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 gapsand 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 Agenciesability 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  
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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  
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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  
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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