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

Table of Contents

• 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. Can... 1
• 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. 1
• 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... 1
• 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. 1
• 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: 1
• • Narrowing of the Tribunal’s orders by imposing additional eligibility criteria and request processing criteria; 1
• • Ineffective methods for receiving and processing Jordan’s Principle requests by phone or other means; 1
• • Chronic failure to adhere to the Tribunal’s timelines for determining requests, including urgent cases; 1
• • Failure to adhere to reasonable timeframes to fund and reimburse approved requests; 1
• • Failure to adopt sufficient accountability measures to ensure that the Tribunal’s orders are upheld; and 1
• • Attempting to shield itself from non-compliance by relying on the Financial Administration Act and other administrative measures. 1
• 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 ap... 1
• 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 mann... 1
• A non-compliance order is a legal order issued by the Tribunal 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 Nation... 1
• What happens if a non-compliance order is issued? 2
• 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 measu... 2
• 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. 2
• 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 no... 2
• Orders sought by the Caring Society: 2
• The Caring Society has requested orders related to urgency; timeliness in determinations, reimbursements/payments, and backlogged requests; and accountability measures. 2
• 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 a... 2
• 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 ... 2
• 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 stand... 2
• 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... 2
• 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 i... 3
• 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. 3
• Orders sought by Canada: 3
• 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 o... 3
• 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 wi... 3
• 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. 3
• 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 u... 3
• Orders sought by the AFN: 3
• 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 f... 3
• 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 ... 3
• COO’s positions: 3
• In its May 10, 2024 letter submissions, COO indicated that they will not take a position on the Caring Society’s non-compliance motion. 3
• NAN’s positions: 3
• NAN has indicated that they will not take a position on the Caring Society’s non-compliance motion. 3
• Canadian Human Rights Commission’s positions: 3
• In its May 10, 2024 factum, the Commission indicated it broadly supports the Caring Society’s non-compliance motion. 3
• 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 an... 4
• 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. 4
• 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 ... 4
• 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 T... 4
• • December 12, 2023: Caring Society’s non-compliance motion 4
• • January 12, 2024: Caring Society’s affidavits 4
• • March 15, 2024: Canada’s cross-motion and affidavits 4
• • May 22, 2024: AFN’s affidavit 4
• • March 27, 2024: Caring Society’s reply affidavits 4
• • April 2-3, 2024: Cross-examination of two senior ISC officials 4
• • April 12, 2024: Canada’s response to requests for information 4
• • April 19, 2024: Caring Society’s factum 4
• • May 10, 2024: Commission’s factum; NAN and COO reply 4
• • May 17, 2024: AFN’s factum 4
• • May 24, 2024: Canada’s factum 4
• • June 7, 2024: Caring Society’s reply factum 4
• • July 16, 2024: FNLC’s Factum 4
• • 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 4
• • 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 4
• • August 29, 2024: Canada’s reply factum to the AFN/NAN/COO/Commission’s response factum and FNLC’s factum 4
• • September 10-12, 2024: Tribunal Hearing 4
• Publicly available documents are posted to fnwitness.ca. 4
• Background: 4
• 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 ... 4