HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
C. Hunter Wells
Applicant
-and-
Her Majesty the Queen in Right of Ontario as represented by the Minister of Community and Social Services
Respondent
INTERIM DECISION
Adjudicator: David A. Wright
Indexed as: Wells v. Ontario (Community and Social Services)
WRITTEN SUBMISSIONS
C. Hunter Wells, Applicant ) Self-represented
Her Majesty the Queen in Right of Ontario ) Peter Rusk,
as represented by the Minister of Community ) Counsel
and Social Services, Respondent )
INTRODUCTION
1This Interim Decision addresses a Request for Interim Remedy by the applicant relating to changes to the amount of her Special Diet Allowance (“SDA”) under the Ontario Disability Support Program (“ODSP”). Until July 31, 2011, the applicant received an SDA in the amount of $610, as a result, principally, of an administrative error. As of August 1, 2011, the applicant is required to reapply for the SDA under the schedule currently in place and expects that the amount of her SDA will be reduced to $144 per month.
BACKGROUND
2The SDA 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, up to a maximum of $250. 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.
3A previous change was made in 1998. When the Ontario Disability Support Program Act, 1997, S.O. 1997, c. 25, Sched. B came into effect and replaced the Family Benefits Act (“FBA”), $250 per month was set as the maximum amount that a recipient could receive for a special diet allowance. However, if, on April 30, 1998: (i) a recipient was receiving an amount for a special diet in excess of $250 in accordance with the FBA, and (ii) if in each subsequent month, the additional cost of the special diet continued to be greater than $250, then the “cap” for this “grandparented” recipient was not $250 but the amount they received for the special diet on April 30, 1998 (see O. Reg. 222/98 ss. 30(3) and 30 (4)). If one of the grandparented individuals’ SDA decreased to $250 or less, they would be subject to the $250 cap from that point on. The applicant was one of 13 recipients in the province who were grandparented in 1998; there are now eight.
4From the evidence before me on this preliminary request, it appears that in 2005 when the program changed from a diet-based schedule to a condition-based schedule, the applicant was not required to reapply for special diet benefits under the new schedule as a result of an administrative error. As a result, she continued to receive the $610 allowance without the requirement that she qualify through the certification by a medical practitioner that she had conditions on the 2005 schedule with corresponding amounts.
5As part of the transition to a revised special diet allowance schedule that took effect at the beginning of August, 2011, the applicant and other grandparented SDA recipients were required to requalify under the 2011 schedule. The applicant has some conditions that are listed on the schedule, and other conditions that are not listed on the schedule. Based on the conditions identified by her physician, she is likely to have her SDA reduced from $610 to $144.
REQUEST FOR INTERIM REMEDY
6The applicant has been diagnosed with myalgic encephalomyelitis, also called chronic fatigue syndrome, as well as various food allergies and other related conditions. She seeks continued funding in the amount of $610 for an organic diet. Chronic fatigue syndrome is not on the special diet schedule, although allergies to wheat and milk products, which the applicant has, are on the schedule. These allergies lead to an SDA of $144.
7The Application states that the discrimination claim is based on the fact that the special diet schedule does not include myalgic encephalomyelitis and related hypersensitivities as a condition for which special diet funding is provided. The applicant provides several letters from physicians that suggest that she requires this diet. She asks, among other things, that the Tribunal order the respondent to provide special diets appropriate to each individual’s disability related needs.
ANALYSIS
8In Ball v. Ontario (Community and Social Services), 2010 HRTO 360, the Tribunal dealt with challenges to the special diet program as it existed prior to August 2011. The Tribunal’s reasoning was summarized as follows at paras. 5-9:
The 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.
Determining 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.
Applying 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).
I 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.
Given 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.
9Against the background of the Ball decision, I turn to the applicant’s Request for Interim Remedy. Rule 23.2 reads as follows:
23.2 The Tribunal may grant an interim remedy where it is satisfied that:
a) the Application appears to have merit;
b) the balance of harm or convenience favours granting the interim remedy requested; and,
c) it is just and appropriate in the circumstances to do so.
10The approach that the Tribunal takes in determining requests for interim remedies was set out in detail in TA v. 60 Montclair, 2009 HRTO 369 (“TA”). TA and subsequent decisions have articulated various principles that apply to requests for interim remedies. They include the following:
The focus of the inquiry is on whether an interim remedy is necessary to ensure a complete, appropriate and effective remedy at the end of a hearing (TA at paras. 15-27).
Interim remedies are extraordinary remedies and an applicant has a significant onus to meet in demonstrating that an interim remedy is necessary (TA at paras. 28-29).
To satisfy the first element of the test, the Tribunal need generally only be satisfied that there is an arguable case and the claim is not frivolous or vexatious (TA at paras. 30-32).
