Friday, December 12, 2025

On December 5, 2025, the Federal Court released its groundbreaking decision in St. Theresa Point First Nation v His Majesty the King.[1] In it, Justice Favel found that the Government of Canada owes a duty to take reasonable measures to ensure access to adequate housing on reserve, and that Canada must refrain from impeding that access. The decision confirms what many First Nations leaders have been saying for decades – that Canada has created conditions which have made it nearly impossible to build adequate housing independently. Canada often placed reserves in remote places where economic development is difficult, and then used a “constellation of laws, policies and funding agreements [that] have created so much control that there are next to no options for housing development” without Canada’s involvement.[2]

More specifically, the Court concluded that Canada owes fiduciary duties and a common law duty of care to the class, while also finding that sections 2, 7, and 15 of the Canadian Charter of Rights and Freedoms (the “Charter”) are engaged. Justice Favel went further and recognized that this case presents  “special circumstances” which may give rise to a positive obligation for the Crown to protect the section 7 rights of class members. The reasons were released concurrently with Shamattawa First Nation v His Majesty the King, which found the same rights and obligations are engaged in the context of long-term drinking water advisories on reserve.

This is the first stage in a two-stage class proceeding certified by the Court in 2024 (the “Class Action”). While the Court has found that these rights and obligations are engaged, it has not yet decided whether Canada’s actions have breached any legal duties or violated any Charter rights. That issue, along with the issue of remedy, will be decided at the next stage of this litigation.

Olthuis Kleer Townshend LLP, working with McCarthy Tétrault LLP, has been proud to represent the Plaintiffs in this case – St. Theresa Point First Nation, Chief Emeritus Elvin Flett, Sandy Lake First Nation and Chief Delores Kakegamic (the “Representative Plaintiffs”). The team working on this matter has included Kevin Hille, Bryce Edwards, James Shields, Lo Stevenson, Nancy Carlson Jones and Aashish Oberoi.

What is the case about?

The Representative Plaintiffs launched the Class Action against Canada for failing to address the housing crisis in reserve communities. Justice Favel captured the essence of the case in a nutshell, stating the claim “is about how the colonial impacts of legislation, reserve creation, funding and policy have severely impacted the ability of once self-sufficient communities to provide their own access to safe housing, which has consequently caused them to become reliant on Canada for access to safe housing, to their detriment”.[3]

The Representative Plaintiffs bring this claim on behalf of two separate sub-classes defined in the certification order (the “Class”):

1. Impacted First Nations (“First Nations Class Members”), that have to opt-in to the Class; and
2. Members of First Nations who live on Impacted First Nation reserves (“Individual Class Members”), and who are automatically a part of the Class.

Impacted First Nations, over 100 of which have opted-in to the Class, are remote First Nations communities with an exceptionally high number of homes in need of major repairs, and/or high levels of overcrowding. [4]  

The Representative Plaintiffs filed an evidentiary record of over 12,000 pages illustrating a shortfall of hundreds of houses in each community which causes distress and hardship for many Class members on a daily basis. Forced to choose between living in overcrowded or condemned units – blighted with mold and infestation, exposed to the bitter cold of the north and the risk of electrical or heating fires – or moving away from their communities and losing their cultural, spiritual and communal connection to their ancestral land. This overwhelming evidence depicts a housing crisis that, in reality, is and has been a well-established fact for decades.

The Class Action is divided into two stages.

1. Stage 1: What Legal Duties Exist?

   This stage was focused on determining whether Canada owes duties, including fiduciary duties,  to provide adequate housing on reserve and whether the Plaintiff First Nations have standing to make pleadings under the Charter and the Constitution Act.

2. Stage 2: Did Canada Breach Its Legal Duty?

“Stage 2” will consider whether any legal duties established during “Stage 1” as being applicable in this case have been breached by Canada. The Court will look at the following questions with respect to each community that has opted in:

1. Did Canada breach its legal duties or obligations to members of each Impacted First Nation, or limit rights or freedoms enjoyed by those members?
2. Is any limitation on rights or freedoms protected by the Charter saved by Section One (reasonable limits)? If not, are Charter damages available?
3. Can the causaction of damages suffered by Impacted Plaintiff First Nations be determined all together?
4. Do limitation periods apply to those claims for damages?
5. Can the Court award a lump sum to everyone?
6. Does Canada’s conduct justify punitive damages, and if so, how much?
7. Should the Court order Canada to take measures to provide, or refrain from impeding, access to adequate housing? If so, what measures?

