COURT OF APPEAL FOR ONTARIO
Favreau J.A. (Motion Judge)
BETWEEN
B.M. and C.A.
Plaintiffs (Appellants/Responding Parties)
and
His Majesty the King in Right of Ontario and Attorney General of Canada
Defendants (Respondents/Responding Parties)
Counsel:
David Sterns and Adil Abdulla, for the appellants
Hera Evans, Sarah Pottle, Spencer Nestico-Semianiw and Waleed Malik, for the respondent His Majesty the King in Right of Ontario
Sonja Pavic, Sarah Rajguru and Valeriya Sharypkina, for the respondent Attorney General of Canada
Leanna Farr and Katrina Langevin, for the proposed intervener Anishinabek Nation c.o.b. as Union of Ontario Indians Inc.
Sujit Choudhry, for the proposed intervener British Columbia Civil Liberties Association
Katelyn Johnstone, Maggie Wente and Jenna Rogers, for the proposed intervener Chiefs of Ontario
Hassan M. Ahmad, for the proposed intervener Hiawatha First Nation
Julian Falconer and Erin McMurray, for the proposed intervener Nishnawbe Aski Nation
Adam Wheeler and Kristie Tsang, for the proposed intervener Nigig Nibi Ki-win Gamik
Heard: May 8, 2026
REASONS FOR DECISION
1The appellants propose to bring a class proceeding on behalf of all Indigenous children off-reserve who were apprehended by a children’s aid society in Ontario and Indigenous children who encountered delays and other barriers in obtaining essential social services from 1992 to the present. The claim alleges that the respondents, His Majesty the King in Right of Ontario (“Ontario”) and the Attorney General of Canada (“Canada”), instituted policies and practices that have perpetuated the overrepresentation of Indigenous children in care and that have delayed or prevented Indigenous children from accessing essential services, including health and education services. The appellants’ claim alleges that Canada and Ontario’s policies and practices have breached their rights under ss. 7 and 15 of the Canadian Charter of Rights and Freedoms. The claim also pleads breach of fiduciary duty and negligence.
2The appellants’ motion to certify the claim as a class proceeding was dismissed by the motion judge on August 25, 2025: BM v. Ontario, 2025 ONSC 4575. The motion judge primarily dismissed the motion for certification on the basis of his finding that the claim does not disclose a reasonable cause of action.
3The appeal is scheduled to be heard over two days on September 28 and 29, 2026.
4There are six proposed interveners on the appeal:
(a) The Anishinabek Nation c.o.b. as Union of Ontario Indians Inc.;
(b) The British Columbia Civil Liberties Association (“BCCLA”);
(c) The Chiefs of Ontario;
(d) Hiawatha First Nation;
(e) Nishnawbe Aski Nation; and
(f) Nigig Nibi Ki-win Gamik (“Nigig Gamik”).
5The appellants do not oppose any of the motions for leave to intervene.
6The respondents on the appeal take no position on the motion for leave to intervene brought by the BCCLA and take no position on part of the proposed intervention by the Chiefs of Ontario. They oppose the balance of the motions for leave to intervene.
7As explained below, I am granting leave to intervene to the Anishinabek Nation, the BCCLA, the Chiefs of Ontario and the Nishnawbe Aski Nation. The other motions for leave to intervene are dismissed.
1. General principles
8All proposed interveners seek leave to intervene as friends of the court pursuant to rr. 13.02 and 13.03(2) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. When deciding whether an application for leave to intervene should be granted, the court will consider “the nature of the case, the issues which arise and the likelihood of the applicant being able to make a useful contribution to the resolution of the appeal without causing injustice to the immediate parties”: Peel (Regional Municipality) v. Great Atlantic & Pacific Co. of Canada Ltd. (1990), 1990 6886 (ON CA), 74 O.R. (2d) 164 (C.A.), at p. 167; Canadian Federation of Students v. Ontario (Colleges and Universities), 2020 ONCA 842, 476 C.R.R. (2d) 258, at para. 10. The overarching consideration is whether the proposed intervener will likely make a useful contribution to the resolution of the appeal: Peel, at p. 167; Bedford v. Canada (Attorney General), 2009 ONCA 669, 98 O.R. (3d) 792, at para. 2; and G.G. v. Ontario, 2026 ONCA 164, at para. 13.
9The test for granting leave in constitutional cases is more relaxed than in litigation between private parties: Peel, at p. 167. Because constitutional cases may have a wide impact on the rights of others who are not parties to the litigation, interventions provide such affected individuals and groups with an opportunity to be heard: Animal Justice v. Ontario (Attorney General), 2024 ONCA 941, at para. 12.
