2025 ONSC 658

DIVISIONAL COURT FILE NO.: 210/24

DATE: 2025-01-31

ONTARIO SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Heeney, Backhouse, Myers JJ.

BETWEEN:

HIS MAJESTY THE KING IN RIGHT OF ONTARIO AS REPRESENTED BY THE MINISTER OF CHILDREN, COMMUNITY AND SOCIAL SERVICES

Applicant

– and –

A.H. AS REPRESENTED BY THEIR LITIGATION GUARDIAN G.H., D.I. AS REPRESENTED BY HER LITIGATION GUARDIAN H.I., D.L. AS REPRESENTED BY HIS LITIGATION GUARDIAN L.L, M.E. AS REPRESENTED BY HER LITIGATION GUARDIAN S.M.E, M.H. AS REPRESENTED BY HIS LITIGATION GUARDIAN A.H., S.C. AS REPRESENTED BY HER LITIGATION GUARDIAN N.C., G.R. AS REPRESENTED BY HIS LITIGATION GUARDIAN D.R., C.R. AS REPRESENTED BY HIS LITIGATION GUARDIAN L.C., L.T. AS REPRESENTED BY HIS LITIGATION GUARDIAN J.T. and THE HUMAN RIGHTS TRIBUNAL OF ONTARIO

Respondents

Maia Stevenson and Sean Hanley, for the Applicant, His Majesty the King in Right of Ontario

Morgan Rowe and Simcha Walfish, for the Applicant D.I. as represented by their Litigation Guardian H.I.

Mindy Noble and Morgana Kellythorne, for the Respondent, Human Rights Tribunal of Ontario

HEARD at Toronto by videoconference:

December 17, 2024

BACKHOUSE J.

Overview

REASONS FOR DECISION

[1] The respondents, D.I. and the other co-Applicants before the Human Rights Tribunal (the “Tribunal”), are nine children with Autism Spectrum Disorder (“ASD”) represented by their parents. They brought applications before the Tribunal alleging that changes to the Ontario Autism Program (“OAP”) discriminated against them on the grounds of disability, sex and age, contrary to the Human Rights Code, R.S.O. 1990, c. H.19 (the “Code”).

[2] The Tribunal proceeded with two of the applicants, A.H. and D.I. as “test cases” so that the evidence and decision on those cases could guide the adjudication or settlement of the remaining cases. This Panel’s decision dealing with A.H.’s claim of age discrimination is being released as a separate decision at the same time as this decision.[^1] It determined that the issue of whether s. 10 of the Code violates s. 15 of the Charter and if so, the issue of age discrimination remain to be decided and were remitted to the Tribunal for resolution.

[3] This decision concerns D.I., an 11-year-old at the time of the hearing before the Tribunal, who was diagnosed with ASD at the most extreme end of the spectrum. D.I. alleged that changes to the OAP made by Ontario from 2019 to 2023 discriminated against her on the basis of age and disability.

[4] Prior to 2019, funding for ASD was based on personalized need as determined by the child’s therapy provider (“the Behaviour Plan model”). There was no cap on the amount of therapy for which the government would pay. D.I. alleged that she had experienced disability and age discrimination because of the freezing of her Behavioural Plan in April 2019, and the implementation of age-based funding caps in the new OAP model, introduced in 2021.

[5] The evidence before the Tribunal was that the Behaviour Plan model resulted in the entire OAP budget being used up on 15% of Ontario children with ASD despite the annual budget tripling in 7 years to $667 million, where it currently sits. At the same time, new demand for the OAP continues to increase. In spite of the increasing costs, the program was only serving a small percentage of the children who could potentially benefit from, and were eligible for accessing, the OAP. Prior to the changes, 85% of Ontario children with ASD were waitlisted. In 2019, over one- third of the OAP waitlist consisted of children under the age of six who were losing the window of opportunity to access important early interventions. This inequity and lack of long-term sustainability led to Ontario’s decision to redesign the OAP in 2019 and transition away from the Behaviour Plan model.

[^1]: A.H. brought a judicial review application challenging the Tribunal’s decision dismissing the claim of age discrimination brought by the test litigants as barred by the operation of s. 10(1) of the Code. Both A.H.’s and D.I.’s judicial review applications were heard together by this Panel and the Panel’s two decisions are being released at the same time. This Panel’s decision concerning A.H.’s claims (reported at 2025 ONSC 659) determined that the Tribunal’s Decision declining to resolve the issue of whether s. 10 of the Code ought to be declared of no force and effect under the Charter should be quashed and the issue remitted to the Tribunal for resolution.

[6] After an extensive consultative and expert advisory process, the OAP was ultimately redesigned to replace the unlimited funding model with a model which provided for capped funding based on chronological age and category of level of support need (i.e., limited, moderate or extensive). The funding available for each category of need is capped and decreases at ages four, ten and fifteen, without exception.

[7] During the transition into the new OAP, the government sought to balance service continuity for the legacy families (with Behaviour Plans) and bring into service 23,000 children on the waitlist, all from the same budget. The decision was made to continue the funding to the legacy families at the existing service intensity level but with no further increases during the transition period, and families on the OAP waitlist received interim annual funding. The Ministry’s goal at the time that was accepted by the Tribunal was “to ensure that all children deemed eligible for the OAP received at least some needed and beneficial services” including earlier intervention that was deemed particularly important and effective for them before they entered school.

[8] In its Interim Decision, the Tribunal did not determine D.I.’s claim of age discrimination and dismissed it on the basis of the Code’s definition of age in s.10, which defines age as 18 years of age or older. The Tribunal allowed her claim of disability discrimination on the basis that she could have benefitted from an additional day of therapy during the summer months that she did not receive due to the freezing of the Behaviour Plans.

[9] Although D.I. had not yet transitioned into the new OAP at the time of the hearing, the Tribunal also found that it can potentially be deemed to be discriminatory as far as D.I.’s needs are concerned because of the caps on the amounts that can be received. She held that each child must be assessed individually (including the remaining test-case applicants) because their needs differ and there are circumstances where the identified disabilities of a child demand a level of flexibility in provision of services such as the OAP.

[10] Although D.I. did not raise any Code challenge respecting her access to education, the Tribunal found that she was not provided with a meaningful access to an education. No reasons were given for this bald conclusion. The Tribunal ordered that D.I. be accommodated through her local school board which was not a party to the proceedings.

[11] The applicant, His Majesty the King in right of Ontario as represented by the Minister of Children, Community and Social Services (“Ontario”), seeks judicial review of the Tribunal’s Interim Decision dated February 28, 2024, reported at 2024 HRTO 305 (the “Decision”). Ontario submits that the Tribunal’s finding of disability-based discrimination in relation to D.I, contrary to the Code, is unreasonable and should be set aside.

[12] While Ontario raises a number of issues on this judicial review, those issues can be distilled into the following two overarching questions to be answered:

(1) What is the correct test for discrimination to be applied in this case?

(2) Is the Decision unreasonable? In particular:

(a) Do the Tribunal’s reasons fail to reveal a rational chain of analysis supporting a finding of discrimination?

(b) Were the Tribunal’s findings on access to education unreasonable?

(c) Did the Tribunal disregard or fundamentally misapprehend evidence?

(d) Did the Tribunal unreasonably fail to consider Ontario’s defence under s. 11 of the Code?

[13] The respondents submit that:

(1) The Tribunal applied the correct 3-step test for establishing prima facie discrimination under the Code set out in Moore v. British Columbia (Education), 2012 SCC 61, [2012] 3 S.C.R. 360, at para. 33 (“Moore”), and its finding of discrimination was reasonable.

(2) The Tribunal’s comments on education were reasonable.

(3) The Tribunal reasonably assessed the evidence.

(4) The Tribunal considered and reasonably rejected the s.11 defence.

[14] For the reasons set out below, I would conclude the following. Whether the test for discrimination is under the Charter or the Code, the Tribunal failed to provide a rational chain of analysis establishing how D.I. met the test for disability discrimination. There must be a framework that recognizes what the wrong is. It is not enough to say that because D.I. is disabled, her benefits were reduced and all her needs were not met, that she experienced disability discrimination.

