Facing Autism In Toronto and Oakville

Tomorrow I will be 'goin' down the road', flying actually, to Toronto and then on to Oakville where I will be speaking as part of a national autism awareness and advocacy campaign. I will be joining a team of dedicated parents and concerned citizens from FEAT-BC and FEAT Ontario who are advocating for a real National Autism Strategy; for the inclusion of autism in Canada's medicare system so that autistic children, wherever they live in Canada, will have access to effective evidence based treatment.

For me, the trip will be a homecoming of sorts. I worked in Toronto for a few years in the 90's. Both of my wonderful sons were born down the QEW at the Joseph Brant Memorial Hospital in Burlington. When Conor was born there 12 years ago I had almost no awareness of autism beyond some vague movie imagery of autistic savants. I did not know then what autism would come to mean for Conor or our family. Two years later I had returned to New Brunswick and after Conor's diagnosis became immersed in the world of autism and, by necessity, autism advocacy.

For that time, Conor was diagnosed at a relatively early age, 2 years. He was diagnosed after tests and observations over a period of several months which also occurred after time waiting for our appointment with the pediatrician. We had sought medical assessment because of lack of speech, lack of interaction of the kind that a child usually shows with their parents and because of a variety of odd behaviors.

When Conor was diagnosed there was very little in the way of autism specific services or information available in New Brunswick. Along with a number of other concerned parents I began my life as an advocate for my son, and for effective autism treatment, education, and residential care. Although much remains to be done, we have accomplished much for a small province lacking the financial resources of wealthier provinces. One of the tools we used to make gains for autism services in Canada was the trial decision in the Auton case, which was upheld on appeal by the British Columbia Court of Appeal but was ultimately overturned by the Supreme Court of Canada. Notwithstanding the SCC reversal the trial decision in Auton set out accurately the state of expert opinion on the effectiveness of ABA as a treatment for autism spectrum disorders, information that was very helpful in advocating publicly for the creation of autism specific services.

Notwithstanding the advances made since the trial decision in Auton Canada remains a patchwork quilt in terms of provision of autism treatment. Oil rich Alberta provides substantial funding for autism treatment until age 18 while next door in Saskatchewan they are just starting to provide autism services. A national autism strategy, inclusion of autism treatment in Medicare, is imperative if all autistic children in Canada are to benefit, and benefit fully, from intensive early intervention.

I will be honored to travel to Toronto and Oakville and join the people from FEAT Ontario, FEAT-BC (including people like Jean Lewis one of the "Auton" parents), and fellow speakers like Constitutional lawyer Deborah Coyne and autism's winter trek hero Stefan Marinoiu The Supreme Court of Canada effectively removed the courts and the Constitution of Canada as effective tools for helping ensure that autistic children receive effective evidence based treatment in Canada. We have to get political to ensure that all autistic children in Canada are treated equally and receive the treatment they need to prosper and grow. To accomplish such a large undertaking we all need to come together and advocate EFFECTIVELY for medicare for autism.

If you are interested in getting involved in advocating for medicare for autism I hope to meet you in Toronto and Oakville. See you there!

"Medicare for Autism Now!" Rally

Saturday, April 19th, 2008

2:00 p.m. to 4:00 p.m.

Iroquois Ridge Community Center,

1051 Glenashton Drive,

Oakville, Ontario, L6H 6Z4

autism

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Medicare for Autism Rally TODAY In Burnaby BC

Sunday, March 2nd, 2008
2:00 p.m. to 4:00 p.m.
Shadbolt Centre for the Arts
6450 Deer Lake Avenue
Burnaby

Why should you attend?

Despite a decade of lobbying, collaborating and litigating – autism treatment is still excluded from our universal health care system. Canadian families are still bankrupting themselves in order to provide treatment for their autistic children.

The current and limited funding provided through the provincial government’s social services ministries could evaporate tomorrow with the stroke of a bureaucrat’s pen. No legislation exists within these ministries to protect or enshrine our children’s medically necessary treatment.

