Simon's Megalomaniacal Legal Resources

Administrative - Human Rights

. Swerdfiger v. Director of the Ontario Disability Support Program [bifurcation]

In Swerdfiger v. Director of the Ontario Disability Support Program (Ont Div Ct, 2025) the Ontario Divisional Court dismissed an appeal, here from SBT decisions "by the Director of the Ontario Disability Support Program (“ODSP”) in which the Director denied the appellant’s application for a special diet allowance (“SDA”) based on a medical condition known as “Avoidant/Restrictive Food Intake Disorder” (“ARFID”)".

The court extensively considers the special diet allowance (SDA) benefit issue, here illustrating a 'bifurcated' administrative ODSP/HRC hearing:

[3] The applicant receives ODSP benefits under the Ontario Disability Support Program Act, 1997, S.O. 1997, c. 25, Sch. B (“ODSPA”). Under the ODSPA, an SDA is paid to eligible recipients to supplement the higher costs faced by individuals with specific dietary requirements resulting from a disability.

[4] Eligibility for the SDA is governed by O. Reg. 562/05 and O. Reg. 222/98, both of which are enacted under the ODSPA. Schedule 1 of O. Reg. 562/05 (the “Schedule”) contains a list of eligible medical conditions that require an SDA. For each medical condition listed, the Schedule specifies the monthly SDA available. The Schedule categorizes the medical conditions into those that may cause unintended weight loss and those that may not. Where the listed condition is one that may cause unintended weight loss (“MCCWL”), the amount of the monthly allowance is determined by the amount of weight the recipient has lost. Under s. 2(2), where the MCCWL causes a recipient to lose between five and ten percent of their usual body weight, the amount of the SDA is $191 per month. Where the MCCWL causes a recipient to lose more than ten percent of their usual body weight, the amount of the SDA is $242 per month.

[5] To be eligible for an SDA, recipients must submit an application form that states the medical condition for which funding is being sought. The application must then be approved by the Director of the ODSP.

[6] The appellant submitted an application for an SDA in August 2023, which was completed by a nurse practitioner on the appellant’s behalf. The application indicated that the appellant suffered from ARFID, causing a weight loss of more than ten percent of the appellant’s usual body weight. The Director denied the appellant’s application on the basis that ARFID is not a medical condition listed in the Schedule.

[7] The appellant appealed the Director’s decision to the Tribunal under the relevant provisions of the ODSPA, alleging, among other things, that the decision violated the Human Rights Code, R.S.O. 1990, c. H.19 (the “Code”). The appeal was bifurcated into two stages. Stage 1 dealt with the merits of the Director’s decision. Stage 2 dealt with the allegations of discrimination under the Code.

[8] Stage 1 was resolved on May 29, 2024, when the Tribunal issued an order on consent in which the appellant conceded the merits of the Director’s decision and the parties agreed that, if Stage 2 was successful, the SDA would commence retroactively on March 1, 2023.

[9] In a decision dated August 13, 2024, the Tribunal denied the Stage 2 appeal. In denying the appeal, the Tribunal applied the decision of the Ontario Human Rights Tribunal (the “HRTO”) in Ball v. Ontario (Community and Social Services), 2010 HRTO 360. In Ball, in it was held that a claimant affected by a medical condition or conditions not listed in the Schedule will have demonstrated discrimination contrary to the Code where they establish:

(1) that they have a disability or disabilities;

(2) that there is a general consensus in the Ontario medical community that modifications to a regular healthy diet should be made because of the disability or disabilities;

(3) that the diet leads to additional food costs as compared with a regular healthy diet for a person without the disability or disabilities; and

(4) that there is no funding for the additional costs or the funding is significantly disproportionate to the additional costs (up to a maximum of $250).

[10] In the appellant’s case, the Director did not contest that the appellant met the first and the fourth Ball criteria, i.e. that the appellant had a disability and that there was no funding. The Tribunal therefore focused on the second and third criteria. The Tribunal found that the appellant met the second criterion, i.e., that there was a general recognition in the Ontario medical community that modifications to a regular diet should be made because of the disability. However, the Tribunal held that the appellant had failed to establish the third Ball criterion, namely, that the diet leads to additional food costs as compared with a regular healthy diet for a person without the disability.

[11] The appellant applied to the Tribunal to reconsider the Stage 2 decision. In the reconsideration application, the appellant sought to introduce additional evidence, including a report from the appellant’s registered dietician expanding on evidence already submitted by the same dietician for the Stage 2 appeal, as well as a report prepared in April 2008 by a committee appointed by the Ontario Government called the “Special Diet Allowance Expert Review Committee” (the “SDERC”). In its report, the SDERC recommended various changes to the Schedule, including recommendations for the removal of certain medical conditions and the addition of others, changes to categories, and changes to certain benefit amounts.[2] The appellant sought to rely on the detailed costing information contained in the SDERC report and on the additional evidence of the dietician (collectively, the “additional costing evidence”) to prove the increased costs of her dietary requirements. The appellant also alleged procedural unfairness and legal errors on the part of Tribunal Member Brown in her application for reconsideration.

[12] On October 21, 2024, the Tribunal dismissed the appellant’s request for reconsideration. In the reconsideration decision, Vice Chair P. Brennan held that the appellant could have obtained the additional costing evidence with due diligence and put it before the Tribunal in the Stage 2 hearing. He further held that the evidence did not support the appellant’s claims of procedural unfairness, and that the appellant had failed to identify any legal errors.