[15] Discrimination cannot be based on a mere finding that a member of a disadvantaged group has some unmet need. It must be shown that the claimant’s needs are unmet because, compared to others, that claimant is denied a benefit or subjected to an additional burden on the basis of a protected ground.

[16] Under the new OAP, D.I. will neither be denied a benefit available to others nor be subject to a burden not imposed on others on the basis of her disability. The same level of funding is available to any child of the same age who is assessed as having extensive needs. There is no dispute that the benefit which D.I. seeks – funding in excess of the limit imposed for children aged 10 to 14 years – is not available to any child of her age.

[17] The unfairness being alleged in this case is Ontario’s decision to concentrate resources on children who are younger, resulting in a reduction of the level of funding that legacy families like D.I.’s were receiving under the former OAP. This is also reflected in D.I.’s initial application to the Tribunal. The essence of the complaint is not disability discrimination. Rather, the thrust of the claim was discrimination grounded in the reduction of benefits based on age. Though the applicants selected age, sex and disability as the alleged bases of discrimination, the application

only described distinctions on the basis of age. The age discrimination claim was not adjudicated. As noted above, that issue has been remitted to the Tribunal for resolution.

[18] The parties had a full opportunity to develop their arguments on the issue of disability discrimination, and the Tribunal had a genuine opportunity to weigh in. Here, one outcome is inevitable. In light of the factual and legal constraints that bear on the case, no rational chain of analysis could lead to a finding that the OAP’s funding caps constitute discrimination on the basis of disability. This holds true regardless of whether the court applies the test for discrimination under s. 15(1) of the Charter or the Moore test. In these circumstances, no point would be served in remitting the disability discrimination issue back to the Tribunal. Such a decision would only serve to delay a final determination and constitute an unnecessary draw on the Tribunal’s limited resources

[19] The Decision does not exhibit the requisite degree of justification, intelligibility and transparency and must be quashed. I would also exercise my discretion and decline to remit the question of disability discrimination for determination by the Tribunal.

Factual Background

[20] D.I., was born on December 21, 2011. She was eleven years old at the time of the hearing before the Tribunal. She is diagnosed with ASD which her psychiatrist Dr. Shih testified will always be at the most severe level. D.I. also has suspected additional diagnoses of anxiety disorder, ADHD, psychosis and epilepsy. In addition to significant challenges as a result of ASD, she has other challenges including global developmental delay and mental health issues. She is non-verbal.

D.I.’s Legacy OAP Behaviour Plan

[21] D.I. was accepted into the previous version of the OAP in 2017 at the age of five and received Ministry funding pursuant to an OAP Behaviour Plan for approximately 19 hours (three days) per week of Applied Behaviour Analysis (“ABA”) therapy at a cost of $52,000 annually.

[22] D.I.’s father testified that D.I. improved as a result of access to ABA supports, even though she was not able to access as much ABA service as the service provider felt she would benefit from.

[23] In the summer of 2018, based on the recommendation of D.I.’s service provider, D.I. was approved for a fourth day per week of ABA during the summer.

[24] The Tribunal noted that the witnesses that addressed D.I.’s circumstances and needs stated that, when D.I. was able to access four days of ABA during the summer, she began to communicate and show some interest in socialization with others. The evidence from D.I.’s service provider was that D.I. was beginning to learn life skills such as eating, drinking and toileting.

[25] When the Behaviour Plans were frozen in April 2019, D.I. was receiving ABA three days per week because it was not the summer. As a result, her funds were frozen at $52,000 annually and not $63,000.

[26] The Tribunal found that once the pandemic arrived and D.I was not able to attend the ABA programming in person as had been the case previously, she significantly regressed in terms of her behaviour. She engaged in self-harming, pulled out her hair and was aggressive to her siblings. As a result, eventually she was admitted to hospital and placed in a child psychiatry unit.

[27] Amanda Wheeler, D.I.’s service provider whose ABA services were funded under D.I.’s legacy Behaviour Plan, testified that D.I.’s behaviour had become so serious that she could no longer attend school. This was due in part to her self-injurious behaviours, which in Ms. Wheeler’s view could ultimately only be ameliorated by increasing her ABA-based hours of service. She recommended that during the two summer months of July and August 2022, following the pandemic, D.I. should have access to an additional day per week of ABA therapy at Ms. Wheeler’s clinic, for a total of four days per week instead of three. This was not possible because of the freeze and ABA therapy continued at three days per week.

[28] The Tribunal noted that Ms. Wheeler stressed that, as D.I. enters puberty and faces its “physical and emotional challenges”, her needs for intensive and appropriately formulated supports “are and will be increasing.” Ms. Wheeler’s evidence was that D.I.’s increasing needs will inevitably lead to “distressed behaviours” including further self-harm and anti-social activities.

[29] The Tribunal found that because of the pandemic which had a negative impact on many children who could not attend school, D.I. experienced increased serious challenges. These resulted in extreme self-harming behaviours and even greater challenges in terms of her capacity to deal with expected day to day life skills as well as both behavior and communication. The Tribunal concluded that D.I.’s needs were increasing but because of the ongoing transition to the redesigned OAP, her service provider could not increase D.I.’s Behaviour Plan.

[30] The Tribunal did not make a finding as to when or for how long D.I.’s behaviour was so serious or for what period of time she was not attending school when school reopened after the pandemic. Ontario submits that the Tribunal’s conclusion that D.I.’s needs were increasing is at odds with other evidence in the record. According to D.I.’s most recent Behaviour Plan from October 2022 to April 2023, her self-injurious behaviour had been successfully reduced such that a formal strategy for addressing it was no longer necessary. D.I.’s father stated that D.I. had been improving despite not having the amount of ABA therapy that Ms. Wheeler felt she would benefit from. A clinician at the Canadian Mental Health Association of Waterloo Wellington also summarized a referral from Ms. Wheeler in the fall of 2021: “[D.I.’s] ASD is being well managed through the behaviour therapist” but D.I. is displaying some “mental health challenges” that were, according to Ms. Wheeler, outside her scope of practice.

2019 Reforms to the OAP

[31] Beginning in 2018, Ontario began reforming the old OAP in an attempt to deal with the resulting inequity and lack of long-term sustainability. Ontario initially decided that the Behaviour Plans would be replaced by a flat funding model effective April 1, 2019. It then announced a public consultation plan and the creation of the Autism Program Advisory Panel which would provide advice on the design of a new needs-based OAP.

Transition to the Redesigned OAP

[32] The transition from the Behaviour Plan model to a redesigned OAP began in 2019 and was completed for all in-service families by September 2023 (following the date of the hearing). As noted above, during this transition period, D.I.’s Behaviour Plan, along with all legacy Behaviour Plans, could be renewed at existing service intensity levels or less where clinically appropriate. Families with legacy Behaviour Plans were prioritized for transition over families on the OAP waitlist to ensure service continuity for them. But during transition their funding could no longer be increased, in order to contain the burgeoning costs of the legacy families’ Behaviour Plans which came out of the same budget which the government was seeking to extend on a more equitable basis to families on the waiting list.

[33] Sarah Hardy, Director of the Children with Special Needs Division of the respondent Ministry testified that during the transition period, Ontario’s primary object was to bring into service 23,000 children on the waitlist, while at the same time trying to balance service continuity for the legacy families, all from the same budget. She testified that when it became clear that designing a new OAP was going to take longer than anticipated, every time they considered lifting the cap on the legacy Behaviour Plans, the costs forecast for lifting the cap for one year was in the hundreds of millions of dollars. This was a significant consideration on the part of the government with respect to program sustainability and its ability to actually implement the new program. Ms. Hardy testified that allowing individualized exceptions jeopardizes the sustainability of the program as the exceptions start to become the rule.

[34] During this period, families on the OAP waitlist received interim annual funding up to two times of either $5,000 (over age 6) or $20,000 (up to age 6) that could be spent on ABA, services from other professionals and respite care, among others.

