First Nations Child & Family Caring Society of Canada et al. v. Attorney General (representing the Minister of Indigenous and Northern Affairs of Canada)

Canadian Human

Rights Tribunal

Tribunal canadien

des droits de la personne

Citation: 2021 CHRT 41

Date: November 16, 2021

File No.: T1340/7008

Between:

First Nations Child and Family Caring Society of Canada

- and -

Assembly of First Nations

Complainants

Commission

- and -

Canadian Human Rights Commission

- and -

Attorney General of Canada

(Representing the Minister of Indigenous and Northern Affairs Canada)

Respondent

- and -

Chiefs of Ontario

- and -

Amnesty International

- and -

Nishnawbe Aski Nation

Interested parties

Ruling

Member:

Sophie Marchildon

Edward P. Lustig

Table of Contents

Major Capital and Small Agencies Reimbursement Motion.................................................1

I.

General Context........................................................................................................1

A. The Tribunal’s Approach................................................................................3

II.

Major Capital Context..............................................................................................20

Major Capital Party Submissions............................................................................23

III.

A.

B.

C.

D.

E.

F.

The Caring Society ......................................................................................23

The Chiefs of Ontario...................................................................................26

Assembly of First Nations ............................................................................26

Nishnawbe Aski Nation................................................................................27

Commission.................................................................................................27

Canada ........................................................................................................29

IV.

V.

Major Capital Analysis.............................................................................................34

A.

B.

C.

Prior Major Capital Analysis.........................................................................34

FNCFS Major Capital Analysis ....................................................................52

Capital to Support the Implementation of Jordan’s Principle Analysis.........94

Supplementary Financial Administration Act Party Submissions..........................108

A.

B.

C.

D.

E.

F.

The Caring Society ....................................................................................108

The Chiefs of Ontario.................................................................................110

Assembly of First Nations ..........................................................................110

Nishnawbe Aski Nation..............................................................................111

Commission...............................................................................................111

Canada ......................................................................................................113

VI.

Financial Administration Act Analysis ...................................................................115

Reallocation Party Submissions ...........................................................................126

VII.

A.

B.

The Caring Society ....................................................................................126

Canada ......................................................................................................127

VIII. Reallocation Analysis............................................................................................128

IX.

Capital for Band Representative Services and Prevention Services in

Ontario Party Submissions....................................................................................130

ii

A.

B.

C.

The Chiefs of Ontario.................................................................................130

Nishnawbe Aski Nation..............................................................................132

Canada ......................................................................................................134

X.

Capital for Band Representative Services and Prevention Services in

Ontario Analysis....................................................................................................136

XI.

Small Agency Reimbursement Context................................................................153

Small Agency Reimbursement Party Submissions...............................................156

XII.

A.

B.

C.

D.

E.

F.

The Caring Society ....................................................................................156

Commission...............................................................................................158

Assembly of First Nations ..........................................................................159

The Chiefs of Ontario.................................................................................159

Nishnawbe Aski Nation..............................................................................159

Canada ......................................................................................................159

XIII. Small Agencies Analysis.......................................................................................161

XIV. Proposal to Parties and Retention of Jurisdiction .................................................164

XV. Order.....................................................................................................................165

Acknowledgement

The Tribunal is releasing this ruling in painful times in Canada were over a thousand

unmarked graves of First Nations children who attended residential schools have been

discovered and more continue to be discovered. Long before the heart wrenching discovery

in Kamloops, the Truth and Reconciliation Commission called upon the Canadian

government to provide funding to locate the children who died in residential schools. This

call to action was published in 2015.

Many of the children who attended residential schools were forcibly removed from their

homes, families and communities. The Tribunal heard evidence on residential schools and

made numerous findings in that regard in 2016. It found there was a transformation of

Residential Schools into an aspect of the child welfare system. The primary role of many

Residential Schools changed from a focus on “education” to a focus on “child welfare”.

Despite this, many children were not sent home, because their parents were assessed as

not being able to assume responsibility for the care of their children. The Tribunal found that

Indian Residential Schools are one example of a collective trauma that is part of a larger

traumatic history that Indigenous Peoples have already been exposed to. The history of

Residential Schools and the intergenerational trauma they have caused is another reason -

on top of some of the other underlying risk factors affecting Indigenous children and families

such as poverty and poor infrastructure - that exemplifies the heightened need of First

Nations People to receive adequate child and family services, including least disruptive

measures and, especially, services that are culturally appropriate. The Tribunal found the

evidence in this case not only indicates various adverse effects on First Nations children

and families by the application of AANDC’s FNCFS Program, corresponding funding

formulas and other related provincial/territorial agreements, but also that these adverse

effects perpetuate historical disadvantages suffered by Aboriginal peoples, mainly as a

result of the Residential Schools system.

The Tribunal found there are approximately three times as many First Nations children in

state care as there were at the height of Residential Schools.

The Panel recognizes the incommensurable pain of families, communities and Nations and

honors their courage on their healing journey and quest for justice. It is time for a true

paradigm shift in Canada so that we do not repeat history.

The mass removal of children from their homes, families, communities and Nations found in

this case must stop now.

The helpline for residential school survivors can be reached at: 1-866-925-4419.

* While the Panel recognizes this broader context of the suffering Indigenous Peoples

experience in Canada, the Panel can only address the legal dispute before it.

Major Capital and Small Agencies Reimbursement Motion

General Context

I.

[1]

This ruling addresses a number of related motions brought in the context of the

Tribunal’s retained jurisdiction of the implementation of remedies in a complaint brought by

the First Nations Child and Family Caring Society of Canada (the Caring Society) and the

Assembly of First Nations (the AFN) against Canada on behalf of First Nations children and

families. The first motion relates to Major Capital funding to support service delivery to First

Nations children. The second relates to the scope of reimbursement for small First Nation

Family and Child Services Agencies (FNCFS Agencies). Another issue addressed in this

ruling is an Ontario-specific request for Capital funding for Band representatives and

prevention services.

[2]

The Tribunal found in 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 [the Merit Decision] that Canada engaged in discriminatory practices contrary to

the Canadian Human Rights Act, RSC 1985, c H-6 (the CHRA) in its provision of services

to First Nations children and families. In particular, the Tribunal found that the management

and funding of the First Nation Child and Family Services Program (FNCFS Program)

resulted in systemic racial discrimination and “resulted in denials of services and created

various adverse impacts for many First Nations children and families living on reserves”

(para. 458). The assumptions in the funding formulas resulted “in inadequate fixed funding

for operation (capital costs, multiple offices, cost of living adjustment, staff salaries and

benefits, training, legal, remoteness and travel) and prevention costs (primary, secondary

and tertiary services to maintain children safely in their family homes)” (para. 458, emphasis

added). In other words, the systemic racial discrimination resulted in the mass removal of

First Nations children from their homes, communities and Nations.

[3]

The Panel also found Canada’s definition and implementation of Jordan’s Principle

to be narrow and inadequate, resulting in service gaps, delays and denials for First Nations

children.

2

[4]

The Tribunal has issued a number of subsequent rulings providing direction and

guidance to establish substantive equality remedies to not only eliminate the discrimination

already experienced by First Nations children but also to ensure that similar discriminatory

practices do not occur in the future. The specific decisions that relate to each of the requests

for remedies are discussed in the relevant sections. The Tribunal has retained jurisdiction

over the determination of appropriate remedies to ensure, in particular, that the ultimate

long-term remedies will be effective at eliminating the discrimination found and in preventing

similar discrimination in the future.

[5]

In an effort to promote reconciliation and recognizing the grassroot knowledge and

expertise of First Nations, the Tribunal encouraged the parties to resolve as many of the

remedial issues as possible through consultation. The parties have done so through the

Collaborative Committee on Child Welfare (CCCW) and have been effective at resolving a

number of issues. Some of the issues in this ruling arise from discussions that occurred at

the CCCW but on which the parties were unable to reach an agreement.

[6]

In light of the parties’ reference to the Financial Administration Act, RSC 1985, c F-

11 in their submissions on funding of Major Capital to provide the infrastructure to support

service delivery to First Nations children, the Panel requested further argument on the role

of Canada’s financial legislation and policies. The parties’ further submissions addressed

the role of the Financial Administration Act in general and beyond the confines of the Major

Capital issue. The Panel has also addressed the outstanding dispute between the parties

on reallocation of budgeted funds as that also relates to the Financial Administration Act

issue.

[7]

The Panel also requested the parties to confirm which submissions they were relying

on to address the outstanding issues in this motion, which the parties did through

correspondence dated September 1, 2020.

[8]

In the interest of supporting the parties in moving forward with their discussions and

negotiations, the Panel issued its ruling in a brief letter-decision dated August 26, 2021 with

reasons to follow. This decision provides the Panel’s reasons in support of its orders.

3

A.

The Tribunal’s Approach

The Panel reviewed the scope of the CHRA remedies and the purpose of the

[9]

legislation in earlier decisions. The Panel continues to rely on the approach it set out in these

previous decisions. This section summarizes some of the salient points from those

decisions.

[10] Throughout those decisions, the Panel consistently cited sections 2, 53(2) and 53(3)

of the CHRA. Those provisions are as follows:

Purpose

2 The purpose of this Act is to extend the laws in Canada to give effect, within

the purview of matters coming within the legislative authority of Parliament, to

the principle that all individuals should have an opportunity equal with other

individuals to make for themselves the lives that they are able and wish to

have and to have their needs accommodated, consistent with their duties and

obligations as members of society, without being hindered in or prevented

from doing so by discriminatory practices based on race, national or ethnic

origin, colour, religion, age, sex, sexual orientation, gender identity or

expression, marital status, family status, genetic characteristics, disability or

conviction for an offence for which a pardon has been granted or in respect of

which a record suspension has been ordered.

Complaint substantiated

53 (2) If at the conclusion of the inquiry the member or panel finds that the

complaint is substantiated, the member or panel may, subject to section 54,

make an order against the person found to be engaging or to have engaged

in the discriminatory practice and include in the order any of the following

terms that the member or panel considers appropriate:

(a) that the person cease the discriminatory practice and take

measures, in consultation with the Commission on the general

purposes of the measures, to redress the practice or to prevent the

same or a similar practice from occurring in future, including

(i) the adoption of a special program, plan or arrangement

referred to in subsection 16(1), or

(ii) making an application for approval and implementing a plan

under section 17;

4

(b) that the person make available to the victim of the discriminatory

practice, on the first reasonable occasion, the rights, opportunities or

privileges that are being or were denied the victim as a result of the

practice;

(c) that the person compensate the victim for any or all of the wages

that the victim was deprived of and for any expenses incurred by the

victim as a result of the discriminatory practice;

(d) that the person compensate the victim for any or all additional costs

of obtaining alternative goods, services, facilities or accommodation

and for any expenses incurred by the victim as a result of the

discriminatory practice; and

(e) that the person compensate the victim, by an amount not exceeding

twenty thousand dollars, for any pain and suffering that the victim

experienced as a result of the discriminatory practice.

Special compensation

53 (3) In addition to any order under subsection (2), the member or panel may

order the person to pay such compensation not exceeding twenty thousand

dollars to the victim as the member or panel may determine if the member or

panel finds that the person is engaging or has engaged in the discriminatory

practice wilfully or recklessly.

[11] In addition, the Panel relied on subsection 16(1) which is referenced in section

53(2)(a):

Special programs

16 (1) It is not a discriminatory practice for a person to adopt or carry out a

special program, plan or arrangement designed to prevent disadvantages that

are likely to be suffered by, or to eliminate or reduce disadvantages that are

suffered by, any group of individuals when those disadvantages would be

based on or related to the prohibited grounds of discrimination, by improving

opportunities respecting goods, services, facilities, accommodation or

employment in relation to that group.

[12] The Panel considered the appropriate approach to interpreting the CHRA in 2015

CHRT 14 in order to determine how to assess a retaliation issue (paras. 12-30). The Panel

relied on the modern approach to statutory interpretation that “the words of an Act are to be

read in their entire context, in their grammatical and ordinary sense harmoniously with the

scheme of the Act, the object of the Act, and the intention of Parliament” (para. 12). Further,

5

it is incumbent on adjudicators to consider the special nature of human rights legislation in

applying the CHRA, as noted in cases such as CN v. Canada (Canadian Human Rights

Commission), 1987 109 (SCC), [1987] 1 SCR 1114 [Action Travail des femmes] and

B. v. Ontario (Human Rights Commission), 2002 SCC 66. The Panel also elaborated on

Robichaud v. Canada (Treasury Board), 1987 73 (SCC) and Ont. Human Rights

Comm. v. Simpsons-Sears, 1985 18 (SCC), [1985] 2 SCR 536 [O’Malley] that the

purpose of the CHRA is to eliminate discrimination and that it is not necessary that the

behaviour intends to discriminate.

[13] In the Merit Decision, the Panel determined that funding was a service (paras. 40-

45). In reaching this conclusion, the Panel relied on both prior cases relating to funding and

the quasi-constitutional nature of the CHRA that required that the statute “be interpreted in

a broad, liberal, and purposive manner” appropriate to its special status (para. 43).

[14] Similarly, in the Merit Decision, the Panel reviewed the objective of the CHRA to

promote substantive equality (paras. 399-404). As stated in section 2 of the CHRA, “all

individuals should have an opportunity equal with other individuals to make for

themselves the lives that they are able and wish to have and to have their needs

accommodated, consistent with their duties and obligations as members of society”

(emphasis from Merit Decision at para. 399). Achieving substantive equality will often require

making distinctions to ensure that disadvantaged groups can benefit equally from services

offered to the general public. Assessing substantive equality requires consideration of the

full social, political and legal context of the claim. For First Nations, that includes Canada’s

colonial attitude and resulting stereotyping and prejudice. It also involves the specific

example of the Indian Residential Schools System and the Sixties Scoop. The CHRA

requires that Canada not perpetuate these historical harms and disadvantages through the

provision of its services.

[15] The Panel reviewed the Tribunal’s remedial powers (Merit Decision at paras. 474-

490). The Panel reviewed sections 53(2)(a) and 53(2)(b) of the CHRA that collectively allow

the Tribunal to order a respondent found to engage in a discriminatory practice to cease the

discrimination, redress the discrimination so similar discrimination does not occur in the

future, and provide to the victims the opportunities they were denied. The Panel recognized

6

that the requests for immediate relief were consistent with the purpose of the CHRA but also

acknowledged the need for balance espoused by AANDC. Accordingly, the Panel ordered

Canada to cease its discriminatory practices and reform the FNCFS Program and

Memorandum of Agreement Respecting Welfare Programs for Indians [1965 Agreement]

to reflect the findings in the Merit Decision and to immediately implement the full meaning

and scope of Jordan’s Principle rather than apply its narrow definition. However, achieving

substantive equality requires refocusing policy to respect human rights principles and

appropriate social work practices. It requires more than funding reforms. The Panel

recognized the complexity of an effective remedy in this case. Accordingly, the Panel

indicated it would require further submissions to ensure its remedial orders were fair,

practical, meaningful and effective.

[16] The Panel retained jurisdiction after the Merit Decision until the outstanding remedial

issues were addressed (paras. 493-494). The Panel continued in its subsequent rulings to

retain jurisdiction until the remedial issues are resolved.

[17] In 2016 CHRT 10, the Panel set out in more detail the various remedial issues (paras.

1-5). The Panel identified that the remedial process involved determining compensation and

implementing program reform in the immediate, medium and long-term.

[18] The Panel reiterated the remedial principles of the CHRA that it would use to craft an

effective and meaningful remedial order (2016 CHRT 10 at paras. 10-19). The quasi-

constitutional nature of the CHRA required a broad, liberal and purposive reading. The

remedial powers under section 53 of the CHRA must be interpreted to achieve the equality

objective and purpose articulated as the purpose in section 2 of the CHRA. The purpose of

an order is not to punish a person but to eliminate and prevent discrimination. The Tribunal

must ensure its remedial orders effectively promote the rights protected under the CHRA

and vindicate the losses suffered by victims of discrimination. In doing so, the Tribunal must

take a principled and reasoned approach that considers the particular circumstances of the

case and the evidence presented. Constructing an effective remedy in a complex case such

as this one often demands innovation and flexibility. Section 53(2)(a) and (b) of the CHRA

provide for this flexibility. Those provisions can override an organization’s right to manage

its own affairs and can support a remedy of specific performance. They support provisions

7

educating individuals about human rights. Section 53(2)(a) is designed to address systemic

discrimination which requires addressing discriminatory practices and attitudes which

requires considering historical patterns of discrimination.

[19] In retaining jurisdiction, the Panel cited Grover v. Canada (National Research

Council), 1994 18487 (FC), 24 CHRR D/390 at paras. 32-33 for the proposition that

retaining jurisdiction on complicated orders designed to address systemic discrimination

ensures discrimination is effectively remedied.

[20] In 2016 CHRT 16, the Panel noted that it is Indigenous Services Canada (ISC) and

the federal government’s responsibility to implement the Tribunal’s orders and remedy the

discrimination found in the case. ISC must also communicate its response to the other

parties and the Tribunal so they can ensure the discrimination has been remedied (para. 9).

The Panel also indicated that while it shared the desire to implement a remedy quickly, this

is a complex matter and the Panel is committed to ensuring all parties have an opportunity

to fully present their positions (para. 13).

[21] In 2017 CHRT 14, the Panel considered the burden of proof on parties at the remedial

stage (paras. 27-30). Section 53(2) of the CHRA requires the Tribunal to consider whether

a remedy is appropriate if discrimination is established. To do so, the Tribunal must assess

the evidence available to it but may request additional information and submissions from the

parties if required. The process is focused on gathering the necessary information to craft

effective orders. Accordingly, the question of the burden of proof is not material unless there

is a gap in the evidentiary record.

[22] Similarly, the Panel’s focus is not on making orders determining whether Canada has

complied with previous orders (2017 CHRT 14 at para. 31). Instead, the focus of the retained

jurisdiction is to ensure the Panel’s orders are effective and rectify the adverse effects of the

discriminatory practices identified in the Merit Decision. Furthermore, the Panel’s objective

is to ensure that Canada’s implementation of its orders is sufficiently responsive to the

systemic discrimination detailed in the Tribunal’s findings. That process will take time and it

is valuable to address as many issues as possible immediately while awaiting the evidence

to support long-term reform.

8

[23] Furthermore, the Panel’s approach has been to provide guidelines to encourage the

parties to work out between themselves the details of the remedy (2017 CHRT 14 at para.

32).

[24] The Panel set out why the unique circumstances of this case required Canada to

consult with the other parties in the remedial stage (2017 CHRT 14 at paras. 113-120).

Section 53(2)(a) sets out the authority to order consultation with the Commission. The Panel

distinguished the current case from Canada (Attorney General) v. Johnstone, 2013 FC 113

that found that ordering consultation with other parties was not appropriate. The other

parties’ expertise in this case is invaluable. Furthermore, the Crown has a trust-like

relationship with Indigenous peoples which requires Canada to act honourably in its dealings

with First Nations and to treat them fairly. This relationship also manifests as a fiduciary

relationship and in the duty to consult. Section 1.1 of An Act to amend the Canadian Human

Rights Act, S.C. 2008, c. 30 confirms that the CHRA does not derogate from this

relationship. In addition, the best interests of the child are central to this case. The other

parties in this case include professionals with specific expertise in First Nations child and

family services. These organizations have the knowledge to make recommendations to

improve the cultural appropriateness of Canada’s response. Finally, consultation with First

Nations is consistent with Canada’s stated remedial approach in this case.

[25] In 2018 CHRT 4, the Panel already considered Canada’s arguments about how the

separation of powers limited the Tribunal’s remedial jurisdiction under the CHRA. The Panel

has already answered Canada’s argument and continues to rely on those findings (paras.

21-83). Without repeating all those findings, it is helpful to reiterate that in making its orders

the Tribunal does not seek to usurp the powers of other branches of government. It is

operating under its quasi-constitutional Statute that permits it to address past discriminatory

practices and prevent future ones from occurring. This is provided for in the Act under

section 53 (2) (a).

[26] Section 53(2)(a) of the CHRA gives this Tribunal the jurisdiction to make a cease-

and-desist order. In addition, if the Tribunal considers it appropriate to prevent the same or

a similar practice from occurring in the future, it may order certain measures including the

adoption of a special program, plan or arrangement referred to in subsection 16(1) of the

9

CHRA (see National Capital Alliance on Race Relations (NCARR) v. Canada (Department

of Health & Welfare) T.D.3/97, pp. 30-31). The scope of this jurisdiction was considered by

the Supreme Court of Canada in CN v. Canada (Canadian Human Rights Commission),

1987 109 (SCC), [1987] 1 SCR 1114, [Action Travail des Femmes]).

[27] Consequently, any order made by the Tribunal, especially in systemic cases, has

some level of impact on policy or spending of funds. To deny this power to the Tribunal by

way of decisions from the executive would actually prevent the Tribunal from doing its duty

under the Act which is quasi-constitutional in nature. Throughout its existence, the Tribunal

has made orders on numerous occasions that affect spending of funds. Sometimes orders

amounting to millions of dollars are made (see for example Public Service Alliance of

Canada v. Canada Post Corporation, 2005 CHRT 39 at para.1023 affirmed by the Supreme

Court of Canada, see Public Service Alliance of Canada v. Canada Post Corp., [2011] 3

SCR 572, 2011 SCC 57).

[28] In addition, specific remedies impacting policy are often made to remedy

discrimination. This is particularly true of systemic cases. These remedies have been

confirmed in National Capital Alliance on Race Relations (NCARR) v. Canada (Department

of Health & Welfare), 1997 1433 (CHRT), 28 CHRR 179 and Action Travail des

femmes. Moreover, remedial orders may impose positive obligations on a party. Further, the

orders must flow from the Tribunal’s findings and must be responsive to those findings.

[29] The Tribunal also discussed section 16 of the CHRA relating to the adoption of a

special program, plan or arrangement and prevention of future discrimination by relying on

National Capital Alliance on Race Relations v. Canada (Department of Health & Welfare),

1997 1433 (CHRT) in 2018 CHRT 4 at para. 34:

Section 53(2)(a) of the CHRA gives this Tribunal the jurisdiction to make a

cease-and-desist order. In addition, if the Tribunal considers it appropriate to

prevent the same or a similar practice from occurring in the future, it may order

certain measures including the adoption of a special program, plan or

arrangement referred to in subsection 16(1) of the CHRA (see National

Capital Alliance on Race Relations (NCARR) v. Canada (Department of

Health & Welfare) T.D.3/97, pp. 30-31). The scope of this jurisdiction was

considered by the Supreme Court of Canada in CN v. Canada (Canadian

Human Rights Commission), 1987 109 (SCC), [1987] 1 SCR 1114,

10

[Action Travail des Femmes]). In adopting the dissenting opinion of

MacGuigan, J. in the Federal Court of Appeal, the Court stated that:

...s. 41(2)(a), [now 53(2)(a)], was designed to allow human

rights tribunals to prevent future discrimination against

identifiable protected groups, but he held that "prevention" is

a broad term and that it is often necessary to refer to

historical patterns of discrimination, in order to design

appropriate strategies for the future..... (at page 1141).

(emphasis added)

[30] The Panel rejected Canada’s argument that the separation of powers prevented the

Tribunal from issuing orders affecting policy or public spending that would remedy the

discrimination in this case. This is not a case where the Panel has made an order directing

a specific amount of funding to prevent future discrimination. Exempting Canada from the

remedial scope of the CHRA on the basis of the separation of powers is not consistent with

the purpose of the CHRA and would reduce the Tribunal’s adjudicative role to an advisory

one. Human rights law recognizes cost constraints through the bona fide justification

defence but Canada has not made that argument (2018 CHRT 4 at paras. 45-46).

[31] In crafting its orders, the Panel is not interested in becoming involved in the details

of program or policy design by for example choosing between policies as long as systemic

discrimination is eliminated. The Panel’s objective in the remedial orders is to ensure that

discriminatory policies cease to be used and the discrimination is remedied. The Panel is

willing to make further orders if the discriminatory practices continue. Not to do so would be

unfair to the successful parties. It is important to distinguish policy choices made by Canada

that satisfactorily address the discrimination, in which the Panel refrains from intervening,

from policy choices made by Canada that do not prevent the practice from reoccurring. To

explain this, if the Panel finds that Canada is repeating history and choosing similar or

identical ways to provide child welfare services that amounted to discrimination, the Panel

has justification to intervene. While the Panel is willing to make further orders if Canada

implements policies that fail to address the discrimination, it will not intervene if Canada

implements policies that address the discrimination (2018 CHRT 4 at paras. 48-54).

[32] In particular, the Panel highlights the following passages from 2018 CHRT 4:

11

[51] Indeed, the Supreme Court in Quebec (Commission des droits de la

personne et des droits de la jeunesse) v. Communauté urbaine de Montréal,

2004 SCC 30 () has also directed human rights tribunals to ensure that

their remedies are effective, creative when necessary, and respond to the

fundamental nature of the rights in question:

[52] Despite occasional disagreements over the appropriate means of

redress, the case law of this Court, (…), stresses the need for flexibility and

imagination in the crafting of remedies for infringements of fundamental

human rights (…) Thus, in the context of seeking appropriate recourse before

an administrative body or a court of competent jurisdiction, the enforcement

of this law can lead to the imposition of affirmative or negative obligations

designed to correct or bring an end to situations that are incompatible with the

Quebec Charter. (see at para. 26),(emphasis ours),

[53] If the past discriminatory practices are not addressed in a meaningful

fashion, the Panel may deem it necessary to make further orders. It would be

unfair for the Complainants, the Commission and the interested parties who

were successful in this complaint, after many years and different levels of

Courts, to have to file another complaint for the implementation of the

Tribunal’s orders and reform of the First Nations’ Child welfare system.

[54] It is important to distinguish policy choices made by Canada that

satisfactorily address the discrimination, in which the Panel refrains from

intervening, from policy choices made by Canada that do not prevent the

practice from reoccurring. To explain this, if the Panel finds that Canada is

repeating history and choosing similar or identical ways to provide child

welfare services that amounted to discrimination, the Panel has justification to

intervene.

(2018 CHRT 4 at paras 51-54).

[33] The Panel previously distinguished immediate relief orders from long term reform:

Finally on this point, while Canada advances that it needs to consult with all

First Nations’ communities, which in our view remains paramount for long term

reform, the Panel does not think consultation prevents Canada from

implementing immediate relief. In so far as Canada’s position is that it cannot

unilaterally make decisions, the Panel finds Canada has done so: namely to

maintain the status quo in some areas even when the needs of specific

communities or groups have been clearly identified and expressed in

numerous reports filed in evidence in this case and, referred to, in the [Merit]

Decision’s findings.

(2018 CHRT 4 at para. 55).

12

[34] The Panel recognized the value of Canada engaging in broad consultation with First

Nations’ communities as part of its reforms of child and family services. However, the Panel

did not find that consultation could delay immediate reform (2018 CHRT 4 at para. 55).

[35] The Panel reiterated the objectives of the CHRA at multiple points in its reasons,

including in 2018 CHRT 4 at para. 165:

… the CHRA’s objectives under sections 2 and 53 are not only to

eradicate discrimination but also to prevent the practice from re-

occurring. If the Panel finds that some of the same behaviours and

patterns that led to systemic discrimination are still occurring, it has to

intervene. This is the case here.

(2018 CHRT 4 at para. 165).

[36] The Panel determined that a phased approach to remedies was needed to ensure

short term relief was granted first, then mid-term and long-term relief, and complete reform

which takes much longer to implement. The Panel understood that if Canada took 5 years

or more to reform the Program, there was a crucial need to address discrimination now in

the most meaningful way possible with the evidence available now. It may be necessary for

the Panel to remain seized to ensure both that discriminatory practices are addressed and

that there is an appropriate plan in place to ensure they will not reoccur (2018 CHRT 4 at

paras. 384-389).

[37] In 2019 CHRT 7, the Panel described the remedial provisions of section 53(2)(a) of

the CHRA as an injunction-like power to order that a discriminatory practice cease (paras.

45-55).

[38] The Panel discussed the purpose of individual financial compensation as a remedy

in 2019 CHRT 39 [the Compensation Decision]. Individual remedies both validate the

victims’ suffering and deter future discrimination (para. 14). Damages for wilful and reckless

conduct in particular send a message that human rights are to be respected (para. 15).

These remedies contrast with the other remedies aimed at preventing discrimination (para.

229). More generally in the Compensation Decision, the Panel reiterated its earlier

comments on the remedial purpose of the CHRA, including noting that the Panel was

13

obliged to consider the specific circumstances of the case, including as set out in the

Statement of Particulars, the submissions and the evidence (para. 94-111).

[39] The Panel reviewed the appropriate approach to the Tribunal’s retention of

jurisdiction in 2020 CHRT 7 at paragraphs 51 to 57. The Panel indicated that the retention

of jurisdiction in this case allowed the parties to request amendments to the Panel’s orders

if their expertise and experience identified a means to improve the orders’ effectiveness.

The Panel recognized that implementing remedies in this case would involve discussion and

negotiation between the parties. That is a complex process which requires flexibility. The

Panel reviewed prior caselaw that concluded that it may be appropriate, in particular in the

case of complex remedial orders, for the Tribunal to retain jurisdiction while the order is

implemented.

[40] One of those cases the Panel reviewed was Berberi v. Attorney General of Canada,

2011 CHRT 23:

… the wide remedial powers set out therein, coupled with the principle that

human rights legislation should be interpreted liberally, in a manner that

accords full recognition and effect to the rights protected under such

legislation, enables the Tribunal to reserve jurisdiction on certain matters in

order to ensure that the remedies ordered by the Tribunal are forthcoming to

complainants (see Grover at paras. 29-36).

(2020 CHRT 7 at para. 54 citing Berberi v. Attorney General of Canada, 2011

CHRT 23 at para. 13).

[41] In 2020 CHRT 24, the Panel also noted that it should not remain seized with the case

indefinitely once long-term remedies are addressed and that it should not constantly address

new issues. However, the Band Representative Services issue falls squarely within the

scope of its orders and monitoring in order to eliminate discrimination and prevent it from

reoccurring. (para. 23).

[42] Further, the Panel notes its comments at paras. 21-23:

[21]The Panel issued orders in 2018 CHRT 4 and remained seized of the

implementation of those orders. The Panel has jurisdiction to answer requests

for clarification of those orders, especially if the parties disagree on their

interpretation. The Panel does not view this motion as a new issue. Rather, it

14

is an issue of interpretation and implementation of the order and is one of the

reasons why the Panel remained seized of its orders.

[22]The spirit of the 2018 CHRT 4 ruling is to remain seized of the

implementation of the orders and to amend those orders if subsequent studies

and/or new information show additional details on best practices and specific

needs that were not accounted for given the lack of data. This was always

part of the Panel’s goal for long-term relief and has not changed.

[23]… In fact, in 2018 CHRT 4 at paragraph 444, the Panel wrote:

The Panel retains jurisdiction over the above orders to ensure

that they are effectively and meaningfully implemented, and to

further refine or clarify its orders if necessary. The Panel will

continue to retain jurisdiction over these orders until December

10, 2018 when it will revisit the need to retain jurisdiction

beyond that date. Given the ongoing nature of the Panel’s

orders, and given that the Panel still needs to rule upon other

outstanding remedial requests such as mid-to long term and

compensation, the Panel will continue to maintain jurisdiction

over this matter. Any further retention of jurisdiction will be re-

evaluated following further reporting by Canada (emphasis

added).

[43] In 2021 CHRT 6, the Panel reviewed the scope of the CHRA remedial powers (paras.

51-76). The limitations on the CHRA’s remedial powers are those set out at section 54

limiting remedies against individuals who secured employment or accommodation in good

faith. The Panel confirmed that interpreting the CHRA required using the modern approach

to statutory interpretation in the context of the special nature of human rights legislation, as

the Panel identified in earlier rulings.

[44] The Panel reviewed key case law interpreting the remedial scope of the CHRA with

a particular focus on Action Travail des femmes and Robichaud (2021 CHRT 6 at paras.

59-75). These cases indicate that the Tribunal has significant discretion in awarding

remedies but that this discretion must be guided by the purpose of the legislation to prevent

and remedy discrimination. The remedies must be effective. It is not to be read narrowly to

limit the Tribunal’s remedial tools given both general legislative interpretation principles and

its quasi-constitutional status. Systemic remedies, such as supported under section 53(2)(a)

of the CHRA by reference to section 16(1), are often required in cases of systemic

discrimination. The main purposes of such a systemic remedy in Action Travail des femmes

15

are countering the effects of systemic discrimination including addressing the attitudinal

problem of stereotyping.

[45] In 2021 CHRT 12, the Panel reviewed the remedial purpose of the CHRA in a

consent order (paras. 25-41). The Panel reviewed a number of its prior rulings and findings,

which are summarized above. In addition, Panel referred to Ontario v. Association of Ontario

Midwives, 2020 ONSC 2839. In that case, the Divisional Court approved of the Panel’s

reasoning in this systemic discrimination case that found that “governments have a proactive

human rights duty to prevent discrimination which includes ensuring their funding policies,

programs and formulas are designed from the outset based on a substantive equality

analysis and are regularly monitored and updated” (Association of Ontario Midwives at para.

189).

[46] In addition, the Federal Court’s reasons in Stringer v. Canada (Attorney General),

2013 FC 735 inform the Panel’s approach to systemic remedies. In that case, the Public

Service Labour Relations Board made a factual finding that there was a systemic failure to

accommodate by not providing managers with any training about accommodations. Given

that finding, it was unreasonable to conclude that training would not be a remedy that would

prevent discrimination. In particular, the Court stated that the fact that an employer’s policies,

if followed, would have prevented the discrimination does not preclude the adjudicator from

ordering systemic remedies. A factual finding that would support a systemic remedy required

the adjudicator to properly turn their mind to the appropriateness of the systemic remedy

(paras. 119-126). Finally, the injunction-like cease and desist order continues to stand and

has not been canceled by any subsequent orders.

[47] With the legal principles referred to above, in order to answer the questions below,

the Panel has weighted and considered all evidence alongside the parties’ positions and

supporting materials on a balance of probabilities (see Quebec (Commission des droits de

la personne et des droits de la jeunesse) v. Bombardier Inc. (Bombardier Aerospace

Training Center), 2015 SCC 39 at para. 3).

16

[48] Has Canada arrived at a current approach to capital and to retroactive redress of the

past application of downward adjustments that will fully address the adverse discriminatory

impacts identified by the Tribunal?

[49] The Panel finds there is sufficient evidence and other information in this case to

establish on a balance of probabilities that Canada’s current approach does not fully address

the adverse discriminatory impacts identified by the Tribunal. Furthermore, prima facie

discrimination was previously found concerning this issue and Canada had not established

a defence under sections 15 or 16 of the CHRA. In this motion, Canada’s current approach

did not convince the Tribunal that Canada is addressing the issue in a timely manner to

cease and desist the systemic discrimination identified by the Tribunal.

[50] If not, what further orders (if any) are appropriate?

[51]

The Tribunal will address this under each section below.

General Analysis on Canada’s Approach

[52] In reviewing the submissions and evidence that relate to each of the distinct issues

addressed in this ruling, the Panel has reached some overarching conclusions on Canada’s

approach. These findings are based on the submissions and evidence relating to all of the

issues in this motion and, equally, apply to each of the issues analysed in this ruling.

Accordingly, this portion is set out first because it applies to the entirety of the analysis that

appears later in these reasons.

[53] Upon review of the evidence, it is obvious that clear efforts are being made by ISC

to comply with the Tribunal’s orders as ISC interprets them. Of note, Canada’s affiant Ms.

