Test-case and appellate litigation are key tools that we use to advance our strategic plan. We work closely with caseworkers in community legal clinics across the province to identify issues and potential legal cases, and apply an equity framework and a human rights lens to guide our decision-making around which cases to take on and which legal arguments to make. Our litigation efforts focus on resolving systemic problems in provincial and federal income security programs.
Our Case Selection Criteria is available here.
Click on the titles below for information about some of the cases we are currently working on and have worked on in the past. They are listed in order of either year of the decision or year of the outcome which concluded the case.
The Income Security Advocacy Centre and Lake Country Community Legal Clinic are jointly representing an Indigenous Elder in a legal challenge to the discrimination and wrongful termination he experienced while working as an Elder for the Correctional Service Canada.
The Elder is Kanien’kehá:ka (Mohawk) of Ohsweken (Six Nations) territory. He was hired to work as an Elder/Cultural Advisor in the Indigenous “Pathways Program.” While working in a penitentiary, he experienced continuous racism, discrimination, harassment and a hostile work environment. He was regularly subjected to derogatory comments from other staff and managers, including being mistaken as an inmate despite clearly wearing identification as an Elder. He brought his concerns to his managers, but no action was taken.
After months of unfair treatment, the Elder was told that a correctional officer had accused him of misconduct. He strongly rejected the accusation and wanted to defend himself. Instead of being given a chance to respond, he was marched out of the penitentiary and was fired a few weeks later.
The clinics are working with the Elder to challenge this mistreatment through both a lawsuit and a human rights complaint, both of which were started in June 2018.
2021 & 2022 Cases
Social assistance recipients have a statutory right to appeal certain decisions about their benefits to the Social Benefits Tribunal. However, there are some decisions that they cannot appeal. For example, decisions about access to “discretionary benefits” to cover dental, medical, and other expenses cannot be appealed, nor can decisions that refuse an extension of time for reconsideration of an OW or ODSP decision. These are important decisions that can affect access to social assistance, medical care, and quality of life. However, social assistance recipients’ only option in these situations is to bring an application for judicial review at the Ontario Divisional Court. Therefore, judicial review applications should remain reasonably accessible.
On June 7, 2022, the Ontario Court of Appeal released its decision in Yatar v. TD Insurance Meloche Monnex, 2022 ONCA 446. This decision concerned an appeal of a Divisional Court decision that stated that where a person has some statutory appeal rights, courts will hear their judicial review application only in exceptional circumstances, if at all. This statement created a new and higher bar to challenge decisions that cannot be appealed. It potentially made applications for judicial review more difficult for social assistance recipients to pursue. ISAC intervened before the Ontario Court of Appeal to highlight this risk and the negative impact on social assistance recipients if they cannot access judicial reviews.
ISAC welcomes the Ontario Court of Appeal’s decision. The Court removed the new restriction on judicial reviews of exceptional circumstances, if at all. The Court also clarified that the Divisional Court’s new restriction was “unfortunate and unnecessary” and gave “rise to confusion regarding access to judicial review as a remedy in cases where there is a statutory appeal.” The Court confirmed that “judicial review is a discretionary remedy.”
The Court of Appeal also set out a new test for when courts should hear judicial review applications from parties who have statutory appeal rights. In our view, under the new test, social assistance recipients who have been refused discretionary benefits or extensions of time for reconsideration will likely have their judicial review application heard. However, how courts will apply the new test remains to be seen.
Finally, ISAC agrees with the Court’s recommendation that the Divisional Court should issue a Practice Direction on the process for filing a statutory appeal and a judicial review at the same time. If implemented, this may be helpful for social assistance recipients and low-income tenants in Ontario or those who represent them.
Read our legal arguments here.
Read the Court of Appeal’s decision here.
In October 2020, the Supreme Court of Canada heard a case about whether courts should grant sealing orders over court files that contain an individual’s private and sensitive information. ISAC successfully intervened in the case and made both written and oral submissions before the Supreme Court. ISAC’s submissions highlighted the harms that may arise when vulnerable individuals’ personal or sensitive information is shared publicly as a result of their engagement in the legal system. ISAC argued that there is a public interest in granting sealing and confidentiality orders, in appropriate circumstances, to protect the privacy of low-income and vulnerable individuals and ensure that they can continue to access courts and tribunals.
ISAC is grateful to Ewa Krajewska, Teagan Markin and Mannu Chowdhury of Borden Ladner Gervais LLP, who represented ISAC before the Supreme Court of Canada and provided excellent submissions on ISAC’s behalf.
Read the Supreme Court’s decision by clicking here.
2019 & 2020 Cases
In Ontario, if your boss refuses to pay the minimum wage or violates your other employment rights, you can go to court or contact the Ministry of Labour. But can your boss make you sign an agreement to give up that right?
On November 6, 2019, the Supreme Court of Canada will hear the case of Uber drivers who were forced to accept a “mandatory arbitration agreement” when they signed up to be drivers on the Uber app. According to Uber, this means that the drivers have given up the right to complain to the government if they have any disputes with the company. Instead, they must go before a private decision-maker in Amsterdam – in a process that is both secret and expensive.
The Income Security Advocacy Centre (ISAC) and Parkdale Community Legal Services (PCLS) have teamed up to intervene in the case to argue that the workers’ right to seek justice in our public institutions cannot be signed away or privatized. Otherwise, employers may be able to sidestep Ontario’s laws that guarantee workplace rights.
The consequences of mandatory arbitration agreements would be serious, especially for low-wage precarious workers. These workers are already more likely to experience illegal working conditions and are also more likely to find it difficult to navigate the legal system. If they are shut out from our public institutions and forced into the unfamiliar world of private arbitration, where the laws of Ontario may not be applied, they will be left even more vulnerable.
For more information on this case, read our blog post about the decision of the Court of Appeal for Ontario, which is being appealed to the Supreme Court.
On Wednesday, November 6, 2019, ISAC’s lawyer Nabila Qureshi will argue at the Supreme Court that employers should not be permitted to impose mandatory arbitration agreements on their workers.
A video of the live-stream is here.
To read our legal argument, click here.
The Supreme Court’s Decision:
In a ground-breaking decision, the Supreme Court of Canada made it easier for workers to challenge unfair contractual terms imposed by companies that hire them, whether or not they are in a formal employment relationship. The court sided with Uber drivers and reached a decision that addresses the concerns about access to justice highlighted by ISAC and PCLS in their submission before the court.
The decision in Uber Technologies Inc. v. Heller is a win for drivers who were forced to accept a standard “mandatory arbitration agreement” when they signed up on the Uber app. According to Uber, this meant that the drivers could no longer go to court or the Ministry of Labour with workplace disputes. Instead, they would have to go before a private decision-maker in Amsterdam, in a process that is both secret and expensive. In a 8-1 decision, the Supreme Court decided that the agreement could not stand, and the drivers could go ahead with a class action to determine whether they are employees.
“This decision strengthens protections for workers who may be taken advantage of by the companies that hire them,” said John No, staff lawyer at PCLS. “To show that an agreement was unconscionable and therefore invalid, a worker will no longer be required to prove that their employer knowingly took advantage of the worker’s vulnerable status. This is an important victory for workers.”
In an earlier decision in this case, the Court of Appeal for Ontario had found that mandatory arbitration agreements imposed by employers are always illegal because they violate Ontario’s Employment Standards Act. The Supreme Court did not disagree with that ruling, but left that issue to be determined on another day.
Unfortunately, people on social assistance, especially single mothers sometimes face stereotypes and prejudice. While decision-makers are supposed to act with an open mind and treat people fairly sometimes they fail to do so. The Social Benefits Tribunal is required to record all appeal hearings so that if a person believes their appeal hearing was unfair, they can point to the recording to show how.
The Income Security Advocacy Centre and Community Advocacy and Legal Centre worked together to help a single mom who was denied disability benefits by ODSP and the Social Benefits Tribunal. At her appeal hearing the Tribunal Member suggested that she was trying to take advantage of taxpayers because she failed to take her medications. We argued that the Tribunal Member’s comments showed bias towards the person and the outcome of her case. Because of his belief the Tribunal Member ignored the fact that she had memory and concentration problems, stemming from her disability, which led her to sometimes forget to take her pills.
After starting an appeal at the Divisional Court the Social Benefits Tribunal said they could not provide a hearing recording or notes in this case as they are required to do. Since the person could not properly appeal the unfairness of her hearing without this information the clinics and ODSP agreed to ask the Court to order a fresh hearing, which it did.
To read the Notice of Appeal, click here.
