Confronting our failures: Tensions in remedying systemic discrimination in Canada

Abstract

This article examines the complexities of providing remedies for systemic discrimination in light of evolving understandings of equality and justice. Despite constitutional and statutory protections affirming the right to live free from discrimination, there remains a significant gap between recognizing systemic discrimination and implementing effective remedies. The 2021 case of Canada (Attorney General) v. First Nations Child and Family Caring Society of Canada serves as a focal point to highlight the shortcomings of the current remedial framework, which often prioritizes corrective over transformative justice, reflecting a formal rather than substantive approach to equality. In this case, the Canadian Human Rights Tribunal found that Canada’s inequitable funding of First Nations child welfare services was discriminatory on the grounds of race and national or ethnic origin. It ordered Canada to compensate every child impacted, while simultaneously imposing systemic remedies such as reforming federal funding policies. By exploring the Tribunal’s decision to uphold both individual and systemic remedies, the paper argues for a more integrated approach that moves beyond the dichotomy of individual versus systemic discrimination. It advocates for co-designed remedies informed by the perspectives of affected communities, calling for a shift in how systemic discrimination is addressed within Canada’s legal framework.

Introduction

The fundamental right to a remedy is encapsulated in the legal maxim ubi jus ibi remedium, which holds that where there is a right, there must be a remedy for its violation. In Canada, constitutional and statutory protections affirm the right of every individual to live free from discrimination. As contemporary understandings of discrimination evolve, providing appropriate remedies for breaches of the right to equality has grown more complex. This calls for a renewed evaluation of the law’s remedial framework to better address these nuances.

This complexity has been particularly manifest in cases of systemic discrimination. As opposed to direct ¹ or indirect ² discrimination, systemic discrimination denotes situations where “patterns of behaviour, policies or practices that are part of the structures of an organization, […] create or perpetuate disadvantage” ³ for persons belonging to a particular group. Because it is rooted in patterns of behaviour, it is often pervasive and deeply entrenched in everyday realities, including through unchallenged direct and indirect discrimination in both the public and private spheres. ⁴ This compendium of realities creates disadvantages for some groups and privileges for others.

Bridging the gap between the harms caused by systemic discrimination and crafting appropriate remedies is a complex challenge, yet not insurmountable, as demonstrated by the Canadian Federal Court’s decision in Canada (Attorney General) v. First Nations Child and Family Caring Society of Canada [Canada v. Caring Society]. This landmark ruling was notable not only for awarding both individual compensation and forward-looking structural remedies but also for reaffirming the authority of administrative tribunals to impose positive policy obligations on the government. ⁵ Yet this decision also underscores the existing barriers to innovative remedies in the pursuit of substantive equality. ⁶ Examining this case and its judicial history reveals the shortcomings of the prevailing remedial approach to human rights violations, which relies on a corrective justice framework that impedes progress towards substantive equality in Canada. This paper connects the prevalent critique of corrective justice in addressing systemic discrimination with the fundamental tenets of substantive equality: the commitment to achieve equitable outcomes and acknowledge the historical patterns of disadvantage faced by Indigenous peoples in Canada. Ultimately, it suggests that systemic remedies need to be informed by the perspectives of the communities they are crafted for.

The case of Canada v. Caring Society centres on the Federal Government’s inadequate funding for child and family services on First Nations reserves, ⁷ which led to delays, denials, and disruptions in services, ultimately resulting in a higher number of children being placed in foster care. In 2007, the First Nations Child and Family Caring Society of Canada and the Assembly of First Nations filed a complaint with the Canadian Human Rights Tribunal (CHRT) under section 5 of the Canadian Human Rights Act, ⁸ arguing that this underfunding constituted systemic discrimination based on race and national or ethnic origin. In 2016, the Tribunal ruled in favour of the Caring Society, finding that First Nations were negatively affected or denied services due to the actions of Aboriginal Affairs and Northern Development Canada, and that race or national/ethnic origin played a role in these adverse impacts. ⁹ The Tribunal ordered the department, now known as the Department of Indigenous Services Canada, to stop its discriminatory practices and to reform the First Nations Child and Family Services (FNCFS) accordingly, a ruling referred to as the ‘Merit Decision’. ¹⁰ In the subsequent 2019 ′Compensation Decision,’ the Tribunal mandated the government to compensate each child wrongfully placed in foster care due to the lack of funding, as well as their parents or grandparents if eligible. ¹¹

The Federal Government appealed this decision, but the Federal Court upheld it in 2021, reaffirming the right to individual compensation for those adversely impacted by the government’s policies. This article focuses on the analysis of remedies in these two rulings—the 2019 CHRT decision and the 2021 Federal Court decision. I argue that these judgments signal a shift in remedial approaches, moving away from the traditional dichotomy between individual and systemic discrimination and reconsidering the causal link between discriminatory policies and individualized harms in cases of systemic discrimination. Additionally, an examination of Canada’s main arguments in both decisions exposes the disconnect between the current remedial framework and the pursuit of substantive equality as outlined by the Canadian Human Rights Act. By situating the case of Canada v. Caring Society within the broader discourse on systemic remedies and substantive equality, this paper hopes to bring a modest contribution to the critique of the corrective justice framework in Canada, as articulated by scholars such as Kent Roach, Colleen Sheppard, Gwen Brodsky, Shelagh Day, Frances Kelly, Bruce Porter, and others. ¹² It further underscores the need for co-designing remedies with affected communities to ensure that both the procedures and intended outcomes align with the goal of substantive, rather than formal, equality.

This case is particularly instructive in the context of the recently enacted Bill C-92: An Act respecting First Nations, Inuit, and Métis children, youth, and families, which grants Indigenous communities jurisdiction over their child and family services as part of their inherent right to self-governance. Many of the issues observed in Canada v. Caring Society are mirrored in the negotiations and anticipated implementation of this act. While the case played a pivotal role in supporting the passage of Bill C-92, enacting the legislation is only a first step toward achieving equitable outcomes for First Nations families. Understanding this case is crucial for grasping critiques of this law, especially concerning insufficient funding and a lack of transparency in negotiating the funding framework.

