Autism Court Ruling
Press Release dd April 4, 2005
NDP MPP Shelley Martel says it's time Dalton McGuinty stopped denying autistic children treatment they need - a practice courts say violates children's constitutional rights and human dignity.
"Denying autistic children treatment may suit Dalton McGuinty, but it doesn't suit the Charter of Rights and Freedoms," the NDP Critic for Health and Long-Term Care said.
"It's time the premier stopped violating autistic children's constitutional rights and human dignity and started providing treatment for all who need it."
Friday, the Ontario Superior Court ruled the McGuinty government is discriminating against children with autism. Madam Justice Frances Kiteley found the government's practice of cutting off IBI treatment for children over age 6 violates Charter of Rights protections against discrimination based on age and disability.
"I find that the age cutoff reflects and reinforces the stereotype that children with autism over age 6 are virtually unredeemable," Judge Kiteley said. "To deny the plaintiff children the opportunity to have [treatment] after the age of 5 is to stereotype them, to prejudice them and to create a disadvantage for them."
Judge Kiteley continued: "The absence of ABA/IBI means that children with autism are excluded from the opportunity to access learning with the consequential deprivation of skills, the likelihood of isolation from society and the loss of the ability to exercise the rights and freedoms to which all Canadians are entitled."
Judge Kiteley called the case histories of families who launched the court case "heartbreaking." She said the McGuinty government's age-six autism cut-off "undermines the integrity of the government."
Martel called on the premier to reconsider his decision to appeal the decision, keep his election promise to stop the "unfair and discriminatory" cut-off and "[extend] autism treatment beyond the age of six."
"Dalton McGuinty wasted taxpayer money on a court battle and made autistic children and their families suffer so he could break a promise," Martel said. "The premier should call off his lawyers and extend IBI treatment to all children who need it - like he promised."
The following Questions were raised
by Howard Hampton, MPP and NDP Leader,
in the Ontario Legislature on April 4, 2005
Mr. Howard Hampton
(Kenora-Rainy River): My question is for the Premier. During the election,
you promised to extend IBI autism treatment to children over age six.
In fact, I can quote you. You said, "I ... believe that the lack
of government-funded IBI treatment for autistic children over six is unfair
and discriminatory." And you said, "The Ontario Liberals support
extending autism treatment beyond the age of six." But after the
election, you broke your promise and denied autism treatment to children
over six. Now the Superior Court of Ontario has ruled that your denial
of autism treatment violates the Charter of Rights and Freedoms.
The Speaker (Hon.
Alvin Curling): We welcome guests to Parliament, but we ask you not
to participate by clapping or applauding in any way.
Hon. Dalton McGuinty (Premier, Minister of Intergovernmental Affairs): To the Attorney General, Speaker.
Hon. Michael Bryant
(Attorney General, minister responsible for native affairs, minister responsible
for democratic renewal): I think it's fair to say that every single
member of provincial Parliament in this House has enormous concern and
sympathy for the challenges facing autistic children and their families.
We believe the government of the day needs to have the flexibility to
provide the kind of programs that will permit improvement in terms of
the assistance to autistic children. We feel that it is for the government
in the Legislature to do that, and therefore we will continue to provide
those improvements, provide that assistance. We will do that through the
Legislature, we will do that through government, and we will be appealing
the decision on that basis.
Apparently, the Premier finds it is easier to make promises than to keep
Hon. Mr. Bryant:
This government feels that we are taking the approach that is in the best
interests of all autistic children across the province of Ontario. The
Supreme Court of Canada held just last November that governments need
the flexibility to design programs that are in the best interests of autistic
children and that the courts are not in a position to do that.
The McGuinty government can make up all kinds of excuses now. Madam Justice
Kiteley looked at the situation here in Ontario, she looked at the situation
under your government and she is very critical of everything you've tried
to trot out as an excuse today.
I say again to the Premier, who made the promise, tell these children now why you intend to defy this court, defy this well-considered judgment by this judge and defy your own promise to these children.
Hon. Mr. Bryant: Madam Justice Kiteley also held that the preschool program for autistic children in Ontario today is exemplary. Over a thousand children were on a waiting list for assessment a year ago. We've reduced that waiting list for assessment by more than 70%. We've increased the number of children in Ontario who are receiving IBI treatment by 25%. We have programs that we are putting forward in schools that had never existed before in Ontario. We feel that that is in the best interests of all autistic children in Ontario and their families. We feel that it is a dramatic improvement over the past government's performance, and we will continue in the courts to defend our ability to deliver those kinds of programs so that we can provide more assistance to autistic children in the province.
