CITATION: Dilico Anishinabek Family Care v. Her Majesty the Queen (Ontario), 2020 ONSC 892

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

DC-19-014-JR

DATE: 20200211

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:

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 in 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

REASONS

Overview

[1] This is a motion for a stay.

[2] These proceedings arise out of a long-standing jurisdictional dispute between two representative Indigenous groups in northwestern Ontario over who should be permitted to provide child and family services in the City and District of Thunder Bay.

[3] In November 2019, the Minister of Children, Community and Social Services issued designations authorizing three children’s aid societies to provide the full range of child and family services in Thunder Bay. At the same time, the Minister issued a directive providing that: a) Dilico Anishinabek Family Care will provide services to all Indigenous children and families other than Indigenous children from First Nations affiliated with Tikinagan Child and Family Services; b) Tikinagan will provide services to children and families from Tikinagan-affiliated First Nations; and, c) the Children’s Aid Society of Thunder Bay will provide services to non-Indigenous children and families.

[4] Dilico and the Fort William First Nation brought applications for judicial review seeking to set aside the Directive and Designations of the Minister on various constitutional and administrative law grounds. No date has been set for the judicial review hearing, but the current timetable contemplates a possible hearing in May or June 2020.

[5] The applicants’ also brought motions for a stay of the Directive and Designations. These motions were heard on January 29, 2020 and dismissed in a brief endorsement on January 30, 2020 with Reasons to follow. These are those Reasons.

[6] There are three elements which must be established by the moving parties in order to succeed on the motions 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 Designations;

(2) the applicants will suffer irreparable harm if the Directive and Designations are allowed to take effect on January 30, 2020 as intended; and

(3) the balance of convenience 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.

[7] Whether these three factors have been established, therefore, constitutes the essential issues in the applicants’ stay motions.

BACKGROUND

[8] Dilico was incorporated in 1986 by the Robinson Superior Treaty First Nations. In 1994, Dilico was granted authority by the Kitchee-Gaa-Ming Anishinabek Ogemaag, a group of 12 First Nations (of which Fort William First Nation and other Robinson Superior First Nations are members), to provide child protection services to Indigenous children and families in Thunder Bay. Dilico has operated as a designated children’s aid society since 1995 under what is now the Child, Youth and Family Services Act, 2017, S.O. 2017, c.14, Sch.1 (CYFSA). Initially, Dilico’s designation restricted it to exercising powers as a CAS only over those members of the Dilico-affiliated First Nations residing in the City and District of Thunder Bay, together with powers over all children residing on specified reserve lands. In 2012, Dilico entered into a memorandum of understanding with the Thunder Bay CAS. Under the MOU, Dilico assumed child protection jurisdiction over not only Dilico-affiliated First Nation children but all Indigenous children in Thunder Bay.

[9] Tikinagan Child and Family Services was incorporated in 1984 through the efforts of the 49 Chiefs of Nishnawbe Aski Nation (NAN) which represents many First Nations across northwestern Ontario. In April 1986, Tikinagan was given approved agency status by the Ministry and, in 1987, received its designation as a children’s aid society. Tikinagan’s geographical area includes most of northwestern Ontario including parts of the District of Kenora and the northwest portion of the District of Thunder Bay. Tikinagan has the authority to offer the full range of child and family services within its territorial jurisdiction. In addition, Tikinagan has statutory authority to provide limited child and family services in Thunder Bay for the purposes of delivering prevention services to children from its affiliated First Nations who were living in Thunder Bay. What Tikinagan could not do was exercise any child protection powers under the CYFSA in Thunder Bay.

[10] The City of Thunder Bay is the major center for northwestern Ontario. As a result, many Indigenous peoples from this region travel to and live in Thunder Bay for reasons of education, healthcare, employment and the like. This includes families and their children who are affiliated with NAN First Nations and who are, therefore, also affiliated with Tikinagan.

[11] For the purposes of this motion, it is sufficient to say that the Anishinabek First Nations and the NAN First Nations are culturally and linguistically distinct, as are their perspectives on child welfare services in the context of this dispute. These differences are, quite naturally, also reflected in the positions and attitudes of their respective child and family service agencies, Dilico and Tikinagan.

[12] Section 80 of the CYFSA recognizes the right of Indigenous children to be cared for through “customary care.” Both Dilico and Tikinagan have developed customary care models for use in the child and family services offered by these agencies. Both models reflect cultural values, customs and practices which are distinctive to their affiliated First Nations. The Dilico customary care model is referred to as Mikinaak. The Tikinagan customary care model is referred to as Mamow.

[13] Since at least 2014, there has been a pointed dispute between Fort William/Dilico and NAN/Tikinagan about Tikinagan’s right to offer any child and family services in Thunder Bay and Dilico’s right to offer any services to Tikinagan-affiliated families and children living in Thunder Bay.