Johanne Wilkinson, Assistant Deputy Minister for Child and Family Services Reform at ISC,

admitted ISC did not have a specific timeframe for a capital plan for agencies (see Cross-

examination of Johanne Wilkinson, May 7, 2019 at p.83 lines 6-9). In terms of capital, the

evidence shows that Canada places more emphasis on the Tribunal’s 2018 CHRT 4 orders

that did not order actual costs funding for major capital such as major renovations, space

expansions, building purchase and construction. Ms. Wilkinson read the Merit Decision,

2016 CHRT 10, and 2016 CHRT 16. Moreover, she testified that the Merit Decision

17

“certainly found that there were discriminatory practices in the program and called for a

number of reforms to begin and for the discriminatory practices to end and for funding to

flow to make up for those gaps” and was aware the Tribunal had stated the rulings should

be read together (see Cross-examination of Johanne Wilkinson, May 7, 2019 at pp.16-17).

It is also clear that ISC has a process to follow to modify its program authorities and Terms

and Conditions. While it does have some flexibility, when its authorities and Terms and

Conditions do not include an item even if ordered by the Tribunal such as capital

infrastructure that supports the delivery of services forming part of these proceedings, ISC

resorts to a number of steps. For example, it will discuss with its partners at different tables

and elsewhere and collect information. ISC will use that information in order to make a case

to Treasury Board and Cabinet for potential changes as Ms. Wilkinson describes it: “if there

is appetite for it”. It is also manifest that ISC has to follow legal processes under the Financial

Administration Act and Treasury Board and seek approval for significant expansion and/or

expenses that are not in the FNCFS Program’s authorities and Terms and Conditions.

[54] Parliament has the exclusive authority to issue payments out of public funds, as

confirmed by section 26 of the Financial Administration Act. A government department

cannot unilaterally make such a payment. When a Minister determines that a policy change

requires increased funding, the Minister must seek approval from Cabinet and prepare a

Treasury Board submission. The Treasury Board process requires specific details on how

the funding will be used and the justification for the change. “Terms and Conditions”

establish the parameters of how the money can be spent. ISC is responsible for ensuring

that FNCFS Program funds are used in accordance with the Terms and Conditions as part

of the government’s stewardship role for the accountability of public funds.

[55] In the end, the decision is made by Treasury Board or Cabinet to accept the inclusion

or not of funding for specific items as part of the approved authorities. In other words, as

explained above, ISC does not have the final word, Cabinet and Treasury Board do. The

parties to the CCCW discussed strategies to increase the capital threshold, accompanied

by a directive on capital, so that further changes to the threshold would not require a

Treasury Board process. The draft directive on capital would be provided to the CCCW for

18

review. This is a positive plan that may fully address immediate funding needs in some cases

and partially do so for others given the funding cap. This will be revisited below.

[56] Nevertheless, it may be less compelling for Cabinet and Treasury Board to approve

authorities if there is a belief that other programs may be responsive to needs. However, to

date while efforts are made to collect information, the information remains unclear on the

elimination of the lack of coordination found that impacts service delivery. There is

insufficient evidence about different programs offered to First Nations children and families

on-reserve and how each really address the real needs of children and families. In other

words, the Tribunal is unaware of the existence of a completed thorough analysis of all

programs on-reserve, how they interrelate, intersect and ensure that there are no gaps in

services to First Nations children. There is insufficient evidence to date to establish that the

gaps in services to First Nations children and families on-reserve or ordinarily on reserve

have all been addressed and accounted for by other programs when the FNCFS Program’s

authorities do not include items or place a funding cap. The Tribunal raises this point to

illustrate that referring to other programs when a legitimate request is made for service

delivery may not be sufficiently responsive to the Tribunal’s orders as it will be explained

below.

[57] Further, while the Panel understands the funding processes established in law, little

is said about Parliament’s goal to eliminate discrimination and the Executive needs to take

into account Canada’s established liability. The Tribunal found systemic racial discrimination

in 2016 and ordered Canada to cease it. Canada did not challenge the Tribunal’s orders to

cease the discriminatory practices to reflect the findings in the Merit Decision.

[58] The Panel believes that both fiscal accountability and remedying systemic

discrimination can certainly coexist and be applied together. However, as it will be further

explained below, the Panel rejects Canada’s argument that if Cabinet and Treasury Board

do not adequately fund the FNCFS Program and Jordan’s Principle, the Tribunal should

accept this because of the separation of powers. The Tribunal already rejected a separation

of powers argument in previous unchallenged rulings. Canada did not make an argument

under section 15 or 16 of the CHRA. Canada was found liable and was ordered to cease

the discrimination that is still ongoing until long term reform is implemented.

19

[59] Moreover, if the Tribunal accepts Canada’s argument, this would allow the Executive

to be shielded from orders even when found liable in human rights cases. Furthermore, all

that Canada would have to advance to shield itself is that it is not the government’s goal or

priority. The SCC rejected that argument in Kelso v. The Queen, 1981 171 (SCC),

[1981] 1 SCR 199, which the Tribunal relied on in the Merit Decision. The Tribunal makes

clear that Parliament expressed its goal clearly in adopting the quasi-constitutional CHRA.

Cabinet and Treasury Board are not above the CHRA’s application. When found liable for

systemic discrimination, they must eliminate it effectively. Lastly, Canada’s Financial

Administration Act arguments advanced in this motion are insufficient to establish a section

15 or 16 of the CHRA defence.

[60] This being said, in participating in consultation tables such as the CCCW, the

National Advisory Committee on First Nations Child and Family Services Program Reform

(NAC) and others, ISC often hears from the parties and other partners on the areas requiring

improvement. The evidence demonstrates not only that ISC is present at those meetings

but also is making improvements to the FNCFS Program and to Jordan’s Principle

mechanism and those changes are often informed by those discussions. Some changes

are made following discussions with the parties. Real efforts are made by ISC staff to make

cases to Treasury Board and/or Cabinet for funding.

[61] The Panel understands that disagreements may occur and is not ordering

consensus. While it is ideal, it may not always be possible. The Panel looked at the nature

of disagreements in light of its findings. Many approaches may be valid as long as there is

evidence that the real needs of First Nations children are being met sooner rather than later.

This is the Tribunal’s focus.

[62]

It is also clear from the evidence that Canada is on board for the development of a

new long-term funding formula informed by new studies.

[63] Further, the Tribunal ordered a complete reform of the FNCFS Program to cease and

desist from the discriminatory practice found in the decision including to move away from

the lack of coordination of federal programs causing gaps, denials and delays in services to

First Nations children and families.

20

[64] The Honourable Jane Philpott, Canada's first Minister of Indigenous Services, began

to lead ISC's efforts to start bringing a holistic approach to delivering the social, healthcare,

and infrastructure services essential to ensuring healthy children, individuals, families and

communities. The First Nations and Inuit Health Branch (FNIHB) has been formally

transferred from Health Canada to the new Department of Indigenous Services Canada.

She stated that: “Our work will be based on recognition and respect for the right to self-

determination” (See affidavit of Lorri Warner, dated March 4, 2020 at exhibit 9).

[65] Canada’s expressed its goal to move away from Canada’s previous approach to

programs that the Tribunal found to be working in silos. Canada stated it is focusing on a

holistic, intersectional and First Nation community driven approach which if fully

implemented would address the systemic racial discrimination found by the Tribunal and

would align with the United Nations Declaration on the Rights of Indigenous Peoples in the

long-term. The Panel entirely agrees with this goal if it materializes.

[66] Further, the Panel prefers this Nation-to-Nation approach and has expressed it in its

previous rulings especially in 2018 CHRT 4. Therefore, the Panel agrees with Canada on

this important goal.

[67]

This is the ideal approach as long as the systemic racial discrimination is

satisfactorily addressed and communities and agencies are not denied when they express

real measurable needs connected to service delivery including during transition as it will be

discussed below.

II.

Major Capital Context

[68] The moving parties in this motion request that Canada be directed to fund Major

Capital for FNCFS Agencies, for Jordan’s Principle requests, and for First Nations in Ontario

providing Band Representative Services and prevention services. The moving parties

request that this funding include related costs such as feasibility studies and administrative

costs involved in Major Capital projects.

21

[69] The Terms and Conditions of the FNCFS Program identify Major Capital as “the

purchase or construction of capital assets (e.g. buildings) that support the delivery of FNCFS

services”.

[70] In the Merit Decision, the Tribunal noted that the first Wen:De Report, from 2004,

identified a lack of funding for capital costs (Merit Decision at para. 157). The Tribunal relied

on the second and third Wen:De reports again confirming the lack of capital funding (Merit

Decision at paras. 162 and 177). The lack of cost-sharing of capital expenditures since 1975

under the Memorandum of Agreement Respecting Welfare Programs for Indians (the 1965

Agreement) resulted in children being sent out of communities for treatment due to a lack of

facilities in the communities (Merit Decision at para. 245). The inadequate funding for capital

was found to hinder FNCFS Agencies’ ability “to provide provincially/territorially mandated

child welfare services, let alone culturally appropriate services to First Nations children and

families” (Merit Decision at para. 458). The lack of funding for capital was part of the

evidence that substantiated the finding of a discriminatory practice in the Merit Decision.

[71] Three months after the Merit Decision, the Tribunal issued a ruling directing Canada

to implement immediate reforms to the FNCFS Program, the 1965 Agreement and Jordan’s

Principle. The ruling emphasised the need to reform the funding structure of the FNCFS

Program including as it relates to capital infrastructure (2016 CHRT 10 at para. 20).

[72]

The Tribunal reiterated the need for immediate relief including in relation to capital

infrastructure in 2016 CHRT 16 at paragraph 36. Of note, at paragraph 18, the Tribunal

reminded Canada that the funding did not accurately reflect the real service needs of many

on-reserve communities resulting in inadequate fixed funding for operation costs (capital

costs, multiple offices, cost of living adjustment, staff salaries and benefits, training, legal,

remoteness and travel) and prevention costs (primary, secondary and tertiary services to

maintain children safely in their family homes), hindering the ability of FNCFS Agencies to

provide provincially/territorially mandated child welfare services, let alone culturally

appropriate services.

[73] The Tribunal recognized, in 2016, that while capital spending for repairs, especially

to ensure compliance with appropriate fire, safety and building code standards, could be

22

done immediately while some capital discussions would require longer to ensure an

appropriate planning process (2016 CHRT 16 at para. 49).

[74] In 2016 CHRT 16, the Tribunal again recognized that capital infrastructure had not

been funded under the 1965 Agreement since 1975. The Tribunal identified an immediate

need for interim capital funding until the long-term capital issues could be addressed (2016

CHRT 16 at para. 97).

[75] Further, at paragraph 160, the Tribunal ordered INAC to determine budgets for each

individual FNCFS Agency based on an evaluation of its distinct needs and circumstances,

including an appropriate evaluation of how remoteness may affect the FNCFS Agency’s

ability to provide services.

[76] The Tribunal addressed requests for funding the actual costs of a number of items

including building repairs in 2018 CHRT 4. The Tribunal engaged in extensive analysis that

reiterated that funding was inadequate, including for infrastructure and capital expenditures

and that the failure to address these deficiencies amounted to a continuation of the

discriminatory practice identified by the Tribunal in the Merit Decision. The Tribunal

addressed Canada’s concerns about funding and noted that Canada’s willingness to provide

indeterminate funding for First Nations children apprehended into care but not for providing

adequate prevention services reflected a system built on a colonial mindset perpetuating

historical harm against Indigenous peoples, and all justified under policy. Moreover, it is

leading to the mass removal of First Nations children from their homes, families,

communities and Nations (2018 CHRT 4 at paras.47, 62, 66 and 114-195). Based on this

analysis and the concerns it identified with Canada’s practices, the Tribunal ordered Canada

to provide immediate funding relief for minor capital expenditures such as building repairs

(2018 CHRT 4 at paras. 212-213, 231-237). The Tribunal recognized the need to assess

the capital requirements of all FNCFS Agencies to inform immediate, mid and long-term

reform and incorporate such directions into its orders (2018 CHRT 4 at para. 374).

[77] Additionally, the Tribunal found that the failure to fund Band Representative Services

was discriminatory. In the Merit Decision, the Tribunal found that Ontario appropriately

funded Band Representative Services while Canada took the position that it was not

23

required to do so (paras. 392, 425 and 426). The Tribunal confirmed the need to rectify the

discriminatory practice of not appropriately funding Band Representative Services in the

Merit Decision at paras. 228-230, 236-238, 389, 392, 425 and 426; 2018 CHRT 4 at

paragraphs 324-337 and 2020 CHRT 24.

[78] The Institute for Fiscal Studies and Democracy (IFSD) completed its report,

“Enabling First Nations Children to Thrive” on the needs of FNCFS Agencies on December

15, 2018. The report recommended a one-time capital investment of between $116 and

$175 million based on current service provision with a further budgeted 2% annual

recapitalization rate. The report also identified agencies concerns that their current

infrastructure was inadequate, including 59% who reported that buildings required repairs.

[79] Finally, on this point it is noteworthy to mention two significant pieces of information.

The first one is that the Terms and Conditions of the FNCFS Program, which defines what

expenses can be funded under the program, now indicate that both Minor and Major Capital

expenses are eligible for funding.

[80] The second one is that, ISC currently has a Capital Directive in relation to capital

spending for FNCFS Agencies. This document has undergone a number of revisions and

has been discussed at CCCW meetings. The party submissions, summarized below,

discuss the adequacy of these measures.

III.

A.

Major Capital Party Submissions

The Caring Society

[81] The Caring Society requests the following orders:

1. Further to the Tribunal’s February 1, 2018 orders in 2018 CHRT 4, Canada

shall fund the Major Capital costs of small FNCFS Agencies, and for

administration and governance, prevention, intake/investigation, and legal

services at their actual cost;

2. In consultation with the CCCW, Canada shall provide funding for FNCFS

Agencies to conduct Major Capital needs and feasibility studies;

24

3. Where such feasibility studies identify a need for Major Capital, Canada

shall fund the design, land purchase (if required) and fulfillment of permit and

other administrative requirements to facilitate construction;

4. Where projects are ready to proceed, Canada shall fund the Major Capital

needs of FNCFS Agencies at actual cost;

5. In order to carry out orders #3 and #4, Canada shall create a long-term

capital envelope for FNCFS Agencies to address their Major Capital needs as

they continue to arise, with the initial size of the envelope to be guided by the

IFSD report.

6. Canada shall write to all First Nations child and family services agencies

within 30 days of the order advising them on how to access Major Capital

funding; and

7. Canada shall post its policy on Major Capital for FNCFS Agencies on its

website.

[82] The Caring Society relies on the Tribunal’s findings in the Merit Decision for the

importance of capital funding. In particular, the Caring Society notes that the Tribunal found

that the failure to provide for capital costs hinders “the ability of FNCFS Agencies to provide

provincially/territorially mandated services, let alone culturally appropriate services to First

Nations children and families” (Merit Decision at para. 458). The Caring Society argues that

the funding for new staff and programs aimed at addressing the discrimination in this case

cannot be effective without adequate space in which to operate. The relief requested is

limited to ancillary Major Capital costs of increased programming that accompanies the

Tribunal’s existing orders.

[83] The Caring Society recognizes that the Tribunal’s order in 2018 CHRT 4 concerning

repairs address part of the physical infrastructure deficit but contends that it does not

address the provision of additional space for new or expanded preventative programming.

[84] The Caring Society further relies on these orders to reject Canada’s submission that

the requested relief on this motion is outside the scope of the motion. For example, 2016

CHRT 16 at paragraph 158 indicated the items to be addressed immediately “include […]

capital infrastructure […]”. Canada advanced, and lost, a similar argument about scope in

its closing submissions on the Merit Decision.

25

[85] While the Caring Society appreciates the Panel’s direction to Indigenous and

Northern Affairs Canada (INAC), now ISC, to “develop an interim strategy to deal with the

infrastructure needs of FNCFS Agencies” (2016 CHRT 16 at para. 97), the Caring Society

is not satisfied with Canada’s progress to date. While Major Capital has been added to as

an eligible expenditure pursuant to FNCFS Program terms and conditions and Canada has

recognised infrastructure in its Jordan’s Principle costing, Canada has not presented a

concrete plan or commitment to provide appropriate funding. While Canada has asserted a

need to coordinate with other groups and organizations, the Caring Society is concerned

that Canada ought to be proceeding more expeditiously based on available, quality

information. The Caring Society notes that the issue of capital has been “under discussion”

for a very long time, dating back to the 2000 National Policy Review. The matter was

addressed by a number of witnesses during the 2013-2014 hearings.

[86] The Caring Society notes that the IFSD circulated a needs assessment report titled

“Enabling First Nations Children to Thrive” to the parties on December 15, 2018 with findings

and recommendations including in relation to capital requirements. The report was

published on January 14, 2019. The Caring Society contends that this report provides the

information Canada requires to meet the Major Capital needs of FNCFS Agencies. The

IFSD report indicated that a one-time investment of between $116 million and $175 million

is required for FNCFS Agency headquarter facilities. The report provides a reference point

but need not be the exclusive source of information. The Caring Society advises that it is

not seeking an order for a specific amount but, rather, is seeking an order that Canada act

on the expert advice produced by the ordered needs assessment. Further, and contrary to

Canada’s submissions, the Caring Society is not seeking an order requiring the

implementation of the IFSD report. Nor is the Caring Society seeking a certain quantity of

funding to be set aside. Rather, the Caring Society seeks an order directing Canada to

create a funding envelope and to consider the IFSD report when establishing the structure

of the funding envelope and initial funding available.

[87] The Caring Society submits that it is unnecessary to wait for a full new funding model

to address these needs. In particular, Major Capital expenditures have not been funded

since 1991.

26

[88] The Caring Society indicates that its requested orders are broadly worded in order to

respect First Nations decision-making and existing programs. The Caring Society assumes

that feasibility studies would be expected to take First Nations priorities into consideration.

The Caring Society is not asking the Tribunal to impose its view of community needs but

rather is asking the Tribunal to establish a framework that would allow communities to

identify and meet their needs. The Caring Society does not assume the capital funding

would be provided outside the Community Infrastructure Branch.

[89] The Caring Society contends that Canada’s argument that it has complied with the

Panel’s capital funding orders to date fails to recognize the specific needs identified by the

Panel in its reasons and the Panel’s direction not to read the orders in isolation from the

reasons. The identified deficiencies in Major Capital funding require proactive steps beyond

policy changes.

[90] The Caring Society argues that Canada’s submissions demonstrate the ad hoc

nature of capital funding for FNCFS Agencies relying on surpluses, specific Budget 2018

funding, or Community Well-being and Jurisdiction Initiatives. There is no capital funding

program to support Jordan’s Principle. Further, Canada has not indicated there is any

government mandate to provide capital in order to address, in particular, Jordan’s Principle

group requests.

B.

The Chiefs of Ontario

[91] The Chiefs of Ontario (COO) support the Caring Society’s submissions.

C.

Assembly of First Nations

[92] The AFN supports the Caring Society’s submissions. The AFN submits that an order

directing Canada to work with the other parties to develop a long-term solution to address

capital infrastructure by a fixed date is both necessary and desirable.

[93] In addition, the AFN indicates that the Panel found, in the Merit Decision at paragraph

458, that deficiencies in capital funding hindered “the ability of FNCFS Agencies to provide

27

provincially/territorially mandated child welfare services, let alone culturally appropriate

services to First Nations children and families.” Little progress has been made on

discussions to date. The IFSD report reasserts the need for Canada to provide adequate

Major Capital funding.

D.

Nishnawbe Aski Nation

[94] Nishnawbe Aski Nation (NAN) supports the position of the Caring Society.

E.

Commission

[95] The Canadian Human Rights Commission (Commission) does not seek any

particular order. However, the Commission would welcome an enforceable timeline around

next steps including Canada’s response to the IFSD report.

[96] The Commission starts by providing general comments. This matter relates to the

implementation of the Tribunal’s previous rulings and arises pursuant to the Tribunal’s

retained jurisdiction. As the Commission has previously submitted, the previous rulings set

out the nature, scope and purpose of the Tribunal’s retained jurisdiction. Further orders may

be necessary in order to craft an effective remedy involving complex policy reform. There is

likely a need for the Tribunal to receive further information from the parties. The Tribunal

encouraged the parties to work collaboratively to implement remedies.

[97] The Commission indicates that section 53 of the CHRA provides the Tribunal with

broad remedial authority to make victims of discriminatory practices whole and to prevent a

recurrence of the discrimination. The Commission rejects the suggestion that the Tribunal

does not have the jurisdiction to issue remedial orders that require the allocation of public

funds or changes to public policy. The Tribunal rejected a similar argument in 2018 CHRT

4 at paragraphs 31-48 with reasons that continue to apply. Further, section 53 of the CHRA

provides the Tribunal the statutory authority to impose such a remedy. The Financial

Administration Act must be read in the context of the quasi-constitutional status of the CHRA

that is presumed to have primacy over other legislation.

28

[98] The Commission summarizes the Tribunal’s prior rulings on this matter. The Tribunal

found that Canada’s underfunding of prevention services, failure to fund Band

Representative Services in Ontario, and failure to properly implement Jordan’s Principle

constituted discriminatory practices. The Tribunal ordered Canada to remedy the

discrimination including by providing funding to provide these services in a substantively

equal and culturally appropriate manner. The Tribunal’s orders extended to the provision of

adequate capital funding. The finding in the Merit Decision that the FNCFS Program funding

structure created deficiencies, including through the lack of capital infrastructure, that

hindered the ability of FNCFS Agencies to provide mandated, let alone culturally

appropriate, services was supported through numerous pieces of evidence. The 2016

CHRT 10 and 2016 CHRT 16 rulings included capital infrastructure as an item to be

remedied immediately. In 2018 CHRT 4, the Tribunal found that Canada’s proposal to

address minor capital was inadequate. The Tribunal directed an assessment of capital

needs while providing reimbursement of actual costs pending the implementation of a new

funding model.

[99] The Commission summarizes the current state of Major Capital funding. It notes that

the terms and conditions of the FNCFS Program identifies that eligible expenses include

Major Capital whether provided by FNCFS Agencies or others such as First Nations

delivering programs. The IFSD report includes an assessment and quantification of capital

needs for FNCFS Agencies. Canada has not conducted a specific survey or assessment on

the capital needs of First Nations in Ontario with respect to prevention or Band

Representative Services. Jordan’s Principle funding has not contained authorizations for

capital spending to provide space to deliver the funded services.

[100] The Commission submits that the Tribunal’s previous decisions have already

identified the need for capital funding to ensure the delivery of appropriate services. Canada

has taken steps with the IFSD needs assessment, amending the terms and conditions of

the FNCFS Program and discussing capital spending with the parties while paying the actual

costs of required repairs on an interim basis. Nonetheless, considerable time has passed

since the Tribunal first identified this issue.

29

[101] The Commission is of the view that Canada has yet to settle on a long-term strategy

to meet actual capital needs, nor has it communicated clear directions for FNCFS Agencies,

First Nations or other service providers to follow when seeking Major Capital in the interim.

F.

Canada

[102] In sum, Canada submits that it has complied with the Tribunal’s orders and there are

no outstanding issues of compliance. There is no evidence of ongoing discrimination. The

motion for non-compliance should be dismissed. Canada should be given time to follow the

democratic structures in place to ensure the accountability of public funds. Further, Canada

should be provided an opportunity to continue the current system that involves collaboration

with Indigenous governing bodies.

[103] In general, Canada has updated the guidance it provides to First Nations and FNCFS

Agencies about the FNCFS Program. It has removed Chapter 5 from the Social Programs

National Manual and instead provides a variety of tools that support making claims based

on actual expenses. These documents were developed in consultation with the parties and

have been updated as the FNCFS Program’s Terms and Conditions changed.

[104] Along with the other parties, Canada established the CCCW for consultations on the

implementation of the Tribunal’s orders. Canada has been engaging partners beyond the

CCCW as well. In addition to existing funding increases and program reforms, Canada is

committed to long-term reform of the FNCFS Program that includes a consideration of the

1965 Agreement, remoteness and long-term options for funding methodologies. This has

involved a number of studies.

[105] Canada summarizes its response to various orders issued by the Tribunal. Canada

has provided various affidavits to demonstrate that it is paying the actual costs of FNCFS

Agencies retroactive to January 26, 2016 while the program is being reformed, it is

addressing urgent capital needs, it has approved $9.4 million in building repairs, that it has

consulted with the parties through the CCCW, and it has revised the authority for funding

capital in FNCFS Program’s Terms and Conditions. They now allow for greater flexibility and

expansion on eligibility for expenditures, including expenditures related to capital/building

30

repairs, the purchase or construction of capital assets (e.g., buildings), and the purchase

and maintenance of information technology equipment.

[106] As noted in Canada’s March 4, 2021 letter, the Terms and Conditions allow

budgetary surpluses to be reallocated to cover capital expenditures. Canada has also

increased the amount of FNCFS Program funds from $1.5 million to $2.5 million for agencies

to use their available funds on capital needs, which would help account for inflation and

other pressures. Capital funding is also available under the Community Well-being and

Jurisdiction Initiatives.

[107] Canada contends that it has demonstrated its commitment to developing a new

funding mechanism in consultation with the other parties. Canada recounts its consultation

with other parties while developing revisions to the FNCFS Program Terms and Conditions.

Canada indicated it would benefit from the IFSD report in order to determine capital

requirements. Overall, Canada has almost doubled funding for the FNCFS Program,

radically altered how ISC budgets and manages its finances, and implemented long-term

reform to ensure that planning is informed by the principle of substantive equality.

[108] Canada reiterates the importance of working collaboratively to reform the FNCFS

Program, including as identified by the Tribunal in previous rulings. Reforms require

collaboration. There is no quick fix to the FNCFS Program.

[109] Canada frames the requested motion as seeking the following orders:

1. Fund the Major Capital costs of small FNCFS Agencies, and

for

administration

and

governance,

prevention,

intake/investigation, and legal services at their actual cost;

2. Provide funding for FNCFS Agencies to conduct Major

Capital needs and feasibility studies;

3. Based on the feasibility needs, to fund the design, land

purchase (if required) and fulfillment of permit and other

administrative requirements to facilitate construction;

4. Where projects are ready to proceed, Canada shall fund the

Major Capital needs of FNCFS Agencies at actual cost; and

31

5. Based on the above, to create a long-term capital envelope

for FNCFS Agencies to address their Major Capital needs as

they continue to arise, with the initial size of the envelope to be

guided by the IFSD report.

[110] Canada indicates that Parliament has the exclusive authority to issue payments out

of public funds, as confirmed by section 26 of the Financial Administration Act. A government

department cannot unilaterally make such a payment. When a Minister determines that a

policy change requires increased funding, the Minister must seek approval from Cabinet

and prepare a Treasury Board submission. The Treasury Board process requires specific

details on how the funding will be used and the justification for the change. “Terms and

Conditions” establish the parameters of how the money can be spent. ISC is responsible for

ensuring that FNCFS Program funds are used in accordance with the Terms and Conditions

as part of the government’s stewardship role for the accountability of public funds.

[111] Canada argues that there are limits on the Tribunal’s jurisdiction and an order

directing the allocation of capital expenditures outside the First Nations child and family

services model is beyond the scope of the complaint. Canada sees a material difference

between an order to bring buildings up to code and funding Major Capital projects. While

appropriate funding for Major Capital is required, it is not ancillary to an order to repair

buildings. There is a distinction between ordering remedies with an incidental impact on

funding and dictating a specific replacement policy. Ontario v. Criminal Lawyers' Association

of Ontario, 2013 SCC 43 indicates that courts do not have the jurisdiction to interfere with

the allocation of public funds absent statutory authority or a constitutional challenge. Canada

expresses concerns that the Tribunal’s exceptional retention of remedial authority should

not result in detailed management of the case, as cautioned against in Doucet-Boudreau v.

Nova Scotia (Minister of Education), 2003 SCC 62 at para. 74. Similarly, Canada cautions

against allowing the scope of remedial issues to expand such that the remedial phase

becomes a moving target (Entrop v. Imperial Oil Ltd., 2000 16800, 50 OR (3d) 18

(OCA) at para. 58).

[112] Orders that specifically dictate funding would be problematic. Government funding

relies on certainty that is not provided by a direction to fund actual costs. Directing a specific

remedy risks creating delay by imposing a remedy ill-suited to the government context.

32

[113] Canada contends that a long-term capital plan requires ongoing consultation and

time. Consultation is ongoing on this issue and it is important that the consultation involves

First Nation communities. An intervention in this ongoing process would represent a

departure from the Tribunal’s role of adjudicating a specific complaint.

[114] Furthermore, Canada submits the requested orders do not consider the need for

coordination between First Nations and FNCFS Agencies. The proposed order would ignore

ISC’s existing infrastructure program that respects the prioritization process First Nations

have undertaken. An order directing specific on-reserve infrastructure without consultation

with First Nations would impact other types of on-reserve infrastructure. It is not appropriate

to make an infrastructure decision in isolation from the First Nation’s priorities and planning

process already in place. The proposed orders would be contrary to the Nation-to-Nation

relationship and reconciliation Canada seeks with First Nations.

[115] Canada has previously advised the Tribunal of how the on-reserve infrastructure

process is coordinated through the Community Infrastructure Branch of ISC. Canada has

indicated how ISC has made significant investments in infrastructure and is working with the

AFN to continue to identify needs. Canada explains how First Nation prioritization of needs

allows infrastructure to be more effective. The FNCFS Program does not have infrastructure

expertise such as knowledge of relevant building codes and health and safety standards.

Accordingly, the FNCFS program needs to rely on expertise outside the program in

addressing infrastructure needs. Establishing a capital funding program within FNCFS

Program would be duplicative of existing programs and complicated First Nations interaction

with ISC bureaucracy while interfering with an established First Nations planning process.

[116] Moreover, Canada argues that the FNCFS Program Terms and Conditions do not

currently allow it to fund infrastructure off-reserve. The Community Infrastructure Branch

would be better positioned to provide such services.

[117] Canada notes that there is no order requiring it to implement the IFSD report. Further,

Canada and the parties agree that additional work and research is required. Accordingly,

Canada funded additional research of up to $1.7 million and approved a research proposal

by the AFN. It would be inappropriate to rely solely on the IFSD report for an expenditure of

33

such a large sum of money. Canada seeks to work collaboratively with the other parties to

enable the FNCFS Program to make the strongest possible case for new funding. Canada

has identified a number of factors not considered in the report such as the funding from the

2018 Budget. While helpful, the IFSD report does not provide the requisite comprehensive

understanding of the broad needs of all FNCFS Agencies. The uptake on capital funding to-

date does not support the magnitude of investment found to be required by the IFSD report.

It would also be inappropriate for the Tribunal to impose its estimation of community capital

requirements in place of plans developed by First Nations.

[118] Canada contends that Ontario specific requested orders are a significant expansion

of the complaint. The requested order would make child and family services the

infrastructure priority for all communities which could cause delays for other infrastructure

projects identified as a priority by the community. Canada is open to explore changes to the

existing process but that requires technical discussion better suited to CCCW meetings with

direct consultations with First Nations.

[119] Canada reiterates a commitment to engage in conversations about long-term capital

funding including the proposed capital directive it submitted to the parties for discussion.

The most recent version of the capital directive reflects feedback that Canada received from

the parties. Canada also emphasizes that it has engaged in consultations on issues that go

beyond the scope of the complaint.

[120] Furthermore, Canada submits that the other parties’ submissions demonstrate that

Canada is engaged in good faith discussions to resolve outstanding issues. The parties

have yet to reach an agreement on some issues and on other issues there are

disagreements between the parties. Canada indicates that it has accepted and incorporated

many suggestions received through the CCCW and National Advisory Committee on First

Nations Child and Family Services Program Reform (NAC) while acknowledging it has not

accepted every recommendation. Canada contends that the Tribunal’s intervention is

required simply because the parties have not been able to reach a consensus, particularly

on an operational question. Canada retains discretion to make program choices that differ

from the parties preferred approach. That does not make the decision discriminatory, nor a

breach of Canada’s duty, should it apply, for consultation to involve good faith discussion.

34

[121] Canada further submits that it cannot be required to obtain the approval of other

parties before implementing responses to the Tribunal’s remedial orders. Canada relies on

Canada (Attorney General) v. Johnstone, 2013 FC 113 in support of this proposition.

Canada retains its role as legislative and executive branch of government.

IV.

A.

Major Capital Analysis

Prior Major Capital Analysis

[122] The Panel commented on issues relating to capital funding in prior decisions. The

Panel continues to rely on those findings and analysis. Some of those findings and analysis

are set out in what follows.

[123] In the Merit Decision, the Panel identified the underfunding of capital requirements

through the FNCFS Program contributed to the discrimination identified in the case and the

inadequate funding to deliver child and family services, let alone to deliver them in a

culturally sensitive manner:

[157] The authors noted that the concerns and challenges expressed by the

FNCFS Agencies that it interviewed were in line with the NPR findings and

recommendations, such as the lack of funding for prevention services, legal

services, capital costs, management information systems, culturally based

programs, caregivers, staff salaries and training, and costs adjustments for

remote and small agencies (see Wen:De Report One at pp. 6, 8).

[124] Further comments that informed the Panel’s analysis in the Merit Decision are found

at p. 119 of Wen:De Report One:

Capital investments are lacking in First Nations communities. In most First

Nations communities, there is also a need for a comprehensive plan relating

to the capital requirements that would build up the physical infrastructure.

Funding needs to address the ability of agencies to secure buildings and

facilities and to have control over them. For example, internally-managed

therapeutic foster care treatment units are crucial capital investments that will

ensure stability and consistency for long-term placements, such as high

needs/high medical needs children in foster care. Maintaining residential

programs is essential to ensuring an Aboriginal content to programming

[125] Returning to the Merit Decision, the Panel wrote:

35

[162] Overall, with regard to funding under the FNCFS Program, at page 7,

Wen:De Report Two found that:

First Nations child and family service agencies are inadequately

funded in almost every area of operation ranging from capital

costs, prevention programs, standards and evaluation, staff

salaries and child in care programs. The disproportionate need

for services amongst First Nations children and families coupled

with the under-funding of the First Nations child and family

service agencies that serve them has resulted in an untenable

situation.

…

[177] Wen:De Report Three recommends certain economic reforms to

Directive 20-1, along with policy changes to support those reforms. The

recommended economic reforms from Wen:De Report Three, include: a new

funding stream for prevention/least disruptive measures (at pp. 19-21);

adjusting the operations budget (at pp. 24-25); reinstating the annual cost of

living adjustment on a retroactive basis back to 1995 (at pp. 18-19); providing

sufficient funding to cover capital costs (buildings, vehicles and office

equipment) (at pp. 28-29); and, funding for the development of culturally

based standards by FNCFS Agencies (at p. 30).

…

[184] Total costs of implementing all the reforms recommended in Wen:De

Report Three were estimated at $109.3 million, including $22.9 million for new

management information systems, capital costs (buildings, vehicles and office

equipment) and insurance premiums; and, $86.4 million for annual funding

needs (see at p. 33).

…

[190] The Auditor General further noted that because the FNCFS Program’s

expenditures were growing faster than AANDC’s overall budget, funds had to

be reallocated from other programs, such as community infrastructure and

housing. This means spending on housing has not kept pace with growth in

population and community infrastructure has deteriorated at a faster rate. In

the Auditor General’s view, AANDC’s budgeting approach for the FNCFS

Program is not sustainable and needs to minimize the impact on other

important departmental programs (see 2008 Report of the Auditor General of

Canada at p. 25, ss. 4.72-4.73), (emphasis added).

[191] The Auditor General of Canada made 6 recommendations to address

the findings in its report. AANDC agreed with all the recommendations and

indicated the actions it has taken or will take to address the recommendations

(see 2008 Report of the Auditor General of Canada at p. 6 and Appendix).

36

AANDC’s response to the 2008 Report of the Auditor General of

Canada demonstrates its full awareness of the impacts of its FNCFS Program

on First Nations children and families on reserves, including that its funding is

not in line with provincial legislation and standards. Furthermore, despite the

flaws identified with the new funding formula, AANDC still viewed EPFA as

the answer to the problems with the FNCFS Program:

4.67 Recommendation. Indian and Northern Affairs Canada,

in consultation with First Nations and provinces, should ensure

that its new funding formula and approach to funding First

Nations agencies are directly linked with provincial legislation

and standards, reflect the current range of child welfare

services, and take into account the varying populations and

needs of First Nations communities for which it funds on-

reserve child welfare services.

