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Medical Law - Autism-Related. Deskin v. Ontario
In Deskin v. Ontario (Div Court, 2023) the Divisional Court considered a JR against a provincial decision which "gave six months notice to the Applicants that payments for therapy that they had been receiving for 15 years for their autistic children (now adults) to fund Applied Behavioural Analysis (“ABA”) (also called Intensive Behavioural Intervention or “IBI”)".
In these quotes the court considers whether Charter s.7 ['life, liberty and security of the person'], 9 ['detention'] and 12 ['cruel and unusual treatment'] apply to the case:Analysis of Whether there was a Breach of Michael Deskin’s Charter rights under sections 7, 9 and 12
[107] Michael Deskin was an involuntary patient in the psychiatric ward of St. Joseph’s Hospital for approximately two weeks in November 2019 after which time the hospital determined that he was fit for discharge. Michael’s family did not accept the hospital’s discharge of Michael for the next 3 months, resulting in Michael remaining in hospital despite his suitability for discharge.
[108] The evidence is that had the Deskins been willing to consider a group home, it is very likely Michael would have had a residential placement by the time of the Decision. Michael’s admission to St. Joseph’s Hospital was subject to the processes under the Mental Health Act that have been found to conform with ss. 7, 9 and 12 of the Charter.[55] The Deskins did not attempt to arrange a transfer to a group home from the hospital through December 2019 and January 2020. Michael was also receiving 50 hours of ABA per week funded by the Ministry at the time he was involuntarily committed.
[109] It is not the case that any involuntary admission under the Mental Health Act or detention under the Criminal Code is unconstitutional. The necessary elements of such a claim have not been advanced. The Deskin Applicants cannot use this application for judicial review to launch a collateral attack on processes occurring under the Mental Health Act. Speculation regarding future admission or incarceration cannot ground their Charter claim.
[110] The Deskin Applicants rely on Canadian Doctors for Refugee Care v. Canada (Attorney General)[56] [Canadian Doctors] where the Federal Court held that the Government of Canada violated s. 12 rights when it withdrew healthcare coverage for certain categories of refugee claimants. The Deskin Applicants argue that the present case is similar, in that the province has withdrawn support for Michael, leaving him without treatment and facing the prospect of indefinite involuntary detention.
[111] The facts in Canadian Doctors are distinguishable from the situation in this matter. The impugned measures were specifically designed to encourage unsuccessful refugee claimants to leave the country quickly once their claims were rejected by denying them health benefits that were available to other refugee claimants, permanent residents and temporary foreign workers. In contrast, here, the Deskin Applicants are seeking to maintain discretionary funding that is not available to other eligible people.
[112] At issue in PHS[57] (which the Applicants rely upon in their submissions) was the Controlled Drugs and Substances Act (“CDSA”)[58] which prohibits possession and trafficking of controlled substances subject to an exemption at the discretion of the Minister of Health, for medical and scientific purposes. The Court found that the staff’s minimal involvement with clients’ drugs may bring them within the legal concept of illegal possession of drugs, contrary to s. 4(1) of the CDSA. As such, the availability of a penalty of imprisonment in ss. 4(3) to 4(6) of the CDSA engages the liberty interests of staff.[59] The threat to the liberty of the staff in turn impacts on the s. 7 rights of clients who seek the health services provided by the clinic.
[113] The Court in PHS found that the Minister’s decision not to grant an exemption to the lifesaving and health-protecting services offered at the drug clinic, in the special circumstances of this case, contravened the s. 7 rights of the claimants. The court held that where a decision made pursuant to valid legislation could subject a person to detention, it will engage their s. 7 Charter rights.[60] The court found that the Minister's exercise of their discretion violated the claimants’ Charter rights. The Court further held that: “The minister cannot simply deny an application for an exemption on the basis of policy simpliciter, insofar as it affects Charter rights, his decision must accord with the principles of fundamental justice.”[61]
[114] PHS is a very different fact scenario than this case. It falls within the dominant line of s. 7 cases dealing with a deprivation as a result of a person’s interaction with the criminal justice system. There is nothing in the CYFSA or SSPPDA comparable to the penalty of imprisonment and the discretion to exempt that the Court in PHS considered under the CDSA.