D.I.’s Transition to the Redesigned OAP

[35] D.I.’s parents were asked to register for Core Clinical Services, which includes ABA therapy, under the redesigned OAP. As of the date of D.I.’s father’s testimony on October 19, 2022, they had not enrolled. D.I.’s father testified, and the Tribunal accepted, that the family had not done so because it would result in less annual funding. D.I.’s legacy Behaviour Plan provided for $52,000 in annual funding for ABA therapy, whereas the maximum funding to such services under the redesigned OAP for children of D.I.’s age and extensive needs is $41,400 annually.

The Expert Evidence

[36] The expert evidence was divided on whether children of D.I.’s age still benefit from ABA therapy at this intensity. Both the applicants’ and Ontario’s experts agreed that there was extensive clinical evidence to support intensive ABA therapy (i.e., 15-25 hours of one-on-one therapy per week) for young children under 4 years old. However, they differed on its suitability for older children. Ontario called autism expert Dr. Bryna Siegel, who testified that, with older children and youth, the objective of intervention shifts away from learning readiness and instructional control to functional, adaptive skills (activities of daily living) and the identification and development of vocational interests and aptitudes. Such functional intervention can be delivered by a wide range of professionals (including educators) and parents – not solely behaviour therapists.

[37] The applicants’ expert, Dr. Pat Mirenda, a doctoral level Board Certified Behavioural Analyst (BCBA-D), testified that in her experience some older children still benefit from more intensive ABA therapy, but admitted on cross-examination this was not supported by clinical research in the same way it was for children under 4 years old.

[38] The Tribunal found both experts to be qualified and credible. She found that there was no dispute between the parties that the minor applicants have a disability. Therefore, though the parties asked her to decide the relative merits of the expert opinions where these differed, she decided that it was not necessary to do so.

[39] The Tribunal did not resolve the difference of expert opinion on the suitability and efficacy of ABA therapy for older children, as opposed to functional intervention which does not need to be delivered by behaviour therapists. She found it unnecessary to do so, given her determination that the definition of age in s. 10 of the Code bars the Tribunal from addressing the allegations of discrimination on the grounds of age.

[40] The Tribunal held that the evidence of the two expert witnesses that each child must be assessed individually is appropriate because, despite the required ASD diagnosis for eligibility, their strengths and needs for and benefits from such specialized programming and supports differ and that this must be considered as Ontario finalizes its changes to the OAP: at paras. 320-21.

Tribunal Decision

[41] The Tribunal concluded that D.I. had a prima facie case for discrimination: A.H. v. Ontario (Children, Community and Social Services), 2024 HRTO 305 (“Tribunal Decision”). It applied the 3-step test set out in Moore v. British Columbia (Education), 2012 SCC 61, [2012] 3 S.C.R. 360, at para. 33. It found that D.I. has been diagnosed with severe mental health disabilities. Her service providers had determined that more intensive services and supports through OAP were necessary. She suffered an adverse impact based on her disability and therefore experienced discrimination: Tribunal Decision, at paras. 287-307. The Tribunal went on to adopt the views of Drs. Siegel and Mirenda that “each child must be assessed individually in order to determine how their needs are best met”: at para. 321.

[42] The Tribunal further determined that the discrimination could not be saved under s. 14 of the Code, which provides an exception for special programs where the challenge is from a member of a historically privileged group or a disadvantaged person whose disability the program was not designed to benefit. That exception was not applicable to D.I. and the other applicants who are precisely the type of children whose needs the OAP is meant to serve: Tribunal Decision, at paras. 322-28. That finding is not challenged on this review.

[43] The Tribunal rejected Ontario’s submission that the discrimination is a reasonable and bona fide requirement under s. 11 of the Code. It found that while Ontario suggested this was a potential justification for the design of the OAP, it was not an actual claim of undue hardship: at para. 187. Regardless, it went on to reject Ontario’s assertion that it was owed deference on decisions like this one that are difficult policy choices regarding the distribution of public resources. The Tribunal suggested that by denying flexibility that would grant D.I. full access to ameliorative services, Ontario perpetuated her disadvantage: at paras. 329-40; citing Centrale des

syndicats du Quebec v. Quebec (Attorney General), 2018 SCC 18, [2018] 1 S.C.R. 522, at paras.

30-32

[44] The Tribunal made no finding that D.I. was denied a benefit available to another child under the OAP due to her disability. The Tribunal’s finding of discrimination with respect to the OAP follows solely from the evidence that there was a period of time during which D.I. could have benefited from funding for an additional day per week of ABA therapy: at para. 304.

[45] The Tribunal’s finding of discrimination is specifically in respect of the capping of D.I.’s Ministry-funding under her legacy Behaviour Plan (along with all other children in service) pending transition to the redesigned OAP.

[46] Ontario asserted that the other components of the new OAP including, for example, the Foundational Family Services and the Urgent Response Services, would also significantly benefit

D.I. However, notwithstanding that D.I.’s parents had not yet engaged with the new OAP and therefore access to those services at the time of the hearing, the Tribunal found that does not mean that the new program cannot potentially be deemed to be discriminatory as far as D.I.’s needs are concerned: at paras. 302-03.

D.I.’s Access to Education

[47] In addition to finding discrimination with respect to OAP funding, the Tribunal concluded that D.I. “was also not provided with a meaningful access to an education, as that is contemplated by the Supreme Court’s decision in Moore v. B.C. (Education), 2012 SCC 61 (“Moore”)”: at para. 26.

[48] Ontario points out that D.I. did not raise any Code challenge respecting her access to education and submits that the evidence before the Tribunal plainly contradicts these conclusions.

[49] The Tribunal heard from D.I.’s parent and litigation guardian, H.I., that at the time of the hearing and since D.I. entered Grade 1, she was placed in a classroom for children with developmental disabilities with ten students and a one-to-two staff-student ratio through the school board’s Individual Placement and Review Committee (“IPRC”) process. Following this, an Independent Education Plan (“IEP”) for D.I. was developed. H.I. testified that, once D.I. reached Grade 1, the family decided to transfer D.I. to her current school because it had “specialized supports for those with special needs”: at para. 329

[50] Dr. Shih, D.I.’s psychiatrist, testified that his review of D.I.’s medical records from the Canadian Mental Health Association had not revealed psychological testing had taken place, but he conceded that such testing might have been conducted that he was not aware of. He also testified that, to his knowledge, when D.I. was not attending ABA therapy she attended school two mornings per week. Although he had not personally seen her IEP, he surmised that she “probably would be having a life-skills type of program.”

[51] The Tribunal heard the undisputed evidence of Claudine Munroe, the then-Director of the Special Education / Success for All Branch of the Student Support and Field Services Division of the Ministry of Education. Ms. Munroe testified that students can be identified as needing special education supports through the IPRC process, after which the student may be placed in a special

education classroom. An IEP must be developed for every student who has been identified as an exceptional student by an IPRC and requires special education programs and services. While schools are not clinical settings where ABA therapies are delivered, the school principal is required to ensure that ABA methods are incorporated into the IEP of a student with autism where appropriate and that the IEP includes input from any community service providers supporting that student.

Historical Context of the OAP

[52] Ontario has funded and delivered provincial autism programs for children for close to 25 years. In the early 2000s, Ontario provided funding only for early intensive intervention based in ABA for children between the ages of two and five. That program was challenged by families of children who were six years old and over in Wynberg v. Ontario, 2006 22919 (ON CA), 82 O.R. (3d) 561 (C.A.), leave to appeal refused, [2006] S.C.C.A. No. 441. The families argued that the program, as it then existed, violated s. 15 of the Charter by discriminating on the basis of age. The Charter challenge was ultimately dismissed by the Court of Appeal and leave to appeal to the Supreme Court of Canada was denied. The Court of Appeal held that the age limit was not discriminatory but was rather designed to take advantage of the evidence-based “window of opportunity” that exists for children under the age of six to derive the greatest benefit from intensive ABA services: at para.

188. The Court held alternatively that any discrimination was justified under s. 1 of the Charter: at paras. 147-90.

[53] Ontario’s autism program has undergone several changes since the Wynberg decision.

