Brown v. Attorney General of Canada

The Ontario Superior Court of Justice released a decision on December 2, 2014 in Brown v. Attorney General of Canada, dismissing the Attorney General of Canada’s appeal from a decision that certified this proceeding as a class action.

In 1965, Canada entered into an agreement with Ontario that arranged for the Province’s welfare system to extend to Aboriginal children. What resulted was the displacement of a large number of Aboriginal children from their family and communities between 1965 and 1984 (what has been termed the "Sixties Scoop"). The respondents asked the Court for a declaration that Canada breached its fiduciary obligation and duty of care owed to the alleged victims and further claimed damages in the amount of $85,000 be awarded to each of the approximately 16,000 alleged Aboriginal victims for the psychological effects suffered as a result of their displacement. In return, Canada argued that, pursuant to Rule 21 of the Rules of Civil Procedure, the respondents did not establish that Canada owed a fiduciary duty and duty of care to the alleged victims and therefore asked the Court to strike out the respondents’ statement of claim for having no reasonable cause of action.

At issue before the Court was whether the respondents made an appropriate claim for breach of fiduciary duty and/or for negligence regarding Canada’s role in the 1965 agreement with Ontario’s welfare system. In reviewing the 1965 agreement, the Court found that it could be evidence of Canada’s fiduciary obligation to Aboriginal peoples and specifically to the Aboriginal children that fell victim to the displacement policy. The Court noted that Canada could not escape its fiduciary obligations by delegating its authorities to the Province and it remained responsible for ensuring that the Province properly carried out its responsibilities to Aboriginal children. As for whether there was a specific Aboriginal interest that could give rise to fiduciary obligations, the Court noted that this case involved not only one aspect of an Aboriginal culture but rather "a person's connection to that culture as a whole". In the Court's view, it was "difficult to see a specific interest that could be of more importance to [A]boriginal peoples than each person's essential connection to their [A]boriginal heritage".

In finding that the respondents made appropriate allegations in their statement of claim, the Court noted that it must be cautious in considering whether to strike out Aboriginal claims concerning Crown fiduciary obligations because it is a dynamic area of law that is "undeveloped and fluid", especially at the preliminary stage.