[115] The Deskin Applicants analogize Michael’s situation of being segregated from his family, community, and the rest of the hospital population when he was involuntarily detained to the circumstances in the case of Francis v. Ontario (Francis)[62]. In Francis, the Court considered the impact of administrative segregation on the Seriously Mentally Ill (“SMI”) Inmates defined as those that manifested themselves in significant impairments and/or chronic and severe suicidal ideation or self-injury. The Court of Appeal affirmed the motion judge’s finding that the s. 7 and s. 12 Charter rights of the SMI Inmates were breached when those inmates were placed in administrative segregation.
[116] Michael Deskin’s situation when at St. Joseph’s Hospital cannot be analogized to the administrative segregation in Francis. The evidence is that the family took steps to have Michael admitted to the hospital and then he remained for a longer period after the hospital was ready to discharge him because the family refused the discharge. Rather than being administratively segregated, the evidence is that he had day and night care including some of the ABA team that had supported him in the past.
[117] The Deskin Applicants have not established that Michael’s Charter rights were breached. As a result, it is unnecessary to consider whether the Decision comports with the principles of fundamental justice. Had I found a Charter breach, I nevertheless would have found that the discontinuation of the Funding and transition to mainstream services reasonably furthers, and is proportionate to, the objectives of promoting equity and transparency in access to publicly funded services. It therefore comports with the principles of fundamental justice. . Deskin v. Ontario
In Deskin v. Ontario (Div Court, 2023) the Divisional Court considered a JR against a provincial decision which "gave six months notice to the Applicants that payments for therapy that they had been receiving for 15 years for their autistic children (now adults) to fund Applied Behavioural Analysis (“ABA”) (also called Intensive Behavioural Intervention or “IBI”)".
In these quotes the court considers Charter s.7 ['life, liberty and security of the person'] arguments in favour of the funding:[87] Section 7 of the Charter requires that laws or state actions that interfere with life, liberty or security of the person conform with the principles of fundamental justice. The analysis proceeds in two steps: (1) is there a deprivation of one of life, liberty or security of the person? and (2) if so, is the deprivation in accordance with the principles of fundamental justice?[30]
Applicants’ Submissions on s. 7
[88] The Applicants submit that the liberty interest of the young Applicants is engaged because without ABA, it is likely that they could not make “inherently private choices” and puts at risk the ability to live a safe and dignified life.
[89] The Applicants submit that their security was breached in the following ways:1) Cutting off of the Funding returned the young Applicants to lives full of danger as submitted above;
2) Cutting off the Funding caused the parent Applicants to suffer a number of adverse health consequences, as delineated above. s. 7 Analysis
[90] In dismissing the plaintiffs’ s. 7 argument in Wynberg, the Court of Appeal held:[T]he existing jurisprudence does not permit us to interpret s. 7 of the Charter as imposing a constitutional obligation on the appellant to ensure that every school-age autistic child has access to specific educational services…In this case, the appellant has chosen to provide the IEIP to children up to the age of six. We have concluded that this choice, standing alone, does not create a constitutional obligation on the appellant to provide the same or similar programming on a more widespread basis.[31] [91] The Court of Appeal in Wynberg found that the plaintiffs had not shown that they had been denied appropriate services to which they were entitled because they were not provided with IBI consistent with the IEIP Guidelines.[32] It found that while many if not most parents of autistic children will be unable to afford to purchase such services for their children, there nevertheless was no state deprivation because there was no law restricting the applicants’ ability to do so.[33]
[92] The caselaw is clear that s. 7 of the Charter does not confer a constitutional right to a certain level of funding for health or social benefits. The Applicants are either accessing, or have been given the opportunity to access, services, supports and/or funding through the mainstream adult developmental services system.
[93] The guarantee under s. 7 is often engaged in connection with “the state's conduct in the course of enforcing and securing compliance with the law.”[34] In rare circumstances, the courts have extended s. 7 rights to legislation or government action unrelated to adjudicative or administrative proceedings. However, in those instances, the law or government action at issue has consisted of a state compulsion or prohibition that threatens the rights to life, liberty or security of the person (e.g. a state prohibition on obtaining private medical insurance,[35] a state prohibition of activities that increase the safety of legal prostitution,[36] a state prohibition on the erection of temporary overhead shelters overnight).[37] No case has recognized a positive constitutional requirement for state funding to pay for services available to purchase.
