Sagharian v. Ontario (Education), 2008 ONCA 411

CITATION: Sagharian v. Ontario (Education), 2008 ONCA 411

DATE: 20080523

DOCKET: C47003

COURT OF APPEAL FOR ONTARIO

LANG, MACFARLAND and ROULEAU JJ.A.

BETWEEN:

CHRISTOPHER SAGHARIAN, a minor by his Litigation Guardian, Taline Sagharian, ANDREW CESARIO, a minor by his Litigation Guardian, Patricia Cesario,

JOSHUA MARTINI, a minor by his Litigation Guardian, Anna Martini,

NOAH MARTINI, a minor by his Litigation Guardian, Anna Martini,

BRANDON ROBINSON, a minor by his Litigation Guardian, Karen Robinson,

ADAM SHANE by his Litigation Guardian, Lynn Shane,

TALINE SAGHARIAN and HAROUT SAGHARIAN,

PATRICIA CESARIO AND PASQUALE CESARIO,

ANNA MARTINI and UMBERTO MARTINI,

KAREN ROBINSON and LESTER ROBINSON,

LYNN SHANE and DAVID SHANE

Plaintiffs (Appellants/Respondents on Cross-Appeal)

and

HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO, as represented by THE MINISTER OF EDUCATION, THE MINISTER OF CHILDREN AND YOUTH SERVICES

Defendant (Respondent/Appellant on Cross-Appeal)

and

YORK REGION DISTRICT SCHOOL BOARD, YORK CATHOLIC DISTRICT SCHOOLBOARD, PEEL DISTRICT SCHOOL BOARD, DUFFERIN-PEEL CATHOLIC DISTRICT SCHOOL BOARD, TORONTO DISTRICT SCHOOL BOARD, TORONTO CATHOLIC DISTRICT SCHOOL BOARD, DURHAM DISTRICT SCHOOL BOARD

Defendants (Respondents/Appellants on Cross-Appeal)

David Baker and Faisal Bhabha for the appellants/respondents by cross-appeal

Robert E. Charney, Sophie Nunnelley and Bruce Ellis for the respondent/appellant by cross-appeal, Her Majesty the Queen in Right of Ontario

Michael J. Peerless for the respondents/appellant by cross-appeal, York Region District School Board, York Catholic District School Board, Peel District School Board, Dufferin-Peel Catholic District School Board, Toronto District School Board, Toronto Catholic District School Board, and Durham District School Board

Heard: February 11, 2008

On appeal from the order of Justice Maurice Cullity of the Superior Court of Justice dated March 12, 2007.

LANG J.A.:

[1] This is an appeal from a pleadings motion to strike the appellants’ statement of claim in a proposed class proceeding that challenges the provision of autism and education services to children with autism. The appellants (respondents in the cross-appeal) initiated the claim on behalf of all children with autism in Ontario and their parents and guardians. The respondents (appellants in the cross-appeal) are Her Majesty the Queen in Right of Ontario (Ontario) and seven named school boards (the school boards).

[2] The motion judge, Cullity J., struck a number of the appellants’ causes of action. The appeal relates only to the striking of the claims for negligence, breach of fiduciary duty, breach of s. 7, and the claim for Charter damages. The appellants also argue that their claims against the school boards should not have been struck because the school boards only sought to strike certain paragraphs in the statement of claim and not the claims against them in their entirety. Ontario cross-appeals the motion judge’s refusal to strike the s. 15(1) Charter claims.

[3] The appellants do not appeal the striking of their claim, with leave to amend, regarding “the arbitrary age for the commencement of receiving educational services and the under-inclusiveness of pre-school education for children with disabilities”, which was struck because they lacked sufficient clarity and precision.

[4] For the reasons that follow, I would allow the appeal in part. I would strike the appellants’ age-based discrimination claim. While I agree with the motion judge that certain aspects of the s. 15(1) claim based on disability discrimination may be sustainable in law, at least at the pleadings stage, those aspects of the statement of claim do not currently constitute a concise pleading as required by rule 25.06 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. Accordingly, I would strike the disability discrimination claim with leave to amend. I would grant the appellants leave to amend their negligence claim against the school boards regarding operational aspects of the programs. Finally, I would grant the appellants leave to amend their claim for Charter damages based on alleged negligent Charter breaches. I would otherwise dismiss both the appeal and cross-appeal.

