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ODSP - Special Diet. Swerdfiger v. Director of the Ontario Disability Support Program
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.
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Did the Tribunal err by failing to find that evidence of the consumption of oral nutritional supplements is sufficient evidence of costs?
[43] The appellant introduced evidence at the hearing that she was consuming three oral nutritional supplement drinks per day, costing $412.30 per month. The Tribunal accepted this evidence, but held that it was insufficient to satisfy the third Ball criterion. The Tribunal Member wrote, at para. 45, that:[T]he Appellant failed to provide evidence identifying a specified prescribed, or recommended amount or quantity regarding the supplement drinks from her medical providers. The Appellant also failed to lead evidence on the costs of the Apellant's modified diet in contrast with those costs of a regular healthy diet as little evidence was presented with respect to the cost of a regular healthy diet. [44] The appellant also argued before the Stage 2 Tribunal that the Ball test had been modified by the decision in Buklis. She submitted that Buklis had eliminated the onus of proving costs and, instead, only required that an applicant demonstrate an increase in consumption to prove additional costs.
[45] Without accepting the appellant's argument about the effect of Buklis, the Tribunal considered the appellant's evidence of consumption. However, the Tribunal found that this evidence was insufficient even to meet the purportedly different test in Buklis. At para. 49 of the decision, the Tribunal Member wrote:[T]he Tribunal finds insufficient evidence to support or suggest that the Appellant is required to increase consumption in excess of a regular healthy diet as outlined in Buklis. The Appellant’s evidence did not support that the Appellant’s supplementation is over and above a regular healthy diet. It was not made clear to the Tribunal if the Appellant consumed a regular healthy diet and required additional supplementation, or if the Appellant was simply relying on the supplements in place of a regular healthy diet. [Emphasis in original.] [46] Once again relying on the SDERC report, the appellant argues before us that, using the costing methodology employed by the Expert Review Committee to come up with its recommendations, the cost of three oral nutritional supplements per day presently exceeds the cost of even a basic needs diet. Therefore, she submits, there was sufficient evidence before the Stage 2 Tribunal to satisfy either the Ball or the Buklis test.
[47] In my view, for the same reasons that the court is unable to consider the appellant's other SDERC report-based arguments, it is also unable to consider this one.
Did the Tribunal err by not granting the appeal based on ARFID's similarity to anorexia nervosa?
[48] The appellant argues that, by failing to find that a recipient affected by ARFID qualifies for an SDA, the Stage 2 Tribunal's decision resulted in a legal “absurdity” because ARFID is closely related to anorexia nervosa, which is a disability recognized in the Schedule. Again, she bases her argument on the SDERC report, in which the committee listed certain MCCWLs. Among the conditions were “Psychiatric Diseases [for example: anorexia nervosa, schizophrenia]”. As mentioned above, the appellant argues that this wording ought to be interpreted in such a way that all psychiatric diseases causing unintended weight loss should be included in the Schedule, including ARFID. Instead, only anorexia nervosa is listed.
[49] For the reasons expressed earlier, because this argument is based on the SDERC report and is being made for the first time on appeal, I would decline to consider it.
[50] Nonetheless, although the SDERC report was not before the Stage 2 Tribunal, the appellant did argue before Tribunal that ARFID should be recognized as a MCCWL based on its similarity to anorexia nervosa. At the Stage 2 hearing, she based her argument on the evidence of the nurse practitioner that ARFID's similarity to anorexia can lead to a similar failure to meet nutritional needs and, therefore, to weight loss. The appellant also relied on the similarities between the two medical conditions as described in the Diagnostic and Statistical Manual of Mental Disorders, 5th ed., published by the American Psychiatric Association (“DSM-5”). The DSM-5 had been relied upon by the Stage 2 Tribunal to find that the appellant had satisfied the second Ball criterion, i.e. that there is a general recognition in the medical community that modifications to a regular healthy diet should be made because of the disability.
[51] The Stage 2 Tribunal acknowledged the similarities and overlap between ARFID and anorexia nervosa. However, Tribunal Member Brown held that these were not enough to bridge the evidentiary gap relating to the third Ball criterion, namely, whether the appellant was supplementing a regular healthy diet, rather than substituting for one.
[52] I see no legal error in the Tribunal Member's conclusion on this issue. His decision was based on the framework set out in Ball, which required the appellant to establish not only that she has a disability that requires modifications to a regular healthy diet, but also that the diet leads to additional food costs as compared with a regular healthy diet for a person without the disability. The Tribunal’s conclusion was supported by the evidence, or rather, the lack of evidence. I agree with the Tribunal Member that it was not open to the appellant to “bootstrap” her medical condition onto another medical condition to satisfy the third criterion in Ball.
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