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Class action on birth alerts gets green light against Ontario, but faces hurdles
A class-action lawsuit that hopes to help pregnant mothers who were red-flagged and had their newborns taken away by child welfare agencies has been certified to proceed against the Ontario government — but it's only a partial win for the plaintiffs.
Part of the lawsuit — to hold 49 children's aid societies (CAS) across the province accountable for those "birth alerts" — failed to get the green light from an Ontario Superior Court judge.
It's taken three years for the proposed class action to reach this certification ruling — a step necessary before a group lawsuit can proceed to trial. Now, a lawyer representing the plaintiffs says appealing the court's decision could delay justice for parents a bit longer.
Birth alerts are notifications that child welfare agencies issued to hospitals about pregnant people they deemed "high-risk." In turn, health-care providers were required to alert welfare authorities when the subject came to seek medical care or deliver their baby.
The alerts led to newborns being taken from their parents for days, months or even years. Critics have called them unconstitutional and illegal.
The Ontario government issued a directive in 2020 to end the practice, following several other provinces and territories, saying the alerts disproportionately affected Indigenous and racialized mothers.
I'm not fighting this alone. - Neecha Dupuis, Ottawa mom
Co-plaintiff G.G., whose identity is protected under a publication ban, said she's seeking "due justice" for Indigenous women like her who've been traumatized by birth alerts.
She learned in 2016 that Native Child and Family Services Toronto issued a birth alert while she was pregnant with her third child, and said she felt pressured to undergo invasive testing and mental health assessment. Workers later amended the birth alert after finding no grounds to apprehend her newborn, her claim states.
"I want there to be justice and accountability," G.G. told CBC News. "Indigenous mothers and families have the severe impacts of birth alerts that continue to this day."
Neecha Dupuis, who was the subject of a birth alert at an Ottawa hospital, sat in the virtual courtroom in April as the certification hearing took place.
"It widened my view as to how far and how deep CAS has harmed all these people," said Dupuis, who's Anishinaabe. "It's so emotional, it really is, because … I'm not fighting this alone."
Appeal to follow 'strong' ruling: lawyer
This week, co-counsel for the plaintiffs Tina Yang said her team is planning to appeal the judge's decision to not certify the action against the children's aid societies.
"It's a strong ruling with regard to Ontario ... [but] obviously, disappointment with regard to the denial of certification against the children's aid societies," said Yang, with Goldblatt Partners LLP, in reaction to the decision.
Yang said the class action in Ontario is the first among similar claims in B.C., Saskatchewan and Manitoba to reach certification.
"It's such an important cause to be litigated," said Yang. "It's not just compensation. It's about recognition of what happened, vindication of those rights ... and that hopefully ... there's a commitment to making sure that something like this never happens again."
The Ontario Ministry of Children, Community and Social Services forwarded CBC's request to the attorney general, which said in an email it would be inappropriate to comment within the appeal period.
The lawyers representing the 49 children's aids societies also declined, citing the same reason.
The appeal period ends Friday. Should there be appeals from any parties, the matter will then go through the Ontario Court of Appeal before the class action could move forward, explained Yang.
CASs did not act 'in unison': motion
"Birth alerts were illegal and discriminatory," the statement of claim states, especially as they targeted unborn children.
The plaintiffs' lawyers had pointed out that child protection agencies "have no jurisdiction to act in protection of, or, by extension, to require warnings in respect of, the unborn," according to the certification motion, citing a 1997 Supreme Court decision.
The claim alleges the provincial government was negligent and breached sections of the Charter of Right and Freedoms, and argues "for years the Ministry failed to end what was within its knowledge a wrongful and harmful practice."
However the judge found the claims against the 49 children's aid societies — conspiracy, negligence, intrusion, misfeasance in public office and breach of the same charter rights — failed to pass the test for class actions in the province.
"The relationship between the 49 CAS Defendants is non-hierarchical. They are separate, distinct, and equivalent entities," the judge wrote.
For instance, the owner of a Toyota with bad transmission can't sue Honda, even if Honda's transmissions are just as bad, the motion explains.
"Since the CAS Defendants are independent actors, they cannot be liable in unison regardless of whether Birth Alerts were wrongful or rightful."
Yang wants to stress that the denial "was not a rejection of the validity" of most of the plaintiffs' claims, "but rather a reflection of the technical class-action rules."
"We still believe strongly in this case," she said.
Yang added her team is exploring options suggested by the judge, such as bringing a class-action against individual children's aid societies, though that would mean finding dozens of additional plaintiffs.
G.G. said she's proud the legal team is pursuing the appeal.
"This class-action lawsuit places responsibilities on each and every one of the children's aid societies of the unconstitutional and racist behaviour of opening files on Indigenous pregnant persons," she said.
"And that's wrong, and that's not what truth and reconciliation looks like."
Ottawa mom hopeful
Since sharing her story with CBC in 2022, Dupuis obtained hospital records through a freedom of information request that show child protection workers sent alerts to The Ottawa Hospital where she gave birth to her son in July 2011.
"This [social worker] received three voicemail messages over the weekend concerning CAS alerts on this patient," read the hospital worker's notes from that July, which were shared with CBC.
That's why Dupuis says she supports the appeal against the children's aid societies, no matter how long it takes.
"They need to be held accountable for what they did to my family," she said. "If we made it halfway, that's better than no way."
