Jordan’s Principle could cover legal fees 

A legal case brought forward by a man from Fort William First Nation, on behalf of his children with special educational needs, has resulted in deeper discussion of the possibility of Jordan’s Principle being used for legal fees related to First Nations children’s access to essential services.

A Federal Court decision on the case came on January 9, after an Ottawa courtroom heard applicant Warren Schofer’s request for a judicial review of funding decisions made by ISC under Jordan’s Principle. ISC had not approved funding for legal and travel expenses related to his fight to reinstate educational assistant support for his two children, who have documented special needs.

The court granted Schofer’s appeal and outlined steps for him to be permitted to resubmit his request to ISC for reconsideration, something that Schofer’s lawyer, Gordon Campbell, said helped clarify the role of legal funding within Jordan’s Principle.

“The government repeatedly says that no particular funding is excluded from Jordan’s Principle, as long as it’s necessary in terms of advancing children’s interests for equality,” said Campbell. “But there is still, it seems, almost an unwritten nervousness around providing any funding for legal services.”

Schofer’s two children had previously been approved for support from educational assistants, which had in past years been funded federally.

But the provincial school board withdrew that funding, citing insufficient need, despite documented evidence that the children were underperforming in multiple educational categories.

Schofer had sought non-legal resolutions, but tensions escalated, and the school board banned him from school grounds and threatened him with legal action.

That led to Schofer requesting funding under Jordan’s Principle for $200,000 of legal services and $6,000 of travel expenses to reinstate the educational assistant support.

The request, and an appeal on the decision, was denied.

Though the judge noted that his analysis shouldn’t be interpreted as establishing the general availability of legal service fees under Jordan’s Principle, he did state that the Principle’s “broad and liberal interpretation supports funding ancillary services, including legal services,” noting that is only the case where evidence demonstrates that these services are linked to ensuring Indigenous children’s equal access to essential public services.

“Ultimately, the government took the position before the federal court that legal services are fundable, it’s just a question of justifying them,” Campbell said.

The case also concerned ISC’s denial of the request based on missing supporting documentation, such as missing letters of support and cost breakdowns for the legal services requested. However, ISC didn’t make any inquiry or communication about these missing documents, something that the court said breached ISC’s “heightened duty of procedural fairness.”

“I think the implications for anyone else here is that firstly, hopefully in the future the government will in all cases make inquiries to ask from all families who have filed Jordan’s Principle applications that are missing information according to the government,” Campbell said. “And secondly, legal services are something that’s on the table.”

In terms of this case, the ruling does not mean that Schofer’s case is approved - instead, the judge ruled that he has 30 days to compile professional opinions regarding the necessity of legal intervention to secure the necessary educational support, documentation supporting the amount of fees requested, and any other supporting materials for his application.

The judge also ruled that ISC must render a new decision within 48 hours of receiving the documentation - the standard timeline for non-urgent Jordan’s Principle requests, despite lengthy delays in recent months.

“We don’t know what the government’s ultimate position will be, but we now at least know what additional information the government was looking for,” Campbell said.

ISC’s final decision on Schofer’s application will not be made public.

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