[14] Despite several years of effort by the Ministry to reach an accommodation between these entities, the disputes boiled over into litigation in 2016 when Dilico brought proceedings under s. 35 of the Constitution Act, 1982 and the precursor to the CYFSA, the Child and Family Services Act (CFSA) against Tikinagan and the government of Ontario related to jurisdiction over child welfare services. A month later, Tikinagan commenced legal proceedings against Dilico and Thunder Bay CAS seeking to rescind the 2012 MOU on the basis that there had been no consultation with Tikinagan as required under the CFSA.

[15] Further efforts to mediate these disputes did not produce any agreement. In 2017, the Ministry issued Directive CW 002 – 17 to Tikinagan, Dilico and the Thunder Bay CAS with the hope of providing clarity regarding child welfare services to children and families in Thunder Bay, particularly those children and families from Tikinagan communities. This was seen as a temporary or interim step toward a final resolution of the dispute. The 2017 Directive, among other things, directed that Dilico would carry out all functions of a CAS in Thunder Bay for all First Nations, Métis and Inuit children and families living off reserve. Following the 2017 Directive, the parties worked on an implementation protocol but this was never finalized.

[16] In 2019, with no interagency agreement yet achieved, the Ministry conducted a comprehensive review of the designation statements for Tikinagan, Dilico and Thunder Bay CAS. The parties’ positions in this judicial review application remain as they were during the Ministry’s review. The First Nations affiliated with Tikinagan take the position that they have inherent jurisdiction over their children wherever they may live. They are adamantly opposed to their children being served by Dilico in Thunder Bay. They want Tikinagan to serve children from their communities who are living in Thunder Bay in the interests of those children and in the interest of preserving cultural, family and community connections.

[17] The First Nations affiliated with Dilico take the position that they have inherent and exclusive territorial jurisdiction to provide child welfare services in the Robinson Superior Treaty territory, including the City of Thunder Bay and parts of the District of Thunder Bay and that Dilico has, by delegation from the Robinson Superior Treaty First Nations, the exclusive right to exercise this authority.

[18] The extent, quality and sufficiency of the consultations are in dispute but, following the Ministry’s consultations and review, the Minister issued new Designations and a Directive to Dilico, Tikinagan and Thunder Bay CAS on November 28, 2019. The 2019 Directive and Designations:

(a) designate all three agencies as having all the functions of a CAS in Thunder Bay (this includes child protection services); and

(b) direct that:

(i) Dilico will provide services in Thunder Bay to all children whose bands are First Nations affiliated with Dilico and to all other First Nations, Inuit and Metis children except for children whose bands include one or more First Nations affiliated with Tikinagan;

(ii) Tikinagan will provide services in Thunder Bay to children whose bands include one or more First Nations affiliated with Tikinagan;

(iii) Thunder Bay CAS will provide services in Thunder Bay to all children who are not First Nations, Inuit or Métis children;

(iv) on January 30, 2020, Tikinagan will begin accepting new referrals in Thunder Bay;

(v) each society will appoint an inter-society liaison (ISL);

(vi) each society will comply with Standard #6 of the Child Protection Standards outlining requirements for societies transferring cases within a society and between societies;

(vii) case conferences will begin in March 2020 to review each child and family served by Dilico who, under the 2019 Directive, should be served by Tikinagan;

(viii) absent agreement to the contrary, specified percentages of files will be transferred from Dilico to Tikinagan by June 1, 2020, July 2, 2020, August 4, 2020 and September 1, 2020, with all file transfers to be completed by September 15, 2020;

(ix) there will be ongoing supervision by the Ministry, with each society providing reports every 30 days outlining compliance and non-compliance with the Directive and its timelines; and

(x) there be a joint communication to the public.

[19] Following issuance of the Directive and Designations, both Fort William and Dilico brought applications for judicial review to quash the Directive and Designations.

[20] Fort William seeks to quash the Directive and Designations on two grounds. First, Fort William contends that the Directive and Designations unreasonably interfere with its exclusive jurisdiction over the welfare of Indigenous children within its traditional territory, a component of Fort William’s constitutionally protected right to self-government, by permitting Tikinagan to exercise governmental authority as a children’s aid society within Fort William’s territory. Allowing an organization controlled by another First Nations to exercise such governmental power in Fort William’s territory, Fort William alleges in its application, is inconsistent with Fort William’s inherent right to self-government. Second, Fort William maintains that the Directive and Designations also infringe its s. 35 rights under the Constitution Act, 1982 because they were issued without proper consultation, a duty the Crown was required to fulfil in the circumstances.

