Hunchuk v. Ontario (Community and Social Services), 2015 HRTO 280

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Suzanne Hunchuk

Complainant

-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: March 9, 2015

Citation: 2015 HRTO 280

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

APPEARANCES

Suzanne Hunchuk, Complainant

Self-represented

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

Daniel Guttman, Counsel

1The complainant filed a complaint alleging that the respondent discriminated against her because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"). Specifically, she alleged that the Special Diet Allowance provided under Ontario's social assistance system discriminates against her by failing to fund a special diet allowance for the medical conditions listed in her complaint. The complainant's complaint was one of over 100 complaints filed by complainants challenging the Special Diet Allowance. Most of these complaints were filed with the Ontario Human Rights Commission and referred to the Tribunal by the Commission.

2The Tribunal has used the lead case procedure described below to process these complaints. The Tribunal heard and determined the complainant's complaint with respect to chronic constipation along with several other lead case conditions in Buklis v. Ontario (Community and Social Services), 2013 HRTO 918 ("Buklis"). For the reasons set out at paras. 13 to 24 in that decision, the Tribunal dismissed the complainant's complaint regarding chronic constipation. The complainant filed a Request for Reconsideration of that portion of the Buklis decision.

3I directed that a preliminary hearing be scheduled to address two issues: (1) whether the complainant's claims with respect certain of her medical conditions should be dismissed on the basis that they stand no reasonable prospect of success ("C conditions issue" as explained below); and (2) whether the Tribunal should grant reconsideration of its dismissal of her complaint in relation to chronic constipation in Buklis.

4For the reasons set out below, I find that the complainant's complaint in relation to all of her Category C conditions except for fibromyalgia should be dismissed as having no reasonable prospect of success. Her complaint in relation to fibromyalgia should not be dismissed at this stage and will proceed to a hearing on the merits. The complainant's request for reconsideration with respect to her claim in relation to chronic constipation must be dismissed.

BACKGROUND TO PROCEDURE USED FOR SPECIAL DIET COMPLAINTS

5After consulting with the parties, the Tribunal adopted the lead case procedure described in a series of Interim Decisions leading up to the decision in Ball v. Ontario (Community Ball v. Ontario and Social Services), 2008 HRTO 420 ["Ball"]. See the following Interim Decisions: Ball v. Ontario (Community and Social Services), 2008 HRTO 24; Ball v. Ontario (Community and Social Services), 2008 HRTO 29; Ball v. Ontario (Community and Social Services), 2008 HRTO 72; and Ball v. Ontario (Community and Social Services), 2008 HRTO 207. Under this procedure, some cases challenging the special diet allowance were heard before others in order to establish guiding legal principles applicable to all special diet cases.

6In consultation with the parties, the Tribunal divided the various medical conditions raised in the special diet complaints into three categories: those in a settlement stream (A category); those centrally prepared by legal clinic lawyers and lawyers from the Ontario Human Rights Commission (B category) and those neither centrally prepared nor in the settlement stream (C category).

7The complainant has conditions that fell within each of these categories. In particular, she was represented by legal clinic counsel for her claim in relation to chronic constipation. Legal clinic counsel made submissions on her behalf as well as on behalf of other complainants with chronic constipation in the Buklis case. The Tribunal dismissed all complaints relating to chronic constipation in the Buklis decision.

8In addition to her chronic constipation claim, the complainant has several other medical conditions that fall within the C category ("Category C conditions"). Complainants were required to represent themselves in relation to Category C conditions.

C conditions issue

9As noted above, the Tribunal held a preliminary hearing to hear submissions on whether the complainant's claims in relation to her Category C conditions should be dismissed on the basis that they stand no reasonable prospect of success. Prior to the hearing, both parties filed written submissions on the issue.

10In Ball, the Tribunal held that a 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).

11The complainant's complaint listed various conditions that were categorized as falling within the C category: anaemia-microcytic; chronic pain syndrome; compromised immune system; fibromyalgia; malabsorption-magnesium; osteoarthritis; and systemic yeast fungus overload.

12In the preliminary hearing, the complainant confirmed that she intended to proceed only in relation to the conditions listed in the letters she filed from her treating physicians.

