Ball v. Ontario (Community and Social Services), 2008 HRTO 29

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Brian Ball and the Complainants Listed on Schedule “A” Complainants

-and-

Ontario Human Rights Commission Commission

-and-

Her Majesty the Queen in Right of Ontario as Represented by the Minister of Community and Social Services Respondent

INTERIM DECISION

Adjudicator: David A. Wright Date: May 12, 2008 Citation: 2008 HRTO 29 Indexed as: Ball v. Ontario (Community and Social Services)

Human Rights Tribunal of Ontario 400 University Avenue, 7th Floor Toronto ON M7A 1T7 Phone (416) 314-0004 Fax (416) 314-8743 Toll free 1-800-668-3946 TTY (416) 314-2379 / 1-800-424-1168 E-mail hrto.registrar@ontario.ca Website www.hrto.ca

APPEARANCES

Her Majesty the Queen in Right of Ontario as Represented by the Minister of Community and Social Services, Respondent Robert E. Charney, Rochelle Fox, Sophie Nunnelley and Bruce Ellis, Counsel

Brian Ball, Sandra Bayne, Lisa Belcourt, Linda Bell, Judy Bradshaw-Clark, Arlene Buklis, John Buklis, Ruth Butts, Rita Caissie, Debbie Carriere, Devon Connors by his litigation guardian John Connors, Drew Connors by his litigation guardian John Connors, John Connors, Cassandra Cook, John H. Costello, Diane Courville, Steven Cranstone by his litigation guardian Irene Cranstone, Doral Crocker, Gail Dupont, Laura Edison, Robert Fleming, Dona Glazewski, Petrona Gray, Anne Hampel, Elsie Hartwick, Donna Hird, Suzanne Hunchuk, Brenda Ibbotson, Mary Lawrence, Richard Locke, Judy Lutynski, Margaret Mahaney, Anne Marin, Robert Martel, Neil McNeil, Vanessa Molto, Angela Ninni, Rosalynn Pear, Sandra Penner, Jamie Petit, Jessica Pietrobon by her litigation guardian Rosemary Pietrobon, Colleen Remus, Shawn Ricker, Clara Romano, Amy Scrutton, Raymond Seguin, Doug Sizer, Wendy Smith-Reeve, Clarence Snow, Frances Stapley, Victor Tessier, Randy Tilling, Angela Vermeulen, Lorena Wray, Complainants Cindy Wilkey and Mary Marrone, Counsel

Patricia Mary Frederick, Glenn V. Hedrich, Kristi Heyer, Lanny Hillier, Complainants Carl Symondson, Counsel

Julie Sauve, Complainant Lesli Bisgould, Counsel

Diane LeFebvre, Complainant Georgina Watts, Counsel

Diane Castor, Complainant Anna Zachariah, Counsel

Gerald Hilborn, Sara Hormuz, Randy King, Debbie MacDonald, Carole Manke, Andrea Nelson, Etta Tursa, Patricia Ray, Gregory Yurke, Complainants On their own behalf

John MacDonald, by his litigation guardian Debbie MacDonald, Complainant Debbie MacDonald, Litigation Guardian

Ontario Human Rights Commission Cathy Pike, Counsel

WRITTEN SUBMISSIONS BY

Suzanne Hunchuk, Deborah Wickham, Complainants On their own behalf

INTRODUCTION

1On April 17, 2008, the Tribunal issued an Interim Decision in this matter, Ball v. Ontario (Community and Social Services), 2008 HRTO 24, which set out a proposed procedural order and invited submissions from the parties on it. This decision finalizes that procedure.

2Ms. Fox, on behalf of the respondent, and Ms. Wilkey, on behalf of clinic caseworkers representing a large number of complainants, made requests for minor changes to the Tribunal’s order that do not affect the substance of the approach the Tribunal proposed to adopt in the previous decision. I agree that all of the changes requested are appropriate. No other parties made submissions, and accordingly I will make an order implementing the proposed procedure with these changes. I have also adjusted several dates that fell on non-working days to the next working day.

3I note that in previous correspondence and during the case conference, counsel for the respondent made it clear that its agreement to this approach did not constitute a waiver of its right to bring a request to stay these proceedings as a result of litigation on the same matter currently before the Social Benefits Tribunal. I confirm that neither the respondent’s agreement to the proposed procedure, nor anything in this decision or the Tribunal’s previous decisions, affects the respondent’s right to request a stay of proceedings on this basis.

4Finally, I extend my appreciation to the parties and counsel for their fine advocacy and cooperation with each other and the Tribunal in developing this workable procedure for the determination of these complex cases.

