6. Litigation

Main Estimates, 2022-23 – General Note on Litigation

  1. Canada Alliance for Sex Work Law Reform (CASWLR)
  2. Emergencies Act Litigation
  3. Public Order Emergency Commission (POEC)
  4. Firearms-Related Litigation
  5. Commission scolaire francophone des Territoires-du-Nord-Ouest (TNO)
  6. Reference re Impact Assessment Act
  7. Litigation – Non-Justice Lead

1. Canada Alliance for Sex Work Law Reform (CASWLR)

On March 29, 2021, CASWLR commenced a Charter application in the Ontario Superior Court of Justice, seeking to have all of the Criminal Code provisions relating to the commercial sex trade as they relate to adults struck down as unjustifiable limitations of sections 7 (life, liberty and security of person), 15(1) (equality rights), 2(b) (freedom of expression), and 2(d) (freedom of association) of the Charter. Most of the provisions were enacted by the 2014 Protection of Communities and Exploited Persons Act (the “Act”).

Canada’s position is that the impugned provisions are a constitutionally permissible response to a highly complex and polarized policy issue. The provisions operate on the premise that the sex industry reflects and perpetuates structural and systemic inequalities and poses risks to those involved in it, risks borne disproportionately by women, girls, and racialized, Indigenous and/or vulnerable individuals. This approach, developed in direct response to the Supreme Court of Canada’s decision in Bedford v. Canada, is based on a legislative framework first implemented in 1999 in Sweden (the “Nordic approach”). Versions of this Nordic approach have since been adopted in several other international jurisdictions.

The Attorney General of Ontario intervened to adduce evidence and make submissions to defend the constitutional validity of the provisions. Seventeen different organizations or coalitions of organizations were granted leave to intervene on consent as a Friend of the Court and not to introduce evidence.

The hearing of the application took place October 3-7, 2022. A decision is anticipated six months following the hearing.

2. Emergencies Act Litigation

The Governor in Council declared a public order emergency under the Emergencies Act (EA) on February 14, 2022, in response to an urgent and volatile situation of escalating, unlawful protests and illegal blockades across Canada between January 29, 2022 and February 14, 2022. That declaration was revoked on February 23, 2022. The AGC is now defending four applications for judicial review in the Federal Court seeking to challenge the use of the Emergencies Act. Preliminary motions are ongoing in these proceedings and the hearing on the merits has not yet been scheduled.

3. Public Order Emergency Commission (POEC)

On April 25, 2022, the Government of Canada established the Public Order Emergency Commission (POEC) and appointed the Honourable Paul Rouleau as Commissioner.

The Commission is examining the circumstances that led to the declaration of a public order emergency being issued on February 14, 2022, and the measures taken in response to the emergency. This includes the evolution of the convoy, the impact of funding and disinformation, the economic impact, and efforts of police and other responders prior to and after the declaration.

The Government of Canada is a party to the proceeding and a full participant. The Attorney General of Canada is representing the Government of Canada in the POEC proceedings.

The Commission held public hearings from October 13, 2022 to December 2, 2022, and will receive final written submissions by December 9, 2022.

4. Firearms-Related Litigation

On May 1, 2020, the Governor-in-Council decided to prohibit nine types of firearms and their variants, and firearms with certain technical characteristics, by Regulation under s.117.15 of the Criminal Code.

Seven applications were filed challenging the Order-in-Council and Regulation: six in Federal Court (FC) and one in the Alberta Court of Kings Bench (ABKB). Canada is opposing the challenges on the basis that the Order-in-Council and Regulation are within the enabling authority in s. 117.15 of the Criminal Code, and that the Regulation does not violate the applicants’ Charter rights.

When the Order-in-Council was made, the government announced its intention to introduce a buy-back program for banned firearms. An Amnesty Order was issued to allow owners time to comply with the law through, for example, a buy-back program or destruction of their firearms, which was due to expire on April 30, 2022. In order to allow further time for individuals to come into compliance with the law, the Amnesty Order was extended to October 30, 2023.

Alberta is intervening in the FC applications as of right on constitutional issues, and is also seeking leave to intervene on non-constitutional issues. Canada does not oppose Alberta’s intervention. Alberta’s intervention motion is currently before the Court for determination.

The hearing on the merits of the FC applications will be held in April 2023. Canada’s application to strike the ABKB application is currently before the Court for determination.

5. Commission scolaire francophone des Territoires du Nord-Ouest (TNO)

Several parents and the Commission scolaire francophone des Territoires du Nord-Ouest (TNO) have sought judicial review of the Minister of Education’s refusal to allow children to attend school in French even though they were not entitled to do so under s. 23 of the Charter or the NWT’s policy on the matter. The NWT Supreme Court allowed the claims, but the Court of Appeal reversed the judgment. Despite repeated requests by the School Board, the hearing was not conducted in French and English before a panel of three bilingual judges, instead the appellants’ arguments were translated.

The SCC granted the application for leave to appeal and allowed the School Board to present additional evidence as to the conduct of the hearing in the Court of Appeal and the quality of the simultaneous translation. The Board argued that the right to use English or French before the courts, recognized by the NWT Official Languages Act (and similar constitutional provisions applicable to federal or certain provincial courts), includes the right to be understood by a judge who understands the official language used by a party without the assistance of an interpreter, and asked the SCC to overturn its interpretation to the contrary in four cases from 1986 and 1988.

The School Board filed the following notice of constitutional question: "Is subsection 9(1) of the Official Languages Act, LRTN-O 1988, c O-1 inoperative to the extent of its inconsistency with subsection 19(1) of the Canadian Charter of Rights and Freedoms?”

