THE STANDING SENATE COMMITTEE ON SOCIAL AFFAIRS, SCIENCE AND TECHNOLOGY
EVIDENCE
OTTAWA, Thursday, April 27, 2023
The Standing Senate Committee on Social Affairs, Science and Technology met with videoconference this day at 11:01 a.m. [ET] to study Bill C-22, An Act to reduce poverty and to support the financial security of persons with disabilities by establishing the Canada disability benefit and making a consequential amendment to the Income Tax Act.
Senator Ratna Omidvar (Chair) in the chair.
[English]
The Chair: I would like to begin by welcoming the members of the committee and our witnesses. First of all, our apologies for the delay from yesterday. Some things are out of this committee’s control. I also want to welcome the public watching our proceedings.
My name is Ratna Omidvar. I am a senator from Ontario and the chair of this committee. We will begin by asking senators to please introduce themselves.
Senator Bovey: Welcome. I’m Patricia Bovey, senator from Manitoba.
Senator Burey: Sharon Burey, senator from Ontario.
Senator Bernard: Wanda Thomas Bernard from Nova Scotia.
Senator McPhedran: Marylou McPhedran from Manitoba.
[Translation]
Senator Petitclerc: Chantal Petitclerc, senatorial division of Grandville, Quebec.
[English]
Senator Dasko: Donna Dasko, senator from Ontario.
Senator Lankin: Frances Lankin, senator from Ontario.
Senator Seidman: Judith Seidman from Montréal, Quebec.
Senator Osler: Gigi Osler from Manitoba.
Senator Kutcher: Stan Kutcher, Nova Scotia.
Senator Cotter: I’m Brent Cotter, senator from Saskatchewan, sponsor of the bill. I am not a member of the committee.
The Chair: Welcome all.
Today, our committee continues its study of Bill C-22, An Act to reduce poverty and to support the financial security of persons with disabilities by establishing the Canada disability benefit and making a consequential amendment to the Income Tax Act.
I would like to take a moment to remind those participating in today’s meeting, as well as those observing the proceedings in person and via video, that the committee has taken steps to allow for the full participation of all witnesses and members of the public in the context and consideration of Bill C-22. In planning inclusive and accessible meetings, the committee has made arrangements for sign language interpretation in American Sign Language and Quebec sign language for those witnesses appearing in person and for those in our audience. The sign language interpretation will be incorporated into the archived video recording of the proceedings, which will be made available at a later date on SenVu via the committee’s website.
Finally, if a member of the audience requires assistance at any time, please notify one of the pages or the committee clerk.
Joining us in person today, we welcome Steven Muller, Vice President of Litigation, Share Lawyers; Hart Schwartz, Adjunct Professor, Osgoode Hall Law School, York University; and Neil Hetherington, Chief Executive Officer, Daily Bread Food Bank. Thank you so much for joining us today. Again, our apologies for the rescheduling.
Before we begin, I would like to ask members and witnesses in the room with us to please refrain from leaning in too close to the microphone, or if you do so, please remove your earpiece. This will avoid any sound feedback that could negatively impact the committee staff in the room.
I remind witnesses that each organization has five minutes for opening statements, which will be followed by questions from senators. Mr. Muller and Mr. Schwartz have agreed to share their time.
Steven Muller, Vice President of Litigation, Share Lawyers, as an individual: Thank you, senators. My name is Steven Muller and I am Vice President of Share Lawyers practising in the area of long-term disability benefits for the last 25 years. My colleague Hart Schwartz and I are honoured to be witnesses on the study of Bill C-22. I acknowledge that I am speaking to you on the traditional unceded territory of the Algonquin Anishinaabe people.
I have been practising in the area of long-term disability benefits for the last 25 years. Hart Schwartz is an Adjunct Law Professor at Osgoode Hall Law School and recently retired after a 35-year career as counsel with the Constitutional Law Branch at Ontario’s Ministry of the Attorney General.
We support the purpose of the new disability benefit to reduce poverty and to support the financial security of persons with disabilities. Bill C-22 has been described as a once‑in‑a‑generation change. That said, we are concerned that this historic moment will be lost by ignoring the fact that the amount of the new disability benefit will be set-off or deducted from the amount of long-term disability benefits.
Here is the problem: Long-term disability benefits in Canada are an important part of the social safety net protecting our neighbours and workers from the cruel moments of life. Many workers, unionized or non-unionized, white collar or blue collar, are covered under a group disability policy, an administrative services only contract or a health and welfare trust. These contracts state that disability benefits will be reduced from other sources for the same or related disability. One of those sources are “government plans” or “government programs.” It does not matter under these contracts how you characterize the new disability benefit; the contract wording allows for set-off or deductions whether the benefit is characterized as a “social benefit” or an “income benefit.”
Clause 9 of Bill C-22 fails to address the set-off or deduction provisions in a long-term disability scenario.
Private insurers already set-off the amount received for CPP disability benefits. If you add this new disability benefit, then the government effectively becomes the primary payer of the long‑term disability benefits. Without a prohibition on deduction or set-off by a private insurance provider, the targeted beneficiaries of the Canada disability benefit will receive no supplemental benefit at all.
The stated purposes of the new federal program will be undermined.
Let’s now talk about the solution: We are reminded of the adage that “politics is the art of the possible.” We have a “possible.” We have proposed a small change to clause 9 that will ensure that the new benefit goes to the person with a disability. Remember that clause 9 is the only provision in this bill that deals with deduction, set-off or compensation. We are asking the Senate to add 10 words to subclause 9(c). They are: “ . . . or by contract, agreement, private insurance plan or similar instrument.”
This change would remove the possibility that anyone using a contract, agreement, private insurance plan or similar instrument could deduct the new disability benefit from a disabled recipient.
Hart Schwartz, Adjunct Professor, Osgoode Hall Law School, York University, as an individual: The proposed amendment would be constitutional. Bill C-22 falls under the federal spending powers. Just as Parliament can decide who will receive the benefit, Parliament can decide who will not. They can do so either directly or indirectly.
Our proposed amendment to subclause 9(c) could also be supported by the ancillary powers doctrine. That doctrine allows for federal laws to touch upon areas of provincial jurisdiction where it’s necessary for the federal scheme to achieve its goal. Here, the goal of the federal program would be wholly undermined because with the set-offs, the disabled person effectively receives no disability benefit at all. How can it be a supplementary benefit if it can’t be supplemental?
Federal laws can affect private contracts where necessary, for example in the 2020 Genetic Non-Discrimination Act case, the Supreme Court of Canada upheld federal legislation that began in the Senate which prohibited surrogacy contracts for profit; all that can be provided is expenses, not compensation. That was upheld by the Supreme Court of Canada. That was something that affected the insurance industry. The Genetic Non-Discrimination Act is another statute. Insurance companies cannot ask, have you had a genetic test? They cannot ask if you have had a test and what the results were. That goes to the heart of the contract, but it was upheld as it was necessary for the federal scheme to achieve its purpose.
This proposed amendment isn’t unprecedented. The minister said she couldn’t think of a similar example, but we found one. The Merchant Seamen Compensation Act. You’ll find that as an appendix to these oral submissions. It’s a clear example of a federal benefit that is insulated from set-offs or clawbacks. Indeed, it also counters the argument that a federal benefit scheme cannot interfere with private contractual arrangements. If we can insulate merchant seamen from clawbacks, it is surely in the interests of Canadians as a whole to insulate the impoverished disabled from a set-off or clawback in Bill C-22.
Finally, cabinet could not enact a regulation to prohibit set‑offs and clawbacks. Clause 11 of this bill deals with form, it does not deal with the substantive power to prohibit set-offs. Even if the act were amended to allow this to be done by regulation, it would provide no assurance that cabinet would, in fact, prohibit set-offs or that a future cabinet would not remove that protection.
Mr. Muller: The Minister’s alternative approach is to work with each of the provinces and territories to persuade them to change their provincial legislation to prevent set-offs. This is a bad idea. Long-term disability in law is very nuanced and complex. Each of the provinces has distinct insurance acts. Group policies can fall under different parts of these statutes. Administrative services only contracts do not fall under the insurance acts at all. They are purely private contracts between the employer and employee. Health and welfare trusts can fall under the insurance acts of the provinces, but they can also be self-funded and not fall under the insurance acts, either. Group policies, administrative services only contracts and health and welfare trusts can have their terms incorporated in collective agreements. The huge number of statutes and private contracts that each province would have to agree to change to insulate a federal program makes this task practically unworkable.
We also support the AODA Alliance’s insurance deterrence amendment. Anyone who takes the benefit by contract, agreement, private insurance plan or similar instrument should be required in law to give it back to the disabled recipient.
