Docket: T-1625-23
Citation: 2025 FC 50
Ottawa, Ontario, January 9, 2025
PRESENT: The Honourable Mr. Justice Zinn
BETWEEN: |
WARREN SCHOFER |
Applicant |
and |
ATTORNEY GENERAL OF CANADA |
Respondent |
JUDGMENT AND REASONS
[1] This is only the third time this Court has been asked to review funding decisions made by Indigenous Services Canada [ISC] under Jordan’s Principle. The previous two decisions, Malone v Canada (Attorney General), 2021 FC 127 [Malone] and Pictou Landing Band Council v Canada (Attorney General), 2013 FC 342 [Pictou], addressed eligibility for essential services. This application is the first of its kind. It concerns Jordan’s Principle in the context of a request for ancillary funding to cover legal fees and travel expenses to compel the implementation of essential services that are already federally approved and funded, but which the relevant provincial authority has refused to provide.
[2] Mr. Warren Schofer brings this application on behalf of his two children. He seeks judicial review of ISC’s denial of his request for Jordan’s Principle funding totaling $206,000. These funds were sought to cover legal and travel expenses to compel the local provincial school board [Board] to reinstate previously approved Educational Assistant [EA] support for his children.
[3] The Applicant submits that ISC’s decisions are unreasonable, violate procedural fairness, and fail to adhere to the reconciliation-first approach required for implementing Jordan’s Principle. He contends these decisions effectively render approved EA support inaccessible, which is contrary to the objective for substantive equality and ISC’s obligations to fully meet the needs of the Indigenous children under Jordan’s Principle.
[4] For the following reasons, I am granting this application for judicial review.
[5] The Applicant and his two children are status Indians under the Indian Act, RSC 1985, c I-5, and members of Fort William First Nation. They reside in Alberta, where the children attend school. Both children have documented special needs. Their conditions require specialized educational support, as assessed and confirmed by multiple medical professionals including psychologists, physicians, and educational specialists between 2021 and 2023.
[6] In May 2022, ISC approved Jordan’s Principle funding for EA support for both children for the 2022-2023 school year. The Board implemented the support program with the federal funding for that school year. In June 2023, ISC approved similar funding for the 2023-2024 school year.
[7] In March 2023, despite continued federal funding availability and without providing contrary medical evidence showing sufficient improvement in the children’s learning capabilities, the Board announced it would terminate its implementation of the EA support. This conclusion was reached with no supporting medical evidence and despite clear indications of the children’s academic difficulties. Notably, one child’s very recent academic assessments provided by the school revealed performance below acceptable standards in five out of seven educational categories.
[8] The Applicant made unsuccessful attempts to advocate for his children’s educational needs through non-legal avenues, including participating in a December 8, 2022, meeting with the Board’s Superintendent, Deputy Superintendent, and representatives from the Nokwiin Tribal Council. He also sought intervention from the Fort William First Nation Council and the First Nations Child and Family Caring Society, but these efforts were equally unsuccessful. As tensions escalated, the Board banned the Applicant from entering school grounds and took the first step toward legal resolution by issuing a cease-and-desist letter threatening the Applicant with a defamation lawsuit.
[9] Following these developments, on June 1, 2023, the Applicant sought Jordan’s Principle funding for $200,000 in legal services and $6,000 in associated travel expenses to secure implementation of the previously approved EA support. The Applicant submitted support documents including medical assessments, educational evaluations, and correspondence demonstrating attempts at non-legal resolution.
[10] On June 19, 2023, ISC issued its initial decision denying the Applicant’s Jordan’s Principle funding request. The decision explained that “the supporting documentation provided with the request does not directly link the requested financial supports, to the unmet health, social or educational needs of the children.”
It further clarified that Jordan’s Principle authorities are limited to funding supports that directly address “specific health, social or educational needs...”
[11] On appeal from the initial decision, an External Expert Review Committee [Appeals Committee] composed of three subject-matter experts reviewed the matter. Their assessment identified several substantive deficiencies with the application. First, there was an absence of professional letters of support: no documentation from medical or educational professionals established a connection between the legal services and the children’s needs, nor were there relevant recommendations from a community-authorized elder or knowledge holder. Second, cost documentation was insufficient, as no itemized quotes or estimates substantiated the requested amount of funding. Third, certain members of the Appeals Committee assessed the children’s circumstances and found their needs to be “mild.”
