Wynberg v. Ontario

Wynberg v. Ontario

The Court allowed Ontario's appeal: the trial judge erred in finding age and disability discrimination under s.15; the IEIP age cutoff and program design did not, on the record and given its ameliorative targeting and resource-allocation rationale, deny claimants' human dignity; the disability claim failed for lack of proof that IEIP-consistent intervention was the only appropriate special education program deliverable in schools and for insufficient comparator evidence; s.7 and negligence claims failed; damages could not be awarded alongside declaratory relief absent bad faith or similar conduct; trial judgment set aside and cross-appeal dismissed.

Citation
C43425
Parties
Plaintiffs (respondents, Appellants by Way of Cross Appeal): Robyn Wynberg and Simon Wynberg (on their own behalf and as joint litigation guardians of Sebastian and Nathaniel Wynberg et al.); Plaintiffs (respondents, Appellant by Way of Cross Appeal): Michael Shane Deskin and Noah Samuel Deskin (minors) by their litigation guardian Brenda Jill Deskin; Brenda Jill Deskin; Steven Joe Deskin; Sheldon Kosky; Frances Kosky; Betty Deskin; Defendant (appellant, Respondent by Way of Cross Appeal): Her Majesty the Queen in Right of Ontario; Intervener: The Canadian Association for Community Living and Community Living Ontario
Court
Court of Appeal for Ontario
Jurisdiction
Canada
Judgment Date
7 July 2006
Procedural Posture
Civil Appeal to Court of Appeal for Ontario From Superior Court of Justice (trial) / Heard December 5 9, 2005; Decision Released July 7, 2006; Appeal From Justice Frances P. Kiteley Order Dated March 30, 2005
Outcome
Appeal allowed; cross-appeal dismissed; trial judgment set aside
Legal Topics
Charter S.15 Equality, Charter S.1 Justification (oakes), Charter S.7 Life Liberty Security, Age Discrimination, Disability Discrimination, Special Education (education Act S.8(3)), Remedies (declaratory Relief Vs Damages), Negligence Duty of Care
Source Language
English
Civil Constitutional Administrative Law Education Law Tort Law Charter S.15 Equality Charter S.1 Justification (oakes) Charter S.7 Life Liberty Security +5 more

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Parties

Robyn Wynberg and Simon Wynberg (on their own behalf and as joint litigation guardians of Sebastian and Nathaniel Wynberg et al.)

Plaintiffs (respondents, Appellants by Way of Cross Appeal)

Michael Shane Deskin and Noah Samuel Deskin (minors) by their litigation guardian Brenda Jill Deskin; Brenda Jill Deskin; Steven Joe Deskin; Sheldon Kosky; Frances Kosky; Betty Deskin

Plaintiffs (respondents, Appellant by Way of Cross Appeal)

Her Majesty the Queen in Right of Ontario

Defendant (appellant, Respondent by Way of Cross Appeal)

The Canadian Association for Community Living and Community Living Ontario

Intervener

Procedural Posture

Civil Appeal to Court of Appeal for Ontario From Superior Court of Justice (trial) / Heard December 5 9, 2005; Decision Released July 7, 2006; Appeal From Justice Frances P. Kiteley Order Dated March 30, 2005

Legal Issues

  1. 1 Whether IEIP age cutoff (under six) discriminates on the basis of age under s.15
  2. 2 Whether failure to ensure school-age autistic children receive IEIP-consistent special education violates s.15 and s.8(3) Education Act
  3. 3 Whether any s.15 infringement is justified under s.1

Ratio Decidendi

The Court allowed Ontario's appeal: the trial judge erred in finding age and disability discrimination under s.15; the IEIP age cutoff and program design did not, on the record and given its ameliorative targeting and resource-allocation rationale, deny claimants' human dignity; the disability claim failed for lack of proof that IEIP-consistent intervention was the only appropriate special education program deliverable in schools and for insufficient comparator evidence; s.7 and negligence claims failed; damages could not be awarded alongside declaratory relief absent bad faith or similar conduct; trial judgment set aside and cross-appeal dismissed.

Court Disposition

Appeal allowed; cross-appeal dismissed; trial judgment set aside

Orders

  • Appeal allowed and trial judge's declarations and damages awards set aside
  • Cross-appeal dismissed