S.H. v. Ontario (Health and Long-Term Care), 2012 HRTO 872

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

S.H., E.H. and S.A.H. by their next friend, R.H.

Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Minister of Health and Long-Term Care, Toronto Central Community Care Access Centre, and Central Community Care Access Centre

Respondents

DECISION

Adjudicator: Maureen Doyle

Date: May 2, 2012

Citation: 2012 HRTO 872

Indexed as: S.H. v. Ontario (Health and Long-Term Care)

APPEARANCES

S.H., E.H. and S.A.H. by their next friend, R.H., Applicants A. Kaufman and I. Walfish, Counsel

Her Majesty the Queen in Right of Ontario as represented by the Minister of Health and Long-term Care, Respondent Robert Charney, Counsel

Toronto Central Community Care Access Centre and Central Community Care Access Centre, Respondents Wendy Whelan and Cindy Clarke, Counsel

1This is an Application filed on March 29, 2011, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicants allege that the respondents discriminated against them in the provision of services on the basis of disability.

2The respondents requested dismissal of the Application on the basis of s. 45.1 of the Code in that the decision in Cooper v. Ontario (Attorney General) (2009), 2009 CanLII 92113 (ON SCDC), 99 O.R. (3d) 25 (Div. Ct.) (“Cooper”), has appropriately dealt with the substance of this application.

3Following a review of the Application and the respondents’ request for dismissal, the Tribunal issued a Case Assessment Direction (“CAD”) on July 25, 2011, directing that the respondents’ objections would be better dealt with as a Summary Hearing. The CAD directed that the parties would address the following issues:

1. Is there a reasonable prospect that the Application can succeed in light of the analysis of the Court in Cooper?

2. Is there a reasonable prospect that either the Toronto or Central CCAC would be found to have discriminated against the applicants in light of the fact that it appears they were bound by Regulation 286/99? [sic]

3. Is there a reasonable prospect that the applicants’ legal theory and the evidence the applicants intend to present can establish that the respondents discriminated against them?

4. Should the Application be dismissed, in whole or in part, as untimely?

4The Summary Hearing was held in person on January 25, 2012. Given the lengthy arguments made with respect to issues 1 through 3 as stated in the CAD, the parties made argument only on those three questions, and would make argument regarding the fourth issue of timeliness at a later date, if required. As I have found that there is no reasonable prospect of success in light of the analysis of the Court in Cooper, I do not need to consider the parties’ submissions regarding the other questions outlined in issues 2 and 3, nor is it necessary for them to make submissions regarding the issue of timeliness as set out in issue number 4.

DECISION

5For the reasons that follow I find that this matter has no reasonable prospect of success pursuant to Rule 19A of the Tribunal’s Rules of Procedure in light of the Court’s analysis in Cooper.

ANALYSIS

Summary Hearings

6In a summary hearing, the issue is whether the Application should be dismissed, in whole or in part, on the basis that there is no reasonable prospect that the Application or a part thereof will succeed. Rule 19A of the Tribunal’s Rules of Procedure states:

19A.1 The Tribunal may hold a summary hearing, on its own initiative or at the request of a party, on the question of whether an Application should be dismissed in whole or in part on the basis that there is no reasonable prospect that the Application or part of the Application will succeed.

7In Dabic v. Windsor Police Service, 2010 HRTO 1994, at paras. 8 and 9, the Tribunal made the following observations on the type of inquiry that may be involved in a summary hearing:

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.

The Application

8This Application is brought on behalf of three children. The applicants are children who are enrolled in a faith-based private school and each of them has been diagnosed with one or more disabilities. In their Application, they allege that as they have not received certain supports for their disabilities, Her Majesty in Right of Ontario as represented by the Ministry of Health and Long-Term Care (“MHLTC”) and the Community Care Access Centre of Toronto (“TCCAC”) and the Central Community Care Access Centre (“CCCAC”) (the “CCACs”) have discriminated against them on the basis of disability. They state that the failure to provide certain supports for them is discriminatory because there are other children in their classes who have different disabilities for which they receive supports. They allege that they have been discriminated against because they do not have “funded disabilities” while “7 other disabilities do receive funding”.

9The applicant S. H. has a central processing disorder which she alleges makes it difficult for her to understand what the teacher is saying in class and she often misinterprets information. She alleges that she has not received assistance in relation to this disability. She alleges that she is particularly weak in reading and math but needs help in all subjects. By way of remedy, she seeks supplemental tutoring and assistance to cope in school.

10The applicant E.H. has a central processing disorder which she alleges makes it difficult for her to understand what the teacher is saying in class and she often misinterprets information. She alleges that she is very weak in reading and seeks tutoring in literacy skills. She also seeks an “FM system …to improve the signal to noise ratio and the audibility of the teacher’s voice”.

