Canada’s appeal dismissed in battle over fixing mould in Oneida grandmother’s home

The Canadian government has lost in court — again — to a First Nations grandmother fighting to fix extensive mould at her home on Oneida Nation of the Thames, near London, Ont.

The legal battle concerns Joanne Powless’s request for $200,000 through Jordan’s Principle for remediation work, which Indigenous Services Canada (ISC) denied, despite a doctor calling the service a “life-saving necessity” for Powless’s two grandchildren for whom she is the primary caregiver.

In a decision released Monday, the Federal Court of Appeal says ISC’s denial was unreasonable because it was neither justified, transparent nor intelligible. Worst of all, ISC failed to grapple with the potential consequences for the two young sisters with severe asthma made worse by mould, writes Justice K. A. Siobhan Monaghan.

“The reasons for the ISC appeal decision do not demonstrate any consideration of these consequences — no discussion of health consequences or the risk of child welfare involvement given the unsafe living conditions,” Monaghan’s decision says.

Powless’s lawyer David Taylor, of Conway Baxter Wilson in Ottawa, told CBC Indigenous the court has rendered a solid ruling that sends a strong message to the federal government.

“When the state holds incredible power over the lives of citizens, it has to explain how it’s using that power and how the use of that power is justified,” he said by phone Tuesday afternoon.

“This is really a message to Canada that its response to Jordan’s Principle needs to step up and it needs to be one that is robust.”

Jordan’s Principle is a human rights rule that requires governments to provide First Nations kids with necessary social, health and education services without discrimination or delay due to jurisdictional bickering over which level of government should pay for them. 

The rule was established by the Canadian Human Rights Tribunal in a long-standing, often bitterly fought complaint that dates back to 2007. Successive federal governments have consistently fought the complaint or court rulings connected to it but have yet to prevail in court.

The Assembly of Manitoba Chiefs and First Nations Child and Family Caring Society, a co-complainant in the original human rights complaint, intervened in the Powless appeal as well.

The appeal court unanimously dismissed Canada’s appeal of a Federal Court decision rendered in July. In that prior ruling, the court also sided with Powless and harshly criticized ISC, calling the department’s denial an “impermissible narrowing of Jordan’s Principle.”

“I largely agree with the nature of these criticisms,” wrote Monaghan, but she found ISC’s denial fell short for different reasons — namely, that ISC failed to justify it in clear, rational terms. 

Powless is now entitled to a new, properly rendered decision from a senior official at ISC. But her fight may not be done: ISC could theoretically deny her again, with different and more clearly stated reasons.

Taylor said “that’s certainly a possibility” but said the appeal court has given strong guidance that terse denial letters that don’t respond to Jordan’s Principle applicants’ positions will no longer cut it.

In a statement, Indigenous Services Canada didn’t say if Ottawa will try and appeal to the Supreme Court.

“At this time, we are in the process of reviewing the ruling from the Federal Court of Appeal. It is too early to comment on next steps,” wrote spokesperson Eric Head.

“Indigenous Services Canada is working in partnership with First Nation leadership on how the delivery of Jordan’s Principle can be improved.”

The decision represents the first time the Federal Court of Appeal has considered the legal issues surrounding Jordan’s Principle, making it potentially precedent-setting.

“It’s certainly precedent-setting in terms of the expectations that the judiciary has,” said Taylor.

In other words, the ruling establishes that the courts will require ISC to provide robust justification when denying applications, particularly when the stakes are as high as they were in this case.

“There’s a recognition that the stakes matter in Jordan’s Principle cases,” he said.