The hearing is scheduled to take place on February 9, 2023.

6. Reference re Impact Assessment Act

On August 28, 2019, Bill C-69, the Impact Assessment Act and the Physical Activities Regulations came into force. Alberta brought a reference to the Alberta Court of Appeal (ABCA) to determine whether the Act and the Regulations were unconstitutional in whole or in part as being ultra vires the legislative authority of the federal government.

On May 10, 2022, the ABCA released its opinion on this reference. The majority found the Act and Regulations ultra vires Parliament.

On June 8, 2022, Canada filed an appeal of the opinion of the ABCA with the Supreme Court of Canada. Canada argues that the ABCA erred in characterizing the Act and Regulations as intruding into provincial jurisdiction over property rights and natural resources. Canada’s position is that the Act and Regulations are a valid exercise of federal authority, designed to safeguard against adverse environmental effects in relation to matters within federal jurisdiction.

The Attorneys General for British Columbia, Manitoba, New Brunswick, Nova Scotia, Prince Edward Island, Newfoundland and Labrador, Quebec, Ontario and Saskatchewan each served a notice of intervention in the appeal to the SCC. In addition, the SCC has permitted 22 interveners, or groups of interveners, to intervene.

On August 31, 2022, Canada filed its factum. On November 23, 2022, Alberta filed its factum. The factums of the provincial Attorneys General and interveners were due December 21, 2022. Canada and Alberta have until February 1, 2023, to file reply factums. The SCC appeal is scheduled to be heard March 21-22, 2023.

7. Litigation – Non-Justice Lead

If asked about litigation led by other Ministers, I would defer to my colleagues:

Background:

As of September 30, 2022, the Attorney General of Canada had been engaged in approximately 40,000 litigation files for 2022 - 2023, which is on pace to be similar to the number of files in 2021/2022.

The Directive on Civil Litigation Involving Indigenous Peoples

The Attorney General of Canada continues to implement The Directive on Civil Litigation Involving Indigenous Peoples, which is coming up on its three-year anniversary. The Directive and the Principles highlight that the way that we conduct litigation with Indigenous peoples matters from the perspective of reconciliation.

Canada continues to be committed to fundamentally transforming its relationship with Indigenous peoples based on the recognition of rights, respect, cooperation and partnership. As part of this commitment, the Attorney General’s Directive on Civil Litigation Involving Indigenous Peoples continues to be implemented to promote consistency in Canada’s approach to civil litigation involving Indigenous peoples, one that supports a stronger, more positive and respectful Crown-Indigenous relationship.

As you know, the Directive establishes twenty Litigation Guidelines that every counsel considers in the approaches and positions taken in civil litigation involving Indigenous peoples. Starting in 2018 and continuing today, comprehensive training on the Directive and its underlying Principles has been provided to Justice counsel and client departments who are engaged in Indigenous litigation across Canada. Since its development and implementation, 41 guidance sessions have been provided to Justice employees across the country, and more than 2,000 Justice employees have now been trained.

Over the last three years, legal proceeding that engages litigation with Indigenous Peoples has been approached through the lens of the Directive.

Counsel continue to engage in efforts for resolution early and often, exploring all reasonable avenues for narrowing the issues and settling the dispute. While, the Directive does not require Canada to abandon valid legal positions or reach settlement in each case, all Indigenous litigation is advanced in a principled way that considers the implications for the law, government operations, and Canada’s relationship with Indigenous peoples.

Of course, Indigenous groups and Indigenous peoples are entitled to choose their preferred forum to resolve their legal issues. Where litigation is unavoidable, the Guidelines provide direction on how counsel prepare their pleadings and submissions, including the language and terminology to be used and the admissions to be made. All pleadings are an important opportunity to further communication and relationship building with First Nations. This has resulted in, for example, the consistent practice of concisely stating Canada’s position and narrowing the issues in Canada’s court documents to plainly explain Canada’s position, including what is in issue and what is not in issue at the outset. It has also resulted in new admissions made by Canada, where it is possible to narrow the scope of the litigation.

This work is ongoing, and will continue to shape how the Government of Canada is managing litigation involving Indigenous peoples, including the way arguments are framed, defences are advanced, and emphasis is placed on resolving rather than litigating claims when possible.

Wrongful Convictions and an Independent Criminal Case Review Commission

Currently, individuals who have exhausted their rights of appeal but believe they have been wrongfully convicted can apply to the federal Minister of Justice to have their convictions reviewed. The process is set out in the Criminal Code and administered by the Criminal Conviction Review Group within the Department of Justice. The Minister of Justice has made several high-profile decisions over the years. More are expected in the near future. Several countries have independent commissions to address wrongful convictions that are arm’s length from government. Stakeholders have urged that Canada follow suit, and in December 2021, the Minister of Justice’s mandate letter directed him, “to continue work to advance the establishment of an independent Criminal Case Review Commission to improve access to justice for potentially wrongfully convicted people to have their applications reviewed.” Work is underway to move forward on this commitment.

If asked about any miscarriage of justice application:

The criminal conviction review process is handled by the Criminal Conviction Review Group (CCRG) within the Department of Justice Canada. Individuals who have exhausted their rights of appeal can apply to have their convictions reviewed. Should an application be made, the CCRG conducts a review on my behalf and advises me on the appropriate remedy, if any. I will then review relevant material and decide, on the basis of the facts and the law, whether a review application should be dismissed or allowed.