11The applicant S.A.H. has a central processing disorder and “general learning difficulties (disabilities)”. In stating what remedies are sought, the Application indicates that he cannot function in a regular class and states that he requires supplemental help and tutoring in all subjects, particularly English and Science. He also seeks an “FM system to improve the signal to noise ratio and the audibility of the teacher’s voice”, as this would assist him with understanding instructions.

12In addition to the remedies they seek individually, the applicants all ask for a Public Interest Remedy; in particular, they seek “Future Compliance”.

13The CCACs stated, and it has not been disputed, that the children have each received certain other kinds of support for disabilities through the CCACs.

Legislative Framework

14Supports for disabilities provided to children in educational settings are governed by more than one piece of legislation and are the responsibilities of more than one ministry. Broadly stated, certain supports for disabilities are provided for pursuant to the Education Act and its Regulations and are the responsibility of the Ministry of Education (“MEDU”), while others are provided for pursuant to the Home Care and Community Services Act, 1994 (“HCSA”) and its Regulations and the Health Insurance Act (“HIA”) and its Regulations and are the responsibility of the Ministry of Health and Long Term Care (“MHLTC”). The MHLTC funds Local Health Integration Networks who in turn fund CCACs who provide or arrange for certain services.

15The Regulation which has been the focus of discussion in this matter, and which is the Regulation the applicants point to as funding “7 disabilities”, is Ontario Regulation 386/99 (“O. Reg. 386/99”), “Provision of Community Services”, made pursuant to the HCSA. I note here that the Regulation does not in fact list or make reference to “7 disabilities”, but rather, enumerates 7 different kinds of services or goods. In particular, it states in part:

ELIGIBILITY FOR SCHOOL HEALTH PROFESSIONAL SERVCIES

5. (1) In this section,

“school” means a school as defined in subsection 1(1) of the Education Act and includes a private school as defined in subsection 1(1) of that Act;

“school health professional services” means the following professional services that are provided to a person who is enrolled as a pupil at a school on the school premises or while the pupil is being transported to or from the school on a school bus or other school vehicle or participating in a school trip or activity outside the school premises or that are provided to a person who is receiving satisfactory instruction at home in accordance with clause 21 (2) (a) of the Education Act and are necessary in order for the person to be able to receive instruction:

1. Dietetics services.

2. Nursing services.

3. Occupational therapy services.

4. Physiotherapy services.

5. Speech-language pathology services.

6. Medical supplies, dressings and treatment equipment necessary to the provision of the services referred to in paragraphs 1 to 5.

7. Training of school personnel to provide the services referred to in paragraphs 1 to 5 to persons enrolled as a pupil at the school.

(2) A community care access centre shall not provide school health professional services to a person unless the person meets the following eligibility criteria:

1. The person must be enrolled as a pupil at a school or be receiving satisfactory instruction at home in accordance with clause 21 (2) (a) of the Education Act.

2. The person must require the services,

i. in order to be able to attend school, participate in school routines and receive instruction, or

ii. in order to be able to receive satisfactory instruction at home in accordance with clause 21 (2) (a) of the Education Act.

3. The person must be an insured person under the Health Insurance Act.

4. The school or home in which the service is to be provided must have the physical features necessary to enable the service to be provided.

5. The risk that a service provider who provides the service to the person will suffer serious physical harm while providing the service must not be significant or, if it is significant, the service provider must be able to take reasonable steps to reduce the risk so that it is no longer significant.

MAXIMUM AMOUNT OF SCHOOL PROFESSIONAL SERVICES

6. A community care access centre that provides school health professional services to a person who is receiving satisfactory instruction at home in accordance with clause 21 (2) (a) of the Education Act shall not provide more than six hours of school health professional services a day to that person, five days a week.

ELIGIBILITY FOR SCHOOL HEALTH PERSONAL SUPPORT SERVICES

7. (1) In this section,

“school” means a private school as defined in subsection 1(1) of the Education Act;

“school health personal support services” means the following personal support services that are provided to a person who is enrolled as a pupil at a school on the school premises or during a school trip or activity outside the school premises or that are provided to a person who is receiving satisfactory instruction at home in accordance with clause 21 (2) (a) of the Education Act and are necessary in order for the person to be able to receive instruction:

1. Personal hygiene activities.

2. Routine personal activities of living.

3. Medical and personal equipment necessary to the provision of the services referred to in paragraphs 1 and 2.

4. Training of school personnel to provide the services referred to in paragraphs 1 and 2 to persons enrolled as pupils at the school and assisting the personnel in providing them.

