Federal Court Decisions

 

 

Date: 20130404

Docket: T-1045-11

Citation: 2013 FC 342

Toronto, Ontario, April 4, 2013

PRESENT:    The Honourable Mr. Justice Mandamin

 

 

BETWEEN:

	PICTOU LANDING BAND COUNCIL AND MAURINA BEADLE
		Applicants
	and
	ATTORNEY GENERAL OF CANADA
		Respondent

 

           REASONS FOR JUDGMENT AND JUDGMENT

 

[1]               The Pictou Landing Band Council and Ms. Maurina Beadle apply for judicial review of the decision of Ms. Barbara Robinson, Manager, Social Programs, Aboriginal Affairs and Northern Development Canada (AANDC), not to reimburse the Pictou Landing Band Council (PLBC) for in-home health care to one of its members beyond a normative standard of care identified by Ms. Robinson.

 

[2]               The Applicants also request that the Court make an order pursuant to section 24(1) of the Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter], directing the Respondent to reimburse the PLBC for exceptional costs incurred providing home care to Jeremy Meawasige and his mother, Ms. Beadle, from May 27, 2010 to the present.

 

[3]               I have decided to grant the application for judicial review because I have determined Jordan’s Principle is applicable in this case. Having decided as I have, I need not consider the application for an order for reimbursement pursuant to section 24(1) of the Charter.

 

[4]               My reasons follow.

 

Background

 

[5]               The Pictou Landing Band Council is the elected government of the Pictou Landing First Nation and makes governance decisions concerning its members, including the allocation of funding received from the federal government through block contribution agreements. This includes funding from AANDC and Health Canada to deliver continuing care services to members in need on the Pictou Landing Reserve.

 

[6]               The other Applicant is Ms. Maurina Beadle, a 55 year-old member of the Pictou Landing First Nation. Her son, Jeremy Meawasige, is a teenager with multiple disabilities and high care needs. He has been diagnosed with hydrocephalus, cerebral palsy, spinal curvature and autism. Jeremy can only speak a few words and cannot walk unassisted. He is incontinent and needs total personal care including showering, diapering, dressing, spoon feeding, and all personal hygiene needs. He can become self-abusive at times, and needs to be restrained for his own safety.

 

[7]               Jeremy lives on the Pictou Landing Indian Reserve. Ms. Beadle, his mother, is Jeremy’s primary caregiver and she was able to care for her son in the family home without government support or assistance until Ms. Beadle suffered a stroke in May 2010.

 

[8]               After her stroke, Ms. Beadle was unable to continue to care for Jeremy without assistance. She was hospitalized for several weeks, and when she was released, required a wheelchair and assistance with her own personal care. The PLBC immediately started providing 24 hour care for both Ms. Beadle and Jeremy in their home. Between May 27, 2010 and March 31, 2011, the PLBC spent $82,164.00 on in-home care services for Ms. Beadle and Jeremy.

 

[9]               The PLBC continued to provide home care support to Ms. Beadle and Jeremy. In October 2010, the Pictou Landing Health Centre arranged for an assessment of the family’s needs. Since that time, the Health Centre has provided the family with in-home services as recommended by the assessment. From Monday to Friday, a personal care worker is present from 8:30 a.m. to 11:30 p.m. Over the weekends, there is 24 hour care. This level of care meets Jeremy’s need for 24-hour care, less what his family can provide. The family providers are Ms. Beadle, to the degree she has recovered from her stroke and Jeremy’s older brother, Jonavan, who attends to assist.

 

[10]           Ms. Beadle and her son Jeremy have a deep bond with each other. His mother is often the only person who can understand his communication and needs. She spent many hours training him to walk and helping him with special exercises.  She discovered his love of music and sings to him when he is upset or does not want to cooperate. Her voice calms him and can make him desist in self-abusive behaviour.  She takes him on the pow-wow trail, travelling to communities where pow-wows are held.  She says Jeremy is happiest when he is dancing with other First Nations people and singing to traditional music. Jeremy has never engaged in self-abusive behaviour on those occasions.

 

[11]           By February 2011, the costs associated with caring for the family were approximately $8,200 per month. This represented nearly 80% of the PLBC’s total monthly budget for personal and home care services funded by AANDC under the Assisted Living Program (ALP) and by Health Canada under the Home and Community Care Program (HCCP).

 

The Assisted Living Program and the Home and Community Care Program

 

[12]           The ALP is administered by the PLBC and has both an institutional and in-home care component. The ALP provides funding for non-medical, social support services to seniors, adults with chronic illness, and children and adults with disabilities (mental and physical) living on reserve and includes such things as attendant care, housekeeping, laundry, meal preparation, and non-medical transportation.

 

[13]           The Home and Community Care Program is also administered by the PLBC. Under the HCCP, the PLBC is required to prioritize and fund essential services before support services and Health Canada spells out what falls under each of these headings. The HCCP provides funding to assist with delivery of basic in-home health care services which require a licensed/certified health practitioner or the supervision of such a person. The PLBC determines how the contribution agreement dollars for the HCCP are spent in the provision of basic in-home health care services.

 

[14]           The ALP and the HCCP are programs designed to complement each other, but not to provide duplicate funding for the same service. If a type of care, such as respite care, is already being paid for by one of the programs, it will not be an eligible expense under the other.

 

[15]           Under the current block contribution agreement between the PLBC and Aboriginal Affairs and Northern Development Canada [AANDC] the PLBC receives $55,552.00 for funding eligible ALP services. Under the block contribution agreement between PLBC and Health Canada, the PLBC receives $75,364.00.

 

Request for Funding

 

[16]           On February 16, 2011, Ms. Philippa Pictou, the Health Director at the Pictou Landing First Nation Health Centre contacted Ms. Susan Ross, the Atlantic Regional Home and Community Care Coordinator at Health Canada. Ms. Pictou expressed her opinion that Jeremy’s case met the definition of Jordan’s Principle and asked Ms. Ross to participate in case conferencing regarding his needs.