The eligibility rules for Ontario Disability Support Program (ODSP) benefits do not require a person to undergo specific medical tests, treatments or referrals. Instead, decision-makers must look at how a person’s health problems impact them overall. In doing so they are supposed to rely on the information given by the person and by the health care providers treating them.
The Income Security Advocacy Centre and the South Asian Legal Clinic of Ontario are working together to assist a person who was denied disability benefits because he was not getting enough medical treatment or tests. We are arguing that it is his health care providers (and not ODSP or the Social Benefits Tribunal) that are most qualified to make treatment decisions. We are also arguing that the Tribunal failed to consider his personal situation. By only focusing on what treatment he was not getting the Tribunal ignored his actual health problems. It also didn’t consider the personal reasons he couldn’t get some kinds of treatment, such as financial cost and the fact that some treatments did not work for him in the past.
Another problem was that the Tribunal rejected what the person said at his appeal hearing even though he was consistent with the information given by his doctors. The Tribunal said that because his hearing was three years after he submitted his ODSP application, too much time had passed for his statements to be reliable. We are arguing that this was unfair, especially since none of the delay in scheduling his appeal hearing was his fault.
A court hearing has been scheduled for fall 2019.
To read our legal arguments go here.
When a person with a disability appeals a decision to refuse them ODSP benefits, they have the right to have their appeal hearing conducted fairly. The Tribunal must listen to their testimony with an open mind before making a decision. It must also consider information about the person’s health conditions in light of their personal situation.
The Income Security Advocacy Centre and East Toronto Community Legal Services worked together to represent a single mother who was refused ODSP benefits. We argued that the Social Benefits Tribunal jumped to the wrong conclusion that she stopped working because she did not have childcare, rather than because of her health (as her doctors explained). Instead of giving her a chance to correct the Tribunal’s conclusion and fully explain her disability, the Tribunal suggested she cancel her appeal. When she did not and proceeded with her hearing the Tribunal responded to her explanations with disbelief.
We argued that the Tribunal’s conduct raised an appearance of bias because it prejudged the outcome of her case early in the hearing. We also argued that this led the Tribunal to misunderstand the evidence and ignore its proper context. For example, the Tribunal said her answers to questions were unclear when her medical reports showed she had memory problems due to trauma as a survivor of domestic and childhood abuse.
After starting an appeal at the Divisional Court, the case was resolved without a hearing.
To read our legal arguments, click here.
The Ontario Drug Benefit is an essential program that ensures that social assistance recipients and seniors can access the medications they need. However, the Ontario Drug Benefit does not cover the costs of all medications.
ISAC co-counselled with Mississauga Community Legal Services on a case about a medication that the Ontario Drug Benefit refused to cover. This case addressed the importance of ensuring access to essential medications for social assistance recipients.
S.S. has a number of medical conditions, including chronic nerve-related pain. Because of her complicated health situation, none of the treatments that are covered by the Ontario Drug Benefit are suitable or effective for her. A cream that safely treats her pain is available, but it is not on the list of medications covered by the program.
The Ontario Drug Benefit plan has a process for applying for “exceptional access” in cases like this. S.S.’s doctor applied for exceptional access, but the program rejected the application. S.S. was not given any explanation for the rejection, just that the cream is not “eligible.”
ISAC and Mississauga Community Legal Services started an “application for judicial review” to challenge that decision. To read that application, click here.
The application did not go to a hearing.
ODSP is an essential program for persons with disabilities who have no or very limited sources of income. Doctors play a very important role in the application process for ODSP benefits. But for many people, getting the medical evidence they need can be very hard, especially when there are long wait lists to see specialists like psychiatrists. When evidence from specialists is available, it is very important that it be taken into account.
ISAC co-counselled with Community Legal Services of Ottawa in a case about a person who was denied ODSP benefits because the Social Benefits Tribunal refused to consider an expert report from a psychiatrist. The Tribunal said that it would not consider the report because it was written four months after Mr. M.C.’s ODSP application had been turned down.
The Divisional Court said that the Tribunal made a mistake. The doctor who wrote the report said very clearly that in his opinion, Mr. M.C. was experiencing serious symptoms of his disability for the past five years. The Court said that the Tribunal was wrong to refuse to deal with the specialist’s medical opinion.
This case is very important because it confirms that when a person appeals an ODSP decision, medical evidence must be considered if it is talking about the person’s disability at the time that they applied for ODSP, even if the medical report was written after the ODSP application was turned down.
To read the decision, click here: http://canlii.ca/t/j03fn
Background on the Case
Disability insurance plays a critical role in ensuring that those who are off work due to disability have access to the income they need to survive. Every worker contributes to the Canada Pension Plan and many also contribute to private long-term disability insurance plans through their workplace.
However, payments from disability plans are always less than the worker earned while they were working. This often leaves a big income gap at a time when the worker’s expenses are actually higher because of their disability-related needs. Persons with disabilities often have higher costs of living because they have to pay for things like medications, assistance with daily care, travel for treatment, and housing that can accommodate them.
To compound this problem, private insurance companies have a practice of deducting Canada Pension Plan – Disability (CPP-D) benefits from long-term disability payments. But CPP-D payments are only made to workers who can show that they have severe disabilities that will prevent them from working for a long time. The deduction of CPP-D from long-term disability payments means that those with the most severe disabilities actually get less from their long-term disability insurance company than those with milder disabilities.
Paul Reilly is on a long-term leave from Ford Motor Company, and qualifies for both CPP-D and long-term disability through Ford’s private insurance plan. The Ford plan deducts his CPP-D payments dollar-for-dollar. He challenged that practice in an application at the Human Rights Tribunal of Ontario on the grounds that it discriminates against him on the basis of disability.
The Income Security Advocacy Centre partnered with the HIV & AIDS Legal Clinic Ontario and the ARCH Disability Law Centre to intervene in the case. Our coalition argued that it is discriminatory for insurance companies and employers to pay a smaller amount of long-term disability benefits to people who are receiving CPP-D payments.
The Human Rights Tribunal’s Decision
The Human Rights Tribunal did not accept that insurance companies are discriminating against CPP-D beneficiaries. The Tribunal concluded that private insurance long-term disability policies guarantee that beneficiaries will have a certain amount of their income replaced every month, but not that the insurance company will be the sole source of that income replacement. Since the combined income of people getting private insurance without CPP-D deductions is the same as the income of people getting private insurance with CPP-D deductions, the Tribunal concluded there was no discrimination.
To read the Tribunal’s decision, click here: https://www.canlii.org/en/on/onhrt/doc/2019/2019hrto101/2019hrto101.pdf
-First posted: Oct 2017, final update January 2019
The Income Security Advocacy Centre intervened in an appeal that raised the issue of whether a man with a disability who lives with his separated spouse so he can get help with his day-to-day living should be treated as a “dependant spouse.”
Because social assistance treats him as a “dependant spouse”, he is ineligible for any benefits. The way OW and ODSP define “dependant spouse” means he is treated as though his separated spouse is supporting him financially, even though she does not and has no obligation to.
There are many situations in which separated spouses live together, even though they are no longer in a relationship. In Mr. Smith’s case, he could not live on his own because of his disability. Although he had been separated from his wife for a decade, she agreed to let him live with her and their children so he would have the help he needed.
ISAC argued that the legislation that defines “dependant spouse” should be interpreted in a way that takes human rights into account. That would mean avoiding interpretations that are too broad, and that capture relationships that the individuals themselves do not see as spousal. A broad definition could force women and persons with disabilities into vulnerable situations of dependence that are not of their choosing.
The case did not go ahead to a hearing because an out-of-court agreement was reached.
To read ISAC’s legal arguments, click here.
2017 & 2018 Cases
Where can you go when government benefit programs discriminate against you?
The Government of Canada is responsible for a number of very important programs and social benefits that people rely on in order to get by, including Employment Insurance, the Canada Pension Plan and veterans benefits. In the past, people could take complaints about discrimination in these programs to the Canadian Human Rights Commission. In Canadian Human Rights Commission v. Canada, the Supreme Court of Canada considered a case involving the Indian Act to determine whether that is still possible.
Background on the Case
The case arises from a challenge to one of the ways that the Indian Act discriminates against Indigenous women and their children. The Indian Act is a very old piece of legislation that imposes rules on Indigenous peoples about who can be registered as an “Indian”. Although these status rules do not correspond to the ways in which Indigenous communities themselves determine membership, it is still important to many Indigenous people to have that status because of the benefits that flow from it. For example, those who are not registered cannot access government health, education, and child development programs that are tied to Indian status. Those who are not registered cannot pass on status to their descendants.