As we have shown, the insurance industry proposal of characterizing the bill as a social benefit does not work contractually. The federal government’s proposal that it will attempt to negotiate memorandums of understanding requires at least a dozen provincial acts and many collective agreements to be changed is unlikely and unworkable. Some disabled workers will be left behind.
During these last few years of COVID, Canadians are tired of leaving their neighbours behind. Many of the disability groups that have appeared at the Senate committee do not want that. Yes, we all want Bill C-22 to move quickly through Parliament, but we don’t want this historic moment to be lost. We can legally make a small amendment that will protect the intended beneficiaries of Bill C-22. Government funds need not end up as a windfall for private insurers. Taxpayers of Canada need not indirectly support the private insurers through this bill. We can, with a ten-word amendment, appropriately protect the disabled who are impoverished in this generation and the next.
Senators, we need to amend this disability bill now. Thank you.
The Chair: Thank you very much, Mr. Muller and Mr. Schwartz.
Neil Hetherington, Chief Executive Officer, Daily Bread Food Bank: Good morning and thank you, senators, for this opportunity. My name is Neil Hetherington, and I have the awesome privilege of representing the Daily Bread Food Bank, Canada’s largest food bank based in Toronto.
Our vision is simple. We want to ensure that everybody’s right to food is realized and today, sadly, we are far from that. Daily Bread is a proud member of the Defend Disability coalition, a group comprised of people with lived experience of disability and poverty and those walking alongside them in that journey.
I would like to first start by acknowledging that I am not somebody who will be a beneficiary of the Canada disability benefit. I do not have a disability, and I’m grateful to have a salary that allows me to meet my needs. I acknowledge this because it’s critical that the committee prioritize the voices of the disability community in considering Bill C-22. These voices are clear. Bill C-22 is a historic opportunity to alleviate and even eliminate poverty among those with disabilities. The Senate must move with expediency. There is some debate about potential amendments. That, however, is overshadowed by a clear alignment that the fundamental guiding principles of this bill are the right ones.
Last year, there were over 2 million food bank visits in Toronto alone. At Daily Bread, we moved from serving 60,000 clients per month to 270,000 per month. Close to half of the clients we serve identify as having a disability or chronic health condition. One in four food bank clients reported that the reason they needed access to the food bank was because of their disability. Our annual research report Who’s Hungry shows that food bank clients with disabilities experience more severe food insecurity than clients without disabilities. It’s startling that in Canada one in three food bank clients with disabilities reported going hungry at least one day per week.
I’ll share a quote from one of our clients who has a disability:
I eat 1 or 2 meals a day. I can’t afford 3 meals a day because of the cost. If it were not [for the] food bank, I would not be able to make it, it would be 8-10 days without food per month. Groceries are expensive and because I’m visually and physically impaired; I have no choice but to come by taxi from grocery stores. It costs me 20 bucks every time I go shopping.
As disturbing as it is to hear this individual struggle to afford food, the most basic necessities, it should also come as no surprise when we consider that people with disabilities in Canada are more likely to be living in poverty, experiencing food insecurity, facing barriers to employment and lacking affordable, accessible housing. We see that every day. We see every day that the current patchwork of social programs providing some income supports for people with disabilities are insufficient, to say the least.
One in four food bank clients in Toronto rely on Ontario Disability, which despite receiving a 5% increase this year, still leaves recipients $900 below the poverty line every month. People with disabilities are being legislated to live in poverty, and that is simply unacceptable. But here is the hope: The Canada disability benefit has the potential to rectify this and enable Canada to finally meets its obligations under the United Nations Convention on the Rights of Persons with Disabilities. When I say the Canada disability benefit has the potential, it’s because very little is known from the legislation about the design or the benefit, as much has been left to the regulations.
There are four key considerations that have not been defined in the legislation. First, while the bill makes mention of setting the benefit amount in consideration of the official poverty line, there is no legislated minimum threshold. To achieve the bill’s dual objective of reducing poverty and promoting financial stability, it’s critical that the benefit is adequate to lift Canadians with disabilities out of poverty and reflect the extra costs associated with living with a disability.
Second is eligibility. To reduce barriers to access, individuals receiving disability supports, including the disability tax credit and provincial social assistance programs should automatically qualify.
Third, the bill does not articulate specifically that province and is private insurers should not clawback these benefits, as was recently discussed.
Finally, the bill currently includes no legislative appeal mechanism. Those who are deemed ineligible for this benefit should have the right to challenge that decision through an independent, accessible, transparent and timely dispute resolution process. Despite these limitations, we recognize the importance of this bill so that regulation developments can begin and that funds can get into the hands of those who need it.
We are pleased to see a commitment in the legislation to meaningful collaboration with people with disabilities and the co-creation of these regulations.
I am often asked, do I have hope given the rising number of food bank users across the city that I serve and the country as a whole? The answer is I do have hope. I have hope because of opportunities like this. I have hope that the Canada disability benefit has the potential to eliminate poverty among people with disabilities. Let’s seize this historic moment. Thank you.
The Chair: Thank you, Mr. Hetherington, Mr. Schwartz, Mr. Muller.
We will now proceed to questions. I remind senators you will have four minutes for your questions and answers. We have a full house today. Witnesses can submit additional answers in writing. Colleagues, please indicate if your question is directed to one or all of the witnesses. It helps. In addition, I ask you to please identify yourself.
The first question, to Mr. Muller, were you consulted during the design of this bill? Did you appear before the House committee?
Mr. Muller: No and no. I found out about this bill at the end of December. I received a podcast from Osgoode Hall Law School. I listened to it. I said, oh, my God, they are going to ruin long-term disability benefits.
I wrote an email to Minister Qualtrough’s office and got something back that said, if I’m not in her riding, I’m not going to be able to get a response.
Ten days later, in January, I received an email from policy people from Minister Qualtrough’s office. I asked them for a copy of the bill. I read it. I said, you know we need to amend this; there is a problem here. They said that they want to have a meeting with me.
I had a meeting with three policy people in mid-January. I educated them on what I do, long-term disability 101. They looked like they were deer with headlights on. They had no idea. We talked about long-term disability. At the very end, I said, “Didn’t anyone actually talk about long-term disability?” Well, there was a submission from CLHIA. I said, “Can I have that submission?” They sent it to me.
I then rallied my village, got Hart Schwartz involved. I got people who care about the disabled. I then proceeded on.
Since then, I sent an amendment to the policy folks. They said to me, “You know this is going to third reading and then to the Senate. You can talk to the senators about your concerns.” So here I am.
I have given my speaking notes last week to the policy people in Minister Qualtrough’s office. I haven’t heard back. I invited them to speak to me. No one has responded since.
Yes, I have rallied. The Trial Lawyers Association of Canada, every single one in this country, has agreed with our submissions. That’s a lot of lawyers. Three lawyers never agree on anything. I have all Trial Lawyers Associations in Canada who have agreed on my proposals.
The Chair: Thank you, Mr. Muller.
Senator Bovey: Thank you all. I appreciate this. You know that we have been faced with a conundrum. We have had people come to this committee saying, “Pass this act immediately. We need the money. Please get us some money. We don’t trust the time it will take for amendments. We are worried there will be an election and all will be lost. We are better to have what we know we will have than nothing.”
Then we have heard from people who say, “You have to make the amendments because we need the surety of provisions in the act as opposed to in regulations.”
You know I’ve been very concerned about clawbacks. I am in a province where the provincial government does many clawbacks. I would like your thoughts.
Can you help us with this teeter-totter, this conundrum we are in? How do we balance the, “You have got to do it now,” but “You have got to get these provisions in the act”? If all of you can dig a little deeper, I would be grateful.
Mr. Schwartz: That’s why we propose 10 words to keep it straightforward and simple. The reality is that if the minister enters into memorandums of understanding with the insurance companies, that’s not a contract between the disabled person and their insurance company. Their contract trumps any memorandum of understanding.
Of course, the disabled person would have to know there is a memorandum of understanding and ask to enforce it, which is often not the case. The contract trumps the memorandum of understanding. But a statute always trumps a contract.
That’s why we think holding out on the view that, oh, well, we can negotiate with provinces, not just with respect to their disability programs — the ODSPA in Ontario, workers’ compensation — but we’ll also negotiate with insurance companies, we think it’s a gargantuan task and it’s really not realistic. Better to add 10 words to the legislation.
Senator Bovey: Mr. Hetherington, I wonder if you can add, from your perspective, and that of your clients?
Mr. Hetherington: It’s a difficult position you are in, senator. We know empirically that those benefits need to flow immediately. At the food bank, we are at a breaking point. This is absolutely needed.