Annex 1: Other Matters

  1. First Nations Child and Family Caring Society of Canada (FNCFCS) and Assembly of First Nations and Attorney General of Canada (AFN)
  2. Reference re An Act Respecting First Nations, Inuit and Métis Children, Youth and Families (C-92 Litigation)
  3. Restoule/Whitesand
  4. IRSSA Litigation (Fontaine et al. v. Canada)
  5. Chief Shane Gottfriedson et al. v. HMTQ
  6. Dickson v. Vuntut Gwitchin First Nation
  7. Kahentinetha et al. v. Société québécoise des infrastructures et al.
  8. Stonechild v. HMTQ
  9. Diane BigEagle v. HMTQ
  10. Nasogaluak v. AGC
  11. Dominique (Pekuakamiulnuatsh) v. Public Safety Canada / AGC v. Dominique / Pekuakamiulnuatsh Takuhikan v. AGC and AGQ
  12. Greenwood et al. v. HMQ
  13. Kahnapace et al. v. AGC
  14. Thompson et al. v. HMQ
  15. Fédération des Francophones de la Colombie-Britannique (FFCB) v. Department of Employment and Social Development Canada
  16. Société Radio-Canada v. AGC
  17. Boloh v. HMTQ
  18. Doe/Zareri v. Islamic Republic of Iran et al. (PS752)
  19. Ross, Roy and Satalic v. AGC [LGBT Purge]
  20. Justice for Québec et al. v. AGC
  21. La Société de l’Acadie du Nouveau-Brunswick (SANB)

Annex: Main Estimates 2022 – General Note on Litigation

A. First Nations Child and Family Caring Society of Canada (FNCFCS) and Assembly of First Nations and Attorney General of Canada (AFN)

Lead Minister: Indigenous Services Canada

Highlights: Comparability of federal government funding of on-reserve services with provincial government funding of off-reserve services.

Key Date: December 31, 2022 – The parties signed Agreements in Principle which committed to work to final settlement agreements that would end the CHRT’s jurisdiction by the end of 2022.

Canadian Human Rights Tribunal:

In 2016, the Canadian Human Rights Tribunal (CHRT) determined that Canada’s funding of First Nations and family services on reserve and in the Yukon was discriminatory. It also determined that Canada’s definition of Jordan’s Principle was too narrow and resulted in gaps, delays and denials of necessary services for children. The CHRT has maintained oversight over Canada’s efforts to end the discrimination and issued numerous orders providing immediate relief.

In 2019-2020, Canada sought judicial review of two further CHRT decisions: an order for compensation to indeterminate classes of children and their caregivers (Compensation Decision); and an order defining who is a First Nations child for the purposes of Jordan’s Principle (First Nations Child Decision). The Federal Court rejected Canada’s application for judicial review in September 2021, and Canada has filed an appeal of this decision, which is currently in abeyance.

On September 24, 2021, the AGC filed an application for judicial review of the August 26, 2021, CHRT decision on the motions with interim reasons and orders for funding major capital costs.

On October 24, 2022, the CHRT rejected the AFN and Canada’s motion to find a settlement reached on compensation in the context of related class actions satisfied its compensation orders. Canada and AFN filed a judicial review of this decision on November 23, 2022.

Class Actions:
Moushoom-AFN

In 2019 and 2020, Xavier Moushoom and the AFN respectively commenced proposed class actions seeking damages based on the discriminatory underfunding of child and family services on reserve and in the Yukon and the denial, delay of or gaps in services or products to First Nations children dating back to 1991.

The Federal Court consolidated the Moushoom and AFN class actions, certifying the consolidated action on November 26, 2021, and removed the pre-2007 Jordan’s class (Trout), which was certified on February 11, 2022.

Trout

This proposed class action concerns the denial, delay of or gasps in services or products to First Nations children from 1991 to 2007 (class members were previously members of the putative classes in the Moushoom/AFN class action).

Agreements in Principle were reached on December 31, 2021, in the AFN, CHRT and class actions. A Final Settlement Agreement on compensation in the class actions was signed on June 30, 2022, and was conditional on the CHRT issuing an order that its compensation order is fully satisfied by the agreement. The CHRT refused to issue this order on October 24, 2022.

B. Reference re An Act respecting First Nations, Inuit and Métis children, youth and families (C-92 Litigation)

Lead Minister: Indigenous Services Canada

Highlights: Bill C-92 – Reference challenging the constitutionality of the Act.

Key Date: December 7-8, 2022 – Hearing of the AGC and AGQ’s appeal to the Supreme Court of Canada.

The First Nations, Inuit and Métis Child, Youth and Family Services Act, S.C. 2019, c. 24 (the Act), which came into force on January 1, 2020, sets out basic principles and minimum standards for Aboriginal child welfare. It affirms the inherent right of self-government for Aboriginal peoples, including jurisdiction over children’s services, and establishes a mechanism for them to transition to the partial or full exercise of that jurisdiction.

On December 20, 2019, the AGQ instituted a reference to the Court of Appeal of Quebec (QCA) challenging the constitutionality of the Act on the grounds that (1) Parliament had no jurisdiction to legislate on how provinces deliver services to children; and (2) the Act unilaterally defines the inherent right of self-government protected by section 35 of the Constitution Act. The Attorney General of Canada and the five interveners supported the constitutionality of the Act.

On February 10, 2022, the QCA issued its decision on the Reference. The Court concluded that the Act is valid, except for sections 21 and 22(3), which provide that Aboriginal laws made under the Act have the force of federal law and prevail over provincial laws. The national standards in Part I were declared valid.

On March 14, 2022, Canada and Quebec filed a Notice of Appeal to the Supreme Court. The hearing will take place on December 7 and 8, 2022.

[Redacted]

C. Restoule/Whitesand

Lead Minister: Crown-Indigenous Relations and Northern Affairs Canada

Highlights: Treaty annuity claims.