The first child had a specific learning disorder in mathematics and had previously been supported with 0.5 EA assistance. The second child had an intellectual disorder and had received 1.0 EA assistance. One expert on the committee specifically observed that the Board was eliminating EA support as one child would be attending middle school, where EAs typically support students with severe to profound needs rather than mild ones.
[12] The Appeals Committee ultimately determined that assessing the merits of pursuing legal resolution of the issue with the Board fell outside its jurisdiction. They found that Jordan’s Principle aims to ensure substantive equality in service delivery, not “to get involved with legal issues.”
Their primary concerns were the lack of a clear link between the legal intervention and the unmet needs, and the absence of evidence justifying the requested fees.
[13] On June 30, 2023, the Chief Science Officer of ISC adopted the Appeals Committee’s recommendations and upheld the initial denial. The appeal decision was communicated on July 4, 2023. It maintained that the request did not meet minimum requirements as the service was “not directly linked to the identified unmet educational, social, or medical needs of the children.”
[14] This application raises both issues relating to the reasonableness of the decision and procedural fairness issues on the scope of Jordan’s Principle and the adequacy of ISC’s decision-making processes. First, the Applicant contends the decisions are unreasonable as they adopt an overly narrow interpretation of Jordan’s Principle and fail to provide sufficient reasoning. Second, the Applicant contends that the insufficiency of the reasons also constitutes a breach of procedural fairness, particularly in light of the significant impact the decision has on his children’s access to already approved educational support.
[15] The parties made no submission on the appropriate standard when issues of procedural fairness are raised. The applicable standard of review is one that resembles the correctness standard of view. This approach centers on addressing “the ultimate question [of] whether the applicant knew the case to meet and had a full and fair chance to respond”
: Canadian Pacific Railway Company v Canada (Attorney General), 2018 FCA 69 [Canadian Pacific] at para 56; Heiltsuk Horizon Maritime Services Ltd v Atlantic Towing Limited, 2021 FCA 26 at para 107. The reviewing court must ask, “with a sharp focus on the nature of the substantive rights involved and the consequences for an individual, whether a fair and just process was followed”
: Canadian Pacific at para 54.
[16] For substantive review, I agree with the parties that the ISC’s decision is reviewable on the standard of reasonableness: Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov]. Indeed, case law has established that reasonableness governs judicial review of decisions on funding under Jordan’s Principle: Canada (Attorney General) v First Nations Child and Family Caring Society of Canada, 2021 FC 969 [First Nations Child Society] at para 74; Malone at paras 32-35; Pictou at para 76.
[17] Jordan’s Principle is a child-first principle that ensures First Nations children can access essential public services available to all other children without delays, denials, or disruptions caused by jurisdictional disputes between federal and provincial governments or departments: First Nations Child Society at para 12. Recognizing the historical and systemic disadvantages faced by First Nations children, this Court has emphasized that the Principle must be interpreted broadly and liberally rather than narrowly, so that it can effectively address the unique hardships confronting First Nations children: Pictou at paras 85-86 and 95.
[18] Substantive equality is central to this framework. First Nations children may need services beyond those typically provided to non-First Nations children due to systemic inequities including socio-economic challenges, intergenerational trauma, and cultural access barriers: First Nations Child Society at para 18. The ISC’s Back to Basics policy document [B2B] echoes this understanding. It directs decision-makers to “presume that First Nations children need services going beyond the kinds or levels of services available to non-First Nations children due to the unique disadvantage that they face.”
[19] Essential public services are commonly categorized into educational, social, or medical needs. Specific identified supports within these categories include nursing care, home and community support, necessary health benefits not covered by insurance, special education, assisted living, income assistance, and child and family services: First Nations Child and Family Caring Society of Canada et al. v. Attorney General of Canada (for the Minister of Indian Affairs and Northern Development Canada), 2016 CHRT 2 at para 355; First Nations Child Society at para 14.