In 30 years of "advocacy", the only two initiatives which have achieved ANY success for our children and families has been
litigation, and more recently, focused political action. Both were brought by the members of FEAT of BC – a 100% volunteer organization.

Autism is an epidemic of staggering proportions, it now afflicts one in every 150 children in North America, one in every 94 boys. It is time for the Federal Government to act! We need to let those who govern and those who wish to govern that they are going to be held accountable at the ballot box in the next federal election.

Who should attend?

You - and every fair-minded Canadian you know!

Children with autism suffer from political indifference. It will take the sustained energy and dedication of EVERY CANADIAN who desires a just society to correct this injustice. For our children’s sakes, and the sake of future generations, we urge you to attend this rally.

Please bring friends, family, anyone and everyone you know who is appalled by the gross injustice done to our children every day by the governments of Canada and its provinces.

Featured speakers will include:

Dr. Sabrina Freeman – Executive Director, FEAT of BC and parent

Jean Lewis – Director, FEAT of BC and parent

David Chan – Director, Autism Society of BC, FEAT of BC and parent

Dubravka Skrijelj – FEAT of BC member and parent

Dr. Glen Davies – Clinical Director - ABLE Developmental Clinic

Beverley Sharpe – FEAT of BC member and parent

Louise Witt – Director, Autism Society of BC, FEAT of BC and parent

David Marley – FEAT of BC member and Political Strategist

Please RSVP to www. featbc.org and forward this notice to anyone you think will be interested.

FEAT of BC: "To see justice is done"

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FEAT-BC “Campaign Kick-off Rally”: Sunday, March 2, 2008

FEAT-BC “Campaign Kick-off Rally”: Sunday, March 2, 2008

Vancouver, BC: - FEAT-BC [Families for Early Autism Treatment in BC] today announced it will be holding a “campaign kick-off rally” on Sunday, March 2, 2008, beginning at 2:00pm, at the Jack Shadbolt Centre for the Arts, 6450 Deer Lake Avenue, Burnaby. This rally launches the FEAT-BC goes coastal campaign, aimed at influencing the electoral outcome in more than a dozen targeted constituencies across Canada in the upcoming federal general election.

“ In its Auton decision, the Supreme Court of Canada told parents of autistic children to ‘get political’ if they wanted to see their children no longer be orphans of the Medicare system,”states Jean Lewis, a founding director of FEAT-BC. “Well, we’re taking the judiciary at their word and launching a nation-wide campaign to elect MPs, regardless of which political party holds office following the next election, who will vote for legislation that enshrines the treatment of autism under Medicare because it is the morally and economically correct thing to do.”

The rally is intended to attract parents of autistic children and their supporters from across Metro Vancouver. Its aim is to ignite a grassroots campaign that will help elect candidates for Parliament who will support Medicare for Autism Now!

“As a Canadian who does not have an autistic child, but who believes strongly in the fundamental values of this country, I am disgusted by the federal government’s willful indifference to the plight of these children and their families,” says Scott Hean, who will be master of ceremonies at the rally.

-30-

For further information, contact: Jean Lewis at 604-925-4401 or 604-290-5737, and jean.lewis@telus.net.

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Autism Class Action Lawsuit - Ontario Court of Appeal

Autism Class Action Lawsuit

at the Court of Appeal for Ontario

(Appeal hearing on a preliminary motion)

A crucial day in court that will determine whether

we will be allowed to continue the fight for full and timely access

to ABA/IBI intervention and in the schools

Monday February 11, 2008

at 10:30am

130 Queen Street West, Toronto

(at University Avenue , just west of City Hall)

Please join us to show your support for the families

For more information, please contact: t.sagharian@sympatico.ca

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Backgrounder

Autism Class Action Lawsuit (Sagharian)

In 2004, five families representing six children with autism filed a class action lawsuit against the Ministry of Education, Ministry of Children and Youth Services, and seven school boards in Ontario for failing to provide or fund ABA/IBI (Applied Behaviour Analysis/Intensive Behavioural Intervention) in the education system or without excessive and detrimental delays.

