Motion for stay dismissed. The applicants have not discharged their burden to show that they, or Indigenous children, will suffer irreparable harm if a stay of the Minister’s Directive and Designations is not granted.
This motion is for a stay. These proceedings involve a long-standing jurisdictional dispute between two representative Indigenous groups in northwestern Ontario over who should be permitted to provide child and family services in the City and District of Thunder Bay. The Minister of Children, Community and Social Services [“Minister”] issued designations authorizing three children’s aid societies to provide the full range of child and family services in Thunder Bay. At the same time, the Minister issued a directive providing that: a) Dilico Anishinabek Family Care [“Dilico”] will provide services to all Indigenous children and families other than Indigenous children from First Nations affiliated with Tikinagan Child and Family Services; b) Tikinagan will provide services to children and families from Tikinagan-affiliated First Nations; and c) the Children’s Aid Society [“CAS”] of Thunder Bay will provide services to non-Indigenous children and families [“Directive and Designations”].
Dilico was incorporated in 1986 by the Robinson Superior Treaty First Nations and granted authority in 1994 by a group of 12 First Nations to provide child protection services to Indigenous children and families in Thunder Bay. Dilico has operated as a designated CAS since 1995 under what is now the Child, Youth and Family Services Act [“CYFSA”]. Initially, Dilico’s designation restricted it to exercising powers as a CAS only over those members of the Dilico-affiliated First Nations residing in the City and District of Thunder Bay, together with powers over all children residing on specified reserve lands. In 2012, Dilico entered into a memorandum of understanding [“MOU”] with the Thunder Bay CAS. Under the MOU, Dilico assumed child protection jurisdiction over not only Dilico-affiliated First Nation children, but all Indigenous children in Thunder Bay.
Tikinagan Child and Family Services [“Tikinagan”] was incorporated in 1984 through the efforts of the 49 Chiefs of Nishnawbe Aski Nation which represents many First Nations across northwestern Ontario. In 1986, Tikinagan was given approved agency status by the Ministry and, in 1987, received its designation as a CAS. Tikinagan’s geographical area includes most of northwestern Ontario including parts of the District of Kenora and the northwest portion of the District of Thunder Bay. Tikinagan has the authority to offer the full range of child and family services within its territorial jurisdiction.
Dilico and the Fort William First Nation brought applications for judicial review seeking to set aside the Directive and Designations of the Minister on various constitutional and administrative law grounds, which will be heard at a later date. The applicants’ also motioned for a stay of the Directive and Designations; below are the reasons for the dismissal.
The court must consider three cumulative factors in determining whether to grant a stay: 1) whether there is a serious issue to be tried; 2) whether the moving party would suffer irreparable harm in the absence of a stay; and 3) whether the balance of convenience as between the parties favours granting the stay, in the sense that the harm that will be suffered by the moving party if the stay is not granted outweighs the harm that will be suffered by the responding party if it is (RJR-MacDonald Inc v Canada (AG),  1 SCR 311 [“RJR-MacDonald”]).
Cases involving child welfare or child custody require a modification to this approach to the three-part RJR-MacDonald test. The overriding consideration in such cases is the best interests of the child. In this matter, the Minister, the Thunder Bay CAS and the two Indigenous CASs operate within a statutory framework which makes the best interests of the child paramount. Section 1(1) of the CYFSA provides that the “paramount purpose of this Act is to promote the best interests, protection and well-being of children.” The applicants have, asserted grounds for judicial review of the Directive and Designations which are not frivolous. There are serious issues which can only be resolved in a full hearing. The applicants have, therefore, satisfied the first aspect of the RJR MacDonald test.
The Court concluded that the applicants have not discharged their burden to show that they, or Indigenous children, will suffer irreparable harm if a stay of the Directive and Designations is not granted. This conclusion is sufficient to dispose of the motion. However, there are other factors which tip the balance against a stay in any event. The public interest also includes a public interest in the legitimacy of public institutions. The public interest therefore includes a high level of respect for the decisions of the legislative and executive branches of government. The courts have limited institutional competence to interfere with those decisions. The courts have a supervisory role to play, but should be wary of usurping legislative and executive roles, particularly where they lie at the policy end of the decision-making spectrum (Hupacasath First Nation v British Columbia (Minister of Forests), 2005 BCSC 345; RJR-MacDonald).
At the end of the day, the balance of convenience weighs in favour of refusing the stay and, pending the disposition of the applications for judicial review, advancing the goal of providing child welfare services to Tikinagan-affiliated children and their families in a culturally appropriate manner. The applicants’ onus of showing that the balance of convenience favours granting the stay has also not been discharged.