Her Majesty the Queen v. W.B. and S., 2011 ONSC 288

CITATION: Her Majesty the Queen v. W.B. and S., 2011 ONSC 288

DIVISIONAL COURT FILE NO.: 210/10

DATE: 2011-02-24

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

CUNNINGHAM, ACJ, SCJ, JENNINGS, WILTON-SIEGEL, JJ.

BETWEEN:

HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO AS REPRESENTED BY THE MINISTER OF COMMUNITY AND SOCIAL SERVICES

Applicant

– and –

W., B., and S. BY HIS LITIGATION GUARDIAN I., ONTARIO HUMAN RIGHTS COMMISSION AND THE HUMAN RIGHTS TRIBUNAL OF ONTARIO

Respondents

COUNSEL:

Robert E. Charney and Sophie Nunnelley, for the Applicant

Lesli Bisgould and Cynthia Wilkey, for the Respondent W., by her Litigation Guardian

Margaret Leighton, for the Respondent the Human Rights Tribunal of Ontario

Cathy Pike, for the Respondent the Ontario Human Rights Commission

HEARD: January 17, 2011

THE COURT

[1] This is an application by Her Majesty the Queen in Right of Ontario (the “Applicant”) for judicial review of a decision dated February 17, 2010 (the “Decision”) of the Human Rights Tribunal (the “Tribunal”). The Applicant seeks a review of the finding of the Tribunal that the respondent W (the “Complainant”) has been discriminated against as a result of lack of special diet funding as a component of her benefits under the Ontario Disability Support Program for a medical condition referred to as “hypoproteinemia” and the order of the Tribunal that W and other individuals with hypoproteinemia be provided with a special diet allowance.

Background

Statutory Background

[2] The Ontario Disability Support Program Act, 1997, S.O. 1997 c. 25 Sched. B (the “ODSPA”) provides that, as a component of the income support provided under the ODSPA, eligible recipients are entitled to receive a “special diet allowance” in the circumstances described in the Special Diet Regulations under the ODSPA, being O. Reg. 562/05 and O. Reg. 222/98.

[3] Similarly, the Ontario Works Act, 1997, S.O. 1997, C. Sched. A, as amended, (the “OWA”) provides that, as a component of the basic financial assistance provided under the OWA, eligible recipients are entitled to receive a special diet allowance in the circumstances described in the Special Diet Regulations under the OWA, being O. Reg. 564/05 and O. Reg. 134/98. The Special Diet Regulations under the OWA and the ODSPA are identical; they are collectively referred to herein as the “Special Diet Regulations”.

[4] Under the Special Diet Regulations, an allowance is provided where an “approved health professional” confirms that a recipient of benefits under the applicable statute, or a member of a benefit unit, requires a special diet because of a medical condition set out in Schedule 1 to O. Regs. 562/05 (in respect of the ODSPA) and 564/05 (in respect of the OWA), as applicable, and specifies the medical condition. The special diet allowance is intended to fund the additional costs of the special diet over and above the costs of a regular healthy diet. It does not, however, fund food preparation and supplements such as vitamins and minerals.

[5] A schedule attached to each of these Regulations (collectively, the “Special Diet Allowance Schedule”) sets out the medical conditions for which a special diet allowance is payable and the monthly amount of the allowance. If, as in the case of the Complainant, an approved health care professional confirms more than one medical condition, a single diet allowance is provided for each such condition, subject to the limitation that the cumulative amounts for the special diet allowance cannot exceed $250 per month per member of the benefit unit. Hypoproteinemia is not, however, included in the Special Diet Allowance Schedule as a medical condition for which a special diet allowance is payable.

Proceeding Before the Tribunal

[6] The Decision pertains to three “lead cases” brought by complainants W, S and B. Each alleged that the Special Diet Allowance Schedule violated the Human Rights Code, R.S.O. 1990, c. H.19. Each of the complainants allege that the special diet program discriminates against them as compared with other persons with different disabilities. They say they have disabilities that require special diets that are not funded, or that are funded at a lower proportion of the actual expenses of their required diets than other individuals with other disabilities.

[7] The Complainant alleged that the Special Diet Schedule discriminates against her in three ways: (1) by failing to include hypoproteinemia; (2) by failing to include a category for bipolar disorder; and (3) by providing for amounts in respect of hypertension, hypercholesterolemia and cardiovascular disease that are significantly lower than the incremental costs of the special diets required as a result of these medical conditions. The application for judicial review relates only to the Tribunal’s finding and order regarding hypoproteinemia.

