As the National Day for Truth and Reconciliation approaches, we take this opportunity to review a groundbreaking decision by the Canadian Human Rights Tribunal (CHRT) which was upheld by the Federal Court on September 29, 2021. In First Nations Child & Family Caring Society of Canada et al. v. Attorney General of Canada (representing the Minister of Indigenous and Northern Affairs Canada), the Canadian Human Rights Tribunal (the “CHRT”) awarded compensation to 54,000 First Nations individuals who had faced discrimination by the federal government due to significantly underfunded child welfare programs and the unnecessary removal of thousands of First Nations children from their homes.
Among other considerations, the CHRT addressed the possibility of compensating the estates of beneficiaries who experienced discriminatory conduct but passed away before receiving their compensation. On this issue, attorney General for Canada had submitted that the Supreme Court of Canada in Canada (Attorney General) v. Hislop has ruled that an estate is just a collection of assets and liabilities of a person who has died , and as such the estate of an individual is not a legal entity capable of experiencing discrimination. On this basis the Attorney General argues that only estates of First Nations individuals who were alive at the time the hearing of the original decision on the merits of the discrimination concluded should be entitled to compensation.
The CHRT, distinguished between the case at hand and Hislop. In Hislop, the Supreme Court’s statements were made in a context where the deceased survivors whose estates sought to pursue equality claims had died before the passage of the remedial legislation from which they were being excluded. The CHRT further held that the claims in Hislop were not based on alleged infringements that took place while the survivors were still alive, and it was in this particular context that the Supreme Court held that estates do not have standing to “commence” actions on behalf of alleged victims. This was not the case in Frist Nations Child & Family Caring Society, where the complainants [who have standing] are First Nations organizations representing, the victims in the present case, and the victims’ suffering was already established in the evidence before the CHRT.
Of importance, the CHRT in this decision emphasized that many of the discriminatory practices at stake involved the forced separation of families and communities and could therefore have “intergenerational impacts”. In these circumstances, the CHRT found it entirely appropriate to direct Canada to make payments that will flow through estates to the heirs of the victims of its discriminatory practices. This outcome is responsive to the nature of the harms, and best advances the goal of reconciliation between First Nations peoples and the Crown.
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