Background

[5] Three acronyms are used to describe autism-directed services. Applied Behaviour Analysis (ABA), which is the broadest of the terms, is an autism treatment based on behaviour modification. It includes Intensive Behavioural Intervention (IBI). The Intensive Early Intervention Program (IEIP) is a program that reflects IBI treatment, but it is specifically designed by Ontario for two to five-year-old children. While the appellants’ statement of claim addresses the IEIP, it also refers to ABA and IBI. This makes it difficult to know what the appellants are actually seeking.

[6] The task faced by the motion judge was further complicated by the content and structure of the appellants’ statement of claim. In part, the motion judge attributed the difficulties with the pleading to its layered amendments, which attempted to respond to the release of decisions from this court such as Wynberg v. Ontario (2006), 2006 22919 (ON CA), 82 O.R. (3d) 561, leave to appeal refused, [2006] S.C.C.A. No. 441, Eliopoulos v. Ontario (2006), 2006 37121 (ON CA), 82 O.R. (3d) 321, leave to appeal refused, [2006] S.C.C.A. No. 514, and A.L. v. Ontario (2006), 2006 39297 (ON CA), 83 O.R. (3d) 512, leave to appeal refused, [2007] S.C.C.A. No. 36. However, the motion judge accurately observed at para. 7 that the amended amended statement of claim amounted to an “attempt to simultaneously bombard all targets from all angles with every available piece of ammunition”. The problem is exacerbated on appeal because the appellants advised that they would further amend the pleading to delete all paragraphs relevant to the public misfeasance claim that was struck by the motion judge. Since they have not yet done so, it continues to be difficult to correlate the appellants’ allegations of fact with their proposed causes of action. This was, and remains, a major problem affecting any determination of the viability of the appellants’ claims.

[7] However, the appellants’ claims appear to focus on alleged deficiencies in the respondents’ provision of services for school-age children with autism, including the provision of, or denial of, ABA by Ontario and, in particular, the respondents refusal to provide ABA in public schools. The appellants do not define with any clarity what they mean by ABA. They argue that a refusal to provide the appellants with ABA in public schools amounts to a “policy of mutual exclusivity”, which they say means that the representative children, who are eligible for both the IEIP and public education, are not being accommodated in a manner that allows them to take advantage of their entitlement to public education. The appellants also challenge the historical restriction of the IEIP to children under age six, although that age restriction was lifted in 2005. They also challenge the IEIP’s limited budget and its waiting list.

[8] The motion judge’s decision, striking out some claims and allowing others to proceed, primarily rested on his interpretation of Wynberg. In that case, this court dismissed an action brought by other parents of children with autism. The action against Ontario included a claim of age-based discrimination on the basis that the IEIP was not provided to children aged six and over, in public school or otherwise, even though it was provided to the comparator group of younger children two to five years of age. It also included a disability discrimination claim under s. 15(1) of the Charter based on the argument that Ontario failed to provide a special education program or service consistent with the IEIP contrary to s. 8(3) of the Education Act. Thus, the issue in Wynberg was whether any differential treatment constituted discrimination on the basis of age and disability in violation of the Charter. This court allowed an appeal from the trial judge’s decision and dismissed the Wynberg claim in its entirety.

[9] In doing so, the decision in Wynberg concluded that the IEIP could not be harmonized with the public education system. It observed that “important features of the IEIP” - such as the number of hours required, the segregated settings, the variety of delivery sites, and the range of skilled personnel needed - did not suit the school environment (paras. 59, 76, 123-126). It also concluded that the evidence did not support a finding that the IEIP was the only appropriate program for students with autism or a finding that appropriate programs had been made available to comparable groups of students with other disabilities (paras. 128-144). Moreover, the court determined that the IEIP program for younger children was a targeted ameliorative program that did not demean the human dignity of the older children. Consequently, this court concluded that a s. 15(1) breach had not been proven and dismissed the claim.

[10] The question before the motion judge was whether the decision in Wynberg disposed of the issues advanced by the appellants in their proposed class proceeding.

[11] With this context in mind, I will deal with each of the issues raised in the appeal and cross-appeal.

Analysis

Section 15(1)

[12] The s. 15(1) equality claim was the primary focus of oral argument on appeal. The two challenged bases of the claim related to discrimination on the basis of age and discrimination on the basis of disability.

[13] Ontario argues that the motion judge erred in failing to strike the appellants’ s. 15(1) claims, primarily because they cannot be distinguished from the s. 15(1) claims struck in Wynberg.

