Cooper et al. v. The Attorney General for the Province of Ontario
Cooper et al. v. The Attorney General for the Province of Ontario [Indexed as: Cooper v. Ontario (Attorney General)]
99 O.R. (3d) 25
Ontario Superior Court of Justice,
Divisional Court,
Jennings, Pardu and J. Wilson JJ.
August 28, 2009
Charter of Rights and Freedoms -- Equality rights -- Education -- Ontario's failure to extend special education benefits to children attending private faith-based schools not violating s. 15(1) of Charter -- Canadian Charter of Rights and Freedoms, s. 15(1).
Charter of Rights and Freedoms -- Freedom of religion -- Ontario's failure to extend special education benefits to children attending private faith-based schools not violating children's freedom of religion -- Canadian Charter of Rights and Freedoms, s. 2(a).
The applicant children attended private faith-based schools. They did not receive special education benefits provided to children in public and separate schools. They argued that Ontario's failure to extend those benefits to them violated their rights under the Canadian Charter of Rights and Freedoms, that the special education benefits were in reality health care benefits and that the exclusion of the benefits from O. Reg. 386/99 (which offers some services offered by regulated health professionals to students in private, public and separate schools) discriminated against them on the ground of disability, contrary to s. 15(1) of the Charter. In addition, two of the applicants required both language services and speech services, and were provided only with speech services. They argued that the speech/language services available under O. Reg. 385/99 should not be restricted to speech services only.
Held, the application should be dismissed.
Per Pardu J. (Jennings J. concurring): The applicants' argument that the failure to fund special education benefits in faith-based private schools violated their Charter right to freedom of religion was foreclosed by the decision of the Supreme Court of Canada in Adler v. Ontario. Adler holds that Ontario is under no obligation to extend funding to private religious schools. Ontario Reg. 386/99 is not discriminatory on its face or in its effects. The applications were claiming a benefit outside the scope of the regulation challenged. The regulation establishes an ameliorative program within the meaning of s. 15(2) of the Charter. There is a rational distinction between language and speech disorders, and the provincial [page26 ]regime attempts to respond to the individual needs of students, an approach that is the antithesis of discrimination.
Per Wilson J. (dissenting in part): Ontario Reg. 386/99 provides for the provision of "speech-language pathology services". There is nothing in the regulation that limits the scope of services to speech disorders, nor is such a limitation located in any other statute or regulation. There is no legitimate distinction between speech and language disorders that supports Ontario's denial of funding for language disorders.
APPLICATION for a declaration that failure to provide special education benefits to students in faith-based private schools violates the Charter.
Cases referred to Adler v. Ontario (1996), 1996 148 (SCC), 30 O.R. (3d) 642, [1996] 3 S.C.R. 609, [1996] S.C.J. No. 110, 140 D.L.R. (4th) 385, 204 N.R. 81, J.E. 96-2217, 40 C.R.R. (2d) 1, 66 A.C.W.S. (3d) 1057, folld Eldridge v. British Columbia (Attorney General), 1997 327 (SCC), [1997] 3 S.C.R. 624, [1997] S.C.J. No. 86, 151 D.L.R. (4th) 577, 218 N.R. 161, [1998] 1 W.W.R. 50, 96 B.C.A.C. 81, 38 B.C.L.R. (3d) 1, 46 C.R.R. (2d) 189, 74 A.C.W.S. (3d) 41; Nova Scotia (Attorney General) v. Walsh, [2002] 4 S.C.R. 325, [2002] S.C.J. No. 84, 2002 SCC 83, 221 D.L.R. (4th) 1, 297 N.R. 203, J.E. 2003-102, 210 N.S.R. (2d) 273, 102 C.R.R. (2d) 1, 32 R.F.L. (5th) 81, 119 A.C.W.S. (3d) 42; Ontario (Director, Disability Support Program) v. Tranchemontagne (2009), 2009 18295 (ON SCDC), 95 O.R. (3d) 327, [2009] O.J. No. 1613, 250 O.A.C. 23 (Div. Ct.), distd Other cases referred to 550551 Ontario Ltd. v. Framingham (1991), 1991 7388 (ON SC), 4 O.R. (3d) 571, [1991] O.J. No. 1035, 82 D.L.R. (4th) 731, 49 O.A.C. 376, 4 B.L.R. (2d) 75, 5 C.B.R. (3d) 204, 91 CLLC Â14,031 at 12323, 27 A.C.W.S. (3d) 1181 (Div. Ct.); Auton (Guardian ad litem of) v. British Columbia (Attorney General), [2004] 3 S.C.R. 657, [2004] S.C.J. No. 71, 2004 SCC 78, 245 D.L.R. (4th) 1, 327 N.R. 1, [2005] 2 W.W.R. 189, J.E. 2004-2158, 206 B.C.A.C. 1, 34 B.C.L.R. (4th) 24, 124 C.R.R. (2d) 135, 135 A.C.W.S. (3d) 66; Canadian