Key Dates: January 10, 2023: Stage 1 Appeal - AGC’s factum and cross-appeal in the Supreme Court of Canada appeal due; January 16, 2023 (3 – 6 months): The Stage 3 Trial is scheduled to start in the Ontario Superior Court of Justice.

The Whitesand action was commenced in 2001 by the Whitesand and Red Rock First Nations, signatories to the Robinson-Superior Treaty. The Restoule claim was brought in 2014 as a representative action on behalf of 21 First Nation signatories to the Robinson-Huron Treaty. In early 2022, the remaining 10 Robinson-Superior Treaty First Nations, and the remaining 1 Robinson-Huron Treaty First Nation, were added as intervener party plaintiffs, such that all recognized Robinson Treaty First Nations are now parties to the litigation. Both claims are brought against Canada and Ontario for declarations on the interpretation of the Treaty annuity provisions, and for compensation for overdue annuity increases since 1850 based on a share of resource revenues generated in the Treaty territories.

The actions were consolidated and divided into 3 stages:

D. IRSSA Litigation (Fontaine et al. v. Canada)

Lead Minister: Crown-Indigenous Relations and Northern Affairs Canada

Highlights: Document production concerns for St. Anne’s Indian Residential School.

Key Dates: None presently scheduled.

In March 2021, Canada requested an independent review of St. Anne’s Independent Assessment Process claims under the Indian Residential Schools Settlement Agreement. The request was made in response to repeated allegations that St. Anne’s claimants had been prejudiced by the non-disclosure of documents in the context of the Independent Assessment Process. All the parties to settlement agreement supported the request. The supervising judge appointed the Hon. Mr. Ian Pitfield to conduct a review with the assistance of legal counsel and an amicus.

At the end of 2021, the Ontario Superior Court of Justice accepted the Independent Special Advisor’s Final Report. The Report concluded that claimants under IAP were well-served by the secretariat and adjudicators in the context of the Settlement Agreement. The Report also found that the production of additional documents would not have made an impact on any St. Anne’s IAP claim, and that no increase in compensation on any IAP claim was required. On February 2, 2022, the Independent Special Advisor filed a request for the court to confirm his report.

Through various appeals, one claimant counsel sought to overturn Mr. Pitfield’s appointment and the supervising judge’s involvement in the matter. The Final Report made this related litigation moot, as confirmed by the Ontario Court of Appeal. An application for leave to appeal to the SCC was filed on March 1, 2022. On October 20, 2022, the SCC dismissed the applicant’s leave application.

E. Chief Shane Gottfriedson et al. v. HMTQ

Lead Minister: Crown-Indigenous Relations and Northern Affairs Canada

Highlights: Class action for the Band Class in the context of Indian Residential Schools.

Key Dates: Early 2023 (date to be determined): Settlement approval hearing.

Implementation of the Gottfriedson Indian Residential Schools Day Scholars settlement agreement began on January 4, 2022, for the Survivor and Descendant classes. Litigation continues with respect to the remaining Band Class. In this claim, Band class members are seeking compensation for harms to and/or losses to their collectives in relation to their Indigenous language, culture and identity. They allege such losses arose from breaches of fiduciary duties owed directly to the collectives and/or violations of collective s.35 Aboriginal rights and/or common law Aboriginal rights in relation to language, culture and identity, which breaches/violations they allege occurred continuously by Canada throughout the entire period from 1920 to 1997. They also allege ongoing violations due to Canada’s failure to remedy the harms caused by Indian Residential Schools.

The common issues trial for the Band Class was scheduled to start in September 2022, but was placed in abeyance sine die for the purpose of settlement discussions. The parties reached an agreement in principle to settle the Band Class claim in September 2022. The terms of the settlement agreement are now being finalized between the parties. The settlement agreement must be approved by the Federal Court. It is anticipated that this hearing will take place in early 2023.

F. Dickson v. Vuntut Gwitchin First Nation

Lead Minister: Crown-Indigenous Relations and Northern Affairs Canada

Highlight: Challenge to a Vuntut Gwitchin First Nation constitutional provision requiring non-resident Chief and Councillors to relocate to Settlement Land after being elected.

Key Dates: Supreme Court of Canada Appeal hearing scheduled for February 7, 2023.

This appeal and cross-appeal arise from the appellant Cindy Dickson’s s. 15 Charter challenge to the “Residency Requirement” in the respondent Vuntut Gwitchin First Nation’s (VGFN) Constitution, which requires that a Chief or Councillor relocate to VGFN Settlement Land within 14 days of their election. Ms. Dickson, who resides in Whitehorse for family medical and socio-economic reasons, intended to stand for election to VGFN Council in 2018, but was unwilling to relocate. She alleged that the Residency Requirement discriminates on the analogous ground of aboriginal residency.

Ms. Dickson is appealing the Court of Appeal of Yukon judgment interpreting and applying s.25 of the Charter. VGFN is cross-appealing the application of the Charter to the Residency Requirement, and the applicability of “aboriginality-residence” as an analogous ground under s.15(1) in the context of VGFN self-government. The Attorney General of Canada has intervened by right at all levels of court, and will be addressing two significant issues before the Supreme Court: (i) the Charter’s application to Indigenous governing bodies; and (ii) the scope of the protection afforded by s.25 in relation to the collective rights and freedoms of the Aboriginal peoples of Canada.

