Sotos LLP (Toronto) and Kugler Kandestin LLP (Montreal) have launched a lawsuit against the Federal Government in Federal Court seeking $3.05 billion in damages on behalf of First Nations youth, both on- and off-Reserve, who have been subject to discrimination by the Federal Government.
The discrimination has taken two forms. First, the Government's chronic underfunding of First Nations Child and Family Services has led to epidemic numbers of First Nations youth being removed from their homes and communities and placed into out-of-home care – a practice known as the "Millennial Scoop." Second, the Government's failure to honor and abide by Jordan's Principle has resulted in tens of thousands of First Nations youth being denied necessary services and products due to bureaucratic wrangling over which level of government (federal or provincial) or which department within the Federal Government will cover the costs. Both practices were found by the Canadian Human Rights Tribunal ("Tribunal") to constitute systemic discrimination against First Nations youth in the landmark decision of First Nations Child and Family Caring Society of Canada et al. v. Canada, 2016 CHRT 2.
This same conduct has been strongly criticized by independent reviews, reports, and audits, including two reviews by the Auditor General of Canada, and by the international community. Most importantly, the Report of the Royal Commission on Aboriginal Peoples and the Truth and Reconciliation Commission cited the Government's underfunding of child youth services on Reserves as the most serious and pressing concern facing First Nations; the Commission made this the subject of its first Call to Action. The third Call to Action in the Report urged the Government to faithfully honor Jordan's Principle. These clearly prioritized calls to action underscore the need for this Government to respond promptly and fairly to the needs of plaintiffs in this class action.
This Government and its predecessors fought in the Tribunal for nine years over whether its funding of child and youth services on Reserves and its failure to comply with Jordan's Principle were discriminatory. It lost on both counts. The Tribunal found that the Government had engaged in systemic discrimination against First Nations youth contrary to section 5 of the Canadian Human Rights Act. This case asserts legal claims that rest on the same factual findings as were made by the Tribunal and seeks compensation for First Nations youth who have been harmed by the conduct.
As the former Minister of Justice stated just six weeks ago:
Moving forward with recognition and reconciliation means we cannot continue to rely on adversarial court proceedings to lead the way. By issuing this Directive, our Government is taking transparent and meaningful action that encourages a shift in legal strategies towards collaborative approaches which respect the important relationship between the Crown and Indigenous peoples.
David Sterns, counsel for the class, said: "This class action provides a clear and pressing opportunity for this Government to demonstrate its true commitment to these principles, to the Calls to Action of the Truth and Reconciliation Commission, and to the goals of reconciliation with First Nations."
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