The Caring Society’s Non-Compliance Motion v. Canada on Jordan’s Principle

Press Release

On December 12, 2023, the Caring Society filed a non-compliance motion with the Canadian Human Rights Tribunal (the Tribunal) regarding the Government of Canada’s chronic and wilful failure to adhere to the Tribunal’s orders on Jordan’s Principle. Canada opposes the Caring Society’s motion, and the Assembly of First Nations (AFN) opposes most of the Caring Society’s requested orders. As interested parties, the Chiefs of Ontario (COO) and Nishnawbe Aski Nation (NAN) are not taking a position on the motion. The Canadian Human Rights Commission (the Commission) broadly supports the motion. On July 2, the Tribunal granted the First Nations Leadership Council (FNLC) Interested Party status, and the FNLC filed its factum on July 15 with general support for the Caring Society’s non-compliance motion.

A hearing on the non-compliance motion and cross-motion will take place on September 10-12, 2024, after which the Tribunal could issue a non-compliance order against Canada with specific measures to address the non-compliance.

The Caring Society has taken an evidence-informed and solutions-oriented approach to this non-compliance motion, providing constructive recommendations for Canada to remedy its longstanding non-compliance with Jordan’s Principle, and invited Canada to provide its own solutions to meet or beat those proposed by the Caring Society. In doing so, the Caring Society is hopeful that the best solutions will be implemented following this motion, because First Nations children only have one childhood and they deserve nothing less.

This information sheet contains general information about the Caring Society’s non-compliance motion and is not legal advice. Consult with your legal counsel to seek advice and guidance about your own needs and circumstances.

Key Questions:

What concerns did the Caring Society raise in the December 2023 non-compliance motion?

In its December 12, 2023, non-compliance motion, the Caring

Society identified the following concerns regarding Canada’s chronic and wilful failure to adhere to the Tribunal’s orders on Jordan’s Principle:

Narrowing of the Tribunal’s orders by imposing additional eligibility criteria and request processing criteria;
Ineffective methods for receiving and processing

Jordan’s Principle requests by phone or other means;

Chronic failure to adhere to the Tribunal’s timelines for determining requests, including urgent cases;
Failure to adhere to reasonable timeframes to fund and reimburse approved requests;
Failure to adopt sufficient accountability measures to ensure that the Tribunal’s orders are upheld; and
Attempting to shield itself from non-compliance by relying on the Financial Administration Act and other administrative measures.

Who is responsible for administering the Tribunal’s orders on Jordan’s Principle?

The Government of Canada is legally obligated to implement Jordan’s Principle in compliance with the Tribunal’s orders. The Tribunal has ordered that Jordan’s Principle must be implemented based on the principles of substantive equality, culturally appropriate service provision, the child’s needs and best interests, and must take distinct community circumstances into account.

Some First Nations are also working to ensure that their citizens have access to Jordan’s Principle. This is a positive step but does not absolve Canada from its ultimate legal responsibility to ensure Jordan’s Principle is being implemented in a manner consistent with the Tribunal’s orders.

What is a non-compliance order?

A non-compliance order is a legal order issued by the Tribunal

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with specific measures to ensure that Canada follows its existing legal orders. In 2016, the Tribunal ordered Canada to immediately stop the discrimination at the level of the First Nations Child & Family Services (FNCFS) Program and Jordan’s Principle and prevent it from recurring. Canada did not immediately do so. As a result, the Tribunal has issued more than 28 subsequent orders, many of them non-compliance orders.

What happens if a non-compliance order is issued?

If the Tribunal determines that a non-compliance order is warranted, Canada may be ordered to provide immediate relief in the area(s) captured by the Tribunal’s non-compliance order. Non-compliance orders are legally binding and set out specific measures Canada must take to comply with the Tribunal’s orders and often include mandatory reporting to the Tribunal. For example, Canada could be ordered to take certain measures to address the significant backlogs in Jordan’s Principle requests, among other things.

Is the Tribunal’s hearing on the non-compliance motion public?

Yes, there will be a public hearing on the Caring Society’s motion and Canada’s cross-motion. Updated information, including the location of the hearing, will be posted on our website as it becomes available.

What relief is the Caring Society seeking?

Please note that the below is a non-exhaustive summary of the orders the Caring Society seeks on the non-compliance motion. To get a complete picture of the Caring Society’s legal arguments and requested orders, please consult its December 12, 2023 notice of motion, April 19, 2024 factum, June 7 reply factum and August 8 factum on Canada’s cross-motion. To get a complete picture of the Caring Society’s evidence, please consult the Caring Society’s January 12, 2024 affidavits and March 27, 2024 reply affidavits.