[20] In implementing the Principle, the government or department first contacted is to fund the necessary service immediately and resolve reimbursement issues afterward: Malone at para 8. This imperative must be carried out with vigilance to the child’s best interests and distinct needs, such that any administrative uncertainty and limitations do not undermine substantive equality: Pictou at paras 86-91.
[21] ISC’s Standard Operating Procedures [SOPs] give operational structure to these obligations. The SOPs stress the timely, direct provision of services with tangible benefits that meet the child’s documented health, social, or educational needs, supported by professional recommendations. In urgent scenarios, minimal documentation may suffice to prevent delays, reflecting the need for a flexible, child-first approach in line with Jordan’s Principle’s broad remedial intent.
[22] Before addressing the substance of this case, I need to clarify which of the two decisions is properly before this Court for judicial review. In his submissions, the Applicant attacks both the initial June 19, 2023 decision and the subsequent June 30, 2023 final appeal decision. While the initial decision is undoubtedly relevant, established administrative law principles dictate that only the final appeal decision at bar is properly before this Court. This principle ensures that reviewing courts consider the full findings and ultimate reasons of the decision-maker: Canada (Border Services Agency) v CB Powell Limited, 2010 FCA 61 [CB Powell] at para 32.
[23] Accordingly, my analysis will address the final appeal decision.
[24] The Applicant’s submissions on reasonableness may be distilled into three arguments.
[25] The first argument concerns the adequacy of ISC’s reasoning. The Applicant contends that both decisions are deficient in form and substance, characterizing them as form letters with minimal analysis. Specifically, the Applicant submits that the appeal decision merely reiterates the initial decision’s “half-sentence rationale”
and adopts the Appeals Committee’s reasoning, which itself is presented in “cut-and-paste template forms”
with minor particulars devoid of detail and substantive analysis. Such cursory treatment, the Applicant submits, is particularly inadequate given the impact on Indigenous children’s access to essential services.
[26] The second argument concerns the ISC’s analysis of the evidence. The Applicant asserts that the conclusion regarding insufficient documentation demonstrating a “direct link”
to needs is unreasonable. The Applicant claims that there is extensive medical evidence supporting the children’s educational requirements, that ISC has repeatedly approved EA funding in recognition of these needs, and that legal services have become demonstrably necessary to enforce the implementation of these approved supports, particularly given the Board’s litigious attitude.
[27] The third argument concerns the law. The Applicant contends that the ISC adopted an impermissibly narrow interpretation of Jordan’s Principle by declaring itself unable to assess legal matters, which categorically exclude funding legal services without any statutory or policy foundation. The Applicant emphasizes that neither the SOPs and B2B, nor any other governing framework explicitly bars funding for legal services. The Applicant further points to an ISC-commissioned research report that explicitly acknowledges the necessity of legal services and recommends their provision to assist Indigenous families in overcoming jurisdictional barriers to service delivery: Naiomi Metallic, Hadley Friedland & Shelby Thomas, Doing Better for Indigenous Children and Families: Jordan’s Principle Accountability Mechanisms Report (Caring Society & Department of Indigenous Services Canada, 2022) at pages 71-74.
[28] I find all three arguments unpersuasive.
[29] The ISC’s reasons are sufficient, both legally and based on the record. Legally, decision-makers are permitted to adopt the reasoning of subordinate bodies: Hasham v. Canada (Citizenship and Immigration), 2021 FC 881 at paras 29 and 31; Canada (Citizenship and Immigration) v. Mason, 2021 FCA 156 at para 31. They also may adopt the analysis of recommending bodies, such as the Appeals Committee, with such adoption being treated as incorporating the recommending bodies’ reasoning into their own: Canada (Attorney General) v Sketchley, 2005 FCA 404 at para 37-39. On the record, the Appeals Committee’s reasoning, in my view, is far from being merely skeletal. While the standardized template form guided experts by providing Jordan’s Principle funding criteria, these forms did not limit their analysis. In the “Summary Rationale”
section, experts could and did offer substantive assessments identifying specific deficiencies of the application, including inadequate documentation and insufficient justification for the requested amounts.
