Saunders v. Ontario (Community and Social Services), 2015 HRTO 326

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ashley Saunders

Complainant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Minister of Community and Social Services

Respondent

RECONSIDERATION DECISION

Adjudicator: Jo-Anne Pickel

Date: March 16, 2015

Citation: 2015 HRTO 326

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

APPEARANCES

Ashley Saunders, Complainant

Ritva Saunders, Representative

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

Daniel Guttman, Counsel

1The complainant has sought reconsideration of the Tribunal’s dismissal of her claim relating to unintended weight loss – Congenital Heart Disease in Buklis v. Ontario (Community and Social Services), 2013 HRTO 918 (“Buklis”). In particular, the complainant takes issue with the Tribunal’s decision to accept the opinion of the health professional who testified on behalf of the respondent, Dr. Charles Lefkowitz, in preference to that of the health professional who testified on behalf of the applicant, Ms. Laura Lee Walter.

2The 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 the unique circumstances surrounding the complainant’s representation, 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 unintended weight loss in the Buklis decision.

3Having said this, at para. 17 below I provide some clarifications of the Tribunal’s decision in Buklis that I hope will ease some of the complainant’s concerns.

Applicable Principles Re. Requests for Reconsideration

4In 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.

5The 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.

Test from Special Diet Case Law

6In Ball v. Ontario (Community Ball v. Ontario and Social Services), 2008 HRTO 420, the Tribunal held that a complainant must prove the following in order to establish disability-based discrimination related to the special diet allowance:

a. The claim of discrimination is based on a disability or disabilities;

b. 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;

c. The diet leads to additional food costs as compared with a regular, healthy diet for a person without the disability or disabilities; and

d. There is no funding for the additional costs, or the funding is significantly disproportionate to the actual costs (up to the maximum of $250).

The Decision Being Challenged

7In Buklis, former Associate Chair Wright dismissed the complainant’s claim that the respondent discriminated against her by denying her a special diet allowance for unintended weight loss – Congenital Heart Disease. He concluded that the complainant had failed to establish that Congenital Heart Disease is a condition that may lead to weight loss, or that it is generally recognized in the Ontario medical community that increased protein and energy consumption is recommended in such circumstances.

8The former Associate Chair summarized Ms. Walter’s evidence as follows at para. 105:

Ms. Walter concludes that individuals with CHD are at risk of, and frequently experience, unintended weight loss or an inability to reach an adequate weight. She states that the diet recommendations for people with this disability who have been unable to achieve an adequate weight are to increase caloric intake and protein. She states that it is her opinion that individuals with CHD with unintended weight loss require additional energy beyond that of a regular healthy diet. She states that this is because CHD can result in increased metabolic needs in adults, requiring additional calories to maintain healthy body weight and prevent unhealthy weight loss.

9He summarized Dr. Lefkowitz’s evidence as follows at para. 111:

Dr. Lefkowitz states that complications of CHD are not typically associated with weight loss and cannot be modified by any specific dietary intervention. He states as follows with regard to the pediatric literature:

There is ample data to support the causal association between complex Congenital Heart Disease and failure to thrive / delayed growth in infants and children, but no firm evidence or controlled data exists to support the position that dietary modifications beyond a regular healthy diet play an important role in adults with Congenital Heart Disease… While it is without dispute that adults with Congenital Heart Disease require ongoing specialized care and present unique challenges to the healthcare system, these challenges and their solutions are distinctly different than that of the pediatric population. Hence one cannot extrapolate the benefits of a high caloric diet in children to ensure adequate growth and development to the adult population.

Dr. Lefkowitz states that since there are no data to indicate the need for a high calorie diet in adults with CHD, following such a diet may be harmful to their health and place them at risk for obesity. He believes that Ashley’s diet as described by her mother is unnecessary and could be harmful to her.

10Former Associate Chair Wright held that Ms. Walter’s evidence did not meet the burden that complainants must meet to show recognition in the Ontario medical community, even in the absence of considering Dr. Lefkowitz’s evidence (para. 114).

