Deskin v. Ontario, 2023 ONSC 5584

CITATION: Deskin v. Ontario, 2023 ONSC 5584

DIVISIONAL COURT FILE NO.: 628/19

DATE: 20231010

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

R.S.J. Edwards, Backhouse and Lococo JJ.

BETWEEN:

MICHAEL DESKIN, BY HIS LITIGATION GUARDIAN, BRENDA DESKIN; BRENDA DESKIN, PERSONALLY; DR. STEVEN DESKIN; SEBASTIAN WYNBERG, BY HIS LITIGATION GUARDIAN, ROBYN WYNBERG; NATHANIEL WYNBERG, BY HIS LITIGATION GUARDIAN, ROBYN WYNBERG; ROBYN WYNBERG, PERSONALLY; SIMON WYNBERG; CARLY FLEISCHMANN, BY HER LITIGATION GUARDIAN, ARTHUR FLEISCHMANN; ARTHUR FLEISCHMANN, PERSONALLY; TAMMY STARR; SEBASTIEN WETZEL, BY HIS LITIGATION GUARDIAN, DR. SUZANNE WETZEL; DR. SUZANNE WETZEL, PERSONALLY; DR. LUC DUCHESNE; DANIEL COOPER, BY HIS LITIGATION GUARDIAN, ELISABETH COOPER; ELISABETH COOPER, PERSONALLY; ANTHONY FERRELLI, BY HIS LITIGATION GUARDIAN, DOMENIC FERRELLI; DOMENIC FERRELLI, PERSONALLY; ANNA FERRELLI; ANDREW SHAUGHNESSY, BY HIS LITIGATION GUARDIAN, JANET SHAUGHNESSY; JANET SHAUGHNESSY, PERSONALLY; AND JOHN SHAUGHNESSY; RYAN LAREDO-MARCOVITZ, BY HIS LITIGATION GUARDIAN, SHEILA LAREDO; SPENCER LAREDO-MARCOVITZ, BY HIS LITIGATION GUARDIAN, SHEILA LAREDO; SHEILA LAREDO, PERSONALLY; AND RICHARD MARCOVITZ

Applicants

– and –

HIS MAJESTY THE KING IN RIGHT OF ONTARIO

Respondent

Pheroze Jeejeebhoy and Zenobia Jeejeebhoy, for the Deskin Applicants

Scott Hutchison, Mary Eberts and Leslie Ross, for the Applicants Save Deskin

Sean Hanley, Eric Wagner, Maia Stevenson and Jacob Eidinger for the Respondent

HEARD at Toronto: September 18 and 19, 2023

BACKHOUSE J.

REASONS FOR DECISION

Overview

[1] In February 2019, the Minister of Children, Community and Social Services gave six months notice to the Applicants that payments for therapy that they had been receiving for 15 years for their autistic children (now adults) to fund Applied Behavioural Analysis (“ABA”) (also called Intensive Behavioural Intervention or “IBI”) would end and they would have to transition to mainstream services available to all eligible families in Ontario (the “Decision”). ABA/IBI is not a program funded for adults under mainstream services.

[2] There are seven Applicant families. They were among the 29 plaintiff families in Wynberg v. Ontario[^1] who brought a constitutional challenge to the age 6 eligibility limit for the ABA/IBI funding under a former version of the Ontario Autism Program. During the trial, the family successfully obtained an interlocutory order in Superior Court requiring Ontario to pay the costs of the therapy for their children, pending the outcome of the trial. This arrangement continued after the parties were successful at trial. Ontario’s court-ordered obligation to fund the therapy came to an end once the Court of Appeal granted Ontario’s appeal on July 7, 2006, and set aside the trial judgement. However, Ontario continued to cover the costs of the therapy (the “Funding”).

[3] Following the Court of Appeal’s decision, a Ministry Assistant Deputy Minister (“ADM”) wrote to all of the Applicant families advising them that a transition program would be developed which “has as its starting point your child’s current program.” The ADM wrote to one of the Applicant families, the Deskin family, stating that no changes would be made to the funding amount unless “you were completely satisfied with alternate arrangements.”

[4] The Funding paid to the Applicants is outside of the programs and services funded by the Ministry that are available to other adults in the province with developmental disabilities. The Auditor General has criticized this special funding for the Applicant families as inequitable as it far exceeds the funding available to all other eligible Ontarians accessing mainstream services.

[5] The young Applicants are all severely autistic. Without the Funding, they would be unable to have the ABA programs which, according to the families, taught skills to the young Applicants, addressed the challenging behaviour caused by their autism and enabled each to achieve safety and his or her own degree of integration into family and community. They allege that the mainstream funding is either illusory or inadequate and that the Ministry failed to live up to its promises of transitioning the Applicants to mainstream funding that included the costs of the ABA. It is alleged that without the Funding, the young Applicants are at great risk of harm to themselves and their families. They submit that the funding cut-off caused a predictable rapid decline in the young Applicants’ behaviour and in the case of one of the young Applicants, Michael Deskin, his involuntary detention under the Mental Health Act as a danger to himself and others.

[6] The Applicants seek to set aside the Decision as unreasonable and a violation of their rights under the Canadian Charter of Rights and Freedoms[^2] (“Charter”).

[7] In coming to our conclusion, we have had the opportunity to review a lengthy record and have heard detailed oral argument. We are left with deep respect and admiration for the commitment of the families who, with the specialized support the funding provided, have been able to care for their children with dignity and who have held out hope that this application will result in an outcome for which they have fought so long. We in no way minimize the difficulties of the major challenge of caring for a family member with severe autism or the impact upon the families of the decision to cut off the Funding.

[8] Nevertheless, we are obliged to dismiss the application. In summary, the Decision is a funding and political decision, not a judicial issue. As a funding decision that is not subject to judicial review, the court has no authority to direct the government to expend funds in any particular way, nor is an undertaking to provide funding binding on future governments. Absent bad faith or an improper purpose, neither of which is alleged or supported by the evidence, the Decision is not justiciable.

[9] “Legitimate expectations” raised by the two letters from the ADM cannot support substantive rights, but at best support procedural rights. The Applicants have now had four and a half years since the Decision and opportunities to request services and advocate for their children.

[10] The courts have consistently declined to interpret s. 7 of the Charter as grounding a positive right to particular services or funding. The further contention that Michael Deskin’s ss. 9 and 12 Charter rights were infringed by a period of involuntary admission in hospital or would be infringed by future incarceration is speculative and/or implicates past or future legal processes that themselves would have to comply with the Charter. These processes are not properly challenged here. The Decision does not impair Charter rights.