[17]           Jordan’s Principle was developed in response to a sad case involving a severely disabled First Nation child who remained in a hospital for over two years due to jurisdictional disputes between different levels of government over payment of home care on his First Nation community. The child never had the opportunity to live in a family environment because he died before the dispute could be resolved. Jordan’s Principle aims to prevent First Nations children from being denied prompt access to services because of jurisdiction disputes between different levels of government.

 

[18]           Jordan’s Principle is a child-first principle that says the government department first contacted for a service readily available off reserve must pay for it while pursuing repayment of expenses. Jordan’s Principle is a mechanism to prevent First Nations children from being denied equal access to benefits or protections available to other Canadians as a result of Aboriginal status.

 

[19]           On February 28, 2011, a case conference was held regarding Jeremy’s needs. In attendance were provincial care assessors from the Nova Scotia Department of Health and Wellness, the Pictou Landing Community Health Nurse, representatives of the PLBC, and Ms. Ross and Ms. Deborah Churchill on behalf of Canada.

 

[20]           On April 19, 2011, a second case conference took place to discuss Jeremy’s needs. Because Ms. Pictou had earlier requested that Jeremy’s situation be considered a Jordan’s Principle case, Ms. Barbara Robinson, the Jordan’s Principal focal point for AANDC, was asked to participate. Both Ms. Ross and Ms. Robinson attended the second case conference, as did Mr. Troy Lees, a civil servant with the Nova Scotia provincial Department of Community Services.

[21]           At the second case conference, Mr. Lees explained what the province would provide to a child with similar needs and circumstances off reserve. He explained there was a departmental directive that a family living off reserve could receive up to a maximum of $2,200 per month in respite services. Mr. Lees also stated that the province would not provide 24-hour care in the home by funding the equivalent to the costs of institutional care.

 

[22]           On May 12, 2011, Ms. Pictou wrote to Health Canada and AANDC officials to formally request additional funding so that the PLBC could continue to provide home care services to Ms. Beadle and Jeremy. Attached to the request was a briefing note describing Ms. Beadle’s and Jeremy’s situation and their home care needs. Also attached was a copy of the Nova Scotia Supreme Court’s March 29, 2011 decision in Nova Scotia (Department of Community Services) v Boudreau, 2011 NSSC 126, 302 NSR (2d) 50 [Boudreau].

 

[23]           On May 27, 2011, Ms. Robinson, the Manager for Social Programs and the Jordan’s Principle focal point for AANDC, emailed her decision to Ms. Pictou. The decision was delivered on behalf of both AANDC and Health Canada. In her decision, Ms. Robinson concluded there was no jurisdictional dispute in this matter as both levels of government agreed that the funding requested was above what would be provided to a child living on or off reserve. Ms. Robinson determined that Jeremy’s case did not meet the federal definition of a Jordan’s Principle case.

 

Decision Under Review

 

[24]           Ms. Robinson [the Manager] informed Ms. Pictou of her decision to refuse the PLBC’s request for additional funding for Jeremy’s case by an extensive email dated May 27, 2011. She advised that she had an opportunity to confer with provincial health authorities and verified that the request for the provision of 24-hour home care for Jeremy would exceed the normative standard of care.

 

[25]           The Manager recognized the First Nation’s right to enhance the services that are provided to this family through own source revenues, but emphasized that services that exceed the normative standard of care and which are outside of the federal funding authorities would not be reimbursed through the AANDC Assisted Living or Health Canada Home and Community Care Programs.

 

[26]           The Manager went on to state that provincial officials had confirmed that Jeremy’s care needs would meet the placement criteria for long term institutional care, and that depending upon the classification of the long term care facility, the expenses associated with Jeremy’s care would be fully funded by the AANDC Assisted Living, Institutional Care Program and/or the Province of Nova Scotia. However, she recognized this was a personal decision and that Jeremy’s mother did not wish to place her child in a long term care facility.

 

[27]           The Manager concluded by noting that although the case did not meet the federal definition of a Jordan’s Principle case, AANDC and Health Canada would continue to work with stakeholders and to participate in case conferencing as required.

Relevant Legislation

 

[28]           The Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 provides:

 

[29]           The Social Assistance Act, RSNS 1989, c 432 [SAA] provides:

 

9 (1) Subject to this Act and the regulations the social services committee shall furnish assistance to all persons in need, as defined by the social services committee, who reside in the municipal unit.

 

[Emphasis added]

 

 

[30]           The Municipal Assistance Regulations, NS Reg 76-81 provides:

 

1.      In these regulations

 

(e) "assistance" means the provision of money, goods or services to a person in need, including

 

(i) items of basic requirement: food, clothing, shelter, fuel, utilities, household supplies and personal requirements,

 

(ii) items of special requirement: furniture, living allowances, moving allowances, special transportation, training allowances, special school requirements, special employment requirements, funeral and burial expenses and comforts allowances. The Director may approve other items of special requirement he deems essential to the well being of the recipient,

 

(iii) health care services: reasonable medical, surgical, obstetrical, dental, optical and nursing services which are not covered under the Hospital Insurance Plan or under the Medical Services Insurance Plan,

 

(iv) care in homes for special care,

 

(v) social services, including family counselling, homemakers, home care and home nursing services,

 

(vi) rehabilitation services;

 

[Emphasis added]

 

 

Arguments of the Parties

 

Applicants’ Submissions

 

[31]           The Applicants organized their submissions according to the issues they identified.

 

What is the appropriate standard of review?

 

[32]           The Applicants submit the central issue raised in this judicial review is whether the decision-maker ought to have exercised her discretion to provide additional funding to the PLBC for continuing care services. The Applicants submit that in the particular circumstances of this case, a positive decision was necessary to ensure Jeremy and Ms. Beadle continue to receive equal benefit under the law as guaranteed by section 15 of the Charter. The Applicants submit the appropriate standard of review for issues involving the Charter is invariably one of correctness.

