Auton et al. v. British Columbia (Minister of Health) et al., (2004) 327 N.R. 1 (SCC)

• Judge: McLachlin, C.J.C., Major, Bastarache, Binnie, LeBel, Deschamps and Fish, JJ.
• Court: Supreme Court (Canada)
• Case Date: November 19, 2004
• Jurisdiction: Canada (Federal)
• Citations: (2004), 327 N.R. 1 (SCC);2004 SCC 78

Auton v. B.C. (2004), 327 N.R. 1 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2004] N.R. TBEd. NO.003

Attorney General of British Columbia and Medical Services Commission of British Columbia (appellants/respondents on cross-appeal) v. Connor Auton, an Infant, by his Guardian ad litem, Michelle Auton, and the said Michelle Auton in her personal capacity, Michelle Tamir, an Infant, by her Guardian ad litem, Sabrina Freeman, and the said Sabrina Freeman in her personal capacity, Jordan Lefaivre, an Infant, by his Guardian ad litem, Leighton Lefaivre, and the said Leighton Lefaivre in his personal capacity, Russell Gordon Pearce, an Infant, by his Guardian ad litem, Janet Gordon Pearce, and the said Janet Gordon Pearce in her personal capacity (respondents/appellants on cross-appeal) and Attorney General of Canada, Attorney General of Ontario, Attorney General of Quebec, Attorney General of Nova Scotia, Attorney General of New Brunswick, Attorney General of Prince Edward Island, Attorney General of Alberta, Attorney General of Newfoundland and Labrador, Canadian Association for Community Living and Council of Canadians with Disabilities, Women's Legal Education and Action Fund and Disabled Women's Network Canada, Autism Society Canada, Michelle Dawson, Families for Effective Autism Treatment of Alberta Foundation, Friends of Children with Autism, and Families for Early Autism Treatment of Ontario (intervenors)

(29508; 2004 SCC 78; 2004 CSC 78)

Indexed As: Auton et al. v. British Columbia (Minister of Health) et al.

Supreme Court of Canada

McLachlin, C.J.C., Major, Bastarache, Binnie, LeBel, Deschamps and Fish, JJ.

November 19, 2004.

Summary:

Four autistic children and a parent of each (plaintiffs) brought an action against the defendant Ministers to require them to fund certain treatment for autistic children. The plaintiffs claimed that, inter alia, the failure to fund Applied Behavioural Analysis (ABA) or Intensive Behavioural Intervention (IBI) therapy (particularly "Lovaas" therapy), which was not a benefit under s. 1 of the Medicare Protection Act, violated s. 15(1) of the Charter of Rights and Freedoms. The plaintiffs applied to have the action certified as a class action under the Class Proceedings Act and sought to be designated as represen­tative plaintiffs. The defendants opposed certification, submitting that the plaintiffs' claims should be disposed of summarily as if their application was for judicial review under s. 13 of the Judicial Review Procedure Act. The defendants claimed that the action involved a review of the exercise of legis­lated powers by statutory authorities, which procedures must be brought by way of peti­tion under the Judicial Review Procedure Act.

The British Columbia Supreme Court, in a judg­ment reported at (1999), 7 B.C.T.C. 258, held that the plaintiffs' claims, which sought to compel the Ministers to comply with their statutory duties, were claims in the nature of mandamus and must be commenced by way of judicial review under the Judicial Review Proce­dure Act. The claims respecting a dec­la­ration of a denial of equality rights under s. 15 of the Charter should be dealt with in the same proceedings. In any event, certifica­tion of a class proceeding was not available where it was not the preferable procedure for the efficient and economic resolution of the common issues. The court ordered that the is­sues be determined sum­marily under the Judi­cial Review Procedure Act. The plain­tiffs (petitioners) filed an amended statement of claim, seeking funding for the ABA/IBI therapy, particularly the Lovaas therapy. The petitioners again claimed that the denial of funding violated ss. 7 and 15 of the Charter. The petitioners also sought an order of man­damus to fund both past and future treat­ment, damages and, alternatively, an order under s. 24(1) of the Charter for in­demni­fication of the cost of past and future treat­ment.

