Court File and Parties

COURT FILE NO.: Barrie 03-B5523 Toronto Divisional Court: 238/03

DATE: 20030527

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Andrew Lowrey, by his Litigation Guardian, David Lowrey; Plaintiff, (Respondent on the Motion)

and

Her Majesty The Queen In Right Of Ontario, Defendant, (moving party);

HEARD: May 26, 2003

BEFORE: Lane, J.

COUNSEL: Robert E. Charney and Rochelle S. Fox, for the Crown, moving party; Robert Durante, for the Plaintiff, responding.

E N D O R S E M E N T

[1] This is a motion for leave to appeal to the Divisional Court from the interlocutory order of Gans J. dated April 11, 2003 whereby he granted a mandatory order requiring the Crown to continue to fund certain benefits for the minor plaintiff until the earlier of the completion of his therapy, the decision in two cases now pending before Kiteley J. on the same legal issue, or further order of the court.

[2] The minor plaintiff, ("Andrew") suffers from autism and has been involved in Intensive Behavioural Intervention ("IBI") therapy under the Intensive Early Intervention Program ("Program") of Ontario's Ministry of Community, Family and Children's Services ("Ministry"). The Program was designed, pursuant to recent research, to focus on treating autistic children early in life, preferably between 2 and 4 years of age, when they are most readily treated. It has a maximum age limit of 6 years old. This limit has given rise to numerous complaints by parents to the Ontario Human Rights Commission and also to at least four actions, including this one, challenging the constitutional validity of such an age limit. Two of those actions are presently at trial together before Kiteley J. of this court. The trials are lengthy and will not likely finish until the end of this year. They are accumulating a complete evidentiary record on which the judge will decide whether the age limit is constitutional.

[3] Andrew was diagnosed with autism spectrum disorder in the summer of 2001 at the age of just under 4 and participated in the Program until he reached the age of 6 when funding was discontinued by reason of his age. The medical evidence before the motions judge was that Andrew responded very well indeed to the program. The Affidavit of his therapist indicated that he was among the most benefited of children in her 19 years of experience and that the premature termination of the therapy posed a threat of regression and failure of the treatment altogether.

[4] The Crown position is that ongoing treatment beyond six years of age is the responsibility of the local School Board, here the Simcoe Board, which has funding for its special needs pupils. The Lowreys have not taken Andrew to the Board for the necessary testing to determine what program should be developed for him. However, it is conceded that any such program will be in a classroom setting, albeit with some degree of personal attention. The Lowreys and their advisors believe that a continuation of the IBI therapy, which is a one-on-one approach, is essential and for financial reasons it is not feasible without funding under the Program.

[5] The Crown cited much evidence that the impugned age limit was not arrived at arbitrarily, but was the product of much study and research in the field of autism. That research developed the view that early treatment was the key to success and that the best results were achieved when the patient was from 2 to 4 years of age. Upwards towards and beyond the age of six the results were less hopeful. Thus the Program's focus on the younger children.

[6] The Lowrey's challenge to the age limit is based primarily on sections 7 and 15 of the Charter. The issues therefore include whether the limit is a reasonable limit upon the rights of Canadians, a matter which is best decided upon a full evidentiary record. The evidence is that Andrew is now at a critical stage in his treatment and the Motion before Gans J. was to protect the funding for the 12 to 18 months required to complete the plan of treatment while the other cases work their way through trial to a determination of the issue. Obviously Andrew's 'window of opportunity' to be treated will close long before the litigation is finally resolved. If he is not successfully treated, his condition will prevent him from being the person he could be. From his perspective, there is a high degree of urgency in completing the treatment long before the legalities can be sorted out.

[7] Leave to appeal is granted where there is good reason to doubt the correctness of the order made and the matter is of importance beyond the interests of the parties alone; or where there are conflicting cases on the point and the leave judge finds it to be desirable that leave be granted. In each case there is an element of public interest required.

[8] Because this is a case of the exercise of discretion, it is not enough to find a case where the discretion has been exercised differently on similar facts; rather there must be a difference in the principles applied.

[9] Gans J. approached the motion in the manner laid down in R.J.R.-MacDonald Inc. v. Canada (Attorney General)[^1], by addressing whether there was a serious issue to be tried; whether the moving party would suffer irreparable harm without the relief; and whether the balance of convenience, taking into account the public interest, favoured a departure from the status quo. He also accepted as a given that injunctive relief against the operation of legislation conferring a public benefit is rarely granted. In this approach, there is no error.