 

[33]           The Applicants also submit that the Respondent erred in law by failing to properly interpret and apply the Nova Scotia SAA in accordance with the jurisprudence of the Nova Scotia Supreme Court. As an error of law, the Applicants submit the standard of review on this issue must also be correctness.

 

[34]           Finally, the Applicants allege that the impugned decision was based on a serious misapprehension of the evidence following a gravely flawed fact-finding process. The Applicants submit this Court has held that the Government of Canada may be held to a reasonableness standard when exercising discretionary power pursuant to contribution funding agreements with First Nations Bands.

 

Did the decision-maker err in law in interpreting and applying the Nova Scotia Social Assistance Act?

 

[35]           The Applicants submit the ALP Manual and the relevant funding agreement with the PLBC both state that funding is provided to bands to ensure individuals living on reserve receive services “reasonably comparable” to those provided by the province. The Applicants submit the Respondent denied additional funding to the PLBC on the grounds that Jeremy and Ms. Beadle would only be entitled to home-care services to a maximum of $2,200 per month if they lived off reserve. The Applicants argue that in reaching this decision, the Respondent committed an error of law.

 

[36]           In Nova Scotia, social services and assistance for people with disabilities are provided under the SAA. Section 9 of the SAA states that, subject to regulations, the government “shall furnish assistance to all persons in need”. Section 18 of the SAA provides the Governor in Council to make regulations pursuant to the SAA. Under s 1(e)(iv) of the Municipal Assistance Regulations, NS Reg 76-81 “assistance” is defined to include “home care”.

 

[37]           Nova Scotia’s Direct Family Support Policy from 2006 states that the funding for respite to people with disabilities “shall not normally exceed” $2,200 per month. The Policy also states that additional funding may be granted in “exceptional circumstances”. The Applicants submit Ms. Robinson conceded in cross-examination that Jeremy and Ms. Beadle met much of the criteria under the “exceptional circumstances” portion of the policy. However, the Applicants submit Ms. Robinson concluded this Policy did not reflect Nova Scotia’s normative standard of care because a provincial official had issued a separate directive that stated that no funding in excess of $2,200 would ever be provided.

 

[38]           The Applicants submit that in cross-examination Ms. Robinson also indicated that she had read the judgment in Boudreau, where the Nova Scotia Supreme Court concluded that the $2,200 monthly cap was not lawful or binding in any way.

 

[39]           The Applicants cited from the Court decision in Boudreau at paras 61 & 62 stating:

 

What does the SAA obligate the Department to do in the case at Bar? I note s. 27 of the SAA permits regulations “prescribing the maximum amount of assistance that may be granted” but no regulations relevant to the case at Bar are in place.

…

 

How much “assistance” as defined in the Municipal Assistance Regulations, is the “care” obligation vis-à-vis Brian Boudreau? In my view, the obligations of the Department pursuant to the SAA and Regulations are met when the “assistance” reasonably meets the “need” in each specific case.

 

[Emphasis added]

 

 

[40]           The Applicants submit that Ms. Robinson stated in cross-examination that the Boudreau judgment was “not relevant” to her decision. They submit this is an error of law and that the decision must be quashed for this reason alone.

 

Was the decision based on a serious misunderstanding of the evidence?

 

[41]           The Applicants submit that even if the refusal to provide additional funding to the PLBC is not found to be discriminatory, the decision remains unreasonable as it was based on a serious misapprehension of evidence and on a gravely flawed fact finding process.

 

[42]           The Applicants argue that the decision is unreasonable because it was based on an erroneous understanding of what was actually being requested by the PLBC. The Applicants point to Ms. Robinson’s decision of May 27, 2011 to illustrate that Ms. Robinson denied the PLBC’s request on the basis that 24 hour care was not available off reserve. However, the Applicants submit this was not what was requested by the PLBC.

 

[43]           The Applicants point to a particular paragraph in Ms. Pictou’s Briefing Note which was attached to the request for additional funding which states:

 

Jeremy Meawasige’s reasonable “need” for “homecare” is 24 hours a day, 7 days a week (less the time his family can reasonably attend to his care), but which department is obliged to meet his care needs?

 

 

The Applicants submit that this demonstrates that Ms. Robinson erred by characterizing the PLBC’s request as funding for 24-hour services as well as additional assistance for meal preparation and light housekeeping.

 

[44]           The Applicants argue that since Ms. Robinson failed to understand what was requested by the PLBC, it cannot be said that the request for additional funding was properly or fairly considered. The Applicants submit that Courts have held that a decision-maker’s misapprehension of facts or evidence constitutes a palpable and overriding error. Crane v Ontario (Director, Disability Support Program), (2006), 83 OR (3d) 321 (ON CA) at paras 35-36. The Applicants submit that in this case, Ms. Robinson’s misapprehension of the PLBC’s request not only affected the fact-finding process, but it formed the very basis for the denial of the request. The Applicants submit this amounts to an unreasonable error.

 

[45]           The Applicants submit Ms. Robinson also ignored relevant information before her. The Applicants argue the provincial Home Care Policy confers up to $6,600 per month in home care services to people with disabilities, and is not capped at $2,200. The Applicants argue that presented with this evidence, Ms. Robinson’s assertion that the normative standard of care off reserve is invariably limited to $2,200 per month is untenable and that this amounts to an error in law.

 

Did the decision-maker exercise her discretion in a manner that violated section 15(1) of the Charter?

 

 

[46]           The Applicants claim that the decision to deny additional funding to the PLBC so that it could continue providing Jeremy and Ms. Beadle with home care was discriminatory and contrary to s. 15(1) of the Charter. The Applicants submit that while the federal government may enter into contribution agreements with Band Councils to provide services, such agreements cannot supersede its obligations under the Charter. The Applicants also submit that the government’s exercise of discretionary powers must conform to the Charter. The Applicants argue that Ms. Robinson had a duty to consider the requests for additional funding under the relevant agreements in a manner that respects the Beadles’ rights to receive equal benefits compared to those residing off reserve in their province of residence.

