December 14, 2018 1:49 pm

Mentally disabled win class status over loss of services at age 18 in Ontario

Marc Leroux, 46, of Timmins, Ont., is seen outside court in Toronto on Tuesday, Oct. 30, 2018.

THE CANADIAN PRESS/Colin Perkel
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TORONTO – A lawsuit alleging the Ontario government has been arbitrarily making thousands of mentally disabled people wait indefinitely for provincial government supports after they turn 18 was certified as a class action on Friday.

In his decision, Superior Court Justice Edward Belobaba agreed the plaintiff had made a strong enough case to allow the as-yet untested claim to proceed to trial on its merits.

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“The plaintiff’s complaint is not about inadequate funding or the need for a greater allocation of governmental resources but about the negligent utilization and administration of existing resources,” Belobaba wrote in his decision.

“The plaintiff points to the indeterminate delays in the wait-listed services, the flawed computer programs and bad databases, and the poor prioritization and matching of available resources.”

The lawsuit, which accuses the province of harm-causing negligence, seeks $110 million in damages. It also asks for a declaration that the government has failed adults assessed as eligible for help but who have instead been placed on indeterminate waiting lists.

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Belobaba appointed as representative plaintiff Briana Leroux, 20, of Timmins, Ont., a woman with a rare brain disorder. She has a mental age of about three, cannot speak, and lacks the most basic ability to care for herself.

Her father Marc Leroux, acting as her litigation guardian, has previously told The Canadian Press that the loss of a day program and other help for his daughter when she turned 18 caused immense stress on the family. He was not immediately available to comment Friday.

In his analysis, Belobaba agreed to allow certification on two of three grounds Leroux had proposed: negligence and a breach of her charter rights.

“Although a meaningful milestone for many, turning 18 has no medical or other significance for developmentally disabled persons,” Belobaba observed. “Nothing changes when they become 18 – they remain disabled, with the same mental age, and the same need for support and services.”

The only change, the justice wrote, is they have to deal with the Ministry of Community and Social Services rather than the Ministry of Children and Youth Services.

“The problem arises after the developmentally disabled person has been formally assessed and approved to receive government support and services,” Belobaba said.

“The evidence is that the families are then ‘dropped off a cliff’ and nothing happens – for a very long time.”

While Belobaba did agree Leroux could press her claim for breach of her constitutional rights, he did say it would “probably not succeed on the merits.” However, he noted the only requirement for certification was to show the claim had at least some chance of success. Similarly, he also found it possible that a claim for damages under the charter could succeed.

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The proposed class, as certified, comprises people found eligible for government-funded developmental supports starting on July 1, 2011, but who were instead placed on wait lists.

Belobaba also certified three common issues to be decided at trial: whether there was a breach of duty of care or a constitutional violation, and whether punitive damages are available.

During the certification hearing, the lawyer for the province insisted clients are assessed and prioritized according to their needs, with the most urgent cases getting help even after turning 18. The government also tried to argue the plaintiff was attacking a policy decision immune from judicial scrutiny.

“It’s not the policy of the government, say the plaintiffs, to have a totally screwed-up system,” Belobaba said at the hearing.

© 2018 The Canadian Press

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