[54] As of 2017, the original, intensive intervention program was merged with another program available to all children with autism up to the age of 18, resulting in the first OAP. Under the first OAP, all children and youth were eligible to receive ABA-based services pursuant to a clinical assessment resulting in a Behaviour Plan. Only the services of ABA providers could be purchased under a Behaviour Plan, and there were no caps on the hours of services a child could receive.

[55] Ontario’s uncontradicted evidence was that, with service providers setting each Behaviour Plan budget themselves and without any caps on the amount of services that could be funded by these plans, the total cost to the Ministry of the OAP ballooned. At the same time, new demand for the OAP continued to increase. The evidence before the Tribunal was that one in every 68 children is diagnosed with ASD.

Inequity in first OAP with ballooning costs servicing only 15% of children with autism

[56] As noted above, significant equity issues plagued the program. Ontario had also heard from stakeholders that there was limited financial and workforce oversight with the OAP, due to what was clearly understood to be a conflict of interest: the clinicians assessing and setting the individual service intensities and funding levels within Behaviour Plans were the same individuals providing their services to families and receiving the family’s OAP funding as their compensation.

[57] Ontario’s undisputed evidence was that these significant issues with the previous version of the OAP were the impetus for the changes to the program beginning in 2019. The Tribunal noted Ontario’s evidence that “the earlier version of the OAP, if it had been allowed to continue in its

earlier iteration, would have meant that young children, who are deemed to benefit the most from the program, would never have been able to access any funding, given that there was a finite amount of funding available to the OAP”: at para. 170. The Tribunal accepted that the reasons for the significant and major changes in 2018 were prompted by the increasing costs of the existing program, coupled with the fact that, in spite of the increasing costs, the program was only serving a small percentage of the children who could potentially benefit from and were eligible for accessing the OAP.

[58] The Tribunal accepted that the Ministry’s goal at the time was “to ensure that all children deemed eligible for the OAP received at least some needed and beneficial services” including earlier intervention that was deemed particularly important and effective for them before they entered school: at para. 176.

[59] In 2019, the Ministry proceeded to engage in an extensive consultative and expert advisory process to completely redesign the OAP. The Ministry at the same time almost doubled the annual budget from $361.5 million in 2018 to $667 million in 2019.

The Redesigned OAP

[60] The redesigned OAP is the product of an extensive consultative and expert advisory process. The new program consists of five Ministry-funded service pathways for children and youth under the age of 18 eligible for the OAP. The application before the Tribunal primarily concerned the Core Clinical Services pathway, which funds the purchase of clinical services including ABA therapy. The application before the Tribunal additionally concerned the transitional measures to bridge in-service (legacy) children from the previous program to the new one.

[61] Funding provided to families through the Core Clinical Services pathway can be used to purchase eligible clinical services of their choosing, including ABA-based services, speech language pathology, occupational therapy, mental health services and technology, supplies and other therapy equipment recommended by a regulated professional or BCBA. Families have the choice of how to spend their Core Clinical Services funding allocation (i.e., they could spend it all on one type of clinical service or several).

[62] Families seeking to access Core Clinical Services complete a Determination of Needs assessment with a Care Coordinator at an independent intake organization which identifies the child or youth’s level of support need - limited, moderate or extensive - relative to peers in their age group, which is then tied to the annual funding allocations set out in the chart below.

Extensive Support Needs Moderate Support Needs Limited

Support Needs

0-3 years old

$65,000

$10,900

$10,900

4-9 years old

$65,000

$24,500 - $36,800

$8,900

10-14 years old

$41,400

$18,800

$7,600

15-17 years old

$31,900

$18,300

$6,600

[63] The process re-occurs once yearly. The funding available for each category of need decreases over time as the children age.

[64] The Core Clinical Services program includes a process to dispute a child’s assigned level of need. Families who are in core clinical services have a dedicated care coordinator to assist in service navigation to access other services and supports. There is, however, no mechanism to seek an exception to the allocation of capped funding based on chronological age.

[65] The OAP also includes four other pathways, which were not directly challenged in the applications before the Tribunal. In addition to Core Clinical Services funding, D.I. at age 11 has access to two of them – the Foundational Family Services and Urgent Response Services pathways in the redesigned OAP:

• The Foundational Family Services pathway, available to all OAP-eligible families, uses a range of professionals to build family and caregiver capacity to support children’s learning and skill development (e.g., coaching a parent on issues faced at puberty); and

• Urgent Response Services, available in response to specific, urgent needs, include support to stabilize the urgent situation, prevent a crisis and reduce the risk of child or youth of harming themselves, others and/or property.

[66] When the redesigned OAP was launched, families of children such as D.I. that were receiving funding under a legacy Behaviour Plan were transitioned into the redesigned OAP to ensure service continuity. This transition has been completed, with all families who had Behaviour Plans having been transitioned into Core Clinical Services by the end of September 2023. Ontario’s undisputed evidence before the Tribunal was that completing this transition allows the resources devoted to maintaining legacy Behaviour Plans to be fully invested in the redesigned program and for more children to get off the waitlist and access Core Clinical Services.

Other Ministry-Funded Services and Supports

[67] Ontario’s undisputed evidence was that families of children with autism can also access a range of Ministry-funded services for children with special needs in addition to the OAP. This includes pre-school speech and language programs, children’s rehabilitation programs, Special Services at Home funding, respite programs and Complex Special Needs (“CSN”) funding. Under CSN, children with particularly extensive and complex special needs (not limited to autism diagnoses) can be assessed and provided with a range of additional supports and services including residential placements. Supports funded by the applicant Ministry are separate and in addition to supports made available for children and youth with autism through the Ministry of Education and the Ministry of Health.

Issues

[68] This application raises the following issues:

(1) Did the Tribunal use the correct test for discrimination to be applied in this case?

(2) Is the Decision unreasonable? In particular:

(a) Did the Tribunal’s reasons fail to reveal a rational chain of analysis supporting a finding of discrimination?

(b) Were the Tribunal’s findings on access to education unreasonable?

(c) Did the Tribunal disregard or fundamentally misapprehend evidence?

(d) Did the Tribunal unreasonably fail to consider Ontario’s defence under s. 11 of the Code?

Analysis

Standard of Review

[69] The parties are in agreement that the standard of review under s. 45.8 of the Code is reasonableness. Ontario (Health) v. Association of Ontario Midwives, 2022 ONCA 458, 161 O.R. (3d) 561, instructs as follows, at para. 82:

Vavilov recognize[s] that reasonableness must take into account the relevant “colour” or “constraints”, including the expertise of the Tribunal and the existence of a privative clause in s. 45.8: Vavilov, at para. 90. What this means in practice is that, when reviewing a decision from the Tribunal, judges are to apply reasonableness with the appropriate measure of judicial restraint that respects the distinct role of administrative decision-makers, in accordance with Vavilov, which includes the following guidance:

• “[R]easonableness review finds its starting point in judicial restraint and respects the distinct role of administrative decision makers”: at para. 75.

• Reviewing courts must not apply a standard of perfection when reviewing written reasons: at para. 91.

• Reviewing courts should pay respectful attention to the decision maker’s demonstrated expertise and application of specialized knowledge. Expertise may help explain an outcome that seems puzzling on its face: at para. 93.

• The history and context of the proceedings must inform the reviewing court’s reading of the reasons: at para. 94.

• To set aside a decision as unreasonable, “[a]ny alleged flaws or shortcomings must be more than merely superficial or peripheral to the merits of the decision.” Instead, they must be "sufficiently central or significant to render the decision unreasonable.” A decision with

“sufficiently serious shortcomings” will not “exhibit the requisite degree of justification, intelligibility and transparency”: at para. 100.

• The reasoning must be rational and logical for the decision to be reasonable, but the analysis is not a “line-by-line treasure hunt for error”: at para. 102.

• Reasons should be read in light of the record and administrative regime in which they are given. Read holistically, reasons must reveal a rational chain of analysis to be reasonable. The conclusion must flow from the analysis undertaken and the record: at para. 103.

• Reviewing courts must not reweigh and reassess evidence; absent exceptional circumstances, the reviewing court should not interfere with factual findings of the decision maker: at para. 125.

