Simcha Walfish

The applicant, a child with Autism Spectrum Disorder, sought judicial review of a Human Rights Tribunal of Ontario decision dismissing their claim that changes to the Ontario Autism Program discriminated on the basis of age and disability.

The tribunal had declined to decide whether the definition of 'age' in section 10 of the Human Rights Code, which limits age discrimination claims to persons 18 or older, violated section 15 of the Charter.

The Divisional Court held that the tribunal was required to decide the Charter issue as it was properly pleaded and necessary to resolve the applicant's claim.

The tribunal's decision was quashed and the matter remitted for resolution of the constitutional question.

Ontario sought judicial review of an interim decision by the Human Rights Tribunal of Ontario finding that changes to the Ontario Autism Program (OAP) discriminated against a child with autism on the basis of disability.

The Divisional Court allowed the application and quashed the Tribunal's decision, finding it unreasonable.

The Court held that the Tribunal failed to provide a rational chain of analysis to support its conclusion that the child experienced adverse treatment based on her disability, as the OAP's funding caps were designed to address inequities and ensure all eligible children received some beneficial services.

The Court declined to remit the issue of disability discrimination back to the Tribunal, concluding that no rational analysis could lead to a finding of discrimination on these facts.