The plaintiffs have spent their savings, mortgaged and down-sized their homes, borrowed money and taken extra jobs to fund the services that their children require. They have had to make tough decisions about which services to access when they could not get both.

The case highlights key short-comings of services to children with autism. The families are suing the government and school boards for forcing the families of children with autism to make the impossible choice between the specialized services that help children with autism develop, and their right to a public school education. The families are also challenging the extensive waitlists for the AIP (Autism Intervention Program). The families want to ensure better access to publicly funded and quality services for children with autism in Ontario . They seek a change to the current approach to autism services, as well as compensation for the expenses that they have incurred as a result of the government and school boards’ past errors.

In 2006, the government and school boards brought a motion to strike the plaintiffs’ claim, and in March of 2007 a judge of the Superior Court of Justice, Mr. Justice Maurice Cullity, did strike portions of the claim. In response, the plaintiffs have appealed this decision to the Court of Appeal, with the hearing scheduled for February 11, 2008 at 10:30am.

In the aforementioned motion to strike, the government and school boards went after these families for $85,000 in legal costs. Fortunately for the families, Justice Cullity ruled in June 2007 that they should not have to pay these costs because they were raising an important public interest issue. In his decision, he stated:

"The public interest was involved not merely because this was Charter litigation but also because the community as a whole has a legitimate concern and interest in the welfare of disadvantaged children who are particularly vulnerable members of Canadian society.... It is not disputed that many of the parents have made significant financial sacrifices and have suffered serious financial consequences because of the lack of public funding for the programs they consider to be necessary for the educational and social development of their children. The fact that the Crown has now accepted a number of their contentions illustrates the value of this kind of public interest litigation and... the objectives of behavioural modification and access to justice are, I believe, sufficiently engaged to bear on the question of costs."

Autism Program in Ontario

In 1999, the province of Ontario, initially through the Ministry of Community and Social Services and now through the Ministry of Children and Youth Services, introduced the Intensive Early Intervention Program for Children with Autism (the “IEIP”, renamed the Autism Intervention Program "AIP" in August 2006) to provide services to children with autism. Initially, the program was only available to children under the age of six.

Both an Ontario Ombudsman report released in April 2004 and the report of the Office of the Provincial Auditor for Ontario in November 2004 identified several significant problems with the administration of the IEIP, including the difference between what it pays to the families and the actual cost of the treatment.

When Justice Kitely ruled in Wynberg/Deskin that the IEIP age cut-off violated the Charter’s equality guarantee under section 15(1), the government suspended the age cut-off (as of April 2005). This decision was over-turned by the Court of Appeal. Nevertheless, the IEIP/AIP has operated without discriminating based on age since Justice Kitely’s decision.

Unfortunately, the IEIP/AIP has long had a considerable waitlist that continues to result in eligible children not receiving necessary services. When the age cut-off existed, the waitlist was already so long that children would become ineligible for the program based on their age before ever receiving services. Since the elimination of the age six criterion for cut-off, the waitlists have become much lengthier, with the result that children with autism continue to be effectively denied necessary care.

The province spends millions of dollars every year on special education. In Ontario , all other children who require therapeutic or medical services are able to access services in a harmonized fashion alongside or with their education. However, when children with autism reach school age, they must either, enter a public school system that does not provide adequate education or support, where they will inevitably fail to improve and may regress, or enrol in a private program at considerable expense to their families and without the benefit of an integrated classroom setting. In contrast, children with autism in the United States are able to access ABA/IBI through the education system until the age of 21, and have been doing so for over 15 years.

Following the February 2007 recommendation in the Report of the Ministers’ Autism Spectrum Disorder Reference Group, Education Minister Kathleen Wynne announced that the Ministry would be directing school boards to provide ABA in their schools. This was an acknowledgment by the Minister that ABA was not previously being provided in school, that it could be, and that it should be. However, in a memo to school boards shortly afterwards, the Ministry indicated that ABA was already being used in some schools and that it would not be directing the use of IBI.

