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