Pacific Ltd. v. Matsqui Indian Band, 1995 145 (SCC), [1995] 1 S.C.R. 3, [1995] S.C.J. No. 1, 122 D.L.R. (4th) 129, 177 N.R. 325, J.E. 95-232, 26 Admin. L.R. (2d) 1, [1995] 2 C.N.L.R. 92, 52 A.C.W.S. (3d) 1185; R. v. Kapp, [2008] 2 S.C.R. 483, [2008] S.C.J. No. 42, 2008 SCC 41, 175 C.R.R. (2d) 185, EYB 2008-135098, J.E. 2008-1323, [2008] 8 W.W.R. 1, 294 D.L.R. (4th) 1, 232 C.C.C. (3d) 349, [2008] 3 C.N.L.R. 347, 376 N.R. 1, 256 B.C.A.C. 75, 78 W.C.B. (2d) 343, 37 C.E.L.R. (3d) 1, 58 C.R. (6th) 1; Rizzo & Rizzo Shoes Ltd. (Re) (1998), 1998 837 (SCC), 36 O.R. (3d) 418, [1998] 1 S.C.R. 27, [1998] S.C.J. No. 2, 154 D.L.R. (4th) 193, 221 N.R. 241, J.E. 98-201, 106 O.A.C. 1, 50 C.B.R. (3d) 163, 33 C.C.E.L. (2d) 173, 98 CLLC Â210-006, 76 A.C.W.S. (3d) 894 Statutes referred to Audiology and Speech-Language Pathology Act, 1991, S.O. 1991, c. 19, s. 3(2) Canadian Charter of Rights and Freedoms, s. 15(1), (2) Constitution Act, 1867, s. 93 Education Act, R.S.O. 1990, c. E.2, ss. 1(1), 21(2)(a) Health Insurance Act, R.S.O. 1980, c. 197 Health Insurance Act, R.S.O. 1990, c. H.6, s. 14(1)(a) Legislation Act, 2006, S.O. 2006, c. 21, Sch. F, s. 64 Long-Term Care Act, 1994, S.O. 1994, c. 26, ss. 4, (c), 8, (1), 39, 40 Ministry of Health Appeal and Review Boards Act, 1998, S.O. 1998, c. 18, Sch. H, s. 6(3) Rules and regulations referred to Provision of Community Services, O. Reg. 386/99, s. 5, (1), (2) Grants for Student Needs Regulation, O. Reg. 152/07, s. 12(4) [page27 ] O. Reg. 452, R.R.O. 1980 O. Reg. 494/00 O. Reg. 552 Authorities referred to Brown, D.J.M., and J.M. Evans, Judicial Review of Administrative Action in Canada, looseleaf (Toronto: Canvasback Publishing, 2008) Driedger, E.A., Construction of Statutes, 2nd ed. (Toronto: Butterworths, 1983) Ministry of Education, "Policy/Program Memorandum 81" (1984) Ministry of Education, Ministry of Health, Ministry of Community and Social Services, "Interministerial Guidelines for the Provision of Speech and Language Services" (September 1988)
Raj Anand, Allan Kaufman and Farah Malik, for applicants. Robert Charney and Josh Hunter, for respondent.
1PARDU J. (JENNINGS J. concurring): -- The applicant children attend private faith-based schools and do not receive special education benefits provided to children in public and separate schools. They 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 Provision of Community Services, O. Reg. 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(1) of the Charter.
2The special education benefits sought include assistance such as a teacher's assistant and a computer which can generate schoolwork in large print for the visually impaired, classroom frequency modulation systems, itinerant teacher aides and speech therapists for the hearing-disabled, speech-language therapy for language disorders, and remedial teaching assistance and computers with specialized software to help students with learning disabilities. [page28 ] Legislative Regime
3The Education Act was amended in 1980 to require publicly funded school boards to identify exceptional children and provide them with special education programs and services required to meet their needs. Some children with special needs required health services as well, and Regulation 452, R.R.O. 1980 [under the Health Insurance Act, R.S.O. 1980, c. 197] provided that students in "special education programs" in a publicly funded school could have access to "school health support services", defined in s. 44(a)(1)(c) as "services that are provided, on a visitation basis, by a nurse, physiotherapist, occupational therapist, speech therapist or nutritionist". This same provision was carried forward into Regulation 552, enacted pursuant to the Health Insurance Act, R.S.O. 1990, c. H.6, s. 14(1)(a). On March 31, 1995, the Long- Term Care Act, 1994, S.O. 1994, c. 26 came into force. Responsibility for the delivery of school health support s ervices was transferred from the Ministry of Health and Long- Term Care to not-for-profit corporations called Community Care Access Centres. In 2000, O. Reg. 494/00 and O. Reg. 386/99 pursuant to the Long-Term Care Act, 1994 made these same school services available for the first time to students in publicly funded and private schools. The relevant regulation [O. Reg. 386/99], challenged here as underinclusive, provides:
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 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. Nursing services. 2. Occupational therapy services. 3. Physiotherapy services. 4. Speech-language pathology services. 5. Dietetics services.
