Moushoom v. Canada (Attorney General), 2021 FC 1225

Date: 20211126

Docket: T-402-19 T-141-20 Citation: 2021 FC 1225

Ottawa, Ontario, November 26, 2021

PRESENT: The Honourable Madam Justice Aylen CLASS PROCEEDING

BETWEEN:

XAVIER MOUSHOOM, JEREMY MEAWASIGE (by his litigation guardian, JONAVON JOSEPH MEAWASIGE) AND JONAVON JOSEPH MEAWASIGE

Plaintiffs

and

THE ATTORNEY GENERAL OF CANADA

Defendant

BETWEEN:

ASSEMBLY OF FIRST NATIONS, ASHLEY DAWN LOUISE BACH, KAREN OSACHOFF, MELISSA WALTERSON, NOAH BUFFALO-JACKSON (by his litigation guardian, CAROLYN BUFFALO), CAROLYN BUFFALO AND DICK EUGENE JACKSON also known as RICHARD JACKSON

Plaintiffs

and

HER MAJESTY THE QUEEN AS REPRESENTED BY THE ATTORNEY GENERAL OF CANADA

Defendant

ORDER AND REASONS

UPON MOTION by the Plaintiffs, on consent and determined in writing pursuant to Rule 369 of the Federal Courts Rules, for an order:

(a) Granting the Plaintiffs an extension of time to make this certification motion past the deadline in Rule 334.15(2)(b);

(b) Certifying this proceeding as a class proceeding and defining the class;

(C) Stating the nature of the claims made on behalf of the class and the relief sought by the class;

(d) Stipulating the common issues for trial;

(e) Appointing the Plaintiffs specified below as representative plaintiffs;

(f) Approving the litigation plan; and

(g) Other relief;

CONSIDERING the motion materials filed by the Plaintiffs;

CONSIDERING that the Defendant has advised that the Defendant consents in whole to the motion as filed;

CONSIDERING that the Court is satisfied, in the circumstances of this proceeding, that an extension of time should be granted to bring this certification motion past the deadline prescribed in Rule 334.15(2)(b);

CONSIDERING that while the Defendant’s consent reduces the necessity for a rigorous approach to the issue of whether this proceeding should be certified as a class action, it does not relieve the Court of the duty to ensure that the requirements of Rule 334.16 for certification are met [see Varley v Canada (Attorney General), 2021 FC 589];

CONSIDERING that Rule 334.16(1) of the Federal Courts Rules provides:

Subject to subsection (3), a judge shall, by order, certify a proceeding as a class proceeding if (a) the pleadings disclose a reasonable cause of action; (b) there is an identifiable class of two or more persons; (c) the claims of the class members raise common questions of law or fact, whether or not those common questions predominate over questions affecting only individual members; (d) a class proceeding is the preferable procedure for the just and efficient resolution of the common questions of law or fact; and (e) there is a representative plaintiff or applicant who (i) would fairly and adequately represent the interests of the class, (ii) has prepared a plan for the proceeding that sets out a workable method of advancing the proceeding on behalf of the class and of notifying class members as to how the proceeding is progressing, (iii) does not have, on the common questions of law or fact, an interest that is in conflict with the interests of other class members, and (iv) provides a summary of any agreements respecting fees and disbursements between the representative plaintiff or applicant and the solicitor of record.

Sous réserve du paragraphe (3), le juge autorise une instance comme recours collectif si les conditions suivantes sont réunies : a) les actes de procédure révèlent une cause d’action valable; b) il existe un groupe identifiable formé d’au moins deux personnes; c) les réclamations des membres du groupe soulèvent des points de droit ou de fait communs, que ceux-ci prédominent ou non sur ceux qui ne concernent qu’un membre; d) le recours collectif est le meilleur moyen de régler, de façon juste et efficace, les points de droit ou de fait communs; e) il existe un représentant demandeur qui : (i) représenterait de façon équitable et adéquate les intérêts du groupe, (ii) a élaboré un plan qui propose une méthode efficace pour poursuivre l’instance au nom du groupe et tenir les membres du groupe informés de son déroulement, (iii) n’a pas de conflit d’intérêts avec d’autres membres du groupe en ce qui concerne les points de droit ou de fait communs, (iv) communique un sommaire des conventions relatives aux honoraires et débours qui sont intervenues entre lui et l’avocat inscrit au dossier.

