Ball v. Ontario (Community and Social Services) (No. 8)

HR-1519-07, HR-1443-07, HR-1656-08, HR-1788-08, HR-1732-08, HR-1692-08

2010-02-17

2010 HRTO 360

Ontario Human Rights Tribunal

CHRR Doc. 10-0419

Brian Ball and the Complainants Listed on Schedules A, B and C*

Complainants

and

Ontario Human Rights Commission

Commission

v.

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

Respondent

Date of Decision: February 17, 2010

Before: Human Rights Tribunal of Ontario, David A. Wright

File Nos.: HR-1443-07 to HR-1519-07 and HR-1656-08 to HR-1692-08 and HR-1732-08 to HR-1788-08

Appearances by:

Sarah Shartal, Counsel for the Complainant Brian Ball

Cynthia Wilkey, Lesli Bisgould, Mary Marrone and Colleen Sym, Counsel for the Complainant S.

Andrew Bolter and Jill Houlihan (Student-at-Law), Counsel for the Complainant W.

Cathy Pike and Christine Elwell, Counsel for the Commission

Robert E. Charney, Rochelle Fox, Sophie Nunnelley and Bruce Ellis, and Richard Ogden and Megan Howatt (Students-at-Law), Counsel for the Respondent

BENEFITS — PUBLIC SERVICES AND FACILITIES — social assistance benefits inadequate — special diet allowance — DISABILITY — discriminatory treatment of the disabled — financial assistance program discriminatory — temporary disability — definition of disability

AFFIRMATIVE ACTION — definition, purpose and application of special program — EQUALITY — equality rights and the disabled — CANADIAN CHARTER OF RIGHTS AND FREEDOMS — s. 15(1) (equality) — s. 15(2) (affirmative action programs) — DAMAGES — social assistance benefits

JURISDICTION — jurisdiction to hear complaint concerning government regulation — INTERPRETATION OF STATUTES — definition of "disability" — PROCEDURE — lead case proceedings

Summary: The Human Rights Tribunal of Ontario ruled on three complaints alleging that the special diet allowance, which is one component of Ontario Disability Support Program ("ODSP") benefits, discriminates between individuals with different types of disabilities. The complainants alleged either that they have disabilities that require special diets that are not funded at all, or that the special diet that they require is funded at a lower proportion of actual expenses than the special diets for other disabilities.

The three complaints heard by the Tribunal are "lead cases" among many that have been filed alleging that the special diet allowance is discriminatory. The Tribunal in this decision sets out a legal framework for determining whether there is discrimination in the special diet allowance scheme.

The special diet allowance is one of four components that make up basic financial assistance under the Ontario Disability Support Program Act, 1997. ODSP is an income security program of last resort. The four components are the shelter allowance, basic needs (which is intended to cover all other necessities including food), the northern allowance for those living north of the 50th parallel, and the special diet allowance.

Before November 2005 the special diet schedule was set out in a policy, not a regulation, and was not based primarily on medical conditions. The schedule identified various diets or nutritional products. An approved health practitioner had to fill out a form to authorize a special diet allowance. Some of the diets set out in the pre-2005 schedule were based on medical conditions, such as the diabetic diet and cystic fibrosis diet. Other categories reflected specific needs, such as a high fluid diet, or vitamins/minerals and herbal supplements. There was also a discretionary category for special diets other than, or in addition to, those set out in the schedule.

Since 2005 the special diet allowance schedule is set out in a regulation. The schedule is based entirely on medical condition. Monthly benefit amounts are specified for each listed medical condition, which range from $10 to $240. After the implementation of the new 2005 schedule, 23 percent of ODSP recipients saw an increase in their special diet allowance, 58 percent saw a decrease and 19 percent saw no change.

The Tribunal acknowledged the difficulty of addressing discrimination in a program which, by definition, must make categories. Funding is not customized to the particularized needs of each recipient. The Tribunal's role, it pointed out, was not to decide what would be the best or fairest way to set up the special diet program, but to determine whether the current program discriminates on the basis of disability.

The Tribunal found that the purpose of the special diet allowance is to assist social assistance recipients who have an existing medical condition, which the Ontario medical community recognizes as warranting a special diet, and the special diet imposes costs in excess of a regular, healthy diet.

The Tribunal determined that in order to establish discrimination related to the special diet allowance a complainant must show:

1. that the claim is based on a disability or disabilities;

2. that there is general recognition in the Ontario medical community that modifications to a healthy diet should be made because of the disability;

3. the diet leads to additional food costs;

4. there is no funding for the additional costs or the funding is significantly disproportionate (up to the maximum of $250).

The Tribunal rejected the argument of the Minister of Community and Social Services that the Tribunal has no role in evaluating the amount of funding provided for the different medical conditions. While there must be some deference given to the amounts specified in the schedule, the Tribunal said, when the amount allocated is significantly disproportionate to the amount of the additional costs as compared with other disabilities, there must be a finding of discrimination.

The Tribunal also rejected an argument by the Minister that because the special diet program is designed to relieve hardship and economic disadvantage, it is a special program as defined in s. 14(1) of the Code, and the Tribunal cannot find that it violates the complainant's Code rights.

Section 14(1) says: "A right [to non-discrimination] is not infringed by the implementation of a special program designed to relieve hardship or economic disadvantage..."

But the Tribunal found that when a challenge to a program comes from a person whom the program is designed to assist, the general prohibitions against discrimination apply. The role of s. 14 is to address challenges from those who are not the intended beneficiaries of a particular program.

W. is a 57-year-old woman who lives in Sarnia. She has a history of various medical conditions, including heart disease, cardiovascular disease, osteoarthritis, bipolar affective disorder, hypercholesterolemia, hypothyroidism, hypoproteinemia, and hypertension. She receives a monthly special diet allowance of $42, which includes $10 for cardiovascular disease, $10 for hypertension and $22 for hypercholesterolemia. Prior to 2005, W. received an allowance of $244. W. alleges that the present special diet allowance schedule discriminates against her by failing to include hypoproteinemia (protein deficiency), a medical condition which requires her to eat extra protein. The schedule also discriminates against her because the amounts allowed for hypertension, hypercholesterolemia and cardiovascular disease are significantly lower than the increased costs of the special diets required as a result of these medical conditions.

The Tribunal concluded that W. was discriminated against in two ways: because there was no funding for hypoproteinemia and because the funding for the combination of hypertension and hypercholesterolemia was insufficient.

S. is a 32-year-old man who lives in Burlington. His complaint was brought on his behalf by his litigation guardian, his mother. S. has a clinical condition similar to Prader-Willi syndrome, and is developmentally delayed. He has behaviour problems, including a psychological compulsion to eat. He is "morbidly obese" and needs a diet of high fibre, low-calorie food that provides volume high enough to satisfy his drive to eat without compromising weight control. He currently receives a special diet allowance of $20 per month, which is insufficient to provide him with the foods he needs.

The Tribunal concluded that S. was discriminated against as a result of an insufficient amount of special diet allowance for obesity.

B. is a 47-year-old man who lives in Toronto. He suffers from major depression, ulcers, asthma, and osteoarthritis. He has been hospitalized many times for his depression, suicidal and homicidal behaviour. He receives $52 dollars per month because of hyperlipidemia, hepatic disorder and hypercholesterolemia. Prior to 2005, he received a monthly special diet allowance of $250. He alleges that in 2006 and 2007 he was unable to afford healthy food, lost weight, and his depression worsened. After a new assessment, his monthly dietary allowance has gone back up to $250, but B. claims that the special diet schedule discriminates against him because it does not provide benefits for those who have severe mental health disabilities with a risk of weight loss.

The Tribunal allowed B.'s complaint in part, finding that during the 2006—2007 period, there was a significant underfunding for hypercholesterolemia.

The Tribunal ordered the Minister of Community and Social Services to rectify the discrimination against these three complainants, by including special diet allowances for those conditions that were not included in the schedule and increasing the amounts for other conditions, as indicated.

However, the Tribunal declined to make a more detailed order regarding the regulation. The Minister may choose various ways of addressing other changes to the special diet allowance that may be necessary as a result of the principles set out in this decision. Should the Minister fail to take appropriate action, there are many other complaints before the Tribunal in which other remedies could be requested.

See also (No. 1) (2008), CHRR Doc. 08-166, 2008 HRTO 19; (No. 5) (2008), CHRR Doc. 08-626, 2008 HRTO 88 and (No. 9) (2010), CHRR Doc. 10-1503, 2010 HRTO 1277.

CASES CITED

A.C. v. Manitoba (Child and Family Services), [2009] 2 S.C.R. 94, 2009 SCC 30: 64

Airport Taxicab (Malton) Assn. v. Piazza (1989), 1989 CanLII 4071 (ON CA), 10 C.H.R.R. D/6347 (Ont. C.A.): 165

Andrews v. Law Society of British Columbia, 1989 CanLII 2 (SCC), [1989] 1 S.C.R. 143, 10 C.H.R.R. D/5719: 74

Auton (Guardian ad litem of) v. British Columbia (Attorney General), [2004] 3 S.C.R. 657, 2004 SCC 78: 71

Ball v. Ontario (Community and Social Services) (No. 2) (2008), CHRR Doc. 08-207, 2008 HRTO 24: 3

Ball v. Ontario (Community and Social Services) (No. 3) (2008), CHRR Doc. 08-266, 2008 HRTO 29: 3

Ball v. Ontario (Community and Social Services) (No. 4) (2008), CHRR Doc. 08-585, 2008 HRTO 72: 3

Ball v. Ontario (Community and Social Services) (No. 6) (2008), CHRR Doc. 08-787, 2008 HRTO 207: 3

Ball v. Ontario (Community and Social Services) (No. 7) (2008), CHRR Doc. 08-1080, 2008 HRTO 420: 3

Brooks v. Canada Safeway Ltd., 1989 CanLII 96 (SCC), [1989] 1 S.C.R. 1219, 10 C.H.R.R. D/6183: 69

Chipperfield v. British Columbia (Ministry of Social Services) (No. 2) (1997), 1997 CanLII 24842 (BC HRT), 30 C.H.R.R. D/262 (B.C.H.R.T.): 107

Delisle v. Canada (Attorney General), 1999 CanLII 649 (SCC), [1999] 2 S.C.R. 989: 78

Doucet-Boudreau v. Nova Scotia (Minister of Education), [2003] 3 S.C.R. 3, 2003 SCC 62: 163, 174

Elkas v. Blush Stop Inc. (No. 1) (1994), 1994 CanLII 18421 (ON HRT), 25 C.H.R.R. D/158 (Ont. Bd.Inq.): 127

Ermineskin Indian Band and Nation v. Canada, [2009] 1 S.C.R. 222, 2009 SCC 9: 64

Freitag v. Penetanguishene (Town) (No. 2) (2009), CHRR Doc. 09-2274, 2009 HRTO 1712: 154

Gibbs v. Battlefords and Dist. Co-operative Ltd., 1996 CanLII 187 (SCC), [1996] 3 S.C.R. 566, 27 C.H.R.R. D/87: 69, 74, 121

Gosselin v. Quebec (Attorney General), 2002 SCC 84, [2002] 4 S.C.R. 429, 44 C.H.R.R. D/363, 2002 SCC 84: 96, 105

Granovsky v. Canada (Minister of Employment and Immigration), [2000] 1 S.C.R. 703, 2000 SCC 28: 73, 129

Hodge v. Canada (Minister of Human Resources Development), [2004] 3 S.C.R. 357, 2004 SCC 65: 72

Law v. Canada (Minister of Employment and Immigration), 1999 CanLII 675 (SCC), [1999] 1 S.C.R. 497: 63

Lovelace v. Ontario, [2000] 1 S.C.R. 950, 2000 SCC 37: 115

Mackin v. New Brunswick (Minister of Finance), [2002] 1 S.C.R. 405, 2002 SCC 13: 168, 174

Malkowski v. Ontario (Human Rights Comm.) (2006), CHRR Doc. 06-918, 2006 CanLII 43415 (ON SCDC), [2006] O.J. No. 5140 (QL): 154, 172

Montréal (Communauté urbaine) c. Québec (Comm. des droits de la personne et des droits de la jeunesse), 2004 SCC 30, [2004] 1 S.C.R. 789, 49 C.H.R.R. D/129, 2004 SCC 30: 164, 170

Nahal v. Globe Foundry Ltd. (1993), 1993 CanLII 16468 (BC HRT), 21 C.H.R.R. D/136 (B.C.C.H.R.): 127

Nova Scotia (Workers' Compensation Board) v. Martin, [2003] 2 S.C.R. 504, 2003 SCC 54: 73, 86, 96, 105, 118

O.S.S.T.F. v. Upper Canada Dist. School Board (2005), 2005 CanLII 34365 (ON SCDC), 78 O.R. (3d) 194 (Div.Ct.): 63

Ontario (Attorney General) v. Ontario (Human Rights Comm.) (2007), 2007 CanLII 56481 (ON SCDC), 88 O.R. (3d) 455, 62 C.H.R.R. D/315 (Div.Ct.): 63, 170

Ontario (Disability Support Program) v. Tranchemontagne (2009), 2009 CanLII 18295 (ON SCDC), 95 O.R. (3d) 327, CHRR Doc. 09-2271 (Div.Ct.): 66, 75

Ontario (Human Rights Comm.) and O'Malley v. Simpsons-Sears Ltd., 1985 CanLII 18 (SCC), [1985] 2 S.C.R. 536, 7 C.H.R.R. D/3102: 66

Ontario (Human Rights Comm.) and Roberts v. Ontario (Ministry of Health) (1994), 1994 CanLII 1590 (ON CA), 19 O.R. (3d) 387, 21 C.H.R.R. D/259 (C.A.): 111, 116

Ouimette v. Lily Cups Ltd. (1990), 1990 CanLII 12497 (ON HRT), 12 C.H.R.R. D/19 (Ont. Bd.Inq.): 127

Québec (Comm. des droits de la personne et des droits de la jeunesse) et Mercier c. Montréal (Ville), 2000 SCC 27, [2000] 1 S.C.R. 665, 37 C.H.R.R. D/271, 2000 SCC 27: 129

R. v. Kapp, [2008] 2 S.C.R. 483, 2008 SCC 41: 62, 75, 113

Schachter v. Canada, 1992 CanLII 74 (SCC), [1992] 2 S.C.R. 679: 166

Smith v. Mardana (No. 1) (2005), 2005 CanLII 2811 (ON SCDC), 52 C.H.R.R. D/89, [2005] O.J. No. 377 (QL) (Div.Ct.): 165

Vriend v. Alberta, 1998 CanLII 816 (SCC), [1998] 1 S.C.R. 493, 31 C.H.R.R. D/1: 118

Wynberg v. Ontario (2006), 2006 CanLII 22919 (ON CA), 82 O.R. (3d) 561 (Ont. C.A.): 96

Yeomans v. Ottawa (City) (1993), 1993 CanLII 16447 (ON HRT), 20 C.H.R.R. D/502 (Ont. Bd.Inq.): 127

Zaki v. Ontario (Community and Social Services) (No. 1) (2009), CHRR Doc. 09-2130, 2009 HRTO 1595: 61

LEGISLATION CITED

Canada

Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982,being Schedule B to the Canada Act 1982 (U.K.),1982, c. 11

s. 15: 113

s. 15(2) s: 62, 113, 118

Ontario

Human Rights Code, R.S.O. 1990, c. H.19

s. 1: 1, 59, 116, 121, 154

s. 9: 59

s. 10(1): 128

s. 14: 113, 121

s. 14(1): 60, 110

s. 45.2: 158

s. 45.2(1): 166, 172

s. 47: 59

s. 55(2): 159

Ontario Disability Support Program Act, 1997, S.O. 1997, c. 25, Sched. B

s. 1: 14

s. 4: 15

O. Reg. 562/05, s. 2(6): 20

Ontario Works Act, 1997, S.O. 1997, c. 25, Sched. A, s. 1: 14, 84

O. Reg. 564/05, s. 2(6): 20

INTRODUCTION

1This decision is about whether the Province of Ontario discriminated against three complainants with respect to services because of disability, contrary to s. 1 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"). The alleged discrimination is in the amount of the special diet allowance they received as a component of their Ontario Disability Support Program ("ODSP") benefits. The complainants allege that the special diet program discriminates between individuals with different types of disabilities who have dietary needs that fall within the purpose of the program.

