S. Zachary Green

The province appealed a trial judgment finding that the exclusion of school-age autistic children from an intensive early intervention program, and the failure to provide equivalent in-school services, infringed s. 15(1) of the Charter.

The Court of Appeal held that the age-based exclusion from the targeted ameliorative program did not amount to age discrimination, and that the disability claim failed because the claimants did not establish that the Minister had denied them the statutory entitlement to appropriate special education under s. 8(3) of the Education Act.

The court further held that, if necessary, the age limit would have been justified under s. 1, given the pressing objectives of early intervention and allocation of scarce resources.

It also held that s. 7 did not impose a positive constitutional obligation to provide the specific therapy sought, that the parents' derivative equality claims failed, and that no private law duty of care supported the negligence claim.

Damages were unavailable alongside declaratory relief absent bad faith, abuse of power, negligence or wilful blindness.

The appellant, Her Majesty The Queen in Right of Ontario, brought a motion to admit fresh evidence on appeal.

The Court of Appeal for Ontario dismissed the motion, finding that the evidence was designed to address an issue not central to the argument on appeal and not useful to the disposition of the appeal.

Costs of the motion were awarded to the respondents on a partial indemnity basis.