(2) A community care access centre shall not provide school health personal support services to a person unless the person meets the following eligibility criteria:

1. The person must be enrolled as a pupil at a school or be receiving satisfactory instruction at home in accordance with clause 21 (2) (a) of the Education Act.

2. The person must require the services,

i. in order to be able to attend school, participate in school routines and receive instruction, or

ii. in order to be able to receive satisfactory instruction at home in accordance with clause 21 (2) (a) of the Education Act.

3. The person must be an insured person under the Health Insurance Act.

4. The school or home in which the service is to be provided must have the physical features necessary to enable the service to be provided.

5. The risk that a service provider who provides the service to the person will suffer serious physical harm while providing the service must not be significant, or, if it is significant, the service provider must be able to take reasonable steps to reduce the risk so that it is no longer significant.

(3) A community care access centre that provides school health personal support services under this section to a person who is receiving satisfactory instruction at home in accordance with clause 21 (2) (a) of the Education Act shall not provide more than six hours of those services a day to that person, five days a week.

16Prior to the year 2000, services listed in O. Reg. 386/99 were made available only to pupils in the publicly-funded public and Catholic school systems. In 2000, however, O. Reg. 386/99 provided for the first time that these services would also be made available by the MHLTC through the CCACs to pupils in private schools and to those pupils receiving instruction at home.

17Other supports are provided to children with disabilities in educational settings pursuant to the Education Act, Ontario Regulation 196/10, “Grants for Student Needs” (“GSN”) and are the responsibility of the MEDU.

18At s. 1, the Education Act includes the following definitions:

“board” means a district school board or a school authority;

“district school board” means,

(a) an English-language public district school board,

(b) an English-language separate district school board,

(c) a French-language public district school board, or

(d) a French-language separate district school board;

“school authority” means,

(a) a board of a district school area,

(b) a board of a rural separate school,

(c) a board of a combined separate school zone,

(d) a board of a secondary school district established under section 67,

(e) a board established under section 68, or

(f) a board of a Protestant separate school;

“school” means,

(a) the body of elementary school pupils or secondary school pupils that is organized as a unit for educational purposes under the jurisdiction of the appropriate board, or

(b) the body of pupils enrolled in any of the elementary or secondary school courses of study in an educational institution operated by the Government of Ontario,

and includes the pupils who are enrolled in extended day programs in the unit or institution, the teachers, designated early childhood educators and other staff members associated with the unit or institution, and the lands and premises used in connection with the unit or institution

19The GSN is a regulation pursuant to the Education Act which provides for grants to district school boards from the MEDU. Included in the GSN are “special education allocation” grants, which in turn include, among other things, a “special education amount” and a “special equipment amount” for boards.

20As the GSN provides for grants to district school boards, and as private schools do not fit the Education Act definition of “board” or “district school board”, it does not provide for grant allocations to private schools from the MEDU. Accordingly, private schools do not receive grant allocations to include a “special education amount” or a “special equipment amount” from the MEDU.

The Decision in Cooper

21The first question addressed at the Summary Hearing was whether the Tribunal should find that there is no reasonable prospect of success for the Application based on the decision of the Divisional Court in Cooper. In Cooper, the applicants were children who attended faith-based private schools and who were not in receipt of “special education benefits provided to children in public and separate schools”. In particular, the applicants were seeking assistance such as a teacher’s assistant, a computer to generate schoolwork in large print for the visually impaired, FM systems for the classroom, itinerant teachers’ aides, speech therapists for hearing-impaired students, speech language therapy for students with language disorders, remedial assistance and computers with specialized software to help students with learning disabilities. The court stated:

They [the applicants] assert that this violates their rights guaranteed by the Canadian Charter of Rights and Freedoms in two ways:

1. Their religious beliefs compel them to attend faith based schools. Denial of the special education benefits violates the fundamental freedom of conscience and religion.

2. The special education benefits are in reality health care benefits, and the exclusion of the benefits they seek from Regulation 386/99, which offers some services offered by regulated health professionals to students in private, public and separate schools, discriminates against them on the ground of disability, and violates the equality rights provided by s. 15 of the Charter.

22The court in Cooper stated that the applicants submitted that Regulation 386/99 is “under-inclusive because it does not provide the services they need for visually and hearing impaired students, for students with speech and language disorders and learning disabilities”.

23The court in Cooper dealt separately with the Applicants’ claims for speech pathology services, which are provided both by the MHLTC and the MEDU, but summed up its findings dismissing the claim as it related to the other services sought as follows:

Accordingly, the Applicants’ claim that the failure to provide special education services to faith based religious schools violates their Charter rights fails on four grounds:

1. Adler v. Ontario, 1996 CanLII 148 (SCC), [1996] 3 S.C.R. 609 (S.C.C.) (“Adler”), holds that Ontario is under no obligation to extend funding to private religious schools.

