Judge upholds human rights compensation order for First Nations kids, Canada has lost every battle so far in 14-year-old court fight that isn’t over yet by Brett Forester, Sept 29, 2021, ATPN News
The Federal Court has upheld a trailblazing Canadian Human Rights Tribunal order requiring Ottawa to pay potentially billions of dollars to thousands of First Nations kids and families who suffered discrimination by the state.
Justice Paul Favel also upheld a separate tribunal order that said the federal government must consider some non-status First Nations kids eligible for the Jordan’s Principle program.
Favel, a member of Poundmaker Cree Nation in Saskatchewan, dismissed the two court challenges launched by the Canadian government. He said Ottawa failed to show the orders were unreasonable, adding that the case has resulted in significant good work being done.
“However, the good work of the parties is unfinished,” Favel wrote in his 111-page ruling released Wednesday. “The parties must decide whether they will continue to sit beside the trail or move forward in this spirit of reconciliation.”
The Canadian government requested judicial reviews of both orders and spent a week in June in front of Favel, trying to convince him to quash them.
Ottawa’s opponents urged him to affirm the potentially precedent-setting rulings.
Reached by phone after the decision came down, Cindy Blackstock, executive director of the First Nations Child and Family Caring Society of Canada, said it was yet another win for First Nations kids. She urged the Justice Department not to appeal.
“These families have been through enough,” she said. “It’s time for them to put down their sword.”
14-year-old fight not over yet
The original human rights complaint was lodged by Blackstock and the Assembly of First Nations (AFN) in 2007. The same year I filed my lawsuit. I think often where it would have ended up if I had had a legal team including Cindy Blackstock. Unfortunately, I retained quitting lying lawyers (Murray Klippenstein and Cory Wanless) that betrayed my lawsuit, me and the public interest, after nearly $400,000.00 spent through the law firm and about another $100,000.00 I spent directly, and withheld my website for nearly a year (hundreds of vital media files were removed from my site during that time) and withheld my trust funds for a year. The grief I am coping with is shocking me in how devastating it is and how long it’s taking me to get through it. And, I continue to wait for my property that ex lead lawyer, Mr. Klippenstein, refuses to return to me, as required under the “rules” of his profession.
The organizations argued Ottawa was racially discriminating against First Nations children by underfunding child welfare on reserves. After some initial legal wrangling, the case was heard in 2013. After nearly half a million dollars wasted and Canada’s charter damaged by the supreme court judges led by then Chief J Beverley McLachlin, my case was never heard. There was just one Hell of a lot of huffing and puffing and lying and delays by lawyers and judges alike – I expect because my case was against the oil and gas industry (AER) and Encana/Ovintiv – they are clearly above the law in Canada.
“Today’s decision acknowledges the personal harm caused by Canada’s discrimination and affirms that First Nations deserve justice,” the AFN said via tweet.
“This monumental decision comes one day before Orange Shirt Day, and we hope that Canadians stand with us in recognizing that #EveryChildMatters.”
The tribunal issued its landmark ruling in favour of the caring society and AFN in 2016. The panel said Canada was racially discriminating against 163,000 First Nations kids by knowingly underfunding the system and refusing to implement Jordan’s Principle.
Jordan’s Principle states that the level of government first contacted by a family seeking access to an essential health product or social service must provide it without delay and figure out the bill later. It exists to prevent jurisdictional bickering between Ottawa and the provinces on who will pay for the services.
The tribunal noted that Canada’s funding scheme created a “perverse incentive” for agencies to scoop kids from their homes. Ottawa would fully reimburse agencies for the costs of apprehending and maintaining kids in foster care but provided only a fixed pot of cash for prevention services.
In 2019, the tribunal ruled the discrimination was “wilful and reckless.” It ordered Canada to pay $40,000 — the maximum amount under federal human rights law — to kids unnecessarily taken from their homes or denied access to essential services.