[21] Dilico seeks to quash the Directive and Designations on the basis that the Minister did not abide by the statutory process set out under s. 44 of the CYFSA, the Minister failed to provide adequate, or any, reasons for his decision and the Minister’s decision is unreasonable for failing to advert to relevant factors which include: a) the quality of care that has and would be provided by Tikinagan; and, b) the risk of confusion that could result from authorizing two children’s aid societies to provide services to Indigenous children within the same geographic area.

AnalySIS

[22] The test for granting a stay was set out by the Supreme Court of Canada in RJR-MacDonald Inc. v. Canada (Attorney General), 1994 117 (SCC), [1994] 1 S.C.R. 311. The court must consider three cumulative factors in determining whether to grant a stay:

(1) whether there is a serious issue to be tried;

(2) whether the moving party would suffer irreparable harm in the absence of a stay; and

(3) whether the balance of convenience as between the parties favours granting the stay, in the sense that the harm that will be suffered by the moving party if the stay is not granted outweighs the harm that will be suffered by the responding party if it is.

[23] I agree with the submission in the Dilico factum that while the RJR-MacDonald test typically focuses on the interests of the applicant (under factor two) and the applicant and respondent (under factor three), cases involving child welfare or child custody require a modification to this approach to the three-part test. The overriding consideration in such cases is the best interests of the child. Here, the Minister, the Thunder Bay CAS and the two Indigenous children’s aid societies operate within a statutory framework which makes the best interests of the child paramount. Section 1(1) of the CYFSA provides that the “paramount purpose of this Act is to promote the best interests, protection and well-being of children.” Accordingly, the application of the RJR MacDonald test, particularly the application of the second and third factors of the RJR MacDonald test, in this case, must be informed by the paramount consideration of the best interests of children.[^1]

Serious Question

[24] I accept as an accurate statement of the starting point for the analysis in the first factor, the words of M. F. Brown J. in 2256598 Ontario Inc. v. World Bowl Entertainment Inc. and Coco Banana Inc., 2013 ONSC 3097 at para. 13. 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 be satisfied that the issues raised are not frivolous or vexatious.

[25] Dilico advances three grounds for its challenge to the Minister’s Directive and Designations:

(1) the Minister’s failure to abide by the relevant statutory framework;

(2) the Minister’s failure to give reasons; and

(3) the unreasonableness of the Minister’s decision, on the basis that the Minister failed to consider relevant factors.

[26] Dilico argues that the power to suspend, amend or revoke the designation of a society is exercised under s. 44(3) of the CYFSA, which requires the Minister’s conclusion, following proper notice and provision of a right to respond, that the amendment is in the public interest. Dilico has pleaded that it was not given appropriate notice or a right to respond and that the Minister failed to consider the public interest in reaching his decision. Relying on the renewed importance of reasons in the administrative law context articulated in the recent decision of the Supreme Court of Canada in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 at para. 81, Dilico argues that the Minister gave no reasons (or inadequate reasons) for his decision to issue the Directive and Designations with respect to the delivery of child welfare services in Thunder Bay. Dilico argues, for example, that nothing provided by the Minister by way of justification for the Directive and Designations grapples with the issues of service quality, capacity and jurisdictional confusion, including the absence of sufficient interagency protocols, raised by Dilico in its earlier comments on the Minister’s proposals and in its submissions on these motions.

[27] The respondents argue that the Minister’s Directive and Designations were issued under s. 34, not s. 44, of the CYFSA. Accordingly, they argue, the particular procedural provisions of s. 44 have no application. In any event, the respondents argue that Dilico received appropriate procedural fairness in the context of the consultations and submissions undertaken and made during the Minister’s reassessment leading up to the new Directive and Designations. Finally, the respondents argue that, reviewing the record of proceedings as a whole, the Minister gave careful consideration to all of Dilico’s concerns and more than adequate reasons for his decision to issue the new Directive and Designations.

[28] Fort William challenges the Minister’s Directive and Designations on the basis that:

(a) they unreasonably interfere with Fort William’s constitutional right to self-government under s. 35 of the Constitution Act, 1982 that entails exclusive jurisdiction over child welfare services for all Indigenous children within its traditional territory of the City and District of Thunder Bay; and

(b) the Minister failed to fulfil his duty to consult with Fort William prior to issuing the Directive and Designations.

[29] The respondents argue that the right asserted by Fort William is unproved and unprecedented. Tikinagan, for example, argues that Fort William cannot meet the test for proof of an Indigenous right under s. 35 because it cannot prove that:

(a) the exercise of child welfare and protection powers over non-Anishinabek Indigenous people is integral to Fort William’s distinctive culture;

(b) this alleged authority over child welfare is based on pre-contact practice, custom or tradition; and

(c) the requisite continuity between this pre-contact practice and Fort William’s contemporary activity.

