JFK Court Report: Recent Cases from Ontario

The Ontario courts were fairly quiet on Aboriginal law in late 2014, however two cases touched on the intersection of Aboriginal rights and family law.

In Brown v. Canada, 2014 ONSC 6967, the Ontario Divisional Court addressed Canada’s appeal of a procedural order certifying a class action brought by Aboriginal individuals who child welfare authorities removed from their homes and placed in non-Aboriginal families between 1965 and 1984. The claim alleges that Canada failed to ensure the Ontario child welfare system protected the identities of Aboriginal children as Aboriginal persons and as a result they suffered a loss of their culture, self-esteem and sense of identity. Canada had agreed to pay the Ontario’s costs for extending its child welfare programs to Indians. The question on this appeal was whether the plaintiffs had a proper claim for breach of fiduciary duty or negligence. The Court upheld the lower court’s decision, finding that the claims were sufficiently made out to continue to trial. In this case, it was arguable that Canada:

  • had a responsibility to act in the best interests of Aboriginal children and its agreement with Ontario was an acknowledgement of its responsibility for Aboriginal persons and children in particular, and
  • ought to have recognized that failure to take reasonable care to ensure the proper administration of child welfare programs could cause harm to Aboriginal children.

This is not the final decision on the matter, but it allows the class action to proceed to trial.

In Hamilton Health Sciences Corp. v. D.H., 2014 ONCJ 603, a Brantford judge held that an 11 year-old girl who was a member of the Six Nations of the Grand River held an Aboriginal right to pursue traditional remedies to treat her leukemia. The Hamilton Health Sciences Corporation sought a protection order under s. 40(4) of the Child and Family Services Act (CFSA) on the basis of medical neglect.  In a brief analysis of the Van der Peet test the court found that the practice of using traditional medicine existed before contact with Europeans, has continued after contact and is an integral part of Six Nations culture. The judge declined to grant a protection order when the child’s mother, her substitute decision-maker, had chosen to exercise their constitutionally protected right to pursue traditional medicine treatments.