 

[47]           The Applicants submit that for First Nations people living on reserve, Jordan’s Principle is a means by which the fundamental objectives of s. 15(1) can be achieved.

 

[48]           The Applicants argue that the exceptional and unanticipated health needs of the Beadle family jeopardize the PLBC’s ability to provide the services the family reasonably requires and would likely be entitled to off reserve. The Applicants submit that Ms. Robinson had a duty to exercise her discretion under the relevant funding agreements in a manner that conforms to s. 15(1) of the Charter.

[49]           The Applicant also argues that infringement under s. 15(1) cannot be justified under s. 1 of the Charter.

 

Respondent’s Submissions

 

[50]           The Respondent’s submissions are similarly organized according to the issues identified by the Respondent.

 

The standard of review is reasonableness

 

[51]           The Respondent submits the question of whether the service provided by the PLBC exceeded the provincial normative standard of care is a question of fact and requires a decision maker to gather facts about the assistance needs of the claimant, the treatments required, and the nature of the disabilities at issue. The Respondent asserts that it also requires fact gathering about the services that are currently available to similar people living off reserve and gathering factual information from provincial authorities and the federal program requirements. The Respondent submits the decision maker is entitled to give significant weight to the definition of the normative standard of care provided by the provincial authorities.

 

With respect to the assessment of the request made by the Applicants, the Respondent submits the determination of what was actually requested is a question of fact. Ms. Robinson was required to review Jeremy’s situation and determine what their request constituted based on all of the material submitted. The Respondent submits that the Supreme Court of Canada in Dunsmuir v New Brunswick, 2008 SCC 9 [Dunsmuir] has determined that where a question is a factual determination which depends purely on the weighing of evidence, the applicable standard of review is reasonableness. The Respondent submits that where, as here, the underlying factual and legal issues cannot be separated, the appropriate standard of review is still reasonableness. Dunsmuir at paras 53-54.

 

[52]           The Respondent submits that the standard of reasonableness in the present case is particularly appropriate because the decision maker was asked to make a determination of eligibility under a federal policy for which she was the expert designated authority in a discrete and special administrative regime, with particular expertise, and with the unique ability to interact with provincial authorities whose cooperation is required to make the necessary determination. The Respondent submits that the reasonableness standard is the most reflective of the nature of the inquiry and the context in which it takes place.

 

[53]           Regarding the Charter issue, the Respondent submits there is no standard of review of this issue in this Court. The Respondent argues that the Charter issue is a matter of constitutional law and not administrative law. This is the first time that the s. 15 argument has been raised in this matter. The Respondent submits this is the Court of first instance for the determination of the constitutional question.

Jordan’s Principle was not engaged in this case

 

[54]           The Respondent submits that in order to determine whether Jordan’s Principle was engaged, Ms. Robinson had to determine if there was a jurisdictional dispute between Canada and Nova Scotia regarding the provision of funding for Jeremy’s care and if the funding provided by Canada met the normative standard of care in Nova Scotia.

 

[55]           The Respondent submits there was no jurisdictional dispute. Both Canada and Nova Scotia agreed that Jeremy’s situation entitled him to receive institutional care and the Province acknowledged it would pay for those services over and above federal authority.

 

[56]           The Respondent argues that Ms. Robinson determined the normative standard of care for in-home services in Nova Scotia was $2,200 per month as a result of her consultation with provincial officials from multiple departments, and after raising with them the applicability of the SAA, the Direct Family Support Policy, the Health and Wellness Program, and the recent decision of the Nova Scotia Supreme Court in Boudreau. The Respondent submits Ms. Robinson brought all of the Applicants’ concerns and arguments before the provincial officials who informed her that the amount Jeremy would receive if he lived off reserve would be no more than $2,200.

 

[57]           The Respondent asserts that Ms. Robinson’s approach to determining the normative standard of care was correct and her conclusion that the request was beyond the normative standard of care was reasonable. The Respondent submits the provincial officials were in the best position to say what services are available to residents of the province living off reserve and thus using this information as a basis for her decision was reasonable.

 

[58]           Regarding the Applicants’ submissions on the applicability of the Boudreau case, the Respondent submits Boudreau is a case about exceptional circumstances to the provincial standard of care but does not purport to change the standard of care itself. The provincial authority had already determined that Boudreau required in-home care in an amount less than what the PLBC has provided here. Also, the $2,200 limit had not previously been applied in Boudreau’s case because he had been “grandfathered”.

 

[59]           The Respondent submits that the situation in Boudreau is quite different from Jeremy’s because Boudreau was receiving exceptional circumstances funding prior to the October 2006 Directive from the Department of Community Services that indicated the maximum for respite in-home care was $2,200 per month, with no exceptions. Moreover, the Respondent submits Canada and Nova Scotia have already determined that the applicable standard for Jeremy is institutional, not respite care. The Respondent submits the Applicants are trying to use the Boudreau case to create a new standard of care that neither the Province nor Canada recognizes.

 

The request for additional funding was properly assessed

 

[60]           The Respondent submits the evidence is clear that the Applicants requested the equivalent of 24-hour per day care, and only for Jeremy, contrary to the Applicants’ arguments that Ms. Robinson misapprehended the request for additional funding.

[61]           The Respondent submits the Applicants allege that they requested only funding for in-home care 24 hours per day, 7 days per week, less what Jeremy’s own family could provide. For this proposition, the Respondent notes the Applicants rely on a specific sentence in the Briefing Note Ms. Pictou prepared on Jeremy’s case which was sent to Health Canada and AANDC.

 

[62]           The Respondent submits that in the immediately preceding paragraph in the Briefing Note, Ms. Pictou refers to 24 hour per day, 7 days a week care without any limitation regarding family assistance. Further, the Respondent argues that in the email with the formal request for additional funding (to which the Briefing Note was attached), Ms. Pictou stated:

 

Even if it is not a Jordan’s Principle case, I would like either the Federal or Provincial Government to reimburse us up to the level that he would qualify for if institutionalized (estimated by Community Services to be $350 per day).

