Federal Court Rejects Motion to Certify Class Proceeding

Date: 20260709 Docket: T-272-22 Citation: 2026 FC 925 Saskatoon, Saskatchewan, July 9, 2026 PRESENT: The [NAME]: [NAME] Plaintiff and HIS MAJESTY THE KING IN RIGHT OF CANADA Defendant

REASONS AND

JUDGMENT I. Nature of the Matter [ 1 ] This is a motion under Rule 334.16 of the Federal Courts Rules , SOR/98-106 [the Rules]. The Plaintiff requests an order certifying the action as a class proceeding and appointing [NAME] as the representative plaintiff for the proposed class. The Defendant seeks an order dismissing the motion.

II. Facts A. Litigation context [ 2 ] The three main comparators to this action, according to the Plaintiff, are the settlement approval orders in [NAME] v Canada , 2018 FC 901 [ [NAME] ] and [NAME] v Canada (Attorney General) , 2023 FC 1533 [ [NAME] ], and the certification order in [NAME] v Canada (Attorney General) , 2025 FC 561 [ [NAME] ]. [ 3 ] In [NAME] , this Court approved a settlement agreement for survivors of the Sixties Scoop. The class was defined as all Indian (as defined in the Indian Act , RSC 1985, c I-5 [ Indian Act ]) and Inuit persons who were removed from their homes in Canada between January 1, 1951 and December 31, 1991 and placed in the care of non-Indigenous foster or adoptive parents, excluding members of the subclass subsequently approved in [NAME] v Canada (Attorney General) , 2018 ONSC 3429. [ 4 ] In [NAME] , this Court approved a settlement agreement for nine subclasses, all of which were affected by Canada’s chronic underfunding of the First Nations Child and Family Services [FNCFS] program, as well as its failure to provide non-discriminatory access to essential health and social services under Jordan’s Principle. The class periods ran from April 1, 1991 until various points, with the latest periods ending on March 31, 2022 ( [NAME] at para 33). [ 5 ] In [NAME] , this Court approved certification of a [NAME] brought by ten Chiefs on behalf of their respective First Nations, for the collective harms to their communities (at paras 7, 9). Justice Ann McDonald found that the plaintiffs in that case had sufficiently pleaded causes of action for an infringement of rights under section 2(a) of the Canadian Charter of Rights and Freedoms , Part I of the Constitution Act, 1982 , being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [the Charter ], breach of a sui generis fiduciary duty, systemic negligence, and infringement of Aboriginal rights under subsection 35(1) of the Constitution Act, 1982 ( [NAME] at paras 56, 58–60, 66, 77). B. Procedural history [ 6 ] Pleadings commencing this action were first filed on February 16, 2022. Following case management conferences, an Amended Statement of [NAME] was filed on March 20, 2023. [ 7 ] On June 2, 2025, this Court dismissed a motion to certify this action as a class proceeding under Rule 334.16 based on the deficiency of the Amended Statement of [NAME] ( [NAME] v Canada , 2025 FC 985 [Previous Certification Order]). In deciding the Previous Certification Order, I found that it was plain and obvious that the Plaintiff had failed to disclose a reasonable cause of action (at paras 7, 72, 76, 140). However, the Plaintiff was granted the opportunity to amend her pleadings on a circumscribed basis. [ 8 ] Specifically, the Plaintiff was advised to narrow the allegations in the amended [NAME] to present clearer causes of action for breach of fiduciary duty and Charter infringements occurring prior to April 1, 1991 (Previous Certification Order at paras 86, 141). C. Second Amended Statement of [NAME] [ 9 ] In the Second Amended Statement of [NAME] [or the [NAME]], the Plaintiff accuses the Defendant of negligence, breach of fiduciary duty, and breach of equality rights under subsection 15(1) of the Charter . She seeks declaratory relief, monetary damages, pre-judgment and post-judgment interest, and costs of the action, among other things. [ 10 ] The Proposed Class is defined at paragraph 13 of the Plaintiff’s Second Amended Statement of [NAME] as: Indigenous people in Canada who were children between January 1, 1951 and March 31, 1991 [the “Class Period”] and who meet one of three objective criteria: (a) they were removed from their homes on Reserves and placed in out-of-home care on Reserve, where they were denied reasonable, or any, Government Services; (b) they were removed from their homes on Reserves and placed in out-of-home care off Reserve, where they were denied reasonable, or any, Government Services; and (c) they left their homes on Reserves (voluntarily or involuntarily), due to the delay, denial, or disruption of reasonable, or any