2At the heart of this case is a significant tension inherent in the design of large-scale benefit programs for people with disabilities. On one hand, an important value of human rights law is responsiveness to individual characteristics and needs that stem from disability. On the other, the effective, fair, and consistent administration of benefit programs that promote equality for persons with disabilities may be better done through the use of categories. This decision requires balancing of these sometimes conflicting values in determining whether and how the special diet program violates the Code.

3The three complaints addressed in this decision are "lead cases" heard in accordance with the process set out in previous interim decisions: see 2008 HRTO 24 [CHRR Doc. 08-207], 2008 HRTO 29 [CHRR Doc. 08-266], 2008 HRTO 72 [CHRR Doc. 08-585], 2008 HRTO 207 [CHRR Doc. 08-787], and 2008 HRTO 420 [CHRR Doc. 08-1080]. Two other lead cases were settled by the parties. Hearings before the Tribunal were held on 14 days between March and June 2009. The Tribunal heard oral evidence from the lead complainants and two witnesses on behalf of the Ministry of Community and Social Services (the "Ministry"). Evidence was also received in the form of affidavits and transcripts of cross-examination. Counsel for each party presented detailed written and oral final argument.

OVERVIEW OF THE ANALYSIS

4The special diet allowance is a component of social assistance provided within the ODSP and Ontario Works ("OW") social assistance programs. As the program currently operates, there is a schedule of medical conditions with corresponding monetary amounts. An individual with a condition or conditions listed on the schedule receives additional monthly funding as part of his or her social assistance benefits, to compensate for additional costs of the special diet or diets. The program design changed in 2005. Before that, the schedule included a list of diets, and amounts paid corresponded to each diet. There was also a category pursuant to which a medical practitioner could certify that an individual required a diet not listed elsewhere on the schedule.

5The three complainants in the lead cases allege that the special diet program discriminates against them as compared with others with different disabilities. They say that they have or had disabilities that require special diets that are not funded, or that are funded at a lower proportion of the actual expenses than individuals with other disabilities.

6Determining whether there has been discrimination in these circumstances depends principally on the definition of the purpose of the program. The Tribunal must determine whether the complainants' circumstances fall within this purpose, and therefore whether they experience substantive discrimination as compared with others who receive benefits. This is a legal determination, which involves an analysis of the evidence in light of the guidance of the courts, principally the Supreme Court of Canada.

7Applying this guidance, this decision concludes that a claimant challenging the special diet program has demonstrated discrimination contrary to the Code if it is established: (i) that he or she has a disability or disabilities; (ii) that there is general recognition in the Ontario medical community that modifications to a regular healthy diet should be made because of the disability or disabilities; (iii) that the diet leads to additional food costs as compared with a regular healthy diet for a person without the disability or disabilities; and (iv) that there is no funding for the additional costs or the funding is significantly disproportionate to the additional costs (up to a maximum of $250).

8I highlight at this point some key findings regarding issues in dispute between the parties, which are analyzed in detail later in this decision:

· Where an individual has a disability or disabilities as defined in the Code, resulting in dietary needs within the purpose of the program, but which are not a specific, diagnosed medical condition, a failure to provide a special diet allowance is discriminatory.

· To make a successful claim that the failure to fund his or her special diet is discriminatory, a claimant must show that there is general recognition in the Ontario medical community that modifications to a regular, healthy diet should be made to treat the disability or disabilities. It is not sufficient to show that a medical professional recommends a specific diet for him or her.

· The purpose of the program is to fund additional costs of food. Accordingly, it is not a violation of the Code that the program does not cover the costs of supplements or food preparation.

· There is discrimination when those with different disabilities have significantly different proportions of the additional expenses of their special diet funded. The government is, however, entitled to significant deference in the costing process. Only where costs are significantly disproportionate, using equivalent costing methodology, will the amount of funding lead to a finding of discrimination.

· Section 14 of the Code, which provides for a defence based on "special programs", does not change the analysis under s. 1 of the Code in these circumstances.

· One lead complaint (W.'s) is allowed in part, based on the failure to fund hypoproteinemia and significantly disproportionate funding of hypertension and hypercholesterolemia. Another lead complaint (S.'s) is also allowed in part, based on significantly disproportionate funding of extreme obesity. The third complaint (B.'s) is allowed in part, based on significantly disproportionate funding of hypercholesterolemia.

· The Tribunal orders that the lead complainants be provided with retroactive and future benefits in accordance with the Code, and that special diet benefits for hypoproteinemia, hypertension, hypercholesterolemia and extreme obesity be provided in accordance with the Code principles set out in this decision.

· No damages are awarded for injury to dignity, feelings and self-respect. The parties agree that, in the circumstances of this case, because the claims relate to government regulations, there is a specific legal test that applies. I find that, in relation to the violations of the complainants' Code rights, this test has not been met and no damages should be awarded.

· Any policy decisions about how to ensure the special diet scheme is made consistent with the Code are for the government. The Tribunal makes no orders about general changes to the special diet regime.

9Given the large number of adjourned complaints and applications, it is appropriate to make some further comments at the outset about the nature of this decision and its impact on those cases. The Tribunal's role is not to decide what is or would be the best or fairest way to set up the special diet program. This decision is about whether the current program discriminates against the lead complainants on the basis of disability contrary to the Code. General policy decisions are for the government, not the Tribunal, and the Tribunal's role is very different from that of the Cabinet or the Legislature. At the same time, if the evidence and arguments of the parties show discrimination on the basis of prohibited grounds, it is the Tribunal's duty, assigned to it by the Legislature in the Code, to make such findings and provide a remedy.

10There was no submission at the hearing that the Code requires a particular special diet program or prevent[s] changes from being made to the program as it was structured prior to 2005. No party took the position that every person who has been denied a special diet allowance, or who experienced a reduction in special diet allowance in 2005, experienced discrimination contrary to the Code. In their pleadings and written submissions in advance of final argument, certain statements on behalf of the Commission and complainants suggested that the Code required that the schedule include a discretionary category in which conditions not included elsewhere on the schedule could be funded. In oral argument, counsel confirmed that their position is that individuals who have needs within the purpose of the program must not be excluded or disadvantaged because of disability. They are not arguing that this must necessarily be done through a discretionary category or that the failure to include one is a violation of the Code.

11My decision in these cases relates to the specific discrimination alleged by the lead complainants, given their disabilities. Although the lead complainants and the Commission presented evidence and submissions on some other conditions and circumstances, in my view it would not be appropriate for the Tribunal to make findings about matters that do not arise in the three lead complaints. The application of this decision to the facts of other complaints should be made if such disputes are directly before the Tribunal. Although the principles discussed and remedies ordered in this decision may affect others, I make no findings about any facts that are not raised in the complaints of the three lead complainants. Parties to the adjourned complaints and applications may wish to review particularly carefully § 89—109, which discuss in more detail what must be proven when making a claim that the special diet allowance discriminates. At § 176—79, I set out the next steps in the adjourned cases, and require that the claimants and/or Commission provide written submissions in each case that address the four criteria that must be proven.

12The decision continues with a discussion of the evidence regarding the special diet program and changes made to it. Next, I outline the evidence and theory of discrimination of each of the lead complainants. I then turn to the legal analysis. I consider first the legal approach to determining discrimination in these circumstances. I then address the purpose of the special diet program, and what must be proven in order to establish that it discriminates against a particular claimant. I next address the respondent's defence under s. 14 of the Code. Then, in light of the legal analysis, I consider the claims of the lead complainants, and finally the appropriate remedies.

BACKGROUND

The Special Diet Allowance as Part of Social Assistance

13The special diet allowance may be provided as part of income support under the Ontario Disability Support Program Act, 1997, S.O. 1997, c. 25, Sched. B ("ODSPA") or basic financial assistance under the Ontario Works Act, 1997, S.O. 1997, c. 25, Sched. A ("OWA"). ODSP and OW are programs of last resort. To be eligible, a recipient's family income and assets must be within allowable limits. The special diet allowance is one of the four components that make up budgetary requirements, together with the shelter allowance, basic needs and the northern allowance for recipients living above the 50th parallel without year-round road access. ODSP and OW recipients also receive drug coverage, dental and vision care coverage, and other supplementary benefits.

14Each piece of legislation begins with a statement of its purpose:

(ODSPA, s. 1)

1. The purpose of this Act is to establish a program that,

(a) provides income and employment supports to eligible persons with disabilities;

(b) recognizes that government, communities, families and individuals share responsibility for providing such supports;

(c) effectively serves persons with disabilities who need assistance; and

(d) is accountable to taxpayers of Ontario.

(OWA, s. 1)

1. The purpose of this Act is to establish a program that,

(a) recognizes individual responsibility and promotes self reliance through employment;

(b) provides temporary financial assistance to those most in need while they satisfy obligations to become and stay employed;

(c) effectively serves people needing assistance; and

(d) is accountable to the taxpayers of Ontario.

15The special diet allowance is only available to those who otherwise qualify for OW or ODSP. To qualify for ODSP, a person must have a substantial physical or mental impairment, expected to last one year or more, that has a substantial restriction on personal care, function in the community, and/or function in the workplace (ODSPA, s. 4). As of February 2009, there were 348,515 people receiving ODSP and 396,647 people receiving OW. The basic needs and shelter amounts for ODSP recipients are considerably higher than those under OW. All three of the lead complainants are ODSP recipients.

16The special diet allowance application form must be completed by an approved health professional. The form includes a list of medical conditions. The health professional must mark a box next to each medical condition for which the applicant requires a special diet, indicate the length of time the special diet is required for the medical condition, and sign a statement confirming that the individual requires a special diet for each medical condition indicated.

17A schedule in the regulations establishes specific monthly benefit amounts for each listed medical condition, which range from $10 to $240. If an approved health professional confirms more than one medical condition for a single member of the benefit unit, the amounts for each condition are added together, to a maximum of $250 per month per member of the benefit unit. The schedules are identical in the regulations governing ODSP (O. Reg. 562/05) and OW (O. Reg. 564/05).

18For many conditions, the schedule provides a single monthly amount for all individuals with that condition who require a special diet. The monthly amount varies by age for some conditions, notably celiac disease, milk/dairy allergies, and wheat allergies. The amounts are designed to compensate for additional costs such as additional servings from certain food groups, decreased intake of certain types of foods, and special products (such as Ensure or infant formula).

19For two groups of conditions set out in the schedule that may cause weight loss, the amount of the benefit varies depending upon the amount of weight lost. For the first group of conditions, there are four possible benefit amounts, depending upon the percentage of usual body weight lost (0—2 percent, 2—5 percent, 5—10 percent or more than 10 percent). For four other listed conditions, there are only two possible amounts (0—2 percent or more than 2 percent). Changes have been made to the first group since November 2005: amyotrophic lateral sclerosis ("ALS") was added in October 2006, and multiple sclerosis and lupus were added in January 2009. Evidence put forward in these proceedings was among the considerations the government took into account in making the 2009 change.

20For dysphagia/swallowing or mastication difficulties, the regulations also provide for a one-time payment of $75 "to compensate for cost of purchasing a blender" (O. Reg. 562/05, s. 2(6), O. Reg. 564/05, s. 2(6)).

Changes to the Special Diet Allowance

21The current special diet schedule came into effect in November 2005. The previous special diet schedule was different in three principal ways. First, it was set out in a policy, not a regulation. Second, it was not based primarily upon medical conditions. The schedule identified various diets or nutritional products that the approved health practitioner could indicate were required as a result of a medical condition, with a set amount for each. Some diets were based on medical conditions, such as the diabetic diet and cystic fibrosis diet. Other categories reflected specific needs, such as a high fluid diet, vitamins/minerals and herbal supplements, and cranberry juice. The medical practitioner signed the form indicating that the diet was required as a result of a medical condition. Third, there was a discretionary category for "special diet other than or in addition to a diet set out above", which had certain exceptions. The approved practitioner was required to provide details of the special diet required, and such diets were reviewed every 12 months.

22The amounts in the pre-2005 schedule were established through a detailed costing process in 1999, carried out by dieticians, which involved a determination of the additional costs of each particular diet.

23The Ministry explains that the 2005 changes came about as a result of several concerns that it had about program design and the use of the program for unintended purposes. In particular, the Ministry had concerns that some medical practitioners were indicating the need for special diets, particularly those such as bottled water, iron-rich foods, or prunes, in the absence of specific medical conditions that required them. In February 2005, the Ministry learned of a campaign by the Ontario Coalition Against Poverty ("OCAP") that included tip sheets to explain how to maximize the amount of the allowance, "special diet clinics" where health care providers were available at a particular location to make diagnoses and complete the form. At least some physicians taking part in the clinics took the position that, given low social assistance rates and the effects of poverty on health, anyone on social assistance would qualify for the maximum $250 special diet benefit.