Evidence in Support of the Complainant’s Position

[8] For the purposes of the hearing before the Tribunal in respect of the Complainant’s condition of hypoproteinemia, the only evidence was that of a registered dietician, Elke Sengmueller. Ms. Sengmueller interviewed the Complainant and conducted a nutrition assessment to determine potential therapeutic dietary needs based on her health status and medical needs. Ms. Sengmueller’s nutritional assessment addressed all of the Complainant’s medical conditions, not just the hypoproteinemia. She provided her conclusions in a report dated February 6, 2009 (the “Sengmueller Report”).

[9] The relevant portion of the Sengmueller Report dealing with the Complainant’s hypoproteinemia reads as follows:

Her [W.’s] protein needs are elevated as both recent blood work and weight loss demonstrate inadequate intake and catabolism. Her estimated needs are 98-123 g protein per day (1.2 – 1.5 g. protein/kg actual body weight).

[10] On cross-examination, Ms. Sengmueller confirmed that, in respect of this condition, it was her recommendation that the Complainant add one additional low-fat meat serving per day to her diet, the cost of which she estimated to be $36 per month.

The Decision

[11] The Tribunal began its analysis by stating that the issue to be addressed in determining whether discrimination exists in this case is whether the Complainant was denied benefits on the basis of her disability that fall within the purpose of the special diet programme. The parties themselves do not disagree in any material respect on the purpose of the special diet programme. At para. 92 of the Decision, the Tribunal described the purpose of the special diet programme as being “to provide finding to all those who have a disability that leads to the dietary needs the programme addresses”. This purpose is described further below.

[12] Consistent with this purpose for the program, the Tribunal then concluded that to establish disability-based discrimination related to the special diet allowance as currently structured, a complainant must demonstrate that four conditions are satisfied:

1. The complainant’s 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).

[13] The Tribunal found that the Claimant had established that she has a disability within the meaning of the Code and that the claim of discrimination in respect of the special diet programme is based on that disability. The Tribunal held that the Complainant suffered from hypoproteinemia based on Ms. Sengmueller’s statement in her report that “her protein needs are elevated as both recent blood work and weight loss demonstrate inadequate intake and catabolism”. The Tribunal then found that hypoproteinemia is a disability under section 10(a) of the Code.

[14] The Applicant does not take issue with the Tribunal’s finding to the extent that it is limited to a statement that W is “hypoproteinemic” and that such condition constitutes a disability under the Code. That is, the Applicant proceeds on the basis that the Tribunal held that a condition of elevated protein needs constitutes a disability whether or not it is associated with a diagnosed medical condition.

[15] With respect to the second requirement, the Tribunal held that the Claimant must establish that a generally accepted medical response to her disability would be to prescribe a particular diet. This result flowed from the fact that the purpose of the special diet programme was “to provide funding for diets where this is generally medically recognized as a treatment for the disability experienced by the individual” - that is, where, as a result of the individual’s disability, “the need for a special diet is generally recognized in the Ontario medical community” (at para. 94). The Tribunal recognized that it is not sufficient to demonstrate only that a medical professional recommends a specific diet for a particular complainant.

[16] The following three paragraphs set out the Tribunal’s observations and conclusions on this issue:

[131] The next question is whether W. has shown that there is general recognition in the Ontario medical community that a particular diet helps treat this disability. I must admit to significant concern about the lack of expert evidence on this point. Although the complainants and the Commission entered reports from three experts (Ms. Sengmueller, Dr. Jeejeebhoy and Paula Brauer, a registered dietician), none of them commented on whether an increased serving of protein is generally recognized as a treatment for protein deficiency. The only expert evidence is Ms. Sengmueller’s recommendation of the additional protein for W. and the statement that “her protein needs are elevated as both recent blood work and weight loss demonstrate inadequate intake and catabolism”.

[132] Of course, until this Decision, the need to demonstrate that the Ontario medical community would prescribe the diet for the disability or disabilities was not established. With the criteria established, claimants in future cases should introduce more specific evidence that shows that the recommendation would be a generally recognized response to the disability.

