Wynberg et al. v. Ontario, (2006) 213 O.A.C. 48 (CA)

• Judge: Goudge, Simmons and Gillese, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: July 07, 2006
• Jurisdiction: Ontario
• Citations: (2006), 213 O.A.C. 48 (CA)

Wynberg v. Ont. (2006), 213 O.A.C. 48 (CA)

MLB headnote and full text

Temp. Cite: [2006] O.A.C. TBEd. JL.024

Robyn Wynberg and Simon Wynberg on their own behalf and in their capacity as joint litigation guardians of Sebastian and Nathaniel Wynberg et al. (plaintiffs/respondents/appellants by way of cross- appeal) v. Her Majesty the Queen In Right of Ontario (defendant/appellant/respondent by way of cross-appeal)

Michael Shane Deskin and Noah Samuel Deskin minors by their litigation guardian, Brenda Jill Deskin, Brenda Jill Deskin, Steven Joe Deskin, Sheldon Kosky, Frances Kosky, and Betty Deskin (plaintiffs/respondents/appellant by way of cross-appeal) v. Her Majesty the Queen in Right of Ontario (defendant/appellant/respondent by way of cross-appeal)

(C43425)

Indexed As: Wynberg et al. v. Ontario

Ontario Court of Appeal

Goudge, Simmons and Gillese, JJ.A.

July 7, 2006.

Summary:

In 1999, the Minister of Community and Social Services of Ontario announced an Intensive Early Intervention Program (IEIP), which provided for funded Intensive Behavioural Intervention (IBI) for autistic children ages two to five. Two actions were commenced against the Province of Ontario by two families, the Wynbergs and the Deskins, on behalf of both adult and infant plaintiffs, alleging that Ontario breached their rights under ss. 7 and 15 of the Charter of Rights and Freedoms because the IEIP ceased to be available once the children reached six years of age and because IBI was not available in the education system. In addition, the Deskins sued Ontario for negligence.

The Ontario Superior Court, in a decision reported [2005] O.T.C. 240, allowed the plaintiffs' action. The court held that: (1) Ontario violated the equality rights of the infant plaintiffs on the basis of age because of the upper age limit of the IEIP; (2) Ontario violated the equality rights of the infant plaintiffs on the basis of disability in failing to provide a special education program for them consistent with the IEIP Guidelines; (3) Ontario failed to justify the age discrimination violation under s. 1 of the Charter and did not attempt to do so for the disability discrimination violation; (4) declaratory relief and damages constituted the appropriate remedy; (5) the parents of the infant plaintiffs did not demonstrate a violation of their equality rights; (6) neither the infant plaintiffs nor the adult plaintiffs established that their rights to life, liberty and security of the person under s. 7 of the Charter was infringed by the special education regime provided by Ontario; and (7) the negligence claim of the Deskin plaintiffs failed. Ontario appealed the first four findings and the Wynbergs and Deskins cross-appealed the last three findings.

The Ontario Court of Appeal allowed the appeal by Ontario from the first four findings and dismissed the cross-appeal respecting the last three findings. The court found that there was no discrimination established by the infant plaintiffs either on the basis of age or disability. Even if the IEIP resulted in age discrimination, it was justified under s. 1 of the Charter. The adult plaintiffs' discrimination claims based on age and disability, being derivative claims, fell with the infant plaintiffs' claims and their claim based on family status fell because family status was not an analogous ground within s. 15(1) of the Charter. The court opined that the trial judge erred in finding that a combination of declaratory relief and damages constituted the appropriate remedy, because absent bad faith, abuse of power, negligence, etc., damages were not available as a remedy in conjunction with a declaration of unconstitutionality. The court affirmed that there was no violation of s. 7 of the Charter and the dismissal of the negligence claim by the Deskins.

Civil Rights - Topic 726

Liberty - Charter of Rights and Freedoms - Denial of liberty - What constitutes - [See Civil Rights - Topic 1208.3 ].

Civil Rights - Topic 916

Discrimination - Family status - General - [See Civil Rights - Topic 8672 ].