24At about the same time, the Ontario Medical Association informed the Ministry that many of its members had raised concerns about strong pressure from patients to complete the special diet allowance form where the patient's medical condition did not justify it. In a letter dated September 29, 2005, to the Minister of Community and Social Services, the Executive Director — Health Policy of the OMA stated that "a crisis has been building in the medical profession over the last weeks concerning the Special Diet Supplement Form".

25As a result of these and other concerns about the existing design of the program, the Ministry made the decision to move to a condition-based schedule contained in a Minister's regulation. Ministry staff, including its Chief Medical Advisor, Dr. Greg De Marchi, designed the draft schedule by preserving the condition-based diets on the previous schedule, and attempting to determine the conditions for which the other listed diets were intended. Three diets — vitamins and minerals, organic diet, and bottled water — were not included on the new schedule because the Ministry concluded that they were not required for any known medical condition or did not fit the policy intent of the program.

26The design and review of the new schedule took place extremely quickly. Dr. De Marchi testified that the redesign of the schedule was considered "urgent". Following the design of the draft schedule, the Ministry formally retained five dieticians to provide written comment on the schedule. They were each asked to review it for "errors (diets incorrectly specified), deletions (diets that you feel should not be there)". The letter stated, "It is important to tie diets to specific medical conditions". Each dietician was authorized to spend a maximum of three hours on the project without further authorization, and required to respond within three days.

27Dr. De Marchi also consulted with various physician specialists during several days in late August, primarily through brief verbal discussions with them at their places of work. He testified that, given the limited time and the busy schedules of those with whom he consulted, he spoke with them wherever he could find them. As part of an agreement with the OMA regarding forms that require a physician's signature, the new form was submitted to the OMA for approval.

28To establish the amounts payable for each medical condition on the new schedule, the Ministry transferred amounts from the diets on the old schedule to the associated medical conditions. According to Dr. De Marchi, there was no consensus among the consulted experts about whether certain medical conditions required a special diet or whether there was an increased cost associated with the diet. He stated that it was decided to err on the side of overinclusion and to add those conditions to the schedule. They were assigned a monthly special diet allowance of $10, after consulting with a clinical dietician who advised in each case that if there were increased costs, they would be less than $10 per month.

29Following the implementation of the new schedule on November 4, 2005, the Ministry conducted a review of all recipients of the special diet allowance, pursuant to the transitional provisions contained in the relevant regulation. These review provisions applied to all special diet allowances, including those that health professionals may have indicated were "permanent" under the special diet allowance regime prior to November 2005.

30As part of the province-wide review, persons in receipt of special diet allowance prior to the November 2005 amendments were sent a new special diet allowance application and required to submit it, completed, to the Ministry within 90 days. During this period (or any extensions granted to it) the special diet allowance did not change. Once the completed form was returned or at the end of the specified period, the amount of the special diet allowance was determined in accordance with the new regulations, except that certain individuals under the weight loss categories were grandparented at the old amount.

31The review was completed by mid-2007. After the implementation of the November 2005 schedule, 23 percent of ODSP cases who had been receiving a special diet allowance pre-November 2005 saw an increase in their special diet allowance amount, 58 percent saw a decrease, and 19 percent saw no change.

Modifications to and Review of the Schedule

32The Ministry has stated as part of its evidence in this proceeding that it "is committed to ensuring that the schedule includes medical conditions for which a special diet is generally recognized by the medical community as an adjuvant to the treatment of that condition, and where the diet imposes costs in excess of a regular, healthy diet". Indeed, in the Transition Directive dated November 4, 2005, the Ministry stated as follows:

The Ministry will review the Schedule six months after introduction and periodically after that to confirm that it reflects medical conditions that require a special diet. Based on the review, the Schedule will be revised as required.

In addition, where new medical conditions are identified between the scheduled reviews, an ad hoc review will be undertaken and the Schedule revised as needed.

33Since 2005, the schedule has been amended only to group certain weight loss conditions together, and to add the three new conditions discussed above to the weight loss group.

34In June 2006, the Ministry appointed the Special Diet Allowance Expert Review Committee (the "Expert Review Committee"), an arms-length committee that included six physicians, six registered dieticians, a registered nurse and a community health worker. The Expert Review Committee is co-chaired by Dr. De Marchi.

35Its Terms of Reference, as set out by the Ministry, provide that its key roles are to:

· Conduct periodic reviews to help ensure that the Special Diets Schedule accurately reflects evolving medical knowledge and practice;

· Advise whether all medical conditions requiring a special diet for which there are additional costs are listed in the schedule and on the application form;

· Provide advice about the costs of a special diet associated with each medical condition listed on the schedule (costs that are in excess of a regular, healthy diet); and

· Conduct, as necessary, ad hoc reviews for medical conditions identified between periodic reviews.

36To carry out these roles, the Committee is mandated by the Terms of Reference to:

· Construct a list of medical conditions that require a special diet;

· Determine the special diet required by each condition;

· Determine the extraordinary costs of the special diets required by each of the medical conditions listed above;

· Address any other issues related to the Schedule raised by the Ministry;

· For ad hoc requests, determine whether the medical condition in question requires a special diet and, if so, determine the extraordinary costs of the required special diet.

The Terms of Reference also provide that the Committee "will not address issues regarding the Special Diet Allowance policy, individual cases, or social assistance in general".

37Committee members were selected based upon the following criteria:

· Extensive clinical experience with patients requiring special diets;

· Experience managing a sufficient volume of patients such that he or she would have likely seen all the conditions requiring a special diet in Ontario;

· Excellent academic credentials, including training in nutrition and disease (preferably at the post-graduate / doctoral level); and

· Experts in food science who are engaged by major universities and/or hospitals / health organizations to provide the scientific foundation for the clinical diets.

The Terms of Reference also provide that Committee members would be selected "to construct the most effective team possible, including consideration of the breadth and depth of the committee's expertise as a whole".

38The Committee's detailed final report was issued in April 2008. The 80-page report details various suggested changes to the schedule. It includes recommendations for removal of certain medical conditions, addition of others, changes to categories, and changes to certain benefit amounts. It explains briefly why it recommends removing certain conditions. The report includes a detailed explanation of how the Committee determined the additional cost of each condition's diet as compared with a regular, healthy diet. The report's recommendations have not been implemented.

THE COMPLAINANTS' ALLEGATIONS

W.'s Discrimination Claim

39W., the first complainant, is a 57-year-old woman who lives in Sarnia. She has a history of various medical conditions, including myocardial infarction (heart disease), cardiovascular disease, osteoarthritis in her ankles, knees and wrists, bipolar affective disorder, post-traumatic stress disorder, hypercholesterolemia (also known as dyslipidemia), hypothyroidism, hypoproteinemia, intermittent hypertension and nicotine dependence.

40W. currently receives a monthly special diet allowance of $42. This results from the schedule amounts of $10 for cardiovascular disease, $10 for hypertension, and $22 for hypercholesterolemia. Prior to the change in 2005, she received an allowance of $244. This was reduced to $22 on February 16, 2006, when the province-wide review took place, on the basis of her physician's indication on the form that the only condition on the schedule she had was hypercholesterolemia. On March 13, 2006, her special diet allowance was increased to the present amount as a result of her physician's indication on a new form that she also has cardiovascular disease and hypertension.

41W. alleges that the present special diet allowance schedule discriminates against her on the basis of disability in various ways. First, she argues that the schedule discriminates against her by failing to include hypoproteinemia (protein deficiency), a condition which a dietician, Elke Sengmueller, identified in February 2009. Supported by evidence from Ms. Sengmueller, who examined and made dietary recommendations for W. in 2009, she argues that, as a result of her medical condition, she has a medical need for extra protein, in the form of one additional low-fat meat serving per day. She estimates the additional cost of this food to be $36 per month. She states that the program discriminates against her because funding is provided for special diets required as a result of other disabilities, but not this condition.

42Second, W. alleges that the schedule discriminates against her by failing to include a category for bipolar disorder. She alleges that omega-3 fatty acid and vitamin C supplements are recommended for this condition and fall within the purpose of the program, but in failing to provide them, the program discriminates against her. The cost of omega-3 supplements is estimated at $36 per month, and cost of vitamin C at $1.50 per month. This allegation raises the more general issue of whether the failure to include funding for supplements in the schedule is discriminatory, since supplements are not included in the costing for any medical conditions.

43Third, W. alleges that the amounts provided for hypertension, hypercholesterolemia, and cardiovascular disease are significantly lower than the increased costs of the special diets required as a result of those medical conditions. She argues that this constitutes discrimination because the benefit for other medical conditions is at a level equal or closer to the increased costs of the relevant special diets.

44For hypercholesterolemia (called dyslipidemia in the Expert Committee report) and hypertension, she currently receives $32 for the combination of these conditions. The Expert Review Committee calculated the total increased cost of special diets as a result of these two conditions at $86. The Expert Review Committee calculated the amounts for dyslipidemia at $51 and hypertension at $86. However, both conditions are in a group which has similar dietary modifications. The Expert Review Committee stated that only the higher amount payable should be provided to individuals with multiple conditions in this group.

45Finally, she argues that the $10 allocated for cardiovascular disease is insufficient. She argues that omega-3 fatty acid supplementation is also recommended for this condition, at a monthly cost of $36. She acknowledges that only one amount should be paid for such supplements, and that she should not receive this amount for both bipolar disorder and cardiovascular disease.

46In summary, W. argues that a non-discriminatory special diet program should provide her with a monthly benefit of $159.50, rather than the $42 she currently receives. Of this, $122 represents alleged increased food costs as compared with a normal healthy diet, due to hypoproteinemia ($36 per month), and dyslipidemia and hypertension ($86 per month). The remaining amount, $37.50, represents alleged increased costs of supplements arising from bipolar disorder and cardiovascular disease.

S.'s Discrimination Claim

47S. is a 32-year-old man who lives in Burlington. This proceeding is brought on his behalf by his litigation guardian, his mother. S. has a clinical condition with many of the features of Prader-Willi syndrome. A chromosomal analysis has not shown the particular defect to the chromosome 15 that is required for this diagnosis. The lack of a specific diagnosis based on chromosomes is common with developmentally delayed patients.

48Like individuals diagnosed with Prader-Willi syndrome, S. is developmentally delayed, has behaviour problems and has a psychological compulsion to eat. He may become aggressive when access to food is denied and food sources are disrupted. In the words of his specialist, he is "morbidly obese" and has "obligatory eating to the point of gorging himself". S. lives in his own apartment but requires extensive supervision of his diet. His parents assist with this, as do personal support workers who are funded through the Special Services at Home program.

49S. currently receives a special diet allowance of $20 per month, for "extreme obesity: class III BMI>40". In the Expert Review Committee's proposed schedule, an amount of $51 is recommended for obesity, defined as a BMI (Body Mass Index) of greater than 30.

50S. alleges that the amount he receives does not accurately take into account the costs of the special diet related to his medical condition, which he says is different from other situations of obesity. S. alleges that dietary management is central to the treatment of his disability, so that he can avoid weight gain while managing the drive to eat. As recommended by a dietician who has treated him, he eats high fibre, low calorie food that provides volume high enough to satisfy the drive to eat without compromising weight control. The dietician recommends that he eat 13 servings of vegetables and 5 servings of fruits per day, as compared with the recommendation of 7—10 servings in the Canada Food Guide. She estimates an additional cost of at least $67 per month for the additional servings. His diet also leads to the use of whole grain products instead of refined grains, low calorie protein sources, and unsweetened products to substitute for high calorie drinks. His family also purchases some products such as cheese in individual servings, which assists him in managing his eating so he can unwrap them and eat the "whole thing". Taking time to unwrap the packages also leads to less overeating.

B.'s Discrimination Claim

51B. is a 47-year old man who lives in Toronto. He has major depression with a history of suicidal ideation and suicide attempts. He also has a history of homicidal urges. He also has post-traumatic stress disorder, ulcers, asthma, and osteoarthritis. He has been hospitalized many times for his depression, suicidal and homicidal behaviour.

52Prior to April of 2005, B. received social assistance through OW. On or about April 11, 2005, B. was found to be eligible for ODSP benefits as of January 2004. For the period from January 2004 until April 2005, he received a special diet allowance of $145 per month (high protein diet ($75 per month), high calcium diet ($30 per month) and vitamins/minerals ($40 per month)). Between April 2005 and April 2006, B. received a monthly special diet allowance of $250. This was based upon his family physician's certification that he required a high protein diet of less than 300 kcal per day ($75), vitamins/minerals ($40), organic diet ($190), iron-rich foods ($30), prunes ($10), bottled water ($30), fat/cholesterol and/or high fibre diet ($22), and sodium/salt restrictions diet ($12).

53As part of the special diet review in 2006, B. was required to complete a new special diet allowance application. His physician certified that he had the following medical conditions: chronic constipation ($10), hepatic disorder ($10), hyperlipidemia ($10) and hypercholesterolemia ($22). Accordingly, his special diet allowance was reduced to $52 per month in May 2006.

54B. states that, after the significant reduction in his monthly allowance, he was unable to afford healthy food such as fresh vegetables as he had during the period when he was receiving the $250 allowance. His health deteriorated. He lost 20 pounds within six months. He began to have frequent loose bowel movements up to six to eight times daily with blood. His energy level decreased, his depression worsened, and his suicidal ideation increased as did his anger. According to his physician, the reduction in his allowance resulted in a feeling of nobody caring about his health and welfare and increased both his anger toward the social assistance system and his weight loss. This caused a relapse in his depression and feelings of low self-esteem and worthlessness, and worsened his depressive symptoms such as fatigue, insomnia, memory loss, decreased intellect, muscle aches and hopelessness.

55In April 2007, B.'s physician completed a new special diet form which confirmed new conditions that made him eligible for the $250 per month allowance again. As of March 23, 2007, his physician certified that he had celiac disease ($131 per month), chronic constipation ($10 per month), dysphagia/swallowing difficulties ($25 per month and a one-time payment of $75 for a blender), food allergy — milk/dairy or lactose intolerance ($35 per month), hyperlipidemia ($10 per month), hypertension ($10 per month), hypercholesterolemia ($22 per month), microcytic anemia ($30 per month), and osteoporosis ($10 per month). His physician confirmed on cross-examination that, as of April 2007, B. had each of these conditions but that he did not have them or they had not been diagnosed in 2006. B. continues to receive the $250 per month allowance now.