At one time, Indigenous women who married non-Indigenous men lost their status, as did their children. That rule has been taken out of the Indian Act, but some of the descendants of women who lost their status in this way continue to be disadvantaged and denied recognition as Indigenous persons.
Members of the Matson and Andrews families made a complaint to the Canadian Human Rights Commission, arguing that the government of Canada discriminated against them by denying their applications for registration in the Indian registry. The government fought their application every step of the way and was able to have their complaints thrown out based on arguments that the Commission did not have jurisdiction to hear complaints about legislation.
Why ISAC intervened
ISAC partnered with a number of other legal clinics to intervene at the Supreme Court: the Sudbury Community Legal Clinic, the Chinese and Southeast Asian Legal Clinic, the Community Legal Assistance Society (in British Columbia) and the HIV & AIDS Legal Clinic of Ontario.
They argued that if the Commission’s decision is upheld, it will have far reaching implications, beyond Indigenous communities. Like the Indian Act, federal income support programs like EI, CPP and veterans benefits are created by legislation. Hundreds of thousands of people in Canada rely on these programs to be able to survive. If the decision to throw out the Matson and Andrews complaints is upheld, it could mean that people receiving these critically important income supports would not be able to make complaints to the Canadian Human Rights Commission if they believe the legislation creating these programs includes rules that discriminate against them. Instead, they could be forced to bring Charter challenges through the courts, a much more expensive and difficult process, particularly for low-income and vulnerable people.
When government supports are denied for discriminatory reasons, the consequences for those living in poverty can be extremely grave.
The Supreme Court’s Decision
Regrettably, the Supreme Court decision upheld the Commission’s decision and found that it was reasonable. This put some limits on where human rights challenges to laws can be raised. However, it did not close the door on such challenges, which have played an important part in making sure social programs operate fairly. It is still possible that challenges to federal benefit programs will be considered discrimination in the provision of services, and can be heard by the Canadian Human Rights Tribunal.
To read the Supreme Court’s decision, click here.
This case concerns access to justice and privacy at administrative tribunals that serve people in poverty. Toronto Star brought a Charter challenge at the Ontario Superior Court concerning whether the public should have access to records held by fourteen administrative tribunals in Ontario, including the Social Benefits Tribunal, Human Rights Tribunal of Ontario, and the Landlord and Tenant Board.
ISAC intervened in coalition with the HIV/AIDS Legal Clinic of Ontario and ARCH Disability Law Centre to raise the perspective of people living in poverty, who may be denied access to justice if the deeply personal information filed with administrative tribunals is available to the public.
The Superior Court’s Decision:
The Superior Court agreed with the Toronto Star that documents filed with administrative tribunals should be presumptively available to the public. However, the Court also recognized that there should be protections for privacy rights and access to justice for vulnerable people.
The Superior Court’s decision can be read here.
Following the release of this decision, the Ontario legislature enacted the Tribunal Adjudicative Records Act, 2019 (“TARA”), which applies to a number of tribunals in Ontario including the Human Rights Tribunal of Ontario and the Landlord and Tenant Board. This statute requires records and documents before those tribunals to be available to the public. However, the statute also provides for the ability to make those records confidential if certain conditions are met. Importantly, the Social Benefits Tribunal is not covered by TARA, and continues to be presumptively private.
Ontario Works and the Ontario Disability Support Program (ODSP) recognize that some people with disabilities will have higher food costs because their medical conditions require them to eat a special diet. Both programs provide a “special diet allowance” to people who have one or more specific medical conditions that would allow them to qualify.
The special diet allowance has been the target of numerous legal challenges for over a decade, because the allowance does not provide enough money to afford some of the diets and doesn’t provide any coverage for the special diets required for some medical conditions. This lack of adequate funding can pose a serious threat to the health of social assistance recipients.
In the past, ISAC, the Clinic Resource Office (CRO), and many community legal clinics worked together to bring hundreds of human rights cases to the Human Rights Tribunal of Ontario and the Social Benefits Tribunal. As a result of those cases, the program was improved. For a more detailed summary of that litigation, click here.
ISAC has now joined with the CRO and Mississauga Community Legal Services to bring a new legal challenge on behalf of an ODSP recipient who has neuromyelitis optica (“NMO”). NMO is a condition similar to multiple sclerosis that can cause very serious malnutrition and weight loss. There is a special diet allowance for recipients with unintended weight loss caused by multiple sclerosis. But there is no similar coverage for NMO.
The human rights application was started in June 2018.
ISAC and West Scarborough Community Legal Services are working together to represent a worker who has been wrongfully denied termination and severance pay. This case had to do with a worker’s rights when it is clear that they can no longer work because of a disability.
The worker in this case worked for over a decade as a pastry cook, which is a physically difficult and demanding job. Unfortunately, she was in two separate car accidents very close together. Because of the injuries she sustained in these accidents, she is no longer able to work in any job.
Her workplace did not offer any short or long-term disability benefits, but did allow her to take a sick leave. After almost four years on sick leave, she provided her employer with letters from her doctors to show that she would not be able to return to work in any job. She told her employer that her employment contract was “frustrated” because of her disability. Employment standards law says that when an employment contract is frustrated, the worker is entitled to termination and severance pay. But her employer refused to pay it.
This worker’s case was resolved without the need for a hearing.
Families often use a type of trust, called “Henson trusts”, as a way to support family members with serious disabilities. When money is in a Henson trust, the person in charge of the trust (the “trustee”) has control over when, how and if the money is paid out to the recipient.
This kind of trust is used to make sure that the family member with a disability can still get supports from social programs like social assistance and social housing. In these programs, a person’s income and assets are typically included when calculating whether or not they are financially eligible for benefits. If money is paid from the trust, social programs count it as “income” when deciding if the person qualifies. But, in Ontario at least, any money still in the trust has not been considered an “asset” because the recipient has no certain access to it. This is important because if the money in the trust is considered an asset, they may not be eligible for benefits.
But in a case called S.A. v. Metro Vancouver Housing, the Vancouver social housing program wanted to treat S.A.’s inheritance as an asset even though it was being held in a Henson trust. When she refused to provide information about how much money was in the trust, her application to renew her rent subsidy was turned down.
The Income Security Advocacy Centre (ISAC) and HIV AIDS Legal Clinic Ontario (HALCO) intervened as a coalition to try to make sure the Court’s decision would not have a negative impact on social assistance and social housing recipients in Ontario. The coalition was represented by Ewa Krajewska of Borden Ladner Gervais.
What the Supreme Court said
The Supreme Court ruled that a Henson trust is not an asset, and that S.A.’s trust should not negatively affect her eligibility for Vancouver’s rent subsidy program. The Court further found that Metro Vancouver Housing was wrong to demand that S.A. provide documents to show how much money was in the trust.
Ms Krajewska, the lawyer for the coalition, said, “This is a very good decision for the disability community, as it provides clear, helpful guidance on the attributes of a Henson Trust. The ‘mere hope’ of receiving money from a trust is not enough to make it an asset.”
This is the first time that the Supreme Court has had to make a decision about a Henson trust. “The Supreme Court’s decision confirms that Henson trusts are a legitimate way for families to set aside money for persons with disabilities to sustain their long-term well-being,” said Amy Wah of HALCO.
“We know that persons with disabilities are more likely to live in deep poverty and remain poor over long periods of time,” said Marie Chen of ISAC. “The Court’s decision will help alleviate their poverty by preserving access to much needed social programs which provide income support, drugs and other medical benefits.”
The read the decision, click here: https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/17473/index.do.
What the case means for you
The Supreme Court’s decision confirms the way that courts and social programs in Ontario have been treating Henson trusts: they are not and should not be counted as assets.
That means that families now have certainty in planning how they leave their estate to their family members. As the law stands now, social programs should not count money in trusts as an asset, so long as the trust has these characteristics:
- The trustee (or trustees) have exclusive discretion about whether to pay any money out of the trust. They have no legal obligation to exercise that discretion in any particular way.
- The recipient has no way to end the trust and pay out all the money.
Even a trust in which the recipient is a “co-trustee” with someone else will be considered a Henson trust, so long as the trust has these two features. Allowing recipients to be co-trustees is important because it allows persons with disabilities to be part of decisions about their own finances.
To read more about the case, check out these links:
- Borden Ladner Gervais Blog: https://blog.blg.com/theexchange/Pages/Post.aspx?PID=395
- Canadian Lawyer Magazine: https://www.canadianlawyermag.com/author/tim-wilbur/scc-says-trust-is-not-disqualifying-asset-for-rental-assistance-application-16756/
The Ontario Disability Support Program provides income supports and other benefits that are intended to ensure recipients can live as independently as possible. The program includes supports for those who are working or operating their own businesses, with the goal of breaking down barriers to employment.
