HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Ariane Blais by her next friends, Diane Blais and Richard Blais
Applicant
-and-
Her Majesty the Queen in Right of Ontario as represented by the Minister of Education
Respondent
CASE RESOLUTION CONFERENCE DECISION
Adjudicator: David Muir
Indexed as: Blais v. Ontario (Education)
APPEARANCES BY
Ariane Blais by her litigation guardian, Diane Blais ) Elle Venhola, Counsel
Her Majesty the Queen in Right of Ontario ) as represented by the Minister of Education ) Robin Basu ) and Bruce Ellis, Counsel
1This is an Application brought under section 53(3) of Part VI of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). A Case Resolution Conference was held on February 12, 2009. This Case Resolution Conference Decision (CRC Decision) deals with a Request to dismiss the Application pursuant to section 45.1 of the Code.
Background
2Ariane Blais, the applicant, is a young adult who has been diagnosed with a severe form of autism. Diane and Richard Blais are the applicant’s parents.
3The applicant is entitled to a public education until the age of 18, but because she has a disability, this period is extended until 21 years of age or she no longer requires a public education. Her parents have struggled for many years to secure an appropriate public education for the applicant with little success, in their view. As a consequence, the parents have withdrawn the applicant from the public school system.
4Section 8(3) of the Education Act, R.S.O. 1990, c. E.2, as amended, which is central to the claim, states:
The Minister shall ensure that all exceptional children in Ontario have available to them, in accordance with this Act and the regulations, appropriate special education programs and special education services without payment of fees by parents or guardians resident in Ontario.
5The human rights complaint (the complaint) forming the subject matter of this Application was filed on February 23, 2006 and subsequently amended on March 24, 2006. A companion complaint was made against the Sudbury Catholic District School Board and is the subject matter of another Application, HRTO T-0283-08. The allegations of discrimination as they relate to Ontario in the complaint are paraphrased as follows:
Consistent refusal to comply with the Order and recommendation of the Special Education Tribunal in July 1999.
Failure to monitor the delivery of an appropriate special education for applicant.
Failure to provide IBI at school based on the trial decision in Wynberg.
Failure to adequately fund an appropriate special education for the applicant, including speech language and occupational therapy services.
Failure to ensure an appropriate long-term education plan that meets the applicant’s special needs.
Refusal to adequately consult with the family about the applicant’s needs.
Failure to ensure that Ontario’s education policies and acts of employees do not discriminate against the applicant.
6The remedies sought by the applicant are:
Declaration that the respondent has discriminated against the applicant.
Order compelling the respondent to cease discriminating against the applicant.
Order compelling the respondent to provide the applicant with appropriate IBI.
An order requiring that the respondent identify and provide for the applicant’s special needs in an appropriate manner and for the long term.
Training and policy development.
Costs.
General Damages.
7When the complaint was filed by her parents as litigation guardians, the applicant was a plaintiff in Wynberg v. Her Majesty the Queen in Right of Ontario, 2005 CanLII 8749 (ON SC), [2005] O.J. No. 1228 (SCtJ); 2006 CanLII 22919 (ON CA), [2006] O.J. No. 2732 (CA) reversed; leave refused 2006 SCCA No. 441 (“Wynberg”). In Wynberg, the plaintiffs alleged that Ontario’s delivery of medical and educational services for children with autism was contrary to the equality provisions of the Constitution Act, 1982, enacted as Schedule B to the Canada Act 1982 (U.K.) 1982, c. 11 ( the “Charter”) on the ground of age and disability. The trial judgement had been released but the appeal not yet disposed of.
8At trial Justice Kiteley framed the primary question for determination as follows:
Do the actions or inactions of the Minister constitute a violation of the duty under section 8(3) of the Education Act by failing or refusing to ensure that IBI, speech therapy, occupational therapy and appropriate educational services were provided to children of compulsory school age, in a manner contrary to the infant plaintiff’s rights under section 15 of the Charter on the basis of disability? (at para. 29 (2a))
9The Statement of Claim sought the following relief:
a. Damages for the cost of ABA, speech therapies and occupational therapies being provided to the plaintiffs.
b. Damages for the cost of future care, including the future cost of ABA therapies, speech therapy and occupational therapy.
c. Declaration that the defendant’s failure and/or refusal to provide or to fund ABA therapies, speech and occupational therapy and appropriate educational services for the minor plaintiffs was a violation of the Charter etc.
