M.Y. v. Central West Autism Intervention Service Erinoakkids, 2012 HRTO 1584

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

M.Y. and P.Y. by their next friend S.R.

Applicants

-and-

Central West Autism Intervention Service Erinoakkids

Respondent

DECISION

Adjudicator: Kathleen Martin

Date: August 16, 2012

Citation: 2012 HRTO 1584

Indexed as: M.Y. v. Central West Autism Intervention Service Erinoakkids

APPEARANCES

M.Y. and P.Y. by their next friend S.R., Applicants

Harjaap S. Mann, Counsel

Central West Autism Intervention Service Erinoakkids, Respondent

George Waggott, Counsel

Introduction

1These are Applications filed December 31, 2010, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination on the basis of disability in the provision of services. The applicants, who are twin boys with autism, allege that the respondent discriminated against them when they were discharged from its Autism Intervention Service and therefore no longer able to receive funding for Intensive Behavioural Intervention treatment.

2A summary hearing was held to determine whether the Applications should be dismissed on the basis that there is no reasonable prospect that the Applications or part of them will succeed. Following the hearing, the parties filed additional documentation related to submissions made during the summary hearing.

3I have determined that there is no reasonable prospect that the applicants will be able to establish discrimination. My reasons follow.

BACKGROUND

4The Applications are filed by the applicants’ next friend, their mother. In addition to having autism, both applicants are diagnosed with severe developmental disability.

5The respondent is the largest of Ontario’s 21 not-for-profit Children’s Treatment Centres. The respondent is funded primarily through the Ontario Ministry of Children and Youth Services. One of the programs for which it functions as lead agency and service provider is Autism Intervention Services (“AIS”), Central West and one of the services offered through AIS is a therapy known as Intensive Behavioural Intervention (“IBI”). IBI is an intensive form of treatment for children with autism spectrum disorders.

6The applicants had been in receipt of government-funded IBI treatment for about eight years at the time they were discharged. Initially, the applicants received IBI treatment directly from the respondent. In June 2005, the applicants’ mother elected to have her sons removed from the direct service option and placed in a self-managed funding option. Under this model, the respondent provided the money and the applicants arranged for their own IBI therapy from New Haven Learning Centre.

7In 2008, the applicants were reassessed by the respondent and told that they were to be discharged from the program because the IBI received had not clinically significantly changed their learning trajectories. The material submitted by the respondent includes psychological reports for each applicant which refers to the details of the assessments conducted in 2008. These assessments identify the administration of specific developmental and diagnostic tools such as the “Vineland Adaptive Behaviour Scales-Second Edition” (VABS-II), the Diagnostic and Statistical Manual-Fourth Edition (DSM-IV) and interviews with the applicants’ mother and the clinical coordinator of New Haven. In addition, the reports compare the applicants’ progress at two points: 2001 and 2008. Ultimately, a similar conclusion is reached for each applicant about their inclusion in IBI. The assessments state that the applicants have not demonstrated the “intellectual/adaptive functioning required to profit from the IBI program” and it is thus recommended they be demitted from IBI services and enrolled in a local neighbourhood school.

8In a letter dated May 13, 2009, the clinical director of the respondent provides further clarification to the applicants’ mother as to the reason for transitioning her sons out of the program. The clinical director acknowledges that the applicants have gained “some skills” while participating in the program, but states that there have not been significant changes in their rate of learning. The clinical director states that while there is no bright-line test that is employed, the goal of IBI is to increase the rate of learning for children with autism. The clinical director outlines the various standardized measures used (the VABS-II and the Mullen Scales of Early Learning) and other material reviewed and concludes that neither the results of the standardized testing nor the program data indicates that IBI has made a significant difference in the applicants’ learning. The clinical director states that these “findings strongly indicate that the [applicants’] learning is limited by an overall intellectual deficit rather than just by autism [and therefore] it is not apparent that they are getting more benefit from IBI than might be expected from a well-structured school program that uses the principles of applied behaviour analysis.”

9Notwithstanding the initial recommendation that the applicants be demitted from the program in the fall of 2008, the applicants were not discharged until December 31, 2009.

10In the Applications, the applicants allege that they were discriminated against on the basis of disability since the AIS funding was withdrawn only because their autism is more severe and therefore more expensive to treat. The applicants challenge the respondent’s assertion that it discharged them for clinical reasons and allege that the real reason is financial. The applicants’ mother expresses that she refuses to provide anything less than the special needs education and treatment that her children need to survive and grow to their full potential and thus has continued funding the $58,000 per year for this treatment.

