Ottawa backed away from commitment to approve child welfare lawsuit, lawyer says

Ottawa is balking at a pledge to consent to the certification of a proposed class action lawsuit over First Nation child welfare — less than two months after the justice and Indigenous services ministers publicly said the federal government wanted to settle the case, according to one of the lawyers on the file.

Justice Canada informed lawyers handling the proposed class action via email Thursday evening that Ottawa was not ready to consent to the certification of the lawsuit, said David Sterns, a lawyer with Toronto-based Sotos LLP, one of three firms handling the litigation. 

Sterns said the federal government served legal documents outlining its opposition to certification on Thursday.

A move to challenge certification would break a public commitment made in late November by Justice Minister David Lametti and Indigenous Services Minister Marc Miller, who jointly said the government would consent to certification — a key step in negotiating a class action settlement.

"This is a step backwards. This is going to lead to a lot more delay in the case and it's reneging on a very public commitment to consent to certification," said Sterns.

"This is a government that says it wants to do the right thing, but it isn't really prepared to get to first base."

A lawsuit needs to be certified by a court in order to become a class action.

The proposed class action was filed with the Federal Court in March 2019. It's seeking $6 billion in compensation for First Nation children affected by the on-reserve child welfare system, and for those who were denied health services Ottawa was required to provide under the policy known as Jordan's Principle.

According to Jordan's Principle, the needs of a First Nations child should always be placed ahead of jurisdictional disputes over funding for health care and other public services.

The plaintiffs in the case are Xavier Moushoom, from Lac Simon Anishnabe Nation, Que., and Jeremy Meawasige from Pictou Landing First Nation in Nova Scotia.

Moushoom was shuffled through 14 foster homes between the ages of nine and 18.

Meawasige was born in 1994 with cerebral palsy, spinal curvature and autism.

Indigenous Services Canada, which is the lead department on the file, said the government needs more time before agreeing to consent to the certification of the lawsuit.

"We have been working in concert with counsel for Moushoom to reach mutually agreed upon terms to certify the class action lawsuit. We are asking for additional time to reach these terms, given the significance of this matter," the department said in a statement. 

"As we have said, we must get this right. We continue to work with all parties to move this important matter forward."

Sterns said his side is now preparing for a certification hearing before a Federal Court judge in September — where, without a consent agreement, the two sides will have to argue over why the case should or should not be certified.

"[Consent to certification] was going to remove significant delays and procedures and really streamline the process," he said.

"So their announcement is a serious disappointment and it's a big step backwards in terms of their prior commitments."

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The government, from Prime Minister Justin Trudeau on down, has said repeatedly that it wants to settle and compensate all individuals affected by the on-reserve child welfare system.

Justice Minister David Lametti and Indigenous Services Minister Marc Miller announced on Nov. 25, 2019 that the government would be moving forward with settlement talks on the lawsuit and would consent to its certification.

"The Government of Canada is committed to seeking a comprehensive settlement on compensation that will ensure long-term benefits for individuals and families and enable community healing," said the statement at the time.

"To that end, we will work with plaintiffs' counsel with the goal of moving forward with certification of the Xavier Moushoom and Jeremy Meawasige v. The Attorney General of Canada class action."

The announcement came on the first day of a Federal Court hearing on Ottawa's challenge of a Canadian Human Rights Tribunal compensation order which is part of a separate discrimination case linked to the on-reserve child welfare system. 

The human rights tribunal ruled in January 2016 that Ottawa discriminated against First Nation children by knowingly under-funding on-reserve child welfare services.

The federal government is now seeking a judicial review to quash a tribunal compensation order issued in September that Ottawa pay $40,000 to First Nation children taken from their families and communities since 2006 through the on-reserve child welfare system, and in Yukon.

Miller said in December that the government preferred to settle the human rights tribunal case through the Moushoom class action.

"We will be sitting down with parties and seeing where there is a meeting of minds and move forward on a compensation package, a compensation model that is fair and equitable," said Miller at the time.

Since then, Indigenous Services and Justice Canada officials have held separate talks with the Moushoom legal team and the parties to the human rights tribunal case — which include the First Nation Child and Family Caring Society and the Assembly of First Nations.

Sterns said there have been no discussions to date on bringing the two separate talks together.

"Whether or not there is going to be a more joining up of the forces, it remains to be seen," said Sterns.

"But, so far, it really has been proceeding with two parties that, frankly, aren't much able to talk to each other."