Order in Canada’s Sixties Scoop Class Action Case

Here.

From the Ontario Supreme Court of Justice:

The background facts, as set out in the six previous decisions, are by now well-known, not only to the parties but to many Canadians, and will not be repeated here. In any event, the factual background is not in dispute.
[4] The Sixties Scoop happened and great harm was done.
[5] There is no dispute about the fact that thousands of aboriginal children living on reserves in Ontario were apprehended and removed from their families by provincial child welfare authorities over the course of the class period – from 1965 to 1984 – and were placed in non-aboriginal foster homes or adopted by non-aboriginal parents.
[6] There is also no dispute about the fact that great harm was done. The “scooped”3 children lost contact with their families. They lost their aboriginal language, culture and identity. Neither the children nor their foster or adoptive parents were given information about the children’s aboriginal heritage or about the various educational and other benefits that they were entitled to receive. The removed children vanished “with scarcely a trace.” As a former Chief of the Chippewas Nawash put it: “[i]t was a tragedy. They just disappeared.”

***

The issue is not what was known in the 1960’s about the harm of trans-racial adoption or the risk of abuse in the foster home. The issue is what was known in the 1960’s about the existential importance to the First Nations peoples of protecting and preserving their distinctive cultures and traditions, including their concept of the extended family. There can be no doubt that this was well understood by Canada at the time. For example, focusing on adoption alone, Canada knew or should have known that the adoption of aboriginal children by non-aboriginal parents constituted “a serious intrusion into the Indian family relationship” that could “obliterate the [Indian] family and…destroy [Indian] status.”

***

In my view, the common issue must be answered as follows.

[85] For the reasons set out above, when Canada entered into the 1965 Agreement and over the years of the class period, Canada had a common law duty of care to take reasonable steps to prevent on-reserve Indian children in Ontario, who had been placed in the care of non-aboriginal foster or adoptive parents, from losing their aboriginal identity. Canada breached this common law duty of care.

Disposition

[86] The common issue is answered in favour of the plaintiff. Canada is liable in law for breaching a common law duty of care to the class members. This is not an issue that requires a trial.

[87] The class action now moves forward to the damages assessment stage. Counsel should schedule a case conference to discuss next steps.

[88] The plaintiff is entitled to the costs of this summary judgment motion. These costs are likely to be substantial. If the parties cannot agree on the costs I would be pleased to receive brief written submissions from the plaintiff within fourteen days and from the defendant within fourteen days thereafter.

This entry was posted in Author: Kate E. Fort, Canada, Child Welfare and tagged , . Bookmark the permalink.

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