This case concerned the rights of children with autism to receive funded therapeutic health services.  

LEAF, with the involvement of West Coast LEAF and in partnership with the DisAbled Women’s Network Canada (DAWN), intervened before the Supreme Court of Canada. 

Facts 

A number of children with autism brought an action against the British Columbia government. They argued that the government’s failure to fund applied behavioural therapy for autism violated their rightsunder s. 15 of the Charter. Prior to the trial, the government funded some programs for children with autism, but did not fund a type of therapy called ABA/IBI therapy for all children with autism between the ages of three and six.  

The trial judge found that there had been a violation of s. 15, and ordered the government to fund the therapy. The British Columbia Court of Appeal upheld that decision. The British Columbia government appealed to the Supreme Court of Canada. 

Arguments 

LEAF and DAWN argued that the refusal to provide autism-related health services violated s. 15 of theCharter. The health system, which prioritized services from hospitals and doctors, primarily met the typical needs of persons without disabilities. The failure to fund autism-related health services treated children with autism as second class, contributing to their oppression. The impact of this discrimination was compounded for women and girls with autism.  

Services needed to instead be provided on a non-discriminatory basis, in accordance with substantive equality. This would mean: 

• Responding to different needs in a contextual manner, and not simply treating the dominant non-disabled perspective as the norm 
• Designing government policy to promote inclusion without forcing people with disabilities to be the same as people without disabilities 
• Considering and listening to the voices of those with lived experiences 
• Committing to non-violent and non-coercive programs 
• Committing financial and other resources in an equitable way 

Outcome 

The Supreme Court of Canada held that the government had not violated the children’s s. 15 equality rights. The legislation was only a partial health plan, and the exclusion of non-core services could not, without more evidence of discrimination, be seen as discriminatory. There was no evidence that the government had taken a different approach to funding the therapy than it had for other comparable therapies for persons without disabilities or persons with different disabilities. As a result, the Court allowed the appeal.  

LEAF is grateful to Dianne Pothier and Fiona Sampson, counsel in this case. 

Download the factum here.

Read the Supreme Court of Canada’s decision here. 

Our records are imperfect, but we are doing our best to update them – if you were involved with LEAF on this case but your name is not reflected here, please email us at [email protected].