[1] On July 26, 2000, I delivered reasons for judgment in Auton (Guardian ad litem of) v. British Columbia (Attorney General) (2000), 78 B.C.L.R. (3d) 55; 2000 BCSC 1142 ("Auton #2"). In those reasons, I declared that the failure of the Government of British Columbia (the "Government") to provide the infant petitioners with effective treatment for autism, a medical condition from which they suffer, violated their rights to equality guaranteed under s. 15 of the Charter. On that application, counsel agreed that I would render judgment on the issue of liability and all remaining issues would be dealt with subsequently. Accordingly, counsel have provided further lengthy written and oral arguments relating to the appropriate remedy that flows from that declaration.

[2] The petitioners seek a declaration that the Government has breached the petitioners' equality rights, accompanied by an order of mandamus if the Government fails to redress its breach, and compensation for the costs of Lovaas Autism Treatment. Specifically, they seek:

• An order of damages to reimburse the adult petitioners for their expenses for Lovaas Autism Treatment from the commencement of the treatment until the date of this judgment; and
• A declaration that the petitioners receive their full expenses for future Lovaas Autism Treatment from the date of this judgment for so long as it is recommended by a medical practitioner or psychologist licensed to practice in B.C. and with the intensity recommended by that person.

[3] The petitioners suggest that if the respondents considered further treatment unnecessary in a specific case, they could, on 60 days notice, apply to Court to vary their obligation to fund Lovaas Autism Treatment upon application supported by a competing medical opinion from a licenced medical practitioner or psychologist.

[4] The Crown submits that the only appropriate remedy flowing from the judgment in Auton #2 is a declaration coupled with a direction by the Court that, in order to comply with its constitutional obligations, the Crown must fund early intensive behavioural intervention treatment ("Early IBI") for autism (including autism spectrum disorder). That treatment has also been described in the literature as Intensive Behavioural Intervention ("IBI") or Applied Behavioural Analysis ("ABA"). The Crown objects to a direction that it fund treatment whenever, and to the extent that, a medical practitioner or psychologist recommends it on the basis that such a direction would narrow legitimate policy options with respect to diagnosis and assessment.

[5] The Crown also seeks a suspension of the effect of a declaration for a reasonable period of time in which to implement its proposed treatment programme.

[6] Finally, the Crown opposes an order that it be obliged to pay the petitioners for their past or future costs of Lovaas Autism Treatment.

[7] In order to provide a context for these reasons, it is appropriate to set out my conclusions in Auton (Guardian ad litem of) v. British Columbia (Minister of Health) (1999), 32 C.P.C. (4^th) 305 (B.C.S.C.) ("Auton #1") and Auton #2.

[8] Initially, Connor Auton and his mother sought to bring a class action on behalf of all autistic children and their families who had requested and been denied funding for Lovaas Autism Treatment from the Government. Following the application for certification under the Class Proceedings Act, R.S.B.C. 1996, c. 50, I was persuaded that a class proceeding was inappropriate where the remedies sought included mandamus as well as a declaration: Auton #1. One purpose of the Judicial Review Procedure Act, R.S.B.C. 1996, c.241 (the "JRPA"), is to ensure that the nature and extent of public duties be determined summarily.

[9] Although it opposed a class proceeding, the Crown acknowledged that a finding that the Government was in breach of its obligations to the petitioners would mean that it was in breach of its obligations to autistic children generally. Counsel for the Crown agreed that, in the event of such a finding, a judicial declaration as to a statutory duty should be swiftly enforced. I held that if the plaintiffs were successful in obtaining the declaration they sought, that declaration would apply to all of the members of the group whose s. 15 rights had been violated.

[10] In Auton #2, at paras. 153-161, I reached the following conclusions:

[11] Section 24(1) of the Charter provides as follows:

S. 24(1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

[12] Section 24(1) is a remedial section, to be interpreted purposively: R. v. Gamble, [1988] 2 S.C.R. 595 at 641. The Courts must exercise their wide discretion to fashion remedies that are both just and appropriate to the particular violation: Perera v. Canada (A.G.), [1998] 3 F.C. 381 (F.C.A.); Dixon v. B.C.(A.G.) (1989), 35 B.C.L.R. (2d) 273 at 307-08 (B.C.S.C.); Osborne v. Canada (Treasury Board), [1991] 2 S.C.R. 69.

