Salm v. Ontario (Community and Social Services), 2014 HRTO 1508

Human Rights Tribunal of Ontario

B E T W E E N:

Donna Salm 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: October 9, 2014 Citation: 2014 HRTO 1508 Indexed as: Salm 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. In the CAD, the Tribunal set out specific questions to be addressed by the applicant to indicate why her claims in relation to the above conditions met the test for discrimination set out in the Tribunal's special diet case law. The CAD advised the complainant that if she 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 applicant filed a letter with the Tribunal on April 30, 2014, in which she provide some information in relation to her medical conditions. However, she did not provide any information that there a general recognition in the Ontario medical community that modifications to a regular healthy diet should be made because of her medical conditions. Therefore, her claims with respect to chronic constipation, hepatic disorder, recurrent urinary tract infection and migraines are dismissed.

Claims with re. hypercholesterolemia and osteoporosis

4By letter dated August 8, 2014, counsel for the Ontario Human Rights Commission advised the Tribunal that they are no longer assisting the complainant with respect to the following remaining conditions in her complaint:

• osteoporosis
• hypercholesterolemia

5If the complainant wishes to pursue the claims in relation to these conditions, the complainant must do the following:

1. Prepare a letter that explains why the claims in relation to the conditions 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 healthy diet required by the conditions?

   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 complainant is claiming a special diet allowance. What evidence do you have to show that there is general recognition in the Ontario medical community that the modifications to a regular healthy diet you set out in your answer to question (a) above should be made because of your conditions?

   c. If the conditions are 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. Do you 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 you will use to support your claims.

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

6For the above reasons, the complainant's claims in relation to chronic constipation, hepatic disorder, recurrent urinary tract infection, and migraines are dismissed.

7By letter dated June 27, 2014, counsel for the Ontario Human Rights Commission advised the Tribunal that the parties had reached a settlement in relation to the complainant's claims in relation to chronic wounds, extreme obesity, hyperlipidemia, renal failure – pre-dialysis, and food allergy-lactose intolerance. Therefore, these claims are withdrawn with leave of the Tribunal.

8The complainant must provide the materials directed above by November 14, 2014 if she wishes to pursue her claims in relation to osteoporosis and hypercholesterolemia. If the complainant does not do so, the complainant's claims with respect to these conditions will be dismissed as abandoned.