The Attorneys General of Alberta and Quebec, and the Government of Yukon are also intervening by right on the constitutional questions, and all four governmental interveners have been granted up to 10 minutes of oral argument in addition to their 20-page factums. Ten other interveners have each been granted up to 5 minutes of oral argument in addition to their 10-page factums: Band Members Alliance and Advocacy Association of Canada, British Columbia Treaty Commission, Canadian Constitution Foundation, Carcross/Tagish First Nation, Congress of Aboriginal Peoples, Council of Yukon First Nations, Federation of Sovereign Indigenous Nations, Métis Nation of Ontario, Métis Nation of Alberta, Pan-Canadian Forum on Indigenous Rights and the Constitution, and Teslin Tlingit Council. All intervener factums have been filed. Ms. Dickson and VGFN will file factums in reply to the intervener factums by November 24, 2022. The appeal and cross-appeal will be heard on February 7, 2023. The Court may issue its judgment by the end of 2023.

G. Kahentinetha et al. v. Société québécoise des infrastructures et al.

Lead Minister: Crown-Indigenous Relations and Northern Affairs Canada

Highlight: Forensic and archeological investigation on the site of the Royal Victoria Hospital and Allan Memorial Institute.

Key Dates: The Interlocutory Injunction was heard October 26-27, 2022. The Court partly granted the interlocutory injunction.

The Applicants brought an application for declaratory relief and injunction by six members of the Kahnawake community. They are requesting Canada to provide funds for a forensic and archeological investigation on the site of the Royal Victoria Hospital and the Allan Memorial Institute (the “site”), located on the Mount Royal mountain in Montreal.

The Applicants request the immediate stop of all renovation work on the site and allege that they will suffer irreparable harm if the projected works proposed by the McGill University go forward. Canada has no involvement in the projected work. According to the Applicants, there would be evidence the site contains archeological remains from precolonial Iroquoian villages. The Applicants further allege that Indigenous children were buried on site between 1954 and 1963, and they contend that the site must be investigated for potential unmarked graves of atrocities committed during the MK-Ultra program by the CIA and Canada.

On October 27, 2022, the Court orally issued an order to stop the excavation work. The interlocutory order contains no conclusion against Canada. Discussions are taking place between the parties, who were ordered by the Court to draft an archeological plan.

H. Stonechild v. HMTQ

Lead Minister: Crown-Indigenous Relations and Northern Affairs Canada

Highlight: Federal Court certified class action regarding the removal of Indigenous children from their off reserve homes between January 1, 1992 to December 31, 2019 and their placement in non-Indigenous homes outside of their respective communities.

Key Dates: n/a

The claim is on behalf of a “Primary” class that specifically excludes the on-reserve putative class members in Moushoom and a “Family” class of parents and grandparents of the plaintiffs.

The case raises issues similar to those in other Indigenous children’s claims, including loss of cultural identity (language, heritage, spirituality and traditions), abuse and Canada’s failure to provide adequate funding for child welfare services. The claim has links to other class actions involving Residential Schools, Day Schools, Indian Hospitals, 60s Scoop, welfare services and foster care.

Despite the Plaintiffs having opted to seek relief for Canada’s several liability only, the appropriate resolution of the issues raised requires the presence and participation of the provinces and territories. The involvement of the provinces, territories, and child protection services and authorities is required for the proposed common issues to be meaningfully addressed. A class proceeding that excludes those who were responsible for the provision of child welfare services and, more importantly, those who were statutorily obligated to protect the Indigenous identity of children in their care, cannot be the preferable procedure for the just and efficient resolution of this claim.

On June 17, 2022, the Federal Court certified this action as a class proceeding with common issues related to systemic negligence, breaches of s. 7 and s. 15 of the Charter, unjust enrichment, and punitive damages.

On June 27, Canada appealed the certification decision. The appeal is presently in abeyance as the parties engage in discussions towards a possible resolution.

Following the certification hearing, several related, overlapping proposed class actions have been brought seeking Canada’s and the provinces’ joint liability for systemic discrimination and Charter breaches in the provision of child protection services before the provincial superior courts.

I. Diane BigEagle v. HMTQ

Lead Minister: Public Safety Canada

Highlights: Class action appeal with respect to missing and murdered Indigenous women and two-spirited individuals Canada successfully opposed certification of the class action, which was then struck.

Key Dates: Appeal hearing was heard October 25, 2022. Waiting for decision to be rendered.

This is a proposed class action relating to missing and murdered Indigenous women and two-spirited individuals. The proposed class includes family members of victims, individuals who were in a relationship with victims, individuals from the same reserves as victims, and individuals entitled to make claims under provincial fatal accidents legislation. “Victims” are defined as women or two spirited individuals who were murdered (and whose murder was reported to the RCMP but remains unresolved) or who have been missing for more than 30 days and whose disappearance has been reported to the RCMP. The claim alleges systemic negligence by the RCMP and breaches of sections 7 and 15 of the Charter with respect to investigations of crimes committed against missing and murdered Indigenous women and girls. The claim seeks damages, including Charter damages, in the amount of $500 million, and punitive damages in the amount of $100 million.

Canada successfully opposed certification in a hearing in September 2020. The Federal Court then struck the action in its entirety. On June 28, 2021 the Applicants filed an appeal in the Federal Court of Appeal. The appeal was heard October 25, 2022. A decision is anticipated six months following the hearing.

J. Nasogaluak v. Attorney General of Canada

Lead Minister: Public Safety Canada

Highlights: Class action regarding RCMP violence against Aboriginal Persons in the Territories

Key Dates: Appeal hearing was heard May 18, 2022. Waiting for decision to be rendered.

This is a class action brought on behalf of Aboriginal Persons who allege that they have been subjected to excessive force by the RCMP in Nunavut, Yukon, and the Northwest Territories.

The plaintiffs allege breaches of a duty of care and fiduciary duties, as well as ss. 7 and 15 Charter breaches and seek $600 million in damages. Canada opposed certification.

