HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
John Buklis, Tyrone Lance, Colette Cloutier, Cassandra Cook,
Suzanne Hunchuck, John Jay, Raymond Seguin, Margaret Mahaney,
Anne Marin, Donna Salm, Rosemary Draper, Jo-Ann MacConnell, John Green, Kristi Heyer, Jamie Petit, Ashley Saunders, and Edward Wendling
Complainants/Applicants
-and-
Ontario Human Rights Commission
Commission/Intervenor
-and-
Her Majesty the Queen in Right of Ontario as represented by
the Minister of Community and Social Services
Respondent
LEAD CASE DECISION
Adjudicator: David A. Wright
Indexed as: Buklis v. Ontario (Community and Social Services)
APPEARANCES
John Buklis, Tyrone Lance, Colette Cloutier, Cassandra Cook, Suzanne Hunchuck, John Jay, Raymond Seguin, Margaret Mahaney, Anne Marin, Donna Salm, Rosemary Draper, Jo-Ann MacConnell, John Green, Kristi Heyer, Jamie Petit, Ashley Saunders, and Edward Wendling, Complainants/Applicants
Lesli Bisgould, Cynthia Wilkey, and Jackie Esmonde, Counsel
Ontario Human Rights Commission, Commission/Intervenor
Cathy Pike and Insiya Essajee, Counsel
Her Majesty the Queen in Right of Ontario as represented by the Minister of Community and Social Services, Respondent
Robert E. Charney, Courtney Harris and Dan Guttman, Counsel
Introduction
1This is the fourth Lead Case Decision on the issue of whether the Special Diet Allowance under Ontario’s social assistance system discriminates against individuals with certain medical conditions by failing to fund or by underfunding the special diet allowance for their disability. This Decision deals with the claims of 17 individuals in relation to 11 different conditions.
2For the reasons that follow, all claims except for that of Kristi Heyer for Prader-Willi syndrome and that of Edward Wendling for Unintended Weight Loss: Renal Failure are dismissed on the basis they have not proven that they meet the test for discrimination set out in the first Lead Case Decision, Ball v. Ontario (Community and Social Services), 2010 HRTO 360.
3This proceeding involves multiple complaints filed under the Human Rights Code, R.S.O. 1990, c. H.19, (the “Code”), as it stood prior to June 30, 2008, which were referred to the Tribunal by the Ontario Human Rights Commission. There are also two Applications filed directly with the Tribunal under the Code as amended in 2008, that were made part of the lead case process, and in which the Commission was granted intervenor status. The Commission supports the claims of the complainants and applicants, and made joint submissions with counsel for the complainants and applicants. I have referred to the complainants, applicants and Commission collectively in this Decision as “claimants”.
THE LEAD CLAIMS
4A preliminary issue raised by the parties and addressed in oral argument is whether, in this proceeding, the claim of Ashley Saunders should be considered as a lead case on the issue of whether the failure to provide a special diet allowance for cardiovascular disease is discriminatory. Until November 12, 2012, Ms. Saunders was identified as a lead complainant, but only for the condition of unintended weight loss: congenital heart disease. For the reasons that follow, I decline to consider Ms. Saunders’s claim in relation to cardiovascular disease at this time.
5I begin with a brief description of the process that was ordered leading up to the hearing on January 23, 24, and 25, 2013. At the same time as the release of the previous Lead Case Decisions on April 12, 2012, in Martel v. Ontario (Community and Social Services), 2012 HRTO 735, and Crocker v. Ontario (Community and Social Services), 2012 HRTO 736, the Tribunal issued a Case Assessment Direction (“CAD”) setting out the process for bringing all further lead cases in as expeditious a manner as possible. It established firm deadlines by which, among other things, lead claimants would be identified, written affidavit evidence would be produced, cross-examinations and re-examinations would be conducted before court reporters, written legal submissions would be filed and a hearing would be held.
6The CAD of April 12, 2012 set out the following general principles in support of this approach:
It is now over two years since the relevant principles were established in Ball and over four years since the cases were referred to the Tribunal. Access to justice for the complainants and applicants, the respondent, and the people of Ontario who rely upon Ontario’s social assistance system demands that these cases be completed quickly.
Given the stage of these matters, the various requests for extensions and the multiple procedural disputes, the Tribunal intends to take a more directive approach than previously to the case management of these cases until they are concluded, with a view to timely resolution of the remaining matters.
The oral evidence and cross-examination has had little or no impact on the central analysis of the legal and the factual questions the Tribunal has decided. This is a significant factor in my decision not to hear further oral evidence in the hearing room.
The Tribunal has now ruled on several occasions that it will only rule on conditions that are raised in complaints before it. Further cases should proceed in accordance with this principle.
The Tribunal has now ruled on two occasions on remedy, and made similar orders in both cases.
The nature of these cases is such that a clear, straightforward explanation of the basis for the claims and definition of the issues at the outset is key.
Firm deadlines are essential to moving these matters forward. In calculating timelines in the schedule below, I have considered a reasonable time to each event from today, not from the previous step, and taken into account that the evaluation of each condition in relation to the Ball test has been underway since 2010.
7Several deadlines were subsequently modified on consent of the parties, and the CAD of May 2, 2012, which confirmed the final dates, stated: “[t]he dates below are firm and will only be extended in exceptional circumstances”.
8There is no question that the preparation of this case placed a significant workload on counsel for all parties and I commend them for their exceptional efforts in meeting the deadlines with only small modifications. While many of the claims have been disposed of on the basis of a relatively discrete analysis, the parties prepared extensive evidence and submissions on many arguments that I have not found necessary to address in this Decision. Moreover, some of their work led to settlements and withdrawal of complaints. I thank all of them for their efforts, which have been of great assistance to me in deciding these cases, and appreciate the respect they all showed for the principles set out in the CAD.
9The narrow question before me, however, is whether to consider Ms. Saunders’s claim in relation to cardiovascular disease in this Lead Case Decision. The complainants had a deadline of July 3, 2012, to identify the lead claimants and the conditions for which they would be lead claimants. They had a deadline of August 31, 2012, to deliver and file expert reports for each condition. The respondent filed its response and expert reports on October 31, 2012. On November 13, 2012, the day before cross-examinations were to start, counsel for the claimants wrote to the Tribunal and respondent stating that “Ashley Saunders will also serve as a lead complainant in the Cardiovascular Disease category…” Counsel did not seek leave from the Tribunal to do so.
10At that time neither the respondent nor the Tribunal addressed the attempt to add a further lead claimant outside the timeline and the respondent did not specifically object to this addition. However, it was for the complainants’ counsel to seek leave to amend the timeline. Had leave been sought, it would have been denied. It would have been unfair to the respondent to add a new lead claimant after the respondent’s affidavits were filed, on the eve of cross-examinations, with no opportunity to consider their position or call new evidence.
11As set out in the CAD, a key principle of the case management process was that claims be clearly identified at the outset. In earlier stages of case management following Ball, the claimants specifically stated their preference for a process in which an individual could be a lead claimant for certain conditions without having his or her whole claim adjudicated. The claimants must live with the litigation strategy they chose, both in relation to Ms. Saunders’s claim and the manner of bringing forward lead cases. In any event, Ms. Saunders will still be able to bring forward her complaint in relation to cardiovascular disease as the Tribunal establishes the process for the remaining cases. Accordingly, Ms. Saunders will not be considered a lead claimant for cardiovascular disease and I will not consider her claim on this basis in this Lead Case Decision.
The Ball Test
12A claimant must meet four conditions in order to show that he or she has been discriminated against because of disability in the design of the special diet allowance schedule. The claimant must show: (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). The test has been accepted by the Divisional Court on two occasions: Ontario (Community and Social Services) v. W. (Litigation Guardian of), 2011 ONSC 288, and Ontario (Community and Social Services) v. Martel, 2012 ONSC 6680. All parties accept that this is the test to be applied in this case and none challenge the reasoning that led to the establishment of the test.
INCREASING FIBRE INTAKE: Chronic constipation and DiVERTICULAR DISEASE
13I address next an issue important to several of the claims: whether a fibre intake that is within the range recommended for all Canadians but above what Canadians typically consume constitutes a modification to a “regular healthy diet” under the second stage of the Ball test. The claimants argue that a modification to a regular healthy diet is a modification to what Canadians typically consume. The rationale for the Ball test and the analysis conducted by the Tribunal and the Divisional Court in previous cases support the conclusion that the claims for “increased fibre” are not based on modifications to a regular healthy diet.
14Health Canada has set out daily recommended intakes for fibre consumption for the general population. Despite these guidelines, it is well-established that Canadian dietary practices fall far short of this goal. As noted by the respondent’s experts and accepted by the claimants, Canadians on average consume about half of the recommended level of fibre. Health Canada’s recommendations cannot be said to form part of the “typical” or “average” diet of Canadians.
15The claimants rely heavily on the fact that five of the diets that were recommended by the government’s Special Diet Expert Review Committee (“SDERC”) contemplate funding for fibre levels within the daily recommended intake. The SDERC diets for diabetes, gestational diabetes, dyslipidemia, hypertension and obesity all include modifications to “increase” fibre to levels within the daily recommended intake, and SDERC’s costings are adopted in the current schedule. They emphasize that I relied upon these costings in part in Ball to find that the amounts provided for hypertension, dyslipidemia and obesity were significantly disproportionate to the actual amounts. There was no expert evidence from the respondent in Ball and I accepted the complainants’ uncontested evidence that the amounts were significantly disproportionate: paras. 135-144 and 150. I did not find that every aspect of the SDERC’s costing methodology fell within the purpose of the program. However, the respondent chose to adopt the SDERC amounts in amending the schedule following that decision.
