Court File and Parties
COURT FILE NO.: 697/02
DATE: 20040211
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BENOTTO S.J., DUNN AND MCCOMBS JJ.
B E T W E E N:
J.CL. (by his litigation guardian S.CL.) and S.CL. Applicants
- and -
HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO, as represented by the MINISTER OF COMMUNITY, FAMILY AND CHILDREN’S SERVICES OF ONTARIO, the DIRECTOR of THE CENTRAL EAST REGION OF THE MINISTRY OF COMMUNITY, FAMILY AND CHILDREN’S SERVICES OF ONTARIO, and as represented by the MINISTER OF HEALTH AND LONG-TERM CARE OF ONTARIO, and the ATTORNEY GENERAL OF ONTARIO Respondents
Counsel:
Bryan Finlay, Q.C. and Marie-Andree Vermette, for the Applicants
E. M. Venhola, for the Community Legal Clinic (Simcoe, Haliburton, Kawartha Lakes)
Diane Wintermute, for the ARCH
William J. Manuel and Shaun Nakatsuru, for the Respondents
HEARD: February 11, 2004
Reasons for Decision
BENOTTO S. J.: (Orally)
[1] The applicants are before us applying for judicial review of the government’s alleged failure to allocate adequate government resources to fund treatment for autistic children. There are two separate bases for this application: Firstly, the administrative argument; secondly, the application raise important constitutional questions concerning the extent of the state’s obligations to the parents of autistic children and to the children themselves.
[2] The Charter issues raised here have many components. There is an issue as to whether the parents s.7 rights have been violated. There is an issue as to whether the children’s s.7 rights have been violated. There is also an issue as to whether the children’s s.15 rights have been violated.
[3] Many, if not all of these issues are presently being litigated before Kiteley J. of the Superior Court in Wynberg v. Her Majesty The Queen and Deskin v. Her Majesty The Queen. We are advised by counsel that the record being developed in that case will fully address all of the issues raised by the Charter arguments in the case before us including any issues that could arise under ss.7 and 1 of the Charter. That fuller record can only benefit the parties when the court deals with the constitutional issues raised in this case. Moreover, there is an order made on consent by C. Campbell J. that one of the issues that is relevant to the s.7 argument is not to be argued in this case.
[4] The applicants submit that it is appropriate to argue just one component of the constitutional issue before this Court. The issue has to do with whether the parents rights under s.7 of the Charter have been violated by the actions of the respondent.
[5] We have heard argument on this issue and we are all of the view that we should adjourn the constitutional aspect of this application pending the decision in Wynberg and Deskin.
[6] In our view, it is ill-advised to deal with the Charter issues on a piecemeal basis. Further, where the record is incomplete, it is also ill-advised to proceed to decide important constitutional questions. See MacKay v. Manitoba [1989] 2 S.C.R. 1086. Premature adjudication of the constitutional issues is in our view not in the interests of any of the parties, including the applicants and their children.
[7] We therefore decline to hear the constitutional arguments at this time. We will hear the administrative law issues, and adjourn the constitutional issues.
[8] This panel of the Divisional Court is not, in our opinion, seized with the Constitutional Challenge raised in this case.
BENOTTO S. J.
DUNN J.
MCCOMBS J.
Date of Reasons for Judgment: February 11, 2004
Date of Release: March 15, 2004
COURT FILE NO.: 697/02
DATE: 20040211
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BENOTTO S.J., DUNN AND MCCOMBS JJ.
B E T W E E N:
J.CL. (by his litigation guardian S.CL.) and S.CL. Applicants
- and -
HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO, as represented by the MINISTER OF COMMUNITY, FAMILY AND CHILDREN’S SERVICES OF ONTARIO, the DIRECTOR of THE CENTRAL EAST REGION OF THE MINISTRY OF COMMUNITY, FAMILY AND CHILDREN’S SERVICES OF ONTARIO, and as represented by the MINISTER OF HEALTH AND LONG-TERM CARE OF ONTARIO, and the ATTORNEY GENERAL OF ONTARIO Respondents
BENOTTO S.J.
Date of Reasons for Judgment: February 11, 2004
Date of Release: March 15, 2004