Background
Four plaintiffs sought certification of a class action against British Columbia and Canada on behalf of Indigenous children and families. They alleged that, over a period beginning in 1992, the governments inadequately funded prevention services, prioritized removing children over supporting families, and failed to provide adequate health and education services to Indigenous children living off reserve. The claims alleged negligence, breach of fiduciary duty, unjust enrichment, and violations of sections 7 and 15 of the Canadian Charter of Rights and Freedoms.
The Supreme Court of British Columbia certified three proposed classes: Indigenous children taken into care, their caregiving parents and grandparents, and Indigenous children who experienced a delay, denial, or gap in receiving an “essential service.” British Columbia and Canada appealed, arguing that the claims concerned non-justiciable funding and policy choices and did not satisfy the Class Proceedings Act’s certification requirements.
The Court’s Holding
The Court of Appeal allowed the appeals and substantially narrowed the proceeding. It held that the Essential Services Class was not objectively identifiable because terms such as “essential service,” “delay,” and “service gap” were undefined and open-ended. The Family Class definition was also defective because it could include family members whose alleged abuse caused a child’s apprehension, although the plaintiffs received leave to seek approval of an amended definition.
The Court struck all claims against Canada, holding that Canada did not administer British Columbia’s child-welfare system during the class period and had no duty to intervene merely because it possessed legislative authority under section 91(24) of the Constitution Act, 1867. It also struck the negligence, fiduciary-duty, unjust-enrichment, and section 7 claims, concluding that they were bound to fail and, in significant part, challenged core policy choices about funding and system design for which no judicially manageable standard existed.
The Court nevertheless upheld certification of the section 15 Charter claim against British Columbia for the Removed Child Class. It was arguable that, after choosing to create and fund the child-welfare system, the Province allocated its resources between apprehension and prevention services in a way that had a discriminatory adverse impact on Indigenous children. Common issues concerning breach, section 1 justification, Charter damages, and aggregate damages could therefore proceed. The Family Class may participate only if an amended definition is approved.
Key Takeaways
- Courts should address justiciability and core-policy immunity at certification when the pleadings clearly challenge high-level funding and system-design choices.
- A class definition must identify members objectively at the outset; flexible or undefined concepts cannot be left to evolve as the litigation proceeds.
- The only certified cause of action is the section 15 Charter claim against British Columbia concerning the alleged discriminatory impact of its allocation of child-welfare funding between prevention and apprehension services.
Why It Matters
The decision reinforces the gatekeeping function of certification courts, particularly where proposed systemic litigation combines broad class definitions with challenges to decades of government spending and policy choices. Vulnerability and historical disadvantage provide essential context but do not displace the statutory certification requirements.
At the same time, the ruling confirms that resource allocation may remain reviewable under section 15 when government has entered a field and allegedly distributes an existing program’s benefits in a way that perpetuates disadvantage. The merits of that equality claim, including any justification and entitlement to aggregate Charter damages, remain for trial.