I’m not qualified to say how much of an amendment can go through. I know that there are others who are more qualified, who can speak to that. If it’s 10 words, I’m not sure of the challenges that will bring up in terms of speed.
I can tell you about the need, from an urgency perspective, that we feel at the food bank.
Senator Bovey: We have heard a lot about this being a once‑in-a-generation piece of legislation. We have also heard from people who have said that one of the positives of this bill is it allows a person to move from one province to another if they need to be with family without losing this benefit. If they move provinces otherwise, they lose time in getting the benefits. Can you address that for me, please? Is that one of the real benefits of this act?
Mr. Schwartz: It’s no benefit if private insurers throughout the country in different provinces can set-off the amount so that effectively you get no disability benefit at all. As we indicated, the regulation-making power doesn’t give cabinet the ability to fix that. It has to be done by statute.
Senator Seidman: Thank you for being with us and for making a very compelling presentation. I have to say that I’m very perplexed. I would like to go back through the sequence of events and your reasoning.
As you were presenting to us very definitive statements, saying the stated purposes of the new federal program will be undermined completely by this law, my question was then, okay, can we get this out of the regulators? Then you promptly answered that question by saying, no, because of clause 11 in the bill, we can’t get this out of the regulators.
Then I thought, I wonder if the minister can do something. Then you said, no, the minister can’t because there is a web of very complex provincial and territorial laws that are going to impede this and make it very complicated which, by the way, is the same issue for provincial clawbacks, right? We’re all concerned about provincial clawbacks as well.
My question is, in a very perplexed way, why do you think the bill has been constructed in this way, even as a framework bill, which is very minimalistic? Why would this be forgotten? I’m trying to understand that.
Mr. Muller: We need to amend this bill. Currently we have an unintended consequence. Right now, we’re at this pivotal moment where we’re making an intended consequence. We are leaving out a substantial group of people.
Bill C-22 was built as a big tent program. But 53% of employees have access to long-term disability benefits in Canada. $8.8 billion was paid out in long-term disability benefits in 2021. Long-term disability benefits represents about 20% of the total spending of benefits. About 25% of total spending is provincial social assistance with disability designations. And 25% is spent on provincial workers’ compensation payments according to the OECD report. Many people getting long-term disability benefits get modest amounts, and they’re going to be left out. People move between provincial programs. They get provincial programs and start working, then something else happens, and they go on long-term disability, and they’re going to be left out.
Basically, we have a boat, and it’s sinking. Minister Qualtrough has put a patch on that boat. That’s great, but by doing that patch, she has created another hole. She is using scissors to fill up that hole, but we need a patch.
Senator Seidman: I’m from Quebec. I know the law is different in Quebec from the rest of the country, so I would like you to help me understand. Would this recommendation you are making, which is based on the ancillary powers doctrine, apply in Quebec as well?
Mr. Schwartz: Yes, the ancillary powers doctrine applies across Canada. The example I gave of the Genetic Non‑Discrimination Act certainly applies to contracts that would be covered under the Civil Code of Québec.
Senator Seidman: As well as the federal Merchant Seamen Compensation Act, which is what you quoted as an example of this already occurring?
Mr. Schwartz: Yes.
Senator Seidman: That is in Quebec as well?
Mr. Schwartz: That is federal legislation that applies across Canada.
Senator Seidman: But it does apply the same way. The law is different in Quebec — that is what I’m concerned about.
Mr. Schwartz: That’s right.
Senator Osler: My question is for Mr. Muller and Mr. Schwartz. Thank you very much for your testimony.
I’m trying to get an idea of the number of Canadians who could be affected now or in the future if your recommended amendment is not passed. Can you give this committee an idea? What percentage of disabled Canadians are currently receiving long-term disability benefits from a private insurance provider? In your experience, do you think that would be a static number? Do you see the number of Canadians receiving long-term disability benefits increasing in the future?
Mr. Muller: That question is probably most appropriate with the Canadian Life and Health Insurance Association, or CLHIA, which is going to be here next week. However, I will answer you to some extent.
The insurance industry is complaining about more payments, more costs and the number of long-term disability people rising. Employers are complaining about the fact that their premiums are going up. We know from what I mentioned a moment ago that the OECD report of about 10 years ago talked about how 20% of total spending was for long-term disability. But here is the kicker, and this committee should really appreciate this. This also affects motor-vehicle accidents because in Ontario you get $1,600 a month. It affects — we have clients that have non‑evidence limits of $2,000 or $1,500.
This is what is going to end up happening. You might end up having a $1,500 or $2,000 benefit from long-term disability, and you end up with cost-of-living adjustment. This benefit might come in at $2,500, and the individual has $2,000. They might be disabled, and they might be impoverished, and they go to their insurance company and say, “I’m not doing well.” They’ll be told to apply for the Canada disability benefit, and they get $500. Then they get another $1,000 from CPP disability. Then, the insurance company is on the hook for only $500, and the Government of Canada becomes the primary payer of insurance.
We’re effectively destroying long-term disability programs in Canada. When insurers end up ignoring assessment of risk and focusing their efforts on having claimants collect monies from federal sources, it creates a significant abuse and power imbalance in the system. What we effectively have, currently, with Bill C-22 are issues with respect to access to justice, consumer protection and a power imbalance. We have to grapple with this. This is very important, and we need to amend this bill now.
Senator Petitclerc: Thank you so much for being here today. I had questions for both witnesses, but, Mr. Muller, you’ve been so comprehensive in your answers. Thank you, Senator Seidman, for the question. I think it has been very helpful for me.
I will direct my question for you, Mr. Hetherington. One of the concerns I have is that Bill C-22 is not prescriptive in the sense of respecting the poverty line. What it says is that the poverty line or consumer basket needs to be taken into consideration. All of the witnesses have been very clear that this is not enough when you are a person living with a disability. Even your document is saying that it needs to be at least 30% over the consumer basket.
I heard something very interesting. Someone said — and I believe it’s true — that to use a general measure like the consumer basket and apply it to persons with disability is, in fact, a good definition of ableism. I think it really spoke to me.
My question is this: Should the language be stronger? Is it enough that we ask that the bill is asking to only take into consideration, or should it be stronger?
Mr. Hetherington: Of course, it would be beneficial to be stronger. We run into that same challenge of sending it back without amendments and the challenge of not getting the funds into the pockets of individuals who have a right to it. At the Daily Bread Food Bank, our recommendation was for the market measure plus 30%, to accommodate the increased costs. But it’s the same dilemma.
Senator Petitclerc: It would be best if it —
Mr. Hetherington: It would be preferable.
Senator Petitclerc: Thank you for this.
I think I have no more questions for now.
Senator Lankin: I have a question for each of you, so I’m going to be really short, and I would ask you to be really short in your answers.
Our office has been working on a number of potential amendments. I think that as a committee, we will discuss the larger dilemma of no amendments and get it done versus amendments.
One of the amendments, Mr. Muller, is to clause 9 with respect to the insurance contracts. Our amendment has nine words — all of them contained within your 10 words, and the one that is missing is “private insurance plan.” It would read as follows: “Cannot be retained or recovered in whole or part unless the terms of any contract insurance plan or similar instrument.”
Does that omission of the word “private” amount to something that will create unintended consequences, or does the inclusion of the word “private” potentially create unintended consequences? You can defer and respond later in writing if you want.
Mr. Muller: I think that I would actually add “compensation” in the amendment, if you’re going to take away “private,” and just say, “insurance plan.” But “insurance plan” — effectively, my concern is private as opposed to public insurance plan, but if you say insurance plans in general, we’re going to be able to avoid workers’ compensation, and non-economic loss in Ontario becomes a problem. If we put the word “compensation” in, that will protect tort. If we ensure that we have an insurance plan, we’re going to end up covering off group long-term disability.
ASO contracts —
Senator Lankin: I will ask you to please submit the rest of that to us in an email, because we’re going to run out of time.
Mr. Schwartz, you mentioned that clause 9 was unconstitutional. Two of the amendments we’re working on one is in clause 8 with respect to provincial clawbacks and the other is in clause 9 with respect to federal agency clawbacks — not allowing it anywhere.
Do you see any constitutional problem, Mr. Schwartz, with an amendment that would say that the minister can enter into agreements with provinces, et cetera, that prohibit the province, departments or agencies for potentially clawing back, in whole or in part, a benefit under this bill? Are there any jurisdictional or constitutional problems you would have with this?
Mr. Schwartz: No, I would not. In my 35 years at the Ministry of the Attorney General, we had many instances in which there were federal-provincial agreements like that, whether it had to do with fishing quotas or Canada Health Act. Those sorts of arrangements happen all the time. In fact, that is consistent with cooperative federalism, which the Supreme Court of Canada has said is the way we go now in jurisprudence as opposed to the old watertight compartments approach.
