First Nations should consider statutory immunity as they take over child welfare jurisdiction, says lawyer

·5 min read

As First Nations across the country begin to adopt their own child and family welfare laws, they are being reminded about liability issues and adopting statutory immunity.

“It’s very much a policy or political issue for Indigenous governing bodies as to whether or not they want to follow what most provinces have done in including a statutory immunity … (which) obviously does limit recovery for children who may have suffered damages. It’s a question that may not be palatable to include in laws, but it’s there in the laws that the provinces have applied,” said Eileen Vanderburgh, lawyer with Alexander Holburn Beaudin and Lang LLP.

In the case of child services, statutory immunity would require a child who is suing for damages to establish that the acts or omissions were done in bad faith, which is a higher standard than claiming a duty was not performed, said Vanderburgh.

Vanderburgh spoke March 2 at the third of five virtual gatherings hosted by the Assembly of First Nations on Child and Family Services and Self-Determination. Bill C-92, An Act respecting First Nations, Inuit and Métis children, youth and families, came into force Jan. 1, 2020. It allows Indigenous groups to design and deliver child and family welfare services in the manner that best suits their needs. Indigenous groups would be taking over delivery of these services from the provinces.

Vanderburgh addressed liability considerations for transitioning to First Nations jurisdiction over child and family services, pointing out that Indigenous governing bodies could be sued in Canadian courts for damages suffered by children whose care they have taken over. It was a sobering reminder of what could go wrong.

“This is a complex area of law that is being applied to a complex web of relationships and there’s a number of legal principles guiding (this),” she said.

She pointed out that claims of negligence in performance of duties were common and that these fell into two categories, direct and vicarious.

“Vicarious liability can apply even if the authority itself hasn’t done anything wrong but somebody who they employed or contracted with to supply services has, and the law recognizes a vicarious liability in that relationship,” said Vanderburgh.

She also noted that the Indigenous governing body could be held liable in the performance of duties that they delegated to another agency. However, the courts do make distinctions between foster homes and institutions.

Vanderburgh highlighted the Supreme Court of Canada’s 2003 decision in KLB v. British Columbia, where “the relationship between governing bodies and foster parents is not sufficiently close to impose vicarious liability on governing bodies for abuse committed by foster parents.”

Foster parents were described by the court as “independent contractors.”

When it came to institutions, the court made the distinction that care was provided by employees and it was the employees who abused or neglected the children and “that was the distinction why vicarious liability would be imposed on the institution for the institutional care, but not on the province where the care was in a foster home,” said Vanderburgh.

She added, however, that there were exceptions to the rule and there were cases where the province was held directly liable for abuse that took place in the foster home because the province failed to properly investigate a foster home, to supervise regularly or to investigate complaints made by the child.

Vanderburgh also said that the Indigenous governing body could be held financially accountable in a case of joint and several liability even if they are not vicariously liable. Where a number of defendants are liable for damage caused to a child and not all defendants can pay, the court would order the defendant “with the deep pockets” to make compensation. That defendant is most likely the governing body. In turn, the governing body can collect from the other defendants.

Vanderburg also pointed out that various sections of the First Nations, Inuit and Métis children, youth and families Act underscored that the best interests of the child were the primary consideration of the Indigenous governing body and not the child’s parents or family when it came to decisions made or actions taken to apprehend the child.

“This is consistent with the case law that has developed in child welfare,” she said.

The act sets out the minimum national standards of care for the child, but Indigenous governing bodies can adopt other measures in their laws and these form the basis for standard care.

Development of clear and operational policies and protocols, as well as limiting liability through laws passed by the governing bodies help to manage the risks, as does hiring and training of employees, and providing supervision and support to caregivers.

“Really the gold standard is get insurance…That’s the best risk management tool,” said Vanderburg.

She also suggested that Indigenous governing bodies consult with the provinces to see what policies they have in place.

“It will outline the scope of what certainly the province considered needed to be covered by policy and tailor that. It will become more than what we want but we can tailor it to the issues that you see or what you want to address in your own policies,” said Vanderburg.

She also suggested that First Nations think hard about whether they wanted to create an internal judiciary system or use a dispute resolution system to address the issues that will arise from child and family welfare services.

“They could be complicated claims and whether or not you want to take on that additional burden and if so how do you manage that in the legislation because it affects people’s rights who are affected by the decisions made by the governing body on these issues. That I think is a trickier sort of policy, political question as to whether or not that’s what you want to do,” said Vanderburg.

Windspeaker.com

By Shari Narine, Local Journalism Initiative Reporter, Windspeaker.com, Windspeaker.com