Denis Pilon v. Her Majesty the Queen in Right of Ontario as Represented by the Minister of Community and Social Services, 2008 HRTO 380

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Denis Pilon

Applicant

-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: December 11, 2008

Citation: 2008 HRTO 380

Indexed as: Pilon v. Ontario (Community and Social Services)

WRITTEN SUBMISSIONS BY

Denis Pilon, Applicant ) On His Own Behalf

INTRODUCTION

1This Application is a challenge to the special diet allowance under the Ontario Disability Support Program. There are currently over one hundred cases challenging this allowance before the Tribunal. Accordingly, the Tribunal, in conjunction with the parties in the first groups of cases developed a procedure by which five cases will be heard in advance of others as “lead cases”. Hearings in the lead cases are scheduled in March, April and June of 2009. The remaining cases will be heard afterwards, following a procedure developed at a case conference after the decision on the leading cases.

2In a previous Interim Decision in this matter, Pilon v. Ontario (Community and Social Services), 2008 HRTO 280, the Tribunal indicated that it would apply the lead case approach to any new applications relating to the special diet allowance unless there are compelling reasons not to do so. It permitted the parties until December 2, 2008, to make submissions with regard to the procedure to be applied in this case, and noted that otherwise the procedure outlined in the decision would apply.

3The applicant sent submissions to the Tribunal. I note that they were not copied to the respondent, as required by Rule 1.12 of the Tribunal’s Rules of Procedure. A copy shall be sent to the respondent with this decision.

4The applicant states that the procedure in his case should be determined individually. He states that his claim relates to visual impairments, low vision and blindness which is likely different from the other cases.

DECISION

5The many applicants who have cases currently before the Tribunal have various disabilities. While five cases are proceeding before the others, before a final decision in any case the parties will have a right to make oral submissions related to the particular facts of the case, as required by s. 43 (2) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”). The parties expect that the principles may be established in the lead cases and then can be applied to particular facts in the other cases.

6The Tribunal accepted the lead case procedure for the following reasons, set out in Ball v. Ontario (Community and Social Services), 2008 HRTO 24 at paras. 6-7:

I find that the joint proposal by counsel represents a procedure that is fair, just and expeditious and I propose to make an order implementing that procedure, with some modifications. I understand the frustration of the complainants who would like this matter determined much faster. However, to determine the merits of the complaints, the Tribunal must decide whether the contested program violates the Code. In doing so, its role is not to decide what in its view is the best policy, but rather to adjudicate whether the legislative regime has the effect of discriminating based upon one of the prohibited grounds in the Code and, if applicable, if a defence under the Code has been established. The Tribunal can only do so after hearing evidence and argument from all sides.

Legal proceedings of this nature, which are complex and involve the review, preparation and presentation of much evidence (including expert medical reports) and detailed legal argument, often take considerable time. In my view, the period proposed here is not unreasonable in light of the issues in these cases and the preparation required. Establishing the applicable legal principles in the lead cases and then applying them in other cases will likely lead to a faster resolution of all of the cases than hearing them all together or one at a time. I am also confident that in making this proposal, counsel for the Commission and the complainants have taken into account the interests of complainants in having the matters resolved as quickly as possible and fully presenting the evidence and arguments on behalf of their clients.

7In my view, there is no reason for this Application to be treated differently from the many others raising the same concerns currently before the Tribunal.

ORDER

8No further steps in the Application will be required until the final decision in the lead cases. The Registrar is directed to send the applicant all future decisions in the lead cases. Within 60 days of the final decision in the lead cases, the applicant shall advise the Tribunal of how he wishes to proceed, and if he does not do so, the respondent may ask that the Application be dismissed.