On June 23, 2021, the Federal Court granted the plaintiff’s motion to certify a proposed class action relating to allegations of unlawful assaults committed by RCMP officers against Indigenous people in Yukon, Northwest Territories, and Nunavut.

The AGC filed its notice of appeal of the certification order on July 5, 2021. The key issues on appeal are whether the court erred in certifying the causes of action and finding common issues.

[Redacted]

The appeal was heard May 18, 2022. A decision is anticipated six months following the hearing.

K. Dominique (Pekuakamiulnuatsh) v. Public Safety Canada (CHRT) / AGC v. Dominique (FC) / Pekuakamiulnuatsh Takuhikan v. PGC and PGQ (QCA)

Lead Minister: Public Safety Canada

Highlights: Discrimination in the tripartite agreements entered into with the First Nations Policing Program.

Key Dates: Federal Court Hearing took place on November 15, 2022. Waiting for a decision to be rendered.

The complainant, Mr. Gilbert Dominique, Chief of the Pekuakalminuatsh First Nation in Mashteuiatsh, filed a complaint with the Canadian Human Rights Commission alleging that Public Safety Canada discriminated against him (s. 5 of the Canadian Human Rights Act). More specifically, the First Nation was allegedly discriminated against in the tripartite agreements entered into under the First Nations Policing Program, due to lower funding and service levels than other police forces in Quebec and the imposition of one-year agreements. Canada argued that in terms of funding and services, the First Nation had access to services equal to or better than those of the surrounding communities, in addition to receiving support, free of charge, from the Sûreté du Québec. In its decision, the Canadian Human Rights Tribunal concluded that there was unfavourable treatment based on a ground of discrimination, particularly in that the level of funding granted to the First Nation did not correspond to its real needs.

On March 2, 2022, Canada filed an application for judicial review of the decision of the Canadian Human Rights Tribunal in the Federal Court. The application was heard on November 15, 2022.

This case is also the subject of a related decision before the Superior Court of Quebec where the Court rejected the First Nation’s claims of breach of honour of the Crown, fiduciary duty and breach of contract. This decision from the Superior Court of Quebec is currently before the Quebec Court of Appeal (QCA). The hearing before the QCA was held February 10, 2022.

L. Geoffrey Greenwood and Todd Gray v. HMQ

Lead Minister: Public Safety Canada

Highlights: Class action for damages by RCMP employees for harassment in the workplace.

Key Dates: December 16, 2022 – AGC’s written representations in response to the motion to amend the class definition due

The plaintiff RCMP members bring this action on behalf of current and former persons working for or with the RCMP alleging that RCMP’s leadership was negligent in failing to provide a workplace free from bullying, intimidation and harassment. The Federal Court certified the action on January 23, 2020. The Federal Court of Appeal (FCA) allowed Canada’s appeal, in part, upholding certification, but narrowing the scope of the action and the class. The FCA limited the class period from January 1, 1995 to the date a collective agreement comes into force for class members’ bargaining unit(s). The FCA also removed a common question relating to aggregate damages from being certified. Canada’s application for leave to appeal to the Supreme Court of Canada was dismissed on March 17, 2022.

On September 20, 2022, the Federal Court issued a revised certification order, reflecting the amendments made by the FCA. The order also approved the Notice of Certification and Notice Plan. The Notice and Opt-out period began on September 24, 2022 and will end on November 23, 2022. On October 7, 2022, the plaintiffs served Canada with a Notice of Motion seeking to amend the class definition to add a secondary class, with derivate claims under the Family Law Act (Ontario) and equivalent legislation across Canada.

M. Kahnapace, Martha et al. v. The Attorney General of Canada

Lead Minister: Public Safety Canada

Highlight: Proposed class proceeding on behalf of female Indigenous offenders placed in federal correctional facilities from 1991 to present whose security classification was determined by means of the Custody Rating Scale (CRS).

Key Dates: Certification hearing was heard November 15-17, 2022.

The CRS is a standardized test used to assess the public and institutional risk of federal offenders in the custody of the CSC, resulting in their assignment to minimum, medium or maximum security, as appropriate. The plaintiff asserts that CSC is aware the CRS over-classifies Indigenous and female offenders, and particularly Indigenous female offenders, resulting in longer and harsher punishment. The plaintiff claims that in continuing to use the CRS, the CSC is in breach of several provisions of the Corrections and Conditional Release Act or alternatively, engages in deliberate and conscious race-based systemic bias against Indigenous inmates.

The plaintiff seeks certification as a class proceeding, various damages, a Charter remedy, a declaration that the use of the CRS infringes sections 7 (life, liberty and security of the person) and 15 (equality) of the Charter, and an interim, interlocutory and permanent injunction prohibiting the use of the CRS in respect of class members.

The plaintiffs have brought an injunction motion wherein they seek to prevent CSC from using the CRS pending determination of their claim. That motion has not yet been set for hearing.

N. Nicholas Marcus Thompson et al. v. HMQ

Lead Minister: Treasury Board Secretariat

Highlight: Systemic inequalities and racism faced by Black Canadians within the Public Service.

Key Dates: April 10, 2023 – AGC’s Certification factum due; May 8-12, 2023 – Certification motion hearing.

The proposed class action is brought on behalf of all Black individuals who worked for Canada as part of the Public Service (as defined in a schedule to the Claim) at any time after 1970. The listed departments include all government departments listed in schedules I, IV and V of the Financial Administration Act, as well as the RCMP, and the Canadian Armed Forces. The claim alleges that despite efforts and legislative actions intended to remedy systemic inequality for Black Canadians the measures put in place have failed to redress these harms and have instead exacerbated the systemic inequalities and racism faced by Black Canadians, particularly in the hiring and promotion practices within the Public Service.

