In a recent landmark ruling, the Ontario Superior Court of Justice has held that the Government of Ontario breached the equality provisions of the Canadian Charter of Rights and Freedoms when it failed to provide Intensive Behaviour Intervention/Applied Behavioural Analysis (IBI/ABA) services to school aged children with autism.
In 1999, the Ministry of Community and Social Services launched a program to provide IBI services to children ages two to five. The program’s age cut-off was based on the assumption that school aged children would receive similar special education services when they enrolled in the public education system.
Unfortunately, wait lists made it impossible for some preschool aged children to enter the behavioural therapy program before reaching age 5. In addition, the Ministry of Education did not mandatorily require or fund IBI/ABA programs. Parents of 35 children with autism alleged the Ontario Government’s provision of services was discriminatory both on the basis of age and disability.
The Court concluded that the Government’s failure to provide IBI/ABA to children over the age of 6 discriminated on the basis of age because the Government provided these services to pre-school aged children. In addition, the Court determined that the Government’s failure to provide IBI/ABA to school aged children violated the Education Act’s mandate to provide appropriate special education programs to students and constituted discrimination on the basis of disability. As a result, the court awarded damages to account for the costs of both past and future IBI/ABA services.
It is noteworthy that school boards were not parties to this action. Rather, the Court reasoned that the Government was accountable through the Ministry of Education, which is charged with setting legislative, regulatory and policy direction to school boards for the delivery of special education programs. Interestingly, this case concludes that governments are required to provide IBI/ABA to children with autism through the education system, while in the recent Auton case, decided by the Supreme Court of Canada in November 2004, the Court concluded it was not discriminatory for governments to not fund IBI/ABA as a core health care service.
One fundamental difference between the two cases, which can perhaps explain their different outcomes, is that in Auton the Supreme Court of Canada concluded that IBI/ABA was an “emergent” therapy or treatment not required to be covered by the provincial health care scheme, whereas in this case, the Court determined that IBI/ABA was not “emergent” and was required to be provided through special education programs.
The Government of Ontario has announced that it will be appealing this decision.