In January 2016, the Canadian Human Rights Tribunal released one of the most significant decisions in its history: First Nations Child and Family Caring Society of Canada et al. v. Attorney General of Canada (for the Minister of Indian and Northern Affairs Canada) (“FNCFCS” or “Caring Society”). The non-profit organization that filed the complaint, the Caring Society, and the Assembly of First Nations alleged inadequate funding for First Nations children on-reserve and in the Yukon, and that the services funded by the federal government are discriminatory under section 5 of the Canadian Human Rights Act (CHRA).
In doing so, the world changed not only for tens of thousands of First Nations children, but also for many other Canadians who believe that human rights law – and the Canadian Human Rights Act in particular – can be used to transform Canadian society.
After almost ten years of litigation and 72 days of hearings, the Tribunal decided that the federal government had failed to fund child and welfare services adequately, and further held that First Nations children do not have access to appropriate or timely services, amounting to discrimination under the CHRA.
Remedial orders were deferred pending the development of an appropriate framework by federal, provincial/territorial and First Nations leaders. Until this decision, the relationship between the CHRA and the Indian Act had been unclear. The Tribunal decision created a legal opening for human rights law to support equality claims from First Nations peoples.
The case also decided that when the federal government decides to fulfill its legal obligations not through legislation but through programs, policy and spending, that it must respect equality principles.
In February 2016, the Minister of Justice indicated that she would not appeal.
In 2007, the Caring Society and the Assembly of First Nations filed a discrimination complaint with the Canadian Human Rights Commission (CHRC) against Indian and Northern Affairs Canada (INAC). The department was subsequently renamed Aboriginal Affairs and Northern Development Canada (AANDC). The complaint alleged that INAC had underfunded family services for First Nations children for many years, resulting in inadequate services that discriminated on the grounds of race and/or national or ethnic origin.
The Tribunal decision contains an extensive analysis of Canadian funding formulas delivered by more than one hundred Caring Society agencies, as well as the many financial and logistical difficulties that the agencies faced. The principal funding formula was known as Directive 20-1, which had not been updated since the 1990s and out of line with provincial legislation and child welfare standards.
By 2005, several reports and studies had been released, pointing to the troubling consequences of underfunding for First Nations children on-reserve and in the Yukon. The first report, the Joint National Policy Review of First Nations Child and Family Services (NPR) (McDonald and Ladd, 2000) was followed by three subsequent reports known as Wen: de. The second report found that:
• About three times more First Nations children are in state care than at the height of residential schools in the 1940s (Wen: de Report Two, p. 8).
• Aboriginal children are more than twice as likely to be investigated as non-Aboriginal children (Wen: de Report Two, p. 15).
• Once investigated, cases involving Aboriginal children are more likely to be substantiated and more likely to require on-going child welfare services (Wen: de Report Two, p. 15).
• Aboriginal children are more than twice as likely to be placed in out-of-home care, and more likely to be brought to child welfare court (Wen: de Report Two, p. 15).
The Tribunal further noted research from Wen: de Report Two to the effect that profiles of Aboriginal families differ dramatically from non-Aboriginal families (Wen: de Report Two, p. 15) and that situations of neglect are often the product of poverty, inadequate housing and parental substance abuse.
Inequitable funding arrangements were attributed to: the lack of adjustment in the funding arrangements for cost-of-living increases; the lack of periodic reconciliation for inflation; increases in population thresholds and increased community needs; the failure to adjust for provincial/territorial legislation and standards; the lack of adequate infrastructure to support human resources, transportation, telecommunications and information technology; the failure of policy to keep up-to-date with modern social work practices; and the failure of the policy to take into account culturally appropriate practices based on First Nations needs and assets.
According to a 2005 presentation of these reports in AAND to the Department’s “Policy Committee” (referring to the NPR Report), “[a] 2000 review of FNCFS [First Nations Child and Family Services] found that Indian Affairs was funding [FNCFS Agencies] 22% less, on average, than their provincial counterparts.”
While in several regions there were some adjustments made to the original funding directive, a 2008 Auditor General of Canada’s report found that funding practices “do not lead to equitable funding among Aboriginal and First Nations communities” and that “while the new funding formula provides more funds . . . and offers more flexibility to allocate resources, it does not address the inequities noted under the current formula. It still assumes that a fixed percentage of First Nations children and families need child welfare services and, therefore, does not address differing needs among First Nations.”
The Auditor General was of the view that “many on-reserve children and families do not always have access to the child welfare services defined in relevant provincial legislation and available to those living off reserves.”
