In a 96-page decision in Neal v. Canada (Attorney General), 2025 BCSC 1498 dated Aug. 6, Justice Sandra Wilkinson granted certification despite the Federal Court of Appeal’s recent decision in Canada v. Stonechild, 2025 FCA 105, which overturned certification of a parallel national class action against Canada on similar issues.
The proposed class action addresses what the plaintiffs characterize as continuing systemic discrimination against Indigenous children, following the historical patterns of Indian residential schools and the Sixties Scoop. The court, quoting the Canadian Human Rights Tribunal’s 2016 decision in First Nations Child and Family Caring Society of Canada v. Canada (Attorney General), 2016 CHRT 2, noted that “the number of Indigenous children in state care in the past three decades eclipses the number of children in Indian residential schools at their height.”
“This claim involves what the plaintiffs submit is the most recent example of the Crown’s systemic, discriminatory conduct since the 19th century toward Indigenous children,” wrote Justice Wilkinson, “beginning with Indian residential schools, then with the Sixties Scoop, and now with the Millennium Scoop.”
The representative plaintiffs are listed as Jessy Rae Destiny We-Gyet Neal, Laura Julie-Faith Dobson, Jake Phillip Lopez-Smith and Rachelle Lynn Deschamps. The defendants are listed as the Attorney General of Canada and the province of British Columbia.
The class includes three groups affected between Jan. 1, 1992, and the certification date: the “Removed Child Class” (off-reserve First Nations, Métis and Inuit children taken into care), the “Essential Services Class” (Indigenous children who faced delays or denials in essential services due to jurisdictional disputes), and their Indigenous caregiving parents and grandparents.
A key aspect of the case involves Canada’s approach to Indigenous child welfare based on residence. The plaintiffs allege that “two separate systems apply to Indigenous children in British Columbia, depending on whether they ordinarily reside on-reserve,” with Canada exercising “essentially exclusive responsibility” for on-reserve children while denying “any responsibility for those Indigenous children left in the provincial system.”
This jurisdictional divide, they allege, has harmed Indigenous families.
Despite the Federal Court of Appeal’s recent reversal in Stonechild, the B.C. Supreme Court found the federal decision distinguishable. The court noted that “many of the individual questions of Class Members raised in Stonechild FCA are not relevant in this case due to the different harms alleged, meaning these proceedings should ostensibly be more efficient and accessible.”
The court noted the systemic nature of the plaintiffs’ claims and pointed to the Supreme Court of Canada’s 2001 decision in Rumley v. British Columbia, 2001 SCC 69 to differentiate systemic negligence from “common” negligence, defining it as “the failure to have in place management and operations procedures that would reasonably have prevented the abuse.” “These are actions (or omissions),” the Supreme Court found, “whose reasonability can be determined without reference to the circumstances of any individual class member.”
In connection with several causes of action, the plaintiffs’ claim also argues that the defendants have breached Jordan’s Principle, named after Jordan River Anderson, a First Nations child who died in hospital at age five while governments argued over who should pay for his care. The court noted that “on December 12, 2007, the House of Commons unanimously passed Motion 296” adopting Jordan’s Principle, and that “on January 24, 2008, the Premier of British Columbia endorsed Jordan’s Principle on behalf of the Province.”
The statement of claim also relies on the constitutional validity of 2019’s Bill C-92 (An Act respecting First Nations, Inuit and Métis children, youth and families), noting the Supreme Court’s 2024 finding that the legislation’s “pith and substance ... is to ensure the well-being of Indigenous children by applying culturally appropriate services to reduce their overrepresentation in provincial child welfare systems.”
The court certified 18 of 19 proposed common issues, covering claims in negligence, fiduciary duty, Charter breaches, unjust enrichment and punitive damages. The only common issue not certified related to aggregate damages assessment for unjust enrichment, though the court left open the possibility of addressing this at trial if necessary.
On the preferability requirement, the court found that class action litigation would serve all three policy objectives: access to justice, judicial economy and behaviour modification. The court noted there was “no evidence that any Class Members wish to pursue these claims on an individual basis” and that individual actions “would be far less efficient, more expensive, and impractical.”
Counsel for the plaintiffs were Joelle Walker and Erin Reimer of Miller Titerle + Company, Angela Bespflug of Murphy Battista LLP, Mohsen Seddigh and David Sterns of Sotos LLP, Janelle O’Connor of Murphy Battista LLP, Asif Abdulla of Thorsteinssons LLP, and Faraz Ravanbakhsh of Preszler Injury Lawyers.
“Justice Wilkinson’s decision represents a significant step towards seeking justice for survivors of the Millennium Scoop,” Bespflug said in an email to Law360 Canada. “We hope, through this case, to not only obtain compensation for this vulnerable class, but to also put much needed pressure on the defendants to fix a very broken system.”
“Both Canada and British Columbia have known — for decades — about the egregious over-representation of Indigenous children in state care in this province,” she added, “yet have failed to implement sufficient preventative measures in order to alleviate this overrepresentation, continuing to treat the lives of Indigenous children as less important than their non-Indigenous counterparts.”
Seddigh noted that the decision only covers Indigenous survivors in British Columbia and is part of a series of parallel cases advanced by survivors across Canada.
“It was a hard-fought hearing over the course of several days and hundreds of pages of written argument,” he said in an email to Law360 Canada. “The Court decided that Indigenous child welfare survivors should not be denied their day in court despite the defendants’ vociferous arguments and defences.”
“The brave Indigenous survivors who have stepped forward in this and the parallel class actions across the country want this cycle of Indigenous child removals to end,” he added.
Counsel for the Attorney General of Canada were listed as S. Norris, T. Henderson, E. Hidalgo-Simpson and M. Filice. A spokesperson for Justice Canada referred an inquiry seeking comment to Crown-Indigenous Relations and Northern Affairs Canada, who could not be reached before press time.
Counsel for B.C. were listed as C. Hunter, C. Freisen, T. Boyar, J. Palef, S. Ramdin, P. Jon and C. Wiltenburg. Kevin Hemmat, a spokesperson for the B.C. Ministry of Attorney General, said in an email to Law360 Canada that it would be premature to comment while the province’s legal team analyzes the decision.
“The Province has received the Court’s ruling on this issue,” he said. “This is a significant decision, and we are reviewing the ruling now to determine what our next steps will be, including whether we will appeal.”
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