Government Services on the Reserve where they had previously lived. [ 11 ] The term “Indigenous” is defined as people in Canada who are neither Inuit nor Métis, including individuals who have status pursuant to the Indian Act , who are eligible for such status, or who are recognized as citizens by their respective First [NAME] community, including First Nations in the Yukon and Northwest Territories. [ 12 ] The Class Period, as can be seen within the definition of the Proposed Class itself, is over four decades long: from January 1, 1951, until March 31, 1991. The Defendant argues, and I agree, that this lengthy period lacks a unified factual and legal anchor. This is an enduring issue that was clearly highlighted in the Previous Certification Order (see para 115). [ 13 ] The Defendant submits that the [NAME] is properly construed as presenting three distinct subperiods: (1) from 1951–1962, where the Defendant’s impugned conduct arises from the fact that there is alleged to have been no mechanism in place to provide Government Services to Indigenous children; (2) from 1962–1981, where the Defendant’s impugned conduct arises from a failure to monitor provincial programs to fund the provision of Government Services to Indigenous children pursuant to Delegation Agreements; and (3) from 1981–1991, where the [NAME] recognizes an improving trend emerging from the appearance of an unnamed agency dedicated to providing child welfare services to First Nations. [ 14 ] For clarity, “Government Services” is a term defined at subparagraph 2(d) of the [NAME] to mean: … child welfare, education, family, and health programs and services for Indigenous children including (but not limited to) dental, education, medical, mental and physical health, physiotherapy, speech therapy, and preventative and protective child welfare services. [ 15 ] The term “Delegation Agreements” is defined at subparagraph 2(c) to mean: … funding agreements signed by the Crown with a province or territory or with a non-Indigenous operated child and family services agency, for the provision of Government Services delegating the provision of Indigenous child welfare and other Government Services from the Crown to provincial and territorial governments in exchange for reimbursement of funds. [ 16 ] As the Defendant notes, the Plaintiff brings a [NAME] that is national in scope, but her evidence is limited to Delegation Agreements made with the three prairie provinces: (1) an agreement with Alberta commencing in 1962; (2) an agreement with Saskatchewan commencing in 1962; and (3) an agreement with Manitoba commencing in 1966. The Plaintiff’s response to this is that it would be unduly onerous to require production of each relevant Delegation Agreement for each province for the purposes of her pleadings in this certification motion. [ 17 ] The Plaintiff said on the previous certification motion the dispute was about bookends and anchoring events for the class period. The Plaintiff told the Court that this has now been cleared up, as the period begins with the substantive amendments to the Indian Act taking effect in 1951. After 1951, the Plaintiff argues that federal Crown’s liability arises from its efforts to delegate its non-delegable duties to the provinces. [ 18 ] The class period ends on March 31, 1991, which is the eve of the date on which Directive 20-1 was implemented. Directive 20-1 was a policy statement by Indian and Northern Affairs Canada which established uniform funding standards and created the FNCFS program. The class actions collected under the [NAME] settlement agreement each concerned class periods commencing on April 1, 1991, the date on which Directive 20-1 began (see para 4, above; Previous Certification Order at paras 10–18). D. Representative plaintiff [ 19 ] [NAME] is a member of the [NAME] born in 1964. She suffered from a speech disorder which exacerbated her experiences of abuse as a child. I wish to emphasize that the outcome of this motion does not reflect any judgment on [NAME]’s experience. She is a brave and courageous woman to have survived her childhood and youth, and no one should have to suffer what she did. [ 20 ] The parties dispute [NAME]’s ability to bring this action based on her membership in the [NAME] settlement class which allegedly involved a release of relevant claims. Further, the Defendant argues that [NAME]’s [NAME] is barred by virtue of statutory limitation periods (citing Crown Liability and Proceedings Act , RSC 1985, c C-50, s 32; Limitations Act , RSA 2000, c L-12). I note that it will not be necessary to make any determination on these questions in the context of this motion.

