Photo: Pierre Lognoul/flickr

Many Ontarians with developmental disabilities face a significant problem when they reach their 18th birthday. Specifically, while they have received services and support from the government during their childhood, upon turning 18 they are treated as adults under the law in Ontario and those services and support are typically discontinued immediately, even though their disabilities still exist, and even though that support is often necessary to meet their most basic human needs.

To receive benefits after turning 18, these individuals (or more likely, a family member or caregiver) are required to apply for the continuation of the services and support previously received. They have to establish eligibility for benefits pursuant to the criteria of the Services and Supports to Promote the Social Inclusion of Persons with Developmental Disabilities Act (the “Act”): that they have significant limitations in cognitive functioning and adaptive functioning that originated before they turned 18, which are likely to be life‑long in nature, and affect areas of major life activity, such as personal care, language skills, learning abilities, and the capacity to live independently as an adult.

Once an individual is determined to be eligible under the Act, their approved application is usually placed on a waitlist, often with no estimate as to the length of the wait before the approved services and support will be provided. These waitlists are administered by the regional Developmental Service Ontario office for the region in which the individual lives.

This waitlist system and the way it is administered have been criticized in at least three reports since 2013, with criticisms aimed not only at the use of waitlists and their length, but also the inconsistency in how the waitlist system provides necessary services and support to individuals with developmental disabilities. Most recently, last summer the Ombudsman of the Province of Ontario released a report titled “Nowhere to Turn,” in which it was noted that despite a “positive evolutionary policy shift” in how Ontario deals with care for adults with developmental disabilities, there were still significant problems with how the Ministry of Community and Social Services (which takes over the provision of services and support for individuals with developmental disabilities after they turn 18) administered the provision of such services and support.

This report raised concerns about a confusing and complex array of offices and processes “impossible for many individuals with developmental disabilities and their families to navigate,” inconsistent application of the process across the province, and “interminable waitlist delays.”  This system has left the burden of providing these services and support to family, at least until individuals are reached on the waitlist, which can take years. Families sometimes have to make significant and difficult adjustments to their employment, which can further strain their ability to provide the needed care. In some instances, parents have relinquished care of their adult children for fear that they cannot safely care for them at home without the services and support that were received prior to their 18th birthday. Abandonment and abuse are also problems in the present system.

Taking the problem to court

This problem is now the subject of a proposed class action which commenced in early April. The case of Marc Leroux as Litigation Guardian of Briana Leroux v. Her Majesty the Queen in Right of the Province of Ontario seeks to advance a claim on behalf of all individuals “who have been assessed and approved as eligible for services, supports or direct funding by a Developmental Services Ontario office, and subsequently placed on a waitlist for any or all of the approved services, supports or funding.” If this proposed class action is certified by the court, it promises to raise a number of interesting and compelling arguments in favour of the position that the waitlist system is flawed and has caused damages to affected individuals, for which the provincial government should be held liable.  

The claim alleges that the province owes individuals who fall within the definition of the class (“Class Members”) a fiduciary duty, on the basis that the province has undertaken to provide the developmental services and supports indicated in the Act, and Class Members had a reasonable expectation that the government would look out for their best interests with respect to the provision of such services and the administration of waitlists. In addition, the claim also argues that a fiduciary duty arises because the province has the sole power to administer, manage and supervise the provision of developmental services and the waitlist system, and the Class Members are reliant on the province to do so in a reasonable fashion. The claim alleges that the province has breached that fiduciary duty, and acted negligently toward Class Members by, among other things, administering the waitlist system in a manner that has deprived the Class Members of services and supports for which they have been approved and which they need to meet their daily living needs.

Lastly, the claim alleges that the shortcomings with the waitlist system “violate the basic essential human needs of the Class Members and, as such, interferes with their life and security of the person” and as a result is a violation of their rights under section 7 of the Canadian Charter of Rights and Freedoms. While the language of Section 7 of the Charter reads as though its purpose is to protect the procedural rights of individuals, especially in criminal matters (such as the right to due process), it has been interpreted more broadly by the courts — and has been considered in cases involving issues such as assisted suicide, abortion and adoption. It will be interesting to see how the court responds to the argument that Section 7 should apply to create a positive obligation on the province either to eliminate the waitlist system (which would presumably require increased funding) or to manage it in a more consistent fashion and reduce wait times.

Broader implications

While the direct impact of a successful result in this action would be limited to adult Ontarians with developmental disabilities, there could be broader implications if the Charter arguments raised in the action succeed in establishing that government has positive obligations in how services and support are provided to individuals with developmental disabilities. Such a decision may also have an impact on the manner in which such services are provided to Canadians outside of Ontario, and might even serve as a starting point for individuals who are vulnerable and reliant on government for services and supports for other reasons to advance claims to assert their rights.

What is certain, though, is that the present system of providing necessary services and support to adults in Ontario with developmental disabilities needs to be fixed, and that the provincial government has known for some time that the present system is not working. Hopefully, the Leroux action will result in positive changes, whether through successful litigation, or by bringing more attention to this serious problem. The affected individuals are among our society’s most vulnerable, and need a better system to provide them with the services and support that are essential to meet their basic needs and safety.

Iler Campbell LLP is a law firm serving co-ops, not-for-profits, charities and socially-minded small business and individuals in Ontario.

Pro Bono provides legal information designed to educate and entertain readers. But legal information is not the same as legal advice — the application of law to an individual’s specific circumstances. While efforts are made to ensure the legal information provided through these columns is useful, we strongly recommend you consult a lawyer for assistance with your particular situation to obtain accurate advice.

Submit requests for future Pro Bono topics to [email protected]. Read past Pro Bono columns here.

Photo: Pierre Lognoul/flickr

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Pro Bono

Pro Bono is a monthly column written by lawyers and legal experts at Iler Campbell LLP that explores the murky legal waters activists regularly confront in doing their work.

Michael Hackl

Michael Hackl

Michael Hackl is a contributor to rabble’s Pro Bono column. Hackl is a lawyer with Iler Campbell LLP where he practices civil litigation, providing advice and representation to charities, non-profit...