[94] It is well-established that the protection offered by s. 7 does not “include and require provision for the economic satisfaction of basic human needs.”[38] Nor does it include a right to access services that the state does not publicly fund.[39] Where the state chooses to provide a service, s. 7 does not impose a required level: “[n]othing in the existing jurisprudence suggests that s. 7 places a positive obligation on the state to ensure that each person enjoys life, liberty, and security of the person. Rather, s. 7 has been interpreted as restricting the state's ability to deprive people of these.”[40]
[95] Courts have consistently rejected claims under s. 7 for more or different government provided funding, social and/or health services. In Flora v. Ontario (Health Insurance Plan), the Ontario Court of Appeal upheld the province’s refusal to reimburse Mr. Flora for a life-saving liver transplant he received outside of Canada.[41] As in Wynberg, the Court held that Charter s. 7 does not impose a constitutional obligation on government to fund or allocate more funding to medical treatments beyond those already covered by the province's health insurance scheme.[42] This was so despite the undisputed findings that the treatment Mr. Flora received outside of Canada was unavailable in Ontario and was required to save his life.[43]
[96] In Sagharian v. Ontario (Education), the Court of Appeal struck out a s. 7 Charter challenge to the provision of autism and education services to children in Ontario as having no reasonable prospect of success. The Court held that the alleged deficiencies in Ontario's provision of services for school-aged children with autism – namely, wait times for ABA services and the alleged lack of ABA services in public school settings – had no reasonable prospect of forming the basis of a s. 7 Charter claim.[44]
[97] Additional lower court decisions confirm that s. 7 of the Charter does not place a positive obligation on the state to ensure that each person enjoys a particular standard of life, liberty or security of the person. This includes where the government previously offered a certain level or kind of service or funding to eligible persons and subsequently reduces or changes the benefit.[45]
[98] The Court of Appeal’s recent decision in Leroux v. Ontario[46] has not expanded s. 7 of the Charter. The Court affirmed the decision to certify a class action, meaning only that the s. 7 claims were not "doomed to fail." The proposed representative plaintiff was assessed under the mainstream adult developmental services system but had not received any supports for which she was approved. The Court concluded the class “may be able to make out a s. 7 deprivation that stems from delay in receiving essential financial benefits for which they are statutorily entitled.”[47] It was this aspect of the s. 7 claim that the Court said might not be doomed to fail, although the Court doubted the prospects for the claim's success on the merits. The present case is being adjudicated on the merits, not on the test for a motion to strike or for certification of a class proceeding.
[99] The present situation is distinguishable from Leroux. Many of the Applicants who applied for mainstream services have received supports and funding through that system. Other Applicants have not applied for mainstream services. The Charter submissions set out at paragraphs 121-131 of the Applicants Save Deskin factum make it clear that they are dissatisfied with the level and kinds of service available within the mainstream adult developmental system. This is the kind of claim that the Court of Appeal in Leroux would have dismissed as doomed to fail.[48]
[100] With respect to the Applicant parents' claim that their Charter rights were infringed by the alleged need to increase their work hours, take time off, retire early or resign their jobs as a result of the Funding being discontinued, courts have long held there is no s. 7 Charter right to work or to practice a profession. [49]
[101] There was no breach of the Applicants’ s. 7 Charter rights. . Deskin v. Ontario
In Deskin v. Ontario (Div Court, 2023) the Divisional Court considered a JR against a provincial decision which "gave six months notice to the Applicants that payments for therapy that they had been receiving for 15 years for their autistic children (now adults) to fund Applied Behavioural Analysis (“ABA”) (also called Intensive Behavioural Intervention or “IBI”)".
These quotes consider the non-Charter JR-'justiciability' of this issue, which was decided against the applicants on the basis that the decision was not one grounded in a 'statutory power of decision' (neither the predecessor CFSA nor the current CYFSA), but was rather a common law government funding/spending decision which not not judicially-reviewable:[22] It is the position of the Applicants that the Funding was made under statute, first the Child and Family Services Act, R.S.O. 1990, c. C.11 (“CFSA”) and then the replacement legislation, the Child, Youth and Family Services Act, 2017, S.O.2017, c.14, Sched. 1 (“CYFSA”). Ontario’s position is that the Funding was not granted pursuant to the authority of any statute or contract. Rather, the funding was made by the Ministry under the Crown’s common law spending power, described as “the authority to do anything that it is not legally prohibited from doing.”[7]
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Issue 1: Is the Judicial Review Application, apart from the Charter Claims, Justiciable?
[55] At the hearing, we made a ruling with reasons to follow that apart from the Charter claims, the judicial review application was not justiciable. These are the reasons on the issue of justiciability.
