Lefebvre v. Ontario (Community and Social Services), 2014 HRTO 1050

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Diane Lefebvre

Complainant

-and-

Ontario Human Rights Commission

Commission

-and-

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

Respondent

DECISION

Adjudicator: Jo-Anne Pickel

Date: July 17, 2014

Citation: 2014 HRTO 1050

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

APPEARANCES

Diane Lefebvre, Applicant

Georgina Watts, Counsel

Her Majesty the Queen in Right of Ontario as represented by the Minister of Community and Social Services, Respondent

Daniel Guttman, Counsel

1This Application alleged discrimination because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), in the special diet allowance provided under the Ontario Disability Support Program (“ODSP”).

2By Case Assessment Direction (“CAD”) dated February 6, 2014, the Tribunal directed that the matter be scheduled for a preliminary hearing to determine whether the Application should be dismissed on the basis that it has no reasonable prospect of success. In the CAD, the Tribunal directed the parties to make submissions on whether there was a reasonable prospect that the applicant would be able to establish discrimination under the analysis adopted by the Tribunal in its special diet case law.

3A teleconference hearing was held on May 23, 2014.

4I have considerable sympathy for the applicant’s circumstances. As with other recipients of ODSP benefits, she no doubt faces challenges not only due to her medical conditions but also in meeting her basic living expenses. However, for the reasons set out below, I find that there is no reasonable prospect that the applicant will be able to advance the evidence necessary to meet the test to establish discrimination with respect to the special diet allowance. For this reason, the Application must be dismissed as having no reasonable prospect of success under the Code.

Factual Background

5The applicant has various medical conditions for which she claimed a special diet allowance under ODSP.

6Some of the applicant’s medical conditions have been dealt with through the lead case process used by the Tribunal to deal with cases alleging discrimination with respect to the special diet allowance. The applicant’s counsel advised that her remaining claims are with respect to depression and fibromyalgia, which has been further refined to include a diagnosis of chronic fatigue syndrome (“CFS”).

7The applicant is on a diet known as the Poon Diet. The Poon Diet is a low-carbohydrate, low-sodium, low-fat lifestyle diet that is geared toward obese patients with fibromyalgia and CFS.

8The applicant filed letters from three of her treating physicians.

9The applicant filed a letter dated March 5, 2008, from Dr. Sujatha Sundaram. In her letter, Dr. Sundaram stated that she does not feel like she has the expertise to outline specific diets that would be beneficial for the applicant’s conditions. She stated that she could certainly make the general statement that a diet that follows the Canada Food Guide, rich in fruits, vegetables, grains with some meat and protein would go a long way to promote health and well-being.

10The applicant filed a letter dated March 2012 by Dr. Kathleen Kerr. Dr. Kerr does not recommend any diet for depression, fibromyalgia or CFS. The only recommendation in her letter is for a trial diet for irritable bowel syndrome.

11The applicant filed a letter dated November 17, 2013, from Dr. Paula Williams. Dr. Williams indicated that the Poon Diet has been effective for the applicant. In the letter, Dr. Williams states that the Poon program requires that patients purchase certain types of food products that are not available at most grocery stores. Patients must select high-protein lean meats, vegetables, and specific types of bread and milk, such as almond milk. The diet has several phases and the food choices change as improvement occurs. The foods are available at low carbohydrate grocery stores or at the Ontario Nutrition Company, a store associated with the Poon Clinic. Dr. Williams states that she believes that a diet that reduces inflammation and weight will have tremendous benefits for the applicant.

Background to Special Diet Allowance

12The special diet allowance is a component of social assistance provided within the ODSP and Ontario Works social assistance programs. The special diet allowance is currently set out in a schedule to Regulations made under the Ontario Disability Support Program Act, 1997, S.O. 1997, c. 25, Sch. B (“ODSPA”) and the Ontario Works Act, 1997, S.O. 1997, c. 25, Sch. A.

13The government of Ontario changed the design of the special diet allowance in 2005. Prior to 2005, the special diet schedule included a list of diets or products that an approved health practitioner could indicate were required for a medical condition. The schedule set out a set amount for each diet or product. There was also a category under which a medical practitioner could certify that an individual required a diet not listed elsewhere on the schedule. See Ball v. Ontario (Community and Social Services), 2010 HRTO 360 at para. 21.

14Following changes made in 2005, the government of Ontario changed the special diet schedule from a diet-based schedule to a condition-based schedule. In order to be eligible for a special diet allowance, an individual now must be certified by an approved medical health practitioner as having one or more conditions listed on the schedule. The special diet schedule does not include depression, fibromyalgia, or CFS as conditions for which an individual may receive a special diet allowance.

