Making thousands of people with mental disabilities wait indefinitely for provincial government supports after they turn 18 amounts to pushing them off a cliff without a safety net, an Ontario Superior Court heard on Tuesday.
In urging certification of their claim against the Ontario government as a class action, lawyers for the plaintiffs argued the province’s use of waitlists was arbitrary and violated their clients’ constitutional rights.
“It’s not about inconvenience. It’s not about frustration,” lawyer Kirk Baert told court. “It goes beyond that.”
The unproven lawsuit, which accuses the province of harm-causing negligence, seeks $ 110 million in damages along with a declaration the government has failed adults assessed as eligible for government help but who have instead been placed on indeterminate waiting lists.
The proposed representative plaintiff is Briana Leroux, 20, of Timmins, Ont., a woman with a mental age of about three who is unable to speak and lacks the most basic ability to care for herself. Her father Marc Leroux said outside court the loss of a day program and other help for his daughter when she turned 18 caused huge stress on the family.
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“All those programs were just stopped, and I think there should be a transition and there just is not,” said Leroux, 46, a real estate broker. “Families should be more respected by the government.”
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In recent years, a select legislature committee recommended eliminating the waitlists, while the auditor general has also criticized the system. In 2016, the provincial ombudsman, who had investigated more than 1,400 complaints from families of adults with developmental disabilities, said thousands of people had been left “stranded.”
In court, Justice Edward Belobaba said the issue at this stage of the proceeding was not whether the province had “made a shambles” of the programs, but whether the plaintiffs could get over the relatively low hurdle of showing the existence of a legal foundation for a class action.
Baert said the case was not about eligibility for services, noting proposed class members had all been assessed and approved for supports they weren’t receiving because of what he called unreasonably managed waitlists.
“Everyone who’s in the class is by definition someone who hasn’t received the services they were entitled to,” Baert argued.
For its part, the province argued that adults with disabilities have no legal right to supports. What they receive is the result of government policy decisions that allocate about $ 2 billion a year to help them.
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Provincial lawyer Robert Radcliffe insisted clients are assessed and prioritized according to their needs, with the most urgent cases getting help even after turning 18.
“My friend would have you believe they just fall of the window sill or just fall off the balcony,” Radcliffe told Belobaba. “To say it’s arbitrary isn’t consistent with the facts.”
Government co-counsel, Rochelle Fox, said the plaintiffs were making a claim for a “positive entitlement” by attacking what was a “quintessentially policy decision.” The government, Fox argued, was under no obligation to provide the programs to recipients, regardless of eligibility.
“It is fundamentally a claim that the government is obliged to provide you with a positive benefit,” Fox said. “(But) failure to provide is not a deprivation.”
Belobaba, however, pushed back at the notion that the current situation was the result of policy decisions that are immune to such a lawsuit. Belobaba noted the list of problems the plaintiffs allege, including a failure to shorten waitlists and the cutting off of those receiving services when they turn 18.
“These are real allegations of deficiencies,” Belobaba said. “It’s not the policy of the government, say the plaintiffs, to have a totally screwed-up system.”
The certification hearing continues.