April 10, 2007
This Thursday the Supreme Court of Canada ("SCC") will release its leave decision in Wynberg et al v. Ontario, (2006) 82 OR (3d) 561 [Wynberg]. This case has not been in the news much of late, but should the SCC fail to grant leave - as it dismissed all 22 leave applications last Thursday - it will be sure to send shockwaves through the province.
Wynberg centers on Ontario's decision to provide the Intensive Early Intervention Program ("IEIP") (which includes IBI therapy) to children aged 2-5 with Autism Spectrum Disorders - specifically, the province's decision to limit the program to that age group only. A group of families, on behalf of their children, have challenged this decision on the basis that it is age discrimination contrary to s. 15 of the Charter. They further allege that the province's failure to provide special education based on IEIP guidelines in public schools is discrimination based on disability. At trial, Justice Kiteley found in favour of the complainants, issuing a declaration and awarding damages to cover the cost of past and future treatments. Justice Kiteley found that the age cut-off perpetuated and reinforced stereotypes that autistic children beyond the age of six are "unredeemable," and that the age cut-off impacted the children's human dignity. She further held that the province was not able to justify the age discrimination under s. 1, nor had the province even submitted a s. 1 argument regarding the discrimination based on disability.
However, at the Ontario Court of Appeal ("ONCA"), allowed the province's appeals and overturned the holding of the trial judge - in every respect. The ONCA held that the government's IEIP was not discriminatory, did not breach the Charter, and that the remedy of damages was not available to the plaintiffs. The ONCA found that the treatment was differential based on age, but not discriminatory. There was no pre-existing historical disadvantage facing autistic children over the age of six related to age, the province's decision to restrict funding to those children aged 2-5 was ameliorative in nature, and the failure of the province to provide the treatment to children aged over six did not demean their human dignity. The ONCA also held that the claim for discrimination based on disability, because of Ontario's failure to deliver special education in public schools based on IEIP guidelines, was not made out. In stark contrast to the trial judge, the ONCA found no differential treatment at all, citing the fact that programs delivered to the comparator group (other exceptional children in the same age group) were "impoverished."
Both levels of court applied the 4 factors in the Law test ([1999] 1 SCR 497) to the question of whether the differential treatment based on age was discriminatory under s.15 of the Charter - with completely different results. Clearly, the ONCA's analysis was tempered by deference to government policy decisions where significant public resources are at stake. I am not sure whether the SCC would take a different approach. In fact, an article by Kirk Makin in Monday, April 9's Globe and Mail observes that Canada's highest court has shown considerable deference to elected officials when public money hangs in the balance. That said, I will be surprised if the SCC takes a pass on weighing-in altogether.
17 Comments
"This case has not been in the news much of late, but should the SCC fail to grant leave .... it will be sure to send shockwaves through the province."
Why do you say that? Shockwaves through what part of the province? The legal community or the non-legal? Certainly unhappiness to some. Certainly financial hardship for many. But, are you suggesting the Ont CA made an error in law? Or are you expressing a normative, political position as to what the government of Ontario ought to have done?
What do you say the legal issue is of national importance? We've just heard the SCC on the issue of the courts overriding parliaments decisions on the use of taxpayer's money: Hislop.
You say you will be surprised if the SCC passes on saying something. Are you suggesting the trial judge was right and the Ont CA was wrong. The mere fact that the trial judge decided the case differently, using the same law, doesn't meant that there's room for reasonable people to differ. The trial judge might have been just wrong. If we count judges, there were 3 appellate judges and only 1 trial judge. 3 is a greater number than 1, isn't it?
I expect Mr.Cheifetz enjoys a rarified existence, but now here on the ground, even if it's not Canadian soil, the vibrations of court cases involving the provision of services for disabled, and specifically, autistic children, is considerable.
Perhaps he is unaware that there are as many as one in every 150 children in the US with autism.
Maybe at the end of Autism Awareness month this April, he and others may have a different perspective.