The Department’s response. Indian and Northern Affairs

Canada’s current approach to Child and Family Services

includes reimbursement of actual costs associated with the

needs of maintaining a child in care. The Department agrees

that as new partnerships are entered into, based on the

enhanced prevention approach, funding will be directly linked to

activities that better support the needs of children in care and

incorporate provincial legislation and practice standards.

(2008 Report of the Auditor General of Canada at pp. 23-24, s.

4.67)

…

[244] According to Child Welfare Report [from the Ontario Association of

Children’s Aids Societies (OACAS) found at HR-1, tab 209], the current

funding model does not reflect the needs of Aboriginal communities and

agencies for several reasons including: insufficient resources for services,

where they tend to be crisis driven; shortage of funding for administrative

requirements; lack of funding to establish infrastructure necessary to deliver

statutory child protection services, while operating within the extraordinary

infrastructure deficits of many of the communities they serve; and, insufficient

funds to retain qualified staff to deliver culturally appropriate services (at p. 7).

…

[245] In terms of infrastructure and capacity building, the 1965 Agreement has

not provided for the cost-sharing of capital expenditures since 1975 (see

testimony of P. Digby, Transcript Vol. 59 at p. 93). Ms. Stevens explained the

impact of this on her organization: many high-risk children are sent outside

the community to receive services because there is no treatment centre in the

37

community. Abinoojii Family Services spends approximately 2 to 3 million a

year sending children outside their community. According to Ms. Stevens,

there are not enough resources to build a treatment centre or develop

programs to assist these high-risk children because those funds are

expended on meeting the current needs of those children (see Transcript Vol.

25 at p. 32).

…

[257] The Panel finds the NPR and Wen:De reports to be highly relevant and

reliable evidence in this case. They are studies of the FNCFS Program

commissioned jointly by AANDC and the AFN. They employed a rigorous

methodology, in depth analysis of Directive 20-1, and consultations with

various stakeholders. The Panel accepts the findings in these reports. There

is no indication that AANDC questioned the findings of these reports prior to

this Complaint. On the contrary, there are indications that AANDC, in fact,

relied on these reports in amending the FNCFS Program.

…

[275] The [Indian and Northern Affairs Canada, Evaluation of the First Nations

Child and Family Services Program (Departmental Audit and Evaluation

Branch, March 2007) found at HR-4 at tab 32], goes on to state that the first

step in improving the FNCFS Program is to change Directive 20-1 by providing

FNCFS Agencies with a new funding stream that ensures adequate support

for prevention work (see at p. 35). In discussing the costs and benefits of

increasing the FNCFS Program’s focus on prevention, the cost estimates

provided in Wen:De Report Three are outlined, including the $22.9 million for

new management information systems, capital costs (buildings, vehicles and

office equipment), and insurance premiums; and, the $86.4 million for annual

funding needs for such things as an inflation adjustment to restore funding to

1995 levels, adjusting the funding formula for small and remoteness factors,

and increasing the operations base amount from $143,000 to

$308,751(see 2007 Evaluation of the FNCFS Program at pp. 35-36).

[126] Furthermore, the Panel now adds that this document mentions at page 36 that many

agencies do not have the capacity to carry out such preventive initiatives within their existing

funding levels.

[127] Continuing with the Merit Decision:

[289] The 2012 evaluation found it was unclear whether the EPFA is flexible

enough to accommodate provincial funding changes (see AANDC Evaluation

of the Implementation of the EPFA in Saskatchewan and Nova Scotia at p.

51). It noted both the Saskatchewan and Atlantic regional offices struggle to

effectively perform their work given staffing limitations, including staffing

38

shortages, caseload ratios that exceed the provincial standard, and difficulty

recruiting and retaining qualified staff, particularly First Nation staff

(see AANDC Evaluation of the Implementation of the EPFA in Saskatchewan

and Nova Scotia at p. 51). Capital expenditures on new buildings, new

vehicles and computer hardware were identified as being necessary to

achieve compliance with provincial standards, but also as making FNCFS

Agencies a more desirable place to work. However, these expenditures were

not anticipated when implementing the EPFA and were identified as often

being funded through prevention dollars (see AANDC Evaluation of the

Implementation of the EPFA in Saskatchewan and Nova Scotia at p. 49),

(emphasis added).

…

[305] Overall, on the issue of the relevance and reliability of the reports on the

FNCFS Program, the Panel finds that from the years 2000 to 2012 many

reliable sources have identified the adverse effects of the funding formulas

and structure of the FNCFS Program. AANDC was involved in the NPR and

Wen:De reports, and acknowledged and accepted the findings and

recommendations in the Auditor General and Standing Committee on Public

Account’s reports, including developing an action plan to address those

recommendations. As the internal evaluations and other relevant and reliable

AANDC documents demonstrate, those studies and reports became the basis

for reforming Directive 20-1 into the EPFA and, subsequently,

recommendations to reform the EPFA. It is only now, in the context of this

Complaint, that AANDC raises concerns about the reliability and weight of the

various reports on the FNCFS Program outlined above. Moreover, the internal

documents discussed above support those reports and are AANDC’s own

evaluations, recommendations and presentations prepared by its high ranking

employees. For these reasons, the Panel does not accept AANDC’s

argument that the reports on the FNCFS Program have little or no weight and

accepts the findings in those reports, along with the corroborating information

in documents relied on above.

…

[344] As indicated above, the provinces’ legislation and standards dictate that

all alternatives measures should be explored before bringing a child into care,

which is consistent with sound social work practice as described earlier.

However, by covering maintenance expenses at cost and providing

insufficient fixed budgets for prevention, AANDC’s funding formulas provide

an incentive to remove children from their homes as a first resort rather than

as a last resort. For some FNCFS Agencies, especially those under Directive

20-1, their level of funding makes it difficult if not impossible to provide

prevention and least disruptive measures. Even under the EPFA, where

separate funding is provided for prevention, the formula does not provide

adjustments for increasing costs over time for such things as salaries,

39

benefits, capital expenditures, cost of living, and travel. This makes it difficult

for FNCFS Agencies to attract and retain staff and, generally, to keep up with

provincial requirements. Where the assumptions built into the applicable

funding formulas in terms of children in care, families in need and population

levels are not reflective of the actual needs of the First Nation community,

there is even less of a possibility for FNCFS Agencies to keep pace with

provincial operational requirements that may include, along with the items just

mentioned, costs for legal or band representation, insurance premiums, and

changes to provincial/territorial service standards, (emphasis added).

…

[458] AANDC’s design, management and control of the FNCFS Program,

along with its corresponding funding formulas and the other related

provincial/territorial agreements have resulted in denials of services and

created various adverse impacts for many First Nations children and families

living on reserves. Non-exhaustively, the main adverse impacts found by the

Panel are:

 The design and application of the Directive 20-1 funding formula, which

provides funding based on flawed assumptions about children in care

and population thresholds that do not accurately reflect the service

needs of many on-reserve communities. This results in inadequate

fixed funding for operation (capital costs, multiple offices, cost of living

adjustment, staff salaries and benefits, training, legal, remoteness and

travel) and prevention costs (primary, secondary and tertiary services

to maintain children safely in their family homes), hindering the ability

of FNCFS Agencies to provide provincially/territorially mandated child

welfare services, let alone culturally appropriate services to First

Nations children and families and, providing an incentive to bring

children into care because eligible maintenance expenditures are

reimbursable at cost.

(Merit Decision)

[128] In response to Canada’s arguments above, the findings reproduced above

demonstrate that capital infrastructure such as buildings that support the delivery of services

including prevention services formed part of the evidence before the Tribunal in 2014 which

led to the Panel’s Merit Decision in 2016. Those findings are broader than just building

repairs and are included in the Tribunal’s orders to cease the discrimination identified in the

Merit Decision. This addresses Canada’s argument that it sees a material difference

between an order to bring buildings up to code and funding Major Capital projects. More

reasons on this distinction will be discussed below.

40

[129] Subsequently, in 2016 CHRT 10, the Panel highlighted the need to take steps to

immediately reform the FNCFS Program and related agreements in light of the findings in

the Merit Decision. This includes references in the Merit Decision to capital and

infrastructure:

[2] The Panel generally ordered Aboriginal Affairs and Northern Development

Canada, now Indigenous and Northern Affairs Canada (INAC), to cease its

discriminatory practices and reform the First Nations Child and Family

Services (FNCFS) Program and the Memorandum of Agreement Respecting

Welfare Programs for Indians applicable in Ontario (the 1965 Agreement) to

reflect the findings in the Decision. INAC was 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 the principle.

…

[4] The Panel advised the parties it would address the outstanding questions

on remedies in three steps. First, the Panel will address requests for

immediate reforms to the FNCFS Program, the 1965 Agreement and Jordan’s

Principle. This is the subject of the present ruling.

[5] Other mid to long-term reforms to the FNCFS Program and the 1965

Agreement, along with other requests for training and ongoing monitoring will

be dealt with as a second step. Finally, the Parties will address the requests

for compensation under ss. 53(2)(e) and 53(3) of the CHRA.

…

[20] The Panel’s main findings with regard to the need to reform and redesign

the FNCFS Program in the short and long term were summarized at

paragraphs 384-389 (see also para. 458) of the Decision and include

(emphasis added):

[384] Under the FNCFS Program, Directive 20-1 has a number

of shortcomings and creates incentives to remove children from

their homes and communities. Mainly, Directive 20-1

makes assumptions based on population thresholds and

children in care to fund the operations budgets of FNCFS

Agencies. These assumptions ignore the real child welfare

situation in many First Nations’ communities on

reserve. Whereas operations budgets are fixed, maintenance

budgets for taking children into care are reimbursable at cost. If

an FNCFS Agency does not have the funds to provide services

through its operations budget, often times the only way to

provide the necessary child and family services is to bring the

41

child into care. For small and remote agencies, the population

thresholds of Directive 20-1 significantly reduce their operations

budgets, affecting their ability to provide effective programming,

respond to emergencies and, for some, put them in jeopardy of

closing.

[385] Directive 20-1 has not been significantly updated since

the mid-1990’s resulting in underfunding for FNCFS agencies

and inequities for First Nations children and families on reserves

and in the Yukon. In addition, Directive 20-1 is not in line with

current provincial child welfare legislation and standards

promoting prevention and least disruptive measures for children

and families. As a result, many First Nations children and their

families are denied an equitable opportunity to remain with their

families or to be reunited in a timely manner. In 2008, at the time

of the Complaint, the vast majority of FNCFS Agencies across

Canada functioned under Directive 20-1. At the conclusion of

the hearing in 2014, Directive 20-1 was still applicable in three

provinces and in the Yukon Territory.

[386] AANDC incorporated some of the same shortcomings of

Directive 20-1 into the EPFA, such as the assumptions about

children in care and population levels, along with the fixed

streams of funding for operations and prevention. Despite being

aware of these shortcomings in Directive 20-1 based on

numerous reports, AANDC has not followed the

recommendations in those reports and has perpetuated the

main shortcoming of the FNCFS Program: the incentive to take

children into care - to remove them from their families.

[387] Furthermore, like Directive 20-1, the EPFA has not been

consistently updated in an effort to keep it current with the child

welfare legislation and practices of the applicable

provinces. Once EPFA is implemented, no adjustments to

funding for inflation/cost of living or for changing service

standards are applied to help address increased costs over time

and to ensure that prevention-based investments more closely

match the full continuum of child welfare services provided off

reserve. In contrast, when AANDC funds the provinces directly,

things such as inflation and other general costs increases are

reimbursed, providing a closer link to the service standards of

the applicable province/territory.

[388] In terms of ensuring reasonably comparable child and

family services on reserve to the services provided off reserve,

the FNCFS Program has a glaring flaw. While FNCFS Agencies

are required to comply with provincial/territorial legislation and

42

standards, the FNCFS Program funding authorities are not

based on provincial/territorial legislation or service standards.

Instead, they are based on funding levels and formulas that can

be inconsistent with the applicable legislation and standards.

They also fail to consider the actual service needs of First

Nations children and families, which are often higher than those

off reserve. Moreover, the way in which the funding formulas

and the program authorities function prevents an effective

comparison with the provincial systems. The provinces/territory

often do not use funding formulas and the way they manage

cost variables is often very different. Instead of modifying its

system to effectively adapt it to the provincial/territorial systems

in order to achieve reasonable comparability; AANDC

maintains its funding formulas and incorporates the few

variables it has managed to obtain from the provinces/territory,

such as salaries, into those formulas.

[389] Given the current funding structure for the FNCFS

Program is not adapted to provincial/territorial legislation and

standards, it often creates funding deficiencies for such items

as salaries and benefits, training, cost of living, legal costs,

insurance premiums, travel, remoteness, multiple offices,

capital infrastructure, culturally appropriate programs and

services, band representatives, and least disruptive measures.

It is difficult, if not impossible, for many FNCFS Agencies to

comply with provincial/territorial child and family services

legislation and standards without appropriate funding for these

items; or, in the case of many small and remote agencies, to

even provide child and family services. Effectively, the FNCFS

funding formulas provide insufficient funding to many FNCFS

Agencies to address the needs of their clientele. AANDC’s

funding methodology controls their ability to improve outcomes

for children and families and to ensure reasonably comparable

child and family services on and off reserve. Despite various

reports and evaluations of the FNCFS Program identifying

AANDC’s “reasonable comparability” standard as being

inadequately defined and measured, it still remains an

unresolved issue for the program.

…

[23] The Panel orders INAC to immediately take measures to address the

items underlined above from the findings in the Decision. INAC will then

provide a comprehensive report, which will include detailed information on

every finding identified above and explain how they are being addressed in

the short term to provide immediate relief to First Nations children on reserve.

The report should also include information on budget allocations for each

43

FNCFS Agency and timelines for when those allocations will be rolled-out,

including detailed calculations of the amounts received by each agency in

2015-2016; the data relied upon to make those calculations; and, the amounts

each has or will receive in 2016-2017, along with a detailed calculation of any

adjustments made as a result of immediate action taken to address the

findings in the Decision.

(2016 CHRT 10, emphasis in original)

[130] In 2016 CHRT 16, the Panel specifically addressed certain issues relating to

infrastructure and capital needs:

[18] One of the main findings in the Decision is that INAC’s FNCFS Program,

which flows funding through formulas, Directive 20-1 and the Enhanced

Prevention Focused Approach (EPFA), provides funding based on flawed

assumptions about the number of children in care, the number of families in

need of services, and population levels that do not accurately reflect the real

service needs of many on-reserve communities. This results in inadequate

fixed funding for operation costs (capital costs, multiple offices, cost of living

adjustment, staff salaries and benefits, training, legal, remoteness and travel)

and prevention costs (primary, secondary and tertiary services to maintain

children safely in their family homes), hindering the ability of FNCFS Agencies

to provide provincially/territorially mandated child welfare services, let alone

culturally appropriate services. Most importantly, inadequate funding for

operation and prevention costs provides an incentive to bring children into

care because eligible maintenance expenditures to maintain a child in care

are reimbursable at cost (see the Decision at paras. 384-389 and 458).

[19] In 2016 CHRT 10, the Panel ordered INAC to immediately take measures

to address the assumptions and flaws in its funding formulas, including all the

underlined items at paragraphs 20 and 23 of that ruling. INAC was to provide

a comprehensive report explaining how those flaws and assumptions are

being addressed in the short term to provide immediate relief to First Nations

on reserve. The Panel’s order also required INAC to provide detailed

information on budget allocations for each FNCFS Agency and timelines for

when those allocations will be rolled-out, including detailed calculations of the

amounts received by each agency in 2015-2016; the data relied upon to make

those calculations; and, the amounts each has or will receive in 2016-2017,

along with a detailed calculation of any adjustments made as a result of

immediate action taken to address the findings in the Decision (see 2016

CHRT 10 at paras. 20-25).

…

[36] The Panel reiterates its immediate relief orders that all items identified in

paragraph 20 of 2016 CHRT 10, and not limited to the items that were

44

underlined, must be remedied immediately, including the adverse effects

related to:

• The assumptions about children in care, families in need of services

and population levels;

• Remote and/or small agencies;

• Inflation/cost of living and for changing service standards; and

• Salaries and benefits, training, legal costs, insurance premiums,

travel, multiple offices, capital infrastructure, culturally appropriate

programs and services, and least disruptive measures.

…

[43] According to INAC, the issue of funding legal fees, capital infrastructure

and culturally appropriate programs and services will be addressed as part of

future reform discussions. Addressing some of these issues may require

engagement and discussion with First Nations, FNCFS Agencies and

provincial/territorial governments. According to INAC, unilateral action in

addressing these important issues would be contrary to the federal

government's commitment to renew the relationship between Canada and

Indigenous peoples. INAC adds that immediate relief investments could be

utilized by FNCFS Agencies to respond to individual community needs for

culturally based programming and activities.

…

[45] For their part, the CCI Parties do not understand why the issue of funding

legal fees, capital infrastructure and culturally appropriate programs and

services cannot be addressed at this stage. There are actions that can be

taken now to alleviate discrimination that fall entirely within federal jurisdiction

and do not depend on corresponding provincial action, including simply

adopting and adequately funding applicable provincial/territorial standards

regarding these issues.

[49] On the issue of building repairs, the Panel fails to understand why INAC

cannot address it now, especially where a FNCFS Agency has received a

notice to the effect that repairs must be done to comply with applicable fire,

safety and building codes and regulations, or where there is other evidence

of non-compliance with applicable fire, safety and building codes and

regulations. Again, while the Panel understands the benefit of having

discussions on capital infrastructure in the long term, this urgent issue should

also be addressed immediately. The Panel orders INAC to provide detailed

information in its compliance report to clearly demonstrate how it is addressing

this issue. This will form part of the upcoming in-person case management

meeting.

45

…

[97] As noted in the Decision, the 1965 Agreement has not provided for the

cost-sharing of capital expenditures since 1975 and, as a result, many FNCFS

Agencies in Ontario lack funding to establish infrastructure necessary to

deliver statutory child protection services (see paras. 244-245). Therefore, as

part of INAC’s immediate relief investments, which are being coordinated on

an interim basis outside of the 1965 Agreement, and until the broader issue

of infrastructure needs under the 1965 Agreement can be fully reviewed,

INAC should develop an interim strategy to deal with the infrastructure needs

of FNCFS Agencies. The Panel expects a detailed response from INAC on

this issue and will discuss the issue with all parties at the upcoming in-person

case management meeting.

…

[157] In the Decision, INAC was ordered to cease its discriminatory practices

and reform the FNCFS Program and the 1965 Agreement to reflect the

Panel’s findings and to cease applying its narrow definition of Jordan’s

Principle and take measures to immediately implement the full meaning and

scope of Jordan's Principle (see at para. 481). As mentioned above, the CCI

Parties’ request to update policies, procedures and agreements is captured

by this general order to reform the FNCFS Program and the 1965

Agreement in compliance with the findings in the Decision. For clarity, the

Panel orders INAC to update its policies, procedures and agreements to

comply with the Panel’s findings in the Decision.

[158] In addition, to address this general order in the short term, INAC was

subsequently ordered to immediately take measures to address a number of

items. As indicated in 2016 CHRT 10 and reiterated in this ruling, those items

were to be addressed immediately. Again, those items include addressing the

adverse impacts related to the assumptions about the number of children in

care, families in need of services and population levels; remote and/or small

FNCFS agencies; inflation/cost of living; changing service standards; salaries

and benefits; training; legal costs; insurance premiums; travel; multiple offices;

capital infrastructure; culturally appropriate programs and services; and, least

disruptive measures. INAC was then ordered to report back to the Panel to

explain how those items are being addressed in the short term to provide

immediate relief to First Nations children on reserve (see 2016 CHRT 10 at

paras. 20 and 23).

…

[160] …

A. Additional Immediate measures to be taken

46

1. INAC will not decrease or further restrict funding for First Nations child and

family services or children’s services covered by Jordan’s Principle (see

paras. 121-123 above);

2. INAC will determine budgets for each individual FNCFS Agency based on

an evaluation of its distinct needs and circumstances, including an appropriate

evaluation of how remoteness may affect the FNCFS Agency’s ability to

provide services (see paras. 33, 37, 40 and 47 above);

3. In determining funding for FNCFS Agencies, INAC is to establish the

assumptions of 6% of children in care and 20% of families in need of services

as minimum standards only. INAC will not reduce funding to FNCFS Agencies

because the number of children in care they serve is below 6% or where the

number of families in need of services is below 20% (see para. 38 above);

4. In determining funding for FNCFS Agencies that have more that 6% of

children in care and/or that serve more than 20% of families, INAC is ordered

to determine funding for those agencies based on an assessment of the actual

levels of children in care and families in need of services (see para. 39 above);

5. In determining funding for FNCFS Agencies, INAC is to cease the practice

of formulaically reducing funding for agencies that serve fewer than 251

eligible children. Rather, funding must be determined on an assessment of

the actual service level needs of each FNCFS Agency, regardless of

population level (see para. 40 above);

6. INAC is to cease the practice of requiring FNCFS Agencies to recover cost

overruns related to maintenance from their prevention and/or operations

funding streams (see paras. 56-61 above); and

7. INAC is to immediately apply Jordan’s Principle to all First Nations children

(not only to those resident on reserve) (see paras. 117-118 above).

(2016 CHRT 16)

[131] In 2018 CHRT 4, the Panel revisited and considered additional evidence in relation

to requests to fund actual costs of child and family services. The requests for actual costs

specifically included the costs of building repairs and also apply more generally to capital

and infrastructure needs:

[109] The Caring Society seeks orders that Canada be required to fund legal

fees, building repairs, intake and investigations, and the child service

purchase amount based on their actual costs, until the Complainants and

Canada have agreed upon the appropriate measures necessary to end the

discriminatory practices. Until such time as the FNCFS Program is reformed,

the Caring Society submits that funding these expenses based on their actual

47

cost is the only option available to the Tribunal that will ensure that the adverse

impact of INAC’s funding formulas are not perpetuated. The Caring Society

adds that Canada has presented no evidence to demonstrate that funding

these items at actuals would be inappropriate or cause it to experience undue

hardship.

…

[195] This being said, the Panel is encouraged by the steps made by Canada

so far on the issue of immediate relief and the items that needed to be

addressed immediately, However, we also find Canada not in full-compliance

of this Panel’s previous orders for least disruptive measures/prevention, small

agencies, intake and investigations and legal costs. Additionally, at this time,

the Panel finds there is a need to make further orders in the best interest of

children. The orders are included in the order section below.

…

[212] Canada has advised that the Program authorities include minor capital

expenditures. Minor capital expenses may include maintenance and

repairs/upgrades/renovations to facilities to include compliance with building

codes. If funds are required, Canada will work with agencies on a case-by-

case basis to address this issue.

[213] The Panel considers it is unclear if this practice is now implemented or

if it will only be implemented in the future. It is also unclear when the funding

will be made available to agencies that identify the need for building repairs.

Therefore, the Panel finds it is justified to make a further order to this item of

immediate relief. The order is included in the order section below.

…

[247] Given that Canada has made submissions it will address this as part of

its long term reform. The Panel finds Canada has unilaterally postponed

addressing this to the long term even when ordered to immediately address

it. While Canada complied to stop reducing the agencies’ funding for those

who serve less than 251 children, the Panel finds Canada not in full

compliance with its previous orders. This Panel ordered Canada to eliminate

population thresholds and levels and, to immediately address adverse

impacts for small agencies who encounter the greatest challenges especially,

if they are isolated. (see at 2016 CHRT 10 at paras. 20 and 23).

[248] At this stage, two years after the Decision, the Panel would now be

reluctant to order anything linked to the Directive 20-1 given it was found

discriminatory.

[249] The Panel, pursuant to section 53 (2) (a) and (b) of the CHRA orders

Canada to analyze the needs assessments completed by First Nations

48

agencies in consultation with the Parties, interested parties (see protocol

order below), and other experts and to do a cost-analysis of the real needs of

small First Nations agencies related to child welfare taking into account travel

distances, case load ratios, remoteness, the gaps and/or lack of surrounding

services and all particular circumstances they may face.

[250] Canada is ordered to complete this analysis and report to the Tribunal

by May 3, 2018.

[251] The Panel, pursuant to Section 53 (2) (a) of the CHRA orders Canada,

pending long term reform of its National FNCFS Program funding formulas

and models, to eliminate that aspect of its funding formulas/models that

creates an incentive resulting in the unnecessary apprehension of First

Nations children from their families and/or communities. To this effect, and

pursuant to Section 53 (2) (a) of the CHRA, the Panel orders Canada to

develop an alternative system for funding small first nations agencies based

on actual needs which operates on the same basis as INAC’s current funding

practices for funding child welfare maintenance costs, that is, by fully

reimbursing actual costs for these services, as determined by the FNCFC

agencies to be in the best interests of the child and develop and implement

the methodology including an accountability framework in consultation with

AFN, the Caring Society, the Commission, the COO and the NAN (see

protocol order below), by April 2, 2018 and report back to the Panel by May 3,

2018.

[252] The Panel, pursuant to Section 53 (2) (a) of the CHRA, orders Canada

to cease its discriminatory funding practice of not fully funding the small first

nations agencies’ costs. In order to ensure proper data collection and to be

responsive to the real needs of first nations children, the Panel orders

Canada, to provide funding on actual costs small first nations agencies’ for

reimbursed retroactive to January 26, 2016 by April 2, 2018. This order

complements the order above.

…

[272] While not all 5 INAC social programs were part of this complaint, and

recognizing that the Tribunal has limits in terms of adjudicating the claim that

is before it, a number of comments are worth mentioning. Canada’s practice

of reallocating funds from other programs is negatively impacting housing

services on reserve and, as a result, is adversely impacting the child welfare

needs of children and families on reserve by leading to apprehensions of

children. This perpetuates the discriminatory practices instead of eliminating

them.

[273] The Panel addressed this issue as part of its findings in the Decision and

identified it was part of the adverse impacts on First Nations children and

families.

49

[274] This does not mean the Tribunal can now look at all Programs and make

any type of order outside of its findings for this complaint. This was

addressed in 2016 CHRT 16 para.61.

[275] However, the Panel can make orders under section 53 (2) (a) and (b) to

cease the discriminatory practice and prevent it from reoccurring if it has

evidence to that effect. This exercise is based on the evidence at the hearing

on the merits and, new evidence before the Tribunal as part of the motions

proceedings. Moreover, the current situation in this case is a clear example of

policy decision-making repeating historical patterns that lead to discrimination

and that warrant intervention to ensure it is eliminated.

[276] It is also in the best interest of First Nations’ children and families to

eliminate this practice as much as possible. Some reallocations may be

inevitable in Federal government.

[277] The Panel, pursuant to section 53 (2) (a) of the CHRA, orders Canada

to stop unnecessarily reallocating funds from other social programs especially

housing if it has the adverse effect to lead to apprehensions of children or

other negative impacts outlined in the Decision by February 15, 2018.

[278] The Panel, pursuant to section 53 (2) (a) of the CHRA, orders Canada

to ensure that any immediate relief investment does not adversely impact

Indigenous children, their families and communities by February 15, 2018.

[279] The Panel, pursuant to section 53 (2) (a) of the CHRA, orders Canada

to evaluate all its Social Programs in order to determine and ensure any

reallocation is necessary and does not adversely impact the First Nations

children and families by April 2, 2018.

…

[299] The Panel does not question the need for a multi-pronged

approach or large and numerous consultations with Canada’s partners.

The Panel does not dispute that Canada cannot reform the child welfare

system alone and that it needs to do it with its partners at tripartite tables

and in other forums.

[300] The Panel takes issue with the fact that the above was always

advanced to justify delay, and denials of equitable services leading to

discrimination. The Panel discussed this at length in the Decision,

highlighting many politicians and Program Managers saying the same thing

over and over: we need the provinces at the table, we need to gather

information, we need to work with our partners, we have to seek approvals,

other programs may cover this, etc. This has been going on for years, yet the

Panel found discrimination, (emphasis added).

50

[301] Moreover, this was all argued by Canada at the hearing on the merits

and the Panel dismissed it. This is precisely one of the reasons why the Panel

ordered immediate relief so that the long term reform would not prevent

action now for Indigenous children.

[302] Another example is, that Canada has argued in its final submissions on

these motions, that it was working on a number of working tables with the

AFN, COO and NAN and yet, it is still unclear of what the gaps are.

[303] The Panel wants to make it clear that discussions with no

comprehensive plan or specific deadlines attached to it can go on for a very

long time and seeing these types of arguments is a source of concern. Also,

as already discussed in the Decision, a piecemeal approach is to be

discouraged. This rationale applies to all the orders in this ruling.

…

[324] The Panel has already found in the Decision that the lack of funding for

Band Representatives is one of the main adverse impacts of Canada’s

discrimination, and a way that Canada fails to provide culturally appropriate

services to First Nations children and families in Ontario (see at paras 392,

425-426).

…

[336] The Panel, pursuant to Section 53 2 (a) and (b) of the CHRA, orders

Canada to fund Band Representative Services for Ontario First Nations, at the

actual cost of providing those services retroactive to January 26, 2016

by February 15, 2018 and until such time as studies have been completed or

until a further order of the Panel.

[337] INAC shall not deduct this funding from existing funding or prevention

funding, until such time as studies have been completed or until a further order

of the Panel.

…

[387] It took years for the First Nations children to get justice. Discrimination

was proven. Justice includes meaningful remedies. Surely Canada

understands this. The Panel cannot simply make final orders and close the

file. The Panel determined that a phased approach to remedies was needed

to ensure short term relief was granted first, then long term relief, and reform

which takes much longer to implement. The Panel understood that if Canada

took 5 years or more to reform the Program, there was a crucial need to

address discrimination now in the most meaningful way possible with the

evidence available now.

51

[388] Akin to what was done in the McKinnon case, it may be necessary to

remain seized to ensure the discrimination is eliminated and mindsets are also

changed. That case was ultimately settled after ten years. The Panel hopes

this will not be the case here.

[389] In any event, any potential procedural unfairness to Canada is

outweighed by the prejudice borne by the First Nations’ children and their

families who suffered and, continue to suffer, unfairness and discrimination.

…

[410] The Panel, pursuant to Section 53 (2) (a) of the CHRA, orders Canada,

pending long term reform of its National FNCFS Program funding formulas

and models, to eliminate that aspect of its funding formulas/models that

creates an incentive resulting in the unnecessary apprehension of First

Nations children from their families and/or communities. To this effect, and

pursuant to Section 53 (2) (a) of the CHRA, the Panel orders INAC to develop

an alternative system for funding prevention/least disruptive measures, intake

and investigation, legal fees, and building repairs services for First Nations

children and families on-reserve and in the Yukon, based on actual needs

which operates on the same basis as INAC's current funding practices for

funding child welfare maintenance costs, that is, by fully reimbursing actual

costs for these services, as determined by the FNCFC agencies to be in the

best interests of the child and develop and implement the methodology

including an accountability framework in consultation with AFN, the Caring

Society, the Commission, the COO and the NAN (see protocol order

below), by April 2, 2018. and report back to the Panel by May 3, 2018.

[411] The Panel, pursuant to Section 53 (2) (a) of the CHRA, orders Canada

to cease its discriminatory funding practice of not fully funding the costs of

prevention/least disruptive measures, building repairs, intake and

investigations and legal fees. In order to ensure proper data collection and to

be responsive to the real needs of first nations children, the Panel orders

Canada, to provide funding on actual costs for least disruptive

measures/prevention, building repairs, intake and investigations and legal

fees in child welfare to be reimbursed retroactive to January 26, 2016 by April

2, 2018. This order complements the order above.

…

[413] Until such time as one of the options below occur:

1. Nation (Indigenous)-to Nation (Canada) agreement respecting self-

governance to provide its own child welfare services.

2. Canada reaches an agreement that is Nation specific even if the Nation

is not yet providing its own child welfare services and the agreement is

52

more advantageous for the Indigenous Nation than the orders in this

ruling.

3. Reform is completed in accordance with best practices recommended

by the experts including the NAC and the parties and interested

parties, and eligibility of reimbursements from prevention/least

disruptive measures/, building repairs, intake and investigations and

legal fees services is no longer based on discriminatory funding

formulas or programs.

4. Evidence is brought by any party or interested party to the effect that

readjustments of this order need to be made to overcome specific

unforeseen challenges and is accepted by the Panel.

[414] The parameters above will also apply to the orders below.

[415] The Panel also recognizes that in light of its orders, and the fact that

data collection will be further improved in the future and the NAC’s work will

progress, more adjustments will need to be made as the quality of information

increases.

(2018 CHRT 4, emphasis in original)

B.

FNCFS Major Capital Analysis

[132] The Tribunal set out its initial reasoning in the letter-decision. As indicated in the

letter-decision, the Tribunal is now providing more detailed reasons.

[133] One of the major unchallenged findings of this claim is Canada’s systemic

discrimination through underfunding of the FNCFS Program and narrow interpretation of

Jordan’s Principle resulting in adverse impacts on First Nations children and families. The

evidence relied upon by the Panel and that led to this finding included many underfunded

items in the Directive 20-1 and Enhanced Prevention Focused Approach (EPFA) formulas

including underfunding capital and infrastructure that are necessary to offer culturally

appropriate, confidential and safe services to children under provincial laws, which the

FNCFS Program requires FNCFS Agencies to follow.

[134] Additionally, the arguments of separation of powers were advanced throughout this

claim. The Panel’s previous findings on this issue remain unchallenged. While the Panel

agrees the Tribunal’s role is not that of a policy-decision maker or manager of public funds

or to infringe on the roles of the executive and legislative powers, the main aspects of the

53

complaint affect both public funds and policy in FNCFS services that were found to be

discriminatory.

[135] When the Panel found the services to be discriminatory and exercised its statutory

role to eliminate discrimination and prevent it from reoccurring, one needs to look at the

discriminatory practice it is trying to redress. In this particular case, the FNCFS Program’s

underfunding, program authorities, and the FNCFS Program’s formulas were found to be

discriminatory. This is an important part of the claim before the Tribunal which the Tribunal

is required to adjudicate under the CHRA. If Canada offers services, it needs to offer them

in a non-discriminatory manner. This means that it cannot underfund services nor

perpetuate policies that enable this underfunding including in regard to capital assets. Nor

can it permit other adverse impacts such as the lack of prevention services on-reserves

including in the Ontario region.

[136] Moreover, when the Tribunal heard the claim, Canada already had tripartite tables in

many regions. It already participated in the National Advisory Committee on First Nations

Child and Family Services (NAC). It already worked with First Nations including on studies

such as Wen:De. It already announced publicly that it needed to discuss with First Nations

partners. It already committed to improving the FNCFS Program and increasing the funding.

All of this formed part of the evidence before the Tribunal and was carefully considered in

arriving at its unchallenged findings of systemic discrimination. It is understandable that the

Panel needs more than a repetition of those same strategies to ensure systemic

discrimination is eliminated and does not reoccur. Repeating the same patterns of the past

will not generate sustainable and meaningful change.

[137] Further, there is ample evidence in the record that First Nations and FNCFS

Agencies repeatedly expressed their needs, plans and priorities and were not listened to

(see for example, Merit Decision at paras. 73-74). A more recent and tragic example is what

happened in Wapekeka First Nation (“Wapekeka”), a NAN community. Wapekeka had

alerted the federal government, through Health Canada, to concerns about a suicide pact

amongst a group of young children and youth. This information was contained in a detailed

July 2016 proposal aimed at seeking funding for an in-community mental health team as a

preventative measure. TheWapekeka proposal was left unaddressed by Canada for several

54

months with a reactive response coming only after the two youths committed suicide. The

media response from Health Canada was that it acknowledged it had received the July 2016

proposal in September 2016; however, it came at an “awkward time in the federal funding

cycle” (see 2017 CHRT 14 at paras. 88-89).

