Martel v. Ontario (Community and Social Services), 2012 HRTO 1043

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Robert Martel and Glen Poloz

Applicant

-and-

Ontario Human Rights Commission

Commission

-and-

Her Majesty the Queen in Right of Ontario as represented by

the Minister of Community and Social Services

Respondent

RECONSIDERATION DECISION

Adjudicator: David A. Wright

Date: May 25, 2012

Citation: 2012 HRTO 1043

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

WRITTEN SUBMISSIONS

Robert Martel and

Glen Poloz, Complainants

Lesli Bisgould, Counsel

1This is a Request for Reconsideration in the ongoing litigation related to the Special Diet Allowance for social assistance recipients. The complainants seek reconsideration of the conclusion and remedy in the Decision, 2012 HRTO 735, in which the Tribunal found that the complainants had established discrimination within the meaning of the Code. The complainants believe that the Tribunal should have made conclusions about "cirrhosis" and ordered the respondent to also include it on the special diet schedule.

2The complainants state as follows:

The complainants respectfully ask the Tribunal to reconsider its conclusion in its decision of April 12, 2012, to the extent that the conclusion and remedy granted by the Tribunal apply only to chronic hepatitis C and do not appear to include cirrhosis.

The complainants do not dispute the Tribunal's decision in para. [4] to decline to make findings regarding all six conditions which Ms. Sengmueller's evidence addressed, and to limit its findings to whether there is evidence that the complainants' disability meets the test. In so expressing, The [sic] Tribunal here referred only to chronic hepatitis C. However, in para. [3] immediately preceding, the Tribunal described the complainants' disabilities, noting that Mr. Poloz has chronic hepatitis C and cirrhosis. This was uncontroversial; the respondent did not dispute that the evidence established that Mr. Poloz has cirrhosis (report of Dr. Kamouna, March 2, 2005, "Client Documents", Hearing Ex. 2, Tab 3, p. 27).

The evidence that was before the Tribunal established that "cirrhosis" is a term used to describe the result of assaults on the liver from a variety of causes, including - but not limited to - chronic hepatitis C. Further, regardless of the cause, cirrhosis creates a need for the same dietary modifications required by persons with chronic hepatitis C. The evidence supporting these propositions includes the very evidence relied on by the Tribunal in its findings in respect of chronic hepatitis C.

[citations to evidence omitted]

There does not appear to be any reason that cirrhosis should be litigated again when the evidence excerpted above was before the Tribunal in this case, and since the Tribunal acknowledged that one of the complainants had cirrhosis, the principle of res judicata might prevent it from being adjudicated in subsequent proceedings.

In light of all of the above, the complainants respectfully submit that it is in the interest of the parties, other complainants in these proceedings with cirrhosis, and the efficient resolution of the special diet litigation generally, that the Tribunal clarify that its findings in this case apply to persons with cirrhosis in addition to persons with chronic hepatitis C.

3There is no merit to the complainants' request. They seek reconsideration on the basis that the decision is in conflict with established case law or Tribunal procedure and the proposed reconsideration involves a matter of general or public importance. However, there is no allegation that the matters at issue meet this test.

4Reconsideration is not an appeal, and is granted only in limited circumstances. As the Tribunal stated in Sigrist and Carson v. Toronto District School Board, 2008 HRTO 34, at paras. 56-57:

As is evident from the Rules and made explicit in Practice Direction #4, reconsideration is not an appeal. It is not an opportunity to re-argue a case. Once the parties to a case have had the opportunity to present their evidence and arguments to the Tribunal, and the Tribunal has made a decision disposing of the issues, parties are entitled to treat the matter as closed, subject to limited exceptions.

Secondly, assertions of a "conflict" must be analyzed with care and have due regard to the realities and nature of decision-making. Even where there is well-established jurisprudence or procedures, each decision on apparently similar issues is made within its own factual, legislative and policy context. A finding that there is a "conflict" can only be made taking into consideration the full context of the decisions.

As Sigrist makes clear, a conflict must be based on an established line of case law in a context that is directly applicable. That is not the case here and the complainants do not even attempt to suggest this.

5The conclusion in the Decision that the appropriate analysis was to focus on chronic hepatitis C and make an order in this regard was entirely consistent with the Tribunal's jurisprudence. It is important to emphasize that hepatitis C is a liver disease, and cirrhosis refers to scarring on the liver, an effect of various liver diseases. Mr. Poloz has chronic hepatitis C which appears to have caused cirrhosis. There is no suggestion that someone with chronic hepatitis C requires a different special diet when he or she has cirrhosis; only that those with cirrhosis from other causes also require a special diet.

