Auton et al. v. British Columbia (Minister of Health) et al., (2002) 173 B.C.A.C. 114 (CA)

• Judge: Lambert, Hall and Saunders, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: October 09, 2002
• Jurisdiction: British Columbia
• Citations: (2002), 173 B.C.A.C. 114 (CA);2002 BCCA 538

Auton v. B.C. (2002), 173 B.C.A.C. 114 (CA);

    283 W.A.C. 114

MLB headnote and full text

Temp. Cite: [2002] B.C.A.C. TBEd. OC.077

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, Jordon 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/petitioners) v. The Attorney General of British Columbia and The Medical Services Commission of British Columbia (appellants/respondents on cross-appeal/appellants)

(CA027600; 2002 BCCA 538)

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

British Columbia Court of Appeal

Lambert, Hall and Saunders, JJ.A.

October 9, 2002.

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 "Lovaas Autism Treatment" (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 decision reported at 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 a particular treatment for autistic children (i.e., early intensive behavioral intervention and, in particular, the Lovaas Autism Treat­ment). 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 decision reported at [2000] B.C.T.C. 536, held that the petitioners established that their s. 15 Charter rights were infringed. The Crown 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 Crown'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 arguments. 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 Crown pay for the Lovaas Autism Treatment.

In subsequent proceedings reported at [2001] B.C.T.C. 220, the British Columbia Supreme Court ordered certain treatment to be funded and a sum paid to each adult petitioner for "symbolic damages" for breach of Charter rights ($20,000 each). The Crown appealed the declaration and remedial order. The petitioners cross-appealed the remedy.

The British Columbia Court of Appeal, Lambert, J.A., dissenting in part, dismissed the appeal and allowed the cross-appeal in part.

Civil Rights - Topic 206

Life - Rights of children - Handicapped children - Right to treatment - Several autistic children and their parents sued the provincial government, claiming a denial of Charter rights because of the lack of funding for treatment of such children - Specifically, the petitioners alleged the province breached the rights of these infants to liberty and security of the person contrary to the principles of fundamental justice - The British Columbia Court of Appeal held that the impugned measure did not impinge on the right to life - See paragraphs 68 to 73.

Civil Rights - Topic 929

Discrimination - Government programs - On the basis of age - The British Colum­bia Court of Appeal affirmed that the denial of government funding for treatment of autis­tic children constituted differential treat­ment on the grounds of age and men­tal disability which discriminated against such children, contrary to s. 15(1) of the Charter - Such discrimination was not justified under s. 1 of the Charter - See paragraphs 30 to 67.

Civil Rights - Topic 938

Discrimination - Government programs - Health and social services - [See Civil Rights - Topic 929 ].

Civil Rights - Topic 960.1

Discrimination - Mental disability - Gen­eral - [See Civil Rights - Topic 929 ].

Civil Rights - Topic 1400

Security of the person - Health care (incl. mental health) - Denial of - Several aut­istic children and their parents sued the provin­cial government, claiming a denial of Charter rights because of the lack of fund­ing for treatment of such children - Specifically, the petitioners alleged the province breached the rights of these infants to liberty and security of the person contrary to the principles of fundamental justice - The British Columbia Court of Appeal held that the impugned measure would not violate a principle of funda­mental justice - See paragraphs 68 to 73.

Civil Rights - Topic 5655

Equality and protection of the law - Par­ticular cases - Medical treatment of men­tally disabled persons - [See Civil Rights -Topic 929 ].

Civil Rights - Topic 5655.1

Equality and protection of the law - Par­ticular cases - Provincial health benefits - [See Civil Rights - Topic 929 ].

Civil Rights - Topic 8314

Canadian Charter of Rights and Freedoms - General - Application - Social pro­grams - Health care and treatment - Sev­eral autis­tic children and their parents sued the provincial government, claiming a denial of Charter rights because of the lack of funding for treatment of such children - Specifically, the petitioners alleged the province breached the rights of these infants to liberty and security of the person contrary to the principles of fundamental justice - The British Columbia Court of Appeal held that the Charter did not apply to provide a positive entitlement to health care - See paragraphs 68 to 73.

Civil Rights - Topic 8344

Canadian Charter of Rights and Freedoms - Application - Exceptions - Principles of fundamental justice (Charter, s. 7) - [See Civil Rights - Topic 1400 ].

