Date:
20130404
Docket:
T-1045-11
Citation:
2013 FC 342
Toronto, Ontario,
April 4, 2013
PRESENT: The
Honourable Mr. Justice Mandamin
BETWEEN:
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PICTOU LANDING BAND
COUNCIL
AND MAURINA BEADLE
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Applicants
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and
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ATTORNEY GENERAL OF CANADA
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Respondent
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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:
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15.
(1) Every individual is equal before and under the law and has the right to
the equal protection and equal benefit of the law without discrimination and,
in particular, without discrimination based on race, national or ethnic
origin, colour, religion, sex, age or mental or physical disability.
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15.
(1) La loi ne fait acception de personne et s’applique également à tous, et
tous ont droit à la même protection et au même bénéfice de la loi,
indépendamment de toute discrimination, notamment des discriminations fondées
sur la race, l’origine nationale ou ethnique, la couleur, la religion, le
sexe, l’âge ou les déficiences mentales ou physiques.
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[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"
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