ORDER

5The Tribunal makes the following Order:

1. Rules 57 to 67 of the Tribunal’s Rules of Practice shall not apply to these cases.
2. By June 2, 2008, Ms. Wilkey shall advise the Tribunal and parties in all cases of two to six complaints chosen, with the consent of the Commission and the respondent, to proceed as lead cases.
3. By June 2, 2008, the Commission shall disclose its investigation files in the lead cases. The lead case complainants shall disclose all relevant non-medical and non-privileged documents within their possession and control.
4. By June 16, 2008, the Commission and complainants shall identify any issues that they believe have been referred to the Tribunal and are unrelated to the special diet allowance. The Commission (and any complainants who wish to make submissions on this issue) shall advise the Tribunal by June 30, 2008 of their position on how such matters should be determined. The respondent shall respond with its position on how such matters should be determined by July 15, 2008.
5. By June 16, 2008, Ms. Wilkey shall advise the Tribunal of proposed hearing dates agreeable to the Commission, the lead case complainants, and the respondent. The parties should consult on how many hearing dates will be set at this stage.
6. By June 16, 2008, the respondent shall disclose an initial group of primary non-privileged documents relevant to the special diet allowance discrimination claim. Additional non-privileged documents that respond to the clinic complainants’ disclosure request, attached as Schedule “B”, shall be disclosed as they become available.
7. By July 2, 2008, the respondent shall advise the Commission and the lead case complainants of its position on item 4 of Schedule “B”.
8. By July 15, 2008, the respondent shall disclose all relevant non-privileged documents within its possession and control.
9. The Tribunal shall schedule a conference call on July 23, 2008 at 10:00 a.m. in the lead cases to determine any disputes arising from the respondent’s production.
10. By September 15, 2008, the Commission and lead case complainants shall serve and file their individual medical and expert evidence. They shall also serve and file pleading(s) containing an outline of the material facts upon which they rely, their position on the issues to be decided and their desired remedies.
11. By November 14, 2008, the respondent shall file its evidence in response, including any expert evidence. It shall also serve and file a pleading outlining the material facts upon which it relies and its position on the issues to be decided.
12. By December 12, 2008, the Commission and lead case complainants shall file any reply to the respondent’s pleadings.
13. The parties shall make best efforts to prepare an Agreed Statement of Facts. Any such statement shall be filed by January 15, 2009.
14. The lead case complainants shall be identified only by letters of the alphabet in all public documents.
15. The Tribunal shall remain available to decide any disputes regarding the implementation of this timetable in a summary manner.
16. The Commission shall continue as a party to all of these complaints throughout the proceedings.
17. Following the decision on the lead cases, the Tribunal shall schedule a case conference to determine a procedure to address the remaining cases.
18. This Order does not affect the right of the respondent to request a stay of proceedings as a result of litigation before the Social Benefits Tribunal.

Dated at Toronto, this 12th day of May, 2008.

“Signed by”

David A. Wright Vice-Chair

Schedule “A”