56B. argues that the special diet schedule discriminated against him for the period he did not receive the maximum because it does not provide benefits for those who have severe mental health disabilities with a risk of weight loss if their mental health is destabilized. His claim is based upon the months in 2006—07 that he did not receive the full allowance and the consequences for his health.

57More generally, B. argues that the schedule and its design fail to take into account the needs and disadvantage of individuals with mental health disabilities as compared with those with other disabilities. He notes that individuals with mental health disabilities are often unable to prepare or purchase foods because of problems with cognition and low energy and argues that special diet allowances for individuals with mental health disabilities should provide allowances for the increased cost of obtaining foods as a result. He argues that individuals with mental health disabilities may be impacted by food insecurity: fear of not knowing whether they will be able to have sufficient food.

58Through his counsel, B. also makes various arguments about the policy development process by which the new special diet schedule was developed. He argues that at least 55 percent of all ODSP recipients have serious mental health disabilities, and that the Ministry had a Code obligation to "take into account all of the disabilities, impairments and restrictions of ODSP recipients when undertaking policy reviews and reviews of the 'business practices' that arise out of those policies". He argues that the Ministry was "wilfully blind" by failing to adequately consider the needs of those with mental health disabilities in the design or implementation of the 2005 changes, and argues that far more attention was paid to the needs of those with other disabilities.

ANALYSIS: GENERAL PRINCIPLES

The Code

59The complainants rely upon ss. 1, 9 and 47 of the Code:

1. Every person has a right to equal treatment with respect to services, goods and facilities, without discrimination because of... disability.

2. No person shall infringe or do, directly or indirectly anything that infringes a right under this Part.

47(1) This Act binds the Crown and every agency of the Crown.

(2) Where a provision in an Act or regulation purports to require or authorize conduct that is a contravention of Part I, this Act applies and prevails unless the Act or regulation specifically provides that it is to apply despite this Act.

60The respondents rely upon the defence in s. 14(1) of the Code:

A right under Part I is not infringed by the implementation of a special program designed to relieve hardship or economic disadvantage or to assist disadvantaged persons or groups to achieve or attempt to achieve equal opportunity or that is likely to contribute to the elimination of the infringement of rights under Part I.

61I note at the outset that there is no dispute between the parties that the provision of benefits under the special diet allowance program is a "service" within the meaning of the Code: see generally Zaki v. Ontario (Community and Social Services), 2009 HRTO 1595 [CHRR Doc. 09-2130] at § 11.

The Analytical Approach to Determining Discrimination

62I will consider first the question of whether there is discrimination against the complainants contrary to s. 1 of the Code. The respondent suggested that its s. 14 defence should be considered first, because if it is successful on this issue, there is no need to analyze whether there is discrimination. It notes that this was the approach taken by the Supreme Court of Canada to s. 15(2) of the Canadian Charter of Rights and Freedoms (the "Charter") in R. v. Kapp, 2008 SCC 41. In my view, it is preferable in this case to first consider whether there is discrimination contrary to s. 1. As outlined in my discussion of s. 14(1) below at § 110—24, I find that in the circumstances of this case, s. 14 does not affect the determination of whether the Code was violated, given the nature of the analysis under s. 1.

63There was considerable discussion in the parties' written submissions about whether the analytical approach to discrimination under the Code is the same as that under s. 15(1) of the Charter. This reflects varying approaches to this issue in the jurisprudence. In analyzing discrimination under the Code, the Divisional Court in Ontario Secondary School Teachers' Federation v. Upper Canada District School Board (2005), 2005 CanLII 34365 (ON SCDC), 78 O.R. (3d) 194 and Ontario (Attorney General) v. Ontario (Human Rights Commission) (2007), 2007 CanLII 56481 (ON SCDC), 88 O.R. (3d) 455 [62 C.H.R.R. D/315] ("Braithwaite") applied the s. 15 analysis from Law v. Canada (Minister of Employment and Immigration), 1999 CanLII 675 (SCC), [1999] 1 S.C.R. 497, which set out a three-part analysis of whether there is discrimination contrary to the Charter.

64Since these decisions, the Supreme Court has refined and simplified its approach to s. 15. In Kapp at § 17, Ermineskin Indian Band and Nation v. Canada, 2009 SCC 9 at § 188, and A.C. v. Manitoba (Director of Child and Family Services), 2009 SCC 30 at § 109, the Court confirmed that the following two questions are involved in determining whether there is discrimination contrary to s. 15: (1) Does the law create a distinction based on an enumerated or analogous ground? and (2) Does the distinction create a disadvantage by perpetuating prejudice or stereotyping?

65In Kapp, the Court emphasized that the focus of the equality analysis under s. 15 is on whether there is substantive discrimination through the perpetuation of disadvantage and stereotyping (at § 23—24):

The analysis in a particular case, as Law itself recognizes, more usefully focuses on the factors that identify impact amounting to discrimination. The four factors cited in Law are based on and relate to the identification in Andrews of perpetuation of disadvantage and stereotyping as the primary indicators of discrimination...

Viewed in this way, Law does not impose a new and distinctive test for discrimination, but rather affirms the approach to substantive equality under s. 15 set out in Andrews and developed in numerous subsequent decisions. The factors cited in Law should not be read literally as if they were legislative dispositions, but as a way of focussing on the central concern of s. 15 identified in Andrews — combatting discrimination, defined in terms of perpetuating disadvantage and stereotyping. [Emphasis added.]

66Following Kapp, the Divisional Court again considered the issue of whether the s. 15 approach applies under the Code. In Ontario (Director, Disability Support Program) v. Tranchemontagne (2009), 2009 CanLII 18295 (ON SCDC), 95 O.R. (3d) 327 [CHRR Doc. 09-2271] (Div.Ct.), a case under the Code, the Divisional Court found that there is no need to consider or prove the concept of human dignity in the Code context, and that the test established in Ontario (Human Rights Commission) and O'Malley v. Simpsons-Sears Ltd., 1985 CanLII 18 (SCC), [1985] 2 S.C.R. 536 [7 C.H.R.R. D/3102], should apply, "informed by" the Charter jurisprudence.

67The Court went on to state as follows, at § 105:

Adapted for the present human rights context, in a case such as this involving the provision of services pursuant to a government benefit program, the test might read as follows:

1. Has the complainant established a prima facie case demonstrating that the service creates a distinction based on a prohibited ground under the Human Rights Code?

2. Has the respondent established, on a balance of probabilities, that the distinction does not create a disadvantage by perpetuating prejudice or stereotyping? Alternatively, has the respondent established a statutory defence under the Code?

The respondent and the Commission both take issue with the formulation of this test and suggest that it is not consistent with the jurisprudence, particularly in light of the burdens of proof it establishes.

68In my view, this case does not require the Tribunal to decide whether to apply the test from Tranchemontagne or Braithwaite, or to decide when and whether, in general, the approach to analyzing discrimination is the same under the Charter and the Code. This is because, whether the Code or the Charter jurisprudence applies, the important question in determining whether there is discrimination in a case such as this one is whether the complainants are denied benefits, on the basis of their disability, that fall within the purpose of the benefit scheme.

69This has been the approach of the Supreme Court in cases involving alleged discrimination on a prohibited ground under human rights legislation. In Brooks v. Canada Safeway, 1989 CanLII 96 (SCC), [1989] 1 S.C.R. 1219 [10 C.H.R.R. D/6183], the Supreme Court of Canada found that a group insurance plan that provided income replacement benefits for other health-related conditions, but not pregnancy, was discriminatory on the basis of pregnancy and sex, noting that the plan provided compensation for other health-related absences from work but not pregnancy. In Battlefords and District Co-operative Ltd. v. Gibbs, 1996 CanLII 187 (SCC), [1996] 3 S.C.R. 566 [27 C.H.R.R. D/87], the income replacement plan provided by an employer gave benefits for individuals with mental disabilities that were inferior to those with physical disabilities. The Court held that there was discrimination between individuals with mental disabilities and those with physical disabilities, noting that the "true character or underlying rationale of the insurance plan was to provide income replacement for those unable to work because of disability" [at § 39]. In each case, the Court engaged in a comparative analysis of whether there was discrimination between the claimant and another covered group in light of the purpose of the plan.

70The analysis was explained at § 33 of Gibbs as follows:

... The first step is to determine, in all the circumstances of the case, the purpose of the disability plan. Comparing the benefits allocated to employees pursuant to different purposes is not helpful in determining discrimination — it is understandable that insurance benefits designed for disparate purposes will differ. If, however, benefits are allocated pursuant to the same purpose, yet benefits differ as a result of characteristics that are not relevant to this purpose, discrimination may well exist. [Emphasis added.]

71In Charter cases, the Supreme Court has set out a similar approach in addressing allegations that government benefit programs are underinclusive on the basis of an enumerated or analogous ground in s. 15. In Auton (Guardian ad litem of) v. British Columbia (Attorney General), 2004 SCC 78, the Court stated, at § 42:

... Where stereotyping of persons belonging to a group is at issue, assessing whether a statutory definition that excludes a group is discriminatory, as opposed to being the legitimate exercise of legislative power in defining a benefit, involves consideration of the purpose of the legislative scheme which confers the benefit and the overall needs it seeks to meet. If a benefit program excludes a particular group in a way that undercuts the overall purpose of the program, then it is likely to be discriminatory; it amounts to an arbitrary exclusion of a particular group. If, on the other hand, the exclusion is consistent with the overarching purpose and scheme of the legislation, it is unlikely to be discriminatory. Thus, the question is whether the excluded benefit is one that falls within the general scheme of benefits and needs which the legislative scheme is intended to address. [Emphasis added.]

72In Hodge v. Canada (Minister of Human Resources Development), 2004 SCC 65, the Court explained, at § 24 and 26:

The usual starting point is an analysis of the legislation (or state conduct) that denied the benefit or imposed the unwanted burden. While we are dealing in this appeal with access to a government benefit and the starting point is thus the purpose of the legislative provisions, a similar exercise is required where a claim is based on the effect of an impugned law or state action.

Nevertheless, in a government benefits case, the initial focus is on what the legislature is attempting to accomplish. It is not open to the court to rewrite the terms of the legislative program except to the extent the benefit is being made available or the burden is being imposed on a discriminatory basis. [Emphasis added.]

73In Nova Scotia (Workers' Compensation Board) v. Martin, 2003 SCC 54, the Court put it this way, at § 94:

Another vital consideration in a case such as this one is the overall purpose of the legislative scheme at issue: see Gibbs, supra at para. 34; Granovsky, supra, at para. 62. A classification that results in depriving a class from access to certain benefits is much more likely to be discriminatory when it is not supported by the larger objectives pursued by the challenged legislation.

See also Granovsky v. Canada (Minister of Employment and Immigration), 2000 SCC 28 at § 62.

74This must be a comparative analysis, considering the claimants' circumstances in comparison with those who receive the benefit in question: see, for example, Gibbs at § 32; Auton at § 57; and Andrews v. Law Society of British Columbia, 1989 CanLII 2 (SCC), [1989] 1 S.C.R. 143 at 164 [10 C.H.R.R. D/5719 at § 41746].

75Kapp directs decision-makers to avoid taking a formulaic or formalistic approach to analyzing a discrimination claim. It makes clear that there is no need to apply each step of a detailed test, but rather, the analysis should focus on whether there is substantive discrimination in the impugned provisions. Tranchemontagne, in my view, reflects this need for flexibility in its statement that the test "might" read as set out in that case. This decision follows that direction by avoiding formulas and focusing on the central substantive issue.

76The jurisprudence is clear that analyzing discrimination in circumstances like these requires a consideration of the purpose or underlying rationale of the special diet allowance, and whether individuals with different disabilities are given different benefits in a manner that is inconsistent with that purpose. The analysis must consider the differential treatment, as it relates to the purpose of the program, between the benefits received by others and the claims of the complainants. As noted in Auton, supra, at § 41, the Legislature is "free to target social programs it wishes to fund as a matter of public policy, provided the benefit itself is not conferred in a discriminatory manner".

How to Determine the Purpose of the Program

77I now turn to a consideration of the purpose or underlying rationale of the special diet program. This is a legal analysis, in that the Tribunal is not making a factual determination about what was in the minds of those of those who developed and implemented the current version of the special diet program. Rather, I must determine, based upon the legislation and regulations and appropriate extrinsic evidence, the objective or goal of the program.

78The approach to determination of purpose must be "consonant with the goals of human rights legislation": Gibbs, supra, at § 39. Relevant considerations include the social assistance scheme as a whole and a consideration of what is included in it: Delisle v. Canada (Deputy Attorney General), 1999 CanLII 649 (SCC), [1999] 2 S.C.R. 989 at § 17—20. In my view, in considering the purpose of a scheme enacted by [the] Minister's regulation, the relevant policy documents, correspondence, recollections and assertions of those who assisted in developing the scheme may also be of assistance.

79The complainants argue that the Tribunal can determine whether certain types of expenses fall within the purpose of the program by looking to what was funded prior to 2005. They note that one of the government witness (Norman Helfand, Director of the Ontario Disability Support Program) agreed in cross-examination that the purpose of the program did not change in 2005 when the schedule was redesigned. They argue that benefits that were provided under the special diet allowance prior to 2005 (like vitamins and minerals) must therefore continue to fall within the purpose of the current program.

80I am not persuaded by this submission, for several reasons. First, if the legal purpose is the same, it may be that the prior funding of such expenses was not consistent with or required by the purpose or underlying rationale of the program. Removing coverage through reform of the program may be "closing a loophole", which the government is entitled to do. Second, "purpose" in the context of this legal discussion has a particular meaning, which may be different than what a policy maker understands by the term when giving evidence. An answer of a witness that the "purpose" is the same does not decide the Tribunal's determination of purpose, which requires a legal analysis. Although the history of the program may be of assistance in determining purpose, the analysis should focus on the current regulatory scheme, which underwent significant change in 2005.

The Purpose of the Special Diet Allowance: Generally

81The respondent defines the purpose of the program as follows in its written submissions:

The evidence is that the purpose of the special diet allowance is to assist social assistance recipients and members of their benefit units who have an existing medical condition for which a special diet is generally recognized by the Ontario medical community as an adjuvant to the treatment of that medical condition, and where the special diet imposes costs in excess of a regular, healthy diet.