CONSIDERING that, pursuant to Rule 334.16(2), all relevant matters shall be considered in a determination of whether a class proceeding is the preferable procedure for the just and efficient resolution of the common questions of law or fact, including whether: (a) the questions of law or fact common to the class members predominate over any questions affecting only individual members; (b) a significant number of the members of the class have a valid interest in individually controlling the prosecution of separate proceedings; (c) the class proceeding would involve claims that are or have been the subject of any other proceeding; (d) other means of resolving the claims are less practical or less efficient; and (e) the administration of the class proceeding would create greater difficulties than those likely to be experienced if relief were sought by other means;

CONSIDERING that:

(a) The conduct of the Crown at issue in this proposed class action proceeding, as set out in the Consolidated Statement of Claim, concerns two alleged forms of discrimination against First Nations children: (i) the Crown’s funding of child and family services for First Nations children and the incentive it has created to remove children from their homes; and (ii) the Crown’s failure to comply with Jordan’s Principles, a legal requirement that aims to prevent First Nations children from suffering gaps, delays, disruptions or denials in receiving necessary services and products contrary to their Charter-protected equality rights.

(b) As summarized by the Plaintiffs in their written representations, at its core, the Consolidated Statement of Claim alleges that:

(i) The Crown has knowingly underfunded child and family services for First Nations children living on Reserve and in the Yukon, and thereby prevented child welfare service agencies from providing adequate Prevention Services to First Nations children and families.

(ii) The Crown has underfunded Prevention Services to First Nations children and families living on Reserve and in the Yukon, while fully funding the costs of care for First Nations children who are removed from their homes and placed into out-of-home care, thereby creating a perverse incentive for First Nations child welfare service agencies to remove First Nations children living on Reserve and in the Yukon from their homes and place them in out-of-home care.

(iii) The removal of children from their homes caused severe and enduring trauma to those children and their families.

(iv) Not only does Jordan’s Principle embody the Class Members’ equality rights, the Crown has also admitted that Jordan’s Principle is a “legal requirement” and thus an actionable wrong. However, the Crown has disregarded its obligations under Jordan’s Principle and thereby denied crucial services and products to tens of thousands of First Nations children, causing compensable harm.

(v) The Crown’s conduct is discriminatory, directed at Class Members because they were First Nations, and breached section 15(1) of the Charter, the Crown’s fiduciary duties to First Nations and the standard of care at common and civil law.

(c) With respect to the first element of the certification analysis (namely, whether the pleading discloses a reasonable cause of action), the threshold is a low one. The question for the Court is whether it is plain and obvious that the causes of action are doomed to fail [see Brake v Canada (Attorney General), 2019 FCA 274 at para 54]. Even without the Crown’s consent, I am satisfied that the Plaintiffs have pleaded the necessary elements for each cause of action sufficient for purposes of this motion, such that the Consolidated Statement of Claim discloses a reasonable cause of action.

(d) With respect to the second element of the certification analysis (namely, whether there is an identifiable class of two or more persons), the test to be applied is whether the Plaintiffs have defined the class by reference to objective criteria such that a person can be identified to be a class member without reference to the merits of the action [see Hollick v Toronto (City of), 2001 SCC 68 at para 17]. I am satisfied that the proposed class definitions for the Removed Child Class, Jordan’s Class and Family Class (as set out below) contain objective criteria and that inclusion in each class can be determined without reference to the merits of the action.

(e) With respect to the third element of the certification analysis (namely, whether the claims of the class members raise common questions of law or fact), as noted by the Federal Court of Appeal in Wenham v Canada (Attorney General), 2018 FCA 199 at para 72, the task under this part of the certification determination is not to determine the common issues, but rather to assess whether the resolution of the issues is necessary to the resolution of each class member’s claim. Specifically, the test is as follows:

The commonality question should be approached purposively. The underlying question is whether allowing the suit to proceed as a representative one will avoid duplication of fact-finding or legal analysis. Thus an issue will be "common" only where its resolution is necessary to the resolution of each class member's claim. It is not essential that the class members be identically situated vis-à-vis the opposing party. Nor is it necessary that common issues predominate over non-common issues or that the resolution of the common issues would be determinative of each class member's claim. However, the class members' claims must share a substantial common ingredient to justify a class action. Determining whether the common issues justify a class action may require the court to examine the significant of the common issues in relation to individual issues. In doing so, the court should remember that it may not always be possible for a representative party to plead the claims of each class member with the same particularity as would be required in an individual suit. (Western Canadian Shopping Centres, above at para 39; see also Vivendi Canada Inc. v. Dell'Aniello, 2014 SCC 1, [2014] 1 S.C.R. 3 at paras 41 and 44-46.)

