Will the SCC hear the Ontario Autism cases?

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.