Pennell v. Ontario (Community and Social Services), 2014 HRTO 1120

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Stephen Pennell

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

interim DECISION

Adjudicator: Jo-Anne Pickel

Date: July 29, 2014

Citation: 2014 HRTO 1120

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

1The complaint 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 Ontario’s social assistance system. In a Case Assessment Direction (“CAD”) dated April 3, 2014, the complainant was directed to provide material and submissions by May 16, 2014 in support of the following claims in the complaint: gastroesophageal reflux disease; irritable bowel syndrome; unintended weight loss – IBS, fibromyalgia, malabsorption >10%; fibromyalgia; food allergies – lactose intolerance; and malabsorption. The CAD advised the complainant that if he did not provide these materials the above claims would be dismissed as abandoned.

2By Interim Decision, 2014 HRTO 664, the applicant’s claims in relation to these conditions were dismissed as abandoned. However, after issuing this Interim Decision, the Tribunal’s CAD was returned to the Tribunal as undeliverable. The Tribunal then issued a replacement CAD extending the deadline for a response to June 30, 2014.

3The applicant did not respond to this follow-up CAD.

4For the above reasons, the complainant’s claims in relation to gastroesophageal reflux disease; irritable bowel syndrome; unintended weight loss – IBS, fibromyalgia, malabsorption >10%; fibromyalgia; food allergies – lactose intolerance; and malabsorption are dismissed as abandoned.

Claim re. Cardiovascular Disease

5Counsel for the Ontario Human Rights Commission have advised the Tribunal that they are no longer assisting the complainant with his complaint respect to the following condition:

• cardiovascular disease

6If the complainant wishes to pursue the claim in relation to this condition, she must do the following:

1. Prepare a letter that explains why the claim in relation to this condition fits within the test set out in the Tribunal’s special diet case law by answering the following questions:

a. What are the modifications to a regular health diet required by the condition?

b. Under the test for discrimination set out in the Tribunal’s special diet case law, it is necessary to show that there is a general recognition in the Ontario medical community that modifications to a regular healthy diet are required to treat the medical conditions for which the complaint is claiming a special diet allowance. What evidence do you have to show that there is general recognition in the Ontario medical community that these modifications to a regular healthy diet should be made because of the condition?

c. If the condition is not on the special diet schedule, on what basis do you allege, and what evidence will you use to show, that this modified diet leads to extra food costs as compared with a regular healthy diet for a person without the condition?

d. If the condition is on the special diet schedule and you allege that the funding provided is significantly below the additional costs of the required modified diet, explain the basis of this claim and the evidence you will use to support it.

e. Does the complainant already receive special diet funding for the required dietary modifications due to an overlapping condition?

2. Obtain materials (for example, letters from health care professionals, medical literature) that the complainant will use to support the claim.

3. Send the letter and a copy of the materials referred to above to the Tribunal’s Registrar-Transition:

Registrar-Transition Human Rights Tribunal of Ontario 655 Bay St., 14th Floor Toronto, Ontario M7A 2A3 Fax: 416-314-8743 E-mail: hrto.registrar-transition@ontario.ca

and to counsel for the respondent:

Dan Guttman Ministry of the Attorney General Constitutional Law Branch 720 Bay Street, 4th Floor Toronto, Ontario M7A 2S9 Fax: 416-326-4015 E-mail: daniel guttman@ontario.ca

Order/Direction

7The complainant’s claims in relation to gastroesophageal reflux disease; irritable bowel syndrome; unintended weight loss – IBS, fibromyalgia; malabsorption >10%; fibromyalgia; food allergies – lactose intolerance; and malabsorption are dismissed as abandoned.

8If the complainant wishes to pursue his claim in relation to cardiovascular disease, he must provide the materilas above by September 12, 2014. Otherwise, his claim in relation to cardiovascular disease will be dismissed as abandoned.