[30] The ISC is entitled to conclude that the Applicant’s evidence did not adequately establish the required direct link between the children’s needs and the requested legal services. First, the medical and educational documentation, though extensive in establishing the children’s specialized needs, lacks letters of support or equivalent documentation required by the presumptive standard outlined in the B2B policy. It provides no reasoned connection between these needs and the necessity of seeking legal intervention to implement them.
[31] Second, while ISC’s prior approval of EA funding reinforces the ongoing need for educational support, it does not establish legal action as the necessary implementation mechanism. If anything, the continuation of funding approval reflects ISC’s recognition of the children’s underlying educational needs while simultaneously finding insufficient justification to support the approval of legal services. These two understandings are not mutually exclusive.
[32] Third, the record reveals no attempt to exhaust the prescribed administrative remedy under the Board Policy 13 – Appeals and Hearings Regarding Student Matters, which provides resolution mechanisms specifically covering “special education placement”
disputes with the Board. This omission weakens the claimed link between legal services and the children’s educational needs. Counsel argued that the Board’s adversarial approach would render this process ineffective; however, jurisprudence clearly requires exhausting administrative remedies before pursuing judicial avenues: Strickland v Canada (Attorney General), 2015 SCC 37 at paras 40–45; CB Powell at paras 30–33; Haug v. Canada (Attorney General), 2023 FC 682 at para 19. I am of the view that since the administrative mechanism under Board Policy 13 is specifically designed to address educational support disputes, the Applicant should at the least demonstrate that he has attempted to engage with it before seeking legal intervention.
[33] The ISC’s conclusion regarding insufficient direct link stems from a proper evaluation of evidence rather than a narrow interpretation of Jordan’s Principle. My reading of the Appeals Committee’s reasons shows they did not categorically exclude legal services from Jordan’s Principle funding. Instead, the decision rested on the Applicant’s failure to demonstrate how the requested legal services were “directly linked”
to the children’s unmet educational, social, or medical needs, the key elements of Jordan’s Principle.
[34] In fact, I find the Appeals Committee’s analytical approach reflects both an openness to considering legal services funding and an appropriate exercise of jurisdictional restraint based on expertise. The Appeals Committee correctly recognized that while they could assess whether requested essential services address documented needs, they lacked competence to evaluate litigation strategy or reasonable legal costs. This recognition of their institutional limits did not reflect a categorical rejection to funding legal fees. Instead, it informed their focus on noting and considering specific evidentiary gaps: the missing letters of support, quantum justification, and cost documentation for the proposed $206,000 in legal services.
[35] In my view, these considerations demonstrate that the Appeals Committee meaningfully grappled with the specific request for legal service funding on its merits. The Committee properly recognized the need for further professional legal guidance to enable a proper assessment of the request. This approach strikes an appropriate balance between ensuring that requested services address unmet needs essential to the well-being of First Nations children and maintaining the flexibility to adapt to unique or unforeseen circumstances, where ancillary funding may be necessary to achieve the overarching goal of delivering substantively equal access to services.
[36] I acknowledge the Applicant’s concerns about problematic observations and reasoning made by certain experts, particularly those characterizing the children’s needs as “mild”
without clear justification and the suggestion that the family’s applications resemble income assistance. While inappropriate, these comments are peripheral to the central issue of insufficient documentation linking legal services to unmet needs. Following Vavilov, I must assess the decision’s reasonableness as a whole, and I find these statements do not materially affect the overall analysis or render the decision unreasonable.
[37] Before moving onto the issue of procedural fairness, I emphasize that nothing in my reasons should be interpreted as establishing the general availability of legal service fees under Jordan’s Principle. While the Principle’s broad and liberal interpretation supports funding ancillary services, including legal services, such funding is justified only where evidence demonstrates that these services are sufficiently linked to ensuring First Nations children’s equal access to essential public services. The determination of such funding must be case-specific, evaluated against the governing framework, including the key requirement of establishing a direct link to the children’s unmet needs in the specific factual context.