. Zarabi-Majd v. Toronto Police Service ['duty to accomodate' at hearing]

In Zarabi-Majd v. Toronto Police Service (Ont Divisional Ct, 2025) the Divisional Court dismissed a police officer-brought JR, this against a dismissed appeal by the Ontario Civilian Police Commission (OCPC), that against a TPS discipline hearing finding where the applicant "was found guilty of four counts of discreditable conduct and four counts of insubordination, and was dismissed from the TPS".

Here the court considers the human rights 'duty to accomodate' a party, here at a police OCPC tribunal hearing:

B. Duty to Accommodate

[9] Administrative tribunals have an obligation under the Ontario Human Rights Code to accommodate a party’s disability-related needs. However, the fact that a party has a disability is not enough to trigger the duty to accommodate: Murphy v. Ontario (Environment), 2018 HRTO 1715 at para. 37. Before that duty arises, there must also be a finding that the party’s ability to access the service of the administrative tribunal will be adversely affected by their disability: Moore v. British Columbia (Education), 2012 SCC 61 at para. 33. In other words, it is the impact of Ms. Zarabi-Majd’s disability on her ability to participate in the hearing that is the relevant consideration in terms of whether the Tribunal either had a duty to accommodate her or breached that duty.

....

[18] The process of devising appropriate accommodations for a health-related disability must be collaborative: Simpson v. Commissionaires (Great Lakes), 2009 HRTO 1362 at paras. 35–36, Rodgers v. Lowest Rates Inc, 2023 HRTO 468 at paras. 51–52. The person seeking accommodation must participate in the process of finding appropriate accommodations and has an obligation to accept reasonable accommodations offered: Central Okanagan School District No. 23 v. Renaud, 1992 CanLII 81 (SCC), [1992] 2 S.C.R. 970 at 994-995. To the extent the Hearing Officer had an obligation to accommodate Ms. Zarabi-Majd even though her illness did not prevent her from participating in the hearing, we find the Hearing Officer discharged that obligation by proposing possible accommodations to Ms. Zarabi-Majd and remaining open to other suggestions (short of an indefinite adjournment).

. Salim v. Singh

In Salim v. Singh (Div Court, 2024) the Divisional Court allowed an RTA s.210 appeal where the LTB "refused to apply the Ontario Human Rights Code, R.S.O. 1990, c. H.19 (“the Code”), to determine whether a landlord’s refusal to rent a townhome to a couple with three children was “arbitrary or unreasonable” under s. 95(5)" [Assignment, Subletting and Unauthorized Occupancy - Refusal or non-response].

Here the court confirms that Ontario administrative tribunals have HRC jurisdictions, and usefully sets out the test for establishing 'prima facie discrimination':

[2] This was a serious error that requires correction on appeal. The Code is quasi-constitutional legislation that has paramountcy over the RTA: s. 3(4), RTA; s. 47(2), Code; Tranchemontagne v. Ontario (Director, Disability Support Program), 2006 SCC 14, at paras. 33-39. In Tranchemontagne, the Supreme Court of Canada found that Ontario’s tribunals have the jurisdiction to interpret and apply the Code because is it “the law of the people.”

[3] The Preamble to the Code recognizes that it is public policy in Ontario to recognize the dignity and worth of every person and to provide for equality and non-discrimination. The Code gives everyone a right to equal treatment in respect to “occupancy of accommodation,” without discrimination on the basis of seventeen grounds, including age, marital status, and family status. Family status attracts human rights protection because of the family’s unique and imperative role in caregiving.

....

[45] In Moore v. British Columbia (Education), 2012 SCC 61, [2012] 3 S.C.R. 360 at para. 33, the Supreme Court of Canada articulated the test for discrimination under human rights legislation, stating:

As the Tribunal properly recognized, to demonstrate prima facie discrimination, complainants are required to show that they have a characteristic protected from discrimination under the Code; that they experienced an adverse impact with respect to the service; and that the protected characteristic was a factor in the adverse impact. Once a prima facie case has been established, the burden shifts to the respondent to justify the conduct or practice, within the framework of the exemptions available under human rights statutes. If it cannot be justified, discrimination will be found to occur.

[46] This approach was recently applied to the Code by the Court of Appeal for Ontario in Ontario (Health) v. Association of Midwives, 2022 ONCA 458, 161 O.R. (3d) 561, at para. 101. It was also applied to the ground of “family status” under s. 5(1) of the Code in Misetich v. Value Village Stores Inc., 2016 HRTO 1229, at paras. 35-48. While there has been some uncertainty in the case law on this point, in my view, Adjudicator Jennifer Scott took the correct approach in applying the Moore test to the ground of family status in Misetich. It is important to apply a uniform test for discrimination to all protected grounds, including family status.

....

What is the proper remedy for discrimination under s. 98(3) of the RTA?

[67] If discrimination is found, the LTB has the discretion to determine the appropriate remedy under s. 98(3). While the remedies must relate to the relationship between the landlord and tenant, the LTB must remain mindful of the primacy of the Code over the RTA, the Code’s quasi-constitutional status, and the importance of protecting families from discrimination in housing. It would seem perverse to allow a landlord to claim a remedy before the RTA after engaging in discrimination, whether or not the person who was discriminated against is before the LTB. There is an important role for the LTB to play in holding landlords who discriminate accountable. This was the takeaway message from the Supreme Court of Canada’s ruling in Tranchemontagne back in 2006.

What is the proper remedy on appeal?

[68] The appeal is allowed, and the matter shall be remitted back to the LTB with the opinion of the Court.

[69] I would also order that the LTB serve a copy of this decision on the Executive Chair of Tribunals Ontario, the Executive Chair of the Human Rights Tribunal of Ontario, and the Chief Commissioner of the Ontario Human Rights Commission. Proof of service shall be filed with the court within 7 days of the release of the decision to the parties.