 

 

[63]           The Respondent submits it was reasonable for Ms. Robinson to conclude that the Applicants had requested the funding equivalent of 24 hour per day in-home care, and to verify whether that need was beyond the normative standard of care that the province would provide for in-home care for any Nova Scotian.

 

[64]           Even if the Applicants’ request could be interpreted as 24 hours minus what family members could provide (which is not admitted), the Respondent submits Ms. Robinson’s factual finding that the Applicants’ funding request exceeded the provincial standard for in-home care is reasonable given the evidence.

 

The decision does not violate section 15(1) of the Charter.

 

[65]           The Respondent submits the decision not to grant the request for additional funding up to the daily rate of institutional care does not discriminate against Jeremy or any other First Nations child. First, the Respondent submits the benefit the Applicants requested is not a benefit provided by law. Under the ALP and HCCP, the PLBC has funding to provide their community with reasonably comparable services to those that would be available to the off reserve population. The Respondent submits funding for those benefits was and is available to Jeremy, and he is treated no differently from any other Nova Scotian with similar needs. There is no distinction on which a discrimination claim can rest.

 

[66]           The Respondent submits that Jordan’s Principle clearly is not engaged in this case. Jordan’s Principle was adopted to ensure that no First Nations child would be denied services while governments debated over the jurisdictional responsibility to provide an eligible service. The Respondent argues that what is at stake in this case is not a jurisdictional dispute at all, but a claim that the PLBC’s decision to provide in-home care to one of its members beyond the normative provincial standard of care legally obliges Canada to fund such services.

 

[67]           The Respondent submits that the evidence clearly indicates that Jeremy’s needs well exceed the levels of in-home care that would be available to anyone living off reserve in Nova Scotia. This was confirmed by the provincial officials who indicated that this level of in-home care would not be available and institutionalization would be the supported option. The Respondent submits this is not a case where the application of federal programs or policies denies a benefit that would otherwise be available to someone else. The Respondent argues that the Applicants are attempting to create a benefit out of the ALP and HCCP that simply does not exist at law.

 

[68]           The Respondent submits that neither Ms. Robinson’s decision, nor the structure of the ALP and HCCP funding itself creates any distinction between Jeremy and a person with similar disabilities and care needs that is not living on a reserve. The Respondent notes that under the ALP and the HCCP, Canada has elected to provide funding for services that are reasonably comparable with people living off reserve so that no such distinction will be created. In this regard, the Respondent submits Ms. Robinson was required to verify the provincial normative standard of care, and did so by specifically enquiring with the provincial authorities whether, if Jeremy was living off reserve, funding for his care needs could be provided in-home. The Respondent submits that the information provided to Ms. Robinson from the provincial authorities was clear that if Jeremy lived off reserve, the supported option would be institutionalization, and that the maximum funding he could receive for in-home care if he remained in the home was $2,200 per month.

 

Issues

 

[69]           In my view the following issues arise in this case:

 

            1.         Was Jordan’s Principle engaged in this case?

2.         Did the Manager properly assess the request for funding?

3.         Did the Manager exercise her discretion in a manner that violated section 15(1) of the Charter?

Standard of Review

 

[70]           The Supreme Court of Canada held in Dunsmuir that there are only two standards of review: correctness for questions of law and reasonableness involving questions of mixed fact and law and fact. Dunsmuir at paras 50 and 53.

 

[71]           The Supreme Court also held that where the standard of review has been previously determined, a standard of review analysis need not be repeated. Dunsmuir at para 62.

 

[72]           I have been unable to find any previous jurisprudence in which Jordan’s Principle and the appropriate standard of review in determining the “normative standard of care off reserve” has been considered.

 

[73]           I note that this matter involves questions of fact, and questions of mixed law and fact as they relate to a question of policy, that of Jordan’s Principle. There is no privative provision and the matters are determined by an official designated as an AANDC departmental “focal point for Jordan’s Principle” which is suggestive of expertise.

 

[74]           The Manager was required to determine what it was that the PLBC was requesting. This was a factual determination based on the submissions of Ms. Philippa Pictou and information provided in case assessments. The Manager was also charged with determining whether this case met the criteria for a Jordan’s Principle case. As the Jordan’s Principle focal point for AANDC the Manager had a specialized expertise in this matter.

[75]           Finally, the Manager was required to determine the normative standard of care that would be available from provincial health authorities to individuals living off reserve in the same circumstances as Jeremy. There appears to be no specific procedure for her to follow to determine what the normative standard of care is. The Manager was not specifically tasked with interpreting and applying the SAA or any jurisprudence. Essentially, it was a fact-finding exercise which would attract a reasonableness standard of review.

 

[76]           In Dunsmuir questions of mixed fact and law and fact give rise to a standard of reasonableness. Dunsmuir at paras 50 and 53. Accordingly, I agree with the Respondent that the appropriate standard of review for the Manager’s decision with respect to Jordan’s Principle is reasonableness.

 

Analysis

 

[77]           The issues in this case revolve around the question of on-reserve, in-home support for Jeremy, a First Nation child with multiple handicaps who was cared for by his mother until the time of her stroke.

 

[78]           The Applicants submit Canadian children with disabilities and their families rely on continuing care generally provided by provincial governments according to provincial legislation.  Provincial governments do not provide the same services to First Nations children who live on reserves. The federal government assumed responsibility for funding delivery of continuing care programs and services on reserve at levels reasonably comparable to those offered in the province of residence. Such services have been historically funded and provided by the federal government through AANDC and Health Canada as a matter of policy.

 

 

[79]           AANDC and Health Canada entered into a funding agreement with the PLBC to deliver services offered under the ALP and HCCP.  The PLBC is required to administer the programs “according to provincial legislation and standards.” The ALP funding agreement states the PLBC can seek additional funding in “exceptional circumstances” which are not “reasonably foreseen” at the time the agreement was entered into. The HCCP agreement has a similar clause which refers to necessary increases due to “unforeseen circumstances”.

