Background
Schofer v. Canada (Attorney General), 2025 FC 50 is the first case to challenge a denial by Indigenous Services Canada (ISC) of an application for ancillary funding under Jordan's Principle. Jordan's Principle is a child-first principle that ensures First Nations children can access essential services available to other children "without delays, denials, or disruptions caused by jurisdictional disputes between federal and provincial governments or departments."
In two prior decisions, the Federal Court was asked to review decisions on applications for essential services funding under Jordan's Principle: Malone v Canada (Attorney General), 2021 FC 127 and Pictou Landing Band Council v Canada (Attorney General), 2013 FC 342. In these prior cases, the Court found a requirement to interpret and apply Jordan's Principle "broadly and liberally rather than narrowly, so that it can effectively address the unique hardships confronting First Nations children." However, as noted, this is the first case where the Court was asked to review a decision on an application for ancillary funding under Jordan's Principle with regard to this approach.
The case arose after Mr. Schofer, on behalf of his two children (all status Indians under the Indian Act and members of Fort William First Nation in Alberta), challenged ISC's refusal to provide ancillary Jordan's Principle funding for legal fees and associated travel expenses (a total of $206,000).
Both children have special needs and require specialized educational support. Funding from ISC was approved for Educational Assistant support for both children for the 2022-2023 and 2023-2024 school years. However, in March 2023, the provincial school board refused to implement that support. Mr. Schofer argued that legal intervention (and thus associated legal and travel fees) was necessary to compel the school board to restore the previously approved support. These fees were the ancillary funding at issue.
Initial decision from ISC (June 19, 2023): ISC issued an initial decision denying Mr. Schofer's application under Jordan's Principle because the documentation Mr. Schofer provided did not demonstrate a "direct link" between the expenses at issue and the children's unmet health, social or educational needs. Mr. Schofer appealed this denial to an Appeals Committee.
External Expert Review Committee (July 4, 2023): The Appeals Committee upheld the denial on similar grounds:
- The Committee found there was no professional documentation linking the legal services to the children's needs.
- It found there was insufficient cost justification.
- Certain members of the Appeals Committee found the children's needs to be "mild."
The Committee ultimately concluded that the legal fees incurred by Mr. Schofer, which arose from the resulting legal disputes, fell outside the scope of Jordan's Principle.
Mr. Schofer applied to the Federal Court for judicial review of the Appeals Committee's decision.
Federal Court's decision
On judicial review, Mr. Schofer contended first that the decision was unreasonable because it adopted an overly narrow interpretation of Jordan's Principle, and second, that the reasons provided by ISC were insufficient and constituted a breach of procedural fairness.
1. Reasonableness of substantive decision
The Court found ISC's substantive conclusion—that there was insufficient evidence of a direct link between the requested legal fees and the children's unmet needs—to be reasonable within the meaning of the law. In other words, although the Appeals Committee had meaningfully grappled with the request as documented in the information provided by Mr. Schofer, it identified important evidentiary gaps (i.e. missing letters of support, no itemized breakdown of fees, and no demonstration that litigation was the necessary next step).
The Court therefore did not state that legal services could never form part of an entitlement under Jordan's Principle, but instead stated that establishing, through documentation, a direct link between those fees and the children's unmet needs would be required. The Court was also of the view that Mr. Schofer may not have fully demonstrated that he had attempted to deal with the dispute regarding the denial of EA support under existing school board policy before resorting to legal avenues.
2. Breach of procedural fairness
Despite the decision's substantive reasonableness, the Court found the decision procedurally unfair because ISC did not provide Mr. Schofer with any notice of the specific documentation it required to establish the link necessary to justify an entitlement under Jordan's Principle to the fees at issue. The Court found that this failure to notify Mr. Schofer of these evidentiary expectations—despite a policy statement saying ISC would follow up if documentation was missing—violated the heightened duty of procedural fairness applicable under Jordan's Principle.
The Court stressed that Jordan's Principle decisions require a high degree of fairness because of the profound stakes at play for First Nations children, and the explicit objective underpinning Jordan's Principle to remove barriers to access essential services.
3. Remedy
The Court set aside ISC's decision and ordered the matter returned for redetermination. Mr. Schofer was also allowed 30 days to provide additional documentation to support his claim. ISC is required to render a new decision within 48 hours of receiving that documentation, and do so with an understanding that legal fees can be part of Jordan's Principle, should the documentation sufficiently demonstrate a direct link between the fees claimed and the relevant goal of ensuring access to the services at issue. The Court also awarded $3,000 in court costs to Mr. Schofer.
Analysis of key points
1. Scope of Jordan's Principle
As stated above, Jordan's Principle is intended to ensure First Nations children receive essential services without delays, especially those caused by jurisdictional disputes. The framework must be implemented in the context of substantive equality to effectively address the unique systemic disadvantages faced by First Nations children.
Although funding requests under Jordan's Principle may more typically focus on direct educational, health, or social supports, this case is significant in that the Court did not rule out the possibility that ancillary supports—including legal services—may be eligible to be funded if a claimant can properly demonstrate they are necessary to ensure a child can access needed services. The decision further clarifies that even legal fees are not categorically excluded under Jordan's Principle, but evidence must be provided by the applicant to demonstrate that the fees are directly tied to the unmet needs at issue.
2. Procedural fairness and "high stakes" context
The most significant aspect of the Federal Court's decision may lie in the Court's ruling on procedural fairness. Because Jordan's Principle deals with vulnerable persons and the provision of essential services, the Court found that the duty of fairness owed, which is contextual in nature, is on the "high end" of the spectrum within the meaning of the Supreme Court's seminal decision in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817.
As noted above, the Court found that ISC breached this duty of fairness by failing to inform Mr. Schofer of the deficiencies in the documentation he did provide—for example, that professional letters linking the children's educational needs to the need for legal action were required, or that an itemized quote for the legal fees was also needed. Without that notice, Mr. Schofer lacked a fair opportunity to rectify any deficiencies in his application.
The Court specifically found this situation different from other contexts such as immigration applications, pointing out that Jordan's Principle explicitly aims to ensure substantive equality and minimize administrative barriers for First Nations children accessing needed supports. That substantive goal also underpins the higher procedural duty of fairness that is owed.
3. Practical implications
For applicantsseeking funding under Jordan's Principle, the Court's decision highlights the importance of providing clear documentary evidence when claiming for ancillary services. While applicants must "put their best foot forward" in the sense of demonstrating that such services are the required means to secure essential supports which are already approved, ISC cannot take a purely passive approach to receiving that documentation. The decision also suggests that applicants should exhaust all administrative avenues before resorting to legal action.
For ISC, the Court's decision emphasizes the requirement to apply a heightened duty of procedural fairness given the context of Jordan Principle. ISC must actively inform applicants if their documentation is missing any key elements—particularly since Jordan's Principle's purpose is to overcome, not reinforce, systemic barriers.
Although as noted above, the Court did not find that there is an absolute right to claim legal fees under Jordan's Principle, it did affirm that such funding can and should be assessed on a case-by-case basis. Decision-makers must remain open minded toward all solutions that might help Indigenous children receive the services to which they are entitled to in a particular circumstance.
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