Brown v. The Attorney General of Canada
[Indexed as: Brown v. Canada (Attorney General)]
2017 ONSC 251
Superior Court of Justice, Belobaba J.
February 14, 2017
Aboriginal peoples — Duty to consult — Canada’s obligation under
s. 2(2) of Canada-Ontario Welfare Services Agreement to consult with
Indian bands applying to child welfare services — Canada failing to
consult Indian bands before child welfare services were extended to
reserves — Canada’s obligation to consult in s. 2(2) of agreement not
giving rise to fiduciary duty — Duty to consult in s. 2(2) creating common law duty of care to take reasonable steps to prevent on-reserve
Indian children in Ontario who had been placed in care of non-aboriginal foster or adoptive parents from losing their aboriginal identity — Canada breaching that common law duty of care.
The plaintiff brought a class action for damages arising out of the “Sixties
Scoop”, the apprehension and removal from their families of thousands of aboriginal children living on reserves in Ontario and the placement of those children
with non-aboriginal foster or adoptive parents, resulting in a loss of their aboriginal identity. The action was brought against Canada, which under the Canada-Ontario Welfare Services Agreement (the “1965 agreement”) undertook to fund a
provincial extension to reserves of provincial welfare programs. Section 2(2) of
the 1965 agreement provided that “No 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 or by Ontario and has signified its concurrence”. The plaintiff brought a motion for summary judgment asking that
the certified common issue, which focused on Canada’s liability, be answered in
favour of the class members.
Held, the motion should be granted.
Canada’s obligation to consult under s. 2(2) of the 1965 agreement applied to
child welfare services. Canada did not consult with Indian bands before child
welfare serves were extended to reserves and no bands ever signified their concurrence. Canada therefore breached s. 2(2) of the 1965 agreement. If Canada
had honoured its obligation to consult the Indian bands, information about
a child’s aboriginal identity and culture and the available federal benefits,
which was ultimately provided in a 1980 booklet, would have been provided
years earlier and would probably have been provided to both foster and adoptive
parents and not just the latter.
The obligation to consult in s. 2(2) of the 1965 agreement did not give rise to a
fiduciary duty on the part of the federal Crown. When Canada undertook the
obligation to consult under s. 2(2) of the 1965 agreement, it did not assume such
a degree of discretionary control over the protection and preservation of aboriginal identity that it amounted to a direct administration of that interest.
The duty to consult under s. 2(2) of the 1965 agreement gave rise to a common
law duty of care 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. That duty of care arose out of the fact that the 1965 agreement
was analogous to a third party beneficiary agreement. Canada undertook the