[13] In "Damages as a Remedy for Infringement of the Canadian Charter of Rights and Freedoms" (1984) 62 Can. Bar Rev. 517 at 519, Marilyn Pilkington suggests that the Courts should address three goals in fashioning an appropriate Charter remedy:

• it should redress the wrong suffered by the applicant;
• it should foster the implementation of the constitution by deterring future infringements and ensuring future compliance; and
• it should interfere as little as possible with the exercise of legislative and executive responsibilities.

[14] Section 24(1) provides the Court with an unfettered remedial discretion to provide such remedy "as the court considers appropriate and just" to persons who have had their Charter rights infringed. The words "appropriate" and "just" are broad and capable of being interpreted in a variety of ways. In this case, an appropriate and just remedy must respond to both the circumstances of the petitioners and to other autistic children and their families whose Charter rights were violated.

[15] Declarations are the primary civil remedy under s. 24(1). Where the Crown acknowledges its responsibility to rectify unconstitutional legislation or alter its policy where it has infringed rights by failing to provide necessary treatment to accommodate disabilities, the Courts are inclined to permit governments sufficient flexibility to determine their method of effecting compliance: Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624. This restraint represents judicial deference to the role of the legislature.

[16] One recognized purpose of constitutional remedies is to regulate and modify governmental behaviour. The Crown asserts that it intends to, and will, comply with its constitutional obligations. It submits that a declaration will suffice and an order of mandamus is unnecessary. The petitioners submit that a mandatory order is required to ensure compliance.

[17] An order of mandamus compels the performance of a statutory duty owed to the applicant. Such an order, requiring the Crown to execute a legal duty, is justified if a government fails to respond appropriately to a declaration.

[18] In Marchand v. Simcoe County Board of Education (1986), 29 D.L.R. (4^th) 596 (Ont. H.C.J.), the Court granted the declaratory relief sought and a mandatory order that the School Board provide facilities and resources in order to accommodate the plaintiff's minority language education rights. The Court noted that in view of a long history of resistance and "negative attitude" by the defendant Board, a mandatory injunction was required to implement the plaintiff's constitutional rights under s. 23 to prevent their further infringement or denial. Similarly, in Levesque v. Attorney-General of Canada (1985), 25 D.L.R. (4^th) 184 (F.C.T.D.), the Court ordered both declaratory relief and mandamus requiring the Crown to establish the necessary administrative machinery to permit the applicant to vote in a provincial election. Several Solicitors-General had failed to co-operate with the chief Electoral Officer of Quebec in the past.

[19] The Government has not offered to reimburse the adult petitioners for the past or future costs of Lovaas Autism Treatment, nor does it intend to fund individual treatment programmes.

[20] Prior to July 26, 2000, when the reasons for judgment in Auton #2 were delivered, the Government was in the course of designing and implementing a pilot project directed toward delivering services to autistic children. Following that judgment, representatives from the Ministries of Health, Education, and Children and Families and the Attorney General formed an inter-Ministerial committee to develop a proposal for an effective treatment programme for autistic children under six years of age. The Government converted the pilot project to a programme that includes Early IBI for autistic children between the ages of two and six. This programme, the Provincial Centre for Autism and Related Disorders ("P-CARD"), is said to include the following elements:

• Inter-Ministerial collaboration
• Building expertise within B.C.
• Enhancement of current capacity
• Supplementing existing early intervention services
• Links to academia; and
• Broad based advisory component.

[21] Counsel for the Crown says the Government is moving swiftly, and in good faith, to implement an effective programme that complies with the judgment in Auton #2.

