Date: 20060707 File: C43425

Synopsis of Wynberg, R. et al v. H. M. Q. in Right of Ontario and

Deskin, M. et al v. H.M.Q. in Right of Ontario

On December 5, 6, 7, 8 and 9, 2005, the Court of Appeal for Ontario heard an appeal from a successful constitutional challenge to Ontario’s failure to provide a program consistent with its Intensive Education Intervention Program (IEIP) to autistic children age six and over. The panel of the Court of Appeal for Ontario consisted of Justices Stephen Goudge, Janet Simmons and Eileen Gillese.

The IEIP is an intensive program offered by Ontario to children with autism, between the ages of two and five. The primary constitutional challenge claimed discrimination on the basis of age and disability. The Attorney General of Ontario brought the appeal, from the decision of Justice Kiteley, dated March 30, 2005.

Autism is a devastating paediatric disorder. It encompasses a spectrum of disorders characterized by pervasive difficulties in reciprocal social interaction, pervasive impairment in verbal and non-verbal interaction, and a pattern of restricted, repetitive, and unusual behaviours and interests.

The Ontario government undertook to design a program to assist children with autism. These efforts culminated in September 2000 with the release of the IEIP Guidelines and the commencement of IEIP services to autistic children age two to five.

IEIP is an intensive behavioural intervention service for autistic children. The Guidelines are based on expert evidence showing that intervention should begin as early as possible after identification or diagnosis, be intensive and directly delivered. To be effective, the intervention should range from twenty to forty hours per week, and typically last for one to two years. The intervention is to be delivered by well-trained staff who are monitored and evaluated by highly trained experts. Ontario undertook a major training initiative to build capacity to deliver the IEIP, however, capacity was, and remains an issue.

The Court of Appeal unanimously allowed the appeal and held that the Ontario program was not discriminatory and did not contravene the Charter of Rights and Freedoms.

Issue One – The Age Discrimination Claim

The trial judge found that the IEIP was in many respects an exemplary program for autistic children age two to five. She also found that for school age children, in comparison to children age two to five, there was only modest research about the efficacy of intensive intervention. However, she held that Ontario violated the equality rights of the infant plaintiffs on the basis of age because of the upper age limit of the IEIP.

The Court of Appeal applied the equality law jurisprudence of the Supreme Court of Canada. The Court found that the claimants had been accorded differential treatment based on age, in that children with autism age six and older were denied the benefit of the IEIP, which children age two to five received. However, the Court found that the respondents had not established that this differential treatment constituted discrimination against them.

The Court found no doubt that all autistic children, regardless of age, have historically suffered significant prejudice and disadvantage as a result of their disability because of stereotyping and misconceptions about their human potential. However, the ground of discrimination in this case is age and the Court of Appeal found no evidence that autistic children age six and over have suffered historical disadvantage compared to younger autistic children as a result of stereotyping on the basis of their age.

The IEIP is an ameliorative program meant to focus limited resources on children age two to five. The situation of autistic children age two to five is different from those six and older. All the expert evidence emphasized the unique ‘window of opportunity’ that children age two to five present in being able to particularly benefit from an intensive intervention program. As well, children over the age of six are in school and cannot undertake the twenty to forty hours a week that the IEIP entails, as younger children can. The IEIP was not designed for the needs, capacities and circumstances of the older group, but is specifically tailored to those age two to five. The Court of Appeal disagreed with the trial judge’s finding that this is one of those “rare occasions” where a targeted ameliorative program is discriminatory.

The Court found that this program must be seen as carefully targeted to ameliorate the disadvantage experienced by autistic children age two to five. It is fully focused on their particular capacities and circumstances and their unique potential to benefit from it. Exclusion of the older autistic children because of their age from a program so particularly targeted and designed to assist the younger disadvantaged group does not deny the older children their human dignity or devalue their worth as members of Canadian society.

Issue Two – The Disability Discrimination Claim

The trial judge held that Ontario violated the claimants’ equality rights on the basis of disability in failing to provide a program consistent with the IEIP as the only special education program for school-aged autistic children that is appropriate.

The Court of Appeal found that children with autism are properly compared to other exceptional children in the education system who have other disabilities. However, for several reasons, the Court found that compared to those children, the claimants have not demonstrated that they have been subjected to differential treatment because they do not receive a special education program consistent with the IEIP.

In particular, it was not demonstrated that such a program could be delivered within the public school system because of the time and intensity it involves. There was no evidence about how effective the existing programs for autistic children are, preventing the conclusion that an IEIP program is the only one that is effective. Nor was there sufficient evidence about the programs provided to students with other disabilities to permit the conclusion that they all receive proper special education programming and that autistic students were therefore differently treated because of their disability. Thus, the Court found that differential treatment and therefore the claim of discrimination based on disability was simply not established.

Issue Three – Section 1 of the Charter and the IEIP

The trial judge found that Ontario failed to demonstrate the age cut-off was a reasonable limit under s. 1 of the Charter.

Even though the Court of Appeal did not find the IEIP was discriminatory, it went on to find that the government had demonstrated that the age cut off was a reasonable limit under s. 1 of the Charter.