[56] The Applicants submit that the decision is justiciable because the funding was authorized by and developed under statute, in this case s. 7 of the CFSA and then s. 25 of the CYFSA”. They rely on Ministry financial accounts that indicate that the court-ordered funding is a special service within the legislation. They argue that the letter of August 30, 2006 “makes promises that echo in the statutory language.”
[57] Section 7 of the CFSA provides:Provision of services directly or by purchase
s. 7 (1) The Minister may,
(a) provide services and establish, operate and maintain facilities for the provision of services; and
(b) make agreements with persons, municipalities and agencies for the provision of services,
and may make payments for those services and facilities out of legislative appropriations.
Grants and contributions for services, consultation, etc.
(2) The Minister may make grants and contributions, out of legislative appropriations, to any person, organization or municipality for consultation, research and evaluation with respect to services and for the provision of services. [58] Sections 25 the CYFSA provides:Provision of services directly or by others
s. 25 The Minister may,
(a) provide services;
(b) establish, operate and maintain premises for the provision of services;
(c) provide funding, pursuant to agreements, to persons, agencies, municipalities, organizations and other prescribed entities,
(i) for the provision or coordination of services by them,
(ii) for the acquisition, maintenance or operation of premises used for the provision or coordination of services,
(iii) for the establishment of advisory groups or committees with respect to services,
(iv) for research, evaluation, planning, development, co-ordination or redesign with respect to services,
(v) for any other prescribed purpose; and
(d) provide funding, pursuant to agreements, to lead agencies with respect to the performance of the functions referred to in subsection 30(5). [59] There is nothing in s. 7 of the CFSA or s. 25 of the CYFSA that requires Ontario to provide funding for ABA to the Applicants. Absent bad faith or an improper purpose, the funding decisions of the government are “political” (i.e., policy-based and discretionary), not judicial or “quasi-judicial”, and do not attract judicial review (except under the Charter).[8]
[60] The Applicants submit that the Funding was a stopgap measure and an operational step which was intended to bridge the gap until the parties transitioned into mainstream adult services which then lingered on. They argue that this was not a core policy decision (and therefore arguably not justiciable) because it affected a small group of vulnerable individuals who could not effectively seek redress at the ballot box and it is therefore justiciable. They rely on the factors set out by the Supreme Court of Canada in Nelson v. Marchi, and recently applied by the Court of Appeal for Ontario in Leroux v. Ontario, to argue that “Crown Immunity does not apply.”[9]
[61] Those cases dealt with whether a governmental decision is a “core policy decision” immune from liability in negligence, not whether a decision is susceptible to public law remedies such as certiorari. They are distinct legal frameworks. The “core policy” analysis forms part of the second stage of the Anns/Cooper test for liability in negligence. It has no bearing on an application for judicial review.[10]
[62] In Wise Elephant Family Health Team v. Ontario[11], this court held that a decision to terminate a health clinic’s funding agreement was not justiciable. It cited Paine v. University of Toronto (1981), 1981 CanLII 1921 (ON CA), 34 O.R. (2d) 770 (C.A.), at p. 722:It is not enough that the impugned decision be made in the exercise of a power conferred by or under a statute; it … must be a specific power or right to make the very decision in issue. [63] Section 25 of the CYFSA or section 7 of its predecessor legislation, the CFSA, empowers the Minister to provide services and to provide funding pursuant to “agreements”. There is no specific power or right to provide funding for ABA.
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[67] In Hamilton-Wentworth v. Ontario, the Divisional Court held that it is not for the court to oversee the Crown in its discretionary expenditure of public funds. Rather, funding decisions are political, and not judicial, issues.[13] In that case, the government of Ontario made a commitment to the City of Hamilton to contribute 70 per cent of the cost to construct the Red Hill Valley Parkway. The funding allocation was a special commitment outside the Ministry’s normal allocation for the construction and maintenance of existing roads.[14] No contract was signed, but construction was started, and funding provided. In 1990, a new provincial government was elected that declined to continue funding the construction.
[68] On judicial review, the Court held that “the government has the right to order its priorities and direct its fiscal resources towards those initiatives or programs which are most compatible with the policy decisions guiding that particular government’s action. This was simply a statement of funding policy and priorities and not the exercise of a statutory power of decision attracting judicial review.”[15] As a funding decision that was not subject to judicial review, the court had no authority to direct the government to expend funds in any particular way, nor was an undertaking to provide funding binding on future governments.[16]
[69] The principles in Hamilton-Wentworth have been applied in a variety of cases concerning child welfare and the funding of services for persons with disabilities.