The Speaker: New question.
Mr. Hampton: To the Premier: The Attorney General is trying to deflect this whole issue, trying to argue that it's something about five-year-olds. No, Premier, this is about your promise. You said that ending IBI autism treatment at age six was discrimination. You said it was wrong; you said it was unfair. This is what Madam Justice Kitely says: "Without IBI treatment, the plaintive children are deprived of the skills they need for full membership in the human community. That child's isolation from society and lack of skills mean that she or he cannot participate in society and cannot exercise the rights and freedoms to which all Canadians are entitled." You see, Madam Justice Kitely agrees with you: It's discrimination, it's not justified, it's wrong. All these children want, and all Madam Justice Kitely wants, is for you to do the right thing: Live up to your promise. Live up to what the scientific evidence shows. Refuse the advice of your Attorney General and don't appeal this. Will you do that, Premier?
Hon. Mr. McGuinty: To the Attorney General, Speaker.
Hon. Michael Bryant:
I'm surprised to hear that from a former Attorney General that he
would ask for the politicization of a decision on a particular appeal,
that he would ask that we in fact should have politics that determine
the position we take before the courts. Maybe that's what you did when
you were Attorney General, but that's not what we do in this government.
We feel that we need to continue to do what --
Mr. Jim Flaherty (Whitby-Ajax): It's the government's decision, Mr. Speaker. He's misleading --
The Speaker: Order. I ask the member for Whitby-Ajax to withdraw that comment.
Mr. Flaherty: I withdraw it.
Hon. Michael Bryant: The question is whether or not -- as the Supreme Court of Canada held last November -- legislatures and government are in the best position to design programs that are in the interests of autistic children, or whether the courts, based upon the evidence of particular litigants before them, are in fact in the best position to do that. The court said that it's up to the government. The government is putting forward substantial improvements for preschool and school-aged autistic children, and that is what we committed to do. We're providing those improvements. I will continue before the courts to defend the ability of this Legislature to conduct that kind of business that, again, we feel is in the best interests of autistic children in Ontario.
Mr. Hampton: This is what Madam Justice Kitely had to say about some of these programs that the McGuinty government now wants to laud. Madam Justice Kitely said, "The Minister [of Education's] duty is to ensure that appropriate special education programs and special education services are provided ... without payment of fees." She ruled that the Minister of Education violated the Education Act, and said, "The minister failed" -- he failed -- "to respond to the needs of children with autism." He failed "to develop policy and give direction to the school boards to ensure that ... IBI services were provided to children with autism in schools." He failed by creating "systemic barriers to children with autism accessing learning." Just about everything you've tried to pronounce on here today Madam Justice Kitely considered here in Ontario, and she said you're violating the Charter of Rights and you're denying these children the services they should receive in terms of equality of access.
When, Premier, are you going to live up to your promise and respect the Charter of Rights?
Hon. Mr. Bryant:
No member of this House has a monopoly on compassion and sympathy
for this particular issue, I say to the member. We in this government
are moving forward with substantial improvements and programs for the
treatment of autistic children.
Mr. Hampton: I want to speak about integrity. I want to speak about the integrity of someone who would write to the parent of an autistic child and say, "I also believe that the lack of government-funded IBI treatment for autistic children over six is unfair and discriminatory. The Ontario Liberals support extending autism treatment beyond the age of six." I want to ask about the integrity of someone who would say that during an election campaign to the mother of an autistic child and then, right after the election campaign, deny that you said it, deny the service, and now, when the Superior Court of Justice in Ontario rules that are you discriminating against these children, try to run and hide from that. I want to ask about the integrity of someone who does that.
Hon. Mr. Bryant:
We have increased treatment by 25%. We have lowered waiting lists by more
than 70%. We have provided new programs for all school-aged autistic children.
The purpose of that was to provide improvements. Our commitment was better
public services, better services for autistic children, and that's what
we are trying to do in this government.
The Speaker (Hon.
Alvin Curling): Question?
Why are you not prepared to keep your promise to Leo and Sheri Walsh and
their boy Cameron?