III. Issue [ 21 ] Does the Second Amended Statement of [NAME] fulfil the five criteria for certification under Rule 334.16(1)? IV. Analysis [ 22 ] A Plaintiff must satisfy all five criteria under Rule 334.16(1) for a certification motion to succeed ( [NAME] v Canada , 2024 FCA 199 at para 160). It must not be “plain and obvious” that no [NAME] exists to satisfy the requirement under Rule 334.16(1)(a), and for the remaining four criteria it is only necessary to show that there is some basis in fact to support each ( [NAME] v [NAME] (City) , 2001 SCC 68 at para 25). [ 23 ] For the reasons that follow, I find that the deficiencies in the Second Amended Statement of [NAME] have not been cured. It is plain and obvious that the pleadings fail to disclose a reasonable cause of action, contrary to the requirement under Rule 334.16(1)(a). Therefore, this motion for certification must be dismissed. A. No cause of action in negligence [ 24 ] The Plaintiff’s [NAME] in negligence will not be considered, as it is not properly before the Court on this motion. The Previous Certification Order expressly granted leave to amend the [NAME] for the narrow purposes of furthering the allegations of a breach of fiduciary duty and infringement of subsection 15(1) Charter rights for claims arising prior to April 1, 1991. It did not grant leave to amend the [NAME] in negligence. B. No cause of action in breach of fiduciary duty [ 25 ] The Previous Certification Order contemplated the inadequacy of the Plaintiff’s vague assertions of a fiduciary duty and a loose analogization of the legal relationship between the Crown and Indigenous children to the recognized fiduciary relationship between parents and children (at paras 73–76). [ 26 ] This [NAME] still asserts that the fiduciary duty owed by the Defendant to Indigenous children “was akin to a parent-child relationship” (at para 60). [ADDRESS] previously explained that the pleadings needed to clearly set out how the Crown had assumed discretionary control over either a sui generis or an ad hoc fiduciary duty (at paras 104–107). The Plaintiff has not meaningfully responded to this direction. [ 27 ] In argument, the Plaintiff explained this by saying that a “determination of the existence and exact nature of a fiduciary duty requires a full factual analysis, which is not possible at the certification stage of a class proceeding.” [ 28 ] However, the Plaintiff also argued that both sui generis and ad hoc fiduciary duties are present and properly pleaded in this case. The [NAME] pleads that the Crown made the discretionary decision to facilitate the funding of Indigenous children living on reserves through Delegation Agreements. It alleges that the federal Crown had a duty to monitor those agreements and a duty to children living on reserves to ensure that those children received a quantity and quality of Government Services comparable to those available to children living off reserve. [ 29 ] The Plaintiff compares her case to [NAME] , where the Court found that the pleadings disclosed sufficient material facts to nourish a cause of action in breach of fiduciary duty (at paras 58–60). She also cites [NAME] v Canada , 2014 ONSC 6967 [ [NAME] 2014 ], where the Ontario Superior Court of Justice found that a fiduciary duty was adequately pleaded (at paras 23–24). [ 30 ] I do not agree with the Plaintiff’s reasoning. The existence of a fiduciary duty is a legal question which requires legal analysis. Contrary to the Plaintiff’s submissions, I do not find that the pleadings disclose a reasonable cause of action for a breach of either a sui genius or an ad hoc fiduciary duty. [ 31 ] I find that the [NAME] still fails to plead a viable fiduciary duty with sufficient theory or material facts. The pleadings only continue to vaguely describe a fiduciary duty akin to the one owed by parents to children. Although the written submissions on this motion refer to a sui generis fiduciary duty, the [NAME] does not assert sufficient material facts to support the allegation that a specific fiduciary duty of any kind has been breached. [ 32 ] This is an individualized national class action. In that sense, it is clearly distinguishable from [NAME] . There, the Court noted that the [NAME] was not being advanced on behalf of individuals, but in respect of collective harms suffered by [NAME] (at paras 7–9). [ 33 ] There is nothing in the pleadings in this action that establishes how the interest at issue here is communally shared. The [NAME] does not plead how the Crown assumed discretionary control of the impugned Government Services, and it is not clear how the federal Crown would have done so by way of the delegation of such services to the three identified provinces through the Delegation Agreements that are pleaded, let alone the other provinces of Canada where no evidence has yet been adduced. [ 34 ] Further, [NAME] 2014 does not assist the Plaintiff. There, the Crown conceded the existence of a fiduciary relationship (at para 19). The factual background in that case is also distinguishable from the present case, as it involved the removal of Indigenous children between December 1, 1965 until December 31, 1985 pursuant to child welfare legislation that was in force in Ontario (at paras 3–5). [ 35 ] By broadly and vaguely asserting the fiduciary relationship here, the [NAME] does not sufficiently plead the discretionary control required to establish the existence of an ad hoc fiduciary duty. It refers to a discretionary decision but not to discretionary control over health, development and well-being — even if this Court were to accept that such things could