ABORIGINAL LEGAL ISSUES e-newsletter

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1 ABORIGINAL NEWSLETTER 12 JUNE 2013 ABORIGINAL LEGAL ISSUES e-newsletter CASES CANADA Pictou Landing Band Council v. Canada (Attorney General), 2013 FC 342, Federal Court of Canada (Mandamin J.), April 4, 2013 The Federal Court of Canada granted the Pictou Landing Band Council s ( PLBC ) and Ms. Maurina Beadle s ( Ms. Beadle ) application for judicial review of the decision made by the Manager of Social Programs with Aboriginal Affairs and Northern Development Canada ( AANDC ) denying reimbursement to PLBC for in-home care to Mr. Beadles s son, Jeremy Meawasige ( Jeremy ), beyond the normative standard of care. The Federal Court of Canada held that Jordan s Principle applied. Ms. Beadle is a member of the Pictou Landing First Nation. Jeremy has multiple disabilities and requires extensive care. Ms. Beadle had been Jeremy s primary caregiver until she suffered a stroke in May After Ms. Beadle s stroke, the PLBC, the elected government body of the Pictou Landing First Nation that makes decisions with regard to the allocation of funding received from the federal government, started providing 24 hour care to Jeremy and his mother. As per Pictou Landing s Health Care assessment of Jeremy s needs, he received in-home services from 8:30 a.m. to 11:30 p.m. Monday to Friday and 24 hour care on the weekends. The costs to cover Jeremy s needs represented 80% of the PLBC s monthly budget for personal and home care services funded by the AANDC. Therefore, the Health Director at Pictou Landing s First Nation Health Care Centre ( PLFN Health Care Centre ) contacted the Atlantic Regional Home and Community Care Coordinator at Health Canada as she believed Jeremy s case met the criteria s of Jordan s Principle. 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

2 2 ABORIGINAL NEWSLETTER 12 JUNE 2013 on his First Nation community. The child died before the dispute could be resolved, without ever having had the opportunity to live in a family environment. 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. 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. According to a departmental directive, the Province could offer a maximum of $2,200 per month for in-home care services to a child with similar needs living off reserve. The Province took the position that the same amount should be offered to a child living on reserve. Furthermore, the Applicants claimed that the Manager based her decision on a misapprehension of the request made by the PLBC, as well as a flawed fact finding process. According to Applicants, the Manager misunderstood the request made to her. It was argued that the communications between the PLBC and the Manager demonstrated that the request was for funding corresponding to 24 hour in-home care services, less the time Jeremy s family attended to his care. However, the Applicants contended that the Manager based her decision on the misconception that the request was being made for funding corresponding to 24 hours, 7 days a week in-home care services. The Applicants argued that this misapprehension of the request was an error of law. As such, the Applicants argued that the appropriate standard of view in the case of an error of law is one of correctness. However, the Applicants also submitted that the Federal Court of Canada has held that the reasonableness standard may apply in cases where the Government of Canada exercises its discretionary power in reaction to funding agreements with the First Nations Bands. As a result, the Health Director at PLFN Health Care Centre formally requested additional funding from Health Canada and the AANDC to allow the PLFN Health Care Centre to continue providing services to Jeremy and his mother. The Manager for Social Programs for the AANDC delivered her decision on behalf of the AANDC and Health Canada. She indicated that Jeremy s case did not engage the application of Jordan s Principle as there was no jurisdictional dispute between the Provincial and Federal governments in the case at hand. Consequently, the request for funding could not exceed the amount of $2,200 per month which represented the normative standard of care. In response to the Manager s decision, the PLBC and Ms. Beadle ( Applicants ) filed an application for judicial review. The Applicants presented many arguments against the Manager s decision. Firstly, the Applicants argued that the Manager erred in law when she disregarded the decision in Nova Scotia (Department of Community Services) v Boudreau, 2011 NSSC 126, 302 NSR (2d) 50 ( Boudreau ), when applying the Nova Scotia Social Assistance Act to the case at hand. Finally, the PLBC submitted that the denial of additional funding by the AANDC and Health Canada was discriminatory and contrary to section 15(1) of the Charter, since the decision did not take into consideration the right of people living on reserve to equal benefits with those living off reserve. The Applicants submitted that the appropriate standard of review for a Charter issue was one of correctness. The Respondent argued that the appropriate standard of review applicable to the Manager s decision was one of reasonableness. As per the Respondent, the Manager s decision related to a question of fact, as she had to determine Jeremy s eligibility with regard to the request for additional funding. The Respondent stated that it had been established in Dunsmuir v New Brunswick, 2008 SCC 9, that a question of fact or a question of fact and law will be subject to the reasonableness standard of review. The Respondent argued that Jordan s Principle was not engaged as no jurisdictional dispute existed, since both government entities agreed that Jeremy was entitled to receive the equivalent

3 3 funding that a person in a similar situation living off reserve would receive. Thus, the Respondent argued that the Manager had properly assessed PLBC s request, and that it had been reasonable for the Manager to conclude that the request was for 24 hour in-home care services. Finally, the Respondent disputed the application of section 15(1) of the Charter as the benefits in question were not prescribed by law. The Federal Court of Canada addressed the following three issues: 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? The Federal Court of Canada agreed with the Respondent that the standard of review applicable to the Manager s decision which was a question of mixed fact and law was one of reasonableness. With respect to the issue of whether Jordan s Principle was engaged in this case, Justice Mandamin stated: 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. In deciding that Jeremy s case engaged Jordan s Principle, Justice Mandamin held that: I do not think the principle in 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.