11In human rights cases, complainants have an initial onus of making out a prima facie case of discrimination. What this means is that they have to be able to show that they have advanced sufficient evidence that would support a finding of discrimination in the absence of evidence from the respondent. It is only if a complainant is able to make out a prima facie case of discrimination that the Tribunal will then go on to consider the evidence from the respondent to determine whether a complainant has met his or her burden of proving discrimination when all of the evidence is considered. This burden of making out a prima facie case is what the Associate Chair was referring to when he stated that “Ms. Walter’s evidence did not meet the burden that complainants must meet to show recognition in the Ontario medical community, even in the absence of considering Dr. Lefkowitz’s evidence.”

12The Associate Chair then went on to find that, if he did go further and consider the respondent’s evidence, he preferred that evidence over the evidence advanced on behalf of the complainant:

Moreover, I accept the opinion of Dr. Lefkowitz in preference to that of Ms. Walter. Dr. Lefkowitz is a specialist in cardiology, head of a hospital division, and professor of medicine with nearly 30 years of experience. Ms. Walter is a nurse practitioner who has been doing clinical work in CHD for seven years, with no data, research, or other materials to back up her statements about adults. I appreciate that Ms. Walter currently works more directly in patient care of individuals with Congenital Heart Disease and a member of the Canadian Adult Congenital Heart Network and the International ACHD Nursing Network. Dr. Lefkowitz, however, has more in-depth academic training, has worked as a researcher in CHD, and has worked with heart patients for much longer. In the circumstances, and given the sources that both have cited, I prefer his evidence over hers. (para. 115)

13For these reasons, the former Associate Chair dismissed the complainant’s claim in relation to unintended weight loss – Congenital Heart Disease.

The Request for Reconsideration

14In her Request for Reconsideration, the complainant’s representative took issue with Dr. Lefkowitz’s affidavit. She asked that his “false and misleading testimony... be dismissed”. She made clear that she was not seeking financial compensation but instead that she was requesting that the Tribunal reconsider its reliance upon Dr. Lefkowitz’s affidavit. She claimed that new evidence shows that Dr. Lefkowitz is not an expert in Adult Congenital Heart Disease. She attached to her Request for Reconsideration correspondence that she said supported this claim. Finally, I note that the complainant’s representative, who is her mother, took particular offence at Dr. Lefkowitz’s opinion, referred to in the Buklis decision, that Ashley’s diet as described by her mother was unnecessary and could be harmful to her.

Analysis

15I find that the complainant has not provided any information that would cause me to reconsider the Tribunal’s decision regarding her unintended weight loss complaint in Buklis. As noted above, the former Associate Chair held that the complainant had failed to meet her burden of making out a prima facie case even in the absence of any consideration of Dr. Lefkowitz’s evidence. Therefore, even if Dr. Lefkowitz’s evidence were set aside, the complainant’s claim would still have been dismissed.

16In addition, the new evidence the complainant seeks to rely upon is not new evidence that could not have been obtained earlier. Indeed, the complainant’s counsel in Buklis challenged Dr. Lefkowitz on his knowledge of Adult Congenital Heart Disease (see para. 110). Despite this challenge, the Associate Chair preferred Dr. Lefkowitz’s evidence over that of Ms. Walter. I do not think it is appropriate to disturb this finding in the context of this Request for Reconsideration.

17What I will clarify is that I do not read the former Associate Chair to have suggested in any way that Ms. Saunders, Ashley’s mother, was in any way harming her daughter or being negligent in her care. The same holds true for the complainant’s medical team at the McMaster Adult Congenital Cardiac Clinic. I have no reason to believe that the health professionals there are not providing Ashley with the best medical care available. The issue before the Tribunal was not whether Ashley was being provided outstanding care, but instead whether the complainant had provided sufficient evidence to show that there is a general recognition in the Ontario medical community that increased protein and energy consumption is recommended for adults with Congenital Heart Disease. The former Associate Chair found that she had not. I do not think that his decision was intended to be, nor should it be read as, any kind of critique of Ms. Saunders’ care of her daughter or the care being provided to Ashley by her health care team at the McMaster Adult Congenital Cardiac Clinic.

ORDER

18For the reasons set out above, the complainant’s Request for Reconsideration is dismissed.