Scope of Tribunal’s Jurisdiction

15At the outset, it is important to make clear the scope of the Tribunal’s jurisdiction with respect to the special diet cases. The Tribunal’s role in relation to the special diet cases is not decide whether the special diet program is fair or whether it could be designed differently. The Tribunal’s role is to determine whether the special diet allowance discriminates against individuals because of their disability.

16As the Tribunal noted at para. 9 of Ball:

The Tribunal’s role is not to decide what is or would be the best or fairest way to set up the special diet program. This Decision is about whether the current program discriminates against the lead complainants on the basis of disability contrary to the Code. General policy decisions are for the government, not the Tribunal, and the Tribunal’s role is very different from that of the Cabinet or the Legislature. At the same time, if the evidence and arguments of the parties show discrimination on the basis of prohibited grounds, it is the Tribunal’s duty, assigned to it by the Legislature in the Code, to make such findings and provide a remedy.

17This approach is consistent with the Tribunal finding, in a variety of cases, that it does not have jurisdiction over general claims of unfairness unrelated to the Code. See, for example, Arias v. Centre for Spanish Speaking Peoples, 2009 HRTO 1025 at para. 27, and Pellerin v. Conseil scolaire de district catholique Centre-Sud, 2011 HRTO 1777 at para. 10.

Special Diet Case Law

18As the Tribunal found in Ball, determining whether there has been discrimination in relation to the special diet program depends principally on the definition of the purpose of the program. The Tribunal must determine whether the complainants’ circumstances fall within this purpose, and therefore whether they experience discrimination as compared with others who receive benefits.

19The Tribunal described the purposes of the special diet program at paras. 88 and 98 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.

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

20In Ball, the Tribunal held that an applicant or complainant must prove the following in order to establish disability-based discrimination related to the special diet allowance:

1. The claim of discrimination is based on a disability or disabilities;
2. There is general recognition in the Ontario medical community that modifications to a regular healthy diet should be made because of the claimant’s disability or disabilities;
3. The diet leads to additional food costs as compared with a regular, healthy diet for a person without the disability or disabilities; and
4. There is no funding for the additional costs, or the funding is significantly disproportionate to the actual costs (up to the maximum of $250).

21The Tribunal has applied this test in all cases involving challenges to the special diet program. See Martel v. Ontario (Community and Social Services), 2012 HRTO 735, Buklis v. Ontario (Community and Social Services), 2013 HRTO 918, and Wells v. Ontario (Community and Social Services), 2011 HRTO 1579. The test also has been applied by the Divisional Court on two occasions: Ontario (Community and Social Services) v. W., 2011 ONSC 288, and Ontario (Community and Social Services) v. Martel, 2012 ONSC 6680.

Findings

22Assuming that the applicant could meet all other parts of the Ball test, I find that there is no reasonable prospect that she will be in a position to make out the second part of the test. In my view, the applicant has not pointed to any evidence she intends to call in a hearing that could demonstrate that there is general recognition in the Ontario medical community that the Poon Diet should be prescribed to treat depression, fibromyalgia or CFS.

Parties’ Submissions With Respect to Second Part of Ball Test

23The applicant’s counsel submitted that in a merits hearing she would seek to rely upon the following to establish that there is general recognition in the Ontario medical community that the Poon Diet should be prescribed to treat depression, fibromyalgia and CFS:

a. The fact that doctors in Ontario, such as the applicant’s physician, refer their patients to the Poon Clinic. The applicant noted that Poon Clinic visits are covered by the Ontario Health Insurance Plan (“OHIP”). She argued that this further demonstrated acceptance by the Ontario medical community.

b. A statement in Dr. Williams’ letter that specific diets can be used by the Ontario medical community to combat conditions such as fibromyalgia. In her letter, Dr. Williams stated:

The general medical community in Ontario needs more assistance with understanding the complexities of managing patients with fibromyalgia. My consultation practice experience over the last 15 years has convinced me that Ontario doctors are desperate for advice on management of chronic pain patients. Since medication management is so unsatisfactory and patients can even end up dependent on some of the stronger medications, to the detriment of their well-being, physicians are very attracted to other options. They are now able to appreciate the benefits of offering their pain patients scientifically supported dietary modification.

24The respondent submitted that these two factors were insufficient to establish that there is general recognition in the Ontario medical community that the Poon Diet should be prescribed to treat depression, fibromyalgia or CFS. The respondent noted that none of the letters filed by the applicant cites studies or guidelines indicating that the Poon Diet is recognized by the Ontario medical community as an adjuvant to treatment for depression, fibromyalgia or CFS. The respondent noted that the applicant had not submitted a report by an expert who clearly confirmed that the Poon Diet is generally recognized by members of the Ontario medical community as an effective treatment for the applicant’s medical conditions.