16The claimants argue that in interpreting the Ball test, the Tribunal must take into account what is on the schedule to give appropriate meaning to the stages of the test. Importantly, however, they state that they are not arguing for any modification or rethinking of the Ball test or the previous jurisprudence, only for a nuance to or fine-tuning of it.
17The stages of the Ball test are connected with the ultimate question before the Tribunal in a case like this: identifying the statutory purpose of the program and deciding whether benefits are denied to those who fall within that purpose because of a Code ground. The Ball test flowed from what the Tribunal found was the purpose of the special diet allowance program.
18The program was designed to fund additional dietary costs that arise because of a person’s disability. The basic needs allowance under social assistance is meant to fund the costs of a healthy diet for people without disabilities, and the special diet allowance takes into account that as a result of some disabilities, dietary requirements are different and more expensive. As stated at para. 88 of Ball:
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.
19As noted in Ball, the program is meant to identify those additional food costs that arise because of a person’s disability. For the purpose of the analysis, it is assumed that the basic needs allowance funds a healthy diet, and that the special diet allowance deals with the additional costs that arise because of disability: see in particular para. 98.
20In my view, it would not be a nuance but a fundamental change to Ball to find that the purpose of the program is to fund a diet different from Canadians’ standard diet, rather than differences from a healthy diet. Such differences do not arise because of disability, but rather because of less than optimal eating habits by most Canadians. To accept the claimants’ theory would be to find that if most Canadians’ eating habits improved, a particular special diet would no longer fall within the purpose of the program. This is neither a likely nor rational explanation of the purpose of the program.
21The claimants’ position is also inconsistent with the analysis that has been applied to other conditions. In the HRTO decision in Martel, above, at para. 40, the complainants were successful because they established that the protein and energy requirements for individuals with chronic hepatitis C were higher than for healthy adults without this disability, and this led to increased food costs that were not funded by the program. There was no evidence or consideration of a typical Canadian diet.
22In W. (Litigation Guardian of), above, the Divisional Court held on judicial review that the Tribunal had made an unreasonable decision in Ball in inferring “a logical link between more high-protein food and the treatment of protein deficiency”. The Court stated, at para. 41: “It is also possible…that in other cases, the cause of the medical condition is an inappropriate diet for which the treatment is prescription of a healthy or more appropriate diet”. This passage makes clear that the Court did not consider an adjustment to an inappropriate diet to be a special diet.
23The costing of fibre consumption within Health Canada’s recommendations as part of SDERC’s costing of certain diets does not overcome the fundamental inconsistency of the claimants’ argument with the purpose of the program as it has been defined and analyzed in the previous cases. There may be reasons that make these diets different or the diets may be inconsistent with the purpose of the program. That does not establish that the program is meant to compensate for costs of improvements to diet that are in the same range as what an individual without the disability should eat. It is not my role to determine whether the program is internally consistent, but whether it results in discrimination as a result of the principles developed in the case law.
24The claims of Cassandra Cook, Suzanne Hunchuck, John Jay and Raymond Seguin based on chronic constipation, and the claim of Ann Marin based on diverticular disease are based solely on the allegation that persons with these conditions should have a fibre intake within the range recommended by Health Canada. There is no modification to a regular healthy diet in these circumstances and the claims therefore do not meet the second stage of the Ball test. They are dismissed.
CLAIMANTS WHO ALREADY RECEIVE FUNDING FOR THE DIET SOUGHT
25Several claimants are already receiving funding for dietary modifications they are seeking here. This is because each of them has been diagnosed with another condition that requires the same modifications. The respondent argues that when a claimant is already receiving funding for a diet, he or she has not experienced discrimination. It notes, and this is undisputed, that the “overlapping” conditions often result from the fact that certain conditions tend to occur together. The claimants, on the other hand, argue that the Tribunal should consider these claims even if they would not lead to an award of past or future benefits. They agree that they are not making a claim for future or retroactive benefits for overlapping diets, since the special diet allowance schedule already contains groups of conditions for which a recipient only receives the highest amount because of related diets. However, they submit that the Tribunal should find discrimination and order that the claimed diet be added to the schedule.
26The claimants give several reasons why the Tribunal should rule on the claims of these lead claimants. They argue that each individual has a substantive interest in whether the claimed condition is put on the schedule. If their claim is allowed, and in the future they no longer have the condition currently on the schedule but continue to have the claimed condition, they will receive benefits in a situation they otherwise would not. They argue that it is of important meaning to someone to have their condition recognized on the schedule, even if it does not result in a change to their monthly benefit. They draw the analogy to the circumstance in which an individual is dismissed from employment but has mitigated their damages; the Tribunal may still find discrimination and order a remedy. They also argue that there may be other claimants waiting with cases at the Social Benefits Tribunal who may have only the claimed condition and the Tribunal should decide the issue to avoid more litigation.
27The claimants’ submissions depart from two established principles. First, it is not the label of the condition that is important, but whether the individual is receiving funding for dietary needs that stem from his or her disabilities. Second, the Tribunal’s role is to evaluate individual claims of discrimination and I will not address issues that are not necessary to decide individual claims.
28In adopting the arguments of the lead complainants in Ball, I held that the program focused on dietary needs through the mechanism of a list of conditions, and that it was not necessary for a claimant to have a particular medical condition to fall within the purpose of the program, at paras. 92-93:
The 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.
Mr. 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.
29At paras. 146-147 of Ball, I applied this reasoning and found that it was not discriminatory to provide benefits for an individual with Prader-Willi like symptoms under the category of Extreme Obesity:
I 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.
There 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.
30This reasoning is inconsistent with the suggestion that there is a disadvantage leading to discrimination when an individual receives benefits for food they need under a particular category but not multiple categories. Moreover, the fourth stage of the Ball test requires that there be no funding or substantially disproportionate funding for the additional costs. When a claimant is receiving funding because they have another condition, they have not shown that they have met the fourth stage of the Ball test. They have not been discriminated against, because they are getting funding for the diet they need.
31Second, the Tribunal’s role in these circumstances is to make decisions on the claims of the individuals who have come before it. The Tribunal is not tasked with designing or evaluating the entire program.
32This principle has animated all the Lead Case Decisions. In Ball, I declined the claimants’ request to consider other conditions and circumstances, on the basis that the determinations should relate to the facts alleged in the complaints of the lead complainants: para. 11. I also declined the complainants’ remedial request to order the respondent to retain experts to develop a new special diet program and remain seized, among other reasons because the remedies awarded should relate to the violations proven and retaining jurisdiction to supervise changes to the program would be an improper interference in the role of the Minister: paras. 173-175.
33In Martel, I again refused to go beyond the complainants’ conditions to consider other related conditions, relying at paras. 4-7 on the above-cited portions of Ball. In a Reconsideration Decision, I rejected the argument that because one of the complainants had cirrhosis caused by hepatitis C, it was appropriate to make a general order that applied to individuals with cirrhosis from other causes. I stated as follows at para. 8:
What 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.
[emphasis added]
34The claimants distinguish this reasoning, because they say it is only about the question of remedy and whether retroactive benefits are paid. They argue that where claimants with a condition “have been denied an appropriate allowance for that condition, discrimination has been established”. I disagree. The claimants with overlapping conditions have not been denied an appropriate allowance; they have received funds for the diet they need. They are seeking to have a hypothetical rather than an actual dispute determined.
35This reasoning leads to the dismissal of the claims of Rosemary Draper and Donna Salm based on Non-Alcoholic Fatty Liver Disease (“NAFLD”). The claimants do not dispute that the dietary modifications they seek for NAFLD are covered in the diets for extreme obesity and hypertension, for which Ms. Draper receives funding, and hypercholesterolemia, for which Ms. Salm receives funding.
36It also leads to the dismissal of the claim of Colette Cloutier based on cardiovascular disease. She is receiving a special diet allowance for hypertension, which involves similar modifications and is higher than the amount claimed for cardiovascular disease: $81 as compared with the calculated cost for what the claimants say is the cardiovascular diet at $58.20 per month.
37John Buklis receives the hypercholesterolemia diet at the rate of $51 per month. The claimants accept that this diet overlaps with and involves similar modifications to the proposed cardiovascular diet. The calculated cost by their expert for the cardiovascular diet, which the claimants say is different, is $58.20 per month. Assuming that the applicants are correct that the costing methodology is relatively similar, a difference of $7 per month in an allowance of over $50, which is less than 15%, is not a significant disproportion as set out in Ball, despite the fact that this difference may well be significant for an individual on social assistance.
38Resolving small disputes over methods of costing dietary changes in designing a complex social welfare program is not an appropriate role for the Tribunal, and the respondent should be given deference in determining how it will determine and fund such changes. As stated in Ball at paras. 103-105:
The 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.
At 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.
Supreme Court of Canada case law supports this conclusion. At para. 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 para. 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 para. 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.
39Costing is not an exact science and the government is entitled to significant deference in determining the amounts. Finding discrimination because of such a small difference, assuming I accept the claimants’ evidence, would inappropriately involve the Tribunal in the fine details of the designation of general amounts to compensate for food. Accordingly, Mr. Buklis’s claim based on cardiovascular disease is dismissed.
40While it is not necessary to my reasoning in determining this case, I find it appropriate to record in this Decision that the respondent stated the following in its factum:
Ontario agrees with Dr. Lefkowitz [the expert called by Ontario in this case] when he states that Mr. Buklis “rightfully should have been eligible for a special diet supplement by virtue of his coronary artery disease irrespective of his cholesterol levels. However, since he is already receiving a special diet allowance for his hypercholesterolemia, that should cover his needs and the presence of coronary artery disease in this setting does not demand further incremental dietary adjustment”.