The British Columbia Supreme Court, in a judgment reported at [2000] B.C.T.C. 536, held that the petitioners established that their s. 15 Charter rights were infringed. The prov­ince failed to take into account and ac­commodate the infant petitioners' already dis­advantaged position, resulting in differen­tial treatment. That treatment, which was based on the enumerated ground of mental dis­ability, was discriminatory. Here, the only accommodation possible was funding for ef­fective treatment. The court rejected the province's argument that the violation of s. 15(1) could be justified under s. 1 of the Charter. The court found it unnecessary to deal with the s. 7 argument. The court stated that the matter of a remedy would be ad­dressed at a subsequent hearing. The court noted, however, that the court had no juris­diction to specifically order that the province pay for the Lovaas therapy.

In a subsequent judgment reported at [2001] B.C.T.C. 220, the British Columbia Supreme Court declared that the failure to fund ABA/IBI therapy violated s. 15 of the Charter, directed that the province fund ABA/IBI therapy for autistic children and awarded each adult petitioner a "symbolic award" of $20,000 damages for Charter breach. The trial judge declined to order funding for Lovaas therapy specifically, as it was up to the province to determine the na­ture and extent of the ABA/IBI therapy it would fund. The province appealed the declaration and the remedial order. The petitioners cross-appealed the remedy.

The British Columbia Court of Appeal, Lambert, J.A., dissenting in part, in a judg­ment reported at (2002), 173 B.C.A.C. 114; 283 W.A.C. 114, dismissed the appeal. The denial of ABA/IBI therapy violated s. 15 of the Charter and was not a reasonable limit prescribed by law under s. 1. The court al­lowed the cross-appeal to the limited extent of adding funding for ABA/IBI treatment pur­suant to medical opinion. The province appealed.

The Supreme Court of Canada allowed the appeal. The province's failure to fund the ABA/IBI therapy under the province's health plan under the Canada Health Act did not con­stitute an unequal and discriminatory de­nial of benefits under that plan contrary to s. 15(1) of the Charter.

Civil Rights - Topic 206

Life - Rights of children - Handicapped children - Right to treatment - Autistic children and their parents (petitioners) submitted that the province's failure to fund ABA/IBI therapy (particularly Lovaas therapy) for young autistic children under the Canada Health Act violated their right to life, liberty and security of the person contrary to s. 7 of the Charter - The Supreme Court of Canada stated that s. 7 was raised only fleetingly and the petition­ers did not clearly identify the principle of fundamental justice which they alleged to have been breached by the denial of fund­ing - Nor did they submit that the denial of funding or the statutory scheme violated the prohibition against arbitrariness or requirements for procedural safeguards - The court stated that "the limited sub­missions before us do not permit us to conclude that the government's conduct in the case at bar infringed the petitioners' s. 7 rights" - See paragraphs 64 to 67.

Civil Rights - Topic 938

Discrimination - Government programs - Health and social services - [See Civil Rights - Topic 5511 ].

Civil Rights - Topic 960.1

Discrimination - Mental disability - Gen­eral - [See Civil Rights - Topic 5511 ].

Civil Rights - Topic 1400

Security of the person - Health care (incl. mental health) - Denial of (incl. funding for) - [See Civil Rights - Topic 5511 ].

Civil Rights - Topic 5511

Equality and protection of the law - Gen­eral principles and definitions - Equal benefit of the law - The Supreme Court of Canada held that the province's failure to fund ABA/IBI therapy (particularly Lovaas therapy) for young autistic children under the Canada Health Act did not violate s. 15(1) of the Charter, which applied only respecting benefits provided by law - The legislative scheme did not provide funding for all medically required treatment - Com­plete funding was provided only for "core" services provided by medical practi­tioners, as required by the Canada Health Act - ABA/IBI therapy was a "non-core" service, for which funding was at a pro­vince's dis­cretion - Providers of ABA/IBI therapy were not named "health care prac­titioners" whose services could be funded - There was no discrimination in not having access to a benefit not conferred by law - A legislative choice not to accord a par­ticular benefit absent demonstration of discrimina­tory purpose, policy or effect, did not give rise to a s. 15(1) review - Although it was unnecessary to decide the issue, the finding would be the same even if the ABA/IBI ther­apy was a benefit provided by law - The appropriate comparator group would be non-disabled persons suffering a disabil­ity other than a mental disability seeking or receiving funding for a non-core therapy important for his or her present and future health, which was emergent and only re­cent­ly became recognized as medically re­quired - Absent evidence suggesting that the pro­vince's approach to ABA/IBI ther­apy was different than its approach to other com­parable, novel therapies for the comparator group, there could be no dis­crimination, because there was no differen­tial treatment to support a s. 15(1) Charter breach - See paragraphs 19 to 62.