4The applicants argue that this regulation is underinclusive 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. [page29 ]
5In Ontario, publicly funded school boards are responsible for the provision of special education programs and services to individual exceptional pupils enrolled at a school of the board. Section 1(1) of the Education Act, R.S.O. 1990, c. E.2 provides that "exceptional pupil" means a pupil whose behavioural, communicational, intellectual, physical or multiple exceptionalities are such that he or she is considered to need placement in a special education program by a "committee" of the board. The Ministry of Education provides operating and capital funding to publicly funded school boards to hire staff and provide educational programs pursuant to the Grants for Student Needs Regulation, O. Reg 152/07, which includes a "special education allocation" (s. 12(4)). This amount is designed to meet the incremental costs of special education programs exceeding the basic costs of education associated with all students. The special education grant can only be spent on special education programs, services and equipment for students. It can be used to hire special education teachers, teaching assistants and other professionals, such as psychologists or speech-language therapists. The special education allocation includes components reflecting the numbers of students, their needs, equipment and increased facilities costs. Private schools in Ontario do not receive any funding from the Ministry of Education and are not required to establish special education programs. Analysis
[6]
Analysis
The applicant's argument that the failure to fund special education benefits in faith-based private schools violates their Charter right to freedom of religion is foreclosed by the decision of the Supreme Court of Canada in Adler v. Ontario (1996), 1996 148 (SCC), 30 O.R. (3d) 642, [1996] 3 S.C.R. 609, [1996] S.C.J. No. 110. In Adler, the court held that s. 93 of the Constitution [Constitution Act, 1867] gave constitutional immunity to a province's decisions about public school funding, and observed [at paras. 47-48]:
This protection exists despite the fact that public school rights are not themselves constitutionally entrenched. It is the province's plenary power to legislate with regard to public schools, which are open to all members of society, without distinction, that is constitutionally entrenched. This is what creates the immunity from Charter scrutiny. To paraphrase Wilson J. in Reference Re Bill 30, supra, at p. 1198, funding for public schools is insulated from Charter attack as legislation enacted pursuant to the plenary education power granted to the provincial legislatures as part of the Confederation promise. If the plenary power is so insulated, then so is the proper exercise of it.
One thing, however, should be made clear. The province remains free to exercise its plenary power with regard to education in whatever way it sees fit, subject to the restrictions relating to separate schools imposed by [page30 ]s. 93(1). Section 93 grants to the province of Ontario the power to legislate with regard to public schools and separate schools. However, nothing in these reasons should be taken to mean that the province's legislative power is limited to these two school systems. In other words, the province could, if it so chose, pass legislation extending finding to denominational schools other than Roman Catholic schools without infringing the rights guaranteed to Roman Catholic separate schools under s. 93(1). See the words of Gonthier J., writing for the Court, in Reference re Education Act (Que.), supra, at p. 551. However an ability to pass such legislation does not amount to an obligation to do so. To emphasize, s. 93 defines the extent of the obli gations of the province to set up and fund denominational schools when public schools are established. In this respect, it is a comprehensive code thereby excluding a different or broader obligation regarding denominational schools, while not restricting the plenary power of the province to establish and fund such other schools as it may decide. [Emphasis added]
7The court concluded, at para. 50, that "the finding 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".
8The court also concluded that the failure to extend school health services to private religious schools was equally immune from Charter attack [at para. 54]:
With respect to whether the failure to extend the SHSSP to private religious schools violates either s. 2(a) or s. 15(1) of the Charter, I am in agreement with Dubin C.J.'s resolution of the matter. He characterized the services as "education services" as opposed to "health services". It is true, as the Elgersma appellants maintain, that catheterization does not look much like an educational service. However, it is necessary to look at the context in which these services are provided. The services are delivered in the public schools. They are designed to ensure that children with special needs have full access to the public school system whose constitutionally protected purpose is to provide education to all members of the community. This purpose is made clear in the speech of the Minister of Education, quoted above. Put another way, the provision of the health services to those qualified is simply a means to an end, a way to ensure access to education. Therefore, the SHSSP is simply a m anifestation of the Ontario government's fulfilling its mandate to provide an education designed for all members of the community and is, thus, immune from Charter scrutiny.