POST-GASTRIC SURGERY DUMPING SYNDROME
41Dumping syndrome is a condition that can occur following certain stomach surgeries. There are two types of dumping syndrome. Early dumping syndrome generally occurs 15-30 minutes after eating. Late dumping syndrome generally occurs about 2-3 hours after a meal. Patients experience symptoms such as abdominal cramping, diarrhea, nausea, vomiting, light-headedness, weakness, and dizziness. It is thought to occur due to abnormally rapid entry of foods into the small intestine. The primary way of managing dumping syndrome is by changing how food is consumed. Patients are directed to eat six or more small meals per day and limit fluid intake with meals. Until 2011, the condition of “post-gastric surgery” [sic] was on the schedule at the amount of $10 per month. Since 2011, there has been no funding for this condition.
42It is well-established that individuals with dumping syndrome should limit the intake of simple sugars and eat high fibre foods to avoid the symptoms. The claimants allege that these requirements impose costs above a regular healthy diet. Specifically, they argue that the program should fund $5.40 per month to increase fibre consumption, $7.50 per month for a bag of artificial sweetener to replace sugar, $0.83 per month to replace regular jam with sugar free jam, and $9.90 per month to substitute canned and fresh fruits for fruit juices and fruit cocktail. These amounts were calculated by their dietician expert witness, Andrea Firmin.
43Assuming that the first two stages of the test are made out, this claim fails because the claimants have not shown that there are increased costs above a regular healthy diet that result from dumping syndrome, and therefore that they have needs that fall within the purpose of the program.
44First, for the reasons set out above, the claim for increased fibre, which is within the Health Canada recommended amounts, is not a claim for additional food costs that result from the disability.
45Second, the claimants seek funding for artificial sweetener to assist individuals with this disability in avoiding concentrated sugars. However, there is no evidence that this is required because of the disability, and there is no recommendation in the literature or in patient instructions relied upon by the claimants to use artificial sweeteners. Rather, it is clear that patients should eliminate their use. There is no basis to find that artificial sweeteners are generally recognized as a treatment for this condition or are needed in order to decrease intake of concentrated sugars.
46I note that in the diabetes diet as costed by SDERC and adopted by the respondent, one bag of artificial sweetener per month and the difference between sugar-free jam and regular jam were funded, in the same amounts as proposed by the claimants, to “decrease intake of concentrated sugars”. SDERC gave no rationale for why this fit the purpose of the program. I do not believe that the unexplained conclusion of SDERC establishes either that funding artificial sweeteners is necessary to compensate for additional costs of the diet for dumping syndrome, or that the purpose of the program includes substitutions for sugars, when there is no other evidence to support this and the evidence I do have suggests the elimination of sugars. As mentioned above, it is not my role to ensure complete consistency within the program but to analyze each condition put forward on the basis of the Ball test.
47This leaves $9.90 per month, which represents what Ms. Firmin says is the cost per fruit serving when a person cannot have juice or canned fruit in juice due to concentrated sugars. The respondent says that this method of calculation is inconsistent with the costing of other diets done by the Expert Review Committee, since in other diets that required the reduction of concentrated sugars, there was no modification of the cost of fruit servings to compensate for the elimination of fruit juices or canned fruit in juice.
48I appreciate that a difference of $10 per month may make an important difference in the life of someone on social assistance. However, the claimants have not shown that the respondent was required by the Code to base its determination of whether there are additional costs of a diet for dumping syndrome on the assumption that avoiding fruit juices leads to additional costs. This would amount to Tribunal micro-management of costs in the special diet program contrary to the principles quoted from Ball, above. In determining the average cost of fruit servings to decide the additional costs of a diet resulting from a disability, a significant amount of judgment is necessary, and the respondent is not required by the Code to accept Ms. Firmin’s method of exercising that judgment.
49Finally, the claimants assert an alternative claim for funding for this condition on the evidence of the respondent’s expert, who suggested that persons with dumping syndrome should reduce simple carbohydrates and increase fibre, protein and fat. The respondent had no notice of a claim for this diet and costing and, in any event, the claimants do not agree that this is an appropriate dietary modification. There is no basis to uphold a claim on this basis.
50Accordingly, the claim of John Green, based on post-gastric surgery dumping syndrome, is dismissed.
CARDIOVASCULAR DISEASE
51The claimants allege that Tyrone Lance, who has been diagnosed with congenital heart disease and a “mild left ventricle enlargement”, has been discriminated against because of the failure to include the category of “cardiovascular disease” on the special diet schedule. Mr. Lance has a bicuspid aortic valve, which is a congenital heart disease. He also has a cardiomyopathy characterized as a “mild left ventricular enlargement”. The claimants accept that neither of these conditions currently impacts upon his heart function.
52Cardiovascular disease was included on the special diet allowance schedule until April 2011 at a rate of $10 per month, which the claimants allege is significantly disproportionate to the actual additional costs of the diet. When the schedule was amended at that time, cardiovascular disease was removed.
53In support of the claim based upon cardiovascular disease, the claimants called Ms. Firmin and the respondent called Dr. Charles Lefkowitz, the head of the Division of Cardiology at Toronto East General Hospital and an Assistant Professor at the University of Toronto.
54The claimants assert that all forms of cardiovascular disease meet the Ball test, and, in the alternative, that all forms of congenital heart disease meet the test. While the respondent agrees that it is generally recognized in the Ontario medical community that some types of heart disease require a special diet, it submits that these do not include Mr. Lance’s conditions.
55Atherosclerosis is a disease of the arterial blood vessels, in which the walls of the blood vessels become thickened and hardened by plaques composed of cholesterol and other lipids, inflammatory cells, and calcium deposits. The plaques can slow the flow of blood through the arteries, and if the plaques rupture, the blood flow can become completely obstructed. Atherosclerosis is a subset of cardiovascular disease that includes patients with coronary heart disease (disease of the blood vessels supplying the heart muscle), cerebral vascular disease (disease of the blood vessels supplying the brain) and peripheral arterial disease (disease of blood vessels supplying the arms and legs). In patients with known atherosclerotic heart disease, the likelihood of future adverse cardiac events is higher than others. Mr. Lance does not have atherosclerosis.
56Ontario accepts, as stated in Dr. Lefkowitz’s affidavit, that it is generally acknowledged by Ontario physicians that modifications to a regular healthy diet are appropriate for patients with atherosclerotic forms of cardiovascular disease and those with a high risk of developing atherosclerosis. It also acknowledges that many experts believe that individuals with high risk for coronary events (certain risk scores of greater than 20%) require a dietary modification, although it takes the position that it is unlikely that individuals with such a score would not have at least one of hypertension, diabetes or hyperlipidemia and qualify for a special diet allowance involving similar dietary modifications on that basis. However, Dr. Lefkowitz states that modifications to a regular, healthy diet are not necessary for other forms of cardiovascular disease, including Mr. Lance’s mild left ventricular enlargement and congenital heart disease.
57In her affidavit, Ms. Firmin did not differentiate between atherosclerotic and non-atherosclerotic forms of cardiovascular disease. In her reply affidavit she did not take issue with Dr. Lefkowitz’s statement that no special diet is recognized for non-atherosclerotic forms of cardiovascular disease. In cross-examination, she was unable to point to any literature that would support her position that the medical community recognizes the need for modifications to diet for non-atherosclerotic forms of cardiovascular disease. There is no evidence that a special diet for non-atherosclerotic forms of cardiovascular disease is generally recognized by the Ontario medical community, and the claim that Mr. Lance is discriminated against on this basis is dismissed.
58I turn next to Mr. Lance’s claim based upon congenital heart disease. Dr. Lefkowitz explains that:
Congenital heart disease can be defined as a gross structural abnormality of the heart or intrathoracic great vessels that is actually or potentially of functional significance. These defects can be variable in severity, ranging from conditions that require no intervention and can be expected [to] have no impact on patient longevity or quality of life (example – small muscular ventricular septal defect which is likely to close before adulthood) to conditions in which survival beyond infancy is unlikely (example – hypoplastic left heart).
59With regard to the general claim for a special diet for congenital heart disease, Dr. Lefkowitz states that only certain forms of congenital heart disease predispose a person to atherosclerosis and therefore require a special diet:
Secondly, certain congenital heart defects, representing a small subset of all congenital heart defects, may predispose the adult patient to a higher risk for development of atherosclerosis independent of other risk factors. Specifically these include patients with aortic coarctation (incidence = 421 cases per million live births, 7% of all congenital heart disease cases), patients with either a D-transposition of the great vessels (incidence = 325 cases per million live births, 5% of all congenital heart disease cases), treated with an arterial switch operation or those with aortic stenosis (incidence = 401 cases per million live births, 6% of all congenital heart disease) treated with a Ross procedure (common alternative to valve prosthesis in children with aortic stenosis requiring valve replacement)… [I]t would be appropriate to include this very limited subset of congenital heart patients in the ‘atherosclerosis category’ as a risk factor along with diabetes, hypertension, extreme obesity, hypercholesterolemia, etc.
60The claimants present no evidence other than Ms. Firmin’s general evidence on cardiovascular disease that suggests that patients with other forms of congenital heart disease, including Mr. Lance’s bicuspid aortic valve, should modify their diet. In final argument, they suggested that diet was important to avoid the risk of co-morbidities like diabetes, hypertension and coronary artery disease, but the evidence, principally a sentence in an article that says that such comorbidities increase the long-term risks of cardiac events, does not support this conclusion.
61For the reasons set out above, the claimants have not established that it is generally recognized that patients without atherosclerosis or a high risk of developing atherosclerosis require modifications to their diet. Since Mr. Lance does not have one of the forms of congenital heart disease identified as leading to a high risk of atherosclerosis, the evidence does not establish that he meets the Ball test. Mr. Lance’s claim is dismissed.
Gallstones
62The gallbladder is a sac located under the liver. It stores bile, which is made in the liver, and helps the intestines digest fat. Gallstones can develop in the gallbladder. If bile contains too much cholesterol, bile salts or bilirubin, it can harden into pieces of stone-like material called gallstones. The gallbladder can develop one large stone, hundreds of tiny stones or a combination of the two.