11Responses were filed to each Application. Among other things, the respondent asserts that the clinical decision made by it is not subject to review under the Code. The respondent states that the Tribunal decided this point in its decision in Bunda v. Hamilton Health Sciences, 2010 HRTO 698, which dealt with an identical effort by a parent to challenge the cessation of a child’s IBI funding. The Tribunal’s decision stated:

My only power in this case is to determine whether it can be proven that the respondents have violated the Code. The question of funding for IBI and the most appropriate discharge criteria, unless discrimination is shown, are for the government and those administering the program.

12The respondent submits that these Applications do not even disclose a prima facie case of discrimination. The funding was not withdrawn for any arbitrary reason or because of the fact that the applicants have a disability. While sympathetic to the applicants’ circumstances, the respondent states that the Applications should be dismissed.

13Following mediation, on September 14, 2011, the respondents filed a Request for Summary Hearing reiterating their claim that the Applications fail to disclose a prima facie case of discrimination. The Request was granted by the Tribunal.

The Summary Hearing

14In Dabic v. Windsor Police Service, 2010 HRTO 1994, the Tribunal made the following comments at paras. 8-9:

In some cases, the issue at the summary hearing may be whether, assuming all the allegations in the application to be true, it has a reasonable prospect of success. In these cases, the focus will generally be on the legal analysis and whether what the applicant alleges may be reasonably considered to amount to a Code violation.

In other cases, the focus of the summary hearing may be on whether there is a reasonable prospect that the applicant can prove, on a balance of probabilities, that his or her Code rights were violated. Often, such cases will deal with whether the applicant can show a link between an event and the grounds upon which he or she makes the claim. The issue will be whether there is a reasonable prospect that evidence the applicant has or that is reasonably available to him or her can show a link between the event and the alleged prohibited ground.

15In the Tribunal’s CAD setting up the summary hearing, the Tribunal directed the applicants to specifically make argument answering the respondent’s arguments in its Request for Summary Hearing and to address the basis on which the Applications have a reasonable prospect of success, in particular in light of the Tribunal decision in Bunda.

16At the summary hearing, the applicants advanced a different argument from that set out in the Applications. The applicants now frame their claim as one of “systemic discrimination” and allege that they were discriminated against during the period they were in the IBI program which ultimately led to an “incorrect clinical decision” to discharge them from the program.

17The applicants state that the Ministry Guidelines for IBI require that a regional program such as the respondent conduct an assessment to determine eligibility and where eligibility is established, determine intensity, setting and duration of the treatment which is to be evaluated at regular intervals (minimally, every six months). In this case, the applicants allege that the respondent did not follow these Ministry guidelines since it only assessed the applicants on three occasions: 2002, 2005 and 2008. The applicants allege that the failure to assess at regular intervals means that the “system” failed them by never allowing them to achieve what they could have achieved had they received regular assessments.

18The applicants state that the reason they were not assessed regularly is because of the severity of their disability. Had they been higher functioning, the applicants allege that the respondent would have taken a more active approach in its management.

19The applicants state that these facts make the Bunda case distinguishable since the Tribunal in that case specifically found that that applicant’s progress had been evaluated in accordance with the Ministry guidelines.

20In support of their argument, the applicants rely on the Ministry Guidelines which appear to contemplate assessments occurring at six-month intervals. In addition, the applicant relies on the report of Dr. Joel Hundert, a licensed psychologist and Board Certified Behaviour Analyst. The applicants highlight certain critiques made by Dr. Hundert about the respondent’s process, including that the purpose of IBI was not clarified at the outset of treatment nor how evaluation would occur so as to guide the areas in which the respondent was providing programming and the manner of programming; and that at no point prior to discharging the applicants did the respondent state, in measurable terms, the amount of gain and in what areas would be considered as representative of adequate progress to warrant continuation of IBI. Given his criticisms, Dr. Hundert concludes that it cannot be determined if the gains made by the applicants were adequate as there was not a reasonable process used to evaluate their gains suggesting that the method of evaluation was not “transparent, objective nor individualized”.

21The respondent argues that the applicants are now recasting their Applications to advance a new claim that they were discriminated against while in the program. While the respondent disputes that they were not treated in accordance with the Ministry guidelines, it also argues that it would be inappropriate for the Tribunal to consider such a claim because it is untimely (given that the Application was not brought until 12 months after the decision to demit the applicants from the program). With respect to the decision to discharge, the respondent continues to argue that this is a clinical decision which cannot be subject to an application under the Code.

22Further, the respondent notes that even the applicants’ own evidence does not take issue with the clinical decision being improper or tainted in some way.

DECISION

23The issue before me in determining this summary hearing is whether the applicants have a reasonable prospect of showing that in discharging them from IBI treatment (or in their time in the program considering their expanded claim), the respondent treated them differently from others on the basis of disability, in a manner that constitutes discrimination.

