August 2018
SUMMER NEWSLETTER
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Legal Update and Firm News
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1. July 31, 2018, ODSP change reversal, cuts to social assistance, and cancellation of the basic income pilot
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In recent years, PooranLaw along with community organizations and advocates within the disability community have been actively involved in law reform efforts aimed at modernizing the Ontario Disability Support Program (“ODSP”) to promote independent, autonomous and dignified living for people with disabilities.
In Budget 2018, the former Ontario government announced a number of changes to ODSP which demonstrated positive steps towards improving the lives of ODSP recipients. These changes, which we summarized in a recent
legal update
, and which would have taken effect in fall 2018, included:
- Exempting funds held in a Registered Retirement Savings Plan (“RRSP”) or a Tax-Free Savings Account (“TFSA”) for the purpose of calculating a person’s assets for ODSP eligibility;
- Excluding any gift, voluntary payment, or payment from a trust or a life insurance policy from the calculation of income for ODSP recipients;
- A 3% increase to ODSP rates; and
- An increased earnings exemption, which allowed ODSP recipients who engage in employment activities to keep more of their earnings.
However, on July 31, 2018, the new PC government announced that it was cancelling all of the planned ODSP changes and instead would be embarking on a 100-day review of Ontario’s social assistance programs with the goal of creating a plan that will “help get people back to work.” In addition to the cancellation of the above-noted changes, the PC government also announced that it would be ending the Basic Income Pilot Project and providing only a 1.5% increase to ODSP rates (down from the 3% increase promised by the Liberals).
The impact of these changes on people with disabilities and their families will be lower ODSP payments, more restrictions on the ability of family members of people with disabilities to provide monetary gifts to their loved ones, and fewer opportunities for people with disabilities to save and plan for their futures using tools such as TFSAs and RRSPs.
In 100 days, the Ontario government will report back with an action plan that they believe will be sustainable and that is intended to lift people up and get them back in the workforce.
As many people with disabilities and their families know, ODSP’s strict limits on income and assets places a heavy administrative burden on ODSP recipients. For more than five years, PooranLaw and other stakeholders had been advocating the provincial government to eliminate limits on gifts and voluntary payments and to increase asset limit exemptions. The previous government’s proposed amendments in 2018 Budget appeared to be a positive step forward to help provide ODSP recipients with greater autonomy. The recent reversal of these planned enhancements by the current government is a disappointment to many in the disability community.
Similarly, the plan to wind down the Basic Income Pilot also appears to be a step backwards with respect promoting financial security for people with disabilities in Ontario. Recipients of the basic income received a monthly payment of $1,400 plus an additional $500 per month if they were a person with a disability. As these payments were made without conditions, recipients of basic income were not required to undergo the financial reporting requirements necessary for ODSP or Ontario Works, giving basic income participants greater freedom to allocate their funds based on their needs and to save for the future.
We are disappointed with the cancellation of this project and look forward to reviewing the outcome of the government’s planned audit.
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2. Canadian Association for Community Living Senate Committee submission on the RDSP and the Disability Tax Credit
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PooranLaw, on behalf of the Canadian Association for Community Living, made oral submissions to the Standing Senate Committee on Social Affairs, Science and Technology in February in relation to the Registered Disability Savings Plan (“RDSP”) and the Disability Tax Credit (“DTC”). The Standing Committee recently released its
report
and recommendations. Here are a few of the key developments:
i.
Barriers to Opening RDSPs
One of the most important submissions made by PooranLaw was in relation to the barriers many people with disabilities face in opening their own RDSPs (with or without support). Specifically, many people ae prevented from opening an RDSP (and obtaining the valuable grant and bond contributions from the government) where they are deemed not to be “contractually competent”).
In several provincial and territorial jurisdictions, an individual who is deemed not to be “contractually competent” and does not have a parent, spouse or common law partner to act as the plan holder, must undergo a formal capacity assessment, be found incapable of managing property, give up all of their decision-making rights, and be the subject of a guardianship order in order to benefit from an RDSP. This process would not be necessary but for gaps in the legislation. People are being forced to choose between giving up the right to exercise their legal capacity or to forego tens of thousands of dollars in government contributions.
