CITATION: Dilico Anishinabek Family Care v. Minister of Children Community and Social Services et al., 2021 ONSC 7895

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

DATE: 20211130

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

D.L. CORBETT, DALEY and NEWTON JJ.

B E T W E E N:

DILICO ANISHINABEK FAMILY CARE

K. Hensel and K. Unrau, for the Applicant

Applicant

• and -

MINISTER OF CHILDREN, COMMUNITY

C. Ma and K Chatterjee, for the Minister of

AND SOCIAL SERVICES, TIKINAGAN

Children, Community and Social Services

CHILD AND FAMILY SERVICES, THE

CHILDREN’S AID SOCIETY OF THE

C. Beamish and M. Wilchesky, for

DISTRICT OF THUNDER BAY and

Tikanagan Child and Family Services

NISHNAWBE ASKI NATION

N. Melchiorre and K. Costa, for The

Respondents

Children’s Aid Society of Thunder Bay

• and -

NISHNAWBE ASKI NATION

A. James and N. Posala, for the Intervenor

HEARD at Thunder Bay by video

Conference: June 22, 2021

REASONS FOR DECISION

Newton J.:

Overview

[1] This is an application to quash a decision of the Minister regarding designation of child welfare agencies in Thunder Bay.

The Parties

[2] The Minister of Children, Community and Social Services (the Ministry) is responsible for administering the Child, Youth and Family Services Act, 2017[^1] (CYFSA).

[3] Dilico Anishinabek Family Care (Dilico), Tikinagan Child and Family Services (Tikinagan) and The Children’s Aid Society of the District of Thunder Bay (TBCAS) are designated as Children’s Aid Societies under the CYFSA. Dilico and Tikinagan are Indigenous child welfare agencies. Dilico had exclusive jurisdiction over the 13 Dilico First Nation-affiliated reserves in the Thunder Bay area. Tikinagan had exclusive jurisdiction over the First Nation and non-Indigenous children and families in the northwest portion of the District of Thunder Bay and the northern portion of the District of Kenora.

[4] The intervenor, Nishnawbe Aski Nation (NAN), is a political territorial organization representing the interests of its 49 member First Nations, some of whom utilize Tikinagan for child welfare assistance.

Summary and Disposition

[5] At the core of this case is a longstanding and irreconcilable, despite negotiation and mediation, jurisdictional dispute between Dilico-affiliated and Tikinagan-affiliated First Nations, about who should provide child and family services for Indigenous children and families in the Thunder Bay area.

[6] Dilico-affiliated First Nations assert territorial jurisdiction over Indigenous child and family services and will not allow another First Nation to operate in their territory without their consent and approval. Tikinagan-affiliated First Nations assert personal jurisdiction to care for their children and families wherever they reside.

[7] On November 28, 2019, the Minister signed amendments to the Designations of these three children’s aid societies.

[8] Prior to this decision, Dilico and TBCAS were the only agencies authorized to provide child protection services in the Thunder Bay area, with Dilico providing services exclusively to all Indigenous children and families.

[9] As a result of these amendments, Tikinagan has jurisdiction over children, youth and families from its communities residing in the Thunder Bay area while Dilico retains jurisdiction with respect to all other Indigenous children, youth and families residing in the Thunder Bay area.

[10] A related Directive, CW002-19, concerning service delivery in the Thunder Bay area was issued on November 29, 2019.

[11] Dilico objects to Tikinagan’s expanded jurisdiction to provide child protection services to children and families of First Nations affiliated with Tikinagan in the Thunder Bay area. It argues that the Minister’s decision is unreasonable and that it was denied procedural fairness.

[12] For the reasons that follow the application is dismissed. The Minister followed the applicable provisions of the governing legislation, gave notice to affected parties, consulted broadly, and explained his rationale to affected stakeholders. This was a high-level policy decision for which the statutory and common law principles of procedural fairness were met. The decision itself brings an end to what had proved to be an intractable dispute between two First Nations child welfare agencies and is reasonable.

The Facts

[13] Dilico and Tikinagan were established in the mid-1980’s when amendments to the former child welfare legislation permitted the establishment of Indigenous child and family services agencies.

[14] Section 80 of the CYFSA recognizes that child and family services societies shall pursue a plan of customary care for Indigenous children who need protection. Both Dilico and Tikinagan have developed their own models of customary care which reflect their distinct cultural values, customs, and practices. Tikinagan delivers services in Oji Cree, which is the language of the majority of its First Nations.

[15] Thunder Bay is an important hub for First Nations in northern Ontario, including Tikinagan area First Nations. Children and families from the northern, Tikinagan-affiliated, First Nations come to Thunder Bay for a variety of reasons, including high school education, specialized mental health treatment, post-secondary education, and employment opportunities. For this reason, NAN has its head office in the City of Thunder Bay and many NAN agencies operate there.

[16] Dilico was initially designated to provide services to 13 First Nations (“on reserve”) in the Thunder Bay area. In 2012, Dilico and TBCAS entered into a memorandum of understanding which confirmed Dilico’s exclusive jurisdiction over all Indigenous children and families residing (“off reserve”) in Thunder Bay, including those from Tikinagan affiliated First Nations. The 2012 memorandum of understanding is the subject of outstanding court proceedings[^2] which are being held in abeyance given the Minister’s intervening actions.

[17] Ministry funding to TBCAS decreased correspondingly to the transfer of jurisdiction to Dilico. Consequently, TBCAS does not emphasize the hiring of workers who speak an Indigenous language or identify as being Indigenous.

