Human Rights Tribunal Application file no. 2009-04401-I
Between Sebastian Bunda (by his next friend Maria Bunda) and Hamilton Health Sciences Corporation (Hamilton-Niagara Autism Intervention Program) and Jo-Ann Reitzel.
Background and summary of Maria Bunda's case:
Sebastian Bunda, the seven year old son of Maria Bunda, was diagnosed with severe autism when he was two, and had been receiving IBI (intensive behavioural intervention) therapy at the Behavioural Institute Children's College in Toronto, funded by Hamilton Health Sciences Corporation, for eighteen months before the decision to discharge him was made in Nov. 2008. This decision was based on the fact that he did not progress as quickly as those children whose disorder was not as severe. Sebastian has a learning disability that has never been shown to be anything other than a result of his severe autism. Due to systemic pressures that involve long waiting lists for receipt of services and a lack of trained doctors and therapists, there is pressure on the government to open up spaces in autism therapy programs, and thus to develop legislation like the Continuation Criteria to generate these spaces by discharging children currently receiving government-funded therapy. However, the claim made in Sebastian's discharge papers that “IBI has not been effective in changing his rate of learning in the 18 months he has had IBI” (pg. 5) is demonstrably false: Sebastian actually made a 89% improvement in this period. His discharge report itself states that “Sebastian is continuing to learn some early learning skills, and the skills are meaningful and important for the development of his functional communication and living abilities and behaviour” (ibid). The fact that Sebastian's development “remains in the Low range of functioning for his age” (ibid) is the result of his severe disability. The stated purpose of IBI therapy “to change a child's developmental trajectories” (ibid) was, in fact, being accomplished in Sebastian's case, but this progress was not deemed sufficient due to the indirect discrimination against severely autistic children that is built into the Continuation Criteria.
We thus challenge the Ontario government's uniform application of the Continuation Criteria to the extent that it does not take into account the different levels of impairment suffered by children with autism-spectrum disorders, and thus indirectly discriminates against those children with more severe disorders. By requiring greater improvement from severely autistic children than is asked of less disabled kids, the Continuation Criteria generate a disproportionately negative impact on those children who might be seen as needing this therapy most. To give just one example, the Continuation Criteria states that, to continue receiving funded therapy, the child's IQ must be measured as greater than 85 (2009, pg. 9). Because the government bases its criteria on specific levels of functioning rather than the margin of improvement shown, children who are yet making improvement are being discharged from IBI programs due to their severe level of disability.
It is our claim that, by failing to account for the different levels of disability of children within the autism-spectrum disorder, the Ontario government's Continuation Criteria ask for a disproportionate amount of improvement from children who, like Sebastian, have a more severe level of disability, and that this constitutes a case of indirect discrimination that violates Part I sections one and nine, and Part II section eleven of the Human Rights Code.
We show that:
Sebastian was benefiting from the IBI therapy at the Children's College: At the time of his discharge decisoin he had made an 89% improvement in functioning in 18 months.
1.1) Between the date of his discharge decision (Nov. 2008) and the beginning of his transition period (Oct. 2009), Sebastian continuted to receive full IBI therapy program at the Children's College. During this time he continued to make a marked improvement in several areas of functioning.
1.2) During the period of transition (Oct.2009-2010) to a public school, Sebastian continued to improve, but not at as fast a rate. During this time he was receiving reduced allotments of IBI (6 weeks of 3 days of IBI, 2 days of regular school; 6 weeks of 2 days of IBI, 3 days at school; 1 week of full time at public school with 1visit from a senior IBI therapist.)
1.3) Since Sebastian has been full time in public school, his progress is not monitored or charted. It is thus not possible to quantify the amount of progress he has made or failed to make. But the demands on him to learn new skills have dramatically decreased due to his new, relaxed environment.
Our case is significantly different from preceding claims of discrimination in the provision of therapy for autistic children:
2.1) The case of Auton vs. British Columbia (2004) focused on the question of whether autism therapy should be funded by the government or not. We are not disputing this question, but only whether it was an act of discrimination to discharge Sebastian from therapy for which he had already qualified under existing legislation.
2.2) In the case of Wynberg vs. Ontario (2006), the dispute centred upon the fact of whether discharging children from autism therapy funding at the age of six constituted discrimination on the basis of age. While the Court of Appeal ruled that discrimination had not been adequately demonstrated, the age cut-off was subsequently removed by the Ontario government. Our case differs significantly in that we are claiming discrimination based not on age, but rather ability. Furthermore, while the Wynberg case did not demonstrate differential treatment between the group of autistic children and non-autistic children in terms of receipt of services, we are using as our comparator group only other children with autistic disorders currently in receipt of IBI therapy. In comparison with this group, we maintain that Sebastian, and other severely autistic children like him, have suffered from indirect discrimination.
2.3) In the case of Ceretti vs. Hamilton Health Services (2010) the court ruled that the application of the Continuation Criteria and the process of discharge from IBI therapy of Delanie Ceretti, a severely autistic girl similar in age and functioning to Sebastian, was fair and reasonable. We maintain that, given the political background of long waiting lists for receipt of services and a lack of trained therapists and doctors, the strategy used by the government to exclude those children who do not meet certain benchmarks might seem fair and reasonable and yet still constitute an act of indirect discrimination because it applies a uniform standard that does not take into account the different levels of functioning exhibited by autistic children when they begin receiving IBI therapy.
Sebastian's learning disability is a result of his autism. No other diagnosis of impaired functioning has ever been made in his case. Sebastian's severe autism prevents him from learning as quickly as other children in IBI programs, but he was making significant progress up to the time of his discharge from the program. At present, in Ontario, there are no other services or programs that could provide an equivalent learning environment for Sebastian: IBI therapy is the only proven means by which autistic children can learn basic skills such as communication, social and academic skills, and the navigation of everyday life. Since we maintain that his exclusion from IBI therapy constitutes a case of discrimination based on ability that violates his human rights, we are asking that Sebastian be reinstated into receipt of IBI services. We are also asking that the Continuation Criteria be modified to account for different levels of severity of the disorder, so as to not discriminate against other severely autistic children. Finally, we are asking for financial compensation to cover legal costs and damages.