Another report from the Auditor General in 2011 noted that most of the issues raised earlier had not been adequately addressed, and a 2012 report of the Standing Committee on Public Accounts reiterated the shortcomings of the funding formulas and the overall inadequacy of child and family services in the context of First Nations children.
The Tribunal found that the original funding formula, Directive 20-1, and the revised one, known as the Enhanced Prevention Focused Approach (EPFA), demonstrated that a one-size-fits-all approach is ineffective for child and family services on-reserve, and that the funding was not based on need but rather on assumptions of need and population levels; the funding was held to be inadequate for providing “essential” services.
In October 2008, the case was referred to the Canadian Human Rights Tribunal for a hearing. In 2009, the Harper government appointed a new chair to the Tribunal, Shirish P. Chotalia. Chair Chotalia decided in 2011 that INAC was not responsible for discriminatory funding practices. The Tribunal Chair decided that federal funding of care services for on-reserve First Nations children and other children receiving First Nations child and family care services could not be compared with provincial funding for off-reserve children. In the absence of an appropriate comparator group, the case was dismissed.
In April 2011, the Canadian Human Rights Commission applied to the Federal Court of Canada for a judicial review of the Tribunal’s decision, arguing that the Tribunal had applied the law incorrectly and failed to conduct a full inquiry into the merits of the complaint, thus violating basic principles of procedural fairness.
In April 2012, the Federal Court overturned the Canadian Human Rights Tribunal ruling, observing that the Tribunal had dismissed a complex case of critical importance without hearing the full case on the merits. The Court also decided that the Tribunal had erred in using extrinsic evidence that had not been properly introduced.
The matter was sent back to the Tribunal for a new hearing with a differently constituted panel.
Within Federal Jurisdiction?
In the 2016 decision, the Tribunal held that the federal government was acting pursuant to a distinct area within its own jurisdiction, namely “Indians and lands reserved for Indians,” under s. 91(24) of the Constitution Act, 1867. The federal government could not evade responsibility by delegating the service delivery to provincial institutions or other bodies.
Anticipating the critique that the Tribunal was interfering with a spending decision and thus trespassing on the responsibility of the Legislature, the Tribunal cited Kelso v. The Queen,  1 SCR 199 at 207:
No one is challenging the general right of the Government to allocate resources and manpower as it sees fit. But this right is not unlimited. It must be exercised according to law. The government’s right to allocate resources cannot override a statute such as the Canadian Human Rights Act.
The services constituted a form of “assistance” or a “benefit” aimed at improving outcomes for First Nations children and families. In addition, the protection of Aboriginal languages and culture was among the policy objectives furthered by the services. The federal government could not abdicate its responsibility in light of its role as an active partner of the provinces, the Caring Society, and others. The federal government exercised discretion and a degree of control over the services and the manner in which they were delivered.
The Tribunal was asked to consider several key issues critical to the disposition of the case and to the role of the federal government in cases where the impugned area of activity deals directly with programming, policy and spending:
• the ground of discrimination
• the definition of “services”
• the necessity and nature of comparator groups to ascertain whether services are provided on an equal basis
• the application of the best interests of the child and Jordan’s Principle
• substantive equality
• the application of international human rights law to the CHRA
Discrimination Based on Race and/or National or Ethnic Origin?
The Tribunal found that First Nations peoples are a racial or national/ethnic group and that discrimination claims by these peoples have been based on both grounds, according to the case law. The child and family services offered in the context of the federal program are, by their very nature, designed and developed for First Nations. The Tribunal found that section 5 of the CHRA applied.
What are “services customarily available to the public”?
Central to the Caring Society case is the meaning of “services customarily available to the public” in section 5 of the CHRA. The federal government argued that it only provided targeted funding for child welfare services for small groups of people and that the services fell, in any event, under provincial jurisdiction. In effect, the federal government argued that it could not be held responsible. However, the Tribunal decided that the fact that the services were only offered to a small section of the public was not a bar to section 5 of the CHRA, nor was the fact that the government was principally funding the services, rather than delivering them directly, because it still had a responsibility to comply with the CHRA in matters of federal jurisdiction. As noted earlier, the federal government also played an active partnership role in setting policy.
The Tribunal indicated that child welfare in Canada includes “a range of services designed to protect children from abuse and neglect and to support families so that they can stay together. The main objective of social workers is to do all they can to keep children safely within their homes and communities.”
Critically, for the purposes of this case, the services were delivered in the context of the special historic and fiduciary relationship between the federal government and Aboriginal peoples.