2. Regulation 386/99 is not discriminatory on its face or in its effects.

3. The Applicants are claiming a benefit outside the scope of the regulation challenged.

4. The regulation establishes an ameliorative program within the meaning of s. 15(2) of the Charter.

The Summary Hearing

24At the Summary Hearing, counsel for the applicants accepted that the Supreme Court in Adler has rendered the question of differences in funding between children in public and Catholic schools and children in private schools immune to a challenge under the Charter of Rights and Freedoms. Counsel asserted, however, that the question before the Tribunal does not involve a comparison between children with a disability who are enrolled in publicly funded schools and children with a disability who are enrolled in private schools, but rather, it involves a comparison between children with different disabilities who are enrolled in private schools. Counsel submitted that once the government made the decision to begin funding support for pupils with disabilities in private schools, it was bound to do so in a non-discriminatory fashion. Counsel submitted that in funding supports for some pupils in private schools and not for others in private schools, the government discriminates against pupils on the basis of disability. Counsel also submitted that the regulation makes an arbitrary distinction between health and education benefits.

25Though counsel for the applicants accepted the decision in Cooper, he submitted that the decision in Cooper does not address the question of discrimination on the basis of disability as between pupils in a private school, but rather, that it only addresses the question of discrimination on the basis of disability as between pupils in publicly funded schools and private schools. He submitted therefore that it cannot foreclose allegations that the respondents have discriminated on the basis of disability as between pupils within a private school. Counsel for the applicants submitted that if such allegations are foreclosed by Adler and Cooper, it means that no student in private schools can ever challenge a government program as being discriminatory: he postulated that should the government ever legislate provision of a benefit to one gender in private schools to the exclusion of the other gender in private schools, students in private schools would be foreclosed from claiming discrimination. Counsel submitted that Cooper did not address the question of whether the government has discriminated on the basis of disability in providing funding to pupils in private schools for support for some disabilities, but not others.

26Counsel for the applicants outlined his various concerns with the decision in Cooper and submitted that it cannot foreclose the reasonable prospect of success in this Application because:

1. The decisions in Adler and Cooper are distinguishable, as they deal with different situations than the one in this Application: in Cooper, the Court never turned its mind to the question of a government program in a private school;

2. There was no human rights analysis provided in Cooper, indicating why this O. Reg. 386/99 is not discriminatory under the Charter or the Code;

3. The United Nations Convention regarding People with Disabilities was ratified by Canada subsequent to the decision in Cooper and therefore was not considered by the Court.

27The applicants submitted that the decision in Cooper relied upon Adler, a decision which had not addressed the issue of government programs in private schools, as there were none at the time. The applicants allege, however, that subsequent to Adler, in providing services to students in private schools, pursuant to Regulation 386/99, the MHLTC and the CCACs have discriminated against them on the basis of disability. They submit that as they are not arguing discrimination on the basis of religion, their argument is not foreclosed by Adler, and to the extent that Cooper relied upon Adler, their argument is not foreclosed by Cooper, either.

28At the summary hearing, the applicants submitted that Regulation 386/99 includes “7 disabilities” and that according to the regulation, they have the “wrong kind of disability”. They submitted that they do not receive the “health-related services” they need because they do not have one of the “listed” disabilities. The applicants pointed to several statements from members of the Ontario legislature in 2000 regarding extending funding through the Ministry of Health and Long-Term Care for the medical requirements of special-needs children in such a way as to include students in all denominational schools. The applicants submitted that meeting their needs falls within the purpose of the regulation of providing for the medical requirements of special-needs students in all denominational schools. They pointed to the Client Services Policy Manual of the CCACs with regard to School Services and noted that it states services are provided to children and youths “to assist them in pursuing their education”. They noted that clause 5(2)(ii) of the regulation states that school health professional services shall not be provided by a CCAC unless the person requires the services “in order to be able to attend school, participate in school routines and receive instruction”, but that their needs are not included in the regulation. They argue that they also could use the help of a health care professional to help them access the school environment. Upon questioning at the Summary Hearing, counsel indicated that they could make use of the assistance of an audiologist.

29The applicants argued that the court had not engaged in a human rights analysis in Cooper. They submitted that the only human rights analysis to be found in the decision is at paragraph 14 where the court stated that the regulation “in no way perpetuates stereotype, prejudice or disadvantage”. They submitted that the court could have considered the purpose of the benefits scheme, it could have done a comparative analysis between those who do receive the benefit and those who do not, it could have discussed human dignity, the effects of exclusion from benefits on the applicants, and the question of accommodation up to the point of undue hardship. The applicants submitted that there is no human rights analysis to be found in the decision in Cooper because the court had already found that the matter had been foreclosed by Adler. They submitted that the dissent accepted the conclusion that the facts of the case were governed by Adler.