63Most gallstones are asymptomatic, and they are common: 12% of the population has them. The parties agree that asymptomatic gallstones require no treatment, whether through diet or otherwise. The parties also agree that obesity may contribute to whether a person without gallstones develops them.
64Gallstones become symptomatic when a gallstone enters the bile duct (biliary colic) or when they lead to inflammation of the gallbladder (cholecystitis). In rare cases they can cause inflammation of the pancreas. The treatment in almost all such cases is removal of the gallbladder, a surgery called cholecystectomy. People do not need a gallbladder and there are no modifications to diet that result from the surgery. In some cases, a drain is inserted that eliminates the pain of symptomatic gallstones.
65Drug therapy and shockwave therapy are non-surgical therapies to treat gallstones by dissolving them. These treatments are considerably less effective than surgery, since the stones may not dissolve and may recur if they do. It is uncontested that they are rarely if ever used in Ontario and that the drug is not funded by the government. A recent article in a medical journal suggests that shockwave therapy has been abandoned.
66The lead claimant, Donna Salm, has diagnosed cholecystitis and has not had surgery to remove her gallbladder. She is not receiving and has not received drug therapy or shockwave therapy. The claimants take the position that modifications to diet are generally recognized by the Ontario medical community in such circumstances to prevent the development of additional or further gallstones. They have presented no reliable evidence in support of this proposition, and in light of all the evidence, I find it is not correct. The claim must accordingly be dismissed.
67The claimants called Cara Rosenbloom, a dietician who specializes in nutrition communication, as their expert witness on this issue. She has no expertise in gallstones but has written nutrition tips about gallstones for EatRight Ontario.
68When she prepared her affidavit, Ms. Rosenbloom was evidently unaware that shockwave therapy is not used and drug therapy is extremely rarely used in Ontario. Accordingly, her affidavit made recommendations for individuals undergoing such therapies as general recommendations for patients with gallstones.
69Ms. Rosenbloom’s affidavit contains two statements about the purpose of the diet she recommends for patients with gallstones: one suggesting that it is for patients who have non-surgical removal of gallstones and the other suggesting it is for both these patients and those awaiting surgery.
70In para. 95, she states that her recommendations are to prevent the recurrence of gallstones following dissolution by drugs and shockwave therapy:
Gallstones may be dissolved through the use of drugs, as well as shock-wave therapy, eliminating the need for surgery, while the dietary modifications I discuss below are aimed at preventing or diminishing their recurrence. Non-surgical therapy is more likely to have an effect on cholesterol gallstones than pigment stones. It can take up to two years for a stone to dissolve, and the gallstones can recur later.
[emphasis added]
71In para. 96, Ms. Rosenbloom adds to the patients for whom the diet is recommended pre-operative patients:
Dietary modifications are recommended for pre-operative patients, as well as for those who take the non-surgical therapy approach.
[emphasis added]
By the “non-surgical therapy approach”, I understand Ms. Rosenbloom to be referring to shockwave or drug therapy.
72The reference for para. 96 is to the PEN Database, an online reference for dieticians. It says the following:
Prior to surgery, individuals with gallbladder disease can consume a healthy diet with moderate amounts of fat. A diet too low in fat may lead to suboptimal cholecystokinin secretion and inadequate bile production, both of which can lead to stone formation.
73The respondent called Dr. Gabor Kandel. Dr. Kandel is an associate professor of medicine at the University of Toronto, where he has been the Bruce Tovee lecturer in Gastroenterology. He was the Program Director, Division of Gastroenterology, University of Toronto, from 2002 to 2004, then the Program Director, Postgraduate Internal Medicine Training Program at St. Michael’s Hospital until 2008. He is an attending physician at St. Michael’s Hospital practicing general gastroenterology for over 25 years where he sees patients with all types of gastroenterological conditions.
74Dr. Kandel’s affidavit engages in a detailed analysis of the literature reviewed by Ms. Rosenbloom and concludes as follows from this literature and his own experience:
In my opinion the Ontario medical community recognizes no role for a special diet in the management of gallstones, (apart from losing excess body weight before surgery (cholecystectomy), solely to minimize surgical complications). Keeping body weight low probably minimizes the development of gallstones (prevention), but is not beneficial for the gallbladder disease once stones have formed.
75He further states:
Diet is not recognized as a treatment for gallstones, asymptomatic or symptomatic. Once gallstones have formed, neither the amount of calories ingested nor the type of calories affects the natural history of such stones.
76Dr. Kandel specifically disagreed with para. 96 of Ms. Rosenbloom’s affidavit and stated as follows at para. 34 of his affidavit:
I disagree with paragraph 96 stating that “dietary modifications are recommended for pre-operative patients, as well as for those who take the non-surgical therapy approach”. I further disagree with paragraph 97, that dietary management of gallstones prevents or diminishes their recurrence, and again emphasize that recurrence is not an issue in Ontario because medical dissolution therapy is simply not used.
77Dr. Kandel states as follows at para. 39 of his affidavit:
I looked up eight authoritative medical references on the treatment of gallstones. One textbook of surgery advises “While waiting for surgery, or if surgery has to be postponed, the patient should be advised to avoid dietary fats and large meals,” but does not provide a reference, and does not discuss diet any further. Diet is not even mentioned as treatment of gallstones in another textbook of surgery, in two textbooks of medicine, in two textbooks of gastroenterology, nor in two review articles appearing in peer-reviewed journals. UpToDate also does not mention diet as treatment, not even in the section of medical dissolution therapy, despite the patient handout advising a specific diet with the now only rarely used ursodiol therapy.
78There was considerable semantic debate during the cross-examinations and in submissions about the difference between prevention and treatment of gallstones. What I take Dr. Kandel to be saying in his affidavit is that once someone has symptomatic gallstones, there is no role for diet in dealing with this medical condition, although diet may help prevent a person without gallstones from getting them.
79The respondent also called dietician Helen Tomalik. Ms. Tomalik is a clinical dietician and educator at St. Michael’s Hospital, and was an instructor in the school of Nursing and Nutrition at Ryerson University and a Nutrition Educator and Counsellor at York Central Hospital.
80Ms. Tomalik confirms that although she found a textbook (Nutrition Therapy) that suggested a low-fat nutrition prescription for those with gallstones, descriptive studies fail to provide compelling evidence that fat restriction is necessary or even desirable, although she notes that advice to restrict fat to control gallbladder symptoms is commonly issued by health professionals.
81Ms. Tomalik states that she has been asked to see many patients with pre-operative gallstones. In such circumstances, as the evidence for diet therapy is not conclusive, she provides the Eating Well with Canada’s Food Guide and emphasizes the lower fat options. She tells patients that there is no clear evidence that reducing fat will manage their disease but that following the Food Guide recommendations focusing on lower fat options is a healthy way for them to eat and may possibly help them manage their symptoms.
82In re-examination, Ms. Rosenbloom stated that her diet was to prevent development of further gallstones in patients who have some gallstones. The claimants submit that this was clear throughout, because Ms. Rosenbloom’s affidavit stated that her diet was to prevent gallstone “recurrence”. I disagree. The theory they now present was not set out in Ms. Rosenbloom’s affidavit. The word “recurrence” refers to gallstones coming back once they have been removed through medical dissolution, not the development of additional gallstones.
83Dr. Kandel specifically stated in cross-examination that this theory is incorrect. Counsel for the claimants put to Dr. Kandel on numerous occasions and in various ways the suggestion that it is desirable to prevent the development of further gallstones once someone has one. Dr. Kandel stated firmly that there is no evidence or reason to suspect that people with more gallstones are more likely to develop symptoms, or that people are worse off with more gallstones. He also stated that there is no evidence that diet helps prevent the development of more gallstones once someone has one.
84The claimants argue that they have shown that it is generally recognized in the Ontario medical community that changes to diet should be made when individuals have symptomatic gallstones, but have not had surgery, shockwave therapy or drug therapy. They state that I should not consider the evidence given by Dr. Kandel in cross-examination that there is no basis for the theory that further gallstones should be avoided when a person has a symptomatic gallstone, because it was not contained in his affidavit and he did not cite authorities in support during his cross-examination. They submit, in the alternative, that they should have the opportunity to call reply evidence about this issue.
85Dr. Kandel’s evidence is far more reliable than that of Ms. Rosenbloom. He has superior expertise in gastroenterology as compared with Ms. Rosenbloom, who has none, and he also conducted his own literature review and examined the literature she considered. His explanations of that literature were convincing and were not shaken in cross-examination. They were consistent with the advice given by Ms. Tomalik and her review and evaluation of the emphasis in the dietetic literature, although she acknowledged the advice is often given to restrict fat.
86The claimants have not met their burden of proof. Their obligation, of course, is not merely to prove their theory about additional gallstone formation, but also to show that such a theory is generally recognized in the Ontario medical community. They have done neither.
87The claimants have the unsubstantiated opinion of Ms. Rosenbloom, who reached her opinion based on a literature review. She has not shown that it is desirable to avoid the development of additional gallstones or that a diet should be modified to do so. I do not agree that this opinion is generally accepted by the Ontario medical community, and it is expressly contradicted by Dr. Kandel and Ms. Tomalik, who state that there are no modifications to a regular healthy diet generally recommended for people with symptomatic gallstones.
88I disagree with the claimants that I should disregard the cross-examination evidence of Dr. Kandel that there is no reason to take steps to avoid the development of additional gallstones once a person has symptomatic gallstones. The claimants decided to put questions to Dr. Kandel in cross-examination to try to use his answers to support a medical theory that was not clearly set out in their evidence. Having received an answer that did not support it from the respondent’s expert on gallstones, and with no basis in the evidence they called, they now seek to have the Tribunal disregard it. Had they not asked the questions, their theory would be rejected on the basis there was insufficient evidence to support it. Having put the questions to Dr. Kandel and received an expert opinion that it is incorrect, it is entirely appropriate for the Tribunal to rely on it and there is no basis to permit further evidence. That would be to allow them to split their case by calling in reply evidence that should have been clearly set out in their expert’s affidavit so that the respondent could respond.