25In reply, the applicant’s counsel submitted that the Tribunal should not to set the threshold for establishing discrimination with respect to the special diet allowance so high as to be out of reach of the average person. She argued that a requirement to submit peer reviewed journal articles and expert reports would render the test unattainable for most people. She also argued that the Ball test does not require an applicant to show that the modifications to a regular healthy diet prescribed in their case is the only way to treat their medical conditions but instead only that they are one effective way of treating their conditions.

Decision

26Based on the information provided by the applicant, I must find that she stands no reasonable prospect of showing that there is general recognition in the Ontario medical community that the Poon Diet should be prescribed to treat depression, fibromyalgia, or CFS, as required under the second part of the Ball test.

27I agree with the applicant’s counsel that the bar to prove discrimination in relation to the special diet allowance should not be set so high as to make it unattainable to virtually any social assistant recipient. The Tribunal is acutely aware of the limited means of the special diet claimants that come before it. Having said this, it must be remembered that what is at issue in this case is a claim that the legislative scheme relating to the special diet allowance is discriminatory. This requires more than having a medical practitioner certify that an individual requires a particular diet, as was the case prior to the legislative amendments made in 2005. What the applicant is claiming is that the new legislative scheme introduced in 2005 discriminates against her due to the failure to include depression, fibromyalgia and/or CFS as conditions for which individuals may receive a special diet allowance. This requires solid evidence to establish that it was discriminatory for the legislature to deny a special diet allowance for these conditions.

28It may well be, as argued by the applicant’s counsel, that an expert’s report or peer reviewed literature is not necessary for making out the second part of the Ball test. However, in my view, more is required to meet the second part of the Ball test than a general statement by the applicant’s physician that the general medical community in Ontario needs more assistance with understanding the complexities of managing patients with fibromyalgia. In my view, it is also insufficient to provide a physician’s statement that doctors are now able to appreciate the benefits of offering their pain patients scientifically supported dietary modification. This evidence falls short of demonstrating a general recognition in the Ontario medical community that the Poon Diet should be prescribed to treat the depression, fibromyalgia, or CFS, as required under the second part of the Ball test.

29In my view, it is also not enough that visits to Dr. Poon’s clinic are covered by OHIP. Any doctor’s visit to an individual’s physician in which they prescribed certain dietary modifications would be covered by OHIP. It would not be sufficient for an applicant to submit that modifications that their family doctor recommended met the second part of the Ball test simply because their family doctor’s visit is covered by OHIP. Similarly, OHIP coverage for visits to the Poon Clinic are not evidence of a general recognition in the Ontario medical community that the Poon Diet should be prescribed to specifically to treat depression, fibromyalgia, or CFS. What is required is evidence demonstrating that there is a general recognition amongst members of the medical community that the Poon Diet is a medically accepted response to treating these particular conditions.

30It may be, as argued by the applicant’s counsel, that the Ball test does not require an applicant to show that the modifications to a regular healthy diet prescribed in their case is the only way to treat their medical conditions. However, an applicant still must show that “a generally accepted medical response to his or her disability or disabilities would be to prescribe a particular diet”: see Ball, above, at para. 94. I find that the applicant has failed to point to any evidence establishing that a medical response to depression, fibromyalgia or CFS that is generally accepted in the Ontario medical community would be to prescribe the Poon Diet.

31As a final point, I note that the applicant enclosed with her April 2012 submissions a journal article and notes from a presentation on the use of diet to treat fibromyalgia and CFS. Even though the applicant’s counsel did not refer to these materials in the hearing, I have reviewed them to determine whether they provide evidence to meet the second part of the Ball test. I find that they do not. The article titled “Fibromyalgia and nutrition, what do we know?” summarizes research on what is known regarding the use of dietary modifications to treat fibromyalgia. The article’s conclusions are tentative and do not refer to the Poon Diet. As well, I have no evidence before me that even the article’s tentative conclusions are generally accepted by the Ontario medical community. The other article submitted takes the form of notes from a presentation given by a physician in Australia who explored evidence suggesting that the intestinal tract of many people with CFS may be compromised by bacterial or viral infections. Again, I have no evidence linking these observations to the Poon Diet or to any kind of general recognition by the Ontario medical community that the Poon Diet should be prescribed to treat the depression, fibromyalgia, or CFS.

Order

32For the reasons set out above, the Application must be dismissed.