However, when an ODSP recipient, Sheryl Abbey, began her own business, ODSP told her that any wages she paid out to employees or sub-contractors would be treated as though it was her own income. This unfair treatment of her business income would result in a drastic reduction in her income, and so she ended the business.
Ms. Abbey then brought a human rights application to the Human Rights Tribunal, arguing that the policy that treated income paid to others as income to her was discriminatory. The Tribunal agreed. The Tribunal found that the policy was based on the discriminatory assumption that most ODSP recipients are “incapable of engaging in forms of self-employment which have even a modicum of complexity to them.” The Tribunal ordered ODSP to stop applying the policy, but refused to give Ms. Abbey any remedy for the injury the discrimination caused to her “dignity, feelings and self-respect.”
To read the Tribunal’s decision, click here.
Ms. Abbey has asked the Ontario Divisional Court to review the decision to deny her a full remedy for the injuries she experienced.
ISAC joined in coalition with the Council of Canadians with Disabilities and the ODSP Action Coalition to intervene in the case. Our coalition’s position was that recipients who are injured by discriminatory ODSP laws and policies are entitled to compensation for those injuries.
To read our legal arguments, click here.
This case was argued for an entire day at Divisional Court on February 28th. The Divisional Court released its decision on March 22, 2018. You can find a full copy of the decision here.
Regrettably, the Court dismissed Ms Abbey’s application for review, and did not deal with our arguments in any substantive way. This could be a negative precedent for those seeking human rights damages at the Tribunal, and ISAC will stay abreast of this issue going forward.
-First posted Oct 2017, final update April 2018
ISAC co-counselled with Mississauga Community Legal Services on a judicial review at Federal Court that concerns the jurisdiction of the Social Security Tribunal – Appeal Division when hearing appeals.
The case concerned a woman who was granted CPP-Disability Benefits by the Social Security Tribunal. She had multiple health impairments from working as a health care aid. The Attorney General (A.G.) asked for leave to appeal the Tribunal’s grant to the Tribunal’s Appeal Division.
The Appeal Division granted leave to appeal deciding that only one of three grounds argued by the A.G. had a reasonable chance of success. The A.G. then sought judicial review of this decision, arguing that the decision limited the scope of the appeal.
The case asked whether the Appeal Division has jurisdiction at the appeal to consider all grounds of appeal or whether it is limited to those that were deemed to have a “reasonable chance of success” in the leave decision. It also asked whether a judicial review is premature when the A.G. is not seeking a different disposition from the court (the A.G. was successful in being granted leave to appeal) and when the appeal is ongoing.
ISAC and Mississauga Community Legal Services represented the Respondent in this case. We argued that appellants can argue all their grounds of appeal after they have been granted leave, and that the A.G. should not seek judicial review of a decision that was in its favor.
The Federal Court agreed with all of our arguments, and dismissed the A.G.’s application. The Court held that appellants at the Tribunal’s Appeal Division are open to raising all of the points raised in their leave application and not just the ones deemed to have a “reasonable chance of success”. The court also held that the Appeal Division is the correct forum to raise any questions concerning its own jurisdiction before resorting to the courts.
The full text of the court’s decision can be found here: Canada (Attorney General) v. Tsagbey, 2017 FC 356 (CANLII) .
– April 25, 2017
Many persons with disabilities face higher costs of living, including the cost of travel to medical treatment. Accessing medical treatment is vital to ensure the health and wellness of Ontario Disability Support Program recipients. In recognition of this need, ODSP reimburses recipients for their costs of medical travel.
The program covers the full cost of travel for those who travel by public transit or taxi, or who are driven by an agency driver. But for those who must travel by car, whether because of where they live or because of the nature of their disabilities, ODSP only provides a mileage rate of 18 cents per kilometre. The mileage rate has stayed the same since 2000, even though the cost of gas has gone up by over 130 percent. In contrast, the federal government sets the medical travel rate at 55 cents per kilometre for tax purposes.
The Income Security Advocacy Centre and Aboriginal Legal Services worked together to represent a recipient who challenged the mileage rate. The case was heard by the Divisional Court on September 19.
On October 24, the Divisional Court granted our appeal. The Court was concerned that the mileage rate has not increased in 16 years, and ordered the Social Benefits Tribunal to re-hear the case on the basis that ODSP must cover the costs of both owning (e.g. insurance, registration fees) and operating (e.g. gas) a car.
To read the legal argument supporting the appeal, click here.
To read the Divisional Court’s decision, click here.
-First published May 2016, final update January 2017
Sometimes people with mental health-related disabilities who apply to the Ontario Disability Support Program are turned down because the decision-makers think that the medical treatment they are getting isn’t serious enough. For example, ODSP decision-makers sometimes say that because a person hasn’t been hospitalized, isn’t on enough medications, or hasn’t had crisis intervention, they don’t qualify as a person with a disability.
Getting access to medical treatment can be very hard and people face many barriers, like lack of nearby specialists, long waiting lists, fear, stigma and negative experiences with medical treatment in the past. Also, modern mental health treatment is focused on supporting people before they get to the stage of being in crisis.
When making decisions about eligibility, ODSP should look at how the person’s health conditions affect them, not what kind of treatment they are receiving.
The Income Security Advocacy Centre and Grey-Bruce Community Legal Clinic worked together to represent a person who was turned down by both ODSP and the Social Benefits Tribunal because of the kind of medical treatment she was receiving. We argued that the Social Benefits Tribunal made a mistake when it focused on her level of treatment, and that the Tribunal was wrong to deny her appeal on the basis that she had not been involuntarily hospitalized by her family or the police. Crisis is not – and should not be – a requirement to qualify for ODSP benefits.
Another problem with the Tribunal’s decision was its finding that she is not a person with a disability because she was able to participate in her own appeal hearing. Although it can be very difficult for people to participate in the hearing process, many do so because they know it is important for the Tribunal to hear directly from them, and because they want to be part of the process that makes decisions about their future. The Tribunal should never hold participation against an appellant. Doing so undermines access to justice for persons with disabilities.
After starting an appeal at the Divisional Court, the clinics were able to negotiate a settlement of the case with ODSP.
To read the Notice of Appeal to the Divisional Court, click here: here.
– Posted May 2018, final update October 2017
Health benefits are a critical part of the Ontario Disability Support Program. Appropriate access to and funding for these benefits is crucial to make sure that ODSP recipients get the health-related items they need, like medications, diabetic supplies, wheelchairs, and dentures.
Poor dental health can have particularly grave repercussions for the quality of life and health of recipients. The Ministry of Community and Social Services is given broad discretion in the legislation to approve dental benefits, under the authority of the Minister.
The Income Security Advocacy Centre and the Clinic Resource Office worked with a recipient who required lower denture implants. She had no teeth and only upper dentures. She had a lot of trouble eating, and her weight had fallen dangerously low. An expert hired by ODSP said she needed these dentures in order to maintain a healthy weight. But ODSP refused to fund the dentures that she needed in order to be healthy, saying it did not have the authority to do so.
We assisted the recipient to file an appeal to the Social Benefits Tribunal. We argued that the Ministry should exercise its discretion around approving dental benefits generously in order to promote the health and well-being of recipients.
This case was resolved before the Social Benefits Tribunal hearing took place. In the end, the recipient was approved for dentures, under the Minister’s discretion, and can now eat healthy foods and maintain a healthy weight.
-Posted May 2016, final update October 13, 2017
The Ontario Disability Support Program (ODSP) provides monthly supports to low-income Ontarians who meet the law’s definition of “a person with a disability.” In Ontario, “disability” is defined broadly, and includes people with both permanent and temporary medical conditions who are experiencing “substantial” impairments and restrictions.
ISAC is concerned that there are people who should meet the definition but who are wrongly being denied ODSP. ISAC has been working clinics in the Greater Toronto Area to monitor recent decisions about who meets the definition of a “person with a disability.”
Out of this work, we are co-counseling with Mississauga Community Legal Services on three appeals at the Divisional Court, arguing that the legal test applied by the Social Benefits Tribunal was too onerous. We are calling these three cases AB, CD and XX to ensure the anonymity of the people involved. We have posted the Notices of Appeal for each of these cases below and will post updates about the status of these cases as required.
