Summary
On January 9, 2025, the Federal Court released a judgment related to the judicial review of a denial of Jordan’s Principle funding by Indigenous Services Canada (“ISC”). The Court considered both: 1) whether the decision of the external appeal body (“Appeals Committee”) upholding the denial was reasonable, and 2) procedural fairness issues in ISC’s decision-making process regarding Jordan’s Principle applications. While the Court decided the decision itself was reasonable given the evidence before the Appeals Committee, it found that ISC’s decision-making process did not meet the heightened procedural obligations that are required given the high stakes of Jordan’s Principle funding for First Nations children.
Background
Jordan’s Principle is a child-first principle intended to ensure that First Nations children receive substantively equal access to public services — including, for example, health benefits, community support, child and family services, and special education — without delays or denials.1 Jordan’s Principle is based on substantive equality, which means that it recognizes the unique and historical disadvantages that First Nations children face when accessing care. Jordan’s Principle seeks to address these disadvantages by offering services that, at times, go beyond that which is offered to non-First Nation children.2
In this case, the Court was asked to review a decision by the Appeals Committee denying ancillary funding for legal fees to a father of two First Nations children (the “Applicant”). Both children initially received Jordan’s Principle funding for specialized education support, however the children’s funding was unexpectedly discontinued by the local school board (the “Board”). The Applicant advocated for the reinstatement of support through non-legal avenues, however none of the attempts were successful. As a last resort, the father sought Jordan’s Principle funding for legal services to attempt to reinstate the previously secured educational funding.
The Applicant’s request of funding for legal services was denied by ISC on the basis that it lacked a connection between the amount of funds requested and the “unmet health, social, or educational needs of the children.”3 The Applicant appealed to the Appeals Committee, which upheld ISC’s decision.4
The Applicant sought judicial review of the decision of the Appeals Committee in the Federal Court, which took up two issues: 1) the reasonableness of the Appeals Committee’s decision; and 2) the procedural fairness of ISC’s decision-making process.
Reasonableness of the Decision
The Court found that the Appeals Committee’s decision was reasonable, noting that its reliance on the reasoning of the initial decision was appropriate.5 The Appeals Committee also identified specific evidentiary deficiencies that justified the denial of the application.6 Additionally, the Court observed that, while the evidence supporting the children’s educational needs was extensive, the evidence lacked a clear connection to the legal services requested.7
The Court also noted that the Applicant failed to access the dispute resolution mechanism offered by the Board, which further weakened the link between the Applicant’s children’s educational requirements and the requested legal services funding.8
The Court found that the decision did not categorically exclude Jordan’s Principle funding for legal services, but rather it left open the possibility that legal fees could be covered by Jordan’s Principle where there is a sufficient connection between the children’s needs and the funds requested.9 It noted that ISC lacks expertise to determine how much money is needed for legal services and in what scenarios it would be appropriate to offer this type of funding.10 Thus, it is important for applicants to bring evidence to help inform ISC’s decision.11
Procedural Fairness of the Decision-Making Process
The Court also took up the issue of whether ISC’s decision-making process in relation to the funding application was procedurally unfair. It ultimately decided that the process breached the heightened duty required for Jordan’s Principle funding decisions.12 The issue of unfairness in the decision-making process lay in ISC’s failure to follow-up with the Applicant regarding evidentiary deficiencies in his application,13 despite the application form stating that ISC would contact applicants if “supporting documents are not submitted.”14
The Court decided that the Jordan’s Principle decision-making process should be afforded a heightened duty of procedural fairness due to the “…intersection of several factors: [Jordan’s] Principle’s requirement of substantive equality, the minimal procedural guidance in governing frameworks, and the profound stakes for First Nations children seeking essential services.”15
On the issue of substantive equality, the Court noted: “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.”16
On the issue of procedural guidance, the Court interpreted ISC’s policy documents as prioritizing flexibility in the decision-making process in light of Jordan’s Principle’s requirement of substantive equality.17 Further, ISC’s promise to follow-up regarding missing supporting documents is interpreted as “an indication of the agency’s intent to provide higher levels of procedural safeguards.”18
Finally, and importantly, the historical context in which Jordan’s Principle funding arises and the importance of the funding decisions to First Nations children necessitates heightened procedural protection. The Court noted: “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 the applications for Jordan’s Principle are inherently high.”19
Decision
The application for judicial review was allowed on the grounds of a breach of procedural fairness, and the matter was returned to ISC for reconsideration.20
Key Takeaway
This decision is significant because it affirms the need for a high degree of procedural fairness in ISC’s Jordan’s Principle decision-making processes, and that ISC decision-makers must “provide processes that offer reasonable facilitation, rather than passive obstruction.”21 This includes ensuring applicants are informed of evidentiary gaps in their applications and providing an opportunity for those gaps to be addressed in order to facilitate substantive equality in the implementation of Jordan’s Principle.
This case summary provides our general comments on the case discussed and should not be relied on as legal advice. If you have any questions about this case or any similar issue, please contact any of our lawyers.
See CanLII for the Reasons for Judgement.
Footnotes
1 Schofer v Canada (Attorney General), 2025 FC 50 at paras 17, 19.
2 Schofer v Canada (Attorney General), 2025 FC 50 at para 18.
3 Schofer v Canada (Attorney General), 2025 FC 50 at para 10.
4 Schofer v Canada (Attorney General), 2025 FC 50 at para 13.
5 Schofer v Canada (Attorney General), 2025 FC 50 at para 29.
6 Schofer v Canada (Attorney General), 2025 FC 50 at paras 29-31.
7 Schofer v Canada (Attorney General), 2025 FC 50 at para 30.
8 Schofer v Canada (Attorney General), 2025 FC 50 at para 31.
9 Schofer v Canada (Attorney General), 2025 FC 50 at para 35.
10 Schofer v Canada (Attorney General), 2025 FC 50 at paras 33-34.
11 Schofer v Canada (Attorney General), 2025 FC 50 at paras 35.
12 Schofer v Canada (Attorney General), 2025 FC 50 at para 47.
13 Schofer v Canada (Attorney General), 2025 FC 50 at para 47.
14 Schofer v Canada (Attorney General), 2025 FC 50 at para 39.
15 Schofer v Canada (Attorney General), 2025 FC 50 at para 53.
16 Schofer v Canada (Attorney General), 2025 FC 50 at para 49.
17 Schofer v Canada (Attorney General), 2025 FC 50 at paras 42-43.
18 Schofer v Canada (Attorney General), 2025 FC 50 at para 44.
19 Schofer v Canada (Attorney General), 2025 FC 50 at para 45.
20 Schofer v Canada (Attorney General), 2025 FC 50 at para 54.
21 Schofer v Canada (Attorney General), 2025 FC 50 at para 50.