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Human Rights (Ont) - Underinclusive Benefits. 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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