Law360 Canada (June 17, 2026, 1:57 PM EDT) -- Four mainly First Nations organizations were granted leave to intervene in a proposed class proceeding in September by Ontario Court of Appeal Justice Lise Favreau in a ruling released on June 12.

In B.M. v. Ontario, 2026 ONCA 422, Justice Favreau said the Anishinabek Nation, the British Columbia Civil Liberties Association (BCCLA), the Chiefs of Ontario and the Nishnawbe Aski Nation will be able to participate as friends of the court in an appeal of a motion judge’s decision (B.M. v. Ontario, 2025 ONSC 4575) to dismiss a claim as a class proceeding.

As Justice Favreau summarized, the appellants, B.M. and C.A., proposed to bring a class proceeding on behalf of all Indigenous children off-reserve who were apprehended by a children’s aid society in Ontario and Indigenous children who encountered delays and other barriers in obtaining essential social services from 1992 to now.

The claim alleges that the respondents — the federal and Ontario governments — “instituted policies and practices that have perpetuated the overrepresentation of Indigenous children in care and that have delayed or prevented Indigenous children from accessing essential services, including health and education services.”

The appellants’ claim alleges that Canada and Ontario’s policies and practices have breached their rights under ss. 7 and 15 of the Canadian Charter of Rights and Freedoms and also pleads breach of fiduciary duty and negligence.

However, the motion judge, Ontario Superior Court Justice Edward Morgan, held that the Charter claims “have no reasonable prospect of success.”

David Sterns, a partner with Sotos and a class action lawyer in Toronto who serves as lead counsel for the appellants, told Law360 Canada that the intervention of the four groups “will ensure that Indigenous perspectives are before the court and that the critical issues in this appeal receive the full consideration they deserve.”

“The decision under appeal is at odds with factually similar decisions from courts in other provinces and, in our respectful view, reverses the trajectory of Indigenous rights and reconciliation in Canada,” he said in an email.

In her ruling, Justice Favreau outlined her reasons for granting intervenor status to the four organizations in the appeal.

She said the Anishinabek Nation could address the role of First Nations’ (band) representatives based on one of the appellants’ arguments on appeal “that the motion judge improperly dismissed the motion for certification on the basis that the claim does not impugn specific programs and services, but rather attacks general health and social policies. On appeal, the appellants submit that this was an error because the claim identifies specific programs, including funding for band representatives.”

“In its proposed draft factum, the Anishinabek Nation discusses the role of First Nations (band) representatives in proceedings involving child protection” and “identifies provisions” in Ontario’s Child, Youth and Family Services Act, 2017 “that require consultation with bands,” wrote Justice Favreau in her reasons.

She said “the draft factum also refers to a decision of the Canadian Human Rights Tribunal that addresses the role of band representatives. The appellants’ factum does not include this legislative and jurisprudential perspective” and “it will be helpful for the panel hearing the appeal to have this perspective.”

The Chiefs of Ontario, which represents the province’s 133 First Nations chiefs, “intends to propose a framework for assessing the justiciability of Charter claims that challenge complex government policy decisions involving the design, management, control and funding of social programs,” wrote Justice Favreau.

“While some of their proposed submissions overlap with the appellants’ submissions, they bring a different and nuanced perspective to the issue of justiciability which may be of assistance to the panel hearing the appeal.”

She reached a similar conclusion with a proposal by Nishnawbe Aski Nation, which represents 49 First Nations across northern Ontario, to make submissions on the application of Charter s. 15 “in the context of claims alleging adverse-effect discrimination arising from the operation of child welfare systems affecting Indigenous children” and address the motion judge’s reliance on the decision in First Nations Child and Family Caring Society of Canada v. Canada (Attorney General), 2016 CHRT 2 “as the basis for a comparator between Indigenous children on reserve and off-reserve.”

Nishnawbe Aski was granted intervener status at the remedial stage following the Caring Society ruling, and their proposed submission might help the panel hearing the appeal, in Justice Favreau’s view.