30Summing up, counsel for the applicants submitted that they have been denied benefits they require for their particular type of disability and that the reason the benefits have been denied is based on the type of disability they have. They submitted that there is no other reason they do not get the benefits and that therefore the onus shifts to the respondents to provide a justification for their exclusion. They argued that their Application has a reasonable prospect of success. They argued that to find that their Application would not have a reasonable prospect of success in light of Cooper would be to find that private school students may not allege that government programs are discriminatory. Counsel for the applicants submitted that the Tribunal should exercise its discretion to allow the Application to proceed.

31Counsel for the respondent MHLTC submitted that this Application should be dismissed either as having no reasonable prospect of success, pursuant to Rule 19A, given the Divisional Court’s binding decision in Cooper, or alternatively pursuant to s. 45.1 of the Code as the Divisional Court has appropriately dealt with the issue in Cooper.

32Further, counsel for both respondents submitted that there is no reasonable prospect of success in the Application as against the CCACs as they have no choice in the matter and must operate in accordance with the provisions of the legislation. Counsel for the MHLTC submitted that the essential question is the validity of the government’s regulation.

33Counsel for the MHLTC submitted that the Court in Cooper dealt with both questions before it, namely, whether O. Reg. 386/99 is discriminatory on the basis of creed and whether it is discriminatory on the basis of disability and that its findings are binding on this Tribunal.

34Counsel for the respondent MHLTC submitted that the issue before the Tribunal is identical to the second issue before the Court in Cooper. He submitted that according to the requested remedies listed in the Application, the applicants here seek supports similar to the supports sought by the applicants in Cooper. He submitted that none of these supports are provided by health care professionals and that O. Reg. 386/99 only provides for regulated health care professional services. He submitted that the applicants in both cases make a claim for classroom support and equipment, not for health care benefits, which are the only subject of O. Reg. 386/99. With regard to the applicants’ counsel’s assertion at the Summary Hearing that the applicants could make use of an audiologist, he noted that there is no suggestion anywhere in the Application that they require the assistance of an audiologist, asked for such assistance or need such assistance for school. He submitted that in fact no health care professional services are claimed as remedies.

35Counsel for the respondent MHLTC submitted that the regulation lists services provided by regulated health care professionals and that contrary to the applicants’ assertion, it does not set out “select disabilities”. He submitted that the regulation makes no distinction based on disability and that in fact persons with a broad range of disabilities may require the assistance of the listed health care professionals. If an individual needs one of the listed services to attend school, no matter what the disability, the individual will receive the service.

36Counsel for the MHLTC submitted that the services listed in O. Reg. 386/99 do not include special education services, and that there is an entirely different statutory scheme which has as its purpose the funding of special education programs and equipment. He submitted that those are the kind of services and goods contemplated by the GSN, a regulation which applies only to publically funded schools. He submitted that though the applicants are trying to characterize the benefits they seek as “health care benefits”, they are in fact “special education benefits”. He notes that the court in Cooper dealt with the same issue, and that the applicants in Cooper were seeking essentially the same kinds of benefits. At paragraph 12, the court stated:

Here the benefit claimed by the Applicants is substantially for classroom support and equipment, entirely outside the scope of the benefits provided by Regulation 386/99.

37Contrary to the applicants’ argument that the Divisional Court in Cooper did not engage in any human rights analysis, counsel for the MHLTC submitted that the decision does indeed contain a human rights analysis, and that the court considered the relevant legislative regime and its purpose.

38Counsel for the MHLTC submitted that the applicants argue that the regulation is under-inclusive because it does not provide the services they need. He submitted that in Cooper, the Divisional Court has already addressed this issue. He submitted that the first issue before the court, namely, discrimination on the basis of religion, was dealt with reference to Adler. He submitted, however, that the second issue before the court, namely that of discrimination on the basis of disability, was also addressed and that in doing so, the court engaged in a good deal of “non-Adler analysis”. For example, he noted that the court had reference to Auton v. British Columbia, 2004 SCC 78. He submitted that the court used the approach from Auton to consider the overarching purpose and scheme of the statutory benefit program and to find that the exclusion of the benefits sought was “entirely consistent with the purpose and scheme of the regulation”. He submitted that the Divisional Court’s conclusion regarding the purpose and scheme of the regulation is binding on this Tribunal. He pointed to the court’s finding that the regulation makes “no distinction on the basis of disability or any other enumerated ground of discrimination” and submitted that this finding of the court is also binding on the HRTO.