10In a case that raises Charter issues, proposed interveners must usually meet at least one of the following criteria: (1) they have a real, substantial and identifiable interest in the subject matter of the proceedings; (2) they have an important perspective distinct from the immediate parties; or (3) they are a well-recognized group with special expertise and a broadly identifiable membership base: Bedford, at para. 2; Reference re Greenhouse Gas Pollution Pricing Act, 2019 ONCA 29, at para. 8.
11There are nonetheless necessary limits to the scope of intervention even in constitutional litigation. Such limits may arise where a perspective or interest is adequately represented without the proposed intervener’s involvement: Bhajan v. Ontario (Children’s Lawyer), 2010 ONCA 560, 322 D.L.R. (4th) 332, at para. 8; Animal Justice, at para. 13. Leave to intervene may also be refused where the submissions of the proposed intervener are duplicative of the submissions of others: Fair Voting BC v. Canada (Attorney General), 2024 ONCA 619, at para. 13.
2. Application of the general principles to the proposed interveners
12Before addressing the merits of each proposed motion for leave to intervene, I want to emphasize that all proposed interveners in this case have important perspectives on the issues raised by the appellants’ claim. If the appeal is successful, their perspectives may be helpful at a later stage in the proceedings. However, the issue on appeal will be whether the motion judge erred in refusing to certify the action as a class proceeding. At this stage, the issue is limited to whether the claim discloses a cause of action as required under s. 5(1)(a) of the Class Proceedings Act, 1992, S.O. 1992, c. 6, and whether the proposed action meets the other criteria for certification. Therefore, the overarching question on this motion is whether the proposed interveners will likely make a useful contribution to the resolution of the issues that arise on appeal and not with respect to the merits of the underlying claim.
a. Anishinabek Nation c.o.b. as Union of Ontario Indians Inc.
13The Anishinabek Nation is a political tribal organization comprised of people from the Ojibway, Odawa and Pottawotami Nations, also known as the Three Fires Confederacy. They advocate on behalf of 39 First Nations located throughout Ontario.
14If granted leave to intervene, the Anishinabek Nation proposes to address the following three issues:
(a) The role of the courts in including Indigenous law where Indigenous parties are involved;
(b) The historical and contemporary role of Indigenous law with respect to the care and protection of Anishinaabe children; and
(c) The role of First Nations (Band) Representatives within provincially administered child welfare systems, and “why their participation is critical to assessing whether the alleged deficiencies are systemic in nature and capable of resolution on a class-wide basis.”
15The appellants consent and the respondents oppose granting intervener status to the Anishinabek Nation.
16I am satisfied that the Anishinabek Nation should be granted leave to intervene, but on the limited issue of the role of First Nations (Band) Representatives.
17The first two issues that the Anishinabek Nation proposes to address go well beyond the scope of the issues raised by the parties on appeal. The role of Indigenous law may ultimately be relevant in the proceedings if the appeal is successful and the action is certified as a class proceeding. However, it does not arise at this stage of the proceedings based on the issues raised by the parties on appeal.
18The issue of the role of First Nations (Band) Representatives is different. One of the appellants’ arguments on appeal is that the motion judge improperly dismissed the motion for certification on the basis that the claim does not impugn specific programs and services, but rather attacks general health and social policies. On appeal, the appellants submit that this was an error because the claim identifies specific programs, including funding for band representatives.
19In its proposed draft factum, the Anishinabek Nation discusses the role of First Nations (Band) Representatives in proceedings involving child protection. The draft factum identifies provisions in the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1 that require consultation with bands. The draft factum also refers to a decision of the Canadian Human Rights Tribunal that addresses the role of Band representatives. The appellants’ factum does not include this legislative and jurisprudential perspective.
20In my view, it will be helpful for the panel hearing the appeal to have this perspective. However, I am concerned that, as currently drafted, the section of the Anishinabek Nation’s proposed factum on this issue relies on affidavit evidence that would expand the record. This is not the proper role of an intervener, especially at this stage of the proceedings which, as indicated above, deals primarily with the adequacy of the statement of claim.
21Accordingly, I grant leave to the Anishinabek Nation to intervene in the appeal on the sole issue of the First Nations (Band) Representatives. I direct the Anishinabek Nation to file a revised factum of no more than ten pages that only addresses this issue and that does not expand the evidentiary record.
b. British Columbia Civil Liberties Association
22The BCCLA is a national, non-profit group that has extensive experience advocating for the protection of civil liberties and human rights. The Supreme Court of Canada and provincial appellate courts in Canada, including this court, have frequently granted the BCCLA intervener status.
23If granted leave to intervene, the BCCLA proposes to address the following issue: where a government delegates the delivery of public programs to a public sector entity that is independently subject to the Charter, in what circumstances does that government have residual Charter liability for any unconstitutional conduct by that public sector entity?
