For close to twenty years I have had the privilege of representing Nora Bernard and the survivors of the Shubenacadie Indian Residential School. I was a member of the steering committee that negotiated the landmark National Indian Residential Schools Class Action settlement and I have had the great honour of helping hundreds of former residential school students in the claims process.
The Residential Schools Class action was the largest class action settlement in Canada, effecting nearly 70,000 aboriginal people across Canada. but even that massive court case hasn’t addressed all of the harms that aboriginal people have suffered as a result of actions of various federal and provincial government actions.
So I have followed with great interest the various claims that have been filed on behalf of aboriginal people across Canada based on issues similar to the loss of language and culture arguments that we pursued in the National Residential School claims.
Case in point: Brown v. Canada a class action in Ontario that was filed as a result of incidents that took place between 1965 and 1984.
The class action alleges that, in a program similar to the cultural assimilation policies of the Indian Residential Schools, the Canadian government took Aboriginal children from their families and placed them with non-Aboriginal families. The pleadings claim the government was engaged in a process of “identity genocide”.
Under the Child Welfare Act, Ontario assumed responsibility for providing child welfare services for the children.
The Plaintiffs allege that during the 19 years, approximately 16,000 Aboriginal children were removed from their families and lost contact with their Aboriginal cultural identity. They claim they lost their language, culture, customs and heritage, and any benefits they might have as status Indians under the Indian Act. (Para. 4 of Brown v. Canada  ONCA 18).
No Cause of Action…but Certified Anyway
The case management judge, Perell J., certified the class action under the Class Proceedings Act. While he did not find a valid cause of action in the pleadings, the case management judge certified the claim on the condition that the plaintiffs amend their statement of claim. The case management judge listed the cause of action as the Crown’s breach of a fiduciary or common law duty to prevent the Aboriginal child from losing his or her Aboriginal identity.
Canada appealed the decision of Perell J. to the Divisional Court: Brown v. Canada (Attorney General),  ONCA 1193. The Divisional Court found that the pleadings should have been amended instead of the case management judge granting the certification. Accordingly, the statement of claim was struck.
The claim then came to the Ontario Court of Appeal to determine whether it was open to the case management judge to certify the class proceeding before amending the pleadings. The Court of Appeal agreed with the Divisional Court that Perell J. erred in certifying the claim without having pleadings that disclosed an appropriate cause of action:
 I agree with the Divisional Court that the case management judge erred in conditionally certifying the class proceeding in the absence of a statement of claim that disclosed a cause of action. As this case demonstrates, identification of a cause of action is fundamental. It is impossible for the defendant to meaningfully respond to an application for certification without knowing the cause of action. The definition of the class and the identification of the common issues depend upon the nature of the cause of action.
Accordingly, the appeal was dismissed.
It is back to the starting line for the Class Members. They must amend their pleadings to show a cause of action and then start again with a different case management judge.