[70] Bowman v. Ontario[17] dealt with Ontario’s decision to wind down a pilot project for basic income just one year into the three-year program the prior government had promised. The applicants in that case applied for judicial review, arguing that the decision to cancel the program "had a devastating impact on them and ... as a result of the cancellation, their futures are in jeopardy, their health has suffered, and their futures are uncertain."[18] The applicants in Bowman acknowledged that no legal authority required Ontario to continue funding the project, but argued that cancelling it adversely affected their well-being and that they had relied on the project to their detriment.[19]
[71] The Divisional Court held that the decision to wind down the project was not judicially reviewable, because courts have no authority to review funding decisions. The responsibility for the management of public funds rests with the government and not the court, as does the correctness of the government's decisions and policies. Moreover, the fact that funds were provided in the past does not mean government must continue to offer the same level of service, nor does the decision to reduce or eliminate funding alone create enforceable rights.[20]
[72] In Children’s Aid Society of Huron-Perth, a collection of Children’s Aid Societies (“CAS”) challenged a government decision to reduce funding to the group of CAS. The Court dismissed the application for judicial review, holding that "the government has a right to allocate public funds as it sees fit, and the exercise of that right cannot be the subject of judicial review in the absence of bad faith or for an improper purpose."[21]
[73] Similarly, in Shah v. Ontario, an adult with autism and other developmental disabilities sought judicial review of a Ministry decision not to grant additional funding so that he could live at home. Endorsing the approach of the Court in Hamilton-Wentworth, the Court held that funding decisions were a "question of allocation of scarce resources among the developmentally handicapped persons in the region" and were "not amenable to judicial review."[22]
[74] Likewise, in Kuki v. Ontario, the Ministry of Training, Colleges and Universities had established a skills training program for unemployed individuals. The Court held that the Crown has the authority to establish programs for the benefit of the public as it sees fit, and that programs created outside of statutory authority were not reviewable by the courts.[23] Furthermore, the decision of the Ministry to define eligibility under the program was not reviewable as it was a decision for the disbursement of public funds.[24]
[75] In Metropolitan General Hospital, on judicial review, the Court declined to order the Minister of Health to reinstate funding for hospital beds stating:10. It follows and has been long held that a Minster cannot be required by mandamus or otherwise to make a particular expenditure ...
13. ... The Minister has filed much material to justify the merits of his decision but I make no comment upon it or upon the case presented by the applicant because in my view it is not for me or any Court to oversee the Minister in his policy decisions or in the exercise of his discretion in the expenditure of public funds entrusted to his Department by the Legislature...the wisdom of the decision can never be the subject of judicial review. It is a political and not a judicial problem. [25] [76] The decision in Hamilton-Wentworth and the decisions which have applied it are the appropriate authorities to consider in this case. I disagree with the Deskin Applicants’ submission that Tesla Motors Canada ULC v. Ontario (Ministry of Transportation) [Tesla][26] supports the justiciability of the Decision. Tesla confirms that purely political matters like a decision to cancel a subsidy program are not subject to judicial review. A cabinet decision to exclude Tesla from the program was found to be justiciable due to bad faith in singling out Tesla to be excluded without providing any opportunity to be heard or any fair procedure whatsoever. These facts are distinguishable from the facts in this case where bad faith is not alleged.
[77] Here, after the Ontario Court of Appeal in Wynberg dismissed the Applicants’ claims, the Ministry undertook during the transition to adult mainstream services to temporarily continue the funding they had been receiving pursuant to the interlocutory court order. The Funding was not mandated under any statute. The general provisions of the CFSA or the CYFSA cited by the Applicants do not require that the Minister maintain the Funding for the Applicants. Rather, the Funding was a discretionary expenditure outside the Ministry’s normal allocation for adult developmental disabilities, not the exercise of a statutory power of decision attracting judicial review. The decision to reduce or eliminate funding alone does not create enforceable rights.[27]
[78] The government has the right to order its priorities and direct its fiscal resources towards those initiatives or programs which are most compatible with the policy decisions guiding that particular government’s action. In these circumstances, the court has no authority to direct the government to expend funds in any particular way. Absent bad faith or an improper purpose which is not alleged or supported by the evidence, Ontario’s Decision to discontinue the Funding (apart from the Charter claims discussed below) is not justiciable. . Deskin v. Ontario
In Deskin v. Ontario (Div Court, 2023) the Divisional Court considered a JR against a provincial decision which "gave six months notice to the Applicants that payments for therapy that they had been receiving for 15 years for their autistic children (now adults) to fund Applied Behavioural Analysis (“ABA”) (also called Intensive Behavioural Intervention or “IBI”)".