The next section primarily serves a descriptive purpose, offering an overview of the case’s procedural history before delving into the key arguments of the 2019 CHRT and the 2021 Federal Court decisions. It highlights how the latter decision develops a distinct remedial logic, setting itself apart from the private law model of damages. The third section situates the case of Canada v. Caring Society within the broader jurisprudence on systemic remedies and examines the conceptual challenges of achieving substantive equality. I demonstrate how the Federal Court’s approach underscores the need to move beyond the dichotomy between individual and systemic discrimination to effectively address violations of equality rights. The fourth part reconsiders the role of administrative tribunals in light of contemporary jurisprudence, distinguishing them from courts in their ability to adopt approaches that are more attuned to broader societal contexts. I conclude by examining how the case of Canada v. Caring Society offers valuable insights for overcoming challenges to effective systemic remedies and sheds light on Canada’s approach to addressing structural injustices.

The case of Canada v. Caring Society concerns Indigenous children, a particularly vulnerable group in Canada whose over-representation in foster care points to the continuity of colonial policies in Canada. While it may be theoretically simple to categorize different forms of discrimination as direct, indirect, and systemic, the complexity of lived experiences often tests the discreteness of those categories. Attempting to classify instances of discrimination can lead to a reductive understanding of this phenomenon, which does not reflect people’s realities and results in misaligned remedies. It is therefore crucial for Courts and administrative tribunals to be attentive not only to quantitative differences of funding between First Nations communities and others, but also to the context of these differences, and to learn from a variety of critical perspectives on discrimination in crafting remedies. To that effect, an intersectional approach to understanding discrimination, ¹³ incorporating decolonial, Indigenous, and anti-racist perspectives, is essential. ¹⁴ These frameworks are particularly relevant for designing effective systemic remedies, as they guide us not only in avoiding the perpetuation of structural injustices during the implementation of remedies but also in ensuring that these remedies are responsive to the needs of communities impacted by state discriminatory practices. An intersectional perspective illuminates the links between broader historical and societal contexts and the ways contemporary policies adversely affect people’s lives. Although it is beyond the scope of this essay to outline the practical application of these theories in shaping remedies, they have significantly influenced the arguments presented and are integral to the paper’s underlying framework.

Canada v. Caring Society: A convoluted history

Procedural history from 2007 to 2023

In 2007, Cindy Blackstock, executive director of the First Nations Child and Family Caring Society, and the Assembly of First Nations filed a complaint at the Canadian Human Rights Tribunal, alleging that the Government of Canada discriminated against 163,000 First Nations children residing on reserve by providing inequitable child welfare services. ¹⁵ Children living off reserve fall under provincial jurisdiction and benefit from provincial funding, while families on reserve are under federal jurisdiction as per section 91(24) of the Constitution Act, 1867. ¹⁶ This complaint was filed in reaction to the federal government’s inaction regarding this issue, which had been well documented by two reports published in 2000 ¹⁷ and 2005. ¹⁸ These publications, commissioned by Indigenous and Northern Affairs Canada and the Assembly of First Nations, established that the federal government’s financing of child welfare services was approximately 30% below the amounts provided by provincial governments. ¹⁹ As a result, there was not only to a crucial lack of resources to help prevent the placement of children in welfare, but services were neither culturally appropriate nor in line with legislative developments on social welfare practices. For example, child protection legislation emphasized prioritizing preventative and least disruptive measures, and required that services were provided to give children the best chance to live safely at home. These services were not available on reserves due to a deficiency in federal directives. ²⁰ The division of jurisdictional responsibilities had led to substantial inequities in public services available to First Nations children living on reserves, further exacerbating the systemic and structural disadvantages that these communities endure due to the Residential School system and other policies of cultural genocide. ²¹ Financial difficulties also entailed chronic understaffing of social workers on reserves, delays, and interruptions in accessing services, and, more critically, service gaps where essential services were (and still are, in many cases) entirely absent in some communities. ²²

The 2005 report highlighted the risks of underfunding, which led to a “piecemeal implementation” of services and contributed to the over-representation of First Nations children in the child welfare system. The lack of preventive and non-disruptive services often resulted in the unnecessary apprehension of children, while families off reserves had access to services designed to mitigate difficult situations and prevent the need for foster care placements. The report detailed how these disparities did not only perpetuate intergenerational trauma connected to the legacy of Residential Schools in Canada, ²³ but also showed how the lack of Indigenous governance over the organization of services exposed ongoing colonial dynamics in Canada. In response to these findings, the Conservative federal government introduced a new funding formula called the “Enhanced Prevention Focused Approach.” While this approach partially incorporated some of the 2005 report’s recommendations, it fell short of addressing the most critical suggestions, such as providing adequate funding for reserve operations, including an inflation adjustment mechanism, and the proper implementation of Jordan’s Principle. ²⁴

The inadequacy of the government’s response led the FNCFS to file a complaint at the Canadian Human Rights Tribunal under section 5 of the Canadian Human Rights Act, which states that it is a discriminatory practice to deny or differentiate the provision of a service that is “customarily available to the general public” because of a prohibited ground of discrimination. ²⁵

The filing of this complaint marked the start of a lengthy journey for the plaintiffs, marred by numerous procedural obstacles put forth by the State defendant. Over the next 16 years, the Canadian government repeatedly sought to strike the proceedings, ²⁶ appealed every decision that reinstated the case, delayed progress by withholding access to key documents, and generally attempted to keep the matter out of the courts. ²⁷ Although the complaint was initially filed in 2007, the Canadian Human Rights Tribunal (CHRT) only heard it in 2013. ²⁸ In 2016, the Tribunal found that Canada’s inequitable provision of welfare services was discriminatory on the grounds of race and national or ethnic origin, ²⁹ and retained jurisdiction to monitor the government’s compliance with subsequent remedial orders – a decision that became known as the Merit Decision. ³⁰