9In the second branch of their argument, the applicants submit that the decision by the government to extend school health services to private schools has opened the door to Charter scrutiny of the means chosen. They rely on para. 49 of Adler, to the effect that some legislation about public schools may in fact be open to review on this basis:
Furthermore, it should be pointed out that all of this is not to say that no legislation in respect of public schools is subject to Charter scrutiny, just as this court's ruling in Reference Re Bill 30 did not hold that no legislation in respect of separate schools was subject to Charter scrutiny. Rather, it is [page31 ]merely the fact of their existence, the fact that the government funds schools which are, in the words of the Lord Chancellor, in Brophy, supra, at p. 214, "designed for all the members of the community alike, whatever their creed" that is immune from Charter challenge. Whenever the government decides to go beyond the confines of this special mandate, the Charter could be successfully invoked to strike down the legislation in question. (Emphasis added)
10Adler makes it clear that a province may provide full, partial or no funding to private religious schools, as it sees fit. 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. The applicants are claiming a benefit which is outside the scope of the benefits provided by O. Reg. 386/99. In Auton (Guardian ad litem of) v. British Columbia (Attorney General), [2004] 3 S.C.R. 657, [2004] S.C.J. No. 71, 2004 SCC 78, the claimant challenged the failure of the provincial health insurance scheme to fund specialized treatment for autism. There, the unequal treatment was [at para. 30] "said to lie in funding medically required treatments for non-disabled Canadian children or adults with mental illness, while refusing to fund medically required ABA/IBI therapy to autistic children". The court rejected this argument, at para. 35, observing, ". . . the legislative scheme does not promise that any Canadian will receive funding for all medically required treatment. All that is conferred is core funding for services provided by medical practitioners, with funding for non-core services left to the provinces' discretion. Thus, the benefit here claimed -- funding for all medically required services -- was not provided for by the law."
11In Auton, the court continued, at para. 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. Where 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. T hus, 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. [page32 ]
12Here the benefit claimed by the applicants is substantially for classroom support and equipment, entirely outside the scope of the benefits provided by O. Reg. 386/99. The exclusion of this benefit is entirely consistent with the purpose and scheme of the regulation, to provide selected services by regulated health care professionals. Ontario Reg. 386/99 makes no distinction on the basis of disability or any other enumerated ground of discrimination.
13This case is different from cases like Eldridge v. British Columbia (Attorney General), 1997 327 (SCC), [1997] 3 S.C.R. 624, [1997] S.C.J. No. 86; Nova Scotia (Attorney General) v. Walsh, 2002 SCC 83, [2002] 4 S.C.R. 325, [2002] S.C.J. No. 84; and Ontario (Director, Disability Support Program) v. Tranchemontagne (2009), 2009 18295 (ON SCDC), 95 O.R. (3d) 327, [2009] O.J. No. 1613 (Div. Ct.), all of which were concerned with unequal access to a benefit that the law conferred. Here, as in Auton, the applicants want access to a benefit that is outside the scope of the regulation which they challenge, and one, which according to Adler, provinces are under no obligation to provide.
14The challenged regulation in no way perpetuates stereotype, prejudice or disadvantage, as framed in R. v. Kapp, 2008 SCC 41, [2008] 2 S.C.R. 483, [2008] S.C.J. No. 42.
15In any event, the choice by government to extend school health services to private school students, when, according to Adler, it was under no obligation to do so, has an obvious ameliorative and remedial purpose, and targets a disadvantaged group, children with health problems. In R. v. Kapp, supra, the court noted, at paras. 37-39,
. . . if the government can demonstrate that an impugned program meets the criteria of s. 15(2), it may be unnecessary to conduct a s. 15(1) analysis at all. As discussed at the outset of this analysis, s. 15(1) and s. 15(2) should be read as working together to promote substantive equality. The focus of s. 15(1) is on preventing governments from making distinctions based on enumerated or analogous grounds that have the effect of perpetuating disadvantage or prejudice or imposing disadvantage on the basis of stereotyping. The focus of s. 15(2) is on enabling governments to pro-actively combat discrimination. Read thus, the two sections are confirmatory of each other. Section 15(2) supports a full expression of equality, rather than derogating from it. "Under a substantive definition of equality, different treatment in the service of equity for disadvantaged groups is an expression of equality, not an exception to it": P.W. Hogg, Constitutional Law of Canada (5th ed. 2007). Vol 2. At p. 55-53.
But this confirmatory purpose does not preclude an independent role for s. 15(2). Section 15(2) is more than a hortatory admonition. It tells us, in simple clear language, that s. 15(1) cannot be read in a way that finds an ameliorative program aimed at combating disadvantage to be discriminatory and in breach of s. 15.