10The applicant by her parents as litigation guardians had previously brought an application before the Special Education Tribunal (SET) in 1999. At the SET the applicant took issue with the applicant’s placement stating that her needs could not be met by the educational program which the Board had offered in a IPRC dated June 13, 1996. The placement sought by the Blais family at the time included: An integrated regular classroom setting
Enrolment at the neighbourhood school
Clinical in-service training for the teachers and the educational assistant in the method of behavioural modification and education in the disorder or autism
And educational assistant with training in modification in PDD/autism assigned to the child for 100% of the school day, and
A speech pathologist with knowledge and experience in PDD/autism overseeing the program and the involvement of an occupational therapist also with knowledge and experience in PDD/autism.
11The question to be determined in this CRC Decision is whether or not the subject matter of the Application has been appropriately dealt with in the Wynberg litigation or by the SET and consequently should be dismissed in whole or in part pursuant to section 45.1 of the Code, or, alternatively by the application of the doctrines of issue estoppel or abuse of process.
12A note about terminology. Amongst the therapeutic interventions utilized with children with autism is one called Applied Behavioural Analysis (ABA). Related to it is another called Intensive Behavioural Intervention (IBI).
13ABA is described in the trial judgement in Wynberg at paragraph 87 as follows:
It is a structured, systemic procedure derived from behaviourally based principles of learning and applied through operant conditioning, including the use of discrete trial training, to improve social behaviour. Further, ABA involves careful observation, data collection and assessment and is provide by specially trained staff.
14IBI is a therapeutic/educational program that uses ABA techniques to improve children’s social behaviour and communication skills. Although not identical, IBI and ABA, are closely linked, and the acronyms are often used interchangeably. For purposes of this CRC Decision I have considered them as identical.
15The trial judgement, at paragraphs 32 and 35, describes autism in the following terms:
[A]utism, or autistic disorder, is one of a group of disorders called Pervasive Developmental Disorders, in which there are (1) pervasive difficulties in reciprocal social interaction; (2) pervasive impairments in verbal and non-verbal communication; and (3) pervasive impairments in verbal and non-verbal communication; and (4) a pattern of restricted, repetitive and unusual behaviours and interests.
According to Dr. Perry, autism occurs in all cultures and all social classes and occurs more often in boys than in girls. Dr. Perry noted that autism often co-occurs with other disorders and diagnoses, the most common of which is developmental disability (or mental retardation or developmental handicap or cognitive/intellectual impairment, all of which mean the same thing in this context). About three quarters of people with autism also have some degree of cognitive impairment, referred to as the person’s level of functioning. The cognitive functioning of persons with an ASD can range from profound developmental disability to above average levels. As Dr. Perry reported, one person could have a severe developmental disability and be mildly autistic, another could be high functioning intellectually but be severely autistic and another could have severe difficulties in both ways. The majority of children with autistic disorder (60 – 80%) function in the mild to severe range of mental retardation.
16At the hearing before this Tribunal, the respondent (“Ontario”) relied upon: the affidavit of Lois Scott, an assistant to counsel involved in the Wynberg litigation; the pleadings in that case; the various Court decisions; and the decision of the SET dated September 21, 1999. The applicant led no additional evidence and relied upon the paper record.
The Other Proceedings
Ontario Special Education Tribunal (“SET”)
17The applicant’s parents brought their concerns about the adequacy of the special educational program which the school board was prepared to offer their daughter to the SET. It is clear from the reasons of the SET that the Blais were arguing for an ABA/IBI program as the only educational program that would “spell success for their daughter”. In the result the requests made were found to be outside of the jurisdiction of the SET to order and, although its decision included a series of recommendations, the SET concluded that the parents had failed to meet their onus to establish that the placement of their daughter was inappropriate.
The Trial Court Decision in Wynberg (2005 CanLII 8749 (ON SC), [2005] O.J. No. 1228 (SCtJ))
18The action was commenced in 1999 and the Statement of Claim was revised over time as events overtook the action and as plaintiffs were added to it. The trial was a lengthy one, in excess of 130 days, and for various reasons took place over a longer time period than anyone involved might have anticipated. It also took place against the backdrop of significant developments in the Province’s approach to providing supports for children with autism and their families.
19The trial was bifurcated; the first part of the trial concerned the plaintiffs’ entitlement to heads of damages including the overarching question of whether or not, amongst other issues, the failure to ensure the provision of ABA/IBI and appropriate speech and occupational therapies to school age children was a violation of their right to equality in section 15 of the Charter. If entitled to any or all of the claimed heads of damages, the trial would resume to consider the particular situation of each family. The second stage of the trial never occurred as a consequence of the successful appeal of the trial decision by Ontario.