Then during the election campaign in the fall of 2007, the Liberal Party included in its party platform document the following promise:

“Helping more students with autism by providing $10 million to prepare schools to deliver IBI therapy on-site for the first time, a step forward made possible by our earlier decision to scrap the age-six limit for children with autism.”

Previous Autism Litigation in Canada

Auton: In 1998, families in British Columbia filed a lawsuit arguing that ABA is a medically necessary treatment and should be covered through the health care system. Although this case succeeded in the two lower courts in BC, it lost at the Supreme Court of Canada . The Supreme Court stated that the government did not have to provide ABA as ABA professionals are not registered health care practitioners and ABA is not delivered in a health care setting such as a hospital. Under provincial health care legislation, ABA could only be included as an add-on health service, in which case it would be at the discretion of the province as to how much to fund, which children would receive funding, and whether the province would fund the service at all.

Wynberg/Deskin: In Ontario, the Deskin case was filed in 1999 by a single plaintiff. This was followed by the Wynberg case filed in 2000, which eventually included 28 families. The cases were against the Ministries of Health, Education, and Social Services and were based on the Auton case. The families challenged the age cut-off in the IEIP as discriminating based on age and disability. They argued that the government acted negligently in the design and implementation of the IEIP. They also argued that the government breached their rights to life, liberty and security of the person by denying their children the benefit of an education.

When the 2004 Supreme Court decision in Auton was released, the Ontario cases had to reframe their claims, removing health and refocusing on ABA as an education issue. The Court allowed them to refocus their case, but prevented them from bringing evidence in support of this change in focus.

The Wynberg and Deskin cases succeeded at the trial court but then lost at the Ontario Court of Appeal. In denying their claims, the Court of Appeal specifically noted that it lacked significant evidence relevant to the case, including evidence related to ABA and education. It also stated that it was unfair for the comparatively small group of families participating in the case to get compensation while other families of children with autism languished. The trial judge, Justice Kitely, noted that the government had indicated that the school boards were the proper defendants to the claim and should have been a party. The families sought and were denied leave to appeal to the Supreme Court of Canada .

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The Wrath of Michelle Dawson

Erin Anderssen and the Globe and Mail have incurred the considerable wrath of researcher Michelle Dawson of the Autism Specialized Clinic Rivière-des-Prairies Hospital University of Montréal. Ms Dawson objected to the article, ‘Autistics': We don't want a cure, published in today's Globe and Mail , and written by Ms. Anderssen, who apparently did not follow the script Ms. Dawson expected to see in the article.

In Erin Anderssen does not take autism seriously Ms. Dawson, the anti-ABA activist* who does not want to be called an activist, issues one of her scathing attacks, this time against Ms. Anderssen. Ms. Anderssen should not be too concerned though. Anyone who does not march to Ms. Dawson's tune on autism issues receives the same treatment, sometimes with virtually the same title - Autism advocates do not take autism seriously.

I have, once again, been singled out for condemnation by Ms. Dawson in her reaction to the Globe and Mail article. After all I speak candidly in describing my son, who has Autism Disorder, and who is described by two professional assessments as autistic with profound developmental delays. And, I advocate persistently for evidence based interventions to assist autistic children. Two reasons to merit Ms. Dawson's condemnation.

To date only Applied Behavior Analysis, or ABA, meets evidence based standards as an effective autism intervention. Before Ms. Dawson writes yet another blog comment mocking 'Harold Doherty's science' she might want to read what the American Academy of Pediatrics said this week about ABA, following the reports of a number of state and federal agencies in the US over the past decade who have reached the same conclusion:

The effectiveness of ABA-based intervention in ASDs has been well documented through 5 decades of research by using single-subject methodology21,25,27,28 and in controlled studies of comprehensive early intensive behavioral intervention programs in university and community settings.29–40 Children who receive early intensive behavioral treatment have been shown to make substantial, sustained gains in IQ, language, academic performance, and adaptive behavior as well as some measures of social behavior, and their outcomes have been significantly better than those of children in control groups.31–4

