(2010), 102 O.R. (3d) 493 (S.C.J.) (Released May 26, 2010)
Class Actions – The Crown's Duty to Aboriginal
From 1965 to 1984, welfare authorities in Ontario removed many
aboriginal children from their communities and placed them with
non-aboriginal foster or adoptive parents in what is referred to as
the "Sixties Scoop". The Plaintiffs sought certification
of a class action against the Federal Crown, which had entered into
an agreement with Ontario to provide funding for Ontario to deliver
provincial welfare programs to registered Indians with reserve
status. The Plaintiffs alleged that the Federal Crown had
wrongfully delegated its responsibility to aboriginal persons by
entering into an agreement with Ontario that authorized a child
welfare program that systematically eradicated the children's
aboriginal culture, society, language, customs, traditions and
spirituality. The Plaintiffs adduced evidence that loss of cultural
identity caused low self-esteem, depression, anxiety, suicide,
substance abuse, violence and other difficulties for aboriginal
individuals, as well as problems for aboriginal communities. The
Crown sought to strike the claim for failing to disclose a
reasonable cause of action.
Pursuant to the Class Proceedings Act, 1992, the court
is required to certify a proceeding as a class proceeding if: (a)
the pleadings disclose a cause of action; (b) there is an
identifiable class; (c) the claims of the class members raise
common issues of fact or law; (d) a class proceeding would be the
preferable procedure; and (e) there is a representative plaintiff
who would adequately represent the interests of the class without
conflict of interest and who has produced a workable litigation
With respect to whether the pleadings disclosed a cause of
action, the proposed claim was based on five causes of action: (1)
breach of the honour of the Crown; (2) the actionable wrong of
identity genocide of children; (3) violation of aboriginal rights;
(4) breach of fiduciary duty; and (5) negligence. The court found
that there is no independent cause of action based on the honour of
the Crown, and that the identity of genocide claim was not viable
as a tort because: (i) various international covenants and
conventions are not part of Ontario's civil law; and, (ii) the
Federal Crown's execution of the Canada-Ontario Welfare
Services Agreement is not an act or omission intended to destroy,
in whole or in part, an identifiable group of persons. With respect
to the claim of violation of aboriginal rights, the court found
that being or identifying oneself as an aboriginal is not a right,
but rather a legal status from which aboriginal rights arise. Thus,
the first three causes of action disclosed no cause of action.
With respect to the claims of breach of fiduciary duty and
negligence, the court found that the pleadings did not disclose a
cause of action in relation to the Federal Crown's having
entered into an agreement with Ontario for the provision of child
welfare programs to aboriginal children, but that it was not plain
and obvious that there was no breach of fiduciary duty or
negligence when the Federal Crown allegedly did nothing to stop the
Ontario system from operating in a way that was harmful to
aboriginal children. The court thus struck out the claim as
pleaded, but gave the Plaintiffs leave to amend the claim in
respect of breach of fiduciary duty and negligence.
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