[11] As no Charter right is infringed, there is no role for balancing Charter rights under the Dore/Loyola framework. Had we found a Charter breach, transitioning the Applicants to mainstream services afforded to other eligible Ontarians is reasonable and proportionate to the objective of promoting equity and transparency in access to publicly funded developmental services. It therefore comports with the principles of fundamental justice.[^3]

Factual Background

The Families

[12] The Applicants consist of ten adults (“the young Applicants”) with severe autism and other diagnoses and their parents. Two Applicant families have two young adult sons with autism; all four youth are Applicants. The Ferrellis, in addition to their son who is an Applicant, have another young adult son with autism who is not an Applicant here. Carly Fleishmann’s brother is a young adult with special needs arising from Asperger’s Syndrome. The families face difficult health challenges. Simon Wynberg has leukemia and Tammy Starr has chronic cancer of the immune system. Lis Cooper, a single mother on a limited income, has chronic pain and severe arthritis, spina bifida and scoliosis of the spine and needs a walker or motorized wheelchair. All the parents are aging and worrying about the long-term wellbeing of their children.

[13] Autism Spectrum Disorder (“ASD”) is the umbrella term for a broad array of social, communication, and pervasive behaviour deficits or excesses. It is a lifelong neurological disorder with no known medical treatment. There are three recognized levels of autism. The documented cognitive, communication, social deficits and behaviour challenges presented by individuals on the more severe end of the autism spectrum represent a major life challenge to the individual, and an expensive care and safety challenge to their family.

[14] In addition to severe autism, the young Applicants also have co-morbidities, as follows. Nathaniel Wynberg: limited language and the cognitive function of a three year old; unable to toilet himself; Sebastien Wynberg: generalized anxiety disorder with panic attacks; Carly Fleischman: OCD and oral-motor apraxia, a neurological disorder completely preventing speech; Ryan Laredo-Marcovitz: below the 1st percentile on standard IQ test; seizure disorder and OCD; Spencer Laredo-Marcovitz: below the 1st percentile on standard IQ test; anxiety disorder; Daniel Cooper: pervasive developmental disorder, asthma, epilepsy, and non-verbal; not able to toilet himself; Sebastien Wetzel: pervasive developmental disorder, intellectual function at 0.5 percentile and adaptive function below 1st percentile, general development disorder; Andrew Shaughnessy: seizure disorder, chronic constipation, overactive bladder, limited language; Anthony Ferrelli: non-verbal, pervasive development disorder; echolalic (repeats what others say to him); Michael Deskin: 98th percentile on the Supports Intensity Scale; cannot be without constant supports as he is a danger to himself and others.

The Wynberg v. Ontario litigation

[15] This application for judicial review arises from a 15-year long history of funding arrangements. In the early 2000s, the Applicant families were among a broader group of plaintiffs who brought a constitutional challenge to the age 6 eligibility limit for the then-existing Early Intervention Program (“IEIP”), which provided ABA/IBI to children diagnosed with autism. ABA is an established, scientific, evidence-based approach widely regarded as an effective treatment for individuals with autism. IEIP is now called the Ontario Autism Program (“OAP”) and is funded by the Ministry of Children, Community and Social Services to children up to the age of 18.

[16] During the trial of their action, the families obtained an interlocutory order in Superior Court requiring Ontario to pay the costs of therapy for their children, pending the outcome of the trial. The funding was primarily used to provide ABA with one, or in some cases two, caregivers per child for up to 40 hours per week.[^4] This arrangement continued after the plaintiffs were successful at trial, the trial judge holding the age 6 limit to unjustifiably breach s. 15 of the Charter.

[17] This litigation culminated in 2006, when the Ontario Court of Appeal in Wynberg v Ontario[^5] dismissed the families’ constitutional challenge, holding that the government was entitled to design and fund a program specifically targeted to benefit the unique needs and capacities of children with autism at a particular age, and that the IEIP's age eligibility criteria were not discriminatory under the Charter. The families’ cross-appeal in which they argued that the discontinuation of funding infringed s. 7 of the Charter was also dismissed by the Court of Appeal. The Supreme Court of Canada denied leave to appeal.[^6]

The Funding

[18] Ontario's court-ordered obligations to fund the Applicants' therapy came to an end once the Court of Appeal granted Ontario's appeal on July 7, 2006, and set aside the trial judgement. However, the government continued to provide the families with direct funding to cover the cost of these services (“the Funding”).

The August 6, 2006 Letter

[19] On August 30, 2006, Alex Bezzina, then the ADM of the Program Management Division within the former Ministry of Children and Youth Services, sent an identical letter to each of the families involved in this litigation advising that they would be transitioned into mainstream services:

I would like to begin by assuring you that the Ministry of Children and Youth Services is committed to continued service for your child. In keeping with that commitment to service continuity, the Ministry will identify a community-based agency that will be in contact with you in the near future. The agency will work with you and it will develop a transition plan that has, as its starting point, your child's current program. While considering when transitions naturally occur in your child's life and the appropriate timing for making changes, the plan will transition your child to mainstream services and supports as soon as possible, as services become available.

[20] The letter stated that throughout the transition, the Ministry will continue to fund “services at a level not to exceed the average payments you received in 2004-2005 and 2005-2006” and “the same types of expenses, i.e., those that are required for the provision of the IBI/ABA services you have been receiving will continue to be covered...”

The February 28, 2007 Letter to the Deskin family

[21] On February 28, 2007, ADM Bezzina sent a further letter to the Deskin family. This letter contained additional language that “no changes would be made to the manner in which your son's program is currently administered nor to the funding amount unless you were completely satisfied with alternate arrangements.” None of the other Applicants received a similar letter.

Nature of the Funding

[22] It is the position of the Applicants that the Funding was made under statute, first the Child and Family Services Act, R.S.O. 1990, c. C.11 (“CFSA”) and then the replacement legislation, the Child, Youth and Family Services Act, 2017, S.O.2017, c.14, Sched. 1 (“CYFSA”). Ontario’s position is that the Funding was not granted pursuant to the authority of any statute or contract. Rather, the funding was made by the Ministry under the Crown’s common law spending power, described as “the authority to do anything that it is not legally prohibited from doing.”[^7]

[23] Services to persons with developmental disabilities in Ontario are divided into children’s and adult sectors with the dividing line being age 18. The Funding ultimately continued past the young Applicant’s 18th birthdays. They are now all adults in their late-20s and early 30s. The Applicant Families have used the Funding to continue to provide ABA/IBI programs for their adult children.

Criticisms from the Auditor General

[24] The Funding paid to the Applicants is outside of the programs and services funded by the Ministry that are available to other adults in the province with developmental disabilities. In 2013 the Auditor General reported that since 2006, the Ministry had reimbursed up to 60 individuals (which included the Applicants) a total of $21 million for the ongoing cost of IBI therapy outside of the regular service system, representing more than double the amount per child that those in the mainstream system typically receive. At the time of the 2013 audit, over half of these individuals were over 18 years of age and would no longer qualify for Ministry funding for IBI therapies for children. The Auditor General also reported that some of these individuals were being reimbursed for more than the maximum number of service hours per week that children in the regular system were eligible for. Some were also reimbursed for expenses that children in the regular system were not entitled to, such as "holding fees" to retain a spot with a therapist or the cost of trips and admission to local attractions.