In 2017, the CHRT ordered the government to redefine the scope of Jordan’s Principle to ensure that no child would experience delays or denials of service due to jurisdictional conflicts between provincial and federal governments. ³¹ This was seen as a systemic remedy consistent with the findings of systemic discrimination in the 2016 Merit Decision. The government sought judicial review of this remedial order, but the CHRT’s decision was upheld as being within the Tribunal’s jurisdiction. ³² In February 2018, the CHRT issued further remedial orders due to ongoing non-compliance, highlighting a persistent lack of cooperation from the State in the design of remedies for structural discrimination. ³³

Within this context, the CHRT issued the 2019 ‘Compensation Decision,’ directing the Canadian government to implement three key remedial actions. The first required immediate reforms to the First Nations Child and Family Services (FNCFS) Program and the application of Jordan’s Principle. The second involved mid-to long-term reforms, including provisions for training and ongoing monitoring. Lastly, the decision addressed requests for individual compensation under the Canadian Human Rights Act (CHRA). Citing the harms identified in the 2016 Merit Decision, the Tribunal ordered the Canadian government to pay $40,000 in damages to each child who had been unjustly placed in foster care due to inadequate funding. ³⁴ The Merit Decision had previously established that, under section 53(2)(e) of the CHRA, the Tribunal was empowered to order compensation for victims of discrimination. ³⁵ Additionally, section 53(3) allowed the Tribunal to order compensation when the discriminatory practice was carried out willfully or recklessly. ³⁶ Awards under either section are capped at $20,000, totalling to $40,000 if granted.

Canada once again sought judicial review of this decision, challenging the award of individual compensation for children. The government argued that such compensation was inconsistent with the nature of the complaint and did not adhere to established principles of causation in damage law. ³⁷ In September 2021, the Federal Court (FC) upheld the 2019 Compensation Decision. While this article primarily focuses on the remedial innovations in the 2019 CHRT and 2021 FC decisions, it is important to note subsequent judicial developments. In October 2021, Canada filed an appeal of the Federal Court’s decision, asserting that although systemic discrimination was acknowledged, the court had erred in its approach to awarding individual compensation. ³⁸

The Caring Society expressed disappointment with the appeal but agreed to Canada’s proposal to pause the proceedings in order to negotiate a settlement aimed at ending the Federal Government’s discriminatory practices and preventing their recurrence in the provision of child and family services and Jordan’s Principle. ³⁹ This negotiation led to the Revised Final Settlement Agreement on compensation, reached between the Caring Society, the Assembly of First Nations, class action parties, ⁴⁰ and the Government of Canada. ⁴¹ In September 2023, the CHRT confirmed that the Revised Agreement fully satisfied its 2019 compensation orders, in line with the submissions from the Caring Society, the Assembly of First Nations, the Canadian Human Rights Commission, and the Government of Canada, thereby concluding a 16-year judicial battle. ⁴²

The following section examines the arguments presented in the 2019 CHRT and 2021 FC decisions that justified the award of individual compensation for systemic discrimination and explores how these rulings move beyond the conventional framework of corrective justice.

Focus on compensation: the novelty of the 2019 and 2021 decisions

The CHRT compensation decision and its confirmation by the Federal Court were considered groundbreaking not only because they simultaneously allowed for individual compensation and for systemic remedies, but also because the Tribunal’s orders included policy reforms, as well as imposing ongoing monitoring and accountability measures to ensure compliance. ⁴³ The CHRT ordered the Department of Indigenous Services Canada to “cease its discriminatory practices and reform the First Nations Child and Family Services (FNCFS) Program” as well as to “cease applying its narrow definition of Jordan’s Principle and to take measures to immediately implement the full meaning and scope of the principle”. ⁴⁴

To better appreciate the novelty of this, it is useful to consider previous cases on systemic discrimination. Remedying systemic discrimination is not a new concept in Canadian jurisprudence, but it has traditionally been seen as separate from individual remedies. One of the first decisions to differentiate the aim of systemic remedies from individual ones in Canada was the 1987 Supreme Court case of CN v. Canada (Canadian Human Rights Commission) [Action Travail des Femmes]. ⁴⁵ In this case, the CHRT ordered the Canadian National Railway Company to implement an employment equity program to address discriminatory recruitment and hiring practices that excluded women from entering and remaining in the workforce. Writing for the majority, Justice Dickson recognized that the CHRA grants the tribunal authority to mandate respondents to take direct actions to combat discrimination. The Supreme Court upheld the CHRT’s directive requiring CN to permanently cease certain practices and to undertake proactive measures to reform its discriminatory workplace environment. The Court stated that affirmative action was a necessary remedy for systemic discrimination. Justice Dickson described systemic remedies as efforts to “ensure that a group that has been affected by discrimination will not face the same insidious barriers that blocked their forebearers”. ⁴⁶ This approach emphasizes the need not only to halt discriminatory actions but also to create an environment where affected groups are no longer hindered by enduring structural barriers to equality.

The Supreme Court of Canada has consistently emphasized that human rights legislation should be interpreted broadly to achieve its objectives. ⁴⁷ However, governments in the position of responding to human rights complaints often attempt to undermine this purpose, notably by arguing issues related to comparator group analysis, standing, justiciability, and remedies. ⁴⁸ As noted by scholars Gwen Brodsky, Shelagh Day, and Frances Kelly, such arguments typically aim to limit the remedial authority of tribunals and shield government services from scrutiny.

