information that was finally provided in 1980 and thereafter.
The Court found on the applicable law that Canada’s liability cannot be established under fiduciary law but can be established under the common law. In the Court’s view, s 2(2) and the obligation to consult created a common law duty of care and provided a basis in tort for the class members’ claims. The common law duty of care arose 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 (and by extension, Indians living on the reserves, including children). 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.