O. Fédération des francophones de la Colombie-Britannique (FFCB) v. Department of Employment and Social Development Canada

Lead Minister: Employment and Social Development Canada

Highlight: French language rights challenge.

Key Dates: June 16, 2022 – AGC filed its response factum in the Supreme Court of Canada.

The FFCB sought a declaration that the programs offered by British Columbia and funded by the Government of Canada under the Agreement on the Labour Market and Agreement on the Development of the Labour Market do not meet the language requirements set out in the Official Languages Act, parts IV and VII, and s. 20 of the Charter. The Commissioner of Official Languages intervened in the application. They sought an order requiring British Columbia and Canada to: (1) take the necessary measures to ensure that employment benefits and support measures offered comply with the Act and (2) to develop together with the francophone community of British Columbia, formal and permanent monitoring mechanisms to ensure compliance with language obligations under the Act.

The Federal Court dismissed the application and found that (1) it has jurisdiction to decide constitutional issues; (2) the merits of the complaint are assessed at the time of the complaint; (3) employment assistance services developed and delivered by British Columbia fall within the legislative jurisdiction of the province and are not provided on behalf of Employment and Social Development Canada (ESDC) (Part IV of the Act); (4) ESDC has an obligation to take positive action even under the Labour Market Agreement; ESDC has taken positive steps for the benefit of British Columbia’s Francophone community (Part VII); (5) in the absence of a violation, the Court cannot order compensation and (6) costs were awarded to the FFCB.

The FFCB and the Official Languages Commission filed an appeal. On January 28, 2022, the Federal Court of Appeal allowed the appeal of the FFCB with costs for the purposes of Part VII of the Act only. Absent an application for leave to appeal to the Supreme Court of Canada, and a stay, the federal government must notify British Columbia that it will terminate the Labour Market Development Agreement on April 1, 2024.

On March 22, 2022, the AGC filed a motion for a stay with the FCA, stating the AGC’s intention to file an application for leave to appeal to the Supreme Court of Canada from the FCA’s judgment. On March 23, 2022, the FCA dismissed the motion for a stay. The AGC decided not to file an application for leave to appeal to the SCC and as a result, the federal government had to notify British Columbia that it will terminate the Agreement. On March 29, 2022, the FFCB filed an application for leave to appeal the judgment of the FCA regarding subsection 20(1) of the Charter and Part IV of the Act.

P. Société Radio-Canada v. Attorney General of Canada

Lead Minister: Canadian Heritage

Highlight: CBC appeal of a Canadian Radio-television and Telecommunications Commission (CRTC) decision.

Key Dates: November 18, 2022 – AGC’s Notice of Appearance filed.

The CBC is appealing a CRTC decision finding that the use and repetition of the "n-word" on air in a segment of a program was inconsistent with the objectives of the Broadcasting Act.

The CRTC required (1) that the CBC provide a public written apology to the complainant, (2) that the CBC report to the CRTC by September 27, 2022, on internal measures and programming best practices to ensure that it better addresses a similar issue in the future, and (3) that the CBC indicate by July 29, 2022, how it intends to mitigate the impact of the "n-word" in the segment of the program that is still available to the public.

The CBC argues that the CRTC exceeded its jurisdiction by relying on a non-jurisdictional statutory provision to control the content that the CBC can broadcast on air, without considering the applicable legal framework as a whole. The CBC also claims that the CRTC failed to consider the freedom of expression and freedom of the press protected by the Canadian Charter of Rights and Freedoms.

On September 2, 2022, the Federal Court of Appeal dismissed the CBC’s application to stay the CRTC’s decision. The CBC’s application for leave to appeal the CRTC decision was granted by the Federal Court of Appeal on September 12, 2022.

On November 8, 2022, the CBC filed its notice of appeal. The Attorney General of Canada filed a Notice of Appearance on November 18, 2022.

Q. Boloh et al. v. HMTQ et al.

Lead Minister: Global Affairs Canada

Highlight: An order of mandamus for Canadians currently in detention camps or prisons under the control of Syrian Kurdish forces.

Key Dates: Hearing of mandamus application on December 5-6, 2022.

The Applicants are 27 Canadians currently in detention camps or prisons under the control of Syrian Kurdish forces, as well as their family members in Canada. They seek an order of mandamus, to compel the federal government to facilitate the repatriation of these detained individuals based on legal obligations under the Charter, statute and international law. In response, Canada asserts that it has no legal obligation to repatriate the Applicants.

R. PS752 Litigation: Arsalani v. UIA, Doe/Zarei v. Iran et al., Smith v. Iran

Lead Minister: Global Affairs Canada

Highlight: Various actions brought by families of the victims of Iran’s downing of Flight PS752 (Canada is not a party in the individual or class actions).

Key Dates: No forward timetable.

On November 9, 2020, Arsalani was awarded the carriage of a class action brought on behalf of the families of victims of Iran’s downing of UIA flight PS752. This action seeks damages from Iran and other Iranian Defendants as well as Ukrainian International Airlines. The class action was certified on February 22, 2021.

Zarei et al. v. Islamic Republic of Iran (previously referred to as the John Doe action) is an action brought by six plaintiffs who are family members of the victims of PS752 that proceeded as an individual action seeking damages from Iran, following the carriage decision. The Court ordered a bifurcation of liability and damages on a default summary judgment motion. On May 20, 2021, the Superior Court granted default judgment against Iran, and found that the downing of flight PS752 was an act of terrorism and constitutes “terrorist activity” under Part II.1 of the Criminal Code and the State Immunity Act (‘SIA’).