The 2012 case of Moore v. British Columbia (Education), ⁴⁹ relied on by Canada against the Caring Society, exemplifies these arguments. It involved the denial of adequate special education services to a student with severe dyslexia. Jeffrey Moore’s parents argued that the closure of his specialized learning centre without suitable alternatives amounted to discrimination under the British Columbia Human Rights Code, on the ground of his disability. The Supreme Court ruled that the school district and province had discriminated against Jeffrey by failing to provide meaningful access to education. However, while the Court upheld the damages against the School District, it rejected the systemic remedies ordered by the CHRT and excused the Ministry from liability, citing concerns about the competence and legitimacy of tribunals. This decision reinforced the view that human rights tribunals lack jurisdiction for systemic remedies, favouring a more individual-focused, corrective approach to justice to the detriment of the broad public policy purposes of human rights legislation.

In contrast, Canada v. Caring Society saw the Federal Court affirming the tribunal’s authority to impose policy requirements on the government and monitor compliance. This approach attempts to counter government inertia by recognizing that tribunals may encounter evidence of long-standing human rights violations and ineffective responses, thus needing to maintain oversight over compliance with new remedial orders. Indeed, Brosky, Day and Kelly remind us that one compelling reason for seeking remedies beyond a declaratory order in cases of systemic discrimination is the significant barrier posed by government inaction. Tribunals often encounter evidence of incompetence, neglect of human rights, ignorance, or stubbornness—indicating that the respondent was aware of the problem and its impacts, sometimes for many years, yet failed to take effective action to resolve it. ⁵⁰

In its pleadings before the Federal Court, two of Canada’s arguments further reveal conceptual obstacles to crafting systemic remedies: the claim that individual and systemic remedies are mutually exclusive, and that the award of individual compensation requires evidence of a direct causation between the harms done and the injury suffered.

The perceived disconnect between systemic complaints and individual compensation

In 2019, Canada argued before the CHRT Panel that the Merit Decision’s classification of the harms as systemic discrimination implied that the Tribunal could only provide systemic remedies, such as halting discriminatory practices, addressing them, and preventing their recurrence. ⁵¹ In response, the Tribunal noted that the language of the Canadian Human Rights Act (CHRA) did not preclude awarding multiple remedies, even when systemic remedies had been ordered. ⁵² The Tribunal emphasized that human rights legislation should be interpreted to ensure full protection of rights. It also offered a revised interpretation of Moore v. British Columbia (Education), which Canada had cited to argue that systemic and individual remedies were mutually exclusive. The Tribunal argued that, contrary to Canada’s claim, the Supreme Court in Moore had established that systemic remedies could be crafted only if the complaint was systemic in nature. However, if evidence supported both types of harms, as it was the case here, the CHRA allowed for both individual and systemic remedies. ⁵³ Additionally, the Supreme Court in Moore had highlighted the inconsistency in treating systemic and individual discrimination as separate and distinct:

“Discrimination is not to be understood in a binary way, or to be an “either or” proposition between individual and systemic; (…) it is neither necessary nor conceptually helpful to divide discrimination into these two discrete categories. A practice is discriminatory whether it has an unjustifiably adverse impact on a single individual or systematically on several.” ⁵⁴

The panel suggested that both types of remedies were necessary and occupied different roles. Systemic remedies were needed to improve the discriminatory programs, and prevent recurrence. Individual remedies were meant to compensate the harms done to the victims, validate the hurt resulting from discrimination, and to deter Canada from continuing its discriminatory practice. ⁵⁵

In writing the 2021 Federal Court decision, Justice Favel confirmed the necessity of both types of remedy. He also confirmed that the language of the CHRA did not support the idea that victims “should be barred from individual remedies because of the systemic nature of the harm”. ⁵⁶ Not only was this recognized in both jurisprudence and legislation, but the Canadian government had never produced its own evidence as to why individual compensation could not be awarded alongside systemic reforms in cases of discrimination. ⁵⁷ In failing to present their own evidence, Canada’s attorneys assumed that individual compensation could not be granted for systemic discrimination. This assumption is the second argument I focus on.

Reconsidering the private law’s characterization of causation

Linked to the perceived disconnect between individual compensation and systemic harm, Canada contended that the compensation awarded did not adhere to fundamental principles governing damages. These principles, it argued, required a “reasonable decision” to evaluate the causal link between the act of underfunding and the specific harm experienced, with compensation proportionate to each individual’s circumstances. ⁵⁸ Canada maintained that there was insufficient evidence to establish a direct causal connection between the discriminatory practices and the loss suffered by individuals, thus undermining the basis for individual compensation. ⁵⁹

Justice Favel clarified that likening the CHRT’s compensation order to damages typically awarded in court proceedings was a mischaracterization. ⁶⁰ He distinguished the individual remedy granted by the Tribunal from private law damages, emphasizing that the victim did not need to prove loss. Human rights legislation, he noted, is “not designed to address different levels of damages or engage in processes to assess fault-based personal harm”, ⁶¹ but rather to compensate for “the loss of one’s right to be free from discrimination, the experience of victimization, and the harm to their dignity”. ⁶² This loss of dignity represented a distinct harm that could not be measured in the same manner as tort or personal injury claims. ⁶³ Indeed, under section 53(3) of the Canadian Human Rights Act (CHRA), proof of loss is not required for a victim to claim compensation. ⁶⁴ Once discrimination is established, compensation is awarded, with the amount reflecting the severity of the psychological impact on the victim. ⁶⁵

While the CHRT did not find that every case of neglect could have been prevented with adequate funding, it received enough evidence to establish that First Nations on reserves were adversely impacted by the inadequate services provided by the Federal government, compared to those provided by provincial governments. ⁶⁶ The inadequate funding of child welfare agencies prevented them from implementing in-home interventions for neglected children, making it difficult to avoid placing these children in foster care. Consequently, children were “denied an equitable chance to stay safely at home due to the structure and amount of funding”, ⁶⁷ violating their right to be free from discriminatory policies. This infringement warranted the maximum compensation of $20,000 as outlined by the CHRA.

Justice Favel emphasized that systemic discrimination cases do not require individualized evidence of harm; instead, the necessary causal link is between the discriminatory practices and their adverse impact on a protected group. This approach differs significantly from private law damages, which hinge on quantifying the loss suffered by a victim, a loss that would not have occurred “but for” the actions of the defendant. Therefore, while remedies must still derive from the complaint, ⁶⁸ claims of systemic discrimination do not preclude the possibility of individual compensation.

