Court File and Parties

CITATION: Dilico Anishinabek Family Care v. Her Majesty the Queen (Ontario), 2020 ONSC 547

DIVISIONAL COURT FILE NO.: DC-19-013-JR DC-19-014-JR

DATE: 20200130

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: DILICO ANISHINABEK FAMILY CARE, Applicant (Moving Party)

AND:

HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO, TIKINAGAN CHILD and FAMILY SERVICES and CHILDREN'S AID SOCIETY OF THUNDER BAY, Respondent (Responding Parties)

AND:

NISHNAWBE ASKI NATION, Intervenor

AND Between:

FORT WILLIAM FIRST NATION, Applicant (Moving Party)

and:

HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO, TIKINAGAN CHILD AND FAMILY SERVICES and CHILDREN'S AID SOCIETY OF THUNDER BAY, Respondents (Responding Parties)

and:

NISHNAWBE ASKI NATION, Intervenor

BEFORE: Penny J.

COUNSEL: Katherine Hensel and Kaelan Unrau for the Applicant Dilico Anishinabek Family Care Scott C. Hutchison and David Postel for the Applicant Fort William First Nation Lisa LaHorey and Kisha Chatterjee for the Respondent Her Majesty The Queen Right of Ontario Susan M. Vella and Catherine Beamish for the Respondent Tikinagan Child and Family Services Natalie Posala for the Intervenor Nishnabe Aski Nation Nicola-Antonio Melchiorre for the Respondent Children’s Aid Society of Thunder Bay

HEARD at Thunder Bay: January 29, 2020

Endorsement

[1] This is a motion for a stay of the Directive and Designation of the Minister of Children, Community and Social Services dated November 28, 2019.

[2] The effective date of the Directive and Designation begins on January 30, 2020. Among other things, the Directive and Designation designates Tikinagan Child and Family Services as having all of the functions of a Children’s Aid Society in the City and District of Thunder Bay, with the exception of certain identified First Nations reserve lands. The Directive goes on to set out the roles and responsibilities of three Children’s Aid Societies in Thunder Bay for the provision of child and family services. In general, Tikinagan will provide services when necessary to Indigenous children and their families whose bands include one or more First Nations affiliated with Tikinagan. Dilico Anishinabek Family Care will provide services when necessary to Indigenous children and their families whose bands do not include one or more First Nations affiliated with Tikinagan. The Children’s Aid Society of Thunder Bay will provide services to non-Indigenous children and their families. Effective January 30, 2020, Tikinagan may begin to accept new referrals in Thunder Bay. File transfers of existing cases are subject to a review process leading up to a staggered phase in of file transfers starting in June 2020 and concluding in September 2020.

[3] Dilico and the Fort William First Nation have brought applications for judicial review, seeking to set aside the Directive and Designation on various constitutional and administrative law grounds.

[4] At the close of argument on January 29, 2020, I advised the parties that I would reserve my decision overnight. Time is of the essence because the effective date of the Directive and Designation is today. I also advised the parties that my initial order would embody my disposition of the motion with Reasons to follow. This is my disposition of the motion.

[5] There are three elements which must be established by the moving parties in order to succeed on this motion for a stay. The moving parties must establish that:

(1) there is a serious question to be determined in the judicial review applications concerning the validity (or invalidity) of the Directive and Designation;

(2) the applicants will suffer irreparable harm if the Directive and Designation are allowed to take effect on January 30 as intended; and

(3) the balance of inconvenience weighs in favour of granting a stay, in the sense that the harm that will be suffered by the moving parties if a stay is not granted outweighs the harm that will be suffered by the responding parties if it is.

Serious Question

[6] On a motion for a stay, the Court is not to undertake a prolonged or detailed examination of the merits when determining if there is a serious issue to be tried. The threshold is low. The judge must make a preliminary assessment of the merits and need only satisfy himself or herself that the issues raised are not frivolous or vexatious.

[7] Although the merits of the judicial review applications are hotly contested, I am satisfied that the applications are not frivolous and therefore meet the “serious question” criterion.

Irreparable Harm

[8] Irreparable harm turns on whether a refusal to grant the stay will so adversely affect the applicants (or other relevant interests) that the harm could not be remedied (with an award of money damages or other remedial order) if the applicants are ultimately successful on the main application. Irreparable harm must be real and substantial. The evidence establishing irreparable harm must be clear and not speculative. Bald allegations or general beliefs or concerns, without factual underpinning establishing a reasonable likelihood of irreparable harm, do not satisfy this requirement.

[9] The applicants have not established that a stay is necessary to prevent irreparable harm. The second part of the test has not been met.

Balance of Convenience

[10] Balance of convenience involves weighing the harm that will occur if the stay is granted against the resulting harm if it is not.

[11] The applicants have not established that the balance of convenience favours granting the stay. The third part of the test has also not been met.

Conclusion

[12] In conclusion the motion is dismissed.

[13] I will release written Reasons for this conclusion as soon as reasonably possible. Costs will be addressed after the release of Reasons.

Penny J.

Date: January 30, 2020