[138] While this is not a request for funding capital assets, it is a Tribunal finding where

the community clearly expressed its priority and was provided a financial consideration

argument instead of a substantive equality response based on needs, in this case urgent

needs. Therefore, Canada’s argument that it is in discussions to respect the communities’

plans and priorities is not enough to convince the Panel that Canada is sufficiently

responsive to its previous findings and orders.

[139] This being said, the Panel believes it is fair to say that Canada has implemented

many changes that benefit children. However, Canada’s argument about the Financial

Administration Act is reminiscent of Canada’s separation of powers argument that the Panel

has previously rejected (see 2018 CHRT 4 at paras. 45-46). The constant revisiting of

questions already answered does not assist in convincing the Panel that Canada has

reformed its old mindset and is implementing real and lasting change for children and

families.

[140] Furthermore, the issue of capital is not a surprise for Canada since it was addressed

in the Merit Decision and formed part of the cease-and-desist orders. Canada keeps

reminding the Tribunal of the separation of powers to invite restraint. Such restraint does not

mean the Tribunal has its hands tied concerning funding and policy when the findings and

discriminatory practices found in this case are precisely the authorities, the underfunding

and the discriminatory policies Canada argues the Tribunal cannot review. For clarity,

services need to be offered in safe, appropriate and confidential spaces. This was part of

the evidence before the Tribunal that led to findings in the Merit Decision. This is part of the

orders to cease the discriminatory practice and reform the FNCFS Program.

[141] Moreover,

Capital expenditures on new buildings, new vehicles and computer hardware

were identified as being necessary to achieve compliance with provincial

55

standards, but also as making FNCFS Agencies a more desirable place to

work. However, these expenditures were not anticipated when implementing

the EPFA and were identified as often being funded through prevention dollars

(see AANDC Evaluation of the Implementation of the EPFA in Saskatchewan

and Nova Scotia at p. 49)

(Merit Decision at para. 289 and 2018 CHRT 4 at para.139).

[142] Further, the FNCFS Program requires the agencies and communities to deliver

services in compliance with provincial standards. For the Tribunal, this means that as long

as a standard is non-discriminatory and in the best interest of the child when viewed through

an Indigenous, rather than a colonial lens, the provincial standard is appropriate as a floor

and not a ceiling. Again, standards should respect substantive equality principles based on

need so that all individuals have an opportunity equal with other individuals to make for

themselves the lives that they are able and wish to have. This has been the Tribunal’s

approach from the beginning. At the very least, the services offered should abide by those

non-discriminatory provincial standards and allow FNCFS Agencies and First Nations to

offer confidential, safe and culturally appropriate services to children and families. If repairs

to a building are unable to provide an appropriate space to offer services, an agency and a

First Nation community should receive sufficient funding to offer those services in new

buildings. Similarly, if a building’s location or design precludes providing confidential, safe

and culturally sensitive services, the FNCFS Agency and First Nation are entitled to a

building capable of providing services in a non-discriminatory manner.

[143] The Panel accepted the evidence and recommendations in the Wen:De reports and

said as much in the Merit Decision. The Wen:De reports caution against the use of a

piecemeal approach to the recommendations. The Panel previously found that Canada took

a piecemeal approach to implementing needed change and ruled it created adverse impacts

on children and families.

[144] The Panel used the terms Capital and Capital Infrastructure in previous decisions.

The terms Major Capital and Minor Capital are terms Canada used to distinguish between

the two. Since then, Canada has indicated the FNCFS Program’s Terms and Conditions

have been amended and this distinction has been removed. For the purposes of this

decision the Panel will refer to the recent terminology as amended in the FNCFS Program’s

56

Terms and Conditions: “Purchase or construction of capital assets that support the delivery

of FNCFS services”.

[145] The issue of the purchase or construction of capital assets that support the delivery

of FNCFS services was addressed in the Panel’s findings from the beginning and forms part

of the evidence before it. It is well within the scope of this claim and forms part of the reform

the Panel is monitoring. Unchallenged orders were already made on the purchase or

construction of capital assets that support the delivery of FNCFS services in previous

rulings. The 2018 CHRT 4 orders for building repairs rather than building construction

recognized the need for further consultation on needs before issuing further specific orders.

This order did not eliminate previous Tribunal orders. Rather, it considered the need for

more consultations and this was clearly stated in the ruling (see 2018 CHRT 4 at para. 407).

[146] Additionally, the Panel did not separate services offered from office space or safe,

culturally appropriate and confidential buildings in which to offer those services. It is

erroneous to conclude the Panel made such a distinction. The Panel’s orders always

focused on specific needs and keeping with substantive equality using provincial standards

as the floor rather than as the ceiling. This reasoning applies to the Panel’s overall approach

to all aspects of its orders. As discussed in the Merit Decision and subsequent rulings,

provincial standards require safe, confidential spaces in which to offer services to First

Nations children. Furthermore, a piecemeal fragmented approach has been rejected by this

Panel from the beginning. Similarly, a one size-fits-all approach was also rejected by this

Panel.

[147] While the Tribunal agrees that it is up to Canada to decide with First Nations which

policies and funding authorities are appropriate, it is not up to Canada to decide to continue

to discriminate in choosing those policies and funding especially if First Nations make

legitimate requests under the FNCFS Program and demonstrate those requests are not

met. Further, the IFSD report found funding gaps exist in prevention services, capital,

salaries and IT infrastructure.

[148] There are statutory requirements to provide child and family services in secure and

confidential buildings. Appropriate services are tied to appropriate spaces to receive those

57

services. If those spaces are insufficient, the First Nations agencies and communities are in

an untenable situation of being forced to either cut services offered to children or offer

services in subpar and illegal environments. Regardless of the funding formulas and policies

chosen by Canada, this cannot be the outcome.

[149] Canada was ordered to remedy this and accepted to do so. The Tribunal is not

ordering Canada to build offices without consulting First Nations and going through the

appropriate processes. The Tribunal is ordering Canada to fund those building purchases

or construction once all processes have been completed and the First Nations approve it.

[150] The Panel accepts Canada’s argument that orders that require specific infrastructure

to be built on-reserve without consultation with First Nations would impact other types of on-

reserve infrastructure (e.g., water, roads, electricity etc.). In this context, decisions for

building infrastructure on reserve is significantly more complicated than simply funding the

construction of a building or repairing an existing one. These decisions cannot be made in

isolation and should take into consideration the community’s priorities and planning already

in place.

[151] In so far as the term the purchase or construction of capital assets that support the

delivery of FNCFS services is used in this ruling, it is focusing on building purchase or

construction and not infrastructure in a larger sense such as roads and hospitals.

Additionally, even if buildings are built, the Panel recognizes that this requires consultation

with First Nations.

[152] Canada relies on Ontario v. Criminal Lawyers’ Association of Ontario, 2013 SCC 43

(Ontario v. Criminal Lawyers) to support its separation of powers argument. In that case,

Karakatsanis J found for the majority that courts do not have the inherent jurisdiction to set

compensation for amicae curiae or a friend of the court. At its heart, the case addresses the

constitutional relationship between the independence of the judicial branch of government

and the administration of justice in the provinces as conducted by the Attorney General on

behalf of the executive branch of government.

[153] The majority considered three reasons it was beyond a court’s jurisdiction to direct

the compensation the Attorney General should pay to amicae curiae. First, the legislature

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retains authority over the expenditure of funds. While court orders may have ancillary fiscal

consequences, setting the rate of compensation goes too far. Second, while courts have the

ability to set the terms necessary to ensure orders appointing amicae curiae are effective,

that does not require setting compensation. Existing case law demonstrates that it is not

necessary for courts to fix the rate of compensation for court-appointed counsel. It is similarly

not necessary because the Attorney General has the constitutional competence to

administer justice, which it fulfils by, for example, identifying counsel who are prepared to

accept the amicae curiae appointment at the rate it proposes to pay. Third and finally, courts

directing the expenditure of significant sums by fixing amicae curiae compensation risk

imperiling the integrity of the judicial process as these expenditures could only be reviewed

by appellate courts and not the public accountability mechanisms inherent in the legislative

and executive branches of government.

[154] Given these reasons, the majority concluded that, absent statutory authority or a

constitutional challenge, allowing a court to direct the Attorney General as to how to spend

funds on the administration of justice exceeded the role of the judicial branch and trespassed

on the proper role of the executive and legislative branches of government.

[155] On Canada’s argument on the Ontario v. Criminal Lawyers case, the Tribunal agrees

it is bound by the Supreme Court decision in this case which clarifies the roles of Superior

Courts and the need to show restraint in the areas of public spending and policy. The Panel

also notes there was no Charter or human rights legislation at play in Ontario v. Criminal

Lawyers as opposed to in Kelso v. The Queen, 1981 171 (SCC), [1981] 1 SCR 199

at page 207, where the Supreme Court stated:

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…

[156] The Panel relied upon Kelso in determining the merits of this case (see Merit Decision

at para. 42).

[157] In Canada’s own submissions as part of this motion, Canada acknowledges it has a

legal obligation under the Charter and the CHRA to ensure any federally funded services

59

are provided in a non-discriminatory manner. This is true and precisely what the Panel has

ordered and is monitoring. The case at hand can be distinguished from the Ontario v.

Criminal Lawyers case. In this case, the scope of the claim that informs the Tribunal’s

jurisdiction under the CHRA, which includes the complaint, the Statement of Particulars, the

evidence, and the arguments, places underfunding of the FNFCS Program at the forefront

of the case. The underfunding was found to be racial systemic discrimination causing

adverse impacts and harms to children and families resulting in mass removal of children

from their homes, families and communities.

[158] This case is further distinguishable from Ontario v. Criminal Lawyers because of s.

66(1) of the CHRA. That section provides that “This Act is binding on Her Majesty in right of

Canada”. There was no comparable section at issue in Ontario v. Criminal Lawyers.

[159] Canada expresses concerns that the Tribunal’s exceptional retention of remedial

authority should not result in detailed management of the case, as cautioned against in

Doucet-Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62 at para. 74 (Doucet-

Boudreau). Similarly, Canada cautions against allowing the scope of remedial issues to

expand such that the remedial phase becomes a moving target (Entrop v. Imperial Oil Ltd.,

2000 16800, 50 OR (3d) 18 (OCA) at para. 58).

[160] The Tribunal already answered these arguments in 2018 CHRT 4. In regard to the

Doucet-Boudreau case, the Tribunal discussed this was in the context of remedies ordered

under section 24 of the Charter. As the Panel previously noted in 2018 CHRT 4:

[22] … The Human Rights Tribunal of Ontario (HRTO) in its analysis relies on

(Doucet-Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62)

which analyzed remedies under section 24 of the Charter.

[23] The Panel finds that the case at hand and its factual matrix is far more

complex and far more reaching than the Ball case and therefore it can

distinguish the Ball case from this case.

[161] This being said, the Tribunal relied on Doucet-Boudreau in previous decisions and

believes it applies to this case in many aspects. The Tribunal does not believe its

management of the case disregards the SCC’s caution in this case. The specific context,

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evidence and history of this case justified the Panel’s supervision until long-term remedies

or solutions have been implemented.

[162] The Panel agreed that the remedial phase ought not to become a moving target

however, it is not the case here. Capital infrastructure has always formed part of this claim.

[163] Another important finding in the Merit Decision that is relevant to this issue here and

provides an answer to Canada’s argument on the requested orders being outside the scope

of the Tribunal’s jurisdiction is “[t]he failure to coordinate the FNCFS Program and other

related provincial/territorial agreements with other federal departments and government

programs and services for First Nations on reserve, resulting in service gaps, delays and

denials for First Nations children and families” (see Merit Decision at paras. 391 and 458).

[164] The FNCFS Program and also its corresponding funding formulas and other related

provincial/territorial agreements were found to be discriminatory. Both funding and policy

are at the heart of the findings in this case. The Tribunal has a statutory quasi-judicial role

conferred by parliament through quasi-constitutional human rights legislation to eliminate

discrimination, namely the discrimination it finds in a given substantiated claim and prevent

it from reoccurring. In this case the discrimination found is underfunding and a need for a

complete program reform. The Panel has an obligation to parliament, the First Nations

children and families, and the parties in this case, to fulfill its mandate to ensure the FNCFS

Program is no longer underfunded no matter what policy is preferred by Canada and that

the policies and programs fulfill substantive equality standards. The Panel refers to previous

findings in its unchallenged Merit Decision to summarily illustrate the above:

[461] Despite being aware of the adverse impacts resulting from the FNCFS

Program for many years, AANDC has not significantly modified the program

since its inception in 1990. Nor have the schedules of the 1965 Agreement in

Ontario been updated since 1998. Notwithstanding numerous reports and

recommendations to address the adverse impacts outlined above, including

its own internal analysis and evaluations, AANDC has sparingly implemented

the findings of those reports. While efforts have been made to improve the

FNCFS Program, including through the EPFA and other additional funding,

those improvements still fall short of addressing the service gaps, denials and

adverse impacts outlined above and, ultimately, fail to meet the goal of

providing culturally appropriate child and family services to First Nations

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children and families living on-reserve that are reasonably comparable to

those provided off-reserve.

[462] This concept of reasonable comparability is one of the issues at the heart

of the problem. AANDC has difficulty defining what it means and putting it into

practice, mainly because its funding authorities and interpretation thereof are

not in line with provincial/territorial legislation and standards. Despite not being

experts in the area of child welfare and knowing that funding according to its

authorities is often insufficient to meet provincial/territorial legislation and

standards, AANDC insists that FNCFS Agencies somehow abide by those

standards and provide reasonably comparable child and family services.

Instead of assessing the needs of First Nations children and families and

using provincial legislation and standards as a reference to design an

adequate program to address those needs, AANDC adopts an ad hoc

approach to addressing needed changes to its program.

[463] AANDC makes improvements to its program and funding methodology,

however, in doing so, also incorporates a cost-model it knows is flawed.

AANDC tries to obtain comparable variables from the provinces to fit them

into this cost-model, however, they are unable to obtain all the relevant

variables given the provinces often do not calculate things in the same fashion

or use a funding formula. By analogy, it is like adding support pillars to a house

that has a weak foundation in an attempt to straighten and support the house.

At some point, the foundation needs to be fixed or, ultimately, the house will

fall down. Similarly, a REFORM of the FNCFS Program is needed in order to

build a solid foundation for the program to address the real needs of First

Nations children and families living on reserve.

(Merit Decision at paras. 461-463).

[165] The Panel previously found that:

Not being experts in child welfare, AANDC’s authorities are concerned with

comparable funding levels; whereas provincial/territorial child and family

services legislation and standards are concerned with ensuring service levels

that are in line with sound social work practice and that meet the best interest

of children. It is difficult, if not impossible, to ensure reasonably comparable

child and family services where there is this dichotomy between comparable

funding and comparable services. Namely, this methodology does not

account for the higher service needs of many First Nations children and

families living on reserve, along with the higher costs to deliver those services

in many situations, and it highlights the inherent problem with the assumptions

and population levels built into the FNCFS Program.

(Merit Decision at para. 464).

[166] The Panel previously found that:

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AANDC’s reasonable comparability standard does not ensure substantive

equality in the provision of child and family services for First Nations people

living on reserve. In this regard, it is worth repeating the Supreme Court’s

statement in Withler, at paragraph 59, that “finding a mirror group may be

impossible, 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”. This statement fits the context of this complaint

quite appropriately. That is, human rights principles, both domestically and

internationally, require AANDC to consider the distinct needs and

circumstances of First Nations children and families living on-reserve -

including their cultural, historical and geographical needs and circumstances

– in order to ensure equality in the provision of child and family services to

them. A strategy premised on comparable funding levels, based on the

application of standard funding formulas, is not sufficient to ensure

substantive equality in the provision of child and family services to First

Nations children and families living on-reserve.

(Merit Decision at para. 465)

[167] For clarity, the actual costs orders are not the imposition of a particular funding policy.

Rather they are a remedy to underfunding found in this case. Canada can opt for any type

of policy as long as it does not perpetuate the discriminatory underfunding. The parties in

this case apprise the Tribunal on the evolution of the implementation.

[168] The Panel believes it is helpful to define actual cost in the context of actual costs of

the purchase or construction of capital assets that support the delivery of FNCFS services

and federal policy for procurement.

[169] Actual cost is an accounting term that means the amount of money that was paid to

acquire a product or asset. It’s exactly what it sounds like—the actual cost. This cost could

be either a historical, past, or present-day cost of product.

[170] Paying less than what the actual costs are to deliver services under the FNCFS

Program was found to be discriminatory in unchallenged decisions from the Tribunal.

Maintenance costs were reimbursed at actuals while prevention was underfunded leading

to the mass removal of children from their homes, families and communities.

[171] The Panel understands from Canada’s position that it is concerned about orders that

would essentially amount to unlimited funding of unrelated FNCFS Program costs. The

Panel clarifies that this is not the case with its actual costs’ orders.

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[172] Furthermore, the Panel is not suggesting that non-discriminatory policies and legal

processes should not be followed. But these policies and processes cannot be permitted to

condone discrimination against First Nations in need of buildings to offer child and family

services including prevention services. Moreover, the term actual costs can be understood

as fully funded authorized services.

[173] Moreover, the Panel is not dictating the precise policy or the amount of funds to be

distributed. The Panel is saying that services ought to be offered in buildings that respect

provincial legal requirements, that are non-discriminatory, to offer services to First Nations

children and families as a minimum standard, respect the FNCFS Program authorities that

do not perpetuate discrimination and also ensure culturally appropriate and safe services. If

there is a lack of offices and rental spaces to offer services on-reserve the option of purchase

or construction of buildings to offer those services should be seriously envisioned and fully

funded.

[174] The Panel believes the parties in this case should ensure the procurement process

respects current federal legal and policy procurement requirements but also substantive

equality, First Nations rights and the Tribunal’s orders.

[175] Moreover, the actual costs were ordered in 2018 CHRT 4 for a number of items

addressed in the ruling and previous rulings including prevention services to stop the mass

removal of First Nations children from their homes, families and communities. This ruling

was not challenged. Rather, Canada made a clear statement that it would abide by it. See

also the Consultation protocol signed by Canada’s Ministers. An advanced copy of the ruling

was provided to the parties and an emergency meeting on FNCFS was held at the same

period where Minister Philpott qualified the situation in Canada as a humanitarian crisis. A

six-point plan, including implementing the Tribunal’s orders, was adopted. This information

forms part of the evidence before the Tribunal.

[176] The 2018 CHRT 4 ruling included an order for actual costs for FNCFS retroactive to

the Merit Decision dated January 26, 2016. Additionally, the 2018 CHRT 4 ruling did not

order Canada to pay specifically for the purchase or construction of buildings. The order was

more directed at repairs while Canada gathered more information on the purchase or

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construction of capital assets that support the delivery of FNCFS services (see 2018 CHRT

4 at paras. 213, 231, 233-236, 408, 410-413). The fact that it was not ordered in this 2018

ruling does not negate reform orders and previous findings. However, this ruling did

recognize that more time was required to consult and develop a policy for the purchase or

construction of capital assets that support the delivery of FNCFS services. The Panel

adopted a balanced approach where it accepted the need for more consultation and studies

in order to develop options for funding the purchase or construction of capital assets that

support the delivery of FNCFS services. This being said, three and a half years have passed

since then and the Panel is informed that discussions are ongoing and that no clear deadline

has been set for the completion of those consultations and studies aside from a timeline for

Phase 3 of the IFSD report. Insufficient explanation has been provided for cases where the

First Nation community is exercising its self-government inherent right and requesting the

construction of a building to offer child and family services or Jordan’s Principle services and

where all requirements have been met including Canada’s involvement (i.e. a shovel ready

project) and have not been given the funding and the green light or sufficient funding to offer

those services in new buildings. According to the evidence and Canada’s reply submissions,

Canada has updated and expanded the FNCFS Program’s Terms and Conditions. They

now allow for greater flexibility and expansion on eligibility for expenditures, including

expenditures related to capital/building repairs, the purchase or construction of capital

assets (e.g. buildings), and the purchase and maintenance of information technology

equipment.

[177] Therefore, despite previous cross-examinations of Canada’s witnesses and their

evidence relied upon by Canada and properly put before this Panel, it is no longer accurate

to consider the purchase or construction of capital assets that support the delivery of FNCFS

services as only forming part of the Community Infrastructure program. The recent updated

Terms and Conditions filed in evidence reflect this change.

[178] Furthermore, the administrative structure of Federal programs working in silos within

the federal government and within the INAC department, now ISC was already found in the

Merit Decision to be discriminatory in creating gaps in services to First Nations children and

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families and the source of numerous disputes between federal departments for Jordan’s

Principle cases.

[179] This structure is a governmental choice in the way it functions and administers

programs. Since the Merit Decision, INAC became ISC and a major merger and

reorganization was made. While it may have addressed some issues identified in the Merit

Decision, the Panel is still presented with arguments from Canada that show the silo mindset

is still present. In Canada’s submissions responding to the purchase or construction of

capital assets that support the delivery of FNCFS services motion, a focus is made on the

Community Infrastructure Program instead of the FNCFS Program and its Terms and

Conditions or the findings made in the Merit Decision. The Panel was clear in the Merit

Decision that reform needed to be informed by the findings in the Merit Decision. Major

Capital was part of those findings.

[180] The Panel’s flexibility should not be viewed as retreating from its original findings but

rather as a recognition that Canada maneuvers in a complex situation and should be allowed

some flexibility as long as it makes non-discriminatory policy choices in a reasonable

timeframe that do not repeat historical patterns that lead to discrimination. Otherwise, the

Tribunal may intervene to eliminate the discrimination it has found (see 2018 CHRT 4 at

para. 275).

[181] This flexibility is shown in 2018 CHRT 4 when the Panel agreed to postpone specific

orders for a funding formula on the purchase or construction of capital assets that support

the delivery of FNCFS services to the long-term phase, accepting the need for further

consultations and studies. However, the Panel believed that in applying substantive equality

principles, Canada would be responsive to specific needs of FNCFS Agencies and First

Nations and would approve those funds while it develops a new funding formula in the long

term. Further, to get a better understanding of this, one can review the previous rulings and

understand that specific needs and substantive equality are central to the Panel’s rulings.

Additionally, Canada’s arguments that were considered for 2018 CHRT 4 gave an

impression of momentum given the emergency meeting. The Panel established deadlines

to complete the FNCFS specific needs assessments and amended its timeline following

Canada’s request. Those timelines were to be met in 2018.

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[182] As recently expressed in a letter, the Panel notes it has now been over 3 years and

this issue is still pending thus the need to have adequate interim processes in place in terms

of capital assets. The Panel recognizes and is familiar with the legal and social context in

which buildings are built on reserves and the need to respect First Nations inherent rights.

No one can act unilaterally, not Canada, not this Tribunal, not the FNCFS Agencies.

However, when a project is “shovel ready”, which means the consultations and the analysis

of all relevant considerations have been completed between the First Nation and Canada,

and the First Nation requests construction of a building to enable the First Nation to offer

services to their children, there is no reason to delay it. If construction is delayed, it creates

a number of negative outcomes: delays or denies services to children that could be offered

in a safe, confidential, legal and appropriate space; denies the First Nations inherent right

to self-government for the benefit of a unilateral decision imposed by Canada; perpetuates

the harms identified in the decision and does not comply with the Tribunal’s orders to cease

the discriminatory practices identified in the Merit Decision.

[183] The Tribunal highlighted these consequences in 2018 CHRT 4 at paras. 272-273:

While not all 5 INAC social programs were part of this complaint, and

recognizing that the Tribunal has limits in terms of adjudicating the claim that

is before it, a number of comments are worth mentioning. Canada’s practice

of reallocating funds from other programs is negatively impacting housing

services on reserve and, as a result, is adversely impacting the child welfare

needs of children and families on reserve by leading to apprehensions of

children. This perpetuates the discriminatory practices instead of eliminating

them.

The Panel addressed this issue as part of its findings in the [Merit] Decision

and identified it was part of the adverse impacts on First Nations children and

families.

(see 2016 CHRT at para. 273).

[184] Keeping with the spirit of 2018 CHRT 4 at paragraphs 294 to 297, the same

reasoning applies to any item identified in previous decisions and in need of reform. While

studies and data may need to be collected for optimal results, years are going by and

important changes are outstanding. The Panel finds that delaying construction projects that

are ready to go until all studies have been completed is unhelpful to the communities that

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welcome change now. This is the equivalent of a one-size-fits-all approach that the Panel

has already rejected. Funding based on need respecting substantive equality requires

funding shovel ready projects while Canada consults and completes studies. FNCFS and

Jordan’s Principle spaces should be available to offer services to children. If those spaces

are not available, this prevents the services being offered. This is the equivalent of a denial

of services to children and this perpetuates the discrimination found in the Merit Decision.

[185] The Panel now believes that Canada is attempting to relitigate those previous

unchallenged rulings to obtain a different outcome which is unfair to the proper

administration of justice and to the complainants and the children and families they represent

who were successful in this case.

[186] The Panel shares Canada’s need for finality ending with long-term reform

settlements or orders, whether on consent or otherwise. This needs to be done in a

reasonable timeframe and cannot remain open-ended forever as part of this Tribunal

process. However, Canada’s assertion that there is no evidence of ongoing discrimination

is simply not true. Canada’s own affiants admit that they are still gathering information to

inform long-term changes. The Panel was clear from the beginning about three necessary

phases to reform and eliminate the systemic discrimination found: immediate, mid-term and

long-term relief followed by a complete reform until this is done, systemic discrimination

harming First Nations children and families continues. The Panel finds there is a need to

establish a clear deadline to ensure timely movement forward.

[187] Canada argues that based on recommendations from the CCCW, Canada has also

increased the funding threshold within the FNCFS Program from $1.5 million to $2.5 million

for agencies to use their available funds on the purchase or construction of capital assets

that support the delivery of FNCFS services, which would help account for inflation and other

pressures. As communicated to the CCCW, agencies can use the increased Budget 2018

funding (ramp-up & remoteness allocations) or any surpluses they may have for capital

expenditures. Capital-related expenses are also eligible for communities under the

Community Well-being and Jurisdiction Initiatives.

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[188] Canada is implementing these immediate relief efforts, and has firmly committed

itself to respecting these orders, while working on a long-term capital plan. The Panel

recognizes that this may assist some FNCFS Agencies and First Nations in the immediate

term, while it may not be sufficient for others. The Panel reiterates the needs-based funding

approach. A needs-based analysis will show if Canada’s current approach is sufficient for a

given First Nation or not and when it is insufficient, funding should reflect the need rather

than a model or one-size-fits-all approach. Lorri Warner’s March 4, 2020 affidavit at exhibit

7A provides more clarity as to how this cap is to be utilized. The total capital costs of a

project cannot exceed $2.5 million per FNCFS Agency per fiscal year. A FNCFS Agency

may incur costs for more than one project per fiscal year; multiple FNCFS Agencies can

share the costs of a project and still be eligible for a maximum of $2.5 million each (i.e. per

FNCFS Agency) per year; and FNCFS Agencies may work with other partners that are not

eligible recipients under this FNCFS Program and still spend the maximum of $2.5 million

per year. Furthermore, the document provides three examples as to how the cap may be

applied. The document also includes minimum Common Program Requirements and other

requirements that need to be met in order for any of these listed expenditures to be deemed

eligible for funding.

[189] This additional information is favorable to Canada as opposed to a firm $2.5 million

cap with less information. In fact, it may very well be sufficient to address some FNCFS

Agencies’ needs, especially for some small agencies that need adequate space to support

the delivery of services. On this point, the Panel believes it is necessary to make a further

order for Canada to be sufficiently responsive to the systemic discrimination and to clarify

that small agencies that are ready to proceed ought to be funded at actuals for the purchase

or construction of buildings that support the delivery of FNCFS services. The same

reasoning applies for all FNCFS Agencies regardless of their size. Some may be able to

share space with others and cost-share. The Panel understands the benefit of such an

approach but in other cases, it may not be possible. A blanket policy that excludes all small

agencies from accessing the purchase or construction of buildings is not respecting

substantive equality principles. The good administration of public funds is respected when

the real needs are considered and inform the substantive equality analysis. Moreover, the

same applies on the issue of funding the actuals costs for administration and governance,

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prevention, intake/investigation, and legal services at their actual cost, the Panel clarifies

this is already covered under the 2018 CHRT 4 orders. The Panel believes that such a

clarification is helpful moving forward.

[190] For other FNCFS Agencies the current cap and other flexibility such as the

reallocation of surpluses may very well be insufficient. For the latter, the Panel confirms

they are covered under previous substantive equality/needs-based orders including the

orders in this ruling. This being said, the Panel understands the need for requirements prior

to a purchase or construction on-reserve.

[191] In that regard, the exhibit 7A document referred to above, specifies that in alignment

with ISC’s Capital Facilities and Maintenance Program and First Nation Infrastructure Fund’s

minimum requirements, any building purchases, new builds, or major renovations of

buildings will meet the following requirements: the project will be supported by a Band

Council Resolution, Tribal Council Resolution or other documentation indicating support

from the governing body of a self-governing First Nation; the project will have a well defined

and formally approved scope of work, schedule and budget; a qualified project manager

acceptable to the FNCFS Agency (and band or tribal council if a joint project) will be

appointed to manage the implementation of the project; a feasibility study will be carried out

in advance of construction of the project commencing when deemed necessary by the

FNCFS Agency; the project will be designed to meet all the applicable federal, provincial

and territorial codes and standards for the design, construction and operation of similar

physical assets, and in accordance with departmental level of service standards, as may be

amended from time to time; where the total estimate cost of the project exceeds $50,000 or

is not within the competence of a technician/technologist, the design of the project will be

approved and so certified by a professional engineer or architect licensed to practice as

such in the province/territory where the facility is to be constructed; and the project will be

inspected and certified for compliance with applicable regulatory requirements by qualified

inspectors at the various stages. Further the document includes additional details that are

instructive:

6.3 Other Capital Expenditures - Building-Related Capital Proposals

(Excluding Building Repairs)

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The Capital Facilities and Maintenance Program (CFMP) within ISC is the

main pillar of the Government of Canada’s efforts to support community

infrastructure for First Nations on reserve. CFMP exists to support the

planning, management and building of infrastructure on reserve in a safe

manner. While it will be the responsibility of the FNCFS Program to assess

the eligibility of capital proposals for FNCFS Program funding, CFMP will be

involved in reviewing building-related capital proposals (purchases, new

builds and major renovations) from a technical perspective to support ISC’s

ongoing effort to:

• maximize the life cycle of physical assets;

• mitigate health and safety risks;

• ensure assets meet applicable codes and standards; and

• ensure assets are managed in a cost-effective and efficient

manner.

CFMP will pre-approve these capital proposals before the FNCFS Program

flows any funding. These projects will have to be submitted using CFMP’s

formal project proposal template. Once FNCFS receives pre-approval from

CFMP, ensuring that all legislative and regulatory, guidelines and codes have

been adhered to, FNCFS will approve funding should the project meet all

other criteria as stated in this document.

[192] This is an example of what the Panel means when it uses the terms legal processes,

requirements or processes in this ruling. The Panel does not propose to bypass those

requirements unless their interpretation perpetuate discrimination.

[193] The document specifies that:

* CFMP, if needed, will work with the FNCFS agency to:

• provide expertise in the area of engineering, architecture etc.;

• analyze and/or revise scope of project;

• assist in establishing project management arrangements; and

• update financial information (project quote)

**FNCFS Program and CFMP will work closely throughout the project;

however, FNCFS Program officials will remain the final decision maker on all

aspects of the project. Note: Departmental employees will provide advice and

guidance to FNCFS agencies throughout this process.

(emphasis ours).

[194] The history in this case and the evidence demonstrate that when Canada applies

criteria and uses discretion, it is not necessarily using a substantive equality lens responsive

to real needs of First Nations children and families.

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[195] Consequently, a needs-based, focused approach is necessary. The Panel

recognizes that Canada allows case-by-case requests to come forward which is appropriate

in the sense of responding to specific needs. However, there is no indication that once the

need is established and all legal requirements for purchase or construction are fulfilled, a

higher amount than the funding cap of $2.5 million will be authorized. The Panel is not

convinced that Canada feels legally obligated to fully fund building purchase or construction

on reserve over the imposed cap when there are insufficient, if any, funds in the FNCFS

Agencies’ surpluses, and no possibility to join with another agency. The same reasoning

applies to First Nations communities under the Community Well-being and Jurisdiction

Initiatives.

[196] However, the exhibit referred to above does not address the Community Well-Being

and Jurisdiction Initiative. Simply said, when the needs exceed the current FNFCS Program

authorities, Canada points to the infrastructure program as potentially addressing those

needs which have been determined to be a priority for the First Nation. There is insufficient

evidence to demonstrate that this is fully responsive to eliminate the systemic discrimination

found. Moreover, as discussed earlier in this decision, the infrastructure program was

reviewed by the Auditor General who found community infrastructure deteriorated at a faster

rate. In the Auditor General’s view, AANDC’s budgeting approach for the FNCFS Program

is not sustainable and needs to minimize the impact on other important departmental

programs. This approach is problematic.

[197] Canada recognizes that a better understanding of long-term capital needs for First

Nations Child and Family Services is needed and notes consultation on this issue is ongoing

at the CCCW. Canada argues it is imperative that First Nations communities have a voice

in discussions concerning the process for capital planning and expenditures. The Panel

agrees. However, this cannot be the reason to delay or deny funding for when a First Nation

or FNCFS Agency has followed the requirements and voiced its needs and awaits action.

[198] It is noteworthy to mention that Canada’s short submissions mention relying on past

affidavits and reports filed with the Tribunal. However, those submissions do not discuss the

evidence in great detail even if the Panel provided multiple opportunities to add comments

if needed. This is not to say that the evidence before the Tribunal is unhelpful. Rather it is

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simply that it may have been useful to provide some clarifications. For example, Canada’s

reply indicates a change in the Terms and Conditions suggesting movement from the

original position outlined in their initial submissions. This also corroborates the Caring

Society’s account of the evolution of the issue, identified gaps and suggested changes

discussed at the CCCW and subsequent modifications to the Terms and Conditions (see

Lorri Warner’s affidavit dated January 29, 2019 at exhibit 1 and Ms. Johanne Wilkinson’s

affidavit at Exhibit 9) that now include the purchase and construction of buildings for the

delivery of services as eligible expenditure under the FNCFS Program and joins those terms

and conditions to the materials.

[199] However, on March 4, 2020, Canada filed materials to respond to the Panel’s

broader requests that expand outside this motion by way of submissions and another

affidavit from Lorri Warner. On February 26, 2021, Canada provided a response to the

Tribunal's questions on the materials it should consider for the major capital, small agencies

and band representatives motions:

On behalf of the parties (as specified in the final paragraph below), we write

further to the Tribunal’s correspondence of February 18, 2021

(“Correspondence”). In the Correspondence, the Tribunal indicated it was

seeking to confirm the submissions and evidence from the parties in relation

to the issues of major capital for the FNCFS Program, Jordan’s Principle,

Band Representative services and downward scaling of funding for small

agencies.

Further to the Tribunal’s query, Canada confirms its submissions and affidavit

from March 4, 2020, were specifically in response to the Tribunal’s request for

information. While relevant to the issue of major capital, the submissions and

evidence filed in September 2020 provide updated reporting in that regard.

In addition to the clarification from Canada above, the Tribunal is seeking a

response from the parties in respect of three questions posed - those

questions have been reproduced below and the response of the parties follow:

1. Whether the submissions and evidence in the Caring Society’s letter and

the subsequent submissions and evidence identified [above] accurately

reflect the parties’ submissions on this issue.

The parties have reviewed their records of submissions and evidence. It is

agreed the detailing of the submissions and evidence by the Tribunal in the

Correspondence is exhaustive.

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2. Whether there are any parties’ submission, not already on the list provided

by the Caring Society, from around March and April 2020 that are pertinent to

this motion. 3. Whether there are any parties’ submission, not already on the

list provided by the Caring Society, from around March and April 2020 that are

pertinent to this motion.

The list of parties’ submissions appended to the correspondence of the Caring

Society dated September 1, 2020, is complete.

