This case is a proposed class action regarding discrimination against Indigenous youth in care and their families. The disproportionate representation of Indigenous youth in state care from the 1990s to near present is commonly referred to as the “Millenium Scoop”. The term highlights the continuation of colonial policy affecting Indigenous youth from the earlier “Sixties Scoop”. Both eras of colonial policy resulted in removing a heart-breaking number of Indigenous children from their families and communities, causing serious cascading harms.

This class action was brought in Ontario, but similar cases were brought in British Columbia and Quebec. The Ontario action includes claims on behalf of all Indigenous children off-reserve who were removed by child services, and the family members caring for those children at the time, since 1991 until only a few years ago. These claimants argue that Canada and Ontario violated their sections 7 and 15 Charter rights to security of the person and equality.

In Ontario, while the legislative structure, funding, and policy direction is governed by the Province, the Province has delegated the administration of child protection to regional Children’s Aid societies (“CASs”). The certification judge held that while individuals are free to challenge the CAS which administered the decision to remove themselves/their children from their families, because the Charter applies to the individual CASs, the Crown itself was not liable for the actions of its delegated entities.

BCCLA intervening before the Court of Appeal for Ontario to ensure that Charter rights and damages are meaningful to hold government accountable, even where certain programs have been delegated. BCCLA’s submissions provide a novel legal framework to address the question of residual Crown liability when it has delegated delivery of public programs to a specific public bodies.

Residual Charter liability for the government through both “actions” and/or “inaction” should be found where there is a “nexus” between the delegating government and the administrating public entity. In determining whether a nexus exists in a specific case, the Court should assess a non-exhaustive list of factors. In the context of this appeal, these factors include:

1. Whether the delegating government retains oversight and intervention powers;

2. Whether delegation is subject to legally enforceable conditions; and

3. The existence of a fiduciary relationship between the government and program recipients (e.g. Indigenous children).

On a principled basis, the Supreme Court of Canada has held that the Crown should not be allowed to evade its constitutional responsibilities by delegating the implementation of their policies and programs to private entities. Absolving governments – which have far greater resources than individual bodies like CASs – of residual Charter liability could leave Charter claimants without the remedy that a court has determined under s. 24(1) is “appropriate and just”. Failing to impose residual Charter liability could create perverse incentives for governments to outsource certain public programs.