In 2006, the Ontario government overhauled the eligibility rules for the Special Diet Allowance, a benefit available to Ontario Works and ODSP recipients who face extra costs because of special dietary needs. Many recipients found that their allowance was drastically reduced or was cancelled altogether. The lack of funding for the foods they needed was a serious threat to their health.
ISAC, the Clinic Resource Office (CRO), and many community legal clinics worked together to bring hundreds of special diet human rights cases to the Human Rights Tribunal of Ontario and the Social Benefits Tribunal. We argued that the Special Diet Allowance program was discriminatory because it did not provide enough funding for some medical conditions and excluded other conditions altogether.
Cases at the Human Rights Tribunal of Ontario
As a result of the work of ISAC and the CRO at the Human Rights Tribunal, the Tribunal agreed that the Special Diet Allowance program was discriminatory and released a series of “lead case” decisions:
- Ball v. Ontario: This case established the legal test that must be met in order to show that the special diet allowance is discriminatory. The Tribunal found that ODSP discriminated by under-funding the diets required for hypertension, hypercholesterolemia, and extreme obesity and by excluding hypoproteinemia. The Tribunal found that it was not discriminatory for the program to exclude funding for nutritional supplements, Prader-Willi like symptoms, depression and Post-Traumatic Stress Disorder. ODSP challenged the finding about hypoproteinemia and the Divisional Court overturned the finding of discrimination.
- Martel v. Ontario: The Tribunal ruled that ODSP discriminated by first underfunding and later failing to provide an allowance for Hepatitis C. The condition has since been added to the Special Diet Allowance Program at a rate of $88 per month for those with a Body-Mass Index (BMI) of less than 25. ODSP’s challenge to this decision was dismissed by the Divisional Court. To read the Divisional Court’s decision, click here.
- Crocker v. Ontario: The Tribunal ruled that when paying retroactive benefits for a Special Diet Allowance discriminatorily denied, ODSP must pay the retroactive benefits in full to the recipient. The retroactive benefits cannot be applied against outstanding overpayments.
- Buklis v. Ontario: The Tribunal ruled on eleven different conditions:
- Cardiovascular Disease and Non-Alcoholic Fatty Liver Disease (NAFLD) were dismissed because the lead claimants were receiving a Special Diet Allowance for other conditions that met the dietary needs of their cardiovascular disease at the same time.
- Chronic Constipation, Diverticular Disease and Dumping Syndrome were dismissed because the dietary recommendations for these medical conditions overlapped with a “regular healthy diet”.
- Gallstones, Unintended Weight Loss (Congenital Heart Disease) and Unintended Weight Loss (Hepatitis C) were dismissed because the Tribunal concluded there was insufficient evidence to show that there is general recognition in the Ontario medical community that a special diet is required as treatment. Despite this finding, in December 2014 the government added Unintended Weight Loss due to Chronic Hepatitis C (BMI<25) with interferon treatment to the program.
- Prader-Willi Syndrome was granted. This condition was added to the Special Diet Allowance Program in January 2013 at a rate of $200 per month.
- Unintended Weight Loss (Dysphagia/Mastication or Swallowing Difficulties) was dismissed because the Tribunal concluded there was insufficient evidence to show that there is general recognition in the Ontario medical community that a special diet is required as treatment. ISAC and the CRO challenged this decision at the Divisional Court. The Divisional Court found that the Tribunal made a mistake when it said that there was no evidence to support the need for a special diet and ordered the Tribunal to re-hear the case. The case has since been withdrawn.
- Unintended Weight Loss (Renal Failure) was granted. This condition was added to the Special Diet Allowance Program in January 2013 at a rate of $191 per month for weight loss between 5-10% and $242 per month for weight loss greater than 10%.
After we initiated litigation, in April 2012 the government agreed to include pre-diabetes in its definition of diabetes. This means that people who have pre-diabetes are eligible for the diabetes special diet allowance. (See our information bulletin on this here: Special Diet Allowance - Pre Diabetes - You May Now Be Eligible - 2012).
Again, after litigation was initiated by another community legal clinic on Rett Syndrome and by ISAC on Congenital Heart Defect, in December 2014 the government also added Rett Syndrome (BMI <18.5) and Congenital Heart Defect (have had a Ross procedure or arterial switch procedure or have coexisting coarctation of aorta). See the announcement here.
Cases at the Social Benefits Tribunal of Ontario
In addition to our work at the Human Rights Tribunal, ISAC provided advice to community legal clinics across the province on their outstanding appeals, to help them get settlements for their clients who received a smaller allowance than they ought to have received. ISAC also worked with the Social Benefits Tribunal to identify people who were entitled to a special diet settlement who needed legal representation. These people were referred to ISAC for representation, and we settled 17 cases. Through this work, the Ontario government has paid out tens of thousands of dollars that were originally wrongfully denied to ODSP and Ontario Works recipients.
– November 16, 2015