Background
The appellants, B.M. and C.A., seek to bring a class proceeding on behalf of all off-reserve Indigenous children who were apprehended by a children’s aid society in Ontario, as well as Indigenous children who experienced delays or barriers in accessing essential social services, from 1992 to the present. The claim alleges that Ontario and Canada implemented policies and practices perpetuating the overrepresentation of Indigenous children in care and obstructing their access to health and education services, in breach of ss. 7 and 15 of the Canadian Charter of Rights and Freedoms, as well as fiduciary duties and the common law of negligence.
The motion for certification as a class proceeding was dismissed by the Superior Court on August 25, 2025 (2025 ONSC 4575), primarily on the ground that the claim did not disclose a reasonable cause of action. The appellants appealed, with the full appeal scheduled to be heard over two days on September 28–29, 2026. Six organizations sought leave to intervene as friends of the court ahead of that hearing: the Anishinabek Nation, the British Columbia Civil Liberties Association (BCCLA), the Chiefs of Ontario, Hiawatha First Nation, Nishnawbe Aski Nation, and Nigig Nibi Ki-win Gamik.
Justice Favreau of the Court of Appeal heard the intervention motions on May 8, 2026. The appellants consented to all six proposed interventions; Ontario and Canada opposed most of them, arguing that several proposed submissions were duplicative, went beyond the scope of the appeal, or would improperly expand the evidentiary record.
The Court’s Holding
Justice Favreau granted leave to intervene to four of the six proposed interveners — the Anishinabek Nation, the BCCLA, the Chiefs of Ontario, and Nishnawbe Aski Nation — and dismissed the motions brought by Hiawatha First Nation and Nigig Nibi Ki-win Gamik. The court applied the established test from Peel (Regional Municipality) v. Great Atlantic & Pacific Co. (1990), asking whether each proposed intervener was likely to make a useful contribution to the resolution of the appeal without causing injustice to the parties. The court noted that the relaxed standard applicable in constitutional cases still requires that proposed submissions be directed at the actual issues on appeal — at this stage, whether the claim discloses a cause of action and meets the other certification criteria under s. 5(1)(a) of the Class Proceedings Act, 1992.
The Anishinabek Nation was granted leave only on the narrow issue of the role of First Nations (Band) Representatives in child welfare proceedings — an issue directly engaged by the appellants’ argument that the motion judge erred in finding the claim attacked general policy rather than specific programs. The BCCLA was permitted to address the question of residual government Charter liability when public programs are delegated to independently Charter-bound entities. The Chiefs of Ontario were permitted to propose a justiciability framework for Charter challenges to complex social program decisions. Nishnawbe Aski Nation was permitted to address the motion judge’s s. 15 Charter analysis and his use of the Caring Society decision as a comparator between on-reserve and off-reserve Indigenous children.
Hiawatha First Nation and Nigig Nibi Ki-win Gamik were denied leave. Hiawatha’s proposed submissions on Indigenous versus Western parenting capacity assessments went beyond the issues as framed on appeal and relied on academic articles that would have improperly expanded the evidentiary record at the certification stage. Nigig Gamik’s proposed arguments concerning sui generis and ad hoc fiduciary duties rooted in Indigenous child-rearing practices and exclusive-intermediary theory were not pleaded by the appellants and would have unduly broadened the scope of the appeal.
Key Takeaways
- On intervention motions in constitutional appeals, the overriding question is whether the proposed intervener will contribute usefully to the issues actually raised on appeal — not to the broader merits of the underlying claim; submissions that go beyond those issues will be refused.
- Even in cases with significant public importance for Indigenous communities, proposed interveners whose arguments depend on facts or legal theories not pleaded by the parties — or who seek to introduce fresh evidence through academic articles or affidavit material — will be denied leave, at least at the certification stage.
- The court granted leave on a restricted basis where only part of a proposed intervener’s submissions were within scope, directing the Anishinabek Nation to file a revised factum of no more than 10 pages limited to the Band Representatives issue, and the Chiefs of Ontario to reduce their factum to no more than 15 pages.
- All four successful interveners must take the record as-is, file factums by July 10, 2026, and are limited to 10 minutes of oral argument each; Ontario and Canada may each file a response factum of up to 15 pages by August 14, 2026, with no costs awarded on the motions or the appeal.
Why It Matters
This decision arises from one of the most significant pending Indigenous children’s rights cases in Ontario, alleging systemic government failures that have driven the chronic overrepresentation of Indigenous children in state care — a pattern with deep historical roots in colonial child welfare policy. The appeal will squarely test whether such systemic claims can be advanced as class proceedings and whether broad Charter challenges to social program design are justiciable, questions with potentially wide implications for how Indigenous communities can seek redress for collective harms through Canadian courts.
The intervention ruling itself offers practical guidance on the limits of amicus participation in complex constitutional appeals: courts will disaggregate proposed interveners’ arguments issue by issue, grant or restrict leave accordingly, and remain vigilant against evidentiary expansion or duplication — even where the subject matter is of profound importance to the communities seeking to be heard. The full appeal in September 2026 will be closely watched by Indigenous advocacy organizations, child welfare practitioners, and constitutional litigators across Canada.