Nassab v. ErinoakKids, 2016 ONSC 7122

CITATION: Nassab v. ErinoakKids, 2016 ONSC 7122

DIVISIONAL COURT FILE NO.: 13-137
DATE: 20161121

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

Dambrot, Hambly and Mew JJ.

B E T W E E N :

SEBASTIAN NASSAB, BY HIS LITIGATION GUARDIAN SEN OZUNAL
Applicant

– and –

ERINOAKKIDS
Respondent

COUNSEL:
James Mutoigo, for the Applicant
Brad Hanna and Cara Zacks, for the Respondent

HEARD at Brampton: October 19, 2016

M. DAMBROT J.:

[1] Sebastian Nassab is 17 years old. He was diagnosed with autism in 2007. ErinoakKids (“EOK”) is Ontario’s largest children’s treatment centre. It annually serves over 13,500 children with disabilities including autism, developmental disabilities, physical disabilities, and visual and hearing disabilities. EOK is one of nine Regional Health Providers in the province that delivered therapy under the Autism Intervention Program as mandated by the Ministry of Children and Youth Services (“MCYS”). The Ontario government funds EOK’s services through MCYS.

[2] On July 11, 2011, when the applicant was 11, his mother, Sen Ozunal, contacted EOK asking for an assessment directed towards obtaining government-funded Intensive Behaviour Intervention (“IBI”) therapy for him. Ultimately, EOK concluded that the applicant was not eligible for IBI, and communicated that decision to Ms. Ozunal at a meeting on August 8, 2012.

[3] The applicant brings this application for judicial review of that decision.

Background

[4] Autism is a complex, lifelong, developmental disability. Children with autism may find it difficult to communicate with others and to relate to the outside world. Autism can result in severe problems in social interaction, communication and behaviour. There is evidence to suggest that some people who have autism can improve significantly with proper therapy. Autism therapy, along with autism-specific programs and services, can provide the opportunity for individuals to be taught skills that allow them to reach their fullest potential and contribute positively to society.

[5] The two most commonly used therapies to treat autism are Applied Behaviour Analysis (“ABA”) and IBI. ABA involves applying principles of learning to improve social behaviour. IBI is more intensive than ABA, and is primarily used to treat young children.

[6] At the time when the applicant was assessed, eligibility for IBI treatment and IBI treatment funding was determined by service providers in accordance with the Autism Program Guidelines (the “Guidelines”) developed by MCYS. To access the program, children had to have a diagnosis of autism and be referred by a physician or a psychologist. The clinical staff of service providers were then required to assess the information provided through the referral process to determine eligibility for IBI. If information provided through the referral process was insufficient, the service providers would conduct additional assessments. All providers had to use the same standardized tools in their assessments in order to reduce clinical variation. If it was determined that a child was ineligible for IBI, he or she was referred to other support programs.

[7] IBI treatment is not universally helpful or successful. The relative success of IBI therapy in treating children with autism depends on several factors, including the age of the child (and whether the child has other complicating medical conditions. Research shows that younger children benefit more from IBI than older children, and the effectiveness of IBI therapy for children over the approximate age of seven is unproven.The Guidelines recommend that IBI services be provided to children “considered to be towards the more severe end of the spectrum.” Children for whom IBI therapy is not suitable may nevertheless benefit from ABA-based interventions, which are less intensive and focus on teaching skills and addressing problem behaviours to enhance the ability to function more adaptively.

[8] MCYS policy has recently changed, limiting the availability of IBI therapy to children between two and four years of age. Prior to that policy change, EOK provided IBI therapy (or funding for IBI therapy) to approximately 470 autistic children each year, with another 411 children being on the waitlist. Some of those children were on the waitlist in excess of 24 months. Approximately 38 percent of children who applied each year were found ineligible for IBI therapy.

The Applicant’s Eligibility Assessment

[9] As I have noted, the applicant contacted EOK to request an assessment on July 21, 2011. EOK replied with a request for copies of medical reports indicating that the applicant had a diagnosis of autism. In reply, Ms. Ozunal submitted a case conference report prepared by Dr. Erdman, a psychiatrist, in May 2007, four years earlier. The report indicated that the applicant met the criteria for a diagnosis of pervasive developmental disorder – autistic disorder and that he was “relatively high functioning.” Dr. Erdman did not comment on what diagnostic tools he used to reach this conclusion.