[133] However, I find that there is a sufficient basis upon which to conclude that W. has established that diet modifications are generally recognized as a treatment for hypoproteinemia. First, in her report, Ms. Sengmueller’s conclusion that W. should eat more protein follows directly from the diagnosis of hypoproteinemia. It is not based on W.’s particular circumstance. Second, there is an evident logical link between eating more foods that are high in protein and the treatment of protein deficiency. Third, the respondent did not present any specific evidence to suggest that it is not general medical practice in Ontario to recommend eating additional protein from food sources when hypoproteinemia is diagnosed, nor make this argument in its final submissions. The respondent did not cross-examine Ms. Sengmueller on the question of whether prescribing an additional serving of protein for hypoproteinemia reflects general medical practice. I am prepared to draw the inference that eating additional protein is generally recognized as appropriate when a person has a protein deficiency.

[17] In short, the Tribunal found that diet modifications are generally recognized for a medical condition of protein deficiency described as hypoproteinemia - that is, that eating additional protein is generally recognized as appropriate when a person has a protein deficiency. It based this finding on three conditions that are addressed in greater detail below.

[18] With respect to the third and fourth requirements, the Tribunal held, without any analysis, that it was evident that the Complainant had satisfied these conditions. The Applicant does not dispute these conclusions.

Applicable Standard of Law

The Standard of Review

[19] The principles regarding the determination of the applicable standard of review are set out in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at paras. 62 and 64:

… the process of judicial review involves two steps. First, courts ascertain whether the jurisprudence has already determined in a satisfactory manner the degree of deference to be accorded with regard to a particular category of question. Second, where the first inquiry proves unfruitful, courts must proceed to an analysis of the factors making it possible to identify the proper standard of review….

The analysis must be contextual. As mentioned above, it is dependent on the application of a number of relevant factors, including: (1) the presence or absence of a privative clause; (2) the purpose of the tribunal as determined by interpretation of enabling legislation; (3) the nature of the question at issue, and; (4) the expertise of the tribunal. In many cases, it will not be necessary to consider all of the factors, as some of them may be determinative in the application of the reasonableness standard in a specific case.

[20] The Applicant argues that the standard of review should be correctness for two reasons that are addressed below.

[21] The Divisional Court has recently addressed the standard of review applicable to decisions of the Tribunal in Shaw v. Phipps 2010 ONSC 3884 and Knoll North America Corp. v. Colin Adams and Ontario (Human Rights Tribunal) 2010 ONSC 3005.

[22] In Shaw v. Phipps, the Divisional Court concluded that, after Dunsmuir, the applicable standard of review was reasonableness. The Divisional Court’s conclusions at paras. 41 and 42 were approved and adopted in Knoll:

[41] Therefore, reading the words of s. 45.8 of the Code purposively and in light of general principles of administrative law, it would follow that the highest degree of deference is to be accorded to decisions of the Tribunal on judicial review with respect to determination of fact and the interpretation and application of human rights law, where the Tribunal has a specialized expertise.

[42] With respect to the present applications for judicial review, a high degree of deference is therefore to be accorded to the Tribunal’s determination whether there has been discrimination under the Code and what the appropriate remedy should be, given that these are questions within the specialized expertise of the Tribunal. In other words, the decisions on liability and on remedy must be respected unless they are not rationally supported ─ in other words, they are unreasonable (Dunsmuir, para. 42).

[23] Although the nature of the question was different in Shaw v. Phipps, we are in accord with the reasoning of the Divisional Court in that decision and see no reason to depart from its conclusions in the present circumstances.

[24] The principal issue in this application is factual ─ whether there is any evidentiary support for the Tribunal’s finding that there is general recognition in the medical community that eating more protein from food sources is an appropriate treatment for a medical condition referred to as hypoproteinemia. As mentioned in Dunsmuir at paras. 51 and 55, questions of fact, discretion and policy generally attract a standard of reasonableness. In the present circumstances, one must also have regard to the privative clause in section 45.8 of the Code, which mandates the highest level of deference toward decisions of the Tribunal, even if that clause is not by itself determinative. Given these considerations, special circumstances are required to displace this standard in favour of a correctness standard.

[25] The fact that factual determination of the Tribunal at issue in this application involves a medical question in which the Tribunal has no special expertise is not sufficient to justify a correctness standard. We note, further, that the Applicant’s principal submission in this regard is that the Tribunal made this finding in the absence of supporting evidence. The fact that an absence of supporting evidence on this factual issue would constitute an error of law also does not warrant a correctness standard. Such a determination in respect of a critical finding of fact renders a tribunal decision unreasonable.