(a) Age-based discrimination

[14] In Wynberg, this court determined that the government did not violate the s. 15(1) rights of children with autism on the basis of the age limit for the IEIP. It concluded that, while there was differential treatment of children with autism aged six and over, the evidence did not support a finding that this constituted discrimination (paras. 35-80). In any event, based on evidence about the age-targeted nature of the IEIP and the allocation of scarce resources, this court held that the age cut-off was a reasonable limit under s. 1 of the Charter (paras. 147-190).

[15] In this case, the motion judge determined that the appellants pled sufficiently different facts to support a s. 15(1) infringement on the basis of age discrimination. I do not agree. In my view, for the reasons that follow, the application of the principle of stare decisis precludes the appellants’ age discrimination claim.[^1]

[16] The motion judge understood the thrust of the appellants’ submission to be that the Wynberg decision was based on findings of fact “inconsistent with the facts that have been pleaded in this case.” In particular, the decision in Wynberg was premised on evidence that younger children were best able to benefit from the IEIP and that the intensive nature of the IEIP did “not fit well” for older children in full-time attendance at school. The appellants argued, however, that the factual allegations in their pleadings, if proven, could satisfy the four contextual factors identified in Law v. Canada (Minister of Employment and Immigration), 1999 675 (SCC), [1999] 1 S.C.R. 497 even if the proven facts in Wynberg could not. Specifically, the appellants argued that their pleading alleges pre-existing vulnerability and stereotyping of older children with autism by the perception that those children could not benefit from ABA; that the denial of publicly-funded ABA to older children does not correspond to any distinction in their needs; that the nature of the IEIP for younger children could not be considered ameliorative because it was based on a misconception about the older children’s ability to benefit from ABA, and the denial of ABA would deprive the older children of skills they need for full membership in the community.

[17] The problem is that these arguments were all finally disposed of by Wynberg, which concluded that the IEIP for younger children with autism did not discriminate on the basis of age. Specifically, the court in Wynberg concluded that all children with autism suffer disadvantage from stereotyping, but that stereotyping was based on the characteristic of their autism, rather than on the age of the children. Thus, the failure to implement the IEIP in schools did not reinforce age-based discrimination. Rather, the IEIP was an ameliorative program designed to meet the specific needs of the younger children in a manner that did not demean the older children. Wynberg also determined that the intensive nature of the IEIP program could not fit with full-time attendance at school.

[18] In my view, the appellants in this case cannot challenge the result in Wynberg by simply pleading that an undefined form of ABA, as a subset of IEIP, is feasible for children in full-time school. This imprecise nuance is insufficient to overcome the binding decision in Wynberg, which was released less than a year before the motion judge’s decision in this case.

[19] Moreover, there was no “evidentiary gap” in Wynberg relevant to the finding regarding age-discrimination. In addition, the appellants plead no new facts in this action that were not before the court in Wynberg. The additional “new” facts identified by the motion judge are really conclusions of fact, the same ones that were already rejected in Wynberg. For example, while the court in Wynberg held that autistic children aged six and over have not been subject to historical disadvantage and stereotyping on account of their age, the appellants simply plead that children over six have been subject to such historical disadvantage, without providing any supporting facts. Accordingly, the appellants are asking for a different conclusion based on the same facts that were before the court in Wynberg. The conclusions that were rejected in Wynberg, and that the appellants seek to prove in this case, are based on social and legislative fact evidence, not on facts relevant to the particular parties before the court. The appellants’ claim that they will call different evidence does not amount to the compelling circumstances necessary to revisit the issue and depart from the principle of stare decisis.

[20] In any event, Wynberg also held that any s. 15(1) age discrimination was justified under s. 1. There is nothing in the statement of claim that would change this legal conclusion. Finally, the age limit was removed in 2005, as pleaded in the statement of claim, making the age-limit discrimination issue moot.

[21] For these reasons, in my view, the age-discrimination claim has no chance of success and should have been struck from the appellants’ pleading in its entirety without leave to amend.