Best wishes
I think this case (like the New Brunswick mandatory retirement case and election results publication) is another one where the legal issues have been eclipsed by political and social changes.
It is my understanding that despite the OCA ruling, the provincial agency responsible for providing IBI therapy continues to comply with the trial judge's ruling by providing therapy to children above six, for entirely practical and political, rather than legal reasons.
Without adequate resources devoted, this, of course, reduces the spots available to younger children and increases the wait time for children at the very time when treatment is most effective - one of the main problems foreseen by the OCA in overturning the trial decision.
Furthermore, the Ontario government has committed to providing therapy to children over 6 through the school system. Although progress has been slow, Murray Campbell (the Globe's provincial politics commentator) has suggested that autism funding and therapy provision are going to be major issues in this fall's election. Even if the SCC decides to hear the case, it is highly likely that whichever party that gets elected will have made promises far in excess of anything the SCC would require of them.
There are at least some big legal issues, though that certainly has never qualified a case for SCC review. I find particularly disturbing the slowly narrowing scope of s. 15, and the increasingly inventive ways judges are using the the "discrimination" portion of the Law test to undermine s. 15 claims.
That test was intended to bar frivolous claims, not inject elements of s. 1 into the s. 15 analysis; furthermore, it was intended that the contextual factors be applied liberally and (duh) contextually. It seems that they're increasingly applied quite rigidly, and as if they were the only factors which can be considered.
Mind you, many of those cases which caught my eye were handed down from the SCC (the spanking case comes immediately to mind). So the plaintiffs may not receive the relief they seek even if their application is approved.
Personally, I wouldn't be all that surprised if the SCC didn't grant leave (no David, I am not claiming this application for leave is frivolous!)
The right to receive provincial funding for this type of treatment for autism was already addressed in Auton (Guardian ad litem of) v. British Columbia (Attorney General), [2004] 3 S.C.R. 657, where the SCC held that there was no such constitutional right.
While the legal arguments (i.e. the s.15 claim) may stronger in this case because Ontario creates a distinction for the provision of this treatment based on age, the claim in Wynberg is less sympathetic on a common sense level. In Auton, the BC government had not provided this treatment for autistic children at all. Here, the Ontario government, even though it did not need to do so constitutionally, did implement a program to provide this treatment on a limited basis and targetted young children who were most likely to benefit from this treatment.
It would be a travesty for the court, while holding that a province did not need to provide funding for any treatment at all, to now hold that if it chooses to do so, the province must provide the treatment on an unlimited basis without regard to its limited budget or the efficacy of the treatment for older children. This would only lead to a draining of funds away from the younger children (who may most benefit from this treatment) to older children (who have other education/treatment in public schools), when studies show the treatment is not as effective for this latter group.
Yu-Sung,
I'd be careful here. You're right that the argument would be a normative travesty. However, the sort of logic you're describing as a a travesty already exists in Canadian law. It's at least part of the basis for the policy/operational distinction in tort law. That is, there are situations where the state has no positive duty to do anything. However, having decided to do it, it has to do so properly. That's when we argue about the meaning of property.
You can read all about it in more detail in recent Ontario CA decisions dismissing actions against the Ont gov't brought by SARs victims and a victim of West Nile.
Can we bring the Ontario autism cases within that sort of analysis in the constitutional context, because the province chose to do something? I wouldn't have thought so. Others may disagree. I'm not a constitutional expert. We'll now tomorrow.
As you know, "frivolous" as you and I understand it, in this context, and "frivolous" as the lay person might are different issues. Whether the leave to appeal application is frivolous are not, in the legal sense, depends on how one assesses the merits of the grounds upon which leave has been sought. The moral strength of the arguments - assuming arguendo that the moral balance is in favour of the plaintiffs even though it'll drain funds away from others, as you say - won't create legal grounds if the grounds don't otherwise exist.
We might also get a hint as to how "frivolous" the leave panel thought the arguments are by whether costs are awarded.
Cheers,
Cheers,
Oops. "That's when we argue about the meaning of properly, not "property".