20Justice Kiteley answered that constitutional question (set out above in para. 8) in the affirmative finding the plaintiffs had established a violation of their s. 15(1) equality rights by Ontario on the basis of disability with respect to special education programs and services. Amongst the key factual disputes between the parties and resolved in the trial was whether ABA/IBI was the best or only effective intervention for children over the age of 6, including children attending school. The Court endorsed the plaintiffs’ position that ABA/IBI is the only scientifically supported effective intervention for children with autism and that there was no evidence supporting withdrawal of ABA/IBI at age 6.
21The Declaration of the Court was as follows:
I declare that the defendant’s failure and/or refusal to provide or to fund Intensive Behavioural Intervention (IBI), based on an individualized assessment of the needs of each particular child and consistent with the description and criteria set out on pages 12 through 15 of the September 2000 Program Guidelines for Regional Intensive Early Intervention Program for Children with Autism in paragraph 180 above, speech therapy, occupational therapy and appropriate educational services for the minor plaintiffs was at October 2002 and since then in violation of the rights of the infant plaintiffs on the basis of disability contrary to section 15 of the Canadian Charter of Rights and Freedoms and in violation of the Ontario Education Act. (at para. 827)
22Justice Kiteley specifically considered the place or role of ABA/IBI in special education. She found Ontario had erected a policy barrier that effectively precluded school boards from implementing ABA/IBI in the schools as part of a special education IEP. She also concluded that children did not have access to “appropriate special education programs and special education services without payment of fees” (para 21) because the Minister failed to develop policy and give direction to the school boards to ensure that ABA/IBI services are provided to children of compulsory school age. In her view there was no evidence that the special education programs and services available to children with the exceptionality of autism provided an “appropriate education”.
23On March 12, 2004, Justice Kiteley ordered that Ontario pay interim funding in the amounts equal to IBI therapy costs specific to each child. By agreement the applicant was included in this arrangement. Ontario appealed the trial decision but maintained the payments ordered on an interlocutory basis pending the appeal. ( R. v. Wynberg, 2004 CanLII 13674 (ON S.C.))
The Appeal to the Court of Appeal (2006 CanLII 22919 (ON CA), [2006] O.J. No.2732 (CA))
24The respondent Ontario appealed the trial decision and the Court of Appeal allowed the appeal.
25The Court of Appeal’s characterization of the key findings of the trial judge are found at paras. 95 to 101 of its decision and are summarized here:
That IBI is the only scientifically supported and effective intervention for children with autism.
That none of the other possible interventions available, including those that are available for autistic pupils in the Ontario schools are effective enough to constitute appropriate special education programs or services within s. 8(3) of the Education Act. In other words only IBI is appropriate.
That Ministry of Education (Ontario) had communicated in policy that IBI would not be available in schools and as a consequence the Minister had failed to ensure that autistic children of school age receive appropriate special education because they do not receive IBI.
26The trial judgement as it related to the claim of discrimination on the basis of disability was reversed because the plaintiffs had failed to demonstrate that they had been subjected to differential treatment based on disability under s.8(3) of the Education Act. The Court also concluded that the plaintiffs had failed to show that the failure to provide IBI as part of a special education program amounted to a failure to provide appropriate special education programs and services to which they were entitled under the Act.
27The Court made these findings for two primary reasons. First, from the outset the plaintiffs’ argument had been that if the equality rights of school-age autistic children were to be vindicated, Ontario must ensure that they receive IBI intervention as a special education program or service. The Court concluded as a matter of fact that IBI as sought by the plaintiffs could not be implemented in the school setting. The Court also concluded that there was insufficient evidence of the effectiveness or not, of existing programs and services to conclude that ABA/IBI was the only effective program for the plaintiff children. Nor was there sufficient evidence about the programs provided to students with other disabilities to permit the finding of the trial judge that those other students had received a proper special education program and that the plaintiff children were therefore differently treated because of their disability. In short the Court of Appeal concluded that there was no evidence that the plaintiff children were differentially impacted by the Ministry’s actions or inaction.