[18] The transfer of jurisdiction from TBCAS to Dilico was recognized in a Ministerial Directive issued in September 2017. Thereafter, the three agencies – Dilico, Tikinagan, and TBCAS – began negotiations for an interagency protocol to implement the 2017 Directive.

[19] Since 1987, Tikinagan had exclusive authority to serve all children and families, Indigenous and non-Indigenous, within its geographic area with all services. Notwithstanding the 2017 memorandum of understanding, Tikinagan had authority from the Minister to establish operations in Thunder Bay for the purpose of delivering prevention services to children from its affiliated First Nations who were in Thunder Bay. This included the authority to operate its own foster homes in Thunder Bay and to place its children in foster homes in Thunder Bay under its foster care licence. What Tikinagan could not do prior to the 2019 Designation, was exercise child protection powers under the CYFSA (i.e. apprehension and related powers) in Thunder Bay.

[20] On March 12, 2019, Ministry Assistant Deputy Ministers met separately with Tikinagan and Tikinagan Chiefs, and with Fort William First Nation Chief and Dilico board member, Peter Collins. On March 26, 2019, the Deputy Minister approved a comprehensive review of the Designation Statements for Tikinagan, Dilico and TBCAS.

[21] On May 10, 2019, Assistant Deputy Minister Remington wrote to the Chiefs of the 13 Dilico-affiliated First Nations and the 30 Tikinagan-affiliated First Nations advising that the Ministry was considering possible amendments to the Designation statements of Dilico and Tikinagan and inviting discussion. The letter to the Chiefs set out Tikinagan’s request to exercise the full functions of an agency for all Tikinagan members in the District of Thunder Bay and Dilico’s opposition to that request. Three First Nations and the Tikinagan Chiefs’ Committee responded.

[22] Chief Melvin Hardy of Biinjitiwaabik Zaaging Anishinaaben (BZA), a Dilico-affiliated First Nation, advised that BZA was in the process of implementing their own “Child Well-Being Law” and advised that, in the interim, BZA “would be opposed to any changes in designation for Dilico.” Chief Hardy further stated that, while any changes to the designation of Tikinagan would not directly relate to BZA, BZA would support any changes provided impacted communities were properly consulted and supportive of the proposed changes.

[23] Chief Peter Collins, of the Fort William First Nation – a Dilico-affiliated First Nation and a Dilico board member, responded[^3] on May 30, 2019 and objected to Tikinagan providing any child welfare services to Indigenous children and youth in the City and District of Thunder Bay. Chief Collins stated to the Minister, as he had on previous occasions, that Tikinagan had “neither inherent nor statutory authority” to provide child welfare services “to any Indigenous children on our communities and territory.” He also stated that Tikinagan’s child welfare practices “continue to cause risk and actual harm to children and youth in the City and District of Thunder Bay.”

[24] The Chiefs’ Committee for the Tikinagan Area First Nations, comprised of Chiefs and other representatives from seven First Nations, responded with a comprehensive submission in favour of expanding Tikinagan’s jurisdiction to care for Tikinagan-affiliated children and families in the District of Thunder Bay.

[25] The submission set out that this jurisdictional issue had existed since 2000 and that different approaches including senior management and board discussions between the agencies, Chief to Chief meetings, and mediation with former Senator Murray Sinclair had been unsuccessful in reaching an accord between the parties.

[26] When Tikinagan-affiliated First Nation children and families were served by Dilico, they identified challenges including problems communicating between Dilico and Tikinagan-affiliated First Nations and families, the lack of a Dilico presence in their communities, and that Dilico is only accountable to Dilico-affiliated First Nations. Tikinagan-affiliated First Nations complained of having “no voice” at Dilico.

[27] The Chiefs’ Committee submitted that Tikinagan was qualified to deliver its model of customary care because Tikinagan:

(a) has offices in every Tikinagan area First Nation reserve or settlement thus facilitating ongoing active consultation and collaboration with the community and the development of a trust relationship with each community;

(b) has community based trained First Nations workers who support the distinctive traditional values, practices and customs of the Tikinagan area First Nations;

(c) has workers who are fluent in Oji-Cree and/or Ojibway;

(d) is governed by a Board of Directors that is appointed by the Tikinagan area First Nations Chiefs, and guided by an Elders Council comprised of respected Elders from the Tikinagan area First Nations;

(e) is directly accountable to the Tikinagan area First Nations through the Annual Chiefs Assembly;

(f) receives direction by way of resolutions passed at the Annual Chiefs Assembly;

(g) has the dual character of being an Indigenous child and family services organization and a designated children’s aid society;

(h) was involved in the design of Mamow customary care and now has approximately 20 years’ experience delivering Mamow customary care;

(i) is seen as a collaborative partner rather than adversary of the Tikinagan area First Nations and their families; and

(j) has an office in the City of Thunder Bay to deliver non-protection child welfare services to children and oversee the operation of Tikinagan’s Ministry licensed foster homes in the City of Thunder Bay;

(k) through the Mamow model is inclusive and collaborative and respects the choice of families and First Nations to choose the children’s aid society they wish to work with.

[28] The Chief’s Committee also raised concerns about the quality of service provided by Dilico.

[29] Bearskin Lake First Nation, a Tikinagan-affiliated First Nation, while also developing their own Child Welfare law, supported Tikinagan’s request for expanded jurisdiction. Bearskin Lake First Nation also expressed that there were communication issues with Dilico and that Dilico “does not appreciate or understand the cultural and traditional values and practices in relation to our approaches in caring for our children.”

