The Divisional Court has allowed an application for judicial review, heard on September 16, brought by the applicants and the Ontario Human Rights Commission (OHRC), of a decision of the Human Rights Tribunal of Ontario (HRTO) denying special diet benefits to Joanne MacConnell.
Jo-Ann MacConnell alleged that the failure of the government to provide her with special diet benefits was discriminatory. The condition for which she sought benefits was ‘Unintended Weight Loss – Dysphagia/Mastication or Swallowing Difficulties.’
The HRTO dismissed her application. It found that she had not satisfied all parts of the test set out in Ball v. Ontario for establishing discrimination under the special diet program. The Tribunal assumed, for the purpose of analysis, that Ms. MacConnell’s weight loss was the result of her underlying conditions, and that these conditions were disabilities. Ms. MacConnell had not, however, met step two of the test. In the Tribunal’s view, no evidence had been presented to show that the Ontario medical community recommended that a person who has experienced weight loss from these conditions needed to increase their energy intake to a level above what they should consume in the absence of such weight loss.
Ms. MacConnell and the OHRC argued before the Divisional Court that the Tribunal’s decision was unreasonable; that the record disclosed some evidence in support of part two of the Ball test – in particular, the report of the Special Diets Expert Review Committee (“SDERC”), whose recommendation to include this diet on the Special Diet Schedule had not been adopted by Ontario.
The Court agreed with these submissions. It found that the SDERC Report constituted ‘some evidence’ in support of step two of the test. The SDERC report was commissioned by Ontario; Ontario chose the experts who sat on SDERC.
The Court rejected Ontario’s argument that the Tribunal’s decision met the test of reasonableness. In the Court’s view, the Tribunal’s reasons did not meet fulfill the justification, transparency and intelligibility requirement for reasons, a requirement stipulated by the Supreme Court in Dunsmuir. This was not a case, the Court held, where the Tribunal gave inadequate reasons that the court could supplement from the record. Rather, the Tribunal concluded that no evidence was provided, without giving any reasons to support this conclusion.
The Court remitted the matter to the Tribunal for a re-hearing.