[22] The Government proposes that P-CARD will deliver province-wide services that will include Early IBI based upon "empirically derived best practices" for autistic children. Counsel described in detail the steps that the Government has taken to implement P-CARD and the elements of that programme. It is proposed that P-CARD will provide direct services, including Early IBI, for a minimum of 20 hours per week to at least 100 children with autism between January and April 2001 and to another 100 children by late 2001 or January 2002. It contemplates providing Early IBI treatment to all autistic children under six years of age, who have been diagnosed and assessed by a multi-disciplinary team, in 2003. The Government recognizes the shortage of therapists with Early IBI expertise and seeks to import professionals from other jurisdictions to train BC personnel. The Government is also taking steps to reduce the waiting lists for assessment and diagnosis at Sunny Hill and Queen Alexandra Hospitals.

[23] The Crown states that the Government considered but rejected the concept of providing individualized funding to families with autistic children. It felt that a "two tier" approach would interfere with the equitable distribution of resources. The Government asserts that its efforts are directed toward ensuring that as many children obtain as much treatment as possible, as soon as possible.

[24] The petitioners do not support the Government's proposed treatment programme, its consultation methods, or its policy development methods. They take the position that the proposed P-
CARD, which has no Lovaas Autism Treatment component, will not provide adequate treatment for autistic children. They say the proposed programme is too little, too late, too restricted, and fails to provide effective treatment. Their specific criticisms of P-CARD include the following:

• it is restricted to children aged six and younger;
• diagnosis and assessment by a multi-disciplinary team (rather than a physician or psychologist) is inappropriate and creates unreasonable delay;
• 20 hours of Early IBI per week is insufficient;
• the proposed treatment is not Lovaas Autism Treatment or effective Early IBI;
• it will not be implemented quickly enough to be of assistance to children whose "window of opportunity" is closing; and
• the Government is not consulting with the petitioners or persons approved by the petitioners.

[25] I determined in Auton #2 that by failing to provide Early IBI treatment to autistic children, the Government breached its constitutional obligations to them. Such treatment was, according to overwhelming expert opinion, the only chance these children have to overcome the devastating effects of an autistic disorder. However, I concluded that the Court cannot direct the Government to fund or provide Lovaas Autism Treatment, the specific treatment desired by the petitioners, and in the amount they request. I venture the opinion, albeit with some hesitation, that the Government's failure to at least include Lovaas Autism Treatment in its arsenal of effective treatment techniques appears to result from some antipathy to the petitioners and the vehemence and effectiveness of their cause. Certainly the evidence established that Lovaas Autism Treatment has been embraced as an integral part of many government programmes in Canada, the U.S., and abroad and is supported by numerous family doctors, pediatricians, psychologists and child psychiatrists in B.C. However, as I have stated above, it remains within the competence of Government, not this Court, to determine, upon appropriate professional advice, the nature and extent of the Early IBI it will provide. Nor can the Court direct that Government provide Early IBI treatment when it is recommended by a physician or psychologist, rather than by a multi-disciplinary diagnostic team.

[26] This case raises significant public policy issues as to the respective roles of the judiciary and the legislature. The issues raised by the petitioners underscore the difficulties inherent in a process where the Court's finding of unconstitutionality is designed to change governmental behaviour. The effective treatment of autistic children must be delivered within a framework that is necessarily constrained by the resources available and the need to allocate those resources equitably in response to competing demands. As the Court stated in Schachter v. Canada, [1992] 2 S.C.R. 679 at 709, although budgetary considerations "cannot be used to justify a violation under s. 1" of the Charter, they are "clearly relevant once a violation which does not survive s. 1 has been established."

[27] While the Government's programmes and policies are subject to review by the Courts to ensure constitutional compliance, the judiciary cannot dictate what treatment programmes should or should not be implemented, nor can it dictate how limited financial resources should be allocated. It is not the role of the Courts to undertake the nature and degree of supervision of the delivery of Early IBI treatment suggested by the petitioners. An overly robust judicial approach may interfere with legitimate policy making choices.

[28] In Reference re: Public Schools Act (Man.), [1993] 1 S.C.R. 839 at 860, the Court stated: "[t]his Court should be loath ... to detail what legislation the Government of Manitoba must enact in order to meet its constitutional obligations." See also Mahe v. Alberta, [1990] 1 S.C.R. 342, to the same effect.