[30] Subsequently, the Minister received a Minister’s Decision Package which consisted of a Briefing Note, dated July 23, 2019, and a Minister’s Decision Note.

[31] The Briefing Note set out the background to the dispute and the feedback received from BZA, Fort William First Nation, Bearskin Lake First Nation, and the Tikinagan Chiefs’ Committee. The Briefing Note reviewed the policy basis for the designation of Indigenous Societies and made the following observations among others:

The CYFSA includes an additional purposes sub-clause that is specific to First Nations, Inuit, and Métis peoples and children, set out in s. 1(2)(6): “First Nations, Inuit and Métis peoples should be entitled to provide, wherever possible, their own child and family services, and all services to First Nations, Inuit and Métis 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.”

In recent designation processes, the ministry has considered how to best reflect this additional purpose in the designation process.

o First, how its approach to designation can help ensure that children receive services that recognize their own cultures, heritages, traditions, and connection to their own communities.

o Second, how its approach to designation can help ensure that First Nations,

Inuit, and Métis peoples are able to provide their own services to their own children and youth.

What the ministry has identified, however, is that Indigenous societies developed by a specific group of First Nations, despite (and in part because of) this close affiliation, may not be in a position to provide culturally specific services to children from other First Nations, or Métis or Inuit children and may not be in the best position to provide services to all Indigenous children.

The concept that First Nations, Inuit, and Métis children and youth should receive not only Indigenous-based services, but services linked as closely as possible to their specific cultures and further that communities should have a voice in determining service delivery, is rooted in the legislation and has informed the last three designations the ministry pursued.

[32] The Decision Note discussed several options which included: maintaining the status quo; authorizing Tikinagan to care for children in Thunder Bay who are members of a Tikinagan-affiliated First Nation; or, authorizing all three societies to perform all the functions of a society within Thunder Bay. The final option was recommended.

[33] The Decision Note identified two main “pros” in favour of this option:

i. “The ministry’s emerging approach to designation of Indigenous societies reflects the idea, rooted in the CYFSA, that First Nations should be able to provide services to their own children wherever possible, and that where this is not possible, they should have a respected voice in determining who services their children”; and

ii. “There is little information before the ministry suggesting that Dilico is sufficiently equipped to meet the unique cultural needs of children from Tikinagan First Nations, and in fact available information suggests this is not the case”.

[34] The Decision Note stated that this option would be consistent with other recent ministry designations and that there were strong policy reasons in favour of geographic-only jurisdiction, including the alignment with the purposes of the CYFSA. On this option, constraints on service delivery would occur through a Directive as opposed to the Designation Statement with the Directive ensuring that each society is only serving children from communities that want their children to be served by that society. It was recognized that there would be disputes when children presented for services with blended identities and it was noted that the Ministry may need to establish that, in the event of disagreement as to which society would care for an Indigenous child or family, the default society would be TBCAS. It was also recognized that the proposed transfer of cases from Dilico to Tikinagan would have significant financial implications for both societies and that an appropriate transition plan would need to include sufficient time for both societies to “right-size”.

[35] An appendix discussed the other options considered including the “Dilico Proposal” that Dilico’s Designation Statement be amended to provide Dilico with authority to perform all the functions of society in respect of all First Nations, Inuit, and Métis children in the District and City of Thunder Bay. The following rationales against that proposal were identified:

The ministry has received feedback through different sources that Dilico is either incapable or unwilling to work to meet the specific cultural needs of children from many communities outside of those formally affiliated with Dilico. One of Dilico’s own communities has indicated to the ministry that Dilico is not meeting its needs. Further, the ministry does not have evidence that Dilico is more equipped than Tikinagan or Thunder Bay CAS to provide culturally appropriate services to Métis or Inuit children.

As part of the ongoing work with the agencies, the ministry has reviewed files held by Tikinagan and Dilico. Evidence of lack of appropriate consultation and communication by Dilico with Tikinagan-affiliated communities, or with Tikinagan as Band Representative, was observed in a majority of files in both societies.

This option would go against the express wishes of Tikinagan First Nations, who consistently seek for Tikinagan to serve their children in Thunder Bay.

This option would be inconsistent with the ministry’s recent actions on designation outside of Thunder Bay. The Dilico Proposal is based on a model of “personal characteristic” jurisdiction—in this case, the characteristic of being one or more of First Nations, Inuit, or Métis. Although the ministry has employed personal characteristic jurisdiction in the past, the ministry has since identified (please see main body of Decision Note, as well as Appendix A) a strong policy rationale in favour of geographic-only jurisdiction for future designations.

[36] On August 20, 2019, the Ministry provided Dilico, Tikinagan, TBCAS and affiliated First Nations with a memorandum advising of the Minister’s decision to amend the designations of Dilico, Tikinagan and TBCAS. Prior to this letter, TBCAS had not received any formal communication from the Ministry indicating that the Ministry intended to amend the designation of these agencies but, as of May 15, 2019, all agencies were aware that the Minister was considering reviewing the designations of Dilico and Tikinagan.[^4]

[37] The memorandum explained that, under the proposed approach, the societies would be designated on a “geographic only basis”, meaning that each would be designated “for the entirety of the District and City of Thunder Bay, excluding the north-west area (where Tikinagan will have exclusive jurisdiction) and the reserves of the Dilico First Nations (where Dilico will have exclusive jurisdiction)”.