89In conclusion, I find that the claimants have not shown that there is general recognition in the Ontario medical community that modifications to a regular healthy diet should be made when a person has gallstones. The claim of Donna Salm that she was discriminated against because of the failure to provide her with a special diet allowance for gallstones is dismissed.
UNINTENDED WEIGHT LOSS CONDITIONS
90I turn next to a group of claims alleging that the failure to fund a special diet for unintended weight loss in particular circumstances is discriminatory. Ashley Saunders alleges that she has been discriminated against due to the failure to include unintended weight loss: congenital heart disease on the schedule, Jo-Anne MacConnell alleges that she has been discriminated against because of the failure to include unintended weight loss: dysphagia/swallowing or mastication difficulties, and Raymond Seguin alleges that he has been discriminated against because of the failure to include unintended weight loss: hepatitis C.
91I begin with a general discussion of the unintended weight loss category. Under the current special diet allowance schedule, for certain conditions “that may cause weight loss”, a special diet of $191 is provided if the person has lost more than 5% but no more than 10% of his or her usual body weight, and a special diet allowance of $242 is provided if the person has lost more than 10% of his or her usual body weight. The schedule identifies the following conditions: amyotrophic lateral sclerosis, anorexia nervosa, cirrhosis stages 3 and 4, congestive heart failure, Crohn’s disease, cystic fibrosis, HIV/AIDS, Huntington disease, lupus, malignancy, multiple sclerosis, muscular dystrophy, ostomies, pancreatic insufficiency, Parkinson disease, renal failure, short bowel syndrome, and ulcerative colitis.
92The requirement that a person have lost 5% of body weight to receive a special diet allowance for these conditions only came into effect in 2011. From 2006 until 2011, the schedule provided that special diet allowance was payable for these conditions even if there was no weight loss or weight loss of between 2% and 5% of body weight (O. Reg. 562/05, s. 2 (2)), although at lower amounts.
93The unintended weight loss diets, as described by the SDERC, are meant to meet increased energy requirements for the treatment of weight loss. The costing adopted in the current regulation reflects the SDERC recommendation, which is to maximize servings of all food groups in Canada’s Food Guide and provide nutritional supplements like Boost or Ensure (2 per day for patients with 5-10% weight loss and 3 per day for patients with more than 10% weight loss).
94Unintended weight loss was addressed in Ball. One of the lead complainants, B., argued that failure to provide benefits for individuals with a risk of weight loss was discriminatory: para. 56. In analyzing B.’s claim, the Tribunal held that it was not sufficient to establish that weight loss may be a consequence of a particular disability. Rather, there must be general evidence that changes to a regular healthy diet would generally be recommended by the Ontario medical community in such circumstances: para. 153. This is consistent with the analysis of the Divisional Court in W., where the Court emphasized that there must be evidence that the medical community would respond to the medical symptoms by prescribing a special diet and not just a regular healthy diet.
95In these claims, the claimants are seeking to have these conditions included in the unintended weight loss category, at the same amounts and based on the same criteria as the other unintended weight loss conditions. The wording of the regulation (“conditions that may cause weight loss”), the manner in which the amounts were calculated and the analysis quoted above from Ball show that the purpose of this category in the program is to provide funding in specific circumstances: where a disability may cause weight loss and it is generally recognized in the Ontario medical community that energy intake above what is required by a regular healthy diet would be recommended as a result of weight loss caused by the disability. To meet the Ball test and show that they have been discriminated against because of failure to include a condition in the unintended weight loss group, the evidence must show, at least, that the condition may cause weight loss, and that it is generally recognized in the Ontario medical community that a person should increase food consumption in excess of a regular healthy diet as a result of such weight loss.
Unintended Weight Loss: Congenital Heart Disease
96Ashley Saunders alleges that the failure to include congenital heart disease (“CHD”) on the schedule as a condition that leads to weight loss discriminates against her because of disability. She alleges that as a result of her disability, she requires a high calorie, “heart healthy” diet and that this stems from increased energy needs. She is receiving a special diet allowance for hyperlipidemia/hypercholesterolemia.
97I note that the respondent objects to various evidence and arguments made on behalf of Ms. Saunders. Since I find that even considering this evidence and these arguments, the claim should be dismissed, I need not rule on the respondent’s objections.
98Ms. Saunders is 24 years old and has a history of CHD. At the age of 17, she had a body mass index (“BMI”) below the normal range. Since the age of 18, her BMI has varied somewhat but has been within the normal weight range. She gained weight between May and November of 2012. Her family physician has written on various special diet allowance forms and in letters over the years that she permanently requires a high calorie diet because of CHD.
99Ashley Saunders’s mother, Ritva Saunders, has sworn an affidavit. Ritva recorded what Ashley ate on November 8, 2012, and states that this daily food intake is a “typical day” for Ashley. This diet, according to an analysis by dietician Cara Rosenbloom, resulted in the consumption of 3,024 calories while the typical caloric requirements for a female of Ms. Saunders’s weight, height, age and activity level are between 2,000 and 2,100 calories.
100Ms. Saunders has not lost more than 5% of her usual body weight and her Body Mass Index is within the normal range. Even if CHD were included in the current regulation as a condition that may cause unintended weight loss, she would not be entitled to a special diet allowance. However, the claimants argue that weight loss should not be required to obtain the high calorie diet she says she needs. They say that a person who needs a diet should not have to experiment by giving up additional needed food to lose weight to prove the need for it.
101In the alternative, they argue that Ashley can show discrimination under the pre-2011 program, which did not require actual weight loss to obtain a special diet allowance for the unintended weight loss conditions. Had CHD been on the schedule at that time, there would have been no need to show weight loss and she would have received a special diet allowance.
102This claim depends upon an analysis of the expert evidence presented by the parties. It has not been proven on a balance of probabilities that CHD may lead to unintended weight loss or that a modification to diet is generally recommended in such circumstances. The evidence about Ms. Saunders and her food consumption and weight is irrelevant to these questions.
103In support of the claim, the claimants called Laura-Lee Walter, an Adult Nurse Practitioner in the Cardiology Department of Hamilton Health Sciences who treats Ms. Saunders. She has worked there since 2005. She is also a Clinical Lecturer at McMaster University, and an Adult Nurse Practitioner in Long Term Care at Credit Valley Hospital. At Hamilton Health Sciences, Ms. Walter works exclusively with adults with CHD. She states that “her work is 80% direct clinical work, encompassing all domains of Nurse Practitioner practice – assessment, diagnosis, prescription of tests and treatments, and health promotion, which includes support through the healthcare and social services systems, in addition to nutrition and lifestyle”.
104Each week Ms. Walter works with an average of 25 CHD patients at an outpatient clinic. She also works with any CHD patients admitted to Hamilton Health Sciences, as well as providing telephone assistance to patients in more remote communities. She has provided care to approximately 900 CHD patients in collaboration with two congenital heart disease cardiologists.
105Ms. Walter concludes that individuals with CHD are at risk of, and frequently experience, unintended weight loss or an inability to reach an adequate weight. She states that the diet recommendations for people with this disability who have been unable to achieve an adequate weight are to increase caloric intake and protein. She states that it is her opinion that individuals with CHD with unintended weight loss require additional energy beyond that of a regular healthy diet. She states that this is because CHD can result in increased metabolic needs in adults, requiring additional calories to maintain healthy body weight and prevent unhealthy weight loss.
106Until recently, there was a very low survival rate into adulthood of infants born with complex CHD. Sixty years ago, less than 20% of such infants reached adulthood; this number is now more than 85%. Ms. Walter suggests that for this reason, among others, very little research has been done on the dietary requirements and weight maintenance in adults with CHD. She states that health care professionals working with the adult CHD population rely on information extrapolated from the pediatric literature, as well as expert consensus shared through collaboration, conferences and consultation.
107Ms. Walter relies upon medical literature about infants and children with CHD that states it may cause “failure to thrive” and that such children may have hypermetabolism and require above normal amounts of calories and protein. In preparing her report, Ms. Walter searched two major medical literature databases and relied upon information that is shared among healthcare professionals working with this population at various conferences and symposiums. She states that her conclusions that CHD causes hypermetabolism reflect her experience in clinical practice and are demonstrated by various tests of Ms. Saunders.
108In her affidavit, Ms. Walter referred to various sources that, from their titles, appear to summarize the management of adult CHD, including an article entitled “Canadian Cardiovascular Society 2009 Consensus Conference on the management of adults with congenital heart disease: Introduction” in the Canadian Journal of Cardiology and a 2003 textbook entitled Diagnosis and Management of Adult Congenital Heart Disease. She did not point out any reference in these sources to increased metabolism or above-normal energy requirements for adult CHD patients.
109Dr. Lefkowitz filed an affidavit that disputes Ms. Walter’s conclusions. As noted above, he is the head of the Division of Cardiology at Toronto East General Hospital and an Assistant Professor at the University of Toronto. He graduated from the University of Toronto Medical School in 1979 and completed his fellowship training in Internal Medicine (1984) and Cardiology (1985).
110When challenged in cross-examination on his knowledge of adult CHD, Dr. Lefkowitz explained that he did a two-year fellowship at Toronto General Hospital from 1984 to 1985 and worked in the adult general heart clinic. He and the doctor he worked with were the sole people who did invasive studies on CHD. He stated that he is now the “go-to cardiologist” for adult CHD in his group. However, a very small fraction of his current patients (about two new patients per month) have CHD.
