## Facts

- Marcia Brown and Roberta Commanda, members of Ojibway First Nations in Ontario, were apprehended as children and placed in non-Indigenous foster or adoptive homes during the “Sixties Scoop” (approximately 1965–1984).
- The proposed class consisted of about 16,000 Indigenous persons in Ontario who were removed from on-reserve communities and placed in non-Aboriginal homes.
- Plaintiffs alleged a forced-assimilation child welfare practice that separated children from language, family contact, and cultural practices, causing long-lasting psychological and social harms.
- Plaintiffs sued the federal Crown, alleging that Canada’s role in funding and implementing the 1965 Canada–Ontario Welfare Services Agreement enabled or authorized the harms.
- Plaintiffs sought certification under Ontario’s Class Proceedings Act, 1992; Canada moved to strike for failure to disclose a reasonable cause of action.

## Issues

1. Whether the pleading disclosed any reasonable cause of action against Canada, assuming the pleaded facts were true (including “honour of the Crown,” “identity genocide,” Aboriginal rights, fiduciary duty, and negligence).
2. Whether the proposed proceeding met the statutory class certification requirements (identifiable class, common issues, preferable procedure, and suitable representative plaintiffs with a workable plan).

## Decision

- The court applied the “plain and obvious” test on the motion to strike and assumed the pleaded facts to be true for certification purposes.
- The court struck the pleaded stand-alone cause of action for breach of the “honour of the Crown,” holding it is not an independent compensable cause of action.
- The court struck the proposed tort of “identity genocide,” holding it was not a recognized Ontario civil cause of action and could not be grounded directly in international covenants; the pleaded facts also did not support the intent element associated with genocide.
- The court held the pleadings were capable of supporting arguable claims in negligence and, in material respects, breach of fiduciary duty and Aboriginal rights, based on Canada’s alleged responsibilities connected to on-reserve Indigenous children and its role under the 1965 Agreement.
- The court found the remaining certification criteria satisfied (objectively defined class, common issues centered on Canada’s alleged duties and conduct, class action as preferable procedure, and appropriate representative plaintiffs and litigation plan).
- Canada’s motion to strike was dismissed in substance, and the proceeding was certified as a class proceeding, subject to striking the non-viable claims.

## Legal Principles

- On a motion to strike, a claim should be struck only if it is “plain and obvious” it cannot succeed; for certification, pleaded facts are assumed true and the question is whether an arguable cause of action exists.
- The “honour of the Crown” functions as a constitutional interpretive principle that may inform specific duties, but it does not, by itself, create a free-standing private-law cause of action for damages.
- International covenants and conventions do not automatically form part of provincial civil law; a novel tort based directly on such instruments is not viable absent domestic legal adoption.
- Where pleadings allege federal involvement in a scheme affecting on-reserve Indigenous children (including through federal–provincial agreements), it may be arguable that Canada owed duties sounding in negligence and fiduciary obligation, and that Aboriginal-rights claims may be legally tenable, depending on proof.
- Certification may be granted where the class definition is objective, the litigation raises common issues across the class, a class action is the preferable procedure, and representative plaintiffs can adequately represent the class with a workable plan.

## Conclusion

The court certified an Ontario class action arising from the Sixties Scoop and allowed negligence, fiduciary-duty, and related Aboriginal-rights theories to proceed, while striking a stand-alone “honour of the Crown” claim and rejecting a novel “identity genocide” tort as not recognized in Ontario civil law at the pleadings stage.


Brown v. Canada (Att’y Gen.), 2010 ONSC 3095 (Ont. Sup. Ct. J. 2010)