4 4 ABORIGINAL NEWSLETTER 12 JUNE 2013 Justice Mandamin further stated that the Nova Scotia s Direct Family Support Policy offers a maximum of $2,200 per month to Nova Scotians for in-home services with additional funding available in exceptional circumstances. However, the policy also stated that the services offered by the Province were not available to First Nations children living on reserves. This meant a person with multiple handicaps living off reserve was entitled to receive additional funding if his needs were deemed exceptional. However, in the present case, such additional funding was denied to Jeremy living on a First Nation reserve. As per the Federal Court, this situation engaged Jordan s Principle. Therefore, Justice Mandamin found the Manager s decision in which she indicated that Jordan s Principle was not engaged was unreasonable. Furthermore, with regard to the assessment of the request by the Manager, the Federal Court found that the Manager erred in finding that the request was being made for 24 hours a day, 7 days a week in home care. Further, Justice Mandamin, relying on Stetler v Ontario Flue-Cured Tobacco Growers Marketing Board, 2009 ONCA 234, chose not to remit the matter for reconsideration, as the case constituted an exceptional circumstance. Justice Mandamin stated: 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. As such, in applying Jordan s Principle to Jeremy s case, the Federal Court held that PLBC is entitled to be reimbursed by the AANDC and Health Canada, and to receive additional funding as: 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 [Social Assistance Act, RSNS 1989] 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. Since the Federal Court granted the application for judicial review and quashed the Manager s decision, it did not consider the Charter submission. Therefore, the Federal Court substituted its decision to the one made by the Manager, ordered that the PLBC was entitled to be reimbursed beyond the $2,200 maximum and awarded the Applicants their costs. Decisions available here. Isabella Mentina Associate Ottawa imentina@

5 5 ACADEMIC INTEREST AND BOOK REVIEWS The June July 2013 issue of Canada s History contains the following articles and book reviews of potential interest: ARTICLES: Cameron, Charlotte, The Running Warrior [Alex Decoteau] Cree athlete continues to inspire people today. Careless, James, Blasting through the Past Touring some of the Niagara Peninsula s best War of 1812 sites BOOK REVIEWS: Brown, Stephen R., The Last Viking: The Life of Roald Amundsen (Douglas & McIntyre, Vancouver 2012, 379 pp.) Reviewed by A. Brian Peckford Morassutti, William (ed.), Imagining Canada: A Century of Photographs Preserved by The New York Times (Doubleday Canada, Toronto, 2012, 240 pp.) Reviewed by Mark Reid

6 ABORIGINAL LAW GROUP National Leader Kenneth J. Tyler Vancouver Regional Leaders Brad J. Pierce Calgary Yvan Houle Montréal Cynthia Westaway Ottawa Adam Chamberlain Toronto Kenneth J. Tyler Vancouver BORDEN LADNER GERVAIS LAWYERS PATENT & TRADE-MARK AGENTS Calgary Centennial Place, East Tower 1900, rd Ave S W Calgary, AB, Canada T2P 0R3 T F Toronto Scotia Plaza, 40 King St W Toronto, ON, Canada M5H 3Y4 T F This e-newsletter contains only general information about Aboriginal legal issues and Aboriginal claims to lands and resources. It is not legal advice and should not be relied on as such. Any comments contained in the e-newsletter concerning the interpretation or implications of court decisions, legislative changes, or other matters are based upon preliminary impressions and may not represent our considered views. We do not represent or warrant the accuracy of the content of the e-newsletter and assume no responsibility for errors or omissions in it. Neither Borden Ladner Gervais LLP nor any of the e-newsletter s editors or contributors shall be liable for any loss or damages suffered as a result of any reliance upon information or opinion contained in the e-newsletter, nor do we warrant the accuracy or reliability of the contents of any of the Internet sites or other sources to which we may refer in the newsletter. This e-newsletter is provided to contributors, partners, associates and staff members and clients of Borden Ladner Gervais LLP, and selected others. It is not intended for public distribution. You may save or print off the visible text of the e-newsletter for your own use and that of your firm, office, or government agency, but you may not otherwise reproduce any part of the e-newsletter without our permission. Unless specified to the contrary, the contents of this e-newsletter are protected by copyright. The authors of the material in the e-newsletter assert their moral rights. The content of the Internet sites to which the e-newsletter provides links may be subject to copyright and other intellectual property rights, and you are responsible for any use you may make of the contents of such sites. Borden Ladner Gervais LLP claims no rights to the Internet sites or other sources referred to in the e-newsletter, unless they are identified as the property or work product of Borden Ladner Gervais LLP or its partners, associates, consultants, or employees. Montréal 1000, De La Gauchetière St W Suite 900 Montréal, QC, Canada H3B 5H4 Tél Téléc Ottawa World Exchange Plaza 100 Queen St, Suite 1100 Ottawa, ON, Canada K1P 1J9 T F (Legal) F (IP) ipinfo@ (IP) Vancouver 1200 Waterfront Centre 200 Burrard St, P.O. Box Vancouver, BC, Canada V7X 1T2 T F Waterloo Region Waterloo City Centre 100 Regina St S, Suite 220 Waterloo, ON, Canada N2J 4P9 T F F (IP) 2013 Borden Ladner Gervais LLP Borden Ladner Gervais LLP is an Ontario Limited Liability Partnership.