[38] The Applicant’s procedural fairness challenge centres on the alleged inadequacy of reasons. He contends both the initial and final appeal decisions lack individualized analysis, characterizing them as form letters with changed names and dates. Specifically, he argues ISC provided no explanation of documentary deficiencies, offered no guidance on required additional information, and failed to implement the required Clinical Case Conferencing procedure outlined in the SOPs. This, he submits, deprived him of a meaningful opportunity to understand and address the perceived gaps in his application.
[39] The Respondent explained during oral submissions that procedural fairness requirements in this context should not deviate from visa application cases where administrative decision-makers need not provide pre-decision notice of concerns or opportunities for applicants to respond, citing authorities such as Singh v Canada (Citizenship and Immigration), 2024 FC 792. When questioned about the meaning of a statement on the application form promising that ISC will follow up “if supporting documents are not submitted,”
the Respondent characterized this as applying only to applications where no documents were submitted at all. The Respondent maintained that since clear documentation requirements were set out in the policy, no additional notification was required.
[40] I agree with the Applicant that he was not given a meaningful opportunity to understand and address the perceived gaps in his application, but this is not attributable to the alleged insufficiency of ISC’s reasons. The sufficiency of reasons is a matter of substantive review according to Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62 at paras 20-22, and I have already addressed this in the reasonableness analysis. I am of the view that the core issue of unfairness in ISC’s process lies in the lack of pre-decision notices informing the Applicant of the types of documents he should provide, and that the procedural fairness duty owed to the Applicant lies on the higher end of the spectrum.
[41] I determine that there is a high level of procedural fairness because of two intersecting considerations under Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817.
[42] First, the institutional choice of procedures supports heightened procedural obligations. Both ISC’s SOPs and B2B mostly establish evaluative criteria, providing minimal guidance on procedural requirements. For instance, section 6, the section on appeals, in the SOPs only outlines basic timelines and requirements without incorporating enhanced procedural elements like comprehensive disclosure requirements or detailed reason-giving obligations.
[43] I find that this absence of detailed procedural safeguards should be interpreted in light of Jordan’s Principle’s fundamental commitment to substantive equality and the explicit directive in SOPs and B2B to minimize administrative barriers. Where the governing principle prioritizes flexibility in funding evaluation to achieve substantive equality while the operative policies offer limited procedural guidance, the common law duty of fairness should expand accordingly to ensure meaningful participation in the decision-making process.
[44] I further read ISC’s statement on the application form regarding follow-ups for missing supporting documents as an indication of the agency’s intent to provide higher levels of procedural safeguards. This stands in clear contrast to the immigration application regimes. The Respondent’s position that such follow-ups apply only when no documentation is submitted is untenable. It creates an illogical framework where applicants providing no documentation would receive more procedural protection than those doing their best to make substantial submissions of documents but missing their mark.
[45] Second, the stakes for affected individuals reinforce the need for robust procedural protection. I disagree with the Respondent’s analogy to visa application contexts. The rights held by the applicants and the purposes of the governing statutes are fundamentally different. The historic disadvantages suffered by the First Nations as a result of systemic discrimination by the Canadian government and the need for Canada to address the same is well-established in law: R v Gladue, [1999] 1 S.C.R. 688; R v Sharma, 2022 SCC 39. Jordan’s Principle was specifically established to address systemic neglect of essential services for First Nations children caused by jurisdictional disputes. Consequently, the stakes in applications for Jordan’s Principle are inherently high.
[46] Specifically in this case, two First Nations children with documented special educational needs and “Below Acceptable”
academic results have been denied EA support by the provincial school board despite the lack of relevant medical justification and availability of federal funding. For First Nations communities still grappling with the aftermath of systemic discrimination, providing and maintaining equitable access to educational support is a key pathway to achieving substantive equality. When implementation gaps jeopardize this access and risk impairing children’s long-term academic and social development, the need for enhanced procedural safeguards becomes undeniable.