[26] We also do not accept the Applicant’s further submission that decisions of the Tribunal should be equated to constitutional questions for purposes of an analysis under Dunsmuir. As set out in Shaw v. Phipps, the amendments to the Code enacted in December 2006 made it clear that the highest degree of deference should be accorded to decisions of the Tribunal notwithstanding the public importance, and the potential for wide-ranging implications, of its decisions. In addition, while the Decision is important to a large number of people receiving social assistance in Ontario and, in particular to others who have brought the additional 186 other cases pending before the Tribunal and approximately 584 cases pending before the Social Benefits Tribunal, this does not qualify the issues at stake as being of central importance to the Canadian legal system. Nor does the fact that the remedy ordered by the Tribunal was “systemic in nature”, insofar as it ordered the government of Ontario to provide benefits to all eligible persons in Ontario with the medical condition of hypoproteinemia, have such a result. While the Decision has considerable significance outside the legal system, it cannot be characterized as being of central importance to the legal system itself.

The Standard of Reasonableness

[27] In conducting a review of the reasonableness of the Tribunal’s finding of fact, the role of the Court is to determine whether the Tribunal’s interpretation is unreasonable. For this purpose, we consider the standard applied by the Supreme Court in Dr. Q. v. College of Physicians and Surgeons of British Columbia, 2003 SCC 19, [2003] 1 S.C.R. 226 at para. 41 to be applicable:

“, when applying a standard of reasonableness simpliciter, the reviewing judge’s view of the evidence is beside the point; rather, the reviewed judge should have asked whether the Commission’s conclusion on the evidence had some basis in the evidence …”

In other words, the Court cannot consider whether, on the evidence, alternative findings are available or are more reasonable. It can only consider whether there was some basis in the evidence for the Tribunal’s findings.

[28] It might also be suggested that a tribunal finding of a critical fact that is not supported by the evidence before the tribunal renders any decision made in reliance on that finding of fact unjustified. However, we have approached the issue in the present application as a question of reasonableness given the absence of direction in the case law as to the definition of “justification” for purposes of the requirement in Dunsmuir that a decision of a statutory tribunal must also satisfy the requirement of “justification, transparency and intelligibility within the decision-making process”.

Analysis and Conclusions

Applicant’s Position

[29] The Applicant suggests that this application raises three general questions:

1. whether the Tribunal erred by failing to apply the test which it correctly articulated as the legal test for determining whether the exclusion of hypoproteinemia from the Special Diet Allowance Schedule was discriminatory and contrary to section 1 of the Code?

2. whether the Tribunal erred in reversing the onus by requiring the Applicant to disprove that there is a general recognition in the Ontario medical community that persons diagnosed with hypoproteinemia should eat additional protein from food sources? and

3. whether the Tribunal erred in finding that persons with hypoproteinemia require a diet that necessarily has additional food costs as compared with a regular, healthy diet, in the absence of any evidence to this finding?.

[30] In our view, each of these issues is a different way of challenging the Tribunal’s critical finding that eating additional protein is generally recognized in the Ontario medical community as a treatment for a medical condition of protein deficiency referred to as hypoproteinemia. The Applicant’s basic position is that this finding is unreasonable.

Preliminary Matter

[31] Because the issue on this application pertains to the presence or absence of evidence supporting the Tribunal’s finding of a particular fact, we do not accept the Applicant’s first argument, which alleges an absence of jurisdiction. On the Applicant’s argument, the presence or absence of jurisdiction turns on whether there was or was not evidence in support of the Tribunal’s factual finding and, therefore, on whether or not the Decision was reasonable. This is circular reasoning.

[32] It is also contrary to the approach to jurisdiction mandated by the Supreme Court in para. 59 of Dunsmuir.

Administrative bodies must also be correct in their determinations of true questions of jurisdiction or vires. We mention true questions of vires to distance ourselves from the extended definitions adopted before CUPE. It is important here to take a robust view of jurisdiction. We neither wish nor intend to return to the jurisdiction/preliminary question doctrine that plagued the jurisprudence in this area for many years. "Jurisdiction" is intended in the narrow sense of whether or not the tribunal had the authority to make the inquiry. In other words, true jurisdiction questions arise where the tribunal must explicitly determine whether its statutory grant of power gives it the authority to decide a particular matter. …These questions will be narrow. We reiterate the caution of Dickson J. in CUPE that reviewing judges must not brand as jurisdictional issues that are doubtfully so.