Having reviewed the common issues (as set out below), I am satisfied that the issues share a material and substantial common ingredient to the resolution of each class member’s claim. Moreover, I agree with the Plaintiff that the commonality of these issues is analogous to the commonality of similar issues in institutional abuse claims which have been certified as class actions (such as the Indian Residential Schools and the Sixties Scoop class action litigation). Accordingly, I find that the common issue element is satisfied.

(f) With respect to the fourth element of the certification analysis (namely, whether a class proceeding is the preferable procedure for the just and efficient resolution of the common questions of fact and law), the preferability requirement has two concepts at its core: (i) whether the class proceeding would be a fair, efficient and manageable method of advancing the claim; and (ii) whether the class proceeding would be preferable to other reasonably available means of resolving the claims of class members. A determination of the preferability requirement requires an examination of the common issues in their context, taking into account the importance of the common issues in relation to the claim as a whole, and may be satisfied even where there are substantial individual issues [see Brake, supra at para 85; Wenham, supra at para 77 and Hollick, supra at paras 27-31]. The Court’s consideration of this requirement must be conducted through the lens of the three principle goals of class actions, namely judicial economy, behaviour modification and access to justice [see Brake, supra at para 86, citing AIC Limited v Fischer, 2013 SCC 69 at para 22].

(g) Having considered the above-referenced principles and the factors set out in Rule 334.16(2), I am satisfied a class proceeding is the preferable procedure for the just and efficient resolution of the common questions of fact and law. Given the systemic nature of the claims, the potential for significant barriers to access to justice for individual claimants and the Plaintiffs’ stated concerns regarding the other means available for resolving the claims of class members, I am satisfied that the proposed class action would be a fair, efficient and manageable method of advancing the claims of the class members.

(h) With respect to the fifth element of the certification analysis (namely, whether there are appropriate proposed representatives), I am satisfied, having reviewed the affidavit evidence filed on the motion together with the detailed litigation plan, that the proposed representative plaintiffs (as set out below) meet the requirements of Rule 334.16(1)(e);

CONSIDERING that the Court is satisfied that all of the requirements for certification are met and that the requested relief should be granted;

THIS COURT ORDERS that:

1. The Plaintiffs are granted an extension of time, nunc pro tunc, to bring this certification motion past the deadline in Rule 334.15(2)(b) of the Federal Courts Rules.

2. For the purpose of this Order and in addition to definitions elsewhere in this Order, the following definitions apply and other terms in this Order have the same meaning as in the Consolidated Statement of Claim as filed on July 21, 2021:

(a) “Class” means the Removed Child Class, Jordan’s Class and Family Class, collectively.

(b) “Class Counsel” means Fasken Martineau Dumoulin LLP, Kugler Kandestin LLP, Miller Titerle + Co., Nahwegahbow Corbiere and Sotos LLP.

(c) “Class Members” mean all persons who are members of the Class.

(d) “Class Period” means:

(i) For the Removed Child Class members and their corresponding Family Class members, the period of time beginning on April 1, 1991 and ending on the date of this Order; and

(ii) For the Jordan’s Class members and their corresponding Family Class members, the period of time beginning on December 12, 2007 and ending on the date of this Order.

(e) “Family Class” means all persons who are brother, sister, mother, father, grandmother or grandfather of a member of the Removed Child Class and/or Jordan’s Class.

(f) “First Nation” and “First Nations” means Indigenous peoples in Canada, including the Yukon and the Northwest Territories, who are neither Inuit nor Métis, and includes:

(i) Individuals who have Indian status pursuant to the Indian Act, R.S.C., 1985, c.I-5 [Indian Act];

(ii) Individuals who are entitled to be registered under section 6 of the Indian Act at the time of certification;

(iii) Individuals who met band membership requirements under sections 10-12 of the Indian Act and, in the case of the Removed Child Class members, have done so by the time of certification, such as where their respective First Nation community assumed control of its own membership by establishing membership rules and the individuals were found to meet the requirements under those membership rules and were included on the Band List; and

(iv) In the case of Jordan’s Class members, individuals, other than those listed in sub-paragraphs (i)-(iii) above, recognized as citizens or members of their respective First Nations whether under agreement, treaties or First Nations’ customs, traditions and laws.