82The complainants and Commission do not generally dispute this definition. W. and S., for example, articulate the purpose as follows in their written submissions:

The Special Diet Program provides additional funding for recipients who have a medical condition for which a special diet is generally recognized by the Ontario medical community as an adjunct to the treatment of that medical condition.

83I will not attempt to describe the purpose of the program in a sentence or two. Despite their general agreement on the descriptions, the parties fundamentally disagree about whether the types of expenses at issue here fall within the purpose. While they agree on the words, they disagree on their meaning. It is more helpful to discuss various aspects of the purpose of the special diet program in a general way, and then address the specific issues in this case.

84The special diet program is an aspect of Ontario's two social assistance programs, OW and ODSP, which are programs of last resort for those in financial need. These are programs that serve the most economically vulnerable in Ontario society. The Legislature's statements of purpose quoted at § 14 above set out a commitment under both programs to provide financial assistance to those in need, together with the need to be accountable to taxpayers. They establish a shared responsibility for support between the government and others. In the OWA, the Legislature emphasizes the temporary nature of the support provided and that recipients must become and stay employed. The ODSPA provides that communities, families and individuals share responsibility for financial support of eligible persons with disabilities.

85The establishment of ODSP — a program with higher benefit amounts for individuals with disabilities — reflects a decision by the Legislature that financial hardship caused by disability is appropriately treated differently from other circumstances, and suggests a special public responsibility to support such individuals. It recognizes the financial disadvantage that may occur as a result of disability, and establishes a particular role for the government in addressing that disadvantage.

86Like other large-scale social benefit programs, OW and ODSP allocate funding, to a large extent, through generalized categories. Although there are some particularized programs and benefits, funding is not customized to the particular needs of each recipient. This is, as the Supreme Court recognized in Martin, supra, at § 82, almost always a necessary part of any benefit program:

Of course, government benefits or services cannot be fully customized. As a practical matter, general solutions will often have to be adopted, solutions which inevitably may not respond perfectly to the needs of every individual. This is particularly true in the context of large-scale compensation systems, such as the workers' compensation scheme under consideration. Such systems often need to classify various injuries and illnesses based on available medical evidence and use the resulting classifications to process the claims made by beneficiaries. This approach is necessary, both for reasons of administrative efficiency and to ensure fairness in processing large numbers of claims. In addition, the beneficiaries themselves benefit from the reduced transaction costs and speed achieved through such techniques, and without which large-scale compensation might well be impossible. [Emphasis added.]

87It is significant, in my view, that the special diet allowance is one of the four "budgetary requirements" components of social assistance, together with basic needs, the shelter allowance and the northern allowance. All four amounts are designed to fund basic expenses of living, such as food, shelter, toiletries, clothing, etc. The housing and shelter allowances are available to all persons on the programs. The shelter allowance funds housing costs, while the basic needs amount is a global amount to fund other basic expenses.

88The other two allowances — the special diet allowance and the northern allowance — are available only to members of certain groups. It appears that they recognize exceptional basic expenses for these individuals. The special diet allowance recognizes that the basic dietary requirements of certain persons lead to higher costs than others. It is designed to assist in alleviating the disadvantage of persons with disabilities and to support substantive equality by funding certain additional dietary costs that result from disability.

Establishing that a Claim Falls Within the Purpose of the Special Diet Allowance

89Having considered the purpose of the program in a general sense, I now address the analysis of when a special diet falls within the purpose of the program and what is necessary to show that a claimant has experienced discrimination. For the reasons that follow, I conclude that an applicant or complainant must prove the following in order to establish disability-based discrimination related to the special diet allowance as currently structured:

1. The claim of discrimination is based on a disability or disabilities;

2. There is general recognition in the Ontario medical community that modifications to a regular healthy diet should be made because of the claimant's disability or disabilities;

3. The diet leads to additional food costs as compared with a regular, healthy diet for a person without the disability or disabilities;

4. There is no funding for the additional costs, or the funding is significantly disproportionate to the actual costs (up to the maximum of $250).

90In the paragraphs that follow, I expand on the reasons for these findings. I also elaborate on the application of each. These explanations, however, cannot and should not fully address all arguments and situations that might be made in other cases. Accordingly, further elaboration and refinement may be necessary if circumstances raised in other claims give rise to different issues.

1. The Claim of Discrimination Is Based on a Disability or Disabilities

91First, the claimant must establish that he or she has a disability within the meaning of the Code and the claim that the special diet allowance discriminates is based on that disability. I use the word "disability" rather than "medical condition" as used by the parties for two reasons. First, the Tribunal's powers come from the Code, and the basis of the Tribunal's power to hear a claim must flow from it and the statutory definition in the Code. Second, and more important, to the extent that the words "medical condition" are used by the respondent to suggest a specific, diagnosed medical condition they are, in my view, too narrow.

92The purpose or underlying rationale of the special diet allowance program is to provide funding to all those who have a disability that leads to the dietary needs the program addresses. Some individuals, for example, may have a set of symptoms without a specific diagnosis, or experience particular dietary needs from a combination of conditions. Such circumstances fall within the underlying rationale of the program. It may be that the current schedule does not take account of all such situations.

93Mr. Helfand testified that there were various policy considerations related to program design that led to the conclusion that the list should be limited to specific, diagnosed, medical conditions. Such considerations included ensuring consistent treatment of recipients in the same situation, ensuring the government's policy intent was respected by the Social Benefits Tribunal, and ease of administration. In my view these considerations are related to the design of the scheme, but do not change the fact that the underlying rationale of the program is to assist those who have any disability that requires a special diet. Like the ODSP itself, the special diet allowance is aimed generally at people with a certain set of needs. To define the legal purpose as limited to assisting those with particular diagnosed medical conditions but not other disabilities would, in my view, not be consistent with the Code, which protects all individuals with disabilities.

2. There Is General Recognition in the Ontario Medical Community that Modifications to a Regular Healthy Diet Should Be Made Because of the Claimant's Disability or Disabilities

94It is evident, in my view, that the purpose of the program is to provide funding for diets where this is generally medically recognized as a treatment for the disability experienced by the individual. The program is not intended to fund scientifically unrecognized, experimental, or "fad" diets. It is not intended to fund an individually developed diet tailored to all of a person's characteristics and circumstances, prescribed by a dietician or other health practitioner. It is designed to fund diets in circumstances where, as a result of the individual's disability or disabilities, the need for a special diet is generally recognized in the Ontario medical community. Accordingly, a claimant alleging discrimination must establish that a generally accepted medical response to his or her disability or disabilities would be to prescribe a particular diet.

95This purpose is evident throughout the design of the 2005 schedule. While the complainants were able to point to some errors where conditions are funded where this is not generally recognized, these exceptions do not detract from the general principle that the design process of the schedule was to ensure that only generally accepted diets would be funded. This goal is also reflected in the pre-2005 requirement on the form that the medical practitioner certify that the special diet is "required for a medical condition".

96In this regard, I emphasize what the Supreme Court said in Martin, supra, in the passage cited above at § 86: equality rights do not require that government benefits be fully customized to the needs and circumstances of every individual. While the complainants and Commission have presented evidence that suggests that the list does not reflect how dieticians and physicians practice, that does not mean that it is discriminatory not to customize benefits. There is nothing inherently improper or of concern about the use of a list, and I make no finding that there is a need under the Code for a discretionary category for cases that are not on the list. Equality rights do not require that benefit programs be tailored to each individual's particular circumstances: see Martin, supra; Gosselin v. Quebec (Attorney General), 2002 SCC 84, [2002] 4 S.C.R. 429 [44 C.H.R.R. D/363] at § 55—56; Wynberg v. Ontario (2006), 2006 CanLII 22919 (ON CA), 82 O.R. (3d) 561 at § 56—59 (Ont. C.A.). However, the use of a list in the special diet program cannot exclude situations in which the Ontario medical community would generally recognize that, as a result of a person's disability or disabilities, a special diet would be prescribed.

97I note that there was disagreement between the parties about whether the "Ontario medical community" includes physicians only or also dieticians. In my view, this issue is best determined in a case in which it actually arises. There was no evidence that there are in fact disabilities for which one professional group, but not the other, would generally prescribe a special diet. Similarly, there was dispute over whether and what types of special diets for "prevention" fall within the purposes of the special diet program. Given my analysis, these issues do not arise in the lead cases, and nothing in this decision is meant to decide or address either of these issues.

3. The Diet Leads to Additional Food Costs as Compared with a Regular Healthy Diet for a Person Without the Disability or Disabilities

98I find that the purpose or underlying rationale of the program is to fund additional food costs in addition to those of a regular healthy diet. Food preparation and supplements such as vitamins and minerals do not, in my view, fall within the purpose or underlying rationale of the special diet allowance program. It is undisputed that the program is designed to fund costs above those of a regular, healthy diet. While many are of the view that the basic needs allowance is not sufficient to allow social assistance recipients to eat a healthy diet, the issues before the Tribunal relate to the design of the program, which only covers costs that exceed those of a regular, healthy diet.

99The funding of vitamin and mineral supplements does not fall within the purpose of the program. The respondent notes that some supplements are funded under the Ontario Drug Benefit Program ("ODB"), under which social assistance recipients are covered. While, as the complainants point out, the ODB provides limited coverage, the inclusion of supplements under the ODB is an indication that the respondent's intention was to cover this type of expense through the ODB, rather than the special diet allowance. If the complainants believe that the ODB is underinclusive in a discriminatory manner, the proper challenge is to it, not the special diet allowance.

100The complainants suggest that supplements and certain preparation costs fall within the purpose of the program, noting that the weight loss categories take into account funding of Ensure, a meal replacement product which provides various "micronutrients" as well as calories and protein. They also note the funding of a one-time payment for a blender for individuals with dysphagia (swallowing difficulties). Neither of these examples detracts from the conclusion that supplements and meal preparation costs, in general, are not targeted by the program.

101I turn first to Ensure. I do not believe that funding a complete meal replacement product that supplements calories and protein for individuals who require it and that also includes micronutrient supplements, establishes that the purpose of the program goes beyond food to the funding of supplements. The fact that a meal replacement is needed by some to maintain or increase their weight does not change the program into one designed to fund vitamin and mineral pills. Indeed, it confirms that the program is aimed at the cost of meals themselves. With the exception of complete meal replacement products, benefit amounts are based upon the cost of food items, and this is, in my view, the strongest indicator of the government's purpose in this regard. Although vitamins and minerals were included before 2005, this does not change the fact that they do not fall under the purpose or underlying rationale of the current program. Similarly, the one-time funding of a low-cost item for individuals who, without it, might be unable to swallow their food, does not suggest a general purpose of covering all food preparation costs that might arise from disabilities.

4. There Is No Funding for the Additional Costs, or the Funding is Significantly Disproportionate to the Additional Costs (up to the maximum of $250)

102The costing analysis done in the Expert Review Committee report and the previous costing analysis in 1999 was based upon the assumption that full funding of the additional costs above those of a regular healthy diet would be provided. For those disabilities that are covered, the government's intention is to fully fund a reasonable estimate of the additional costs for special diets, based on a reasonable approximation and methodology, up to a maximum of $250 that applies when individuals have multiple conditions. It is clear that the intention and result of the design of the program is full funding of the additional costs for many conditions.

103The respondent suggests that the Tribunal has no role in evaluating the amount of the funding. I disagree. It cannot be correct that the program is discriminatory if there is no funding for needs related to a particular disability that meets the other criteria, but that as soon as the government provides some funding, no matter how comparatively different from the funding provided for the needs of those with other disabilities, the Tribunal has no role. There is, in my view, discrimination when those with different disabilities have significantly different proportions of the additional expenses of their special diet funded.

104At the same time, there must be significant deference given to the amounts allocated in the schedule. The additional costs of food for special diets are not capable of exact measurement. There is a need for many generalizations to be made in estimating the changes to a healthy diet required and the cost of the additional food. The program is not designed to calculate these amounts on an individual basis or to reflect exact needs of every individual, and programs of this type are designed so that the amount provided is an informed generalization. When those with different disabilities are funded relatively equally through reasonable general estimates, and there are no significant differences in general methodology in the calculation process between different disabilities, there is no discrimination. It is not the role of the Tribunal, in applying the Code, to substitute its opinion for the program designers in making the estimations necessary to establish a complex benefit scheme of this nature. Therefore, only when the amount is significantly disproportionate to the amount of the additional costs as compared with other disabilities should there be a finding of discrimination.

105Supreme Court of Canada case law supports this conclusion. At § 82 of Martin, supra, the Supreme Court held that the state should "benefit from a certain margin of appreciation" in designing large-scale benefit programs. In Gosselin, supra, it stated as follows, at § 55:

... Crafting a social assistance plan to meet the needs of young adults is a complex problem, for which there is no perfect solution.

At § 56, it emphasized:

... The legislator is entitled to proceed on informed general assumptions without running afoul of s. 15.

These comments, in my opinion, are particularly important in considering costing, which represents one of the most detailed and judgment-dependent parts of designing social benefit programs. Costing food is particularly deserving of deference. This is clear from the evidence of the complainants' witness, Dr. Paula Brauer, who stated that costing of foods is problematic and the source of differences of opinion among professionals.

106In considering allegations that the level of funding is discriminatory, it is important to emphasize again that the analysis is comparative. The allegation of insufficient benefits must be based on the fact that individuals with some disabilities receive funding that is greater in proportion to their additional dietary needs. An allegation of insufficient benefits cannot be based upon a method of estimating the additional costs that is inconsistent with the methodology used for other disabilities that in fact receive close to full funding. The methodology must be compatible to show comparative inequality. Moreover, it is open to the government (although I have found that it did not choose to do so in this case) to choose to fund only a portion of additional costs. The finding that the funding provided is compared with the full additional costs stems from my conclusion that the program aims to provide full funding, and does provide it for certain disabilities.

107Similar reasoning was used by the British Columbia Human Rights Tribunal in Chipperfield v. British Columbia (Ministry of Social Services) (No. 2) (1997), 1997 CanLII 24842 (BC HRT), 30 C.H.R.R. D/262 (B.C.H.R.T.). In that case, the Tribunal held as follows, at § 48:

Of course the amount that any person with a disability spends on transportation expenses will vary with the personal choices and circumstances of the individual. The Ministry is not required to ensure that every person designated handicapped receives exactly the same degree of financial assistance for transportation costs, regardless of choice and circumstance. That would be to impose a regime of absolute equality. Thus, the fact that different individuals may spend different proportions of the general support allowance on transportation expenses does not by itself amount to discrimination. Nor is the Ministry required to fully subsidize the transportation costs of persons designated handicapped. It is entitled to determine an appropriate level of partial subsidy, taking into account its other fiscal obligations. However, if it chooses to provide general transportation subsidies, the Ministry may not discriminate between persons with different kinds of disabilities so that persons with some disabilities receive a significantly greater degree of subsidy than persons with other kinds of disabilities. [Emphasis added.]