[33] We will address the Applicant’s remaining submissions below in addressing whether the Decision satisfies the test of reasonableness.

Analysis

[34] Was there any evidence for the Tribunal’s finding that there is general recognition in the Ontario medical community that eating additional protein from food sources is an appropriate treatment for a medical condition of protein deficiency referred to as hypoproteinemia?

[35] The Tribunal’s finding was based on the following three grounds: (1) Ms. Sengmueller’s conclusion that the Complainant should eat more protein, which the Tribunal concluded followed from a diagnosis of hypoproteinemia and was not based on the Complainant’s particular circumstances; (2) a logical link between eating more high-protein food and the treatment of protein deficiency; and (3) the absence of any evidence that it is not general practice in Ontario to recommend eating additional protein from food sources when hypoproteinemia is diagnosed. The evidentiary value of each of these three grounds is discussed below.

[36] We share the Tribunal’s “significant concern about the lack of expert evidence” that there is general recognition in the medical community that a particular diet helps treat the Complainant’s disability. Simply stated, for the reasons set out below, there was no evidence before the Tribunal to support the Tribunal’s finding. That is fatal to the Complainant’s position.

The Sengmueller Report

[37] The first ground is the Sengmueller Report, the relevant portion of which has been set out above. As discussed below, the tribunal’s finding ultimately rests on this evidence. We conclude, however, that the Sengmueller Report is insufficient on its own to support the Tribunal’s finding on the following reasoning.

[38] The Tribunal’s finding assumes the following: (1) that there is a medical condition called hypoproteinemia; (2) that the appropriate treatment for such medical condition is eating additional protein from food sources; and (3) that W was diagnosed with the medical condition. Ms. Sengmueller’s very limited evidence does not confirm any of these assumptions.

[39] The Sengmueller Report does not establish that there is a medical condition of hypoproteinemia. Ms. Sengmueller describes W as “hypoproteinemic” and refers to her having elevated protein needs (referred to herein as a protein deficiency”). However, she makes no reference to any medical condition of hypoproteinemia. Insofar as the Tribunal treats her evidence as a diagnosis of such a medical condition from which it infers the existence of a recognised medical condition, its finding is without any justification.

[40] Ms. Sengmueller is not authorized under the Dietician Act to diagnosis a medical condition. The sentence from the Sengmueller Report cited above says only that W has elevated protein needs which, while descriptive of W’s needs, is not a diagnosis of a medical condition. In the absence of evidence of a recognized medical condition of hypoproteinemia from any of the other expert witnesses, the fact that Ms. Sengmueller prescribed an extra daily meal of high protein therefore cannot ground an inference that there is such a medical condition.

[41] Even if a protein deficiency, by itself, is a recognized medical condition of hypoproteinemia, it cannot be assumed from Ms. Sengmueller’s evidence that eating additional protein from food sources would be an appropriate treatment for such condition. That would require evidence that links the pathology of the alleged medical condition to the alleged treatment, which was not in evidence before the Court. It is possible that the pathology of the assumed medical condition would have the consequence that in some or all instances there is no appropriate treatment for the condition or that another form of treatment is appropriate. For example, it may be that vitamin supplements, which are not covered by the special diet program, rather than food sources, are the appropriate treatment because of an inability of the individual’s body to process protein from food sources. It is also possible, as the Applicant suggests, that in other cases, the cause of the medical condition is an inappropriate diet for which the treatment is prescription of a healthy or more appropriate diet.

[42] In addition, even if there is a medical condition of hypoproteinemia, it is not clear from the Sengmueller Report that W would satisfy the criteria for such a condition. The Tribunal assumes that all circumstances of a protein deficiency would fall within the medical condition referred to as hypoproteinemia. However, that has also not been established. It is possible that the pathology of any medical condition described as hypoproteinemia would be such that there are only a limited number of circumstances of protein deficiency that are associated with the medical condition. The Tribunal also assumes that all circumstances of protein deficiency are treated by eating additional protein from food sources. This has also not been established. It is also possible that a treatment of eating additional protein from food sources is generally regarded as an appropriate treatment for some but not all instances of a protein deficiency. It is therefore necessary for the Complainant to provide an actual diagnosis by a qualified health professional that establishes not only that she suffers from a particular medical condition but also that diet is an appropriate treatment for that particular medical condition. As the Tribunal’s counsel acknowledges, the evidence of Ms. Sengmueller is not such a diagnosis. It establishes only that W exhibits elevated protein needs.

