This class action was brought on behalf of Métis and non-status Indian survivors of the “Sixties Scoop” who were excluded from the Sixties Scoop class action settlement, which only extended to Inuit and status Indian persons.
The plaintiffs alleged that Canada owed both fiduciary and common law duties to Métis and non-status Indian survivors of the Sixties Scoop, which Canada breached by failing to ensure provincial child welfare systems provided appropriate services that protected their Indigenous culture and identity. The Court found that Canada owed no common-law or fiduciary duty of care to Métis and non-status Indian Sixties Scoop survivors except in relation to Saskatchewan’s “Adopt Indian Métis” (AIM) program, which Canada funded.
Background
The Sixties Scoop refers to a period beginning in the 1960s when provincial child welfare authorities removed Indigenous children from their families and communities at an accelerated rate and placed them into non-Indigenous foster and adoptive homes across Canada and internationally. The Sixties Scoop class action settlement arose out of Brown v. Canada, in which the Ontario Superior Court of Justice found that Canada had breached a common-law duty to Sixties Scoop survivors in Ontario by failing to take reasonable steps to prevent the loss of their Indigenous culture and identity. Several similar class actions were eventually consolidated into one national class action settlement in Riddle v. Canada.
Despite objections, the final Sixties Scoop class action settlement agreement excluded Métis and non-status survivors as some of the federal-provincial child welfare funding agreements did not apply to Métis or non-status Indians and the Court held that it had no way to determine which Métis and non-status survivors would be eligible for compensation. The settlement agreement provided that there was nothing precluding Métis and non-status survivors from a making a separate claim against Canada or the provinces.
Decision
Statutory Limitations Period
Canada brought a cross-motion asking the Court to dismiss the monetary claims because they were brought outside of the applicable limitation period and asking the Court to certify the limitations period as an additional common issue. The Court rejected Canada’s arguments and dismissed the cross-motion, finding that it would be unfair to apply the limitation period on the basis that the cause of action could not have reasonably been discovered by class all members as early as Canada alleged. The Court noted that there are many reasons individual class members may be unaware of or disconnected from their Indigenous culture and identity, and that there was no evidence that, by 2015, the Sixties Scoop was sufficiently well-known by the general public to justify finding that class members should have been aware of it.
Duty of Care to the Entire Class
The Court found that, with the exception of the claims related to Saskatchewan’s AIM program, Canada did not owe a duty of care towards Métis and non-status Sixties Scoop survivors as the decision to exclude Métis and non-status Indian children from federal child welfare funding was a core policy decision, and thus immune from liability, rejecting arguments that the decision to exclude Métis and non-status Indian children from federal funding was made in bad faith, related to irrational categories of Indigeneity and made to save money at the expense of Métis and non-status Indians.
The Court acknowledged the changes to Indian Act status and cultural continuity since the claim period but held that this was not enough to establish bad faith, noting: “financial considerations are one of the hallmarks of core policy decisions and cannot logically suffice to take these decisions out of the sphere of immunity.” The Court held that granting judgment in favour of the entire class “would effectively entail a finding of liability without fault, which is inimical to the principles of tort law” and that if reconciliatory justice requires compensation for all class member, “it will need to be addressed outside the judicial forum.”
The Court rejected arguments that the historical relationship between Indigenous Peoples and Canada created a duty of care, finding that such a relationship, without more, does not automatically establish a private law duty of care.
Duty of Care to class members apprehended through the AIM Program
The AIM program was developed to help facilitate the increased placement and adoption of Indian (status and non-status) and Métis children in Saskatchewan through an advertising campaign which broadcasted and published the children available for adoption and accelerated the adoption process once a potential family expressed interest. The AIM program, funded primarily by Canada from 1968 until at least 1972, resulted in hundreds of Indian and Métis children being adopted into non-Indigenous homes throughout Canada, the United States and internationally.
By funding a program explicitly developed to facilitate the adoption of Indian and Métis children, the Court found that Canada had breached a duty of care owed to these class members, and that the foreseeable harm to Indigenous culture and identity through the apprehension and adoption of children through the AIM program could not be shielded by policy immunity. Therefore, the Court held, Canada owed a duty of care to children apprehended through the AIM program.
Ms. Nora Cummings, a former president of the Saskatchewan Native Women’s Association, is seen holding two advertisements of individual children published in newspapers by the AIM program. [Photo from Reasons for Judgement]
Fiduciary Duty
Based on the finding that the federal government did not exercise control, discretionary or otherwise, in relation to provincial child welfare decisions about Métis and non-status Indian children, the Court found that no fiduciary duty could be established.
Conclusion
This is an important decision because it provides a path to some reconciliatory justice for the Métis and non-status survivors of the Sixties Scoop who were adopted out through the AIM program. However, for those Métis and non-status survivors adopted out though other programs, this decision marks another hurdle on the path toward reconciliation and justice.
This case summary provides our general comments on the case discussed and should not be relied on as legal advice. If you have any questions about this case or any similar issue, please contact any of our lawyers.
See CanLII for the Reasons for Judgement.