American Academy of Pediatrics, Management of Children with Autism Spectrum Disorders

That is the result that I, and many parent advocates for ABA intervention for their children, have been seeking to obtain - gains in IQ, language, academic performance, adaptive and social behavior - not for Ms. Dawson and other high functioning autistic adults - but for our own autistic children. Some, like my son Conor, do not enjoy Ms. Dawson's considerable intellectual and communication gifts. For seeking to help our own children we have earned the wrath of Michelle Dawson; a wrath which is in fact a badge to be worn with pride and honor.

*(although the case did not involve her personally, Ms. Dawson appeared as an intervenor "An Autistic at the Supreme Court " in the Auton Supreme Court of Canada case to voice her opposition to government funded ABA treatment for autism, and again to the same end before the Canadian Senate)

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Autism Quote of The Decade - ABA Is the Treatment of Choice

“there is no question that ABA is the treatment of choice for children presenting with autistic disorder based on over 35 years of research in the field.”

- Frank M. Gresham Ph.D., as quoted by Justice Allan in Auton et al. v. AGBC 2000 BCSC 1142 para. 52

Frank M. Gresham was a Professor and Director of the School Psychology Program in the School of Education at U.C.L.A. He was retained by the British Columbia government in their efforts to oppose medicare coverage of ABA intervention for autism by providing expert opinion evidence regarding the Lovaas studies of which he has been a long time critic.

Despite his criticisms of the Lovaas studies, and despite his status as a paid expert witness for the government opposing ABA medicare coverage for autistic children, Dr. Gresham, to his credit, acknowledged ABA as the treatment of choice for autism.

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New Jersey Supreme Court Tells Insurer to Cover Autism Therapy

The New Jersey Supreme Court has done what Canada's Supreme Court would not do, it has ordered a health insurance plan for state workers to cover the cost of therapy for a 5 year old autistic boy. As reported in the Star-Ledger online the therapy cost the boy's family about $35,000 per year. The NJSC upheld two earlier appellate rulings:

The Supreme Court upheld two appellate rulings that came down in January and May 2007. The January decision said the commission could not deny treatment for "a class of dependents, notably afflicted children, based on the nature of their mental illness."

In Canada we can sometimes be smug about our "universal" health care coverage believing our system of health care coverage to be superior to that of our American friends. But in Auton the Supreme Court of Canada ruled that governments which provide our primary health care coverage in Canada were not required to provide coverage for ABA treatment for autistic children. For autistic children in Canada, and their families, Auton meant in effect that little, if any, reliance could be placed on Section 15 of the Canadian Charter of Rights and Freedoms.
15.(1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

The New Jersey Supreme Court ordered the state health benefits commission to pay the Micheletti family's bills in two weeks with 30 days to pay future bills. In Canada, by contrast, the families involved came away from the precedent setting Auton decision with something much less substantial - the sympathy of the Court - as expressed by Chief Justice Beverley McLachlin:

One sympathizes with the petitioners, and with the decisions below ordering the public health system to pay for their therapy. However, the issue before us is not what the public health system should provide, which is a matter for Parliament and the legislature. The issue is rather whether the British Columbia Government’s failure to fund these services under the health plan amounted to an unequal and discriminatory denial of benefits under that plan, contrary to s. 15 of the Charter. Despite their forceful argument, the petitioners fail to establish that the denial of benefits violated the Charter.

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Auton's Other Shoe Falls in Ontario - Autism Parents Get Political

In the Auton decision the Supreme Court of Canada denied the protection of the equality provisions of the Canadian Charter of Rights to autistic children in need of Applied Behavior Analysis treatment for their autistic condition. That decision was part of a long trend of cases by which the Supreme Court articulated a judicial policy of deference to government decision making on issues involving the public purse.