39Counsel for the MHLTC also submitted that the court in Cooper distinguished the case before it from such cases as Eldridge v. British Columbia, 1997 CanLII 327 (SCC), [1997] 3 S.C.R. 624, which was concerned with unequal access to a benefit that the law conferred. He submitted that at paragraph 13, the court distinguished the facts before it finding that the applicants were seeking access to a benefit which is “outside the scope of the regulation they challenge”.

40Counsel for the MHLTC submitted that the court also determined that the regulation does not perpetuate a stereotype, prejudice or disadvantage and that this conclusion is also binding on the HRTO.

41Counsel for the MHLTC also submitted that the court found that the regulation had an ameliorative and remedial purpose targeting a disadvantaged group, namely, children with health problems. He submitted that the Divisional Court’s conclusion that this regulation is a program meeting the criteria of s. 15(2) of the Canadian Charter of Rights and Freedoms is also a conclusion which is binding on the HRTO. He submitted that given the Supreme Court of Canada’s determination in Tranchemontagne v. Ontario (Director, Disability Support Program), 2006 SCC 14, [2006] 1 S.C.R. 513, the court’s conclusions regarding the Charter also apply to the Code, and accordingly this leads to a finding that the regulation is a also special program designed to assist disadvantaged persons pursuant to the Code. He submitted that where the government creates an ameliorative program it is not open to the complaint that it does not provide more, and that this protection is extended to ameliorative programs to protect them from the scenario where a cash-strapped government would offer nothing where faced with the choice between offering “all or nothing”. Accordingly, he submitted that in addition to the court’s finding that the regulation makes no distinction on the basis of disability, the HRTO is also bound by the court’s finding that the regulation is an ameliorative program under the Charter and under the Code and cannot be found to be discriminatory.

42Counsel for the MHLTC submitted that the court in Cooper did not deal with the question of the duty to accommodate up to the point of undue hardship as they had already found that the regulation was not discriminatory, rendering considerations of accommodation unnecessary.

43Summing up, counsel for the MHLTC submitted that the court in Cooper had found that the same claim, namely the claim for special education benefits in a private school, failed on four grounds: according to Adler, the government is not obliged to extend these benefits to students in private schools; the regulation is not discriminatory on its face or in its effects; the applicants were claiming a benefit which was outside the scope of the regulation; and the regulation establishes an ameliorative program. He submitted that the latter three findings were determinations of the question of whether the regulation discriminates on the basis of disability, and that they are binding on this Tribunal.

44Counsel for the MHLTC cited College of Nurses of Ontario v. Trozzi, 2011 ONSC 4614 (“Trozzi”), and submitted that this Tribunal is not an appellate body and cannot substitute its view of discrimination for the view of other tribunals or of the Divisional Court. He cited paragraph 65 of Trozzi and submitted that this Tribunal “need not be satisfied that it would have reached the same conclusion as that reached in the other forum” and that it is “not the job of the Human Rights Tribunal to parse the reasons of the other tribunal”. He submitted that the applicants are attempting to have this Tribunal parse the Divisional Court’s decision, but that the Tribunal is not entitled to do so. Rather, he submitted, the matter has been appropriately dealt with by the Divisional Court. In a similar vein, he cited Workers’ Compensation Board of British Columbia v. Figliola, 2011 SCC 52 (“Figliola”).

45Counsel for the MHLTC submitted that according to Ball v. Ontario (Community and Social Services), 2010 HRTO 360 (“Ball”), where the benefits sought fall outside the purpose and scope of the regulation, a finding of discrimination does not result. He submitted that in this case, the benefits which the applicants seek are outside the scope of the regulation and the question of whether the exclusion of those benefits is discriminatory has been determined by the court, consistent with the analysis in Ball.

46Counsel for the MHLTC submitted that this Application should be dismissed, either pursuant to s. 45.1 of the Code, as in Cooper the court has appropriately dealt with the question, or because pursuant to Rule 19 A of the Tribunal’s Rules, it should be dismissed as having no reasonable prospect of success given the fact that the Tribunal is bound by the Divisional Court’s decision in Cooper.

47Counsel for the TCCAC and the CCCAC adopted the submissions of counsel for the MHLTC. Additionally, she submitted that neither the TCCAC nor the CCCAC can be found to have discriminated as they are creatures of statute who are permitted only to discharge legal obligations according to the statutory regime within which they exist. Counsel for the applicants did not dispute the limits of their authority, and indicated that they had been named as respondents to ensure that there was no “gap” in their Application and that they named the “actors” delivering the services.

48Counsel for the TCCAC and the CCCAC also submitted that as of 2000, the regulation applies in the same manner to every student in every school in Ontario, both in publically-funded and privately-funded schools.