Finally, the BCCLA — the only non-Indigenous organization — was also granted intervener status, and unlike the other three, wasn’t opposed in any way by the respondents.

It proposes to address the issue of when “a government delegates the delivery of public programs to a public sector entity that is independently subject to the Charter, in what circumstances does that government have residual Charter liability for any unconstitutional conduct by that public sector entity?” as Justice Favreau explained in her reasons.

Sujit Choudhry, a principal at Toronto-based Circle Barristers who represents the BCCLA, said in an interview that the association’s argument is that a province — in this case, Ontario — “can’t wash its hands of the Charter violations that a delegated entity might engage in.”

“That matters in cases involving damages because if the delegated entity is thinly capitalized, that creates perverse incentives for provinces to offshore certain decisions to entities that can’t compensate people if they violate Charter rights. We’re saying that in a situation like that, the province remains on the hook for whatever the entity did and if it can’t pay damages,” he explained.

“Children’s aid societies are creatures of provincial statute and exercise delegated authority in matters of child welfare and take decisions that might be unconstitutional and are best remedied by damages.”

Choudhry believes Justice Favreau’s ruling “is important because it opened the appeal to a broader cross-section of voices. That reflects the fact that the appeal raises a significant matter of public interest concerning off-reserve Indigenous child welfare and the extent to which the Crowns are liable.”

The appellate court judge dismissed the motions for leave to intervene by both the Anishinaabe Hiawatha First Nation — which she said presented a draft factum that focused on the difference between Indigenous and Western modes of parenting not addressed by the appellants’ claim — and Nigig Nibi Ki-win Gamik, the child, youth and family well-being agency of the Algonquins of Pikwakanagan First Nation whose proposed arguments on whether the claim for a class proceeding “discloses a cause of action for a sui generis or ad hoc breach of fiduciary duty” that Justice Favreau held “go beyond the claim as pleaded and the arguments on appeal, and therefore would improperly expand the scope of issues on appeal.”

“Notably, the appellants did not specifically plead that Indigenous child-rearing practices are an Aboriginal interest that can ground sui generis fiduciary obligations” and “Nigig Gamik’s submission that the respondents owe a fiduciary duty to the appellants by virtue of their role as ‘exclusive intermediaries’ on behalf of Indigenous children and families is [also] not pleaded by the appellants,” said Justice Favreau, who added that “the appellants do not rely on Indigenous law at this stage of the proceedings,” but noted that “these issues may become relevant if the action is ultimately allowed to proceed to trial, but would unduly expand the scope of issues on this appeal.”

She offered that Nigig Gamik and Anishinaabe Hiawatha might have an opportunity to offer their views on the case.

“If the appeal is successful, their perspectives may be helpful at a later stage in the proceedings,” wrote Justice Favreau in her reasons.

“However, the issue on appeal will be whether the motion judge erred in refusing to certify the action as a class proceeding. At this stage, the issue is limited to whether the claim discloses a cause of action as required under s. 5(1)(a) of [Ontario’s] Class Proceedings Act and whether the proposed action meets the other criteria for certification.”

“Therefore, the overarching question on this motion is whether the proposed interveners will likely make a useful contribution to the resolution of the issues that arise on appeal and not with respect to the merits of the underlying claim,” wrote Justice Favreau.

In an email to Law360 Canada, Crown-Indigenous Relations and Northern Affairs Canada spokesperson Eric Head wrote that “Canada respects the court’s decision regarding the groups that were asking to be heard at the appeal hearing. Canada will continue to work with partners — including First Nations, provinces and territories — to reform the on-reserve First Nations Child and Family Services Program to support the continued safety and well-being of Indigenous children, youth and families.”

“As this matter is currently before the courts, it would be inappropriate to comment further,” he added.

Law360 Canada reached out to Ontario’s Ministry of the Attorney General for comment but received no reply.