Canada’s lawyer argued the tribunal had overstepped its jurisdiction and moved the goal posts on Ottawa. Chief general counsel Robert Frater said the order was flawed and lacked sufficient proof of harm.
Frater said a case about systemic discrimination should require systemic reform, not individual payouts. The issue of compensation should be settled by a class action, he said.
The AFN’s lawyer said his arguments were “callous” and “heartless.”
Favel said the tribunal did not exceed its jurisdiction under the Canadian Human Rights Act. He noted Canada has had numerous chances to appeal previous orders, but did not.
“Nothing changed,” he wrote. “All of this was conducted in accordance with the broad authority the Tribunal has under the CHRA.”
Decisions released a day before new holiday
The tribunal ruled in 2020 that the federal government was still not applying Jordan’s Principle to all First Nations kids. The panel ordered Canada to expand the program to non-status kids who live off reserve if they meet certain criteria.
In this appeal Frater again argued that the tribunal had exceeded its jurisdiction. He said the panel had started writing government policy, which is the domain of elected authorities and not administrative tribunals.
His opponents from the caring society, AFN and other organizations slammed Canada again for relying on the “racist and colonial” Indian Act as the core of its argument.
Favel again said the tribunal did not overstep its jurisdiction and did not deny Canada procedural fairness.
Canada “was afforded numerous opportunities to challenge the various decisions but did not,” Favel wrote. “No one was taken by surprise.”
The appeals were heard despite a motion that passed unanimously in the House of Commons urging Canada not to proceed. Prime Minister Justin Trudeau, now newly re-elected, abstained from voting on the motion and so did his cabinet.
The rulings come a day before the first National Day for Truth and Reconciliation.
The Truth and Reconciliation Commission’s first calls to action — delivered six years ago — recommended Ottawa act immediately to reduce the number of First Nations kids in state custody.
The judge offered some general thoughts on reconciliation in his reasons.
“Reconciliation is, in essence, a continuation of the nation-building exercise of this young country in the sense that the foundational relationships between Indigenous people and the Crown continue to evolve,” he wrote.
“Reconciliation, as nation-building, can also result in the re-establishment, on a proper foundation, of broken or damaged relationships between Indigenous people and Canada in the manner suggested by the Supreme Court in its numerous judgments.
Canada has lost every single round so far in the 14-year-old legal battle that isn’t over yet. Favel stressed the importance of negotiations moving forward.
Favel’s decision can be challenged in the Federal Court of Appeal and then potentially in the Supreme Court of Canada.
Ottawa also applied for a third judicial review of yet another tribunal order on Sept. 24.
Read the ruling here: Download (PDF, 870KB)
Federal Court upholds landmark compensation order for First Nations children, The decision leaves Ottawa on the hook for billions of dollars in compensation by Olivia Stefanovich, Sept 29, 2021, CBC News
The Federal Court today dismissed a judicial review into a landmark human rights tribunal compensation order for First Nations children — leaving the federal government on the hook for billions of dollars in compensation related to the child welfare system.
Justice Paul Favel said today that the Attorney General of Canada had “not succeeded in establishing that the compensation decision is unreasonable.”
The federal government had argued that the Canadian Human Rights Tribunal had overreached and was wrong to order Ottawa to pay $40,000 — the maximum allowed under the Canadian Human Rights Act — to each child affected by the on-reserve child welfare system since 2006.
Favel wrote that the tribunal “reasonably exercised its discretion” under the Act to “handle a complex case of discrimination to ensure that all issues were sufficiently dealt with and that the issue of compensation was addressed in phases.“
More to come, a previous version of this story is below. …
Court to rule today on Ottawa’s challenge of First Nations child welfare compensation order, Today’s decision could leave Ottawa on the hook for billions of dollars in compensation by Olivia Stefanovich, Sept 29, 2021, CBC News
The Federal Court is expected to issue a decision today on whether a landmark human rights tribunal compensation order for First Nations children should stand.