111Dr. Lefkowitz states that complications of CHD are not typically associated with weight loss and cannot be modified by any specific dietary intervention. He states as follows with regard to the pediatric literature:
There is ample data to support the causal association between complex congenital heart disease and failure to thrive / delayed growth in infants and children, but no firm evidence or controlled data exists to support the position that dietary modifications beyond a regular healthy diet play an important role in adults with congenital heart disease… While it is without dispute that adults with congenital heart disease require ongoing specialized care and present unique challenges to the healthcare system, these challenges and their solutions are distinctly different than that of the pediatric population. Hence one cannot extrapolate the benefits of a high caloric diet in children to ensure adequate growth and development to the adult population.
112Dr. Lefkowitz states that since there are no data to indicate the need for a high calorie diet in adults with CHD, following such a diet may be harmful to their health and place them at risk for obesity. He believes that Ashley’s diet as described by her mother is unnecessary and could be harmful to her.
113The claimants state that they have shown that there is general recognition in the Ontario medical community that added calories are used to treat unintended weight loss for adult congenital heart disease patients. They state that Ms. Walter’s opinion should be preferred to that of Dr. Lefkowitz, and better reflects the relevant part of the Ontario medical community because she works at a specialized CHD centre.
114Ms. Walter has provided no evidence that suggests that CHD can cause weight loss in adults or that increased caloric intake is the appropriate treatment. She has not provided any articles, patient handouts, textbooks, or presentations by others that reflect her opinion. She has not stated that others working in her clinic or in other specialized CHD clinics recommend increased caloric intake in such circumstances. The evidence does not meet the burden the claimants must meet to show recognition in the Ontario medical community, even in the absence of considering Dr. Lefkowitz’s evidence.
115Moreover, I accept the opinion of Dr. Lefkowitz in preference to that of Ms. Walter. Dr. Lefkowitz is a specialist in cardiology, head of a hospital division, and professor of medicine with nearly 30 years of experience. Ms. Walter is a nurse practitioner who has been doing clinical work in CHD for seven years, with no data, research, or other materials to back up her statements about adults. I appreciate that Ms. Walter currently works more directly in patient care of individuals with congenital heart disease and a member of the Canadian Adult Congenital Heart Network and the International ACHD Nursing Network. Dr. Lefkowitz, however, has more in-depth academic training, has worked as a researcher in CHD, and has worked with heart patients for much longer. In the circumstances, and given the sources that both have cited, I prefer his evidence over hers.
116Accordingly, I conclude that it has not been shown that congenital heart disease is a condition that may lead to weight loss, or that it is generally recognized in the Ontario medical community that increased protein and energy consumption is recommended in such circumstances. Ashley Saunders’s claim based on unintended weight loss: congenital heart disease is dismissed.
Unintended Weight Loss: Dysphagia/Mastication or Swallowing Difficulties
117Jo-Anne MacConnell has experienced unintended weight loss. The claimants attribute this weight loss, at least in part, to dysphagia (difficulty swallowing) and mastication (chewing) difficulties. They allege that the failure to provide a category for unintended weight loss: dysphagia/mastication or swallowing difficulties discriminates against her. Such a category was recommended by the Special Diet Expert Review Committee but was not adopted by the respondent.
118Dysphagia is defined by the College of Audiologists and Speech-Language Pathologists of Ontario as “the term used to refer to an impairment or disorder of the process of deglutition (swallowing) affecting the oral, pharyngeal and/or esophageal phases of swallowing”. Dysphagia is predominantly a symptom and not a disease itself. According to the respondent’s expert, Dr. Jonathan Irish, Chief of the Department of Surgical Oncology at University Health Network and Mount Sinai Hospital, causes of dysphagia include:
neuromuscular (e.g. Secondary to stroke, neuromuscular degenerative disease, etc.)
oncologic including secondary to treatment (e.g. Secondary to tumour obstruction or secondary to the side effects of radiation therapy with resultant xerostomia [dryness and thickening of secretions])
structural (e.g. Secondary to stenosis [a circumferential scar around the esophagus] resulting in obstruction to food passage)
psychogenic (e.g. a sensation of obstruction [also called “globus hystericus”] when there is no cause found for the dysphagia)
surgical (e.g. secondary to tongue resection due to cancer resulting in decreased ability to swallow)
congenital (e.g. secondary to a congenital web in the esophagus)
iatrogenic (e.g. secondary to a complication after medical treatment such as dysphagia occurring after nerve injury after thyroidectomy surgery)
119Dr. Irish states that the treatment for dysphagia is different depending upon the cause of the dysphagia. It is also different depending on which of the three phases of the swallow are affected. He gives various examples of treatment including medication, consuming liquid during eating, use of thinner or pureed foods, thickening agents, and adjustments to the temperature of food. He does not cite an increase of calories or energy above normal levels as a treatment and was not cross-examined by the claimants.
120The special diet allowance schedule provides an allowance for a thickening agent for dysphagia where this is necessary. Ms. MacConnell is not receiving this allowance because there is no suggestion she requires a thickening agent.
121Mastication difficulty is defined by the American Dietetic Association as the impaired ability to bite or chew food in preparation for swallowing. Chewing difficulties can occur due to a variety of causes such as missing teeth, alterations in cranial nerve function, impaired tongue movement, ill-fitting or broken dentures, wired jaw, recent major oral surgery, side effects of chemotherapy or radiation treatments, and medical conditions that affect the ability to chew.
122I assume, for the purposes of this analysis, that the claimants have shown that Ms. MacConnell has experienced weight loss as a result of swallowing or mastication difficulties. I also assume these are disabilities under the Code. The claimants have shown that these conditions may cause weight loss, as Ms. Firmin, their expert, has cited numerous articles that support this proposition.
123However, there is no evidence presented on behalf of the claimants to show that the Ontario medical community recommends that a person who has experienced weight loss from these causes should increase their energy intake to a level above what they should consume in the absence of such weight loss. While Ms. Firmin’s affidavit and the sources she cites suggest that insufficient diet should be modified to an appropriate level, there is nothing that suggests it should be modified to a level in excess of a regular healthy diet.
124In particular, Ms. Firmin’s affidavit refers to international consensus guidelines on malnutrition. She states that “appropriate intake of calories and nutrients can readily reverse” malnutrition “due to inadequate calorie intake resulting from physical impairments affecting the ability to eat”. There is no suggestion that above-normal caloric intake is required is required in such circumstances.
125In cross-examination, Mr. Charney asked Ms. Firmin whether any of the references she relied upon recommended that patients with dysphagia or mastication difficulties should maximize the servings of Canada’s Food Guide. She conceded they did not. He asked whether she had ever recommended eating the maximum servings in Canada’s Food Guide to a patient with dysphagia. She could not think of a time she had done so. There is no evidence that an increase of protein or energy above normal levels is generally recognized by the Ontario medical community when patients lose weight because of dysphagia or mastication difficulties.
126The conclusion that the Ontario medical community does not generally recommend above-normal consumption of food for individuals with weight loss due to dysphagia or mastication difficulties is bolstered by Ms. MacConnell’s own experience consulting a dietician about her weight loss. The dietician she saw, Sarah MacGregor, never recommended that she maximize food guide servings or increase her caloric or protein intake above a normal level.
127The claimants attempt to address this issue by emphasizing that Ms. MacGregor suggested to Ms. MacConnell that she consume liquid nutritional supplements such as Boost or Ensure, or a lower volume of high-calorie food, to make it easier for her to consume calories given her difficulties in eating. They state that “what is critically important for her at this stage is the nutritional supplement provided by expensive products like Ensure, a product which she testified she is able to drink”.
128This is a different claim than the one that was defined at the outset for inclusion of dysphagia and mastication difficulties in the unintended weight loss group. It is an argument that individuals with Ms. MacConnell’s disability should substitute calories derived from food with calories from a liquid nutritional supplement. The respondent has not have the chance to respond to it and in any event, there is no evidence in support of the proposition that eating less high calorie food or replacing calories from food with calories from a supplement imposes additional costs.
129The claim of Jo-Anne MacConnell based upon unintended weight loss: dysphagia/mastication or swallowing difficulties is dismissed.
Unintended Weight Loss: Hepatitis C
130The schedule provides funding for a special diet for weight loss caused by the latter stages of various liver diseases, “cirrhosis stages 3 and 4”. The parties agree that this should in fact be “stage 3 and 4 fibrosis”. Liver fibrosis, a progressive disease, is scored from 0 to 4, and stage 4 constitutes cirrhosis. As explained by the respondent’s expert, because of some degree of diagnostic inaccuracy, stages 3 and 4 fibrosis are often considered together as advanced liver disease. Stage 2 or less is considered early stage disease.
131The experts called in this proceeding agree that interferon treatment for hepatitis C may lead to unintended weight loss and that additional calories consistent with the other unintended weight loss diets are generally recognized in such circumstances. The schedule does not provide for a special diet allowance in such circumstances. However, the lead claimant, Raymond Seguin, has not had interferon therapy.
132To succeed in this claim that early stage hepatitis C should be included as an unintended weight loss condition the claimant must show that the early stages of hepatitis C may cause weight loss. The respondent has called one of the leading academic hepatologists in Canada, who states that hepatitis C at stages 0, 1 and 2 fibrosis does not cause weight loss. Considering all the materials and evidence filed by the parties, I accept this evidence. Accordingly, there is no discrimination in failing to provide a special diet for this condition.
133Dr. Jordan Feld, the expert called on behalf of the respondent, is an assistant professor of medicine at the University of Toronto and a staff hepatologist at the Toronto Western Hospital. He has specialty training in internal medicine and gastroenterology. Dr. Feld practices general hepatology and sees patients with all types and severity of liver disease. He has an appointment as a Scientist in the Toronto General Research Institute as part of the Sandra Rotman Centre for Global Health. He carries out clinical and laboratory-based research with a focus on Hepatitis C virus (“HCV”) infection.