Here the appellants claim discrimination on the basis of s. 15(1). The source of that discrimination -- the very essence of their complaint -- is a program that may be ameliorative. This leaves but one conclusion: if the [page33 ]government establishes that the program falls under s. 15(2), the appellants' claim must fail. [Emphasis in original]
16Accordingly, 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 holds that Ontario is under no obligation to extend funding to private religious schools. (2) Ontario Reg. 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. Claims for Speech Pathology Services
[17]
Claims for Speech Pathology Services
Ontario Reg. 386/99 includes "speech language pathology services" when required in order to attend school, participate in school routines and receive instruction. Ontario has divided responsibility for provision of speech-language therapy between the Ministry of Health and the Ministry of Education at least since 1984, well before speech-pathology services were extended to private schools, beginning with "Policy/Program Memorandum 81", of the Ministry of Education, and further elaborated in "Interministerial Guidelines for the Provision of Speech and Language Services" dated September 1988, adopted by the Ministries of Education, Health and Community and Social Services. The purpose of the guidelines was to avoid duplication of service and implement services in an effective and efficient manner. Generally, the guidelines provide that the Community Care Access Centres, funded by the Ministry of Health, would provide speech pathology services in relation to motor speech disorders, fluency, voice and sw allowing disorders, but that school boards would be responsible for language disorders, for example, the inability to translate thoughts into verbal expression and to understand others. The guidelines resulted from a process of consultation, and according to the affidavit of Claire Mclean have a rational basis. She indicates in her affidavit of May 7, 2008:
A language disorder involving impaired grammatical structures, diminished vocabulary or a reduced ability to create complex, descriptive sentences is best treated using language that is highly relevant to that child. The education curriculum, particularly in the early elementary years, [page34 ]involves specific vocabulary, concepts and books. As such, the school environment naturally involves carefully crafted and repetitive language within its lessons. Intervention in a school-based model capitalizes on the child's repeated exposure to the same words and ideas as well as increases the likelihood that the child will be able to successfully participate in that school environment. Speech language pathologists providing services in this stream consult with classroom teachers and parents in order to provide them with the supports necessary to create an environment which is language-rich and which stimulates the child's acquisition of language targets (e.g. vocabulary, grammatical structures). This natural ized teaching approach, delivered by school board staff and parents, in an evidenced- based approach for effective language intervention.
Children with a speech disorder such as dysfluency or an articulation disorder often require a different approach. The primary focus of intervention with these children is to change a pattern of speech production that is delayed or disordered. In this case, solely changing the environment and teaching techniques of parents and teachers will likely be insufficient to facilitate a significant change in the child's speech skills Direct support from a speech language pathologist is required in these cases as only speech language pathologists have specific training in the remediation of such disorders.
18The applicants disagree. They argue that speech-language pathologists are capable of providing both speech and language therapy, that both are health related problems and that O. Reg. 386/99 gives a statutory entitlement to both therapies. Accordingly, it is argued that Julian Aquino, who has been diagnosed with a developmental delayed language disorder associated with a hearing impediment, is entitled to speech- language therapy for this condition, and Betzalel Mintz, who receives speech therapy that does not include assistance with his language delay problems, is entitled to the full services of a speech pathologist for both speech and language problems. Again Adler forecloses the argument that children in private schools are entitled to the same services as children in publicly funded schools. In addition, there is statutory authority for the distinctions that the government has made. Section 8(1) of the Long-Term Care Act, 1994 permits the Minister of Health to "impose terms an d conditions on payments, grants, contributions and other financial assistance provided under this Act . . .". I agree that the province is not required to structure the provision of speech-language therapy to school age children so as to maximize the services available to students at private schools.
19There is a rational basis for the distinction between language and speech disorders, and the provincial regime attempts to respond to the individual needs of students, an approach that is the antithesis of discrimination.
20On this basis the claim for a declaration that Julian Aquino and Betzalel Mintz are entitled to language therapy [page35 ]under O. Reg. 386/99 is dismissed. This claim was not part of the original application and was advanced for the first time in the applicants' factum. There is also an appeal provided from decisions of a Community Care Access Centre which has not been pursued in this case. Either of these two procedural grounds would justify dismissal of this aspect of the claim advanced in the factum. Given that this claim was not part of the record, it would not be appropriate to expect the respondent to address the factual issue of whether these two applicants required the services in order to be able to attend school, participate in school routines and receive instruction, the test specified by the regulation.
21The respondent does not seek costs, and the application is accordingly dismissed without costs.
22J. WILSON J. (dissenting): -- I agree with the analysis of Pardu J. 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.
23However, I respectfully disagree with the conclusions reached [by] my colleagues on the interpretation of the right of two of the applicants in their alternative claim to speech- language pathology services as stipulated in s. 5 of Provision of Community Services, O. Reg. 386/99. Background Facts
[24]
Background Facts
Ontario Reg. 386/99 was introduced in 2000 and extended benefits including speech-language services to students in private schools previously only available to students in the publicly funded system. Under the regulation, services to private school students are provided through the local CCAC.
25Notwithstanding the clear wording of s. 5 of O. Reg. 386/99, when speech-language pathology services were extended to private school students, the government only extended benefits related to speech disorders, not language disorders.
26This limit reflects the historic division of financial responsibility for providing speech-language services in place in the public school system, as agreed to between the Ministry of Education and the Ministry of Health and Long-Term Care. By agreement between the ministries, the Ministry of Health funds speech-language services for speech problems, and the Ministry of Education funds speech-language services for language problems. This division of responsibility and funding has become an issue since speech-language pathology services were extended to private schools. [page36 ]
27Betzalel Mintz and Julian Aquino have speech and/or language disabilities. Betzalel has significant difficulties speaking. Julian has difficulty with language acquisition and he is at the 8th percentile as compared with other students his age.
