2025 ONSC 409
DIVISIONAL COURT FILE NO.: 2869/24
DATE: 20250131
ONTARIO SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Heeney, Backhouse, and Myers JJ.
BETWEEN:
A.H. as represented by their litigation guardian G.H.
Applicant
– and –
His Majesty the King in right of Ontario as represented by the Minister of Children, Community and Social Services
Respondent
– and –
The Human Rights Tribunal of Ontario
Respondent
Morgan Rowe and Simcha Walfish, counsel for the Applicant
Sean Hanley and Maia Stevenson, counsel for the Respondent
Morgana Kellythorne and Mindy Noble, counsel for Human Rights Tribunal of Ontario
HEARD at Toronto (by videoconference): December 16, 2024
FL MYERS J:
REASONS FOR DECISION
[1] The Applicant A.H. seeks judicial review of the decision of the Human Rights Tribunal of Ontario dated February 28, 2024 dismissing A.H.’s claims.
[2] A.H. is a child with Autism Spectrum Disorder. A.H. alleged that changes to the Ontario Autism Program made by the government from 2019 to 2023 discriminated against funding recipients on the basis of age and disability.
[3] Together with another applicant, D.I., the application before the tribunal was a test case for claims of another seven applicants. Our decision concerning D.I.’s claims, reported at 2025 ONSC 119, is being released at the same time as this decision.
[4] Prior to the changes made by the Government, A.H. was one of only 15% of Ontario children with Autism Spectrum Disorder who was able to access government funding.
[5] Under the pre-2019 funding program for children with Autism Spectrum Disorder funding was based on A.H.’s personalized needs as determined by an assessor who was also A.H.’s therapy services provider. There was no cap on the amount of therapy for which the Government would pay. As a result, all available funding was consumed by just 15% of those children (including A.H.) who were eligible for the funding program.
[6] The other 85% of Ontario children with Autism Spectrum Disorder received no government funding and were consigned to a waiting list.
[7] In April, 2019, the Province announced a funding model that would provide Childhood Budgets for all children in Ontario diagnosed with Autism Spectrum Disorder. The proposed budgets would be capped annually at $20,000 for therapy for children under age six and $5,000 was to be provided for every child who was six and above.
[8] That program never went forward. Rather, while the Government considered further changes, it froze the funding available to children under the old program until they transitioned into a new program. In late 2023 the Government implemented funding for Core Clinical Services, among other things. Funding on this model is provided under a grid that assigns funding caps based on three categories of assessed need and age. The funding available for each category of need decreases over time as the children age.
No Discrimination based on Disability
[9] A.H. challenged the two funding programs on the basis that they discriminated against A.H. due both to disability and age.
[10] A.H. also claimed that the freezing of benefits while the Government developed its 2023 funding program discriminated against A.H. based on her disability. That is, A.H. claimed that before the freeze, funding recipients were entitled to receive funding for all treatment that their assessors/therapists recommended. If the freeze gave A.H. less than that, A.H. claimed the freeze was discriminatory.
[11] The tribunal found on the facts that A.H.’s clinical needs were being met by the funding available both in the available and proposed funding models for the Ontario Autism Program and through additional resources available in public school. The tribunal did not accept the evidence of A.H.’s parents that A.H. was deprived of needed funds due to disability.
[12] As the decision was made on the facts, the tribunal did not need to address the scope and reach of the Human Rights Code, RSO 1990, c H.19 on a finding of discrimination based on disability in A.H.’s case. It simply found that A.H. had not proven that A.H. had unmet needs for funding.
[13] To the extent that A.H.’s situation is at all relevant to the tribunal’s related decision on disability rights, it will be considered in the other proceeding in relation to applicant D.I.
Discrimination based on Age
[14] A.H. challenged the declining caps in both the Childhood Budget and Core Clinical Services funding models of the Ontario Autism Program based on age. In the Childhood Budget approach, children over age six were entitled to less than children under age six who suffered comparable symptoms from their Autism Spectrum Disorder. The later Core Clinical Services model introduced funding cap decreases at ages four, ten, and fifteen without exception.
[15] In addition, as A.H.’s benefits were frozen from 2019 to 2023, A.H. claimed that existing but now frozen funding recipients were precluded from obtaining needed funding by reason of their ages.