Consistent with our submissions, the Senate Committee ultimately recommended that the Government of Canada immediately begin working with the provinces and territories to reform legislation with respect to legal capacity and representation to ensure that all people with qualifying disabilities over the age of 18 can access the RDSP program.
ii. 10-Year Rule
We also made submissions calling for a review of the “10-year rule” and the formula applied to withdrawals from RDSPs. These two elements currently result in many beneficiaries not being able to fully benefit from their savings. The Senate Committee recognized this problem and recommended that beneficiaries be allowed to access funds from their RDSPs 5 years after the last government contribution, rather than the current ten-year waiting period. While we applaud the Committee’s recognition of this issue, we do not believe that a reduced waiting period on its own will address the issue and we recommend exploration of additional options.
iii. Application Process Harmonization
In relation to the duplicative and complex application process for the federal Disability Tax Credit and RDSPs and provincial/territorial government entitlements, benefits and programs (such as ODSP), PooranLaw endorsed the idea that the federal government should work with the provinces and territories to harmonize the application process. The Senate Committee adopted this recommendation in full.
In our view, the Standing Senate Committee on Social Affairs, Science and Technology was a success as it provided the opportunity for individuals and organizations to make submissions relating to the pressing issues for people with disabilities, their families, and their communities. Many of these submissions were adopted into Committee recommendations. Now its up to the federal government to review these recommendations and take action.
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3. Employment and Labour Law Developments in the DS Sector
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PooranLaw continues to speak out about, actively monitor and provide up to date legal information to employers in the Developmental Service Sector about Ontario’s labour and employment law. Here are a few of hot issues we’ve spoken on and are actively tracking in the sector:
- Changes to the Employment Standards Act, 2000 that came in under the Liberal government’s Bill 148. Some of those changes were already being rolled back before the Liberals left office (ex. Public Holiday Pay formula) and the Conservatives ran on additional rollbacks (ex. freezing the minimum wage). We are actively tracking the government’s movements on these issues and will continue to keep our readers informed.
- MCSS funding increases to offset the costs of Bill 148 for DS Sector employers, including families in receipt of direct funding. The funding that was provided by the Liberals for this purpose were in many cases not sufficient to offset the increased costs for MCSS funded employers, and, even more problematic, the funding was not annualized, which means that while employers may be able to meet some of their Bill 148 related costs this year, they won’t have the funding to meet those continuing costs in the years to come without funding commitments from the government to meet these legal obligations moving forward.
- Case law developments when it comes to interpreting new employment standards legislation, interpreting employment agreements, just cause for termination and harassment.
- Collective bargaining developments in the wake of Bill 148 and sector stabilization funding, initially promised as annualized funding and now rumored to be merely fiscal.
- Changes to WSIB policy on chronic mental stress and the implications for the DS Sector.
- New union organizing pressures faced by union free organizations in the DS Sector.
- Support for families who are at risk of being deemed to be employers of the support workers they engage to provide support to a loved one with disabilities.
Our labour and employment team will continue to monitor these developing issues and will provide updates as new information becomes available. Stay tuned!
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Advocacy and Community Appearances
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PooranLaw founder, Brendon Pooran, was recently asked to be a part of a special town hall session hosted by the CBC radio program White Coat, Black Art. This national broadcast gave caregivers and families a chance to voice their struggles with the evaporation of services and supports as their “high-needs” children age, long wait lists, the spread of services across multiple government ministries, and confusion about how to navigate the system and where to turn when circumstances change.
As an expert panel member, Brendon made practical suggestions for families and professionals. He advocated for the formation of microboards, which can be described as a “group of family and friends that come together with an individual to form a small not-for-profit corporation.” With a microboard, the chosen group of supportive friends and family work together to help the individual make decisions, and “the statistics show … they do facilitate a good life for people,” said Brendon. Brendon also recommended families start planning early and consider savings vehicles like the RDSP and planning instruments, such as Henson trusts.