108I will not attempt, in this decision, to draw a line or describe in more detail the circumstances in which funding will be found to be significantly inadequate. While line drawing around when inadequate funding leads to discrimination may be difficult, it is necessary and arises because of the variety of disabilities that exist and the needs that result from them. As explained in Martin, supra, at § 81:

This approach to the analysis of distinctions drawn between various disabilities allows the courts to take into account a fundamental and distinctive characteristic of disabilities when compared to other enumerated grounds of discrimination: their virtually infinite variety and the widely divergent needs, characteristics and circumstances of persons affected by them... In many cases, drawing a single line between disabled persons and others is all but meaningless, as no single accommodation or adaptation can serve the needs of all. Rather, persons with disabilities encounter additional limits when confronted with systems and social situations which assume or require a different set of abilities than the ones they possess. The equal participation of persons with disabilities will require changing these situations in many different ways, depending on the abilities of the person.

When the funding provided is significantly different in relation to the dietary needs of some with disabilities as compared with others, there is a Code violation.

109In summary, I conclude that a claimant who demonstrates: (i) a disability or disabilities, (ii) that there is general recognition in the Ontario medical community that modifications to a regular healthy diet should be made because of the claimant's disability or disabilities, (iii) that the diet leads to extra food costs as compared with a regular healthy diet for a person without the disability or disabilities, and (iv) that there is no funding for the additional costs, or the funding is significantly below the additional costs (up to the maximum of $250) will establish discrimination. In cases where the disability for which the special diet allowance is claimed is not on the schedule, the analysis will generally focus on the first three criteria. If the condition is on the schedule but it is alleged that the funding is inadequate, this will usually establish the first three criteria and the analysis will focus on the fourth.

SECTION 14 OF THE CODE

110I next consider whether s. 14 of the Code provides a complete defence to the claims, as the respondent argues. Section 14(1) reads as follows:

14(1) A right under Part I is not infringed by the implementation of a special program designed to relieve hardship or economic disadvantage or to assist disadvantaged persons or groups to achieve or attempt to achieve equal opportunity or that is likely to contribute to the elimination of the infringement of rights under Part I.

The respondent argues that, because the special diet program is designed to relieve hardship and economic disadvantage, it is a special program pursuant to s. 14(1) and the Tribunal cannot find that it violates the complainants' Code rights.

111The Ontario Court of Appeal dealt in detail with the interpretation of s. 14 and its application to government benefit programs in Ontario (Human Rights Commission) v. Ontario (1994), 1994 CanLII 1590 (ON CA), 19 O.R. (3d) 387 [21 C.H.R.R. D/259] (C.A.) ("Roberts"). The complainant in that case applied for funding under the Ministry of Health's Assistive Devices Program for financial assistance in purchasing a closed circuit television magnifier. He was 71 years old and legally blind. However, he was not eligible for the funding as a result of his age, as there was a cut-off at the time of 18 years.

112The government argued in Roberts, as it does here, that it could not be held that the program discriminated against Mr. Roberts on the basis of age, since it was a special program designed to assist persons who are disadvantaged on the basis of disability. The Court rejected the argument that s. 14 exempts special programs from the application of the Code in all circumstances. Rather, it held, at p. 401, that s. 14 only insulates a program from review where the challenge is from "a member from a historically privileged group or a disadvantaged person whose disability the program was not designed to benefit". The Court summarized its conclusions, at p. 407, as follows [at § 51—52 C.H.R.R.]:

Section 14(1) has a dual purpose: the exemption of affirmative action programs from review and the promotion of substantive equality. The Divisional Court erred in law in construing s. 14(1) as having as its only purpose the exemption of special programs from the application of the Code. Where a person whom a special program is designed to assist is discriminated against on an enumerated ground prohibited by the Code, s.14(1) is to be construed as an interpretive aid aimed at promoting substantive equality. Programs aimed at promoting substantive equality are reviewable depending on the context in which the challenge is brought. The exemptive purpose of s.14(1) is not invoked in this appeal.

... In this case, the Board of Inquiry and the Divisional Court erred in law in finding that the inquiry ends when "special program" status is proven. The inquiry should have considered: (1) whether a particular provision or limitation of a special program results in discrimination against a person or group with the disadvantage the program was designed to benefit, and (2) whether the provision or limitation is reasonably related to the scheme of the special program.

113The respondent argues that Roberts should be revisited in light of the Supreme Court's approach in Kapp to s. 15(2) of the Charter. Like s. 14 of the Code, s. 15(2) addresses affirmative action programs. Section 15 of the Charter reads as follows:

15(1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

(2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

114Kapp involved a challenge by commercial fishers, mainly non-Aboriginal, who alleged that their rights to equality under s. 15(1) were violated by a communal fishing licence granting members of three Aboriginal bands the exclusive right to fish for salmon in the mouth of the Fraser River. The Court held that there was no need to consider s. 15(1) because the purpose or object of the program was the amelioration of the conditions of disadvantaged groups.

115In reaching this conclusion, the Court revisited its reasoning in Lovelace v. Ontario, 2000 SCC 37, in which it had held that s. 15(2) was primarily an aid in interpreting the meaning of substantive equality under s. 15(1). In Kapp, it held that if a program meets the criteria of s. 15(2), it cannot be found to violate s. 15, and there is no need to conduct an analysis under s. 15(1): see § 37—40. At § 41, the Court held as follows:

We would therefore formulate the test under s. 15(2) as follows. A program does not violate the s. 15 equality guarantee if the government can demonstrate that: (1) the program has an ameliorative or remedial purpose; and (2) the program targets a disadvantaged group identified by the enumerated or analogous grounds. In proposing this test, we are mindful that future cases may demand some adjustment to the framework in order to meet the litigants' particular circumstances. However, at this early stage in the development of the law surrounding s. 15(2), the test we have described provides a basic starting point — one that is adequate for determining the issues before us on this appeal, but leaves open the possibility for future refinement.

In elaborating on this test, at § 49, the Court noted that, for there to be an ameliorative purpose, there should be a correlation between the program and the disadvantage suffered by the target group.

116The respondent argues that, because of the similarity of analysis between equality provisions under the Charter and the Code, the Tribunal must apply the Kapp analysis under s. 14 and hold that, if a program is designed to ameliorate disadvantage, it cannot be found to infringe s. 1 of the Code. Accordingly, it states, Roberts must be revisited.

117In my view, Kapp does not lead to this conclusion, and the application of s. 14 does not change the analysis carried out above nor does the defence apply in these circumstances. It is important to note the context of Kapp. The communal fishing licence was an ameliorative program targeting the disadvantage faced by members of the bands, the Court found. It was challenged by individuals who fell outside that target group. The Court's analysis was based on this situation, and it acknowledged, in its description of the test at § 41, that there may be a need for further refinement of the test to take into account other circumstances. Indeed, in its introduction to the s. 15(2) discussion, at § 28, the Court framed its discussion by noting:

... By their very nature, programs designed to ameliorate the disadvantage of one group will inevitably exclude individuals from other groups. This does not necessarily make them either unconstitutional or "reverse discrimination". Andrews requires that discriminatory conduct entail more than different treatment. As McIntyre J. declared at p. 167 [C.H.R.R. § 41749], a law will not "necessarily be bad because it makes distinctions". [Emphasis added.]

118When Kapp was decided in 2008, it was well established in equality jurisprudence that programs designed to alleviate disadvantage can discriminate by leaving out those identified by a prohibited ground (underinclusiveness). For example, the Supreme Court found in Vriend v. Alberta, 1998 CanLII 816 (SCC), [1998] 1 S.C.R. 493 [31 C.H.R.R. D/1], that a human rights regime that provided protection for other disadvantaged groups, but not gays and lesbians, was discriminatory. In Martin, supra, it found that a workers' compensation system that did not include coverage for some disabilities violated the Charter. In my view, there is no indication that Kapp intended to revisit this jurisprudence. On the contrary, the Court explicitly situated its analysis of s. 15(2) firmly within the concept of substantive equality as established in the jurisprudence.

119The facts of Kapp represent the type of situation in which, following the Roberts approach, provisions like s. 15(2) of the Charter and s. 14 of the Code lead to a finding that there is no discrimination. The claimants in Kapp were not within the group the program was intended to benefit. They did not fall within its purpose or underlying rationale. Accordingly, there was no need to address the type of situation, discussed in Roberts, of a challenge from a person within this group, the situation in these cases.

120The analysis in Kapp does not detract from or contradict the reasoning in Roberts about why, when a member of the targeted group is excluded on a prohibited ground, substantive equality is undermined. Madam Justice Weiler, writing for the majority in Roberts, explained this eloquently at p. 402 [C.H.R.R. § 36] as follows:

In the context of this case, to say that s.14(1) exempts the age discrimination in the vision aids category of the ADP program from review, is to interpret the section so as to permit substantive equality to be undermined, when substantive equality is one of the section's very purposes. It is to permit unfairness which is antithetical to the overall purposes of the Code. Fairness, and the recognition of substantive equality, require that discrimination, in the provision of a service to a person who is a member of a disadvantaged group for whom a special program is designed, not be tolerated and be subject to review. This interpretation does not second-guess the Legislature. Rather, it fulfils one of the purposes of the Legislature and is consistent with the overall purpose of the Code.

121Therefore, I conclude that the Roberts analysis still applies under the Code. Considering the Roberts test in the circumstances of this case, I conclude that the analysis above regarding the purpose of the program disposes of the s. 14 issue. Under s. 1 of the Code, the analysis, following the approach in Gibbs and other cases, is to determine whether the claims fall within the purpose or underlying rationale of the program in order to determine whether there is substantive discrimination. Roberts provides that s. 14 of the Code does not shield a program from scrutiny where the claimant has a disadvantage the program was designed to benefit. The analysis under s. 14 is the same as that under s. 1.

122I note that in setting out the test in Roberts, the Court held that, if the claimant has a disadvantage the program was designed to benefit, the Tribunal should then analyze whether [at § 52] "the provision or limitation is reasonably related to the scheme of the special program". The respondent has suggested that this means that, where a program meets the definition of "special program", there is a different approach to determining whether there is a violation of s. 1 of the Code which is more deferential to the government. It suggests that the respondent should face less scrutiny when its intention is to take positive steps to ameliorate hardship or promote equality.

123I do not agree. It is clear that the intention of the Court in Roberts was that the general principles of substantive equality should apply when the claimant's disabilities fall within the purpose of the program. Roberts was decided before Gibbs and the s. 15 cases discussed above that have expanded on the meaning of substantive equality in the context of allegedly underinclusive benefit programs. The second part of the test it set out must be considered in light of those cases. Moreover, there was not discussion in detail of this aspect of the case because the respondent conceded that there was no rational connection between the disadvantage and the age restriction. In my view, Roberts stands for the proposition that, where the challenge is from a person a program was intended to benefit, the general principles of substantive equality apply. Section 14's role is in addressing challenges from those whose needs do not fall within the purpose or underlying rationale of the program.

124Therefore, I conclude that s. 14 does not affect the analysis under s. 1 of the Code set out above, based on whether the complainants have needs that fall within the purpose of the program. Accordingly, I will proceed to consider the facts of the three lead cases in light of the four criteria set out above.

APPLICATION OF THE PRINCIPLES TO THE LEAD CASES

The Complainant W.

125First, I will deal with W.'s claims for the costs of supplements arising from bipolar disorder and cardiovascular disease. As I have determined that funding for supplements does not fall within the purpose of the program (see § 98—101), this aspect of her claim cannot be allowed, as it cannot meet the third criteria, that the diet leads to additional food costs. What remains are her claims that the lack of funding for a special diet resulting from hypoproteinemia is discriminatory, and that the $32 paid for the combination of dyslipidemia and hypertension is inappropriately low.

126I now consider W.'s claim based upon hypoproteinemia. The first issue is whether W.'s protein deficiency is a disability within the meaning of the Code. The respondent argues that it is not. Although I note the Commission's argument that the Tribunal need not determine whether each condition is a disability, I have concluded that W.'s hypoproteinemia is a disability and need not address this argument.

127The respondent argues that the protein deficiency only appeared on a blood test in 2009 and that her physician advised in 2005 that she should be on a protein restricted diet. The respondent states that the physician's 2005 report "is more authoritative". Moreover, the respondent argues that short-term impairments do not constitute disabilities under the Code, citing Ouimette v. Lily Cups Ltd. (1990), 1990 CanLII 12497 (ON HRT), 12 C.H.R.R. D/19 (Ont. Bd.Inq.); Elkas v. Blush Stop Inc. (1994), 1994 CanLII 18421 (ON HRT), 25 C.H.R.R. D/158 (Ont. Bd.Inq.); Yeomans v. Ottawa (City) (1993), 1993 CanLII 16447 (ON HRT), 20 C.H.R.R. D/502 (Ont. Bd.Inq.); and Nahal v. Globe Foundry Ltd. (1993), 1993 CanLII 16468 (BC HRT), 21 C.H.R.R. D/136 (B.C.C.H.R.). It argues that there is "no evidence" that W.'s hypoproteinemia is an ongoing medical condition. It notes that W. lost weight as a reaction to dye following an MRI and suggests that her weight loss and hypoproteinemia follow from this.

128The definition of disability in s. 10(1) of the Code reads as follows:

10(1) ...