COMPLAINANT REPRESENTATIVE

• Ball, Brian – 1443-07 Glenda Devlin
• Bayne, Sandra –1444-07 David Balderston
• Belcourt, Lisa – 1445-07 Nora Simpson
• Bell, Linda – 1446-07 Seana Moorhead
• Bradshaw-Clark, Judy – 1447-07 Nora Simpson
• Buklis, Arlene – 1448-07 Norma MacKenzie
• Buklis, John – 1449-07 Norma MacKenzie
• Butts, Ruth – 1450-07 Jessica S. Michael
• Caissie, Rita –1451-07 Nora Simpson
• Carriere, Debbie – 1452-07 Jessica S. Michael
• Caster, Diane – 1453-07 Anna Zachariah
• Connors, Devon by his litigation guardian John Connors – 1454-07 Jessica S. Michael
• Connors, Drew by his litigation guardian John Connors – 1455-07 Jessica S. Michael
• Connors, John – 1456-07 Jessica S. Michael
• Cook, Cassandra – 1457-07 Norma MacKenzie
• Costello, John H. – 1458-07 Vicki Doidge
• Courville, Diane – 1459-07 Stuart Bailey
• Cranstone, Steven by his litigation guardian Irene Cranstone – 1460-07 Colleen Sym
• Crocker, Doral – 1461-07 Jessica S. Michael
• Dawe, Karen – 1462-07
• Donald, Linda C. – 1463-07
• Dupont, Gail – 1464-07
• Edison, Laura – 1465-07 Jessica S. Michael
• Edwards, Terry – 1466-07
• Fleming, Robert – 1467-07 Nora Simpson
• Frederick, Patricia Mary – 1468-07 Carl Symondson
• Glazewski, Dona – 1469-07 Nora Simpson
• Gray, Petrona – 1470-07 Nora Simpson
• Hampel, Anne – 1471-07 Norma MacKenzie
• Hanna, Judy – 1472-07
• Hartwick, Elsie – 1473-07 Jessica S. Michael
• Hedrich, Glenn V. – 1474-07
• Heyer, Kristi – 1475-07 Carl Symondson
• Hilborn, Gerald – 1476-07
• Hillier, Lanny - 1477-07 Carl Symondson
• Hird, Donna – 1478-07 Nora Simpson
• Hormuz, Sara – 1479-07
• Hunchuck, Suzanne – 1480-07
• Ibbotson, Brenda – 1481-07 Jessica S. Michael
• King, Randy – 1482-07
• LaFranchise, June – 1483-07
• Lawrence, Mary – 1484-07 Deborah Kehler
• LeFebvre, Diane – 1485-07 Georgina Watts
• Locke, Richard – 1486-07 Nora Simpson
• Lutynski, Judy – 1487-07 Jessica S. Michael
• MacDonald, Debbie – 1488-07
• MacDonald, John by his litigation guardian Debbie MacDonald – 1489-07
• Mahaney, Margaret - 1490-07 Nora Simpson
• Manke, Carole – 1491-07
• Marin, Anne – 1492-07 Laura J. Hunter
• Martel, Robert – 1493-07 Stuart Bailey
• McNeil, Neil – 1494-07 Jessica S. Michael
• Molto, Vanessa – 1495-07 Nora Simpson
• Nelson, Andrea – 1496-07
• Ninni, Angela – 1497-07 Nora Simpson
• Pear, Rosalynn – 1498-07 Deborah Kehler
• Penner, Sandra – 1499-07 Stuart Bailey
• Petit, Jamie – 1500-07 Laura J. Hunter
• Pietrobon, Jessica by her litigation guardian Rosemary Pietrobon – 1501-07 Vicki Doidge
• Ray, Patricia – 1502-07
• Remus, Colleen – 1503-07 Laura J. Hunter
• Ricker, Shawn – 1504-07 Seana Moorhead
• Romano, Clara – 1505-07 Seana Moorhead
• Sauve, Julie – 1506-07 Susan Campbell
• Scrutton, Amy – 1507-07 Jessica S. Michael
• Seguin, Raymond – 1508-07 Stuart Bailey
• Sizer, Doug – 1509-07 Jessica S. Michael
• Smith-Reeve, Wendy – 1510-07 Andrew C. Bolter
• Snow, Clarence – 1511-07 David Balderston
• Stapley, Francis – 1512-07 Jessica S. Michael
• Tessier, Victor – 1513-07 Stuart Bailey
• Tilling, Randy – 1514-07 Nora Simpson
• Tursa, Ella – 1515-07
• Vermeulen, Angela – 1516-07 Nora Simpson
• Wickham, Deborah – 1517-07
• Wray, Lorena – 1518-07 Jessica S. Michael
• Yurke, Gregory – 1519-07

Schedule “B”: Disclosure Request

1. Documents related to the content of the current special diet program and schedule

• For each of the medical conditions included in the special diet schedule, any documents that identify the type of diet that the benefits are intended to purchase and the medical treatment principle underlying the diet
• For each of the medical conditions included, any documents or reports which explain how the amount of each benefit was calculated.

2. Documents related to the development of the current special diet program and schedule, including

• Any documents, papers, memos, briefing notes containing program analysis, policy options (including any alternative approaches that were considered and rejected and the reasons therefore), impact analysis (including financial, budgetary, special diet case numbers), instructions that Ministry staff were working from and including any materials that provide the rationale for the inclusion and exclusion of any medical conditions considered during the analysis.
• Any external documents, reports, research commissioned, considered or relied upon in the development of the current special diet program.

3. Financial and case analysis of the current special diet program since implementation

4. Documents relating to the Ministry Expert Review Process Any and all documents in the possession of or under the control of the Crown pertaining to the expert review process set up by the Ministry of Community and Social Services in May 2006 and described in correspondence from C. McMullin dated May 5, 2006, including but not limited to:

• the terms of reference of the expert review committee
• the names and qualifications of the members of the committee
• copies of all submissions received by the committee
• any other material provided to or reviewed by the committee
• any and all reports, documents or other information generated by or on behalf of the committee, including any recommendations for changes to the special diet schedule
• any and all reports, documents or other information generated by the Ministry on the basis of the work of the expert review committee