Thousands of children with autism, 5 years or age or over, who had been waitlisted for private intensive behavioural intervention (IBI) services funded by the Ministry of Children and Youth Services (MCYS) for years have been peremptorily cut off. I don’t think “crisis” is an overstatement, when describing the circumstances in which these children and their families find themselves.

A Clinical Expert Committee, in a January 27,2016 Report advised the Ministry that IBI is optimally provided to children aged 2-4 years, and expressed concern that, at current levels of funding, pupils were on wait lists past this optimal period and were commencing school without the benefit of IBI. Rather than increase funding to meet the needs of all the children waiting for IBI the government simply cut-off those aged 5 years or older. The Committee advised that there be an applied behavioural analysis(ABA)-based continuum of service available through the school system after receipt of initial IBI. In order to make the point that the continuum ought to be seamless it spoke of shelving the word “discharge” and instead refer to the changes in intensity of service as “transitions”. It did not provide solutions for those affected by the draconian response of the government. It did not address the crisis into which the kids have now been pushed. “Discharge” is too kind a word to describe what has happened to them.

Rather than have ABA/IBI delivered through the education system, MCYS got involved so that IBI services could be subject to narrow eligibility criteria and wait lists. The education system does engage with pre-school age children who have other disabilities such as deafness. There was no reason this service could not have been delivered through the education system from beginning to end.

In jurisdictions where the Committee’s proposal for a “continuum” is actually being implemented, ABA/IBI is provided through the education system: see Australia, United States and Alberta. In these jurisdictions there is apparently not a hard distinction made between IBI and ABA, however the MCYS has insisted upon maintaining this distinction. Outside of Ontario, IBI is regarded as an intensive form of ABA and part of the “continuum” envisaged by the Committee.

There has been a history of autism litigation in Ontario; a sure sign that all is not as it should be. In a case called Wynberg (link) the Ontario Court of Appeal said IBI is therapy not education. This distinction is repeated in a series of Special Education Tribunal decisions. In a case called Sagharian (link) the Superior Court ruled claims for IBI could not be pursued by means of a class action. A number of human rights applications were resolved informally, following a decision in case called Arzem (link) that the age 18 and up limitation in the Human Rights Code violated the equality provision of the Charter of Rights and Freedoms. If this decision were repeated, as it would need to be because Charter decisions of the HRTO must be decided on a case by case basis, the age cut-off imposed by MCYS would be subject to challenge.

In 2012 the SCC handed down a game-changing decision called Moore (link). Without making express reference to autism, the Court rejected the legal reasoning in Wynberg. It’s decision was premised on holding educators responsible for meeting their pupils’ individualized needs for accommodation, and if they were unable to do so to provide accommodation including paying for private school tuition. Bakerlaw has been involved in 2 recent HRTO education decisions concerning accommodation: RB v. Patricia Keewatin Board (link) and LB. v. TDSB (link) that follow Moore. We are now settling many education cases with remedies up to and including funding for private school tuition.

I believe the law will turn out to be that school age pupils must be accommodated by school boards based on their individual needs for ABA/IBI. As has been established in most other comparable jurisdictions, students who require ABA/IBI would receive it from their boards of education as a part of their education. Until ABA/IBI is available from school boards, which are 100% provincially funded, they or the Province should be required to continue to pay for the private of not for profit provision of these services. If this does not happen, the estimated 2400 children will have had the IBI they require cut-off or denied before it began with no possibility of school boards meeting their needs. This number does not begin to cover the number of kids who require ABA/IBI of varying levels of intensity commensurate with their needs, who are currently in school and not being accommodated in this manner.

Bakerlaw has filed a case for a child who requires the accommodation of ABA/IBI in school. He was considered too high functioning for MCYS IBI funding, so the parents have purchased it privately and want compensation for this, as well as seeking an order the Board develop the capacity to deliver ABA/IBI commensurate with their son’s needs while attending school in the future. Schools are delivering ABA/IBI as part of their regular educational programming in numerous other jurisdictions. There is no reason why that should not be happening across Ontario. This case should set a precedent that will benefit kids who are currently in school and not being adequately accommodated. The parents of this child are seeking “crowd sourcing”, and charitable donations to support this effort. More information regarding the crowd source funding site will be available soon.

Soon after this application was filed, MCYS made its announcement. For the children who had a right to expect their IBI to be funded by the Ministry, pursuing only a school board for violating their human rights would be inadequate. They should also be seeking a remedy from the provincial government. The government’s imposition of the age 5 cut-off, in an environment where it knows school boards are both incapable and unwilling to provide ABA/IBI to these children, represents discrimination against them on the basis of their age as well as their disability.

Bakerlaw is prepared to take on a companion case in conjunction with its clients’ pending case, for a child who has just been cut off by MCYS. Having been approached already by more than 70 families, we are currently just beginning to respond to these inquiries and provide them with assistance. Further  information will be sent to the families that have contacted bakerlaw and requested updates.

Because a class action is not possible, each family affected would be well advised to initiate a human rights application to preserve their child’s rights for IBI denied as well as their right to be accommodated with ABA/IBI in the future. Bakerlaw is prepared to assist families to files these applications if the Human Rights Legal Support Centre is unable to assist. Each application should name the provincial government as well as the local school board. A Charter challenge to the age criteria in the Human Rights Code must be specified. The actions of the Ministry and school boards must be documented and preserved.

Ideally the Ministry would confirm the school board obligations to meet individual needs for ABA/IBI and provide them with the means of meeting the need, either internally or through purchase of service on an interim basis. At this point this appears unlikely, however parents are encouraged to assert and preserve their childrens’ rights.

In the event the government and school boards do not resolve these issues informally based on the commonalities between the cases litigation must be pursued to a resolution. It is anticipated that the HRTO would fulfill its mandate to enhance access to justice by allowing two “lead” cases to be joined or heard together, while the other cases based on comparable legal arguments are adjourned pending the precedent that the lead cases would set. Parents would in this way be able to keep their legal fees to a minimum, and utilize scarce resources to purchase needed services for their children, for which they would be seeking reimbursement. Once the lead cases have been resolved, experience suggests that the other cases, based on comparable principles, could be settled through cost effective mediation or direct negotiation.

**Those interested in receiving assistance with their child’s application, or who would be willing to contribute towards covering the legal fees of the families who have volunteered to be the “lead cases” may contact Sydney Baker at sbaker@bakerlaw.ca.

We know that these recent changes have impacted many families so please share this post widely with your networks so that this information can be shared with as many families as possible.

If you have contacted bakerlaw and requested an update and further information, you should receive a response within a day or two.