So I think those agreements would be wholly constitutional.
Senator Lankin: Okay, thank you.
Mr. Hetherington, you talked about the percentage of people coming and getting support from the food bank who report having disabilities and that disability is the prime cause for their need to use the food bank. That number was 50%, I think. You also talked about a stunning increase in the number of people who are coming in. Is that post-pandemic? Is that the increase in cost of living —
The Chair: Sorry, but we have to get this done somehow.
Senator Lankin: Next time, give me a warning as to how much time I have left when I ask.
The Chair: I apologize.
Senator Kutcher: My question would have been perfectly timed for Senator Lankin, so I’ll continue along that line.
Long COVID is being called a mass-deterioration event, with the projected number of long-term disabilities from long COVID going up dramatically. We don’t know how much at this point in time because we’re not through with long COVID; we’re just starting to see it now.
Would you say that we, as a committee, should be concerned about an expanding amount of long-term disability as a result of this pandemic that this bill may not have considered?
Mr. Muller: Thank you, Senator Kutcher. I am receiving long-term COVID cases. I’ve been practising, like I said, for 25 years. I’ve represented about 1,800 clients in Canada, and I represent clients in Ontario and British Columbia. I would say that the pandemic has been unbelievably challenging for clients with fibromyalgia, chronic fatigue, long COVID and mental health issues. Those individuals are really suffering. Taking away and not giving them the supplement that they should be receiving is really problematic.
Senator Kutcher: Could you say if the impact of long COVID on increasing the demand for long-term disability in this country will be substantive and this bill needs to reflect that?
Mr. Muller: When you speak to the big three insurance companies, their claims have gone up. Their claims are going up due to long COVID; they’re complaining about that. They’re inundated, and they’ve got lots of lawsuits. Lots of people are being denied. It’s a real problem.
Senator Kutcher: Thank you very much.
I have a last quick question. You shared with us that all your colleagues concur with your amendment. I’m impressed to hear that. But if we were to have the former dean of a law school here at committee, and if he were to give you a task to argue against your own amendment, what would you say? What would your argument against it be?
Mr. Muller: Let’s talk about that. Minister Qualtrough said that a social benefit is what the insurance industry is talking about. So what did the industry say? On November 15, 2022, they defined the Canada benefit as a social benefit, since the object is to lift Canadians out of poverty. By doing so, there will be fewer — they don’t say none — income support programs that will be offset given that this is an income stream.
On March 17, 2023, they use the same wording.
When an insurance company or an industry says “fewer,” that doesn’t mean anything. It means they’re going to offset. Two of the three large insurance companies in Canada have language in their policies that would offset this language.
If I got it wrong and all of the trial lawyers associations of Canada got it wrong and the insurance industry is correct, it’s clearly not clear and certain, and we don’t have closure. By making the amendment, we will make it clear and certain, and there will be closure.
Senator Kutcher: Thank you very much.
Senator Burey: Thank you so much. It’s just an honour to be here in a room where Canadians are working together so hard to find solutions.
My colleagues have looked at the issue of clawbacks, and you have given us some good information because that’s something that has come up a lot. In medicine, we often have this thing where we look at things that we don’t know. So I’m using this now to go to jump into the next part which is this: Do we have enough money to bring people with disabilities out of poverty? You spoke to that, Mr. Hetherington.
Now, using the same issue in terms of having something actually in the bill versus having it fixed in regulation or changed through ministerial powers, will the poverty line and using that basket measure without a modifier — should it actually be in the bill itself, or is this something that we could change through regulation or have input through regulation, as has been suggested, or through ministerial power? Is this a similar situation with the insurance company thing — that we want to make sure we have enough money for people with disabilities?
Mr. Schwartz: Could I get clarification on your question? Is it whether the clawback can be in the regulation or the —
Senator Burey: Not the clawback — the amount that people will be able to get. It really says that you have to take into consideration this basket of measure. Maybe Mr. Hetherington, you’re not a lawyer —
Mr. Hetherington: No, I’m not.
Senator Burey: — but is it something we can fix with regulation or ministerial power, or do we need to put it in the bill — something more prescriptive?
Mr. Hetherington: As was mentioned to the senator, it would be preferable to do that.
You asked if we have enough money. When you first asked that, I took it to mean, nationally, do we have enough money to be able to do this. From an economic perspective, we know that poverty costs $33 billion just in Ontario alone. It is incredibly expensive to carry on with the current system that leaves people so far behind. We need to make that investment.
To Senator Lankin’s earlier question, our numbers indicate that we went from about 60,000 clients per month to 120,000 at the start of the pandemic, and now it is 270,000 a month, and there is no indication that the ratio of people who have a disability has changed from 2020 to 2023.
Mr. Muller: I will add one comment. We owe it to our children and grandchildren who might get Parkinson’s, MS or cancer and become impoverished to ensure that money doesn’t get bled out of the system and go to insurance companies when that money can go to the disabled and impoverished.
Yes, if you put an amount in, or at least tie it to some amount — but I think as the cost of living goes up in the bill, where we add the cost of living, that’s going to impact more and more people on long-term disability benefits if we don’t fix the problem.
The Chair: Thank you very much.
Senator Bernard: Some of my questions have been asked and answered, so that’s good. I do have one question, which is for you, Mr. Hetherington.
I want to ask about your stats on usage of the food bank. You said 50% are persons with disabilities. Do you have further disaggregated data that would identify for us how many of those people might be over the age of 65?
One of the concerns that has been raised a number of times by a number of different witnesses is the fact that this bill is limited to people of working age, and working age is identified at age 65.
Mr. Hetherington: We do have that data. I would ask if I could submit that to the committee.
Senator Bernard: That would be very helpful. Thank you.
Senator Dasko: Thank you, witnesses, for being here. Some of my questions have been answered, but I’m a bit unclear about the proposal that you’ve put forward.
The clawbacks have been a great concern of this committee. We’ve asked a lot of witness about clawbacks. We understand that the federal government, the minister, will be negotiating with the provinces. We have focused a lot so far on potential clawbacks from provincial government supports, but, of course, this is an important area, the clawbacks from insurance companies. You’ve explained how this might work.
Mr. Schwartz, you put this in the context of cooperative federalism, and yet, this would be an amendment which would seem to take jurisdiction to the federal level over this, if I’m reading you correctly, just theoretically or potentially. Is there a possibility of a court challenge, let’s say, if this amendment were put in the bill? Would the insurance companies be able to say, “This is not a good idea. This really isn’t your jurisdiction.” Is that a possibility?
Mr. Schwartz: That’s a great question. Yes, of course, it’s a possibility. In fact, the insurance industry is very litigious, as Mr. Muller can attest to, and may want the set-off.
When I spoke before about cooperative federalism as opposed to watertight compartments, I was talking about the overall evolution of constitutional law. During the Depression, Parliament passed the Unemployment Insurance Act. The Privy Council in England struck it down and said, “Insurance, that’s a provincial responsibility. You can’t do it.”
We’ve seen an evolution and a sea change in that where the court looks, as much as possible, to find a way for the two systems to work together.
Our amendment doesn’t change the nature of the bill. The pith and substance of this bill is to provide a supplemental benefit to help persons with disabilities get out of poverty. Our amendment has an incidental impact, an ancillary impact, on the insurance industry.
The insurance industry can say, “Our premiums will go up.” They really can’t. This is a new benefit. Their current premiums are based on the existing social programs, Workers’ Compensation, ODSPA, et cetera. So it doesn’t really affect their bottom line right now. It would be an added bonus to them if they could also set-off this amount.
When I speak of cooperative federalism, I’m talking about the trend. We saw it with the Genetic Non-Discrimination Act.
It is an interesting case, because the government, itself, said, “We can’t do this in interference with insurance companies.” This Senate said, “No. We’re starting this bill.” There was a free vote in Parliament. The free vote passed the legislation. It was challenged. The Attorney General of Canada did something very unusual, in my experience. He argued against the constitutionality of the bill that started in the Senate, and the Supreme Court of Canada came down and said, “Of course the federal government can effect this one small part of the insurance contract and can say, ’You may not ask someone for their genetic history.’”
Senator Arnot: My question is for Mr. Hetherington. Sir, you mentioned that the design of the benefit is in the regulations, and you really can’t comment on it because you haven’t seen it.
How would you design the benefit? More importantly, what input does civil society need, and what mechanism is there for you to get in front of those who will actually draft that benefit? That seems, to me, one of the most salient features of this whole work, so you need to be there.
Second, what can the Senate do to ensure that this issue gets dealt with?