[25] Ontario replied to the 2013 report: “On several occasions the Ministry had considered options for transitioning this group to mainstream programs and services (including adult services offered by the Ministry of Community and Social Services), but these plans were never implemented.”

[26] Two years later, in its 2015 Annual Report, the Auditor General reported that there had been “little to no progress” with respect to its recommendation in 2013 that the Ministry address existing inequities and apply the same program guidelines to all those who meet the eligibility criteria. The Auditor General again reported that more than 40 people aged 14 to 25 were still actively receiving IBI therapy and other costs outside of the regular system. The Auditor General reported that these individuals had been receiving these services for at least twice as long as children in the mainstream IBI program and, once again, recommended that the Ministry apply the same program guidelines to all those who meet the eligibility criteria to ensure that children with autism and their families receive an equitable level of service and support.

[27] The Ministry responded to the Auditor General that “it was still reimbursing expenses to these individuals because no transition planning work had yet been done as of yet with the families. The Ministry is considering options with respect to the transition work with the objective of ensuring children with autism receive an equitable level of service and support…”

[28] Despite the Auditor General’s criticisms, the Funding continued without interruption for another four years. By 2019, all the children in question were well past the age of 18.

Notice of Discontinuation of Funding and Transition to Mainstream Services

[29] On February 5, 2019, the Ministry wrote to the Applicant families to provide six months' notice that the Funding would be discontinued, inviting them to contact their local Developmental Services Ontario office (“DSO”) regarding eligibility for mainstream services (the "Decision"). DSOs are independent agencies that serve as the single access point and system manager for all mainstream, Ministry funded adult developmental services and supports ("mainstream services").

[30] Ontario points out that the Decision was not a termination of all funding, but a decision of the Minister that the Applicants would need to transition to the mainstream services for which they are eligible. It made no determination as to what funding or services would ultimately be available to the Applicants when using the same DSO application and prioritization process that applies to all other eligible adults in Ontario.

[31] The Ministry discontinued the Funding as of August 7, 2019. While Ontario historically provided discretionary funding to some families outside of the mainstream programming, the Ministry no longer makes these special arrangements, focusing now on prioritizing equity and transparency in access to publicly funded services. On November 19, 2019, nine months following the Ministry's transition notice and three months after the Funding ceased, this application for judicial review was issued. The Applicants also brought a motion for interlocutory relief seeking the temporary reinstatement of the Funding pending the determination of this application on the merits. The Funding was restored on consent in December 2019, retroactive to the date funding was discontinued and until such time as this court releases its decision. The Funding has now continued for approximately four and a half years since the Ministry provided notice.

Applicants’ Evidence regarding Effect of the Cut-off of the Funding

[32] The Applicants make the following submissions. No transition was effected as promised in the August 2006 letter. Of those families who accessed mainstream services through their own initiative, they submit that the budget was set taking into account the Funding and was not as large as it would otherwise have been. Having been given notice that the Funding will cease, they were told that there is no mechanism to ask for extra funds.

[33] The Applicants who did not apply for the Ministry’s Complex Special Needs program while under 18 years of age further submit that they have been prejudiced by having relied on the promise that the Funding would continue until they were properly transitioned. That program provides for prioritized transition from that program and continuity of service in the adult mainstream now not available to those Applicants.

[34] The Applicants allege that the effects of the cut-off were catastrophic and far-reaching. Prior to August 2019, the young Applicants were supported by teams of consultants and therapists who had worked with them for years. With the cut-off, the parents were no longer able to maintain their programming teams, prejudicing not only hands-on work with the young Applicants to develop skills and control aggression, but also the long-term collection and analysis of data that shapes ABA programs and helps them adapt. The loss of this capacity has prejudiced the ability of the parents to re-establish the programs and to deal with the deterioration in the young Applicants’ conduct that has occurred.

[35] The Applicants argue that the action of Ontario in stopping the Funding and forcing the Applicants into a system where there was no hope of replacing the Funding within a reasonable time, or at all, was a grievous interference with the young Applicants’ liberty which was compromised in many specific ways. Sebastien Wetzel was required to move from his apartment, where he had lived independently. Anthony Ferrelli was not able to go into the community without the aid of his ABA-trained workers, and his adverse behaviours escalated “because community integration is very important to him.” Sebastian Wynberg was no longer able to engage in his part-time employment, a source of great pride to him as well as of some remuneration. When supervision by workers untrained in ABA caused an escalation in his aggression and he bit a taxi driver, Andrew Shaughnessy was put in physical restraints.

[36] The parent Applicants allege that their liberty was seriously impinged upon by Ontario’s cut-off of the court-ordered funding. For Suzanne Wetzel and Robyn Wynberg, their increased care responsibilities meant that they had to take a leave of absence, retire early, or resign from work. Janet Shaughnessy had to increase work hours to pay for ABA services. So did Simon Wynberg, in spite of his compromised health. The parents had to take on many hours of direct care for their children. Nathaniel Wynberg cannot be left alone for a minute. Robyn Wynberg felt she could not even go into the garden when he was with her at the family home, for fear he would escape.

[37] The parent Applicants gave evidence of how the cut-off of the court-ordered funding returned the young Applicants to lives full of danger. Many of them resumed or intensified behaviours which put their physical wellbeing at risk, like crouching in the middle of a busy street to inspect something on the ground, going into the subway system without letting anyone know where they were, and running in front of a fork-lift truck. They would deliberately injure themselves, like Andrew Shaughnessy who fractured his foot by several episodes of violent jumping and Daniel Cooper’s seizures increased. The parent Applicants suffered a number of adverse health consequences because of the cut-off, including chronic depression, panic attacks and a complex of symptoms known as “compassion-fatigue”. Lis Cooper could not go for physiotherapy or to hospital for required medical care because she had no one to care for Daniel. Parents assuming care for their children with autism, did so without the professional de-escalation training that their ABA staff possess, and without the time off that their therapists and support workers can take off to recharge between shifts. One mother commented that she and her husband “were in a perpetual state of exhaustion and concern for our safety.”

Evidence regarding Effect on Michael Deskin of the Cut-off of the Funding

[38] The Deskin Applicants make the following submissions. Until August 6, 2019, Michael's behaviours were well managed by his family in their home due to the specialized support the Funding provided. Michael's stability ceased with the end of the Funding. From August 6, 2019, to November 19, 2019, Michael's self-injurious behaviours became worse in severity and intensity. Michael was beating himself black and blue, and the risk was that he could hurt himself and others.

[39] On November 15, 2019, Ms. Deskin sent an urgent email to the DSO, Contact Hamilton, ADM Gordon, ADM Remington, and other Ministry officials advising that she was afraid for Michael's safety, she was afraid for her own safety and her husband's safety. Michael had gone four days without sleeping, he was raging, and he was self-injurious. He was not eating or drinking enough.