When the issue of a national strategy on these issues was raised in the discussion, Brendon proposed a forum between federal, provincial and territorial jurisdictions—a vital potential step to solving these systemic issues.
National attention for this important issue and for the rights of people with disabilities and their families’ needs is imperative. PooranLaw is committed to continuing to work with families to shine a spot light on the challenges they face and to pressuring all levels of government for improved support and funding for people in this sector.
To listen to Brendon on White Coat Black Art, please click
here.
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5. Inclusion International
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Inclusion International is the international network of people with intellectual disabilities and their families advocating for the human rights of people with intellectual disabilities worldwide. The organization hosted its 17th World Congress in Birmingham, UK, on 30 May – 1 June 2018. This Congress provides opportunities for families and self-advocates to build up their leadership skills and networks and pursue inclusive communities.
At Inclusion International, Brendon was part of a panel session entitled
“Justice Denied”
that explored how the justice system discredits people with intellectual disabilities and the huge ripple effect this has for people with intellectual disabilities who are victims and those who are offenders. The session was related to a broader 2-year project being administered by the Institute for Research and Development on Inclusion and Society (“IRIS”) entitled Family Violence & People with Disabilities: Strengthening Access and Response to the Justice System.
Presenters spoke to the need for systemic change in order to properly assess and recognize credibility and provide necessary accommodations. As Brendon shared at the session: “Justice procedures are a balance between the rights of both sides. In justice procedures we cannot give up on having the person herself tell the story, no one else can tell it for her.”
This important issue is fundamentally linked to the gaps in the law of consent, capacity and legal decision making, and to entrenched societal barriers when it comes to recognizing, respecting and honoring the experiences, insights and wishes of people with disabilities. We invite our readers to share their experiences with us
here
to aid in our advocacy efforts.
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6. PooranLaw represents CACL and People First at the Supreme Court of Canada
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On April 25, 2018, PooranLaw represented the Canadian Association for Community Living (“CACL”) and People First of Canada (“PFC”) at the Supreme Court of Canada in the case of
S.A. v. Metro Vancouver Housing Corporation
.
CACL is a national not-for-profit organization with a long history of advocating for the interests of persons with intellectual disabilities and is one of Canada’s top ten largest charitable organizations with over 300 local associations and forty thousand members. PFC is a self-advocacy organization whose membership consists of people who have been labelled as having intellectual disabilities, with branches in each of the ten provinces and three territories. Due to their expertise in representing the interests of the intellectual disability community, CACL and PFC were granted intervenor status by the Supreme Court in this important case.
The core issue of the
S.A. v. Metro Vancouver
case is whether a discretionary
Henson
trust should be considered an asset for the purpose of determining a person’s eligibility for means-tested social assistance programs (i.e. eligibility based on a person having very limited personal assets).
A
Henson
trust is a form of discretionary trust that gives the trustee, not the beneficiary, the absolute discretion in determining how the assets of the trust are to be distributed. Since the beneficiary of the trust cannot independently access the assets contained in the trust, the assets are generally not considered when determining whether a person with a disability is eligible for means-tested social assistance programs.
Ever since the Ontario Court of Appeal’s 1989 decision in
Ontario (Director of Income Maintenance, Minister of Community & Social Services) v. Henson
, it has been a common practice for
Henson
trusts to be considered exempt as assets for the purpose of calculating social assistance eligibility (such as for ODSP purposes). Countless families have structured their estates to include a
Henson
trust to benefit their loved one with a disability without impacting their loved one’s ODSP entitlements.
