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Digest: Brown v. Canada (Attorney General)


[2017] O.J. No. 692

Ontario Superior Court of Justice
E.P. Belobaba J.


February 14, 2017.
(89 paras.)


   Aboriginal law — Aboriginal status and rights — Aboriginal status — Loss of status — Through adoption — Duties of the Crown — Fair dealing and reconciliation — Consultation and accommodation — Government benefits, services and programs — Civil actions and liabilities — Motion by Brown, representative of 16,000 on-reserve aboriginal children removed from homes and placed with non-aboriginal foster and adoptive parents between 1965 and 1984, for summary judgment regarding Canada's liability for harm resulting from loss of aboriginal identity, allowed — Canada breached duty to consult First Nations about how to preserve aboriginal identity of children removed from reserves in implementation of 1965 Agreement — Common law duty of care existed by virtue of Agreement itself as well as special relationship between Canada and First Nations peoples — Matter ordered to proceed to damages assessment stage.

   Civil litigation — Civil procedure — Parties — Class or representative actions — Common interests and issues — Motion by Brown, representative of 16,000 on-reserve aboriginal children removed from homes and placed with non-aboriginal foster and adoptive parents between 1965 and 1984, for summary judgment regarding Canada's liability for harm resulting from loss of aboriginal identity, allowed — Canada breached duty to consult First Nations about how to preserve aboriginal identity of children removed from reserves in implementation of 1965 Agreement — Common law duty of care existed by virtue of Agreement itself as well as special relationship between Canada and First Nations peoples — Matter ordered to proceed to damages assessment stage — Class Proceedings Act, 1992.

   Family law — Child protection — Protective agencies and institutions — Supervision or guardianship — Care and custody of children — Civil actions and liabilities — Motion by Brown, representative of 16,000 on-reserve aboriginal children removed from homes and placed with non-aboriginal foster and adoptive parents between 1965 and 1984, for summary judgment regarding Canada's liability for harm resulting from loss of aboriginal identity, allowed — Canada breached duty to consult First Nations about how to preserve aboriginal identity of children removed from reserves in implementation of 1965 Agreement — Common law duty of care existed by virtue of Agreement itself as well as special relationship between Canada and First Nations peoples — Matter ordered to proceed to damages assessment stage.

   Motion by Brown for summary judgment on the issue of Canada's liability for harm resulting from the Sixties Scoop, a government policy by way of which thousands of aboriginal children living on reserves in Ontario were apprehended and removed from their families and placed in non-aboriginal foster homes or adopted by non-aboriginal parents, between 1965 and 1984. The policy came about when Canada entered into the Canada-Ontario Welfare Services Agreement in 1965, which extended 18 provincial welfare programs to on-reserve Indians in Ontario. There was no dispute that great harm was done to the children who lost contact with their families, their language and their culture, as well as their aboriginal families and communities. The loss of their aboriginal identities resulted in many children suffering from psychiatric disorders, substance abuse, unemployment, violence and numerous suicides. Only one province, Manitoba, issued a formal apology. The common question posed in the present litigation, which covered approximately 16,000 children removed from Ontario reserves, was whether Canada had a fiduciary or common law duty to take reasonable steps to ensure children affected by the Sixties Scoop did not lose their aboriginal identity, and if so, whether Canada breached its duty.

   HELD: Motion allowed. Canada had a common law duty of care to take reasonable steps to prevent on-reserve Indian children in Ontario, placed in the care of non-aboriginal foster or adoptive parents, from losing their identity, and Canada breached that duty. The case was ordered to proceed to the damages assessment stage. No Indian bands were ever consulted before provincial child welfare services were extended to the reserves, and no bands ever provided their signified concurrence. By failing to consult the bands, Canada breached its own policy. Whether or not Canada could have foreseen the harm caused by the Sixties Scoop, it ought to have recognized the existential importance First Nations peoples placed on protecting and preserving their distinctive cultures and traditions. Canada should have known that the adoption of aboriginal children by non-aboriginal parents constituted a serious intrusion into the Indian family relationship that could obliterate the Indian family and destroy Indian status. While a fiduciary duty to the class members was not established, Brown made out a case for finding Canada had a common law duty to the class members which was breached. The evidence did not demonstrate that Canada assumed a degree of discretionary control over the protection and preservation of aboriginal identity that it amounted to a direct administration of that interest. However, by drafting the 1965 Agreement and implementing it without properly consulting the bands, Canada breached its obligations under the Agreement and failed to meet the duty of care required by virtue of the pre-existing special relationship between Canada and its First Nations peoples, based on both history and law and its obligation to consult about matters of existential importance.