[38] The memorandum described the rationale for the decision as follows:

The ministry believes that this decision aligns with an additional purpose of the CYFSA, set out at s. 1(2)(6), which reads: “First Nations, Inuit and Métis peoples should be entitled to provide, wherever possible, their own child and family services, and all services to First Nations, Inuit and Métis 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.”

Recognizing that Dilico and Tikinagan take different positions in relation to the inherent authority of their respective First Nations, one thing the ministry has heard consistently from all First Nations, Inuit, and Métis partners across the province is how significant the role of the community is in the life of children and families, and how well-positioned communities are to determine the approaches to care that achieve the best outcomes for those children and families.

Minister Smith’s decision is intended to respect the voice of the community when it comes to determining, in any case where such a choice is viable, which service providers are best equipped to meet the needs of their children and youth.

The ministry has heard consistently from Tikinagan First Nations that Tikinagan is best positioned to meet the needs of its children and youth in Thunder Bay. The ministry believes that Tikinagan providing services to its children and youth in Thunder Bay aligns with the CYFSA.

The course of action outlined is also intended to acknowledge Dilico’s role in Thunder Bay, including under the 2012 Memorandum of Understanding with Thunder Bay CAS, as well as Directive CW 002-17, by directing that Dilico serve all First Nations, Inuit, and Métis children that are neither members of nor identify with Tikinagan First Nations. At the same time, the ministry believes that communities should have a say in determining whether Dilico’s service model is the right fit for their children, and this is why the Directive will set out requirements addressing this issue.

[39] Next steps outlined in the memorandum included providing the draft Designation Statements to counsel for the societies and engaging with each society on the documentation and a transition plan.

[40] On August 22, 2019, the Ministry provided the three agencies with draft Designation Statements and, on October 10, 2019, the Ministry provided a draft Directive. The draft Directive provided that, in the event that Dilico and Tikinagan disagreed on which agency should provide services to particular child, the child would be provided services by TBCAS.[^5] Comments on the draft Directive were sought by October 30, 2019.

[41] Dilico raised the following concerns in its response:

i. the process contemplated by the Minister would violate the inherent, Aboriginal and Treaty rights of Fort William and other Robinson–Superior Treaty First Nations, as recognized and protected by s. 35 of the Constitution Act, 1982;

ii. Tikinagan lacked interagency protocols with other service providers in the City and District of Thunder Bay;

iii. the designation of two Indigenous-serving children’s aid societies within the same geographic area – especially in the absence of viable interagency protocols – would give rise to confusion and exacerbate the risks to Indigenous children and youth already in need of care and protection; and

iv. Tikinagan had repeatedly failed to provide adequate services to Indigenous children and youth both in and outside of Thunder Bay.

[42] TBCAS also provided comments on the draft Directive. TBCAS addressed, among other things, the process whereby referrals would be directed to Thunder Bay CAS in the event that Dilico and Tikinagan could not agree on which agency ought to provide services to a given Indigenous child, youth or family:

[Thunder Bay] CAS should not be the default agency. Tikinagan or Dilico, pursuant to the CYFSA, should be the agency that provides services to First Nations, Inuit, and Métis communities. In keeping with the spirit of Jordan’s Principle, the Society should not be tasked with service provision while Indigenous Child Well-being agencies negotiate case management responsibilities.

[43] On November 29, the Minister issued the amended Designations and the new Directive which had an effective date of January 30, 2020.

Stay Motion

[44] Dilico commenced this application in December 2020 and also brought a motion to stay the decision. Penny J. dismissed the motion to stay on the grounds that the Applicants[^6] had not established irreparable harm or that the balance of convenience favoured a stay[^7].

Fresh Evidence

[45] Dilico and Tikinagan both filed fresh expert evidence. Dilico and TBCAS argue that the expert reports are necessary to demonstrate the absence of evidence on central points, such as the quality of services provided by Dilico and Tikinagan and operational readiness prior to the decision.

[46] NAN submits that the expert evidence consists of a debate about the merits of the Minister’s policy decision and should be disregarded or given little weight. The Minister and Tikinagan submit that the decision should be reviewed only on the evidence that was before the decision-maker at the time.

Issues

[47] The central issues are whether procedural requirements under s. 44 of the CYFSA or at common law were met by the Minister in arriving at the decisions and whether the Minister’s decisions were reasonable.

The Positions of the Parties

Did the Minister meet Procedural Requirements under s. 44 of the CYFSA?

[48] Section 44(4) sets out procedural requirements to be followed by the Minister where the Minister takes action (including the amending of a designation of a society) where a society has failed to comply with a compliance order or it is in the public interest to do so.

[49] Dilico and TBCAS submit that the Minister failed to provide Dilico and TBCAS with a right of response contrary to s. 44(6) and failed to provide Dilico and TBCAS with written notice and reasons for the decision contrary to s. 44(7).

[50] The Minister, Tikinagan and NAN submit that s. 44 does not apply to this decision as the societies had not failed to comply with a compliance order and there were no public interest concerns with the operations. Rather, these parties submit that the amendments were under s. 34 of the CYFSA which permits the Minister to amend a society’s Designation “at any time.” These parties argue that, under subsection 34(3), the Minister has broad authority and discretion to amend a society’s designation to alter its territorial jurisdiction. If s. 44 applies, these parties submit that the steps taken by the Minister complied with s. 44.

Did the Minister meet Procedural Requirements at Common Law?