6At paras. 4-7 of the Decision, I stated as follows:

The complainants and Commission filed an expert report that relates to the following conditions: hepatitis B & C, liver failure, liver fibrosis, cirrhosis, and alcoholic liver disease. The original report filed suggested that it related to all hepatic disorders, "including" these conditions, but the expert, Elke Sengmueller, subsequently clarified that her evidence related only to the listed disabilities. The complainants and Commission urge me to make findings regarding all six conditions. I decline to do so and limit my findings to whether there is evidence that the complainants' disability – chronic hepatitis C – meets the test established in Ball. The parties will need to draw their own conclusions about what effects my reasoning may have on other cases and litigate those issues if necessary.

In Ball, at para. 11 I held as follows:

My 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.

At para. 175 I stated:

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.

The complainants and Commission have not convinced me that this reasoning was wrong, and I remain of the view that this is the appropriate approach to adjudicating cases in this special diet litigation. It may be different if the conditions were treated together in all or most of the medical and nutritional literature. However, in this case one of the principal pieces of evidence in support of the complainants' case is the Dieticians of Canada, Hepatitis C: Nutrition Care, Canadian Guidelines for Health Care Providers (2003) ("Hepatitis C Guidelines"). As I will outline below, this evidence is critical to my determination that discrimination has been established in relation to chronic hepatitis C. To rule on other conditions would require me to evaluate, separately, whether the evidence on them meets the Ball test. This would require obiter determinations of fact that in my view would not be appropriate. Moreover, I note that Dr. Hurowitz, the respondent's expert, stated in oral evidence there are other chronic liver disorders that, he implied, might properly be included together with these conditions because of their similar effects on the liver and so any conclusion might not be comprehensive in dealing with chronic liver disorders.

[emphasis added]

7Mr. Poloz's complaint was allowed, based on his disability of chronic hepatitis C. I cannot agree that it was somehow in error or inconsistent with established jurisprudence for the Tribunal not to rule in obiter dicta on whether cirrhosis from other causes also leads to a special diet and award a remedy on this basis. Mr. Poloz won, and the Tribunal awarded him special diet benefits. The Tribunal ordered the government to include all individuals falling within the broader category "chronic hepatitis C" on which it had analyzed the case, and not the narrower category "cirrhosis caused by chronic hepatitis C", given that Mr. Martel did not have cirrhosis and the broader category was therefore at issue. There was no reason to rule on the question of whether cirrhosis, based on other causes, requires a special diet.

8What appears to underlie the Request for Reconsideration is the complainants' view that the Tribunal should rule more generally on the program as a whole and all issues they raise, issuing broad remedies that direct the government to make specific changes to the program. I have ruled throughout this litigation that the Tribunal would rule on individual cases that are before it and would not go beyond what is necessary to decide them: see paras. 4-6 of the Decision and paras. 11 and 175 of Ball v. Ontario (Community and Social Services), 2010 HRTO 360. To rule on whether cirrhosis from other causes requires a special diet, when this was not necessary to my conclusion on whether Mr. Poloz's rights were violated, would have been inconsistent with those principles.

9In relation to remedies, I have ruled that the decisions about the appropriate detailed modifications to the program resulting from any findings that individuals' rights were violated should fall to the government. In arriving at this conclusion, I have relied extensively on the tradition of compliance with court and tribunal decisions set out in Doucet-Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62, and recognized that the detailed design of social welfare programs is a matter that falls within the primary institutional competence of governments: see the Decision at paras. 28-31 and Ball at paras. 163-175. Indeed, there is no evidence or reason to suggest that in its modifications to the special diet program in response to the Tribunal's previous rulings and evidence put forward by the complainants, Ontario has done anything other than demonstrate its continued adherence to that tradition in good faith, taking steps to comply with Tribunal orders and the rationale of the Tribunal's decisions. To make an order with respect to cirrhosis from causes other than chronic hepatitis C would be contrary to the approach the Tribunal has taken throughout this litigation and would not have respected the government's primary institutional role in designing the program and determining how best to classify, consistent with the Code, what should trigger special diet benefits in relation to liver disease: see para. 7 of the Decision.

10The Decision is consistent with the Tribunal's general approach to the Special Diet litigation. The complainants have presented no basis to suggest that the Decision is otherwise in conflict with established case law or Tribunal procedure and have not met the test for reconsideration under the Tribunal's Rules. The Request for Reconsideration is dismissed.