The Rights of Adults with Disabilities: Court of Appeal Allows Class Action Against the Province to Go Ahead
Blog by David Derfel and Rachel Weitz
Leroux v Ontario, 2023 ONCA 314
A young developmentally disabled woman from Timmins has been given the green light to move forward with a potentially ground-breaking class action against the Ontario government. The Ontario Court of Appeal recently overturned a 2021 Divisional Court decision that dismissed a 2018 class action against the Province on behalf of adults living with developmental disabilities. The class representative, Brianna Leroux alleges that the Province unfairly denies services and funding for adults in the Province living with developmental disabilities. Particularly, the class action alleges that the Province has been and continues to violate their Constitutional rights under section 7 of the Charter that guarantees life and security of the person.
Brianna received services from the Ministry of Child and Youth Services until she turned eighteen. After that Brianna was no longer eligible for Ministry funded services. Before Brianna turned eighteen the Ministry of Community and Social Services (“MCSS”) confirmed that Brianna would be eligible for Provincially funded services pursuant to the Developmental Disabilities Act. Brianna was then put on an indeterminate waitlist and has yet to receive care, other than what her parents can afford to pay out-of-pocket.
Overturning the Divisional Court decision, the Court of Appeal noted that Brianna required “24/7 support and services to meet her basic living needs”. The Court of Appeal confirmed the certification of the class action.
The class action was initially certified at the Superior Court level, however the Province appealed to the Division Court. The Divisional Court overturned the Superior Court because it was the court’s decision that the action did not disclose a reasonable cause of action. The Divisional Court held that the Province was not negligent and did not violate Brianna’s Charter rights.
The Court of Appeal viewed things differently than the Divisional Court. At the Court of Appeal, the Province argued that that it was immune from the action. The courts cannot interfere with its political and lawmaking jurisdiction. The Court of Appeal disagreed, finding that there is a distinction between operational negligence and core policy. Operational negligence is negligence that arises out of the implementation of policies already in existence. Core policy decisions, on the other hand, are those which relate to public policy considerations, like the economy or other sociopolitical factors. The Court of Appeal disagreed with the Province’s argument that its authority granted under the Developmental Disabilities Act was core policy. The Court of Appeal held that the funding and service decisions made by the Province were operational in nature, not core policy and therefore be challenged.
The Province can still seek leave to appeal to the Supreme Court of Canada. Given the importance of the issues to both parties, a ruling by the Supreme Court may be necessary. Should the Province not appeal, then the action will proceed. Brianna has not won yet. She has only met the criteria to have her action certified as a class action. Now Brianna will have to prove her claim in court. Balancing the rights of individuals with budgetary constraints faced by governments is never easy. Thankfully our courts provide an open forum for people like Brianna to seek justice and fight to ensure that they are treated with the respect and dignity they deserve
“This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.”