Orders sought by the Caring Society:

The Caring Society has requested orders related to urgency; timeliness in determinations, reimbursements/payments, and backlogged requests; and accountability measures.

The Caring Society has requested an order on defining “urgent requests” that will immediately include requests from First Nations children experiencing (or reasonably anticipated to

experience) the death of a caregiver, biological parent, or sibling and requests from children impacted by a state of emergency. The Caring Society has also requested an order to ensure that Canada revises the National Call Centre calling tree (and all other contact mechanisms) to ensure that requestors can easily indicate that their request is or has become urgent and that all contact mechanisms are sufficiently staffed with employees who have authority to review and determine urgent requests during and after business hours. The Caring Society is also seeking an order for Canada to allocate sufficient staff in each ISC region and nationally who are responsible for managing urgent requests to ensure that the determinations are made in a manner consistent with the Tribunal’s orders.

The Caring Society has requested an order that Canada will contact all requestors in the backlog and urge all requestors with urgent or time-sensitive requests, including those requests that have become urgent over time, to contact specific personnel who will determine the requests. The Caring Society has also requested an order that Canada will triage all backlogged requests for urgency and report back to the Tribunal with timelines for when the backlogged requests will be resolved.

In terms of reimbursements and payments, the Caring Society has requested an order that Canada report to the Tribunal about whether it will adopt and adhere to a 15-calendar day payment standard for service providers and a 5-calendar day payment standard for reimbursements to children and families. The Caring Society has also requested an order that Canada will report back to the Tribunal with practical solutions to address payment delays, including methods for emergency payments, an automated process that presumptively approves all requests under $500 with a recommendation from a professional or supporting letter from an Elder/Knowledge Keeper, expansion of the use of acquisition cards, and payment of any interest accrued by families and service providers who have had to take out additional loans due to Canada’s payment and reimbursement delays.

The Caring Society has requested an order that Canada will confirm to the Tribunal that all First Nations and First Nations organizations who have taken on the delivery of Jordan’s Principle have sufficient and sustainable resources, including funding, to do so. Finally, the Caring Society has requested an order that Canada will establish a credible, effective, and independent Jordan’s Principle complaints mechanism with authority to approve urgent cases and publicly report on Canada’s compliance.

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What relief is Canada seeking?

Canada opposes the Caring Society’s non-compliance motion. Canada filed its notice of cross-motion on March 15, 2024, and sought several orders (a non-exhaustive summary of which is below). To see Canada’s evidence on the Caring Society’s motion and its own cross-motion, please consult Canada’s March 15, 2024 affidavits and notice of cross-motion.

Below is a summary of the orders sought by Canada, including an order to dismiss the non-compliance motion. For more information on the orders Canada is seeking from the Tribunal, please consult Canada’s May 24, 2024 factum and August 29, 2024 factum.

Orders sought by Canada:

Canada has requested orders related to urgency, timelines, and the ability to refer requestors to existing services. Specifically, Canada is seeking an order for the Parties to co-develop objective criteria to identify urgent requests, as well as an order extending the determination timeframes ordered by the Tribunal in 2017 CHRT 14 and 2017 CHRT 35 (Amendment).

Canada has requested an order that it may refer requestors to First Nations or First Nations community organizations administering Jordan’s Principle when ISC is the government department of first contact (and that where a request is urgent, Canada will consider whether referring the requestor will enable faster access to the requested product, service, or support). Canada also requested an order that any First Nations or community organizations administering Jordan’s Principle via a contribution agreement with ISC not be bound by the procedural terms of the Tribunal’s orders on Jordan’s Principle that are directed at Canada.

Further, Canada suggests that ISC seek Tribunal assisted mediation with the Parties on a potential consent order and submits that the Tribunal should dismiss the Caring Society’s non-compliance motion and grant the relief sought in Canada’s cross-motion.

What position has the AFN taken?