[40] From November 16, 2019, to November 17, 2019, Michael hit himself hard and put his head through the wall in his bedroom. By the morning, his violent tendencies increased, and he continued to hit himself. Ms. Deskin called 911, and Michael was taken to the hospital and admitted to the psychiatric ward as an involuntary patient on a Form 42.

[41] The healthcare team in the hospital did not have the expertise to support Michael. On November 26, 2019, Michael punched one of the workers in the stomach multiple times. Michael had never punched or hit anyone prior to this. The hospital agreed to pay for some of the team that had previously supported Michael prior to the Decision.

[42] On December 27, 2019, while on a day visit home from the hospital, Michael broke Mrs. Deskin’s hand.

[43] Ontario’s expert, Dr. Siegel acknowledged that Michael Deskin was a danger to himself and to others and could not be left alone.

Mainstream Services

[44] Ontario’s Factum provides an overview of the services, supports and funding for adults with developmental disabilities. Five of the Applicant families have accessed mainstream funding. Three of the Applicant families have not. Ontario’s Factum contains a chart purporting to compare the mainstream funding provided to the five families who applied to the Funding that the Applicants have been receiving since 2006.

Applicant	Mainstream Funding (excluding temporary Urgent Response funding)	Discretionary Funding
Laredo-Marcovitz (two adult children)	$300,000	$120,000
Fleischmann	$249,000	$235,000
Wetzel	$199,000	$69,000
Shaughnessy	$342,000 (including value of CLB residential placement until declined by family)	$173,000
Wynberg (two adult children)	$229,000	$322,000 (2019-20) $522,000 (2020-21)

[45] Ontario submits that those Applicants who applied for mainstream funding have received substantial amounts, and some have even received more than under the Funding. Ontario suggests that the Applicants who have not yet transitioned into mainstream funding are unreasonably seeking to maintain the status quo by insisting on both an individual funding arrangement and the continuation of funding for ABA.

[46] With respect to Andrew Shaughnessy, he left his group home during COVID-19 and his family no longer considers a group home placement appropriate for him. He lives at home with his family. The above chart includes an amount of $300,000 in the mainstream funding column for the notional cost of the group home at which he no longer lives. The family has requested that the cost of caring for him at the group home be made available to provide the support to enable the family to care for him at home, but this was declined as not an available option under mainstream funding.

[47] The other Applicants who appear on the Chart either live in separate accommodation provided by their family or are in a supported independent living facility. The families of the young Applicants who do not appear on the chart as having accessed mainstream funding, Daniel Cooper, Anthony Ferrelli and Michael Deskin, live at home with their families. All the Applicants allege that the mainstream funding is either illusory or inadequate and that the Ministry failed to live up to its promises that their transition plans would have “as its starting point, your child’s current program”. The Applicants’ position is that they will not be successfully transitioned unless they receive an equivalent amount from mainstream services to the amount they were receiving under the Funding which paid for the ABA. As mainstream funding does not cover ABA, the Applicant parents have held out hope that this application will result in an outcome which will restore the Funding and enable them to care for their children with dignity and in their best interests.

The Expert Evidence

[48] Ontario submits that both the Applicants’ expert witness, Dr. Peter Gerhardt, and Ontario’s expert witness, Dr. Bryna Siegel, agree that it is inappropriate to provide high intensity ABA to adults with autism which is how the Applicants have used the Funding.

[49] Ontario relies on Dr. Siegel’s opinion: that the young Applicants received too much of the same 1:1 treatment over the last approximately 15 years, rendering them ‘prompt dependent’; This has led to a paucity of independent living skills and dependent on 1:1 care; the kind of 1:1 ABA that continued to be the focus of treatment for many young Applicants is not validated intervention for young adults as it is for very young children with autism.

[50] The Applicants submit that Dr. Siegel did not assess any of the young Applicants and does not know what their ABA consisted of. They rely on the opinion of Dr. Gerhardt that the funding for the young Applicants’ ABA should be reinstated. They further rely on his opinion that Dr. Siegel is not an expert with respect to adults with autism.

[51] The Applicants object to portions of the cross-examination of Dr. Gerhardt where he was asked about statements that he made which were recorded in a memo when he was contacted by Mr. Hanley, counsel for Ontario, who sought to retain him as Ontario’s expert and in an email Dr. Gerhardt sent to Mr. Hanley rejecting that retainer. The Applicants characterize this evidence as inadmissible hearsay statements on the basis that Dr. Gerhardt had not reviewed any of the evidence in this case at that time, and as a result, Mr. Hanley’s unrecorded representations were his sole source of information. Dr. Gerhardt was not asked on cross-examination to adopt his out of court statements.

[52] Ontario submits that the Applicants were provided with a second memo which set out the statements made by Ontario counsel in the discussion with Dr. Gerhardt and declined the opportunity to re-examine Dr. Gerhardt on the second memo. Further, they submit that the Applicants’ counsel also re-examined on what Dr. Gerhard meant when he stated that he does not recommend 40 hours a week intensive ABA for adults and whether there are exceptions to that.

[53] It is unnecessary to decide which expert’s opinion is to be preferred or whether the experts agree that continuing the ABA to the young Applicants is inappropriate to determine the justiciable issues in this case. Suffice to say, even if the court were to accept continuing ABA to the Applicants is clinically appropriate, the evidence falls short of establishing that ABA is the only way to provide the Applicants with the appropriate services they are entitled to.

Issues

[54] The following issues arise on this application:

Is the Judicial Review Application, apart from the Charter Claims, Justiciable?
Was the Decision Procedurally Fair?
Was there a Breach of the Applicants’ Charter rights under Section 7?
Was there a Breach of Michael Deskin’s Charter rights under Sections 7, 9 and 12?

Issue 1: Is the Judicial Review Application, apart from the Charter Claims, Justiciable?

[55] At the hearing, we made a ruling with reasons to follow that apart from the Charter claims, the judicial review application was not justiciable. These are the reasons on the issue of justiciability.

[56] The Applicants submit that the decision is justiciable because the funding was authorized by and developed under statute, in this case s. 7 of the CFSA and then s. 25 of the CYFSA”. They rely on Ministry financial accounts that indicate that the court-ordered funding is a special service within the legislation. They argue that the letter of August 30, 2006 “makes promises that echo in the statutory language.”

[57] Section 7 of the CFSA provides:

Provision of services directly or by purchase

s. 7 (1) The Minister may,

(a) provide services and establish, operate and maintain facilities for the provision of services; and

(b) make agreements with persons, municipalities and agencies for the provision of services,

and may make payments for those services and facilities out of legislative appropriations.

Grants and contributions for services, consultation, etc.

(2) The Minister may make grants and contributions, out of legislative appropriations, to any person, organization or municipality for consultation, research and evaluation with respect to services and for the provision of services.