49She also submitted that the regulation contains no descriptions of particular disabilities, no specific diagnoses, no features of particular diagnoses, and that it focuses on the nature of the service needed. In short, she submitted that provision of the services enumerated in the regulation is not with reference to a particular disability or diagnosis.

50She submitted that neither the CCCAC nor the TCCAC provides education services, and that they only provide health services.

Analysis

51In addition to the limits of this Tribunal’s ability to consider determinations made by other Tribunals regarding human rights issues, as found in Trozzi and Figliola, where the Divisional Court has determined a question, this Tribunal is bound by that determination.

52In Cooper, the court addressed the argument that “the failure to fund special education benefits in faith based private schools violates the Charter right to freedom of religion” finding that such an argument is foreclosed by the decision of the Supreme Court of Canada in Adler. They found that the Supreme Court of Canada had concluded in Adler that the funding of public schools coupled with the non-funding of private religious schools is immune from Charter attack and therefore does not violate s. 15(1) of the Charter.

53Though the applicants submitted that the court in Cooper did not deal with the second issue before it, namely whether there was discrimination on the basis of disability, the court’s analysis did not stop with Adler or with the issue of discrimination on the basis of religion. The court also considered the second issue before it, namely, whether there was discrimination on the basis of disability. In doing so, the court considered the scope and purpose of the impugned regulation, whether it perpetuates stereotype, prejudice or disadvantage, and whether it can be described as an ameliorative program within the meaning of s. 15(2) of the Charter.

54Further, I find that the court in Cooper did deal with the question the applicants seek to have determined by the Tribunal. The court noted at paragraph 9 that the applicants argued that when the government extended the benefits of services enumerated in Regulation 386/99 to students in private schools, it “opened the door to Charter scrutiny”. At paragraph 10, however, the court stated that:

In any event the decision to provide some services of regulated health professionals does not mean that the failure to fund classroom support and equipment violates s. 15(1) of the Charter.

55The court engaged in analysis which went beyond Adler when it turned to the importance of the purpose of the regulation and at paragraph 11, it cited Auton v. British Columbia:

In Auton, the court continued at paragraph [42],

A statutory scheme may discriminate either directly, by adopting a discriminatory policy or purpose, or indirectly, by effect. Direct discrimination on the face of a statute or in its policy is readily identifiable and poses little difficulty. Discrimination by effect is more difficult to identify. While stereotyping of persons belonging to a group is at issue, assessing whether a statutory definition that excludes a group is discriminatory, as opposed to being the legitimate exercise of legislative power in defining a benefit, involves consideration of the purpose of the legislative scheme which confers the benefit and the overall needs it seeks to meet. If a benefit program excludes a particular group in a way that undercuts the overall purpose of the program, then it is likely to be discriminatory: it amounts to an arbitrary exclusion of a particular group. If, on the other hand, the exclusion is consistent with the overarching purpose and scheme of the legislation, it is unlikely to be discriminatory. Thus, the question is whether the excluded benefit is one that falls within the general scheme of benefits and needs which the legislative scheme is intended to address.

56The only supports for pupils with disabilities in an educational setting provided by the respondents are those available pursuant to O. Reg. 386/99. Those supports, which are made available to students in publicly-funded schools, private schools and in home instruction and are listed in the Regulation, do not include the kind of supports sought by the applicants.

57Other kinds of support, which are provided pursuant to the GSN, are provided by the MEDU to pupils with disabilities who are enrolled in constituent schools of district school boards or school districts as defined in the Education Act.

58In other words, the MEDU does not provide to pupils in private schools the kinds of support the applicants seek, nor does the MHLTC provide those kinds of supports to pupils in any educational setting. MEDU is not a party to this Application and the claim is not a claim as against MEDU.

59The court found at paragraph 12 that the purpose of Regulation 386/99 is to “provide selected services by regulated health care professionals”. It determined that the fact that the regulation did not provide for the kind of benefits sought by the applicants was “entirely consistent with the purpose and scheme of the regulation”, and found that the regulation makes “no distinction on the basis of disability or any other enumerated ground of discrimination”. The Applicants here cite paragraph 68 of Ball and argue that they are being “denied benefits, on the basis of their disability, that fall within the purpose of the benefit scheme.” Though they argue that the distinction between health and education benefits is arbitrary, the finding of the court that there is “no distinction on the basis of disability or any other enumerated ground of discrimination” is binding on this Tribunal. The applicants seek essentially the same kind of benefits as were sought by the Applicants in Cooper, however, the court found exclusion of these benefits from the regulation to be “entirely consistent with the purpose and scheme of the regulation”.

