Class action certified for government negligence in abandoning 18 year old disabled people at the bottom of adult waitlists

On December 14th, 2018, Justice Edward P. Belobaba of the Ontario Superior Court of Justice, certified a class action proceeding brought by the father of a disabled person, Briana Leroux. Briana is 20 years old and has a rare brain disorder; she will need constant care for her whole life.

Until she turned 18, Briana received services via the Ministry of Children and Youth Services (“MCYS”). Upon turning 18, she was required to apply to the Ministry of Community and Social Services (“MCSS”) instead. The class action isn’t about this application process, but rather what happens after: families are “‘dropped off a cliff’ and nothing happens – for a very long time”.

For Briana Leroux, this meant sitting at the bottom of a fresh adult waitlist, with no estimate of how long she would remain without services, for nearly 1.5 years.

The class action was certified to proceed with respect to negligence affecting developmentally disabled persons who have been assessed and approved to receive support and services under three programs – the “residential” program, the “caregiver respite” program, and the “Passport” program – and were then placed on indeterminate waitlists and subjected to an inconsistent prioritization process and poor matching programs. The class action is explicitly not about inadequate funding, but rather about negligent utilization and administration of existing resources.

The plaintiff filed several recent public reports showing that these problems are systemic and are shared by “literally thousands of Ontario families whose loved ones include developmentally disabled persons”.

The Court also allowed the class action to proceed with respect to a claim for breach of section 7 of the Canadian Charter of Rights and Freedoms (the right to life, liberty, and security of the person, and the right not to be deprived thereof except in accordance with the principles of fundamental justice). While the Court noted that this claim was weaker than the negligence claim, it recognized that governmental delay can sometimes constitute a “deprivation” for the purposes of section 7.

You can read the certification decision, cited as Leroux v Ontario, 2018 ONSC 6452, here (link).

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