COURT ORDERS CONTINUED FUNDING OF
AUTISTIC TREATMENT PROGRAM

Sean C. Doyle

Lowrey (Litigation Guardian of) v. Ontario*

Exemption from Legislation - Mandatory Interlocutory Injunction - Threshold for Relief - Irreparable Harm - Balance of Convenience - Canadian Charter of Rights and Freedoms, ss. 7, 15

The Plaintiff was diagnosed with autism 1 shortly before his fourth birthday, and was subsequently enrolled in an early Intensive Behavioral Intervention ("I.B.I.") program 2 partially funded by the Ontario government. Based upon evidence suggesting that pre-school children between the age of two and five benefit most from early I.B.I. treatment, the program contained an age restriction that disqualified children above the age of six from receiving further funding.

After the Plaintiff reached his sixth birthday, his parents assumed sole financial responsibility for the funding of his I.B.I. treatment. In light of their limited financial circumstances, however, it was uncertain whether they could continue to make the necessary payments much longer, even if the family farm and homestead were sold. Moreover, the Plaintiff was entering a critical phase of the program that was designed to integrate him into a "regular" school curriculum, and which was expected to last another twelve to eighteen months. If the Plaintiff failed to complete this phase, it was unlikely that he would maintain the skill sets developed during the previous eighteen months, and much of the benefit of his early I.B.I. treatment would be lost.

The Plaintiff brought a constitutional challenge against the age restriction based primarily upon sections 7 and 15 of the Charter.3 He also sought a mandatory interlocutory injunction requiring the government to maintain the necessary payments for his I.B.I. program until the earlier of the completion of the treatment plan, or such time as his constitutional challenge is determined. The parties were agreed that in order to succeed on the motion, the Plaintiff must establish that:

1. There is a serious legal issue to be determined;

2. He will suffer irreparable harm prior to trial if the interlocutory relief is not granted; and,

3. The balance of convenience, taking into account the public interest, favours a departure from the status quo.

Gans J. commenced his analysis by noting that although injunctive relief from the operation of legislation providing a public benefit is granted only in the rarest of cases, "the Canadian human landscape is dotted with individuals of varying disabilities" and, consequently, "[t]he legal principles of the past, even the recent past, must be interpreted in light of the realities of the day".4

The Court readily concluded that there was a serious issue for trial, based upon the alleged violation of the Plaintiff's equality rights, as well as the fact that a 15-week trial involving 35 plaintiffs was expected to start within a few weeks, wherein the same issues (based upon very similar evidence) would be fully considered. In addition, the motions judge noted, the decision of the British Columbia Court of Appeal in Auton v. British Columbia 5 (involving the successful constitutional challenge to the total absence of an I.B.I. program) was presently before the Supreme Court of Canada on an application for leave.

Since the Plaintiff was seeking a mandatory injunction, however, counsel for the Attorney General submitted that the appropriate threshold for injunctive relief was a strong prima facie case, and not simply that a serious issue exists for trial. Moreover, relying upon the Irwin Toy6 and Gosselin 7 decisions, the Attorney General argued that because the age restriction was established on the basis of sound clinical evidence, the court should not "second guess" the limitation unless it was imposed for an improper or unauthorized purpose.

Unfortunately, the Court did not conclusively determine which threshold the Plaintiff was required to meet. Rather, based upon the precedential value of the Auton decision, as well as the impending litigation concerning access to early I.B.I. treatment, Gans J. concluded (without elaboration) that the cases relied upon by the Attorney General may be distinguishable.8 In addition, he reasoned, those decisions would not necessarily diminish the strength of the Plaintiff's case for the purposes of the motion.

Moreover, even if the standard were a strong prima facie case, Gans J. would have been inclined to relieve the Plaintiff from that burden based upon his parents' efforts to obtain assistance. Well in advance of their son's sixth birthday, they had solicited the support of the local M.P.P., who subsequently wrote on their behalf to the responsible minister. By the time a response had been received, the necessary payments had already ceased and therefore a mandatory (and not a prohibitory) injunction was sought. The Court therefore concluded that the Plaintiff met the first branch of the test for injunctive relief.

Turning next to irreparable harm and balance of convenience, Gans J. noted that if the Plaintiff did not continue to receive I.B.I. therapy, the "window of opportunity" for him to learn and develop would close, "never to be opened again". Moreover, the motions judge held that the sale of the family farm and homestead - including the resulting personal dislocation - could not be compensated in damages if the Plaintiff were successful at trial.

Interestingly, the Attorney General argued that the government would suffer irreparable harm if the injunction were granted, because the age restriction was imposed in furtherance of the ministry's obligation to promote and protect the public interest. Although agreeing "intellectually" with that proposition, Gans J. was not persuaded that the balance of convenience automatically leans toward the state, because citizens may always challenge government legislation that is prima facie designed for the public good. The Attorney General further argued that irreparable harm would befall the public, because children already approved for I.B.I. therapy - as well as those awaiting assessment - would be compelled to wait even longer for treatment. In rejecting this submission, Gans J. noted that even if the Plaintiff continued his I.B.I. treatment on a private basis, his instructor-therapist might not be available for others in the waiting line and, consequently, the harm the government sought to avoid would not be alleviated.

