Monaghan v. Ontario (Community and Social Services), 2014 HRTO 856

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Cecilia Monaghan and Aaronnramla Monaghan

Applicants

-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: June 10, 2014 Citation: 2014 HRTO 856 Indexed as: Monaghan v. Ontario (Community and Social Services)

APPEARANCES

Cecilia Monaghan and Aaronnramla Monaghan, Applicants

Cecilia Monaghan, Representative

Her Majesty the Queen in Right of Ontario (Minister of Community and Social Services), Respondent

Daniel Guttman, Counsel

1The applicants 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. The applicants filed their Applications at the same time as Ms. Monaghan's husband filed an Application.

2The Tribunal scheduled a summary hearing to determine whether the Applications should be dismissed on the basis that they have no reasonable prospect of success. In particular, the Tribunal asked the parties to make submissions on whether there was a reasonable prospect that the applicants would be in a position to advance the evidence necessary to prove discrimination under the legal analysis adopted by the Tribunal in its special diet case law. In particular, the Tribunal directed the parties to make submissions on whether there was a reasonable prospect that the applicants would be in a position to satisfy the test set out in Ball v. Ontario, 2010 HRTO 360 ("Ball"), which applies to cases challenging the special diet allowance. The summary hearing of the applicants' Applications was heard on the same day as the summary hearing with respect to the Application filed by the applicant's husband. Although this Application is dealt with in a separate Decision, I have taken into consideration the submissions made in both summary hearings in making my findings with respect to all three Applications.

3I sympathize deeply with the applicants' situation. It is clear that they are struggling to cope with their disabilities and their precarious financial status as recipients of social assistance. They feel that they suffered unfair treatment and discrimination due to a substantial reduction of their special diet allowance following changes to the special diet program made in 2005. The applicants' dietary needs did not change following the changes to the special diet program and yet they have seen their allowance reduced. The applicants view this situation as unfair. However, for the reasons set out below, I find that there is no reasonable prospect that the applicants will be in a position to establish that these changes amount to discrimination contrary to the Code. For this reason, the Application must be dismissed as having no reasonable prospect of success under the Code.

Summary Hearing Process

4The summary hearing process is described in Rule 19A of the Tribunal's Rules of Procedure. The purpose of a summary hearing is to consider, early in the proceeding, whether an application should be dismissed in whole or in part because there is no reasonable prospect that the application will succeed.

5The question that the Tribunal must decide at a summary hearing is whether there is a reasonable prospect that the applicant will be able to prove that his or her Code rights were violated. The Tribunal must determine whether there is a reasonable prospect that evidence the applicant has or that is reasonably available to him or her can establish a violation of the Code. In this case, the test is whether there is a reasonable prospect that the applicants will be in a position to meet the test adopted by the Tribunal in Ball, the Lead Case Decision which set out the analysis to be applied in cases involving challenges to the special diet allowance.

6Having set out the basic framework for determining whether an application should be dismissed because it has no reasonable prospect of success, I now turn to the facts of this particular case.

Factual Background

7Prior to 2011, the Ms. Monaghan and her husband received a combined special diet allowance of just over $766 per month. Ms. Monaghan's son, Aaronnramla (Strider) Monaghan, received a special diet allowance of almost $450 per month. In 2011, Ms. Monaghan's special diet allowance was reduced to approximately $195 per month due to the changes that the government of Ontario made to the special diet allowance. Her son's allowance was reduced to approximately $129.

8In their Applications, the applicants alleged that they experienced discrimination because:

a. The special diet schedule fails to recognize the applicant's environmental and chemical sensitivity disorders as a medical condition for which a special diet allowance is provided; and

b. The amounts set out in the special diet schedule are so low as to have the effect of discriminating against people with disabilities.

9In her submissions, Ms. Monaghan also appeared to allege that she and her son have suffered discrimination as a result of the government's failure to continue grandparenting them at the level of special diet funding they received prior to 2011.

Background to Special Diet Allowance

10The special diet allowance is a component of social assistance provided within the Ontario Disability Support Program ("ODSP") and Ontario Works ("OW") 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.