[51] The arguments by Dilico, the Minister and NAN on procedural fairness[^8] track the five factors or circumstances identified by the Supreme Court of Canada in Baker v. Canada[^9] that define the procedural requirements of the duty of fairness. The factors, and the arguments of the Dilico, Tikinagan and NAN are as follows:

1. the nature of the decision being made, and the process followed in making it

Dilico acknowledges that the Minister’s decision was administrative. The Minister submits that the decision was a policy decision attracting minimal procedural protections.

2. the nature of the statutory scheme

Dilico argues that, as there is no review or appeal mechanism, a higher standard of procedural fairness is required. The Minister argues that ss. 42(1), Directives, and ss 34(3), Designations, confer broad discretion to the Minister with no proscribed procedures.

3. the importance of the decision to the individual or individuals affected

Dilico submits that this decision goes to the core of Dilico’s statutory mandate. The Minister argues that the decision is not only important to Dilico but also to Tikinagan, NAN, and to the many First Nation children and families in the District of Thunder Bay.

4. the legitimate expectations of the person challenging the decision

Dilico argues that, by soliciting comments from the societies, the Minister created an expectation that the comments of Dilico and others would be meaningfully considered before the final decision. The Minister argues that Dilico’s concerns were addressed in the decision package submitted for the Minister’s consideration and notes that the final Directive was amended in accordance with some suggestions made by the societies.

5. the choices of procedure made by the administrative decision maker itself

Dilico argues again that the Minister was bound by the procedural requirements of s. 44 of the CYFSA and that, by providing a copy of the proposed decision and seeking comment, the Minister owed a higher level of procedural fairness. The Minister’s response is that s. 44 does not apply and that the Minister’s chosen procedure should be given important weight because it reflects the legislature’s intention to provide flexibility and discretion to the decision maker.

[52] Considering the five Baker factors, Dilico submits that it was entitled to notice of the full basis of the Minister’s decision including the allegations relating to cultural competency and quality of services, to an opportunity to respond to those allegations, and to written reasons addressing Dilico’s concerns.

[53] The Minister argues that Dilico was owed minimal procedural fairness on the Baker factors other than notice and an opportunity to provide feedback – both of which were given.

Was the Minister’s decision reasonable?

[54] Dilico argues that the Minister acted unreasonably by:

a) failing to consider highly relevant factors such as Tikinagan’s operational capacity and the quality of services provided by the three agencies: and

b) relying upon unjustified factual determinations including with respect to Dilico’s ability to provide culturally appropriate care to Indigenous children and youth from northern Indigenous communities.

[55] TBCAS argues that, by designating TBCAS the “default” agency, the Minister’s decision was unreasonable and contrary to the stated purpose of the decision which was to allow First Nations communities to care for their own children and families where possible.

[56] The Minister submits that it enjoys a broad grant of authority to amend Designations and issue Directives. It argues that the amendment decisions, when read together with the explanatory memorandum and the decision package provided to the Minister, are justifiable, intelligible, and transparent. The Ministry’s file review disclosed evidence of a lack of appropriate consultation and communication by Dilico with Tikinagan-affiliated communities. Further, the Ministry argued that because Tikinagan has operated as a society for over 30 years, it is competent to provide child protection services in the Thunder Bay area. Any concerns by Dilico with respect to Tikinagan’s ability to deliver services are adequately addressed by the Minister’s supervisory and oversight with respect to child welfare and the safeguards set out in the 2019 Directive.

[57] Like the Minster, Tikinagan argues that the decision is reasonable and consistent with the purposes of the CYFSA, that it is a culturally competent agency to care for Tikinagan-affiliated children and families, and that the Directive, in conjunction with existing child protection standards and oversight, reduce potential risks of harm to children. As to the concerns raised by TBCAS as the “default” agency, Tikinagan submits that this outcome is highly unlikely. TBCAS would act as the “default” agency only for children whose communities include one or more Dilico-affiliated First Nations and one or more Tikinagan-affiliated First Nation, and only when Dilico and Tikinagan cannot agree on which society should serve the child and family, after taking into account prior service provision and expressed preference from the family. Tikinagan notes that Dilico’s Director of Child Welfare acknowledged that very few, if any, cases would ever default to TBCAS if Dilico and Tikinagan agreed to respect family preference. That Director confirmed that Dilico generally respects the wishes of families as to care provider.

[58] NAN argues that the Minister’s decision is reasonable because it respects the inherent jurisdiction arguments advanced by it and Tikinagan. NAN notes that overlapping jurisdiction is not uncommon and cites Kenora as an example of another northwestern Ontario city with two different Indigenous child welfare agencies operating alongside the Kenora CAS. It repeats the argument of the Minister and Tikinagan that, as a long-standing agency, Tikinagan is competent to assume delivery of child welfare services for its children and families in the Thunder Bay area.

The Legislation

The CYFSA

[59] The Preamble to the CYFSA includes the following:

With respect to First Nations, Inuit and Métis children, the Government of Ontario acknowledges the following:

First Nations, Inuit and Métis peoples are constitutionally recognized peoples in Canada, with their own laws, and distinct cultural, political and historical ties to the Province of Ontario.

Further, the Government of Ontario believes the following:

First Nations, Inuit and Métis children should be happy, healthy, resilient, grounded in their cultures and languages and thriving as individuals and as members of their families, communities and nations.

Honouring the connection between First Nations, Inuit and Métis children and their distinct political and cultural communities is essential to helping them thrive and fostering their well-being.