 

[80]           Personal home care services off reserve for people with disabilities in Nova Scotia are governed by the Social Assistance Act. Section 9(1) of the SAA provides persons in need shall be provided with assistance, including home care and home nursing services. The Nova Scotia Department of Community Services implements the SAA and funds home care for people with disabilities through the Direct Family Support Policy.  The policy provides that funding for home care shall not normally exceed $2,200 per month but states additional funding may be granted in exceptional circumstances.

 

Was Jordan’s Principle engaged in this case?

 

[81]           As stated above, Jordan’s Principle was developed in response to a case involving a severely disabled First Nation child who remained in a hospital due to jurisdictional disputes between the federal and provincial governments over payment of home care services for Jordan in his First Nation community. The child never had the opportunity to live in a family environment because he died before the dispute could be resolved. Jordan’s Principle aims to prevent First Nations children from being denied prompt access to services because of jurisdiction disputes between different levels of government.

 

[82]           Jordan’s Principle says the government department first contacted for a service readily available off reserve must pay for it while pursuing repayment of expenses. While Jordan’s Principle is not enacted by legislation, it has been approved by a unanimous vote of the House of Commons. Such a motion is not binding on the government.

 

 

[83]           In order to understand the status of Jordan’s Principle, it is helpful to have regard to the Hansard reports of the debate in the House of Commons. The private member’s motion of May 18, 2007 reads:

 

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.

 

 

The motion was further debated on October 31, 2007 and again on December 5, 2007.  At that time, a member of the governing party stated:

I support this motion, as does the government. I am pleased to report the Minister of Indian Affairs and Northern Development and officials in his department are working diligently with their partners in other federal departments, provincial and territorial governments, and first nations organizations on child and family services initiatives that will transform the commitment we make here today into a fact of daily life for first nations parents and their children.

 

That is not all. In addition to implementing immediate, concrete measures to apply Jordan’s principle in aboriginal communities, I would like to inform the House and my colleague that the government is also implementing other measures to improve the well-being of first nations children…

 

The vote in the House of Commons on December 12, 2007 was unanimous, recording Yeas: 262, Nays: 0.

 

[84]           Clearly, Jordan’s principle was implemented by AANDC. Ms. Barbara Robinson, Manager – Social Programs, was designated the Jordan’s Principle focal point for AANDC in Atlantic Canada. She described AANDC’s implementation of  Jordan’s Principle in the following terms:

 

Jordan’s Principle is a child-first principle which exists to resolve jurisdictional disputes between the federal and provincial governments regarding health and social services for on-reserve First Nations children. It ensures that a child will continue to receive care while the jurisdictional dispute between the provincial and federal government is resolved but does not create a right to funding that is beyond the normative standard of care in the child’s geographic location.

 

Jordan’s Principle applies when:

 

a)         The First Nations child is living on reserve (or ordinarily resident on reserve); and

 

b)         A First Nations child who has been assessed by health and social service professionals and has been found to have multiple disabilities requiring services from multiple service providers; and

 

c)         The case involves a jurisdictional dispute between a provincial government and the federal government; and

 

d)         Continuity of care – care for the child will continue even if there is a dispute about responsibility. The current service provider that is caring for the child will continue to pay for the necessary services until there is a resolution; and

 

e)         Services to the child are comparable to the standard of care set by the province – a child living on reserve (or ordinarily resident on reserve) should receive the same level of care as a child with similar needs living off-reserve in similar geographic locations.

 

[Emphasis added]

 

 

[85]           The Respondent submits there is no evidence that a jurisdictional dispute exists between the Province of Nova Scotia and the federal government for the provision of in-home care services. Both provincial health authorities and AANDC and Health Canada agree that the maximum Jeremy would receive if he lived on or off the reserve is $2,200 for home care services.

 

[86]           I do not think the principle in a Jordan’s Principle case is to be read narrowly.  The absence of a monetary dispute cannot be determinative where officials of both levels of government maintain an erroneous position on what is available to persons in need of such services in the province and both then assert there is no jurisdictional dispute.

 

[87]            I would observe that the normative standard of care in this case encompasses the provincial rules for the range of services available to persons in Nova Scotia residing off reserve. Jordan’s Principle would have been meant to include services for exceptional cases where allowed for in the province where the child is geographically located.

 

 

[88]           While there is an administratively prescribed maximum level of $2,200 per month for in-home services in Nova Scotia, the statutorily mandated policy has been found to encompass exceptional cases that may exceed that maximum.

[89]           In Boudreau, a Nova Scotia Court heard an application for a certiorari order by the Department of Community Services of the Assistance Appeal Board decision holding that Boudreau, a 34-year old adult off reserve with multiple handicaps, was entitled to receive increased home care services under the exceptional circumstances provision of the Direct Family Services Policy and also under section 9 of the SSA.

 

[90]           The Court found the application for certiorari to be valid because the Appeal Board erred in referring to Employment Support and Income Assistance Act instead of the SAA. However, the Court declined to make a certiorari order because it found the Department of Family Community Services had a clear obligation to provide “assistance” to Boudreau as required by section 9 of the SSA. In the alternative, the Court found even if the respite decision by the Department was discretionary, the facts accepted established the assistance was essential and the Department’s obligations included the additional funding requested.

 

 

[91]           The effective result in Boudreau is that a person with multiple handicaps residing off reserve was entitled to receive home services assistance over the $2,200 maximum limit which the Court observed “cannot override the legislation and regulations”.

 

 

[92]            In the case at hand, the Manager stated in cross-examination that her legal authority to fund is rooted under the Treasury Board authority referencing the applicable provincial policy. She acknowledged she was told by provincial officials that the provincial policy provides they can fund above the $2,200 level but they can’t because of the directive.  She acknowledged she was informed the Department of Family Services provincial policy says there may be exceptional circumstances but provincial officials told her there would be no exceptional circumstances recognized. Ms. Robinson stated she needed to ensure she was following the provincial policy as it is being implemented.