Property arguments would be for later, when the provincial government or local municipalitity (because of downloading) and allegedly inadequate funding from the federal gov't, raises the tax rate to fund the increased cost of the programs, and residential and commercial property owners square off over who'll pay the most.
This case is not just about providing treatment. It deals with quality of life.
It is about human rights for people with autism and the right of every individual with autism to have access to effective health and educational services.
Without appropriate services for people with autism of all ages, in schools and elsewhere in the community, the access, to programs and services (both educational and recreational), enjoyed and granted without question to the rest of society, is often lost to many who suffer from autism.
It is time that these barriers be removed.
Diane,
No - what you've described is the political issue. It's not, however, what the case is about. That's a legal issue which is answered only within the terms of the applicable laws.
In any event, the Supreme Court of Canada has just dimssed the application for leave to appeal, so the Ontario decision is now final.
The fight will now return to the political arena.
David,
Are you suggesting that the 'political' issue and the 'legal' issue are unconnected?
From the perspective of many families and service organizations this case was about equality. This cannot be fairly categorized as only a 'political' issue.
Ms Martin,
First, I've no doubt that you are correct that the families and the service organizations see the funding issue as one that involves equality rights under the Charter. That doesn't make them correct. More to the point, the Ont CA and SCC have said the appellants' view is not correct. That, then, is the law of of Ontario until the Ontario Legislature changes it or the Ontario Court of Appeal overrules itself. Remeber what Humpty Dumpty said to Alice: it's all about power. Well ... that's not quite what he said, but that was the substance.
Second, what I said to Diane was that what she had described was a political issue, not a legal issue.
What I did NOT say was that there is no connection between political issues and legal issues.
That would be a rather silly thing for me to have said, wouldn't it, when Charter-based review of legislation, such as in the autism cases, requires the judges to distinguish between those portions of the legislative decision-making process which are subject to judicial review and those portions which belong exclusively to the legislature?
There is, then, at least that much connection: what is one is not the other, once a court says which is which . You may well be correct in describing the court's decision as to which is which as a political decision; however, that description tells us nothing useful, because the decision is one being made by judges. That makes it a legal decision.
In any event, the legal theory inquiry into the nature and attributes of the judicial decision-making process, or the nature of the connection between political issues and legal issues writ large, or even narrowly under the Charter, are not debates in which I intend to become involved, here, now. I'm sure there are lurkers who are far more equipped than I to continue the discussion with you. More to the point, odds are that I'm already in enough philosophical hot water with some judges over what I've written, elsewhere, about other aspects of judicial decision-making.
Cheers,
Just found this string on the web and would like to add what some of you may see as a new twist to the autism litigation arena (although the case was filed almost 3 years ago).
Sagharian is proceeding as a Class Action case with a strong argument against Education where past autism cases focused on Health and/or Social Services. The "treatment" termed as ABA/IBI (Applied Behaviour Analysis/Intensive Behavioural Intervention) is provided through the Education system in the States and this case attempts to follow this existing template.
We will be at the Ontario Court of Appeal in February 2008.
Taline Sagharian
I have been trying to find out what the decision was on the Wynberg V. Ontario case. Can someone tell me what the SCC decision was?
The SCC declined to hear the appeal in Wynberg v. Ontario on April 12, 2007. The citation is [2006] S.C.C.A. No. 441.
So the Ontario Court of Appeal's ruling is the final word on this matter, and it can be found here: http://www.canlii.org/en/on/onca/doc/2006/2006canlii22919/2006canlii22919.html
The Court of Appeal for Ontario has released its decision on the Autism Class Action Lawsuit:
http://www.ontariocourts.on.ca:80/decisions/2008/may/2008ONCA0411.htm
The plaintiffs will be asking for leave to appeal to the Supreme Court.
Families Take Autism Class Action to Supreme Court of Canada
http://www.bakerlaw.ca/Media%20Release%20-%20Families%20Take%20Autism%20Class%20Action%20to%20Supreme%20Court%20of%20Canada.pdf