60The court found that the regulation “is not discriminatory on its face or in its effects”. In its finding that the regulation made “no distinction on the basis of disability”, the court clearly addressed the issue of discrimination on the basis of disability and its findings were not stated in terms so narrow as to be confined to the difference between services provided in publicly funded schools and private schools. Rather, in making the broader finding that the regulation “does not make distinctions on the basis of disability”, it addressed exactly the issue which the applicants in this Application ask the Tribunal to consider.

61The court found that the question before it was unlike other cases where the issue was “unequal access to a benefit that the law conferred”, as the Applicants were seeking “access to a benefit which is outside the scope of the regulation which they challenge, and one, which according to Adler, provinces are under no obligation to provide.”

62The court went on at paragraph 14 to find that the regulation “in no way perpetuates stereotype, prejudice or disadvantage as framed in R. v. Kapp 2008 SCC 41, [2008] 2 S.C.R. 483” (“Kapp”). It found that the government’s choice to offer the services enumerated in Regulation 386/99 to students in private schools “has an obvious ameliorative and remedial purpose, and targets a disadvantaged group, children with health problems”. It cited Kapp, finding that as the program has an ameliorative and remedial purpose, s. 15(1) of the Charter cannot be “read in a way that finds an ameliorative program aimed at combating disadvantage to be discriminatory and in breach of s. 15”. It found, therefore, that just because the regulation, which has an ameliorative purpose, does not do more, it cannot be attacked as discriminatory. This is a finding which is applicable to the operation of the regulation wherever it is in effect, either in publicly funded or private schools. The decision in Cooper does not leave room to argue that the regulation operates in a discriminatory way in private schools. I am persuaded that the Divisional Court has decided this question.

63I am not persuaded by the applicants’ argument that the decision in Cooper can be ignored because it was made prior to the Canadian government’s ratification of The United Nations Convention regarding People with Disabilities or the Ontarians With Disabilities Act, 2001, S.O. 2001 c. 32. They submitted that the United Nations Convention would have been a useful interpretive tool and they note that the Ontarians With Disabilities Act was not mentioned in the court’s decision in Cooper. I find that this argument is another iteration of the applicants’ position that the court’s analysis in Cooper was not adequate. I find, however, that the Tribunal is bound by the decision of the Divisional Court in Cooper.

64Though counsel for the applicants indicated at the Summary Hearing that the applicants could make use of the services of an audiologist, there is no suggestion in the Application that this was one of the remedies sought, nor is there any indication that this is a support which is required by the applicants according to the eligibility criteria of the regulation. I note that in their Application, however, the particularized kinds of support include tutors and an “FM system” and there is a reference to the fact that S.A.H. cannot function in a regular classroom. The applicants did not make submissions regarding how tutors and FM systems could be considered services provided by health care professionals, and in any event I find that the court in Cooper has found that these kind of supports are not within the scope of the regulation. I find that the applicants’ position in this case is essentially the same as the position taken by the applicants in Cooper who argued that the regulation “is under-inclusive because it does not provide the services they need for visually and hearing impaired students, for students with speech and language disorders and learning disabilities”. In Cooper, the applicants’ allegation that they are discriminated against by virtue of Regulation 389/99 which only provides for “7 disabilities” was essentially addressed by the court which found that the regulation “is not discriminatory on its face or in its effects”.

65Though counsel for the applicants pointed to the dissent as support for his contention that the decision in Cooper rests solely on Adler, in fact, the dissent begins with a statement accepting the majority’s “analysis…with respect to the ss. 15(1) and (2) of the Charter arguments and the conclusion that the facts of this case are clearly governed by the principles enunciated by the Supreme Court of Canada decision in Adler” [emphasis added]. I am not persuaded that the dissent has defined or limited the majority decision as simply an application of Adler.

66Counsel for the applicants urges the Tribunal to exercise its discretion in order to permit this Application to proceed. The first question posed in the CAD directing that the Summary Hearing take place was whether this matter should be dismissed as having no reasonable prospect of success given the Divisional Court decision in Cooper. I have found that the Divisional Court in Cooper made findings which bind this Tribunal with respect to the question the applicants seek to have determined by the Tribunal. Given the binding nature of the court’s decision, therefore, this Application has no reasonable prospect of success at the Tribunal. In these circumstances, I am not persuaded that it would be appropriate for the Tribunal to exercise its discretion to allow this Application to proceed. The Application is dismissed as having no reasonable prospect of success.

67Finally, while counsel for the applicants submitted that a finding that this Application cannot succeed given the court’s decision in Cooper would mean that students in private schools could never argue that a government program was discriminatory, this would be an overly broad conclusion to draw from the dismissal of this Application. This Application is dismissed as having no reasonable prospect of success due to the binding decision in Cooper that O. Reg. 386/99 is not discriminatory on the basis of disability.