This case was a human rights complaint under the Canadian Human Rights Act. It was brought by the Assembly of First Nations and the First Nations Child and Family Caring Society. The essence of the complaint is that the funding for child welfare services on reserve is discriminatory, in that it is less than provincial funding and results in lesser services (although the services are provided under the same provincial laws).
The Commission referred the complaint to the Tribunal; it participated in favour of the complainants. Chiefs of Ontario and Amnesty International also intervened. Canada brought a motion to dismiss the complaint as falling outside the Tribunal’s jurisdiction. It won that motion and the case was dimissed. There were 3 main issues, decided as follows:
1. Does the Act require an oral hearing inquiry in every case?
The Tribunal decided that no, an oral hearing is not always required. It expanded the grounds on which an oral hearing could be skipped and the case decided on preliminary motions with affidavit evidence. This issue is not central to our practice, so I won’t go further into it, but note that it could end up as an important part of this decision in terms of procedure in human rights complaints generally.
2. Is INAC (through its First Nations child welfare funding program) providing a “service” under s. 5(b) of the Act?
This is an issue that has the potential to affect many other First Nations programs and services. They are funded by INAC, but is that funding a “service” such that you can bring a discrimination complaint under the Canadian Human Rights Act?
The Tribunal did not decide the issue. It found that the parties (particularly Canada) had not brought enough evidence to decide this question. However, the Tribunal’s commentary on this point, in my view, goes in the wrong direction; it seems to be looking for some kind of smoking-gun clause in INAC’s funding agreements that give it final control over some particular aspect of the substantive child welfare service. To me, the way in which funding dictates the nature and quality of a service is far more general and fundamental.
3. Does “adverse differentiation” under s. 5(b) of the Act require a comparator group, and if so, does it allow a comparison between two service providers?
This is the meat of the decision. The Tribunal held that yes, a comparator group is required. This is very controversial, because it stems from s. 15 jurisprudence, not CHRA jurisprudence. It is even more controversial now, because just recently the Supreme Court of Canada changed s. 15 jurisprudence when it released Withler v. Canada, 2011 SCC 12, in which it basically said that comparator groups usually unhelpful; they promote a technical, formalistic approach, and can avoid the main issue of whether there is substantive discrimination assessed in its full context.
Then, the Tribunal went on to say that there is no way to compare INAC’s services to First Nations with services to other people, because the mainstream services are provided by the provinces, a different government (different “service provider”). This, to me, is the worst part of the decision because it has the effect of sanctioning lesser, unequal treatment of First Nations compared to other Canadians. If the comparison can’t be made, you can’t find the discrimination.
The complainants will seek judicial review. The saga will continue. I would be surprised, frankly, if it didn’t go up to the SCC because the stakes are high. Especially given the reliance on s. 15 methodology by the Tribunal, the release of Withler is pretty significant.
By Judith Rae