For these reasons, the Government of Ontario is committed, in the spirit of reconciliation, to working with First Nations, Inuit and Métis peoples to help ensure that wherever possible, they care for their children in accordance with their distinct cultures, heritages and traditions. [Emphasis added.]

[60] Section 1(1) describes that the “paramount purpose” of the Act “is to promote the best interests, protection and well-being of children” but other purposes are recognized, including:

6. First Nations, Inuit and Métis peoples should be entitled to provide, wherever possible, their own child and family services, and all services to First Nations, Inuit and Métis 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. [Emphasis added.]

[61] In J.E.O. v. M.D.[^10] Kurke J. made this observation about the CYFSA and First Nations:

[47] It is apparent that the spirit that animates the CYFSA with respect to First Nations, Inuit and Metis children is a recognition that these communities are unique, have a special relationship with Ontario, and should be given the first opportunity to offer protection to their own children and families in line with their own community values, customs and heritage. [Emphasis added.]

An Act respecting First Nations, Inuit and Métis children, youth and families

[62] An Act respecting First Nations, Inuit and Métis children, youth and families[^11], which came into force January 1, 2020, although after the Minister’s decision, also emphasizes the importance of families, community and cultural continuity in child and family services. The preamble to this Act includes these recognitions:

Whereas Parliament recognizes the importance of reuniting Indigenous children with their families and communities from whom they were separated in the context of the provision of child and family services;

Whereas Parliament affirms the right to self-determination of Indigenous peoples, including the inherent right of self-government, which includes jurisdiction in relation to child and family services;

[63] The core of the Act is “best interests of the child”:

9 (1) This Act is to be interpreted and administered in accordance with the principle of the best interests of the child.

Principle — cultural continuity

(2) This Act is to be interpreted and administered in accordance with the principle of cultural continuity as reflected in the following concepts:

(a) cultural continuity is essential to the well-being of a child, a family and an Indigenous group, community or people;

(b) the transmission of the languages, cultures, practices, customs, traditions, ceremonies and knowledge of Indigenous peoples is integral to cultural continuity;

(c) a child’s best interests are often promoted when the child resides with members of his or her family and the culture of the Indigenous group, community or people to which he or she belongs is respected;

(d) child and family services provided in relation to an Indigenous child are to be provided in a manner that does not contribute to the assimilation of the Indigenous group, community or people to which the child belongs or to the destruction of the culture of that Indigenous group, community or people; and

(e) the characteristics and challenges of the region in which a child, a family or an Indigenous group, community or people is located are to be considered.

Best interests of Indigenous child

10 (1) The best interests of the child must be a primary consideration in the making of decisions or the taking of actions in the context of the provision of child and family services in relation to an Indigenous child and, in the case of decisions or actions related to child apprehension, the best interests of the child must be the paramount consideration.

Primary consideration

(2) When the factors referred to in subsection (3) are being considered, primary consideration must be given to the child’s physical, emotional and psychological safety, security and well-being, as well as to the importance, for that child, of having an ongoing relationship with his or her family and with the Indigenous group, community or people to which he or she belongs and of preserving the child’s connections to his or her culture.[Emphasis added.]

Analysis

Procedural Requirements under s. 44 of the CYFSA

[64] The relevant sections of the CYFSA are:

Children’s aid society

Designation

34 (1) The Minister may designate an agency as a children’s aid society for a specified territorial jurisdiction and for any or all of the functions of a society set out in subsection 35 (1).

Conditions on designation

(2) For any or all of the functions of a society set out in subsection 35 (1), the Minister may impose conditions on the designation and may at any time amend or remove the conditions or impose new ones.

Amendment of designation

(3) The Minister may at any time amend a designation to provide that the society is no longer designated for a particular function or functions set out in subsection 35 (1) or to alter the society’s territorial jurisdiction.

Directives by Minister

42 (1) The Minister may issue directives to societies, including directives with respect to financial and administrative matters and the performance of their functions under subsection 35 (1).

Binding

(2) A society shall comply with every directive issued to it under this section.

General or particular

(3) A directive may be general or particular in its application.

Funding and Accountability Agreements

Powers of Minister

Grounds

44 (1) The Minister may exercise a power set out in subsection (3) if,

(a) a society has failed to comply with a compliance order made under section 43 within the time specified in it; or

(b) the Minister considers it to be in the public interest to do so.

Public interest

(2) In considering the public interest under clause (1) (b), the Minister may consider any matter the Minister regards as relevant including,

(a) the quality of the financial and operational management of the society;

(b) the society’s capabilities with respect to its corporate governance; and

(c) the quality of services provided by the society.

Powers

(3) For the purposes of subsection (1), the Minister may do one or more of the following:

1. Order that the society cease a particular activity or take other corrective action within the time specified in the order.

2. Impose or amend conditions on the society’s designation under subsection 34 (1).

3. Suspend, amend or revoke the designation of the society.

4. Appoint members of the society’s board of directors if,

i. there are vacancies on the board, or

ii. there are no vacancies, but the appointment is for the purposes of designating that member as chair of the board under paragraph 7.

5. Remove members of the board and appoint others in their place.

6. Designate a chair of the board, if the office of chair is vacant.

7. Designate another chair of the board in place of the current chair.

8. Appoint a supervisor to operate and manage the affairs and activities of the society.

Notice of proposal

(4) If the Minister proposes to act under subsection (3), the Minister shall give written notice of the proposal and reasons for it to the society.

Right to respond

(6) A society that receives notice under subsection (4) may make written submissions to the Minister within 14 days after receipt of the notice or within a different time period specified in the notice.

