Ottawa spent $110K in legal fees fighting First Nations girl over $6K dental procedure

The federal Liberal government spent more than $110,000 fighting a First Nations girl in court in an attempt to block payment for orthodontic treatment, according to documents released under access to information.

'As a taxpayer, I'm absolutely floored,' First Nations advocate Cindy Blackstock says

Jane Philpott, now the Minister of Indigenous Services, was minister in charge of the First Nations and Inuit health benefits program while the government fought in court to defend her department's decision to deny coverage for Josey Willier's orthodontic treatment. (Fred Chartrand/Canadian Press)

The federal Liberal government has spent more than $110,000 fighting a First Nations girl in court to block payment for orthodontic treatment that cost just $6,000, according to documents released under the Access to Information Act and shared with CBC News.

Josey Willier, a Cree teen living in Calgary, had ongoing problems with her teeth that resulted in chronic aching pain in her lower gums. 

She took over-the-counter pain medication daily for two years because of extreme discomfort associated with impacted teeth and a severe overbite, among other ailments. A Calgary-based orthodontist, Mark Antosz, recommended braces to avoid invasive jaw surgery in the future.

Stacey Shiner, the child's mother, sought payment for the braces under the First Nations and Inuit health benefit program, but was denied by Health Canada, the department that administers the insurance plan. She appealed three times to no avail, and ultimately took the case to Federal Court.

Between January 2016 and April 2017, the government spent $110,336.51 in legal fees as part of its fight to avoid paying for the procedure. The final cost will likely be higher, as a decision on this case was not handed down until May.

'Jane Philpottis a medical doctor, and she goes along with using lawyers to deny services—that's simply perverse, it's bordering oninstitutional malevolence.'- NDP MP Charlie Angus

The judge assigned to Willier's case, Sean Harrington, ultimately found in favour of the government.

In his judgment, Harrington said he found it "reasonable" that Willier's treatment was not covered. "The procedure followed was fair.... There is nothing in the record to suggest that any child in Canada, First Nations or not, would have been treated any differently than Josey was." That decision is now being appealed.

Last fall, the Liberals voted to support an NDP motion that called on the government to stop fighting Indigenous families who are seeking access to services covered by Ottawa — but only two days after that vote, government lawyers were back in court fighting Shiner.

"This was an opportunity for this government to show that they were going to make reconciliation real on the ground, and instead it's the same old brass knuckles approach to squashing basic treatment for children," NDP MP Charlie Angus said in an interview.

'As a human being, I think it's immoral'

Cindy Blackstock, the executive director of the First Nations Child and Family Caring Society and an advocate for equal treatment of Indigenous children, was an intervener in Shiner's case.

"I think it's atrocious," she told CBC News. "As a human being, I think it's immoral that Canada would not fund services where two concurring pediatric orthodontists agree that without treatment this girl will experience chronic pain and will have difficulty eating and talking.

"As a taxpayer, I'm absolutely floored that Canada would spend $110,000 defending [against] a $6,000 investment to help a child. They could have used that money to buy 18 children in medical need the orthodontic services they needed."

Cindy Blackstock, executive director of the First Nations Child and Family Caring Society, says she is 'absolutely floored' about just how much Ottawa spent fighting the Willier case in court. (Adrian Wyld/Canadian Press)

Health services for First Nations people living on reserve are funded almost exclusively by the federal government. While provincial health care plans often exclude dental care, the federal program for First Nations includes regular cleanings, X-rays, root canals and other procedures.

The First Nations health program also covers certain orthodontic treatments, but only when the case is deemed medically necessary. A claimant must have "severe and functionally handicapping malocclusion" (overbite) to be eligible. The department determined Willier's case fell short after it consulted with four orthodontists of its own choosing — but those doctors did not physically examine Willier.

Health Canada defends decision

In a statement Thursday, Health Canada defended its decision to deny care, adding in 2014-15 it funded approximately $5 million in orthodontic treatment for other kids.

"In this case, the issue is not about the monetary value or affordability of the claim," the statement said. "The issue is that there is no clinical evidence to support approval of the claim under the Non-Insured Health Benefits Program (NIHB)."

Health Canada also said the program for First Nations children is more generous than what is available to others. "The NIHB program covers the full cost of orthodontic treatment when it is medically necessary ... whereas private plans typically cover only one-quarter to one-third of costs."

Blackstock said she doesn't believe the government should cover orthodontics to fix cosmetic issues, and she is aware of departmental concerns over opening the "floodgates" for orthodontic care.

"But if there are other children out there who can't eat or talk properly without chronic pain, they're welcome to all my tax dollars," she said.

"We are saying, if there's a medical need, and where the alternative is a far more costly intervention [such as surgery], that the government would pay for in any event, why not take the lower-cost item that's actually in the child's best interest?"

'Simply perverse'

Willier is not the first child to be repeatedly denied coverage. In 2015-16, nearly all applications, at all three levels of appeals pertaining to the orthodontics program, were denied by administrators of the benefits program: 99 per cent of first-level appeals, 100 per cent of second-level appeals and 100 per cent of all third-level appeals.

Sarah Clarke, the lawyer representing the girl pro bono, has already filed an appeal to the Federal Court ruling. The government's legal costs will almost certainly go up, she said, because lawyers will have to respond to the latest factum filed in court last week.

NDP MP Charlie Angus says Health Canada using lawyers to deny services is 'bordering on institutional malevolence.' (Adrian Wyld/Canadian Press)

Clarke said the health program is fundamentally flawed because departmental approval is not based on the child's level of suffering.

As to why the government is continuing litigation, Clarke said she believes it's all about the bottom line. "My only reasonable hypothesis is to save money on any other case that's coming behind us."

Angus, a candidate for his party's leadership, said Indigenous Services Minister Jane Philpott could have intervened to stop legal proceedings before the court rendered its decision.

He said he has repeatedly raised this particular case with Philpott, who until recently served as health minister. During question period in January 2016, Philpott said she would look into Willier's case and report back. Philpott's office deferred to Health Canada for comment.

"Jane Philpott is a medical doctor, and she goes along with using lawyers to deny services — that's simply perverse, it's bordering on institutional malevolence.

"It's the pattern of denial that has been inflicted on Indigenous children for decades, and this government has to be accountable and has to stop it."


John Paul Tasker

Senior reporter

J.P. Tasker is a journalist in CBC's parliamentary bureau who reports for digital, radio and television. He is also a regular panellist on CBC News Network's Power & Politics. He covers the Conservative Party, Canada-U.S. relations, Crown-Indigenous affairs, climate change, health policy and the Senate. You can send story ideas and tips to J.P. at john.tasker@cbc.ca.