Judge slaps Crown for delays

Province to pay families to enable them to continue lawsuit over autismprograms

By KIRK MAKIN

The Ontario government’s tardy discovery of a “staggering” number ofdocuments relating to its autism programs has created an intolerable legalcrisis, says an Ontario Superior Court judge.In a stinging slap to the province, Judge Frances Kiteley ordered it to pay29 families an amount likely to reach $300,000, enabling them to continuetheir lawsuit without jeopardizing the costly private therapy their childrenreceive.Judge Kiteley described the recent discovery of thousands of new documentspertinent to the 11-month trial as “the straw that broke the camel’s back.””I find that all of the parents have and continue to experience unrelentingand profound stress associated with providing appropriate treatment andeducation for their children, she added. “The delays and interruptions thathave occurred in this case — for which the plaintiffs share noresponsibility — have exceeded any tolerable level.”

“We are really thrilled,” Brenda Deskin, one of the plaintiffs, said in aninterview. “Hopefully, the government is finally going to get the messagethat what they are doing is wrong. We tried to resolve this amicably fiveyears ago, but it just fell on deaf ears. It has been a long, rough road.The families just get so tapped out, financially and emotionally.

“The families are bidding to end what they see as a discriminatory policy inwhich children become ineligible for special autism therapy once they reachthe age of six. They allege that the age cutoff unconstitutionally deprivesautistic children of a widely hailed program capable of enhancing theirability to function in school and society.In her ruling, Judge Kiteley detailed each plaintiff’s individual struggleto stay financially afloat while juggling the protracted lawsuit, thedesperate need to provide therapy for their autistic child, and the normaldemands on any working family.

“Expert witnesses for the plaintiffs and thedefendant agree that families with children who have been diagnosed withautism are under enormous stress, including financial, physical andemotional stress,” she said.Judge Kiteley’s ruling was particularly significant in that it is the firsttime she has provided observations about the mass of evidence at the trial.”The experts called by the plaintiffs and the defendant are unanimous that the earlier the intervention, the more likely it will benefit the child,”she observed, adding that there has been ample evidence to show the shortcomings of the education system.

“There is no evidence that theprograms and services that are provided to children with autism are meetingtheir needs,” Judge Kiteley said.Specialized therapy the parents have obtained independently for theirchildren — the very treatment they are petitioning the government toprovide — has yielded tangible results, she said.

“Consistent with the literature, some have made remarkable progress, whileothers have been more modest,” she said.The plaintiffs’ legal bill stands at about $1.5-million. The case hasconsumed the practice of lawyers: Mary Eberts, Paul Mann, Jonathan Strug andPheroze JeeJeebhoy.

Two fresh Crown prosecutors were assigned to the case last month to dealwith the disclosure crisis. Adding to the disarray in Crown ranks, Premier Dalton McGuinty condemned the very autism policy the province is nowdefending just weeks before he won last fall’s provincial election.This is the second time Judge Kiteley has ordered the province to pay theplaintiffs after the discovery of new documents. Several weeks ago, sheordered a much smaller payment. The Crown then discovered the latest, muchlarger, consignment of documents — charts, correspondence and policypapers.

Judge Kiteley said in Friday’s ruling that “the staggering volume ofnon-disclosure by the defendant has prejudiced the plaintiffs’ ability to proceed with the case.”Crown lawyers have defended the deluge of late documents by saying theydiligently issued a general call for any files dealing with autism. Allcorners of government responded with the material, they said, much of whichthey argue may turn out to be repetitious or peripherally related.

Judge Kiteley was unimpressed. She said in her ruling that the plaintiffsare now faced with a monumental task of sorting the material, determiningits relevance, and refashioning a case that was supposed to have ended. Shesaid she will hear further arguments several weeks from now about strippingthe Crown of its right to mount any further defence or make closingarguments whenever the case finally staggers to a close.

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