June 2018
LEGAL UPDATE
ONTARIO ELECTION RESULTS
Following the 2018 provincial election, the Ontario PC government – under the leadership of Doug Ford – is tasked with addressing the many outstanding issues affecting the DS Sector. While Ford recently announced plans to invest $1.9 billion over 10 years in mental health, addictions and housing supports, no similar commitments have been made for people with developmental disabilities. Given Ford’s promises to cut $6 Billion in public sector spending, his past comments about people with disabilities, and the PC party’s failure to take part in the Provincial Election Forum on Developmental Services, this silence is deafening. We sincerely hope that support for Developmental Services will find its way into the PC government’s agenda, perhaps championed by Christine Elliott who was the Vice-Chair and the MPP responsible for the creation of the Select Committee on Developmental Services a few years ago.

What do the PCs mean for Ontario's DS Sector?
In the coming months, we’ll be looking for action from the PC government on the following issues:
  1. Social Assistance in the Province
Over the past decade, the Liberal Party has made significant progress in terms of reducing the social and economic barriers faced by people with disabilities. In the lead up to the recent election and in the 2018 Ontario Budget specifically, the Liberals prioritized people with developmental disabilities with the following commitments: 

  1. Investment of $1.8 billion over three years, starting in 2018, to expand services for people with developmental disabilities;
  2. Developing a 3-year plan to increase Ontario Works and Ontario Disability Support Program (“ODSP”) rates by 3% annually, starting in fall 2018;
  3. Prospectively amending the Regulations to the Ontario Disability Support Program Act (“ODSPA”) and the Ontario Works Act to exclude funds held in a RRSP or TFSA from the calculation of assets;
  4. Prospectively amending the Regulations to the ODSPA to eliminate the $10,000 limit on gifts and voluntary payments (including payments from trusts and life insurance policies);
  5. Pledging to simplify the current complex rate structure for welfare recipients who rent or own a home with a standard flat rate, and increasing income support for people experiencing homelessness, starting in 2020-21;
  6. Planning to increase limits on cash and other liquid assets to $15,000 for singles and $20,000 for couples receiving Ontario Works, and fully eliminating such limits for those receiving ODSP Benefits, during the 2019-20 fiscal year; and
  7. Piloting a basic income that provides support to lower-income people.

The current asset and income restrictions unduly limit the circumstances under which ODSP applicants may obtain support. These restrictions have the effect of forcing people with developmental disabilities and their families to live austere lifestyles in order to maintain eligibility for social assistance. The prospective amendments represent progress towards ameliorating the disproportionate rates of poverty faced by people with developmental disabilities.

While we recognize the tremendous work of the Liberals, there is still much to be done in terms of housing, legal capacity, income assistance, employment initiatives, and community participation and residential supports. Recipients continue to experience significant delays in accessing funds and services. The wait list for residential services is in the thousands, and it is not uncommon for adults to wait more than 20 years for a home of their own. 

It is our hope that the PC government not only carries out the Liberals’ initiatives, but also takes meaningful steps to resolve the systemic issues faced by people with developmental disabilities. Hopefully, the NDP – as the official opposition and strong advocate for the rights of people with developmental disabilities – will prove to be an effective check and balance.
2. The AODA
The goal of Accessibility for Ontarians with Disabilities Act, 2005 (“AODA”) is to achieve a fully accessible Ontario by 2025. In a letter to the Chair of the AODA Alliance, Ford stated that this goal is “one that would be taken seriously by an Ontario PC government.” While the Liberals are responsible for enacting the AODA, they have come under scrutiny for implementing it ineffectively. The PC government needs to elevate the status of the AODA from an awareness-raising exercise to a law that truly promotes and achieves inclusion and belonging. In doing so, we would encourage the PC government to give serious consideration to the Initial Recommendations Report of the Employment Standards Development Committee.
3. Funding for the DS Sector
In its April 2018 Budget, the Liberal government introduced significant new spending for the DS Sector, including, among other things:

  1. increases in Passport Funding (i.e. direct funding that people with developmental disabilities can use for respite and community participation supports);
  2. funding to offset the costs associated with Bill 148 for 2018-2019; 
  3. base funding increases for agencies responsible for delivering developmental services in Ontario; and
  4. investment in inclusive and accessible housing for people disabilities.