The respondents also argue that even the attempt to prove these rights requires a trial and cannot be rolled up into a judicial review application, citing, among others, the Supreme Court of Canada decision in Ktunaxa Nation v. British Columbia (Forests, Lands and Natural Resource Operations), 2017 SCC 54, [2017] 2 S.C.R. 386. Finally, the respondents argue that the evidence plainly shows that Fort William was consulted by the Minister and that Fort William’s views were forcefully made to, and considered by, the Minister before the new Directive and Designations were issued.

[30] It is not my role as a motion judge hearing a motion for an interlocutory stay of the Minister’s Directive and Designations to resolve these complex issues. The merits of these applications are clearly hotly contested.

[31] Regarding the Fort William application, what can and cannot be proved as to the traditional exercise of child welfare functions, whether a novel or unprecedented rights claim under s. 35 will or will not succeed, whether Fort William’s rights claims will require a trial and the scope and content of the duty to consult, and whether that duty was fulfilled in the circumstances of this case, raise complex issues which cannot and should not be resolved at this stage.

[32] Similarly, in connection with the Dilico application, the interpretation and application of the CYFSA to the complicated circumstances raised in this case, the scope of procedural fairness warranted in the circumstances and whether it was provided, and whether the Minister’s Directive and Designations were sufficiently justified, also raise complex issues which cannot and should not be resolved at this stage.

[33] The exercise of control over the well-being of their children – in the broadest sense of personal, cultural, ethical and spiritual – is a source of deep and entirely justifiable concern for both First Nations groups and their agencies involved in this dispute. The fact that its form manifests differently – territorial jurisdiction as opposed to personal, cultural or ethnological – does not take away from the absolute validity of this concern for the welfare of their children, particularly in the context of child protection, which animates both sides so deeply.

[34] The applicants have, in my opinion, asserted grounds for judicial review of the Directive and Designations which are not frivolous. There are serious issues which can only be resolved in a full hearing. The applicants have, therefore, satisfied the first aspect of the RJR MacDonald test.

Irreparable Harm

[35] Irreparable harm turns on whether a refusal to grant the stay will so adversely affect the applicants (or other relevant interests – primarily, as discussed above, the interests of Indigenous children) 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.

[36] Fort William asserts that it will suffer irreparable harm unless a stay is granted because the Directive and Designations will interfere with Fort William’s asserted right to self-government, causing detriment to the people of Fort William’s collective dignity, identity and sense of community. This detriment, or harm, it argues, is not compensable by an award of money damages or other remedial order.

[37] Acknowledging the paucity of precedent on this point, Fort William relies on a recent decision of a single judge of the Court of Appeal of Alberta which held that infringement of a First Nations right to self-government, even if only temporary, constitutes irreparable harm, Siksika Health Services v. Health Sciences Association of Alberta, 2019 ABCA 169 at paras. 10 to 12.

[38] In Siksika, the Alberta Labour Relations Board certified the Health Sciences Association as the bargaining agent for ambulance attendants employed by SHS. SHS sought judicial review on the basis that, as it was an entity providing medical services on territory established for the Siksika Nation under treaty, the issue fell within the legislative authority of Parliament, not the Alberta legislature. SHS also pleaded that the assertion of provincial authority over Siksika Nation’s healthcare operations violated its Aboriginal and treaty rights under s. 35 of the Constitution Act 1982. On a stay motion before the Board, the Board agreed that SHS would suffer irreparable harm if a stay was not granted but concluded that the balance of convenience favoured the union. SHS applied to the Alberta court and the chambers judge granted a stay pending judicial review. The judicial review was, however, ultimately dismissed. SHS appealed. On application to the judicial review judge for a stay pending appeal, the motion was denied. SHS then sought a stay pending appeal from a single judge of the Alberta Court of Appeal.

[39] Strekaf J.A. set out the SHS’s argument in para. 10: “SHS asserts that erosion of such [Siksika Nation’s self-government] rights, even if only temporary, constitutes irreparable harm.” At paragraph 11, Strekaf J.A. went on to describe SHS’s additional argument that it would suffer irreparable financial harm if it were required to implement the Board’s decision and participate in the collective bargaining process. This was founded on the factual assertion, not disputed by the respondent union, that SHS’s operational budget was limited and the cost of hiring negotiators and the administrative disruption associated with collective bargaining would not be recoverable if the appeal were ultimately allowed.

[40] Strekaf J.A. reached her own conclusion at para. 12, finding that SHS would suffer irreparable harm “in both respects if a stay is not granted and the appeal is ultimately allowed.”

[41] The decision itself does not provide any insight into the content of the “irreparable harm” that would have been occasioned by any temporary erosion of Siksika Nation’s claims to self-government rights regarding collective bargaining. Further, given the union’s concession that there was demonstrable harm that could not be compensated by an award of money damages, it is not at all clear that the interim infringement of an unproven, asserted right to self-government over the labour relations of ambulance attendants would – standing alone – have been sufficient to constitute irreparable harm.