• A decision maker’s failure to address key issues or central arguments may reflect a potential gap or flaw in the reasons. However, decision makers need not respond to every argument or make an explicit finding on every element leading to a conclusion. Reviewing courts cannot expect that they will: at para. 128.

Issue 1: Did the Tribunal use the correct test for discrimination to be applied in this case?

[70] A large part of the parties’ submissions during the hearing was focused on the correct test for discrimination in this case and the Supreme Court of Canada jurisprudence. Ontario submits that this court and the Court of Appeal have repeatedly held that in a challenge to a law or policy of general application, the test for discrimination under the Charter and the Code is the same: ETFO et al. v. Her Majesty the Queen, 2019 ONSC 1308, 144 O.R. (3d) 347, at para. 150 (“EFTO”); Ontario (Director of ODSP) v. Tranchemontagne, 2010 ONCA 593, 102 O.R. (3d) 97, at para. 84. Relying on Tranchemontagne, R. v. Peart, 2017 ONSC 782 (Div Ct.), and ETFO, Ontario submits that the Tribunal is required to apply the Charter test.

[71] D.I. submits that there is no binding precedent requiring the application of the Charter test in Code contexts and deference should be afforded to the Tribunal’s decision to apply the Moore test.

[72] The Tribunal seemed to find that it was a choice between accepting the Code test or the Charter test and makes the unintelligible statement that “it is more appropriate to apply the prima facie test established for human rights legislation, than to simply dismiss an Application”: at para. 267.

[73] Both parties find support in the jurisprudence for their choice of the correct test to be applied in this case. I have concluded that whether the three-part Code test or the Charter test is used, the Decision does not set out a coherent line of reasoning to support the conclusion reached of disability discrimination, which I turn to next.

Issue 2: Is the Decision unreasonable? In particular:

i) Did the Tribunal’s reasons fail to reveal a rational chain of analysis supporting a finding of discrimination?

[74] The Tribunal set out the 3-part prima facie test established in Moore v. British Columbia (Education), 2012 SCC 61, [2012] 3 S.C.R. 360 (“Moore”), as follows at para. 261:

It is well established that to make out a prima facie case of discrimination, applicants must be able to show that:

a. They have a characteristic protected from discrimination under the Code;

b. They have experienced adverse treatment, explicitly or through adverse impact, with respect to the service; and

c. The protected characteristic was a factor in the adverse treatment.

See Moore v. British Columbia (Education), 2012 SCC 61 at para. 33, and British Columbia Human Rights Tribunal v. Schrenk, 2017 SCC 62, at para. 86.

[75] Relying on Ontario (Disability Support Program) v. Tranchemontagne, 2010 ONCA 593, 102 O.R. (3d) 97, the Tribunal found that the test for a prima facie case, like the s. 15 test under the Charter, is aimed at identifying whether the impugned government conduct “results in arbitrariness or creates a disadvantage which limits opportunities, perpetuates prejudice and stereotyping, or fails to recognize pre-existing disadvantage”: at para. 270.

[76] The Tribunal found, at paras. 304-05:

As also stated above, in order to find a prima facie case of discrimination, the Tribunal must find that the applicant experienced adverse impact as a result of the protected characteristic, i.e., disability in this case. I find that the experience of D.I. amounts to discrimination, when she was not able to have access to more intensive services and supports through the OAP, as recommended by the service provider, i.e., the BCBA, and as was deemed necessary by other professionals, such as Dr. Shih, when assessing her needs.

In the case of D.I., the alleged and accepted discrimination was due to her disabilities, primarily, but not exclusively limited to ASD.

[77] At para. 304, the Tribunal stated that D.I.’s experience with the OAP amounts to discrimination because she was denied “access to more intensive services and supports through the OAP”. At para. 305, the Tribunal then stated that this discrimination was “due to her disabilities”.

[78] The Tribunal did not explain how a finding that D.I. had unmet needs established adverse treatment based on her disability. It does not automatically follow that, because D.I.’s needs are not fully met, there is adverse treatment and the OAP “limits opportunities, perpetuates prejudice and stereotyping, or fails to recognize pre-existing disadvantage.” Under the OAP, D.I. is receiving funding, although admittedly not as much as her service provider recommends. Conferring a benefit is not adverse treatment, and the program cannot be said to have an adverse impact on D.I. as a result of her disability.

[79] The Tribunal adopted the definition of “disadvantage” in Al-Turki v. Ontario (Transportation), 2020 HRTO 392, as including “the limiting or withholding of a benefit or the imposing of burdens, obligations or disadvantages that are not imposed on others as examples of discrimination”: at para. 317. The Tribunal found that that definition of “disadvantage” in Al-Turki applies in this case where “the differential needs of the two test case applicants have resulted in a different outcome for them in terms of the alleged breach of the Code”: at para. 317. Al-Turki was a case that found a Ministry of Transportation policy discriminatory. The impugned policy required Convention refugees to submit an original document authenticating their driving experience from their originating jurisdiction. The Tribunal found that the Ministry of Transportation had not established that the neutral rule requiring authenticating documents to show driving experience was reasonably necessary to increase road safety. The Ministry was required to modify the policy to accommodate the applicants. It had nothing to do with alleged differential treatment in a needs-based program as is the case here.

[80] At para. 306, the Tribunal addressed Ontario’s submission that the structure of the program was necessitated by budgetary restrictions. The Tribunal suggested that this amounted to systemic discrimination. It drew an analogy to Moore, in which a child suffered discrimination and was entitled to a consequential personal remedy which had clear broad remedial repercussions for how other students with severe learning disabilities are educated. However, at para. 28 of Moore, Abella

J. stated that the discrimination arose not from the denial of an “ancillary” service but rather denial of the means to access public education, a benefit available to all students in the province. This illustrates the gap in the Tribunal’s reasons for finding discrimination: unlike in Moore, the Tribunal failed to identify a benefit that was available to other children in the province that was not available to D.I. As explained below, the Tribunal’s bald conclusion that D.I. was denied meaningful access to education does not suffice.

[81] Whether the test for discrimination is under the Charter or the Code, the Tribunal failed to provide a rational chain of analysis for how D.I. met the test for disability discrimination. There must be a framework that recognizes what the wrong is. It is not enough to say that because D.I. is disabled and all of her needs were not met, she experienced disability discrimination. The Tribunal provided no analysis of how disability was a factor in the adverse treatment. The freezing of the Behaviour Plans and capping the benefits in the new OAP were done to address the inequities in the program. Disability was not a factor.

[82] It is not a rational chain of analysis for the Tribunal to find that D.I. experienced disability discrimination because A.H.’s needs were met under the OAP while D.I.’s were not. Everyone in the OAP is disabled. This case raises the question of how the resources allocated to the OAP are distributed to disabled children and youth. In the case of a fixed budget, to find that one gets more

means another gets less. The allocation of such funds is left to the Government, and it is entitled to make that decision as long as it does so fairly and does not discriminate.

[83] At para. 319 of the Decision, the Tribunal seems to accept that the OAP is supposed to create substantive equality for children with ASD in terms of accessing the program to benefit them. Because Ontario offers a program for autism, it does not follow that the resources have to be offered to everybody and meet 100% of their need, as long as it does not do so in a discriminatory way. In this case, Ontario has chosen to concentrate more resources on children who are younger, because extensive clinical evidence supports a finding that younger children will benefit the most. It has also chosen to redress the inequities of the Behaviour Plan Model which left 85% of the children with autism without any benefits. These goals are not discriminatory.

[84] The Supreme Court has held that benefit programs need not meet the needs of each individual beneficiary in order to escape a charge of discrimination. Rather, where a claimant has established that a benefit program contains a distinction based on a protected ground, the question becomes “whether the lines drawn are generally appropriate, having regard to the circumstances of the persons impacted and the objects of the scheme”: Withler v. Canada (Attorney General), 2011 SCC 12, [2011] 1 S.C.R. 396, at para. 67. Importantly, “[p]erfect correspondence between a benefit program and the actual needs and circumstances of the claimant group is not required” and “[a]llocation of resources and particular policy goals that the legislature may be seeking to achieve may also be considered”: Withler, at para. 67. Said differently, “the inability of a given social program to meet the needs of each and every individual does not permit us to conclude that the program failed to correspond to the actual needs and circumstances of the affected group” for the purposes of the discrimination analysis: Gosselin v. Quebec (Attorney General), 2002 SCC 84, [2002] 4 S.C.R. 429, at para. 55.