[16] A.H. submitted that the decrease in funding caps based on age alone is impermissible age discrimination. A.H. submitted that in this particular case, A.H.’s need for funding increased with age due to comorbidities from which A.H. suffers. A.H. claimed that funding recipients should be able to apply for greater funding despite the caps applicable to children of their respective ages.
[17] At first blush it appears that A.H.’s claim for age discrimination is precluded by s. 10 of the Code.
[18] Section 10 of the Code defines “age” for the purposes of the statute as “18 years or more.” This precludes children who claim entitlement to funding from challenging the new funding programs for age discrimination under the Code. The is both because they are under 18 and because the distinctions made in funding cap levels are not included within the protected range of “age” under the Code.
[19] Where the Human Rights Code allows for claims by minors it says so expressly. For example, subsection 4 (2) of the Code provides that a contract for accommodation entered into by a 16- or 17-year-old person who has withdrawn from parental control is enforceable as if the person were 18 years old.
[20] There is no similar provision that would apply to allow A.H. to make the age discrimination claims advanced below. Therefore s. 10 of the Code appears to stand in the way of A.H.’s claim.
[21] As a result, A.H. challenged the constitutionality of s. 10 of the Code under s. 15 of the Charter of Rights. The Charter prohibits discrimination on the basis of age without the minimum age of 18 limitation contained in the Code. A.H. submitted that s. 10 is invalid under the Charter, so that A.H. and the other applicants should be entitled to challenge the funding programs under the age discrimination provisions of the Code without limitation by the minimum age in s. 10.
[22] This seems like a rather tortured path to traverse when A.H. and the other applicants remained free to challenge the government funding programs for age discrimination under s. 15 of the Charter itself. But it is an important principle in our civil justice system that litigants are entitled to choose the basis upon which they bring a legal proceeding provided that they state a justiciable claim in a court of competent jurisdiction.
[23] The corollary of a person’s right to make a claim that states a proper cause of action is that litigants who bring a proper claim to a court or tribunal are entitled to have a decision made on their claim. This applies with particular force to claims involving one’s rights under the Charter.
[24] The Supreme Court of Canada wrote recently about the need for administrative tribunals to address Charter issues that arise for adjudication in cases before them. In York Region District School Board v. Elementary Teachers’ Federation of Ontario, 2024 SCC 22 the Court held:
[89] The principles governing remedial jurisdiction under the Charter apply to both courts and administrative tribunals. Tribunals should play a primary role in the determination of Charter issues falling within their specialized jurisdiction (i.e., where the essential factual character of the matter falls within the tribunal’s specialized statutory jurisdiction). In exercising their statutory discretion, tribunals must comply with the Charter (Conway, at paras. 20-21 and 78-81).
[90] This is, in part, an access to justice issue. There are practical advantages and a constitutional basis for allowing Canadians to assert their Charter rights in the most accessible forum available (Conway, at para. 79). Charter rights can be effectively vindicated through the exercise of statutory powers and processes, meaning that claimants do not need to have separate recourse to the courts for their Charter rights to be vindicated (Conway, at para. 103).
[91] Where a Charter right applies, an administrative decision-maker should perform an analysis that is consistent with the relevant Charter provision. Administrative tribunals are empowered — and, for the effective administration of justice, called upon — to conduct an analysis consistent with the Charter where a claimant’s constitutional rights apply (Conway, at paras. 78-81; R. v. Bird, 2019 SCC 7, [2019] 1 S.C.R. 409, at para. 52). It was therefore incumbent on the arbitrator to proactively address the s. 8 issue that manifested itself on the facts of the grievance. It is insufficient to revert to a separate “well developed arbitral common law” privacy right framework, or to another framework, as the arbitrator did in this instance (A.F., at para. 13). As I have explained, the Charter and relevant s. 8 jurisprudence were legal constraints that applied to the arbitrator’s decision (Vavilov, at para. 101). In other words, the arbitrator was required to decide the grievance consistent with the requirements of s. 8. This would properly entail drawing on both the relevant body of arbitral decisions and the s. 8 jurisprudence.
[92] The arbitrator approached her task differently. She conducted an analysis by reference to management rights versus the privacy interests of employees. However, arbitrators cannot disregard the Charter’s requirements where it applies by applying another analytical framework, even by consent. [Emphasis added.]