(a) any degree of physical disability, infirmity, malformation or disfigurement that is caused by bodily injury, birth defect or illness and, without limiting the generality of the foregoing, includes diabetes mellitus, epilepsy, a brain injury, any degree of paralysis, amputation, lack of physical co-ordination, blindness or visual impediment, deafness or hearing impediment, muteness or speech impediment, or physical reliance on a guide dog or other animal or on a wheelchair or other remedial appliance or device,

(b) a condition of mental impairment or a developmental disability,

(c) a learning disability, or a dysfunction in one or more of the processes involved in understanding or using symbols or spoken language,

(d) a mental disorder, or

(e) an injury or disability for which benefits were claimed or received under the insurance plan established under the Workplace Safety and Insurance Act, 1997

129In my view, there is good reason to suggest that the narrow definition of disability suggested by Ouimette, Elkas, and Yeomans no longer reflects the state of the law: see, in particular, Québec (Commission des droits de la personne et des droits de la jeunesse) v. Montréal (City), 2000 SCC 27 [reported 37 C.H.R.R. D/271] ("Mercier"), and Granovsky, supra. In Mercier, the Supreme Court defined the issue as whether a condition is a "normal" ailment that is generally experienced by individuals, not whether it is temporary or transitory. It held as follows, at § 82:

These guidelines are not without limits. Although I believe that health may constitute a "handicap" and thus be a prohibited ground of discrimination under s. 10 of the Charter, the same cannot be said of personal characteristics or "normal" ailments. There is not normally a negative bias against these kinds of characteristics or ailments, and they will generally not constitute a "handicap" for the purposes of s. 10. As the emphasis is on obstacles to full participation in society rather than on the condition or state of the individual, ailments (a cold, for example) or personal characteristics (such as eye colour) will necessarily be excluded from the scope of "handicap", although they may be discriminatory for other reasons.

However, there is no need to conclusively determine this issue here because I find that W.'s hypoproteinemia is not merely transitory or temporary, based on the evidence.

130This condition was identified by Ms. Sengmueller, who states in her report that "her protein needs are elevated as both recent blood work and weight loss demonstrate inadequate intake and catabolism". She also states, "[s]he is at risk for further protein deficiency, without additional funding, which could have numerous deleterious effects, such as decreased immune function and increased risk of acquiring infections". It is, in my view, implicit in these statements that the condition is more than transitory, and the respondent has provided no expert evidence to suggest that it is short-term, temporary or a "normal ailment". I find that W.'s hypoproteinemia is a disability. Moreover, I note parenthetically that the schedule itself does not allocate funding of diets based on whether a condition is temporary; if hypoproteinemia were on the schedule, W. could receive a special diet allowance based on the dietician's identification of the condition.

131The next question is whether W. has shown that there is general recognition in the Ontario medical community that a particular diet helps treat this disability. I must admit to significant concern about the lack of expert evidence on this point. Although the complainants and the Commission entered reports from three experts (Ms. Sengmueller, Dr. Jeejeebhoy, and Paula Brauer, a registered dietician), none of them commented on whether an increased serving of protein is generally recognized as a treatment for protein deficiency. The only expert evidence is Ms. Sengmueller's recommendation of the additional protein for W. and the statement that "her protein needs are elevated as both recent blood work and weight loss demonstrate inadequate intake and catabolism".

132Of course, until this decision, the need to demonstrate that the Ontario medical community would prescribe the diet for the disability or disabilities was not established. With the criteria established, claimants in future cases should introduce more specific evidence that shows that the recommendation would be a generally recognized response to the disability.

133However, I find that there is a sufficient basis upon which to conclude that W. has established that diet modifications are generally recognized as a treatment for hypoproteinemia. First, in her report, Ms. Sengmueller's conclusion that W. should eat more protein follows directly from the diagnosis of hypoproteinemia. It is not based on W.'s particular circumstances. Second, there is an evident logical link between eating more foods that are high in protein and the treatment of protein deficiency. Third, the respondent did not present any specific evidence to suggest that it is not general medical practice in Ontario to recommend eating additional protein from food sources when hypoproteinemia is diagnosed, nor make this argument in its final submissions. The respondent did not cross-examine Ms. Sengmueller on the question of whether prescribing an additional serving of protein for hypoproteinemia reflects general medical practice. I am prepared to draw the inference that eating additional protein is generally recognized as appropriate when a person has a protein deficiency.

134There is no question that eating additional protein imposes food costs above those of the diet of a person without the disability. There is also no dispute that there is no funding for hypoproteinemia on the current schedule. Accordingly, applying the criteria set out above, I find that W. has been discriminated against as a result of the lack of special diet funding for hypoproteinemia.

135I turn next to W.'s claim that the amount provided for dyslipidemia and hypertension does not compensate her for the costs of her special diet in a comparatively equal manner to the funding provided for other disabilities. On this aspect of her claim, since the conditions are on the schedule, there is no dispute that she has a disability, that there is general recognition in the Ontario medical community that modifications to diet help treat the disability, and that the diet leads to additional food costs as compared with a healthy diet for a person without the disability. The issue is whether the funding is significantly below the additional costs.

136The Expert Review Committee recommended funding of $86 per month for hypertension, which is the higher amount as between hypertension and dyslipidemia, which have similar dietary modifications and for which only one amount would be allocated under its model. Under the current schedule, she receives $10 for hypertension and $22 for hypercholesterolemia (dyslipidemia). The Expert Review Committee estimated the cost of the hypertension special diet at $86 and the dyslipidemia special diet at $51.

137The Expert Review Committee's costing of the hypertension diet was based upon the DASH (Dietary Approaches to Stopping Hypertension) eating plan recommended by the Heart and Stroke Foundation. It focuses on increasing fruits and vegetables, low fat dairy products, decreasing saturated and trans fats, limiting salt, and choosing whole grain products more often.

138The expert evidence presented by the complainants supports the conclusion of the Expert Review Committee. Dr. Jeejeebhoy is of the view that this diet modification is equivalent to drug therapy. Elke Sengmueller states that W. would benefit from the DASH diet and suggests that there is inadequate funding in the schedule to fund the extra costs. Paula Brauer, the expert who gave evidence on behalf of the Commission, states that the amount for hypercholesterolemia is "clearly... completely inadequate".

139The respondent submits that it is not appropriate to compare the costing methodology used by the Expert Review Committee with the existing amounts for several reasons. First, it notes that the Expert Review Committee was asked to adopt its own costing methodology rather than critiquing the methodology of the current schedule. Second, relying upon Dr. Brauer's report, it notes that there are different methodologies and disagreement among professionals in determining the cost of additional foods. Third, it states that the Expert Review Committee's costing was a mechanical process that did not consider the policy concerns the government must consider when it determines the benefit levels in any program. It suggests, for example, that the Expert Committee included foods such as sugar-free jam and Splenda in its recommendations for people with obesity, and that its costing of low-fat diets included products such as low-fat cheddar cheese and low-fat meats that might be substituted with lower fat products. Its counsel have done a revised costing, which changes some of the assumptions (for example regarding the substitution of foods and the number of servings of particular products in Canada's Food Guide) that reduces the disparity between the estimated amounts and the amounts in the schedule.

140The problem with these arguments is that they are not supported by any expert evidence suggesting that the disparity between the funding of W.'s conditions as contained in the schedule and as costed by the Expert Review Committee in fact results from different methodology or assumptions about how the costing should be done, or that the methodology is in fact different from that used for other conditions where the costing by the Expert Review Committee was closer to the existing schedule. For various conditions, the amount recommended by the Expert Review Committee was similar to or greater than the amounts currently being paid.

141I agree with the respondent that, if different methodology is being used, there is not substantive inequality. However, there is no evidence to suggest this is the case and no evidence about whether the hypothetical modifications to the costings suggested by counsel in fact correspond with any appropriate methodology among those in the field. They were never presented to the complainants' experts. Of course, the burden of proof is on the complainants, but they have presented expert evidence that suggests that the amounts for hypertension and hypercholesterolemia are significantly inadequate, including from a committee of experts appointed by the government. The complainants' experts were not challenged on their statements about the inadequate costing in cross-examination. It is not required that the complainants disprove theories presented by counsel in final argument.

142Similarly, the respondent argues that the DASH diet has only recently become accepted as a treatment for hypertension and that the government is not required to be at the forefront of science. In my view, it is clear on the evidence that it is currently generally accepted in the Ontario medical community as a treatment for hypertension. I leave the issue of "emerging" consensus for another case.

143The complainants have established that the DASH diet is generally accepted as a treatment for hypertension. I also find that the $10 for hypertension, and the $22 for hypercholesterolemia, are significantly below the additional costs of the dietary modifications required and therefore constitute discrimination. In reaching this conclusion, I rely upon the report of the Expert Review Committee, the evidence of Ms. Sengmueller that the amount for hypertension is inadequate to support the costs of the DASH diet, and Dr. Brauer's statement that the amount for hypercholesterolemia is completely inadequate. In my view, the extent of the disparity for each of these conditions, and the combination of them, falls outside the margin of appreciation to which the government is entitled.

144To summarize, I conclude that W. has been discriminated against in two ways: through the failure to provide funding for hypoproteinemia and the insufficient funding for the combination of hypertension and hypercholesterolemia.

The Complainant S.

145I turn next to S.'s claim. There is no question that S. has a disability, whether defined as extreme obesity (the condition under which he receives funding under the program) or Prader-Willi—like symptoms (the disability for which he asserts that he ought to receive funding). The fact that he has not been diagnosed with Prader-Willi would not be an obstacle to a successful claim on this basis, assuming that he established the other elements necessary to prove discrimination. There is no dispute that Prader-Willi-like symptoms are a disability, and in light of my analysis above, the lack of a specific medical diagnosis is not an obstacle to a successful claim.

146I do not, however, accept the argument that providing an allowance for S. through the "extreme obesity" category is discriminatory. S. highlights that the dietary modifications for his condition are different from those used by the Expert Review Committee to calculate the cost of the obesity diet. It is, however, not the purpose of the program nor does the Code require that precise amounts tailored to an individually developed diet be funded. It is clear that adapting to the individual circumstances of someone like S., including his behaviour, is good practice for dieticians. However, it is not required of the government in designing social benefit programs.

147The expert evidence presented on S.'s behalf sets out a diet developed for him, individually, by a registered dietician. There is no evidence that this is a diet that is generally recognized in the Ontario medical community as appropriate for those with Prader-Willi Syndrome or Prader-Willi— like symptoms. The dietician has stated that this diet reflects S.'s particular behaviours and physical characteristics, and it is tailored to them, but there is no evidence that this generally reflects what is recommended for individuals with his disability. Indeed, the complainants' expert, Dr. Jeejeebhoy, states that "[t]here is no standard diet for Prader-Willi because the nutritional and other aspects of the disability manifest differently in different individuals".

148There is also no evidence that the amount for obesity — which is a "proxy" amount not meant to respond to the circumstances of each person with obesity — does not, in general, fit the needs of individuals with Prader-Willi or similar symptoms. Dr. Jeejeebhoy states that "patients with Prader-Willi require a nutritional program that can counter the risk of morbid obesity that is associated with the syndrome". S. has not presented any expert evidence that suggests that, in general, dietary treatments for Prader-Willi or similar behaviours impose different costs from those for obesity, or that shows that the obesity amount is not an appropriate general proxy amount for the additional costs of such diets. Accordingly, I find that S. has not established that it is discriminatory to treat him differently from others with extreme obesity.

149The complainants also took the position in their written submissions that the obesity diet is underfunded, and the respondents responded to this claim in their written submissions. Since I have rejected the argument that providing S. with special diet funding through the extreme obesity category is discriminatory, I will consider whether the complainants have established discrimination based on the obesity amount. The respondent does not dispute that S. is obese, that this is a disability, that modifications to diet help treat obesity, and that this diet imposes costs above those of a regular healthy diet for a person without obesity.

150The differential in the case of obesity is between the $20 S. receives and the $51 per month recommended by the Expert Review Committee. As with W.'s claim, the respondent suggests that the costing could be carried out differently, but provides no expert evidence in support of this claim. This argument is rejected for the reasons expressed above with regard to W. In my view, the evidence shows that the costs for obesity are significantly below the additional costs of an obesity diet. The amount paid is only 39 percent of what was estimated by the Expert Review Committee and there is no explanation of any difference in methodology that might account for this. Accordingly, I determine that S. was discriminated against as a result of the amount of special diet allowance for obesity.

The Complainant B.

151I address B.'s claim next. There is no question that B. had various disabilities, including major depression and post-traumatic stress disorder. The medical evidence also establishes that at least in part because of the reduction in his monthly social assistance cheque that followed the changes in 2006, B. experienced a serious exacerbation of his mental health conditions that affected his physical health as well. That alone, however, does not establish discrimination. The Code does not provide a remedy for effects on individuals' health that result from government policy changes, no matter how severe, unless those changes create discrimination.

152B.'s claim, like those of the other complainants, alleges discrimination as compared with others with disabilities whose needs were funded. He must establish needs that fall within the purposes of the program as set out above. The expert evidence he has presented addresses many of the ways in which mental health disabilities affect diet, and the difficulties that many individuals with mental health disabilities have in eating a healthy diet. It is clear that mental health disabilities are often connected with weight loss or weight gain, and frequently interfere with a person's ability to buy and prepare food. Mental health disabilities are prevalent among those receiving ODSP.

153However, B. has provided no evidence that suggests that modifications to a regular healthy diet should be made where an individual has a mental health condition or that there is general recognition in the Ontario medical community of this. B. has established that weight loss may be a consequence of mental health disabilities. Assuming that prevention falls within the purpose of the special diet allowance, a matter I do not decide in this case, B. has not presented expert evidence that changes to a regular healthy diet would generally be prescribed or recommended for individuals with depression or post-traumatic stress disorder. Accordingly, his discrimination claim based on his mental health disabilities cannot succeed.

154B. also argues that the policy-making process discriminated against people with mental health disabilities because their needs and representation among ODSP recipients was not considered sufficiently. A claimant cannot establish discrimination within the meaning of the Code merely by pointing to the considerations taken into account by the government or bureaucracy in the policy-making process, absent showing a discriminatory purpose. As the parties acknowledged, the development and passage of regulations is, like legislation itself, not a "service" within the meaning of s. 1 of the Code: see, by analogy, Malkowski v. Ontario (Human Rights Comm.), 2006 CanLII 43415 (ON SCDC), [2006] O.J. No. 5140 (QL) [CHRR Doc. 06-918]; Freitag v. Penetanguishene (Town) (No. 2), 2009 HRTO 1712 [CHRR Doc. 09-2274]. B. argued that the alleged deficiencies in the policy-making process could affect whether the regulations themselves are discriminatory. I disagree. Arguments about the process by which the government developed regulations and the interests considered do not change the fact that B. has not proven substantive discrimination against him in the special diet program, and there is also no evidence of a discriminatory purpose. Finally, B. makes various analogies to tort law and, in particular, concepts of wilful blindness. These legal concepts, which do not apply under the Code, do not assist in establishing discrimination.

