The Carney government is fighting a First Nations grandmother in court to try and alter years of legal orders requiring Canada to provide First Nations kids with equal access to vital health care and social services, the woman’s lawyers say.
The Federal Court of Appeal is hearing this precedent-setting case on Monday in Ottawa — the first time the appeal court will consider Jordan’s Principle, a legal rule that requires governments provide First Nations kids with the care they need without delays linked to jurisdictional disputes.
The principle was defined in a string of Canadian Human Rights Tribunal (CHRT) decisions beginning in 2016, and according to lawyers for Oneida grandmother Joanne Powless, Canada’s case is basically just a backdoor attack on those long-standing orders.
“Canada seeks to re-litigate issues the CHRT has already resolved, and effectively mounts a collateral attack on a decade’s worth of CHRT orders,” say lawyers David Taylor and Siobhan Morris, of Conway Baxter Wilson, in a Sept. 25 written argument.
Taylor said in an interview Friday that those court-like tribunal orders are final and binding, and Canada has never successfully challenged any of them.
“They’re trying to get indirectly what they didn’t get directly from the tribunal,” he said.
The outcome of this one-day hearing could have far-reaching ramifications for more than 100,000 unprocessed applications queued up in a backlog at Indigenous Services Canada (ISC).
In 2022, Powless applied for about $200,000 via Jordan’s Principle to fix her mould-infested home on Oneida Nation of the Thames near London, Ont. She also sought money for temporary relocation, food and personal hygiene costs during the repairs.
Powless is the primary caregiver for her two grandchildren, who live with her, and their doctor concluded the remediation work was “a life-saving necessity” for the sisters, who have asthma caused and exacerbated by their living conditions, court papers say.
But Canada denied the requests on the grounds that major home renovations are outside Jordan’s Principle’s scope. Powless applied successfully for judicial review in Federal Court, where a judge found ISC took an unreasonably narrow approach by framing the application purely as a housing remediation request.
Instead, the court found Jordan’s Principle requires government officials to assess each request based on the unique health needs and best interest of each child with an eye to achieving substantive equality.
Canada now argues the Federal Court made overriding legal errors. Justice Department lawyers say there can be no discrimination because there is no gap in services.
“There is no existing program anywhere in Canada that would fund the mould remediation and renovation work sought,” Canada says in a Sept. 12 written argument.
“Jordan’s Principle is neither intended to, nor capable of, addressing the problem of inadequate housing on-reserve or all the needs of First Nations children when there is no other service provided,” the government adds in a supplementary argument filed Oct. 2.
Powless’s lawyers however say Canada is just recycling long-rejected arguments to narrow the principle’s scope.
“ISC’s decision is consistent with a troubling pattern, documented in several of the CHRT’s decisions, of Canada sidestepping or unduly narrowing the scope of Jordan’s Principle,” reads their written argument.
A spokesperson for Indigenous Services Minister Mandy Gull-Masty responded to a request for comment on Friday by saying the department would be better placed to comment than the minister.
The department said in a statement that the Federal Court’s decision raises “important legal issues” that need to be resolved.
“The appeal is about clarifying the scope of Jordan’s Principle, consistent with the CHRT rulings, to ensure that Jordan’s Principle can sustainably provide First Nations children with access to the services they urgently need,” wrote spokesperson Carolane Gratton.