Minister’s decision

(7) After considering a written submission from the society or, if no submission is received, after the time period under subsection (6) has expired, the Minister may carry out the proposal and shall give written notice of the decision and reasons for it to the society.

Decision final

(8) The Minister’s decision is final.

[65] As argued by the Minister, Tikinagan and NAN, s. 35(2) does not place any limitation on the Minister’s power to amend a society’s designation. Section 44, when read together with s. 35 is triggered when the Minister exercises a power under s. 44(3) because a society has failed to comply with a compliance order or when it is in the public interest to do so. Public interest, as set out in s. 44(2), includes governance, financial and operational management and quality of services.

[66] These decisions do not address a failure to comply with a compliance order or a public interest concern as set out in s. 44(2); they address a jurisdictional dispute over which Indigenous child and family agency should care for children and families from Tikinagan-affiliated First Nations present in the City and District of Thunder Bay. The procedural steps set out in subsections (4), (6) and (7) of s. 44 do not apply.

Procedural Requirements at Common Law

[67] “The duty of procedural fairness in administrative law is "eminently variable", inherently flexible and context-specific.”[^12]

[68] As argued by the Minister and as demonstrated by the record, the Minister’s decision addressed a long standing jurisdictional dispute between Dilico-affiliated and Tikinagan-affiliated First Nations over who should provide child welfare services to members of NAN communities residing in the District of Thunder Bay. At its core, the decision is a policy decision addressing one of the central purposes of the CYFSA as it relates to First Nation, Inuit and Metis children and families – that they, wherever possible, should be entitled to provide their own child and family services.[^13]

[69] As the record discloses, both Dilico-affiliated and Tikinagan-affiliated communities reject the notion of a “pan-Indigenous” approach to child welfare and acknowledge that the communities are culturally and linguistically distinct. Each child welfare agency has its own model of customary care. Each First Nation asserts the right to choose which child welfare agency will care for their children “wherever they are living.”[^14]

[70] The jurisdictional views of Dilico and Tikinagan have been the subject of discussion, negotiation, and court proceedings for years. The Minister notified the Dilico- and Tikinagan-affiliated communities that the Minister was considering granting Tikinagan the authority to care for Tikinagan-affiliated children and families in Thunder Bay and sought the communities’ views. Responses included those from Dilico board member, Chief Collins of Fort William First Nation. Dilico had notice that the Minister was considering this change since May 2019.

[71] Dilico submits that by failing to give it an opportunity to respond to concerns respecting its service delivery, it was denied procedural fairness. The decision note provided to the Minister sets out the feedback that the communities provided which included some criticisms of each society’s service delivery. It included evidence, confirmed by the Ministry’s review of agency files, that Dilico was not appropriately consulting with Tikinagan-affiliated communities. Service delivery was not, however, at the core of this policy decision. Both Dilico and Tikinagan had operated as child welfare agencies for decades and the Ministry was aware of both organizations’ abilities to deliver services.

[72] Read broadly, this decision was not a critique or review of each agencies ability to deliver care. The decision addressed a dispute about jurisdiction and the application of s. 1(6) of the CYFSA which recognizes the cultural distinction between First Nations and the importance of connection to communities.

[73] The August 20, 2019 memorandum to Dilico, Tikinagan, TBCAS and the affiliated First Nations clearly communicated the decision and the rationale for the decision. The draft Designations and Directive were provided, and each agency had an opportunity to provide feedback and did so. Dilico repeated its jurisdictional arguments, noted the obvious lack of agency protocols, and raised criticisms of Tikinagan’s services. Comments from TBCAS and Tikinagan were reflected in the language of the issued Directive.

[74] The proposed fresh expert evidence addressed critiques of services and operational readiness. The record discloses that the Minister was aware of – and considered – Tikinagan’s ability to deliver services as it had for several decades. These issues were addressed by the parties with the Ministry. The proposed evidence would not dispose of an issue on this application, is not in any sense “fresh”, and does not come close to meeting the test for admissibility on judicial review.[^15]

[75] As noted in Canada (Citizenship and Immigration) v Vavilov [“Vavilov”], “as a matter of procedural fairness, reasons are not required for all administrative decisions.”[^16] The rationale for this policy decision was communicated to the parties in the August 2019 memorandum and that complied with the procedural fairness requirements under Baker. Further reasons for this policy decision after submissions on the wording of the Designations and Directive were not required.

Reasonableness

[76] The Parties agree that Vavilov applies. Principles from Vavilov applicable to this case include:

a. “The burden is on the party challenging the decision to show that it is unreasonable.” (para. 110);

b. Although reasonableness review remains a “robust form of review”, “courts intervene in administrative matters only when it is truly necessary to do so in order to safeguard the legality, rationality and fairness of the administrative process.” (para. 13);

c. “[A] reasonable decision is one that is based on an internally coherent and rational chain of analysis and that is justified in relation to the facts and law that constrain the decision maker. The reasonableness standard requires that a reviewing court defer to such a decision.” (para. 85);

d. “[T]he reviewing court asks whether the decision bears the hallmarks of reasonableness — justification, transparency and intelligibility — and whether it is justified in relation to the relevant factual and legal constraints that bear on the decision.” (para. 99); and

e. “[T]he reviewing court must be satisfied that there are sufficiently serious shortcomings in the decision such that it cannot be said to exhibit the requisite degree of justification, intelligibility and transparency…. [T]he court must be satisfied that any shortcomings or flaws relied on by the party challenging the decision are sufficiently central or significant to render the decision unreasonable.” (para. 100).