[58] Sections 25 the CYFSA provides:

Provision of services directly or by others

s. 25 The Minister may,

(a) provide services;

(b) establish, operate and maintain premises for the provision of services;

(c) provide funding, pursuant to agreements, to persons, agencies, municipalities, organizations and other prescribed entities,

(i) for the provision or coordination of services by them,

(ii) for the acquisition, maintenance or operation of premises used for the provision or coordination of services,

(iii) for the establishment of advisory groups or committees with respect to services,

(iv) for research, evaluation, planning, development, co-ordination or redesign with respect to services,

(v) for any other prescribed purpose; and

(d) provide funding, pursuant to agreements, to lead agencies with respect to the performance of the functions referred to in subsection 30(5).

[59] There is nothing in s. 7 of the CFSA or s. 25 of the CYFSA that requires Ontario to provide funding for ABA to the Applicants. Absent bad faith or an improper purpose, the funding decisions of the government are “political” (i.e., policy-based and discretionary), not judicial or “quasi-judicial”, and do not attract judicial review (except under the Charter).[^8]

[60] The Applicants submit that the Funding was a stopgap measure and an operational step which was intended to bridge the gap until the parties transitioned into mainstream adult services which then lingered on. They argue that this was not a core policy decision (and therefore arguably not justiciable) because it affected a small group of vulnerable individuals who could not effectively seek redress at the ballot box and it is therefore justiciable. They rely on the factors set out by the Supreme Court of Canada in Nelson v. Marchi, and recently applied by the Court of Appeal for Ontario in Leroux v. Ontario, to argue that “Crown Immunity does not apply.”[^9]

[61] Those cases dealt with whether a governmental decision is a “core policy decision” immune from liability in negligence, not whether a decision is susceptible to public law remedies such as certiorari. They are distinct legal frameworks. The “core policy” analysis forms part of the second stage of the Anns/Cooper test for liability in negligence. It has no bearing on an application for judicial review.[^10]

[62] In Wise Elephant Family Health Team v. Ontario[^11], this court held that a decision to terminate a health clinic’s funding agreement was not justiciable. It cited Paine v. University of Toronto (1981), 1981 1921 (ON CA), 34 O.R. (2d) 770 (C.A.), at p. 722:

It is not enough that the impugned decision be made in the exercise of a power conferred by or under a statute; it … must be a specific power or right to make the very decision in issue.

[63] Section 25 of the CYFSA or section 7 of its predecessor legislation, the CFSA, empowers the Minister to provide services and to provide funding pursuant to “agreements”. There is no specific power or right to provide funding for ABA.

[64] The August 30, 2006 letter from the ADM that all the Applicants received undertook to continue similar funding which covered the provision of the IBI/ABA services they had been receiving “during the transition to appropriate mainstream services.” [emphasis added]. The Applicants admit in their Application materials that they are not entitled to receive the Funding forever and instead assert that this funding can only be removed by a fair process involving their transition to new services, which they claim Ontario has failed to employ.

[65] Mrs. Deskin received an additional letter from the ADM dated February 28, 2007 which provided that “no changes would be made to the manner in which your son’s program is currently administered nor to the funding amount unless you were completely satisfied with alternate arrangements.” None of the other Applicants received a similar letter. This letter, properly construed, did not constitute a contractual relationship between the Ministry and Mrs. Deskin. The letter to Mrs. Deskin cannot bind future governments.[^12]

[66] The Funding continued past the Applicant children’s 18th birthdays. They are now all adults in their late-20s and early 30s. The uncontroverted evidence is that the Funding has paid for the Applicants’ ABA therapies which are not part of the programs and services funded by the Ministry that are available to other adults in the province with developmental disabilities.

[67] In Hamilton-Wentworth v. Ontario, the Divisional Court held that it is not for the court to oversee the Crown in its discretionary expenditure of public funds. Rather, funding decisions are political, and not judicial, issues.[^13] In that case, the government of Ontario made a commitment to the City of Hamilton to contribute 70 per cent of the cost to construct the Red Hill Valley Parkway. The funding allocation was a special commitment outside the Ministry’s normal allocation for the construction and maintenance of existing roads.[^14] No contract was signed, but construction was started, and funding provided. In 1990, a new provincial government was elected that declined to continue funding the construction.

[68] On judicial review, the Court held that “the government has the right to order its priorities and direct its fiscal resources towards those initiatives or programs which are most compatible with the policy decisions guiding that particular government’s action. This was simply a statement of funding policy and priorities and not the exercise of a statutory power of decision attracting judicial review.”[^15] As a funding decision that was not subject to judicial review, the court had no authority to direct the government to expend funds in any particular way, nor was an undertaking to provide funding binding on future governments.[^16]

[69] The principles in Hamilton-Wentworth have been applied in a variety of cases concerning child welfare and the funding of services for persons with disabilities.

[70] Bowman v. Ontario[^17] dealt with Ontario’s decision to wind down a pilot project for basic income just one year into the three-year program the prior government had promised. The applicants in that case applied for judicial review, arguing that the decision to cancel the program "had a devastating impact on them and ... as a result of the cancellation, their futures are in jeopardy, their health has suffered, and their futures are uncertain."[^18] The applicants in Bowman acknowledged that no legal authority required Ontario to continue funding the project, but argued that cancelling it adversely affected their well-being and that they had relied on the project to their detriment.[^19]

[71] The Divisional Court held that the decision to wind down the project was not judicially reviewable, because courts have no authority to review funding decisions. The responsibility for the management of public funds rests with the government and not the court, as does the correctness of the government's decisions and policies. Moreover, the fact that funds were provided in the past does not mean government must continue to offer the same level of service, nor does the decision to reduce or eliminate funding alone create enforceable rights.[^20]

[72] In Children’s Aid Society of Huron-Perth, a collection of Children’s Aid Societies (“CAS”) challenged a government decision to reduce funding to the group of CAS. The Court dismissed the application for judicial review, holding that "the government has a right to allocate public funds as it sees fit, and the exercise of that right cannot be the subject of judicial review in the absence of bad faith or for an improper purpose."[^21]

[73] Similarly, in Shah v. Ontario, an adult with autism and other developmental disabilities sought judicial review of a Ministry decision not to grant additional funding so that he could live at home. Endorsing the approach of the Court in Hamilton-Wentworth, the Court held that funding decisions were a "question of allocation of scarce resources among the developmentally handicapped persons in the region" and were "not amenable to judicial review."[^22]

[74] Likewise, in Kuki v. Ontario, the Ministry of Training, Colleges and Universities had established a skills training program for unemployed individuals. The Court held that the Crown has the authority to establish programs for the benefit of the public as it sees fit, and that programs created outside of statutory authority were not reviewable by the courts.[^23] Furthermore, the decision of the Ministry to define eligibility under the program was not reviewable as it was a decision for the disbursement of public funds.[^24]

[75] In Metropolitan General Hospital, on judicial review, the Court declined to order the Minister of Health to reinstate funding for hospital beds stating:

It follows and has been long held that a Minster cannot be required by mandamus or otherwise to make a particular expenditure ...
... The Minister has filed much material to justify the merits of his decision but I make no comment upon it or upon the case presented by the applicant because in my view it is not for me or any Court to oversee the Minister in his policy decisions or in the exercise of his discretion in the expenditure of public funds entrusted to his Department by the Legislature...the wisdom of the decision can never be the subject of judicial review. It is a political and not a judicial problem. [^25]

[76] The decision in Hamilton-Wentworth and the decisions which have applied it are the appropriate authorities to consider in this case. I disagree with the Deskin Applicants’ submission that Tesla Motors Canada ULC v. Ontario (Ministry of Transportation) [Tesla][^26] supports the justiciability of the Decision. Tesla confirms that purely political matters like a decision to cancel a subsidy program are not subject to judicial review. A cabinet decision to exclude Tesla from the program was found to be justiciable due to bad faith in singling out Tesla to be excluded without providing any opportunity to be heard or any fair procedure whatsoever. These facts are distinguishable from the facts in this case where bad faith is not alleged.