The Positions of the Parties
The Respondent’s Position
28The respondent states that section 45. 1 of the Code and the doctrines of issue estoppel and abuse of process apply to the issues raised in the Application and consequently it should be dismissed. In Ontario’s submission all of the discrimination claims made in the complaint are substantially the same as the discrimination claims raised under the Charter in Wynberg. It is also submitted that issues about the applicant’s placement in the public school system are substantially the same as those raised before the SET in 1999. The respondent takes the position that given that the Application raises the same issues that were dealt with in Wynberg and by the SET it would violate the principles of judicial economy, consistency of decision making, finality and the integrity of the administration of justice to allow it to proceed further to a Case Resolution Conference on its merits.
29The respondent relies upon the Tribunal’s Interim Decision in Campbell v. Toronto District School Board, 2008 HRTO 62, and the discussion there of section 45.1 of the Code, and the doctrines of issue estoppel and abuse of process. In that Interim Decision, the Tribunal held that section 45.1 should be considered in two parts: (i) was there another proceeding, and (ii) if so, did it appropriately deal with the substance of the Application? (See: Campbell at para 65)
30Applying this two part analysis to these circumstances, the respondent states that the Application ought to be dismissed.
31In the respondent’s submission, the first part of the test has been met. The respondent states that the applicant and her parents have raised identical or substantially similar issues, before the courts in Wynberg and before the SET, and there can be no issue that both of those events are proceedings contemplated by section 45.1.
32With regard to the second part of the test, the respondent relies on Campbell where it adopts the approach taken by the British Columbia Human Rights Tribunal in Villella v. City of Vancouver and others (No. 3), 2005 BCHRT 405, 2005 B.C.H.R.T. 405 which concluded “in considering whether the substance of a complaint has been appropriately dealt with, the Tribunal should consider whether the complaint, in its essence or pith, was dealt with in a manner suitable or proper to that substance or pith”. (see Campbell at para 65) The respondent states that the pith and substance of the complaint is the same as the issues before the court in Wynberg and the SET, and has been appropriately dealt with in those proceedings. To allow this Application to proceed to hearing would simply be allowing the Applicant to re-litigate all of the same issues that have been fully adjudicated in those other proceedings.
33The respondent submits in the alternative that the doctrine of issue estoppel applies to these circumstances. It was submitted that the courts have established a four part test when considering the applicability of the doctrine:
a. That the same question has been decided.
b. That the decision which is said to create the estoppel was final; and
c. That the parties to the decision, or their privies, were the same parties to the proceedings in which the estoppel was raised.
d. If these conditions are met, whether the court or tribunal should exercise its discretion to apply the doctrine.
34The respondent submits that the discretion identified in the fourth part of the test is a negative one: the doctrine ought to apply unless there are special circumstances or where its application would result in a “real injustice”.
35The respondent submits that the decision of the Court of Appeal in Wynberg was final and that there is no question that the parties are the same. It is also submitted that the question is the same – the plaintiffs in Wynberg built their case on two fundamental claims of discrimination under the Charter. One was age discrimination and the second was discrimination on the basis of disability in the provision of services for children with autism in the school system. In the respondent’s submission the substance of this Application is the same as the disability discrimination issue considered and decided in Wynberg.
36In this case the respondent submits that there are no special circumstances here and no evidence of a real injustice that might require an exercise of the discretion to not apply the doctrine.
37The respondent also states that the more general doctrine of abuse of process is appropriately used to prevent re-litigation of an issue, where the strict requirements of issue estoppel are not present but where allowing the litigation to proceed would violate principles of judicial economy, consistency, finality, and the integrity of the administration of justice.
The Applicant’s Position
38The applicant does not take serious issue with the general legal principles the respondent relies upon. Rather the applicant’s primary submission is that the question determined by the court is not the same question raised in the complaint.
39The applicant states that Wynberg was not a case in which the plaintiffs, including the applicants, failed to bring the evidence necessary to prove their case and are now seeking to take another shot at it. On the contrary, the applicant states that the parties argued the general points in issue and tendered expert evidence intended to demonstrate deficiencies in the overall special education system in Ontario but not in relation to the applicant’s particular experience. The applicant submits that the absence of evidence in Wynberg to support the plaintiff’s theory that existing special education programs are inadequate in comparison to IBI does not preclude the applicant from marshalling evidence in this case that existing special education programs and services were not appropriate to meet her special needs or that the Ministry’s acts, omissions or policies had a discriminatory effect on the applicant.