 

[93]           The Manager does not need to interpret the SAA and Regulations.  She was clearly informed by provincial officials of the legislatively mandated policy. She knew the legislated provincial policy provided for exceptional circumstances. She knew the provincial officials were administratively disregarding the Department of Social Services legislated policy obligations. She also was put on notice by the PLBC of this issue as they had provided her with a copy the Boudreau decision. Ms. Robinson’s mandate from Treasury Board does not extend to disregarding legislated provincial policy.

 

[94]           Nova Scotia’s Direct Family Support Policy states that the funding for respite to people with disabilities “shall not normally exceed” $2,200 per month. The Policy also states that additional funding may be granted in “exceptional circumstances”.  Finally, the Direct Family Support Policy explicitly states that First Nations children living on reserves are not eligible to services from the Province.

 

[95]           As I stated, Jordan’s principle is not to be narrowly interpreted.

 

[96]           In this case, there is a legislatively mandated provincial assistance policy regarding provision of home care services for exceptional cases concerning persons with multiple handicaps which is not available on reserve.

[97]           The Nova Scotia Court held an off reserve person with multiple handicaps is entitled to receive home care services according to his needs. His needs were exceptional and the SAA and its Regulations provide for exceptional cases. Yet a severely handicapped teenager on a First Nation reserve is not eligible, under express provincial policy, to be considered despite being in similar dire straits. This, in my view, engages consideration under Jordan’s Principle which exists precisely to address situations such as Jeremy’s.

 

[98]           I find the Manager’s finding that Jordan’s Principle was not engaged is unreasonable.

 

Did the decision-maker properly assess the request for funding?

 

[99]           The Manager took part in case conferences in which provincial health officials, First Nation officials and other AANDC and Health Canada officials took part. As a result of taking part in these case conferences, she had a full understanding of the issues and care needs Jeremy required. She was able to obtain opinions from the health assessors as to what was needed in Jeremy’s case.

 

[100]       I begin by addressing the factual issue in the PLBC request for funding.  The monetary amount is necessarily linked to the extent of care home care support required for Jeremy although not for Ms. Beadle’s personal needs who, presumably is within the normal scope of the ALP and HCCP funded home care services.

 

[101]       The Applicants have stated that the request for additional funding was for “Jeremy Meawasige’s reasonable ‘need’ for ‘homecare’ [as] 24 hours a day, 7 days a week, less the time his family can reasonable attend to his care.” [Emphasis added] This paragraph is found in the briefing note attached to the request for additional funding. On the other hand, the Respondent submits that the paragraph preceding the paragraph cited by the Applicants indicates that the request is for 24 hour care, 7 days a week.

 

[102]       It is clear from the PLBC’s submissions that at the time of the Manager’s decision, the Pictou Landing Health Centre provided the family with a personal care worker from 8:30 am to 11:30 pm from Monday to Friday, and 24 hour care over the weekends by an off reserve agency. As I understand it, the 24 hour care on the weekends was in response to the Pictou Landing Health Centre being closed over the weekend rather than the need for 24-hour home care. On the evidence, the request for in home support did not cover the overnight period during weekdays.

 

[103]       Moreover, one has to have regard for the extent of family support.  It must be remembered that, before her stroke, Ms. Beadle provided for all of Jeremy’s needs without government assistance. Ms. Beadle has recovered to some extent from her stroke and helps Jeremy as she can. Jeremy’s older brother stays overnight to also assist. When one considers the importance of Ms. Beadle to Jeremy’s communicative and personal needs, it seems to me that the family support is not inconsequential.  I find the request for Jeremy’s in home support was not for 24 hours a day, 7 days a week.

 

[104]       It is not entirely clear exactly what amount is being requested. I do note, as the Respondent pointed out, the PLBC requested it would like to be reimbursed up to the level that Jeremy would qualify for if institutionalized. This amount, as estimated by the Department of Community Services, was $350 per day. The $350 per day represents the equivalent expense to have Jeremy live in an institution. However, it is clear the PLBC was not asking to institutionalize Jeremy; rather, it was proposing that as a means of quantifying the request for funding.

 

[105]       The Manager was required to assess the factual circumstances, the submissions made and the recommendations and information provided by the in-home assessors. I conclude that the Manager erred in determining that what was being requested was 24 hour in home care. This was an unreasonable finding based on all the information provided.

 

Application of Jordan’s Principle

 

[106]        Issues involving Jordan’s Principle are new. The principle requires the first agency contacted respond with child-first decisions leaving jurisdictional and funding decisions to be sorted out later. Parliament has unanimously endorsed Jordan’s Principle and the government, while not bound by the House of Commons resolution, has undertaken to implement this important principle.

 

[107]       The PLBC is required by its contributions agreements with AANDC and Health Canada to administer the programs and services “according to provincial legislation and standards”. When Ms. Beadle suffered her stroke, the PLBC responded and provided the needed services for her and Jeremy.

 

 

[108]       The PLBC is a small First Nation with some 600 members. The exceptional circumstances here have required nearly 80% of the costs of the PLBC total monthly ALP and HCCP budget for personal and home care services. In short, this is not a cost that the PLBC can sustain.

 

[109]       Jordan’s Principle applies between the two levels of government. In this case the PLBC was delivering program and services as required by AANDC and Health Canada in accordance with provincial legislative standards. The PLBC is entitled to turn to the federal government and seek reimbursement for exceptional costs incurred  because Jeremy’s caregiver, his mother, can no longer care for him as she did before.

 

[110]       I also note that the only other option for Jeremy would be institutionalization and separation from his mother and his community. His mother is the only person who, at times, is able to understand and communicate with him. Jeremy would be disconnected from his community and his culture. He, like sad little Jordan, would be institutionalized, removed from family and the only home he has known. He would be placed in the same situation as was little Jordan.

 

[111]       I am satisfied that the federal government took on the obligation espoused in Jordan’s Principle. As result, I come to much the same conclusions as the Court in Boudreau. The federal government contribution agreements required the PLBC to deliver programs and services in accordance with the same standards of provincial legislation and policy.  The SAA and Regulations require the providing provincial department to provide assistance, home services, in accordance with the needs of the person who requires those services.  PLBC did. Jeremy does. As a consequence, I conclude AANDC and Health Canada must provide reimbursement to the PLBC.

