Canada: "Sixties’ Scoop" Class Action Certified

Last Updated: December 13 2013
Article by Gillian Hnatiw and Rebecca Case

Between December 1, 1965 and December 31, 1984, Ontario welfare authorities, empowered by the Federal Crown, removed thousands of aboriginal children from their families and communities and placed them in non-aboriginal homes.  Known as the 'Sixties' Scoop', many aboriginal communities allege that this resulted in loss of identity and mental and physical harm to the 'scooped' children.  A class action is now advanced against the Federal Crown, on behalf of these children alleging that this was a policy of systemic assimilation intentionally designed to destroy first nations communities and culture.

On September 27, 2013, Justice Belobaba released his reasons certifying the action under the Class Proceedings Act, 1992 (Brown v. Attorney General (Canada), 2013 ONSC 5637).  These reasons are the result of the second hearing of the certification motion, the order from the first certification hearing having been overturned by the Court of Appeal on the grounds that it was, essentially, procedurally unfair to grant certification before plaintiff's counsel had properly articulated a viable cause of action (as discussed in an earlier blog post, The Perils of Poor Pleadings).

In 1965, the Federal Crown entered a funding agreement with Ontario known as the Canada-Ontario Welfare Services Agreement (the "1965 Agreement") that allowed the expansion of provincial welfare services, including child protection and placement services, to "Indians with reserve status".  Under the 1965 Agreement, thousands of First Nations children were found to be in need of protection by the provincial welfare authorities.  As the 1965 Agreement did not provide that these children were to be placed in aboriginal homes whenever possible, or ascribe any importance to the preservation of their culture and identity, these children were routinely taken off reserve and placed in non-aboriginal homes with court approval. The plaintiffs now allege that by empowering the provincial welfare authorities to 'scoop' them out of their home communities in this manner, the Federal Crown breached its fiduciary duty and common law duty of care to protect and preserve their culture and identity. The impact of these alleged breaches, according to the evidence before Justice Belobaba, has resulted in profound and emotional and psychological damage.

The two most significant legal aspects of this decision are Justice Belobaba's examination of the claims for breach of fiduciary duty and negligence and his analysis of whether either claim offers a viable cause of action for the purposes of certification.  Recognizing that the "cause of action hurdle" set by s. 5(1)(a) of the Class Proceedings Act, 1992 is a low one, in that the plaintiffs must do no more than show that the claim is not "doomed to fail" in order to clear it, Justice Belobaba concluded that both claims offer "more than a glimmer" of a cause of action to the plaintiffs as pleaded.

In analyzing the fiduciary duty claim, Justice Belobaba began by recognizing that both fiduciary duties and aboriginal rights are dynamic, rapidly evolving areas of law.  Consequently, the cause of action hurdle must be set even lower when evaluating the viability of such claims.  Although public law duties do not typically give rise to fiduciary relationships and the existence of a fiduciary relationship alone does not impose a generalized duty or mean that every aspect of the relationship is fiduciary in nature, Justice Belobaba accepted that it was nonetheless possible for one to arise in one of two ways on the facts as pleaded. 

First, such a duty may arise as a result of the Federal Crown assuming a high degree of discretionary control over the plaintiffs' aboriginal culture and identify.  Although only the aboriginal interest in Indian lands has been previously recognized as attracting such a duty from the Crown, Justice Belobaba reasoned that aboriginal culture and identity are akin to the aboriginal interest in land. Like land, culture and identity are not the creations of the legislative or executive branches of government but constitute pre-existing, distinct, and complete legal entitlements. If it has been recognized that the Crown owes a fiduciary duty to preserve aboriginal lands in trust for them collectively as a people, could a similar duty not be recognized with respect to the preservation of their culture and identity?

Secondly, Justice Belobaba also found that there was "at least a glimmer" of actionability in the allegation that the Federal Crown, in empowering the provincial welfare authorities to intervene "in the best interests" of vulnerable, on-reserve children, whose aboriginal and cultural identity stood to be adversely affected by the fiduciary exercise of discretion or control, should have done more to ensure the preservation of aboriginal culture and identify when it entered into the 1965 Agreement.  In failing to do so, it is arguable that the Crown acted disloyally towards those children and breached its duty to them as fiduciaries.

With respect to the allegations in negligence, Justice Belobaba analyzed whether the alleged duty of care - i.e. the duty to preserve and protect aboriginal culture and identity -- could be recognized as a new category of negligence under the two stage Anns-Cooper test.  In stage one, given his findings on the fiduciary relationship, the real question was one of proximity.  Justice Belobaba found that the relationship between the Federal Crown and the aboriginal peoples of Canada was sufficiently close and direct that a court could arguably impose an obligation on the crown to take reasonable care not to cause damage to the psychological and emotional well-being of the on-reserve children. Justice Belobaba then rejected the Federal Crown's arguments that this prima facie duty should be negated by broader policy considerations.  In sum, he concluded that it was not plain and obvious that a duty in negligence could not be found in the facts as pleaded.

While it remains to be seen whether the plaintiffs will be successful on the merits of the case, Justice Belobaba's reasons make it clear that the claims are sufficiently pleaded in both breach of fiduciary duty and negligence.  Accordingly, he concluded that "the courtroom door should not be closed to [the class members]" and issued an order certifying the class action. 

The Federal Crown has sought leave to appeal Justice Belobaba's decision.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Rebecca Case
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