134Dr. Feld has authored over 50 peer-reviewed publications on various aspects of liver disease and lectures extensively locally, nationally and internationally. He is the senior author on the 2012 Canadian guidelines on the management of HCV infection, a consensus document developed by academic and community hepatologists and infectious disease specialists from across the country.
135During his gastroenterology residency, Dr. Feld received specific training in nutrition and managed the nutrition service at St. Michael’s Hospital, Mount Sinai Hospital and the Toronto Western Hospital along with a team including a dietician and scientist.
136Dr. Feld states the following:
Some patients with early stage HCV and other chronic liver disease may be malnourished, but not as a consequence of their liver disease. Many individuals with HCV have significant medical conditions, which may affect their nutritional status…There is no evidence that individuals with early stage chronic hepatitis C infection with no other related or unrelated conditions have an increased prevalence of malnutrition. In fact, a search of “unintended weight loss” and “Hepatitis C virus” in Pubmed, the main public database of the medical literature, returned 0 results. In my extensive clinical experience managing well over 1000 patients with HCV infection, I have never seen a patient without cirrhosis with unexplained weight loss due to hepatitis C alone, with no other explanation found.
Because most patients with hepatitis C are in fact overweight, it is generally recommended to counsel patients to intentionally lose weight both for their overall health and to avoid worsening of their liver disease and reducing their likelihood of responding to antiviral therapy. If a patient with mild liver fibrosis (ie. fibrosis stage 0 to 2) from HCV infection has progressive weight loss, this is certainly something that requires investigation. There are many diseases that cause unexplained weight loss and should be excluded. Some of these diseases are more prevalent in patients with HCV. Similarly a hyperactive thyroid may cause weight loss and is a common side effect of HCV treatment. In addition, patients with HCV may have other diseases that are not directly relevant to HCV but are not common in this population. For example, many patients with HCV have a history of alcohol abuse, which can lead to chronic pancreatitis and associated malabsorption. Unexplained weight loss may lead to medical complications and certainly warrants investigation. I would not be satisfied with attributing unexplained weight loss to hepatitis C infection and I would be concerned that acknowledging that hepatitis C can cause unexplained weight loss would potentially lead to missing the true underlying cause.
137He points out that the American Association for the Study of Liver Disease (AASLD), the European Association for the Study of the Liver (EASL), and the Canadian Association for the Study of the Liver (CASL) all publish guidelines on the management of hepatitis C infection. None of these guidelines mention unexplained weight loss or the need for nutritional supplementation in this disease. He notes that in contrast, the guidelines from the AASLD and EASL on other liver conditions have specific sections on nutritional management, suggesting that the absence of guidelines is not because hepatologists ignore nutritional issues. The claimants established on cross-examination that the CASL guidelines do not include diet modifications that Dr. Feld agrees are appropriate and needed.
138Dr. Feld asked 13 academic hepatologists who participated in the process of developing the CASL guidelines whether they are aware of a condition called “unintended weight loss related to hepatitis C infection”. All answered “no”, and one added that this “does not exist in my opinion – it is actually a dangerous diagnosis since it may dissuade a workup for the real cause of weight loss”.
139The claimants submit that I should prefer their evidence in support of the claim to that of Dr. Feld. I am unable to do so. Their expert on this condition was Ms. Firmin, who has six years of experience as a clinical dietician, with particular expertise in gastrointestinal disease, surgery, oncology and weight management. She holds an honours Bachelor of Applied Science in Applied Human Nutrition from the University of Guelph and has completed several professional development workshops and courses. Ms. Firmin has managed patients with hepatitis C in various clinical positions, although she states that the management of this disease has formed a comparatively small part of her practice.
140Ms. Firmin relies principally upon the Dieticians of Canada, Hepatitis C: Nutrition Care, Canadian Guidelines for Health Care Providers (2003) (“Guidelines”), which suggest that acute and chronic hepatitis C lead to increased energy and protein intake requirements. Nowhere, however, do the Guidelines state that hepatitis C may cause weight loss in the absence of cirrhosis. They state that malnutrition “is uncommon in pre-cirrhotic stages” but make no suggestion that hepatitis C can cause malnutrition. There is a critical table in the article that provides nutritional recommendations in relation to various stages of the disease, but the only recommendation related to malnutrition is under the heading “cirrhosis – decompensated”.
141The claimants state that if a disease leads to increased energy consumption it may lead to malnutrition and weight loss, and this is not seriously disputed by the respondent. The success of the claimants’ argument therefore depends upon whether I accept that the evidence in this case shows that early stage hepatitis C can lead to increased energy requirements in the absence of cirrhosis.
142The proposition contained in the Guidelines and in the Manual of Clinical Dietetics that acute and chronic hepatitis C leads to increased energy and protein intake requirements in the absence of cirrhosis led to the finding in Martel that a special diet was required for chronic hepatitis C (paras. 16-20). Accordingly, the manner in which this case has been presented requires a re-evaluation of certain conclusions in Martel in light of the evidence in this case.
143The claimants suggest that the respondent is making a “collateral attack” on the conclusions of the Tribunal and the Divisional Court in Martel. It is not. The respondent accepts the decision in Martel, has paid those complainants the benefits owed and has added chronic hepatitis C to the special diet schedule. It is entitled to challenge the evidence from that case now put forward in support of a different proposition using different and stronger expert evidence. This case leads to a revisiting of whether the Guidelines reflect general recognition in the Ontario medical community of increased energy intake requirements for hepatitis C in the absence of cirrhosis because this is the only solid basis the claimants have to suggest that early stage hepatitis C may lead to unintended weight loss in the face of a leading expert who says he has never observed such a phenomenon and it is not recognized in the literature.
144Dr. Feld states that patients with cirrhosis have increased energy requirements. However, he disagrees that this is the case in early liver disease. Having reviewed the Guidelines and the principal sources upon which they are based, he concludes that the recommendations that patients without cirrhosis should increase their energy intake “do not appear to be based on any specific evidence and contrast with the advice of the major Liver Disease Societies in Canada, the United States and Europe”.
145Dr. Feld examined the sources cited by Ms. Firmin in support of the proposition that energy requirements are higher in individuals with stages 0 to 2 fibrosis, including the Guidelines, and also reviewed the sources cited in the Guidelines that he considered relevant to the question. He does not accept that any of these articles show that hepatitis C can lead to weight loss in the absence of cirrhosis, noting in particular that many of them are old and out of date and/or refer to patients with cirrhosis. He makes the following comments about what the medical literature shows:
[O]n review of the medical literature, there are 2 published studies on resting-energy expenditure (REE) in patients with hepatitis C. Both used indirect calorimetry, which, while not as good as the true gold standard, direct calorimetry, is the most widely used and is an acceptable method. Fioravante et al evaluated only the change of resting energy expenditure during therapy for HCV and did not compare patients with HCV to a control population without the infection. In the study by Piche et al, they also focused on the effects of interferon therapy for HCV on energy expenditure. However, they also compared patients with hepatitis C to an uninfected healthy control population and they did find that patients with HCV had mildly increased REE at baseline compared to healthy controls. It is important to note however, that although the difference between the HCV group and the healthy control group was statistically significant, the difference was very small in absolute terms and is likely not clinically significant. Patients with HCV had a mean REE at baseline of 6,280±1046 kj/24 hr compared [to] 5,983±9834 kj/24 hrs in healthy controls. This difference of 297 j/24 hr [sic] is equivalent to only 71 kcal/day, a tiny difference in expenditure that most people would not notice in either their energy expenditure or their food consumption. Notably, the study did not account for the activity level of the participants, which may be a very important determinant of the total energy requirements. It is dangerous to interpret REE in isolation. Previous studies have shown that on average, individuals affected with HCV are less physically active than healthy populations, which means that despite a slightly higher REE, their total energy expenditure and thus nutritional requirement may actually be lower than uninfected individuals. Furthermore, there was very wide variation in the results in both the hepatitis C group and the control group with a high degree of overlap between the groups. Finally, although patients with cirrhosis were not included, patients with advanced fibrosis ie. F3 were included and it is noteworthy that the HCV population had a normal mean body mass index, which is very atypical for most populations of HCV patients, in whom obesity is common. Overall, the calorimetry data are limited and should not drive strong conclusions. Even if one accepts a modest increase in energy expenditure, as noted by the Scientific Advisory Commission on Nutrition in their summary report of 2011, “TEE (total energy expenditure) does not necessarily indicate the requirements of the under-nourished patient who is in need of repletion” and therefore translation of this result into increased dietary requirements is very difficult and likely very fraught with error.
146In reply to this analysis, Ms. Firmin disagrees with Dr. Feld’s concerns about the Piche study. Most significantly, she disagrees that the 71 kcal per day difference in energy expenditure is clinically insignificant, since it would equate to a seven pound weight loss over the course of a year. Her evidence in this regard is convincing. Although she states that she has no expertise in statistics, she states that for the patients with the highest REE as compared with the average for the control group, this would translate into an approximately 30 pound weight loss over the course of a year if the person did not increase their caloric intake to compensate.
147She also disagrees with Dr. Feld’s statement that patients with HCV are less physically active than average, taking issue with the study he cites since it compared blood donors, whom she considers more likely to be active, and patients with HCV. She states that TEE can show energy needs of malnourished patients through a calculation for weight maintenance, to which an amount is added to account for weight gain. In relation to this last point, Dr. Feld, stated in re-examination that REE does not correlate with TEE or nutritional needs because the latter is affected by the activity level of a particular individual.