You mentioned no appeal process. That’s obviously a gap. There needs to be easy access to appeal. It should be in the summary, in my opinion. There should be assistance for individuals who need help in making an appeal. Reasons for denial of an appeal or a reduction to any benefit should be in writing. Those are my general comments.
I’m wondering what you might say about all of that. What can we do here in this committee to make sure that’s done properly?
Mr. Hetherington: I would say I would follow your advice. In terms of how you design that, everything that you have said, I agree with. I would add that it shouldn’t be designed by us. Those regulations should be designed through co-creation, as has been promised by the minister. I think that’s valuable.
You’re looking at those four buckets in terms of making sure that there is an appeal process, that it’s accessible and using this as an opportunity for the sharing of information between the province and CRA, so that automatic registrations happen and the benefit moves forward. So eligibility, and then, finally, around what we’ve spoken about a couple of times in terms of what that minimum is, and that minimum being that market basket and an accounting for the additional costs that those persons with disabilities have.
The Chair: Senator Arnot has given me one minute, and I would like to ask a question of either Mr. Muller or Mr. Schwartz, and you can get back to us in writing.
We have a brief in front of us from the Canadian Life and Health Insurance Association. They recommend that the Canada disability benefit be defined as a social benefit. By doing so, this would guard against offsets.
Mr. Muller: The written submissions that I already provided to this Senate committee has the wording of two of the three largest insurance companies, and that wording would be caught under an offset provision or set-off provision. “Government plan” or “government program” is listed in two of the three major insurance companies.
When I ask my colleagues who are defence lawyers, they say, “Of course, it’s going to be caught under a government plan and government program.” I have asked mediators. They say, “Yes. Of course, it will be.”
CLHIA, while they’re going to come here next week, they’re going to say they represent 95% or 99% of the industry. Administrative services only, or ASO contracts, are contracts that are outside of CLHIA. Loblaws has an ASO contract, University of Toronto is ASO. IBM is an administrative services only contract. Costco has for two years. Bell, City of Toronto, City of Ottawa, OC Transpo —
The Chair: Thank you, Mr. Muller. You have made your point.
Mr. Schwartz: The bottom line, senator, is calling it a social benefit will not change the fact that it can be offset.
The Chair: Thank you very much to all three of you. Please appreciate how much wisdom you have imparted to our study of this bill.
Colleagues, we will commence our study of Bill C-22. For our second panel we welcome in person Robert Lattanzio, Executive Director, ARCH Disability Law Centre; and Vince Calderhead, Lawyer with Pink Larkin. Thank you very much to both of you for being with us in person today. I now invite you to provide opening remarks. I remind you that you have five minutes allocated for opening statements followed by questions from our members. Mr. Lattanzio, the floor is yours.
Robert Lattanzio, Executive Director, ARCH Disability Law Centre: Thank you. Good morning, Madam Chair and honourable members of the committee.
I acknowledge that I am here on the unceded territory of the Anishinaabe Algonquin peoples.
I am grateful for this opportunity to appear before you regarding your study of Bill C-22. My name is Robert Lattanzio. I am the Executive Director of ARCH Disability Law Centre, also known as ARCH. ARCH is a specialty legal clinic that practises exclusively in disability rights law. Our clients are persons with disabilities who live in poverty and often experience intersecting discrimination. Since our incorporation in 1979, ARCH has worked alongside disability rights groups and persons with disabilities on a wide range of legal issues.
There has been significant testimony before this committee on the urgent need for the Canada disability benefit due to the deep and disproportionate poverty that persons with disabilities face. The pandemic, the rise of costs of living, the liberalization of medical assistance in dying and the lack of critical supports for persons with disabilities add to the urgency and need for the benefit.
We therefore applaud the efforts in recognizing this dire reality and Minister Qualtrough’s leadership in that regard.
However, as lawyers who work closely with persons with disabilities living with poverty across Ontario, it is our responsibility to express our concern at the deficiencies of this bill and how those deficiencies may severely hamper the timely development of regulations and the receipt of benefits.
There is no question that this bill requires amendments to achieve its stated purpose of reducing poverty for persons with disabilities. We recognize that this bill is framework legislation and that most of the details of the benefit will be developed in regulations. However, the Senate can and should make amendments to include, at least, some human rights and process‑oriented goalposts in the bill. These will help to establish a framework that reflects at least in part gains made by disability communities in asserting themselves as rights holders in domestic and international human rights law.
We have provided a written brief to this committee with specific language on amendments. I will focus on four amendments today that can only be made through legislation. I really want to stress that. These amendments will facilitate regulation development, reduce delays to ensure that benefits are received as soon as possible by those most in need, and do not circumvent the involvement of disability communities in that regulation development process.
First, the coming into force of this bill has direct and significant impact on how quickly benefits will reach those in need. There is a technical deficiency currently in clause 14 as it is drafted. Pursuant to the Interpretation Act, I would interpret that clause as this bill would come into force upon Royal Assent. This is precisely what we and our communities are asking for, but due to how it is drafted there is ambiguity. With that ambiguity we are worried it will cause delay. We would imagine that an amendment to remedy this deficiency of clause 14 might be put forward, and we caution that any amendment put forward should, in no way delay the coming into force of the act beyond Royal Assent.
Second, the bill must allow for automatic eligibility of persons who already receive disability-related income supports. An amendment is needed to require regulation development on this issue. We must avoid unnecessary, burdensome administrative processes and barriers, and not require people to “re-prove” their disability.
Third, the bill must clarify that benefits will not be withheld due to delays to some of the “no clawback” agreement negotiations by the federal, provincial or territorial governments. We support all efforts to ensure that there will be no clawback of the benefit, and we just had that discussion. However, there is a growing concern that such negotiations may unfairly delay or hold up the receipt of the benefit for people in provinces or territories who already have an agreement in place.
Fourth, there needs to be a statutory right of appeal to a tribunal in the bill. The amendment proposed is quite standard language and would still leave the details to regulation development. Access to justice is a fundamental human right.
The amendments proposed will guide the regulation development process, provide important rights-based protections and facilitate benefits —
The Chair: Thank you very much, Mr. Lattanzio. I’m afraid we must proceed with our timelines.
Mr. Calderhead?
Vince Calderhead, Lawyer, Pink Larkin, as an individual: Thank you. Good afternoon, chair and members of this committee.
I want to just say a word about my own background and expertise in this area. As a human rights lawyer, I have almost 40 years of experience in income support cases in many provinces in Canada — social assistance cases — and internationally at the United Nations before treaty bodies, and I just note, with a few seconds of pride, having settled a major human rights case yesterday, that had been before human rights bodies and the Nova Scotia Court of Appeal, for ten years on behalf of people with disabilities in Nova Scotia, now ensuring their right to live in community.
Lastly, I also want to note that for 27 years at Dalhousie University’s Schulich School of Law, I taught a course called, “Poverty Law and Human Rights.” I can’t help but note that my predecessor in teaching that course was Senator Cotter, and it’s pleasing to see him this morning.
Senator Cotter: I taught it poorly.
Mr. Calderhead: My comments just now relate exclusively to clause 11 of the amended bill. I support the submissions of Mr. Lattanzio and Mr. Lepofsky, who will be a subsequent witness. I support them, but today, just now, I want to address clause 11(1.1) of the amended bill, the one entitled “Amount of benefit.”
As things stand, Bill C-22 makes zero provision for adequacy. It could be a dollar a month under the regulations. Or some future government — if not this government — might make it that, and the bill would say nothing at all about it.
Yet, in 2023, the Canada disability benefit cannot leave people in poverty. The minister has said her intention in this bill is to lift people with disabilities out of poverty. International human rights obligations require Canada to ensure the right to an adequate income under various treaties. With this bill, there is enormous potential to achieve a magnificent next step toward a basic annual income in Canada, one that will remove people with disabilities from living in poverty.
Let me also address the so-called urgency claim. Some witnesses have come before you saying, “This bill must pass urgently without delay to get funds into the hands of persons with disabilities.” Clearly, that’s a valid concern, but I make three points for you to consider:
While many witnesses may have asked for a quick, unamended bill, some of these same witnesses had the same message before the House of Commons committee and ironically welcomed amendments that passed that came out of the House of Commons committee. Secondly, many of these same witnesses, when we look at the transcripts, have also said that they want poverty for persons with disabilities to end, so it’s actually a mixed message by some disability rights groups.
And as with any other equality-seeking group, there are a variety and range of perspectives. It’s simply wrong to say, “Disability rights groups say ’X,’” when we know there are a range and a continuum.
But let’s really talk about the main purpose of the delay. The minister has said her priority is to ensure there is no clawback. That can’t happen in legislation coming from the federal government; these are social assistance provincial matters. The way no clawback will get resolved will be through negotiations, and those negotiations will take a long time.