28In the public school, the speech-language pathologist works with students on an individual basis approximately one hour per month, on their speech-language problems and provides advice to parents and teachers to facilitate learning and language acquisition for each particular student.
29The scope of the speech-language pathology service does not include individual help students may need in the classroom on a day-to-day basis and does not form part of this aspect of the two applicants' alternative claim.
30In the alternative to the broad relief claimed by all, these two applicants seek access to same scope of speech- language pathology services available to students in the public school system in accordance with the plain meaning of s. 5 of O. Reg. 386/99, regardless whether these services are paid for by the Ministry of Health or Education.
31In the public school system, there is a seamless provision of service to children with speech-language problems. A child with speech or language problems, or a combination of both, will receive assistance from a speech-language pathologist on a private basis approximately once a month to assess and treat all speech-language pathology problems which directly impact or are linked to a child's educational programme.
32In the context of the public school system, the agreement between the two Ministries is a workable basis for dividing responsibility for financing speech-language services which overlaps both health and education.
33How does the division of responsibility between the Ministry of Health and the Ministry of Education specifically apply in practical terms with respect to the two applicants, Betzalel Mintz and Julian Aquino?
34It is agreed that Betzalel Mintz has both a speech and language disability. Therefore, using the historic funding model as agreed to by the two Ministries, Betzalel qualifies for assistance from a speech-language pathologist, but only for his speech problem, not his language delay problem. It is not disputed that a single speech-language pathologist is qualified, and does treat both speech and language disorders for children in the public school system. According to the funding model, however, Betzalel is eligible for treatment for only the speech aspect of his problem.
35Julian initially qualified for assistance for a stutter and was approved for assistance with a speech-language pathologist. [page37 ]Later, the local CCAC, which determines eligibility for funding, took the position that Julian did not qualify for any assistance, as he did not have the qualifying stutter, and his problem was diagnosed as solely a language pathology problem. According to the Ontario funding model, language is the responsibility of the Ministry of Education to be dealt with "through the lens of the classroom curriculum". Hence, applying the Ontario government's funding model, Julian qualifies for no speech-language pathology assistance, notwithstanding very significant language difficulties. The Issues
[36]
The Issues
Four questions arise in considering the request of Betzalel and Julian: (1) What are the applicable principles of statutory interpretation to determine the meaning of ss. 5(1) and (2) of 0. Reg. 386/99? (2) Does the Minister of Health and Long-Term Care have the statutory power to limit the services, under ss. 4 and 8 of the Long-Term Care Act, 1994, S.O. 1994, c. 26, or elsewhere? (3) Is there a legitimate distinction between speech and language disorders that supports Ontario's denial of funding for language disorders, given stated purpose that speech-language services shall be provided to students to allow them attend school, participate in school routines and receive instruction? (4) Is the applicants' request premature, as they have not appealed the local Community Care Access Centre ("CCAC") decision denying speech-language pathology services to the Health Services Appeal and Review Board in accordance with ss. 39 and 40 of the Long-Term Care Act, 1994? The Statutory Provisions
37Sections 5(1) and (2) of O. Reg. 386/99 contains the following definition:
"school services" means the following professional services that are provided to a person who is enrolled as a pupil at a school . . . and are necessary in order for the person to be able to receive instruction: . . . . .
- Speech-language pathology services
38Section 5(2) para. 2 clarifies the intended purpose and scope of s. 5(1): [page38 ]
5(2) A community care access centre shall not provide school services to a person unless the person meets the following eligibility criteria: . . . . .
- The person must require the services, i. in order to be able to attend school, participate in school routines and receive instruction. (Emphasis added)
39I turn to consider the arguments raised. 1. Applicable principles of statutory interpretation
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1. Applicable principles of statutory interpretation
The Supreme Court of Canada has adopted the modern approach to statutory interpretation, as explained in E.A. Driedger, Construction of Statutes, 2nd ed. (Toronto: Butterworths, 1983) at p. 87: "the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament" (see Rizzo & Rizzo Shoes Ltd. (Re) (1998), 1998 837 (SCC), 36 O.R. (3d) 418, [1998] 1 S.C.R. 27, [1998] S.C.J. No. 2, at para. 21).
41In addition, all statutes are remedial and therefore require "such fair, large and liberal interpretation as best ensures the attainment of [their] objects": Legislation Act, 2006, S.O. 2006, c. 21 , Sch. F, s. 64.
