McLachlin, writing for the Court, reiterated that the question here is whether the petitioners were denied a benefit in a descriminatory manner (see Law test). However, here, she claimed, the benefit of "funding for all medically required treatment" is not guaranteed by law, as it is neither promised in the Canada Health Act nor any provincial health legislation. Rather, the Health Act only guarantees funding for core services of which ABA/IBI for autism is not one.
The Court further rejected the possibility that autistics were adversely discriminated against by the underinclusiveness of the legislation. Non-core medical services, McLachlin stated, are by their very nature underinclusive and cannot be considered discriminatory.
For a claim to succeed the petitioner must establish a comparator group from which differential treatment must be shown. In this case, the Court identified the comparator group as a person who is not suffering from a mental disability who wants funding for an emergent or experimental treatment. As the petitioners were unable to show that other seekers of experimental treatments are guaranteed funding, the Court rejected the claim on this basis as well.