40The applicant submits that the Application relates to discrimination with respect to Ontario’s statutory obligations to fund, direct, and monitor the delivery of appropriate educational services to her in a non-discriminatory manner during the period in dispute. In the applicant’s submission, with the exception of providing IBI at school, neither the trial or appellate court considered the applicant’s particular claims that the Minister did not accommodate her disability needs as follows:
a. failing to comply with the recommendations of the SET dated July 1999;
b. failing to supervise or monitor the school board’s delivery of an appropriate special education program;
c. failing to adequately fund an appropriate special education for applicant, including speech, language and occupational therapy services;
d. refusing to consult with the family about applicant’s needs;
e. failing to ensure that Ontario’s education policies and acts of employees do not discriminate against Applicant.
41Alternatively, the applicant submits that the Tribunal should exercise its discretion on the basis of fairness, efficiency and judicial economy and allow the Application to proceed to a hearing
42The applicant also states that the jurisdiction of the SET is limited by its enabling statute to make unenforceable recommendations to a school board about the proper placement of the child. In contrast to the jurisdiction of the Tribunal the SET does not have express authority or competence to address human rights issues. The applicant also submits that the decision of SET was made years prior to the allegations made in the complaint and could not have been decided by the SET.
ANALYSIS
43I have considered the submissions of the parties and the law referred to by both parties and have concluded that the Application should be dismissed because, despite the submissions of the applicant, the issue to be determined in the Application is substantially the same question as that raised by the applicant and the other plaintiff families in the Wynberg. I am satisfied the issue can be determined by the application of section 45.1 as it has been interpreted by the Tribunal, in particular, in Campbell .
44Section 45.1 of the Code provides as follows:
45.1 The Tribunal may dismiss an application, in whole or in part, in accordance with its rules if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application.
45There was no issue raised by either party that a determination in respect of section 15 of the Charter could subsume a complaint of discrimination under the Code in these circumstances. The argument between the parties was whether or not “the substance of the application” in the sense of the same issue or question was dealt with in Wynberg ot by the SET. If those proceedings dealt with the substance of the this Application, there is no question the substance of the complaint was “appropriately dealt with” in the sense of there being a complete airing of the issues within an appropriate legal framework. The parties were all represented by leading members of the Bar and the trial was a lengthy one – in excess of 130 days.
46The central submission of the applicant as it relates to Wynberg was that the case was about general policies and principles related to the operation of the education system as a whole and was not concerned with the particular circumstances of each of the plaintiffs and their specific special education needs. Accordingly, the applicant argues she has never had an opportunity to bring evidence that existing special education programs and services were not appropriate to meet her special needs or that the Ministry’s acts, omissions or policies had a discriminatory effect on her.
47With respect, I cannot agree with the characterization of the Wynberg litigation advanced by the applicant. It seems to me clear that the central questions in the civil action and this Application are largely indistinguishable. The substance of the complaint is quite specific and at its heart is the claim that the failure to provide ABA/IBI; speech and occupational therapy; and appropriate educational services is a violation of the Code. The more general allegations in the complaint are entirely dependent on the core allegation.
48The parents wanted the province and school boards to fund ABA/IBI in the school as the appropriate special education service for their children. In Wynberg, the plaintiffs claimed that the failure of the Province to do so was a violation of their and their children’s equality rights enshrined in the Charter. The Blais family took essentially the same request to the SET and were unsuccessful there as well.
49The applicant now submits in effect that the complaint is about other failures on the part of the Province to accommodate her exceptionalities. To my mind this submission ignores what the Wynberg litigation was primarily about.
50As noted above, what was claimed in Wynberg was, amongst other things, the cost of ABA therapies and appropriate speech and occupational therapies that ought to have been provided by the school.
51The trial court in its decision awarding interim relief to a number of the plaintiffs described the case in the following terms:
This case is about children who have been diagnosed with autism. The treatment of choice advocated by their parents and consultants is Applied Behavioural Analysis (ABA).
52In its final judgement the court described the basis for the plaintiff’s claim of discrimination in the following terms:
It is the failure or refusal of the defendant to provide or to fund IBI based on an individualized assessment or the needs of each particular child and consistent with the description of the criteria set out in the … Guidelines that gives rise to the plaintiff’s claim that their rights have been infringed
53This characterization of what the case was about for the plaintiffs is echoed in the Court of Appeal’s judgement:
From the beginning, the respondents’ (plaintiffs at trial) argument has been that if the equality rights of school-age autistic children are to be respected, Ontario must ensure that they receive, as a special education program or service , intensive behavioural intervention (IBI) consistent with that being provided in the IEIP.