[25] Unfortunately, the presiding member who heard A.H.’s claim declined to decide the issue of whether s. 10 of the Code violates s. 15 of the Charter. In my view, this path to a decision was not open to her. Accordingly, the decision must be remitted to the tribunal to consider the issue on the facts and applicable law.
[26] With A.H. failing in the claim for discrimination based on disability, A.H.’s claim for discrimination based on age remained for consideration. The claim was pleaded. It was joined by the respondent. Evidence was adduced by all parties on the issue. The parties made legal argument on the issue. The issue of whether s. 10 of the Code violates the Charter was justiciable, ripe for consideration, and necessary to justly decide A.H.’s lawful claims.
[27] It is somewhat difficult to follow the tribunal’s path of reasoning on this issue. In para. 24 of her decision she makes clear that, “the Tribunal does not ultimately need to decide the question of the alleged unconstitutionality of the definition of age in the Code.” But there is little apparent rationale for this finding.
[28] Had A.H. succeeded in obtaining an order of the tribunal requiring the Government to provide the funding sought on the ground of disability, perhaps a further finding on age discrimination would not have been necessary to provide the remedy sought. But with A.H. failing to establish a claim on the grounds of disability, the issue of age discrimination remained outstanding for resolution.
[29] Counsel for the Government urged us to find that despite her words, the tribunal actually did decide the issue of age discrimination and found there was none. He relied in particular on the following statement by the tribunal:
[126] As a result, since I do not find that the definition of age in the Code is unconstitutional, therefore, the allegation that the two minor test case applicants or any of the other applicants awaiting this Decision were discriminated against by the respondent on the ground of age must be dismissed.
[30] However, just four paragraphs above the tribunal held:
[122] Ultimately, I find that the allegations raised by the applicants in this case relate significantly to the specific nature and range of impact of their disabilities rather than to their specific ages. Therefore, I decline the applicants’ request that I make a determination that the definition of age in the Code is barred by the Charter, as it relates to the still evolving OAP.
[31] Paragraphs 122 and 126 cannot live together if para. 126 is taken to be a finding that there was no age discrimination on the merits. The tribunal cannot both decline to make a finding and make the finding. The only way to read para. 126 to be consistent with para. 122 is if the tribunal is simply saying that in the absence of a decision that strikes down s. 10 of the Code, then it remains valid legislation that precluded the applicants’ challenge to the Ontario Autism Program based on age discrimination.
[32] As will be seen below, the tribunal repeatedly held that the claim for age discrimination was dismissed. But the dismissal was not based on any findings on the merits. Rather, the tribunal found it appropriate to dismiss the claim based on a decision not to decide the issue raised by the parties. As discussed in York Region District School Board above, the tribunal was required to decide the issue.
[33] The tribunal actually dealt with several of the policy issues and some of the evidence that went to the question of whether treating children different than adults in the Code is a valid legislative distinction. But then she referred to case law that encourages judicial restraint and counsels hesitancy and caution before dealing with constitutional issues that are not necessary for the decision before a tribunal or court.
[34] The tribunal did not make a finding that it was not necessary to resolve the issue of age discrimination on the case before her. Rather, she simply said that the bulk of the evidence and argument focused on disability rather than age. That did not take the issue off the table or out of the applicants’ pleadings. The tribunal did not find, for example, that there was insufficient evidence before her to make a decision. Were that the case, the applicant might have been found to have failed to meet the applicable burden of proof. But that is not what happened.
[35] The tribunal did not provide a coherent justification for refusing to deal with the issue that was put before her by the parties. It was necessary that she do so to decide A.H.’s case as pleaded and joined by the respondent. Absent a finding that a decision was not necessary to resolve the issues in the case, the principle of restraint had no application.
[36] A.H. submits that the court ought to resolve the issue of age discrimination on the evidence that was before the tribunal. We were told that the presiding member who heard the application has retired from the tribunal.[^1]
[37] Without considering whether the court can or should consider the issue under Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, I find that we are precluded from considering the issue due to the lack of fact-finding on the issue below. A three-judge panel of the Divisional Court is not generally speaking institutionally appropriate for fact-finding at first instance.
[38] For example, the tribunal declined to make a finding on contested facts relating to the single-most significant factual issue in the case. In para. 159 of the decision, the tribunal held:
[159] The two expert witnesses called by the two parties both agreed that [Applied Behaviour Analysis (“ABA”)]-based programming has the greatest benefit for children with [Autism Spectrum Disorder], when it is introduced at as young an age as possible. They did not, however, agree about the benefits of ABA based programming being relied upon as the basis of support and treatment for older children and adolescents at the same level of intensity, as is known and accepted to be beneficial to the younger age group.