One of the legal issues in these cases is the relevance of medical treatment. The Social Benefits Tribunal looked at the kinds of medical treatments that the appellants were receiving when making decisions about whether or not they met the definition of a “person with a disability”, instead of looking at the effects of their disabilities on their day-to-day lives.
There are many reasons why patients may not be accessing certain kinds of medical treatments, including long wait times or lack of specialists in their area, harsh side effects, and the effect of treatment on other disabilities. For some people, not pursuing treatment may itself be a symptom of their disability. Treatment, or lack of treatment, on its own should not be a basis for denying an ODSP application.
ODSP plays a critical role in ensuring that people with disabilities living in poverty can meet their most basic needs. It is crucially important to ensure that those who need the program can access it.
Read the anonymized Notices of Appeal below:
Case 1: CD v. DIRECTOR OF THE ONTARIO DISABILITY SUPPORT PROGRAM
Case 2: XX v. DIRECTOR OF THE ONTARIO DISABILITY SUPPORT PROGRAM
Case 3: AB v. DIRECTOR OF THE ONTARIO DISABILITY SUPPORT PROGRAM
Update: These case have all now been settled. Following the filing of our appeals, the Ministry of Community and Social Services agreed to overturn the Tribunal’s decisions, to acknowledge that the Applicants qualified for benefits under the Act. This litigation was a continuing part of ISAC’s effort to ensure that those who should qualify for ODSP benefits are granted access to the program.
– Posted November 2015, final update April 7, 2017
Prior to April 2012, a body called the Review Tribunal had the responsibility to hear appeals of decisions about Canada Pension Plan (CPP) issues. That Tribunal was replaced with the Social Security Tribunal (SST) in April 2012.
ISAC applied to the Federal Court of Appeal to argue that the SST made a legal error when it refused to allow us to participate (“intervene”) in a hearing on a “new facts” CPP-Disability application.
This case raised two important issues. First, it raised the legal question of the ability of organizations that represent the public interest to intervene in hearings at the SST.
ISAC’s application to intervene in the “new facts” application was done to ensure that the SST was aware of the potential impact of its decision in that case on persons with disabilities who need income supports, and to make sure it heard legal arguments from their perspective.
When cases before the SST raised important legal questions that affect many people, not just those involved in the case, it is crucial that organizations that represent the public interest are heard. Interveners present information that can allow the SST to understand the potential consequences of their decisions and provide the benefit of different perspectives on the legal questions. This can help the SST ensure it makes the right decisions. If the SST’s decision to not allow ISAC to participate stands, there is a risk that public interest interveners will not be able to bring their perspectives and arguments to cases before the Tribunal in the future.
The second issue was the question of access to justice for people whose cases became part of a backlog when the SST was created. When the SST opened its doors in 2012, it received a backlog of tens of thousands of cases from the Review Tribunal. It was expected that the SST would hear those old cases. However, the federal Department of Employment and Social Development Canada took the position that “new facts applications” that were more than a year old before the SST came into being would have to be dismissed. “New facts applications” are cases that had been denied by the Review Tribunal but had new facts that could show that they did, in fact, qualify for benefits. If Employment and Social Development Canada’s position on these cases is adopted by the SST, many people who started such “new facts applications” will be denied the right to present that new evidence merely because the Review Tribunal did not hear their case in time.
The case was heard on June 2, 2016. Before that time, the Social Security Tribunal Appeal Division had rendered its final decision on the merits of the underlying application. Therefore, ISAC’s application to intervene was rendered moot. While the Federal Court dismissed ISAC’s application for judicial review, the Court did note that the SST had failed to engage with the real issues in the case, and did not provide proper reasons underlying its decision.
The decision of the Federal Court can be found here: Income Security Advocacy Centre v. Mette, 2016 FCA 167 (CanLII), https://www.canlii.org/en/ca/fca/doc/2016/2016fca167/2016fca167.html?resultIndex=2
– April 7, 2017
People who pay in to the Employment Insurance (“EI”) system are eligible for EI Regular Benefits when they lose their job. Too often, people who lose their job due to issues around addiction are denied EI due to the way the law treats addictions in this context.
Someone claiming benefits can be disqualified from receiving EI if they were terminated for “misconduct”. The Social Security Tribunal, which hears appeals of decisions around EI benefit eligibility, has defined misconduct as an act that was “wilful” or “voluntary” in the sense that the employee “wilfully disregarded the effects his or her actions would have on job performance.”
The Federal Court of Appeal has ruled several times that absences due to addiction are voluntary and qualify as misconduct, and that therefore people fired due to addiction-related issues do not qualify for EI benefits. Specifically, the Court has held that the consumption of substances by an individual suffering from addiction is done voluntarily, in that the acts are “conscious” and that the individual is “aware of the effects of that consumption and the consequences which could or would result.”
ISAC is co-counselling with West End Legal Services of Ottawa in an appeal that directly challenges this line of Employment Insurance caselaw.
Our client was terminated from his employment due to two brief absences from work following relapses into his addiction. On top of losing his job, he was denied EI benefits on the basis that his firing was due to misconduct and that his absences from work were voluntary even though they stemmed from his addiction.
ISAC and West End Legal Services will appeal this decision to the Social Security Tribunal and are currently obtaining expert medical evidence on the nature of addiction and voluntariness. A hearing date for the appeal has not yet been set.
 S. M. v. Canada Employment Insurance Commission, 2014 SSTGDEI 50 (CanLII), at para. 41
 Mishibinijima v. Canada, 2007 FCA 36, at para. 33
– May 17, 2016
The Canada Pension Plan is a social insurance program that is meant to help those who find themselves disabled and unable to work. To qualify for a CPP disability pension, a person must be “suffering from a severe and prolonged mental or physical disability.” A disability is considered to be severe when a person is not capable of making a living because of it.
ISAC co-counselled with West Toronto Community Legal Services on a judicial review at Federal Court in Osaj v. AG Canada. Mr. Osaj became disabled after two accidents. The General Division of the Social Security Tribunal granted his application for CPP disability benefits, but only from the time medical reports said he had reached “maximal medical recovery” and was “permanently disabled”. However, CPP legislation does not say that these factors have to be present for a person to considered disabled and therefore eligible for benefits. The Social Security Tribunal’s decision meant Mr. Osaj was denied 17 months of CPP-D benefits.
Mr. Osaj tried to get leave to appeal the decision at the Appeal Division of the Tribunal, but was refused.
ISAC and West Toronto Community Legal Services filed an application for a judicial review at Federal Court, arguing for the proper application of the test for “severe and prolonged disability”. We made this application to ensure full access to CPP-D benefits for disabled applicants.
On February 2, 2016, the Federal Court agreed with ISAC’s arguments and granted our judicial review application. The Court decided that the Appeal Division was unreasonable when it refused to grant Mr. Osaj leave to appeal, because it failed to consider whether the General Division had applied the correct legal test for CPP-D benefits. The Federal Court also said that the Appeal Division’s decision was “perverse” when it supported the General Division’s choice of the date of “maximum medical recovery” as the date when Mr. Osaj became disabled, because the medical evidence showed the exact opposite.
Mr. Osaj’s case will now be reviewed again by the Appeal Division.
The full text of the decision can be found here:
– May 5, 2016
In November 2014, Ontario’s new social assistance computer program went live. The computer program caused wide-spread problems, including recipients receiving the wrong benefit amounts, getting faulty suspension letters and not receiving health-related benefits.
The union representing ODSP workers started a court application arguing that the computer system is resulting in violations of the Charter rights of social assistance recipients. ISAC and Parkdale Community Legal Services were allowed to intervene in order to ensure the Court considered the perspectives of social assistance recipients.
On April 15, 2015, the Superior Court threw out the case on the grounds that the case concerned the union’s collective agreement and could only be dealt with through union’s grievance process.
– October 20, 2015
In 2013, Canada changed sentencing laws to require anyone convicted of an offence (or discharged) to pay a mandatory “victim surcharge” regardless of whether or not they can afford to pay the fine.
Every person convicted of a criminal offence was required to pay a “victim surcharge”, regardless of whether or not they can afford to pay the fine. The mandatory fine is very difficult for poor people to pay. Failure to pay the fine could have very serious consequences, including jail. Social assistance rates in Ontario are very low, and as a result, social assistance recipients are very harshly affected by the victim surcharge. Those who are not poor do not face the same hardships.
The victim surcharge was challenged in a number of cases on the grounds that it is a violation of the right to liberty and security of the person (section 7 of the Charter) as well as the right to be free from “cruel and unusual punishment” (section 12 of the Charter).