3. Whether there are any outstanding matters related to major capital on which

the parties have yet to make submissions.

The parties agree no further submission in relation to major capital are

required. Out of an abundance of caution, the parties wish to confirm that they

consider that the Institute of Fiscal Studies and Democracy’s Phase 2 report,

filed by the AFN on September 11, 2020, is properly before the panel and can

be considered on this motion. However, the parties do not have additional

submissions to make on the IFSD’s work in relation to this motion.

[200] At the Panel’s request, the parties provided a letter including a chart of the documents

they were relying on as part of this motion. The letter is dated September 1, 2020. In the

chart, Canada does not indicate it is relying on Lorri Warner’s March 4, 2020 affidavit.

However, Canada in its April 24, 2020 response to the Panel’s questions and the COO’s

submissions made submissions on capital and relied on Lorri Warner’s March 4, 2020

affidavit. Further, the NAN relies on that affidavit for the issue of Band Representative

Services which will be addressed below. The Panel has chosen to consider the evidence

contained in this affidavit as this information provides additional details and demonstrates

somewhat greater scope for funding capital costs than Canada’s evidence had previously

disclosed. Having reviewed this evidence, the Panel would have reached the same result

regardless of whether it considered this evidence in its analysis. The Panel’s full

consideration of this evidence will hopefully benefit the parties as they work to remedy the

discriminatory practices in this case and comply with the Panel’s orders.

[201] Lorri Warner’s March 4, 2020 affidavit attached the Programs’ Terms and Conditions

that are also found in previous affidavits. Moreover, little is said to assist the Panel in

interpreting those Terms and Conditions. Some relevant parts are reproduced below for

ease of reference.

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[202] The Terms and Conditions list a number of the Tribunal’s orders in 2016 CHRT 10

concerning multiple offices and capital infrastructure:

funding deficiencies for items such as salaries and benefits, training, cost of

living, legal costs, insurance premiums, travel, remoteness, multiple offices,

capital infrastructure, culturally appropriate programs and services, band

representatives and least disruptive measures.

[203] The reasons for this order are first explained in depth in the Merit Decision.

[204] The Terms and conditions also provide the relevant detailed information reproduced

here:

The FNCFS program is now intended to emphasize the use of preventive,

early intervention and least intrusive measures in order to respond to child

maltreatment (abuse or neglect), support for family preservation and well-

being, maintenance of family, cultural and linguistic connections for children

in care, former children in care (post-majority), and community wellness using

a community supported approach. It also promotes a collaborative

relationship between communities and agencies. The introduction of a new

funding stream within FNCFS for Community Well-being and Jurisdiction

Initiatives (CWJI) is designed to enable projects of up to five years in duration

to expand the availability of prevention and well-being initiatives that are

responsive to community needs, and to support First Nations in developing

and implementing jurisdictional models.

With program reform, services under the FNCFS program will be provided on

the basis of substantive equality to address the specific needs and

circumstances of First Nations children and families living on-reserve –

including their cultural, historical and geographical needs and circumstances

– in a manner that accounts for cost drivers related to inflation and increased

needs or numbers of children in care and their families. The program also

needs to provide paramountcy to the safety and best interest of the child. In

order to provide equal opportunity and achieve equitable results and

outcomes, the program supports variations in service requirements and

methods of service provision.

Fixed and flexible funding approaches through contribution agreements are

available for the FNCFS program, as described in the Directive on Transfer

Payments (Appendix K: Transfer Payments to Aboriginal Recipients). CWJI

projects will also be managed through multi-year contribution agreements.

The CWJI is a funding stream of FNCFS, whereas the FVPP is a distinct but

complementary program.

FNCFS Agencies:

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Eligible Initiatives and Projects

Infrastructure Purchase, Maintenance and Renovations

 Purchase or construction of capital assets (e.g. buildings) that support

the delivery of FNCFS services;

 Operations, minor maintenance (e.g. general repairs, painting,

plumbing, minor electrical);

 Renovations/repairs to the building structure, structural foundations,

etc.;

 Repair/replacement of roofing, siding etc.;

 Repairs replacement of Heating system, Cooling system, Ventilation

system, Electrical

 system, Water system, Plumbing system, Back-up generators, etc.;

 Repairs/replacement to/of the floors;

 Repairs/repainting to/of the walls, ceiling, etc.;

 Repairs/replacement to/of windows, doors, etc.;

 Repairs/renovations to the toilets, bathrooms;

 Repairs/renovations to the kitchen (including replacement of

cupboards, counters, etc.);

 Repairs/renovations to storage space;

 Repairs/renovations related to improved indoor environmental quality

including:

o Air quality (e.g. vent replacement),

o Thermal comfort (e.g. replacement of thermostats),

o Acoustics (e.g. wall insulation),

Community Well-being and Jurisdiction Initiatives:

Infrastructure Purchase, Maintenance and Renovations

 Capital costs for:

 Purchase or construction of capital assets (e.g. buildings) that

support the delivery of FNCFS services;

 Purchase and maintenance of vehicles suitable for the

transportation of children and families support the delivery of

FNCFS services;

 Purchase and maintenance of information technology equipment

and systems that are tailored to child and family services delivery.

 Operations, minor maintenance (e.g. general repairs, painting,

plumbing, minor electrical);

 Janitorial and ground maintenance services.

(emphasis added)

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FNCFS Agencies

Funding for prevention, protection, maintenance, legal services, child service

purchase amounts, intake and investigations, building repairs, as well as for

agency operations costs for small FNCFS agencies, is based on the actual

needs of the children and families served by FNCFS agencies, as reflected

by expenditures in these categories.

Community Well-being and Jurisdiction Initiatives

Funding for CWJI projects is determined at the regional level based on the

specific needs, circumstances and goals of the community, as well as on the

nature and duration of the activities described in the project proposal.

Notwithstanding the above, for FNCFS, costs for maintenance will continue to

be reimbursed based on actual costs incurred. In addition, the Department will

reimburse actual costs for the following expenses when agencies have not

already received funding through another federal program (including another

program of Indigenous Services Canada), or any provincial, territorial, or

municipal government funding source for that activity:

 prevention;

 intake and investigations services;

 legal fees;

 building repairs;

 full eligible agency operations costs for small agencies; and,

 child service purchase costs.

The six areas above are those the Tribunal has ordered the program to pay

on actuals. A detailed National Recipient Guide detailing how recipients may

claim retroactive costs in these areas has been shared with recipients to

support them in accessing funds as ordered by the Tribunal.

(emphasis ours).

[205] This indicates that Canada views that the Tribunal has not yet ordered the program

to pay actuals for the purchase or construction of buildings to support the delivery of services

under the FNCFS Program. This is technically true when relying on 2018 CHRT 4 orders

focusing on building repairs and using the term actual costs. The 2018 CHRT 4 ruling

allowed more time for studies for capital costs with the emphasis of determining needs for

children and families served by FNCFS Agencies without rescinding previous capital

infrastructure orders, nor derogating from the need for substantive equality and the need to

be responsive to specific needs of children, families and communities on-reserve. This

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means if a case is made for the purchase or construction of a building to support the delivery

of child and family services, the purchase or construction should be fully funded once all

legal requirements have been met. Nothing in the Panel’s rulings suggest services should

be deficient due to a lack of adequate buildings to offer those services. This is not

substantive equality or even responsive to provincial or territorial standards. It is Canada

that has decided to respond to First Nations children through different programs. The

Tribunal found this siloed way of operating forms part of the systemic discrimination

experienced by children in light of gaps and a lack of being responsive to the real needs of

children and families. If Canada so chooses to divide Indigenous services in different

programs and this divide continues to adversely impact children, families, this is far from

compliance with the cease-and-desist orders made by the Tribunal. Children risk being

transported outside the reserves to obtain services. This defeats the purpose of the orders.

It is for Canada to holistically analyze the First Nations children and families’ specific needs

as already ordered including lack of spaces to offer services.

[206] Furthermore, if there is a need for additional building purchase or construction that

are to offer services under the FNCFS Program on-reserve it should be fully funded once

all legal requirements to acquire or build property on-reserve have been met. It is not

acceptable for the Tribunal at this stage to receive simple answers such as we are

discussing with our partners, other programs may offer this, etc. At this stage, the Panel

requests evidence that child and family services are fully funded in line with the best

evidence available at this time, that spaces to offer those services are available and, if not,

that timely solutions are implemented. If a First Nation or agency is unresponsive after

Canada’s due diligence to consult them and obtain their needs and supported by evidence,

this is not on Canada. If a First Nation or agency is responsive and makes a case for

additional space to offer FNCFS and Canada delays this by simply referring to another

program such as the infrastructure program or directing the requestor to wait until the

completed IFSD study or wait until Canada has discussed with all First Nations, this is

inappropriate and it is on Canada. Finally, the latter amounts to non-compliance with the

cease-and-desist orders, immediate relief orders, 2018 CHRT 4 needs analysis orders and

perpetuates systemic discrimination.

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[207] This being said, the Terms and Conditions do include the purchase and construction

of buildings. The analysis to use is one of substantive equality:

In this respect, the reasonableness of a particular cost will be established by

determining whether the expense was: necessary to ensure substantive

equality and the provision of culturally-appropriate services, given the distinct

needs and circumstances of the individual child and his or her family, including

their cultural, historical and geographical needs and circumstances, for

instance, by taking into account any needs that stem from historical

disadvantage and the lack of on-reserve and/or surrounding services;

 deemed by the recipient to be necessary for the best interest of

the child;

 generally recognized as normal and necessary for the conduct of

the activity; and,

 aligned with restraints and requirements of generally accepted

accounting

principles,

arm's

length

bargaining,

federal/provincial/local laws and regulations, and/or Certified

Accountant terms.

[208] The lack of agreement on this issue and on the interpretation of the Panel’s previous

orders resulting in the need for adjudication confirmed by the parties support a clarification

order on this issue. Moreover, Canada has not convinced the Tribunal it will fully fund

‘’shovel ready’’ projects approved by First Nations communities at this time. Canada’s

evidence and submissions indicate a desire to continue ad hoc measures and delays until

the IFSD phase 3 is completed at an uncertain time. More importantly, Canada while relying

on this study to delay some funding, does not commit to follow the IFSD’s recommendations.

[209] Canada submits it would be inappropriate to rely solely on the IFSD report for an

expenditure of such a large sum of money. Canada seeks to work collaboratively with the

other parties to enable the FNCFS Program to make the strongest possible case for new

funding. Canada has identified a number of factors not considered in the report such as the

funding from the 2018 Budget. While helpful, the IFSD report does not provide the requisite

comprehensive understanding of the broad needs of all FNCFS Agencies. The uptake on

capital funding to-date does not support the magnitude of investment found to be required

by the IFSD report.

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[210] In response to this argument, the Panel clarifies that Canada is not ordered to commit

to implement the IFSD reports 1 and 2 or the IFSD’s phase 3 final recommendations at this

time. Canada can choose to demonstrate an even more comprehensive funding model

respecting First Nations children, families, communities and Nations’ rights if it develops one

in a timely manner. Otherwise, this study’s process could very well resemble what has

happened with Wen:De that led to this extremely long litigation. For those reasons, the Panel

believes it has to intervene to fulfill its quasi-judicial mandate to eliminate the racial and

systemic discrimination found.

[211] On August 1, 2018 ISC provided a “Discussion Paper – Addressing Capital Needs”

(See Tab 9 of the Caring Society’s motion record dated February 4, 2019) that outlined

current policy authorities, interim authority under the revised Terms and Conditions, and

future policy authorities, including a need to return to Cabinet to support Major Capital

projects. A list of expanded minor capital expenditures was attached to the discussion paper.

[212] The discussion paper supports Canada’s submissions dated January 29, 2019 on

capital indicating that the purchase or construction of capital assets that support the delivery

of FNCFS services above $1.5 million exceed the FNCFS Program authorities and that ISC

is paying building repairs in compliance with 2018 CHRT 4 orders.

First Nations Children and Family Services (FNCFS) Program has received

requests for minor capital expenditures (e.g. expansions), and major capital

projects above $1.5 million (e.g. building long-houses, community-centres,

safe-houses on reserve, creating group homes for keeping children in care

close to the community), which are outside of the current FNCFS Program

authorities. As of February 1, 2018, Indigenous Services Canada is paying

building repairs based on actuals (including reimbursements of expenditures

dated back to Jan. 26, 2016).

In the short-term, FNCFS is currently working to clarify and expand the list of

eligible expenditures under minor capital through the interim Terms and

Conditions. The program is also seeking to learn more from the data collected

by the Institute of Fiscal Studies and Democracy (IFSD)’s (July 10, 2018

presentation) on agency capital needs. As the work of IFSD continues

towards developing a new funding methodology, the Program is prepared to

discuss what capital may be needed by agencies moving forward.

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[213] Canada submits it has been and continues to approve requests for building repairs.

As of January 11, 2019, Canada has approved $9.4 million in claims for building repairs. In

Canada’s reply from May 2019, relying on the affidavit of Joanne Wilkinson dated April 16,

2019, at para. 49, this number had increased to $15.4 million. Without context this number

may look impressive. However, numbers alone without the full context do not satisfy the

Tribunal’s need to ensure systemic discrimination, including underfunding, is eliminated.

Canada has adopted an approach of announcing funding and publicly stating that it is

complying with the Tribunal’s orders when this is not always the case (see 2018 CHRT 4 at

paras. 106-107, 135-158). Moreover, allocating funds without calculating needs first is not

sound financial practice. Furthermore, past financial trends emanating from the FNCFS

Program informing Treasury Board were found to be discriminatory. In other words, the

Panel found that the real needs of children and families and FNCFS Agencies were not fully

taken into account, the FNCFS Program funding formulas informing the FNCFS Program

authorities were flawed causing adverse impacts to children and families, and FNCFS

Agencies amounting to harm. Provincial and territorial standards were not met even if this

was a FNCFS Program requirement. Culturally appropriate services were not fully provided.

Other social programs supposedly addressed gaps, yet this was also found to be inaccurate

given the lack of coordination between departments. It is also reasonable to believe that if

ISC did better in other social programs, it would have used this productive method to

improve the FNCFS Program and efficiently address the systemic discrimination it was

ordered to remedy. Consequently, relying on past financial trends that amount to

discrimination is not and should not be the only way to inform Treasury Board and Budget

allocations. Therefore, the Panel rejects Canada’s argument that funding at actual costs

does not work well with government funding that relies on certainty which is not provided by

a direction to fund actual costs. This is precisely why the Panel ordered Canada to determine

the real service needs of children and families so as to inform non-discriminatory funding

moving forward and ordered Canada to create new funding baselines that have no built-in

discrimination and respect substantive equality. This is the reasoning behind actual costs

orders. A paradigm shift is needed to balance the need for certainty for government to

effectively manage public funds with avoiding the perpetuation of systemic discrimination by

basing this certainty on past trends that were significantly flawed.

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[214] One approach to such a paradigm shift was suggested at the August 2, 2018 CCCW

meeting:

a. Dr. Blackstock stated that the Discussion Paper failed to address the major

issue related to the need for new space for increased staff and prevention

programs, and that a firm commitment that authorities would be extended to

cover major capital projects was required.

b. Ms. Isaak advised that ISC required a full grasp of FNCFS Agency capital

needs in order to build the best case for adding major capital authorities.

c. Dr. Blackstock reiterated her concerns that ISC’s requirement of a “full grasp” of

FNCFS Agency capital needs would forestall projects that were already ready to

proceed.

(Tab 9 of the Caring Society’s motion record dated February 4, 2019).

[215] The Panel believes ISC’s proposed approach at the August 2, 2018 CCCW meeting

is an appropriate way to proceed as long as it is not delayed for years for FNCFS Agencies

and First Nations communities that are ready to proceed now. Building funding costs were

ordered in 2016. The Panel agreed in 2018 with the proposal for timely consultation and

discussions. However, the proposed deadline for the Panel’s consideration was not 2022 or

even later. Nor was a policy contemplated that would similarly delay immediate needs

identified by a FNCFS Agency or community in order to build a case for Treasury Board.

[216] Further, the Panel rejects Canada’s scope and jurisdiction arguments given that

Canada failed to apply the appropriate case-specific and human rights lens and for failing to

account for the very core of the claim, the systemic discrimination found and ordered to

cease and desist in this case is not conditional to making a case for Treasury Board nor

does it allow Canada to hide behind this approval process to avoid the Tribunal’s orders. A

section 15 or 16 of the CHRA defence was not advanced in this case (see Merit Decision at

para. 27). While the Panel does not deny the need to respect the Financial Administration

Act, the Treasury board process and discretionary decisions from the executive should be

harmonized with Canada’s human rights responsibilities and liability.

[217] This being said and as it will be demonstrated below, ISC officials were in active

discussions in order to improve their services and did make some significant changes to

their authorities to reflect the voiced needs of FNCFS Agencies and communities.

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[218] At the September 5, 2018 CCCW meeting:

a. Dr. Gideon advised that while the First Nations Inuit Health Branch has

authority for major capital projects on reserve, those authorities have been

narrowed over the years to be specific to health centres.

b. Ms. Isaak advised that ISC was determining which FNCFS Agencies

operate in owned space as opposed to leased space.

c. Ms. Isaak advised that in 2007, Treasury Board rescinded the general

requirement that minor capital projects be limited to under $1.5 million and

stated that each program must create their respective authority. The former

INAC simply adopted the $1.5 million threshold for minor capital projects, with

some programs having increased it. All parties agreed that the $1.5 million

threshold was insufficient for actual needs for new space.

d. The Caring Society suggested applying an inflation adjustment to the minor

capital threshold adopted following the change to the Treasury Board directive

in order to restore lost purchasing power.

e. Ms. Isaak raised the possibility of setting an assessment process to

ascertain which FNCFS Agencies require significant and imminent work, as

well as a capital needs assessment of all FNCFS Agencies to be performed

to have a better understanding and comprehensive picture of current and

projected costs.

[219] On October 1, 2018, the Caring Society provided feedback to ISC regarding its

Capital Options Discussion Paper (Tab 2).

[220] The Panel notes the discussion paper mentions under Eligible Expenses:

• To date based on IFSD and discussions with agencies, new Terms and

Conditions could include the purchase, construction or development of capital

needed to support program service delivery to keep children out of care and

with their families in their communities (e.g. Anishinaabe Child & Family

Services new building due to the community being displaced).

[221] At the October 23, 2018 CCCW meeting:

a. Canada advised that the threshold for capital projects under the Terms and

Conditions had been increased from $1.5 million to $2.5 million to account for

inflation, and that the Terms and Conditions had eliminated a reference to

major capital projects as opposed to minor capital projects.

b. The increase of the capital threshold from $1.5 million to $2.5 million would

be accompanied by a directive on capital, so that further changes to the

83

threshold would not require a Treasury Board process. The draft directive on

capital would be provided to the CCCW for review.

c. Chiefs of Ontario identified that the August 1, 2018 Discussion Paper

regarding capital options was only directed to FNCFS Agencies, which

excluded communities that wanted to deliver prevention services themselves,

as well as communities with band representative programs.

[222] On October 30, 2018, Ms. Wilkinson (ISC ADM of ESDPP) wrote to Dr. Blackstock

explaining the specific information that ISC requires in order to move forward on capital

requirements (Tab 3)

[223] At the November 19, 2018 CCCW Meeting:

a. ISC provided a cost estimate development for Jordan’s Principle Renewal

table that identified $38.4 million in funds allocated to infrastructure (Tab 4)

[224] At the December 11, 2018 CCCW Meeting:

a. Ms. Wilkinson advised that a communique to FNCFS Agencies regarding

the update to the Terms and Conditions on the matter of capital was under

development and that a draft would be circulated to the CCCW for comment.

[225] On December 15, 2018, IFSD provided its final report, which concluded that:

a. Nearly 60% of FNCFS Agencies indicated a need for capital repair and

investment;

b. FNCFS Agency Information Technology needs are funded on average at

1.6% of the FNCFS Agency’s budget, which is severely underfunded when

compared to the industry standard of approximately 5-6%;

c. There is a need for a one-time capital investment of $116 million to $175

million for FNCFS Agency headquarters facilities, with recommended further

budgeting of 2% annual recapitalization rate, for FNCFS Agency

headquarters facilities; and

d. Across the FNCFS Program, pursuant to industry standards, the annual

Information Technology expenditure should be $65 million to $78 million.

[226] On January 16, 2019, Ms. Wilkinson advised the parties that the FNCFS Program

Terms and Conditions would not contain a cap or limit on capital funding, and that the

forthcoming directive on capital would set a limit of $2.5 million for capital infrastructure

projects that are outside of the projects that can be claimed through the actuals process.

84

[227] On January 18, 2019, Ms. Wilkinson provided the parties with the FNCFS Program

Terms and Conditions that were approved in December 2018. The Terms and Conditions

list “Purchase or construction of capital assets (e.g. buildings) that support the delivery of

FNCFS services” as an “eligible expenditure” for FNCFS Agencies. On January 21, 2019,

an email was sent to all FNCFS agencies noting the updated First Nations Child and Family

Services Terms and Conditions, now in effect. A copy of the Terms and Conditions are

attached to Ms. Johanne Wilkinson’s affidavit as Exhibit 9. This information on Terms and

Conditions is also mentioned as part of Canada’s reply submissions dated May 30, 2019

and in Ms. Lorri Warner’s affidavit dated Marc 4, 2020 at exhibit 6 B.

[228] In her affidavit, dated April 16, 2019, Ms. Joanne Wilkinson at para. 10 (i), mentioned

the email exchanges and discussions at the CCCW:

Canada acknowledges the comprehensive survey work undertaken by IFSD

with First Nations Child and Family Services agencies across the country. The

report is a good starting point for providing valuable information on agencies'

needs and key gaps, and is a helpful piece of research to be considered in

moving towards a new funding methodology. However, it did not include a full

analysis of existing program funding as it only focuses on 2017-2018 financial

information of agencies. For example, Budget 2018 investments and actuals

are not included in the analysis nor are there any comparisons with other

systems/models. The report also did not propose options for a new funding

methodology or a funding approach. More work is needed to reflect the

impacts of Budget 2018 investments and the payment of actuals for First

Nation agencies, and to ensure a comprehensive approach to developing a

new funding methodology.

[229] Insofar as Canada relies on Ms. Wilkinson’s affidavit to support the need for more

work before a new funding methodology is developed, the Panel agrees. However, it does

not support refusing to fully fund ready to proceed purchase or building projects under the

FNCFS Program. The Panel agrees more work was needed and this informs the reason

why an IFSD phase 2 report was initiated. An email from Ms. Wilkinson to Andrea Auger

found at tab 9 of the Caring Society’s motion material support the idea that Canada relies

on the IFSD studies to develop a new funding methodology and update its funding.

Moreover, the purpose identified in the IFSD final report is to respond to the CHRT ruling to

define and cost need in First Nations Child and Families services.

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[230] Canada filed a letter with the Tribunal on October 11, 2018 indicating that on April 9,

2018, Canada outlined IFSD's research which would involve the following four

phases/timelines:

• Phase 1, Needs Assessments: analyze existing needs assessments by April

15, 2018 and develop an indicators table to inform needs analysis by July 31,

2018; ·

• Phase 2, Baseline Definition and Gap Analysis: develop a baseline of

agency resource inputs, define a detailed costing procedure, and identify

missing data by September 30, 2018;

• Phase 3, Cost Analysis: undertake a cost analysis for each type of agency

by November 2, 2018; and

• Phase 4, Final Reports: develop a final report and make recommendations

to support a new funding approach: November 15, 2018.

[231] As of September 2018, agency participation rate increased to 75%. This letter

attached Phase 1 and 2 of the IFSD report as Appendixes A and B.

[232] The IFSD report indicates that 3 FNCFS Agencies required a new building. The IFSD

report mentions the need for recognition of differences: Agencies come in different sizes,

with different mandates, capacities, and experiences. New funding architectures should

meet agencies where they are now and support them as they meet their future goals. There

is no single approach that can best support agencies (no cookie cutter approach). This is

consistent with the Tribunal’s previous reasons.

[233] On September 11, 2020 the AFN filed the final IFSD report.

[234] The Panel accepts further analysis is needed for long-term relief and for the

development of a new funding methodology. However, this analysis must be completed in

a timely manner and not take years. Canada’s actions must address the urgency of the

humanitarian crisis identified in 2018. For clarity, this does not mean that FNCFS Agencies

and communities that have completed all legal and non-discriminatory policy requirements

and are ready to proceed and indicate as much must wait for this phase 3 report.

[235] The Panel also understands the need for an open and transparent contracting

process, given the scale of funding and that this is an unanticipated new phase in the

research (Affidavit of Johanne Wilkinson dated April 15, 2019, at para. 10).

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[236] Canada is also moving forward on long-term reform initiatives such as the enacted

legislation, an Act respecting First Nations, Inuit and Métis children, youth and families, SC

2019, c 24, for enabling First Nations to exercise jurisdiction over child and family services.

Canada submits this is a critical element of the Government of Canada's six points of action

to address the overrepresentation of Indigenous children and youth in care in Canada,

(Affidavit of Johanne Wilkinson dated April 15, 2019, at para. 63).

[237] This ruling and orders are necessary given that the Act respecting First Nations, Inuit

and Métis children, youth and families only refers to funding in the Preamble and does not

guarantee adequate funding according to specific needs of Nations. While the legislation

refers to substantive equality, no link is made between funding according to need and

substantive equality in the obligations. The Panel will possibly revisit this with the parties’

assistance as part of the long-term phase and reform implementation. This being said, the

Panel believes that if sustainable and adequate funding is provided to First Nations who

decide to exercise jurisdiction over child and family services, it is the best possible outcome

for those children, families and Nations. This option is included in 2018 CHRT 4 orders.

[238] Six points of action are:

1. Continuing the work to fully implement all orders of the Canadian Human

Rights Tribunal, and reforming child and family services including moving to a

flexible funding model

2. Shifting the programming focus to prevention and early intervention

3. Supporting communities to exercise jurisdiction and explore the potential

for co-developed federal child and family services legislation

4. Accelerating the work of trilateral and technical tables that are in place

across the country

5. Supporting Inuit and Métis Nation leadership to advance culturally-

appropriate reform

6. Developing a data and reporting strategy with provinces, territories and

Indigenous partners.

[239] Progress on point of action 1 as described by Canada and retrieved in August 2021

and reviewed on October 6, 2021:

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Canada has begun implementing the orders of the Canadian Human Rights

Tribunal (CHRT) issued on February 1, 2018. Canada has:

 been funding First Nations Child and Family Services Agencies for

their actual costs in the areas ordered by the CHRT, as part of

Canada's ongoing efforts to provide agencies with the funding they

need to meet the best interests and needs of First Nations children and

families, retroactive to January 2016

 Worked with the Assembly of First Nations to contract the Institute for

Fiscal Studies and Democracy (IFSD) at the University of Ottawa to

analyze FNCFS agency needs to inform the development of an

alternative funding system

 been providing funding to stakeholders in Ontario for the

reimbursement of costs related to mental health services for First

Nations children and youth retroactive to January 2016

 been providing funding to bands and Ontario for the reimbursement of

costs related to the provision of Band Representative Services

retroactive to January 2016

Canada has formed a Consultation Committee on Child Welfare (CCCW)

Reform. This committee is co-chaired by the Assembly of First Nations and

the First Nations Child and Family Caring Society of Canada and is comprised

of senior assistants and assistant deputy ministers from Indigenous Services

Canada (ISC) and all parties of the tribunal. Early accomplishments of this

committee include the development of a protocol to govern consultations

between Canada and the CHRT complainants and interested parties with a

goal towards eliminating discrimination against First Nations children.

Canada is also working with the Ontario Technical Table on Child and Family

Well-Being on an Ontario special study, and with Nishnawbe Aski Nation to

develop a remoteness quotient for First Nations delegated agencies in

Northern Ontario.

Since 2016, the Government has made available $679.9 million to Jordan's

Principle to help with health, social and education services that are needed

right away. Examples of this include mental health supports, medical

equipment, speech therapy, educational supports and more.

As of June 19, 2018, the eligibility criteria for Jordan's Principle have been

expanded to include non-status Indigenous children ordinarily resident on-

reserve. This expansion is an important step towards improving the well-being

of Indigenous children, their families and communities.

In 2018, a 24/7 national call centre was established for Jordan's Principle

which provides another channel for First Nations children to access the

products, services and supports they need. As of November 26, 2018, a total

of 2,809 calls have been received, resulting in 849 requests for services.

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ISC supported the September 2018 Assembly of First Nations Jordan's

Principle Summit in Winnipeg, Manitoba. The summit provided First Nations

leadership, families and community members the opportunity to join together

with health practitioners and service providers, among others, to share

lessons learned and promising practices for the implementation of Jordan's

Principle to date, as well as to discuss shared priorities and their vision for the

future of Jordan's Principle.

In addition to progress made on Jordan's Principle and reforming First Nations

child and family services, on September 10, 2018, Inuit Tapiriit Kanatami and

ISC announced that the immediate health, social and education needs of Inuit

children would be responded to and addressed through an Inuit-specific Child

First Initiative. Meanwhile, the Government of Canada continues to work with

Inuit partners, provinces and territories to develop a long-term Inuit-specific

approach to better address the unique health, social and education needs of

Inuit children.

[240] Canada submits it would be inappropriate and unreasonable for the Tribunal to

intervene at this stage. Such an intervention would represent a departure from the Tribunal’s

statutory role as an adjudicator of a specific complaint. The Panel disagrees with this

argument given that capital infrastructure that supports the delivery of FNCFS services

including buildings has always formed part of the claim and the Tribunal’s findings.

Furthermore, at the hearing on the merits, the Panel heard specific evidence on some

agencies’ service delivery challenges and their desire to save their surpluses to have

enough funds to purchase a building that would be appropriate. Moreover, adequate funding

for purchase or construction of buildings that support the delivery of services was not

included in the FNCFS Program authorities.

[241] Moreover, the Panel ensures it does not infringe on any First Nations inherent rights

by requesting Canada to respect their wishes. In other words, the Tribunal does not impose

anything on a First Nation. Rather, it emphasizes that when a First Nation has voiced that

they need funding to purchase or build space (buildings) to offer services to children under

the FNCFS Program or Jordan’s Principle, Canada should honor this request and not

respond ‘we need to consult each and every First Nation before we grant funding for the

purchase or construction of capital assets that support the delivery of FNCFS services to a

specific First Nation and or agency working with the consent of a First Nation’.

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[242] Furthermore, at paragraphs 8 and 9 of Canada’s May 30, 2019 submissions confirm

the ad hoc nature of the status quo for requests for the purchase or construction of capital

assets that support the delivery of FNCFS services within the FNCFS Program. Where

capital requests are not tied to the Tribunal’s February 1, 2018 orders regarding funding at

actuals, capital requests may only be funded where FNCFS Agencies have surpluses,

sufficient remoteness/ramp-up funding from Budget 2018, or where a capital project is

approved through the Community Well-being and Jurisdiction Initiatives funding stream (see

cross-examination of Joanne Wilkinson, dated May 14, 2019 at pp 76-79).

[243] Paragraphs 10-12 and 16-17 of Canada’s May 30, 2019 submissions demonstrate

that Canada has no concrete plan to address FNCFS Agencies’ purchase or construction

needs in the near-term. The submission is similar regarding purchase or construction needs

in the near-term for Jordan’s Principle which will be discussed further below.

[244] The Panel agrees with the Caring Society’s following conclusions that Canada cites

the need for further “discussions” on long-term capital needs and for leveraging expertise

outside of the FNCFS Program (See Canada’s May 30, 2019 submission at paragraphs 6

and 10). This is the same vague response that has been given over and over again since

the Caring Society raised the matter of Major Capital at the June 22, 2018 CCCW meeting.

In fact, this approach is consistent with Canada’s overall approach to capital needs within

the FNCFS Program in the 19 years since the National Policy Review recommended action.

In 2000, the Joint National Policy Review (“NPR”), concluded as Recommendation #13 that:

DIAND and First Nations need to identify capital requirements for FNCFS

agencies with a goal to develop a creative approach to finance First Nation

child and family facilities that will enhance holistic service delivery at the

community level. (See Summary statement regarding major capital at para 3,

see Tab 9 of the Caring Society Motion Record dated February 4, 2019).

[245] Further, the Panel accepted the NPR’s report and findings in the Merit Decision.

[246] Yet, the First Nations parties to this proceeding have not been calling for more

“discussions” with Canada as a precursor to Canada funding the purchase or construction

of capital assets that support the delivery of FNCFS services. This is reflective of what has

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happened in this case and forms part of the discrimination identified in the Merit Decision

(see Merit Decision at para. 157).

[247] The Caring Society is concerned that, without specific orders, progress on meeting

FNCFS Agencies’ Major Capital needs (which have not been addressed within the FNCFS

Program since 1991 and which reflect an area for immediate relief) will continue to be mired

in “discussions” and “requests for information”. More importantly it imperils the effectiveness

of the Tribunal’s orders related to the provision of prevention services to communities as

absent suitable buildings to house prevention services, these services will be difficult if not

impossible to provide. The Panel finds this is precisely the heart of the issue here in need of

the Tribunal’s intervention to eliminate the discrimination identified in the Merit Decision and

subsequent rulings absent any consent order proposed by the parties on this point.

[248] The Caring Society submits that given Canada’s slow progress on implementing

immediate relief measures after the January 26, 2016 decision, progress on the purchase

or construction of capital assets that support the delivery of FNCFS services ought to be

made alongside progress on long-term reform, and not be required for long-term reform to

be fully implemented (see Tab 1 to the Summary statement regarding Major Capital, see

Tab 9 of the Caring Society Motion Record dated February 4, 2019).

[249] The Panel shares this concern. The orders proposed by the Caring Society are

broadly worded and could be clarified with the parties’ assistance. They speak to funding for

FNCFS Agencies for feasibility studies, for preparatory work for projects, and for the projects

themselves. They do not state who is to be consulted in conducting feasibility work, what

sources of funding are to be used to carry out projects, or how projects are to be

administered. As such, the Panel agrees that, contrary to Canada’s arguments at

paragraphs 5, 10-17, 19, 24 and 32 of its May 30, 2019 submissions, nothing in the orders

sought by the Caring Society requires existing programs or First Nations decision-making

to be bypassed.

[250] Further, when the Panel made general orders to cease the discrimination, leaving

some flexibility to Canada or allowed more time for discussions, the history in this case

shows that there was insufficient movement to eliminate the systemic discrimination. One

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example is the FNCFS Program capital assets not forming part of the orders in February

2018 and the need to address this now with orders specific to address this lack of movement.

[251] The Panel also agrees with the Caring Society that it is unclear why Canada’s

submissions assume that feasibility studies would not take First Nations community priorities

and needs into account, in fact that would be one of the main goals or why they allege that

the capital envelope requested by the Caring Society would operate outside of the

Community Infrastructure Branch. Moreover, the Tribunal does not intend to impose its own

estimation of community needs. On the contrary, the Panel has always requested needs-

based and community-informed data to inform reform. This allows for the realization of

tailored projects responsive to specific needs of children and families when the Nations are

ready instead of a one-size-fits-all top-down approach or a ‘wait till all Nations have been

considered’ approach causing unnecessary delays for those who are ready to move ahead

now.

[252] Since the motion on the purchase or construction of capital assets that support the

delivery of FNCFS services was brought before the Tribunal, Canada indicated that on

September 5, 2018, the CCCW determined a gap existed in the infrastructure authorities,

which could be addressed by amending the Terms and Conditions. Canada has since

amended the FNCFS Program’s Terms and Conditions to include the purchase or

construction of capital assets (e.g. buildings) that support the delivery of FNCFS for First

Nations children. Moreover, the purchase or construction of capital assets (e.g. buildings) is

now included as an eligible expenditure for FNCFS Agencies.