Civil Rights - Topic 929

Discrimination - Government programs - On the basis of age - In 1999, Ontario announced an Intensive Early Intervention Program (IEIP), which provided for funded Intensive Behavioural Intervention (IBI) for autistic children ages two to five - Two families, representing both adult and infant plaintiffs, sued Ontario, claiming that Ontario breached the rights of the infant plaintiffs contrary to s. 15 of the Charter, because the IEIP ceased to be available once the children reached six years of age (i.e., age discrimination) and because IBI was not available in the education system contrary to the provisions regarding exceptional students in s. 8(3) of the Education Act (i.e., disability discrimination) - The Ontario Court of Appeal held that the infant plaintiffs failed to establish their claims of age and disability discrimination - The court opined however that the IEIP was a reasonably justifiable program "prescribed by law" within the meaning of s. 1 of the Charter with respect to age discrimination - The court found it unnecessary to address s. 1 with respect to the disability discrimination allegation - The adults' claims of discrimination, being derivative from the infant plaintiffs, failed because they could stand in no better position than the infant plaintiffs - See paragraphs 13 to 190 and 203 to 206.

Civil Rights - Topic 960.1

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

Civil Rights - Topic 1152

Discrimination - Education - Discrimination on basis of age - [See Civil Rights - Topic 929 ].

Civil Rights - Topic 1153

Discrimination - Education - Discrimination on basis of disability - [See Civil Rights - Topic 929 ].

Civil Rights - Topic 1208.3

Security of the person - General - Education - In 1999, Ontario announced an Intensive Early Intervention Program (IEIP), which provided for funded Intensive Behavioural Intervention (IBI) for autistic children ages two to five - Two families, representing both adult and infant plaintiffs, sued Ontario, arguing that their s. 7 Charter rights to life, liberty and security of the person were infringed by Ontario's failure to fully implement the IBI into the education program - The Ontario Court of Appeal rejected the s. 7 argument - The court stated, inter alia, that the existing jurisprudence did not permit the court to interpret s. 7 as imposing a constitutional obligation on Ontario to ensure that every school age autistic child had access to specific educational services - Thus far, s. 7 had been interpreted only as restricting the state's ability to deprive individuals of life, liberty or security of the person - See paragraphs 208 to 233.

Civil Rights - Topic 8375

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Damages - The Ontario Court of Appeal opined that the general rule against combining declaratory relief with pecuniary damages was not limited to cases where a statute, rather than some other government action, was declared unconstitutional - The court stated also that the reasons underlying the general prohibition against damages where declaratory relief was granted applied with equal force whether the declarations were made as a result of a challenge to legislation under s. 52 of the Constitution Act, 1982 or where the challenge was to some action taken under legislation that was said to infringe a Charter right and relief was sought pursuant to s. 24(1) of the Charter - See paragraph 194 - The court stated that absent bad faith, abuse of power, negligence or willful blindness in respect of constitutional obligations, damages were not available as a remedy in conjunction with a declaration of unconstitutionality - See paragraph 202.

Civil Rights - Topic 8380.25

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Declaration of rights - [See Civil Rights - Topic 8375 ].

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 ].

Civil Rights - Topic 8672

Canadian Charter of Rights and Freedoms - Equality rights (s. 15) - Analogous categories - In 1999, Ontario announced an Intensive Early Intervention Program (IEIP), which provided for funded Intensive Behavioural Intervention (IBI) for autistic children ages two to five - Two families, representing both adult and infant plaintiffs, sued Ontario, claiming that Ontario breached s. 15 of the Charter - The Ontario Court of Appeal held that the infant plaintiffs failed to establish age or disability discrimination and, therefore, the adult plaintiffs, whose claim in this regard was derivative from that of the infant plaintiffs also failed because they could stand in no better position than the infant plaintiffs - The court opined that the trial judge correctly rejected a further argument that the adult plaintiffs had been discriminated against on the basis of their "family status" as parents and grandparents of children with autism - However, the court disagreed with the trial judge's determination that being the parent of a child with autism was an analogous ground - The court stated that it found it difficult to conceive of family status as constituting an analogous ground where the claim of the parents and grandparents was based not on their own characteristics or identity, but, rather, on the characteristics or identity of the infant plaintiffs - See paragraphs 204 and 205.