11Prior to 1998, a special diet allowance was provided under the Family Benefits Act ("FBA"). In 1998, the ODSPA came into effect and replaced the FBA. Among other things, the ODSPA set $250 per month as the maximum amount that a recipient could receive for a special diet allowance. Special diet recipients were eligible to have their special diet benefits "grandparented" if they met certain conditions. Specifically, an individual was eligible to be grandparented if, on April 30, 1998: (i) he or she was receiving an amount for a special diet in excess of $250 in accordance with the FBA, and (ii) if, in each subsequent month, the additional cost of the special diet continued to be greater than $250. If an individual met these conditions, then the "cap" on their special diet allowance was not $250 but the amount they received for the special diet on April 30, 1998. If a grandparented individual's special diet allowance decreased to $250 or less, they would be subject to the $250 cap from that point on.

12The 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 listed a set amount for each diet or product. There was also a category pursuant to which a medical practitioner could certify that an individual required a diet not listed elsewhere on the schedule: see Ball, above, at para. 21. On this pre-2005 schedule there were categories for "organic diet", "bottled water" and vitamins and minerals. As the Tribunal noted in Ball, these three items were not included on the post-2005 schedule because the Ministry of Community and Social Services concluded that they were not required for any known medical condition or did not fit the policy intent of the program (Ball at para. 25). Both Ms. Monaghan and her son received a special diet allowance for these three items as well as for dairy and wheat free diets and nutritional supplements.

13Following 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.

Applicants' Special Diet Allowance

14In her Application, Ms. Monaghan states that she and her son have allergies to milk and wheat as well as environmental and chemical sensitivity disorders. She also states that, as a result of these conditions, they both have vitamin deficiencies and blood work irregularities.

15In 2011, the government required the applicants, as well as other grandparented special diet recipients, to requalify under the 2011 special diet schedule. As of this time, the applicants have been eligible to receive a special diet allowance for their allergies to milk and wheat. Ms. Monaghan also has been eligible to receive an allowance for extreme obesity. Neither Ms. Monaghan nor her son receives a special diet allowance for their environmental or chemical sensitivities. As noted above, as of 2011, Ms. Monaghan's special diet allowance was reduced to approximately $195 per month and her son's allowance was reduced to approximately $129 per month.

Scope of Tribunal's Jurisdiction

16At 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.

17As 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.

18This 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

19As 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 substantive discrimination as compared with others who receive benefits.

20The 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.

21In 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).

22The 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. (Litigation Guardian of), 2011 ONSC 288, and Ontario (Community and Social Services) v. Martel, 2012 ONSC 6680.

Findings

Applicants' Disabilities

23The respondent in this case submitted that Ms. Monaghan failed to provide sufficient evidence to demonstrate that she and her son have been diagnosed with environmental and chemical sensitivities. For the purposes of this Decision, I assume that Ms. Monaghan and her son would be in a position to advance the evidence required to make out the first part of the Ball test – that is, to show that their claim is based on a disability or disabilities.

Failure to Provide Allowance for Environmental and Chemical Sensitivities

24The applicant submitted that she and her son are discriminated against because the post-2005 special diet schedule fails to recognize their environmental and chemical sensitivities as a medical condition for which a special diet allowance is provided.

25Even assuming that the applicants could meet all other parts of the Ball test, I find that there is no reasonable prospect that they will be in a position to make out the second part of the Ball test. That is, based on the information that the applicants provided, I find that they will not be in a position to establish that there is general recognition in the Ontario medical community that modifications to a regular healthy diet should be made because of the their environmental and chemical sensitivities.

26The applicants filed with their Applications an affidavit by one of their doctors which says that she saw improvements in the applicants' health when they were receiving the special diet amounts they were entitled to before 2011. The applicants' doctor says that she believes that the applicants' health would improve if adequate special diet funding were provided. However, there is no indication in the affidavit of whether there is a general recognition in the Ontario medical community that the dietary modifications prescribed to the applicants should be made for persons with environmental and chemical sensitivities.

27According to Ms. Monaghan, there are only five specialists in Ontario who treat environmental and chemical sensitivities. She said that she had worked with an organization that sought to get medical professionals to support the claims of special diet claimants like her who have such sensitivities. She said that the group faced resistance from the doctors they approached. The applicant did note that her own doctor has prescribed her an organic diet for years. She argued that that the fact that she remains on this diet is proof that it is working.