[42] I am, in the circumstances, unable to conclude that this decision, although not binding, provides persuasive authority for the resolution of the complex set of rights and obligations asserted in this case.

[43] There is no authority for the proposition that irreparable harm will result solely from the fact of any interim interference with an unproved right to self-government. Indeed, claims in these circumstances appear to have been largely rejected as speculative: Sapotaweyak Cree Nation v. Manitoba, 2015 MBQB 35, CarswellMan 107 at paras. 241-243 and 245; Petahtegoose v. All Sustainable Forest Licence Holders, 2016 ONSC 2481, 2016 CarswellOnt 5590 at para. 45.

[44] At its core, Fort William claims that it will suffer injury to dignity, identity and sense of community resulting from the infringement of its self-government rights if a stay is not granted. It is certainly possible that injury to dignity, identity and sense of community could result in harm which is irreparable. The issue is not whether an injury of this kind could constitute irreparable harm but whether, on the evidence, there is a reasonable likelihood that it will. The mere assertion of this injury, it seems to me, without more, falls into the category of a general, bald or speculative assertion of harm.

[45] Also relevant to the consideration of this issue is the fact that Dilico did not have the asserted authority over all Indigenous children in Thunder Bay until the 2017 Directive. Prior to that, since 2012, it had this authority only by way of consent delegation from the Thunder Bay CAS under the MOU. Before 2012, Dilico did not possess this authority at all. Further, Fort William asserts that control over the well-being of Indigenous children is a territorial right, with the consequence that it has control over all Indigenous children irrespective of cultural identity, language and First Nation membership as long as the children in question are residing in, or visiting, anywhere in Thunder Bay. This characterization of the right does not reflect the position of the 30 First Nations who are members of Tikinagan nor of the 49 First Nations who are members of NAN. Nor, apparently does it necessarily reflect the position of the Anishinabek Nation or of Chief Collins of Fort William.

[46] I say this because Grand Council Chief Hare, in a submission to the Ontario government on September 20, 2019, relying on a Grand Council Resolution, asserted, in connection with the Ministry’s actions in this very case, that the Anishinabek First Nations have “inherent jurisdiction over Anishinabek children and youth, regardless of residence” and that “First Nations have the authority to determine how that jurisdiction will be exercised”(emphasis added).

[47] Chief Collins of Fort William testified that he voted in favour of this Resolution. Chief Collins also asserted in cross-examination that part of his responsibility as Chief is to look after members of Fort William wherever they may be living throughout Ontario and that, specifically, it is part of Fort William’s inherent right to choose which child welfare organization will look after Fort William-affiliated children wherever they are living.

[48] This assertion of inherent jurisdiction is, of course, exactly what Tikinagan and the Tikinagan-affiliated First Nations are asserting in this case and what the Minister, to a large extent, appears to have relied upon in deciding to issue the Directive and Designations.

[49] All this evidence lends further support to the view that the denial of a stay of the Directive and Designations will not result in irreparable harm to Fort William.

[50] Dilico relies on three sources of irreparable harm:

(1) the transfer of case files between societies can be a source of risk and harm to children, largely due to information gaps and incomplete or otherwise inadequate file reviews;

(2) Tikinagan has not had adequate time to develop interagency protocols and working relationships with other Thunder Bay service providers such as police and hospitals; and

(3) the designation of two Indigenous-serving children’s aid societies will give rise to jurisdictional confusion.

[51] Dilico argues that the transfer process between children’s aid societies has been highlighted in past coroner’s inquests as a particular area of vulnerability for children and youth. If Dilico is successful in its application for judicial review, then the risks associated with intersociety file transfers will in effect be doubled because numerous files will be transferred from Dilico to Tikinagan and then back to Dilico following a ruling of the court.

[52] Dilico refers to a 2008 case in Toronto, following which a coroner’s jury made recommendations relating to the need for the four children’s aid societies in Toronto to develop protocols and adopt a shared intake service with a single emergency telephone number. Dilico also refers, in this context, to concerns about Tikinagan’s competence and quality of service.

[53] Dilico also argues that interagency agreements and protocols are essential for the effective and adequate provision of child and family services. Dilico has developed, negotiated and implemented a variety of interagency agreements and protocols with Thunder Bay service providers such as police, hospitals and school boards. Tikinagan, it argues, will be unable to develop and finalize any protocols by the date of implementation, January 30, 2020.

[54] Finally, Dilico argues that in addition to increased risk to Indigenous children, without a stay the Directive and Designations will cause irreparable harm to Dilico in its ability to carry out its public interest mandate by excluding from its authority Tikinaga-affiliated children and families.

