Thurston v. Ontario (Community and Social Services), 2014 HRTO 1126

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Leslie Thurston

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 1126 Indexed as: Thurston 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: chronic constipation, hepatic disorder, recurrent urinary tract infection and migraines auxiliary lymph nodes, brain tumour, chronic rectal bleeding, fatigue, headaches, rectal disorder, sinus, thyroid and chronic constipation. In the CAD, the Tribunal set out specific questions to be addressed by the complainant to indicate why the claims in relation to the above conditions met the test for discrimination set out in the Tribunal's special diet caselaw. The CAD advised the complainant that if the complainant did not provide these materials the above claims would be dismissed as abandoned.

2The test for discrimination set out in the Tribunal's special diet case law requires a complainant to 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).

3The complainant filed a letter with the Tribunal on March 23, 2014, which provides some information in relation to the complainant's medical conditions. However, the complainant did not provide any information that was responsive to the questions set out in the CAD.

4As a result, the complainant's claims in relation to chronic constipation, hepatic disorder, recurrent urinary tract infection and migraines auxiliary lymph nodes, brain tumour, chronic rectal bleeding, fatigue, headaches, rectal disorder, sinus, thyroid and chronic constipation are dismissed.

Claim re. renal failure - predialysis

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

• renal failure - pre-dialysis

6If the complainant wishes to pursue the claim in relation to this condition, the complainant 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 caselaw, 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

7For the reasons set out above, the complainant's claims in relation to chronic constipation, hepatic disorder, recurrent urinary tract infection and migraines auxiliary lymph nodes, brain tumour, chronic rectal bleeding, fatigue, headaches, rectal disorder, sinus, thyroid and chronic constipation are dismissed.

8If the complainant wishes to pursue her claim in relation to renal failure - pre-dialysis, the complainant must provide the materials directed in para. 6 above by September 12, 2014. Otherwise, the complainant's claim with respect to renal failure - pre-dialysis will be dismissed as abandoned.