HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Randy King

Complainant

-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: March 12, 2015

Citation: 2015 HRTO 307

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

APPEARANCES

Randy King, Applicant 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 him because of disability contrary to the Human Rights Code, R.S.O. 1990 c. H. 19, as amended (the “Code”). Specifically, he alleged that the Special Diet Allowance provided under Ontario’s social assistance system discriminates against him by failing to fund a special diet allowance for his fibromyalgia.

2I directed that the Tribunal schedule a preliminary hearing to address whether the complainant’s complaint should be dismissed on the basis that it stands no reasonable prospect of success. Although I have considerable sympathy for the complainant, for the reasons set out below, I find that his complaint must be dismissed on the basis that it stands no reasonable prospect of meeting the test for establishing discrimination in relation to the special diet allowance.

BACKGROUND TO PROCEDURE USED FOR SPECIAL DIET COMPLAINTS

3The complainant’s complaint was one of over one hundred complaints filed by complainants challenging the Special Diet Allowance. Most of these complaints were filed with the Ontario Human Rights Commission (“Commission”) and referred to the Tribunal by the Commission.

4After 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”). 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.

5In 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). For conditions falling within the C category, complainants were required to represent themselves. The complainant’s fibromyalgia fell within the C category of conditions.

PRELIMINARY HEARING IN THIS CASE

6By Case Assessment Direction (“CAD”), I directed the complainant to file supporting materials with the Tribunal to explain how he intended to establish that his claim met the special diet test established by the Tribunal in Ball v. Ontario (Community and Social Services), 2010 HRTO 360 (“Ball”).

7Rule 19A of the Tribunal’s Rules of Procedure governing cases filed under s. 34 of the Code provides the Tribunal with the power to hold a summary hearing on the question of whether an Application should be dismissed on the basis that there is no reasonable prospect that the Application will succeed. Summary hearings are a form of preliminary hearing held prior to the scheduling of a full merits hearing. Unlike other preliminary matters, which are determined on a “balance of probabilities”, the test the Tribunal applies at a summary hearing is whether an application has “no reasonable prospect of success.” If, after examining the allegations and hearing the parties’ submissions, the Tribunal determines that an application has no reasonable prospect of success, it will be dismissed. If the Tribunal does not dismiss an application, it will continue in the Tribunal’s process. The Tribunal’s summary hearing process has been upheld by the Divisional Court in Gill v. Human Rights Tribunal of Ontario et al., 2014 ONSC 1840.

8The Tribunal has held that it is neither appropriate nor principled that a hearing on the merits be held when there is no reasonable prospect that a complainant will be able to put forward evidence that would meet his or her burden of proof: see Pellerin v. Conseil scolaire de district catholique Centre-Sud, 2011 HRTO 1777. This reasoning applies both to Applications filed directly with the Tribunal under s. 34 of the Code as well as cases, such as this one, which were initially filed with the Commission.

9The preliminary hearing was focused specifically on the evidence that the complainant could point to on which he would seek to rely to establish discrimination in his case. The issue addressed in the preliminary hearing was whether the complaint should be dismissed on the basis that there was no reasonable prospect that the complainant would be able to advance the evidence necessary to meet the legal test applicable to establish discrimination in the special diet cases.

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 and the Ontario Works Act.

11The 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 set out a set amount for each diet or product. There was also a category under which a medical practitioner could certify that an individual required a diet not listed elsewhere on the schedule.

12Following 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. The special diet schedule does not include fibromyalgia.

Applicable legal test

13In 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).

14The Tribunal has applied this four-part test (“Ball 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; Wells v. Ontario (Community and Social Services), 2011 HRTO 1579; Monaghan v. Ontario (Community and Social Services), 2014 HRTO 856; Monaghan v. Ontario (Community and Social Services), 2014 HRTO 857; and Lefebvre v. Ontario (Community and Social Services), 2014 HRTO 1050. The test also has been applied by the Divisional Court on three occasions: Ontario (Community and Social Services) v. WB, 2011 ONSC 288 (“Ontario v. WB”), and Ontario (Community and Social Services) v. Martel, 2012 ONSC 6680, and MacConnell v. Ontario (Community and Social Services), 2014 ONSC 5446.

15The complainant submitted that the Ball test is not the appropriate test to be applied to his case and that the test is itself discriminatory. He argued that the Ball test is not consistent with the Commission’s Policy and Guidelines on Disability and the Duty to Accommodate. In particular, the complainant noted that the Commission’s Policy and Guidelines refers to the need to conduct an individualized assessment in accommodation cases. He argued that the Ball test is inappropriate because it does not provide for any such individualized assessment. The complainant submitted that the Policy and Guidelines should “trump” the Ball test. In addition, the complainant submitted that the Ball test is inconsistent with the test for discrimination set out in cases such as Peel Law Association v. Pieters, 2013 ONCA 396 (“Pieters”), and Moore v. British Columbia (Education), 2012 SCC 61 (“Moore”).