(b) Disability discrimination

[22] The motion judge found that the statement of claim alleged a s. 15(1) breach by the respondents based on their failure to provide children with autism aged six and over with special education programs and services appropriate to their needs when such programs or services are provided to children with other disabilities and a failure to permit children with autism to receive ABA treatment in publicly funded schools. On these claims, the motion judge correctly recognized that, absent different factual allegations, the Wynberg determination that a s. 15(1) disability discrimination claim had not been established was binding. However, the motion judge concluded that the allegations by the appellants in this case were substantially different from those in Wynberg. In this case, the appellants pled that the representative children were entitled to a harmonized form of ABA and education in the public school system. They pled, or could plead, that a form of ABA, not amounting to the IEIP, could be available for this purpose and that the respondents have developed analogous programs for children in the comparator group of children with communication difficulties.

[23] In addition and importantly, the appellants base their equality claim on a duty to accommodate, rather than on the Wynberg basis that the respondents breached their statutory duty to provide the IEIP to school-age children. As well, the appellants’ argument is not about eligibility for the IEIP, as was the case in Wynberg because, in this case, the representative children are already IEIP-eligible. Accordingly, the appellants argue that this case is not about the denial of the IEIP, but about the denial by Ontario and the school boards to accommodate simultaneous access to both ABA and public education. In addition, this case is different from Wynberg because the school boards are parties; they were not in Wynberg. On this basis, the motion judge concluded, at this early pleadings stage, that the claims in this case are different from and require a different analysis than in Wynberg.

[24] In my view, the motion judge read the appellants’ statement of claim extremely generously; it is far from clear that the appellants can plead a disability claim that is compellingly different from that already determined in Wynberg.

[25] However, it is possible that the appellants can plead a claim based upon the respondents’ duty to accommodate and a denial of that duty. That denial would be based on the comparator group of other children with disabilities in the communication category, including children who are deaf, blind or deaf/blind. Wynberg specifically found an evidentiary gap regarding the availability of accommodation to the comparator group.

[26] To succeed in creating a viable claim, the appellants would have to plead that the claimed and defined benefit is an appropriate accommodation and that it could be delivered in the public school system. It would be necessary to demonstrate that children with autism do not receive appropriate accommodation for their education and that the claimed benefit is an appropriate accommodation for school-age children with autism. See Wynberg, paras. 122-137. In addition, the appellants must prove that the comparator group does receive appropriate accommodation that is available to all members of the group. It may be that the appellants can plead, for example, that all persons in the comparator group have a process available to determine their accommodation, while the appellants do not have such a process available because the respondents have effectively denied them the benefit they are seeking.

[27] This leads to Ontario’s argument that the appellants’ disability discrimination claim must be struck because the “benefit” they are claiming is not pleaded with the necessary precision. Ontario relies on para. 127 from Wynberg, which commented on the importance of precision:

It may be that, with changes, intensive behavioural intervention using a number of elements of the IEIP could be provided within the public school system. However that possibility presents a moving target and would depart from both the benefit claimed and the trial judge's order. Precision is important if the comparative analysis required by s. 15(1) is to be properly carried out. It is the benefit as claimed and ordered that we must evaluate.

[28] While this extract could be read as an observation regarding the plaintiffs’ change in position about the proposed benefit from that initially claimed and set out in the trial judge’s order, it is nevertheless essential that the appellants plead the benefit with precision. The absence of precision will be fatal to the appellants’ claim.

[29] Here, the appellants have variously described the benefit as ABA, or some form of ABA, access to IBI, appropriate educational services or by ill-defined expressions such as, education services from which they can benefit to the same extent as can children without disabilities. This language not only lacks the necessary precision to allow the respondents to craft a defence, it is inadequate for the purposes of defining the remedy sought.

[30] In my view, the pleadings in this case require substantial redrafting if they are to meet the requirements for pleading generally, and particularly for a constitutional remedy. Otherwise the appellants are unlikely to avoid the conclusion that their cause of action is precluded on the basis of stare decisis in light of this court’s decision in Wynberg. Accordingly, I would strike the entirety of the appellants’ s. 15(1) claim, with leave to amend. In this manner, once the appellants have concisely delineated their claims, the respondents will be in a position to respond to the allegations of fact relevant to the causes of action that have been allowed to proceed and can bring any appropriate motions.

Section 1

[31] If the appellants are able to successfully restructure their s. 15(1) discrimination claim, it may well also be necessary to restructure their s. 1 claim, which argues that the s. 15(1) breaches are not reasonable and justifiable limits within the context of a s. 1 analysis. The sufficiency of this aspect of the pleading can only be determined after the appellants amend their s. 15(1) claim. Accordingly, I would also strike the s. 1 claim, with leave to amend.