13The complainant filed three letters from her treating physicians. In particular, she filed two letters from Dr. John Molot. Dr. Molot's letter dated July 14, 2013 stated that the complainant has been diagnosed with fibromyalgia, chronic fatigue syndrome, irritable bowel syndrome and an allergic diathesis. Dr. Molot provided extensive citations to medical literature to support his assertion that it is generally recognized that a common denominator for all of the complainant's conditions is oxidative stress and chronic inflammation. He stated that patients with fibromyalgia, chronic fatigue, irritable bowel syndrome frequently have food sensitivities that respond to elimination diets. He stated that diet plays an essential role in the management of these conditions.

14In a follow-up letter dated May 21, 2014, Dr. Molot asserted that the literature citations provided in his previous letter are found on MEDLINE, the principal online bibliographic citation database of the US National Library of Medicine's Medlars System. He stated that various medical journals cited in his previous letter are all generally recognized by the medical profession as scholarly, peer-reviewed medical journals which publish according to rigorous academic, scientific and medical standards. He stated that the research that appears in these journals, which he cited in support of the complainant's claim, meet any reasonable test of being generally recognized by the medical profession in Ontario.

15The complainant argued that the medical evidence she submitted demonstrates that her claims have a reasonable prospect of success. She submitted that she wished to claim that the respondent's failure to provide a special diet allowance for her conditions amounted to discrimination based on both disability and sex. The complainant asserted that conditions such as fibromyalgia disproportionately affect women. However, there is nothing in the materials she filed to support this claim.

16The respondent submitted that the complainant's claims regarding her Category C conditions stand no reasonable prospect of success. In particular, the respondent submitted that Dr. Molot's letters are insufficient to establish that there is a consensus on the appropriate diet required for the complainant's Category C conditions. The respondent also submitted that the letters do not establish that there is a consensus in the Ontario medical community that a special diet is required for the complainant's Category C conditions. I note that a "consensus" is not required under the special diet test set out in Ball. The second part of the test in Ball refers to a "general recognition in the Ontario medical community".

17As confirmed in the hearing, the complaint decided to focus her complaint on the conditions addressed in the letters from her treating physicians. Accordingly, the complainant's claims in relation to anaemia-microcytic; chronic pain syndrome; compromised immune system; malabsorption-magnesium; osteoarthritis; and systemic yeast fungus overload are dismissed.

18Of the conditions listed in Dr. Molot's letters, only the condition of fibromyalgia was listed in the complainant's complaint. Based on the materials filed by the complainant, I cannot find that her disability discrimination complaint in relation to fibromyalgia stands no reasonable prospect of success. At this stage, the Tribunal has not had the benefit of a full evidentiary record. Based on the information contained in Dr. Molot's letters, and in the absence of evidence from the respondent, I cannot find that the complainant has no reasonable prospect of establishing her claim in relation to fibromyalgia. In order to determine whether it was discriminatory on the basis of disability for the respondent not to provide a special diet allowance for fibromyalgia, the Tribunal must hear evidence from both parties in a full hearing on the merits.

Request for Reconsideration

19The complainant has sought reconsideration of the Tribunal's dismissal of her claim relating to chronic constipation in the Buklis decision. The complainant made initial submissions in support of her Request for Reconsideration at the preliminary hearing teleconference She finalized these submissions in written submissions filed in January, 2015.

20The Tribunal's Rules of Practice relating to Commission-referred complaints ("Rules") provide that a Request for Reconsideration must be filed within 30 days of the decision being challenged. Due to problems with mail delivery, the complainant did not become aware of the Buklis decision until long after it was rendered. For this reason, I considered it appropriate to consider her Request for Reconsideration despite its late filing. However, for the reasons set out below, I find that the complainant has not established the existence of any of the criteria in Rule 102 of the Tribunal's Rules that would cause me to reconsider the Tribunal's dismissal of her claim relating to chronic constipation in the Buklis decision.

The Decision Being Challenged

21In the Decision, former Associate Chair Wright dismissed the complainant's claim that the respondent discriminated against her by denying her a special diet allowance for her chronic constipation. At para. 24 of Buklis, the Tribunal stated as follows:

The claims of Cassandra Cook, Suzanne Hunchuck, John Jay and Raymond Seguin based on chronic constipation, and the claim of Ann Marin based on diverticular disease are based solely on the allegation that persons with these conditions should have a fibre intake within the range recommended by Health Canada. There is no modification to a regular healthy diet in these circumstances and the claims therefore do not meet the second stage of the Ball test. They are dismissed.

Applicable Principles Re. Requests for Reconsideration

22In Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 34, the Tribunal stated that Request for Reconsideration is not an opportunity to re-argue a case. Once the Tribunal has made a decision in a case, parties are entitled to treat the matter as closed, subject to limited exceptions.