What is the Exhibit A on that? It is the national child care program. Each province had to negotiate an individual agreement. That being the case, there is nothing in this legislation to control that. The delay will not be because of the legislative process; it will be because of the negotiation process, which can be expected to take many months, if not a year or two.
Lastly, let me just say a word about my amended proposal that I have given to members of the committee. Right at the end of page 3, it makes two main points: Currently the amended wording simply says cabinet needs to, “take into consideration,” the poverty line. That is requiring cabinet to do something, but in my amended proposal, I have urged that the legislation be amended to beef up that engagement with the poverty line, and I have suggested wording of, “compatibility with” or “consistent with” the poverty line.
The Chair: Thank you, Mr. Calderhead. I believe you have made your point, and there is time for my colleagues to clarify further.
Colleagues, you know the drill, but this time you will have five minutes each to ask your questions, with your answers.
Senator Bovey: Thank you both for your perspectives. This has been a very interesting morning. I’m not going to repeat the question I have asked many times about clawbacks. Instead, I’m going to twist it in a slightly different way, if I may.
We heard in our prior session about a potential amendment regarding insurance, and today, Mr. Lattanzio, you were talking about the act coming into force upon receiving Royal Assent. If this bill were amended as recommended in our prior session, would you agree that it would be able to come into force on Royal Assent without needing time to develop regulations?
I guess the other teeter-totter I’m on is the time it takes to develop regulations and negotiations and wanting to get the money into people’s hands as quickly as possible. Would your coming into force, coupled with the recommended amendment we had in the last session, deal with getting money to people quickly, and putting in the need to make sure it can’t be clawed back, at least, by insurance companies?
I would ask this question to both our witnesses, please.
Mr. Lattanzio: Thank you for that question, senator.
One of the things to consider is that there really isn’t a strong accountability framework. Everything really starts, as we know, when the law comes into force. If we’re talking about a scenario where the law will only come into force a year after Royal Assent, well, obviously, that starts to delay everything. Certainly, our briefs and other groups have talked about the need for timelines for those regulations, and we have heard that it may take about a year to develop regulations. Now we’re into the two-year realm.
We have a number of different concerns around adequacy, as we have just heard from Mr. Calderhead, but if the goal here is to get money to people as soon as we can, then it’s only logical that we ensure that law comes into force so all those mechanisms — at least the ones that are there and baked into legislation — begin, so we can start the process as soon as we can and start the consultations and start that development.
Senator Bovey: Mr. Calderhead, as you answered this, we have had a brief discussion about the difference between these monies being classified as social versus earned, so maybe you can put that into your answer as well.
Mr. Calderhead: I don’t have a developed view on the Royal Assent coming-into-force issue. I haven’t focused on that, so I can’t speak to that in an informed way.
On the characterization of the benefit, as someone who has worked exclusively for and with people living in poverty during my entire legal career, I must say that how the benefit is treated upon receipt by a recipient in any particular province is a decision made by each province in their social assistance programs. It’s impossible for the federal government to characterize the benefit in a way, hoping to cross its fingers that a particular province won’t treat it as an unearned income or won’t treat it as 100% chargeable. It simply can’t be done. That magic will happen through negotiations.
There is no spin that the federal government can do in its legislation that will tie the hands of the provinces to decide whether it will treat it as chargeable income or exempt it.
Senator Bovey: If the clawbacks are negotiated, however long that takes, and if another party comes into power and has different political viewpoints or ways of doing things, can those negotiated clawbacks be changed?
Mr. Calderhead: It depends on the agreement reached, I suspect. For decades, the federal government had social assistance agreements with the provinces under the Canada Assistance Plan. Those were never changed. If, by legislation, the province decides to treat something that had been not chargeable as chargeable, well then you’re into a tricky business. The most that could be done through fiscal federalism is a negotiated agreement with each province. Then there is a measure of hoping that both parties will maintain that agreement.
Senator Seidman: Thank you for helping us understand the complications of this legislation.
I have a couple of questions. I might just have a moment about the coming into force state, Mr. Lattanzio. And, actually, your point very well taken about accountability. We give up our accountability because this is the framework legislation and everything goes to the regulators and the cabinet.
But the interesting thing about the coming into force state, upon Royal Assent, which is very soon after the Senate passed this legislation, is that the bill itself has an accountability process built in, if I understand correctly. It says, within six months after the day on which this act comes into force, there is a progress report, progress on consulting. Within one year after which this act comes into force, the minister has to table a report in both houses.
Then again, there is a parliamentary review after the first anniversary of the day on which the clause comes into force. The coming into force state is really critical. I think that’s very much the point you’re making. It has to be absolutely crystal clear. We hope that technical error will be corrected.
The other question I would like to ask and then I will leave it to both of you to reply is that one of the things that we have heard from a lot of witness testimony here, from stakeholders, is that the benefit should be based on individual income as opposed to family income. There is a rationale for which, of course, we all understand clearly. A lot has to do with gender issues and potential for abuse.
So, have either of you considered that issue?
Mr. Calderhead: I’m happy to say a couple of words and then my colleague may want that, as well.
On the individual income versus total household family income issue, throughout Canada, it’s almost unheard of to have social assistance available for someone, for example the spousal situation, where a spouse would be entitled to a social assistance benefit because that spouse is not working outside the home, even though their spouse is fully employed. That would be unusual. I’ve never heard of anyone in that situation.
On the other hand, a different scenario, and this is one that is fairly common actually, an adult with disabilities living at home, with their parents for example, upon becoming an adult, it would be entirely appropriate for that person to derive the full benefit of the Canada disability benefit without taking into account the family income. Essentially because they are no longer legally under the charge of their parents.
Mr. Lattanzio: I would add to that, just in terms of international human rights obligations under the convention, when we talk about autonomy and the right to make one’s own decision, this is so critical, right? These fundamental, core rights really need to be infused. So again, I would support Mr. Calderhead said about needing to have an individual versus family approach to it.
Senator Seidman: If I might just go back to the issue with the coming into force state, is this the kind of accountability you’re asking for, the accountability already in the legislation and therefore as soon as it comes into force that timeline goes into effect?
Mr. Lattanzio: Certainly, as part of it, if I could push the envelope a little bit. In our brief, there are also other possibilities to strengthen that accountability framework. Senator, you mentioned the progress reports. I take this committee back a couple of years ago with the Accessible Canada Act. This committee was pivotal in strengthening that bill, and really strengthening the accountability framework where we got timelines on some of the regulations that are needed to be passed. I didn’t mention it in my oral submission but that is also in my brief. Those are all elements that we can continue to fine‑tune and just add, but in many ways it comes back to when the law actually takes effect. Co-creation and consultation have been talked about a lot, but the law needs to be in effect to begin those processes.
Senator Seidman: Thank you both.
Senator Osler: Thank you to both witnesses for your testimony and your brief.
Mr. Lattanzio, your brief provided six recommended amendments to Bill C-22. Perhaps not with the first amendment with the coming into force, but could equivalent outcomes be achieved through regulations in lieu of amendments?
Mr. Lattanzio: I think back to a lot of the discussions here about perfection. I start with that because if perfection were what ARCH were actually striving for, all those amendments would be substantially different. I can assure you that.
What we were trying to do and what my colleague also doing and why we have been working together to really think about amendments that have, at the very least, some important impact to moving this along. I’m not sure if that answers your question.
Senator Osler: Thank you. That’s good. I can cede my time.
Senator Lankin: Thank you, I have two questions. First, Mr. Lattanzio, the Interpretation Act. My understanding from the law clerk’s office, with whom we have been dealing, is that the default for any piece of legislation that doesn’t have a specific coming into force date is upon Royal Assent, is that the way to achieve what you’re looking to achieve is to defeat that clause. Most coming into force clauses that are written in is because they are delaying to a further time. Do you have any comments on that? Is that advice that we have been given correct in your mind? Is that sufficient?
Mr. Lattanzio: There is something about the way it’s currently worded. Generally, either the date is actually identified, or it has been delegated to the Governor General. We just have some concerns in how this wording in particular — so again, in terms of my reading of the Interpretation Act, it would say that it would come into force. But we are concerned that there is still some ambiguity because it could actually clarify exactly what that should be.
Senator Lankin: One of the options we have been provided is simply to defeat that clause.
Mr. Lattanzio: Exactly I completely agree with that as well. Completely remove that.
Senator Lankin: Mr. Calderhead, I will begin asking you to answer first. You were pretty definitive in talking about provincial jurisdiction and what the feds can and can’t do. This legislation can control what the feds can and can’t do; that’s the reason for it. They must do this program. They must do it under these conditions. They must co-develop regulations, et cetera.