Damages

[32] The appellants claim damages on the basis that they were required to buy private autism services because the government did not make public services available. The motion judge correctly noted the principle that damages are not available in conjunction with a declaration of constitutional invalidity, absent improper purposes. This court in Wynberg affirmed that this principle is not limited to cases where a statute is declared unconstitutional; it also applies to other government action (para. 194). I would not give effect to the appellants’ argument distinguishing between government legislative action and government bureaucratic action. In any event, their statement of claim fails to articulate the bureaucratic conduct at issue.

[33] The appellants do not appeal the striking of their allegations of improper purpose, such as bad faith or an intention to harm, which were struck because they failed to particularize those allegations as required by rule 25.06(8). However, the appellants argue that damages may still be available for negligent breach of the Charter.

[34] A number of cases have referred to negligence by government as a potential basis for awarding Charter damages. In Guimond v. Quebec, 1996 175 (SCC), [1996] 3 S.C.R. 347 at para. 17, Gonthier J. referred to the decision of the Divisional Court of Ontario in Crown Trust Co. v. The Queen in right of Ontario (1986), 1986 2725 (ON SC), 54 O.R. (2d) 79. In that case, the Divisional Court held that no cause of action for Charter damages existed against governmental officials acting within their legislative authority, absent allegations of wrongful conduct, bad faith, negligence or collateral purpose. In Mackin v. New Brunswick, 2002 SCC 13, [2002] 1 S.C.R. 405 at para. 82, the majority of the Supreme Court held that the respondents were not entitled to damages merely because the enactment of the legislation at issue was unconstitutional, finding no evidence that the government acted negligently, abusively, or in bad faith. Finally, in Wynberg, this court held at para. 202 that “[a]bsent bad faith, abuse of power, negligence or willful blindness in respect of its constitutional obligations, damages are not available as a remedy in conjunction with a declaration of unconstitutionality.” [Emphasis added.]

[35] In addition, in Euteneier v. Lee (2005), 2005 33024 (ON CA), 77 O.R. (3d) 621 (C.A.), leave to appeal refused, [2005] S.C.C.A. No. 516, this court commented that there may be instances where remedial compensation is available under s. 24(1) of the Charter even though a claim in tort negligence has been dismissed.

[36] It follows that striking the appellants’ negligence claim in tort does not necessarily mean that a claim for damages for negligent breach of the Charter has no chance of success. Since it is not plain and obvious that the allegation of a negligent Charter breach cannot be pleaded in the appellants’ statement of claim, I would allow that claim to proceed. However, like the appellants’ s. 15(1) claim, the Charter damages claim is not pleaded with the necessary concision. It also requires amendment. I would strike that claim with leave to amend.

[37] I would add that, since the Supreme Court has set out the approach for determining whether damages can be claimed in conjunction with a declaration of constitutional invalidity, as discussed above, I reject the appellants’ submission that Charter damages should be available in order to achieve coherence with human rights legislation that does provide for damage claims.

Negligence

[38] The parties agree that the government is exempt from liability in tort for negligence in making policy decisions. The motion judge struck the appellants’ negligence claim on the basis that the pleadings did not disclose that Ontario’s decision about the provision of ABA was anything other than a policy decision. I agree.

[39] Nonetheless, when a policy decision is implemented, a private law duty of care may arise regarding its operation: see Just v. British Columbia, 1989 16 (SCC), [1989] 2 S.C.R. 1228. In attempting to characterize the government action here as operational, the appellants pled that both Ontario and the school boards “created, implemented and operated” a system that denied the benefits of free public education to children receiving ABA. As well, the appellants pled that Ontario and the school boards permitted “incompetent or insufficiently qualified” persons to design, implement and administer the programs and failed to adequately staff, administer and monitor the programs. The appellants also argued that the respondents’ failure to harmonize ABA and public education was an operational decision.

[40] In regard to the claim against Ontario, I agree with the motion judge’s conclusion that “[i]f decisions to provide ABA and other educational programs are policy decisions that do not give rise to a duty of care, a decision as to the appropriate harmonisation of such programs cannot, in my judgment, sensibly be characterised otherwise.” This issue was specifically addressed in Wynberg at para. 255, where this court dismissed similar claims as relating not to operational failures, but rather to “government decision-making about the scope of the IEIP and the services to be provided within the special education system”.

[41] I also agree with the motion judge’s assessment that the allegations against Ontario regarding staffing and monitoring of the programs relate to policy decisions and not operational decisions. As found in Wynberg, these challenges relate essentially to the scope of the programs, rather than to their operation.

