The decision is a setback for Métis and non-status Indian survivors who were excluded from previous federal class-action settlements that provided compensation to status Indian and Inuit survivors of the Sixties Scoop.
The Sixties Scoop refers to a period from the 1950s through the 1980s when thousands of First Nations, Métis and Inuit children were forcibly removed from their families and communities by child welfare authorities. They were then placed in foster care or adopted, often by non-Indigenous, predominantly white families.
In Varley v. Canada (Attorney General), 2025 FC 753, released on April 29, Justice Sébastien Grammond held that Canada could not have a duty of care with respect to the manner in which the provinces applied their own legislation.
“Except in relation to the AIM [Saskatchewan’s Adopt Indian Métis] program and other minor exceptions, Canada never funded the application of provincial child welfare legislation to Métis and non-status Indians. This was a core policy decision that is immune from liability,” the judge wrote.
In 2017, the Ontario Superior Court of Justice held that Canada breached its duty of care toward First Nations children who were placed in foster families or adopted pursuant to provincial child welfare legislation, by failing to take measures to facilitate the transmission of Indigenous culture and identity in the children.
The decision led to Canada settling several class actions related to the Sixties Scoop. The settlement agreement concluded in 2018 provided standard compensation of $25,000 to be paid to First Nations and Inuit survivors, but not to other Indigenous persons, in particular those who identify as Métis or non-status Indians.
The federal government funded provincial child welfare programs only for status Indian children living on reserves, reimbursing provinces for the costs of apprehending, placing and adopting these children under provincial child welfare laws.
Canada did not, however, fund the removal and placement of Métis and non-status Indian children, a process that occurred entirely under provincial authority, except in the case of children removed from their communities under Saskatchewan’s AIM program.
The plaintiffs, Shannon Varley and Sandra Lukowich, brought a class action on behalf of survivors of the Sixties Scoop who were excluded from the 2018 settlement agreement, including Métis and non‑status Indian survivors.
Canada brought a motion for summary dismissal of claims for monetary relief, arguing that the action was brought outside the applicable six-year limitation period.
The plaintiffs sought a declaration that Canada had a duty of care or a fiduciary duty toward Métis and non‑status Indian survivors of the Sixties Scoop.
The Crown argued that the claim was objectively discoverable before May 2015 because some members of the class brought other class actions dealing with the same issues before 2015 or because of the media attention that these class actions received.
Justice Grammond rejected the Crown’s position, noting that the fact that one person knew does not entail that all class members ought to have known.
The court also noted that there was little evidence to show the reach of media reports referenced by the Crown and that it could not be presumed that all class members had read the reports.
“More generally, there is no evidence that by 2015, the Sixties’ Scoop was sufficiently well-known in the general Canadian public to justify a finding that everyone, including class members, was constructively aware of it,” the judge wrote
The court held that the Crown had failed to make out its defence that all members of the claim ought to have discovered their cause of action more than six years before the certification of the action.
With respect to the issue of whether the Crown owed a duty of care to the class members, the plaintiffs submitted that class members suffered harm because of certain omissions of the federal government.
They submitted that these omissions included the failure to ensure that provincial child welfare systems were adequate and did not deprive class members of their culture and identity.
They also argued that the federal government failed to take measures to mitigate the impact of apprehension, placement and adoption on class members.
Justice Grammond noted that these omissions were the product of a policy decision not to assume responsibility for the provision of services to the Métis and non-status Indian population, where these services were already offered by the provinces to the general population.
He held that the alleged omissions were the direct result of a core policy decision and were therefore immune from liability in tort.
The judge also rejected arguments that the decision not to assume responsibility for Métis and non-status Indians should not benefit from a policy immunity because it was irrational or made in bad faith.
The plaintiffs argued that the federal government was in bad faith because it merely sought to save money at the expense of Métis and non-status Indians.
Justice Grammond observed that financial considerations are one of the hallmarks of core policy decisions and it cannot logically suffice to take such decisions out of the sphere of immunity.
“Here, the federal government’s policy did not deprive Métis and non-status Indians of child welfare services. Rather, it adopted a policy that assumed that these services would be offered by the provinces,” the judge wrote.
The judge concluded that the federal Crown did not have a duty of care toward the entire class.
Justice Grammond, did, however, find that the federal Crown did have such a duty toward children who were placed for adoption pursuant to the Government of Saskatchewan’s AIM program.
The judge made this finding on the basis that federal government had directly funded the AIM program, which, in the context of the historical relationship, created the proximity necessary to establish a duty of care.
“The harm was foreseeable and there are no countervailing policy considerations negating such a duty,” the judge wrote.
The court granted the plaintiffs’ motion for summary judgment only to the extent that the federal Crown owed a duty of care toward class members who were placed in foster care or adopted pursuant to the AIM program.
Justice Grammond dismissed the Crown’s motion for summary judgment.
Counsel for the plaintiff, Andrew Lokan of Paliare Roland Rosenberg Rothstein, welcomed the court’s finding that Canada owed a legal duty to protect the languages and cultures of Métis and non-status children adopted through Saskatchewan’s AIM program.
“While we continue to review the decision, we encourage Canada to acknowledge its obligations toward reconciliatory justice for the class as a whole, as described by the court in its decision,” he told Law360 Canada in an email.
Celeste Poltak, Jamie Shilton and Kirk Baert of Koskie Minsky LLP and Linda Rothstein, Lindsay Scott and Zara Narain of Paliare Roland Rosenberg Rothstein also acted as counsel for the plaintiff.
Counsel for the Crown were Craig Ferris, Marko Vesely, and Laura Duke of Lawson Lundell LLP. They were not immediately available for comment.
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