[10] In August 2011 EOK informed Ms. Ozunal that since that report did not indicate that the applicant’s autism was towards the more severe end of the spectrum, and because the report was several years old, a more current diagnosis was required. EOK did not hear from Ms. Ozunal for the rest of the year. After contacting her again in February 2012, EOK received some additional documents from her, none of which contained a diagnosis of autism towards the severe end of the spectrum.

[11] Despite the absence of any diagnosis normally required for a referral for IBI screening, EOK conducted an eligibility assessment of the applicant in May 2012. He was assessed by Dr. David Factor, an experienced psychologist who specializes in autism and other related developmental disabilities and who has assessed the eligibility of over 2,000 children under the Guidelines. Together with other EOK specialists, he performed a variety of tests on the applicant in accordance with the Guidelines. The specialists concluded that, while he had challenges, the applicant was not towards the severe end of the spectrum and was, in fact, in the “minimum-to-no symptoms” severity group of the autism spectrum disorder. The specialists’ report concluded that the applicant was not eligible for IBI therapy through the Autism Intervention Program because he was not towards the severe end of the autism spectrum. The report recommended that the applicant be registered for ABA and other services that would better suit his needs.

[12] EOK met with Ms. Ozunal on August 8, 2012 and informed her of its decision that the applicant was not eligible for IBI therapy. The applicant commenced this proceeding in December 2013. In his application, he challenged the decision on the ground that it was based on incomplete documentation of the applicant’s prior assessments by doctors and specialists.

[13] On January 28, 2014 EOK’s counsel sent a letter to the applicant’s counsel advising him that EOK was willing to conduct a re-assessment in exchange for the applicant’s dismissal of the application on a without costs basis. The letter informed the applicant that EOK’s decision was based on the clinical assessment by EOK specialists, and provided the applicant with copies of the documents produced as a result of the assessment. Ms. Ozunal acknowledged during cross-examination that she had seen the report by the EOK specialists, but disagreed with its conclusions.

[14] Despite the foregoing, the applicant continues to argue that the decision was based on incomplete documents, dismisses the fact that a clinical assessment was performed by EOK specialists, and ignores the fact that this assessment was the basis for EOK’s decision. The applicant accuses one of the specialists who conducted the clinical assessment of hiding the applicant’s missing records, giving no weight to the opinions of the applicant’s physicians, and failing to consult them or “recognize the superiority of their qualifications to his own.” The applicant does not acknowledge the fact that EOK’s clinical assessment was based on standardized tools.

The Issues

[15] In his factum, the applicant raises the following issues:

1. Whether the respondent had reliable records supporting its finding that the applicant was ineligible for IBI therapy.
2. Whether the applicant had a diagnosis that warranted eligibility for IBI funding.
3. Whether the respondent followed the proper procedures in assessing the applicant’s eligibility for IBI therapy in accordance with the Guidelines.

[16] This is an unhelpful statement of the issues. The applicant misconceives the nature of judicial review. It is not available as a vehicle to pose questions and obtain answers. Rather, it is available to review administrative decisions, occasionally for correctness, most commonly for reasonableness, sometimes for procedural fairness. While the questions raised by the applicant may be relevant to the ultimate issue, they are not free-standing issues for consideration. I will reformulate the issues after I have considered the standard of review.

The Standard of Review

[17] The standard of review in cases challenging decisions concerning IBI therapy eligibility was determined in Ceretti v. Hamilton Health Sciences-McMaster Children’s Hospital, 2010 ONSC 252, 257 O.A.C. 295 (Div. Ct.). Although the decision under review in that case was a decision to discharge the applicant from the program rather than, as here, to admit the applicant to the program, the standard of review is the same. The Court in Ceretti stated:

[32] To the extent that the applicant argues that the decision is unjustified, the standard of review is reasonableness. As set out in Dunsmuir v. New Brunswick, 2008 SCC 9 at para. 53, the standard of reasonableness is generally applied when the decision under review involves questions of fact, discretion and policy.

[33] In this case, the Program was required to make an assessment of the applicant’s progress and to decide whether IBI therapy was providing the desired benefit. The decision to discharge her from the Program is a clinical decision requiring the exercise of specialized expertise. Clearly, the staff members of the Program are much better situated to make clinical decisions about the efficacy of IBI therapy for an individual child than this Court.