[42] Accordingly, I agree with the motion judge that the negligence claim against Ontario must be struck without leave to amend.

[43] The appellants made similar allegations against the school boards. I agree with the motion judge that the pleadings as they stand do not delineate any separate operational decisions by the school boards. Therefore, the allegations against the school boards must fail for the same reason. However, bearing in mind that the school boards did not seek to strike this claim, I would give the appellants leave to amend their claim regarding operational decisions taken by the school boards. I would not rule at this stage that the appellants will be unable to fashion a pleading regarding school board negligence based on the operational aspects of the challenged programs.

Fiduciary Duty

[44] The appellants appeal the motion judge’s finding regarding alleged breaches of fiduciary duties by the respondents. The motion judge found that, even assuming the existence of a fiduciary relationship, any duties arising from the respondents’ discretionary powers are owed to the public at large and not to the appellants. In essence, the motion judge concluded that the appellants’ fiduciary duty claim, set out in four paragraphs of their statement of claim, failed for the same reason that the negligence claim failed - because the alleged acts and omissions stemmed from an immune policy decision regarding the programs at issue.

[45] On appeal, the appellants analogize the respondents’ relationship with these children to the circumstances in Authorson (Litigation Administrator of) v. Canada (2002), 2002 23598 (ON CA), 58 O.R. (3d) 417 (C.A.), reversed on other grounds, 2003 SCC 39, [2003] 2 S.C.R. 40 (see also: Authorson (Litigation Administrator of) v. Canada (2007), 2007 ONCA 501, 86 O.R. (3d) 321 (C.A.)). Authorson was a class action on behalf of veterans whose pensions and allowances were administered by the Department of Veterans Affairs. However, this is not a case where the respondents were charged with administering the appellants’ funds. Rather, it is a case about the allocation of general revenues for the education of children, all of whom are vulnerable and many of whom have disabilities analogous to those of the appellant children.

[46] Fiduciary relationships are marked by the following three characteristics:

i. The fiduciary is able to exercise some discretion or power;

ii. That power or discretion can be exercised unilaterally so as to affect the beneficiary's legal or practical interests; and,

iii. The beneficiary is particularly vulnerable to the exercise of that discretion or power.

See Frame v. Smith, 1987 74 (SCC), [1987] 2 S.C.R. 99 at 136, Lac Minerals Ltd. v. International Corona Resources Ltd., 1989 34 (SCC), [1989] 2 S.C.R. 574 at 599, and Hodgkinson v. Simms, 1994 70 (SCC), [1994] 3 S.C.R. 377 at 408.

[47] Where the government has duties to multiple interests, the government is likely not in a fiduciary relationship, but rather is exercising a public authority governed by a relevant statute: see Guerin v. The Queen, 1984 25 (SCC), [1984] 2 S.C.R. 335 at 385, Gorecki v. Canada (2006), 2006 9035 (ON CA), 265 D.L.R. (4th) 206 at para. 6 (Ont. C.A.). By contrast, the government may be in a fiduciary relationship where there is legislative instruction requiring the government to act in an individual’s interest, or where there is an assumption of responsibility on the part of the government: see the Authorson decisions.

[48] At paras. 256-257, the court in Wynberg examined the nature of the duties imposed under s. 7(1)(a) of the Child and Family Services Act, R.S.O. 1990 c. C.11 and s. 8(3) of the Education Act. The former provision provides the Minister of Community and Social Services with the discretion to establish the IEIP, whereas the latter provision sets out the scope of the Minister of Education’s responsibilities in relation to special education services. This court concluded that duties created by these sections are owed to the public as a whole, rather than to individual users.

[49] In my opinion, the alleged fiduciary duties that the appellants claim are owed to children with autism and their families (listed at para. 187 of their statement of claim) in fact relate to the statutory duties discussed in Wynberg. As the court in Wynberg concluded, these statutory duties are owed to the public as a whole and involve balancing multiple interests, including the allocation of limited public funds.

[50] The appellants have failed to delineate legal or practical interests that differentiate them from other vulnerable groups who also have claims for similar programs and services. I agree with the motion judge that the fiduciary duty claim against the respondents fails for essentially the same reasons as the negligence claim. The appellants have not pled any facts other than the appellant children’s vulnerability and Ontario’s policy decision to ground their claim for fiduciary duty. They have also not pled any facts to ground a separate claim against the school boards apart from their implementation of Ontario’s policy decision. Therefore, this ground of appeal cannot succeed.