[77] Based on these principles, the Minister’s decision is reasonable.

[78] The decision is justifiable in the circumstances. The decision addresses a long-standing and irreconcilable jurisdictional dispute. As noted, as an established society, the Minister was aware of Tikinagan’s operational capacity and the quality of services provided by the agencies. The determination of Dilico’s ability to provide culturally appropriate care is justifiable given that the Dilico-affiliated and Tikinagan-affiliated communities have adopted distinct models of customary care, given the comments from the communities, and given the Ministry’s observation from file review that Dilico was not communicating with the NAN communities.

[79] The decision is justifiable under the legislation as it acknowledges the importance of culture, heritage, tradition, and connection communities as set out in s. 1(1)(6) of the CLRA and the federal Act.

[80] The Minister’s decision package and the August 2019 memorandum to the societies and the affiliated First Nations show an internally coherent and rational chain of analysis and is, therefore, transparent and intelligible.

[81] The intervention of the court is not necessary to safeguard the legality, rationality and fairness of this administrative policy decision.

[82] Dilico has not met its burden of establishing that the decision is unreasonable.

Default Agency where there is Disagreement

[83] In his decision, the Minister directed that in certain circumstances where there is a disagreement between Dilico and Tikinagan over which should have jurisdiction in a particular case, jurisdiction would default to TBCAS. TBCAS sought to review this aspect of the Minister’s decision on the basis that it unreasonably fails to take account of s. 1(6) of the CYFSA, which recognizes that First Nations should be entitled to care for their own children and families, “wherever possible”. While this decision was under reserve, counsel for Tikinagan advised the court that the parties have consented to a resolution of this issue on the basis that, in the event of disagreement in certain cases, Dilico, and not TBCAS, will be the "default" agency. The Minister has issued a further amendment to the Designations to this effect. Thus this issue has been settled.

Disposition and Costs

[84] For the foregoing reasons, the application is dismissed. The successful parties did not seek costs and none are ordered. The intervenor sought costs; we see no basis to award an intervenor costs in the circumstances of this case.

Newton J.

I agree ______________________________

D.L. Corbett J.

I agree ______________________________

Daley J.

Released: November 30, 2021

CITATION: Dilico Anishinabek Family Care v. Minister of Children Community and Social Services et al., 2021 ONSC 7895

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

DATE: 20211130

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

B E T W E E N:

DILICO ANISHINABEK FAMILY CARE

Applicant

• and –

MINISTER OF CHILDREN, COMMUNITY and SOCIAL SERVICES, TIKINAGAN CHILD and FAMILY SERVICES and THE CHILDREN’S AID SOCIETY OF THE DISTRICT OF THUNDER BAY

Respondents

NISHNAWBE ASKI NATION

APPEAL REASONS

Newton J.

Released: November 30, 2021

[^1]: SO 2017, c 14. The CYFSA governs many of the province’s programs and services for children and youth, including: child welfare; youth justice services; secure treatment; children’s developmental services; residential services; community support services; First Nation, Inuit and Métis child and family services; and adoption within Ontario.

[^2]: Dilico commenced an Application in 2016 against Ontario and Tikinagan alleging that Tikinagan was providing unauthorized child welfare services in Thunder Bay and that the Ministry was allowing this. Tikinagan commenced an Application against Dilico and Thunder Bay CAS disputing the constitutional validity of the 2012 MOU.

[^3]: Chief Collins’ letter was copied to Dilico.

[^4]: Dilico v Tikinagan, (CV-16-0306 / CV-16-0413), Endorsement of Warkentin RSJ dated May 15, 2019,

[^5]: If a child’s bands include one or more First Nations affiliated with both CASs, the CAS receiving the referral will convene a case conference within 24 hours and Dilico and Tikinagan will determine which CAS should serve the child. The 2019 Directive provides that the societies will consider a) any previous service provision to the child; b) whether the family has expressed a preference for service by one of the CASs; and c) any current service provision to a sibling of the child. Should Dilico and Tikinagan not agree on which of them should provide services to a child whose bands include one or more First Nations affiliated with each CAS, TBCAS will provide services to the child so that there is no gap in service.

[^6]: At that time, Fort William First Nation had brought its own application and also brought a motion to stay the Minister’s decision with respect to the Designations and the Directive.

[^7]: Dilico Anishinabek Family Care v. Her Majesty the Queen (Ontario), 2020 ONSC 892.

[^8]: Neither TBCAS nor Tikinagan made submissions respecting the common law duty of procedural fairness.

[^9]: 1999 699 (SCC), [1999] 2 SCR 817. See also Canada (Citizenship and Immigration) v Vavilov, 2019 SCC 65 at para. 77.

[^10]: 2020 ONSC 6106

[^11]: S.C. 2019, c. 24.

[^12]: Canada (Citizenship and Immigration) v Vavilov, 2019 SCC 65 at para. 77.

[^13]: CYFSA, s.1(2)6.

[^14]: Cross-examination of Chief Collins of Fort William First Nation, page 11.

[^15]: R. v. Palmer, 1979 8 (SCC), [1980] 1 SCR 759; Sengmueller v. Sengmueller (1994), 1994 8711 (ON CA), 17 OR (3d) 208 (CA); Centre City Auto Sales Inc. v. Kalsatos, 2013 ONCA 373 (CA).

[^16]: 2019 SCC 65 at para. 77.