[10] The existence of a serious issue to be determined is not in dispute. Gans J. also observed in his reasons that the Crown had not pressed the argument that Andrew would not suffer irreparable harm if he did not complete his treatment.

[11] The heart of the case before the motion judge, and the heart of the motion now before me, is the balance of convenience where the relief, if granted, will require the Crown to deviate from the provisions of a public statute. On that point, he referred to the passage in RJR-MacDonald at page 349 that the assumed benefit to the public interest arising from the continued application of the legislation could be overcome by a demonstration by the applicant that the suspension of the legislation would also confer a public benefit. He found such a benefit in the avoidance of the adverse consequences, not only to Andrew, but also to society and the taxpayer, of failing to treat Andrew so that he learns to cope with school and thereby is enabled to become a productive member of society. Otherwise, there would be, of necessity, an involvement of the public purse in amounts well beyond the cost of the relief sought. There was evidence before the motion judge upon which he could make these findings and he did so in the light of the correct principles.

[12] It was submitted by the Crown that the motion judge erred by placing the onus on the Crown to show that the Simcoe Board did not offer a suitable program for Andrew. The Board had never been given a chance to develop a program because Andrew had not been enrolled in the system and so had never been evaluated. Instead his parents had enrolled him in a private school. The parents could not therefore, establish that there were no suitable programs. There was however, evidence before the judge from Dr. Rincover (paragraph 35 of his affidavit) and from the father, David Lowrey (paragraph 59) both deposing that there are no programs offering the IBI treatment available from the Simcoe Board. These deponents were not cross-examined, nor were contrary affidavits filed. In those circumstances, the judge's remark in paragraph 22 of his reasons that he would expect to have heard of it if there were such programs does not place an improper onus on the Crown. He was entitled to accept the uncontradicted evidence before him.

[13] The Crown submitted that the case of Clough (Litigation Guardian of) v. Ontario[^2] was a "conflicting decision" within Rule 62.02 (4)(a). There, C. Campbell J. of this court dealt with another case of a child seeking additional benefits under this program. He made, however, a specific finding that there would be no irreparable harm by refusing the relief because the funding being provided to the applicant was ongoing and its amount would be reviewed in a few months from the time of the decision. The fact situation thus presented was therefore very different from the one before Gans J., whose task of balancing the interests of the child and of the state was accordingly very different. It must not be forgotten that, even where there is a public interest statute involved, the assessment of the balance of convenience is still a balancing. Thus the facts are all-important. Gans J. dealt with the facts before him using the same principles as were employed in Clough. The fact that he came to a different conclusion is not an indication that there is a difference in principle between the two cases; nor does it mean that there are good grounds to doubt the correctness of the decision. It merely illustrates the importance of the facts and the role of discretion in deciding interlocutory relief cases.[^3]

[14] It was submitted by the Crown that Gans J. erred in law because he should have treated the case as one of suspension of the statute and not as an exemption. This was because there would be ever so many more applicants seeking the same relief if this relief were to be granted and the net result would be the equivalent of suspending the legislation. In RJR-MacDonald the Supreme Court had discussed[^4] the lesser impact of exemption cases than suspension cases on the public interest. If this was regarded as a suspension case, the standard for intervention would be higher. That case was one where the major members of the Canadian tobacco industry sought a blanket exemption from the provisions of new regulations governing, inter alia, the contents of the packaging of their products. It was clearly an effort to suspend the legislation. That is a far cry from this case which is about one 6 year old boy who will suffer irreparable harm if he does not receive this relief. While others may come forward, their cases will be determined on their specific facts. Gans J. was alive to this issue and commented on it in paragraphs 23 and 24 of his reasons where he noted the absence of irreparable harm in Clough and the judgment of Epstein J. in Rogers v Sudbury(Administrator of Ontario Works)[^5] rejecting the 'slippery slope' argument. He was not persuaded by the evidence that the floodgates would open. That was a factual conclusion open to him and not an error of law.

[15] For these reasons the motion for leave to appeal is dismissed. Costs may be addressed in written submissions within twenty days and response in a further twenty.

Lane J.

DATE: May 27, 2003

[^1]: [1994] 1 S.C.R. 311, 334. [^2]: [2003] O.J. No. 1074 (Sup. Ct.) [^3]: Comtrade Petroleum Inc. v. 490300 Ontario Ltd. (1992), 7 O.R. (3rd) 542 (Div. Ct.) [^4]: See pages 346 and 347 in the judgment of Sopinka and Cory JJ. [^5]: (2001), 57 O.R. (3rd) 460