In the fall of 2019, the Canadian Human Rights Tribunal ordered Ottawa to pay $40,000 — the maximum allowed under the Canadian Human Rights Act — to each child affected by the on-reserve child welfare system since 2006.
The tribunal said the parents or grandparents of those children (depending on who was the primary guardian) would also be eligible for compensation, as long as the children were not taken into the child welfare system because of abuse.
Today’s decision could leave Ottawa on the hook for billions of dollars in compensation.
The ruling also ordered Ottawa to pay $40,000 to each First Nations child (along with their parents or grandparents) who were forced to leave their homes to access services, or who were denied services covered by the policy known as Jordan’s Principle.
That policy states that the needs of a First Nations child requiring a government service take precedence over jurisdictional disputes over who should pay for it.
The Jordan’s Principle portion of the order covers the period from Dec. 12, 2007 — when the House of Commons adopted Jordan’s Principle — to Nov. 2, 2017, when the tribunal ordered Canada to change its definition of Jordan’s Principle and review previously denied requests.
The Attorney General of Canada filed an application for a judicial review and a stay of the order.
Ottawa argues tribunal overreached
Cindy Blackstock, executive director of the First Nations Child and Family Caring Society, launched the human rights complaint that led to the ruling, along with the Assembly of First Nations.
She said she’s hoping the decision will swing against Ottawa.
“I’m hoping it’s one that’s favourable to kids and that the federal government finally follows the court order,” Blackstock said.
“If they are going to actively litigate against First Nations children and their families from getting justice … then it’s time for the public to put the federal government on the right course-correct.”
Ottawa could appeal the decision.
It argued the tribunal overreached and was wrong to order compensation.
The federal government’s filing said the human rights case was about systemic discrimination, and it responded by increasing funding and changing the system.
The government’s application called for a court order to set aside the tribunal’s decision and dismiss the claim for monetary compensation, or an order to set aside the tribunal’s decision and refer the matter back to the tribunal for review.
In its reasons for arguing the tribunal erred, the federal government took issue with the conclusion that discrimination in Canada’s policy for funding child and family services on-reserve and in Yukon is ongoing.
The compensation order followed a 2016 tribunal decision that found the federal government discriminated against First Nations children by underfunding the on-reserve child welfare system.
The tribunal directed Ottawa to enter discussions with the First Nations Family Caring Society and the Assembly of First Nations, which filed the initial human rights complaint in 2007. The negotiations would determine the best independent process to distribute the compensation and decide who qualifies.
Some estimates place the number of potentially affected children at about 50,000, with the largest numbers in the Prairies and British Columbia. The ruling also covers First Nation children in Yukon.
The federal government’s decision to challenge the order has drawn widespread condemnation from First Nations leaders, the NDP, the Green Party and human rights organizations like Amnesty International.
Before the ruling was released:
Canada files 3rd judicial review of Canadian Human Rights Tribunal ruling, Cindy Blackstock says filing of latest Federal Court appeal is ‘beyond disappointing’ by Brett Forester, Sep 24, 2021, ATPN News
The federal government wants to overturn another Canadian Human Rights Tribunal ruling in an ongoing, 14-year-old complaint about the systemic underfunding of First Nations child welfare.
On Friday afternoon, the Justice Department filed what is now its third application for judicial review before the Federal Court.
The application asks a judge to quash an Aug. 26 ruling ordering Canada to fund First Nations child welfare agencies so they can build or buy property, buildings, vehicles and other infrastructure required to deliver services.
The justice department called the order “broad and vague and beyond the jurisdiction of the Tribunal.”
Cindy Blackstock, executive director of the First Nations Child and Family Caring Society of Canada, partnered with the Assembly of First Nations in 2007 to lodge the original human rights complaint.
She pointed out on Twitter the application comes only days before the National Day for Truth and Reconciliation on Sept. 30 — a new statutory holiday created by the federal government to honour victims of residential schools.
She also noted the appeal comes on the heels of a federal election campaign during which opposing parties criticized Prime Minister Justin Trudeau for fighting First Nations kids in court.