42Speech-language pathologists are regulated professionals governed by the Audiology and Speech-Language Pathology Act, 1991, S.O. 1991, c. 19. In accordance with s. 3(2), "[t]he practice of speech-language pathology is the assessment of speech and language functions and the treatment and prevention of speech and language dysfunctions or disorders to develop, maintain, rehabilitate or augment oral motor or communicative functions". Speech-language pathologists are qualified to assess and treat both speech and language disorders.
43There is nothing in O. Reg. 386/99 that limits the scope of services to only speech disorders, nor is such a limitation located in any other statute or regulation.
44In Rizzo, the Supreme Court noted, at para. 27: "It is a well established principle of statutory interpretation that the legislature does not intend to produce absurd consequences." The practical application of the AG position to the two applicants in question illustrates that their position is untenable and unworkable, and approaches the absurd.
45Betzalel will receive assistance from a speech-language pathologist for the speech aspect of his problem, but is not entitled [page39 ]to assistance from the same therapist for assistance with his language difficulties.
46As Julian has only profound problems with language, and does not have a stutter, which would be a qualifying speech problem, he is not entitled to any assistance.
47The applicants claim the distinction between speech and language is arbitrary, and in conflict with the plain meaning of ss. 5(1) and (2) of O. Reg. 386/99. The limitation of services is based on a bureaucratic funding decision, not upon a functional analysis of actual needs of the students with disabilities.
48The applicants argue that the two regimes -- health and education -- are "inextricably intertwined". The legislation must be read broadly, with its intended purpose in mind: that is to provide children attending private schools who need speech-language pathology services meaningful access to the classroom. Counsel for the AG confirmed in argument that speech-language pathology services cannot be neatly divided. There are no bright lines, or watertight compartments.
49Had the legislation intended to assist only speech problems, it could have so specified.
50I conclude that prima facie, in accordance with the plain meaning of ss. 5(1) and (2) of O. Reg. 386/99, that the applicants have a valid claim for the same scope of speech- language pathology services that are available to public school students in Ontario. 2. Does the Ministry of Health and Long-Term Care have by statute the power to limit speech/language services available to the applicants pursuant to O. Reg. 386/99 to speech services only?
51The AG relies upon ss. 4 and 8 of the Long-Term Care Act, 1994 as granting authority for the Minister of Health and Long-Term Care to make agreements with other Ministries and to limit responsibility for funding. The AG argues that the Minister of Health and Long-Term Care may therefore limit access to assistance for students in the private schools in accordance with the inter-ministerial funding agreement.
52Section 4(c) clearly grants authority to make agreements for the provision of "community services" by others.
Direct service provision or funding of service providers 4. The Minister, (a) may provide community services; (b) may establish, operate and maintain facilities for the provision of community services; [page40 ] (c) may make agreements with others for the provision of community services by them; [Emphasis added]
53"Community services" is defined in s. 3 to include speech-language pathology. The plain wording of s. 4(c) gives the Minister the power to make an agreement with the Ministry of Education to provide speech-language pathology services. However, the Ministry of Education is not providing services to students enrolled in private school.
54There is nothing in the wording of s. 4 of the Long-Term Care Act, 1994 to allow the Minister to limit the scope of a named professional service listed s. 5 of O. Reg. 386/99. Therefore, s. 4 does not appear to assist the government's position.
55The AG also relies on s. 8 of the Long-Term Care Act, 1994.
56This section allows terms and conditions to be set on the provision of funding, which on its face could include limitations on the scope of speech-language pathology services available through s. 5 of O. Reg. 386/99. The section states:
Terms and conditions of financial assistance
8(1) The Minister may impose terms and conditions on payments, grants, contributions and other financial assistance provided under this Act and may from time to time amend or remove the terms and conditions or impose new terms and conditions.
57This section allows the Minister to impose terms on conditions, payments, etc. It does not authorize the Minister to reduce the scope of services specified in the O. Reg. 386/ 99. The point of this application is that payments the applicants allege are specifically contemplated by O. Reg. 386/ 99 are not being provided.
58An agreement to share responsibility for payment does not trump the plain meaning of the scope of the service to be provided as determined by the words of ss. 5(1) and (2) of O. Reg. 386/99. On its face, subsection (1) refers to "speech- language pathology" services, not "speech pathology" services.
59Therefore, while ss. 4 and 8 allow an agreement to have the Ministry of Education responsible for provision of some services contemplated by O. Reg. 386/99, if the Minister of Education does not provide these services to all eligible students, then the Minister of HLTC must provide the services so long as the student requires them in order to be able to attend school, participate in school routines and receive instruction in accordance with the O. Reg. 386/99.
60I conclude that the Ministry of Health and Long-Term Care does not have by statute the power to limit speech/ language services available to the applicants pursuant to O. Reg. 386/99 to speech services only. [page41 ]
61The answer to question 2, therefore, is no. 3. Is there a legitimate distinction between speech and language disorders that supports Ontario's denial of funding for language disorders?
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3. Is there a legitimate distinction between speech and language disorders that supports Ontario's denial of funding for language disorders?
