Auton (Guardian ad litem of) v. British Columbia (Attorney General)

Connor Auton and his three co-petitioners were infant children suffering from autism. Applied Behavioral Analysis or Intensive Behavioral Intervention (ABA-IBI based therapy) was the only known, effective therapy for children with autism, although it remained a somewhat controversial and expensive treatment.

Neither the Medicare Protection Act, R.S.B.C. 1996, c. 286, nor the Canada Health Act, R.S.C. 1985, c. C-6 required funding of ABA-IBI based therapy, as both defined it as a non-core medical service.  While the government had announced an Autism Action Plan and an Autism Action Implementation Plan, it did not put in place funding for ABA/IBI therapy. It cited a number of reasons for this: mental health was part of the Ministry of Children and Families’ portfolio rather than the Ministry of Health’s portfolio; none of the relevant ministries had the financial concerns to fund the therapy and ABA-IBI therapy was an emergent and still-controversial treatment at the time of the decision.

Auton’s guardian sought an order for public funding of Lovaas therapy, a form of ABA-IBI based therapy. Auton claimed that denying funding for ABA-IBI therapy was a violation s. 15(1) of the Canadian Charter of Rights and Freedoms (the Charter, which guaranteed the equal benefit of law without discrimination based on disability. Both the trial judge and Court of Appeal found that denying ABA-IBI based therapy was discriminatory and not justified under s. 1 of the Charter. The state appealed, and Auton cross appealed, also alleging that the non-funding of ABA-IBI violated the right to life, liberty and security of person under s. 7 of the Charter

The Court held that the government had not infringed the petitioners’ equality rights under s.15 of the Charter. The petitioners had failed to demonstrate with an appropriate comparator case that they were denied a benefit in a discriminatory way.

It held this on the basis that there was no benefit that was denied. The legislation drew a distinction between “core” treatments delivered by doctors that were required to be funded, and “medically necessary” treatments delivered by other practictioners which were funded at the discretion of the Medical Services Commission. The law therefore did not guarantee funding for all medically required treatments.

Such under-inclusiveness did not amount to discrimination. The Court drew a distinction between this case and Eldridge v. British Columbia (Attorney General) [1997] 3 S.C.R. 624, where a failure to fund sign language interpreters was considered to violate s. 15(1). Eldridge had concerned the denial of existing benefits to a particular group, whereas in this case, the petitioners were seeking to extend the funding scheme into a benefit that the government would not legally need to provide. Nor was the under-inclusiveness discriminatory in its purpose or effect, as the discretion applied to all non-core treatments.

Even if ABA-IBI therapy had constituted a benefit, the petitioners were not disadvantaged compared to a comparator group. That comparator group would have been “a non-disabled person or a person suffering a disability other than a mental disability (here autism) seeking or receiving funding for a non-core therapy important for his or her present and future health, which is emergent and only recently becoming recognized as medically required” (para. 55). Compared to this comparator group, the petitioners could not be shown to be disadvantaged, as they could not show that other emerging non-core therapies for non-disabled persons had been funded while ABA-IBI therapy was not.

Finally, the Court dismissed the s. 7 claim, on the grounds that it had not been fully argued and that the petitioners had not identified principle of fundamental justice that had been breached. The Court therefore did not consider that it had an appropriate basis to declare the government in violation of s. 7 rights.

“The legislative scheme in the case at bar, namely the CHA and the MPA, does not have as its purpose the meeting of all medical needs. As discussed, its only promise is to provide full funding for core services, defined as physician-delivered services. Beyond this, the provinces may, within their discretion, offer specified non-core services. It is, by its very terms, a partial health plan. It follows that exclusion of particular non-core services cannot, without more, be viewed as an adverse distinction based on an enumerated ground. Rather, it is an anticipated feature of the legislative scheme. It follows that one cannot infer from the fact of exclusion of ABA/IBI therapy for autistic children from non-core benefits that this amounts to discrimination. There is no discrimination by effect.” Para. 43

“The comparators, as noted, must be like the claimants in all ways save for characteristics relating to the alleged ground of discrimination.  People receiving well-established non-core therapies are not in the same position as people claiming relatively new non-core benefits. Funding may be legitimately denied or delayed because of uncertainty about a program and administrative difficulties related to its recognition and implementation. This has nothing to do with the alleged ground of discrimination. It follows that comparison with those receiving established therapies is inapt.” 55.

“The issue, however, is not whether the government met the gold standard of scientific methodology, but whether it denied autistic people benefits it accorded to others in the same situation, save for mental disability. There is no evidence suggesting that the government’s approach to ABA/IBI therapy was different than its approach to other comparable, novel therapies for non-disabled persons or persons with a different type of disability. In the absence of such evidence, a finding of discrimination cannot be sustained.” Para 62.