In R. v. Michael, the Ontario Court of Justice found that the mandatory fine violated the Charter. The Crown appealed that decision to the Superior Court of Justice and ISAC intervened to argue that poor people shouldn’t be given what are in effect harsher sentences than other people. That appeal was resolved without a hearing.
The same challenge to the mandatory victim surcharge was brought before the Ontario Court of Appeal in three other cases (Tinker, Eckstein, Larocque). The Income Security Advocacy Centre, along with the Criminal Lawyers Association and the Canadian Civil Liberties Association, were allowed to intervene in those appeals. We argued that the mandatory victim surcharge is unconstitutional because of its unequal impacts on people living in poverty, including historically disadvantaged groups such as women (particularly single mothers), persons with disabilities, racialized communities and Indigenous persons.
Unfortunately, the Court of Appeal dismissed the appeal, and upheld the surcharge.
This issue was heard by the Supreme Court of Canada in four cases, Boudreault v. the Queen, Larocque v. R, Eckstein v. R and Tinker et. al. v. Queen. ISAC was granted intervenor status in all of the cases in coalition with Colour of Poverty – Colour of Change. Avvy Go from the Chinese and Southeast Asian Legal Clinic and Shalini Konaur from the South Asian Legal Clinic of Ontario (SALCO) co-counselled with ISAC in this important case. Our intervention emphasized the importance of an equality analysis in cases involving criminal law and personal liberty, and the disproportionate impact of this law on people living in poverty.
Our legal arguments in the Boudreault and Tinker cases can be found here: COP ISAC Factum (Website) March 28 2018
“The mandatory victim surcharge has its harshest impacts on the racialized groups that are over-represented in the criminal justice system and have higher rates of poverty,” said Shalini Konanur, executive director of the South Asian Legal Clinic of Ontario. “Not only does it perpetuate racism and inequality within the criminal justice system, it also reinforces the inequality of poverty for these same groups.”
In a landmark decision released in December 2018, the Supreme Court struck down the mandatory victim surcharge, finding that it was cruel and unusual in its effects on people living in poverty.
In its judgment, the Supreme Court found that for poor people, the mandatory victim surcharge amounts to a sentence with no predictable end, and possibly no end at all. It has a significant impact on the liberty, security, equality and dignity of those who lack the means to pay the fine. The Court compared the process to a “public shaming” of impoverished people and described it as “an abhorrent an intolerable punishment” for “the poorest individuals among us.”
“The Supreme Court’s decision makes the essential point that mandatory fines impose a different system of justice for the rich and the poor,” said Jackie Esmonde, staff lawyer with the Income Security Advocacy Centre. “It is long past time for the federal government to abolish all of the mandatory minimums in the Criminal Code, which have only deepened inequality in this country.”
You can read the Court’s decision here:
Kelly Lesiuk was denied Employment Insurance (EI) benefits because, as a mother working part-time, she was unable to accumulate the number of work hours necessary to qualify. Ms. Lesiuk launched a Charter challenge to the eligibility requirements, arguing that they discriminate against women and mothers.
In March 2001, the Umpire held that the eligibility rules violated the equality guarantee in section 15 of the Canadian Charter of Rights and Freedoms.
The Employment Insurance Commission appealed the decision to the Federal Court and the case was heard on November 19 and 20, 2002. ISAC was granted intervenor status to make submissions relating to the impact for low income unemployed workers forced to rely on social assistance because of restrictive EI eligibility rules.
On January 8, 2003, the Federal Court of Appeal overturned the Umpire’s verdict that EI rules violate the Charter. Leave to appeal to the Supreme Court of Canada was denied later that year.
– September 12, 2014
Ms. Miller challenged the reduction in the regular benefit period for Employment Insurance (EI) claimants who have previously received special benefits such as maternity, parental or disability benefits. She argued that this automatic reduction violated the right to equality found in the Canadian Charter of Rights and Freedoms by discriminating against pregnant women and working parents; it penalized these groups for needing to access special benefits by reducing the time available to look for work.
ISAC was granted the right to intervene in the case before the Federal Court of Appeal. The basis of ISAC’s intervention was to ensure that the Court was apprised of the impact of the benefit restriction for low income unemployed parents forced to rely on social assistance where EI was not available.
The Federal Court of Appeal delivered its judgment in October 2002, and, disappointingly, dismissed Ms. Miller’s appeal, holding that the reduction in the regular benefit period is not a violation of the Charter. Leave to appeal this decision to the Supreme Court of Canada was denied.
– September 12, 2014
In 2002, ISAC represented two public interest intervenors in the inquest into the death of Kimberly Rogers. The year before, Kimberly Rogers had been found dead in her Sudbury apartment. She had been under house arrest after being convicted of welfare fraud for collecting OSAP loans while on social assistance. She was eight months pregnant and Sudbury was experiencing an extreme heat wave at the time.
When she plead guilty to welfare fraud three months earlier, Kimberly Roger’s only source of income was social assistance and the social assistance rules at the time required that her benefits be automatically suspended for three months as a result of the fraud conviction. She was sentenced to six months house arrest with no means of financial support.
With the help of the Sudbury Community Legal Clinic and a private bar lawyer, Ms. Rogers succeeded in obtaining a constitutional injunction that temporarily re-instated her social assistance benefits, but at $486 a month they were far from adequate. After paying her rent, she had only $18 left over for food and other necessities. Community organizations, already over-extended, could provide only limited support.
An inquest into Ms. Roger’s death began on October 15, 2002 and lasted for 9 weeks, with final submissions heard on December 11 and 12. The Coroner’s inquest looked at the circumstances surrounding her death including the role played by social assistance rules and policy. The Coroner’s jury released its recommendations in December 2001 and a number of key recommendations were directed to social assistance policy including
- eliminate the lifetime and temporary social assistance bans for people convicted of welfare fraud
- assess the adequacy of social assistance rates and base allowances on actual living costs within a particular community or region
- Ontario Works drug benefits for the treatment of serious medical conditions should not be discontinued during any Ontario Works suspensions;
- permit local Ontario Works administrators to exercise discretion in the use of any suspension of benefits
- establish a committee composed of various stakeholders across Ontario to develop a model for assessing whether cases involving allegations of welfare fraud should be referred for prosecution. The model should include an evaluation of the life circumstances of the recipient and the consequences of a conviction on the recipient and any dependents.
ISAC reviewed the status of the jury recommendations one year later and released a Report Card.
– September 12, 2014
Since the implementation of the Canada Child Tax Benefit (CCTB) by the federal government in July 1998, the province of Ontario 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 represented three individuals in a Charter challenge to this deduction (commonly referred to as the “NCBS clawback”) that was filed in December 2004.
The applicants were sole support parents who were subject to the NCBS clawback. They argued that the clawback discriminated against them because of their status as social assistance recipients.
The applicants also argued that the clawback unfairly affected women, sole support mothers, persons with a disabilities, Aboriginal people, and people belonging to a racial minority, as members of these groups are more likely than others to have low-income and to need to rely on income support through social assistance.
Since the application was initially filed, changes to the program have reduced the negative impact on social assistance recipients and the challenge was discontinued.
– September 12, 2014
Ms. Pavon was an ODSP recipient who accrued an overpayment due to an error by her ODSP worker. She requested an internal review more than one year after the decision. The Social Benefits Tribunal refused to hear her appeal on the basis that the one-year limitation period had passed.
ISAC appealed Ms. Pavon’s case to the Divisional Court, arguing that the “one year time period” for appealing starts to run from the date of the internal review decision – not the date of the original decision. ISAC also argued that human rights concerns must inform the way that the statute is interpreted. You can read our Factum by clicking here.
The appeal was heard on June 7, 2013. The Divisional Court granted Ms. Pavon’s appeal and confirmed that the timeline for appealing to the Social Benefits Tribunal is the date of the internal review decision, even if that decision is not made until more than one year has passed from the original decision.
The Divisional Court also confirmed the important role that human rights values must play when interpreting the Ontario Disability Support Program Act. The Court stated:
Further, given that by definition the very persons the statute is designed to support are persons with disabilities, I consider it axiomatic that the Act must be interpreted in a manner that does not discriminate on the basis of disability and in a manner that recognizes the right of persons with disabilities to reasonable accommodation. Where more than one interpretation of a provision is possible, the court should adopt the interpretation that accords with human rights and Charter values, rather than one that would undermine them. […]
A strict limitation period that allows for no individual accommodation can be as insurmountable an obstacle to equality for persons with some types of disabilities, as a flight of stairs is for a person using a wheelchair.