24The appellants consent and the respondents take no position on granting intervener status to the BCCLA.
25I am satisfied that the BCCLA can provide a unique perspective on an issue that arises on this appeal. The BCCLA’s participation will not expand the scope of the appeal. I therefore grant the BCCLA leave to intervene.
c. Chiefs of Ontario
26The Chiefs of Ontario is a not-for-profit organization whose mandates and directions are set by the Chiefs from each of Ontario’s 133 First Nations. The Chiefs of Ontario has experience intervening before this court and the Supreme Court of Canada.
27If granted leave to appeal, the Chiefs of Ontario intends to propose a framework for assessing the justiciability of Charter claims that challenge complex government policy decisions involving the design, management, control and funding of social programs.
28The appellants consent to the Chiefs of Ontario’s motion to intervene. The respondents take no position on the Chiefs of Ontario’s intervention as it relates to a justiciability framework but take issue with some aspects of its proposed intervention. In particular, they argue that the Chiefs of Ontario’s proposed intervention improperly duplicates the appellants’ submissions and addresses the merits of the appeal.
29I am satisfied that the Chiefs of Ontario can provide a unique and helpful perspective in this appeal. While some of their proposed submissions overlap with the appellants’ submissions, they bring a different and nuanced perspective to the issue of justiciability which may be of assistance to the panel hearing the appeal.
30I do have concerns about the length of the Chiefs of Ontario’s factum, which is 20 pages. In the normal course, an intervention factum is no more than 10 pages, and exceptionally up to 15 pages.
31Accordingly, I grant leave to the Chiefs of Ontario to intervene in the appeal. However, I direct the Chiefs of Ontario to file a revised factum of no more than 15 pages. The revised factum is to substantially address the same issues as the current factum.
d. Hiawatha First Nation
32The Hiawatha First Nation is an Anishinaabe community located on the north shore of Rice Lake, south east of Peterborough, Ontario. The Hiawatha First Nation has a partnership with Dnaagdawenmag Binnoojiyag Child & Family Services, which is designated as a child welfare authority that provides child protection services to its community. This partnership is meant to offer child welfare services consistent with the community’s own culture and values. The Hiawatha First Nation conducts research and engages with governmental bodies on First Nations and Indigenous child and family welfare.
33If granted leave to intervene, the Hiawatha First Nation proposes to submit that the s. 15 Charter analysis in this case must consider whether parenting capacity assessments within Ontario’s child welfare system meaningfully account for Indigenous modes of parenting. The draft factum the Hiawatha First Nation proposes to file on the appeal focuses on the difference between Indigenous modes of parenting and Western modes of parenting. The Hiawatha First Nation submits that Western modes of parenting should not be viewed as the norm, and that a s. 15 analysis ought to consider differences in parenting methods. The draft factum relies on a number of academic articles that support this perspective.
34The appellants consent and the respondents oppose granting intervener status to the Hiawatha First Nation.
35I am not satisfied that the Hiawatha First Nation should be granted leave to intervene. The issue the Hiawatha First Nation proposes to raise goes well beyond the scope of the issues raised by the parties on appeal. Specifically, the appellants’ claim does not address parenting capacity assessments or different modes of parenting and how they may impact the s. 15 Charter analysis at this stage of the proceedings. Moreover, the Hiawatha First Nation’s reliance on academic articles would have the effect of improperly expanding the evidentiary record2. The issues and evidence the Hiawatha First Nation seeks to address may ultimately be relevant to the merits of the claim if the action is certified and proceeds to trial, but not at the certification stage in light of the issues as framed by the appellants.
36The Hiawatha First Nation’s motion for leave to intervene is therefore dismissed.
e. Nishnawbe Aski Nation
37Nishnawbe Aski Nation is a political territorial organization representing 49 First Nations across Northern Ontario. Nishnawbe Aski Nation is mandated by its members to advocate on matters concerning the welfare of First Nations children and families. Nishnawbe Aski Nation was granted intervener status at the remedial stage following the decision in First Nations Child and Family Caring Society of Canada v. Canada (Attorney General), 2016 CHRT 2 (“Caring Society”).
38If granted leave to intervene, Nishnawbe Aski Nation proposes to make submissions on the application of s. 15 of the Charter in the context of claims alleging adverse-effect discrimination arising from the operation of child welfare systems affecting Indigenous children. Specifically, it proposes to address the motion judge’s reliance on the Caring Society decision as the basis for a comparator between Indigenous children on reserve and off-reserve.
39The appellants consent and the respondents oppose granting intervener status to Nishnawbe Aski Nation.