Overview of the Court’s Decision

1. Canada Has Sui Generis and Ad Hoc Fiduciary Duties to Provide Adequate Housing

The Court found that Canada owes both a sui generis and ad hoc fiduciary duty to the Class for the reasons below.

Sui Generis Finding

A sui generis fiduciary duty arises when there is:

(i) a specific or cognizable Aboriginal interest; and

(ii) a Crown undertaking of discretionary control over that interest.[5]

Justice Favel found that both parts of this test had been met. He explained that access to adequate housing is inextricably linked to a communal interest in land, in part because without shelter rights holders must either risk the elements, or abandon the land.[6] He also found that Canada has taken control over this interest through a “constellation of laws, policies and funding agreements [that] have created so much control that there are next to no options for housing development”.[7] These laws and policies include the Indian Act, which restricts the ability for land to be used as collateral for economic development projects, and funding programs which include complex funding conditions that must be met for Plaintiff First Nations to receive funding.[8]  

            Ad Hoc Finding

An ad hoc fiduciary duty will be found where:

• The fiduciary makes an undertaking, whether express or implied, to act in the best interests of the beneficiary;
• The beneficiary, which can be a person or a class of persons, is vulnerable to a fiduciary’s control; and
• a legal or substantial practical interest of the beneficiary can be adversely affected by the fiduciary’s exercise of discretion or control.[9]

Justice Favel found the rest for an ad hoc fiduciary duty had been met as well.  The duty in this case flows largely from the Court’s factual finding that Canada has “both expressly and impliedly undertaken to act in the best interests of First Nations”.[10] The Class was vulnerable to Canada’s exercise of discretion over their substantial practical interest in housing, and rendered more vulnerable as a result of Canada’s policy decisions.[11] Finally, this interest in housing on reserve can be significantly impacted by Canada’s exercise of discretion and control as follows:

“If Plaintiff First Nations are unable to navigate the complex web of housing related funding processes or to have an economic base upon which to create their own source revenues to help in trying to alleviate the massive housing shortage, they will not have access to a safe supply of housing on reserve nor will they be able to manage the existing stock of homes that require major injections of capital to render them livable and safe.”[12]

While the Court has established that fiduciary duties to provide adequate housing on reserve generally exist with regard to First Nations, it has not yet confirmed whether Canada has breached these duties. This will instead be considered in the context of the relevant First Nation during “Stage 2” of the litigation.

2. Canada Owes A Duty of Care to the Class

The Court applied the now well-established Anns/Cooper test to arrive at its conclusion that a novel duty of care arises in this case. Under the test, the Representative Plaintiffs must establish a relationship of proximity such that Canada’s failure to take care could result in reasonably foreseeable harm. If successful, a duty of care will exist unless there is some good policy reason not to extend it. In this case, the existence of fiduciary duties towards the Class, the historical relationship between the Class and Canada, and Canada’s prolonged involvement in on reserve housing established that there was a sufficient “relationship of proximity”. The content of the duty is also informed by the honour of the Crown.[13]

3. Sections 2, 7 and 15 of the Charter of Rights and Freedoms are engaged

In addition to fiduciary and common law duties, the Representative Plaintiffs argued that Canada could be liable to the Class for breach of sections 2, 7, and 15 of the Charter. While a determination about whether each section was breached was left until “Stage 2”, the Court agreed these sections of the Charter are engaged.

Charter rights are individual rights, they are not collective rights that can be asserted by a First Nation as a collective. Nonetheless, the Court found that a First Nation Class Member can assert Charter rights on behalf of its members.[14] This is a significant finding in the context of this case, because it means that First Nations Class Members can argue on behalf of members that may not qualify as Individual Class members. This includes those who have been forced to leave their reserves for lack of safe housing. For those members who have been displaced and whose spiritual and communal connection to family, land, culture, spirituality, and nation has been severed, the Court has found their section 2(a) right to freedom of religion and section 2(c) right to freedom of assembly are engaged.[15]

The Court provided additional reasons for why each section was engaged:

1. Section 15 (Equality Rights) Is Engaged: The record provided by the Representative Plaintiffs “overwhelmingly demonstrates that section 15 of the Charter is engaged” as there are numerous federal laws, policies and administrative actions that apply to First Nations housing on reserve.[16]
2. Section 7 (Life, Liberty, and Security of Person) Is Engaged: The Federal Court acknowledged that the current caselaw only addresses situations where a person has been deprived of Section 7 rights to life, liberty and the security of a person.