28Based on the above information, I must find that the applicants stand no reasonable prospect of showing that there is general recognition in the Ontario medical community that modifications to a regular healthy diet should be made because of the applicants' environmental and chemical sensitivities, as required under the second part of the Ball test. I have considerable sympathy for the applicants, as it may well be that their condition is as yet understudied. However, this does not change the test that must be applied in this case to determine whether the government's failure to include environmental and chemical sensitivities on the special diet schedule is discriminatory. This test requires applicants to show that their condition falls within the purposes of the special diet program and that they experience discrimination as compared with others who receive benefits.

29As the Tribunal noted in Ball,

...the purpose of the [special diet] program is to provide funding for diets where this is generally medically recognized as a treatment for the disability experienced by the individual. The program is not intended to fund scientifically unrecognized, experimental, or "fad" diets. It is not intended to fund an individually developed diet tailored to all of a person's characteristics and circumstances, prescribed by a dietician or other health practitioner. It is designed to fund diets in circumstances where, as a result of the individual's disability or disabilities, the need for a special diet is generally recognized in the Ontario medical community. Accordingly, a claimant alleging discrimination must establish that a generally accepted medical response to his or her disability or disabilities would be to prescribe a particular diet.

30I am not in any way suggesting that the dietary modifications prescribed by the applicants' doctor is a "fad diet". At the same time, the Tribunal has held that it is not sufficient for applicants to have been prescribed a particular dietary modification by their doctor. The applicants have been unable to point to any evidence that would have a reasonable prospect of advancing evidence to establish that there is a general recognition in the Ontario medical community that modifications to a regular healthy diet should be made because of their environmental and chemical sensitivities.

Amounts so Low as to Discriminate

31The applicant submitted that the amounts she and her son continue to receive as a special diet allowance are so low as to discriminate against them. As noted above, Ms. Monaghan and her son each receive a special diet allowance for milk and wheat allergies and Ms. Monaghan receives an allowance for extreme obesity. In effect, Ms. Monaghan argued that the special diet allowances that she and her son receive for these conditions are significantly disproportionate to the actual costs of the modifications to a regular healthy diet required due to their conditions.

32The Tribunal described in Ball the approach it would take to determining whether the funding provided for a condition on the special diet schedule was significantly disproportionate under part four of the Ball test. It stated as follows (paras. 103-104):

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.

33The evidence Ms. Monaghan sought to rely upon to demonstrate that her special diet funding is significantly disproportionate is evidence indicating that both she and her son continue to suffer from vitamin deficiencies and blood irregularities. Ms. Monaghan argued also that the special diet allowance is discriminatory because it does not take into account the fact that her son is 6'7" and that he requires more protein due to his height and weight. For these reasons, Ms. Monaghan argued that she and her son are being discriminated against because their special diet allowance does not meet their needs.

34Under the test in Ball, in order to establish discrimination because of disability, applicants must demonstrate that their special diet allowance is significantly disproportionate to the amount of additional costs compared to other disabilities. I find that the evidence that Ms. Monaghan pointed to has no reasonable prospect of establishing discrimination as compared to other disabilities. Instead, her argument is that she and her son are not receiving enough to meet their needs and that the government should factor in a person's height and weight in determining their special diet allowance. It may well be that the special diet allowance scheme would be more fair if amounts were increased or if a person's height and weight were factored into the amounts granted. However, in order to establish discrimination under the Code, applicants must demonstrate more than unfairness but instead discrimination based on a ground protected under the Code.

35Based on the information provided by the applicants, I find there is no reasonable prospect that they will be in a position to establish disproportionate funding of their conditions as compared to the funding for other conditions.

Removal of Grandparented Status

36The applicant appeared to submit that the respondent's failure to continue grandparenting her and her son was discriminatory. It is understandable that the applicants find it unfair that their special diet allowance has been reduced significantly when their needs have not changed. While this situation may appear unfair, it does not establish discrimination under the Code. It is not discriminatory for the government not to continue grandparenting the applicants. The applicants did not suggest that the government made distinctions as between various conditions when deciding whose benefits would be grand fathered. All special diet recipients are subject to the same grandparenting provisions and all grandparented recipients were required to requalify for the allowance in 2011. Therefore, there is no reasonable prospect that the applicants will be able to show that the withdrawal of their grandparented status is discriminatory under the Code.

37As a result of my findings above, I do not have to address the respondent's submissions as to whether s. 34 (11) of the Code applies in this case.

Order

38As I have noted at the outset of this Decision, I have considerable sympathy for the applicants in this case. However, for the reasons set out above, the Application must be dismissed as having no reasonable prospect of success under the Code.