[29] On the other hand, the Government is obliged to provide effective treatment to accommodate the disadvantaged position of autistic children. It cannot deny or delay implementation of Early IBI on the basis of cost. In fact, the evidence adduced in this case clearly established that early effective treatment of autistic children would effect a huge cost saving to Government in the long run.

[30] While the petitioners seek to cast the Government as intransigent, I would not, at this stage, interpret the steps taken by the Government since July 2000 as a reluctant or negative response to the Court's finding that it had breached the petitioners' s. 15 equality rights.

[31] The Government's proposed programme contemplates treatment for children between the ages of two and six. On this application, the petitioners submit that treatment for an autistic child should not be discontinued when that child reaches the age of six. They argue that, because a child is not "cured" of autism when he or she reaches the age of six, (indeed an autistic person is never "cured"), it is unreasonable to cut off treatment at the age of six where that treatment is beneficial. They seek an order compelling the Government to provide Early IBI to the infant petitioners, all of whom are six or older.

[32] The infant petitioners, who have received varying amounts of Lovaas Autism Treatment over diverse periods of time, have attained different levels of achievement.

[33] Connor Auton, who is 8 years old, has not received Lovaas Autism Treatment for almost two years because of his parents' inability to fund that treatment. His mother has deposed that without treatment, his behaviour has deteriorated drastically. A pediatrician has recommended that Connor receive 30 hours per week of Lovaas Autism Treatment during the school year and 40 hours per week during the holidays.

[34] Michelle (Miki) Tamir is 12 years old. Her mother estimates that she has spent approximately $240,000 on Lovaas Autism Treatment since 1992. Miki's doctor has recommended that Miki receive 21 hours per week of Lovaas Autism Treatment during the school year and 44 hours per week during the summer.

[35] Jordan Lefaivre, who is six years old, continues to receive Lovaas Autism Treatment funded by his parents. They estimate that they have spent approximately $31,000 since July 1998. A pediatrician has recommended that Jordan receive 30 hours of Lovaas Autism Treatment per week.

[36] Russell Pearce is six years old. Happily, he no longer requires Lovaas Autism Treatment and is doing well in school.

[37] In Auton #2, I considered the most compelling argument for Early IBI, advanced by experts for both the petitioners and the Government, to be that autistic children have a "narrow window of opportunity" to benefit from early intensive treatment. That period of time extends from the time they are first diagnosed with autism (usually at age two or three) until the age of six, approximately.

[38] There was extensive material before the Court describing Lovaas Autism Treatment. At para. 24 of my reasons in Auton #2, I stated: "Lovaas Autism Treatment is a highly intensive form of one-on-one behavioural therapy administered for up to 40 hours a week for two to three years." (emphasis added) The original treatment by Dr. Lovaas was designed to permit very young autistic children to catch up with their normal peers by first grade. High priority is given in Early IBI to moving the children into a more typical environment (e.g. school) wherever possible. It became clear that, as the infant petitioners grew up during the course of this litigation, and at least one of them, Russell, no longer required further treatment, a judgment favourable to the petitioners could benefit autistic children who had not yet entered the "window of opportunity" for treatment but might not assist the petitioners.

[39] The Crown submits that the imposition of age limits is reasonable and the proposed age limit of six years is not arbitrary; it is based on the evidence and the reasons for judgment and, indeed, on the petitioners' own submissions as to the effectiveness of treatment for young children.

[40] One of the petitioners' complaints in Auton #2 was that treatment for children between the ages of two and six "fell between the cracks" because the Ministry of Health refused to recognize their need for treatment as a health issue and the Ministry of Education took the position they lacked jurisdiction over children under school age.

[41] The P-CARD programme contemplates a transitional period to integrate children into the school system, after which time it would be the responsibility of the school districts to provide appropriate educational programmes.

[42] The petitioners framed the issues in this litigation as whether the denial of Lovaas Autism Treatment violated sections 7 and 15 of the Charter and whether the Government could be compelled to pay the costs of past and future Lovaas Autism Treatment. It was determined that the Government's failure to provide early IBI violated s. 15. In view of those issues, that determination, and the evidence adduced, I do not consider it appropriate to determine here whether or not the Government will breach its obligations to autistic children by failing to accommodate their disabilities after they reach school age.