– March 29, 2016
The cases involved four individuals with mental health issues who must travel a considerable distance in order to access mental health therapies. Public transportation is either unavailable or not appropriate in the circumstances. While ODSP provides a medical travel allowance for those who must travel for treatment, ODSP refused to cover the costs of transportation on the basis that the therapies they required did not constitute “medical treatment.” As a result, these appellants were denied access to treatment that had been recommended by their doctors and had proven effective in improving their health.
One case was resolved without a hearing. The remaining three cases were heard together on April 18, 2013.
To read one of ISAC’s factums, click here: EF – ISAC Factum – Divisional Court – 2012
On June 14, 2013, the Divisional Court granted all three appeals. The Court that it is important for people with mental health and addiction issues to have access to local programs that build strengths, allow for participation in the community and improve health.
– September 12, 2014
In February 2011, ISAC appeared before the Court of Appeal for Ontario in a case challenging ODSP’s policy of attributing child support as income to adult children, even in cases where the adult children had no access to the child support payments.
Ms. Ansell is a young woman who applied for ODSP benefits in her own name while living with her mother. Her mother was receiving child support payments, which she used to ensure that her daughter had access to necessary disability-related services. She was denied ODSP benefits on the basis that the child support payments to her mother made her financially ineligible. Because the money came by way of child support, she was not allowed to take advantage of rules that allow parents to voluntarily give their children up to $6,000 in any 12 month period or to pay for disability-related expenses without deduction from the adult child’s ODSP entitlement. If her parents had been together, the very same payments would not have been included in her income and she would have been eligible for ODSP.
In April 2011, the Court of Appeal unanimously decided that child support payments should not be considered income to the child. The Court agreed with ISAC’s argument that ODSP’s policy was discriminatory towards the children of separated parents and made a number of important observations about the principles that should be applied in interpreting social assistance legislation.
ISAC co-counselled with the Algoma Community Legal Clinic in order to challenge this decision.
To read ISAC’s Factum, click here: Ansell – ISAC Factum – Ontario Court Of Appeal – 2011
To read our fact sheet on this issue, click here: Ansell – Child Support Payments To Parents Of Adults On ODSP – Fact Sheet – 2011
– September 12, 2014
ISAC argued that the law violated the Human Rights Code because it discriminated on the basis of disability. ISAC also argued that the Court should not accept the Ontario government’s position that government evidence and policy decisions should be given special deference by the courts.
On September 16, 2010, the Court of Appeal of Ontario released its judgment in which it found that it was discriminatory for the government to deny persons with addictions access to disability benefits. The Court did not accept the government’s arguments with respect to deference to its evidence.
As a result of this court case, persons who are disabled by addictions are entitled to ODSP benefits.
See our 2009 fact sheet on this issue here: ODSP – Adjudication Of Addictions – Fact Sheet – 2009 – PDF
– September 12, 2014
ISAC represented three individuals in a class action Charter challenge to the mandatory deduction of $100 each month from social assistance recipients who had been sponsored to come to Canada.
The challenge was to be based on the argument that the mandatory deductions denied all sponsored immigrants the equal benefit of the law, as guaranteed by section 15 of the Canadian Charter of Rights and Freedoms, because the regulations discriminated on the basis of national origin, race, and immigration status. The regulations violated the dignity and self-worth of sponsored immigrants, as they were based on negative stereotypes of immigrants, perpetuate negative attitudes towards immigrants, and did not correspond to the actual needs of sponsored immigrants who are forced to rely on social assistance. Indeed, one of the effects of the deductions was to force sponsored immigrants into utter poverty and deprivation, which demonstrated that the deductions could not be justified in a free and democratic society under section 1 of the Charter. Containing program costs through these mandatory deductions could not be upheld where it places the physical integrity and the sense of dignity of sponsored immigrants in such extreme jeopardy.
On December 15, 2004, Ontario changed the OW and ODSP rules that required the mandatory deductions.
– September 12, 2014
ISAC is co-counselling with Niagara North Community Legal Assistance to represent 102 migrant workers who were denied Employment Insurance parental benefits.
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 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, in most cases they are not eligible for regular EI benefits during periods of unemployment. Until recently, they were eligible for EI parental benefits. However, 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 was very difficult for them to apply for parental benefits when they were 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. On appeal, the Umpire ruled that none of the migrant workers could access their parental benefits on the basis that they ought to have applied earlier than they did.
ISAC and Niagara North Community Legal Assistance challenged this decision at the Federal Court of Appeal. On November 19, 2013, the Federal Court of Appeal reversed the Umpire’s decision because the Umpire refused to consider the multiple barriers that migrant workers face when considering whether they had a good reason for applying when they did. The Court stated that migrant workers face “unique disadvantages in the Canadian labour market,” including ineligibility for many social benefits, denial of statutory protections enjoyed by other workers, social isolation and fear of employer reprisal and deportation. The Court ordered that each of the cases be reheard.
In the meantime, the federal government has changed the rules about who can access parental benefits and made it much more difficult for migrant workers to qualify. As a result, most migrant workers will no longer be eligible for any employment insurance benefits, even though they pay into the program with each pay cheque.
To see the federal government’s announcement about changes to the employment insurance program, click here: http://news.gc.ca/web/article-eng.do?nid=711069
To see a statement from the United Food and Commercial Workers challenging these changes, click here: http://www.ufcw.ca/index.php?option=com_content&view=article&id=3156%3Astop-the-great-tory-ripoff-of-migrant-workers&catid=6%3Adirections-newsletter&Itemid=6&lang=en
– September 11, 2014
In order to sponsor certain family members to come to Canada, sponsors have to establish that they have the “minimum necessary income” as required by Canada’s immigration regulations. The income requirement prevents low income people from sponsoring their parents and grandparents to come to Canada. While the regulations allow people who receive ODSP to sponsor their parents and grandparents, in reality they are barred by the minimum income requirement.
The Metro Toronto Chinese and Southeast Asian Legal Clinic (MTSALC) has challenged this requirement as being contrary to the Charter in several sponsorship appeals at the Immigration and Refugee Board.
In the first of the MTCSALC appeals to go to hearing, ISAC applied to intervene, in order to argue that the minimum income requirement violates the rights of people with disabilities and particularly those receiving ODSP. In May 2014, the Immigration and Refugee Board granted the appeal on humanitarian and compassionate grounds, which meant there was no opportunity for us to make our argument. Other appeals were also granted without hearing the Charter challenge. In the last of the MTCSALC appeals, ISAC did not apply to intervene because the case did not involve ODSP.
The current income requirement is even more onerous than that being challenged by MTCSALC. The government now requires that people have “minimum necessary income” + 30% in order to sponsor.
ISAC will continue to monitor this issue and consider intervening if Charter challenges are brought.
– October 19, 2015
Led by the Advocacy Centre for Tenants Ontario (ACTO), tenant advocates and a group of homeless and inadequately housed individuals commenced a Charter application arguing that Ontario and Canada have violated the Charter by failing to provide an effective affordable housing program. The governments of Ontario and Canada brought a motion to have the case dismissed on the ground that it did not have sufficient legal merit.
ISAC was granted intervener status in the governments’ motion in coalition with the Charter Committee on Poverty Issues, PIVOT Legal Society, and Justice for Girls , and made arguments in court. Other interveners were Amnesty International and the Asper Centre. To read our factum arguing that the governments’ motion to strike should not be granted, click here: Right to Housing – Intervenor Coalition – Factum – April 15 2013
The Superior Court released its judgment in September 2013. Unfortunately, the Court granted the governments’ motion to strike and dismissed the original Charter application in its entirety. The court made a sweeping conclusion that the Charter does not impose a positive obligation on the state to provide for life, liberty, and the security of the person with respect to all government programs, including income security programs.
On behalf of the applicants, ACTO then appealed to the Court of Appeal for Ontario. ISAC was granted intervener status in coalition with the clinic system’s Steering Committee on Social Assistance and the ODSP Action Coalition. There were several other interveners including Amnesty International, ARCH Disability Law Centre, the Charter Committee on Poverty Issues, the Colour of Poverty/Colour of Change Network, the David Asper Centre for Constitutional Rights, the Ontario Human Rights Commission, and the Women’s Legal Education Fund. ISAC filed a factum and presented arguments at the hearing in March 2014, focusing on access to Charter rights for social assistance recipients. To read the factum, click here: Right To Housing – Income Security Intervenor Coalition – Factum – April 15 2014
In December 2014, the Court of Appeal denied the appeal, deciding that the issues raised were policy issues not suitable for a Court to judge. However, the Court left open the question of whether governments can have positive obligations to protect Charter rights.
