Federal judge deems Ottawa's refusal of Jordan's Principle funds to renovate mouldy home 'unreasonable'

A federal court has overturned and granted a judicial review of Indigenous Services of Canada's (ISC) decision to deny an Oneida Nation of the Thames woman funding to renovate her mould-contaminated home, which she says has caused her grandchildren's asthma symptoms to worsen.

In her written decision, Justice Ann Marie McDonald said ISC took an "unreasonably narrow approach" in its refusal for funding Joanne Powless requested through Jordan's Principle as the primary caregiver for her granddaughters, aged eight and 10.

The program is designed to ensure First Nations kids get the medical care and social services supports they need in a timely manner, with the provinces and Ottawa later sorting out jurisdictional battles over who is responsible for the bill.

Powless, who lives on the territory west of London, Ont., has spent three years asking the agency to cover renovation costs of almost $200,000 to remove mould and fix deteriorating ceilings and walls in her home, along with temporary relocation, food and personal hygiene items.

Despite documentation from the children's pediatrician, and contractors explaining the scale of the mould and how its affecting their health, Ottawa rejected Powless's application twice. It explained that mould remediation services are outside the scope of Jordan's Principle criteria because they're also not available to the general Canadian public.

"It was unreasonable for ISC to deny the request by narrowly framing it as a housing remediation request, rather than assessing it through a substantive equality lens and the health and best interests of the children, as Jordan's Principle requires," McDonald wrote in her July 10 decision.

"The request was grounded in serious health concerns, and the evidence shows that no viable alternatives were available. ISC relied on the $200,000 cost as a reason for denial, but this reliance was misplaced."

McDonald said there is no evidence that Jordan's Principle has monetary limits or that the quoted cost was inflated or unreasonable, and ordered ISC to reconsider its decision which she said "reflects an inconsistent application" of the program.

ISC uses substantive equality to assess whether requests should be funded, which requires the responses to be tailored to unique causes of a specific group's historical disadvantage, geographical and cultural needs and circumstances, its website states.

Powless's lawyer David Taylor said McDonald's decision indicates minimal progress and he hopes ISC will make a quick decision ruling in his client's favour this time.

"This is obviously a very concerning situation. This house has been compromised by mould for more than three years," he said. "Hopefully [ISC's] decision will be an approval based on the federal court found were very serious circumstances these kids are facing."

Powless previously told CBC News that her granddaughters frequently get sick, with multiple visits to the emergency room and have missed school as a result.

"It's very frustrating and I feel bad as a grandma that I have to keep living here with these two little girls. I wish I could just pick up and leave and take them to a healthy place but I got nowhere else to take them," she said in May.

Housing shortages and overcrowding have been ongoing issues on Oneida Nation of the Thames for many years. It's also had a boil-water advisory in effect since 2019 that became long-term in September 2020.

Taylor said this case speaks to a growing pattern of "similarly narrow perspectives" in denials of Jordan's Principle funding, especially in recent months.

"There's a real need for Indigenous Services Canada to be taking a serious look at its current approach to Jordan's principle and that's in particular because we're dealing with First Nations kids who by definition are in vulnerable circumstances," he said.

"We should not be waiting for more judicial decisions to have to continue highlighting this, it's something that should be addressed directly and promptly."

The family, meanwhile, is waiting for ISC's redetermination with the hopes of getting the money so the renovation work can be finished before winter, said Taylor.