A proposed $66-million settlement has been reached in a class-action lawsuit over British Columbia’s use of “birth alerts,” a controversial practice that allowed hospitals and child-welfare agencies to flag pregnant patients they deemed to be high-risk without their knowledge or consent.
The notification system disproportionately affected Indigenous women and often resulted in newborns being apprehended, sometimes within hours of birth. The province ended the practice in September, 2019, acknowledging the harm it caused.
The class action was filed in 2021. The proposed settlement with the B.C. government comes after years of negotiations mediated by lawyers Jody Wilson-Raybould and Roshan Danesh. Ms. Wilson-Raybould previously served as Canada’s first Indigenous minister of justice and attorney-general.
On Friday, B.C. Supreme Court Justice Diane MacDonald certified the case for settlement and approved a notice plan to inform potential members of the proceeding, a step that opens the claims process. A settlement approval hearing is expected near the end of the year.
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Michelle Segal, a lawyer with CFM Lawyers LLP representing those in the action, said the pending settlement addresses a practice that operated for decades, affecting people at one of the most vulnerable moments of their lives.
Under previous policy from B.C.’s Ministry of Children and Family Development, government or child-welfare agency staff could notify a hospital about a pregnant patient they deemed to be high-risk without her consent. In turn, health care staff would alert authorities when the patient arrived at the hospital to give birth.
Patients – particularly Indigenous patients – reported discrimination that led to altered courses of care, Ms. Segal said, including unnecessary drug testing, staff discouraging or prohibiting breastfeeding, and the denial of rooming-in with their newborns. Some were subjected to surveillance, locked hospital wards and interrogation by strangers to assess their capacity to care for their child.
Birth alerts could be triggered for a range of reasons, including that a mother had sought support from a social worker, or that the mother herself had previously been in care.
Lawyers for the proposed class action argued the practice had no legal basis and violated the constitutional and privacy rights of expectant mothers by sharing their personal information with third parties without authority or consent.
“If approved, the settlement will provide not only compensation, but also a process through which class members can access information about what happened to them and receive support throughout that process,” Ms. Segal said.
B.C.’s Ministry of the Attorney-General said the proposed settlement is “the most responsible decision to close this chapter and avoid lengthy and costly litigation.” It added that B.C. was the first province in Canada to end the practice. Other provinces that issued the alerts have since followed suit.
“We know that birth alerts were primarily issued for marginalized women and, disproportionately, Indigenous women, and we acknowledge the trauma women experienced,” the ministry said in a statement provided Monday by public-affairs officer Yusing Tsou.
“This change in policy reflects our commitment to strengthening families and keeping them whole.”
If the settlement is approved, eligible class members would receive a minimum of $2,000 in compensation, with Indigenous class members receiving an additional amount. It would also include a collective fund to support families and communities affected by birth alerts.
The proposed settlement does not include any admissions by any party. It addresses the use of birth alerts only and not the apprehension of children, the conduct of the ministry or any actions taken after the alerts were issued.
Ministry of Children and Family Development records identify close to 3,000 presumptive class members in the province, with others yet to self-identify, Ms. Segal said.
While data on birth alerts are incomplete, available figures show that between Jan. 1, 2018, and Sept. 16, 2019, B.C. issued 423 birth alerts, according to court documents. Of those, mothers in 228 cases, or 54 per cent, identified as Indigenous.
The final report of the National Inquiry into Missing and Murdered Indigenous Women and Girls, released in June, 2019, called for an immediate end to the practice, saying birth alerts are “racist and discriminatory, and are a gross violation of the rights of the child, the mother and the community.”
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Adrianna Zeleniski, the representative plaintiff in the proposed class action, was the unwitting subject of a birth alert when she delivered her fifth child at Vernon Jubilee Hospital in April, 2013. While she was not told of the alert, she immediately sensed something was wrong. A security guard stood outside her room during her labour and a social worker attended her room after the birth. There was something off about how nursing staff treated her, she said in an interview.
It wasn’t until years later that Ms. Zeleniski read about birth alerts in the Indigenous-led online news outlet IndigiNews and learned of the practice. She obtained legal counsel and requested her hospital records, which confirmed the existence of the alert.
“There was inaccurate information shared by the ministry to the hospital – and so it was not just a breach of privacy and sharing of information, but inaccurate information that caused hospital staff to treat me differently,” she said.
Ms. Zeleniski said that learning about the practice created a sense of community with others who had been in her position.
“There were other people who identified something that wasn’t right, that there was a breach of information, that the ministry was sharing that to the hospital,” she said. “I wasn’t the only one.”
Depending on the claims rate and feedback from class members, the proposed settlement could potentially include a requirement that the province make representatives of the Ministry of Children and Family Development available for roundtable discussions with class members about the practice and its impact. Ms. Zeleniski said such meetings could help class members be heard and feel seen.
Similar actions relating to the use of birth alerts in other provinces are at various stages. In Saskatchewan, the government is appealing the admissibility of the report from the National Inquiry into Missing and Murdered Indigenous Women and Girls, along with the 2015 final report of the Truth and Reconciliation Commission of Canada, as evidence in the certification process.
In Ontario, a judge certified a class action against the province, but not against 49 children’s aid societies on the basis of what’s called the Ragoonanan principle, which requires that each defendant in a class proceeding have a corresponding plaintiff. Lawyers are challenging the rule.
Manitoba’s government has taken the position that a proposed class action in that province should be tossed because the plaintiff exceeded a two-year window to initiate legal action. In Quebec, a class action was filed in December and is now at the authorization stage.
Tina Yang, a partner with Goldblatt Partners LLP and counsel to plaintiffs in Saskatchewan, Ontario and Manitoba, noted the different approaches of various governments and said some are contrary to both the spirit of child-welfare system reform and the process of reconciliation. She called the B.C.’s government’s response significant.
“It’s a real shame that we haven’t been able to find engagement like that outside of B.C.,” Ms. Yang said.