[85] It is well-settled law that the right to equality, whether under the Code or the Charter, does not require that the government fund all of an individual’s disability related needs. It is illogical, and therefore unreasonable, to find that D.I. experienced discrimination for the very characteristic – disability – that entitled her to participate in the OAP.

[86] The OAP was designed to alleviate disability of children with ASD. Caps and parameters are a common feature of government affirmative action programs. In this case, they addressed the inequity of the former OAP, under which 85% of children with ASD received no funding. The caps and parameters of the new OAP were introduced to ensure that all children deemed eligible for the OAP received some needed and beneficial services. This included the objective of earlier intervention for young children who are deemed to benefit the most from the program, rather than their missing the window of opportunity by remaining on the waitlist during their early years.

[87] The Tribunal is the adjudicator of discrimination, not simply needs. While an assessment of needs can be relevant to a finding of discrimination, the analysis cannot stop there. In effect, the Tribunal has designed its own program based on the individual assessment of each child’s disability needs by a child’s service provider and created the criteria for administering it. It does not address Ontario’s evidence that allowing individualized exceptions becomes the rule and jeopardizes the sustainability of the program. It looks very much like the Behaviour Plan model which resulted in such inequity in the distribution of the benefits of the program. This was not the Tribunal’s job to do.

[88] The right to equality does not include a positive right to receive a particular level of government funding or benefits, or to continue to receive the same benefit indefinitely: Auton (Guardian ad litem) v. British Columbia (Attorney General), 2004 SCC 78, [2004] 3 S.C.R. 657, at paras. 41-47; Tanudjaja v. Attorney General (Canada), 2013 ONSC 5410 (Div. Ct.), 116 O.R. (3d) 574, at paras. 96-103.

[89] This Court recently affirmed in Robinson-Cooke that there is “considerable jurisprudence that supports that in human rights cases, an inference of perpetuating disadvantage, prejudice or stereotyping can generally be found in the evidence establishing a distinction on a Code ground that creates a disadvantage by withholding a benefit available to others or imposing a burden not imposed on others”: Ontario (Minister of Children, Community and Social Services) v. Robinson- Cooke, 2024 ONSC 3556 (Div. Ct.), at para. 100; citing Stewart v. Elk Valley Coal Corp., 2017 SCC 30, [2017] 1 SCR 591, at para. 45; Al-Turki at paras. 87, 94; Hendershott v. Ontario (Ministry of Community and Social Services), 2011 HRTO 482, 72 C.H.R.R. 1 at paras. 45-55; XY v. Ontario (Government and Consumer Services), 2012 HRTO 726, 74 C.H.R.R. 331, at para. 159;

Tranchemontagne at paras. 90-91, 104; Fraser v. Canada (Attorney General), 2020 SCC 28, [2020] 3 S.C.R. 113 at para. 78. In Robinson-Cooke, this Court held that it was reasonable for the Tribunal to find discrimination because the applicant had established that, due to the nature of her disability, she was denied a benefit that was “available to other members of society”: at para. 103. As the Superior Court recently put it, “[c]omparison is not just a tool, it is a crucial component in the discrimination analysis. Identifying inequality is an inherently comparative exercise”: Metro Taxi Ltd. et al v. City of Ottawa, 2024 ONSC 2725, at para. 301. “The first step in the analysis asks whether the Act created or contributed to a disproportionate impact on the claimant group based on a protected ground. This necessarily involves drawing a comparison between the claimant group and other groups, or the general population”: Fair Change v. His Majesty the King in Right of Ontario, 2024 ONSC 1895, 170 O.R. (3d) 561, at para. 35.

[90] It was argued on D.I.’s behalf that, unlike in Sharma, in this case a comparative analysis was not needed to elucidate an unclear discriminatory distinction because the distinctions and discriminatory impacts on the basis of disability were plain on the face of the program. I do not agree. It is not clear how the Tribunal found discrimination in this case without the requisite comparative analysis.

[91] There was no distinction in the cap on service levels with Behaviour Plans – all children who were part of the legacy families who had Behaviour Plans had their funds capped during the transition to the new OAP. This was not a distinction based on the prohibited ground of disability nor was it disability discrimination. Rather, D.I. was in receipt of funds because of her disability. The plans were capped to ensure that all children deemed eligible for the OAP received at least some needed and beneficial services including earlier intervention that was deemed particularly important and effective for them before they entered school. While D.I.’s funding under Core Clinical Services was immediately reduced based on age, this also was designed to correct the inequity that had developed where 85% of the children eligible for OAP were on the waitlist while the entire budget went to 15% of those eligible. Moreover, the Tribunal declined to determine whether the program discriminated on the basis of age.

[92] While the Tribunal stated the legal test for a prima facie case of discrimination, it did not set out how the facts of the case met that standard. As such, there is no “internally coherent line of reasoning”: Vavilov, at para. 10.

[93] Because the Tribunal’s reasons disclosed no line of analysis that could reasonably lead it from the evidence before it to the conclusion at which it arrived, the Decision that D.I. experienced disability discrimination is unreasonable.

ii) Were the Tribunal’s findings on access to education unreasonable?

[94] The Tribunal concluded that D.I. had not been provided with a meaningful access to an education, as that is contemplated by the Supreme court’s decision in Moore.

[95] The Tribunal made this finding with respect to educational services despite the fact that

D.I. made no Code challenge respecting her access to education.

[96] The finding with respect to educational services is repeated in the Tribunal’s ultimate conclusion on the matter: “The specific accommodations for D.I. should include both her continuing access to the appropriate and needed components of the OAP, as well as a meaningful access to an education provided through her local school board and appropriate ways of assisting her to acquire the ability to communicate”: at para. 346.

[97] D.I.’s school board, which has the responsibility for the delivery of educational services, was not named as a respondent to the proceeding. Rather, the applications before the Tribunal impugned the OAP as the relevant service under s. 1 of the Code.

[98] D.I. submits that the Tribunal considered D.I.’s access to education in response to Ontario’s defence that any shortcomings in the OAP were offset by the school system and that the Tribunal’s findings that the educational and health care services are not adequate to compensate

D.I. for the anticipated changes for her in the new OAP are reasonable and open to it.

[99] Ontario submits that its response to the application before the Tribunal would have been different had D.I. raised a Code challenge with respect to services funded by the Ministry of Education and Health. Ontario submits that it would have provided evidence related to programs funded by the other relevant ministries.

[100] The problem with D.I.’s submission is that the Tribunal draws the bald conclusion that D.I. was deprived of a meaningful access to an education. One is left to guess at the Tribunal’s reasoning process.

[101] Vavilov instructs that a reviewing court must develop an understanding of the decision maker’s reasoning process in order to determine whether the decision as a whole is reasonable. To make this determination, the reviewing court asks whether the decision bears the hallmarks of reasonableness — justification, transparency and intelligibility — and whether it is justified in relation to the relevant factual and legal constraints that bear on the decision. Reasonableness review is not a “line-by-line treasure hunt for error” but it is not ordinarily appropriate for the reviewing court to fashion its own reasons in order to buttress the administrative decision: Vavilov, at paras. 96, 102.

[102] The Tribunal made bald findings with respect to health and education services that were not impugned in D.I.’s application and on which Ontario did not have the opportunity to respond fully. The Decision is unreasonable in this regard.

iii Did the Tribunal disregard or fundamentally misapprehend evidence?

[103] The Tribunal accepted testimony from D.I.’s service provider, whose ABA services were funded under D.I.’s legacy Behaviour Plan, that following the pandemic during July and August 2022, D.I. would have benefited from an additional day per week of ABA therapy at the service provider’s clinic. This would have made for a total of four days per week instead of three, but because of the ongoing transition to the redesigned OAP, D.I.’s Behaviour Plan could not be increased. While the Tribunal states in para. 304 of the Decision that D.I.’s psychiatrist, Dr. Shih, deemed ABA necessary when assessing D.I.’s needs, this is contradicted by para. 243 of the Decision where she notes Dr. Shih’s evidence that he did not make any recommendations for increasing D.I.’s ABA therapy. Dr. Shih stated that he deferred to the service provider on that point.