[77] Here, after the Ontario Court of Appeal in Wynberg dismissed the Applicants’ claims, the Ministry undertook during the transition to adult mainstream services to temporarily continue the funding they had been receiving pursuant to the interlocutory court order. The Funding was not mandated under any statute. The general provisions of the CFSA or the CYFSA cited by the Applicants do not require that the Minister maintain the Funding for the Applicants. Rather, the Funding was a discretionary expenditure outside the Ministry’s normal allocation for adult developmental disabilities, not the exercise of a statutory power of decision attracting judicial review. The decision to reduce or eliminate funding alone does not create enforceable rights.[^27]

[78] The government has the right to order its priorities and direct its fiscal resources towards those initiatives or programs which are most compatible with the policy decisions guiding that particular government’s action. In these circumstances, the court has no authority to direct the government to expend funds in any particular way. Absent bad faith or an improper purpose which is not alleged or supported by the evidence, Ontario’s Decision to discontinue the Funding (apart from the Charter claims discussed below) is not justiciable.

Issue 2: Was the Decision Procedurally Unfair?

[79] The duty of procedural fairness at common law is considered on judicial review when determining whether the impugned decision was reasonable. We have found that apart from the Charter arguments, the application is not justiciable. Because the Deskin Applicants made submissions on procedural fairness, I make the following observations.

[80] The standard of review on questions of procedural fairness is correctness.

[81] Only the Deskin Applicants raise the issue of procedural fairness in their Factum. They submit that they had legitimate expectations that a decision concerning Michael’s funding would be made with a consideration of the material facts and that the Deskins would be consulted as affirmed by ADM Bezzina. They submit that the requisite degree of procedural fairness was not afforded because his individual needs were not considered in the decision-making process, nor was the lack of available programs to support him. They argue that the Decision should be set aside until there is a suitable transition available for Michael.

[82] The parties disagree on the level of procedural fairness required under the Baker factors.[^28] The Deskin Applicants submit that it is very high, and Ontario submits that it is minimal.

[83] “Legitimate expectations” cannot support substantive rights, but at best support procedural rights. The August 2006 letters from ADM Bezzina to all the Applicants made it clear that they would be required to transition to mainstream services in the future. Notice must be sufficient to allow a party to participate adequately in the proceeding. Given the policy nature of the Decision, the Ministry was not required to engage the Applicants on the question of whether or not they would be required to transition to mainstream services in the first place.[^29] For those Applicants who chose to engage, there were interactions and opportunities for the families to request services, be evaluated by the DSOs and advocate for their children.

[84] Even if the original six-month notice period was inadequate (which was the Applicants’ original position), the Applicants have now had four and a half years since the February 9, 2019 letter. Given the length of time that has passed, any argument based on insufficient notice must be rejected.

[85] While the 2007 letter sent to Mrs. Deskin promises that Michael’s program would not be changed, these types of substantive expectations are not what is protected by the doctrine of legitimate expectations. As noted above, the Ministry did not have a contractual relationship with Mrs. Deskin. The current government cannot be permanently bound to the funding priorities of the previous government. There is no basis under procedural fairness to set aside the Decision until the Deskin Applicants are satisfied that there is a suitable transition to the mainstream funding available for Michael. The Decision was not procedurally unfair.

Issue 3: Was there a Breach of the Applicants’ Charter rights?

[86] The Applicants submit that their rights under s. 7 of the Charter have been breached. In addition, it is submitted that Michael Deskin’s rights under ss. 9 and 12 of the Charter have been breached. The relevant provisions are set out below:

Rights and freedoms in Canada

The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

Life, liberty and security of person

Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

Detention or imprisonment

Everyone has the right not to be arbitrarily detained or imprisoned.
Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.

[87] Section 7 of the Charter requires that laws or state actions that interfere with life, liberty or security of the person conform with the principles of fundamental justice. The analysis proceeds in two steps: (1) is there a deprivation of one of life, liberty or security of the person? and (2) if so, is the deprivation in accordance with the principles of fundamental justice?[^30]

Applicants’ Submissions on s. 7

[88] The Applicants submit that the liberty interest of the young Applicants is engaged because without ABA, it is likely that they could not make “inherently private choices” and puts at risk the ability to live a safe and dignified life.

[89] The Applicants submit that their security was breached in the following ways:

Cutting off of the Funding returned the young Applicants to lives full of danger as submitted above;
Cutting off the Funding caused the parent Applicants to suffer a number of adverse health consequences, as delineated above.

s. 7 Analysis

[90] In dismissing the plaintiffs’ s. 7 argument in Wynberg, the Court of Appeal held:

[T]he existing jurisprudence does not permit us to interpret s. 7 of the Charter as imposing a constitutional obligation on the appellant to ensure that every school-age autistic child has access to specific educational services…In this case, the appellant has chosen to provide the IEIP to children up to the age of six. We have concluded that this choice, standing alone, does not create a constitutional obligation on the appellant to provide the same or similar programming on a more widespread basis.[^31]

[91] The Court of Appeal in Wynberg found that the plaintiffs had not shown that they had been denied appropriate services to which they were entitled because they were not provided with IBI consistent with the IEIP Guidelines.[^32] It found that while many if not most parents of autistic children will be unable to afford to purchase such services for their children, there nevertheless was no state deprivation because there was no law restricting the applicants’ ability to do so.[^33]

[92] The caselaw is clear that s. 7 of the Charter does not confer a constitutional right to a certain level of funding for health or social benefits. The Applicants are either accessing, or have been given the opportunity to access, services, supports and/or funding through the mainstream adult developmental services system.

[93] The guarantee under s. 7 is often engaged in connection with “the state's conduct in the course of enforcing and securing compliance with the law.”[^34] In rare circumstances, the courts have extended s. 7 rights to legislation or government action unrelated to adjudicative or administrative proceedings. However, in those instances, the law or government action at issue has consisted of a state compulsion or prohibition that threatens the rights to life, liberty or security of the person (e.g. a state prohibition on obtaining private medical insurance,[^35] a state prohibition of activities that increase the safety of legal prostitution,[^36] a state prohibition on the erection of temporary overhead shelters overnight).[^37] No case has recognized a positive constitutional requirement for state funding to pay for services available to purchase.