[43] Understandably, any further delay in delivering effective treatment is a source of immense frustration for the families of autistic children. However, the Government cannot reasonably be expected to immediately provide Early IBI to all autistic children between the ages of two and six. The Crown seeks a "reasonable period of time in which to implement an effective treatment programme."

[44] In some cases, it is necessary to suspend the effect of a declaration where legislation is struck down as unconstitutional in order to bridge the inevitable hiatus before new legislation can be enacted. Suspensions have also been granted in cases where the breach consists of a failure to accommodate a disability. In Eldridge, the Court granted a six-month suspension of the effect of the declaration that the Government was in breach of its constitutional obligations by failing to provide interpreters to enable the deaf applicants to access medical services. That suspension was extended for a further six-month period.

[45] As the Government has commenced implementation of P-CARD, I consider it unnecessary that there be a suspension of the effect of the declaration for a specific period of time. It is premature to judge the bona fides and efficacy of the Government's proposed treatment programme for autistic children on this application. Consequently, it is premature to make an order of mandamus.

[46] However, as Iacobucci J. noted in Vriend v. Alberta, [1998] 1 S.C.R. 493 at 559-560, there are limits to judicial deference to government's policy making role:

[47] While the Court is not an appropriate referee between the claims of the petitioners and the defences of the Government, I propose to maintain a limited supervisory role. If the Government does not implement a timely effective programme of Early IBI, the petitioners have leave to renew their application for a mandatory order.

[48] It is common ground that a just and appropriate remedy in this case is one of broad application, requiring the Government to comply with its constitutional obligations towards all autistic children. That goal will be accomplished by a declaration and, if necessary, an order of mandamus. The adult petitioners also seek specific monetary damages to compensate them for their past and future expenses for Lovaas Autism Treatment. A declaration, even if coupled with a mandatory order, will not assist these petitioners if Early IBI is not provided to autistic children past the age of six. Accordingly, the petitioners assert that damages for the cost of Lovaas Autism Treatment is the only effective remedy to address the infringement of their Charter rights.

[49] The adult petitioners (and the families of autistic children "behind the scenes" in this litigation) are remarkable individuals. As parents of autistic children, they have endured emotional and financial hardships and grief unknown to most people. They have exerted tremendous energy educating themselves and others, including physicians, with respect to the nature of the autistic disorder and the efficacy of Early IBI. They have lobbied Government, formed support groups, educated the public, and expended significant resources bringing and maintaining costly ongoing litigation. Their success in obtaining a declaration that the Government's failure to provide effective Early IBI breached the petitioners' equality rights has galvanized the Government into action. Yet their own children are unlikely to benefit from the imminent introduction of Early IBI services.

[50] The reported cases support arguments both for and against an award of monetary damages for a Charter breach. The purpose of such an award may be to regulate governmental behaviour or to compensate a wronged litigant, or both. Perhaps the strongest rationale for damages is found in the reasons of Madam Justice Wilson, alone in her dissent, in McKinney v. University of Guelph, [1990] 3 S.C.R. 229. After determining the defendant university's mandatory retirement policy was an unjustified restriction on equality rights, she held that compensatory damages for the loss of income and benefits incurred by the appellants should follow, notwithstanding the defendant had acted in good faith:

[51] In Lewis v. Burnaby School District No. 41 (1992), 71 B.C.L.R. (2d) 183 (B.C.S.C.), Lander J. following that reasoning, awarded damages to a teacher who had been forced to retire at the age of 65. However, the Court of Appeal, which reversed that decision on the basis that mandatory retirement in a government setting was constitutional, declined to address the issue of remedies.

[52] In Crossman v. The Queen (1984), 9 D.L.R. (4^th) 588 (F.C.T.D.), the Federal Court awarded the plaintiff $500 for breach of his s. 10(b) Charter right to retain and instruct counsel without delay.