[18] The core issue in this case is whether or not the determination that the applicant was ineligible for IBI treatment was justified. The standard of review is reasonableness.

My Approach

[19] I have said that the applicant’s statement of the issues is unhelpful. I will instead adopt the respondent’s statement of the issues, as follows:

1. Did EOK lose or destroy the applicant’s medical records?
2. Did EOK assess the applicant in accordance with the Guidelines?
3. Was EOK’s ineligibility decision reasonable?
4. Is this application for judicial review moot?

Did EOK Lose or Destroy the Applicant’s Medical Records?

[20] The applicant says that the respondent did not consider information provided to it by the applicant’s mother, specifically: diagnostic and assessment records from the Ontario School Record, indicating that the applicant had critical assessment scores for school dysfunction; a diagnostic and assessment report from the Oakville Trafalgar Hospital where the applicant was allegedly hospitalized for complications of autism; and an EOK questionnaire filled out by the applicant’s teacher. The applicant alleges that EOK removed this information from its files and lost or destroyed it, and that it falsified records.

[21] The basis for these allegations is that: (1) EOK did not obtain a consent from the applicant’s mother for access and/or release of information from the applicant’s physicians and specialists; (2) when the applicant requested a copy of his file, the information provided by the applicant’s mother was not in it; and (3) the advice of counsel for the applicant.

[22] The respondent submits that it considered all documents and information provided by the applicant’s mother and denies losing or destroying any of this material. The evidence fully supports that position. Dr. Factor said that he reviewed and considered the information provided by the applicant’s mother, none of which indicated that the applicant was ever previously diagnosed with autism towards the severe end of the spectrum, before he conducted the eligibility assessment.

[23] In addition, the respondent produced evidence by way of affidavits that the records provided by the applicant’s mother were placed in one of the assessment specialist’s files, and as a result were not included in the copy of the applicant’s file produced to him upon his request; have subsequently been recovered; and were reviewed before the applicant’s eligibility assessment was conducted. In addition, the respondent produced affidavit evidence that the applicant never substantiated that he had ever been hospitalized for autism. On cross-examination, the applicant’s mother was not able to recall the details of the alleged hospitalization and refused to provide medical and hospital records that she claimed to have in her possession. Despite this, the applicant continues to claim that the respondent “falsified its records to state that the Applicant … had never been hospitalized.” Finally, the respondent produced evidence that it does not provide questionnaires for teachers to complete for children applying for IBI.

[24] The suggestion that EOK lost or destroyed medical records is wholly without foundation in the record on this application.

Did EOK Assess the Applicant in Accordance with the Guidelines?

[25] The applicant alleges that EOK’s assessment was not in accordance with the Guidelines, on the basis that EOK:

a) Did not obtain consent forms from the applicant’s mother to obtain additional information from the physician and psychologist who had diagnosed the applicant with autism;

b) Did not seek diagnostic and assessment information from the hospital where the applicant’s mother says he was hospitalized;

c) Did not use the information provided to it by the applicant’s mother;

d) Falsified its records to state that the applicant had been referred to it by Dr. Hafiz, a paediatrician, and had never been hospitalized;

e) Did not ensure that there would be no breakdown in communication between its decision makers and the professionals who had assessed the applicant; and

f) Did not ensure that there would be consistency of criteria and procedural safeguards in its decision about the applicant.

[26] These allegations are largely unsupported by evidence, irresponsible, and generally irrelevant. In particular, the allegation that EOK falsified records is without foundation and scandalous. The applicant’s allegation that EOK falsified records includes a claim that Dr. Factor did not administer the requisite standardized tests, but falsely recorded that he did. In fact, the tests administered by Dr. Factor are outlined in detail in the evidence. This evidence stands uncontradicted. The applicant’s mother could only say in cross-examination that she didn’t know what Dr. Factor did because she wasn’t there. In fact, she was present when the tests were administered. Her presence is confirmed by a DVD recording of the testing process. But she persists in her allegation on the basis that she was informed by the applicant’s lawyer that Dr. Factor did not administer the Guidelines properly. This sort of wild allegation has no place in this proceeding, and ought never to have been made.

[27] The respondent has demonstrated that it conducted its eligibility assessment entirely in accordance with the Guidelines. It provided evidence of the details of the assessment process, the qualifications of its specialists, and the standardized tools used in the assessment. It followed the Guidelines’ recommendations stipulating that IBI therapy is intended only for children who are considered towards the more severe end of the autism spectrum; that EOK is to consider prior diagnoses of autism and other information provided through the referral process when determining eligibility; and that standardized assessment tools are to be used to determine eligibility.

