Grandmother challenges Ottawa's refusal to apply Jordan's Principle to renovate mouldy home

A woman from Oneida Nation of the Thames is appealing a decision that denied funding to renovate a mould-contaminated home that she says contributed to severe asthma symptoms in her grandchildren.

For three years, Joanne Powless who lives on the territory west of London, Ont., has been asking Indigenous Services of Canada (ISC) to cover renovation costs of almost $200,000 to remove mould and fix deteriorating ceilings and walls in her home.

She's also asking that six months of temporary relocation costs be covered, plus food and personal hygiene items for the family.

The funding request was made through a program called Jordan's Principle, which is designed to ensure Indigenous 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 which is responsible for the bill.

Despite documentation from the children's pediatrician, and contractors explaining the scale of the mould, Ottawa rejected Powless' application twice. It stated that mould remediation services aren't available to the general Canadian public, and so the funding is outside the scope of Jordan's Principle criteria.

"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," Powless, the girls' primary caregiver said.

"This is the issue we live with every day and they get sick monthly ... my little girls shouldn't be sick every month. I just can't get anywhere with the application, I keep getting the runaround."

On Thursday, Powless and her lawyer will be in a federal court to file for a judicial review hopeful that a judge will order Ottawa to fix the home and make it safe for the children.

"Home is supposed to be your safest place of refuge and home is what's making Joanne's granddaughters sick," said lawyer David Taylor who is representing the family.

"This started when the children were five and seven and now they're eight and 10, that's a long time that passes in the life of a child to live under such difficult circumstances, and it's the kind of thing we say should be addressed immediately."

Powless said ISC's Environmental Public Health Officer told her the house wasn't properly ventilated from the beginning and a ceiling leak during the pandemic caused mould to grow. She said she applied for renovation loans but they were never approved.

The Attorney General of Canada has responded to the request for a judicial review. In court documents, it said the request should be dismissed on the basis that the decision was reasonable and procedurally fair, and "the decision-maker provided cogent, clear, and intelligible reasons for the denial."

"In this case, ISC is not aware of any existing government service available to the general public that currently funds mould remediation," it wrote.

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.

"Substantive equality is not an open-ended concept. Jordan's Principle does not create a carte blanche regime where anything requested must be granted, nor does it set up a situation where a pressing need, however valid, generated automatic approval," it wrote in its legal response.

But Taylor said the ISC's decision is inconsistent with the Human Rights Tribunal's ruling, which emphasizes that many services Indigenous children require aren't available anywhere on or off the reserve, putting them at a further disadvantage.

"The Canada Mortgage Housing Corporation (CMHC) does have programs to address these kinds of services. It's just the amount of funding provided is willfully inadequate to meet the kinds of severe needs that we see in this case," Taylor said.

Taylor noted a funding cap for such a program through CMCH would have a capacity of $60,000, which wouldn't be enough for Powless's renovation and relocation needs.

He added that Powless received a $25,000 loan from the Oneida Nation, but because she is a full-time caregiver living on income supports, it will be a challenge for her to pay it back later.

For Powless, the last three years have been an uphill battle and her granddaughters' asthma has resulted in hospital visits, forced them to regularly miss school and activities of a normal childhood, she said.

"There are several homes in this community that are all boarded up and some people have abandoned their homes because they couldn't get loans and there's no money to fix these houses, so our people don't have healthy places to live," Powless said.

"I hope the judge will look at the case with open eyes and see the unjust happening. I just need help for my grandchildren."

Oneida Nation of the Thames has had a housing shortage for many years, with issues of overcrowding an ongoing issue. It's also had a boil-water advisory in effect since September 2019 that became long term in September 2020.