Executive Summary: Key Legal and Evidentiary Issues

• Appeal involved denial of a Special Diet Allowance (SDA) for a condition (ARFID) not listed in Ontario’s regulatory schedule.

• The Social Benefits Tribunal applied the Ball v. Ontario framework to assess whether the denial was discriminatory.

• Tribunal accepted ARFID as a disability but found insufficient evidence of increased food costs required by the condition.

• Appellant's request to introduce new evidence at the reconsideration stage was rejected due to lack of due diligence.

• Procedural fairness arguments were dismissed as rules were properly followed and no unfairness was found.

• Constitutional and UNCRPD claims were not heard due to lack of notice and introduction at the appeal stage.

Facts and background

Katrina Swerdfiger, a recipient of ODSP benefits, applied for a Special Diet Allowance (SDA) in August 2023 based on her diagnosis of Avoidant/Restrictive Food Intake Disorder (ARFID). Her application, completed by a nurse practitioner, indicated that ARFID had caused a weight loss of more than 10% of her usual body weight. The ODSP Director denied the request because ARFID is not a medical condition listed in the governing regulation (O. Reg. 562/05).

Swerdfiger appealed to the Social Benefits Tribunal. The Tribunal bifurcated the proceedings: Stage 1 addressed the merits of the denial, and Stage 2 considered whether the decision violated the Human Rights Code. In Stage 1, Swerdfiger conceded the Director’s decision was correct under the regulation. In Stage 2, she argued the denial amounted to discrimination under the Code. The Tribunal applied the four-part test from Ball v. Ontario (Community and Social Services), which requires proof of a disability, medical consensus on dietary modification, additional food costs, and lack of funding. The Tribunal found that although the first two and fourth criteria were met, Swerdfiger failed to prove that her dietary needs resulted in increased food costs compared to a regular healthy diet.

She requested reconsideration of the Stage 2 decision, introducing new evidence, including a dietician’s expanded report and a 2008 Special Diet Allowance Expert Review Committee (SDERC) report. The Tribunal denied reconsideration, finding the new evidence could have been presented earlier and that no legal error or procedural unfairness had occurred.

Outcome and legal reasoning

Swerdfiger appealed to the Divisional Court, raising 11 grounds, including procedural unfairness, misinterpretation of the regulations, constitutional violations, and inconsistency with international obligations. The Court’s jurisdiction under the Ontario Disability Support Program Act is limited to questions of law.

The Court dismissed all grounds. It found no procedural unfairness in the Tribunal’s application of its rules, noting that the respondent’s submissions were timely and responsive, and that the appellant had not been denied an opportunity to reply. The reconsideration test applied by the Tribunal was consistent with its practice direction, and the finding that Swerdfiger could have submitted the evidence with due diligence was not a legal error.

The Court held that regulatory eligibility for an SDA depends not just on weight loss but on the presence of a listed condition that may cause weight loss. Since ARFID was not listed, the regulation did not entitle her to the allowance. Additionally, although the Tribunal accepted that ARFID required dietary modifications, there was no sufficient evidence that these modifications led to additional food costs.

Arguments based on the similarity between ARFID and anorexia nervosa were rejected due to the absence of evidence showing that the appellant’s diet was supplementary rather than a replacement. The court affirmed the Tribunal's view that similarity in conditions does not entitle one to benefits absent the required evidentiary foundation.

Charter claims under sections 7 and 15 and arguments under the UN Convention on the Rights of Persons with Disabilities were not addressed because they were raised for the first time on appeal and the appellant failed to provide the required notice to the Attorneys General of Ontario and Canada.

Final disposition

The Divisional Court concluded that there were no legal errors in either the Tribunal’s Stage 2 or reconsideration decisions. The appeal was dismissed with no costs payable by either party.