All told, the DS Sector investment amounted to $1.8 Billion over the next 3 years – significant relief to a sector that has been chronically underfunded for decades. At the same time, this investment does not alleviate many of the pressures that have plagued the sector such as Pay Equity liability, nor the new pressures that agencies and families face, such as long-term Bill 148 compliance and individualized funding administration risks and concerns to name a few. 

As many in the sector can attest, DS Sector Agencies have been forced to operate on extremely lean budgets. There is literally no fat left to cut from budgets that haven’t seen base funding increases in over a decade. Ford must be called upon to respect the commitments made in the most recent budget and to further invest in this sector and people with disabilities across the province. We need to send a concerted message that if Ford is looking for cost savings, he needs to look elsewhere!
4. Bill 148 - Employment & Labour Implications
Ford has been a vocal critic of the Liberal’s new employment and labour law reforms under the Fair Workplaces, Better Jobs Act (also known as “Bill 148”). He is not alone. Employers across the province, and agencies and families in the DS Sector in particular, have lamented many of the challenges posed by the bill. Even the Liberals appeared to regret at least one piece of this legislation, specifically the new Public Holiday Pay formula. This change was one of the most punitive and unfair aspects of Bill 148, particularly for agencies and families who often rely on part-time and casual workers for supports. The DS Sector let out a collective sigh of relief when the Liberals announced they would be rolling back their Public Holiday Pay formula for 18 months for further consideration.

Additional items left on the table by the Liberals that require Ford’s attention include:

  1. a review of the employment standards regulations such as exclusions applicable to managers and supervisors, which, unless updated will create significant new costs for agencies under Bill 148;
  2. a review of the residential care worker and domestic worker exemptions that apply for many live-in support workers that make individualized residential options for people with disabilities a real possibility. In our assessment these exemptions require clarification and revision in light of Bill 148, not elimination;
  3. potential expansion of “card-based” union certification to additional sectors;
  4. regulations detailing how the new on-call provisions of Bill 148 will apply to managers and supervisors;
  5. Regulations on exemptions that, in our opinion, should apply to DS Sector employers in respect of Bill 148’s new rules on call-in employees, taking into account the essential nature of developmental services;
  6. Supports and resources for families using individualized funding to engage workers and their employment related obligations.

Now Ford will have to determine exactly what he will do about these issues. The slogan “Ontario is Open for Business” implies that employers can expect some big changes to the Liberal’s labour friendly legislative legacy. Ford’s promises to prevent a $15 minimum wage may just be the tip of the iceberg. It remains to be seen, however, whether the PCs will give the interests of families and agencies in this sector due consideration along side the interests of big business. We will keep you informed as details begin to emerge from the PC’s previously detail deficient camp.
5. Transition of Sheltered Work
Connected with Bill 148 are changes recently adopted by the Liberal government that impact sheltered work and employment training programs for people with disabilities.

Bill 148 includes the following changes:

  1. It eliminates an existing exemption in the Employment Standards Act, 2000 (“ESA”), which provides that people who perform work activities in a simulated job or simulated work environment for the primary purpose of rehabilitation are not covered by the ESA and therefore not entitled to the minimum standards (i.e. minimum wage, vacation, public holidays etc.). This will take effect January 1, 2019.
  2. Bill 148 also eliminated trainee exemptions which previously allowed people to receive on-the-job training under certain conditions. Now, on-the-job training is only permissible if it’s through a high school, college or university. This change came into effect on January 1, 2018.