While the general fiduciary relationship with Aboriginal peoples was not contested by the federal government, it did contest the creation of a specific fiduciary obligation in the context of an “undertaking” of child welfare services for First Nations. The Tribunal noted the criteria giving rise to fiduciary obligations that produce such an undertaking, which it acknowledged is only created in rare circumstances. The tribunal relied on a 2011 decision of the Supreme Court of Canada in Elder Advocates Society:
In sum, while it is not impossible to meet the requirement of an undertaking by a government actor, it will be rare. The necessary undertaking is met with respect to Aboriginal peoples by clear government commitments from the Royal Proclamation of 1763 (reproduced in R.S.C. 1985, App. II, No. 1) to the Constitution Act, 1982 and considerations akin to those found in the private sphere.
The Tribunal decided that the criteria had been met and that the relationship between the federal government and First Nations people for the provision of child and family services gave rise to a fiduciary obligation on the part of the Crown.
Inequitable . . . Compared to What?
A long-standing and vexing issue in the case is that of the appropriate comparator group. Equality is necessarily a comparative concept, but “every difference in treatment between individuals under the law will not necessarily result in inequality and, as well, that identical treatment may frequently produce serious inequality.”
The key case on point is the Supreme Court of Canada’s decision in Withler, which emphasized the focus of equality as substance, not formalism. In practical terms, the Tribunal determined that the matter must be considered in the full context of the case, including the law’s real impact on the claimants and members of the group to which they belong, having regard for the following questions and criteria:
• Does the challenged law violate the norm of substantive equality in s. 15(1) of the Charter?
• While the use of comparative evidence may be useful in analyzing a claim of discrimination, it is not determinative of the issue.
• There is no need to find “a mirror group . . . as the essence of an individual’s or group’s equality claim may be that, in light of their distinct needs and circumstances, no one is like them for the purposes of comparison”.
• The full context of the case and all relevant evidence, including any comparative evidence, must be considered.
• The complainant is not required to adduce any particular type of evidence to prove the existence of a discriminatory practice under the CHRA. It is a question of mixed fact and law whether the evidence adduced in any given case is sufficient to prove a discriminatory practice.
AANDC had argued that there should be no cross-jurisdictional comparisons or comparisons between different service providers. The Tribunal dismissed the argument, noting that it had no support or basis in the CHRA nor in the case law. In short, while acknowledging that there was no obligation to adduce comparative evidence for a discrimination complaint, there was in fact some comparative evidence about differences between child and family services funding and service levels on and off reserve.
Best Interests of the Child and Jordan’s Principle
The Tribunal reiterated the well-established principle of the best interests of the child, and that the least disruptive intervention is the one that allows the child to remain in the family.
The Tribunal also considered and applied the Canadian principle known as Jordan’s Principle, which it described as follows:
Jordan’s Principle is a child-first principle and provides that where a government service is available to all other children and a jurisdictional dispute arises between Canada and a province/territory, or between departments in the same government regarding services to a First Nations child, the government department of first contact pays for the service and can seek reimbursement from the other government/department after the child has received the service. It is meant to prevent First Nations children from being denied essential public services or experiencing delays in receiving them.
Jordan’s Principle was the subject of a 2009 Memorandum of Understanding (MOU) between AANDC and Health Canada. In the event of funding disputes, the MOU provided that Health Canada and AANDC were required to work together and with provinces and First Nations representatives to resolve the disputes using a case management approach. The MOU was renewed in 2013.
The Tribunal found serious limitations in the use of Jordan’s Principle as a result of an extremely narrow interpretation by AANDC and due to the refusal to recognize that Jordan’s Principle is a child welfare concept. The results, according to the Tribunal, were service gaps, delays and denials of services to First Nations children in care.
More fundamentally, the Tribunal found that Directive 20-1 and the subsequent EPFA perpetuated a significant shortcoming, namely that they created incentives to take children into care, removing them from their families.
The Tribunal had the opportunity to consider the principle of substantive equality and its application to disadvantaged people in light of Vriend and Eldridge. Substantive equality is understood and applied as taking into account the importance of social, political and economic context. Substantive equality and its application in context also applies to Aboriginal peoples.
Overall, the funding formulas were found to deny substantive equality because they were inconsistent with provincial legislation and up-to-date standards in child welfare, as well as demonstrating funding deficiencies and inflexibility in their application. The provincial formula in Ontario demonstrated some improvements over the federal ones, but still resulted in denials of service. Overall, the noted deficiencies operated across Canada and across all funding formulas to perpetuate disadvantages historically suffered by First Nations peoples, especially those resulting from the residential school system.