[53] In Jane Doe v. Metropolitan Toronto (Municipality) Commissioners of Police (1998), 160 D.L.R. (4^th) 697 (Ont.Ct.Gen.Div.), the Court found that that the plaintiff's section 7 and 15 Charter rights had been infringed by the failure of the police to warn her and other women living in the area of the presence of a serial rapist. While she was entitled to a s. 24 remedy, she also succeeded in establishing that the police were negligent. The Court stated that she was entitled to one award of damages to compensate her and not to "extra" damages arising out of the Charter breach. However, the Court's statement that "assuming she is otherwise fully compensated, a declaration will suffice" suggests that, were it not for her ability to recover damages for the defendants' negligence, she would have been compensated for the breach of her Charter rights.

[54] The Crown vigorously opposes an award of damages. Ms. Mrozinski submits that while the JRPA does not provide damages as a remedy, the Crown did not rely on that fact as a technical bar to the petitioners' claims. She notes, however, that the absence of that remedy in that Act underscores the fact that the issues are public law issues for which the historical remedy is prerogative relief against the Crown and not damages. In my opinion, the absence of a damages remedy in the JRPA is irrelevant. That Act, which embodies historical legislation governing remedies against government actions or omissions, both predates the Charter and is subject to its provisions.

[55] In resisting an award of monetary damages, the Crown relies on the qualified immunity enjoyed by a government acting under authority of a statute subsequently found to be unconstitutional. Ms. Mrozinski submits that, in the absence of wrongful conduct, bad faith, negligence or collateral purpose, qualified immunity applies to all breaches arising out of its exercise of policy functions. She relies on the principles in Guimond v. Quebec (Attorney General), [1996] 3 S.C.R. 347 at paras. 13-19. See also Shewfelt v. Canada (1997), 28 B.C.L.R. (3d) 340 (B.C.S.C.) and Stenner v. British Columbia (Securities Commission) (1993), 23 Admin. L.R. (2d) 247 (B.C.S.C.), affd. (1996), 141 D.L.R. (4^th) 122 (B.C.C.A.) on other grounds.

[56] In Krznaric v. Chevrette (1997), 154 D.L.R. (4^th) 527 (Ont.Ct.Gen.Div.), the Court made an award of $5,000 for loss of opportunity to work and $7,773 for pecuniary loss to a police officer whose employer had discriminated against him by failing to accommodate his disability contrary to s. 15. At p. 549, Pardu J. stated:

He reached the following conclusion, at p. 550:

[57] Professor Roach in his book, Constitutional Remedies in Canada (Aurora: Canada Law Book, 2000) at para. 11.420 has suggested that qualified immunities for government have been justified on the basis "they are required to treat officials fairly and that without them, officials might be prevented from performing their public duties in a vigorous fashion." I agree with his further suggestion that the rationale for a qualified immunity is more relevant to the liability of individual officials rather than (as in this case) governments because it is much more difficult to "overdeter" governments than officials.

[58] I conclude that the issues of immunity and good faith are not relevant in this case where the Government's breach consisted of a failure to accommodate the needs of the autistic petitioners.

[59] The Crown points out that no damages were awarded (or sought) in such cases as Eldridge where the legislation's failure to provide interpreters denied the deaf petitioners access to health services. The appropriate remedy in the latter case was a declaration accompanied by a direction to administer the relevant legislation in a manner consistent with the requirements of the Charter.

[60] It would seem that an award of monetary damages may be more appropriate in the case of a violation of Charter rights of a single person or identifiable group of persons (as in Krznaric). In this case, the petitioners represent but four families of a large and unidentified group of autistic children and their parents, all of whom could presumably claim an infringement of their s. 15 rights. To compensate the petitioners for all of their expenses for Lovaas Autism Treatment could open the "floodgates" to a much larger group seeking reimbursement for the past and future costs of Lovaas Autism Treatment or other autism treatment that they have funded privately. On the other hand, is it appropriate and just that these petitioners recoup their treatment expenses and those who have not sued the Crown for compensation do not, despite the breach of their rights?

[61] The petitioners submit that compensatory damages would restore them to the economic position they would have been in but for the Charter violation. I do not agree that fully reimbursing the petitioners for the costs of Lovaas Autism Treatment would place them in that position. The evidence unequivocally establishes that had the Government provided Early IBI, such treatment would not have been in the form of Lovaas Autism Treatment.