Eliminating Sheltered Work
There are proponents and detractors on both sides of the sheltered work issue. Many people with disabilities and their families oppose these changes because they have participated in sheltered work for many years and take pride in and gain a feeling of accomplishment from their work activities. Others have come to rely on the stipends or honorariums and are concerned that they won’t be able to obtain competitive employment in the community. 

On the other side of the coin, the reality is that these legislative changes were actually prompted by people with disabilities and their families advocating for an end to sheltered workshops. Over the last few years a number of people with disabilities have brought legal challenges alleging that sheltered work programs constitute discrimination under the Human Rights Code . Furthermore, many people with disabilities who previously took part in sheltered work programs and ardently defended them, are now outspoken advocates for the opportunity for growth and the greater fulfillment they have found since leaving these programs behind.

If we look beyond Ontario at work being done on inclusion and belonging, it is safe to say that sheltered work is a thing of the past. Ontario has taken a huge step towards equality for people disabilities and it would be a step backwards to reinstitute an exemption that devalued their equal worthy and dignity. We call on the new government to cultivate awareness, supports and opportunities within the DS Sector and in the community at large for people with disabilities to meaningfully engage, gain competitive employment and participate fully in society. We are proud to be supporting numerous initiatives by grassroots groups, social enterprises and for-profit employer partners in making inclusive and accessible community participation a reality.

The PC Party’s position on this has been that it will reconsider the exemption after community consultation. We encourage all stakeholders to participate in consultations to ensure that every voice is heard. 

On-the-Job Training
Unlike the elimination of the simulated/sheltered work exemption, the change to the “Trainee” language in the ESA could actually create additional barriers for people with developmental disabilities in making the transition to competitive employment. The Bill 148 changes eliminate “on-the-job” training outside the ambit of a high school, college or university. At present there are significant barriers for people with disabilities to take part in work-placements through mainstream academic institutions. Unless the government takes positive action to ensure accessible programs are developed for people with developmental disabilities within these institutions, many people in this community may be deprived of equal access to on-the-job training.

On-the-job, curriculum-based training that is transitional in nature and time-limited in scope, tailored to assisting people with developmental disabilities transition to competitive employment can be critical step for a person to obtain and maintain competitive employment in the community. We would encourage the PC government to:

  1. Consult with people with disabilities, their families, training and support organizations, academic institutions and employers;
  2. Explore the need for and potential structures of short-term, curriculum-based, transitional on-the-job training opportunities; and
  3. Address barriers that people with disabilities face in accessing traditional academia and competitive employment. 
Change - Let's Push for Better
To say that there was a mandate for change in the recent election is an understatement. It remains to be seen, however, whether that change will yield positive results for people with disabilities in this province. Given the dearth of information available as to the plans the PCs have for the DS Sector, it’s too early to tell. We can say, however, that the time has come for thoughtful leadership and meaningful change in relation to the province’s treatment of people with disabilities. As a society, we need to push the PC government to prioritize people with a developmental disability and develop a concrete plan with community stakeholders to implement solutions that will:

  1. End the cycle of poverty among people who have a developmental disability;
  2. End waitlists for residential supports, and for child and adult funding support;
  3. Provide operational funding for community agencies;
  4. Provide transitional funding to youth entering adulthood;
  5. Ensure services and supports are mandated so that, irrespective of where a person lives in Ontario or the government of the day, people who have a disability can get what they need to fully participate in the community;
  6. Better communicate the supports and services available to people who have a developmental disability to ensure every person can access the supports they need;
  7. Recognize the particular labour and employment challenges that DS Sector agencies face and accord agencies and workers in the sector the respect they deserve, acknowledging the essential services they provide to people with disabilities and their families;
  8. Address the unique challenges that families face in procuring supports and services from agencies and from private workers, and in administering individualized funding, by providing information, resources and supports to families to help them engage workers in a manner that does not put them at risk;
  9. Better support people with disabilities as they transition to competitive employment; and
  10. Respect the legal right that people with developmental disabilities have to make their own decisions.

We will continue to provide updates as the PC government develops policies and implements measures affecting people with developmental disabilities.