First, the Court found the IEIP was “prescribed by law” because the IEIP was created by the Minister under the power given to him by the Children and Family Services Act. Second, the Court held that IEIP was enacted for pressing and substantial objectives.

The IEIP is designed to ameliorate the disadvantage of young children with autism. It is premised on complex psychological and scientific evidence which establishes the importance of delivering intensive intervention to children with autism at early ages. The age limit in the IEIP reflects a balancing of the interests of younger children with those of older children as well as the need for government to allocate scarce resources where they will be most effective.

Eliminating the age limit would lead to available resources being used for older children. Children in the targeted age group are already unable to obtain intensive behaviour intervention due to insufficient human resources. A further reduction in the available resources would defeat the important objective of providing services to those whom, all of the experts agree, will benefit the most.

The Court of Appeal found that when considering an allegedly under inclusive government program, the court must consider the tension of objectives and the various competing interests the government must reconcile when designing such a program. As the Supreme Court has repeatedly held the proper allocation of limited resources is an important government objective that requires difficult policy choices, one, which the government is in a better position to make. The expert evidence and human resource shortage were reasonable bases on which Ontario could conclude that the age limit interfered as little as possible with the claimants’ equality rights. The record shows Ontario considered a number of alternatives to the age limit as the mechanism for allocating limited resources. By distributing the available resources as broadly as possible among those children who can benefit the most, the salutary effects of the age limit outweighs its deleterious effects.

Issue Four – Remedy

In addition to making declarations, the trial judge ordered damages for the infant claimants to cover the cost of past and future intensive behavioural intervention for them.

On appeal, the Court held that damages were an inappropriate remedy. As a general rule, damages are not available when declaratory relief is provided. This applies equally where it is government action or a statute that is declared unconstitutional.

It is impossible to assess the loss attributable to the claimants without speculation. It is not known whether the government would have created the IEIP had it been unable to target children with autism age two to five. It cannot be assumed the plaintiffs would have received any funding, much less in the amounts ordered. Further, awarding damages to the plaintiffs effectively gives them priority over all other children with autism who are not before the court. This creates unfairness for autistic children age six and older who are not parties to this proceeding.

There were no findings against Ontario of bad faith, abuse of power, negligence or wilful blindness in respect of constitutional obligations. Thus, damages were not available as a remedy in conjunction with a declaration of unconstitutionality.

Issue Five – The Adult Discrimination Claims

The trial judge dismissed the claims of the adult claimants, finding no discrimination in the provision of education benefits or health benefits. The trial judge found that the parents of children with autism (although not grandparents) constituted an analogous ground of family status. However, she found the adult claimants failed to establish an appropriate comparator group.

On appeal, the Court found that the claims of the adult claimants were derivative from that of the infant claimants, and cannot stand in a better position that the infant plaintiffs. On that basis, the Court dismissed the claims. The Court disagreed with the trial judge’s finding that being a parent of a child with autism is an analogous ground. The Court found it difficult to conceive of family status as constituting an analogous ground where the claim of the parents and grandparents is based not on their own characteristics or identity but, rather, on the characteristics or identity of the infant respondents.

Issue Six - The Life, Liberty and Security of the Person Claims

The trial judge found that neither the infant plaintiffs nor the adult plaintiffs had shown that their rights to life, liberty and security of the person under s. 7 of the Charter had been infringed by the special education regime provided by Ontario.

The Court of Appeal agreed with the trial judge’s conclusion. In particular, since the evidence at trial did not permit a finding that the IEIP is the only effective program for autistic children, there is no factual basis for a conclusion that the IEIP is fundamental to the personhood and development of autistic children. Further, the Court found that existing jurisprudence does not permit them to interpret s. 7 of the Charter as imposing a constitutional obligation on Ontario to ensure that every school-age autistic child has access to specific educational services. In addition, the Court noted that the Education Act does not create a mandatory requirement that school-age children attend public school. Finally, the Court concluded because the evidence at trial does not support the finding that the IEIP is the only effective program for autistic children, there is no factual basis for concluding that the Education Act and the special education regime compel the infant plaintiffs to participate in programming that their parents fear is harmful to them.

Issue Seven – The Negligence Claim

The trial judge found that Ontario does not owe a private law duty of care to the Deskin claimants. She also found that the decision not to extend the IEIP beyond the cut off age of five and not to provide intensive behavioural intervention consistent with the IEIP Guidelines in the special education system are policy decisions for which liability does not lie in tort. She therefore dismissed the Deskin claimants’ negligence claims.

The Court of Appeal agreed with the trial judge’s conclusions. The Court found that at its core, the Deskin claimants’ claim in negligence is that Ontario failed to provide intensive behavioural intervention consistent with the IEIP Guidelines for autistic children as part of the transition to school and as part of the special education regime. The Court agreed with the trial judge that this type of policy decision does not give rise to a private law duty of care. To the extent that s. 7(1)(a) of the Child and Family Services Act and s. 8(3) of the Education Act create duties, the duty created is to the public as a whole rather than to individual users of specific programs.

Disposition

The Court allowed Ontario’s appeal, and dismissed the cross-appeal of the Wynbergs and Deskins.