Plaintiff brought class action against Canada, with respect to “scoop” of aboriginal children who were removed from their families on reserves in Ontario by child welfare authorities and were placed with or adopted by non-aboriginal parents. Plaintiff brought motion for summary judgment on certified common issue of whether Canada breached fiduciary or common law duties to take reasonable steps to prevent class members’ loss of aboriginal identity after they were placed in foster and adoptive parents. Motion granted. While rudimentary child welfare services were extended to some reserves, with minimal federal funding, Canada’s agreement with Ontario extended whole range of child welfare services and other provincial welfare programs to Indians with significant federal funding. Key component of agreement was Canada’s obligation to consult with Indian Bands, which plainly and unambiguously applied to each of 18 extended programs including child welfare services. No Indian Bands were ever consulted before child welfare services were extended and no Bands provided their concurrence. Language and context of provision at issue implicitly obligated Canada to actually undertake referred-to consultations and so, as Canada failed to consult with Indian Bands as it had undertaken to do, it breached agreement. If Canada had consulted with Bands, they clearly would have provided ideas and advice that could have prevented thousands of scooped children from losing their aboriginal identity. Canada failed to take reasonable steps to prevent loss of aboriginal identity in post-placement by, at minimum, failing to provide parents with information on apprehended children’s aboriginal heritage and entitlement to various federal benefits. Obligation to consult under agreement created common law duty of care that provided basis in tort for class members’ claims. Agreement was analogous to third-party beneficiary agreement as Canada undertook obligation to consult to benefit Indian Bands who were not parties to agreement.
Brown v. Canada (Attorney General) (2017), 2017 CarswellOnt 1758, 2017 ONSC 251, Edward P. Belobaba J. (Ont. S.C.J.).