16I do not agree with the complainant’s submissions in regards to the Ball test. As noted above, the Ball test has been applied in all special diet cases decided by the Tribunal. It has also been applied by the Divisional Court. As such, I find that the test is binding upon me and, moreover, that it is an appropriate test to be applied in cases involving a large-scale government benefit program such as the special diet allowance. I agree with the Tribunal’s finding in Ball that analyzing discrimination in cases such as the special diet cases requires a consideration of the purpose or underlying rationale of the special diet allowance. Once having determined the purpose of the program, the Tribunal must consider whether individuals with different disabilities are given different benefits in a manner that is inconsistent with that purpose (para. 76). In Ball, the Tribunal described the purpose of the special diet program as being the provision of additional funding for social assistance recipients who have a medical condition for which a special diet is generally recognized by the Ontario medical community as an adjunct to the treatment of that medical condition.

17Consistent with this program purpose, the Tribunal concluded that to establish disability-based discrimination related to the special diet allowance, a complainant must demonstrate that the four-part test set out in para. 4 is satisfied. This four-part test was discussed with approval and applied by the Divisional Court in Ontario v. WB, above at paras. 11 and 12. It has also been applied in all other judicial reviews of special diet cases that have been decided by the Divisional Court. As such, I find that it is the appropriate test that is applicable to this case.

18I do not agree with the complainant that the Ball test is inconsistent with the Commission’s Policy and Guidelines on Disability and the Duty to Accommodate. As noted in the Policy and Guidelines, complainants have the burden of showing a prima facie case of discrimination which involves demonstrating three things: (1) differential treatment, (2) based on a protected ground, (3) that causes discrimination in the substantive sense. In order to establish discrimination in the substantive sense in relation to benefit programs, it is necessary to consider the differential treatment as it relates to the purpose of the program.

19It is only by demonstrating that a person is excluded from a program when their circumstances fall within the purposes of the program that they may establish discrimination in the substantive sense. To provide an example, it may not be discriminatory in the substantive sense for a person with a mental disability to claim that they were excluded from a program established to provide benefits only to persons with physical disabilities (assuming for sake of this example that it could be shown that the purpose of such a program was not itself discriminatory). Although a complainant with a mental disability would be able to show that they were excluded from the program due to their disability, they may not be able to establish discrimination in the substantive sense since their disability does not fall within the purposes of the program. By contrast, if the purpose of the program is to provide benefits for individuals with disabilities and the program excludes persons with mental disabilities, then the program would be substantively discriminatory since coverage for persons with mental disabilities would fall within the purpose of the program. See Battlefords and District Co-operative Ltd. v. Gibbs, 1996 CanLII 187 (SCC), [1996] 3 S.C.R. 566.

20As noted above, in Ball, the Tribunal found that the purpose of the special diet program is, broadly stated, to provide additional funding for social assistance recipients who have a medical condition for which a special diet is generally recognized by the Ontario medical community as an adjunct to the treatment of that medical condition. It is in the context of this framing of the purpose of the program, that the second part of the Ball test arises – that is, the requirement to show that there is a general recognition in the Ontario medical community that modifications to a regular healthy diet should be made for the complainant’s disability. This requirement is linked to the purpose of the special diet program which is, in turn, linked to the need to demonstrate discrimination in the substantive sense as discussed in the Commission’s Policy and Guidelines and also in cases such as Ontario (Disability Support Program) v. Tranchemontagne, 2010 ONCA 593. Therefore, I do not agree that the Ball test is inconsistent with the prima facie case analysis set out in the Commission’s Policy and Guidelines.

21I also do not agree with the complainant that the special diet regulation and/or the Ball test are inconsistent with the Policy and Guidelines because they do not incorporate an individualized assessment of the complainant’s disability. The Policy and Guidelines refer to the importance of individualized assessments in carrying out a respondent’s duty to accommodate. The special diet cases do not raise the duty to accommodate contained in the Code. Properly framed, the issue in these cases is an allegation of discrimination due to the exclusion of certain disabilities from the government’s special diet allowance program or regulation.

22What the complainant appears to be arguing is that it was discriminatory for the respondent to move from the special diet scheme in place prior to 2005 to the current scheme which is based on a list of approved conditions that is not customized to any particular individual. In response to this point, I adopt and agree with the following passages from Ball and the Supreme Court of Canada’s decision in Nova Scotia (Workers’ Compensation Board) v. Martin, 2003 SCC 54:

Like other large-scale social benefit programs, OW and ODSP allocate funding, to a large extent, through generalized categories. Although there are some particularized programs and benefits, funding is not customized to the particular needs of each recipient. This is, as the Supreme Court recognized in Martin, supra, at para. 82, almost always a necessary part of any benefit program:

Of course, government benefits or services cannot be fully customized. As a practical matter, general solutions will often have to be adopted, solutions which inevitably may not respond perfectly to the needs of every individual. This is particularly true in the context of large-scale compensation systems, such as the workers’ compensation scheme under consideration. Such systems often need to classify various injuries and illnesses based on available medical evidence and use the resulting classifications to process the claims made by beneficiaries. This approach is necessary, both for reasons of administrative efficiency and to ensure fairness in processing large numbers of claims. In addition, the beneficiaries themselves benefit from the reduced transaction costs and speed achieved through such techniques, and without which large-scale compensation might well be impossible.