Relying upon the test articulated by the Supreme Court of Canada in RJR-MacDonald,9 Gans J. held that in order to overcome the presumed public benefit associated with the age restriction, the Plaintiff must demonstrate that an exemption from the limitation would itself be in the public interest. In concluding that the Plaintiff met this burden, Gans J. stated at paragraph 21:

… I am satisfied on the evidence that he has benefited from the therapy provided to date and has achieved more than a modicum of success in this regard. While there is no guarantee, I am persuaded that he will continue to benefit from the continuation of the treatment to the point that he should, as it is hoped, be able to cope with the regular and supplemental school program to which he will be exposed next year. The alternative to this course of action is too extreme to contemplate, but will of necessity involve the public purse in an amount well beyond that which is required in the short term.

Gans J. further stated that, contrary to the assertions made by the ministry, he was not persuaded that sufficient special education alternatives were in place and, in any event, a general province-wide listing of available funding and resources was insufficient for the purposes of the motion. The Court also rejected the Attorney General's submission that a suspension of the program would open the "floodgates" to children that previously qualified for I.B.I. therapy. Since any exemption from the age restriction would apply only to the Plaintiff based upon his individual circumstances, Gans J. rejected the notion that the relief would send the ministry down the "slippery slope" towards a suspension of the entire program pending a determination of its constitutionality.

Finally, the motions judge commented upon the recent decision of the Ontario Divisional Court in Clough (Litigation guardian of) v. Ontario,10 wherein the parents of autistic children brought an unsuccessful application for increased I.B.I. funding. Gans J. distinguished Clough on the basis that it concerned an increase in entitlement rather than a denial of funding, and also because the impugned funding decision was to be reviewed a few months after the hearing and, consequently, there was no evidence of irreparable harm. Moreover, the motions judge was not satisfied that Clough involved the same sense of urgency and, in any event, concluded that the continuation of the Plaintiff's therapy for the remainder of his treatment plan would not offend the objectives of the program.

Having concluded that the Plaintiff met the necessary pre-conditions for injunctive relief, Gans J. granted a mandatory interlocutory injunction requiring the ministry to continue funding the Plaintiff's I.B.I. therapy until the constitutionality of the age restriction is determined,11 or the Plaintiff completes his treatment plan (whichever is sooner), or until further order of the Court. The government sought leave to appeal on the basis that, inter alia,12 the decision was inconsistent with Clough, and the motions judge erred in approaching the case as an exemption from legislation because the practical effect of so many parties seeking the same relief would amount to a suspension from the age requirement.13

In dismissing the application for leave, the Divisional Court distinguished Clough on the basis that in that case there was no finding that the applicant would suffer irreparable harm if the relief were refused. The Court also held that Gans J. had applied the same principles that were employed in Clough, and the fact that he reached a different result does not mean that there is a principled difference between the two cases, or that his decision is cast into doubt. Rather, it merely underscores the "importance of the facts and the role of discretion in deciding interlocutory relief cases".14 The Court further noted that while other applicants may indeed seek similar relief, those cases would be determined on their own individual merits. Moreover, the "slippery slope" argument was factual in nature, and the Court held that Gans J. did not commit an error of law in concluding that the granting of the relief would not result in the opening of the floodgates.

While Lowrey is the latest contribution to the jurisprudence concerning entitlement to I.B.I. therapy, it will not be the last. Until the constitutionality of the I.B.I. program's age requirement is determined, litigation guardians may continue to seek funding for autistic children beyond the age of six. It should be remembered, however, that Lowrey was decided in the context of uncontradicted evidence that the local school board did not provide I.B.I. therapy. The result may well be different where a local school board purports to provide a suitable alternate program for autistic children.

1. Autism, or autism spectrum disorder ("A.S.D."), is a neurobehavioural condition which, if left untreated, almost certainly results in a life of "physical, emotional, social and intellectual isolation and eventual institutionalization": Lowrey, at para. 1.
   
2. Recent research suggests that if commenced early enough, I.B.I. treatment can significantly improve the ability of autistic children to learn and develop, and thereby increase the likelihood that they may keep pace with their non-autistic peers: Lowrey, at para. 2.
   
3. The Plaintiff also raised a parens patria argument based upon the United Nations Convention on the Rights of the Child. This submission was not, however, addressed by the Court.
   
4. Lowrey, at para. 8.
   
5. Auton (Guardian ad litem of) v. British Columbia (Attorney General)(2002), 220 D.L.R. (4th) 411 (B.C.C.A.) application for leave granted, [2002] S.C.C.A. No. 510.
   
6. Irwin Toy v. Quebec, [1989] 1 S.C.R. 927.
   
7. Gosselin v. Quebec (2002), 221 D.L.R. (4th) 257 (S.C.C.).
   
8. Gans J. did not, however, distinguish those cases.
   
9. RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311 (hereinafter, "RJR-MacDonald").
   
10. [2003] O.J. No. 1074 (Div. Ct.) (hereinafter, "Clough").
    
11. Gans J. tied the injunction to the pending Wynberg and Deskin cases as both counsel agreed that the outcome of those cases should govern and, in any event, they would be decided well before the Lowrey matter could reach trial.
    
12. The Attorney General also argued that Gans J. erred by requiring the government to establish that the local school board did not offer a suitable program. The Divisional Court dismissed this argument, noting that the motions judge was entitled to rely upon uncontradicted affidavit evidence to the effect that the local board did not provide I.B.I. treatment.
    
13. The distinction between a suspension and exemption is important, because the standard for intervention is higher where an applicant seeks a suspension from legislation: see, RJR-MacDonald at pp. 346-347.
    
14. Lowrey, note 1, at para. 13 (Div. Ct.) per Lane J.
    
    
    

back to 'Publications'

or

Public Liability Law
Municipal Law
Environmental Law
Labour and Employment Law