Elke Sengmueller

The complainants requested a reconsideration of a previous Tribunal decision that found discrimination regarding the special diet allowance for social assistance recipients with chronic hepatitis C. The complainants argued the Tribunal should have also made findings and ordered remedies regarding cirrhosis from other causes.

The Tribunal dismissed the request for reconsideration, finding that its decision to limit findings to the specific disability of the lead complainant (chronic hepatitis C) was consistent with its established approach to the special diet litigation.

The Tribunal reiterated that it acts as an arbiter of individual rights violations, not as a designer of the government's social welfare programs.

The complainants, who receive Ontario Disability Support Program benefits and have been diagnosed with chronic hepatitis C, alleged that the special diet allowance program discriminated against them on the basis of disability.

Applying the test from Ball v. Ontario, the Tribunal found that there is general recognition in the Ontario medical community that individuals with chronic hepatitis C require modifications to a regular healthy diet, specifically increased protein and energy.

The Tribunal concluded that the complainants established disability-based discrimination and ordered the respondent to provide retroactive and ongoing special diet allowances for chronic hepatitis C.

The applicant sought judicial review of a Human Rights Tribunal decision finding that the respondent was discriminated against due to the lack of a special diet allowance for hypoproteinemia under the Ontario Disability Support Program.

The Divisional Court reviewed the Tribunal's decision on a reasonableness standard.

The Court found that there was no evidence before the Tribunal to support its finding that eating additional protein from food sources is generally recognized in the Ontario medical community as an appropriate treatment for hypoproteinemia.

Consequently, the Tribunal's decision was deemed unreasonable and quashed regarding the respondent's claim for a special diet allowance for elevated protein requirements.

Three lead complainants alleged that the special diet allowance component of the Ontario Disability Support Program (ODSP) discriminated against them on the basis of disability.

The Tribunal established a four-part test to determine discrimination in the program: the claimant must have a disability, there must be general medical recognition that a special diet is required, the diet must lead to additional food costs, and the funding must be non-existent or significantly disproportionate to the costs.

The Tribunal found that the program discriminated against W. by failing to fund hypoproteinemia and underfunding hypertension and hypercholesterolemia.

S. was discriminated against due to underfunding for extreme obesity, and B. was discriminated against due to underfunding for hypercholesterolemia.

The Tribunal ordered the respondent to provide retroactive and ongoing benefits in accordance with the Code principles, but declined to award general damages or order a specific redesign of the program.