“It is beyond disappointing that just days after hearing reconciliation election pledges, that the first action the federal government takes is filing yet another appeal to overturn an order that ensures First Nations’ children and families have proper buildings to receive services to keep families together and ensure children get the help they need,” Blackstock said in an email.
“Their litigation against the [Truth and Reconciliation Commission’s] top Call to Action on child welfare seems endless.”
The Canadian government noted the tribunal hasn’t issued its final reasons yet but said it filed the appeal because a 30-day limitation period will expire in two days on Sept. 26.
Trudeau stated incorrectly during the federal leaders’ debate the Liberals aren’t fighting First Nation kids in court. He lied, see above and below.
One of the Justice Department’s top lawyers spent a week in court in mid-June arguing the two other judicial reviews.
The first ruling ordered Canada to pay $40,000 — the maximum amount under federal human rights law — to kids unnecessarily taken from their homes or denied access to essential services that ought to have been available under Jordan’s Principle.
Trudeau said Canada will compensate these kids, but prefers to do it through a negotiated class-action settlement rather than through the tribunal. So Canada can gag them and hide the “negotiations” from the world?
The second ruling ordered Canada to expand Jordan’s Principle to non-status kids if they meet certain criteria.
Jordan’s Principle is a program Ottawa is legally required to implement to ensure all First Nations kids have access to essential health and social services without delay.
It states that the level of government first contacted must pay for the essential services in question and seek reimbursement later.
All decisions made by quasi-judicial administrative tribunals like the human rights tribunal are subject to appeal in the form of review by a judge.
Justice Paul Favel presided over the two previous reviews. He reserved his decision on both.
They have not yet been released.
Refer also to:
Damaging the Charter: Ernst vs Alberta Energy Regulator by Lorne Sossin, Dean Osgoode Hall Law School, York University. Comment: “It causes one to question how much both the plurality and the dissent were driven by the desired end-state of the judgment, rather than consistency in applying principles of public law.”
Nasty! Canadian courts describing “individuals as exhibiting ‘vexatious-style’ behavior without formally designating them as a vexatious litigant.” Is that how Supreme Court of Canada Justice Rosalie Abella gets away with ruling AER found Ernst to be “vexatious litigant” when evidence proves AER found Ernst to be a “criminal,” 7 years later, a terrorist – all without charges, evidence, trial or due process? With then AG Jody Wilson-Raybould saying & doing nothing about Canada’s top judicial farce?
2020: G20 Class Action Settles. Another lawsuit Murray Klippenstein took on years after he took on Ernst vs Encana and did not abruptly quit like he did on Ernst. Comment by a rural Albertan: “Murray sawed off a deal that protects the status quo. Justice Rosalie Abella should be proud of her boy.”
2020: Legal scholar Joshua Sealy-Harrington “totally eviscerates” Murray Klippenstein’s arguments. It revolts me that my public interest lawsuit is being destroyed by Klippenstein pissing on Law Society Rule 2.09 to enable racism. After abruptly quitting my lawsuit more than 500 days ago, he *still* has not sent me my case files. What tune would Klippenstein sing if all the bias/prejudice was directed at Mennonite lawyers?
2018: “Klippenstein, admittedly, ‘would not be the person’ he is ‘without freedom of thought and expression,’ so where’s his outrage at the legal suppressing of those freedoms – aka gag orders? And who would he be then, with his mouth legally taped shut?” Comment to Andrew Nikiforuk’s article in The Tyee on Klippenstein & Wanless quitting
2017: After Supreme Court of Canada denies Ernst her Charter right to seek remedy for her “valid” Charter claim against the AER, Judge acquits activist who bared breasts at Montreal Grand Prix: ‘It’s a victory for freedom of expression,’ but not if you are exposing Encana illegally frac’ing & contaminating your community’s drinking water supply with the “regulator” violating your rights trying to intimidate & gag you