Given my conclusions with respect to issues 1 and 2, the onus is upon the AG to justify the limitation of services available to private school students to speech services only. I conclude that it has not met this onus.
63Not all services that could be provided by the regulated professionals listed in s. 5 of O. Reg. 386/99 are funded under the regulation. There is clear limiting language contained in s. 5(1) that speech-language pathology services will be provided if the services are "necessary in order for the person to be able to receive instruction". Section 5(2) para. 2 further elaborates on the purpose of the services provided:
5(2) A community care access centre shall not provide school services to a person unless the person meets the following eligibility criteria: . . . . .
- The person must require the services, i. in order to be able to attend school, participate in school routines and receive instruction . . . (Emphasis added)
64None of the affidavit material filed by the AG asserts that the applicants do not require assistance with respect to language, as opposed to speech, to be able to participate in school routines and to receive instruction.
65The affidavits filed by the applicants speak to the children's need for specialized attention for speech-language services.
66There is conflicting affidavit material filed as to whether the distinction used in Ontario between speech and language services is merely a convenience for division of funding between the Ministries, or whether there is a rational, legitimate basis for the distinction.
67I conclude that the AG has failed to meet the onus that speech services only, as opposed to speech and language services, are necessary for the students Julian and Betzalel to be able to attend school, participate in school routines and to receive instruction. From the evidence filed, it appears that the division between speech and language is a convenient form of cost-sharing between two overlapping Ministries, but may have no rational basis when it comes to a student with speech- language difficulties and whether these services are required to enable the [page42 ]student to be able to attend, participate and receive instruction in school. I therefore conclude that the AG has failed to demonstrate some rationale basis for the denial of service of speech-language services to the applicants.
68The answer to question 3, "Is there a legitimate distinction between speech and language disorders that supports Ontario's denial of funding for language disorder?", is no. 4. Is the applicants' request appropriate for judicial review premature?
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4. Is the applicants' request appropriate for judicial review premature?
Neither Betzalel Mintz nor Julian Aquino appealed the decision by their local CCAC to refuse to provide speech- language services. The decision of the local CCAC is usually reviewed by Health Services Appeal and Review Board ("HSARB") in accordance with ss. 39 and 40 of the Long-Term Care Act, 1994.
70It is a general principle that judicial review is not available unless all administrative appeals and other avenues of redress have been exhausted: D.J.M. Brown and J.M. Evans, Judicial Review of Administrative Action in Canada, looseleaf (Toronto: Canvasback Publishing, 2008) at p. 3-23. This is not, however, an absolute requirement: see, e.g., 550551 Ontario Ltd v. Framingham (1991), 1991 7388 (ON SC), 4 O.R. (3d) 571, [1991] O.J. No. 1035 (Div. Ct.).
71The primary focus of this application is concerned with the constitutionality of O. Reg. 386/99, which is alleged to be underinclusive. These broad issues are appropriately dealt with by this court.
72This claim of Betzalel and Julian for speech-language services based on the wording of the regulation is an alternative claim to their primary claim for much broader relief.
73In Canadian Pacific Ltd v. Matsqui Indian Band, 1995 145 (SCC), [1995] 1 S.C.R. 3, [1995] S.C.J. No. 1, the Supreme Court noted that one of the factors to consider when determining if a statutory appeal mechanism is an adequate alternative remedy is the remedial capacity of the appeal body. In this case, the primary relief sought was constitutional in nature. The HSARB is precluded from determining constitutionality: Ministry of Health Appeal and Review Boards Act, 1998, S.O. 1998, c. 18, Sch. H, s. 6(3).
74Normally it is beneficial to have the benefit of reasons to enable the review of decision to deny benefits. However, in this case, Betzalel and Julian's eligibility for speech and language services was denied based upon the historical agreement and division of responsibility between the two affected Ministries, which was fully documented in the record before the court. [page43 ]
75In sum, a number of factors support the conclusion that in the unique facts of this case it is not premature to grant the alternative relief sought by Betzalel and Julian. The primary relief sought by all applicants, including Betzalel and Julian, is properly before this court. The alternative claim advanced is modest and the costs to pursue the alternative claim would be disproportionate to the claim advanced. The words of the statute are clear. There can be no prejudice to determining the alternative claim as extensive affidavit material was filed canvassing the issues, which were thoroughly tested by very capable counsel in their submissions. In these unique circumstances, it is not necessary to require these applicants to exhaust all internal remedies for this aspect of their claim.
76The answer to question 4, "Is the applicants' request appropriate for judicial review premature?", is no. Conclusion
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Conclusion
Therefore, for these reasons, I would grant a declaration that Betzalel and Julian are entitled to speech- language services for both their speech and language disorders as is available to children in the public school system in accordance with the plain meaning of ss. 5(1) and (2) of O. Reg. 386/99.
78With respect to the balance of the application, I agree with the conclusions reached by Pardu J.
Application dismissed.