Canada liable to off-reserve Indigenous children for loss of culture, class proceeding alleges
This week, the Federal Court dealt with cases involving the ministers of citizenship and immigration and public safety and emergency preparedness, the ombudsman for the Department of National Defence and the Canadian Armed Forces, and the Canada Revenue Agency.
Federal Court
On Monday, the court heard Cheyenne Pama Mukos Stonechild and Others v. His Majesty the King, T-620-20. The plaintiffs moved for the certification of a class proceeding questioning Canada’s role in allowing the placement of Indigenous children in state care in non-Indigenous homes and with individuals not belonging to their Indigenous group, community, or people between January 1992 and December 2019.
The proposed class action alleged that Canada failed to take reasonable steps to prevent injury to those off-reserve Indigenous children and the loss of their identity, culture, heritage, language, family, and federal benefits.
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In June 2022, in Stonechild v. Canada, 2022 FC 914, the Federal Court certified a single class action to avoid the necessity or the prospect of the country’s most disadvantaged groups pursuing 13 separate provincial and territorial actions.
On Tuesday, the court heard David Meeches v. Kyra Wilson et al, T-1015-22. This judicial review application alleged that the Long Plain First Nation Election Appeal Committee and some of its electoral officers failed to apply, to uphold, and to administer the articles of the First Nation’s Custom Election Act.
On Wednesday, the court heard Eneria Luciana Perez Lopez et al v. The Minister of Citizenship and Immigration, IMM-4427-22. This case arose from two decisions in April and November 2022, respectively.
First, the Refugee Protection Division found that the applicants were not refugees under the Convention Relating to the Status of Refugees and were not in need of protection under ss. 96 and 97(1) of the Immigration and Refugee Protection Act, 2001. Second, an enforcement officer of the Canada Border Services Agency refused the applicants’ request to defer their removal.
The applicants asked for a stay of their removal from Canada to Colombia – scheduled for Dec. 7, 2022 – until the court’s final determination of the leave and judicial review applications relating to either of the two decisions.
On Dec. 6, in Perez Lopez v. Canada (Public Safety and Emergency Preparedness), 2022 FC 1684, the Federal Court stayed the removal of the applicants until the determination of their leave applications and, if they obtained leave, their judicial review applications.
On Wednesday, the court heard two cases brought against the Minister of Public Safety and Emergency Preparedness: Yucheng Su v. Minister of Public Safety and Emergency Preparedness, T-1225-22 and Mazda Canada Inc. v. The Minister of Public Safety and Emergency Preparedness, President of the Canada Border Services Agency, T-1217-22.
The plaintiff in the first case, who returned to Canada from a U.S. trip, alleged that the defendant’s seizure of two bottles of wine breached procedural fairness and amounted to error. The defendant should return the wine upon payment of the applicable duties and taxes or should pay the market value if the bottles were destroyed, the plaintiff said.
Mazda Canada Inc., the applicant in the second case, argued that the respondents wrongly denied its claims of defective goods refunds for customs duties based on its alleged lack of proof of disposal of the goods.
On Wednesday, the court heard Justin Hudson v. Gregory Lick et al, T-123-23. The applicant, a former member of the Canadian Armed Forces who sought re-enrolment, challenged the decision of the respondents, including the ombudsman for the Department of National Defence and the Canadian Armed Forces.
The decision was arbitrary, subjective, improper, and injudicious, the applicant said. It gave the perception of bias and went against the law, including ss. 7 and 15 of the Canadian Charter of Rights and Freedoms, the applicant added.
On Wednesday, the court heard two cases both titled Xiao Hong Gu v. Canada Revenue Agency, with the file numbers T-1834-22 and T-1835-22. Judicial review applications challenged the Canada Revenue Agency’s decision finding the applicant ineligible for the Canada Worker Lockdown Benefit and Canada Recovery Benefit based on noncompliance with the minimum income requirement.
On Thursday, the court will hear Aijun Sun v. Canada Revenue Agency, T-2368-22. The applicant here also challenged the agency’s decision finding her ineligible for the Canada Recovery Benefit based on her failure to meet certain criteria.