24In considering this issue, I appreciate the significant challenges faced by the applicants’ mother. However, I agree with the view expressed by the Tribunal in Bunda that questions of funding for IBI and the most appropriate discharge criteria are for the government and agencies such as the respondent who administer the program. The issue before me is limited to whether there is no reasonable prospect that the applicants can establish discrimination on the basis of disability by this respondent in how they were treated while in the program that currently exists. I find that there is not.

25As originally framed, the applicants’ allegation that the discharge decision was discriminatory would appear to raise the same issue as Bunda, namely a challenge to a clinical decision to discharge the applicants from IBI funding stemming from the applicants’ belief that the decision is wrong since they had made progress while in the program and that there were other factors at work in discharging them i.e. financial related to the severity of their disabilities. In the absence of pointing to any evidence that demonstrates that discriminatory factors were at play or that the reasons given were a pretext I find that there is no reasonable prospect that the applicants will be able to establish discrimination in their discharge.

26However, as noted above, the applicants reformulated their argument in the summary hearing. The applicants now allege that Bunda is distinguishable because in this case, the applicants were not assessed regularly (every six months) during the approximate eight years they were receiving either treatment or funding from the respondent (a claim that the respondent disputes). The applicants state that the respondent’s reasons for not doing so was linked to the severity of their disabilities and that if they had been higher functioning the respondent would have taken a more active approach in evaluating them.

27I am concerned about the applicants expanding their allegations at this stage. This is not a summary hearing early in the process. The Response and Reply have been filed and mediation has occurred. I agree with the respondent that the applicants’ argument now seems to include a challenge to how they were treated in the program, a significant expansion given that the applicants were in the program for about eight years.

28However, ultimately, I do not find it necessary to determine whether the expanded allegation is untimely, since even if I consider the allegation, I am not convinced that there is a reasonable prospect that the applicants can prove discrimination based on the submissions made and the evidence referenced.

29First, I do not interpret Bunda as being limited in the manner the applicant suggests. In Bunda, one of the applicant’s arguments was that the discharge policies applied by the respondent discriminated against children at the more severe end of the autism spectrum. At paras. 7 and 8, the Tribunal rejected this argument for two reasons: that the reports suggested that the individual applicant’s progress was evaluated (the decision does not set out in any detail what the evaluation was – only that the criteria challenged were not applied); and that the expert’s affidavit in that case did not address whether the criteria applied had a negative impact on children with certain kinds of autism.

30I do not view this decision as being premised on a factual foundation that the applicant was not discriminated against because he was assessed at regular six-month intervals given the absence of details about the particular evaluation in that case. On the contrary, Bunda dealt with a very similar factual situation to that before me of an applicant with a severe disability who was discharged from treatment because of a conclusion that the IBI had not been effective in changing the applicant’s rate of learning. It stands for the proposition that it is not the role of the Tribunal to evaluate a respondent’s clinical decision, and that there must be some evidence of an impact on the applicants because of the nature of their disability for a case to move forward. In order to establish that they have a reasonable prospect of success the applicants need to point to something more than simply a disagreement as to the appropriate standard of care with respect to these treatment services.

31Second, it appears from the applicants’ submissions that their claim that they were treated differently from other recipients in the regularity of their assessments, due to the nature of their particular disabilities, is speculative. That is, the only evidence that the applicants pointed to in support of their contention that other recipients were evaluated on a six-month basis is the Ministry guideline. I am not convinced that the guideline is evidence that the applicants were treated differently from other recipients of services. While it may be that evidence of how other recipients of the services were actually treated is not available to the applicants, a speculative claim does not lead me to conclude that there is a reasonable prospect of proving discrimination.

32Further and in any event, even accepting that the applicants will be able to prove that they were not assessed regularly, whereas other recipients of treatment or funding were, it is not apparent that this will assist the applicants in proving discrimination unless they can establish that the nature and/or frequency of the assessments disadvantaged them on the prohibited ground of disability. Based on the submissions made and the documents the applicant has referred me to, I find that there is no reasonable prospect that they can prove that it did.

33In support of their claim that the “system” discriminated against them, the applicants rely on Dr. Hundert’s report summarized above. However, while Dr. Hundert critiques the approach used, his conclusion is limited to an opinion that it “cannot be determined if the gains made by [the applicants]…are adequate…”. While Dr. Hundert offers a different view on the clinical process and standards used, I agree with the respondent’s submissions that Dr. Hundert’s report does not suggest that the decision to discharge was tainted in any way by Code grounds. Further, Dr. Hundert does not conclude that the applicants would have performed differently had a different process been employed. In sum, the evidence relied on by the applicants critiques the method of evaluating progress used by the respondent, but falls short of linking those critiques to the applicants’ disabilities in a way that would establish discrimination. As such, I am left with only the applicants’ assertion that they were never allowed to achieve what they could have achieved. I find that there is no reasonable prospect of proving discrimination on the basis of an assertion alone.

34The Applications are dismissed.