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Indigenous - Jordan's Principle. Canada (Attorney General) v. Powless
In Canada (Attorney General) v. Powless (Fed CA, 2025) the Federal Court of Appeal dismissed a Crown appeal, here brought against a successful Federal Court respondent JR, this in turn brought against Indigenous Services Canada "decision to uphold, through its appeal process, its initial denial of the Respondent’s second application for funding" "to remediate the mould and make the necessary repairs to the home".
Here the court considers 'Jordan's Principle', some initial administrative procedures of this case - and states a summary of the JR conclusions:A. The Origins of Jordan’s Principle
[7] Jordan’s Principle is named after Jordan River Anderson, a child from Norway House Cree Nation in Manitoba who had complex medical needs. His family surrendered him to provincial care so that he could receive the necessary medical treatment. Although he then could have moved to a specialized foster home, for two years Canada and Manitoba argued over who should bear the costs of such care. Jordan died at age five having never lived outside the hospital.
[8] On December 12, 2007, the House of Commons unanimously passed a motion concerning Jordan’s Principle (House of Commons Motion 296):That, in the opinion of the House, the government should immediately adopt a child first principle, based on Jordan’s Principle, to resolve jurisdictional disputes involving the care of First Nations children. [9] Although this explains the origins of Jordan’s Principle, the House of Commons motion does not govern ISC’s approach to a funding request relying on that principle. Rather, Canadian Human Rights Tribunal (CHRT) decisions, and the resulting orders, issued following a complaint made on behalf of First Nations children, govern.
B. The CHRT Decisions
[10] The complaint to the Canadian Human Rights Commission alleged Canada discriminated in the provision of child and family services to First Nations on reserve and in the Yukon. The Commission referred the complaint to the CHRT, which found the complaint was substantiated: First Nations Child and Family Caring Society of Canada et al. v. Attorney General of Canada (for the Minister of Indian and Northern Affairs Canada), 2016 CHRT 2 at para. 466 (the Merit Decision).
[11] Where a complaint is substantiated, subsection 53(2) of the Canadian Human Rights Act, R.S.C. 1985, c. H-6 (CHRA) empowers the CHRT to order "“the person found to be engaging in the discriminatory practice”" to, among other things, "“take measures…to redress the practice or to prevent the same or a similar practice from occurring in future”". Relying on subsection 53(2), the CHRT ordered ISC to "“cease its discriminatory practices”", reform its program "“to reflect the findings in [the Merit] decision”", "“cease applying its narrow definition of Jordan’s Principle”", and "“take measures to immediately implement the full meaning and scope of Jordan’s Principle”": Merit Decision at para. 481.
[12] Moreover, the CHRT retained jurisdiction to address outstanding issues, including compensation for past discrimination and "“how the requested immediate and long-term reforms [could] best be implemented on a practical, meaningful and effective basis”" to remedy past and ongoing discrimination: Merit Decision at paras. 483, 494.
[13] Since then, relying on its retained jurisdiction, the CHRT has issued several additional orders. Although all are relevant, the 2017 CHRT order mandating the five key principles that govern the definition and application of Jordan’s Principle is central to this appeal: First Nations Child and Family Caring Society of Canada et al. v. Attorney General of Canada (for the Minister of Indian and Northern Affairs Canada), 2017 CHRT 35 at Annex A (amending 2017 CHRT 14) (the Governing Order).
[14] The Governing Order describes Jordan’s Principle as "“a child-first principle”" and to that extent echoes the House of Commons resolution. However, the Governing Order goes much further. It expressly states that no jurisdictional dispute between governments or government departments is necessary for the application of Jordan’s Principle.
[15] Nor is Jordan’s Principle "“limited to First Nations children with disabilities, or those with discrete short-term issues creating critical needs for health and social supports”". Rather, it "“addresses the needs of First Nations children by ensuring there are no gaps in government services to them”": Governing Order at para. 10, citing para. 135 of 2017 CHRT 14. (The full text of the Governing Order is reproduced in the Appendix to these reasons.)
[16] To that end, the Governing Order requires the government department of first contact—here ISC—to pay for a service available to all other children. However, where "“a government service, including a service assessment, is not necessarily available to all other children or is beyond the normative standard of care”", the Governing Order requires the department contacted to "“still evaluate the individual needs of the child to determine if the requested service should be provided to ensure substantive equality in the provision of services to the child, to ensure culturally appropriate services to the child and/or to safeguard the best interests of the child”": Governing Order at para. 10, amending 2017 CHRT 14, para. 135.
[17] As will be seen, the meaning and scope of Jordan’s Principle, as articulated in the Governing Order and animated by subsequent CHRT decisions, is at issue in this appeal. In particular, the parties disagree over the interpretation of "“[w]hen a government service…is not necessarily available to all other children or is beyond the normative standard of care” and over what constitutes “gaps in government services”".
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C. The Respondent’s Requests for Funding
[20] Relying on Jordan’s Principle, the Respondent first applied for funding for mould remediation in June 2022, but that request was denied. After her appeal was also denied, the Respondent applied for judicial review of that decision in the Federal Court. That application was discontinued when ISC agreed to reconsider the Respondent’s application.
[21] On September 10, 2024, ISC again denied her request (the second initial refusal decision), and the Respondent again appealed.
[22] An External Expert Review Committee (EERC), which assesses Jordan’s Principle appeals and makes recommendations to the final decision-maker, recommended that the Respondent’s appeal be denied. ISC’s Senior Assistant Deputy Minister (Senior ADM) agreed with that recommendation and, accordingly, by letter dated November 28, 2024, advised the Respondent that the decision to deny her request for funding was upheld (ISC appeal decision). Importantly, however, as we will see, the Senior ADM—as the decision-maker—did not adopt the EERC’s reasons for recommending that same decision.
[23] The Respondent then sought judicial review of the ISC appeal decision in the Federal Court.
D. The Federal Court Found the ISC Appeal Decision Unreasonable
[24] The Federal Court concluded that "“it was unreasonable for ISC to deny the request by narrowly framing it as a housing remediation request, rather than assessing it through a substantive equality lens and the health and best interests of the children, as Jordan’s Principle requires”": Federal Court reasons at para. 43. It described the issue as "“whether the children’s health needs were adequately addressed”" but said that "“ISC failed to meaningfully engage with the children’s health conditions or to assess whether those needs could be met under Jordan’s Principle”": Federal Court’s reasons at paras. 46, 49. Instead, ISC "“unreasonably treated the request as solely a housing remediation matter”" which "“was an impermissible narrowing of Jordan’s Principle”": Federal Court reasons at para. 53.
[25] I largely agree with the nature of these criticisms of the ISC appeal decision. However, because my conclusion that the decision is unreasonable is grounded in a failure of justification, I view these criticisms through that lens.
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