   However, the Federal Court noted that the Supreme Court of Canada has left open the ability for Section 7 to be used to put positive obligations on Canada in “special circumstances”. The Federal Court found that the circumstances of this case present the kind of “special circumstances” that could ground a positive obligation on the part of Canada to protect the section 7 rights of Class members.[17]

3. Sections 2(a) and (c) (Freedom of Religion and Assembly) are Engaged: The Federal Court agreed with the Representative Plaintiffs that Section 32 of the Charter, which sets out its general applicability, means that the Federal Court can evaluate whether “Canada’s actions or constellation of laws and policies interfere with the Plaintiffs’ religious or spiritual beliefs or their freedom to manifest those beliefs”,[18] as well as their right to freely assemble on reserve.

4. The Representative Plaintiffs Cannot Seek Remedies under Section 36 of the Constitution Act

The Representative Plaintiffs also argued that Section 36(1)(c) of the Constitution Act requires Canada to provide First Nations Class Members and their members with adequate housing. This section states that Canada and the provinces are committed to providing “essential public services of reasonable quality to all Canadians.”[19]

However, the Court did not find that Section 36 applies. It stated that this section is meant to address equalization between the federal and provincial levels of government only, and that there was no previous caselaw which indicated that it was meant to apply to First Nations.[20]

Key Takeaways from the Case

While Canada can still appeal the Federal Court’s decision, this ruling has the potential to be a watershed moment for First Nations rights across the country. We have provided three key takeaways below:

1. A Duty to Provide Adequate Housing on Reserve Has Been Established: The Federal Court has recognized a legally binding duty for Canada to ensure that individuals living on reserve have access to adequate housing. This finding recognizes that the efficacy of Canada’s reserve housing policy is a matter of law, not simply politics.

   This is an important development – First Nations have been arguing for several decades that the federal government has created conditions which make it nearly impossible to build adequate housing on reserve.

   This decision opens the door for Canada to be forced to do better. While it currently only applies to the Class, who are some of the worst affected First Nations in the country, it opens the door for communities from across the country to demand that Canada do better and, if they don’t, litigate the matter before the Courts.

3. First Nations Can assert Charter claims: The decision in this case clarifies that First Nations can assert Charter claims in a representative capacity on behalf of its members. This hopefully puts to rest a debate that has persisted since the Federal Court of Appeal’s decision in Ermineskin Indian Band & Nation v Canada.[21]
4. The Application of Section 7 of the Charter May Be Expanded: The Federal Court’s decision also opens the possibility that Canada can be found to have positive obligations under Section 7 of the Charter. As explained above, Section 7 is currently available in situations where Canada has actively deprived a person of their Section 7 rights to “Life, Liberty, and Security of Person”.

   However, the Court has suggested that this case may have the “special circumstances” needed for Canada to be positively obligated to protect these rights by taking reasonable measures to ensure adequate housing on reserve. If such an obligation is found at stage two, it will mark the first such finding since the Charter was established in 1982.

[1] St. Theresa Point First Nation v. Canada, 2025 FC 1926 [St. Theresa Point]. 

[2] St. Theresa Point at para 251.

[3] St. Theresa Point at para 250.

[4] St. Theresa Point at para 3. The particular terms of the class definition can be found in the certification order at para 2.

[5] St. Theresa Point at para 131.

[6] St. Theresa Point at paras 159-161.

[7] St. Theresa Point at paras 166-175, 251.

[8] St. Theresa Point at para 153.

[9] St. Theresa Point at para 177.

[10] St. Theresa Point at para 196.

[11] St. Theresa Point at paras 194-198.

[12] St. Theresa Point at para 198.

[13] St. Theresa Point at paras 245-254.

[14] St. Theresa Point at paras 262-265.

[15] St. Theresa Point at paras 284-285.

[16] St. Theresa Point at para 275.

[17] St. Theresa Point at para 281.     

[18] St. Theresa Point at para 285.     

[19] St. Theresa Point at para 286.

[20] St. Theresa Point at para 303.

[21] Ermineskin Indian Band and Nation v. Canada (F.C.A.), 2006 FCA 415.