The respondents were the parents of autistic children who did not receive government funding for their special treatment of autism. The treatment was only newly recognized as "medically necessary", and did not have funding in several other provinces. It was not defined as a "core" medical treatment under the Canada Health Act. The parents were successful in the lower courts which the government appealed.
- Is applied behavioural therapy for autism, which is not included in the the core services under a provincial health plan pursuant to the Canada Health Act, "prescribed by law" and thus required for the provinces to provide?
McLachlin, writing for a unanimous court, states that the most relevant issue is whether law guaranteed these medical treatments. If they were prescribed by law, then the government must issue the benefits without discrimination, however if they were not required by law then the government does not need to issue the benefits at all. The only medical treatments that the government is required to issue are "core" benefits, and this is not a core benefit. She says that the choice of the legislature not to include something as a core benefit does not violate s.15 of the Charter. This would be enough to dismiss the claim.
She goes on to state that the claimants identified an incorrect comparator group. She says that the correct comparator group would be non-mentally disabled individuals receiving medical treatment that is not "core" and is only newly recognized as "medically necessary". The claimants were unable to show that members of this other comparator group would receive funding, and therefore their claim failed on that account as well.
- In order for a denial of a benefit to give rise to a s.15 claim that benefit must be "prescribed" or required by law; if it is not, then the decision not to infer the benefit is not discrimination under s.15 as it is not a legal requirement that the benefit be inferred to anyone.
- If you cannot establish that the relevant comparator group would receive the benefits that you were denied, then you cannot establish discrimination.