Alleged Evident Logical Link

[43] The second ground on which the Tribunal relied was an “evident logical link between eating more foods that are high in protein and the treatment of protein deficiency. This statement assumes that there is a medical condition of hypoproteinemia. It addresses only the appropriate treatment for such assumed condition. It cannot be relied upon as a basis for inferring the existence of a medical condition of hyprproteinemia. Further, without any evidence as to the pathology of the alleged medical condition of hypoproteinemia, it is neither logical nor evident that such a treatment would be appropriate even if the medical condition existed. As mentioned above, it is at least equally plausible that no treatment is available or that another treatment is appropriate in some or all instances of the medical condition.

Absence of Contrary Evidence

[44] The last ground on which the Tribunal relied is the absence of any specific evidence from the Applicant to suggest that it is not general medical practice in Ontario to recommend eating additional protein from food sources when hypoproteinemia is diagnosed.

[45] The Applicant says that such reliance amounts to reversing the onus of proof and constitutes an error of law. While a reversal of the onus of proof would constitute an error of law, we agree with the Tribunal’s counsel that the Applicant has mischaracterized the Tribunal’s approach on this matter. We accept that, in respect of this ground, the Tribunal stated that, while it acknowledged that Ms. Sengmueller’s evidence was not very strong, it considered that it could rely on that evidence because there was no evidence to the contrary. In other words, it was unnecessary to weigh the evidence in the absence of any evidence to the contrary. This does not constitute a reversal of the onus of proof.

[46] However, this ground cannot be relied upon to support the Tribunal’s factual finding for two reasons.

[47] First, it is certainly not positive evidence on any of the three elements of the factual determination set out above. It presupposes, instead, that Ms. Sengmueller’s evidence is, on its own, sufficient to support the Tribunal’s factual finding. For the reasons set out above, Ms. Sengmueller’s evidence falls short of this mark.

[48] Second, the Tribunal’s own statement in paragraph 132 contradicts the premise that Ms. Sengmueller’s evidence was sufficient to support the factual finding. The Tribunal expressly states that claimants in future cases should introduce more specific evidence showing that the recommendation to eat more high protein food sources would be a generally recognized response to the disability. There cannot, however, be one standard of evidence for establishing the factual finding in the Decision and another in subsequent decisions by other claimants. If more specific evidence is required for future cases, it is also required for W’s case. Implicit in the statement in paragraph 132 is, in effect, a recognition that W has not satisfied the onus on her to establish the second requirement of the test articulated by the Tribunal.

[49] We appreciate that the Tribunal believes that W should be given some latitude because she was not aware of the test until the publication of the Decision and therefore may not have adduced evidence that directly addressed this element of the test. However, we do not think that the proper manner of addressing the absence of evidence in such circumstances is to disregard the rules of evidence. As an alternative, after articulating the test, the Tribunal was free to invite further evidence from the parties.

Conclusion Regarding Reasonableness of the Decision

[50] As stated above, for the foregoing reasons, we have concluded that the Tribunal did not have any evidence for its finding that eating additional protein is generally recognized as appropriate treatment when a person has a medical condition of protein deficiency referred to as hypoproteinemia. The Complainant has therefore failed to establish the second criterion of the test articulated by the Tribunal. On this basis, the Court must conclude that the outcome of the Decision was unreasonable.

Disposition of the Application

[51] Based on the foregoing, the Decision of the Tribunal is quashed insofar as it pertains to W’s claim of disability-based discrimination regarding the failure to fund a special diet allowance in respect of her elevated protein requirements.

[52] Mr. Charney has advised the Court that, in the present circumstances, the Applicant considers that the doctrine of res judicata would not prevent the Claimant from pursuing a further claim based on additional evidence that addressed her medical circumstances. We concur with that view.

Costs

[53] As the Applicant does not seek costs of this application, no costs are awarded.

ACJ, SCJ, CUNNINGHAM

JENNINGS, J.

WILTON-SIEGEL, J.

Released: February 24, 2011