[94] It is well-established that the protection offered by s. 7 does not “include and require provision for the economic satisfaction of basic human needs.”[^38] Nor does it include a right to access services that the state does not publicly fund.[^39] Where the state chooses to provide a service, s. 7 does not impose a required level: “[n]othing in the existing jurisprudence suggests that s. 7 places a positive obligation on the state to ensure that each person enjoys life, liberty, and security of the person. Rather, s. 7 has been interpreted as restricting the state's ability to deprive people of these.”[^40]

[95] Courts have consistently rejected claims under s. 7 for more or different government provided funding, social and/or health services. In Flora v. Ontario (Health Insurance Plan), the Ontario Court of Appeal upheld the province’s refusal to reimburse Mr. Flora for a life-saving liver transplant he received outside of Canada.[^41] As in Wynberg, the Court held that Charter s. 7 does not impose a constitutional obligation on government to fund or allocate more funding to medical treatments beyond those already covered by the province's health insurance scheme.[^42] This was so despite the undisputed findings that the treatment Mr. Flora received outside of Canada was unavailable in Ontario and was required to save his life.[^43]

[96] In Sagharian v. Ontario (Education), the Court of Appeal struck out a s. 7 Charter challenge to the provision of autism and education services to children in Ontario as having no reasonable prospect of success. The Court held that the alleged deficiencies in Ontario's provision of services for school-aged children with autism – namely, wait times for ABA services and the alleged lack of ABA services in public school settings – had no reasonable prospect of forming the basis of a s. 7 Charter claim.[^44]

[97] Additional lower court decisions confirm that s. 7 of the Charter does not place a positive obligation on the state to ensure that each person enjoys a particular standard of life, liberty or security of the person. This includes where the government previously offered a certain level or kind of service or funding to eligible persons and subsequently reduces or changes the benefit.[^45]

[98] The Court of Appeal’s recent decision in Leroux v. Ontario[^46] has not expanded s. 7 of the Charter. The Court affirmed the decision to certify a class action, meaning only that the s. 7 claims were not "doomed to fail." The proposed representative plaintiff was assessed under the mainstream adult developmental services system but had not received any supports for which she was approved. The Court concluded the class “may be able to make out a s. 7 deprivation that stems from delay in receiving essential financial benefits for which they are statutorily entitled.”[^47] It was this aspect of the s. 7 claim that the Court said might not be doomed to fail, although the Court doubted the prospects for the claim's success on the merits. The present case is being adjudicated on the merits, not on the test for a motion to strike or for certification of a class proceeding.

[99] The present situation is distinguishable from Leroux. Many of the Applicants who applied for mainstream services have received supports and funding through that system. Other Applicants have not applied for mainstream services. The Charter submissions set out at paragraphs 121-131 of the Applicants Save Deskin factum make it clear that they are dissatisfied with the level and kinds of service available within the mainstream adult developmental system. This is the kind of claim that the Court of Appeal in Leroux would have dismissed as doomed to fail.[^48]

[100] With respect to the Applicant parents' claim that their Charter rights were infringed by the alleged need to increase their work hours, take time off, retire early or resign their jobs as a result of the Funding being discontinued, courts have long held there is no s. 7 Charter right to work or to practice a profession. [^49]

[101] There was no breach of the Applicants’ s. 7 Charter rights.

Issue 4: Was there a Breach of Michael Deskin’s ss. 7, 9 and 12 Charter rights?

Submissions of the Deskin Applicants

[102] The Deskin Applicants allege that Michael’s rights under ss. 7, 9 and 12 of the Charter were infringed when he was detained for a lengthy period of involuntary admission in St. Joseph’s Hospital under the Mental Health Act.[^50]

[103] The Deskin Applicants submit that after notice of the cut-off Decision was given, Michael was segregated from his family, community, and the rest of the hospital population. It is submitted that the state action in this case had a very profound effect on Michael's psychological and physical integrity.

[104] The Deskin Applicants submit that Michael remains a danger to himself and others and requires the Funding to prevent serial hospitalizations with chemical restraint. They also raise the possibility that Michael may in the future be detained under the Criminal Code.[^51] They also submit that a group home or roommates is not an appropriate alternative for Michael, although that is not confirmed in his assessments. What is uncontested is that Michael cannot be without support as he is a danger to himself and others, is like a two-year-old, and cannot meet his own daily living needs.

[105] The Deskin Applicants note that where a discretionary decision could result in subjecting a person to detention, the Supreme Court has held that their Charter rights are engaged. They rely on the unanimous decision in Canada (Attorney General) v. PHS Community Services Society, 2011 SCC 44, [2011] 3 S.C.R. 134 (PHS). The Deskin Applicants submit that the Minister’s discretion in PHS is analogous to the discretion under the CYFSA and the Services and Supports to Promote the Social Inclusion of Persons with Developmental Disabilities Act, 2008 (SSPPDA)[^52] to provide for unique funding arrangements that can be tailored to an individual's needs. They submit that in the present case, the discretion was exercised in a manner that engaged Michael’s s. 7 Charter rights. Without funding to support his extreme care needs, it is argued that Michael's reality is that he will be detained either under the Mental Health Act[^53], or Criminal Code[^54]. Michael has been found to be both a risk to himself and a risk to others. Further, there is no treatment for Michael's diagnoses, rendering him vulnerable to the real possibility of an indefinite detention. It is submitted that the Decision unjustifiably engages Michael's s. 7 Charter rights.

[106] To engage s. 12 rights, a targeted group must be in some way within the special administrative control of the state. The Deskin Applicants submit that Michael was subjected to special administrative control because for 12 years, Ontario monitored his use of funds and controlled his expenditures.

Analysis of Whether there was a Breach of Michael Deskin’s Charter rights under sections 7, 9 and 12

[107] Michael Deskin was an involuntary patient in the psychiatric ward of St. Joseph’s Hospital for approximately two weeks in November 2019 after which time the hospital determined that he was fit for discharge. Michael’s family did not accept the hospital’s discharge of Michael for the next 3 months, resulting in Michael remaining in hospital despite his suitability for discharge.

[108] The evidence is that had the Deskins been willing to consider a group home, it is very likely Michael would have had a residential placement by the time of the Decision. Michael’s admission to St. Joseph’s Hospital was subject to the processes under the Mental Health Act that have been found to conform with ss. 7, 9 and 12 of the Charter.[^55] The Deskins did not attempt to arrange a transfer to a group home from the hospital through December 2019 and January 2020. Michael was also receiving 50 hours of ABA per week funded by the Ministry at the time he was involuntarily committed.