[253] In addition, the Terms and Conditions also include infrastructure purchase,

maintenance and renovations as eligible expenditures under the CommunityWell-Being and

Jurisdiction Initiative. Furthermore, Canada has also advised of the introduction of a new

funding stream within FNCFS for Community Well-being and Jurisdiction Initiatives, which

is designed to enable projects of up to five years in duration to expand the availability of

prevention and well-being initiatives that are responsive to community needs, and to support

First Nations in developing and implementing jurisdictional models.

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[254] This is a positive step, furthermore, the Panel has no issue with Canada’s argument

that it should be given time to follow the democratic structures in place to ensure the

accountability of public funds. However, time must be balanced with First Nations children’s

human rights and the obligation to eliminate systemic discrimination. Further, three and a

half years have now passed since the 2018 ruling and no concrete plan has been presented

to the parties on this issue. The parties did not agree on this issue and required adjudication

of the matter. The Panel agrees with Canada that not every disagreement is discrimination.

However, especially given the history in this case, there is a need to look at the root cause

of the disagreement itself and assess if it is a matter of difference of opinion or approach or

if it is linked to the discriminatory practices found in this case that are insufficiently remedied.

[255] The Caring Society, the AFN, the COO and the NAN recently confirmed the need for

further orders. Moreover, adverse impacts linked to this issue were identified in the 2016

Merit Decision and subsequent rulings. The Tribunal agrees with Canada that finality is

needed. However, the Panel reiterates that this is appropriate once long-term reform has

been settled or ruled upon, hopefully in the near future. The Panel’s statutory role is to

ensure the discrimination found is eliminated and does not reoccur. The Panel believes in

keeping with its approach in this case (see 2018 CHRT 4 at para. 303) that a further specific

order is required to ensure the systemic discrimination is eliminated in a timely fashion.

[256] While this motion’s proceedings were ongoing, the parties requested the Tribunal to

issue a consent order concerning communities that are not served by a FNCFS Agency and

instead receive child and family services through a provincial or territorial agency or service

provider. While the FNCFS Agencies are directly funded by ISC for the services they deliver,

the provincial or territorial agencies and service providers receive their funding from the

provincial government, who in turn seeks reimbursement from the federal government. The

Caring Society requested an order that children and families served by these provincial and

territorial agencies, rather than a FNCFS agency, were within the scope of the Tribunal’s

remedial orders. Accordingly, the Panel released the 2021 CHRT 12 consent order on the

Caring Society’s motion. The orders in this ruling take these communities into consideration.

Additionally, unlike other regions, the First Nations communities in Ontario have requested

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to receive funding for the support and delivery of FNCFS directly. Canada has agreed with

this approach. This also was considered in the crafting of the orders.

[257] Since the Panel released its letter-decision, the Tribunal has received new

information concerning the implementation of the plan referred to in the 2021 CHRT 12

consent order. While this was not before the Panel to inform its ruling in August 2021, this

information indicates that capital infrastructure funds are included in the funding plan for

communities who do not have FNCFS Agencies. As the Panel is providing reasons for its

previous decision, it did not request additional submissions from the parties on this issue.

Therefore, it does not make a finding as part of this ruling. This being said, the Panel notes

that this new implementation plan may be responsive to the Panel’s orders in 2021 CHRT

12 and this ruling.

[258] Overall, Canada submits it is in substantial compliance with all existing orders. A

substantive amount of work has been completed to achieve compliance and significant

resources have been devoted to satisfying the orders now, retroactively, and moving forward

(Affidavit of Johanne Wilkinson dated April 15, 2019, at para. 62).

[259] Canada also adds that the Tribunal's adjudication of this matter has had a

transformative impact on the lives of Indigenous children in Canada (Affidavit of Johanne

Wilkinson dated April 15, 2019, at para. 65). The Panel appreciates this acknowledgment.

While much has been done, more work remains to be done for Canada to be sufficiently

responsive in eliminating the systemic discrimination found. In 2018, the Panel considered

its ruling closed the immediate relief phase unless its orders are not implemented or more

adjustments need to be made to its orders as the quality of information increases. The Panel

stated it can now move on to the issue of compensation and long-term relief (see 2018

CHRT 4 at para. 385).

[260] Therefore, the Panel finds that a further clarification order is necessary to ensure the

purchase and construction of capital assets that support the delivery of FNCFS on-reserve

including prevention services are appropriately funded. Furthermore, feasibility studies and

needs assessments may assist as a first step in that regard.

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Orders for purchase and/or construction of capital assets that support

the delivery of FNCFS on-reserve including prevention services.

Order

Pursuant to section 53(2) of the CHRA the Tribunal orders Canada to:

Fund all FNCFS Agencies including small agencies and/or First

Nations at actual costs for the purchase of capital assets that

support the delivery of FNCFS to children on-reserve including

in Ontario and in the Yukon and advise the FNCFS Agencies

and First Nations in writing within 30 days of this order advising

them on how to access this Capital asset funding. Canada will

post this information on the ISC website.

For the construction of capital assets, the Tribunal orders

Canada to fund the actual costs of projects that support the

delivery of FNCFS to children on-reserve including in Ontario

and in the Yukon that are ready to proceed advising them in

writing on how to access the capital assets funding within 30

days of this order. Canada shall post this information on the ISC

website.

The Tribunal orders Canada in consultation with the CCCW, to

provide funding for FNCFS Agencies and First Nations to

conduct capital needs and feasibility studies regarding the

purchase and/or construction of capital assets that support the

delivery of FNCFS services on-reserve. This also includes

studies for First Nations that also operate under the Federal

FNCFS Program off-reserve such as Ontario.

*The above orders recognize First Nations inherent rights to

self-government and that this Tribunal cannot force First

Nations that are not a party to these proceedings to do anything.

The above orders recognize that complex processes must be

followed in order to be ready to proceed to build on reserve and

that this cannot be done unilaterally by FNCFS Agencies,

Canada or by order of this Tribunal. Consequently, the

purchase and construction orders above only include projects

that are ready to proceed.

C.

Capital to Support the Implementation of Jordan’s Principle Analysis

[261] The Tribunal set out its initial reasoning in the letter-decision, which is reproduced as

follows:

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Funding for Capital assets for the Purchase and/or construction of capital

assets that support the delivery of Jordan’s Principle services

Jurisdiction to issue orders for purchase and/or construction of capital

assets that support the delivery of Jordan’s Principle services

Jordan’s Principle services are part of this claim and have been the subject of

numerous orders by the Tribunal in these proceedings. Divorcing the services

from provincial requirements for safe, confidential spaces to offer the services

would amount to discrimination. It would also perpetuate gaps, denials and

delays in hindering the delivery many services that can only be offered

indoors. In other words, denying funding for safe, confidential and culturally

appropriate spaces respecting provincial requirements would be the

equivalent of refusing services otherwise allowed under Jordan’s Principle.

[262] As promised, the Tribunal is now providing more detailed reasons.

[89] Jordan’s Principle is a human rights principle grounded in substantive

equality. The criterion included in the Tribunal’s definition in 2017 CHRT 14 of

providing services “above normative standard” furthers substantive equality

for First Nations children in focusing on their specific needs which includes

accounting for intergenerational trauma and other important considerations

resulting from the discrimination found in the Merit Decision and other

disadvantages such as historical disadvantage they may face. The definition

and orders account for First Nations’ specific needs and unique

circumstances. Jordan’s Principle is meant to meet Canada’s positive

domestic and international obligations towards First Nations children under

the CHRA, the Charter, the Convention on the Rights of the Child and the

UNDRIP to name a few. Moreover, the Panel relying on the evidentiary record

found that it is the most expeditious mechanism currently in place to start

eliminating discrimination found in this case and experienced by First Nations

children while the National Program is being reformed. Moreover, this

especially given its substantive equality objective which also accounts for

intersectionality aspects of the discrimination in all government services

affecting First Nations children and families. Substantive equality is both a

right and a remedy in this case: a right that is owed to First Nations children

as a constant and a sustainable remedy to address the discrimination and

prevent its reoccurrence. This falls well within the scope of this claim.

[90] The Panel’s rulings referred to government services affecting First

Nations children including: Federal-Provincial; Federal-Federal; and Federal-

Territorial. While the Panel has no jurisdiction over Provinces and Territories,

it does have jurisdiction over Canada’s Jordan’s Principle involvement in all

Federal services offered to First Nations children.

[91] Additionally, Jordan’s Principle is a broader aspect of the complaint in

front of the Tribunal where the Panel found, in the Merit Decision, that while

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Jordan’s Principle is not a strict child welfare concept, it is intertwined with

child welfare (see Merit Decision at para. 362). Therefore, the Panel’s general

reasoning on child welfare is also relevant to Jordan’s Principle cases.

However, it does not provide the full answer. For Jordan’s Principle, the Panel

issued additional rulings and orders that form part of the analysis.

[92] Furthermore, as already found by this Panel, Jordan’s Principle is a

separate issue in this claim. It is not limited to the child welfare program; it is

meant to address all inequalities and gaps in the federal programs destined

to First Nations children and families and to provide navigation to access

these services, which were found in previous decisions to be uncoordinated

and to cause adverse impacts on First Nations children and families (see 2016

CHRT 2, 2017 CHRT 14 and 2018 CHRT 4).

[93] Moreover,

[t]he discrimination found in the [Merit] Decision is in part

caused by the way in which health and social programs, policies

and funding formulas are designed and operate, and the lack of

coordination amongst them. The aim of these programs,

policies and funding should be to address the needs for First

Nations children and families,

(2017 CHRT 14 at para. 73).

(2020 CHRT 20 at paras. 89-93)

[263] The Commission summarizes the current state of funding for the purchase or

construction of capital assets. It notes that the Terms and Conditions of the FNCFS Program

identify that eligible expenses include the purchase or construction of capital assets that

support the delivery of FNCFS services whether provided by FNCFS Agencies or others

such as First Nations delivering programs. The IFSD report includes an assessment and

quantification of capital needs for FNCFS Agencies. Canada has not conducted a specific

survey or assessment on the capital needs of First Nations in Ontario with respect to

prevention or Band Representative Services. Jordan’s Principle funding has not contained

authorizations for capital spending to provide space to deliver the funded services.

[264] The Commission submits that the Tribunal’s previous decisions have already

identified the need for capital funding to ensure the delivery of appropriate services. The

Panel agrees with the Commission’s characterization of the Tribunal’s previous decisions

referred to above.

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[265] Furthermore, the Commission indicates that Canada has taken steps with the IFSD

needs assessment, amending the Terms and Conditions of the FNCFS Program and

discussing capital spending with the parties while paying the actual costs of required repairs

on an interim basis. Nonetheless, considerable time has passed since the Tribunal first

identified this issue.

[266] The Caring Society submits in its 2019 submissions that, as outlined in the statement

regarding capital dated January 21, 2019 and attached to this submission in Appendix A,

the parties have been discussing the matter of the purchase or construction of capital assets

that support the delivery of FNCFS services for many months. In addition to the deficiencies

noted in the Tribunal’s Merit Decision, major capital pressures go hand-in-hand with the

necessary expansion of services available pursuant to Jordan’s Principle (particularly

through group requests), and increased intake, assessment and prevention services, Band

Representative services, etc. Indeed, increased funding for new staff and new programs

cannot be effective if there is not adequate space to house programs and staff in ways that

facilitate effective culturally-sensitive service delivery. Ms. Isaak, Canada’s affiant agreed

there was a possibility that some prevention services could not be rendered if there were a

shortage of adequate buildings (see Cross-examination of Ms. Paula Isaak, October 30,

2018 at p. 86, lines 5-10, Tab 41 of the Record of documents).

[267] Moreover, the Caring Society submits that contrary to Canada’s argument at

paragraph 7 of its submission, the Caring Society is not seeking an order directing the

allocation of funds for capital expenditures outside the FNCFS Program and Jordan’s

Principle. Rather, the Caring Society is seeking an order providing for funding the ancillary

costs of the purchase or construction of capital assets of increased programming that

accompanies the Tribunal’s existing orders.

[268] Moreover, the Caring Society submits that following discussions at the CCCW, the

purchase or construction of capital assets has been added as an eligible expenditure

pursuant to the FNCFS Program Terms and Conditions. Canada has recognized

infrastructure as part of its costing exercise for Jordan’s Principle. See Caring Society’s

Summary statement regarding capital at Tab 4 “ISC Jordan’s Principle Cost Estimate

Development”. This document is undated and the author is unknown but it appears to be

98

Canada’s document. It was filed in 2019 as part of the Caring Society’s motion record. While

this document has little probative value given the lack of context and detail surrounding the

term infrastructure, the Panel finds it does support that Canada is turning its mind to the

issue. The cost estimate indicates $38.4 million for infrastructure. Given that Jordan’s

Principle applies nationally, this cost estimate may very well be insufficient. Real needs must

inform the funding and not the other way around. Shift is needed.

[269] However, the Panel believes at this time, it is necessary to act to ensure that needed

services to First Nations children and families are met. At the time of this ruling, according

to Canada’s ISC website, over 1.15 million services have been approved under Jordan’s

Principle since the Tribunal’s 2016 rulings. Dr. Gideon testified on May 7, 2019 that the large

increase in Jordan’s Principle approved cases for broader services than just child and family

services significantly impacted their team in different areas. The Panel appreciates this and

believes that an adjustment period was entirely reasonable.

[270] On this point, the Panel emphasizes the findings of the Tribunal on Jordan’s Principle,

reproduced above, and reiterates that Jordan’s Principle is not a strict child and family

services mechanism. It is much broader, covering all services to First Nations children to

respond to substantive equality. This is exemplified by the approved cases that are not just

child and family services. The Panel is less concerned with the specific amount of funding

or on the choice of policy that Canada is choosing. The Panel is focused on ensuring that

the approved services are not delayed or denied for lack of adequate buildings to offer those

services. Again, this cannot be approached in a piecemeal fashion separating services from

environments in which to offer those services. For clarity, the Panel is not referring to the

construction of large infrastructure such as hospitals or roads on reserve.

[271] However, despite two and a half years having passed since Dr. Gideon’s testimony,

Canada has not provided a concrete commitment to meet these building needs or a plan to

accomplish it.

[272] The Caring Society is concerned that, without specific orders, progress on meeting

FNCFS Agencies’ needs for the purchase or construction of capital assets that support the

delivery of FNCFS services (which have not been addressed within the FNCFS Program

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since 1991 and which reflect an area for immediate relief) will continue to be mired in

“discussions” and “requests for information”. More importantly it imperils the effectiveness

of the Tribunal’s orders related to the provision of prevention services to communities as

absent suitable buildings to house prevention services, these services will be difficult if not

impossible to provide. Given Canada’s slow progress on implementing immediate relief

measures after the January 26, 2016 decision, progress on the purchase or construction of

capital assets ought to be made alongside progress on long-term reform, and not be

required for long-term reform to be fully implemented.

[273] The Panel believes that an order including a requirement for adequate buildings for

Jordan’s Principle may bring clarity and assist ISC in that regard. There is also a necessity

for Canada to adequately consult the parties and First Nations and prepare a plan in a

reasonable timeframe with specific targets and deadlines to secure adequate

implementation of Jordan’s Principle orders and services.

[274] The majority of Canada’s general arguments on the purchase or construction of

capital assets focused on the FNCFS Program without separately addressing Jordan’s

Principle. However, it is clear from the Caring Society’s and the AFN’s submissions that the

issue of the purchase or construction of capital assets to offer Jordan’s Principle services is

part of this motion. The Commission understood this as well and provided submissions to

that effect. The Commission submits that Jordan’s Principle funding has not contained

authorizations for capital spending to provide space to deliver the funded services.

[275] Most of Canada’s arguments have been addressed in our reasons above, which

apply equally here. Some of the Panel’s reasons discussing the evidence in this section are

specific to Jordan’s Principle.

[276] Jordan’s Principle services are part of this claim and have been the subject of

numerous orders by the Tribunal in these proceedings. Divorcing the services from

provincial requirements for safe, confidential spaces to offer the services would not remedy

the systemic discrimination found, it would perpetuate it. It would also perpetuate gaps,

denials and delays that hinder the delivery of many services that can only be offered indoors.

In other words, denying funding for safe, confidential and culturally appropriate spaces

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respecting provincial requirements would be the equivalent of refusing services otherwise

allowed under Jordan’s Principle.

[277] As early as 2016, in the Merit Decision, the Tribunal found that interdepartmental

disputes existed between the federal departments offering programs to First Nations

children and families. Those disputes are one of the best examples of the lack of

coordination that was found between federal programs and a focus on financial

considerations rather than on substantive equality considering the real needs of the children

and families it served.

[278] Moreover, the Tribunal previously found that reallocating from housing to fund the

FNCFS Program had a negative impact for First Nations children and families. Again, this is

illustrative of the disconnect occurring when Canada chooses to spread its programs into

departments without having the full picture of the real needs of the communities they serve.

The Tribunal found that this way of functioning created gaps, delays and denials for First

Nations children and families amounting to systemic discrimination causing harms and

adverse impacts. Jordan’s Principle is not a program. Jordan’s Principle is not confined to

the FNCFS Program. It permeates other federal programs and provincial and territorial

programs as well. It also ensures First Nations children’s unique constitutional position and

unique history is taken into account in all services concerning them. No other children in

Canada face this jurisdictional ordeal. Only First Nations, Inuit and Métis children experience

this because of their race or national origin. In this case we are focusing on First Nations

children.

[279] The argument of looking into other programs to delay or deny funding for building

purchase or construction does not stand here. Canada ought to look at Nation specific

building needs and requests at the time they are made not the time all First Nations have

been consulted and have provided their views as this is unfair to First Nations that have

pressing needs and are ready to proceed.

[280] For Jordan’s Principle, Canada ought to provide a holistic view as to how it will

respond to those needs and eliminate barriers, especially if those barriers arise from the

administrative divide of federal programs. If building purchase or construction can

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accommodate social services under the FNCFS Program, Jordan’s Principle services and

early childhood intervention and others, this is ideal. This should only be done when it is

possible. In the end, the FNCFS Agencies and First Nations communities decide on their

plan.

[281] Canada was ordered to cease and desist its discriminatory practices including this

one. Multiple arguments pointing to other federal programs that are specialized in

community infrastructure or ongoing discussions does not convince the Tribunal that real

needs of First Nations children and families are met.

[282] The Tribunal is less concerned on how Canada organizes itself or its departments,

the policies or amount of funding it chooses. The Tribunal agrees with Canada’s

submissions that it has to provide flexibility in Canada’s choices. However, when the

Tribunal finds the effect of those choices is systemic discrimination the Tribunal is mandated

by parliament to not only identify it but to also eliminate it and prevent it from reoccurring.

[283] The Panel agrees with Canada that some disagreement between parties does not

make Canada non-compliant with the Tribunal’s orders. However, some disagreements that

occur as a result of Canada’s narrow interpretation of the Tribunal’s orders perpetuate

systemic discrimination.

[284] The evidence and other information establish that Canada’s current approach has

not remedied the discrimination found and is not sufficiently responsive to the Tribunal’s

orders to fix that discrimination, especially: cease and desist, immediate relief, substantive

equality and Jordan’s Principle orders.

[285] The evidence establishes on a balance of probabilities that ISC is focused on

discussions with no specific deadline in order to make a case for Canada to approve funding

in terms of real building needs for the FNCFS Program, prevention services and Jordan’s

Principle. Canada’s affiants and arguments support this finding:

So, understanding the full landscape of the capital needs was something that

I had indicated would be important for the department to be able to make a

submission around capital needs.

(October 30, 2018, Cross-examinations of Ms. Isaak at p. 57 line 5- 8.)

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Ms. Clarke for the Caring Society:

Has there been efforts on the part of the department to seek out those

communities who are in desperate need of buildings to see whether or not

those buildings are required in order to deliver prevention services?

Ms. Isaak for Canada:

So, I think just referring back to my comments before, understanding this issue

was raised at the CCCW and we needed to do so more work on that, work

did start a survey. I don’t mean formally survey, but survey regions to find out

what the state of paly was in the agencies in the various regions, and I believe

the department was in the process of mapping out what that was. I think any

information around that I believed would be helpful to understand and build

case for any capital needs.

We also understand, at least from the preliminary information, and I think

there’s been more from IFSD, that they have done some of that actual survey

and bringing some of those facts to the ---and will bring those facts to the

parties very soon, I think. So, I think the department is anxious to understand

what that picture looks like in order to determine what the next steps are.

Ms. Clarke: And who de we need to build that case to?

Ms. Isaak:

The case ---would be likely it would be likely require a funding submission of

some kind. A Minister would likely require---be required to take a case forward

to her Cabinet colleagues. There may be other ways. I---all of those options I

am ---I there are a variety of options of ways to do it, and I don’t know the

extent to which all options have been pursued, but that is a typical that would

likely need to be taken.

(p. 87 | lines 3-24 and p. 88 | lines 1-9, at Tab 41 of the Record of Documents)

[286] Dr. Gideon, Senior Assistant Deputy Minister of the First Nations and Inuit Health

Branch at ISC, was cross-examined on her affidavit and testified that she was speaking for

herself. She identified that infrastructure can be a barrier to the delivery of services under

Jordan’s Principle in a community and that they had committed about $107 million to mental

health resources.

[287] Dr. Gideon later confirmed using the term “we” that under Jordan’s Principle, there

continues to be no funding for requests for the purchase or construction of capital assets for

Jordan’s Principle.

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Ms. Clarke for the Caring Society: (…) And I guess I should ask that the

reason you can’t approve either a room expansion, or minor capital to change

space around, or leasing to fund space is because you don’t have the

authorities in the approval given in July 2016?

Dr. Gideon: That’s correct. Now, where we are building new facilities in

communities, we are thinking of excuse me where we have that opportunity

now, we are looking at Jordan’s Principle in terms of their business planning,

or needs assessment. We would encourage them to do that, because it

becomes part of the services that they are delivering.

(see May 7, 2019 cross-examination of Valerie Gideon at pp 66-71).

[288] While this is a positive step, more steps are required to eliminate the systemic

discrimination and ensure that approved services are also delivered in adequate spaces.

Given program authorities’ central role in federal programs, the Panel finds the lack of

authorities for purchase or construction of capital assets to support the delivery of services

under Jordan’s Principle to be problematic.

[289] For example, despite ongoing efforts, Dr. Gideon was unsuccessful in obtaining

approval from the Privy Council Office to share the decision made by the Prime Minister and

indicated that efforts will persist to ensure Jordan's Principle authorities are truly reflective

of the orders, (see Affidavit of Lorri Warner dated March 4, 2020, Consultation Committee

on Child Welfare Meeting- Draft Record of decisions April 2, 2019 p. 7 of 9 found at

exhibit 8).

[290] Of note, Ms. Isaak, Canada’s witness acknowledged that for the purchase or

construction of capital assets funding is of particular concern to the parties and required

attention.

[291] According to Ms. Isaak, Canada’s failure to move on this issue was a result of a lack

of information regarding FNCFS Agency requirements for the purchase or construction of

capital assets rather than an attempt by Canada to thwart the needs of agencies:

[…] So, I don’t think the conversation’s over on capital. So, I think there is

more conversation about exactly those questions that may be undertaken.

My comments at the Consultation Committee were around understanding –

we needed to get a full understanding of what the needs were for major

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capital. Across the country we were mapping – starting the process to map

what the actual situation was [for] the agencies. So, whether they were owned

or leased or rented. Across the country it varies.

I believe I’d also mentioned there are community capital plans that would

come into the equation around building of buildings in communities. So, there

would need to be some understanding of that vis-à-vis the agencies. IFSD

was also doing work around needs, including capital needs. So, some

preliminary information had been made available by them, as we were

awaiting – and I believe that’s coming up soon – a report from IFSD, which

would hopefully provide some helpful information

(see October 30, 2018 cross-examination of Paula Isaak at p. 56 line 13 to

p.57 line 4).

[292] The Panel believes the exercise above has commenced and ought to be done in a

timely manner. This being said, the Panel understands that some FNCFS Agencies and

First Nations were not ready and may need more time. The focus should not be on those

needing more time but rather on those who have responded and are ready to proceed.

Further, being informed that funding for the purchase and/or construction of capital assets

that support the delivery of services including Jordan’s Principle is available may incentivize

them to signal their needs in that regard.

[293] With respect to Jordan’s Principle, Canada has not provided sufficient evidence to

convince the Tribunal that there is a comprehensive plan in place to adequately address the

adverse discriminatory impacts identified by the Tribunal in the near future. As such, further

orders are required in order to ensure that a lack of authority to address building purchase

and/or construction to offer Jordan’s Principle services, particularly in relation to group

requests, does not result in the persistence of service gaps for First Nations children.

Moreover, the lack of adequate space in which to offer services constitutes a de facto denial

of those Jordan’s Principle services.

[294] The Panel understands the benefit of combining space on reserve to offer different

services to First Nations children and families under different programs and Jordan’s

Principle and the need to follow appropriate legal processes prior to purchase and

construction. The Panel also accepts that other departments have expertise to assist in that

regard and that no purchase and construction can be done without the First Nations’

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agreement. The Panel also does not take issue with the legal process that ISC is using to

obtain new authorities and legal requirements as long as it does not create delays, gaps or

denials that perpetuate the discrimination Canada was ordered to stop.

[295] None of those considerations prevent Canada from funding the purchase or

construction of capital assets for those FNCFS Agencies and First Nations communities that

are ready to proceed. Canada has a legal obligation to cease the systemic discrimination

and to offer sufficient and sustainable funding for Jordan’s Principle services including

adequate space to offer those services on reserve.

[296] The issue arises when Canada is not sufficiently responsive to the systemic

discrimination identified and unilaterally imposes a delay for those First Nations agencies

and communities who are ready to proceed with a feasibility study or the purchase or

construction of buildings to offer services to children and families under the FNCFS Program

and Jordan’s Principle because ISC is building a case to obtain funding and authorities.

[297] In 2016, Canada was found liable for the systemic discrimination and ordered to

cease it. Numerous Jordan’s Principle orders were made that led First Nations children to

obtain eligibility for extensive access to services. The broader definition included in the

Tribunal’s orders creates an expansion of services requiring adequate space to support their

delivery. This is ineffective if there is a lack of sufficient funding for space to offer those

services on reserve. The Panel recognizes that Canada is approving hundreds of thousands

of cases and is pleased with those results. However, approvals are meaningless if the

services cannot be delivered. The Panel does not believe that in the majority of cases

service requests are only approved and not provided. However, when there is a lack of

funding for adequate space to offer those services, the services cannot be provided and this

results in delays and denials, which are precisely what the Tribunal’s orders aim to prevent

and rectify.

[298] With respect, the need for sufficient office space to offer services is so intertwined

with the actual provision of services and so self explanatory, the Panel did not envision the

need for orders in that regard at the time. While there clearly was a timeframe to adapt to a

large influx of new cases following the 2017 orders, we are now in the latter part of 2021.

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Canada continuously submits it should be given latitude to comply to remedy the systemic

discrimination. This is a clear example where too much latitude risks perpetuating the

unnecessary delays resulting in systemic discrimination. Moreover, the lack of sufficient

funding for buildings to offer services on-reserve constitutes denials contravening the

Tribunal’s orders under Jordan’s Principle.

[299] Given that Jordan’s Principle applies on and off reserve there is a need to understand

provincial, territorial and federal building space available to offer those services to First

Nations children off-reserve. Those studies could allow the identification of building space

or the lack thereof that is the responsibility of the federal government and the responsibility

of the province or territory or a shared responsibility. In other words, while jurisdictional

disputes cannot delay services to children and therefore the dispute is to be settled

afterwards, the purchase or construction of buildings is an exception. Furthermore, other

legal requirements apply for purchase and construction off-reserve.

[300] This is also responsive to Canada’s argument that FNCFS Program Terms and

Conditions do not currently allow it to fund infrastructure off-reserve. The Community

Infrastructure Branch would be better positioned to provide such services. Regardless of

which program funds what, especially given the very nature of Jordan’s Principle, this

argument is unconvincing.

[301] However, the Panel does not intend for Canada to fund buildings that are not

Canada’s responsibility. Timely studies or assessments could potentially assist in that

regard.

[302] While the Panel accepts that Canada has to discuss with First Nations communities

on their community plans and priorities and that this process is ongoing, immediate steps

can be taken now over 5 years after the Merit Decision and 4 years after the huge influx in

Jordan’s Principle approved cases following the 2017 rulings.

[303] As the Panel held at paragraph 303 of its 2018 CHRT 4 ruling regarding immediate

relief:

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The Panel wants to make it clear that discussions with no comprehensive plan

or specific deadlines attached to it can go on for a very long time and seeing

these types of arguments is a source of concern. Also, as already discussed

in the [Merit] Decision, a piecemeal approach is to be discouraged.

(see 2018 CHRT 4 at para. 303).

[304] Given this concern, the Panel considers that one way that Canada can demonstrate

that it is on track to comply with the Tribunal’s orders would be for it to expeditiously engage

in adequate consultations in regards to building needs for FNCFS Agencies and First Nation

communities including with the parties in this case and prepare a plan with specific targets

and deadlines to complete those consultations. In the Panel’s view, Canada should be in a

position to share this plan within three months of today’s date or as otherwise agreed by the

parties. An appropriate plan would be highly detailed with clear steps and goals. Through

these details, the plan would demonstrate how Canada is being responsive to the Tribunal’s

orders including addressing the lack of coordination between federal programs affecting

First Nations children, substantive equality, the challenges faced and solutions envisioned.

[305] The Panel concludes, based on these reasons, that Canada is not implementing an

approach to funding the purchase or construction of capital assets for Jordan’s Principle that

fully addresses the discrimination identified by the Tribunal. Accordingly, the Panel issues

the following orders:

Order

Pursuant to section 53 (2) of the CHRA the Tribunal orders Canada to:

Fund all FNCFS Agencies including small agencies and/or First

Nations at actual costs for the purchase of capital assets that

support the delivery of Jordan’s Principle services to children

on-reserve including in Ontario and in the Yukon and advise the

FNCFS Agencies and First Nations in writing within 30 days of

this order advising them on how to access this Capital asset

funding. Canada shall post this information on the ISC website.

For the construction of capital assets, the Tribunal orders

Canada to fund the actual costs of projects that support the

delivery of Jordan’s Principle services to children on-reserve

including in Ontario and in the Yukon for First Nations and

FNCFS Agencies that are ready to proceed advising them in

writing on how to access the capital assets funding within 30

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days of this order. Canada shall post this information on the ISC

website.

The Tribunal orders Canada in consultation with the CCCW, to

provide funding for FNCFS Agencies and First Nations to

conduct capital needs and feasibility studies regarding the

purchase and/or construction of capital assets that support the

delivery of Jordan’s Principle on-reserve and in the Yukon and

off-reserve where applicable under Jordan’s Principle.

The Tribunal orders Canada in consultation with the COO and

the NAN, to provide funding for First Nations and FNCFS

Agencies to conduct capital needs and feasibility studies

regarding the purchase and/or construction of capital assets

that support the delivery of Jordan’s Principle on-reserve and

off-reserve, where applicable under Jordan’s Principle in

Ontario.

*The above orders recognize First Nations inherent rights to

self-government and that this Tribunal cannot force First

Nations that are not a party to these proceedings to do anything.

The above orders recognize that complex processes must be

followed in order to be ready to proceed to build on reserve and

that this cannot be done unilaterally by FNCFS Agencies,

Canada or by order of this Tribunal. Consequently, the

purchase and construction orders above only include projects

that are ready to proceed.

V.

Supplementary Financial Administration Act Party Submissions

[306] As noted, the Panel requested supplementary submissions on the Financial

Administration Act in light of the brief references the parties made in their submissions in

relation to Major Capital. In particular, the Panel requested the parties to identify whether

the Financial Administration Act or related policies created a limitation that prevented the

effective implementation of the Tribunal’s orders. While this issue arose from the Major

Capital submissions, the parties’ subsequent submissions were not limited to that context.

A.

The Caring Society

[307] The Caring Society submits that the role of the Financial Administration Act has been

addressed in 2018 CHRT 4. In particular, the Tribunal stated that while it will not draft

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policies, choose between policies, or unnecessarily embark on specific reform, it will

intervene when Canada’s policy choices result in discrimination in the same manner

identified in the Merit Decision (2018 CHRT 4 at paras. 48 and 54).

[308] The Caring Society identifies that Canada has raised the role of the Financial

Administration Act a number of times subsequent to the Merit Decision. The Caring Society

contends that the issue has been addressed in 2018 CHRT 4 and 2020 CHRT 24. The

Caring Society suggests that Canada’s position that Tribunal orders that specifically address

the content of policy intrude on the role of the legislation branch is an attempt to re-litigate

issues that have already been decided.

[309] The Caring Society argues that the Financial Administration Act and associated

policies do not hinder the implementation of remedies. Rather, it is the mindset of individuals

implementing such policies that hinders the ability to implement reform to remedy the

discriminatory practices. This will require a plan for long-term independent and effective

accountability measures to prevent a recurrence of discrimination.

[310] The Caring Society identifies that Canada’s processes for implementing the

Tribunal’s orders require political will. In particular, public servants at both ISC and in central

agencies must support the funding allocation for the program. Further, the proposal must be

supported by the Minister of Indigenous Services Canada, the Minister of Finance, Treasury

Board, and the Prime Minister. The Caring Society contends that civil servants have not

always put forward appropriate policy reforms such as ISC not proposing modifications to

the definition of Jordan’s Principle during the hearing on the merits. Similarly, in terms of

immediate relief, civil servants put forward funding proposals for the 2016 Budget but not for

longer term. To be effective, the Tribunal must ensure that individuals beyond ISC civil

servants are held accountable for implementing the Tribunal’s orders.

[311] The Caring Society contends that the funding process under the Financial

Administration Act support the “old mindset” that favours process over substance. This

mindset, for example, gives greater emphasis to the FNCFS Program’s Terms and

Conditions than the Tribunal’s orders. Similarly, Canada often differs issues rather than

resolve them. There is no proposed mechanism to resolve future disputes about the

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implementation of the Tribunal’s orders other than returning to the Tribunal. The Caring

Society maintains that ongoing supervision of the Tribunal orders is required.

B.

The Chiefs of Ontario

[312] The COO adopts the submissions of the Caring Society that the Financial

Administration Act and related policies are not themselves a barrier to implementing the

Tribunal’s orders and raises a few additional points.

[313] The COO agrees with Canada’s submissions on the relationship between the

Financial Administration Act and the CHRA including the primacy of the CHRA and the

process for the expenditure of public funds.

[314] The COO relies on evidence that it may be necessary to seek new spending

authorities if the Tribunal’s orders cannot be satisfied within the existing authorities. The

COO also notes that the parties sometime disagree with Canada on whether it complies

with the Tribunal’s orders. The COO indicates that the Panel’s assistance in resolving these

disputes is effective. Ultimately, the Tribunal’s orders will be best implemented by long-term

reform that occurs as soon as possible through good faith negotiations.

C.

Assembly of First Nations

[315] The AFN indicates that nothing in the Financial Administration Act or related policies

hinder the implementation of the Tribunal’s orders. Any barriers are a result of a lack of

bureaucratic or political will. Canada is required to implement the orders and cannot attempt

to relitigate them by suggesting that implementing program reform falls to legislative and

executive branches of government.

[316] The AFN reviews the process for securing funding for ISC and the programs at issue

in the case. The AFN recognizes Canada’s position that the Tribunal’s orders are compatible

with the Financial Administration Act but disagrees with Canada’s suggestion that the

Financial Administration Act limits the Tribunal’s ability to direct program reform. The AFN

asserts that the Tribunal has previously addressed this issue in 2018 CHRT 4 at paras. 32-

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33 and 2020 CHRT 24 at paras. 37-38. The AFN further submits that s. 53(2)(a) and (b)

provides broad remedial authority to the Tribunal. This is quasi-constitutional legislation that,

in the event of a conflict with other legislation or policies, the CHRA remedy prevails.

D.

Nishnawbe Aski Nation

[317] NAN submits that Canada has allowed the Financial Administration Act and related

policies to act as a roadblock to program reform.

