12-19-2004, 11:44 AM
Supreme Court decision denying therapy in B.C. not relevant, parents argue
A massive trial pitting parents of autistic children against the Ontario government that had wrapped up three months ago was back before a judge yesterday, with lawyers reopening the case after a recent Supreme Court of Canada ruling suddenly altered the legal landscape.
After 130 days of arguments, lawyers for 29 families with autistic children insisted yesterday that last month's Supreme Court ruling that British Columbia could refuse to finance the costly therapy for children with autism has no bearing on the case in Ontario, where an $80-million program already serves autistic children under 6.
The families, whose sons and daughters are all older than 6, sued the Ontario government for failing to provide funds for the intensive one-on-one therapy called IBI once children reach school age. They allege that the policy amounts to age discrimination, and that the refusal of Ontario schools to allow therapists in the classroom violates the children's constitutional right to a public education by depriving them of the only treatment that research shows can help socially impaired autistic children function more normally.
Mary Eberts, a lawyer for the families, told the Superior Court of Justice that major differences between the B.C. and Ontario cases undermine the impact of the Supreme Court decision, known as Auton.
Unlike in Ontario, B.C. had no government program for autistic children.
And four years ago when the B.C. lawsuit was filed, the court considered IBI to be an "emergent" technique, not rated as a "core" medical service provided by a doctor or hospital covered under federal and provincial health legislation. On this basis, it ruled that the province bore no obligation to start providing it.
But the Ontario families say they are waging their battle as an education issue: Ms. Eberts casts it as a failure of a school system with a multimillion-dollar special-needs budget and a two-decade history of integrating disabled children into the classroom to provide the one therapy needed to educate autistic children.
She said the Ontario lawsuit has more in common with a Supreme Court case called Eldridge, in which the court found that deaf and hearing-impaired patients in B.C. were discriminated against when denied sign-language interpreters in hospitals.
"There is an exact parallel here," she told Madam Justice Frances Kiteley.
"The disabled children here that are supposed to be able to access free public education in Ontario are not able to access it because it is not being delivered in a way that they can get it.
"These children might be in the classroom, and the teacher might be standing there, but they're not getting what's envisioned by legislation."
The Ontario government disagrees.
Robert Charney, the lawyer for the Attorney-General's office, told the court that the Auton ruling undermines most of the families' discrimination claims.
As in B.C., he said, IBI is not a core service covered by health laws. And furthermore, as an intensive behaviour therapy delivered one-on-one by therapists under the supervision of clinical psychologists, neither is it covered under the Education Act.
In one of the few lively exchanges with the judge, Mr. Charney advised that IBI should still be regarded as an "emergent" therapy for preschoolers, and even more so for children over 6 where less research on the technique has been conducted.
He said the same questions are left unanswered by research as were being asked four years ago.
To this, Judge Kiteley asked how the Ontario government could invest tens of millions of dollars to fund a therapy it concedes is emergent.
Referring to a recent report by Ontario's acting provincial auditor that exposed lax oversight and waste in the autism funding program, she also wondered if the Ontario government could have answered some of those burning questions if it had monitored and evaluated its own program.
http://www.theglobeandmail.com/servlet/A.../TPHealth/
A massive trial pitting parents of autistic children against the Ontario government that had wrapped up three months ago was back before a judge yesterday, with lawyers reopening the case after a recent Supreme Court of Canada ruling suddenly altered the legal landscape.
After 130 days of arguments, lawyers for 29 families with autistic children insisted yesterday that last month's Supreme Court ruling that British Columbia could refuse to finance the costly therapy for children with autism has no bearing on the case in Ontario, where an $80-million program already serves autistic children under 6.
The families, whose sons and daughters are all older than 6, sued the Ontario government for failing to provide funds for the intensive one-on-one therapy called IBI once children reach school age. They allege that the policy amounts to age discrimination, and that the refusal of Ontario schools to allow therapists in the classroom violates the children's constitutional right to a public education by depriving them of the only treatment that research shows can help socially impaired autistic children function more normally.
Mary Eberts, a lawyer for the families, told the Superior Court of Justice that major differences between the B.C. and Ontario cases undermine the impact of the Supreme Court decision, known as Auton.
Unlike in Ontario, B.C. had no government program for autistic children.
And four years ago when the B.C. lawsuit was filed, the court considered IBI to be an "emergent" technique, not rated as a "core" medical service provided by a doctor or hospital covered under federal and provincial health legislation. On this basis, it ruled that the province bore no obligation to start providing it.
But the Ontario families say they are waging their battle as an education issue: Ms. Eberts casts it as a failure of a school system with a multimillion-dollar special-needs budget and a two-decade history of integrating disabled children into the classroom to provide the one therapy needed to educate autistic children.
She said the Ontario lawsuit has more in common with a Supreme Court case called Eldridge, in which the court found that deaf and hearing-impaired patients in B.C. were discriminated against when denied sign-language interpreters in hospitals.
"There is an exact parallel here," she told Madam Justice Frances Kiteley.
"The disabled children here that are supposed to be able to access free public education in Ontario are not able to access it because it is not being delivered in a way that they can get it.
"These children might be in the classroom, and the teacher might be standing there, but they're not getting what's envisioned by legislation."
The Ontario government disagrees.
Robert Charney, the lawyer for the Attorney-General's office, told the court that the Auton ruling undermines most of the families' discrimination claims.
As in B.C., he said, IBI is not a core service covered by health laws. And furthermore, as an intensive behaviour therapy delivered one-on-one by therapists under the supervision of clinical psychologists, neither is it covered under the Education Act.
In one of the few lively exchanges with the judge, Mr. Charney advised that IBI should still be regarded as an "emergent" therapy for preschoolers, and even more so for children over 6 where less research on the technique has been conducted.
He said the same questions are left unanswered by research as were being asked four years ago.
To this, Judge Kiteley asked how the Ontario government could invest tens of millions of dollars to fund a therapy it concedes is emergent.
Referring to a recent report by Ontario's acting provincial auditor that exposed lax oversight and waste in the autism funding program, she also wondered if the Ontario government could have answered some of those burning questions if it had monitored and evaluated its own program.
http://www.theglobeandmail.com/servlet/A.../TPHealth/