Crown - Topic 1701

Torts by and against Crown - Actions against Crown for breach of statutory duty - General - The Ontario Court of Appeal opined that a trial judge erred in granting damages on the basis that the Minister of Education breached a statutory duty under s. 8(3) of the Education Act - The court stated that the appropriate remedy for such a breach would be to direct the Minister to fulfill his duty - See paragraph 202.

Crown - Topic 1712

Torts by and against Crown - Actions against Crown for breach of statutory duty - Remedies - Damages - [See Crown - Topic 1701 ].

Education - Topic 1101

Education authorities - Ministers of education - General - [See Crown - Topic 1701 ].

Education - Topic 5402

Students - "Exceptional" students - Programs and services (incl. remedies) - [See Civil Rights - Topic 929 , Civil Rights - Topic 8672 , Crown - Topic 1701 and Torts - Topic 9163 ].

Torts - Topic 9163

Duty of care - Particular relationships - Claims against public officials, authorities or boards - Education authorities - In 1999, the Minister of Community and Social Services of Ontario announced an Intensive Early Intervention Program (IEIP), which provided for funded Intensive Behavioural Intervention (IBI) for autistic children ages two to five - The family of an autistic child, the Deskins, sued Ontario, alleging negligence in that Ontario failed to provide IBI consistent with the IEIP Guidelines for autistic children as part of the transition to school and as part of the special education program - The Ontario Court of Appeal affirmed the dismissal of the negligence claim - The court held that Ontario did not owe the Deskins a private law duty of care - Further there was no error in the trial judge's causation analysis - See paragraphs 234 to 260.

Cases Noticed:

Law v. Minister of Employment and Immigration, [1999] 1 S.C.R. 497; 236 N.R. 1, refd to. [para. 15].

Hodge v. Canada (Minister of Human Resources Development), [2004] 3 S.C.R. 357; 326 N.R. 201, refd to. [para. 18].

Lovelace v. Ontario - see Ardoch Algonquin First Nation and Allies et al. v. Ontario et al.

Ardoch Algonquin First Nation and Allies et al. v. Ontario et al., [2000] 1 S.C.R. 950; 255 N.R. 1; 134 O.A.C. 201, refd to. [para. 25].

Gosselin v. Quebec (Procureur général), [2002] 4 S.C.R. 429; 298 N.R. 1; 2002 SCC 84, refd to. [para. 51].

Vriend et al. v. Alberta, [1998] 1 S.C.R. 493; 224 N.R. 1; 212 A.R. 237; 168 W.A.C. 237, refd to. [para. 63].

Auton et al. v. British Columbia (Minister of Health) et al., [2004] 3 S.C.R. 657; 327 N.R. 1; 206 B.C.A.C. 1; 338 W.A.C. 1; 2004 SCC 78, refd to. [para. 113].

R. v. Oakes, [1986] 1 S.C.R. 103; 65 N.R. 87; 14 O.A.C. 335, refd to. [para. 147].

Davidson v. Slaight Communications Inc., [1989] 1 S.C.R. 1038; 93 N.R. 183, refd to. [para. 151].

Osborne, Millar and Barnhart et al. v. Canada (Treasury Board) et al., [1991] 2 S.C.R. 69; 125 N.R. 241, refd to. [para. 158].

M. v. H., [1999] 2 S.C.R. 3; 238 N.R. 179; 121 O.A.C. 1, refd to. [para. 166].

Irwin Toy Ltd. v. Québec (Procureur général), [1989] 1 S.C.R. 927; 94 N.R. 167; 24 Q.A.C. 2, refd to. [para. 171].

Taylor and Western Guard Party v. Canadian Human Rights Commission, [1990] 3 S.C.R. 892; 117 N.R. 191, refd to. [para. 174].

R. v. Sharpe (J.R.), [2001] 1 S.C.R. 45; 264 N.R. 201; 146 B.C.A.C. 161; 239 W.A.C. 161, refd to. [para. 177].

Schachter v. Canada, [1992] 2 S.C.R. 679; 139 N.R. 1; 93 D.L.R.(4th) 1, refd to. [para. 192].

Mackin v. New Brunswick (Minister of Finance) - see Rice, P.C.J. v. New Brunswick.