With the courts and legal process effectively denied by the Auton decision, a decision confirmed in its effect, if not in legal theory, by the Deskin-Wyneberg case out of Ontario, parents of autistic children seeking access to services for their children are getting political in a big way. The following story describes the intention of autism parents in Ontario - they are going to politically dog the steps of the Promise Breaker - Dalton McGuinty.

Parents will dog McGuinty campaign

Sun, July 15, 2007

The ABCs of Ontario Election 2007. The first in an ongoing series examining the issues in the countdown to the Oct. 10 vote, beginning with autism.

By ANTONELLA ARTUSO, SUN MEDIA QUEEN'S PARK BUREAU CHIEF

TORONTO -- Premier Bob Rae's re-election bid was dogged by social-contract-hating protesters.

Giant flip-flops followed Liberal Lyn McLeod around during the 1995 campaign to spotlight same-sex rights.

Mike Harris was swarmed by Kraft Dinner-throwing poverty protesters in 1999.

Now, Premier Dalton McGuinty can expect to find his election steps haunted by a group of parents who intend to make autism front and centre in the coming provincial campaign, which gets officially underway on Sept. 10.

Richmond Hill's Taline Sagharian, the mother of a 10-year-old son, told Sun Media last week this new group is determined to play a "very strong" advocacy role in the election, bringing the issue directly to the politicians on the hustings.

"It's a small group of families right now, but it's snowballing," she said. "It's going to be a new and different thing."

The group is in its infancy -- members are still choosing a name -- and it's debating a number of possible actions.

In particular, they're focusing on issues around Intensive Behavioural Intervention therapy (IBI): The long waiting list for government support, the gap between what the government pays and what the service actually costs, and the lack of IBI in public schools.

With these supports, children with autism can lead more rewarding and productive lives, Sagharian said.

Without access to this expensive but effective form of therapy, children with autism may face a bleaker future in even more costly group homes.

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WHAT THE LEADERS SAY

- Dalton McGuinty (Liberal): "I'd ask Ontarians to take a look at what we inherited and what we've done so far. There were no services available for children once they reached the age of six; they were cut off. That was a Tory policy. We've changed that. Furthermore, there were no services available in our schools. We've changed that as well. We've more than doubled the funding available for our children who are affected by autism." (Sept. 25, 2006)

- John Tory (PC): "We're going to do what we say we will do. Clear the waiting lists, respect parents, and give vulnerable children the support they need -- these steps will be job No. 1. People will be able to rely on my word." (Feb. 23, 2007)

- Howard Hampton (NDP): "Children with autism and their families need action, not buck-passing. They need someone to stand up for them and their kids. I am calling on Dalton McGuinty to do the right thing and extend IBI treatment to every child who needs it without delay. It's only fair." (June 27, 2007)

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Privilege Can Be Waived - McGuinty Government IS Fighting Children With Autism And Their Parents

The Promise Breaker


There are few privileges more sacrosanct in our common law heritage than that of solicitor-client privilege. It is a central element of our system of justice. It permits clients to share information vital to their case with their lawyers in confidence that the information will not be disclosed to opposing parties. Without such confidence it would be difficult for our legal system to function properly. The McGuinty government is advancing a powerful argument in its dispute with NDP MLA Shelley Martel and parents of autistic children seeking to know how much money the McGuinty government spent fighting the autistic children and their parents that Ontario Premier Dalton McGuinty had once, before becoming Premier, promised to help. But, privilege must be examined in the context of the case at issue. This case is about a government leader who turned his back upon, and fought with public monies, those he had once promised to help.

The lawyer for the Crown, the McGuinty government, is well within her rights, or more properly, her client's rights, to advance solicitor-client privilege as an argument in the Crown's case. She is wrong however, simply wrong, when she says that "This is not about fighting children with autism and their parents". That is exactly what this entire proceeding is about.