Hon. Dalton McGuinty
(Premier, Minister of Intergovernmental Affairs): To the Minister
of Children and Youth Services.
Hon. Marie Bountrogianni
(Minister of Children and Youth Services, Minister of Citizenship and
We have worked very tirelessly on reducing the wait list for children
so that they don't age out, so that they do get the IBI treatment they
need under the age of six, and that has resulted in a 25% increased number
of children who are receiving IBI treatment.
As well, we worked
very hard on the number of assessments for children awaiting IBI treatment.
There is a 72% reduction in the wait list for assessments. We're working
as fast as we can. We understand this is very difficult for the families,
but we are determined to help these families.
Mr. Michael Prue
(Beaches-East York): My question is again to the minister.
Madam Minister, you
will remember that about two months ago I stood in this House and talked
about Michelle Quance and her wonderful four-and-a-half-year-old daughter
On this historic day,
the day when the Ontario Superior Court has upheld and fortified the argument
we have made so many times on this side of the House, that the lack of
IBI treatment for Ontario's autistic children is immoral, you also know
it is unconstitutional and it is illegal.
Madam Minister, you
will remember that Tennyson was diagnosed with autism last June and, since
that time, her family has been forced to raise thousands of dollars from
their neighbours and to mortgage their house. You will know that the family
is spending $6,600 a month trying to get that very same treatment that
your government promised. I recently found out that she's gone all the
way from 10th on the list to second -- one space a month. Will you please
tell this family, and all the other Ontario families with autistic children,
that you can and will set up their IBI treatments today, not next year,
in line with what the court has said?
Hon. Mrs. Bountrogianni: We are working as quickly as possible. We've hired over a hundred new therapists in less than eight months to deal with this crisis.
I agree with the member
opposite that it is difficult for the parent of that four-year-old to
wait. But as I know the honourable member understands, he would not want
any child to bump any other child on a wait list. That's not the solution.
The solution is to build capacity so that we eliminate the wait list.
That's what we're determined to do, and we're well on track in meeting
following Questions were raised
Ms. Shelley Martel
(Nickel Belt): I have a question to the Premier. I want you to meet
some of the parents and children who are part of the Wynberg and Deskin
lawsuit. They're in the gallery today. They are Robyn and Simon Wynberg,
Tammy Starr and Arthur Fleischmann, Perry Taylor, Richard Marcovitz and
Sheila Laredo, Suzanne Wetzel, Brenda Lumsden-Johanson, Maria Velasquez,
Susan Elsworthy, Natoma Houston and Benjamin, and Cindy, Jordan and Anthony
Faria. Eleven-year-old Anthony even testified in court about how IBI had
Hon. Dalton McGuinty (Premier, Minister of Intergovernmental Affairs): The Attorney General.
Hon. Michael Bryant (Attorney General, minister responsible for native affairs, minister responsible for democratic renewal): I'm not sure that this was a question, but obviously the government will continue to comply with the order that has been in place that will see the 30 families that are the subject of this particular action continue to receive the treatment pursuant to the order. That will continue. If that was the member's question, then of course we will be complying with that order.
Ms. Martel: They
were paying for the treatment long before Justice Kiteley finally had
to rule your government in contempt and force payment for treatment. That
only happened in the last number of months, and you know it, Attorney
Hon. Mr. Bryant:
There are, of course, a number of matters that are before the courts.
It goes without saying that we will continue to take the position that
the Supreme Court of Canada has articulated, which is that governments
and Legislatures should be in a position to fight for autistic children,
not a judge with a particular case. I would anticipate that if the result
had been otherwise, the parties in this matter would have also appealed
on the other side of this matter.
Ms. Martel: It's shameful. Your position is absolutely --
The Speaker (Hon. Alvin Curling): Order. Could I ask the member from Nickel Belt to come to order, please.
Ms. Martel: It is. It's unconscionable that you're going to drag these parents through the courts one more time.
The Speaker: I'm going to ask the member from Nickel Belt to come to order.
No, Speaker, I'm sorry. Shame on this whole government. They made promises
to win the election that were good enough to get their votes, and now,
after the election, what do they do? Discrimination, one more time. How
much taxpayers' money are you going to spend? What's wrong with you people?
Look at yourselves in the mirror. Look at them.