[104] Both parties led extensive, independent expert evidence on the issue of the suitability and efficacy of intensive ABA therapy based on age. While this evidence was relevant to the issue of whether D.I. would have benefited from more intensive ABA therapy at age 11, neither expert had met with or assessed D.I. The Tribunal found that both experts supported the view that each child must be assessed individually. Essentially, the experts’ evidence was relevant to whether an autism program which decreased funding based on age without exception was age discrimination. The Tribunal found that the two experts did not agree on the issue of the matter of the impact of age, but it did not need to resolve this difference of expert opinion, given the determination that the Code barred it from addressing the allegations of discrimination on the grounds of age.

[105] Given that the Tribunal had declined to decide the issue of age discrimination, this finding was not unreasonable.

[106] Ontario makes a number of other arguments about the Tribunal disregarding or fundamentally misapprehending evidence (e.g., evidence that supported that D.I.’s needs were not increasing). Reviewing courts must not reweigh and reassess evidence. Absent exceptional circumstances, the reviewing court should not interfere with factual findings of the decision maker: Vavilov, at para. 125. I am not persuaded that Ontario’s arguments amount to exceptional circumstances.

iv. Did the Tribunal unreasonably fail to consider Ontario’s defence under s. 11 of the

Code?

[107] Although it is not necessary in light of my conclusion that the Tribunal’s holding that D.I. experienced disability discrimination cannot be sustained, I go on to consider whether the Tribunal unreasonably failed to consider Ontario’s defence under s. 11 of the Code in the event that a higher court disagrees with my finding on the prima facie test not having been met.

[108] The Tribunal did not set out the legal framework for a defence under s. 11 of the Code.

[109] As a defence raised following a finding of prima facie discrimination, Ontario bore the burden of establishing the defence: Haseeb, at paras. 53-54; British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), 1999 646 (SCC), [1999] 3 S.C.R. 868 at para. 20 [“Grismer”]. Specifically, s. 11 of the Code codifies the bona fide justification test that was set out by the Supreme Court in Grismer. Under this test, a responding party can only justify an otherwise discriminatory standard – such as a discriminatory benefits program design – by showing that 1) the discriminatory standard was adopted for a goal that is rationally connected to the function being performed; 2) the standard was adopted in good faith, in the belief that it was necessary for the fulfillment of the goal; and 3) the standard was in fact necessary to accomplish the goal, including a requirement to show proof that the responding party could not accommodate persons with the characteristics of the claimant without incurring undue hardship: Grismer, at paras. 20-22, 25, 30- 31; NJ, at para. 23; Al-Turki, at para. 107; JL, at paras. 100-104.

[110] Ontario made the following written submissions to the Tribunal in support of a s. 11 defence under the Code:

132. By contrast, a policy of general application does not only affect the claimants before the Tribunal. In considering the OAP, a large social benefits program which serves tens of thousands of families in Ontario, the Tribunal’s ultimate perspective cannot be limited to two, or several, of the program’s beneficiaries. Government is entitled to rely on s.1 justification in Charter cases and its functional equivalent – s. 11(1)(a) – in Code cases in an area of policymaking, where the impugned law or policy seeks to address complex and competing considerations. An appropriate measure of deference is also apposite. As the Court of Appeal stated in Wynberg:

The Supreme Court of Canada has held repeatedly that where the government has made a difficult policy choice regarding the claims of competing groups, or the evaluation of complex and conflicting research, or the distribution of public resources, or the promulgation of solutions which concurrently balance benefits and costs for many different parties, then the proper course of judicial conduct is deference. [Footnotes omitted.]

133. Here, the allocation of different funding to eligible children and youth of different age cohorts and needs profiles, and the transitional policy for legacy Behaviour Plans, are rationally connected to the ameliorative goals of the OAP. This Tribunal heard compelling evidence on the equity issues that plagued the previous OAP, which used individualized allocations without any capping of funds or services. The Ministry worked with families, stakeholders, clinicians, and service providers over years to develop and test a new program that would be more sustainable over the long-term and responsive to the ways needs change as program beneficiaries age. [Footnotes omitted.]

134. The present circumstances are distinguishable from Meiorin British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999 652 (SCC)](https://www.minicounsel.ca/scc/1999/652), [1999] 3 S.C.R. 3 at para [54] in which the Supreme Court found no rational connection between the aerobic requirement and the job of firefighter. By contrast, the evidence here shows

that the age considerations for Childhood Budgets, interim funding and Core Clinical Services rationally furthered the program objectives of moving as many children off the waitlist and into the OAP as quickly possible, while responding to concerns about lost opportunities for intensive early intervention in the predecessor program. [Footnotes omitted.]

135. The transitional policy for legacy Behaviour Plans rationally furthers the ameliorative goals of the OAP. Allowing continued renewal of Behaviour Plans would fail to address the problem of a minority of families receiving most program resources. The Tribunal heard that the cost to the Ministry of not placing a limit on legacy Behaviour Plans during this transition period would have been in the hundreds of millions of dollars per year. Capping legacy Behaviours Plans was not motivated by cost savings. The evidence is that the Ministry’s goal was not to operate two parallel autism programs at the same time, and that moving families from legacy Behaviour Plans into the redesigned OAP is crucial to the program integrity going forward. [Footnotes omitted.]

136. Nor are the age- and need-based allocations under the Core Clinical Services pathway motivated by mere cost savings. Like all programs, the OAP operates within a budget, which in this case was doubled from approximately $300 million to $600 million in 2019. Allocating resources to maximize the number of children with access to services, addressing ballooning program costs and inequity in the allocation of public resources, are all important objectives adopted in good faith that are sufficient for justification under s. 11 of the Code. [Footnotes omitted.]

137. Finally, the undisputed evidence is that allowing families to bypass the program’s categories of funding allocations would threaten the goals of equity and sustainability –reasons for the redesign. Past experience with autism services shows that “exceptions start to become the rule and it starts to jeopardize the overall sustainability of the program.” While the OAP cannot accommodate the Applicants by creating a way to bypass criteria without undue hardship, the redesigned program does accommodate those with exceptional or additional needs through its diversity of pathways of care and integration in other systems of care. [Footnotes omitted.]

[111] In response to Ontario’s written submissions, the Tribunal found that this historical context does not necessarily have direct relevance to the test cases before the Tribunal and that Ontario “did not formally claim and rely upon an undue hardship defence”: at para. 53.

[112] Elsewhere in its Decision the Tribunal appears to recognize that Ontario did in fact advance the position that any discrimination is reasonable and bona fide under s. 11 of the Code, but dispatches the argument with the following peremptory conclusion:

… there are circumstances where the identified disabilities of a child demand a level of flexibility in providing the appropriate steps in the provision of services, such as the OAP.

It is for that reason that this Decision has found that D.I. experienced discrimination on the grounds of her disabilities in not having her disabilities accommodated fully and appropriately to the point of undue hardship, as was asserted by her Litigation Guardian and supported by the evidence of the professionals who have been working with her.

[113] The Tribunal fails to provide intelligible reasons for dismissing Ontario’s defence. Instead, with no explanation, it relies on a passage in Moore discussing the different remedial approaches to direct versus indirect discrimination. That passage has no connection to the adjudication of defences under s. 11 of the Code.

[114] The Tribunal noted that Ontario’s reliance upon the Court of Appeal’s decision in Wynberg

v. Ontario (2006), 2006 22919 (ON CA), 82 O.R. (3d) 561, at para. 184, in support of its s. 11 defence about the proper course of judicial conduct being deference was countered by Centrale des syndicats du Quebec v. Quebec (Attorney General), 2018 SCC 18, [2018] 1 S.C.R. 522, at para. 32, which the Tribunal quoted at paragraph 335:

In Vriend v. Alberta, 1998 816 (SCC), [1998] 1 S.C.R. 493, this Court held that “[i]t is not necessary to find that the legislation creates the discrimination existing in society” to find a s. 15 breach. (para. 84 (emphasis in original)). There, as here, the law perpetuated the disadvantage of a protected group through a legislated “denial of access to remedial procedures for discrimination”, remedial procedures that “they so urgently need because of the existence of discrimination against them in society”. [Citations omitted.]

