Jordan’s Principle provides that where a government service is available to all other children, and a jurisdictional dispute regarding services to a First Nations child arises, the government department of first contact pays for the service and can seek reimbursement from the another government or department after the child has received the service.
It is aimed at preventing First Nations children from being denied essential public services or experiencing delays in receiving them.
In a key Jordan's Principle decision in Schofer v. Canada (Attorney General), 2025 FC 50, released on Jan. 9, Justice Russel Zinn found that ISC owes applicants making requests under Jordan’s Principle a heightened duty of procedural fairness considering the high stakes in such cases.
“The duty of procedural fairness owed to the applicants in Jordan’s Principle decisions is inherently high due to intersection of several factors: the Principle’s requirement of substantive equality, the minimal procedural guidance in governing frameworks, and the profound stakes for First Nations children seeking essential services,” the judge wrote.
The applicant, Warren Schofer, and his two children are residents of Alberta and status Indians under the Indians Act.
Both of Schofer’s children have conditions that require specialized educational support, as assessed and confirmed by multiple medical professionals, including psychologists, physicians and educational specialists between 2021 and 2023.
In May 2022, ISC approved Jordan’s Principle funding for educational assistant (EA) support for both children for the 2022-2023 school year. The local provincial school board implemented the support program with the federal funding for that school year.
In June 2023, ISC approved similar funding for the 2023-2024 school year.
However in March 2023, the board announced it would terminate its implementation of the EA support. It did so without providing contrary medical evidence showing sufficient improvement in the children’s learning capabilities and despite the continued availability of federal funding.
Schofer attempted to advocate for his children’s educational needs, including at a meeting with the board’s superintendent, deputy superintendent and representatives from the Nokwiin Tribal Council.
However, he was unsuccessful and was eventually banned from entering school grounds by the board.
The board also threatened him with a defamation lawsuit.
In June 2023, the applicant sought Jordan’s Principle funding for $200,000 in legal services and $6,000 in associated travel expenses to secure implementation of the previously approved EA support.
ISC denied Schofer’s request, noting that the supporting documentation he had provided did not directly link the requested financial supports to the unmet health, social or educational needs of the children.
ISC noted that the documentation lacked letters of support from medical or educational professionals establishing a connection between the legal services and the children’s needs required under a presumptive standard outlined in ISC’s Back to Basics (B2B) policy.
On an appeal from the initial decision, an expert review committee also identified the absence of documentation from medical or educational professionals and noted that the cost documentation submitted by the applicant was insufficient, as there were no itemized quotes or estimates in the applicant’s submissions to substantiate the requested amount of funding.
The committee found that assessing the merits of pursuing a legal resolution of the issue with the board fell outside its jurisdiction and that Jordan’s Principle aims to ensure substantive equality in service delivery, not “to get involved with legal issues.”
On June 30, 2023, the chief science officer of ISC adopted the Appeals Committee’s recommendations and upheld the initial denial, noting that the request did not meet minimum requirements as the service was “not directly linked to the identified unmet educational, social or medical needs of the children.”
The applicant sought judicial review of the decision, arguing that ISC’s conclusion that there was insufficient documentation to demonstrate a “direct link” between the children’s needs and the requested legal services was unreasonable.
He also argued that both the initial and final appeal decisions were procedurally unfair as ISC provided no explanation of documentary deficiencies, offered no guidance on required additional information, and failed to implement the required clinical case conferencing procedure outlined in the standard operating procedures (SOPs).
Justice Zinn rejected arguments that ISC’s decision was unreasonable, noting that it was entitled to conclude that Schofer’s evidence did not adequately establish the required direct link between the children’s needs and the requested legal services.
He noted that the medical and educational documentation submitted by the applicant provided “no reasoned connection between these needs and the necessity of seeking legal intervention to implement them.”
He also noted that the record revealed no attempt to exhaust the prescribed administrative remedy under the school board policy, which provides resolution mechanisms specifically covering “special education placement” disputes with the board.
On the issue of procedural fairness, the court noted that the institutional choice of procedures supported heightened procedural obligations.
The judge noted that ISC’s SOPs and B2B policy provided minimal guidance on procedural requirements.
The court held that this absence of detailed procedural safeguards should be interpreted in light of the Jordan’s Principle’s fundamental commitment to substantive equality and an explicit directive in the SOPs and B2B to minimize administrative barriers.
Justice Zinn also observed that a statement on ISC’s application form regarding follow-ups for missing supporting documents indicated the agency’s intent to provide higher levels of procedural safeguards.
He added that the stakes for affected individuals reinforce the need for robust procedural protection.
“Jordan’s Principle was specifically established to address systemic neglect of essential services for First Nations children caused by jurisdictional disputes. Consequently, the stakes in applications for Jordan’s Principle are inherently high,” the judge wrote.
The judge found that this heightened duty of procedural fairness was breached through ISC’s failure to provide pre-decision notification regarding essential documentary requirements.
He noted ISC had made no inquiry or communication about missing letters of support.
The judge also observed that the appeals committee had identified specific deficiencies, including the absence of justification for the quantum of fees sought, but had not provided the applicant with prior notice that such documentation was required.
The court found that this omission is particularly significant given ISC’s failure to follow through on its commitment to notify applicants of missing documents and the minimal administrative burden such notification would impose.
The judge noted that the novel nature of implementation-related ancillary funding requests and the explicit mandate in Jordan’s Principle and relevant policy documents to minimize barriers to access also underscored the significance of the omission.
Justice Zinn highlighted that the applicant had secured prior funding approvals and submitted extensive medical documentation demonstrating his children’s educational needs.
“Despite these efforts, the Applicant was effectively precluded from addressing the specific deficiencies that the Appeals Committee later deemed important, as he was not informed of the evidentiary requirements for this type of ancillary funding request in advance,” the judge wrote.
He observed that proper notification would have helped the applicant know the case to meet and given him the chance to meet it.
“The ISC’s passive approach to procedural fairness fundamentally undermines Jordan’s Principle’s substantive equality objectives, particularly where, as here, the implementation of federally approved funding meets provincial resistance. This type of jurisdictional impasse, and its detrimental impact on First Nations children, is exactly what drove Parliament to adopt Jordan’s Principle in 2007,” the judge wrote.
The court observed that a decision-maker committed to substantive equality under Jordan’s Principle must ensure that they provide procedures that offer reasonable facilitation, rather than passive obstruction, to the identification and approval of necessary services for First Nations children.
Justice Zinn allowed the judicial review application and directed ISC to determine the applicant’s request anew.
Counsel for the applicant, Gordon Scott Campbell of Aubry Campbell MacLean, said that the court’s direction that ISC provide pre-decision notification where it requires additional information “will hopefully benefit all Indigenous children in Canada seeking to access Jordan’s Principle funding.”
Indigenous Services Canada did not immediately respond to a request for comment.
Counsel for the respondent, Attorney General of Canada, was Taylor Andreas of Justice Canada.
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