Civil Rights - Topic 8375

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Damages - The British Columbia Court of Appeal affirmed that autistic children were dis­criminated against by the province's lack of funding for treatment for such children, contrary to s. 15(1) of the Charter - The court further held that compensatory dam­ages for the breach were not appropriate, but affirmed the awarding of $20,000 to each adult parent petitioner as "symbolic damages" - See paragraphs 93 to 99.

Civil Rights - Topic 8375

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Damages - The British Columbia Court of Appeal stated that damages were not automatic for a breach of Charter rights, but were dis­cretionary - See paragraphs 94 to 96.

Civil Rights - Topic 8377

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Preroga­tive writs - The British Columbia Court of Appeal affirmed that the province's failure to fund treatment for autistic children violated their s. 15 Charter rights - The Supreme Court's order directing the Crown to fund future treatment of autistic children (but not funding for "Lovaas Autism Treatment"), was an appropriate general order, supported by evidence - In terms of the order in its general application, the trial court was correct to avoid particularizing details of the program that must be funded - The court, however, modified the order to direct that the four infant petitioners were each entitled to government-funded treatment in the nature of what they were receiving, if such treatment were still useful to them - See paragraphs 75 to 92.

Civil Rights - Topic 8380.25

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Declar­ation of rights - [See Civil Rights - Topic 8377 ].

Civil Rights - Topic 8547

Canadian Charter of Rights and Freedoms - Interpretation - Particular words and phrases - Principles of fundamental justice - [See Civil Rights - Topic 1400 ].

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 929 ].

Government Programs - Topic 5245

Health and social services - Handicapped children - Funding for treatment - [See Civil Rights - Topic 929 ].

Cases Noticed:

Andrews v. Law Society of British Colum­bia, [1989] 1 S.C.R. 143; 91 N.R. 255; 34 B.C.L.R.(2d) 273, refd to. [para. 25].

Granovsky v. Minister of National Rev­enue, [2000] 1 S.C.R. 703; 253 N.R. 329; 186 D.L.R.(4th) 1, refd to. [para. 25].

McKinney v. University of Guelph et al., [1990] 3 S.C.R. 229; 118 N.R. 1; 45 O.A.C. 1; 76 D.L.R.(4th) 545, refd to. [paras. 25, 133].

Miron and Valliere v. Trudel et al., [1995] 2 S.C.R. 418; 181 N.R. 253; 81 O.A.C. 253; 124 D.L.R.(4th) 693, refd to. [para. 25].

Egan and Nesbit v. Canada, [1995] 2 S.C.R. 513; 182 N.R. 161; 124 D.L.R.(4th) 609, refd to. [para. 25].

Eaton v. Board of Education of Brant County, [1997] 1 S.C.R. 241; 207 N.R. 171; 97 O.A.C. 161; 142 D.L.R.(4th) 385, refd to. [para. 25].

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; 38 B.C.L.R.(3d) 1, refd to. [paras. 25, 106].

Vriend et al. v. Alberta, [1998] 1 S.C.R. 493; 224 N.R. 1; 212 A.R. 237; 168 W.A.C. 237; 156 D.L.R.(4th) 385, refd to. [para. 25].

M. v. H., [1999] 2 S.C.R. 3; 238 N.R. 179; 121 O.A.C. 1; 171 D.L.R.(4th) 577, refd to. [para. 25].

Law v. Minister of Employment and Immigration, [1999] 1 S.C.R. 497; 236 N.R. 1; 170 D.L.R.(4th) 1, refd to. [para. 25].

R. v. Oakes, [1986] 1 S.C.R. 103; 65 N.R. 87; 14 O.A.C. 335; 24 C.C.C.(3d) 321, refd to. [para. 54].

Schachter v. Canada et al., [1992] 2 S.C.R. 679; 139 N.R. 1; 93 D.L.R.(4th) 1, refd to. [para. 57].

Ferrell et al. v. Ontario (Attorney General) (1998), 116 O.A.C. 176; 42 O.R.(3d) 97; 168 D.L.R.(4th) 1 (C.A.), refd to. [para. 59].

Perry et al. v. Ontario (1997), 100 O.A.C. 370; 33 O.R.(3d) 375; 148 D.L.R.(4th) 126 (C.A.), refd to. [para. 59].

Lovelace v. Ontario - see Perry et al. v. Ontario.

Beson et al. v. Director of Child Welfare (Nfld.), [1982] 2 S.C.R. 716; 44 N.R. 602; 39 Nfld. & P.E.I.R. 246; 111 A.P.R. 246; 142 D.L.R.(3d) 20, refd to. [para. 60].