The 2019 CHRT and 2021 Federal Court decisions underscore the necessity of both individual and systemic remedies to address governmental discriminatory practices, representing a notable shift in public law remedies. By departing from traditional private law models, these rulings seek to address the historical context of First Nations children and families and advance towards substantive equality. Yet Canada’s arguments reveal ongoing challenges in developing remedies that are genuinely transformative. The following section explores these challenges in detail.

Tensions in remedying systemic discrimination

The persistence of formal equality

Systemic remedies have traditionally been viewed as fundamentally distinct from individual remedies: they are forward-looking, aimed primarily at preventing the recurrence of discrimination. In contrast, financial awards for individuals are grounded in a corrective view of justice, which seeks to “restore the victim of a legal wrong to the position they would have been in but for the harm caused”. ⁶⁹ This principle, known as restitutio in integrum, holds that victims should be returned to their original position. Canada’s argument that individual compensation is not appropriate for systemic discrimination reflects this approach, which predominates in individual compensation for discrimination cases.

However, this corrective justice model does not align with the current understanding of equality rights in Canada, which are shaped by the concept of substantive equality. Equality rights are protected both by the Canadian Human Rights Act, ⁷⁰ and section 15 of the Canadian Charter of Rights and Freedoms. ⁷¹ While both instruments aim to protect individuals’ rights and freedoms, the Charter has a broader, constitutional scope and applies to government actions across Canada, whereas the CHRA is a federal statute and specifically addresses discrimination within federal jurisdiction – although it has been granted “quasi-constitutional” status. ⁷² The Charter’s rights are enforced through the court system, which can declare laws unconstitutional and provide various remedies, while the CHRA is enforced through the Canadian Human Rights Commission and Tribunal, which can order compensatory remedies but cannot strike down laws. The Charter’s constitutional authority means it can override the CHRA if necessary, ensuring that all human rights protections in Canada are consistent with constitutional principles. ⁷³ As such, Charter jurisprudence can be relevant to interpret the provisions of the CHRA.

Substantive equality emerged as a foundational legal principle in Canadian equality law following the constitutional recognition of equality rights in the Charter of Rights and Freedoms during the 1980s ⁷⁴ In the Supreme Court case of Fraser v. Canada (Attorney General), Justice Rosalie Abella, writing for the majority, emphasized that “substantive equality is the ‘animating norm’ of the section 15 framework”. ⁷⁵

Substantive equality is an approach that goes beyond treating everyone identically; it seeks to achieve equitable outcomes by addressing systemic barriers, disadvantages, and power imbalances. Recognizing that different individuals or groups may need varying levels of support to attain true equality, it emphasizes ensuring genuine access to opportunities and benefits rather than simply providing identical treatment. ⁷⁶ This theory of equality prioritizes the impact of laws and policies on individuals or groups, considering the broader social context that has led to discrimination. It defines discrimination by its effects, focusing on how laws, policies, or actions create, reinforce, or perpetuate disadvantage, rather than merely examining the intent behind them. ⁷⁷

This approach legally mandates both public and private entities to create a social environment in which individuals engage as equals. As authors Vandna Sinha, Colleen Sheppard, Kathryn Chadwick, Maya Gunnarsson, and Gabriella Jamieson note, determining whether substantive equality has been violated requires an assessment of the full context of the claimant group’s situation, of the impact of the law or policy on that situation, and of the persistent disadvantages that have historically limited opportunities. ⁷⁸ They posit that equitable outcomes are the primary indicator of substantive equality, highlighting the importance of fair and accessible procedures in achieving this goal. ⁷⁹ The Canadian government has pledged to embrace substantive equality as a guiding principle in implementing policies like Jordan’s Principle. ⁸⁰ However, Sinha et al. contend that this commitment falls short due to the absence of a clearly defined and operational standard of substantive equality that addresses the historical and ongoing inequalities faced by First Nations communities. They argue that the approach places an undue burden on individuals to request the application of the principle and is fraught with challenges, including inconsistent discretionary decisions, insufficient transparency regarding funding, delays in accessing resources, and the lack of an independent appeal process. ⁸¹

The Supreme Court, through its section 15 jurisprudence, has similarly adopted a substantive approach to equality, emphasizing the effects of discrimination rather than its causes or motivations. ⁸² However, despite this strong rhetorical commitment, the outcome of decisions often reflects a more formal understanding of equality, particularly in the reluctance to award systemic remedies. ⁸³ Indeed, while substantive equality has been established as the guiding standard for addressing discrimination in Canada, its implementation remains inadequate both in governmental actions and court rulings.

This discrepancy highlights the persistent influence of corrective justice, which frames remedies within a private law paradigm focused on restoring individuals to their state prior to the discrimination. This approach is consistent with formal equality, but not with substantive equality. Formal equality posits that individuals should be treated the same under the law, with no consideration of their different circumstances or backgrounds. It treats parties as two equivalent entities in abstraction of the system in which they evolve. Private law envisions the judge’s role as determining the extent of harm one party has caused another and mandating restitution to restore the victim to their prior position. The judge focuses solely on rectifying the loss incurred due to another’s fault, without considering the particular historical circumstances or ensuring that the harm will not reoccur in the future. Canada’s arguments in Canada v. Caring Society are telling of the persistence of this approach, particularly in rejecting individual compensation on the grounds of insufficient causal links between funding deficiencies and the harm of unjust child removals. This indicates a gap between the commitment of government and courts to substantive equality, and remedial strategies for violations of this right. Moored to corrective justice and formal conceptions of equality, remedies thus seem disjointed from current doctrine on discrimination and equality.