An amendment that permits the minister to enter into a Crown agreement with provinces or territories, if that agreement prohibits that Crown department or agency of provincial territories from retaining or recovering in whole or in part a benefit under this act, still requires the negotiations. If they don’t arrive at negotiation, there is no transfer of money to that province, or to the recipients of the benefit in that province which has its own problems, but which creates a lever for people to shift their focus to the province to have the province agree with the feds on this.
Let me read that again: the minister may only enter into an agreement with a department or agency of the province if that agreement prohibits that department or agency from retaining or recovering in whole or in part a benefit under this act. Do you see a problem with that?
Mr. Calderhead: No, I don’t. The distinction I drew earlier was about legislation purporting to control provincial social assistance programs. If the federal government passes legislation saying how those agreements should look, if they were to be arrived at, then I don’t envisage any problem. It would be similar to the Canada Health Act, where that’s the more well-known example.
Mr. Lattanzio: I would certainly agree with Mr. Calderhead.
Senator Lankin: Thank you.
Senator Kutcher: Thank you both for being with us and for your testimony.
My question is to Mr. Calderhead. I want to come back to this issue of what “urgent” means and what it actually transpires into, because if I can paraphrase “The Bard,” what we’re dealing with is to amend or not to amend, that is the question. We’ve been told that amending the bill was going to cause delays, and this is urgent. The issue of urgency has two components. One is the intensity, and the other is the time. Getting people out of poverty — intensity — we are completely on board for. The question is: What is the time this bill is going to take before that happens?
Now, what I understood from your testimony was that the urgency may be delayed through negotiations, as opposed to if there were clear components in the legislation. Now, help me understand that a little bit more because I wasn’t sure that I quite got it, but we’ve heard an awful lot about this urgency of the timeline.
Mr. Calderhead: If I understand your question correctly — and I invite you to put me back on course if I’ve misinterpreted — the urgency of getting benefits into the hands of persons with disabilities is straightforward. The minister has said there were two priorities. One is to lift people with disabilities out of poverty, and the second one is that there be no clawback.
The there be no clawback part is what gets us into federal‑provincial negotiations. At that point, the urgency is kind of thrown up in the air, as law students are taught on the first day, or first year, certainly, of law school, is that it is impossible to say there will be an agreement, in this case with the provinces. We don’t know if there will be an agreement, let alone if there is, what it will look like.
For those who say, “Let’s just get the benefits in the hands of recipients,” there needs to be a very important acknowledgement that once the legislation has passed, we then get into a second track, a negotiation track, with the provinces. At that point, who can say how long those negotiations will get drawn out for? We only need to recall the child care benefit and how protracted those discussions ended up being.
I hope that addresses your question. It’s really one that the urgency is not fully in the hands of the federal government to discharge because of the requirement for negotiations to deal with the clawback. The clawback can’t be dealt with except through negotiations.
Senator Kutcher: Thank you for that.
The issue of an amendment to the legislation, similar to what Senator Lankin shared that she’s thinking about and similar to what we heard in the previous testimony, would that change that relationship and that process in a substantive way that would potentially change the possibility of the agreements for the provinces?
Mr. Calderhead: If I understand, your question is if the bill were to be amended saying the federal government shall, or can enter into agreements with the provinces, one of the conditions will be that there be no clawback, if that’s the proposal, that’s entirely fine from a constitutional point of view. At that point, though, you then have to cross your fingers and say, “Well, good luck with those negotiations.” They may well ultimately be successful, but there can be no telling if they will be and, if they are, how long they will take.
Senator Kutcher: If I understand your answer correctly, it is not clear whether or not such an amendment would or would not change the urgency component of the timeline?
Mr. Calderhead: Right. When people into enter negotiations, there is no ability to say how long it will take.
Senator Kutcher: Thank you so much.
Senator Bernard: In the interest of time, I’m only going to ask one question, and that will be of Mr. Calderhead. Thank you both for being here and for your testimony today.
Mr. Calderhead, in your opening remarks, you mentioned the work that you recently completed, as of yesterday, I think you said, in Nova Scotia, my home province, representing and advocating for human rights for persons with disabilities and the fact that it took 10 years. I’d like to hear your thoughts on any consequences, unintended consequences, of not having a clear and accessible process for appeals of decisions around this benefit. Thank you.
Mr. Calderhead: Thank you. Perhaps Mr. Lattanzio may also be able to supplement this, but it’s essentially a requirement of basic fairness that if administrators of a program make a decision that disadvantages an applicant or disadvantages a recipient, that the person who’s been the subject of the decision has to have the right to appeal that to an independent, adjudicative body. It’s simply basic fairness. It’s characteristic of all federal government benefit programs. This program must have one.
Senator Bernard: Would you like to add to that?
Mr. Lattanzio: Thank you. Certainly, we’re not asking for this committee to identify a tribunal or create a statutory tribunal. What we’re really asking and what we want to make sure is that there is a right to a statutory appeal process in the act. We cannot create new barriers where applicants who are denied benefits have to either go to court adjudication — and we all know those additional barriers that go along with that. We’re wanting to make sure that it is baked into the act, that we have those fundamental access to justice rights.
[Translation]
Senator Petitclerc: My first question will be for Mr. Calderhead; if I have time, I’d like to ask you a question, too.
You talked about this suggestion to make clause 11 more enforceable. The bill proposes to take into account the poverty line, but you suggest using the words “consistent or compatible” instead. I’m sure you’re aware that an attempt was made to strengthen this clause in the other place and that it was deemed inadmissible for the reasons we are aware of. I don’t know if you’ve done any consultation. Do you think this proposal would cross the line of acceptability?
[English]
Mr. Calderhead: If I may answer in English. I think you put your finger on the question. Adequacy is everything in my human rights world, where the right to an adequate income is recognized under international human rights law.
The question that my proposal raises is how do we beef up wording that, currently, is kind of indifferent; that is to say, take into consideration really — most people thinking about that wording would say that it requires cabinet or those setting the rates to look at the official poverty line and so on. How do we beef up that wording without crossing the line to force government’s hand to require it to spend money? As someone whose work has been in this area for decades — and I’m familiar with the case law and what the case law says around “take into consideration” and compatibility and consistently.
My proposal is admittedly stronger than “take into consideration,” but it is my view that it doesn’t force the government’s hand, and it doesn’t force the cabinet’s hand as to how much must be set out in the benefit. You’ve precisely asked the key question.
[Translation]
Senator Petitclerc: My question is for Mr. Lattanzio. When Minister Qualtrough was here, she told us that it was conceivable that people with disabilities could receive this compensation within a year, perhaps.
When we look at certain parts of the bill, such as the one dealing with its coming into force, where there are small challenges in terms of the six-month or one-year period, we may think, if the political context were to change — if there were a change in government, for example — that it could take, in my view, well over a year. Am I right in thinking that?
Given that it could take more than a year because of things that can’t be controlled, the bill has to contain certainty about this timeline that is becoming even more important. How do you respond to that?
[English]
Mr. Lattanzio: I think again you’ve hit something important here. Yes, there are built-in timelines for reports. We’ve talked about the progress reports, but there are no real timelines. We know that this bill is structured so that everything happens with regulation. If there are no regulations, there is no benefit. So if there are no timelines for the regulation, then to your question, we don’t actually know. We don’t know how long it would take, and there is nothing built into the act to provide assurances or guarantees.
Senator Burey: Thank you to our witnesses. I am going to hone in on my favourite question and follow up with what Senator Petitclerc started. My comments are primarily aimed at Mr. Calderhead. This comes to the adequacy of the benefit, which was your main ask of this committee, including the associated costs related to disability, intersectionality and various groups. Is this something we’ve been asked to say, “Rush this through, no amendments”? Is this something that is absolutely essential to have amended, or can it be fixed through regulation or ministerial powers?
Mr. Calderhead: Thank you. The amendment that I have proposed adds wording around taking into account disability‑related costs. The reason I’ve done that is Statistics Canada’s Market Basket Measure of the official poverty line freely and openly admits that it takes into account nothing to do with cost of disabilities. For the current wording to say, “take into account the poverty line as it’s currently legislated” is, as Senator Petitclerc has referred to it, an openly ableist approach, and the larger irony is that this is a disability benefit. The only way that can properly be addressed is by looking at the poverty line, as the first wording in my proposal puts forward, and then saying, “as well taking into account disability-related costs.” We’re at a point as a society where we need to include those equality‑related accommodations and dimensions.
Senator Burey: I wanted to get that further explanation on the record.
Mr. Calderhead: On the question of whether it can be fixed by regulation — maybe, but who knows? When you say these are important principles that you’re proposing to be in the bill, but they can be in the regulation — maybe. Maybe if they are, they won’t be when the next government comes around.