The Court found Iran does not benefit from state immunity, and that Iran is liable to the plaintiffs under the Justice for Victims of Terrorism Act. Iran took no steps to defend this action. On December 31, 2021, the Ontario Superior Court of Justice released its summary judgment decision on damages, awarding $107 million to the plaintiffs. On April 6, 2022, the plaintiffs in Zarei requested that the Deputy Minister transmit the default judgment to Iran. Transmission under the SIA is a prerequisite to enforcement of the default judgment against the property of Iran.

On January 6, 2022, a statement of claim was issued in Smith v. Iran, a representative action on behalf of 100 unnamed family members of victims of the downing of flight PS752. Transmission of the statement of claim is in process. In the past, it has taken up to 9 months to transmit documents to Iran.

On March 25, 2022, a statement of claim was issued in Dhirani et al. v. Islamic republic of Iran et al., an action brought by the family of a passenger, wherein the Plaintiffs are seeking $35M in damages under the Justice for Victims of Terrorism Act.

Canada is not a party in any of these actions.

S. Ross, Roy and Satalic v. AGC [LGBT Purge]

Lead Minister: National Defence

Highlight: Settled class action regarding dishonourable discharge or wrongful dismissal due to sexual orientation.

Key Dates: December 6, 2022 – Federal Court settlement approval hearing.

This is a settled class action for lesbian, gay, bisexual and transgender Canadians who were dismissed from their careers in the military or the federal public service because of their sexual orientation, gender identity or gender expression.

The class action was settled and is in the implementation stage. Some litigation continues to take place in the context of settlement implementation.

On September 21, 2021, the LGBT Purge Fund (the Fund), which is now a party to the Final Settlement Agreement, brought a motion seeking a declaration that Canada was in breach of its obligations under the Final Settlement Agreement (relating to the disclosure of archival records) and an order compelling Canada to comply with its terms. The parties have settled the motion pending approval by the Federal Court.

T. Justice for Québec et al. v. Attorney General of Canada

Lead Minister: Privy Council Office

Highlight: Challenge of the validity of the appointment of the Governor General based on language rights.

Key Dates: November 25, 2022 – The AGC filed an application asking the Québec Superior Court to dismiss the file for lack of jurisdiction; January 10, 2023 – a hearing date will be set for the application.

The plaintiffs have filed an application in the Quebec Superior Court challenging the appointment of the current Governor General. They argue that the appointment contravenes subsections 16(1) and 20(1) of the Canadian Charter because, they allege, at the time of her appointment as Governor General, she did not have a sufficient command of the French language. They ask the Court to declare the instrument of appointment, the report of the Advisory Panel for the Selection of the Governor General, and the advice of the Prime Minister of Canada recommending the appointment of the current Governor General, void, invalid and unenforceable.

In its application, the AGC argues that the Federal Court has exclusive jurisdiction over the issue. The application is made without prejudice to future arguments as to the justiciability of the issue.

U. La Société de l’Acadie du Nouveau-Brunswick (SANB)

Lead Minister: Privy Council Office

Highlight: Official Languages challenge to the appointment of the Lieutenant Governor of New Brunswick.

Key Dates: Hearing of this appeal is likely to take place in June 2023.

On September 5, 2019, Ms. Murphy was appointed as the Lieutenant Governor of New Brunswick by the Governor General of Canada, on the recommendation of the Prime Minister. The SANB filed an application challenging the appointment, alleging that the Prime Minister, in recommending Ms. Murphy, breached his statutory obligations as they are framed under the Official Languages Act (“OLA”) and the Charter. It also alleges that Ms. Murphy is non-compliant to the obligations under OLA as she is not fluent in French. Finally, it also alleges that the Charter imposes an obligation that the Lieutenant Governor of New Brunswick be fluently bilingual.

On April 14, 2022, the New Brunswick Court of Queen’s Bench rendered its decision. While recognizing that subsections 16(2), 16.1(2) and 20(2) of the Charter create obligations of an institutional nature, the Court held that, given the Lieutenant Governor of New Brunswick’s unique role as Head of State, these provisions require that she be personally bilingual. However, the Court did not overturn the appointment, preferring to leave it to the government to determine the timing and extent of the steps that will need to be taken to correct the situation. The AGC appealed this decision to the New Brunswick Court of Appeal.

On June 10, 2022, SANB filed a cross-appeal, alleging that the Court erred in not concluding that the appointment was also contrary to paragraphs 18(2), and 16.1(1) of the Charter and refusing to quash the appointment, as an appropriate remedy.

Main Estimates 2022-23 – General Note on Litigation Costs

The federal government continues to support open, transparent and accountable government by sharing total legal costs where it is possible to do so while supporting the proper functioning of our legal system.

Background:

Specific Requests for Legal Costs

In the last year the federal Crown has waived solicitor-client privilege to the extent of disclosing the total legal costs associated with certain files or groups of files in response to a number of Parliamentary Questions seeking legal costs information and we continue to respond to these requests.

Total Legal Costs include Notional Amounts and Actual Costs

Department of Justice lawyers, notaries and paralegals are salaried public servants and therefore no legal fees are incurred for their services. A “notional amount” can, however, be provided to account for the legal services they provide. The notional amount is calculated by multiplying the total hours recorded in the responsive files for the relevant period by the applicable approved internal legal services hourly rates. Actual costs are composed of file related legal disbursements paid by the Department and then cost-recovered from the client-departments or agencies, as well as the costs of legal agents who may be retained by the Minister of Justice to provide litigation services in certain cases.