Justice Favel’s decision paves the way for realigning remedies with substantive equality. By affirming that one need not prove individualized harm, but only discriminatory conduct, people suffering from systemic discrimination are not barred from receiving compensation. To truly address systemic discrimination and work towards substantive equality, remedies must move beyond the current understanding of restoring a victim to their initial state, and work towards transformative justice. For this, both individual and systemic remedies are necessary and should not be viewed as mutually exclusive. Moreover, there is a need for new perspectives, including decolonial and community-informed approaches, to reshape remedial strategies in a way that transcends the dichotomy of individual and systemic. A fluid and adaptable two-track approach, grounded in substantive equality, is essential for achieving equitable outcomes and recognizing the historical contexts of those affected by discrimination. The next section explores how such an approach can be developed.

The case for a two-track approach

The CHRT’s rejection of the dichotomy between individual and systemic reflects the reality that systemic discrimination operates on multiple levels, both individual and institutional. ⁸⁴ Delving into the Caring Society case illustrates why the simultaneous award of individual and systemic remedies is essential to redress systemic discrimination. We cannot fully isolate individual injustices from their institutional contexts or from organizational norms that enable them. Seeing individual and systemic remedies as mutually exclusive exerts a “backwards pull on human rights legislation”, ⁸⁵ and can create pathologies in the justice system.

An excessive focus on systemic solutions can lead to a disconnect between the policies and practices implemented at the institutional level and the needs of the population targeted by those policies; and can strain the legitimacy of the courts. Scholars have long called for the judiciary to adopt an active role in addressing systemic discrimination. In the United States, the 1970s saw authors such as Abram Chayes and Owen Fiss advocating for a proactive judiciary in managing public law litigation, and for enforcing civil rights through structural injunctions. ⁸⁶ This gave rise to a number of concerns. Critics of preventative remedies argued that structural injunctions did not fall within the scope of the judiciary’s role and expertise, and that it constituted judicial overreach that lacked democratic legitimacy. ⁸⁷ Others suggested that these large-scale ambitious remedies lacked in effectiveness of enforcement, producing more remedial failures. ⁸⁸ Furthermore, detailed preventive orders do not necessarily remedy the harms that have already incurred. Similar debates on systemic remedies followed in the Canadian context, particularly in the wake of the 2003 case Doucet-Boudreau v. Nova Scotia (Minister of Education). ⁸⁹ In this case, the Supreme Court of Canada upheld a creative and flexible approach to remedies by allowing trial judges to retain supervisory jurisdiction over the implementation of remedies. This marked a departure from the traditional view that once a decision was made, the court’s involvement would end.

The key change introduced by the Doucet-Boudreau decision was the acknowledgment that effective remedies must be both meaningful and responsive to the specific circumstances of the case, especially when addressing systemic or ongoing violations of rights. The Court recognized that in cases involving complex or entrenched forms of discrimination, traditional remedies such as declaratory judgments or damages may be insufficient. Instead, courts were encouraged to craft remedies that not only address the immediate harm but also ensure compliance with constitutional obligations over time. ⁹⁰

Simultaneously, an extensive focus on individual remedies runs the risk of providing inadequate remedies, as courts will provide compensation while remaining silent about larger questions and repetitive violations. Many do not have the resources to engage litigation when their rights have been violated. If Courts only order individual awards without considering future recurrence, they only force the state to remedy the rights of those who have the means to litigate. It would also take a toll on the system’s resources since each person would have to individually litigate cases of similar violations.

Scholar Kent Roach therefore argues for a dual track to remedies, whereby courts should provide both meaningful remedies for the litigant on one track, and simultaneously tend to the systemic track where they could “engage dialogically with the state to prevent similar rights violations in the future”. ⁹¹ The dual-track approach aims at repairing past violations suffered by plaintiffs and at preventing future and repetitive violations. The two tracks are complementary and mutually reinforcing, and can ideally challenge the dichotomy established between the individual and the community impacted by systemic discrimination. The 2019 CHRT and the 2021 Federal Court decisions provide an example of this complementarity, and are sensitive to the interconnectedness of past and future harms in systemic discrimination. A two-track approach “assumes a broader time perspective than most scholarship, which tends to focus on a single moment of decision”. ⁹² Because of this broader time perspective, it was crucial for the CHRT to retain jurisdiction to monitor compliance on the long-term in the Caring Society case.

However, the dual-track approach does not solve the issue of judicial overreach, nor is it necessarily more conducive to compliance. Brodsky, Day, and Kelly have argued that in cases of systemic discrimination, government respondents often oppose forward-looking, programmatic remedies, even if those are necessary to redress complex systemic discrimination. ⁹³ Going further, scholar David Wiseman has argued that governments and large institutions are incompetent to remedy discriminatory situations that they have caused. ⁹⁴ The Canada v. Caring Society serves as an example, as it was initiated because of the government’s inaction, despite the latter having knowledge of the situation of underfunding and its discriminatory effects.

The more ambitious remedies are, the more potential there is for remedial failure. It is well documented in international law that states often do not, or only partly comply with orders from international tribunals. ⁹⁵ It is more difficult to find similar studies on domestic compliance of governments with their internal tribunals. Still, administrative tribunals can play a key role in monitoring the implementation of orders, as the CHRT did in the Caring Society case.

The role of tribunals in monitoring compliance

Administrative tribunals occupy a different role from courts. The Canadian Human Rights Act is the constitutive instrument of the Canadian Human Rights Tribunal and is considered quasi-constitutional legislation. ⁹⁶ By having quasi-constitutional authority to review administrative decisions, the CHRT is not bound by the same level of deference as the courts with regards to the legislature.

Indeed, Brodsky, Day, and Kelly suggest that administrative tribunals are “created precisely for the purpose of implementing government policy”, a task which “may require them to make quasi-judicial decisions”. ⁹⁷ These authors view the role of tribunals as creating a bridge over the constitutional divide between the judiciary and the executive. Because they are technically part of the executives, they can assist the legislature in designing systemic remedies, and do not run the risk of judicial overreach as the Courts would.