[47] The heightened duty of procedural fairness was breached through ISC’s failure to provide pre-decision notification regarding essential documentary requirements. This procedural deficiency manifests throughout the decision-making process. Before making the initial decision, the ISC made no inquiry or communication about missing letters of support. Later, the Appeals Committee identified specific deficiencies, including the absence of professional support letters and quantum justification, but without providing the Applicant with prior notice that such documentation was required. This omission is particularly significant given three factors: ISC’s failure to follow through on its commitment to notify applicants of missing documents, the minimal administrative burden such notification would impose, the novel nature of implementation-related ancillary funding requests, and Jordan’s Principle and relevant policy documents’ explicit mandate to minimize barriers to access. While B2B and SOPs establish certain presumptive documentation standards, oral submissions from Applicant’s Counsel and the record confirm that there is no evidence suggesting the Applicant was made aware of specific requirements for documentation linking legal services to unmet needs or justifying quantum of fees. Given the overarching policy goal of Jordan’s Principle to promote substantive equality, this failure to notify the Applicant of the evidentiary expectations constitutes a breach of procedural fairness.
[48] This is not a case where the Applicant failed to put forward his best case for the Jordan’s Principle application. To the contrary, the record establishes that he has secured prior funding approvals, submitted extensive medical documentation demonstrating his children’s educational needs, and provided evidence showing the implementation barriers created by the Board’s increasingly adversarial stance toward non-legal resolutions. Despite these efforts, the Applicant was effectively precluded from addressing the specific deficiencies that the Appeals Committee later deemed important, as he was not informed of the evidentiary requirements for this type of ancillary funding request in advance.
[49] Proper notification would have helped the Applicant know the case to meet and given him the chance to meet it. With sufficient notice, the Applicant could have taken steps such as obtaining professional legal opinions to guide the Appeals Committee in assessing the legal merits of the claim. Such legal opinions might have also allowed the Applicant to understand the effectiveness of pursuing litigation in his particular circumstances, prepare adequate cost estimates for the requested legal services, and explore alternative administrative remedies like the appeal under Board Policy 13. The ISC’s passive approach to procedural fairness fundamentally undermines Jordan’s Principle’s substantive equality objectives, particularly where, as here, the implementation of federally approved funding meets provincial resistance. This type of jurisdictional impasse, and its detrimental impact on First Nations children, is exactly what drove Parliament to adopt Jordan’s Principle in 2007.
[50] A decision-maker committed to substantive equality under Jordan’s Principle must ensure that they provide procedures that offer reasonable facilitation, rather than passive obstruction, to the identification and approval of necessary services for First Nations children. I note that this obligation should not be viewed as to diminish the applicants’ responsibility to advance their best case. Rather, it stems from the recognition that systemic barriers to accessing Jordan’s Principle funding arise not only from structural flaws within relevant government agencies, but also from passive implementation of existing measures designed to achieve substantive equality.
[51] When procedural steps—such as providing pre-decision notification of documentary deficiencies—can meaningfully enhance participation without imposing disproportional administrative burdens, decision-makers ought to implement such measures. Of course, the specific requirements of procedural fairness necessarily vary with the factual context. Nonetheless, in this case, notifying the Applicant of documentation gaps identified by the Appeals Committee was a low hanging fruit that ISC was legally required to pluck, but failed to do so.
[52] The administrative decisions in this case engage fundamental questions about how to implement funding under Jordan’s Principle through fair and effective procedures. While the Appeals Committee’s consideration and decision of the Applicant’s request for legal services funding was reasonable, the decision-making process failed to provide essential procedural safeguards necessary to ensure meaningful participation given the unique issues and barriers that continue to plague First Nation children.
[53] The duty of procedural fairness owed to the applicants in Jordan’s Principle decisions is inherently high due to intersection of several factors: the Principle’s requirement of substantive equality, the minimal procedural guidance in governing frameworks, and the profound stakes for First Nations children seeking essential services. Where readily implementable procedural steps can facilitate meaningful participation without imposing disproportional administrative burden, decision-makers must implement such measures to ensure their processes actively facilitate, rather than passively obstruct, access to equal services for First Nation children.
[54] Given ISC’s breach of procedural fairness through its failure to provide pre-decision notification of documentary requirements, this application for judicial review is allowed. The matter is returned to ISC for reconsideration. The Applicant shall have 30 days from the date of this decision to submit relevant supporting materials.
[55] The Respondent did not seek its costs. The Applicant asked for $3,000 in costs if successful. I shall award the amount sought as reasonable.
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