(g) “Jordan’s Class” means all First Nations individuals who were under the applicable provincial/territorial age of majority and who during the Class Period were denied a service or product, or whose receipt of a service or product was delayed or disrupted, on grounds, including but not limited to, lack of funding or lack of jurisdiction, or as a result of a jurisdictional dispute with another government or governmental department.

(h) “Removed Child Class” means all First Nations individuals who:

(i) Were under the applicable provincial/territorial age of majority at any time during the Class Period; and

(ii) Were taken into out-of-home care during the Class Period while they, or at least one of their parents, were ordinarily resident on a Reserve.

(i) “Reserve” means a tract of land, as defined under the Indian Act, the legal title to which is vested in the Crown and has been set apart for the use and benefit of an Indian band.

3. This proceeding is hereby certified as a class proceeding against the Defendant pursuant to Rule 334.16(1) of the Federal Courts Rules.

4. The Class shall consist of the Removed Child Class, Jordan’s Class and Family Class, all as defined herein.

5. The nature of the claims asserted on behalf of the Class against the Defendant is constitutional, negligence and breach of fiduciary duty owed by the Crown to the Class.

6. The relief claimed by the Class includes damages, Charter damages, disgorgement, punitive damages and exemplary damages.

7. The following persons are appointed as representative plaintiffs:

(a) For the Removed Child Class: Xavier Moushoom, Ashley Dawn Louise Bach and Karen Osachoff;

(b) For the Jordan’s Class: Jeremy Meawasige (by his litigation guardian, Jonavon Joseph Measwasige) and Noah Buffalo-Jackson (by his litigation guardian, Carolyn Buffalo); and

(c) For the Family Class: Xavier Moushoom, Jonavon Joseph Meawasige, Melissa Walterson, Carolyn Buffalo and Dick Eugene Jackson (also known as Richard Jackson),

all of whom are deemed to constitute adequate representative plaintiffs of the Class.

8. Class Counsel are hereby appointed as counsel for the Class.

9. The proceeding is certified on the basis of the following common issues:

(a) Did the Crown’s conduct as alleged in the Consolidated Statement of Claim [Impugned Conduct] infringe the equality right of the Plaintiffs and Class Members under section 15(1) of the Canadian Charter of Rights and Freedoms? More specifically:

(i) Did the Impugned Conduct create a distinction based on the Class Members’ race, or national or ethnic origin?

(ii) Was the distinction discriminatory?

(iii) Did the Impugned Conduct reinforce and exacerbate the Class Members’ historical disadvantages?

(iv) If so, was the violation of section 15(1) of the Charter justified under section 1 of the Charter?

(v) Are Charter damages an appropriate remedy?

(b) Did the Crown owe the Plaintiffs and Class Members a common law duty of care?

(i) If so, did the Crown breach that duty of care?

(c) Did the Crown breach its obligations under the Civil Code of Québec? More specifically:

(i) Did the Crown commit fault or engage its civil liability?

(ii) Did the Impugned Conduct result in losses to the Plaintiffs and Class Members and if so, do such losses constitute injury to each of the Class Members?

(iii) Are Class Members entitled to claim damages for the moral and material damages arising from the foregoing?

(d) Did the Crown owe the Plaintiffs and Class Members a fiduciary duty?

(i) If so, did the Crown breach that duty?

(e) Can the amount of damages payable by the Crown be determined partially under Rule 334.28(1) of the Federal Courts Rules on an aggregate basis?

(i) If so, in what amount?

(f) Did the Crown obtain quantifiable monetary benefits from the Impugned Conduct during the Class Period?

(i) If so, should the Crown be required to disgorge those benefits?

(ii) If so, in what amount?

(g) Should punitive and/or aggravated damages be awarded against the Crown?

(i) If so, in what amount?

10. The Plaintiffs’ Fresh as Amended Litigation Plan, as filed November 2, 2021 and attached hereto as Schedule “A”, is hereby approved, subject to any modifications necessary as a result of this Order and subject to any further orders of this Court.

11. The form of notice of certification, the manner of giving notice and all other related matters shall be determined by separate order(s) of the Court.

12. The opt-out period shall be six months from the date on which notice of certification is published in the manner to be specified by further order of this Court.

13. The timetable for this proceeding through to trial shall also be determined by separate order(s) of the Court.

14. Pursuant to Rule 334.39(1) of the Federal Courts Rules, there shall be no costs payable by any party for this motion.

Blank	“Mandy Aylen”
Blank	Judge

 

ANNEX A