The applicants’ application for leave to appeal to the Supreme Court of Canada was denied in June 2015.
– October 20, 2015
This case was about whether or not the law allows the Director of ODSP and the Social Benefits Tribunal to waive collection of overpayments in particular circumstances.
For many years, people were able to appeal OW or ODSP overpayments to the Social Benefits Tribunal in situations where repaying the debt would not have been fair. These appeals were standard practice. Many people made appeals like this and were successful in having collection of either all or part of their overpayment waived.
In 2011, ODSP suddenly took a different position. After the Social Benefits Tribunal reduced the amount of an overpayment that Mr. Surdivall had to repay because of an innocent mistake he had made, ODSP appealed the decision. ODSP said that the law said that the Social Benefits Tribunal could not waive overpayments.
Working with us at ISAC, Mr. Surdivall challenged that position in court. We argued that since the law actually says that overpayments “may be recovered,” both ODSP and the Social Benefits Tribunal can decide not to collect an overpayment. We said that they should not collect all of Mr. Surdivall’s overpayment because it would be unfair; in his situation, he had made an innocent mistake, had not benefitted from the overpayment, and would suffer financial hardship if he had to pay it all back.
Mr. Surdivall’s situation is not unusual. Social assistance in Ontario is very complicated. It’s very common for overpayments to happen because of innocent errors like his. They can even happen when all the rules are being followed – the social assistance system is set up in a way that can make overpayments inevitable.
In 2011, the Divisional Court decided that ODSP and the Social Benefits Tribunal did not, in fact, have discretion to waive overpayments. We appealed that disappointing decision to the Ontario Court of Appeal.
In 2014 we won. The Court of Appeal agreed with us that the law actually gives the government leeway in how it recovers overpayments, including allowing them to waive collection of an overpayment if doing so makes sense in a person’s individual circumstances. The Court also confirmed the right of people on ODSP to appeal decisions about overpayment collection to the Social Benefits Tribunal.
ODSP appealed the decision to the Supreme Court of Canada, but in September 2014 the Supreme Court refused to hear their appeal.
The Court of Appeal’s decision also applies to overpayments received by people on OW.
– October 26, 2015
ISAC co-counselled with the Grey-Bruce Community Legal Clinic in a Divisional Court appeal of a decision denying ODSP benefits. The issue involved the type of new medical evidence that the Social Benefits Tribunal and the Director of ODSP must consider when making a determination about an application for ODSP. New medical evidence is important because it helps an applicant establish their eligibility for ODSP benefits.
To read the Appellant’s factum, click here: Factum – New Medical Evidence
The case was heard in October 2014. Unfortunately, the Divisional Court dismissed the appeal, deciding that the Tribunal did not make any legal errors.
ISAC filed an application for leave to appeal at the Court of Appeal arguing that the appeal raised public interest issues about evidentiary barriers for disabled applicants seeking to prove their case. To read the leave to appeal factum, click here: Ferris Leave To Appeal Factum Feb 6 2015
– October 20, 2015In June 2015, the Court of Appeal dismissed the leave to appeal. ISAC will continue to work with individual community legal clinics to help them ensure that new medical evidence is properly considered by the Social Benefits Tribunal.
In 2006, the Ontario government overhauled the eligibility rules for the Special Diet Allowance, a benefit available to Ontario Works and ODSP recipients who face extra costs because of special dietary needs. Many recipients found that their allowance was drastically reduced or was cancelled altogether. The lack of funding for the foods they needed was a serious threat to their health.
ISAC, the Clinic Resource Office (CRO), and many community legal clinics worked together to bring hundreds of special diet human rights cases to the Human Rights Tribunal of Ontario and the Social Benefits Tribunal. We argued that the Special Diet Allowance program was discriminatory because it did not provide enough funding for some medical conditions and excluded other conditions altogether.
Cases at the Human Rights Tribunal of Ontario
As a result of the work of ISAC and the CRO at the Human Rights Tribunal, the Tribunal agreed that the Special Diet Allowance program was discriminatory and released a series of “lead case” decisions:
- Ball v. Ontario: This case established the legal test that must be met in order to show that the special diet allowance is discriminatory. The Tribunal found that ODSP discriminated 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. ODSP challenged the finding about hypoproteinemia and the Divisional Court overturned the finding of discrimination.
- Martel v. Ontario: The Tribunal ruled that ODSP discriminated by first underfunding and later failing to provide an allowance for Hepatitis C. The condition has since been added to the Special Diet Allowance Program at a rate of $88 per month for those with a Body-Mass Index (BMI) of less than 25. ODSP’s challenge to this decision was dismissed by the Divisional Court. To read the Divisional Court’s decision, click here.
- Crocker v. Ontario: The Tribunal ruled that when paying retroactive benefits for a Special Diet Allowance discriminatorily denied, ODSP must pay the retroactive benefits in full to the recipient. The retroactive benefits cannot be applied against outstanding overpayments.
- Buklis v. Ontario: The Tribunal ruled on eleven different conditions:
- Cardiovascular Disease and Non-Alcoholic Fatty Liver Disease (NAFLD) were dismissed because the lead claimants were receiving a Special Diet Allowance for other conditions that met the dietary needs of their cardiovascular disease at the same time.
- Chronic Constipation, Diverticular Disease and Dumping Syndrome were dismissed because the dietary recommendations for these medical conditions overlapped with a “regular healthy diet”.
- Gallstones, Unintended Weight Loss (Congenital Heart Disease) and Unintended Weight Loss (Hepatitis C) were dismissed because the Tribunal concluded there was insufficient evidence to show that there is general recognition in the Ontario medical community that a special diet is required as treatment. Despite this finding, in December 2014 the government added Unintended Weight Loss due to Chronic Hepatitis C (BMI<25) with interferon treatment to the program.
- Prader-Willi Syndrome was granted. This condition was added to the Special Diet Allowance Program in January 2013 at a rate of $200 per month.
- Unintended Weight Loss (Dysphagia/Mastication or Swallowing Difficulties) was dismissed because the Tribunal concluded there was insufficient evidence to show that there is general recognition in the Ontario medical community that a special diet is required as treatment. ISAC and the CRO challenged this decision at the Divisional Court. The Divisional Court found that the Tribunal made a mistake when it said that there was no evidence to support the need for a special diet and ordered the Tribunal to re-hear the case. The case has since been withdrawn.
- Unintended Weight Loss (Renal Failure) was granted. This condition was added to the Special Diet Allowance Program in January 2013 at a rate of $191 per month for weight loss between 5-10% and $242 per month for weight loss greater than 10%.
After we initiated litigation, in April 2012 the government agreed to include pre-diabetes in its definition of diabetes. This means that people who have pre-diabetes are eligible for the diabetes special diet allowance. (See our information bulletin on this here: Special Diet Allowance – Pre Diabetes – You May Now Be Eligible – 2012).
Again, after litigation was initiated by another community legal clinic on Rett Syndrome and by ISAC on Congenital Heart Defect, in December 2014 the government also added Rett Syndrome (BMI <18.5) and Congenital Heart Defect (have had a Ross procedure or arterial switch procedure or have coexisting coarctation of aorta). See the announcement here.
Cases at the Social Benefits Tribunal of Ontario
In addition to our work at the Human Rights Tribunal, ISAC provided advice to community legal clinics across the province on their outstanding appeals, to help them get settlements for their clients who received a smaller allowance than they ought to have received. ISAC also worked with the Social Benefits Tribunal to identify people who were entitled to a special diet settlement who needed legal representation. These people were referred to ISAC for representation, and we settled 17 cases. Through this work, the Ontario government has paid out tens of thousands of dollars that were originally wrongfully denied to ODSP and Ontario Works recipients.
– November 16, 2015
In 2011/2012, the College of Physicians and Surgeons of Ontario held a disciplinary hearing involving Dr. Wong. The case had to do with the manner in which Dr. Wong completed Special Diet Allowance application forms.
ISAC was granted permission to intervene in the case, to address 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.
In December 2012, the College concluded that Dr. Wong breached the standards of his profession, but noted that the standard for completing the forms should not be so high that individuals cannot access the program.
To read the Notice of Hearing, click here: Wong – Notice Of Hearing – CPSO – 2011
To read the Panel’s Decision granting ISAC the right to participate in the hearing, click here: Wong – Intervention Decision – CPSO – 2011
To read ISAC’s closing submissions, click here: Wong – ISAC Factum – CPSO – 2012
To read the Panel’s decision, click here: Wong – Complaint Decision – CPSO – 2012
– September 12, 2014