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Ottawa racks up $110,000 in legal bills to avoid paying for Indigenous teen’s braces

Toronto Star logo Toronto Star 2017-09-30 Bruce Campion-Smith - Ottawa Bureau

A spokesperson for Indigenous Services Minister Jane Philpott said health programs for Indigenous peoples have "room for review," but would not comment specifically on the case of an Alberta teen fighting for reimbursement of orthodontic costs. © Adrian Wyld A spokesperson for Indigenous Services Minister Jane Philpott said health programs for Indigenous peoples have "room for review," but would not comment specifically on the case of an Alberta teen fighting for reimbursement of orthodontic costs.

OTTAWA—Ottawa says health programs for Indigenous peoples have “room for review” but is making no promises to halt a court case that has cost taxpayers $110,000 and counting — all to avoid paying a $6,000 bill for a teen’s braces.

Jane Philpott, the former health minister recently appointed minister of Indigenous services, said through a spokesperson that “unacceptable” social and economic gaps facing Indigenous peoples, including health care, were the motivations in the establishment of her department.

“As we move forward with the creation of this new department, we recognize that all programs and services for Indigenous peoples have room for review,” Andrew MacKendrick said in a statement.

But the statement from Philpott’s office Friday was silent on the specific case that has raised the ire of critics, who say Ottawa is wasting tax dollars and falling down on its responsibility to look after the health of Indigenous children, all in a bid to avoid paying for a child’s orthodontic treatment.

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“It certainly gives me pause, as a lawyer, as a Canadian, as someone who works in this area, who cares about reconciliation,” said Toronto lawyer Sarah Clarke.

Clarke has taken on the case — pro bono — of Josey Willier, a 16-year-old Indigenous girl from Alberta who suffered dental problems that caused her chronic pain.

A dentist recommended orthodontic treatment, saying her problems will only worsen as she gets older to the point that she could require jaw surgery.

The costs were not covered by the Alberta Health Insurance Plan, but the teen’s mother, Stacey Shiner, sought payment under a Health Canada program that provides coverage to First Nations and Inuit people.

Yet while the teen was in pain, suffered headaches and took medication daily, Health Department bureaucrats determined that her condition was not serious enough to warrant braces, dismissing the initial application for coverage and all subsequent appeals.

Despite the refusals, her mother went ahead and had the orthodontic work done.

When her attempts to be reimbursed for her costs were rebuffed by the federal government, Shiner took the claim to Federal Court, facing off against Justice Department lawyers.

In a May ruling, Federal Court Justice Sean Harrington dismissed the mother’s claim for a judicial review.

“I find the decision that Josey’s condition was not covered by the policy was reasonable and that the procedure followed was fair,” he wrote.

“The whole point of the dental policy is to benefit children. If there are those who think the policy does not go far enough, redress should be sought from Health Canada or Parliament, not the courts,” Harrington said.

The family has appealed the case to the Federal Court of Appeal and Ottawa shows no signs of backing down.

Clarke said they want to know if a child’s pain and suffering should have any bearing on whether the treatment is covered, especially since government lawyers did not dispute the teen’s discomfort in this case.

“Decision-makers make mistakes. It happens all the time … the question becomes now that you have all this information and now that we’re all looking at this with hindsight … why are we still fighting about this?” Clarke said.

Ottawa’s legal bill for the case — first revealed by CBC News — was $110,336 for the period from January 2016 to April 2017. The ongoing legal challenge means that tally will only grow.

“That bill will go up. They have to review our factum, they’ve got to prepare their own factum, they need to prepare for the hearing, they need to attend the hearing. All of that costs time and money,” Clarke said.

It’s a case that tests the boasts by Justin Trudeau’s Liberal government about ensuring equality for Canada’s Indigenous peoples, said Cindy Blackstock, executive director of the First Nations Child & Family Caring Society.

“What I want to see is real change on the ground in children’s lives. Unfortunately so far there has been a lot of symbolism, a lot of statements but not a lot of action,” Blackstock said in an interview.

It’s not an isolated case. The Star revealed in June that Ottawa had spent $707,000 in legal fees since January 2016 fighting a Canadian Human Rights Tribunal order that insisted the government stop discriminating against Indigenous children in health and social services.

The Liberals themselves last fall backed a motion in the House of Commons that called on the government to comply with that ruling.

“I measure reconciliation at the level of children. What I see is this ongoing litigation,” Blackstock said.

The decision to mount a legal battle made no sense, she said, either medically — to deter the teen from getting necessary orthodontic work — or financially for taxpayers.

New Democrat MP Charlie Angus said it’s “absolutely perverse” that the federal government devotes time and money to blocking health services to Indigenous children.

“This is the real face of reconciliation,” said Angus.

“We have a government that goes out and tells Canadians that they’re building a brand new relationship. But they’re following the same pattern that’s gone on for decades, which is to deny children rights and fight them in court all the way if necessary.”

With files from Julien Gignac

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