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Charter - Human Rights Code (HRC). A.H. as represented by their litigation guardian G.H. v. Ontario (Minister of Children, Community, and Social Services)
In A.H. as represented by their litigation guardian G.H. v. Ontario (Minister of Children, Community, and Social Services) (Ont Divisional Ct, 2025) the Divisional Court allowed a JR, here against an order that dismissed an HRTO claim involving an autistic child alleging age and disability discrimination.
This decision raises the interesting, and as far as I can tell novel, issue of a Charter challenge to an HRC provision - here a Charter s.15 'age' discrimination challenge to the OHRC's s.10 definition of 'age', the latter of which excludes people under 18 years of age but the former doesn't. The court is quite critical of the OHRT's treatment of the issue [paras 27-35], and remits to case back down for 'resolution'. The only doctrine I can glean from it is that courts may deem such cases unorthodox (reasoning that such cases could be brought as a Charter s.15 only, implicitly without prejudice: paras 22-23), but the venue decision was up to the claimant/s and that there was no absolute bar to such a proceeding (which I fully agree with, if only as a matter of tactical autonomy) - though in this case (a JR) it could be subject to JR discretion whether to proceed [JRPA s.2(1)] or grant a remedy [JRPA s.2(5)]:Discrimination based on Age
[14] A.H. challenged the declining caps in both the Childhood Budget and Core Clinical Services funding models of the Ontario Autism Program based on age. In the Childhood Budget approach, children over age six were entitled to less than children under age six who suffered comparable symptoms from their Autism Spectrum Disorder. The later Core Clinical Services model introduced funding cap decreases at ages four, ten, and fifteen without exception.
[15] In addition, as A.H.’s benefits were frozen from 2019 to 2023, A.H. claimed that existing but now frozen funding recipients were precluded from obtaining needed funding by reason of their ages.
[16] A.H. submitted that the decrease in funding caps based on age alone is impermissible age discrimination. A.H. submitted that in this particular case, A.H.’s need for funding increased with age due to comorbidities from which A.H. suffers. A.H. claimed that funding recipients should be able to apply for greater funding despite the caps applicable to children of their respective ages.
[17] At first blush it appears that A.H.’s claim for age discrimination is precluded by s. 10 of the Code.
[18] Section 10 of the Code defines “age” for the purposes of the statute as “18 years or more.” This precludes children who claim entitlement to funding from challenging the new funding programs for age discrimination under the Code. The is both because they are under 18 and because the distinctions made in funding cap levels are not included within the protected range of “age” under the Code.
[19] Where the Human Rights Code allows for claims by minors it says so expressly. For example, subsection 4 (2) of the Code provides that a contract for accommodation entered into by a 16- or 17-year-old person who has withdrawn from parental control is enforceable as if the person were 18 years old.
[20] There is no similar provision that would apply to allow A.H. to make the age discrimination claims advanced below. Therefore s. 10 of the Code appears to stand in the way of A.H.’s claim.
[21] As a result, A.H. challenged the constitutionality of s. 10 of the Code under s. 15 of the Charter of Rights. The Charter prohibits discrimination on the basis of age without the minimum age of 18 limitation contained in the Code. A.H. submitted that s. 10 is invalid under the Charter, so that A.H. and the other applicants should be entitled to challenge the funding programs under the age discrimination provisions of the Code without limitation by the minimum age in s. 10.
[22] This seems like a rather tortured path to traverse when A.H. and the other applicants remained free to challenge the government funding programs for age discrimination under s. 15 of the Charter itself. But it is an important principle in our civil justice system that litigants are entitled to choose the basis upon which they bring a legal proceeding provided that they state a justiciable claim in a court of competent jurisdiction.
[23] The corollary of a person’s right to make a claim that states a proper cause of action is that litigants who bring a proper claim to a court or tribunal are entitled to have a decision made on their claim. This applies with particular force to claims involving one’s rights under the Charter.
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