[55] The mere fact that an initiative may involve risk is not, by itself, evidence of any harm, much less irreparable harm. Dilico has identified no child or family, and no case or file, the transfer of which is likely to cause harm. Almost any new initiative involves risk of some kind. The issue is not, however, whether a new initiative may create a risk. Risks vary from the minimal to the extreme. Risks are managed by the development of appropriate protocols, practices and procedures. While I accept that more file transfers may mean more risk, there is no evidence that this risk cannot or is not likely to be managed. The evidence in fact is very much to the contrary.

[56] The Ministry has a supervisory and oversight role over all children’s aid societies under the current legislative and policy framework around child welfare. CASs are accountable to the Ministry for the delivery of services. The services must be delivered in accordance with the CYFSA, its regulations and Ministry policies, directives and standards. The Ministry will continue to exercise its oversight functions, including through the planned transition period under the Directive and Designations. In addition, the 2019 Directive specifically provides for detailed transitional procedures and processes, including extensive case conferencing prior to any file transfers. Ministry staff meet on a weekly basis with Tikinagan staff to discuss and address any issues concerning the transition. The Ministry continues to convene regular intersociety liaison meetings where the ISL’s from each society are to come together to address emerging issues, build relationships and develop effective processes.

[57] The transfer of case files is not an unusual occurrence. Nor is the existence of more than one children’s aid society in a given community. There are established processes in place to deal with these circumstances. Transfers can be and are being effectively managed. File transfers are addressed in Ontario Child Protection Standard #6 issued by the Ministry and are, as noted, specifically addressed in the 2019 Directive. Dilico’s executive conceded in cross-examination that, following the 2012 MOU with the Thunder Bay CAS, many files involving Indigenous children and families were transferred from Thunder Bay CAS to Dilico and there were no known problems.

[58] Tikinagan has experience operating in urban centers, including Thunder Bay; since 2011, Tikinagan has had an office in Thunder Bay. Tikinagan also has a good deal of experience developing interagency protocols with other children’s aid societies and service providers in northwestern Ontario.

[59] Dilico has proffered no concrete evidence whatsoever that having two Indigenous children’s aid societies offering child protection services in Thunder Bay will create confusion, much less that it will result in harm of an irreparable nature. There is evidence in the record that Dilico has, acting on instructions from Fort William, refused to cooperate in the initial stages of the Ministry’s planned transfers of files involving Tikinagan-affiliated children. A joint communication has not, contrary to the Ministry’s 2019 Directive, been agreed to between the two agencies. Dilico can hardly rely on problems with the implementation of the Directive and Designations that will allegedly lead to “confusion” or irreparable harm which Dilico has authored by its own conduct.

[60] With respect to the attacks on Tikinagan’s competence and its ability to carry out its mandate, it seems to me that the Ministry, rather than Dilico, an entity engaged in at least three lawsuits with Tikinagan, should be the appropriate judge. Tikinagan has been a children’s aid society longer than Dilico. The Ministry has exercised significant oversight over the activities of Tikinagan including routine oversight and enhanced oversight under the 2017 Directive. Ministry oversight has also included audits on specific Tikinagan files in response to concerns raised by Dilico. Tikinagan has never been advised by the Ministry of any shortcomings in the handling of its files relating to services provided to children in Thunder Bay as a result of these audits. To the contrary, the Ministry has determined that it is appropriate to expand Tikinagan’s designation to include Thunder Bay and, through the 2019 Directive, to exercise the full powers of a CAS under the CYFSA over those children and families living in Thunder Bay who are members of, or identify with, the Tikinagan-area First Nations.

[61] Finally, the irreparable harm alleged by Dilico with respect to its own agency is that the Directive and Designations will prevent Dilico from discharging its statutory mandate to provide child protection services in Thunder Bay. This, it seems to me, is an entirely circular argument. It is for the Ministry to decide, prima facie, who has what mandate. If Dilico or Fort William is successful in their judicial review, the Dilico mandate under the Directive and Designations may change. If the judicial review is not successful, Dilico’s mandate may not change.

[62] The fact that the issues in these proceedings deal with the interests of children is certainly grounds for heightened awareness and critical assessment of any potential risks and harms associated with the Directive and Designations. But this does not obviate the need to provide evidence that goes beyond establishing the mere possibility of increased risk to show a reasonable likelihood that harm to children will result. The evidence provided by Dilico in support of its argument on irreparable harm does not bridge that gap. The evidence supports the conclusion that the Ministry is alive to this problem and has implemented measures which, assuming they are followed, will deal with it. Further, it is clear from the evidence that both Dilico and Tikinagan are also alive to this problem. It is reasonable for the Ministry to expect, and from my perspective, the Court does expect, all involved parties to cooperate in ensuring that none of these potential risks ever comes to pass.

[63] For these reasons, I have concluded that the applicants have not discharged their burden to show that they, or Indigenous children, will suffer irreparable harm if a stay of the Directive and Designations is not granted.

