Current Legal Challenges

ISAC works with and on behalf of low income communities in Ontario to bring test case and appellate litigation to address issues of income security and poverty. Poverty is more likely to affect women, racialized and migrant communities, people with disabilities and other marginalized groups. As a result, much of ISAC’s litigation uses a human rights and anti-discrimination framework. Our litigation efforts focus on systemic problems relating to provincial and federal income security programs.

Information on ISAC's Case Selection Policy is available by clicking here.

Here are some of the cases we are currently working on:

Legal Challenges to the Special Diet Allowance

Cases at the Human Rights Tribunal of Ontario

ISAC and the Clinic Resource Office (CRO) are litigating approximately 170 special diet human rights applications before the Human Rights Tribunal of Ontario, involving 154 discrete medical conditions. We are arguing that the Special Diet Allowance program discriminates by underfunding or failing to fund certain medical conditions. Settlement negotiations are ongoing, and it is expected that a number of the medical conditions in issue will be settled without a hearing.

Commencing January 30, 2012, the Human Rights Tribunal will begin hearings of four new “Lead Cases” addressing the question of whether the Special Diet Allowance program discriminates by excluding funding for diets for Pre-Diabetes and Hepatic Disorders.

Cases at the Social Benefits Tribunal (SBT)

There are approximately 700 special diet appeals at the SBT. These appeals were placed on hold to give the Human Rights Tribunal time to adjudicate several “lead cases.”

On November 9, 2010, Hamilton Mountain Legal and Community Services along with ISAC and the CRO argued a special diet “Lead Case” before a three member panel at the SBT. In a decision released on January 10, 2011, the SBT adopted the legal test set out by the HRTO Lead Case (Ball v. Ontario (February 2010) (see below).

ISAC and the CRO are assisting the legal clinics to participate in a case-management process at the SBT in order to ensure these appeals are dealt with efficiently.

Background on the Special Diet Litigation

In 2006, the Ontario government overhauled the eligibility for the Special Diet Allowance, a benefit available to Ontario Works and ODSP recipients with special dietary needs. As a result of the changes to the program, many recipients found that their allowance was drastically reduced or was cancelled altogether.

ISAC and the CRO co-counseled with caseworkers from legal clinics around the province on Ball v. Ontario, the lead Special Diet case before the Human Rights Tribunal.

In a hearing that began in 2008, Cindy Wilkey, ISAC staff lawyer, and Lesli Bisgould (CRO) argued before the Human Rights Tribunal that the provincial government’s Special Diet Allowance Program discriminated against five complainants on the basis of disability.

In January 2010, the Human Rights Tribunal released its decision in the lead case, and found that the special diet program discriminated against individuals with disabilities 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.

To read the decision, follow this link:

http://www.canlii.org/en/on/onhrt/doc/2010/2010hrto360/2010hrto360.html

The Ontario government sought judicial review of the finding that failing to fund a special diet for “hypoproteinemia” was discriminatory. On February 24, 2011, the Divisional Court concluded that there was no evidence that a special diet for this condition was “generally recognized in the medical community”. As a result, the Court concluded that it was not discriminatory to exclude hypoproteinemia from the program. This condition has not been carried forward into the new special diet schedule.

The judgment explicitly states that it does not preclude other individuals with hypoproteinemia from bringing forward human rights applications with additional evidence

To read the decision in R. v. W.B. and S, follow this link:

http://www.canlii.org/en/on/onscdc/doc/2011/2011onsc288/2011onsc288.html

Employment Insurance: Migrant Workers and access to Parental Benefits

ISAC is co-counselling with the Niagara North Clinic to represent migrant workers in over 100 appeals before the Office of the Umpire.

Each year thousands of migrant agricultural workers come to Canada on a temporary basis through the Seasonal Agricultural Workers Program (SAWP). While they perform essential work, these workers have fewer workplace rights than other workers and often work in precarious and dangerous positions. SAWP workers pay into the Employment Insurance (EI) program, but because they are legally obligated to leave Canada at the end of their contract each year, they are not eligible for regular EI benefits during periods of unemployment. While they are eligible for EI parental benefits, due to barriers such as lack of knowledge about eligibility, misinformation, language barriers, literacy, long work hours in rural locations without access to government offices, it is very difficult for them to apply for parental benefits when they are eligible, or even to have knowledge about their eligibility for parental benefits.

In recognition of these barriers, the EI Board of Referees allowed most applicants to back date their claims for parental benefits. However, since 2009, the EI Commission has appealed almost all of these grants to the Office of the Umpire. A large grouping of cases from Niagara North was heard together in November 2011, and no decisions have been released as yet.

To read ISAC’s factum in support of the migrant worker appeals, click here.

Challenging Social Assistance Overpayments at the Social Benefits Tribunal: Ontario v. Surdivall

ISAC is representing Mr. Surdivall, a Respondent in a government appeal currently before the Divisional Court.

Mr. Surdivall was an ODSP recipient when an overpayment was assessed. He appealed to the Social Benefits Tribunal. The Tribunal recognized that there was support for Mr. Surdivall’s view that the overpayment was wrongly assessed but ultimately disagreed with Mr. Surdivall’s legal analysis. Because of his honest mistake and the financial hardship that recovery of the overpayment would case, the SBT ordered that Mr. Surdivall’s overpayment be cut in half, and that ODSP collect the debt at a rate of $10/month.

The Ministry has appealed to the Divisional Court. The legal issue is whether the SBT has the jurisdiction to order that an overpayment is unrecoverable. This case could have broad implications not only for future overpayments, but could also affect prior cases in which the SBT declared overpayments to be uncollectable.

The appeal has been scheduled to be heard on December 21, 2011.

To read ISAC’s factum, click here.

Access to Doctors: ISAC’s Intervention at the College of Physicians and Surgeons of Ontario

Dr. Raymond Wong is facing potential discipline before the College of Physicians and Surgeons in respect of the manner in which he completed Special Diet Allowance application forms. It is alleged that Dr. Wong breached the standards of his profession by failing to do testing to confirm that patients had the conditions indicated on the forms.

While ISAC takes no position in respect of Dr. Wong’s conduct, the clinic remains concerned about the potential impact this case could have on social assistance recipients, who rely upon physicians to complete forms that allow them to access social benefits.

ISAC has been granted the right to participate as an intervenor. Multiple hearing dates have been scheduled over the next several months. It is anticipated that closing arguments will be made in the summer of 2012.

To read the Panel's Decision granting ISAC the right to participate in the hearing, click here

To read ISAC’s written submission on the motion to intervene, click here.

To read the Notice of Hearing, click here.

Legal Challenge to the NCBS Clawback from families on social assistance

Since the implementation of the Canada Child Tax Benefit (CCTB) by the federal government in July 1998, the province of Ontario has deducted the National Child Benefit Supplement (NCBS) portion of this benefit from income assistance paid to families with children who are receiving social assistance. ISAC is representing three individuals in a Charter challenge to this deduction (commonly referred to as the “NCBS Clawback”) that was filed in December 2004...

For more information click here