23The circumstances in which a Request for Reconsideration may be granted are set out in Rule 102 of the Tribunal's Rules of Practice applicable to Commission-referred complaints:

A request for reconsideration will not be granted unless the Tribunal is satisfied that:

a. there are new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier;

b. the party seeking reconsideration was entitled to but, through no fault of its own, did not receive notice of the proceeding or a hearing;

c. the decision or order which is the subject of the reconsideration request is in conflict with established jurisprudence or Tribunal procedure and the proposed reconsideration involves a matter of general or public importance; or

d. other factors exist that, in the opinion of the Tribunal, outweigh the public interest in the finality of Tribunal decisions and orders.

The Request for Reconsideration

24The complainant made various submissions in her Request for Reconsideration. Among other things, she submitted that her fiber needs to manage her chronic constipation far exceed the amounts referred to in the Buklis decision; that it was an error for the Tribunal to address her chronic constipation in isolation from her other conditions; and that both ODSP benefits and special diet benefits are so insufficient as to amount to cruel and unusual punishment.

Analysis

25I find that the complainant has not provided any information that would cause me to reconsider the Tribunal's decision regarding her chronic constipation complaint in Buklis. Many of the complainant's submissions are an attempt to re-argue her case and to advance arguments that she believes her legal counsel should have made on her behalf in the Buklis case. As noted above, a Request for Reconsideration is not an opportunity to reargue one's case.

26The complainant seeks to admit new evidence regarding her fiber intake. This is not new evidence that could not have been obtained earlier. The complainant's counsel admitted into evidence relevant medical documentation regarding her chronic constipation. The Tribunal made its decision based on this evidence as well as the evidence provided for the other complainants whose chronic constipation claims were considered in Buklis. I do not consider it appropriate to reopen the Tribunal's finding in Buklis based on proposed new evidence that could have been advanced by the complainant's legal counsel as part of its case in Buklis.

27I also do not accept the complainant's claim that the Tribunal should not have addressed her chronic constipation complaint separately from the rest of her complaints. Since 2005, the special diet schedule has been a condition-based schedule. That is, the schedule contained in a regulation to the Ontario Disability Support Program Act, 1997, S.O. 1997, c. 25, Schedule B ("ODSP"), lists conditions for which the respondent will provide a special diet allowance. For the lead case procedure, counsel for the legal clinics, the Commission and the respondent agreed to proceed on a condition-by-condition basis. For each condition, the Tribunal would consider whether it was discriminatory for the respondent not to include that particular condition on the special diet schedule.

28In this context, there is nothing improper or unreasonable with considering the complainant's chronic constipation condition separately from her other conditions. I do understand that the complainant's lived experience is such that she experiences all of her various conditions as one. They all affect one another. Medications she takes for some may aggravate her other conditions. In short – they are all connected. While I understand the interconnectedness of the complainant's lived experience of her medical conditions, there was nothing improper in the way the Tribunal proceeded in Buklis. The necessity of considering conditions separately arose from the fact that the special diet schedule is organized on the basis of medical conditions and the way the complainant's counsel framed the discrimination arguments before the Tribunal.

29Finally, although I have sympathy for the complainant's claims relating to what she argues are insufficient benefits provided to individuals on ODSP, I do not find that such claims are properly put forward as part of a request for reconsideration. The complainant is seeking to put forward arguments she thinks her counsel should have advanced in the Buklis case. As noted above, a Request for Reconsideration is not an opportunity to re-argue a case. Once the Tribunal has made a decision in a case, parties are entitled to treat the matter as closed, subject to the limited exceptions set out in Rule 102 of Tribunal's Rules of Practice applicable to Commission-referred complaints. For the above reasons, I find that the complainant has not established the existence of any of the criteria in Rule 102 of the Tribunal's Rules that would cause me to reconsider the Tribunal's dismissal of her claim relating to chronic constipation in the Buklis decision

ORDER

30For the reasons set out above, the Tribunal orders as follows:

a. The complainant's complaint with respect to the following conditions is dismissed: anaemia-microcytic; chronic pain syndrome; compromised immune system; malabsorption-magnesium; osteoarthritis; and systemic yeast fungus overload.

b. The Tribunal's Registrar will schedule a one-hour case management conference call to address next steps for the hearing of the claimant's claim in relation to fibromyalgia.

c. The complainant's Request for Reconsideration is dismissed.