[62] In Schachter, the Court held the Employment Insurance Act that provided some benefits to adoptive parents that were not given to biological parents to be under-inclusive. The benefit was not one the government was constitutionally obligated to provide to either group. However, by virtue of the section 15 Charter violation, Parliament was obliged to equalize the provision of the benefit if it was to be provided at all. The Court stated at page 725:

The Court considered two possibilities. The plaintiff could have received the benefit equally with the other beneficiaries, or Parliament could have failed to provide the benefit to anyone. It was likely that the group of biological parents to whom the benefit was previously excluded vastly outnumbered the group of adoptive parents to whom the benefit had been provided. Since it could not be assumed that Parliament would have enacted the benefit to include biological parents, the plaintiff could not show that she was in a worse position than had there been no wrong. An award of damages was therefore inappropriate.

[63] The family of Miki Tamir has apparently spent in excess of $240,000 on Lovaas Autism Treatment. To their credit, they made that decision to expend those moneys in their daughter's best interests. But it cannot be assumed that had the Government offered Early IBI to autistic children, including Miki, at all relevant times, it would have expended that sum of money on a single child. A just and appropriate award cannot be determined by reference to the petitioners' outlay of funds for Lovaas Autism Treatment.

[64] While each case must be determined individually, I see no reason in principle why an award of damages cannot be made in an appropriate case to advance the twin remedial purposes of governmental behaviour modification and compensation for an applicant whose Charter rights have been breached. I conclude that it is appropriate and just to award a symbolic sum of damages of $20,000 to each of the four adult petitioners who have shouldered the financial and emotional burdens of litigation on behalf of, and for the benefit of, a wider community of autistic families. These relatively modest awards make no attempt to quantify any damages suffered by the petitioners and do not reflect actual costs incurred for autism treatment to the infant petitioners. They symbolize, in some tangible fashion, the fact that the petitioners have achieved a real victory on behalf of all autistic children whose rights were infringed. A symbolic figure also avoids an inquiry into what expenses the Government would have funded had it complied with its constitutional requirements to treat the infant petitioners' disability. In sum, a symbolic award provides partial, albeit minimal, compensation to the petitioners and acknowledges the intransigence of Government in responding to long-standing requests and demands for autism treatment.

[65] An "appropriate and just" remedy must be determined by the particular circumstances of the case under consideration. I conclude that the petitioners are entitled to the following relief:

• There will be a declaration that the Crown's failure to provide the infant petitioners with effective treatment for their medical condition of autism constitutes a denial of their rights under s. 15(1) Charter.
• There will also be a direction that the Crown fund early intensive behavioural therapy for children with autism, including autism spectrum disorder. It is presumed that the Government will act in good faith in implementing the appropriate policies to meet its constitutional obligations.
• The adult petitioners are each entitled to an award of $20,000 for monetary damages.

[66] As I stated in Auton #2, it is the Government, rather than a particular Ministry or the Medical Services Commission ("MSC"), that failed to meet its constitutional obligations to provide the petitioners with appropriate treatment for their medical disability. It is for the Government, through one or more of its Ministries, to provide the necessary treatment. Accordingly, the proceeding against MSC is unnecessary and should be dismissed.

[67] Counsel indicated that they wish to address the issue of costs separately. In the circumstances, I incline to the view that the petitioners, who have shouldered the load on behalf of all parents of young autistic children, should be appropriately compensated for the costs of maintaining this extensive litigation. However, I am also aware of the recent decision of the Court in Little Sisters Book and Art Emporium v. Canada (Minister of Justice), [2000] S.C.J. No. 66 (Q.L.); 2000 S.C.C. 69, upholding the decision of Mr. Justice Smith awarding the applicant party and party costs on an increased basis (rather than the equivalent of solicitor and client costs): (1996), 48 C.P.C. (3d) 323 (B.C.S.C.). If counsel cannot agree on the appropriate method of assessing costs, they may set the matter down for a further hearing at a convenient time.

"M.J. Allan, J."
The Honourable Madam Justice M.J. Allan