The second factor involves a balancing of the harm to the applicant against the harm to the respondent (TA at paras. 33-34).
The third factor calls upon the Tribunal member to decide whether the request is necessary to further the remedial purposes of the Code and is fair in all of the circumstances (TA at para. 35).
The three criteria should not be seen as successive hurdles, but the decision should consider the collective impact of all factors and the purpose of the provision as a whole (TA at para. 36).
The Tribunal is more reluctant to order a proposed interim remedy that would create a new state of affairs than one which would preserve an existing state of affairs. (Cochrane v. Iroquois Falls (Town), 2010 HRTO 2350 at para. 8).
11As the applicant has presented her case, I cannot find that the Application appears to have merit in light of the principles established in Ball. While it may be that the purpose of the special diet program has changed with the August 2011 amendments, in the absence of any evidence or argument to that effect, it is my view that the Ball test should be applied for the purposes of this Request for Interim Remedy.
12The applicant has presented evidence that suggests that her physicians believe she benefits from an organic diet, but she has presented no evidence that suggests there is general recognition in the Ontario medical community that modifications to a regular healthy diet should be made because of chronic fatigue syndrome. This is an essential component of a successful claim as established in Ball. Moreover, to the extent that she seeks an SDA above $250, the applicant is not able to point to others with different disabilities who receive such an allowance. For these reasons, it does not appear that as presented, there is an arguable case on the merits.
13Moreover, I cannot find that it would be just and appropriate to award an interim remedy in these circumstances. The applicant is in the same position as hundreds of others challenging the SDA who are before this Tribunal and the Social Benefits Tribunal. The Tribunal has adopted a process whereby the complex legal and medical arguments about whether the SDA violates the Code are being made in stages: see Ball v. Ontario (Community and Social Services), 2008 HRTO 24. I appreciate that the change to the amount of the applicant’s SDA has been made more recently than others, and I recognize that the significant change to her monthly benefits will doubtless be extremely difficult for the applicant. However, the additional benefits she received until August 2011 appear to have resulted from an administrative error, the applicant has not presented medical evidence that suggests that her conditions meet the Ball test, and she is in the same position as many others with her medical condition who are awaiting the outcome of the lead case process. In such circumstances, I cannot find that it would be just and appropriate to award the remedy requested. Accordingly, the Request for Interim Remedy is dismissed.
NEXT STEPS
14Since the February 2010 Ball decision, the Tribunal, the lawyers from the Ontario legal clinic system, the Commission and the lawyers for the respondent Ministry have been working to develop a fair way of putting forward the evidence and argument necessary to decide the rest of the cases. The lawyers from the clinic system and the Commission have now advised the Tribunal that they will not be pursuing human rights claims for certain conditions. This does not prevent the applicant from preparing and presenting her own case on those conditions.
15The Application appears to identify the following conditions on which the applicant bases her claim: chronic fatigue syndrome/ myalgic encephalomyelitis, food allergies – corn, food allergies -- eggs, malabsorption, irritable bowel syndrome. Among these, the clinic complainants have identified the following conditions that they will not be preparing and presenting evidence and argument: chronic fatigue syndrome/ myalgic encephalomyelitis, food allergies – corn, food allergies -- eggs, malabsorption. The Tribunal understands that at this time they intend to present evidence and argument on irritable bowel syndrome.
16In these circumstances, and in light of the test established in Ball, the Tribunal gives the following directions for the next steps in this case:
(1) The respondent need not file a Response or further materials unless directed to do so by the Tribunal.
(2) The applicant must write to the Tribunal within 60 days of the date of this Interim Decision, with a copy to counsel for the respondent, providing the following information:
A) In relation to what medical condition(s) do you allege the SDA program violates the Code?
B) Do you accept that the legal test set out in Ball applies to the analysis of your claim about the August 2011 SDA schedule. If not, please identify the basis on which you allege that it does not apply.
C) For each condition, with the exception of irritable bowel syndrome:
(i) What evidence do you have to show that there is general recognition in the Ontario medical community that modifications to a regular healthy diet should be made because of the condition?
(ii) On what basis do you allege, and what evidence will you use to show that the condition leads to extra food costs as compared with a regular healthy diet for a person without the condition?
D) The applicant must include copies of the evidence (for example, letters from health care professionals) supporting these arguments.
(3) In relation to irritable bowel syndrome, the applicant need not file any further information at this time. Unless either party objects, the Tribunal intends to deal with this aspect of the claim after any lead cases on this issue have concluded.
(4) A copy of this Interim Decision will be sent to counsel for the lead complainants and the Ontario Human Rights Commission in the Ball case for their information.
17I am not seized.
Dated at Toronto, this 23rd day of August, 2011.
“Signed by”
David A. Wright
Associate Chair