40I am satisfied that Nishnawbe Aski Nation can provide a unique and helpful perspective in this appeal. While some of their proposed submissions overlap with the appellants’ submissions, they bring a different and nuanced perspective to the issue of the motion judge’s s. 15 Charter analysis and his reliance on the Caring Society decision which may be of assistance to the panel hearing the appeal.
41I do not agree with the respondents’ concern that Nishnawbe Aski Nation’s draft factum improperly expands the record. It does not rely on affidavit evidence in support of its proposed submissions, but only refers to portions of the affidavit filed in support of the intervention to provide some background information regarding Nishnawbe Aski Nation and its involvement in child welfare. These references are not material to the issues on appeal, and they do not improperly expand the record on appeal.
42Nishnawbe Aski Nation is therefore granted leave to intervene.
f. Nigig Nibi Ki-win Gamik
43Nigig Gamik is a federal not-for-profit corporation established by the Algonquins of Pikwakanagan First Nation. Nigig Gamik is the child, youth and family wellbeing agency of the Algonquins of Pikwakanagan First Nation.
44In its draft factum, Nigig Gamik proposes to intervene on the issue of whether the motion judge erred in finding that the claim does not disclose a cause of action, by submitting that:
(a) A certification analysis involving Indigenous child and family services must be conducted in accordance with Indigenous laws and the United Nations Declaration on the Rights of Indigenous Peoples3;
(b) Indigenous child-rearing practices constitute an Aboriginal interest that can ground sui generis fiduciary duties; and
(c) Ad hoc fiduciary duties may be created in Indigenous child and family service contexts, particularly when the state acts as an exclusive intermediary.
45The appellants consent and the respondents oppose granting intervener status to Nigig Gamik.
46I am not satisfied that Nigig Gamik should be granted leave to intervene. The issues Nigig Gamik proposes to raise go beyond the scope of the issues raised by the parties on appeal. Specifically, Nigig Gamik’s proposed arguments on the issues of whether the claim discloses a cause of action for a sui generis or ad hoc breach of fiduciary duty go beyond the claim as pleaded and the arguments on appeal, and therefore would improperly expand the scope of issues on appeal. Notably, the appellants did not specifically plead that Indigenous child-rearing practices are an Aboriginal interest that can ground sui generis fiduciary obligations. Nigig Gamik’s submission that the respondents owe a fiduciary duty to the appellants by virtue of their role as “exclusive intermediaries” on behalf of Indigenous children and families is not pleaded by the appellants. In addition, the appellants do not rely on Indigenous law at this stage of the proceedings. These issues may become relevant if the action is ultimately allowed to proceed to trial, but would unduly expand the scope of issues on this appeal.
47Further, Nigig Gamik’s draft factum relies on its own circumstances in support of its position that the proposed class proceeding discloses a claim for breach of fiduciary duty. However, these circumstances are not pleaded nor are they relevant to determining whether the appellants have pleaded a claim for breach of fiduciary duty.
48Nigig Gamik’s motion for leave to intervene is therefore dismissed.
3. Disposition
49The motions for leave to intervene as friends of the court brought by the Anishinabek Nation, the British Columbia Civil Liberties Association, the Chiefs of Ontario and Nishnawbe Aski Nation are granted. These interveners are granted leave to intervene on the following terms:
(a) The Anishinabek Nation is permitted to serve and file a factum of no more than 10 pages that complies with the restrictions identified above;
(b) The Chiefs of Ontario is permitted to serve and file a factum of no more than 15 pages that complies with the restrictions identified above;
(c) The British Columbia Civil Liberties Association and Nishnawbe Aski Nation are permitted to file factums with essentially the same content and of the same length as they provided in draft on the motions;
(d) The interveners will take the record as it is, and are not to raise any new issues or file additional evidence;
(e) There shall be no costs awarded in favour of or against any of the interveners on these motions or the appeal;
(f) The interveners’ factums are to be served and filed no later than July 10, 2026;
(g) The interveners are each granted 10 minutes to make oral arguments; and
(h) Canada and Ontario are each permitted to serve and file a factum that responds to the issues raised by the interveners, not to exceed 15 pages, by no later than August 14, 2026.
50The motions for leave to intervene brought by Hiawatha First Nation and Nigig Nibi Ki-win Gamik are dismissed, without costs.
“L. Favreau J.A.”
Footnotes
- This appeal is subject to a publication ban pursuant to s. 87(8) of the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1.
- This is not meant to suggest that it is generally improper for an intervener to introduce academic articles. Rather, in the context of this appeal which focuses on the adequacy of the appellants’ statement of claim, the articles Hiawatha First Nation proposes to introduce improperly expand the record.
- UNGA, 61st Sess., UN Doc. A/RES/61/295 (2007) GA Res. 61/295.