Ontario Court of Appeal decision anticipated tomorrow in Wynberg et al. v. Ontario Autism Cases

For immediate publication

Toronto - The Ontario Court of Appeal will issue its decision in Wynberg et al. v. Ontario, a case involving government funding of Intensive Behavioural Intervention services (IBI) for children with Autism Spectrum Disorders (ASDs).

This is an appeal by the Attorney General of Ontario of the March 30, 2005 judgment of the Ontario Superior Court, finding that Ontario was in violation of the equality rights of the children because it failed to provide intervention programs, including in schools, for autistic children age six and older. The Court issued declarations to that effect and ordered Ontario to pay damages to the children for the cost of such services, past and future.

While the Ontario Human Rights Commission is not a party, the outcome of the Wynberg appeal will have an impact on the 250 plus cases involving 116 children with ASDs currently being litigated by the Commission before the Human Rights Tribunal of Ontario. The cases before the courts are being decided under the Canadian Charter of Rights and Freedoms while the cases before the Tribunal were brought pursuant to the Ontario Human Rights Code. The cases at the Tribunal include complaints against the Ministries of Education, and Children & Youth Services, as well as a number of school boards, recently added by the Tribunal as respondents, and are known together as Arzem et al. v. Ontario.

Initially, the Commission referred these cases to the Tribunal on the basis of disability discrimination. The issues include the age-six cut-off, and the long waitlists for service. The complainants also alleged that they were subjected to age discrimination. However, under the section 10 definition of age in the Human Rights Code, only people over the age of 18 can bring an aged-based discrimination complaint. The Commission and the complainants took the position that the definition of age in the Code is unconstitutional, and should not be applied to the children in the Arzem cases. The Tribunal recently ruled that this definition of age violates the section 15 equality protections of the Canadian Charter of Rights and Freedoms. This means that for the purposes of the Arzem proceedings, the Code’s definition of age will not apply. The children complainants can now amend their pleadings to include the ground of age.

Background

In January 2004, the Commission referred an unprecedented 121 autism-related complaints to the Tribunal for a hearing based on the restrictive eligibility criteria for funding support and long waiting lists for a government program. Additional complaints were subsequently filed and referred, and included issues of the role of the school boards and direct service versus direct funding.

The Government offers IBI as part of its Intensive Early Intervention Program (IEIP), but only to children between two and five years of age. The Superior Court in Wynberg found that the age cut off perpetuated and reinforced stereotypes that children with autism over age six were unredeemable, and had a profound impact on the children's human dignity.

Without financial support from the Government, some parents have had no other option but to handle the annual $50,000 costs for treatment on their own or have their children go without.

During the Commission’s 2003 public consultation on access to education for students with disabilities, many parents and organizations raised the issues of age six cut-off and waiting lists for IBI and other therapy.

In March 2004, the Minister of Children and Youth Services announced funding for recruitment and retention of qualified IBI professionals, but was silent on the age 6 cut-off issue.

In April 2004, the Ombudsman of Ontario reported on the problem of waiting lists and service delays in the Ministry of Children and Youth Services’ Intensive Early Intervention Program for Children with Autism.

Ontario human rights commissioners meet regularly throughout the year to review the results of investigations into complaints. Where the parties do not settle the complaint, and it appears that the procedure is appropriate and evidence warrants an inquiry, the Commission may refer the subject matter of the complaint to the Human Rights Tribunal of Ontario for a hearing. The Tribunal is independent from the Commission. The Tribunal determines whether a right under the Ontario Human Rights Code has been infringed and decides upon an appropriate remedy. No final decision has been made in the Arzem et al. v. Ontario cases, and hearings are anticipated to continue.

- 30 -