## Facts

- In 2007, the First Nations Child and Family Caring Society of Canada and the Assembly of First Nations filed a complaint under the Canadian Human Rights Act (CHRA) alleging discriminatory provision of child and family services to First Nations children living on reserve and in the Yukon.
- The complaint challenged the federal First Nations Child and Family Services Program (FNCFS Program), including related arrangements such as Ontario’s 1965 Agreement, alleging these were intended to provide services reasonably comparable to those available to other children but did not do so in practice.
- Evidence showed the federal funding approach relied on formulas tied to population thresholds and numbers of children in care, rather than community needs, and resulted in materially lower resources than provincial child welfare regimes.
- The complainants alleged the funding structure created service gaps and adverse impacts, including incentives favoring apprehension and placement in care over prevention and family preservation supports.
- The complaint also alleged discriminatory implementation of Jordan’s Principle, a child-first rule meant to prevent service delays or denials to First Nations children caused by jurisdictional payment disputes.
- The Tribunal heard merits evidence in 2013–2014 after earlier preliminary dismissal was set aside on judicial review and appeal.

## Issues

1. Whether Canada’s design, funding, and oversight of on-reserve child and family services constitutes a “service” or “assistance” under s. 5 of the CHRA.
2. Whether Canada’s FNCFS Program and its implementation of Jordan’s Principle adversely differentiated First Nations children and families on prohibited grounds (race and/or national or ethnic origin) contrary to s. 5 of the CHRA.
3. Whether the equality analysis required a narrow comparator limited to the same service provider or a broader, substantive equality assessment of outcomes and impacts.

## Decision

- The Tribunal substantiated the complaint and held Canada engaged in a discriminatory practice under s. 5 of the CHRA.
- It held that Canada’s funding, program design, and oversight for on-reserve child and family services constituted a “service” within the meaning of s. 5.
- The Tribunal found the FNCFS Program’s design and operation resulted in service denials and adverse impacts for First Nations children and families on reserve and in the Yukon, and that the adverse differentiation was linked to race and/or national or ethnic origin.
- It held Canada’s narrow implementation of Jordan’s Principle caused service gaps, delays, and denials for First Nations children and therefore also constituted discrimination.
- The Tribunal ordered Canada to cease its discriminatory practices and directed immediate, full implementation of Jordan’s Principle using a broad child-first approach.

## Legal Principles

- Government funding and program design can constitute a “service” under human rights legislation when they directly shape the delivery of essential services to the public.
- Discrimination under s. 5 of the CHRA may be established through systemic features of a funding and oversight regime that cause service denials or adverse impacts on prohibited grounds, without requiring proof of intent.
- Equality analysis under the CHRA is grounded in substantive equality, focusing on real-world effects and outcomes rather than rigid, formal comparator requirements.
- A restrictive implementation of a child-first policy intended to prevent jurisdictional service gaps can itself amount to discrimination where it produces delays or denials experienced disproportionately by a protected group.
- Where discrimination is found in service provision, remedial orders may include directions to cease discriminatory practices and to implement measures necessary to prevent ongoing denials and adverse impacts.

## Conclusion

The Tribunal held that Canada discriminated against First Nations children and families living on reserve and in the Yukon by maintaining a flawed, under-resourced child welfare funding and oversight regime and by restricting Jordan’s Principle in ways that produced service delays and denials; it ordered Canada to end the discriminatory practices and implement Jordan’s Principle immediately and broadly.


First Nations Child & Family Caring Soc’y of Can. v. Att’y Gen. of Can., No. T1340/7008, 2016 CHRT 2 (Can. Hum. Rts. Trib. 2016)