[112]       It is to be observed that AANDC does not deny that home services be provided for Jeremy; rather it denies funding home services above the $2,200 administratively imposed provincial maximum which the Court found in Boudreau cannot override  provincial legislation and regulation.

 

 

[113]       The PLBC has met its obligations under its funding agreement with AANDC and Health Canada. The participating federal departments, particularly AANDC, have adopted Jordan’s Principle. In my view, they are now required by their adoption of Jordan’s Principle to fulfil this assumed obligation and adequately reimburse the PLBC for carrying out the terms of the funding agreements and in accordance with Jordan’s Principle.

 

 

[114]       In the alternative, much as in Boudreau, if the implementation of Jordan’s Principle is discretionary, the federal government undertook to apply Jordan’s Principle when exceptional circumstances arose.  The facts of Jeremy’s situation clearly establish the exceptional circumstances necessary to meet this requirement.  The federal government cannot deny is obligation to provide additional funding not requested by PLBC for Jeremy.

 

 

[115]       In either situation, the PLBC is, in my view, due reimbursement and additional funding from AANDC and Health Canada for Jeremy’s needs. I note both AANC and Health Canada have expressed willingness to continue to work with PLBC to resolve the situation.

 

 

[116]       Jordan’s Principle is not an open ended principle. It requires complimentary social or health services be legally available to persons off reserve. It also requires assessment of the services and costs that meet the needs of the on reserve First Nation child. The funding amount is not definitively determined in accordance with these requirements, in that the needs of Jeremy and Ms. Beadle are somewhat mixed, the case conferences did not appear to quantify the costs involved, and alternative reimbursement amounts were proposed. In result, the amount remains to be addressed by the parties.

 

[117]       I conclude the decision-maker did not properly assess the PLBC request for funding to meet Jeremy’s needs. The request for judicial review succeeds and the Manager’s decision is quashed.

 

[118]       There remains the question of whether or not, in the circumstances, reconsideration should be ordered.  Clearly, deference is due to the administrative entity that makes decisions within the realm of its expertise.

 

[119]       In Stetler v the Ontario Flue-Cured Tobacco Growers’ Marketing Board, 2009 ONCA 234 at paragraph 42, the Ontario Court of Appeal stated:

 

While “[a] court may not substitute its decision for that of an administrative decision-maker lightly or arbitrarily”, exceptional circumstances may warrant the court rendering a final decision on the merits. Such circumstances include situations where remitting a final decision would be “pointless”, where the tribunal is no longer “fit to act”, and cases where, “in light of the circumstances and the evidence in the record, only one interpretation or solution is possible, that is, where any other interpretation or solution would be unreasonable”: Giguère v. Chambre des notaires du Quebec, 2004 SCC 1 (CanLII), [2004] 1 S.C.R. 3 at para. 66.

 

 

[120]       When one considers Jordan’s Principle calls for an immediate timely response regardless of jurisdictional questions and the exceptional circumstances that arise here in Jeremy’s case, I am of the view this constitutes an exceptional circumstance warranting this Court to not remit the matter back for reconsideration but to direct the that the PLBC is entitled to reimbursement beyond the $2,200 maximum as it relates to Jeremy’s needs for assistance. The remaining question is the amount of reimbursement which I consider must be left to the parties.

 

Did the decision-maker exercise her discretion in a manner that violated section 15(1) of the Charter?

 

 

[121]       Having decided as I did, I need not consider the Charter submissions by the Applicant and Respondent.

 

Costs

 

[122]       In oral submissions, the Respondent did not oppose the Applicants’ submission for costs, should the latter be successful, acknowledging the matter to be complex but suggesting the middle range of Column 3.

 

[123]       I thank both parties for their able submissions in addressing this complex but important matter.

Conclusion

 

 

[124]       I conclude the Manager failed to consider the application of Jordan’s Principle in Jeremy’s case as required.

 

[125]       I also find the Manager’s refusal of the PLBC reimbursement request was unreasonable.

 

[126]       The application for judicial review is granted and I hereby quash the impugned decision.

 

 

[127]       I do not remit the matter back for reconsideration but direct that the PLBC is entitled to reimbursement by the Respondent beyond the $2,200 maximum as it relates to Jeremy’s needs for assistance.

 

[128]       I would award costs to the Applicants for two counsel at the middle range of Column 3.

JUDGMENT

 

THIS COURT’S JUDGMENT is that:

 

1.                  The application for judicial review is granted.

 

2.                  The May 27, 2011 decision of the Manager is quashed.

 

3.                  I direct that Applicant PLBC is entitled to reimbursement beyond the $2,200 maximum by the Respondent as it relates to Jeremy’s needs for assistance.

 

4.                  Costs for the Applicants for two counsel at the middle range of Column 3.

 

 

 

"Leonard S. Mandamin"

FEDERAL COURT

 

SOLICITORS OF RECORD

 

 

DOCKET:                                         T-1045-11

 

 

STYLE OF CAUSE:                        PICTOU LANDING BAND COUNCIL AND MAURINA BEADLE v ATTORNEY GENERAL OF CANADA

 

 

PLACE OF HEARING:                  HALIFAX, NOVA SCOTIA

 

 

DATE OF HEARING:                    JUNE 11, 2012

 

 

REASONS FOR JUDGMENT

AND JUDGMENT:                         MANDAMIN J.

 

 

DATED:                                            APRIL 4, 2013

 

 

 

APPEARANCES:

 

Paul Champ Anne Levesque	FOR THE APPLICANTS
Jonathan D.N. Tarlton Melissa Chan	FOR THE RESPONDENT

 

SOLICITORS OF RECORD:

 

Champ & Associates Ottawa, Ontario	FOR THE APPLICANTS
William F. Pentney Deputy Attorney General of Canada	FOR THE RESPONDENT