In B.M. v. Ontario, 2025 ONSC 4575, released on Aug. 25, Justice Edward Morgan found that the claims concerned core legislative subject areas engaging political and economic decision-making and that this pointed to their “fundamental lack of justiciability.”
“The courts are institutionally constrained in a way that would make the task of adjudicating and addressing the society-wide impact of all government social policies beyond their legitimate reach,” the judge wrote.
The plaintiffs, identified only as B.M. and C.A. in the decision, claimed breaches of s. 7 and s. 15 of the Charter, as well as a breach of fiduciary duty and systemic negligence.
The plaintiffs argued that Ontario has struck the wrong balance between prevention and apprehension with respect to Indigenous children living off-reserve and provided insufficient funding for prevention services in the child welfare system.
They also argued Ontario had failed to ensure that Indigenous children had access to essential health and social services in a timely manner.
Justice Morgan held that the fundamental difficulty with the plaintiffs’ Charter claims was that they took aim at general health and social policies and not at specific laws or government actions.
He noted that the claims concerning the removal of children and the provision of essential services were policy arguments dealing with multiple aspects of child welfare, health care, educational and social services systems in the province.
“In all, the claim before me demands that I impose my views on those policy options — a task which a judge and a court is not institutionally suited to take on,” the judge wrote.
He further noted that the claim regarding the removal of children was bound to fail under both ss. 7 and 15 as the decisions on whether to investigate child protection matters, or to apprehend or place a child in another home, are made by independently governed and suable children’s aid societies (CASs).
The judge noted that it was established under case law that the government is not liable for a failure to prevent any harm suffered at the hands of CAS staff.
The plaintiffs also argued that the child welfare system in Ontario infringes s. 15 of the Charter because Indigenous children living off-reserve are subject to the same child welfare system already found to be discriminatory by the Canadian Human Rights Tribunal.
They cited First Nations Child and Family Caring Society of Canada v. Canada (Attorney General), 2016 CHRT 2, in which the tribunal found that the system for child welfare for First Nations children on reserve was deficient in comparison with that experienced by Indigenous children off reserve.
The judge held that the reverse argument that the off-reserve system is also discriminatory in comparison with the on-reserve system made no logical sense.
The court held that it was plain and obvious that plaintiffs’ claims under ss. 7 and 15 of the Charter had no reasonable prospect of success.
The plaintiffs also argued that both Ontario and Canada had breached a sui generis and/or an ad hoc fiduciary duty owed to Indigenous children.
They submitted that the policies at issue had undermined the ability of Indigenous persons to pass on their distinctive cultural values to their children, and to ensure their connection to the distinctive culture of their Aboriginal community.
Justice Morgan noted that while the Supreme Court has recognized sui generis fiduciary duties where the Crown exercises control over a distinct Indigenous interest, a broad claim to “preserve culture” did not meet that threshold.
He also held that acts done in the public interest do not create an ad hoc fiduciary duty.
The court also found that the plaintiffs’ claims against Ontario and Canada in negligence were bound to fail as policy decisions were shielded from liability in negligence.
The judge further held that the proposed class definition did not pass the test for properly defined class under the Class Proceedings Act (CPA), and the proposed common issues lacked a sufficient basis in fact and/or commonality to be certified as common issues under the CPA.
The court dismissed the certification motion.
Counsel for the plaintiffs, David Sterns of Sotos LLP, said his clients would be appealing the decision.
“It’s a very difficult decision to reconcile with the decisions from the Quebec and British Columbia courts. Both of those courts recognized the merits and importance of similar cases on behalf of Indigenous children and youth that were caught in a broken child welfare system,” he told Law360 Canada in an email.
In Renvoi à la Cour d’appel du Québec relatif à la Loi concernant les enfants, les jeunes et les familles des Premières Nations, des Inuits et des Métis, 2022 QCCA 185, the Quebec Court of Appeal stated that over-representation of Indigenous children in care is the result of colonial policies and practices established in the 19th century and maintained throughout the decades.
In Neal v. Canada (Attorney General), 2025 BCSC 1498, the British Columbia Supreme Court certified a class action in respect of the child social welfare policies of B.C. as they apply to off-reserve Indigenous children and families.
“We expected the B.C. and Ontario decisions to go to the appellate courts where we will continue to advocate for these neglected individuals,” Sterns said.
Harold Cochrane of Cochrane Sinclair LLP, Mohsen Seddigh and Maria Arabella Robles of Sotos LLP, and Angela Bespflug of Murphy Battista also acted as counsel for the plaintiffs.
Counsel for Ontario were Victoria Yankou, Waleed Malik, Hera Evans, Spencer Nestico-Semianiw, Sarah Pottle and Adrienne Ralph.
Counsel for Canada were Sonja Pavic, Carolyn Phan and Travis Henderson.
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