The CHRT’s remedial authority and monitoring powers have been previously upheld by the Supreme Court, who maintained that the tribunal had “broad statutory discretion to fashion appropriate remedies”. ⁹⁸ The SCC further specified that these remedies could “attempt to make victims whole and prevent the recurrence of the same or similar discriminatory practices”. ⁹⁹ The tribunal clarified its own monitoring ability in the 2010 decision in Hughes v. Canada (Elections Canada). ¹⁰⁰ This case revolved around the discriminatory exclusion of voters with disabilities. The CHRT appointed the Canadian Human Rights Commission to oversee the implementation of an order to the Electoral Commission to make voting facilities accessible. The tribunal emphasized the importance of being able to appoint various parties as monitors, stating,

“The involvement of other actors recognizes that the courts and tribunals have an adjudicative role and formal process that do not translate well into the technical or task-specific aspects of the implementation of orders often affecting the day-to-day operations of a governmental or corporate respondent.” ¹⁰¹

The tribunal speaks here to the necessity of having a multiplicity of actors to ensure governmental compliance with complex systemic remedies. It also opens the possibility of having a more participatory procedure of implementation for systemic remedies, which would involve relevant parties to the case. This stands in sharp contrast with recent jurisprudence on the capacities of courts to order systemic remedies.

In the 2022 case R. v. Sharma, the Supreme Court has substantially narrowed possibilities for Courts to impose positive obligations on the State to remedy inequalities and systemic discrimination. The majority decision, written by Justices Brown and Rowe, affirms that section 15(1) of the Canadian Charter of Rights and Freedoms does not “impose a general, positive obligation on the State to remedy social inequalities or enact remedial legislation”. ¹⁰² The dissent, penned by Justice Karakatsanis, points out that this decision does not seem in line with current Charter jurisprudence and is rather “reminiscent of rejected pre-Charter approaches”. ¹⁰³ Indeed, Justices Brown and Rowe have raised the bar to demonstrate even the existence of systemic discrimination by renewing the focus on causation. ¹⁰⁴ As previously mentioned, this focus on causation is a by-product of a corrective conception of justice and a formal view of equality that stands in contrast with a substantive understanding of equality.

Justices Brown and Rowe further argue that if they could impose such remedies, “Courts would be impermissibly pulled into the complex legislative domain of policy and resource allocation, contrary to the separation of powers”. ¹⁰⁵ The resistance to grant remedial authority to courts similarly prevents them from working towards a forward-looking, transformative justice in cases of discrimination. In light of the Sharma decision, it is therefore especially important to distinguish the role of administrative tribunals from courts in the Canadian justice system.

Given its monitoring capacities, the CHRT is better equipped to implement a dual-track approach to remedies than courts. In Canada v. Caring Society, the Federal Court further emphasized that human rights legislation should be interpreted in a broad and purposive manner, and should be construed liberally to give full recognition to protected rights. ¹⁰⁶ This stands in contrast to the more restrictive interpretation of s.15(1) rights present in Sharma but is consistent with the fundamental legal precept that there is no right without a remedy. Rights protect individuals insofar as they have a remedy for their violation. In precluding the possibility for courts to order governments to cease and reform their discriminatory practices, Sharma substantively weakens the protection of Charter rights.

Moreover, the procedural history of Canada v. Caring Society does not indicate that the task of changing unjust policies can be trusted to the government alone. Instead, heavy resources were spent challenging remedial orders and appealing decisions. By October 2022, the CHRT had issued 22 orders of non-compliance. ¹⁰⁷ This behaviour does not seem conducive to the ability to resolve the problem of discriminatory policies without the intervention and monitoring of non-governmental parties. The relentlessness of Canada’s challenges to the CHRT orders also points to a tension in the Caring Society case. The 2019 Compensation Decision posits that the additional $20,000 awarded under s53(3) of the CHRA does not have a punitive purpose, but rather acts as a deterrent, and as a vindication for the victims that could lead to a form of healing. ¹⁰⁸ However, the language of the CHRA indicates that this additional sum is only awarded if the actor is engaging in the discriminatory practice willfully or recklessly, and Justice Pavel confirms in his 2021 judgment that “section 53(3) is a punitive provision”. ¹⁰⁹ This could be in tension with the CHRT’s aim to retain jurisdiction in order to “foster dialogue between the parties”. ¹¹⁰ Indeed, the CHRT’s ability to order punitive remedies gives it a dual role of an interlocutor with the government and an enforcer of sanctions. Yet for Justice Favel, the CHRT’s multiple orders “reflects the Tribunal’s management of the proceedings utilizing the dialogic approach” between the administrative tribunal and the government agencies, and fostered negotiation around practical solutions. ¹¹¹

While administrative tribunals are well placed to orient the legislature on systemic reform as they are technically part of the executive power, this also entails that they potentially lack the counter-majoritarian force of judicial decisions. As they are not independent from the political process, they cannot assert – as the judiciary can – that rights are held by citizens regardless of the elected representatives’ policy choices. This might also shape the norm that tribunals decide to enforce. Alon Harel and Avihay Dorfman have argued that institutions are not mere conduits for norms but actively shape their content and significance. ¹¹² For example, a constitutional right differs fundamentally from a statutory right, not merely in terms of permanence but also in how it reflects societal values and the role of majority rule. ¹¹³ They emphasize the importance of recognizing the distinct roles that various legal institutions play in shaping values within a legal system. Yet the authors also contend that constitutional protections often denote rights that transcend the immediate preferences of the political majority, thus embedding a deeper, more enduring normative significance. ¹¹⁴

Dorfman and Harel’s analysis of rights stemming from different institutions (constitutional, statutory, and common-law based rights) serves as a reminder of the importance of institutional pluralism. This points to the importance of involving multiple parties in monitoring compliance. While the CHRT occupies the role of overseeing the compliance and of ordering potential sanctions, it can also involve other parties to negotiate what remedies are both adequate in terms of the Tribunal’s orders, and realistic. Given the complexity of the case, determining effective remedies necessitated innovation and flexibility from the Tribunal, a flexibility that the CHRA, according to Justice Favel, is structured to encourage. ¹¹⁵

Throughout the procedural history of Canada v. Caring Society, the director of the Caring Society, Cindy Blackstock, engaged a large number of parties to participate in the proceedings. Not only were there many different parties added through the years to the CHRT complaint (including the Assembly of First Nations, the Chiefs of Ontario, the Nishnawbe Aski Nation, and Amnesty International), but she invited children from various backgrounds to attend the trials. She also actively participated in negotiating the different forms of remedies. This case shows how tribunals can be open to a wide range of remedies suggested by litigants, including both formal and informal acts of reparation. This type of inclusion should be pursued in other cases involving systemic discrimination, to ensure that remedies are truly aligned with the need of a community that has suffered from structural injustices.