[39] The tribunal made no finding on the factual nub of the complaint of age discrimination. That is, the tribunal found that while it was accepted by both experts that younger children achieve the most benefit from treatment, the experts disagreed about whether older children also benefit to the same degree. The tribunal found both experts to be credible. But she made no finding on the key issue of whether it is harmful or even less helpful to older children to have less support than is being made available to younger children. The evidence was contested and the tribunal did not resolve the contest because she deemed it unnecessary to do so once she declined to resolve the issue of age discrimination.
[40] The tribunal made similar holdings throughout the decision:
[190] Since the Tribunal’s decision about the Constitutional Question and the applicability of the Code’s definition of age had not been communicated to the parties, some of the applicants’ concern and the allegations of systemic breaches of the Code related to the issue of age, i.e., how the funding and access to the services and programming under the OAP available to children with ASD is determined on the basis of age. Having made a determination, as set out above, that the Code’s definition of age does not contravene the Charter, the below decision addresses the allegations relating to the two minor applicant’s disabilities but does not focus upon the allegations related to discrimination on the ground of age.
[203] I accept that the experts presented views that represented the parties that had called them as witnesses. However, as detailed above, I found that the two experts agreed in much or almost most of their evidence about the issues related to the impact of ASD on children and the benefits of ABA programming in assisting children to acquire compensatory skills and the ability to function. While they did not agree on the issue of the matter of the impact of age, since I have determined that the matter before me in relation to the two minor test case applicants was focused exclusively on the protected ground of disability, the differential though not entirely contradictory opinions in that regard in relation to age are not ultimately determinative of the case before me.
[282] I note that the applicants asked me to consider the evidence of Dr. Mirenda regarding the high impact of multiple co-occurring disabilities for children as they age. Since the matter before me does not consider that age is an appropriate ground for alleging a breach of the Code, I am not relying on that particular allegation.
[313] The respondents allege that the various components of the new OAP do not discriminate on the ground of age. However, given that the allegations relating to age have been dismissed in this instance, on the basis of the definition of age in the Code, I do not find that I need to address that issue.
[Emphasis added.]
[41] Given the tribunal’s repeated assertions that resolving facts and issues was not necessary, I can have no confidence that all the relevant and material evidence, facts, and issues have been considered by the tribunal that would allow this court to try to resolve the important Charter issue. I know with certainty that the main factual issue presented – whether the decline in funding caps prejudices older children on the basis of age - was not resolved.
[42] This is not among the limited number of cases where there is only one possible answer or where it is otherwise appropriate for the court to weigh-in with its own findings in the absence of a proper decision on the merits by the tribunal under review.
[43] The tribunal’s decision declining to resolve the issue of whether s. 10 of the Code ought to be declared of no force or effect under the Charter is quashed. The issue is therefore remitted to the tribunal for resolution. In the event that s. 10 of the Code is struck down, then the issue of whether the Ontario Autism Program and its various interactions and components violates the Code by unlawfully discriminating on the basis of age is also to be decided.
[44] The parties agreed that if the application was successful, the respondent would pay costs fixed at $20,000 all-inclusive to the applicant A.H. The respondent, Ontario, is ordered to do so.
Myers J.
I agree _______________________________
Heeney R.S.J.
I agree _______________________________
Backhouse J.
Released: January 31, 2025
2025 ONSC 409
DIVISIONAL COURT FILE NO.: 2869/24 DATE: 2025001231
ONTARIO SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Heeney, Backhouse, and Myers JJ.
BETWEEN:
A.H. as represented by their litigation guardian G.H.
Applicant
– and –
His Majesty the King in right of Ontario as represented by the Minister of Children, Community and Social Services
Respondent
REASONS FOR DECISION
FL Myers J
Released: January 31, 2025
[^1]: It would seem to be a shame if a new hearing is required altogether. We do not know if the tribunal might continue under s. 4.3 of the Statutory Powers Procedure Act, RSO 1990, c S.22, or if the tribunal can be continued under. 33 (3) of the Code. We accept that the decision of how to go forward is for the tribunal.