Accept the Things You Cannot Change.

Last week, media sources reported that the Attorney General of Canada had filed for appeal from the most recent decision of the Federal Court in the ongoing saga of the First Nations Child and Family Caring Society of Canada v. Canada. Shocked and bewildered by the news that this case is still before the courts, I dove into the Federal Court’s decision (2021 FC 969) to figure out what’s happening. I came away with renewed respect for the counsel on both sides of these historic proceedings and, unexpectedly, some lessons for advocacy in complex or multi-stage proceedings. In sum, have the courage to accept (and carefully identify) the things you cannot change.

The First Nations Child and Family Caring Society (FNCFS) first filed its complaint to the Canadian Human Rights Commission, jointly with the Assembly of First Nations (AFN), back in 2007. The complaint alleged that Canada had discriminated against First Nations children by systematically underfunding their child welfare services. The complaint was forwarded to the Canadian Human Rights Tribunal (CHRT) in 2010.

After a few years of procedural bickering before the CHRT and the Federal Court, the parties debated the merits in a 70-day hearing that lasted from February to October 2013 (2021 FC 969 at para 20). The complainants had to wait until January 2016 to learn that they had won: the CHRT determined that Canada discriminated against First Nations children and ordered Canada to cease those discriminatory practices and amend its programs to reflect the Tribunal’s findings (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), 2016 CHRT 2 at para 481).

The CHRT also determined that some compensation should be awarded to the victims of that discrimination—the children who were taken from their families as a result of the discriminatory policies. However, it sought further submissions on how compensation ought to be awarded:

[494]  As indicated above, the Panel has outstanding questions on the remedies being sought by the Complainants and Commission. A determination on those remedies is still to be made. As such, the Panel will maintain jurisdiction over this matter pending the determination of those outstanding remedies. Any further retention of jurisdiction will be re-evaluated when those determinations are made.

At that point, the complainants were already almost a decade into the process. They had won a historic victory, proving that the Canadian government’s policies were discriminatory. Canada did not judicially review the merits of the CHRT’s 2016 decision and its finding of discrimination. Things should have been looking up—but this is where fresh trouble began.

There followed a series of decisions about compensation and eligibility for that compensation. Can the Tribunal award individual compensation to people who are not even witnesses in the proceedings? Shouldn’t any individual compensation award take into account variations in degrees of harm caused by the discriminatory practices? When we say that “First Nations children” were discriminated against, who exactly does that mean, and who gets to decide? These were the sorts of questions on judicial review before the Federal Court in 2021.

The Court agreed with the FNCFS and the AFN that the CHRT’s decisions on these issues were reasonable. Of particular interest to the administrative litigator, the Federal Court also agreed with the CHRT that several of Canada’s arguments constituted an impermissible collateral attack on previous Tribunal decisions that were not judicially reviewed by Canada.

In particular, Canada argued before the Federal Court that the CHRT was turning the complaint into a class action, awarding individual remedies to people who were not parties to the proceedings. The CHRT, they claimed, had taken the complaint well beyond its initial framing and, in so doing, the Tribunal had exceeded its jurisdiction.

The Federal Court disagreed that the CHRT had done anything outside the bounds of what the CHRA allowed it to do. Furthermore, Canada had raised some of these arguments before in previous hearings before the CHRT that it had not appealed on judicial review—especially the 2016 decision on the merits that found that Canada had systemically discriminated against First Nations children:

[155]  I agree with the Respondents that the Applicant’s arguments concerning individual versus systemic remedies could have been made earlier. For example, this argument could have been raised when the Merit Decision was released. At paragraphs 383-394, the Merit Decision includes various findings made in relation to First Nations children and their families. These findings are in reference to the First Nations children and families identified in the Complaint and the statements of particulars filed by the parties themselves. The Merit Decision’s ‘summary of findings’ section analyzes, in detail, the findings in relation to the FNCFS Program and Jordan’s Principle and it gave advance warning that damages would be addressed in the future. All of the Tribunal’s findings in the Merit Decision are tied to First Nations children and their families. These findings are reflected in virtually every subsequent decision, whether challenged or not.

[156]  I agree with the Caring Society and the AFN that the Applicant cannot contest the compensatory consequences of systemic harm when the Applicant appears to accept the Tribunal’s finding that widespread discrimination occurred. I note that, although the Applicant disagrees with the Tribunal’s reasoning process and outcome, it recognized “a need to compensate the children affected” in its opening statement at the hearing for this judicial review. I also agree that the quantum of compensation awards for harm to dignity are tied to seriousness of the psychological impacts and discriminatory practices upon the victim, which does not require medical or other type of evidence to be proven.

While I agree with the Federal Court’s conclusion here, I have sympathy for the counsel involved in this case on behalf of Canada. I would have struggled with how best to advise my client on which Tribunal decisions to review, if any. Canada chose to let the decision about wrongdoing stand; it is possible that they might have done so strategically, so as to conserve financial and political capital for the debate about remedy. It would seem, however, that, in conceding on fault, they became foreclosed from making certain arguments about remedy.

This case is an object lesson in how multi-stage proceedings can lead to confusion about collateral attack unless the parameters of the debate are clearly established from the outset. Nothing is worse than spending time and money on litigation only to be told that the issue has already been decided. This is so even in cases where the human rights of vulnerable children are not at stake.

Canada has clarified that its appeal was filed only to protect its rights, and it is engaging in settlement discussions with the FNCFS and the AFN. I hope, for the sake of the many children whose lives were affected by the discriminatory policies at issue, that they can resolve the matter quickly.