However, following the January 2017 decision of the British Columbia Court of Appeal (“BCCA”) in
S.A. v. Metro Vancouver Housing Corporation
, there is a real risk that this approach could change. In that case, S.A., a person with a disability, became the beneficiary of a
Henson
trust that was set up in her father’s will. S.A. lived in a subsidized housing unit owned by the Metro Vancouver Housing Corporation (“MVHC”). MVHC demanded the details of S.A.’s
Henson
trust in order to determine her ongoing eligibility for her rent subsidy and took the position that the trust was not an exempt asset. S.A. appealed the MVHC decision, and eventually the BCCA decided in favour of MVHC, supporting the position that being a beneficiary of a
Henson
trust could disentitle someone from receipt of social assistance benefits. S.A. again appealed, and this case was heard before the Supreme Court of Canada on April 25, 2018.
Given the significance of this issue to the disability community, PooranLaw was proud to represent PFC and CACL as intervenors in this case. On behalf of our clients, we argued in favour of Henson trusts not being considered assets for the purpose of calculating eligibility for social assistance programs. As intervenors, we were able to bring the Court’s attention to the unique perspective of the intellectual disability community, highlighting how many Canadians with intellectual disabilities could be at risk of losing essential social assistance benefits and causing great harm to this community should the BCCA decision be upheld.
The Supreme Court has not yet released its decision in the
S.A.
matter, but we anticipate that we should be in receipt of the decision by early fall 2018. We will provide an update on this issue, and its implications for the disability community, upon the release of the
S.A.
decision.
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7. Congratulations to Nicole Chrolavicius, Counsel to PooranLaw, who was recently featured as a “Woman Leading in Law”
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PooranLaw would like to congratulate Nicole Chrolavicius, Counsel to PooranLaw, who was recently featured as a “Woman Leading in Law” with Cowling Legal Freelance.
In this feature, Nicole details some of her career highlights, how she successfully re-entered the practice of law after an extended absence, and her reflection on some of the unique challenges facing women-in-law today. Well done Nicole! Click
here
to read more.
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8. PooranLaw would like to introduce our newest Associate, Susan Munn
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PooranLaw is very excited to welcome Susan (Sue) Munn to the team as a Senior Labour & Employment Associate. Susan joins PooranLaw after 10 years as a labour and employment litigator in the public sector and we are excited to offer her wealth of experience and commitment to our clients. We asked Sue to share a few words about her passion for the law, public policy and community service. Here's what Sue had to say:
"I definitely didn’t become a lawyer to shuffle financial records for profit driven nameless, faceless corporations. Helping people in the community solve real-life problems is what gets me out of bed in the morning. I love being able to gather the facts from my client to really understand their circumstances, apply my expertise, and collaborate on solutions that get my client where they want to be. I also have to admit that I get a thrill from doing a detailed cross-examination, getting a grievance dismissed, or making a passionate closing argument in a trial.
One of the highlights of my career occurred pretty early on, when I had the opportunity to be part of a large policy development team. I was involved in all aspects of the development of the policy, from project management to consultations to legal analysis. Being able to be part of this team was so fulfilling because I had the opportunity to generate ideas and see those ideas through to implementation, which included responsibility for conducting extensive training sessions on the policy across the province after it was put into place. It was gratifying to go out to connect with client groups to share what we had done together.
I’ve also done countless grievance arbitrations at this point and it’s always exciting when the argument you’ve made really resonates with the arbitrator. Recently, I was successful in arguing to have a dismissal of a long-term employee upheld when they had engaged in serious misconduct in the workplace in relation to their failure to properly care for a vulnerable person in custody. It was not a happy situation for anyone involved but at the end of day, it was gratifying for justice be served in those difficult circumstances.
I’m excited to bring my skills to PooranLaw. Particularly, PooranLaw’s employer clients do so much good for the communities they serve and I’m looking forward to assisting them with their goals in public service. I’m also looking forward to expanding my areas of practice, in ways that weren’t open to me in my former role. I have a particular interest in doing advocacy related to public policy issues and public interest litigation. I can’t wait to get to work!"
Thanks Sue! For more information about Sue or if you’d like to connect with her directly,
click here
.
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We welcome your feedback
If you have information to share or questions about our content, we invite you to contact us at the e-mail address or phone number below. We look forward to hearing from you!
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