Was EOK’s Ineligibility Decision Reasonable?

[28] The decision that the applicant was not eligible for IBI funding was based on the conclusion of EOK’s clinical assessment specialists that the applicant was not at the more severe end of the autism spectrum. The decision was transparent, intelligible and made in accordance with the clear and consistent criteria set out in the Guidelines, and is therefore entitled to deference.

[29] The applicant adduced no expert opinion challenging EOK’s clinical view that he is not at the more severe end of the autism spectrum and does not qualify for IBI funding. He baldly asserted that two physicians that had earlier contact with the applicant were “better qualified specialists” than Dr. Factor, and that EOK ought simply to have adopted their opinions. However there is no evidence that one of these doctors ever conducted the standardized tests referred to in the Guidelines on the applicant, ever diagnosed the applicant with severe autism, or ever recommended IBI for him. The other doctor said no more than that the applicant requires ongoing monitoring at his school with respect to learning and behavioural difficulties. In any event, while the Guidelines require consideration of prior diagnoses and other information provided through the referral process, they do not permit delegation of decision making to others. They place responsibility for determining eligibility for and intensity and setting of a child’s behavioural intervention in the hands of Regional Health Providers such as EOK that delivered therapy under the Autism Intervention Program.

[30] Upon a review of the entirety of the evidence, I can only conclude that EOK’s ineligibility decision was reasonable.

Is This Application for Judicial Review Moot?

[31] On April 29, 2006, the respondent brought a motion before a single judge seeking an order dismissing this application on the basis of mootness. The basis for this argument was that as of April 1, 2016, the Autism Intervention Program mandated by MCYS was replaced by a new Integrated Autism Program. Among other changes, children five years of age and older are no longer eligible for IBI funded by MCYS, and Regional Service Providers like EOK no longer assess such children for IBI. In addition, children over the age of five who had been deemed eligible for and were waiting for IBI were removed from the waitlist. However children up to 18 years of age are eligible for ABA services. I note that in 2012, EOK recommended that the applicant be registered for ABA and other services that would better suit his needs. There is no evidence that the applicant ever took advantage of these services.

[32] As a result of the changes made to the MCYS autism program, the respondent argued that even if the applicant were to succeed on judicial review, he would not be entitled to IBI funding.

[33] The motions judge declined to decide the issue, and left it to be determined by the panel hearing the application. He noted that the court has jurisdiction to hear a moot proceeding in the interests of justice, taking into consideration: (1) the presence of an adversarial context; (2) the concern for judicial economy, particularly having regard to the importance of the issue raised; and (3) the need for the court to be sensitive to its role as the adjudicative branch in our political framework.

[34] In my view, there is nothing advanced by the applicants in this case that justifies proceeding to consider the merits of this moot application in the interests of justice. However, having heard the entire argument, and in light of the unfounded allegations made against the integrity of the staff at EOK, we have chosen to address the merits.

Disposition

[35] The application is dismissed.

[36] At the conclusion of the hearing of this application, counsel for the respondent produced a bill of costs relating to an earlier motion and a second bill of costs relating to this application, advised us of an offer to settle, and made brief submissions. He also advised us that he was seeking costs against counsel for the applicant personally. Counsel is entitled to be represented on such a request. If the respondent wishes to pursue the matter, arrangements should be made for a further hearing before this panel. Otherwise, counsel are to provide us with brief submissions as to costs in writing. The respondent will file and serve its submissions within 15 days of the release of this judgment. The applicant will have 10 days to reply.

___________________________ DAMBROT J.

I agree.

___________________________ HAMBLY J.

I agree.

___________________________ MEW J.

RELEASED: November 21, 2016

CITATION: Nassab v. ErinoakKids, 2016 ONSC 7122

DIVISIONAL COURT FILE NO.: 13-137
DATE: 20161121

ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT

Dambrot, Hambly and Mew JJ.

B E T W E E N :

SEBASTIAN NASSAB, BY HIS LITIGATION GUARDIAN SEN OZUNAL
Applicant

– and –

ERINOAKKIDS
Respondent

REASONS FOR JUDGMENT

M. DAMBROT J.

RELEASED: November 21, 2016