[115] The Tribunal considered these two quotes as inconsistent and therefore disregarded the principles articulated in the Wynberg case and found they did not support a s.11 defence. She did not explain why she thought they were inconsistent.

[116] The Vriend quote is relevant to finding a prima facie case for discrimination. In Vriend, the issue was that the legislation denied benefits to gay and lesbian people that were afforded to others, and this denial was based on a ground protected under s. 15. That exclusion was discriminatory. The quote cited stands for the proposition that the government may not deny access to remedial procedures in a fashion that perpetuates the disadvantage of a protected group. That does not mean that the government may not allocate limited resources in an ameliorative program so as to best achieve the goals of that program.

[117] Vriend should not be read as creating a positive right to have the government completely ameliorate a group’s disadvantage. Vriend did not involve the allocation of scarce resources among disadvantaged groups.

[118] The passage from Wynberg, on the other hand, arises in the context of the s.1 justification analysis under the Charter. That analysis assumes that an infringement has already been established. The quote simply states that, when assessing whether an infringement is minimally impairing, in circumstances such as here where the government has made a difficult policy choice

regarding the claims of competing groups, the proper course of judicial conduct is deference in determining the most appropriate means of allocating limited resources.

[119] In brief, the passages from Vriend and Wynberg discuss different issues at different steps in the analysis. While the Vriend quote is relevant to finding a prima facie case for discrimination, the Wynberg case is helpful in understanding the undue hardship defence after the prima facie case is established. Indeed, the Court of Appeal clearly regarded Wynberg as consistent with Vriend. The Court of Appeal in Wynberg was bound to follow Vriend, which was decided eight years earlier and which the Court of Appeal cited in Wynberg.

[120] In this way, the Decision disclosed a false dilemma. It is a “fatal [flaw] in its overarching logic” to find a conflict between Wynberg and Vriend that does not exist and rely on that in the analysis to dismiss Ontario’s undue hardship defence, a key issue that is important to the overall decision: Vavilov, at para. 102. This renders the decision unreasonable.

Remedy

[121] Having determined that the Tribunal’s decision was unreasonable, I must now consider the appropriate remedy.

[122] Typically, where a decision of an administrative tribunal is found to be unreasonable, the appropriate remedy is to quash the decision and remit the matter to the decision maker to reconsider the decision with the benefit of the court’s reasons: Vavilov, at para. 141. However, the matter will not be remitted where it would “stymie the timely and effective resolution of matters in a manner that no legislature could have intended”. This is especially the case where it is clear to the court on judicial review that a particular outcome is inevitable, and that remitting the matter would “serve no useful purpose”: Vavilov, at para. 142.

[123] Here, one outcome is inevitable. In light of the factual and legal constraints that bear on the case, the only reasonable result is that the OAP has not discriminated against D.I. on the basis of her disability. This holds true regardless of whether the court applies the test for discrimination under s. 15(1) of the Charter or the Moore test.

[124] In order to ground a claim for discrimination, a claimant must establish “a distinction based on a prohibited ground that creates a disadvantage (in the sense of withholding a benefit available to others or imposing a burden not imposed on others)”: Tranchemontagne, at para. 90. Said differently, the claimant must experience an “adverse impact” in respect to a generally available service based on a protected characteristic: Moore, at para. 33. As noted above, analyzing a claim of discrimination is a comparative exercise: Robinson-Cooke, at para. 100.

[125] Thus, discrimination cannot be based on a mere finding that a member of a disadvantaged group has some unmet need. It must be shown that the claimant’s needs are unmet because, compared to others, that claimant is denied a benefit or subjected to an additional burden on the basis of a protected ground.

[126] Under the new OAP, D.I. will neither be denied a benefit available to others nor be subject to a burden not imposed on others on the basis of her disability. The same level of funding is available to any child of the same age who is assessed as having extensive needs. There is no

dispute that the benefit which D.I. seeks – funding in excess of the limit imposed for children aged 10 to 14 years – is not available to any child of her age.

[127] I refer again to the Supreme Court’s decision in Moore. Writing for the court, Justice Abella concluded that the claimant in that case suffered discrimination not because he was denied funding that no other child received, but because the inadequate funding prevented his meaningful access to education: Moore, at paras. 27-32. Equality rights do not protect a person’s right to “extra ‘ancillary’ service[s], but rather the manner by which meaningful access to the provided benefit can be achieved”: Moore, at para. 28. Education is a benefit available to every child, and because the claimant was denied access to that benefit, he had experienced discrimination: Moore, at para.

28. Neither the Tribunal nor D.I. has properly identified such a generally available benefit in this case.

[128] The factual constraints on the Tribunal’s decision further support a finding of no disability discrimination. A decision maker’s reasons must be responsive to the submissions of the parties: Vavilov, at paras. 127-28. The unfairness being alleged in this case is Ontario’s decision to concentrate resources on children who are younger, resulting in a reduction of the level of funding that legacy families like D.I.’s were receiving under the former OAP. This is also reflected in D.I.’s initial application to the Tribunal. The essence of the complaint is not disability discrimination. Rather, the thrust of the claim was discrimination grounded in the reduction of benefits based on age. Though the applicants selected age, sex and disability as the alleged bases of discrimination, the application only described distinctions on the basis of age. The age discrimination claim was not adjudicated. As noted above, that issue has been remitted to the Tribunal for resolution.

[129] The parties had a full opportunity to develop their arguments on this issue, and the Tribunal had a genuine opportunity to weigh in. The result is that no rational chain of analysis could lead to a finding that the OAP’s funding caps constitute discrimination on the basis of disability in light of the factual and legal constraints bearing on the Tribunal. No useful purpose would be served by remitting the question of disability discrimination back to the Tribunal. Such a decision would only serve to delay a final determination and constitute an unnecessary draw on the Tribunal’s limited resources.

Conclusion

[130] The Decision does not exhibit the requisite degree of justification, intelligibility and transparency and must be quashed. I would also exercise my discretion and decline to remit the question of disability discrimination for determination by the Tribunal. In these circumstances, no point would be served in remitting the disability discrimination issue back to the Tribunal. I would allow the application and quash the Decision.

Costs

[131] The parties agreed that if Ontario was successful, there would be no costs. Accordingly, no costs are ordered.

J.

I agree

J.

I agree

J.

Released: January 31, 2025

ONSC 658

DIVISIONAL COURT FILE NO.: 210/24

DATE: 2025-01-31

ONTARIO SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Heeney, Backhouse, Myers JJ. BETWEEN:

HIS MAJESTY THE KING IN RIGHT OF ONTARIO AS REPRESENTED BY THE MINISTER OF CHILDREN, COMMUNITY AND SOCIAL SERVICES

Applicant

– and –

A.H. AS REPRESENTED BY THEIR LITIGATION GUARDIAN G.H., D.I. AS REPRESENTED BY HER LITIGATION GUARDIAN H.I., D.L. AS REPRESENTED BY HIS LITIGATION GUARDIAN L.L, M.E. AS REPRESENTED BY HER LITIGATION GUARDIAN S.M.E, M.H. AS REPRESENTED BY HIS LITIGATION GUARDIAN A.H., S.C. AS REPRESENTED BY HER LITIGATION GUARDIAN N.C., G.R. AS REPRESENTED BY HIS LITIGATION GUARDIAN D.R., C.R. AS REPRESENTED BY HIS LITIGATION GUARDIAN L.C., L.T. AS REPRESENTED BY HIS LITIGATION GUARDIAN

J.T. and THE HUMAN RIGHTS TRIBUNAL OF ONTARIO

Respondents

REASONS FOR DECISION

BACKHOUSE J.

Released: January 31, 2025