Eve, Re, [1986] 2 S.C.R. 388; 71 N.R. 1; 61 Nfld. & P.E.I.R. 273; 185 A.P.R. 273; 31 D.L.R.(4th) 1, refd to. [para. 60].

Roncarelli v. Duplessis, [1959] S.C.R. 121; 16 D.L.R.(2d) 689, refd to. [para. 61].

Davidson v. Slaight Communications Inc., [1989] 1 S.C.R. 1038; 93 N.R. 183; 59 D.L.R.(4th) 416, refd to. [para. 63].

Cameron et al. v. Nova Scotia (Attorney General) et al. (1999), 204 N.S.R.(2d) 1; 639 A.P.R. 1; 177 D.L.R.(4th) 611 (C.A.), consd. [para. 66].

New Brunswick (Minister of Health and Community Services) v. J.G. and D.V., [1999] 3 S.C.R. 46; 244 N.R. 276; 216 N.B.R.(2d) 25; 552 A.P.R. 25; 177 D.L.R.(4th) 124, refd to. [para. 71].

Godbout v. Longueuil (Ville), [1997] 3 S.C.R. 844; 219 N.R. 1; 82 B.C.L.R.(2d) 273, refd to. [para. 73].

Rodriguez v. British Columbia (Attorney General) et al., [1993] 3 S.C.R. 519; 158 N.R. 1; 34 B.C.A.C. 1; 56 W.A.C. 1; 82 B.C.L.R.(2d) 273, refd to. [para. 73].

R. v. Morgentaler, [1988] 1 S.C.R. 30; 82 N.R. 1; 26 O.A.C. 1; 44 D.L.R.(4th) 385, refd to. [para. 73].

Stein Estate v. Ship Kathy K, [1976] 2 S.C.R. 802; 6 N.R. 359; 62 D.L.R.(3d) 1, refd to. [para. 79].

Operation Dismantle Inc. et al. v. Canada et al., [1985] 1 S.C.R. 441; 59 N.R. 1; 18 D.L.R.(4th) 481, refd to. [para. 92].

R. v. Waller (J.B.) (1997), 89 B.C.A.C. 257; 145 W.A.C. 257 (C.A.), refd to. [para. 96].

Du-Lude v. Canada - see Dulude v. Canada.

Dulude v. Canada, [2001] 1 F.C. 245; 264 N.R. 1 (F.C.A.), refd to. [para. 98].

Crossman v. Canada (1984), 9 D.L.R.(4th) 588 (F.C.T.D.), refd to. [para. 133].

Krznaric v. Chevrette et al. (1997), 48 O.T.C. 85; 154 D.L.R.(4th) 527 (Gen. Div.), refd to. [para. 133].

Just v. British Columbia, [1989] 2 S.C.R. 1228; 103 N.R. 1, refd to. [para. 134].

Guimond v. Québec (Procureur général), [1996] 3 S.C.R. 347; 201 N.R. 380, refd to. [para. 134].

Sanders v. Snell (1998), 157 A.L.R. 491 (Aus. H.C.), refd to. [para. 134].

Bourgoin v. Ministry of Agriculture, [1985] 3 All E.R. 585 (Q.B.), appealed [1985] 1 Q.B. 716 (C.A.), refd to. [para. 134].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 1 [para. 53]; sect. 7 [para. 68]; sect. 15(1) [para. 24]; sect. 24(1) [para. 94].

Authors and Works Noticed:

Chitty, Joseph, A Treatise on the Law of the Prerogatives of the Crown, pp. 155, 156 [para. 60].

Pilkington, Marilyn, L., Damages as a Remedy for Infringement of the Cana­dian Charter of Rights and Freedoms (1984), 62 Can. Bar Rev. 517, generally [para. 133].

Counsel:

L. Mrozinski and L. Greathead, for the appellant;

C.E. Hinkson, Q.C., and B. von Krosigk, for the respondents/appellants by cross-appeal.

This appeal was heard at Vancouver, British Columbia, on February 20-21, 2002, by Lambert, Hall and Saunders, JJ.A., of the British Columbia Court of Appeal.

The decision of the court was released on October 9, 2002, when the following opin­ions were filed:

Saunders, J.A. (Hall, J.A., concurring) - see paragraphs 1 to 100;

Lambert, J.A., dissenting in part - see paragraphs 101 to 139.