23For the reasons set out above, I find that the Ball test is consistent with the Policy and Guidelines on Disability and the Duty to Accommodate. Parenthetically, I note that the Commission has intervened on all of the special diet lead cases and did not at any point submit that there was any inconsistency between the Ball test and the Commission’s Policies or Guidelines.

24For similar reasons, I do not agree with the applicant that the Ball test is inconsistent with the test for discrimination set out in cases such as Pieters and Moore, above. The Court of Appeal in Pieters adopted the discrimination analysis set out by the Supreme Court of Canada in Moore. Justice Abella, writing for the Supreme Court in Moore, summarized the human rights protections against discrimination in the provision of services as follows: “if a service is ordinarily provided to the public, it must be available in a way that does not arbitrarily — or unjustifiably — exclude individuals by virtue of their membership in a protected group.” This is consistent with the analysis set out in Ball, described above, which focuses on the purposes of the special diet program. It is only if an individual’s disability falls within the program’s purpose that he or she can establish that they are being unjustifiably excluded from the program. As discussed above, the Ball test is aimed at determining whether the complainant’s disability falls within the purposes of the special diet program.

25For all these reasons, I find that the Ball test is the test applicable to the complainant’s case. It is the test he would have to meet to establish discrimination in this case.

Whether the complaint has a reasonable prospect of meeting Ball test

26The complainant focussed his submissions on arguing that the Ball test was not the appropriate test to apply to his case. In the alternative, he submitted letters from his rheumatologist and physiotherapist which he intended to rely upon to establish discrimination in accordance with the Ball test. Recognizing that it is often the second part of the Ball test that is central to complaints, the complainant submitted that the letter from his rheumatologist provided evidence that there is a general recognition in the Ontario medical community that modifications to a regular healthy diet should be made for the treatment of fibromyalgia.

27Having reviewed the letters filed by the complainant, I cannot accept this submission.

28The letter from the complainant’s physiotherapist states in its relevant part that the complainant “has been made aware that a diet higher than normal in protein can play an important role in the management of chronic inflammatory conditions such as he has.”

29The letter from the complainant’s rheumatologist states in its relevant part as follows:

He [the complainant] has also been on a high protein diet which he finds is beneficial in helping his chronic pain.

He has been successfully using a combination of high-protein diet, self-exercise program (sic), and the Synaptic 2000 machine.

30These letters fall far short of providing evidence that it is generally accepted in the Ontario medical community that a high protein diet should be undertaken in order to treat fibromyalgia. The complainant submitted that his rheumatologist specializes in treating persons with fibromyalgia and therefore she is the Ontario medical community. He argued that if she said he needs a high-protein diet, he needs it.

31I note that the complainant’s rheumatologist’s letter does not state that he requires a high-protein diet. Instead, it states that he has been on a high-protein diet and that he finds it beneficial. More importantly, it must be remembered that what is at issue in this case is a claim that the legislative scheme relating to the special diet allowance is discriminatory. This requires more than having a medical practitioner certify that an individual requires a particular diet, as was the case prior to the legislative amendments made in 2005. What the applicant is claiming is that the new legislative scheme introduced in 2005 discriminates against him due to the failure to include fibromyalgia and/or CFS as conditions for which individuals may receive a special diet allowance. This requires solid evidence to establish that it was discriminatory for the legislature to deny a special diet allowance for these conditions. The letters from the complainant’s health care providers do not provide any evidence that it is generally accepted in the Ontario medical community that a high-protein diet should be undertaken in order to treat fibromyalgia.

32At the hearing, the complainant stated that he might be able to advance evidence to meet the second part of the Ball test if he received disclosure from the respondent and was able to cross-examine its witness in the context of a merits hearing. It is common for complainants to make such a claim in the context of a summary hearing in order to argue in favour of having access to a full hearing on the merits. More is required of a complainant seeking to engage the full Tribunal process. There must be some reasonable basis to believe that the complainant can lead sufficient evidence which would require an evidentiary response from the respondent. See, for example, Hewage v. Greater Sudbury (City), 2014 HRTO 703 at para. 21. In my view, the complainant has been unable to show that there is any reasonable basis that he would be in a position to access information that would enable him to meet the second part of the Ball test.

33Based on the above information, I must find that the complaint stands no reasonable prospect of meeting the applicable test for the special diet cases. Assuming he can meet the other parts of the Ball test, the complainant has been unable to point to any evidence he intends to advance at a hearing that has a reasonable prospect of establishing that there is a general recognition in the Ontario medical community that modifications to a regular healthy diet should be made because of fibromyalgia.

ORDER

34Although I have considerable sympathy for the complainant’s circumstances, his complaint must be dismissed.

Dated at Toronto, this 12th day of March, 2015.