[318] NAN reviews the Tribunal’s prior findings on the quasi-constitutional nature of the

CHRA (e.g. Merit Decision at para. 43 and 2018 CHRT 4 at para. 28) and that Canada must

allocate resources in a manner that complies with the CHRA (Merit Decision at paras. 42

and 44). Further, Canada must implement the Financial Administration Act in a manner

consistent with the CHRA.

[319] NAN argues the issue is not simply whether the Financial Administration Act and

related policies are discriminatory but whether Canada is implementing them in a non-

discriminatory manner. NAN submits that Canada is interpreting policies in a discriminatory

manner. For example, Canada did not see the Terms and Conditions as an implementation

to paying capital expenses for Band Representative services but subsequently changed its

position. What Canada ought to have done on coming to that conclusion was amend the

Terms and Conditions to permit compliance with the Tribunal’s order.

E.

Commission

[320] The Commission submits that Canada’s legislative scheme and policies do not

hinder the implementation of the Tribunal’s orders as long as the necessary bureaucratic

and political will is brought to bear. If there were to be a conflict, the barrier, the Tribunal’s

targeted systematic remedies would take priority given the CHRA’s primacy. The Tribunal

has previously found that targeted systemic remedies are appropriate where the evidence

so warrants.

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[321] The Commission indicates that Canada has previously raised the argument that the

Tribunal should be cautious in its remedial orders based on considerations such as the

Financial Administration Act, the Treasury Board authorities, institutional capacity,

parliamentary appropriations and the prudent use of public funds. The Tribunal has

previously rejected these arguments.

[322] The Commission has previously made extensive submissions about the effective

implementation of systemic remedies. It reiterates a few key points. Section 53(2)(a)

provides the Tribunal with broad discretion to redress a discriminatory practice. The Tribunal

may issue further orders to ensure its orders are effectively implemented. Where there are

multiple possible approaches to implement an order, the Tribunal should leave the

government to choose an effective option. Where the evidence indicates specific steps are

required, the Tribunal may appropriately make more detailed orders or targeted systemic

remedies. If there is an operational conflict between a targeted systemic remedy and other

government law or policy, the targeted systemic remedy must take priority under the quasi-

constitutional CHRA.

[323] The Commissions raises a number of points in response to Canada’s submissions.

The Commission disagrees that the Tribunal is purely part of the judicial branch of

government given that the Tribunal is created by statute. The Tribunal’s adjudication,

including through targeted systemic remedies that affect other government programs, is

consistent with legislative intent. Human rights tribunal remedies assist the executive and

legislative branches of government in implementing human rights policy. And while it is the

responsibility of the legislative and executive branch to reform the policies found to be

discriminatory in this case, it is their obligation to bring government policies into compliance

with the Tribunal’s orders. The responsibility of the legislative and executive branches does

not negate the Tribunal’s ability to make orders.

[324] Further, the Commission disagrees with any suggestion that Tranchemontagne v.

Ontario (Director, Disability Support Program), 2006 SCC 14 requires an explicit primacy

clause for human rights legislation. The Commission notes the issue is not material to this

case as Canada acknowledges that the current case is about government services rather

than legislation.

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[325] The Commission maintains that Canada (Attorney General) v. Green, 2000

17146 (FC), [2000] 4 FC 629 [Green] recognizes the primacy of the CHRA remedies over

other legislation. Green is best understood to support the proposition that the Tribunal

should avoid interfering with the operation of other legislation where lesser means are

equally capable of achieving the remedial purpose.

[326] The Commission does not believe it is appropriate to address the nature of long-term

orders at this point. However, to the extent that Canada is arguing that unlimited expenses

based on actual costs constitute financial hardship, Canada is obliged to more specific and

concrete evidence to support claims of undue hardship under ss. 15(1)(g) and 15(2) of the

CHRA.

F.

Canada

[327] Canada submits that the Financial Administration Act and Canada’s Treasury Board

policies support the effective implementation of the Tribunal’s orders. These authorities

ensure that public funds are spent in a constitutional manner. More generally, the Tribunal

should permit Canada the flexibility to address systemic discrimination in a manner of its

choosing that accords with its obligations for spending public funds.

[328] There is no issue of primacy between the Financial Administration Act and the CHRA

as Canada has complied with the Tribunal’s orders, the Financial Administration Act, and

Treasury Board policies. Canada relies on the Financial Administration Act to highlight that

while the Tribunal has broad discretion on crafting remedial orders, Canada retains

discretion in how it rectifies identified discrimination. The requirement to comply with

appropriate procedures, including the Financial Administration Act, for spending money is

an illustration of why Canada ought to be permitted the flexibility of developing policies to

remedy the identified discriminatory practices.

[329] The Constitution Act, 1867 sets out the framework for raising and spending public

funds. The Financial Administration Act elaborates on these obligations and binds

government officials. It reflects parliamentary supremacy and fulfills the constitutional

obligation of holding the expenditure of funds by the executive responsible to Parliament.

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[330] Canada contends that there is no issue of primacy in this case. While it may be

possible that the CHRA has primacy over the Financial Administration Act, it is not

necessary to conduct that analysis as no actual conflict arises in this case. Canada notes

that cases that addressed the primacy of human rights legislation, such as Insurance

Corporation of British Columbia v. Heerspink, 1982 27 (SCC), [1982] 2 SCR 145 and

Winnipeg School Division No. 1 v. Craton, 1985 48 (SCC), [1985] 2 SCR 150 did not

involve direct challenges to legislation. While Tranchemontagne v. Ontario (Director,

Disability Support Program), 2006 SCC 14 involved a direct challenge to legislation, the

Ontario legislation had a clear supremacy clause that does not appear in the CHRA.

[331] Canada does not assert that the Financial Administration Act trumps the CHRA and

disagrees with prior Tribunal decisions that suggest Canada makes that assertion. Rather,

Canada argues that the Tribunal should provide Canada appropriate discretion in how it

chooses to remedy the discriminatory practices identified by the Tribunal. This is particularly

the case with systemic remedies involving broad policy reform.

[332] Reforming the programs at issue in this case to prevent discrimination going forward

appropriately falls to the executive and legislative branches of government. These branches

of government are best placed to ensure all of Canada’s legal obligations are met, which

includes appropriate legal oversight of public spending. Tribunal orders that specifically

direct the content of policy intrude on the separation of powers. Canada has demonstrated

its ability to follow these processes in enacting An Act respecting First Nations, Inuit and

Métis children, youth and families.

[333] The requirement to respect Canada’s ability to craft appropriate policy responses is

confirmed in CN v. Canada (Canadian Human Rights Commission), 1987 109

(SCC), [1987] 1 SCR 1114; Doucet-Boudreau v. Nova Scotia (Minister of Education), 2003

SCC 62; and Canada (Attorney General) v. Green, 2000 17146 (FC), [2000] 4 FC

629. The Tribunal’s ability to direct the implementation, review or amendment of policy

should not be extended to dictate the contents of the policy. Nor should the Tribunal order

that specific funds be spent in specific ways involving specific amounts.

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[334] The case of Swan v. Canadian Armed Forces, 1994 10252 (CHRT) is

distinguishable because a draft policy was before the Tribunal. It would, for example,

inappropriately intrude on the policy making process for the Tribunal to issue a final order

that funding must be made on the basis of actual costs. The order would oblige Canada to

implement a practice where costs are unlimited. That impedes Canada’s ability to forecast

expenditures, set priorities and secure appropriations from Parliament in accordance with

the Financial Administration Act. This would intrude on the legislative branch’s

responsibilities in relation to the content of policy.

VI.

Financial Administration Act Analysis

[335] The Financial Administration Act analysis is intimately connected with the reasoning

on the separation of powers. The Tribunal set out its initial reasoning in the letter-decision.

As promised, the Tribunal is now providing more detailed reasons.

[336] The issue here is not a challenge to the Financial Administration Act legislation such

as in the Matson v. Canada (Indian and Northern Affairs), 2013 CHRT 13 [Matson] and

Andrews v. Canada (Indian and Northern Affairs), 2013 CHRT 21 [Andrews] decisions. The

Panel is not attempting to limit the Financial Administration Act’s goal or application as part

of this ruling. The Panel’s question arises from a need for clarification given the repeated

submissions from Canada on the issue of separation of powers and the Financial

Administration Act.

[337] Furthermore, the question aims to determine if Canada in implementing the

Tribunal’s orders while abiding by the Financial Administration Act’s is applying its discretion

in the Financial Administration Act’s interpretation to facilitate the implementation of the

Tribunal’s orders or if it is interpreted in a way that hinders the Panel’s quasi-judicial statutory

role under the CHRA. Moreover, the CHRA is quasi-constitutional and fulfills Parliament’s

paramount goal in regard to human rights in Canada (see section 2 of the CHRA).

[338] Canada’s liability was established and orders to cease the discriminatory practices

and reform were accepted by Canada. The Tribunal’s findings addressed the FNCFS

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Program authorities at length in the Merit Decision. The FNCFS Program authorities formed

part of the Tribunal’s reform orders.

[339] Further, the Financial Administration Act is law in Canada and the Panel accepts

Canada’s assertion that the administration and management of public monies is set out in

the Financial Administration Act and is used by all Government of Canada departments. “In

performing their duties, public servants must be guided by that legislation and the policies

established to implement it.” (Affidavit of Paul Thoppil dated April 16, 2019 at paragraph 6).

[340] Canada’s affiant Mr. Thoppil testified that:

Program funding is originally approved by the Government through the

Federal Budget process and subsequently approved by Treasury Board.

Departmental funding appropriations are provided to Departments on a yearly

basis in the Estimates process and voted by Parliament. The main estimates

outline spending for departments, agencies and programs, and contain the

proposed wording of the conditions governing spending that Parliament will

be asked to approve.

(Affidavit of Paul Thoppil dated April 16, 2019 at paragraph 7, Emphasis ours).

Budgets within ISC are determined based on anticipated needs, which are

normally established through historical trends and forecasting. To support

senior management within the Department in meeting their responsibilities

under the FAA and supporting policies (such as the Management

Accountability Framework). ISC continually monitors and forecasts program

demand to meet program funding needs and legal obligations.

(Affidavit of Paul Thoppil dated April 16, 2019 at paragraph 8, emphasis ours).

[341] On this point, the Panel accepts Mr. Thoppil’s evidence reproduced above, however,

the Panel finds that the evidence, including the evidence discussed above, demonstrates

that Canada’s interpretation of the funding process under the Financial Administration Act

supports the old mindset that favours process over substance (see the tragic illustration of

this in the Wapekeka case described above). This mindset often gives greater emphasis to

the FNCFS Program’s authorities and Terms and Conditions than the Tribunal’s orders. In

retrospect, in light of the evidence in these proceedings over the last decade this is one of

the main problems in need of change.

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[342] In 2018, at the time Canada was declaring child welfare on reserves a humanitarian

crisis the Panel released a ruling and made similar findings, a ruling accepted by Canada

and with which Canada pledged to fully comply:

Canada has taken a step in the right direction by increasing prevention money

in its budget. However, it also admitted it left some immediate relief items for

mid to long term, thus creating again a piecemeal approach to responding to

the Decision’s findings, and orders. (see Gillespie Reporting Services,

transcript of Cross-Examination of Cassandra Lang, Ottawa,Vol. I at p. 112,

lines 19-25 [Transcript of Cross-Examination of Ms. Lang]).

(see 2018 CHRT 4 at para. 151).

Canada admits it lacks data to address some of the Panel’s immediate relief

orders so it unilaterally decided they were best left to mid-term or long term

without seeking leave from the Tribunal. It has treated some of the orders as

recommendations rather than orders.

(see 2018 CHRT 4 at para. 171).

While it is true that Canada needs to work with its partners including the

provinces, the Nations and the parties, this cannot be used as an excuse to

avoid funding in a meaningful way to eliminate the most discriminatory

aspects of the National First Nations Child and Family Services Program

(FNCFS).

(see 2018 CHRT 4 at para. 172).

[343] As explained earlier, some well meaning ISC employees attempted different

strategies to avoid seeking new authorities in every case but this is not always possible.

Moreover, obtaining new funding authorities, funding and Terms and Conditions should not

be an issue when Canada sets it as a priority and is able to show it is necessary to eliminate

systemic racial discrimination of First Nations children and families and comply with the

Tribunal’s legal orders.

[344] The Merit Decision found systemic racial discrimination of children. The Merit

Decision was detailed and provided a road map in terms of what needed to be eliminated to

cease the systemic discrimination. This unchallenged decision and subsequent rulings are

not recommendations. They are legally binding. Any funding process must comply with

existing orders.

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[345] The Tribunal relies on its numerous findings of underfunding, adverse impacts and

systemic discrimination in previous rulings. The Panel is also concerned that Canada’s focus

is that budgets are determined based on anticipated needs established through historical

trends and forecasting. The FNCFS Program was found to be discriminatory in not

addressing the real needs of the children and families served by the FNCFS Program. The

flawed assumptions in forecasting were a factor that led to underfunding in the past and

systemic discrimination causing many adverse impacts to First Nations children, the process

in itself contributed to the systemic discrimination found and this process must be reformed

(see Merit Decision at paras. 388-392). Canada must analyze its interpretation and its

process and how this can be improved as part of the ordered reform.

[346] However, the Financial Administration Act is not the issue per se here as the Panel

does not dispute its goal or application. Rather, the issue is whether Canada’s interpretation

of the process under the Financial Administration Act sufficiently addresses the systemic

discrimination found. The Panel finds it does not.

[347] There is great need for a shift in mindset on how things are done. This is what reform

means. If trends and forecasts are informed by the past discriminatory practices the adverse

impacts and harms will not be addressed. The Panel recognizes that Canada made efforts

to move past this mindset in some aspects in order to comply with some of the Tribunal’s

orders. The question here is whether Canada’s arguments attempt to return to its old ways

when it says that the actual costs orders cannot be made long-term and/or permanent. The

Panel will hear everyone on this issue as part of the long-term reform phase unless the

parties achieve the ideal outcome of settling this matter.

[348] Further, it is important to look at the facts. The FNCFS Program was found to be

underfunded, not responsive to the real needs of children, incentivizing the removal of

children from their homes, families and communities contributing to the erosion of Nations,

and departments were uncoordinated and caused gaps and delays. Those findings remain

unchallenged and are not up for debate. Canada was ordered to eliminate the above and,

to do so, it cannot underfund or choose other discriminatory policies. If Canada has a new

way of funding in the long term it needs to demonstrate that it is addressing all the systemic

discrimination found, is more advantageous than immediate relief orders and proves to be

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adequate, culturally appropriate, children, families and Nation specific needs based and

sustainable.

[349] The Panel agrees that the separation of powers is to be followed. However, it is

Canada’s interpretation that the Panel rejected in 2018 CHRT 4. The Panel addressed

cases such as Action Travail des Femmes, Doucet-Boudreau in past rulings.

[350] Furthermore, the Panel agrees with Canada that in Canada (Attorney General) v.

Green, 2000 17146 (FC), [2000] 4 FC 629, the Federal Court recognized the broad

discretion of the Tribunal to craft remedies within limits. The Federal Court found that in

remedying the discrimination, the Tribunal did not have jurisdiction to order destruction of

documentation as to do so would be contrary to subsection 5(1) of the National Archives of

Canada Act, RSC 1985, c 1 (3rd Supp). The Court acknowledged the importance of the

remedy the Tribunal wanted to achieve, but implicitly held that there was no conflict and

therefore no basis to override the National Archives Act as a confidentiality order would be

a sufficient remedy.

[351] The Panel reiterates that it is always important to look at the specific facts of the case

and in this case the discriminatory practice includes underfunding and this is one important

aspect that the Panel is trying to remedy.

[352] Furthermore, the Panel does not desire to choose between adequate policies and

will only do so if Canada’s chosen policy is not eliminating systemic discrimination,

perpetuates inequalities and underfunding and permits ongoing discrimination (see previous

rulings).

[353] However, the Panel partially agrees with Canada’s argument in that directing a

specific remedy risks creating delay by imposing a remedy ill-suited to the government

context. This is why the Panel’s remedies are based on the evidence, the First Nations

parties before the Tribunal and Canada and other parties’ views. Moreover, consistent with

its past approach (2017 CHRT 35, 2018 CHRT 4), the Panel remains flexible to amend its

orders when informed that a clarification or modification would best serve the interests and

specific needs of First Nations children and families.

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[354] Moreover, the Tribunal’s meaning of actual costs of services orders was explained

earlier. The Tribunal’s goal with actual costs orders proposed by the First Nations parties in

this case and accepted by the Tribunal is that until a new and adequate funding formula is

developed, Canada must address the central issues to eliminate the systemic

discrimination: cease the underfunding; reverse the mass removal of First Nations children

from their homes, families and communities; respect non-discriminatory provincial laws as

the floor not the ceiling; apply substantive equality based on the real needs of children taking

into account the historical trauma of residential schools, the sixties scoop and colonisation;

eliminate gaps in services caused by numerous factors such as the lack of coordination

between federal departments, a top-down approach disconnected from the realities on the

ground, a lack of understanding of First Nations real needs and responding to those needs

instead of budget announcements disconnected from those real needs, lack of plans with

deadlines, and using the expression discussing with our First Nations partners to justify the

status quo when some First Nations are past discussions and ready to move forward. All

this forms part of the Tribunal’s unchallenged findings (see previous rulings) and cannot be

challenged again at this time.

[355] The Panel’s orders flow from the claim and the systemic discrimination found and as

previously said in the unchallenged 2018 CHRT 4 ruling, it has to remedy the systemic

discrimination found. Any remedy impacting funding is a remedy entirely consistent with the

claim and findings. The Panel has a quasi-judicial mandate determined by Parliament’s

quasi-constitutional goal to ensure discrimination is eliminated. If Canada is opting to

remedy the systemic discrimination by using another policy option in the long-term, the

Panel agrees it is Canada’s prerogative so far as it respects First Nations inherent and

human rights, does not repeat the past and abides by the CHRA, the Tribunal’s orders to

reform the FNCFS Program, and Canada’s commitments in this case, which include

substantive equality principles. It goes without saying that this cannot be done without the

necessary knowledge and participation of First Nations.

[356] Any perpetuation of the past discriminatory practice could mean that Canada

continues to discriminate in a systemic way and negatively impacts children, which warrants

the Tribunal’s intervention.

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[357] Further, funding at actual costs respecting substantive equality based on needs was

already ordered by the Tribunal and adhered to by Canada’s Ministers in the Consultation

Protocol. Performing studies may assist in reversing the historical trends and forecasting to

reflect the real needs of First Nations children and families in order to eliminate the systemic

discrimination found until a new and adequate non-discriminatory funding formula is

developed.

[358] Canada argues that in the present case, the Tribunal’s orders that funding be made

based on actual costs pending long-term reform would, in the context of a more permanent

order, exceed the role of the judicial branch as the Tribunal would be specifically directing

the creation of policy. Given that this ruling addresses a clarification of previous immediate

orders and midterm reform, this argument can be revisited should Canada wish to do so in

the submissions and arguments for long-term reform. Simply put, actual costs of services

mean Canada must cease and desist from the discriminatory practices including the

underfunding and infringing on substantive equality.

[359] However, the Panel wishes to reiterate that all its orders are grounded in and focused

on substantive equality and the real needs of First Nations children and families served by

the FNCFS Program and Jordan’s Principle. The real service needs and substantive

equality ought to inform the historical trends and forecasting and not Canada’s

uncoordinated and top-down approach that led to discrimination. Not only were those

findings and orders unchallenged, Canada’s Ministers committed to implement them (see

Consultation Protocol following 2018 CHRT 4). Canada also included substantive equality

in An Act Respecting First Nations, Inuit and Métis children, youth and families.

[360] Mr. Thoppil also testified that:

In performing his duties, I must be guided by [the FAA] legislation and the

policies established to implement it. This includes policy requirements for

transfer payment programs such as the funding agreements ISC enters into

with First Nations child welfare agencies (…).

Government-wide policy requirements for transfer payment programs are

established by Treasury Board Secretariat in the Policy on Transfer Payments

(PTP) and the Directive on Transfer Payments (‘’the Directive”). The objective

of the PTP and the Directive is to ensure that transfer payment programs are

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managed with integrity, transparency and accountability in a manner that is

sensitive to risks; are citizen-and recipient-focused; and are designed and

delivered to address government priorities in achieving results for Canadians.

(See Affidavit of Paul Thoppil dated April 16, 2019 at paragraphs 36-37).

[361] The Panel also accepts Mr. Thoppil’s evidence on this point.

[362] Further, the Panel notes that in Canada’s submissions, Canada asserts it has

successfully implemented the Tribunal’s remedial orders regarding the FNCFS Program,

corresponding funding formulas, and other related provincial/territorial agreements (the

“Program”), and has done so in accordance with the Financial Administration Act and

Treasury Board policies.

[363] Canada also argues the Constitution Act, 1867, sets out key constitutional norms

regarding the manner in which moneys may be lawfully levied and spent. The Financial

Administration Act sets out the core legal framework that governs the acquisition and

spending of public funds for federal institutions and guides the work of public servants.

[364] Canada also makes a number of submissions that the Panel accepts and are worth

mentioning here.

[365] Canada’s policies and priorities must adhere to this legal framework while also

responding to its legal obligations. In reforming the FNCFS Program, Canada must develop

policy and mandates that effectively respond to the Tribunal’s orders to reform the FNCFS

Program while ensuring adherence to the financial framework that governs the spending of

public funds.

[366] While the CHRA’s mandate focuses on addressing discriminatory practices, which

does not include challenges solely to legislation, it will take primacy wherever another law

interferes with the fulfilment of its object and purpose. For example, where a complaint is

properly before the Tribunal, and a provision of a federal law conflicts with the Tribunal’s

remedial powers, the provision may be treated as inoperative in order to allow the Tribunal

to fulfill its mandate to prevent discrimination. The Tribunal has applied the primacy principle

in this manner on numerous occasions, where it has found the existence of a discriminatory

practice. This reading is consistent with the principles stated in Heerspink, Craton and

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Tranchemontagne. Canada (Canadian Human Rights Commission) v. Canada (Attorney

General), 2018 SCC 31 the Supreme Court of Canada affirmed this analysis conducted by

the Tribunal in both the Matson and Andrews complaints.

[367] Given the above submissions recognizing the primacy of the CHRA when in conflict

with legislation, the Panel does not understand the reasoning behind Canada’s argument

on Tranchemontagne and the lack of a privacy clause in the CHRA. Canada submits

Tranchemontagne can only be understood as affirming primacy in the context of the very

different statutory mandate that Ontario has assigned to the Human Rights Tribunal of

Ontario. The Court’s conclusion that legislation conflicting with the Code’s anti-discrimination

protections may be rendered inoperable is entirely in line with legislative intent.

[368] In the unchallenged Merit Decision at paragraph 42, the Panel relied on Kelso v. The

Queen, [1981] 1 SCR 199 at page 207, where the Supreme Court stated:

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.

[369] Furthermore, the CHRA’s primacy was also addressed in the Panel’s previous rulings

notably in 2018 CHRT 4 that was followed by a consultation protocol signed by Canada’s

Ministers.

[370] On Canada’s argument of separation of powers, the Panel has already addressed

this in previous rulings including 2018 CHRT 4. The Panel has held that while it will not draft

policies, choose between policies, supervise the policy drafting process, or unnecessarily

embark on the specifics of reform, it will intervene if it finds that Canada’s policy choices are

resulting in discrimination in the same or similar ways found in the January 2016 Merit

Decision.

[371] Parliament’s priorities in regard to human rights are stated in the quasi-constitutional

CHRA which gives the Tribunal jurisdiction for broad remedial powers to eliminate

discrimination. Furthermore, the consultation protocol signed by Minister Philpott and

Minister Bennett express government priorities in this case. Moreover, at paragraph 3 of the

ISC Policy on Internal Reallocation of Social, Housing, Education, and Health Program

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Funds, section 3.3.2 clearly outlines a government priority to comply with all CHRT orders

on child and family services and the need to review the policy to update it according to the

Tribunal orders.

ISC Policy on Internal Reallocation of Social, Housing, Education, and Health

Program Funds

3. Effective Date

3.1. This policy takes effect on February 8, 2018.

3.2. This is an evergreen policy that will be reviewed and updated to ensure

on-going compliance with all Canadian Human Rights Tribunal orders on child

welfare.

[372] The Policy on transfer payments’ objective filed in evidence and attached to Paul

Thoppil’s affidavit dated April 16, 2019, provides considerable discretion to Treasury Board

President and Secretary, Ministers and Deputy heads in the delivery and management of

transfer payment programs (See section 3.8).

3.8 This policy sets out clear roles and responsibilities for the Treasury Board,

the President of the Treasury Board, the Secretary of the Treasury Board,

ministers and deputy heads in the design, delivery and management of

transfer payment programs.

The objective of this policy is to ensure that transfer payment programs are

managed with integrity, transparency and accountability in a manner that is

sensitive to risks; are citizen- and recipient-focused; and are designed and

delivered to address government priorities in achieving results for Canadians.

(emphasis added).

[373] It is clear that if a federal department is found to engage in systemic discrimination

and ordered to remedy it, especially when underfunding and authorities associated with this

underfunding are one of the main elements found to have caused systemic discrimination,

the policy on transfer payments allows considerable discretion to the government to remedy

the underfunding and eliminate the systemic discrimination. It is reasonable to conclude that

if the Financial Administration Act or the policy is cited as a roadblock to eliminate systemic

discrimination in funding and FNCFS Program authorities, it is not the Financial

Administration Act or the policy on transfer payments per se that fosters status quo and

perpetuates systemic discrimination but rather a restrictive interpretation of the Financial

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Administration Act or the policy on transfer payments made by those who were ordered to

remedy it.

[374] Moreover, the objective of the policy can be interpreted in a manner that is consistent

with the CHRA and the Tribunal’s orders and the engagements made by Ministers Philpott

and Bennett in the consultation protocol.

[375] Given that we are looking at potentially discretionnary decisions under a policy, this

is not a question of an attack solely to legislation such as in Matson and Andrews but rather

it is the case where the interpretation of the Financial Administration Act and relevant policies

can either perpetuate or eliminate systemic discrimination.

[376] The Financial Administration Act should be interpreted harmoniously with quasi-

constitutional legislation such as the CHRA including orders made under the CHRA. Canada

confirms it is doing as much. The Panel has found a more nuanced view of Canada’s

approach and provided guidance above. In light of this, the Panel sees no need to make

orders on this issue at this time.

[377] Further, the Tribunal’s orders are to be read harmoniously with the Financial

Administration Act and, in the event of conflict, the orders made under the CHRA have

primacy over an interpretation of the Financial Administration Act that limits the Tribunal’s

remedial authority.

[I]n Franke v. Canada (Canadian Armed Forces), [1998] C.H.R.D. No. 3 (Can.

Human Rights Trib.) [Franke], the Respondent argued that, pursuant to

section 9 of the Crown Liability and Proceedings Act, R.S.C. 1985 c. C-50

[CLPA] and section 111 of the Pension Act, R.S.C. 1985 c. P-6 [PA], the

Tribunal was precluded from awarding damages for economic loss to the

Complainant because she was receiving a pension from Veterans Affairs in

respect of this loss. The Tribunal found that there was a conflict between those

provisions and the remedies provisions of the Act. Relying on Heerspink,

Craton, Action Travail des Femmes, Druken and Uzoaba, the Tribunal

dismissed the Respondent's argument and affirmed the primacy of the Act

noting that, as the legislature had not spoken to the contrary, the Act

superseded the provisions of the CLPA and the PA and therefore damages

for economic loss could be awarded: Franke at paras. 644 - 678.

(Andrews v. Indian and Northern Affairs Canada, 2013 CHRT 21 at para. 87,

emphasis ours).

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VII. Reallocation Party Submissions

A. The Caring Society

[378] The Caring Society seeks four orders in relation to the reallocation of budgeted funds

between different social programs:

In consultation with the CCCW, Canada will amend the “adverse impact”

screen regarding temporary reallocations to ensure it meets the Tribunal’s

orders and post the final result on the home page of the ISC website within 30

days of the order.

The “adverse impact” screen established by the policy for temporary

reallocations from programs listed in the policy should also apply to

permanent reallocations out of non-listed programs.

Funds that are temporarily reallocated from a program listed in the policy shall

be returned to the program in question within 30 days.

Officials determining whether a reallocation (whether labelled as “permanent”

or “temporary/cash management”) will have an adverse impact on First

Nations children and families shall have training to familiarize them with the

factors leading to the over-representation of First Nations children in care.

[379] The Caring Society relies on the Tribunal’s order in 2018 CHRT 4 that Canada cease

unnecessarily reallocating funds from social programs that contributes to the detrimental

effects on children identified in the Merit Decision (para. 422). Canada developed a policy

on reallocation. While the Caring Society provided some comments on the draft policy, the

Caring Society is not satisfied with the finalized reallocation policy. In particular, the Caring

Society is concerned that it is unclear which programs are exempted from the reallocation

policy and can still be subject to reallocations; the Infrastructure program is subject to

reallocation which could undermine services that would prevent the removal of children;

temporary reallocations are not defined and can span more than one fiscal year; and a the

policy does not establish a mechanism for determining what constitutes an adverse impact

on First Nations children.

[380] While the Caring Society is optimistic that ongoing dialogue between the parties can

address this issue, the Caring Society is concerned that dialogue will be used to avoid

binding orders from the Tribunal.

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[381] In reply, the Caring Society submits that Canada has not provided evidence about

how ISC will assess whether a reallocation will adversely affect First Nations children.

B.

Canada

[382] Canada submits that it is compliant with the Tribunal’s existing orders, including in

relation to reallocation.

[383] Canada notes the Tribunal’s finding that not all of ISC’s social programs form part of

the complaint and the Tribunal’s jurisdiction. The Tribunal ordered Canada to evaluate its

reallocation practices.

[384] Canada documents its efforts to comply with the Tribunal’s orders. ISC has secured

increased and stable funding to obviate the prior need for reallocation. Canada documents

some of the correspondence to implement the changes to the allocations policy and the fact

that Canada has not made permanent reallocations since February 15, 2018. The draft

Reallocation Policy, circulated to the CCCW, was part of the reform process. Canada only

received feedback from the Caring Society. ISC incorporated most of the Caring Society’s

recommendations but was unable to incorporate certain suggestions such as a suggestion

that the policy apply more broadly and that reallocations be limited to 30 days. Limiting

reallocations to 30 days would hinder internal fiscal management, and would for example

prevent using funds for a delayed project for another purpose with the funds being repaid

once the original project can proceed. ISC will share further documents on reallocations with

the parties in order to continue to work collaboratively with the parties on this issue.

[385] Canada submits that this evidence demonstrates that it is complying with the

Tribunal’s orders. ISC has implemented procedures that respond to the Tribunal’s concerns

and, in fact, appropriately respond to the spirit of the Tribunal’s orders by including health

and education programs not specifically identified in the orders. This demonstrates

Canada’s efforts to prevent adverse impacts on First Nations children. The Caring Society’s

complaints in this motion arise from a respectful disagreement on two issues and should not

be conflated with non-compliance with the Tribunal’s orders.

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VIII. Reallocation Analysis

[386] In the letter-decision dated August 26, 2021, the Panel wrote that it has already ruled

on this issue in 2018 CHRT 4 and would clarify what it meant in the reasons to follow. There

was no further order made on reallocation as part of the letter-decision.

[387] In 2018 CHRT 4, the Panel made the orders below in terms of reallocation while

weighing the evidence as a whole and understanding Canada’s need for flexibility in

managing public funds. To that effect, the Panel wrote at paragraph 276 that some

reallocations may be inevitable in the federal government. However, it is also in the best

interest of First Nations’ children and families to eliminate this practice as much as possible.

The rationale for the orders, which should never be separated from the orders themselves,

was explained at paragraphs 269-276 in clear terms.

[388] The findings in this case based in the evidence established that neglect is the primary

reason for unnecessary apprehensions and removal of children from their homes, families

and communities. The damaging effect of not applying a substantive equality lens to

services offered to First Nations children and families results in unnecessarily removing

children from their homes, families and communities as a result of one of factors such as:

poor housing, poverty or substance abuse. These factors can intersect and can be identified

to as socio-economic determinants of health.

[389] The Panel also addressed the issue of federal departments working in silos and

causing adverse impacts to First Nations children and families in previous rulings. Canada

chose to create social programs and divide them into branches. This is Canada’s choice.

The branches are attached to the tree of social programs and one of those programs is

FNCFS Program. Another is the Housing Program. It is Canada’s responsibility to assess

all its programs offered to children and families on-reserve or ordinarily on reserve to ensure

they respond to specific needs and do not create gaps that negatively impact First Nations

children and families. The Panel ordered Canada in 2018 to look into all its social programs

to avoid adverse impacts namely apprehensions or other negative impacts to children.

Inequalities should not be created in an attempt to correct inequalities in the FNCFS

Program. Safe housing is intertwined with keeping children at home, in their families and in

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their communities. This was established in 2016. Responsible reallocation should take this

into consideration and the best way to do so is in applying the principle of substantive

equality based on needs. To do so, Canada ought to assess needs, gaps, and inequalities

in all its programs to ensure its programs do not perpetuate systemic discrimination to First

Nations children and families. First Nations children’s social needs are not administratively

divided in silos. More importantly, as already explained in the Merit Decision, Canada cannot

effectively create appropriate programs with a top-down approach. Canada needs to start

from the child, the family, the community and the Nation and respond to their specific needs

with its social programs and other programs. This will look different from one child to another,

one family to another, one community to another and one Nation to another. The common

denominator here is to keep the children in their homes, families, communities and Nations.

The Panel has insufficient evidence and submissions to determine if the orders below have

been fully implemented.

[390] This being said, while there is a plan in place for First Nations communities covered

under the 2021 CHRT 12 consent order, for those not covered under the consent order,

there is no specific plan to this date. The Panel reiterates its previous orders reproduced

below and request all the parties to the consultation protocol to follow-up with a plan on their

implementation by February 17, 2022. The parties should take the Panel’s clarification

above, especially the assessment of specific needs, gaps, inequalities in all its programs

into consideration in the preparation of this plan.

[391] For reference, the 2018 CHRT 4 orders are the following:

The Panel, pursuant to section 53 (2) (a) of the CHRA, orders Canada to stop

unnecessarily reallocating funds from other social programs especially

housing if it has the adverse effect to lead to apprehensions of children or

other negative impacts outlined in the [Merit Decision] by February 15, 2018

(see 2018 CHRT 4, at para. 277).

The Panel, pursuant to section 53 (2) (a) of the CHRA, orders Canada to

ensure that any immediate relief investment does not adversely impact

Indigenous children, their families and communities by February 15, 2018

(see 2018 CHRT 4, at para. 278).

The Panel, pursuant to section 53 (2) (a) of the CHRA, orders Canada to

evaluate all its Social Programs in order to determine and ensure any

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reallocation is necessary and does not adversely impact the First Nations

children and families by April 2, 2018 (see 2018 CHRT 4, at para. 279).

IX.

A.

Capital for Band Representative Services and Prevention Services in Ontario

Party Submissions

The Chiefs of Ontario

[392] The COO seeks additional orders to address the needs of First Nations in Ontario

that are engaged in providing Band Representative Services and prevention services. As

such, the COO requests the following additional orders:

1. Canada shall fund the Major and Minor Capital costs of First

Nations in Ontario for the provision of prevention and Band

Representative services, including, but not limited to, those

related to program administration and governance, prevention,

intake, and legal services;

2. In consultation with COO, Canada shall provide funding for

Ontario First Nations to conduct Major Capital/infrastructure

needs and feasibility studies related to prevention and Band

Representative services;

3. Where such feasibility studies identify a need for Major

Capital, Canada shall fund the design, land purchase,

infrastructure, and other administrative requirements to

facilitate construction; and

4. Where projects are ready to proceed, Canada shall fund the

Major Capital needs of Ontario First Nations at actual cost.

[393] The COO submits that First Nations in Ontario are unique in the delivery of Band

Representative Services and are actively pursuing a model of preventative funding.