constitute a communal interest giving rise to a sui generis fiduciary duty. [ 36 ] Accordingly, I find that it is plain and obvious that the pleadings fail to disclose a reasonable cause of action in breach of fiduciary duty. C. No cause of action in breach of Charter rights [ 37 ] In the Previous Certification Order, I noted that the pleadings rested on bare assertions or conclusions respecting the [NAME] (at para 69). While the Plaintiff argues that the cause of action under the Charter is now properly pleaded, the allegations remain exceedingly general, referring vaguely to the Crown’s actions and inactions, unspecified decisions based on racist ideologies and assumptions, and an invitation to draw inferences based on language included in Directive 20-1. [ 38 ] The core of the [NAME] is expressed in just two paragraphs: The Crown violated section 15(1) of the Charter by failing to ensure that the Plaintiff and Class Members had equal access to and funding of Government Services. The difference in access to Government Services was directly related to the Class Members’ Indigenous status. As such, the distinction is based on race, national, or ethnic origin and was discriminatory. … The discriminatory impact of the Crown’s breach of section 15 was apparent and immediate. Class Members were denied equal treatment because of their status as Indigenous. [ 39 ] In written submissions for this motion, the Plaintiff appeared to narrow the [NAME] by asserting that the discriminatory distinction pleaded was “based purely on ethnicity.” But given the broad definition of “Government Services” relied upon by the Plaintiff (at para 14, above), this continues to fall short of the requirement to plead sufficient material facts in Charter claims ( [NAME] v Canada ([NAME]) , 2015 FCA 227 at paras 16–24). [ 40 ] There is another issue. The Defendant notes that subsection 15(1) of the Charter came into force on April 17, 1985, by which date the representative plaintiff would have been 20 or 21 years old, and that the Charter does not apply retroactively or retrospectively (see Charter , s 32(2); [NAME] v Canada (Secretary of State) , 1997 CanLII 376 (SCC) at para 40 [ [NAME] ]). [ 41 ] Two consequences flow from this. First, [NAME] would not have been a member of the Proposed Class during the relevant subperiod of the Class Period (i.e., she was not a child between April 17, 1985–March 31, 1991). Second, the Charter argument itself would need to be narrowed to that subperiod to be properly pleaded. [ 42 ] The Plaintiff relies on commentary in [NAME] to the effect that certain applications of the Charter to events occurring prior to its enactment would not necessarily involve retrospectivity, particularly where the law or government action under review imposes an ongoing discriminatory status ( [NAME] at paras 41, 44-46). The Plaintiff asserts that putative class members remain more susceptible to psychiatric disorders, substance use, and other chronic issues due to the inaccessibility of Government Services to them during childhood. The Plaintiff argued that it is open to the Court to adjust the Class Definition, or to grant leave to add an additional representative plaintiff if it finds that [NAME] is not suitable on her own. [ 43 ] Similar to her response with respect to the deficiency of the fiduciary duty [NAME], the Plaintiff argues that a “full record is required to determine if a [NAME] can be made out” for [NAME] and other putative class members. [ 44 ] In the Previous Certification Order, I recognized that a generous reading of the pleadings could support the idea that the [NAME] asserts an ongoing condition which would therefore be subject to constitutional scrutiny (at para 117). [ 45 ] However, between the issuance of the Previous Certification Order and the present motion, there has been a material development in the law. The Federal Court of Appeal reversed certification of an action against the federal Crown where the facts demonstrated that relevant powers had been delegated to provincial authorities. In Canada v [NAME] , 2025 FCA 105 at para 4 [ [NAME] ], Justice Rennie, writing for the majority, said the following: [4] Constitutional considerations aside, the evidence on the certification motion itself tells us that as a matter of fact, decisions about how and where children were placed were made by the provincial governments and their agencies – not Canada. The proposed class action is therefore missing the necessary defendants to fairly adjudicate the central issue, which was whether there was a breach of a duty in placing off-reserve Indigenous children in non-Indigenous homes. As I will explain, the proposed class action asks a question – but does not give the Court the tools to answer the fundamental questions about how a child came to be placed in care, in what circumstances, by whom, what alternatives were considered and who was consulted. These are the fundamental elements of pleadings ( [NAME] v. Canada ([NAME]) , 2015 FCA 227). [ 46 ] Justice Rennie further noted that the provincial Crown enjoys immunity from discovery in a Federal Court proceeding where the relevant provinces are not named as parties to the action ( [NAME] at para 19). [ 47 ] In my view, the very same logic which defeated certification in [NAME] applies to the provision of Government Services administered by the provinces pursuant to the Delegation Agreements, which is the conduct impugned by the Plaintiff in this action. These are substantive and procedural issues that are likely not possible to overcome in the current or, most likely, any future version of the pleadings.