These quotes contain a useful history of autism-related litigation in Ontario, both historical and current, starting with the Wynberg v Ontario litigation:The Wynberg v. Ontario litigation
[15] This application for judicial review arises from a 15-year long history of funding arrangements. In the early 2000s, the Applicant families were among a broader group of plaintiffs who brought a constitutional challenge to the age 6 eligibility limit for the then-existing Early Intervention Program (“IEIP”), which provided ABA/IBI to children diagnosed with autism. ABA is an established, scientific, evidence-based approach widely regarded as an effective treatment for individuals with autism. IEIP is now called the Ontario Autism Program (“OAP”) and is funded by the Ministry of Children, Community and Social Services to children up to the age of 18.
[16] During the trial of their action, the families obtained an interlocutory order in Superior Court requiring Ontario to pay the costs of therapy for their children, pending the outcome of the trial. The funding was primarily used to provide ABA with one, or in some cases two, caregivers per child for up to 40 hours per week.[4] This arrangement continued after the plaintiffs were successful at trial, the trial judge holding the age 6 limit to unjustifiably breach s. 15 of the Charter.
[17] This litigation culminated in 2006, when the Ontario Court of Appeal in Wynberg v Ontario[5] dismissed the families’ constitutional challenge, holding that the government was entitled to design and fund a program specifically targeted to benefit the unique needs and capacities of children with autism at a particular age, and that the IEIP's age eligibility criteria were not discriminatory under the Charter. The families’ cross-appeal in which they argued that the discontinuation of funding infringed s. 7 of the Charter was also dismissed by the Court of Appeal. The Supreme Court of Canada denied leave to appeal.[6]
The Funding
[18] Ontario's court-ordered obligations to fund the Applicants' therapy came to an end once the Court of Appeal granted Ontario's appeal on July 7, 2006, and set aside the trial judgement. However, the government continued to provide the families with direct funding to cover the cost of these services (“the Funding”).
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Nature of the Funding
[22] It is the position of the Applicants that the Funding was made under statute, first the Child and Family Services Act, R.S.O. 1990, c. C.11 (“CFSA”) and then the replacement legislation, the Child, Youth and Family Services Act, 2017, S.O.2017, c.14, Sched. 1 (“CYFSA”). Ontario’s position is that the Funding was not granted pursuant to the authority of any statute or contract. Rather, the funding was made by the Ministry under the Crown’s common law spending power, described as “the authority to do anything that it is not legally prohibited from doing.”[7]
[23] Services to persons with developmental disabilities in Ontario are divided into children’s and adult sectors with the dividing line being age 18. The Funding ultimately continued past the young Applicant’s 18th birthdays. They are now all adults in their late-20s and early 30s. The Applicant Families have used the Funding to continue to provide ABA/IBI programs for their adult children.
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Notice of Discontinuation of Funding and Transition to Mainstream Services
[29] On February 5, 2019, the Ministry wrote to the Applicant families to provide six months' notice that the Funding would be discontinued, inviting them to contact their local Developmental Services Ontario office (“DSO”) regarding eligibility for mainstream services (the "Decision"). DSOs are independent agencies that serve as the single access point and system manager for all mainstream, Ministry funded adult developmental services and supports ("mainstream services").
[30] Ontario points out that the Decision was not a termination of all funding, but a decision of the Minister that the Applicants would need to transition to the mainstream services for which they are eligible. It made no determination as to what funding or services would ultimately be available to the Applicants when using the same DSO application and prioritization process that applies to all other eligible adults in Ontario.
Temporary Reinstatement of Funding on Consent
[31] The Ministry discontinued the Funding as of August 7, 2019. While Ontario historically provided discretionary funding to some families outside of the mainstream programming, the Ministry no longer makes these special arrangements, focusing now on prioritizing equity and transparency in access to publicly funded services. On November 19, 2019, nine months following the Ministry's transition notice and three months after the Funding ceased, this application for judicial review was issued. The Applicants also brought a motion for interlocutory relief seeking the temporary reinstatement of the Funding pending the determination of this application on the merits. The Funding was restored on consent in December 2019, retroactive to the date funding was discontinued and until such time as this court releases its decision. The Funding has now continued for approximately four and a half years since the Ministry provided notice.
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