Executive Summary: Key Legal and Evidentiary Issues

• Plaintiffs alleged systemic discrimination against off-reserve Indigenous children in Ontario’s child welfare and social services systems.

• The claim was based on constitutional (Charter), tort (negligence), and fiduciary duty grounds.

• The court found the entire claim to be non-justiciable, as it challenged broad government policy rather than specific actionable wrongs.

• The plaintiffs failed to establish a viable cause of action under section 5(1)(a) of the Class Proceedings Act.

• No evidence of common harm or wrongdoing was presented to justify class certification.

• The proposed representative plaintiffs lacked a personal legal claim against the defendants, and their cases amounted to impermissible collateral attacks on prior court orders.

The proposed class action and its background

BM and CA, as proposed representative plaintiffs, filed a motion to certify a class action against the Ontario and Canadian governments. Their claim aimed to represent Indigenous children living off-reserve in Ontario who were involved with the child welfare system, and those who experienced difficulties accessing essential services like education and healthcare. The plaintiffs alleged that the systemic design and operation of these services violated their rights and caused significant harm to Indigenous families.

They divided the claim into two key areas: (1) the “removed child” claim, alleging Ontario's system disproportionately apprehended Indigenous children and separated them from their families, and (2) the “essential services” claim, alleging systemic delays and denials in providing services such as mental health care, special education, and medical supplies.

They relied on breaches of section 7 (life, liberty, and security of the person) and section 15 (equality rights) of the Charter, as well as claims in negligence and fiduciary duty. They asked the court to allow the case to proceed as a class action under Ontario’s Class Proceedings Act.

The court’s analysis of justiciability and cause of action

The court concluded that the plaintiffs’ claim was not justiciable. Justice Morgan held that courts are not competent to adjudicate on the broad policy questions raised in the claim, such as whether government funding or program design is adequate. The plaintiffs challenged large-scale legislative and policy choices, not specific illegal acts or harms suffered by identifiable individuals. The judge emphasized that courts cannot step into the role of reviewing or rewriting public policy based on statistical outcomes or philosophical disagreements with legislative priorities.

On this basis, all the alleged causes of action failed the first requirement for certification: a viable legal claim under section 5(1)(a) of the Class Proceedings Act. The Charter claims failed because the conduct complained of was either lawful or attributable to non-governmental actors like CASs, which are separate legal entities. The fiduciary duty claim failed because the plaintiffs did not identify a distinct, recognized Indigenous legal interest that would trigger such a duty. The negligence claim was also barred due to the statutory and common law immunity governments enjoy in relation to core policy decisions.

Why the class definitions failed

Although the “removed child” subclass was narrowly defined and potentially viable, the court found major issues with the “essential services” subclass. It was too vague and broad, encompassing practically any Indigenous child in Ontario who had ever experienced a delay or denial in health or education services. The definition also required determining causation (e.g., whether funding or jurisdiction caused the delay) before class membership could even be established, making it unsuitable for certification. The proposed “family class” was dependent on the viability of the two child classes and failed for the same reasons.

Problems with proposed common issues

The plaintiffs failed to establish any common issues that would advance the litigation for the class as a whole. The key liability questions would require individual determinations for each child—such as whether a removal was justified or whether a delay in services occurred and why. The proposed questions were too general and lacked a common factual or legal foundation across the class. There was also no evidence of a shared core harm to support aggregate damages, and the request for punitive damages lacked any factual basis for high-handed or egregious government conduct.

Deficiencies in the proposed representative plaintiffs

The court found that neither BM nor CA had a viable personal claim against either Ontario or Canada. Their individual grievances related to being removed by CASs under valid court orders, and those removals were not challenged directly. Instead, the plaintiffs attempted to relitigate those matters through a class action, amounting to a collateral attack—something Canadian courts prohibit. As a result, they were not suitable representative plaintiffs under section 5(1)(e) of the Class Proceedings Act.

Findings regarding the role of the federal government

Justice Morgan also addressed the federal government’s inclusion as a defendant. He found that Canada played no role in the design, funding, or administration of Ontario’s off-reserve child welfare or social services systems. The federal government’s only involvement was through general transfer payments to the province, over which it had no control once disbursed. The court ruled that this did not create any legal duty or responsibility that could ground a claim. The federal government was therefore effectively removed from liability in the action.

Conclusion and dismissal of the motion

The court dismissed the motion for certification in its entirety. None of the plaintiffs’ causes of action were legally sustainable. The claim was deemed too broad, unfocused, and policy-oriented to be resolved in a judicial forum. The court reiterated that large-scale systemic policy issues are for legislatures and public inquiries—not the courts—to resolve. The plaintiffs were invited to revise their approach if they wished to proceed, but the proposed class action in its current form could not go forward. The court also invited cost submissions from the parties.