Application of International Law
Amnesty International intervened in the case, and argued for an interpretation of the CHRA in a manner that is informed by international human rights law. The connection to international human rights law was strenuously opposed by the government.
The Tribunal found that the interpretation and application of the CHRA should be informed by the fundamental principles of international law, including those in the Universal Declaration on Human Rights and the UN Declaration on the Rights of Indigenous Peoples, both of which have been signed or endorsed by Canada. The government also has legal obligations under UN covenants and conventions acceded to or ratified by Canada, including the International Covenant on Civil and Political Rights, the Convention on the Rights of the Child, the International Covenant on Economic, Social and Cultural Rights, and the Convention on Elimination of all Forms of Discrimination.
The tribunal observed that not only has the Supreme Court of Canada referred to decisions and recommendations of human rights bodies to interpret the scope and content of domestic law provisions in light of international law, the Supreme Court has also been willing to expand the relevance of international human rights law to give effect to Canada’s role and actions in developing norms of international law, particularly with respect to human rights.
The international instruments, in combination with comments by treaty monitoring bodies, demonstrate that equality must be understood as substantive and not merely formal. The Tribunal noted that spending measures are often required in order to achieve substantive equality, and that, given the unique situation and needs of children and First Nations people, the children in particular should be given special attention. As well, declarations made by Canada itself, in its periodic reports to the various monitoring bodies, demonstrate that the federal government knew steps had to be taken to address these issues.
Concerns expressed by international monitoring bodies, including the Committee on the Rights of the Child, were found to have reflected and articulated the same issues raised in the Caring Society’s complaint. The Tribunal stated that:
Canada’s statements and commitments, whether expressed on the international scene or at the national level, should not be allowed to remain empty rhetoric. Substantive equality and Canada’s international obligations require that First Nations children on-reserve be provided child and family services of comparable quality and accessibility as those provided to all Canadians off-reserve, including that they be sufficiently funded to meet the real needs of First Nations children and families and do not perpetuate historical disadvantage.
The Tribunal found that the evidence overwhelmingly supported the allegations reported in the complaint, and that the AANDC had knowingly permitted the continuation or perpetuation of the disadvantage created by the child and family services, by offering or funding inadequate services that failed to meet the needs of First Nations communities. The “comparable funding levels” criterion used by the federal government did not ensure substantive equality for First Nations children.
The Tribunal took a systemic approach to the requested remedies, noting that an appropriate remedy should vindicate the rights and freedoms of the victims. In this regard, the Tribunal ordered:
• declaratory relief, finding that there was clearly discrimination with regard to the facts proved in the case, on the basis of race and national/ethnic origin; and
• an order to cease the discriminatory practice and take measures to redress and prevent it.
While the declaratory relief was simple enough to grant, the cessation of the discriminatory practice was not. The Caring Society proposed three steps to address the discrimination by redesigning the FNCFCS Program:
(1) Reconvene the National Advisory Committee to identify discriminatory elements in the provision of funding to FNCFS Agencies and make recommendations thereon;
(2) Fund tripartite regional tables to negotiate the implementation of equitable and culturally based funding mechanisms and policies for each region; and
(3) Develop an independent expert structure with the authority and mandate to ensure AANDC maintains non-discriminatory and culturally appropriate First Nations child and family services.
The government, on the other hand, opposed this approach and noted the obstacles inherent in seeking the implementation of such a wide-reaching policy through an order of the Tribunal. The Tribunal recognized that caution was necessary, and granted the request in order, but only in part:
AANDC is ordered to cease its discriminatory practices and reform the FNCFS Program and 1965 Agreement to reflect the findings in this decision. AANDC is also ordered to cease applying its narrow definition of Jordan’s Principle and to take measures to immediately implement the full meaning and scope of Jordan’s Principle.
The Tribunal recognized the complexity of the remedial orders and retained jurisdiction over the case in order to communicate with the parties to address outstanding issues on an expedited basis. The final remedies have not been determined at the time of writing. Similarly, orders with regard to compensation were deferred pending further communications with the parties. The motion for costs for obstruction of justice against the respondents was taken under reserve. The Tribunal ordered that it would retain jurisdiction until the remedial issues and other determinations are made.
FNCFCS engages with questions that are not only fundamental to the Canadian Human Rights Act, but also to the relationship between the CHRA, the Charter, and international human rights law. It answers positively the question of whether the CHRA can or should offer redress for significant structural differences in services that are offered by or funded by the federal government and that result in adverse treatment of First Nations children on the grounds set out in the CHRA.