Broader impacts of the Caring Society case

Both the 2019 CHRT and the 2021 Federal Court judgments conclude with a call to situate this case in the larger context of reconciliation between Canada and Indigenous peoples. The 2019 decision explains how systemic discrimination has led to a compounded harm that perpetuates the historical disadvantage and trauma suffered by Indigenous peoples. ¹¹⁶ The 2021 judgment calls for the parties to move forward together in negotiating a compensation package in the spirit of reconciliation. ¹¹⁷ These decisions aspire to address the wider societal context of the harms incurred by systemic discrimination.

They do so by fulfilling two remedial goals: to compensate for harms suffered on one hand, and to ensure ongoing compliance for the non-repetition of violations on the other. Administrative tribunals like the CHRT play an important role as institutions that can combine the traditional corrective concern to provide successful litigants with remedies, with the broader public law ambition to tackle the systemic discrimination in which individual complaints are embedded. The CHRT might be better positioned to evolve and innovate remedies for both systemic and individual discrimination compared to traditional courts, primarily due to its specialized mandate and flexibility. Unlike courts, which are often constrained by rigid legal doctrines and a self-referential approach that can perpetuate existing biases, ¹¹⁸ tribunals are designed to focus specifically on human rights issues and can adopt a more expansive, context-sensitive interpretation of equality. They are not bound by the strict procedural rules that courts adhere to, allowing them to consider broader social and historical contexts and to craft remedies that address the root causes of discrimination. This flexibility enables them to move beyond the limitations of formal equality and corrective justice, embracing a more transformative approach that seeks to dismantle systemic barriers and foster substantive equality. In these decisions, both the Federal Court and the CHRT seem aware that applying only individual remedies would ignore issues of recurrence, and only systematic remedies would fail to attend to the immediate suffering of children in care and their families. They recognize that different types of remedies are required to give a full protection to the rights enshrined in the Canadian Constitution. By prioritizing practical, forward-looking solutions and being open to community input, tribunals can better address the evolving nature of discrimination and the complex needs of affected groups.

Kent Roach suggests that remedies are under-theorized in human rights law partly because they have to do with a society’s failure to protect human rights. ¹¹⁹ When theorizing about rights, one can imagine a world where everyone should be able to fully enjoy their lives, free from inequality, free to pursue any endeavour they wish. But when theorizing about remedies, we must contemplate just how far we are from this world, and how our own actions or inaction prevent us from attaining it. Current remedial strategies still seem misaligned with equality rights theories.

However, cases such as Canada v. Caring Society show how the incredible work of perseverant and driven individuals such as Cindy Blackstock allow us to do collectively better. Spanning a procedural history of more than fifteen years, this case has sparked an important discussion in both the judiciary and the legislature. In 2019, Bill C-92: An Act respecting First Nations, Inuit and Métis children, youth and families was passed in Parliament, enshrining into law the recognition that Indigenous peoples in Canada have jurisdiction over child and family services. The province of Quebec challenged the constitutionality of this act with regards to questions of competing jurisdiction between provincial and Indigenous governance, but the Supreme Court of Canada confirmed the law to be constitutional in February 2024. ¹²⁰

Still, this bill was criticized on several accounts: the Chiefs of Ontario raised significant concerns about the claim that it was co-developed with First Nations. They argue that while they participated in the Legislative Working Group convened by Canada, the process was flawed since the opportunities for input were limited and rushed, their contributions were largely ignored; and the rights holders—individual First Nations—were only involved in preliminary engagement sessions and had no direct input during the legislation stage. ¹²¹ Furthermore, the Chiefs of Ontario emphasized the necessity of a binding funding clause in the law, linked to the legal standard of substantive equality, to ensure that adequate resources were provided to meet the needs of First Nations children and families. ¹²² For them, the legislation was failing to adequately address the fiscal realities faced by First Nations, creating a risk that the transfer of authority could be superficial without the financial support needed to make substantive changes.

The criticisms of Bill C-92 echo those highlighted in the Canada v. Caring Society case, particularly regarding funding inadequacies and lack of transparency. Both the case and the subsequent legislation reveal a persistent pattern of insufficient financial commitments and transparency, undermining efforts to achieve substantive equality and improve outcomes for Indigenous children and families.

This testifies to the endurance of colonial power structures; whereby Indigenous peoples depend on the federal government to provide them with funding for basic services. A long-term approach to systemic remedies is crucial to recognize how inequality impacts vulnerable population across a wide variety of opportunities. Anti-discrimination law has its limits, and problems such as the underfunding of child welfare services need a “wide array of integrated political and social responses”. ¹²³ In engaging with various actors, the Caring Society case became lengthier and more complex. However, it also opened the door for the necessary engagement with broader historical and political realities, therefore going beyond the usual legal focus on individual misconduct and specific policy like the Supreme Court has done in Sharma. Given courts’ “difficulties in addressing larger macro realities”, ¹²⁴ the CHRT’s adoption of both individual and systemic remedies is of crucial importance in current anti-discrimination jurisprudence. This approach, which values achieving equal outcomes in the face of persistent colonial injustice, is necessary to work towards the protection of equality rights in Canada.