Section 7

[51] The motion judge struck the appellants’ s. 7 claim. I reject the appellants’ arguments that both the waiting times for ABA and the alleged policy of mutual exclusivity infringe their s. 7 Charter rights to security of the person, their rights not to be subjected to arbitrary laws and their rights not to be subjected to discriminatory laws.

[52] The appellants plead that their rights to security of the person were infringed because wait lists and the alleged policy of mutual exclusivity created unreasonable obstacles hindering their use of ABA and educational services. The motion judge concluded that the court in Wynberg determined this issue when it held that the security of the person is affected only where an individual suffers a deprivation on account of government action. In Auton (Guardian ad litem of) v. British Columbia, 2004 SCC 78, [2004] 3 S.C.R. 657 at paras. 64-67, the Supreme Court of Canada also rejected a comparable argument that British Columbia’s refusal to fund any IBI services violated s. 7. Government action in not providing specific programs to the appellants cannot be said to deprive the appellants of constitutionally protected rights.

[53] The appellants argue that the motion judge also erred by characterizing their s. 7 claim as being about “access” to services, which was the claim advanced in Wynberg. They argue that their claim is different because it is about the “use” of services. This distinction is problematic for two reasons. First, the appellants did not plead any facts about “using” the services, but rather specifically pleaded that the wait lists constituted an obstacle “for access to the IEIP” and that other obstacles prevented children from “accessing” the services. Second, the distinction between the ability to use a service, as opposed to the ability to access the service, is not sufficiently delineated to distinguish the appellants’ claims from Wynberg.

[54] Regarding arbitrariness, the appellants argue that Ontario failed to provide a justifiable rationale for waiting lists and the alleged policy of mutual exclusivity. In Chaoulli v. Quebec, 2005 SCC 35, [2005] 1 S.C.R. 791 at para. 130, McLachlin C.J. and Major J. explained that a law is arbitrary where “it bears no relation to, or is inconsistent with, [its] objective”. Regardless of whether the wait lists or the alleged policy of mutual exclusivity qualify as “laws”, Wynberg determined that one of Ontario’s pressing and substantial objectives was to allocate limited resources in a manner that optimizes the benefits of autism treatment. Accordingly, limitations on the availability of autism programs cannot be said to bear no relation to Ontario’s objective.

[55] Finally, the appellants argue that wait lists and the alleged policy of mutual exclusivity amount to “discriminatory” laws because they offend the fundamental principle of equality. This point is addressed in R. v. Cornell, 1988 64 (SCC), [1988] 1 S.C.R. 461 at 478, where the Supreme Court of Canada held that it would be redundant, in light of s. 15(1) of the Charter, to base equality claims on s. 7.

Claims against the school boards

[56] The appellants argue that the motion judge erred in striking claims against the school boards when that relief was not sought by the school boards except in terms of the standard basket provision asking the court for such relief as the court deems just. However, in my view, when the motion judge struck claims against Ontario, it was open to him to strike the identical claims against the school boards where there was nothing to distinguish the impugned actions of the boards from those of Ontario.

Result

[57] In the result, I would dismiss the appeal, subject to varying the order below to strike the appellants’ age-based discrimination claim without leave to amend. I would also strike the s. 15(1) and s. 1 claims based on disability discrimination in their entirety with leave to amend. The claim for Charter damages based on government negligence should also be struck with leave to amend to plead concisely the basis for the remedy sought. I would also give the appellants leave to amend their claim in negligence against the school boards regarding the operation of the programs. The claims as amended may, of course, be subject to further challenge.

Costs

[58] I assume that, as below, the appropriate disposition is to make no order as to costs. If the parties take a different position, they may make brief written submissions within thirty days of the release of these reasons.

RELEASED: May 23, 2008

“PSR”

“S.E. Lang J.A.”

“I agree J. MacFarland J.A.”

“I agree Paul Rouleau J.A.”

[^1]: David Polowin Real Estate Ltd. v. Dominion of Canada General Insurance Co. (2005), 2005 21093 (ON CA), 76 O.R. (3d) 161 (C.A.), Leave to appeal ref’d: [2005] S.C.C.A. No. 388; Toronto Star Newspapers Ltd. v. Canada, [2007] O.J. No. 752, at paras. 38-40 (S.C.J.).