[394] Prevention initiatives for First Nations in Ontario have been funded through limited

immediate relief allocations without access to funding “at actuals”. As capacity to deliver

programs has expanded, so has the demand for space. ISC recognizes the different context

in Ontario where funding is going through communities while in much of the rest of the

country the funding flows through FNCFS Agencies. While further study is required to

determine the Major Capital needs of First Nations in Ontario, it is clear that adequate space

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is required to appropriately deliver prevention and Band Representative Services. What

funding is available through the “fixed pot” approach under the Community Well-being and

Jurisdiction Initiatives is insufficient to meet substantive equality needs and causes divisions

between First Nations.

[395] While the Panel has previously awarded capital funding to FNCFS Agencies to

appropriately deliver prevention services, First Nations in Ontario have determined that

prevention services are most appropriately provided by, and within, the First Nation. The

COO submits that First Nations delivering prevention and Band Representative Services

should have similar access to capital as FNCFS Agencies in order to meet the substantive

equality needs of these communities.

[396] The COO argues that the record demonstrates that Canada has taken the position

that it will not fund capital for Band Representative Services. This record was confirmed by

the parties in September 1, 2020 correspondence to the Tribunal. In particular pursuant to

this record, the COO identifies that none of the Capital Directive, the draft document on

reimbursing actual costs of Band Representative Services pursuant to the Tribunal’s orders,

or the FNCFS Terms and Conditions include Band Representative Services. The COO also

refers to CCCW discussions of the topic and examples of Wabaseemoong Independent

Nations and Asubpeeschoseewagong Netum Anishinabek seeking capital funding for Band

Representative Services being denied despite their inadequate facilities to, for example, be

able to maintain client confidentiality.

[397] The COO contends that the failure to fund capital expenses for Band Representative

Services is inconsistent with Canada’s obligation to fund actual costs under the orders from

2018 CHRT 4 as well as Canada’s obligation to provide First Nations children substantive

equality in child and family services, as identified throughout this case and in An Act

respecting First Nations, Inuit and Métis children, youth and families; leaves First Nations

unable to exercise their rights or fulfill their duties under the Child, Youth and Family Services

Act, 2017, SO 2017 c 14, Schedule 1 (CYFSA); and leaves First Nations unable to comply

with legal and best practice privacy requirements in providing child and family services, let

alone provide culturally appropriate services.

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[398] The COO provides an overview of the new legislative scheme under the CYFSA and

emphasizes the scope of First Nations’ participatory and consulting rights through a Band

Representative. The COO argues that First Nations require adequate space in order to

exercise the full scope of their rights under the CYFSA. While space is required in order to

be physically able to provide services, appropriate space is required to ensure client

confidentiality and privacy in accordance with legal and professional norms. For example,

the Information and Privacy Commissioner of Ontario identified that records containing

personal information must be locked cabinets in a space with controlled access through

access cards and keys and where any visitors are identified, screened and supervised. The

COO also refers to standards for social works that require privacy for any discussions related

to clients.

B.

Nishnawbe Aski Nation

[399] NAN First Nations are providing prevention and Band Representative Services

without funding for capital and infrastructure in a context of a chronic infrastructure deficit

felt particularly strongly in remote and Northern communities. The lack of infrastructure

includes a lack of housing which hinders the ability to find suitable foster homes in the

community and the ability to hire staff from outside the community. NAN adds that in many

of its communities, the issue is not simply inadequate buildings hindering program delivery,

but often a complete absence of available buildings.

[400] NAN identifies some specific concerns about the capital directive: a lack of clarity for

assessing the criteria that a capital project “clearly contribute towards the achievement of

the intended outcome of the Program”; limiting capital costs to prevention services and

repair costs for Band Representative facilities; and lack of clarity in the relationship with the

Capital Facilities and Maintenance Program. NAN is not satisfied with the changes Canada

has made in response to its concerns.

[401] NAN contends that the $2.5 million limit in the Draft Capital Directive does not

adequately reflect challenges related to remoteness and does not believe Canada has

appropriately addressed remoteness concerns.

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[402] NAN maintains that reimbursement for Band Representative Services requires

capital funding. NAN is concerned that Canada has yet to provide clear guidance on the

extent to which capital funding will be available and is particularly concerned that Canada

may not have provisions for providing funding for capital where the absence of infrastructure

is a factor preventing the establishment of a Band Representative program.

[403] In subsequent submissions, NAN argues that Canada has narrowed the scope of the

Tribunal’s order to reimburse the actual costs of providing Band Representative Services

and the scope of the FNCFS Program’s Terms and Conditions as they relate to Band

Representative Services. In particular, Canada limits each First Nation to a one-time capital

claim of $1.5 million for Band Representative Services.

[404] NAN points to evidence from Canada’s witnesses that suggests that they initially

accepted that capital expenditures for Band Representative Services was within the scope

of the Tribunal’s orders. For example, NAN relies on the cross-examination of Assistant

Deputy Minister Joanne Wilkinson on June 4, 2019 that, while capital expenses were not

listed as eligible expenses, ISC was looking into eligibility and was prepared to consider

capital claims for Band Representative Services on a case-by-case basis. The subsequent

modification of the Terms and Conditions to limit each First Nation to a one-time claim for

capital expenditures for Band Representative Services, capped at $1.5 million, represents

a narrowing of eligibility from the Tribunal’s orders.

[405] NAN has specific concerns about capital expenditures for Band Representative

Services being limited to $1.5 million. The fixed amount, regardless of First Nations’

circumstances, disadvantageous remote and northern First Nations who face added costs

in, for example, transporting construction materials to their communities. ISC has developed

a Cost Reference Manual that addresses increased costs for remote First Nations but has

not factored that into its reimbursement limit.

[406] Remote community reliance on winter roads to transport construction materials

further increases the need for prompt approvals from ISC. Delays in approvals can increase

costs of transportation must be done by air instead of winter road. The limit of $1.5 million

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means First Nations may be unable to be reimbursed for unanticipated and unbudgeted

added costs.

[407] NAN indicates that there is no evidence to support the limit of $1.5 million for capital

expenditures related to Band Representative Services. NAN points to evidence that the limit

is an old presumed limit for minor capital expenditures that is agreed to be out of date.

Further, it does not correspond with the increase to $2.5 million capital limit for FNCFS

Agencies. The limit of $1.5 million represents an inappropriate reversion to old policy based

on assumptions instead of based on actual need.

[408] NAN similarly supports the orders requested by the COO, with the minor change to

the second order such that consultation be directed to occur with both the COO and NAN.

C.

Canada

[409] Canada responds specifically to NAN’s arguments relating to capital for Band

Representative Service. Canada submits that NAN misrepresents that the Tribunal has

ordered the capital payments NAN seeks, misrepresents that ISC has been inconsistent in

its interpretation of the Tribunal’s orders in relation to Band Representative Services capital,

and misrepresents that ISC has failed to address remoteness issues. Canada contends that

it has gone beyond what the Tribunal ordered.

[410] Canada also relies on a number of its past submissions on Band Representative

Services. Those submissions maintain that Canada has addressed the Tribunal’s orders in

relation to Band Representative Services. These submissions also describe Canada’s

process for reimbursing costs paid for Band Representative Services. These issues and

submissions are more fully described in 2020 CHRT 24 and 2018 CHRT 4 where the Panel

made specific orders relating to Band Representative Services.

[411] In addition, Canada submits these submissions demonstrate that it worked with

claimants, established guides to assist in making claims, showed flexibility on deadlines,

and worked with the parties to identify and address capital needs. Further, the submissions

show that capital needs can be addressed through other existing programs for capital

funding. Capital needs cannot be addressed in isolation and require broader community

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consultation. Canada submits it has been taking a community-centred approach to capital

funding to address a community’s entire capital needs.

[412] Canada submits the evidence demonstrates that ISC has been transparent with

recipients on its implementation of the Tribunal’s orders and has engaged in dialogue to

address capital needs. Further, Canada submits it is paying actual costs for aspects of Band

Representative Services that are non-medical such as the expansion of office spaces and

family support meeting spaces. Canada is paying actual costs which already reflects costs

related to remoteness. The average claim is less than a quarter of the $1.5 million limit.

[413] As Canada is paying actual costs, it is already required to pay any increase in costs

due to remoteness. The dispute is properly characterized as a dispute about the scope of

the Tribunal’s orders rather than an issue relating to remoteness. Nonetheless, the evidence

demonstrates Canada has appropriately considered remoteness issues.

[414] Canada submits that the order in 2018 CHRT 4 related to building repairs, with further

context at paragraphs 212-213 of the decision. The orders do not require Canada to fund

all costs tangentially related to Band Representative Services. Canada has generously

interpreted the orders to support Band Representative Services in fulfilling their statutory

functions.

[415] Canada indicates that Ms. Wilkinson’s evidence, cited by NAN, demonstrates that

building renovations and new buildings may not be eligible for funding under the Terms and

Conditions but that they may nevertheless be considered on a case-by-case basis. Similarly,

the letter NAN cites from Catherine Thai demonstrates Canada interpreted building repairs

broadly to include expansions of space and vehicles. Canada declined funding for requests

such as recreational and athletic facilities, cultural centres, and road maintenance. These

reflect reasonable and rational distinctions.

[416] Finally, Canada objects to NAN filing contested evidence through an affiant who lacks

direct knowledge of the material as this undermines Canada’s ability to cross-examine on

the matter.

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[417] In sum, Canada submits that it has implemented the Panel’s orders in a manner that

complies with the Financial Administration Act, satisfies the need for Parliamentary control

of spending, and ensures the efficient, economic and prudent use of public resources.

[418] Canada also submits that the Tribunal does not have the remedial power to dictate

the specifics of Canada’s replacement policy for funding Band Representative Services.

[419] Moreover, Canada contends that Ontario-specific orders are a significant expansion

of the complaint.

X.

Capital for Band Representative Services and Prevention Services in Ontario

Analysis

[420] The Tribunal set out its initial reasoning in the letter-decision. The Tribunal is now

providing the further analysis indicated in the letter-decision.

[421] Given Canada’s concern about the manner in which the NAN filed contested

evidence and the resulting prejudice Canada alleges from an inability to cross-examine an

affiant with direct knowledge of pertinent evidence, the Panel declined to rely on the NAN’s

evidence to inform the letter-decision and these subsequent reasons. The Panel took this

approach out of an abundance of caution and because there was sufficient other evidence

on which it could rely. The Panel nonetheless appreciates the NAN’s efforts to collect and

submit this evidence, as this is the sort of precise evidence based on specific examples that

demonstrates the effect of Canada’s policies and policy changes on individual First Nations

children, families and communities. Nevertheless, there is sufficient evidence before the

Tribunal to make findings for Ontario.

[422] In particular, the order from 2018 CHRT 4 at paragraphs 336 and 426-427

addressing Band Representative and Mental Health Services read as follows:

[336] The Panel, pursuant to Section 53(2)(a) and (b) of the CHRA, orders

Canada to fund Band Representative Services for Ontario First Nations, Tribal

Councils or First Nations Child and Family Services Agencies at the actual

cost of providing those services, retroactively to January 26, 2016 by

February 15, 2018 or within 15 business days after receipt of the

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documentation of expenses and until such time as studies have been

completed or until a further order of the Panel.

[…]

[426] The Panel, pursuant to Section 53(2)(a) and (b) of the CHRA, orders

Canada to fund actual costs of mental health services to First Nations children

and youth from Ontario, including as provided by First Nations, Tribal

Councils, First Nations Child and Family Services Agencies,

parents/guardians or other representative entities retroactively to January 26,

2016, by February 15, 2018, or within 15 business days after receipt of the

documentation of expenses.

[427]The Panel, pursuant to Section 53 (2) (a) and (b) of the CHRA, orders

Canada to fund Band Representative Services for Ontario First Nations, at the

actual cost of providing those services retroactively to January 26, 2016

by February 15, 2018 and until such time as studies have been completed or

until a further order of the Panel.

[423] The Ontario child and family services, the 1965 Agreement and Band

Representatives Services have always formed part of this claim. The Panel rejects Canada’s

argument that Ontario-specific orders are a significant expansion of the complaint.

[424] The 2018 CHRT 4 orders did not exclude actual costs for prevention for Band

Representatives Services. The orders targeted Band Representative Services as a whole.

Band Representatives are also part of the broader prevention efforts made by First Nations

communities in Ontario to keep First Nations children in their homes, families and

communities. Their actual costs should be funded by Canada, which includes the purchase

or construction of capital assets that support prevention services and Band Representatives.

[425] While the Panel never intended to exclude capital funding for Band Representatives

and for prevention services which would go against the spirit of the Merit Decision, the Panel

believes further clarification to its previous orders is required to make clear that prevention

services and Band Representative Services on-reserve in Ontario are fully funded at actual

costs including funding at actual costs for the purchase and/or construction of buildings for

the delivery of services under the FNCFS Program. The funding should also include building

repairs and/or expansion. This would be more responsive to the Tribunal’s goal to eliminate

the systemic discrimination found while a long-term approach is developed.

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[426] Canada has not successfully established a statutory exception under section 15 or

16 of the CHRA, moreover, such a defence was not part of these proceedings that led to

the Merit Decision and subsequent orders (see para. 460).

[427] Furthermore, the Panel is not convinced that fully funding at actual costs prevention

services and capital for the purchase and/or construction of buildings to support the delivery

of Band Representatives goes against the Financial Administration Act, satisfying the need

for parliamentary control of spending, and ensuring the efficient, economic and prudent use

of public resources. In the 2016 Merit Decision, Canada was ordered to cease its

discriminatory practices and reform the FNCFS Program and the 1965 Agreement to reflect

the findings in the Merit Decision.

[428] The same reasoning applies for fully funding the feasibilities studies and needs-

assessments:

The core of the discrimination found in the Merit Decision is systemic and was

caused by Canada’s structure and funding methodology which was focused

on financial considerations and not the best interests of children or their

specific needs. The Panel’s orders intend to eliminate this racial systemic

discrimination

(see 2020 CHRT 24 at para. 41).

[429] Timely interim positive measures are necessary while long-term reform is

implemented.

[430] The Panel agrees with the COO that there is a participatory or consultative role for

Band Representatives in virtually all proceedings or actions under the CYFSA. If properly

resourced, the CYFSA enables Band Representatives to be involved in almost every step

of the child and family services agency’s intervention in a First Nations family, and by

extension in the First Nation community. Band Representatives are not secondary to the

child and family services system for First Nations children: they are central.

[431] Further, the Tribunal has been presented with insufficient evidence to find that the

discriminatory practices identified in the Merit Decision relating to the 1965 Agreement have

been eliminated through reforms, amendments, or a replacement to the 1965 Agreement.

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[432] In the Merit Decision, the Panel found that:

AANDC’s design, management and control of the FNCFS

Program, along with its corresponding funding formulas and the

other related provincial/territorial agreements have resulted in

denials of services and created various adverse impacts for

many First Nations children and families living on reserves.

Non-exhaustively, the main adverse impacts found by the Panel

are:

(…) The application of the 1965 Agreement in Ontario that has

not been updated to ensure on-reserve communities can

comply fully with Ontario’s Child and Family Services Act.

Despite being aware of the adverse impacts resulting from the

FNCFS Program for many years, AANDC has not significantly

modified the program since its inception in 1990. Nor have the

schedules of the 1965 Agreement in Ontario been updated

since 1998.

(…) AANDC is ordered to cease its discriminatory practices and

reform the FNCFS Program and 1965 Agreement to reflect the

findings in this decision (…).

[433] While the Panel appreciates that this process takes time and thorough consultations

for an optimal long-term approach, during this time best efforts need to be made to avoid

gaps, lesser services or denials. Services have to be provided somewhere and not ensuring

that this is the case is insufficiently responsive to address the discrimination in the immediate

to mid-term.

[434] Unlike FNCFS Agencies, First Nations in Ontario have not had access to funding “at

actuals” for prevention services or related building repairs. First Nations in Ontario have

funded prevention initiatives through Canada’s limited “immediate relief” allocations.

[435] As First Nations in Ontario have expanded their capacity to deliver prevention and

Band Representative Services to their citizens, a concomitant demand for space within

which to deliver, manage, and govern these services has arisen.

[436] The Panel finds that there is sufficient evidence to establish that the current approach

results in insufficient funding for prevention services and space to offer Band

Representatives Services on-reserves. Without adequate space, First Nations cannot

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provide prevention services and Band Representative Services that meet the legal or ethical

standards respecting client confidentiality and record security, or in some cases, provide

any services at all. This results in either a lesser service or a denial of service to First Nations

children. Canada’s conduct is contrary to the principle of substantive equality and the best

interests of the child.

[437] Furthermore, the Panel agrees with the COO that the Capital Directive demonstrates

the process for access to funding for capital for FNCFS Agencies but Band Representative

Services programs are not included in this Directive, (see Exhibit 7A to the Affidavit of Lorri

Warner, sworn March 4, 2020 (First Nations Child and Family Services Program Directive:

Agencies Funding Stream – Capital Expenditures)).

[438] The Panel also agrees the funding guide shows that capital for Band Representative

programs is not included as an eligible expense and is to be dealt with in the FNCFS Terms

and Conditions, but it is not in fact dealt with in the FNCFS Terms and Conditions (see

Ontario Region Guide (Draft) for Reimbursement of 2019-2020 First Nations Child and

Family Services (FNCFS) Band Representative Services Actual Costs Resulting from the

Canadian Human Rights Tribunal Orders. Exhibit 7A to the Affidavit of Lorri Warner, sworn

March 4, 2020 (First Nations Child and Family Services Program Directive: Agencies

Funding Stream – Capital Expenditures)).

[439] The Panel accepts the NAN’s argument that First Nations are providing prevention

and Band Representative Services without sufficient funding for capital and infrastructure in

a context of a chronic infrastructure deficit felt particularly strongly in remote and Northern

communities. The lack of infrastructure includes a lack of housing which hinders the ability

to find suitable foster homes in the community and the ability to hire staff from outside the

community. NAN adds that in many of its communities, the issue is not simply inadequate

buildings hindering program delivery, but often a complete absence of available buildings.

[440] Canada submits in paying actual costs this already reflects costs related to

remoteness. The Panel accepts this assertion. Nevertheless, the Panel values the

remoteness quotient developed with the NAN’s expertise and believes it will be very useful

in different ways including developing a new equitable funding formula for the Northern and

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remote communities in Ontario. However, the Panel finds the issue here is related to

insufficient and capped funding for capital assets and prevention services because of

Canada’s policies including its interpretation of the Tribunal’s orders.

[441] Moreover,

the CCCW was keen on finding practical solutions to address the growing

frustration among leadership in remote communities that arises when claims

are categorized as complex or are denied. It was requested that ISC notes

where Terms and Conditions influence or constrain objectives and this be

revisited in light of them being operation guidelines that may not align with

CHRT orders or that Act. ISC reminded the Committee of their obligation to

adhere to the Terms and Conditions set forth by the Treasury Board,

(see CCCW draft record of decisions January 14, 2020 exhibit “A” to the

Record of Documents of the Chiefs of Ontario and the Attorney General of

Canada dated April 9, 2020 tab 1).

[442] The Panel agrees with the COO that Canada’s failure to adequately fund capital for

Band Representative programs means that First Nations are unable to take full advantage

of their rights or exercise their duties under the CYFSA, such that the discrimination the

Tribunal sought to correct is perpetuated.

[443] Moreover, Canada’s failure to adequately fund the capital needs of Band

Representative programs inhibits the delivery of community-based, culturally appropriate

child and family services to First Nations children.

[444] Canada also submits that a process for First Nations to prioritize their capital needs

within the Department exists. The Panel accepts Ms. Wilkinson's evidence that Canada is

engaging with First Nations on their priorities (see Transcript of the May 14, 2019 Cross-

examination of Joanne Wilkinson, p. 155, lines. 1-20). Again, the Panel believes that

Canada is discussing with First Nations to identify their long-term needs and this is essential.

As explained above, First Nation driven changes, priorities, plans and holistic approach is

ideal if it materializes. The Panel believes that it does in some cases.

[445] In the same vein, Canada submits the requested order would put First Nations Child

and Family Services at the front of the line for funds on every reserve, which would fail to

respect the prioritization identified by individual communities. This could cause delays to

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other important projects identified as a priority by the community. ISC is open to and willing

to explore changes to the process as it currently stands, but that requires technical

conversations that ought to take place during meetings of the CCCW as well as direct

consultations with First Nations communities. The Panel understands this and agrees.

[446] However, in the interim, the orders in this ruling taking into account the need for the

First Nations approval will assist in ensuring that the real needs of First Nations and First

Nations children and families on reserve are addressed expeditiously to respond to gaps

and avoid delays in service delivery.

[447] Moreover, in the event that a First Nations’ priority is to gain more space to offer Band

Representative and prevention services, the Panel finds in light of the evidence, an order

should clarify this ought to be fully funded at actual costs until such time as a new non-

discriminatory and adequate funding formula is developed.

[448] The Panel finds that reliable evidence before the Tribunal also demonstrates that

when some specific rights-holders. First Nations expressed their specific needs and

requested assistance for non-trivial things to support the delivery of services, some of those

reasonable requests were denied.

[449] Wabaseemoong Independent Nations and Asubpeeschoseewagong Netum

Anishinabek (Grassy Narrows First Nation) illustrate the capital and infrastructure issues

facing some Band Representative programs. Both of these First Nations sought reasonable

amounts of funding to meet the capital needs of their programs. Canada denied both claims.

[450] The Panel believes these two First Nations are unable to operate their Band

Representative programs in a manner consistent with the governing legal and ethical

standards. Without adequate space, Band Representatives cannot ensure that client

confidentiality is protected, or that records of personal information are collected, retained,

and disposed of properly. Yet the programs in these two First Nations continue to operate,

despite the inability to meet legislated and ethical confidentiality standards, to provide

community-based, culturally safe child and family services that offer children a connection

to their land, kin networks, language and culture, and a voice within the child protection

system.

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[451] ISC did not apply a substantive equality lens or provide a holistic response that

referred to Jordan’s Principle, possibly because there are no capital funds available for

Jordan’s Principle. Similarly, no information was provided on how to access funds

elsewhere. More importantly, the First Nations provided detailed information about their

specific needs and those did not trigger a comprehensive substantive equality analysis.

[452] The funding requests were handled by the Child and Family Services Reform and

Transformation branch, Ontario Region, ISC and went to ISC’s headquarters. Of note, ISC

was ordered to eliminate the lack of coordination that affect First Nations children and

Canada previously argued the ISC merge was also to respond to the lack of coordination

identified in the Merit Decision amongst other goals.

[453] The evidence is found at Tab 3 of the COO’s record of documents dated April 9,

2020.

Child and Family Services Program

Denied Claim for Payment of Actual Costs – Interim Appeal Process

An appeal can be initiated by a First Nations child and family services

(FNCFS) agency funding recipient or other requester (e.g., Band for Band

Representative funds) once a claim for reimbursement or advance funding for

actuals has been denied or partially denied by the Assistant Deputy Minister,

Children and Family Services Reform, Indigenous Services Canada, pursuant

to the escalation protocol.

…

In rendering a determination on appeal, the following factors may be

considered:

•

Substantive equality and the provision of culturally

appropriate services, including the distinct needs and

circumstances of children and families living on reserve (e.g.,

cultural, historical, and geographical needs and circumstances);

•

The best interests of the children;

Whether the cost, if retroactive, was actually incurred

before the claim for reimbursement was submitted;

Whether the cost has been covered by another

government or funder;

•

Whether the cost is eligible for reimbursement (e.g.,

whether the request can be authorized under the existing Terms

and Conditions of the program); and

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•

Whether the claimant is eligible for funding, as per the

existing Terms and Conditions.

[454] Wabaseemoong’s request was denied. Therefore, it followed the appeals process

and submitted a detailed response. Portions of its rationale are provided below:

Wabaseemoong Independent Nations’ Band Representative program is

called Nigonigawbow, which means “the person that stands ahead” in

Anishinaabemowin. Nigonigawbow describes the protector of children and is

derived from Wabaseemoong’s traditional customary care practices.

Wabaseemoong submitted two claims for Band Representative services for

fiscal year 2019- 2020: one claim for staff and program needs, which was

approved, and one for a modular trailer in which Nigonigawbow would

operate, which was denied. Wabaseemoong appeals the denial of funding for

the modular trailer.

As detailed in Wabaseemoong’s initial and amended submissions for the

trailer, Nigonigawbow requires the following space: offices for the two Band

Representatives, the Social Director, the Secretary, and Human Resources;

a room for records storage; a room for Indigenous dispute resolution circles;

a room for repatriation workers; an Elders’ room; and a larger space for

community consultation and gatherings.

The claim for the trailer was submitted to Indigenous Services Canada (ISC)

on August 8, 2019. The initial submission for the trailer was for $1,196,355;

this amount was later reduced to $898,250 on September 3, 2019, based on

discussions between Wabaseemoong staff and ISC (please see the related

email thread attached as Appendix A). After numerous emails and phone calls

between Wabaseemoong and ISC, the Nigonigawbow submission for the

trailer was ultimately denied by ISC on November 15, 2019, 99 days after the

initial submission. This is 84 days over the 15 day time for processing Band

Representative Services claims prescribed by the Canadian Human Rights

Tribunal in First Nations Child and Family Caring Society of Canada et al v

Canada, 2018 CHRT 4 (para 427).

ISC’s reason for denying funding for the trailer was “expenditures listed in your

payment request for BRS extend beyond the CHRT Order 427” (see enclosed

denial email addressed to Chief Scott). ISC also stated in the denial email to

Chief Scott that “Canada is required to reimburse or fund BRS for Ontario First

Nations based on actual costs and needs to support eligible activities funded

under the Program”.

…

As detailed in Wabaseemoong’s submissions for the trailer, there is no office

or program space at all in the community for Nigonigawbow. Wabaseemoong

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is a semi-remote First Nation in Northwestern Ontario. The community has

severely limited infrastructure; all buildings – residential and business – are

filled beyond capacity. Nigonigawbow staff currently offer programming out of

a corner of the community hall. This is a public space with no washrooms or

kitchen. It is not wheelchair accessible. There is no fire safety equipment. The

doors are broken making the space extremely cold. It is entirely unsuitable for

child welfare programming involving children and families. The Nigonigawbow

office space is in a public shared hallway in the Council chambers, with many

of the same limitations as the programming space. There is no privacy for

client meetings, phone calls, or to receive faxes and materials from Children’s

Aid Societies, nor is there a secure place to store confidential records. There

is nowhere for the Elder to keep medicines and store ceremonial items. All of

these challenges raise serious issues for staff health and safety and the

Nations’ potential exposure to liability due to the lack of confidential office or

record storage space.

There is no alternative space on the reserve (either to rent or purchase) for

Nigonigawbow’s operations. The only alternative would be for the program to

relocate off-reserve which would inhibit the Nations’ ability to offer culturally-

appropriate services, result in gaps in child welfare services for on-reserve

families, and is not in line with the Nations’ priorities.

…ISC’s denial of funding for a trailer for Nigonigawbow is also inconsistent

with the principle of substantive equality, a principle to which the government

is bound pursuant to Section 11 of An Act respecting First Nations, Inuit and

Métis children, youth and families, SC 2019, c 24 (the Act). Section 11 of the

Act provides that “child and family services provided in relation to an

Indigenous child are to be provided in a manner that […] promotes substantive

equality between the child and other children”. Funding of a program is a

service as per First Nations Child and Family Caring Society of Canada et al

v Canada, 2016 CHRT 2. Accordingly, Band Representative Services

funding, as a service provided by Canada, must be provided in a manner that

promotes substantive equality.

Nigonigawbow requires physical space in which to deliver Band

Representative Services and programming. Mainstream and Indigenous child

welfare agencies are provided with funding to meet their capital needs, yet

Wabaseemoong, as a First Nation seeking to deliver its own Band

Representative Services, is being denied funding to meet its capital needs.

This constitutes differential treatment in the provision of child and family

services to the Indigenous children of Wabaseemoong and is contrary to the

principle of substantive equality and the best interests of the child.

In its decision on the merits, First Nations Child and Family Caring Society of

Canada et al v Canada, 2016 CHRT 2, the Tribunal held the following

regarding Band Representative Services:

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Not only does the Band Representative address the need for

culturally relevant services, but it also addresses the goal of

keeping families and communities together and is directly

provided for in Ontario’s Child and Family Services Act.

(Footnote 1: January 2016 Decision at para 348).

[…]

If funding does not correspond to the actual child welfare needs

of a specific First Nation community, then how is it expected to

provide services that are culturally appropriate? With unrealistic

funding, how are some First Nations communities expected to

address the effects of Residential Schools? It will be difficult if

not impossible to do, resulting in more kids ending up in care

and perpetuating the cycle of control that outside forces have

exerted over Aboriginal culture and identity. (Footnote 2:

January 2016 Decision at para 425).

Similar to the Residential Schools era, today, the fate and future

of many First Nations children is still being determined by the

government, whether it is through the application of restrictive

and inadequate funding formulas or through bilateral

agreements with the provinces. The purpose of having a First

Nation community deliver child and family services, and to be

involved through a Band Representative, is to ensure services

are culturally appropriate and reflect the needs of the

community. This in turn may help legitimize the child and family

services in the eyes of the community, increasing their

effectiveness, and ultimately help rebuild individuals, families

and communities that have been heavily affected by the

Residential Schools system and other historical trauma.

(Footnote 3: January 2016 Decision at para 426).

By denying funding for the capital needs associated with Nigonigawbow ISC

is continuing to discriminate against Wabaseemoong and inhibiting the

delivery of culturally-appropriate community-based Band Representative

Services to Indigenous children. The First Nation cannot deliver Band

Representative Services without a safe, secure, confidential space. The

continued delivery of services without a safe, secure, confidential space is

contrary to social work practices and risks contravening the CYFSA. Canada

was ordered to remedy its discrimination against First Nations children in

Ontario by funding Band Representative Services at the “actual cost”; for

Wabaseemoong, this includes a modular building. This is a legal prerogative

Canada must respect.

…

147

We also understand that Canada’s staff may not be aware of the range of

services provided by Nigonigawbow, and may not understand the

infrastructure conditions inWabaseemoong. As such, as part of your decision-

making process we invite you to visit our community to experience the

challenges we face in program and service delivery.

[455] The original denial email was included in the appeals form and reads as follows:

Dear Chief Scott:

This email is in response to the 2019-20 advance request submitted on

September 11, 2019, by Wabaseemoong Independent Nations seeking a

reimbursement based on actual needs for Band Representative Services

(BRS) under the Canadian Human Rights Tribunal (CHRT) decision, Order

427.

Following the payment request in the amount of $1,196,355.00, the

Department requested additional clarifications to support the review process.

Given the complexity of the request as well as the nature of the activities,

additional time to complete the review was requested and an email was sent

to Wabaseemoong Independent Nations regarding the status of the payment

and that the 15-day timeline process had paused.

The Department has now finalized its review and the payment request in the

amount of $1,196,355.00 to support the acquisition of a modular trailer which

would serve as an office building to deliver prevention programming was

considered ineligible as per the First Nation Child and Family Services

(FNCFS) Program Terms and Conditions and the Ontario Recipient Guide for

BRS.

[456] While the Panel has little information about Canada’s response to the appeal, the

COO submits it was denied.

[457] The appeal form contains more information on the request than in the original

request. However, as shown in tab 3 of the COO’s record, there is sufficient evidence for

the Panel to find that it is more probable than not that the original denial was not based on

substantive quality principles and that no alternatives were provided to Wabaseemoong

Independent Nations when the claim was denied. The claim was deemed ineligible as per

the FNCFS Program Terms and Conditions and the Ontario Recipient Guide for Band

Representative Services.

148

[458] This type of situation is precisely what should trigger an adequate substantive

equality analysis according to the Wabaseemoong Independent Nations’ priorities and

specific needs. There are ample reasons in all the Tribunal’s numerous rulings to indicate

what substantive equality is. The Panel finds in light of the above and the remaining

evidence found at tab 3 of the COO’s record of documents, that a case-by-case approach

used by Canada should have yielded a positive result. This also demonstrates a unilateral

decision and a disregard for the real needs of First Nations children and families that form

part of these proceedings.

[459] Furthermore, Canada relies heavily on its discussions with First Nations and

respecting their priorities when this was not done here.

[460] The Panel arrives to a similar conclusion in the situation of Asubpeeschoseewagong

Netum Anishinabek where the Band Representative program operates out of a single room

in a shared trailer in what used to be the Chief and Council Chambers before the leadership

moved out in order to allow the Band Representatives to use the space. Consequently, the

Chief and Council no longer have offices or chambers. Their request to use their surplus

funds was denied. (See tab 4 of the COO's record of documents, April 9, 2020).

[461] While the Panel appreciates that this may not always be the case, these examples

support the COO and the NAN’s positions and some of their requested orders.

[462] In light of the above, the same can be said about Canada’s argument that the

requested order would make child and family services the infrastructure priority for all

communities which could cause delays for other infrastructure projects identified as a priority

by the community. This submission is unconvincing especially if Canada applies a

substantive equality leans to specific needs identified by First Nations.

[463] The Panel believes a further clarification order is necessary, five and a half years

after the Merit Decision and three years after the 2018 CHRT 4 ruling, to be sufficiently

responsive to the discrimination identified in the Merit Decision and subsequent rulings while

complete reform is achieved.

[464] This order could be revisited once new information and/or studies are completed.

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[465] While Ms. Wilkinson, testified that Canada was going beyond the building repair

orders she also admitted to the Chair that there were also 2016 orders to cease the

discrimination according to all the findings in the decision.

THE CHAIR: You understand that the pieces that you referred to were

immediate relief. Do you understand that the Tribunal had phased ---

THE WITNESS: Yes, absolutely.

THE CHAIR: Okay.

THE WITNESS: Yes.

THE CHAIR: And do you recall that in our decision in 2016 we also said cease

the discriminatory practice according to all the findings in the decision?

THE WITNESS: Yes

(see cross-examination of Ms. Johanne Wilkinson dated May 7, 2019 at p.163

lines 5-14).

[466] Some of those 2016 findings clearly addressed Band Representatives and the need

to shift to prevention.

[467] Canada submits that the Tribunal does not have the remedial power to dictate the

specifics of Canada’s replacement policy for funding Band Representative Services. The

Panel has the remedial power to ensure that the systemic discrimination found is eliminated

and does not reoccur and that Canada’s actions are responsive to its orders to cease its

discriminatory practices and reform the FNCFS Program and 1965 Agreement to reflect the

findings in the Merit Decision.

[468] Canada can apply a real substantive equality analysis and adopt a policy that is

responsive to the systemic discrimination without waiting for the Panel to issue clarification

orders. In all fairness, Canada has done this in many instances but there is room for

improvement and consistency such as in this case.

[469] Services have to be delivered in adequate spaces. Not providing adequate space is

preventing the provision of those services.

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[470] The Panel is not dictating the specifics of the replacement policy. It simply ensures

the replacement policy is effective in light of the evidence and its findings and does not

perpetuate discrimination, repeat past flaws and errors:

Despite the discordance between Ontario’s Child and Families Services Act

and AANDC’s policy to no longer fund Band Representatives, Minister

Duncan indicated that “it falls within the responsibilities of First Nation

governments to determine their level of engagement in child welfare matters”

and “we do not foresee the Government of Canada providing funding support

in this area” (Annex, ex. 27 at p.1)

(see Merit Decision at para. 238, emphasis added).

[471] There is a striking resemblance between this finding and Canada’s arguments as

part of this motion: “Canada must now be given time to follow the democratic structures and

rules in place to ensure accountability in spending public funds. Most importantly, there is

no reason to disrupt the current system, which depends on communities to develop and

prioritize their needs”. This argument is one of the main arguments that was rejected in 2016

and systemic discrimination was found.

[472] Another excerpt form the Merit Decision is helpful here:

In terms of infrastructure and capacity building, the 1965 Agreement has not

provided for the cost-sharing of capital expenditures since 1975 (see