Civil Rights - Topic 5655

Equality and protection of the law - Par­ticular cases - Medical treatment of men­tally disabled persons - [See Civil Rights -Topic 5511 ].

Civil Rights - Topic 5655.1

Equality and protection of the law - Par­ticular cases - Provincial health benefits - [See Civil Rights - Topic 5511 ].

Civil Rights - Topic 8314

Canadian Charter of Rights and Freedoms - General - Application - Social programs -Health care and treatment - [See Civil Rights - Topic 5511 ].

Civil Rights - Topic 8344

Canadian Charter of Rights and Freedoms - Application - Exceptions - Principles of fundamental justice (Charter, s. 7) - [See Civil Rights - Topic 206 ].

Civil Rights - Topic 8547

Canadian Charter of Rights and Freedoms - Interpretation - Particular words and phrases - Principles of fundamental justice - [See Civil Rights - Topic 5511 ].

Civil Rights - Topic 8668

Canadian Charter of Rights and Freedoms - Equality rights (s. 15) - What constitutes a breach of s. 15 - [See Civil Rights - Topic 5511 ].

Government Programs - Topic 5245

Health and social services - Handicapped persons - Funding for therapy - [See Civil Rights - Topic 5511 ].

Cases Noticed:

Eldridge et al. v. British Columbia (Attor­ney General) et al., [1997] 3 S.C.R. 624; 218 N.R. 161; 96 B.C.A.C. 81; 155 W.A.C. 81, refd to. [para. 21].

Andrews v. Law Society of British Colum­bia, [1989] 1 S.C.R. 143; 91 N.R. 255, refd to. [para. 21].

Law v. Minister of Employment and Im­migration, [1999] 1 S.C.R. 497; 236 N.R. 1, refd to. [para. 22].

Hodge v. Canada (Minister of Human Re­sources Development) (2004), 326 N.R. 201; 2004 SCC 65, refd to. [para. 24].

R. v. Turpin, Siddiqui and Clauzel, [1989] 1 S.C.R. 1296; 96 N.R. 115; 34 O.A.C. 115, refd to. [para. 28].

Corbiere et al. v. Canada (Minister of Indian and Northern Affairs) et al., [1999] 2 S.C.R. 203; 239 N.R. 1, refd to. [para. 41].

Granovsky v. Minister of Employment and Immigration, [2000] 1 S.C.R. 703; 253 N.R. 329; 2000 SCC 28, refd to. [para. 41].

Walsh v. Bona, [2002] 4 S.C.R. 325; 297 N.R. 203; 210 N.S.R.(2d) 273; 659 A.P.R. 273; 2002 SCC 83, refd to. [para. 41].

Battlefords and District Co-operative Ltd. v. Gibbs and Human Rights Commission (Sask.), [1996] 3 S.C.R. 566; 203 N.R. 131; 148 Sask.R. 1; 134 W.A.C. 1, refd to. [para. 54].

Workers' Compensation Board (N.S.) v. Martin et al., [2003] 2 S.C.R. 504; 310 N.R. 22; 217 N.S.R.(2d) 301; 683 A.P.R. 301, refd to. [para. 54].

Public Service Employee Relations Com­mission (B.C.) v. British Columbia Gov­ernment and Service Employee's Union, [1999] 3 S.C.R. 3; 244 N.R. 145; 127 B.C.A.C. 161; 207 W.A.C. 161, refd to. [para. 57].

R. v. Malmo-Levine (D.) et al., [2003] 3 S.C.R. 571; 314 N.R. 1; 191 B.C.A.C. 1; 314 W.A.C. 1; 2003 SCC 74, refd to. [para. 66].

Canadian Foundation for Children, Youth and the Law v. Canada (Attorney Gen­eral), [2004] 1 S.C.R. 76; 315 N.R. 201; 183 O.A.C. 1; 2004 SCC 4, refd to. [para. 66].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 7 [para. 64]; sect. 15(1) [para. 19].