[109] It is not the case that any involuntary admission under the Mental Health Act or detention under the Criminal Code is unconstitutional. The necessary elements of such a claim have not been advanced. The Deskin Applicants cannot use this application for judicial review to launch a collateral attack on processes occurring under the Mental Health Act. Speculation regarding future admission or incarceration cannot ground their Charter claim.

[110] The Deskin Applicants rely on Canadian Doctors for Refugee Care v. Canada (Attorney General)[^56] [Canadian Doctors] where the Federal Court held that the Government of Canada violated s. 12 rights when it withdrew healthcare coverage for certain categories of refugee claimants. The Deskin Applicants argue that the present case is similar, in that the province has withdrawn support for Michael, leaving him without treatment and facing the prospect of indefinite involuntary detention.

[111] The facts in Canadian Doctors are distinguishable from the situation in this matter. The impugned measures were specifically designed to encourage unsuccessful refugee claimants to leave the country quickly once their claims were rejected by denying them health benefits that were available to other refugee claimants, permanent residents and temporary foreign workers. In contrast, here, the Deskin Applicants are seeking to maintain discretionary funding that is not available to other eligible people.

[112] At issue in PHS[^57] (which the Applicants rely upon in their submissions) was the Controlled Drugs and Substances Act (“CDSA”)[^58] which prohibits possession and trafficking of controlled substances subject to an exemption at the discretion of the Minister of Health, for medical and scientific purposes. The Court found that the staff’s minimal involvement with clients’ drugs may bring them within the legal concept of illegal possession of drugs, contrary to s. 4(1) of the CDSA. As such, the availability of a penalty of imprisonment in ss. 4(3) to 4(6) of the CDSA engages the liberty interests of staff.[^59] The threat to the liberty of the staff in turn impacts on the s. 7 rights of clients who seek the health services provided by the clinic.

[113] The Court in PHS found that the Minister’s decision not to grant an exemption to the lifesaving and health-protecting services offered at the drug clinic, in the special circumstances of this case, contravened the s. 7 rights of the claimants. The court held that where a decision made pursuant to valid legislation could subject a person to detention, it will engage their s. 7 Charter rights.[^60] The court found that the Minister's exercise of their discretion violated the claimants’ Charter rights. The Court further held that: “The minister cannot simply deny an application for an exemption on the basis of policy simpliciter, insofar as it affects Charter rights, his decision must accord with the principles of fundamental justice.”[^61]

[114] PHS is a very different fact scenario than this case. It falls within the dominant line of s. 7 cases dealing with a deprivation as a result of a person’s interaction with the criminal justice system. There is nothing in the CYFSA or SSPPDA comparable to the penalty of imprisonment and the discretion to exempt that the Court in PHS considered under the CDSA.

[115] The Deskin Applicants analogize Michael’s situation of being segregated from his family, community, and the rest of the hospital population when he was involuntarily detained to the circumstances in the case of Francis v. Ontario (Francis)[^62]. In Francis, the Court considered the impact of administrative segregation on the Seriously Mentally Ill (“SMI”) Inmates defined as those that manifested themselves in significant impairments and/or chronic and severe suicidal ideation or self-injury. The Court of Appeal affirmed the motion judge’s finding that the s. 7 and s. 12 Charter rights of the SMI Inmates were breached when those inmates were placed in administrative segregation.

[116] Michael Deskin’s situation when at St. Joseph’s Hospital cannot be analogized to the administrative segregation in Francis. The evidence is that the family took steps to have Michael admitted to the hospital and then he remained for a longer period after the hospital was ready to discharge him because the family refused the discharge. Rather than being administratively segregated, the evidence is that he had day and night care including some of the ABA team that had supported him in the past.

[117] The Deskin Applicants have not established that Michael’s Charter rights were breached. As a result, it is unnecessary to consider whether the Decision comports with the principles of fundamental justice. Had I found a Charter breach, I nevertheless would have found that the discontinuation of the Funding and transition to mainstream services reasonably furthers, and is proportionate to, the objectives of promoting equity and transparency in access to publicly funded services. It therefore comports with the principles of fundamental justice.

Conclusion

[118] The application is dismissed. The interim funding shall cease in 30 days.

[119] Ontario has advised that it is not seeking costs. We would ordinarily expect that in these circumstances, the appropriate order would be that there be no order as to costs. As the Applicants reserved on their costs submissions, if there is anything they wish to bring to our attention, they may have 14 days to do so from the date of the release of these Reasons for Judgment.

Backhouse J.

I agree _______________________________

R.S.J. Edwards

I agree _______________________________

Lococo J.

Released: October 10, 2023

CITATION: Deskin v. Ontario, 2023 ONSC 5584

DIVISIONAL COURT FILE NO.: 628/19

DATE: 20231010

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

R.S.J. Edwards, Backhouse and Lococo JJ.

BETWEEN:

MICHAEL DESKIN, BY HIS LITIGATION GUARDIAN ET AL.

– and –

HIS MAJESTY THE KING IN RIGHT OF ONTARIO

REASONS FOR decision

BACKHOUSE J.

Released: October 10, 2023

[^1]: Wynberg v. Ontario (2005), 252 D.L.R. (4th) 10 (Ont. S.C.), rev’d (2006), 82 O.R. (3d) 561 (C.A.), leave to appeal refused, [2006] S.C.C.A. No. 441.

[^2]: Part I of the Canada Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11.

[^3]: Loyola High School v. Quebec (Attorney General), 2015 SCC 12, [2015] 1 S.C.R. 613.

[^4]: Wynberg OCA, at paras. 96-137.

[^5]: Wynberg v. Ontario, 82 O.R. (3d) 561 (C.A.)[Wynberg OCA].

[^6]: [2006] S.C.C.A. No. 441.

[^7]: Canadian Federation of Students v. Ontario (Minister of Training Colleges and Universities), 2021 ONCA 553, 157 O.R. (3d) 753, at para. 26.

[^8]: Huron-Perth Children’s Aid Society v. Ontario (Ministry of Children and Youth Services), 2012 ONSC 5388 (Div. Ct.), [2012] O.J. No. 4982, at paras. 52-53 [Huron-Perth].

[^9]: Nelson (City) v. Marchi, 2021 SCC 41, 463 D.L.R. (4th) 1; Leroux v. Ontario, 2023 ONCA 314, 481 D.L.R. (4th) 502.

[^10]: See Canadian Federation of Students v. Ontario, 2019 ONSC 6658 (Div. Ct.), 147 O.R. (3d) 721, at paras. 77-81, aff’d 2021 ONCA 553.

[^11]: Wise Elephant Family Health Team v. Ontario (Minister of Health), 2021 ONSC 3350 (Div. Ct.), at para. 71 [Wise Elephant].

[^12]: Hamilton-Wentworth, at paras. 45,48.

[^13]: Hamilton-Wentworth (Regional Municipality) v. Ontario (Minister of Transportation), 2 O.R. (3d) 716 (Div. Ct.), at para. 47 [Hamilton-Wentworth].