155Finally, B.'s counsel made arguments that the Ministry's letters about changes to the special diet allowance were discriminatory. These allegations, however, were not clearly identified in the pleadings, permitting the respondent to adduce evidence on them or cross-examine the complainant's witnesses. They are also not part of the subject-matter of the complaint referred to the Tribunal. It would not be fair to the respondent or appropriate for the Tribunal to consider them.

156Although he did not argue this point, I note that, during the period he received less than the $250 maximum, B. received funding for hypercholesterolemia. I have found, in W.'s complaint, that the hypercholesterolemia amount was discriminatory. In the circumstances, B.'s complaint should be allowed in part for a period in 2006—07, based on the significant underfunding of hypercholesterolemia.

REMEDIES

157I have found that W. was discriminated against as a result of the failure to provide funding for a hypoproteinemia diet and significantly inadequate funding for the hypertension/hypercholesterolemia diets; that S. was discriminated against as a result of significantly inadequate funding for the obesity diet; and that B. was discriminated against as a result of significantly inadequate funding for hypercholesterolemia. I turn now to the appropriate remedies.

158Section 45.2 of the Code reads as follows:

45.2(1) On an application under section 34, the Tribunal may make one or more of the following orders if the Tribunal determines that a party to the application has infringed a right under Part I of another party to the application:

1. An order directing the party who infringed the right to pay monetary compensation to the party whose right was infringed for loss arising out of the infringement, including compensation for injury to dignity, feelings and self-respect.

2. An order directing the party who infringed the right to make restitution to the party whose right was infringed, other than through monetary compensation, for loss arising out of the infringement, including restitution for injury to dignity, feelings and self-respect.

3. An order directing any party to the application to do anything that, in the opinion of the Tribunal, the party ought to do to promote compliance with this Act.

(2) For greater certainty, an order under paragraph 3 of subsection (1),

(a) may direct a person to do anything with respect to future practices; and

(b) may be made even if no order under that paragraph was requested.

159Although these complaints were filed before s. 45.2 of the Code came into effect on June 30, 2008, it applies as a result of s. 55(2), which provides that the Tribunal shall deal with complaints referred to the Tribunal before that date in accordance with the new Part IV.

160W. and S. seek the following remedies:

· A declaration that the special diet program discriminated against the complainants

· An order that the complainants be paid retroactive benefits

· An order that the respondent retain qualified experts to develop a special diet program that does not discriminate on the basis of disability and make the necessary changes to the special diet program within six months

· An order that the Tribunal remain seized so that it can determine whether the new program complies with the Code following the six-month period

· Interim monthly payments to the complainants until implementation of a new program

· $2,500 each in compensation for injury to dignity, feelings, and self-respect

161B. requested damages and other remedies based upon his claim on the basis of mental disability, which has been dismissed.

162The Commission requested the following remedies in its written submissions, although counsel, in oral argument, accepted that some of the remedies may be too intrusive:

(1) A determination that the respondent's reliance upon:

· paragraph 4 of subsection 30 (1) and paragraph 4 of subsection 33 (1) of Ontario Regulation 222/98; and

· Ontario Regulation 562/05, Schedule 1 to that Regulation

in determining which recipients of benefits pursuant to the ODSPA are eligible for a special diet, and the amount to be included in the budgetary requirements of an individual receiving a special diet, is inconsistent with the Human Rights Code.

(2) An Order that the respondent:

(a) retain qualified, external experts to develop a special diet program that:

(i) does not deny recipients, as a result of their particular medical condition, access to a special dietary allowance;

(ii) does not place individuals with particular medical conditions at a disadvantage relative to other individuals with comparable needs, and

(iii) permits a discretion on the part of the Director to provide benefits, or benefits in excess of the scheduled amounts to those who require such by virtue of their particular or unique needs.

(b) complete the process set out in paragraph (1) within twelve months of the Tribunal's decision, and forward to the Commission and to the lead complainants a report containing its recommendations for a revised Special Diet program, together with documents relied on in the process of developing that program. If the Commission or the lead complainants are of the view that the proposed new program is inconsistent with the Tribunal's decision or orders, they may seek further orders from the Tribunal, which will remain seized of the matter until such time as the process has been completed.

(3) An order, to have immediate effect, and to cease to be in effect at such time as the process set out in requested order "2" is completed, that the respondent cease its reliance upon Ontario Regulation 562/05, Schedule 1 to that Regulation, and paragraph 4 of subsection 30 (1) and paragraph 4 of subsection 33 (1) of Ontario Regulation 222/98 in determining which recipients of benefits pursuant to the ODSPA are eligible for a special diet, and the amount to be included in the budgetary requirements of an individual receiving a special diet.

163This case is about government policy and the design of complex social welfare schemes. The comments about the institutional roles and competence of courts and Legislatures in Doucet-Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62 at § 32—34 apply with equal force to this Tribunal and to remedies under the Code in this context:

Fortunately, Canada has had a remarkable history of compliance with court decisions by private parties and by all institutions of government...

This tradition of compliance takes on a particular significance in the constitutional law context, where courts must ensure that government behaviour conforms with constitutional norms but in doing so must also be sensitive to the separation of function among the legislative, judicial and executive branches...

In other words, in the context of constitutional remedies, courts must be sensitive to their role as judicial arbiters and not fashion remedies which usurp the role of the other branches of governance by taking on tasks to which other persons or bodies are better suited. Concern for the limits of the judicial role is interwoven throughout the law. [Emphasis added.]

164The Supreme Court has also directed human rights tribunals to ensure that their remedies are effective, creative when necessary, and respond to the fundamental nature of the rights in question. In Québec (Commission des droits de la personne et des droits de la jeunesse) v. Communauté urbaine de Montréal, 2004 SCC 30 [reported 49 C.H.R.R. D/129] at § 26:

Despite occasional disagreements over the appropriate means of redress, the case law of this Court, although the law is undoubtedly still in its early stages of development in this area, stresses the need for flexibility and imagination in the crafting of remedies for infringements of fundamental human rights... Thus, in the context of seeking appropriate recourse before an administrative body or a court of competent jurisdiction, the enforcement of this law can lead to the imposition of affirmative or negative obligations designed to correct or bring an end to situations that are incompatible with the Quebec Charter.

165Against this background, I consider first the requests for retroactive and future benefits. The complainants argue that an order that benefits be paid retroactively reflects the well-established principle that monetary remedies should put the complainant in the circumstances he or she would have been in had the discrimination not occurred: Airport Taxicab (Malton) Assn. v. Piazza (1989), 1989 CanLII 4071 (ON CA), 10 C.H.R.R. D/6347 (Ont. C.A.); Smith v. Ontario (Human Rights Comm.), 2005 CanLII 2811 (ON SCDC), [2005] O.J. No. 377 (QL) [52 C.H.R.R. D/89] at § 28 (Div.Ct.). The respondent states that it would not be appropriate for the Tribunal to make an order for retroactive or future benefits unless the amount of benefits required to achieve equality is clear and well-defined. Counsel argues that the Tribunal could make an order for a person with a condition left out of the unintended weight loss category if it found that was discriminatory, because the amount would be the same as for other conditions in that category. However, when there is no precise comparator on the schedule, as is the case here, the respondent submits that no benefits can be awarded.

166The third subparagraph of s. 45.2(1) directs the Tribunal to consider monetary compensation "for loss arising out of the infringement". As the Supreme Court stated in Doucet-Boudreau, supra, it is essential that a remedy meaningfully vindicate the claimant's rights. There is no question in this case that the respondent's purpose was to provide benefits to all those who fit within the purposes of the program and no argument that it might have made the choice to have no special diet program rather than providing substantively equal benefits to those in the position of the complainants (for the opposite situation, see Schachter v. Canada, 1992 CanLII 74 (SCC), [1992] 2 S.C.R. 679). In my view, the complainants are entitled to retroactive benefits from the date that they would have been eligible for them had the program not violated the Code.

167At the same time, the concerns of the respondent are not without foundation. There is no precise, easily calculable amount that the Tribunal can apply to determine what retroactive and future benefits should be. The costing of the diet is within the institutional competence and discretion of the respondent, provided it complies with the Code in doing so. Accordingly, in my view, the appropriate order is that the respondent, within 90 days following this decision, provide the complainants with retroactive benefits and future monthly benefits that reflect the Code principles set out in this decision. I will remain seized of their complaints for the sole purpose of dealing [with] any dispute over whether the respondent has complied with this aspect of the order.

168I turn next to the question of compensation for injury to dignity, feelings, and self-respect, also known as general damages. The parties agree that, when a Code claim relates to government legislation or regulations, specific principles apply. As the Supreme Court of Canada held in Mackin v. New Brunswick (Minister of Finance), 2002 SCC 13, when a law is struck down as unconstitutional, damages will only be awarded if there is conduct that is "clearly wrong, in bad faith, or an abuse of power": see § 79. Later paragraphs of the judgment also refer to "negligence" and "wilful blindness": see § 82—83.

169The Mackin approach requires an evaluation of whether, evaluated in light of the jurisprudence as it stood at the time, the government's conduct was clearly wrong. Unless, at the time the legislation or regulations were implemented, it was or ought to have been evident that the steps taken were unconstitutional, damages should not be awarded. As the Court stated at § 79:

... Thus, the government and its representatives are required to exercise their powers in good faith and to respect the "established and indisputable" laws that define the constitutional rights of individuals. However, if they act in good faith and without abusing their power under prevailing law and only subsequently are their acts found to be unconstitutional, they will not be liable. Otherwise, the effectiveness and efficiency of government action would be excessively constrained.

170In Communauté urbaine de Montréal, supra, at § 19—22 the Court confirmed the application of these principles to the Quebec Charter, which, like the Code, is quasi-constitutional human rights legislation. In Braithwaite, supra, at § 88, the Divisional Court held that Mackin also applies under the Ontario Code, stating as follows:

Moreover, the Supreme Court of Canada has held that absent conduct that is clearly wrong, in bad faith or an abuse of power, it is inappropriate to award damages when legislation is subsequently found to be unconstitutional or contrary to provincial human rights legislation (Mackin v. New Brunswick (Minister of Finance), 2002 SCC 13, [2002] 1 S.C.R. 405 at paras. 78—79; Québec (Commission des droits de la personne et droits de la jeunesse) v. Communauté urbaine de Montréal, 2004 SCC 30, [2004] 1 S.C.R. 789 [49 C.H.R.R. D/129] at para. 23).

171Applying the Mackin principles that all parties accept, there is no basis to find that in not including hypoproteinemia on the special diet schedule, or in determining the amounts for hypertension, hypercholesterolemia or obesity, the respondent acted in bad faith, was negligent, was clearly wrong or abused its power under prevailing human rights law. Although the complainants criticize the speed and manner in which the respondent made the changes and allege a lack of attention to human rights in how the new schedule was developed, it was not clear under the "prevailing law" that it was clearly or even likely violating the Code in the decisions it made about the complainants' particular disabilities. Accordingly, I do not award monetary compensation for injury to dignity, feelings, and self-respect. This conclusion is limited to the particular violations I have found. It may be that other circumstances raise different considerations, and I leave such issues to be determined on their facts.

172I turn now to the issue of whether the Tribunal should make an order under the third subparagraph of s. 45.2(1) to ensure compliance with the Code. Given the violations that have been found in this case, the appropriate order to remedy this breach is that, commencing within three months, those administering ODSP and OW shall provide special diet benefits for individuals with hypoproteinemia, hyperlipidemia, hypertension, and obesity in accordance with the Code principles set out in this decision. The respondent accepts that, while the Tribunal cannot order that legislation or regulations be amended (Malkowski, supra, at § 34), it can order that the program be administered in accordance with the Code.

173The remedy I have awarded relates to the violations of the Code that have been proven. Of course, the principles set out may require other changes to the special diet program. The government may choose various ways of addressing this, such as, for example, revising the schedule to include a more comprehensive list of disabilities or to deal with any gaps through a discretionary category. The request for the Tribunal to take a detailed role in the development of a revised special diet program is, in my view, unnecessary and inconsistent with the role of the Tribunal in relation to the Legislature and executive. These are matters for which the Tribunal is not well suited. Requiring experts outside the government to design policy or retaining jurisdiction in order to supervise changes to the program would be an improper interference in the role of the Minister.

174The complainants express scepticism that the government would act appropriately without a detailed order, citing, among other things, the few changes to the schedule since 2005 despite the undertaking at that time that it would be reviewed regularly. I do not share the complainants' concerns. I note, in particular, the strong tradition of compliance with court orders in Canadian society discussed in Doucet-Boudreau. Moreover, should the respondent fail to act reasonably or appropriately following this decision, the principles in Mackin may support awards of general damages in other cases.

175Should the government fail to take reasonable and appropriate action, there remain many complaints and applications about the special diet allowance before this Tribunal in which other remedies could be requested. Moreover, under the current human rights system, an application may be filed with the Tribunal by any recipient of social assistance who believes that his or her rights have been violated, and seek appropriate remedies in that proceeding. The Tribunal's role, given the facts of this case, should be as an arbiter of whether individuals' rights are violated by the program, not in designing or evaluating the program as a whole. Accordingly, I will make no other orders.

NEXT STEPS FOR OTHER CASES

176The Tribunal held in its interim decision setting up the process for these cases that a case conference would be held following the decision on the lead cases to determine a procedure to address the remaining cases. A case conference will be held at the Tribunal's hearing centre at 655 Bay St., 14th Floor, Toronto, Ontario, on April 13, 2010, commencing at 10:00 a.m. A formal hearing notice will follow with a call-in number for any parties who wish to attend by telephone.

177complainants or applicants may choose to be represented by counsel for the lead complainants or counsel for the Commission for the purpose of the case conference, as occurred during the initial case conference on April 11, 2008. Unless advised otherwise, the Tribunal will presume that Ms. Wilkey and Ms. Bisgould are appearing on behalf of the same complainants as at the April 11, 2008, conference.

178At the case conference, the Tribunal will hear submissions from the Commission, the remaining complainants, and the respondents about how the remaining complaints and applications should proceed. If any complainants or applicants do not attend the case conference, their cases may still proceed in the manner determined following the case conference.

179It is in my view also important that the Commission, applicants, and complainants in the remaining cases consider and advise the Tribunal how their claims fall within the framework established in this decision. This will assist in determining how these matters will proceed. Accordingly, at the latest within four months of this decision, the remaining complainants and/or Commission shall deliver to the other parties to the complaint and file with the Tribunal an outline of the allegations of discrimination, including written answers to the following questions:

1. On what disability or disabilities do