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Human Rights (Ont) - Underinclusive Benefits. Blair v. University of Waterloo et al
In Blair v. University of Waterloo et al (Ont Div Ct, 2026) the Ontario Divisional Court dismissed an HRTO JR, this brought against the dismissal of their claim that "the university discriminated against them on the basis of disability for failing to administer a disability-related bursary to provide funding for a motorized mobility device, which they described as a powerchair".
Here the court upholds a tribunal finding that it "was not authorized to review decisions under benefit programs, including those based on disability":Was the the Tribunal’s decision unreasonable in failing to find the university misapplied the benefits manual?
[13] The applicant submits the Tribunal did not sufficiently consider, or misapplied, the manual for the BSWD. They emphasize they were seeking funding for a powerchair, which they say is distinct from a wheelchair, and which in their submission should have been covered by the manual.
[14] I find the Tribunal’s reasons on this point to be reasonable. The Tribunal explained that the university told the applicant they were not entitled to funding under the BSWD because wheelchairs were not covered under the manual. Specifically, the university referred to a section of the manual titled “Non-Eligible Expenses”, which expressly included wheelchairs.
[15] The Tribunal did not make any findings as to whether this was a correct reading of the manual. Instead, the Tribunal said it was not authorized to review decisions under benefit programs, including those based on disability. At para. 31 of its reasons, the Tribunal stated: “Accordingly, I make no finding regarding whether the University was correct in its interpretation of the applicant’s eligibility for the BSWD; rather, I must determine whether the applicant has presented evidence that establishes or supports an inference that the University’s actions were discriminatory.”
[16] The Tribunal’s analysis was reasonable. It relied on established Tribunal jurisprudence that limits the review of decisions under disability benefit programs. In Seberras v. Workplace Safety Insurance Board, 2012 HRTO 115, the applicant filed a complaint at the Tribunal against the Workplace Safety and Insurance Board alleging that he was discriminated against because of a disability when he was denied benefits. The Tribunal held that applications that effectively seek to challenge such decisions must be dismissed, as permitting them would improperly confer an appeal function on the Tribunal that the legislature did not intend: Seberras, at para. 22, citing Zaki v. Ontario (Community and Social Services) (No. 3), 2011 HRTO 1797. See also Matthews v. Chrysler Canada Inc., 2011 HRTO 1939.
[17] This does not mean an applicant can never challenge a benefits scheme as discriminatory. But there must be something more than the denial of benefits to a particular person based on an alleged misinterpretation of the benefits policy. Further, in this case, the university was not the provider of benefits. It only administered the scheme. The applicant was entitled to challenge the university before the Tribunal for the manner in which it interacted with them regarding the benefits, but the Tribunal reasonably found that any challenge to its interpretation of the manual was not for the Tribunal to resolve. . Ontario (Community and Social Services) v WB
In Ontario (Community and Social Services) v WB (Div Court, 2011) the Divisional Court dismissed a Crown HRC 'underinclusive benefits' judicial review application, here of the decision of an Ontario Human Rights Tribunal that upheld a complaint alleging discrimination of the basis of disability. The issue was the ODSP program's failure to accord special diet allowance respecting the applicant's specific medical condition (ie. it was unlisted in Schedule 1 to the ODSP Special Diet Regulation). The case was initially brought under the old pre-2008 Human Rights Code.
As restated by the court, the Tribunal posited the following (new at the time) test in making it's determination:[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). While the Tribunal found that there was adequate evidence supporting satisfaction of all elements of this test, the court concluded that there was no evidence supporting the first three elements (not even the diagnosis), thus rendering consideration of the fourth moot.
That said, the court implicitly endorsed the above-stated test in the narrow circumstances of alleging underinclusiveness within the special diet regimes of both ODSP and, since the Ontario Works regimes is identical, that regime as well. It openly invited the parties to commence new proceedings before the (now) Human Rights Tribunal of Ontario (HRTO) with improved evidence. The whole case, particularly paras 40-43, is essential reading for anyone contemplating a similar special diet underinclusiveness challenge.
While the original complaints (there where three complainants below) also involved claims that the regime was discriminatory for underfunding of the conditions that it did list in the Schedule, that issue was not before the court. However the above-stated test articulated by the Tribunal may be suited to address underfunding claims as well.
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