This case is about Dalton McGuinty, the candidate for Premier of Ontario who campaigned on a promise to help autistic children who, once wearing the Premier's Crown, broke his promise and went further. The "Honourable" Premier then turned his legal guns on the parents and autistic children he had promised to help. The Supreme Court of Canada in the Auton case effectively removed the Charter of Rights as a means of protecting the equality interests of autistic children. In Auton the SCC made it clear that governments, not courts, will decide whether autistic children will receive treatment for their condition. As weak as the Auton decision was in its characterization and understanding of autism and Applied Behavior Analysis, the decision was crystal clear on its central point - government decides how public monies will be spent.

Mr. McGuinty, once Premier, failed to keep his word. Instead of spending public funds on treating autistic children as he had promised, he and his government decided to spend public monies fighting autistic children and their parents in court to make sure they would NOT get the public funds for treatment he had once promised them. The fact is privilege, if it applies to disclosure of legal fees, which is not entirely clear, can be waived. The McGuinty government could waive the solicitor client privilege issue and disclose to the public and to the parents he had once promised to help the amount of public monies, in part at least the parents own monies, that he spent fighting them. As the SCC said in Auton governments decide how public monies will be spent. It is government which must also then be responsible to at least account for how they are spent.

Waiving privilege, being open with the public and with the parents of autistic children, is an option. Waiving privilege might disclose legal strategies. The strategies however would not seem all that important now that the Charter is no longer available to effectively help autistic children and other disadvantaged groups. The real issue is that waiver of privilege would almost certainly result in the disclosure of information embarrassing to Mr. McGuinty, the promise breaking Premier of Ontario.

The argument before the court IS about solicitor client privilege as the government lawyer argued. It is ALSO about political embarrassment. It is ALSO very much about fighting autistic children, and their parents, the very people Ontario Premier McGuinty had promised to help.



Families of autistic kids seek provincially funded treatment

NDP health critic asks: How much did Ontario `squander' on litigation?
Jun 19, 2007 04:30 AM

Tracey Tyler

LEGAL AFFAIRS REPORTER

Nancy Morrison re-mortgaged her home four times to pay for therapy for her 8-year-old autistic son.

At the same time, the Ontario government was waging a court battle against families seeking provincially-funded treatment for their autistic children.

"Our family has gone broke while the government has gone on fighting," she said.

That experience prompted Morrison to come from Bradford to the Divisional Court in Toronto yesterday to support NDP health critic Shelley Martel, who is trying to find out how much the Ontario government spent on legal fees contesting two lawsuits known as the Wynberg and Deskin cases.

Instead of "squandering" money on the litigation which ended earlier this year, the province should have funded therapy for autistic children, Martel contends.

She won the first round in April, when Ontario's Information and Privacy Commissioner ordered the attorney-general to disclose the total amounts spent on legal fees and disbursements in the cases.

But lawyers for the province were before the Divisional Court yesterday appealing that decision. "This is not about fighting children with autism and their parents," Crown counsel Kim Twohig argued.

The real issue is preserving the sanctity of solicitor-client privilege, which protects communications between a lawyer and client, including legal bills, she told Justices Dennis Lane, Sidney Lederman and Katherine Swinton.

Legal fees can reveal a lot, including trial strategies, the Crown contends. In the Wynberg and Deskin cases, for example, the attorney-general apportioned the cost of its legal services to various ministries – including education and long-term care – by assessing which ministries were at greatest risk of being held responsible for breaching the families' Charter rights, the court was told.

Crown counsel Sarah Wright argued that an astute observer or knowledgeable lawyer could use that information to "know where to catch the Crown flat-footed."

But Martel's lawyer, Frank Addario, said his client has been "extremely clear" that "she wants the totals" from the government's legal bills – "not the dates, time and information about who did what."

In the Wynberg and Deskin cases, about 30 families claimed the Ontario government was in breach of the Charter by failing to provide treatment programs for autistic children over age 6.

After the families won at trial in 2005, the government began funding therapy for older children, which continues even though the Ontario Court of Appeal overturned the trial judge's finding last year.

But treatment programs are not available in schools – a key issue in several ongoing cases, including two proposed class action lawsuits and 100 complaints now before the Ontario Human Rights Tribunal.

The court reserved its decision.

http://www.thestar.com/article/226868

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