The AFN has opposed most of the Caring Society’s non-compliance motion and has requested that all relief sought by the Caring Society be dismissed. The AFN acknowledges issues related to Canada’s compliance with the Tribunal’s mandated timelines for urgent requests, families having difficulties reaching ISC officials, backlogs in intake and determinations, and delayed

payments to service providers and requestors. However, the AFN also attributes many of the issues to Canada’s adoption of Back-to-Basics and asserts that many of the concerns identified in the non-compliance motion are the subject of ongoing negotiations related to the long-term reform of Jordan’s Principle. With this in mind, the AFN is of the view that the Caring Society has chosen to “circumvent existing processes in favour of pathways that it views as more favourable to its ends”. To review the AFN’s positions, consult its May 17, 2024 factum and July 30, 2024 written submission on Canada’s Cross Motion. You can also get a sense of the AFN’s evidence by reading the AFN’s March 22, 2024 affidavit.

Orders sought by the AFN:

The AFN has requested orders related to reimbursements and timelines for adjudicating requests. Specifically, the AFN has requested an order to establish a 10 business day standard for reimbursing individual requestors and a 15 business day standard for reimbursing service providers. The AFN has also requested an order to adjust the timelines for non-urgent requests, and to provide ISC the ability to refer non-urgent requests to First Nations or First Nations organizations that have entered into a contribution agreement with Canada.

The AFN has requested that the Tribunal ensure that any relief ordered in the non-compliance motion proceedings be interim in nature, subject to a final settlement agreement or an expiry date of March 31, 2025. Finally, the AFN has requested that all relief sought by the Caring Society be dismissed.

What positions have COO, NAN, and the Commission taken?

COO’s positions:

In its May 10, 2024 letter submissions, COO indicated that they will not take a position on the Caring Society’s non-compliance motion.

NAN’s positions:

NAN has indicated that they will not take a position on the Caring Society’s non-compliance motion.

Canadian Human Rights Commission’s positions:

In its May 10, 2024 factum, the Commission indicated it broadly supports the Caring Society’s non-compliance motion.

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What about the First Nations Leadership Council?

On June 3, 2024, the First Nations Leadership Council representing the Union of British Columbia Indian Chiefs, the First Nations Summit and the BC Assembly of First Nations, filed a motion to intervene in the Caring Society’s non-compliance motion and Canada’s cross-motion.

The Tribunal granted the FNLC Interested Party status with participation limited to the Caring Society’s non-compliance motion and Canada’s cross-motion on July 2.

The FNLC filed their factum on July 16 with general support for the Caring Society’s non-compliance motion, taking a position on urgency, timeliness in determinations and reimbursements, backlogged requests, accountability measures and administration of Jordan’s Principle.

What are the key dates and submissions?

As a result of the AFN’s April 5, 2024 request to amend the schedule, the Tribunal directed a revised schedule. Furthermore, following the FNLC’s request to intervene, the Tribunal paused the schedule on June 12. The schedule then restarted with the Tribunal directing a further revised scheduled.

December 12, 2023: Caring Society’s non-compliance motion
January 12, 2024: Caring Society’s affidavits
March 15, 2024: Canada’s cross-motion and affidavits
March 27, 2024: Caring Society’s reply affidavits
April 2-3, 2024: Cross-examination of two senior ISC officials
April 12, 2024: Canada’s response to requests for information
April 19, 2024: Caring Society’s factum
May 10, 2024: Commission’s factum; NAN and COO reply
May 17, 2024: AFN’s factum
May 24, 2024: Canada’s factum
June 7, 2024: Caring Society’s reply factum
July 16, 2024: FNLC’s Factum
July 30, 2024: AFN factum, Commission’s factum, COO’s written submission and NAN’s correspondence in response to Canada’s cross-motion and FNLC’s factum
August 8, 2024: Caring Society factum in response to

Canada’s cross-motion, FNLC’s factum, and new issues raised by the AFN and NAN

August 29, 2024: Canada’s reply factum to the

AFN/NAN/COO/Commission’s response factum and FNLC’s factum

September 10-12, 2024: Tribunal Hearing

Publicly available documents are posted to fnwitness.ca.

Background:

In 2007, the First Nations Child & Family Caring Society (Caring Society) and the Assembly of First Nations (AFN) filed a human rights complaint against Canada for its inequitable provision of the First Nations Child & Family Services (FNCFS) Program and flawed approach to Jordan’s Principle. In late 2009, the Chiefs of Ontario (COO) and Amnesty International were granted interested party status. In 2016, the Tribunal ordered the government to stop its discriminatory conduct and take measures to ensure it does not happen again. After this ruling, Nishnawbe Aski Nation (NAN) was also granted interested party status. Since 2016, the Tribunal has issued over 28 non-compliance and procedural orders against Canada and retains jurisdiction over the complaint.

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