V. Conclusions [ 48 ] For the reasons above, it is plain and obvious that the Plaintiff fails to disclose a reasonable cause of action for a breach of fiduciary duty or infringement of subsection 15(1) Charter rights occurring prior to April 1, 1991, as required for certification under Rule 334.16(1)(a). [ 49 ] The Plaintiff was given an opportunity to amend her statement of [NAME] and instructions on how the [NAME] might have been rendered workable in the Previous Certification Order. Much of these instructions appear to have been ignored. Considering the Court of Appeal’s decision in [NAME] , there is little reason to think that the deficiencies with the Second Amended Statement of [NAME] will be curable by further amendment. [ 50 ] Although the Defendant did not bring a separate motion to strike this [NAME], it is not necessary in this situation. Pursuant to Rule 334.2, the Court may issue “any appropriate order” on its own accord upon refusing certification of an action. [ 51 ] Therefore, I order that the Second Amended Statement of [NAME] be struck in its entirety, without leave to amend. Pursuant to Rule 334.39(1), no costs shall be awarded.

JUDGMENT in T-272-22 THIS COURT’S

JUDGMENT is that : The motion is dismissed. The Second Amended Statement of [NAME] is struck without leave to amend. No costs are awarded. "[NAME]" Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: T-272-22 STYLE OF CAUSE: [NAME] v HIS MAJESTY THE KING IN RIGHT OF CANADA PLACE OF HEARING: OTTAWA, ONTARIO DATE OF HEARING: JUNE 3, 2026

REASONS AND

JUDGMENT: [NAME] J. DATED: JULY 9, 2026 APPEARANCES : [NAME] For The PLAINTIFF [NAME] For The DEFENDANT SOLICITORS OF RECORD : [COMPANY], Alberta For The PLAINTIFF [NAME], Alberta FOR THE PLAINTIFF Attorney General of Canada Ottawa, Ontario For The DEFENDANT