HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Sebastian Bunda by his next friend Maria Bunda
Applicant
-and-
Hamilton Health Sciences – Hamilton-Niagara Autism Intervention Program and Jo-Ann Reitzel
Respondents
INTERIM DECISION
Adjudicator: David A. Wright
Indexed as: Bunda v. Hamilton Health Sciences – Hamilton-Niagara Autism Intervention Program
APPEARANCES
Sebastian Bunda, by his Next Friend Maria Bunda Maria Bunda, Applicant
Hamilton Health Sciences – Hamilton-Niagara Autism Intervention Program and Jo-Ann Reitzel, Cindy Clarke, Counsel
[1] This is an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, alleging discrimination in goods, services, and facilities. The applicant is a six-year-old boy with autism. Through his next friend, his mother, he alleges that the respondents discriminated against him by terminating funding for IBI (Intensive Behavioural Intervention) therapy.
[2] Together with the Application, the applicant’s next friend filed a Request for Interim Remedy asking that funding for full-time IBI be continued pending the hearing and a Request to Expedite. Argument on these requests was heard on a telephone conference call on January 15, 2010. In a Case Assessment Direction dated January 18, 2010, the request to expedite was granted and the Request for Interim Remedy was dismissed, with reasons to follow. This Interim Decision provides those reasons, and gives certain directions in advance of the hearing, which is scheduled for March 29, 30 and 31, 2010.
BACKGROUND
[3] The corporate respondent is the lead agency in the Hamilton-Niagara region for the Autism Intervention Programs created by the Ministry of Children and Youth Services (“MCYS”). It is the responsibility of the regional program to determine eligibility, intensity and setting of a child’s IBI. Parents of children admitted to the program can choose to receive services directly from the regional program or to receive funding and arrange for the delivery and payment of the services themselves. In either case, the regional program is required, by the Program Guidelines, to complete a baseline skills assessment and evaluate the child’s progress every six months.
[4] The policy on discharge from the program was described by the Divisional Court in Ceretti v. Hamilton Health Sciences – McMaster Children’s Hospital, 2010 ONSC 252 as follows, at paras. 4-7:
Regional Programs are delivered under the Child and Family Services Act, R.S.O. 1990, c. C.11 (the “CFSA”). They operate under Program Guidelines issued by the Ministry. While the Guidelines set out eligibility criteria, they do not contain any specific criteria for discharge from the Program. Prior to April 2005, the Ministry had mandated that IBI was to be directed to children aged two to six years. When it removed the age criterion, the Ministry did not replace it with any discharge criteria.
In regard to duration of therapy, the Guidelines provide:
As a child is identified as approaching transition from the program to school or other community settings, various additional assessments may be undertaken. A discharge assessment is required.
The Program developed its own Discharge and Transfer Policy based on the premise that clinical evaluation of a child’s progress with IBI therapy is essential. All children receiving IBI therapy are evaluated at the outset and every six months thereafter using a comprehensive assessment process that includes family feedback, observation and standardized testing of the child.
The Discharge and Transfer Policy explicitly provides at para. 5:
Children in IBI who, based on objective clinical measures, demonstrate little to no progress in their cognitive and language skills after 12 months of IBI will be transferred to a consultation model of intervention: Transition Support Services. Programming within the Transition Support Services will be individualized to address the needs of each child and family. This transfer will result in IBI being discontinued.
[5] The applicant was recently discharged from the program and alleges that the discharge was discriminatory. As I understand the application, he argues that the discharge policy discriminates on the basis of disability against children who have or appear to have particularly severe autism and who therefore do not show progress as quickly as others.
REQUEST TO EXPEDITE AND REQUEST FOR INTERIM REMEDY
[6] The parties agree that the Application should be expedited. Applying the test set out in Weerawardane v. 2152548 Ontario Ltd., 2008 HRTO 53, I find that this Application meets the high standard established in the Tribunal’s jurisprudence, and that there are particularly urgent circumstances that justify expediting this proceeding. Among the factors I take into account are that the treatment provider has provided an affidavit expressing concern about the potential consequences of discharge, that he has only recently been discharged from the program, and his young age. If too much time passes before this issue is resolved, and it is concluded that the discharge was discriminatory, the return to IBI therapy may be less effective.
[7] On the other hand, I do not believe that an Interim Remedy would be appropriate. Rule 23.2 sets out the criteria to be applied as follows:
The Tribunal may grant an interim remedy where it is satisfied that:
a) the Application appears to have merit;
b) the balance of harm or convenience favours granting the interim remedy requested; and,
c) it is just and appropriate in the circumstances to do so.
[8] In TA v. 60 Montclair, 2009 HRTO 369, the Tribunal held that a party seeking an Interim Remedy has a “significant onus” to meet to demonstrate that the request meets the elements of Rule 23.2. It held, at para. 18, that the focus of the analysis is on whether the interim remedy is “necessary to facilitate and ensure the Tribunal is able to award a complete, appropriate and effective remedy at the end of a hearing, should a violation of the Code be found”.
[9] I find that it would not be just and appropriate to award the interim remedy requested, in particular given that the Request to Expedite has been granted. I note that the applicant has already stopped receiving IBI programming and transitioned to attending school full-time. If an interim remedy is granted but the applicant is unsuccessful in the Application, he would have to make unnecessary transitions away from and back to the school system. This may well not be in his best interests. I also note that the corporate respondent has limited funding for IBI. Granting the remedy requested could affect the funding available for other children with autism. Finally, given in particular that the expedited proceeding will commence only two and a half months following the hearing on the interim remedy request, there is no evidence that an interim remedy is necessary to effectively remedy discrimination if it is found.
HEARING PREPARATION
[10] Neither party appears to have delivered and filed witness statements or expert reports as required by Rule 17 and the Tribunal’s Case Assessment Direction. The parties are directed to do so immediately. While the applicant’s next friend has filed a list of documents she relies upon, she has not filed copies of them. She is directed to do so immediately. Finally, the respondent has not filed a list or copies of documents it relies upon, although it did file documents with its Response. The respondents are directed to confirm immediately whether they are relying only upon the documents filed with their Response and to deliver and file copies of any additional documents.
[11] I make the following comments about the legal framework for the hearing. The Tribunal does not have the general power to review decisions made by the respondent about IBI funding, to determine whether its discharge policy is a good one from a policy perspective, or to decide whether Sebastian would benefit from IBI therapy. It can only decide whether there has been discrimination contrary to the Code between the applicant and others on a prohibited ground.
[12] The issue of whether targeting of funding of autism therapy is discriminatory has been dealt with by the Court of Appeal in Wynberg v. Ontario (2006), 2006 CanLII 22919 (ON CA), 82 O.R. (3d) 561 and the Supreme Court in Auton (Guardian ad litem of) v. British Columbia (Attorney General), 2004 SCC 78. The principles established in those cases will be of importance in this case.
[13] The applicant has the onus of proving, on a balance of probabilities, that the program is discriminatory. In a case such as this one, involving complex medical issues in a specialized field, that typically requires calling expert evidence. It appears difficult to see how the Application could succeed without detailed evidence from medical practitioners about the alleged discriminatory effects of the discharge policy.
[14] Therefore, the parties shall be prepared to argue, at the outset of the hearing, whether the Application can succeed, in light of the law and the evidence the applicant intends to present.
Dated at Toronto, this 15th day of March, 2010.
“Signed by”
David A. Wright
Interim Chair