148Dr. Feld clearly has exceptional expertise in the interpretation, analysis and drawing of conclusions from medical literature. He is the lead author on the Canadian consensus guidelines on treatment of hepatitis C. Ms. Firmin does not have any comparable expertise. Dr. Feld has done a careful analysis and disputes the analysis in the Guidelines and the one study that supports them. While Ms. Firmin convincingly challenges the suggestion that the difference in REE observed in that study was clinically insignificant, she has not convinced me that Dr. Feld’s other critiques of it are incorrect. The claimants have called no one with experience either as an academic dietician or physician to explain why Dr. Feld is wrong that the Piche study cannot support the conclusion in the Guidelines that acute or chronic hepatitis C leads to increased energy expenditure in the absence of cirrhosis, or to explain why the Guidelines are correct in their conclusions. I find Dr. Feld’s opinion, which was logical and well-explained, based on extensive experience and expertise and unshaken in cross-examination, more convincing than that of Ms. Firmin.
149The claimants argue that even in the face of Dr. Feld’s opinion, I should accept in this case the statement in the Guidelines about increased energy expenditure in early stage hepatitis C and the conclusion Ms. Firmin draws from them that hepatitis C may lead to unintended weight loss. They rely upon my finding in Martel at para. 14, based upon the evidence in that case, that “the guidelines reflect a general consensus of the Ontario medical community” and the Divisional Court’s findings in the judicial review, as follows, at para. 40:
The Tribunal found that the Hepatitis C Guidelines reflect a general consensus of the Ontario medical community. This conclusion is reasonable. The development of the Guidelines was funded by Health Canada's Community Acquired Infections Division. An advisory committee included representatives from a variety of health organizations related to the study and care of liver disease. The Guidelines are founded on an extensive literature review, scientific evidence, and best practices. They were reviewed by health professionals practicing in the area and are endorsed by the Canadian Association for the Study of the Liver, the Canadian Liver Foundation and Hepatitis C Society of Canada, among others.
150These findings do not mean that the Guidelines must be accepted in preference to Dr. Feld’s opinion. Dr. Feld is an expert in academic research and writing on hepatology and the development of guidelines and consensus statements. He has analyzed the sources and explained why any suggestion in the Guidelines that individuals with fibrosis stage 0 to 2 have increased energy expenditure is incorrect and does not reflect the consensus of the Ontario medical community. Based on the evidence in this case, I conclude that the suggestion that hepatitis C infection at these stages leads to increased energy consumption is not correct.
151I conclude that it has not been shown that early stage hepatitis C may lead to weight loss. From the evidence of Dr. Feld, it is also clear that it is not generally recognized in the Ontario medical community that a response to weight loss where a person has hepatitis C is to increase calorie consumption above a normal level. As a lead author who has gathered a consensus document, he rejects this proposition and cannot find reliable support for it. Accordingly, the claim of Raymond Seguin that he has been discriminated against because of the failure to include a category of unintended weight loss: hepatitis C is dismissed.
Unintended Weight Loss: Renal Failure
152The respondent concedes that the evidence in relation to this condition meets the Ball test and it has amended the special diet regulation to include it. The Tribunal orders that, within six months of the date of this Decision, the respondent shall provide Edward Wendling with retroactive special diet allowance benefits for unintended weight loss: renal failure.
PRADER-WILLI SYNDROME
153Kristi Heyer alleges that she has been discriminated against because of the failure to provide a special diet for Prader-Willi syndrome. The respondent concedes that the evidence put forward by the claimants in this case meets the Ball test and amended the special diet regulation to include Prader-Willi syndrome. However, relying upon Canada (Attorney General) v. Hislop, 2007 SCC 10, the respondent argues that it is not required to pay Ms. Heyer retroactive special diet benefits because the recognition that Prader-Willi syndrome meets the Ball test constitutes a substantial change in the law.
154Assuming that the Hislop principle applies to statutory human rights claims in the same way as constitutional claims, Ms. Heyer should nevertheless receive retroactive benefits. First, this is because unlike Hislop, this case does not involve a change in the law. Second, even if there was a change in the law, the balancing of other factors set out in that case weighs in favour of providing Ms. Heyer with retroactive benefits. To explain these conclusions I will begin with the Ball decision as it relates to Prader-Willi Syndrome and then turn to the application of Hislop in this context.
155S. was one of the three lead complainants in Ball. His discrimination claim was described as follows, at paras. 48-50 of Ball:
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.
Like 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.
S. 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.
S. 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.
156This claim was analyzed as follows at para. 147:
The 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”.
[emphasis added]
157S.’s claim was allowed based on the finding that the additional amount for extreme obesity was significantly disproportionate to the actual costs. However, part of the evidence in Ball put forward on S.’s behalf, by the same counsel who represent Ms. Heyer, was that there is no standard diet for Prader-Willi syndrome. The opposite evidence was put forward in this case on behalf of Ms. Heyer and the respondent has accepted it and conceded discrimination.
158In Hislop, the Court found that providing certain benefits to members of opposite-sex couples but not same-sex couples was discriminatory, but restricted its remedy to the period following its decision in M. v. H., 1999 CanLII 686 (SCC), [1999] 2 S.C.R. 3. M. v. H., it found, had marked “a clear shift in the jurisprudence of the Court, where it moved away from the plurality’s holding in [Egan v. Canada, 1995 CanLII 98 (SCC), [1995] 2 S.C.R. 513] and came to a new understanding of the scope of equality rights”, recognizing the government’s obligation to extend benefits equally to same-sex and opposite-sex couples: para. 110. When there has been a “substantial change in the law”, the Court held, it may be appropriate to award a constitutional remedy that is prospective only: para. 99. This is because it is generally not appropriate to impose liability on the government as a result of a judicial shift in the law; governments are entitled to rely upon the law as interpreted by the courts: para. 103.
159The Court gave various examples of what constitutes a substantial change in the law: “expressly overruling or impliedly repudiating a prior decision”; the “definition of a yet undetermined standard”; “the recognition that a situation is now covered by a constitutional guarantee”; or that “a right may have been there, but it finds an expression in a new or newly recognized technological or social environment”: para. 99.
160There has been no such change between Ball and this case. Hislop addresses changes in the law; this case is about different expert evidence put forward by a different claimant, just as the respondent’s evidence on energy expenditure in early stage hepatitis C is different in this case from Martel. In Hislop, the interpretation of the constitution by the judiciary was reversed and a dissent became the law: para. 112. In this case, the expert evidence put forward on behalf of Ms. Heyer about Prader-Willi Syndrome is stronger than the expert evidence put forward on behalf of S. about the same condition. This is not a circumstance in which the definition or expression of the nature of a right has been changed by a judicial interpretation of the law. The respondent accepts that the result in Ball was correct on the basis of the evidence on behalf of S. and that the evidence in this case is different and mandates that Ms. Heyer’s claim be allowed, applying the same test.
161Moreover, even when there is a substantial change in the law, under Hislop a court or tribunal must consider other factors in deciding whether a remedy should be prospective only. These include whether reliance by the government was reasonable and in good faith, fairness to the litigants, and the need to respect the constitutional (or Code) role of the government: para. 100.
162Each of these factors suggests that the remedy should be retroactive. This case does not involve the reliance considerations that motivated the Court in Hislop. While the government is entitled to rely upon the interpretation of the law as set out by the Supreme Court of Canada and may not be liable when the Court changes that interpretation, the same is not true of the expert evidence put forward by a particular claimant in a case before this Tribunal. The government is required to design the special diet program in a manner that complies with the Code, and the fact that the expert evidence in Ball appears to have been incorrect or incomplete does not relieve it of that obligation. A government is not entitled to rely upon a lead litigant’s evidence and its impact on the result in the Tribunal in the same way it relies on a court’s interpretation of the constitution. It must take its own measures to ensure its programs comply with human rights, and if it fails to do so, it cannot rely upon a litigant’s failure to bring forward complete evidence to avoid retroactive liability.
163It would also be unfair to Ms. Heyer to limit her retroactive remedy in the circumstances. She filed her complaint with the Commission and it was referred to the Tribunal before the decision in Ball. Her claim was heard later than that of S. because of the lead case process where some claims were brought forward before others. It would not be fair to deny her benefits in a program of last resort because of the evidence presented in a previous case. Moreover, at the time she filed her complaint, well before the Ball hearing, Ontario could not have been relying on the Ball evidence since it had not yet been filed.
164Respecting the role of the Legislature also supports granting the remedy retroactively. Primary responsibility for ensuring compliance with the constitution and the Code in government programs rests with the government, not with the courts, the Tribunal or public interest litigants who challenge them. The Code is not merely a foundation for litigation; it sets rights and obligations affecting the conduct of the government and private actors. Far more significant than the few claims adjudicated by this Tribunal are the many daily decisions made by Ontarians about their conduct to ensure they conform with the Code. Ontario’s argument suggesting it was entitled to rely upon the evidence of S. to continue discriminating against persons with Prader-Willi Syndrome in the special diet program ignores its own responsibility to ensure that its services, including social assistance benefits, are non-discriminatory.
165Therefore, the claim of Kristi Heyer is allowed and the respondent is ordered to pay her retroactive benefits for Prader-Willi syndrome.
NEXT STEPS
166The parties will have 60 days from the date of this Decision to settle or withdraw any of the remaining cases as a result of this Lead Case Decision. After that time, the Tribunal will make case management directions and/or schedule the remaining applications for hearing.
ORDER
167The Tribunal makes the following order:
The complaints of Kristi Heyer for Prader-Willi syndrome and Edward Wendling for Unintended Weight Loss: Renal Failure are allowed.
The respondent shall provide Kristi Heyer with retroactive special diet allowance benefits for Prader-Willi syndrome and Edward Wendling with retroactive special diet allowance benefits for Unintended Weight Loss: Renal Failure.
I remain seized of the complaints of Kristi Heyer and Edward Wendling to deal with any disputes regarding the implementation of the above remedy.
All other lead claims brought forward in this case are dismissed.
Dated at Toronto, this 27th day of May, 2013.
“Signed by”
David A. Wright
Associate Chair