The Ontario Government did not contravene the Charter of Rights and Freedoms by failing to provide an intensive program for school-aged children with autism similar to the one it provides to pre-schoolers, the Ontario Court of Appeal has held.
The decision arose from a claim by the parents and grandparents of autistic children that the government breached the equality rights provisions of the Charter by offering the Intensive Education Intervention Program (“IEIP”) to children with autism aged between two and five, but not to school-aged children with autism. The claimants alleged the IEIP discriminates against school-aged children on the basis of age and disability. After a lengthy trial, in 2004 the Ontario Superior Court held that the exclusion of school age children from the IEIP was discriminatory on both grounds. The court awarded damages to the claimants to cover past and future costs of intensive behavioural intervention. The Ontario Government appealed that ruling.
The Court of Appeal unanimously allowed the appeal. The IEIP, it found, is an ameliorative program meant to focus limited resources on children aged two to five. Excluding school-aged children from a program targeted and designed to assist the younger disadvantaged group did not discriminate against the older children on the basis of age, as it did not deny them their human dignity or devalue their worth as members of Canadian society.
The court further held that, when compared to other “exceptional pupils” (students with special needs), it had not been established that the school-aged children with autism had been subjected to differential treatment on the basis of their disability. Further, it had not been demonstrated that the benefit claimed, namely the provision of such an intensive program, could reasonably be delivered within the public school system as a special education program or service.
The court also noted that the proper allocation of limited resources is an important government objective requiring difficult policy choices. Government, it said, is in a better position than the courts to make such choices.
It is unknown at this time whether the claimants intend to appeal this decision to the Supreme Court of Canada.