Counsel:

Geoff D. Cowper, Q.C., and Lisa J. Mroz­inski, for the appellants/respondents on cross-appeal;

C.E. Hinkson, Q.C., and Birgitta von Kro­sigk, for the respondents/appellants on cross-appeal;

Graham Garton, Q.C., and Michael H. Morris, for the intervenor, the Attorney General of Canada;

Robert E. Charney and Sarah Kraicer, for the intervenor, the Attorney General of Ontario;

Isabelle Harnois, for the intervenor, the Attorney General of Quebec;

Catherine J. Lunn, for the intervenor, the Attorney General of Nova Scotia;

Written submissions only by Gaétan Mig­neault, for the intervenor, the Attorney General of New Brunswick;

Ruth M. DeMone, for the intervenor, the Attorney General of Prince Edward Island;

Margaret Unsworth, for the intervenor, the Attorney General of Alberta;

Donald H. Burrage, Q.C., and Barbara Barrowman, for the intervenor, the Attor­ney General for Newfoundland and Labrador;

Elizabeth J. Shilton, Fay C. Faraday and Ena Chadha, for the intervenors, the Canadian Association for Community Living and the Council of Canadians with Disabilities;

Dianne Pothier and Fiona Sampson, for the intervenors, the Women's Legal Educa­tion and Action Fund and Disabled Women's Network Canada;

Domenic A. Crolla and Meghan K. O'Brien, for the intervenor, Autism Society Canada;

Douglas C. Mitchell, for the intervenor, Michelle Dawson;

Elizabeth M. (Ellie) Venhola, Janet L. Huchison and Michael R. Loughlan, for the intervenors, Families for Effective Autism Treatment of Alberta Foundation and Families for Early Autism Treatment of Ontario;

Mary Eberts and Jonathan Strug, for the intervenor, Friends of Children with Autism.

Solicitors of Record:

Fasken Martineau DuMoulin, Vancouver, B.C., and Ministry of Attorney General, Victoria, B.C., for the appellants/re­spondents on cross-appeal;

Harper Grey Easton, Vancouver, B.C., and Bradbrooke Crawford Green, North Vancouver, B.C., for the respondents/ap­pellants on cross-appeal;

Department of Justice Canada, Ottawa, Ontario, for the intervenor, the Attorney General of Canada;

Attorney General of Ontario, Toronto, Ontario, for the intervenor, the Attorney General of Ontario;

Department of Justice, Sainte-Foy, Quebec, for the intervenor, the Attorney General of Quebec;

Department of Justice, Halifax, N.S., for the intervenor, the Attorney General of Nova Scotia;

Attorney General of New Brunswick, Fredericton, N.B., for the intervenor, the Attorney General of New Brunswick;

Attorney General of Prince Edward Island, Charlottetown, P.E.I., for the intervenor, the Attorney General of Prince Edward Island;

Alberta Justice, Edmonton, Alberta, for the intervenor, the Attorney General of Alberta;

Department of Justice, St. John's, Nfld., for the intervenor, the Attorney General for Newfoundland and Labrador;

Cavalluzzo Hayes Shilton McIntyre & Cornish, Toronto, Ontario, and Advocacy Resource Centre for Persons with Dis­abilities (ARCH), Toronto, Ontario, for the intervenors, the Canadian Association for Community Living and the Council of Canadians with Disabilities;

Women's Legal Education and Action Fund, Toronto, Ontario, for the intervenors, the Women's Legal Educa­tion and Action Fund and DisAbled Women's Network Canada;

Gowling Lafleur Henderson, Ottawa, On­tario, for the intervenor, Autism Society Canada;

Irving, Mitchell & Associates, Montréal, Quebec, for the intervenor, Michelle Dawson;

Chamberlain Hutchison, Edmonton, Alber­ta and Community Legal Clinic (Simcoe, Haliburton, Kawartha Lakes), Orillia, Ontario, for the intervenors, Families for Effective Autism Treatment of Alberta Foundation and Families for Early Au­tism Treatment of Ontario;

Eberts Symes Street Pinto & Jull, Toronto, Ontario, for the intervenor, Friends of Children with Autism.

This appeal was heard on June 9, 2004, before McLachlin, C.J.C., Major, Bastarache, Binnie, LeBel, Deschamps and Fish, JJ., of the Supreme Court of Canada.

On November 19, 2004, McLachlin, C.J.C., delivered the following judgment in both official languages for the Supreme Court of Canada.