54In pith and substance, the civil proceeding was, amongst other issues, about the failure of Ontario to ensure the provision of appropriate special education services, occupational therapy and speech therapy to school age children with autism. The appropriate special education services being sought by the plaintiffs, including the applicant, was ABA/IBI because it was felt by the plaintiffs to be the only appropriate special education service. As suggested by counsel for the respondent at the case resolution conference, the Wynberg case was about the failure of the respondent to ensure the provision of ABA/IBI in the school because ABA/IBI was what the families were seeking for their children as “appropriate special education programs and special education services” required under s. 8(3) of the Education Act. It is clear from the language of the complaint that it is the same failure to provide ABA/IBI that forms the core or essence of the complaint.
55I also do not agree with the submission that the applicant’s particular circumstances have never been adjudicated. The affidavit evidence, in the absence of anything to the contrary, contradicts the suggestion that her particular circumstances were not before the Court. The applicant’s mother was examined for discovery and documentary disclosure was made respecting her particular circumstances “including the claims relating to special education and the accommodation in the education system of Ariane Blais’ disabilities”. It is true that by agreement many of the plaintiffs, including the Blais, did not give evidence but there was considerable evidence from a number of parents before the trial judge which focussed on the following areas: the child’s circumstances at the time of the diagnosis and before starting IBI; the effects of IBI; in particular the effect of IBI after the child reached age 6; the experience the family had with schools (emphasis added); and the effect on the families of having a child with autism for which appropriate public services were not available. The trial judge analysed the evidence in respect of those children and families who gave evidence and made findings of fact in the areas set out above.
56I also find that the fact that the applicant’s particular circumstances were not before the Court does not advance the argument. The trial judgement is based on an in-depth consideration of a number of individual plaintiffs’ particular circumstances in order to assess the overarching question of whether or not the failure of the respondent to ensure the provision of the special education programs and services the families were seeking - ABA/IBI and speech and occupational therapies - was a violation of section 15 of the Charter. The quantification of damages particular to the applicant never occurred because the threshold question of liability was ultimately decided against the plaintiffs. This strikes me as no different than if there were a number of applications such as this one wherein the parties had agreed to argue the liability issue(s) on the basis of the evidence of a number of representative applicants leaving the quantification of damages to a second phase of the hearing.
57In response to the claim that this Application is an abuse of process, the applicant states that the respondent has not met its burden of showing that the applicant has conducted herself in a way that is “vexatious, oppressive or that would shock the community’s sense of fair play and decency”. Although the language cited by the applicant is to be found in the cases, the doctrine of abuse of process is a broad one encompassing a number of circumstances including where the allegations of discrimination have been heard and determined in another forum such that it would be unfair to call on the respondents to re-litigate the issue. In any event I find that the issue raised by the respondent can be resolved by an application of s. 45.1 as interpreted in Campbell, and so there is no need for an analysis of abuse of process or estoppel.
58The applicant also submits that the stakes in the Application are different than those at play in the Charter case. In this regard, because the Court of Appeal held that damages for a violation of a Charter right would not normally give rise to damages remedies, it is submitted that it is not clear that after general issues were determined in the first part of the trial, the applicant would have been able to litigate the individual special education issues claimed. To my mind these submissions miss the point.
59It is true that the Court of Appeal held that damages should not have been awarded by the trial judge absent bad faith, abuse of power, negligence or wilful blindness in respect of the defendant’s constitutional obligations. However damages were claimed and interim orders were made requiring the respondent to pay the cost of IBI being provided to many of the plaintiffs including the applicant. The fact that the plaintiffs were completely unsuccessful in Wynberg does not mean that the substance of this Application has not been appropriately dealt with in that proceeding. The plaintiffs in Wynberg chose to proceed in the manner that they did. It does not matter, in my view, that the result might have been different had the issues been considered under the Code or that different legal issues and arguments might have been considered. At the end of the day the Court of Appeal found that the failure of Ontario to provide ABA/IBI was not discrimination on the basis of disability in violation of the Charter, and therefore I find that the substance of this Application which raises the same question has been appropriately dealt with the in the Wynberg proceeding.
60Having dealt with the issue on this basis I need not consider the application of section 45.1, issue estoppel or abuse of process to the decision of the SET.
61For all of these reasons the Application is dismissed.
Dated at Toronto, this 21st day of May, 2009.
“Signed by”
David Muir
Vice-chair