On July 7, 2006, the Ontario Court of Appeal overturned the 217 page decision of Justice Kiteley in Wynberg et al. v. Ontario and Deskin et al. v. Ontario (hereinafter "Wynberg Deskin"). Briefly, Justice Kiteley had ruled that the Ontario government’s decision to deny funding of IBI/ABA therapy to children over five years of age was a violation of their right to equal treatment at law under section 15 of the Canadian Charter of Rights and Freedoms (the "Charter"). For educators, Justice Kiteley’s ruling was especially significant because it rested on her determination that autistic children could not profit from public education without access to IBI/ABA therapy. Perhaps more significant is the Court of Appeal’s determination that the nature of IBI/ABA makes it impossible to deliver in a school setting.
Wynberg Deskin involves a constitutional challenge brought on behalf of 35 autistic children by 30 families. In 1999, the Ontario government announced the creation of the Intensive Early Intervention Program ("IEIP") which provided funding for children with autism age two to five. The Wynberg Deskin plaintiffs allege that the fact that the IEIP was not available to them after age five and the fact that IBI/ABA is not available in schools amounted to a violation of their Charter rights.
Counsel for the government argued that, if the parents wanted IBI/ABA therapy, they should seek it directly from the school boards because the government simply establishes the framework for special education and does not actually provide the services. In Justice Kiteley’s view, however, the fact that the Education Act requires the Minister of Education to "ensure" that special needs students are receiving adequate programs made the government not only accountable for the provision of special education programs in school boards but also accountable for any Charter violations. In this regard, the Court found that the Ministry had failed in its statutory duty towards autistic children, including because it did not "develop policy and give direction to school boards to ensure that ABA/IBI services are available in schools."
Madame Justice Kiteley also found that the Charter rights of the children were violated. In particular, Justice Kiteley found that the age limit within the IEIP violated the equality rights of the children. She held that the age limit discriminated against autistic children because it effectively, in her view, denied them access to education. She held that the benefit that the children sought (IBI/ABA) was analogous to the benefits that other special needs students receive in schools and under Ministry of Education policies. Justice Kiteley determined that, similar to children with severe learning disabilities or deaf and blind students, autistic children should have services that would allow them access to a range of educational services already provided by the school system. Denying them those services amounted to a violation of their right to be equal before the law.
The Ontario Court of Appeal
The Court of Appeal rejected Justice Kiteley’s fundamental conclusion that children with autism required ABA/IBI to access public education.
To establish a claim under section 15 of the Charter, plaintiffs must first establish that the law imposes differential treatment on the plaintiff and others. In this case, Justice Kiteley had concluded that the failure of the government to ensure that school-age autistic children over the age of five had access to ABA/IBI therapy (and by extension the failure of school boards to provide such therapy in the classroom) effectively denied those children access to education. In reaching her conclusion, Justice Kiteley had been convinced that ABA/IBI therapy was the only effective therapy for autistic children, and the only appropriate special education program.
The Court of Appeal rejected Justice Kiteley’s conclusion in two ways. First, it found that core elements of ABA/IBI therapy could not be delivered within the public school context. In this respect, the Court of Appeal wrote:
The IEIP Guidelines also contemplate the involvement of parents or caregivers directly in the child’s treatment, yet the Minister has no power to ensure that this would happen if intervention consistent with the IEIP Guidelines was attempted within the public school system. The power to permit volunteers to take on duties rests with the school principal, not the Minister, and then only within the strict confines of what is permitted by the governing collective agreement. Finally, the presumption in the IEIP Guidelines is against integrated placements for the children until they have mastered particular skills. The presumption in the education is the reverse. Regulation 181/98 provides that, in placing each child requiring special education, the IPRC will first consider placement in a regular class."
Second, the Court of Appeal rejected the conclusion that ABA/IBI therapy was the only effective therapy for autistic children and, therefore, the only appropriate special education program. Describing Justice Kiteley’s conclusion that ABA/IBI is the only appropriate special education program for autistic children as a "palpable and overriding error", the Court of Appeal found that there was simply not enough evidence on the efficacy of other available programs and services for her to reach this conclusion. The Court of Appeal found that Justice Kiteley drew an inference against the government in this regard and did so without sufficient evidence. In doing so, she effectively reversed the onus that properly rested on the plaintiffs to establish that they had experienced differential treatment when compared to other special education communities, such as the deaf or the learning disabled.
Given the importance of the issue to the plaintiffs, it would seem likely that a further appeal to the Supreme Court of Canada will be sought from the decision of the Court of Appeal. Given that the decision, in part, turns upon the Ontario government’s obligations under the specific wording of the Ontario Education Act, it is questionable whether the decision contains the element of national importance necessary for the Supreme Court to grant leave. In addition, at least on a policy level, the Court of Appeal’s approach is Education Law 13 consistent with the judicial restraint demonstrated by the Supreme Court of Canada in Auton v. British Columbia, a decision released earlier this year in which the Supreme Court refused to declare the age cut off in British Columbia’s autism treatment program unconstitutional.
That being said, it is entirely possible that the entire issue of the provision of ABA/IBI treatment for school age children and the delivery of such treatment in schools will still be decided in our highest court. In the meantime, and notwithstanding the decision of the Court of Appeal, educators need to continue to recognize and fulfill their duty to educate and accommodate children with autism.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.