[64] This conclusion is sufficient to dispose of the motion. However, as a good deal of time and effort was spent on the third stage of the test, I will also address balance of convenience.

Balance of Convenience

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

[66] Fort William argues that in constitutional cases, the public interest is a special factor. Reconciliation is an important public interest that comes into play where Indigenous rights are concerned. Fort William argues that the irreparable harm it will suffer if no stay is granted is not counterbalanced by any material inconvenience on the part of the respondents. Fort William makes this submission on the basis that the Tikinagan-affiliated First Nations’ claim to control child services for all Tikinagan-affiliated children, regardless of residency, is “dubious.”

[67] With the greatest of respect to Fort William, I do not find at this stage of the proceedings the claim made by the Tikinagan-affiliated First Nations to be any more or less dubious than the claim advanced by Fort William.

[68] Significantly, besides the paramount purpose of promoting the best interests, protection and well-being of children, an “other” purpose of the CYFSA is that First Nations, Inuit and Metis peoples should be entitled to provide, wherever possible, their own child and family services, and that all services to First Nations, Inuit and Metis children and young persons and their families should be provided in a manner that recognizes their cultures, heritages, traditions, connection to their communities, and the concept of the extended family, CYFSA, s. 1(2)6.

[69] The Directive and Designations are entirely consistent with this purpose. And, as noted earlier, the Anishinabek Grand Council and Fort William have also endorsed this concept and, specifically, the inherent jurisdiction of those First Nations over their children and youth “regardless of residence.” I agree with Fort William to the extent that, if applied literally to all child protection authority wherever it may be, this principle would be unworkable. But in the circumstances of this case, we are dealing with a large population of Tikinagan-affiliated First Nations living in close proximity to Thunder Bay, where Thunder Bay is the only available source of many public and private services, giving rise to the migration, temporarily or otherwise, of large numbers of Tikinagan-affiliated families and their children to Thunder Bay.

[70] Both sides in this dispute rely on the underlying public interest in reconciliation. The clear public interest in reconciliation does not only favour Fort William and its asserted exclusive territorial right to self-government over child welfare services. The public interest in reconciliation also lies at the heart of the Ministry’s attempt to foster more culturally appropriate child welfare service modalities; as the CYFSA says, their cultures, heritages, traditions and connection to their communities. It is the desire to effect reconciliation of this kind that underpins the Ministry’s recognition of Tikinagan’s interest in providing child welfare services to Tikinagan-affiliated children and their families who travel to neighbouring Thunder Bay. Put differently, both Fort William and NAN rely in equal measure on the public interest in reconciliation to support their demands. This dispute has produced a circumstance in which the end result of that reliance is somewhat of a zero-sum game. What is given to one in the interests of reconciliation is taken away from the other. This is, for obvious reasons, a highly undesirable state of affairs. But the existence of this highly undesirable state of affairs means that the balance of convenience argument of Fort William is the mirror image of the argument of NAN.

[71] At best, this would lead to the conclusion that the balance of convenience is about equal. As applicant, Fort William bears the burden of demonstrating that the balance of convenience favours the stay. Where the balance of convenience is equal, the applicant has failed to discharge its onus.

[72] However, there are other factors which tip the balance against a stay in any event. The public interest also includes a public interest in the legitimacy of public institutions. The public interest therefore includes a high level of respect for the decisions of the legislative and executive branches of government. We must recognize the court’s limited institutional competence to interfere with those decisions. The courts have a supervisory role to play, but should be wary of usurping legislative and executive roles, particularly where they lie at the policy end of the decision-making spectrum: Hupacasath First Nation v. British Columbia (Minister of Forests), 2005 BCSC 345 at para 73; RJR-MacDonald, supra.

[73] The Ministry has determined that it is in the public interest for Tikinagan-affiliated children off reserve in Thunder Bay to receive child welfare services in a manner that recognizes their culture, heritage, traditions, connection to their communities, and the importance of the extended family. I am also obliged to consider, in balancing relative convenience, that, standing against the arguments advanced by Fort William and Dilico is the harm to Tikinagan-affiliated children from being required to receive child welfare services employing foreign cultural and other norms. The Record of Proceedings contains information to support the Minister’s view that Dilico is not equipped to meet the unique cultural needs of children from Tikinagan-affiliated First Nations. Further, evidence of lack of appropriate consultation and communication by Dilico with Tikinagan communities was observed in a “majority” of files. If a stay were granted, this situation would presumably continue for many more months.

[74] Finally, Dilico argues that considerable administrative resources will be invested in implementing the Directive and Designations between now and whenever the judicial review applications are heard. These costs and resources, Dilico argues, will be wasted if, on judicial review, the Directive and Designations are set aside. This is, however, another example of a zero sum exercise because Tikinagan has already invested considerable resources in preparing to take on its new responsibilities. What Dilico may save, Tikinagan will lose; what Tikinagan may save, Dilico will lose. I do not find this a persuasive argument in favour of Dilico on the balance of convenience.