Rice, P.C.J. v. New Brunswick, [2002] 1 S.C.R. 405; 282 N.R. 201; 245 N.B.R.(2d) 299; 636 A.P.R. 299; 209 D.L.R.(4th) 564, refd to. [para. 192].

Welbridge Holdings Ltd. v. Winnipeg (Greater), [1971] S.C.R. 957, refd to. [para. 195].

Hislop et al. v. Canada (Attorney General) (2004), 192 O.A.C. 331; 246 D.L.R.(4th) 140 (C.A.), refd to. [para. 195].

Guimond v. Québec (Procureur général), [1996] 3 S.C.R. 347; 201 N.R. 380, refd to. [para. 196].

Thibaudeau v. Minister of National Revenue, [1995] 2 S.C.R. 627; 182 N.R. 1, refd to. [para. 206].

Godbout v. Longueuil (Ville), [1997] 3 S.C.R. 844; 219 N.R. 1, refd to. [para. 213].

Chaoulli v. Quebec (Attorney General), [2005] 1 S.C.R. 791; 335 N.R. 25, refd to. [para. 214].

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, refd to. [para. 224].

R.B. v. Children's Aid Society of Metropolitan Toronto - see Sheena B., Re.

Sheena B., Re, [1995] 1 S.C.R. 315; 176 N.R. 161; 78 O.A.C. 1, refd to. [para. 224].

Adler et al. v. Ontario et al. (1994), 73 O.A.C. 81; 19 O.R.(3d) 1 (C.A.), affd. [1996] 3 S.C.R. 609; 204 N.R. 81; 95 O.A.C. 1, refd to. [para. 229].

Just v. British Columbia, [1989] 2 S.C.R. 1228; 103 N.R. 1, refd to. [para. 247].

KL.B. et al. v. British Columlbia et al., [2003] 2 S.C.R. 403; 309 N.R. 306; 187 B.C.A.C. 42; 307 W.A.C. 42, refd to. [para. 247].

Nielsen v. Kamloops (City) and Hughes, [1984] 2 S.C.R. 2; 54 N.R. 1, refd to. [para. 247].

Anns v. Merton London Borough Council, [1978] A.C. 728, refd to. [para. 257].

Cooper v. Hobart - see Cooper v. Registrar of Mortgage Brokers (B.C.) et al.

Cooper v. Registrar of Mortgage Brokers (B.C.) et al., [2001] 3 S.C.R. 537; 277 N.R. 113; 160 B.C.A.C. 268; 261 W.A.C. 268; 2001 SCC 79, refd to. [para. 257].

Edwards et al. v. Law Society of Upper Canada et al., [2001] 3 S.C.R. 562; 277 N.R. 145; 153 O.A.C. 388; 206 D.L.R.(4th) 211, refd to. [para. 257].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 1 [para. 147]; sect. 7 [para. 210]; sect. 15(1) [para. 14].

Education Act, R.S.O. 1990, c. E-2, sect. 8(3) [para. 85].

Authors and Works Noticed:

Hogg, Peter W., Constitutional Law of Canada (4th Ed. 1997) (Looseleaf), pp. 35-34 to 35-39 [para. 180].

Pilkington, Marilyn L., Monetary Redress for Charter Infringement, in Sharpe, Robert J., Charter Litigation (1987), pp. 319, 320 [para. 196].

Sharpe, Robert J., Charter Litigation (1987), pp. 319, 320 [para. 196].

Counsel:

Robert E. Charney, Sarah T. Kraicer, S. Zachary Green and Bruce C. Ellis, for the appellant/respondent by way of cross-appeal;

Mary Eberts and Amy Britton-Cox, for the Wynberg respondents/appellants by way of cross-appeal;

Scott C. Hutchison and Alice Mrozek, for the Deskin respondents/appellants by way of cross-appeal;

John A. M. Judge, Vaso Maric and Robert Lattanzio, for the intervener, The Canadian Association for Community Living and Community Living Ontario.

This appeal was heard before Goudge, Simmons and Gillese, JJ.A., of the Ontario Court of Appeal. The following decision was delivered by the court on July 7, 2006.