Wednesday, November 08, 2006


YAHOOOOOOOOOOOOOOOOOOOOOOOOO!!! The families in the Deskin Wynberg case will seek leave to appeal to the Supreme Court of Canada.



Thirty five Ontario children affected by a Court of Appeal decision are taking their case to the Supreme Court of Canada. The families, who had won their case at trial, say that the Ontario Court of Appeal made several errors in its judgment this summer.

In papers filed with the Supreme Court of Canada, the families say the Court of Appeal was wrong to reject their claim that Ontario discriminated against their children on the basis of age and disability. The families say that the Court of Appeal was wrong to overrule the factual findings of the trial judge and that the Court of Appeal was wrong to find that the government’s discrimination was justified by budgetary concerns.

In their written application to the Supreme Court of Canada, the families set out the following specific grounds:

(1) Did the province’s failure to provide intensive behavioural intervention to school-aged children—where it has decided to provide such intervention for pre-school aged children—violate the equality rights of the infant claimants on the basis of age or disability?

(2) Can a province use age as a marker to determine the end of eligibility for a service when scientific evidence emphasizes the need for individual clinical determinations of when to cease provision of the service?

(3) Must a claimant prove the existence of a separate stereotype pertaining to his or her age group when that group is shown to suffer from continuing application of a stereotype about a broader group, which is no longer applied to a small age-identified segment of the broader group which does not include the claimant?

(4) What factors will take a putative targeted ameliorative program out of the protection of Lovelace?

(5) Should a claimant be granted leave to adduce new evidence on the comparator group when the Court decides to use a different comparator from that advanced by the claimant?

(6) Are the liberty and security of the person of the claimants under section 7 engaged where the state intervenes to provide a service, which impacts on the dignity, autonomy, and ability of an individual to participate in society, and then withdraws that service in a way harmful to the claimants?

(7) Do the tests set out in Housen and H.L. apply to the appellate review of a trial judge’s factual findings in Charter claims, and do the reasons of the plurality of this Court in Chaoulli v. Quebec (Attorney General) leave open the question whether a different standard applies in the Charter context for appellate review of finding of fact?

(8) Do claimants alleging adverse effects discrimination need to present systemic data and statistics or is it sufficient to ground their claim in evidence of how legislation or government action affects them through their own viva voce testimony and through the evidence of expert witnesses?

(9) Under what circumstances can the government rely on the allocation of scarce resources as a justification for a Charter infringement arising from the exclusion of a disadvantaged group from an ameliorative program?

(10) Can the executive rely on its own structural barriers in order to defend against a constitutionally mandated duty?

(11) Should section 1 be available as a matter of course to justify a breach of the Charter arising from government action under a statute conferring discretion, even where the executive has not complied with the guiding principles of the statute?

(12) Is it appropriate to combine declaratory relief and an award of discrete special damages for unconstitutional governmental action (as distinct from legislation) under section 24(1) of the Charter?


These cases were tried before Justice Kitely at the Ontario Superior Court of Justice between April, 2003 and March, 2005. On March 30, 2005, the trial judge issued a 200-page judgment finding that Ontario had discriminated against these autistic children. The government challenged the decision in the Court of Appeal. The appeal was argued in the Court of Appeal for a week in December, 2005. The Court of Appeal released its reasons on July 7, 2006 agreeing with the government and overturning the trial judge’s decision.

On November 8, 2006, the families filed their application for leave to appeal to the Supreme Court of Canada. In the normal course, the Government of Ontario will have 30 days to file its written response.

The Supreme Court of Canada will consider whether to hear the case based on the written materials. There is no timetable for the release of the Supreme Court of Canada’s decision on the leave request, but typically such applications are dealt with within 3 to 6 months of their submission to the Court.

The families are represented by:

Stockwoods LLP
The Sun Life Tower
150 King Street West, Suite 2512
Toronto, ON M5H 1J9

Scott C. Hutchison
Owen M. Rees

Tel: 416-593-7200
Fax: 416-593-9345

Counsel for the Deskin Family

Law Office of Mary Eberts

P.O. Box 19047
Station Walmer

Toronto, ON M5S 1X1

Mary Eberts
Kasari Govender
Tel: 416-966-0404

Fax: 416-966-2999

Counsel for the Wynberg Families

For further information, contact:

Brenda Deskin
Tel: (289) 439-6003

For the Deskin Family

Tammy Starr
Tel : (416) 488-1764
Cell: (416) 407-7819

For the Wynberg Families

1 comment:

Maddy said...

I'll just pop that in my 'forward diary' for six months time then. Cheers.