[75] At the end of the day, the balance of convenience weighs in favour of refusing the stay and, pending the disposition of the applications for judicial review, advancing the goal of providing child welfare services to Tikinagan-affiliated children and their families in a culturally appropriate manner. The applicants’ onus of showing that the balance of convenience favours granting the stay has not been discharged.

[76] For all these reasons, the motion for a stay is dismissed.

Other Matters

New evidence motion

[77] Dilico brought a motion dated January 24, 2020 to admit reply evidence, sought to be filed after cross-examination. The receipt of this new evidence was objected to on the basis that it was not proper reply and that it is being filed after cross-examination.

[78] As is common with stay motions, this motion was brought on a very aggressive timetable. I accept that the full implications and detail of dense, multi-exhibit affidavits may not have been appreciated until the parties had a reasonable opportunity to mull over and digest this content. Cross-examination on the reply affidavit was offered but not taken up.

[79] I have decided to receive the evidence. It contains factual information relevant to the issues. There was no suggestion of prejudice by any of the responding parties and they declined the opportunity to conduct further cross-examination. The information was, in fact, helpful in understanding the issues although, in the end, I did not find it dispositive of any issue. The details of the number of Tikinagan-affiliated children from Chief Morris’s community in Dilico’s care could not be rounded up prior to Chief Morris’s cross-examination. While this evidence casts some doubt on the accuracy of Chief Morris’ estimates from his review of the Dilico files, the more relevant total numbers of Tikinagan-affiliated children in Dilico’s care were already set out in the affidavit of Ms. Hardy at para. 5. The influence, if any, that Chief Morris’s estimates had on the Ministry’s re-examination of the three children’s aid societies’ designations in 2019 is, at this point, a matter of pure speculation.

[80] The Ontario Association of Childrens’ Aid Societies Interagency Protocol acknowledges the need for careful monitoring at all stages of file transfers, but it puts in place protocols expressly designed to mitigate file transfer risk. In addition, it also place significant emphasis on the need for culturally appropriate service modalities.

Clean hands argument

[81] All three respondents have raised an issue about Dilico and Fort William’s conduct as it relates to their request for a stay. The 2019 Directive contemplates the staged transfer of files from Dilico to Tikinagan. By letter of October 24, 2019, the Ministry requested that Dilico provide file information to Tikinagan to aid with transition planning and help ensure cohesive service delivery for children. On October 28, 2019, Chief Collins of Fort William advised the Ministry that he had directed Dilico not take any steps that would violate Fort William’s inherent authority and jurisdiction, including transferring information, services and files to Tikinagan. Two days later, Dilico advised the Minister by correspondence that it had been directed by Fort William not to take any steps in furtherance of the violation of First Nation rights, including complying with the direction in the Ministry’s letter of October 24, 2019.

[82] On cross-examination, Chief Collins indicated that, in the event the court disagrees with Fort William’s position and denies the request for a stay, Fort William would continue to direct Dilico not to comply with the Ministry’s direction.

[83] NAN argued that, on the basis of these statements, the court ought not to entertain the applicants’ motions for stay at all. Tikinagan and Ontario took the position that, even if the grounds for a stay were otherwise made out, it ought not to be granted in light of the Fort William/Dilico position.

[84] In view of my dismissal of the motions for a stay on substantive grounds, it is not necessary for me to address the “clean hands” argument.

[85] It is not, in any event, appropriate for me to draw adverse inferences about future conduct or the bona fides of future motivations. This is particularly so because all three children’s aid societies involved in this case have statutory obligations whose paramount purpose is to promote the best interests, protection and well-being of children. In light of these statutory obligations, it is to be assumed, until proven otherwise, that they will discharge those obligations with the utmost care and good faith.

costs

[86] The parties asked that I defer consideration of costs until after the release of my Reasons. I urge the parties to discuss the matter and to try to reach an accommodation on costs. Failing agreement, those seeking costs shall do so by filing a cost summary and brief written submission (not to exceed three typed, double-spaced pages) within seven days. Those wishing to respond to a request for costs shall do so by filing the cost summary they would have filed had they been seeking costs together with a brief submission, subject to the same page limit, within a further seven days.

Penny J.

Date: February 11, 2020

[^1]: Tikinagan argued that Dilico had no standing to make any submissions about the interests of children of Tikinagan-affiliated First Nations. I do not agree with that submission. Altogether apart from the issues on this motion and in this judicial review, in any scenario Dilico would have a fundamental obligation to protect children within its assigned area as a CAS, regardless of the child’s status as Indigenous or their affiliated First Nation. The weight to be given to Dilico’s submissions may be informed by Dilico’s cultural and ethnological affiliations but its standing to make the submissions at all cannot be in question.