I think more generally — and this includes the point about adequacy — we’re at a point where, in terms of disability rights, saying, “Yes, we can trust government to come out with a benefit, but we need accountability,” and the accountability is found at the legislative stage.
Mr. Lattanzio: To underscore Mr. Calderhead, there are amendments here that cannot be left to the regulation development stage. We need to make sure that we’re very careful when we’re talking about certain things that maybe can wait and can be part of the consultation and co-creation process. But there are some key amendments and pieces here that we’re identifying that are missing in the legislation that need to be incorporated directly into the legislation to create that regulation framework.
Senator Dasko: At this committee we’ve talked about many sources of delay in getting the benefit to the beneficiaries. Those sources would be — and this is not an all-inclusive list — the coming-into-force date, the fact that the Senate may make amendments, another potential source of delay and negotiations with the provinces.
I want to tackle the latter one, maybe from the opposite point of view of Senator Lankin as she expressed it earlier. When the minister came to us, she said categorically she was not going to delay benefits to people with disabilities. She said very clearly that she was not going to delay them if she hadn’t reached deals on clawbacks with the provinces. She laid out reasons for this clearly. The main reason is people need the benefits. She was very passionate about this and very categorical, from what I could tell.
Other advocates have come here and said the same thing — that this should not be a source of delays.
I want to throw that back at you just for comment.
Mr. Lattanzio: I go back to the earlier point that there is nothing in the legislation that protects from any undue delay, wherever it may come from. This bill is susceptible to delay, and it could be from a number of different places, including any part of the regulation development process, for example.
I want to be clear on this point. There is nothing in the bill that guarantees some type of timeline or protection around any undue delay. There is absolutely nothing in the bill from my read of it. Yes, there are progress reports, but the accountability framework in this bill is not strong, which is partly why we’re recommending to amend and fine-tune those elements.
Mr. Calderhead: If I could just add to it, senator, you described a scenario where the minister is saying there will be no delay whether or not we come to agreements with the provinces. In that scenario, what happens? What she’s saying is there is no agreement reached, and at that point, it’s an open field for provinces to do what they want with the benefits. There will undoubtedly be clawbacks, as there were in many provinces for the CERB benefit when the minister was hopeful there would be no clawbacks and, in fact, there were.
The minister’s priority that she attaches to no clawbacks cannot be achieved unless there is an agreement. The only other way would be for this bill to be amended — I think along the lines of the national child care benefit bill — where payment of the benefit under clause 5 would only occur in those provinces where agreements had been reached. For those provinces where agreements hadn’t been reached, there would be enormous pressure from citizens to have their government reach an agreement because, in part, those citizens would be paying the bill for the other provinces.
If the minister says the benefit will be paid regardless of an agreement being reached, at that point the clawback priority disappears.
Senator Dasko: Yes. Clearly, they’ve structured it differently from the child care benefit transfer. In any case, the minister did say that she did not want to deprive anybody of the benefit. I will leave it at that.
Mr. Calderhead: I think the main beneficiaries there would be the provinces.
Senator Arnot: Much of this has been gone over, but I want to make a couple of points.
First, with respect to the decline of the benefit, you’re saying, Mr. Calderhead, that you want an amendment in clause 11(1.1) of the bill to set that sort of benchmark. From what I’m hearing, much will be left to the regulations and you have to be confident that civil society will have input into those regulations, assuming that clause gets in.
Mr. Lattanzio, you want to see an amendment to the bill so that the first set of regulations are done within 10 months of the enactment. Are you comfortable that civil society will have the kind of input that you’re hoping for? Is there something this committee can do or say in terms of comment on the bill that would enhance your ability to have the kind of input that you have in the design of the benefit and that would ensure you have proper input into those benefits?
With respect to the appeal, I think that’s very important and you’ve got that covered, but again you’re leaving a lot to regulation. For instance, things like access to the appeal, a summary procedure, a very easy process, help for individuals who need help to make the appeal, those kinds of things, you’re leaving that up to the regulations as well, and reasons and writing all of that. Are you comfortable with that?
Mr. Lattanzio: Thank you for that question. I really do appreciate it. It reminds me of the earlier question.
We’re working within the bill’s structure here. Again, if we’re striving for perfection, the amendments are very different. We’re trying to identify what the unintended consequences and problems in this bill are that need to be corrected at this stage — in legislation and not in regulation. In my role, I feel that is our responsibility to try to identify that and come to you.
All those things that you mentioned, those due process rights, there are so many things that we’ve learned through our work in terms of making an appeal process accessible. The barriers that are created, whether it’s before a court or an administrative tribunal, there is no doubt. At the very least, we’re trying to enshrine in law a right to an administrative tribunal or a right to an appeal. Right now, we don’t know what those regulations would otherwise say about appeal rights.
That’s the rationale behind it. But I would certainly support any amendment that would go further in ensuring that an appeal process is accessible with respect to all due process rights and so on, as well as their support in terms of the application and review process. We would certainly support that.
Senator Cotter: Thank you to the witnesses and to the committee. As much as anything, I wanted to make a comment and maybe invite one observation from you.
You, and nearly all of the witnesses who have appeared so far before this committee and the ones who will appear, have been dedicating your lives to the disadvantaged and underprivileged in our society and, in that respect, are not always fully recognized heroes — to me and, I think, to many of us here. I wanted to extend thanks. Mr. Calderhead knows my views of him, and I thought I would at least put them on the record.
One observation I have, if I could, is that there is a certain sense of lack of confidence in the government that will deliver the benefits pursuant to this framework. I’m wondering if that’s the basic need that you articulate in terms of enriching the bill in the ways in which you’ve recommended. It seems to me that a government of goodwill would be able to achieve, through the regulatory process, virtually all of the points that you’ve identified as concerns with the legislation itself.
Mr. Calderhead: Just a quick comment. In terms of the question of confidence — and I think you may have characterized it as trust earlier on in other speeches — I have two points. Even if we were to have trust and confidence in this government at this time, what about the next government or the one afterwards or the one after that? That’s a problem with leaving things to regulation. Inherently, that’s a problem.
The overarching, additional comment I would make is that we’re now at a point in our legal and social development where we take a human rights approach and the rights of people with disabilities under the UN Convention on the Rights of Persons with Disabilities and other treaties are such that — and people with disabilities are entitled to an adequate income, for example, as a right. We have, I think, transitioned as a society away from cap-in-hand trust in the government to one that is based on rights.
Senator McPhedran: This is a quick question, and lawyers will certainly be familiar with it.
Some proposals have come in to us for changing the preamble. How important or effective would you rate the preamble to be?
Mr. Lattanzio: As we know, preambles are important. Essentially, given the time, I’ll cut to the chase. Certainly, if this committee is considering amendments in the preamble, my suggestion and comment is to think about what it is that you’re trying to achieve and whether it can actually be done within the legislation itself so that, as advocates, we actually have a tool in the legislation on behalf of our clients that we can rely on.
Mr. Calderhead: If I could have a moment to add to that. I agree with my colleague that preambles are kinds of good wishes and not justiciable. If something is worth putting in, it should be in the act, not in the preamble.
We’re at a point where a preamble, like an observation, which may be coming out from this committee would, I think, be seen by many in the disability rights community as a kind of sop, and I think we’re beyond that point. Thank you.
The Chair: Colleagues, we have no more time to get our questions answered, but we can put them on the table and ask our witnesses, if they so wish, to get back to us in writing.
Senator Bovey: My question is very quick. Just a clarification, Mr. Calderhead, if you could. If there are provincial negotiations, are you saying you think the money would flow province by province with the concluded negotiations, or would the money have to wait until all provinces had concluded their negotiations? My question is about fairness.
The Chair: I have a question on timing and clawbacks. Can the federal government start negotiations before the bill is passed? On clawbacks, if an amendment to stop clawbacks were in the bill, would that, in fact, guarantee a non-clawback if negotiations with provincial governments would still have to be undertaken?
Senator Lankin: Mr. Calderhead, this is directed to the comments you made with respect to your suggested amendment to clause 11 to change the language “take into consideration” to talk about “consistency” or “compatibility.”
I have been informed that there is no precedent for your language in federal legislation. If you know differently, because you have litigated a lot on this, please let us know. Second, it would not likely make any difference to the interpretation, because the process of actually setting the rate is going to be done through regulation. This is simply what must be considered and what must be compatible. We were informed that the interpretation would be thought of loosely as being the same as “consistent with.” That “consistent with” is an amendment from the House of Commons already. Thank you.
The Chair: Thank you very much, colleagues, and thank you very much to our two witnesses, not just for answering our questions and us giving you homework, but your wisdom is greatly appreciated. Trust me, it makes a difference. Thank you very much again for your presence.
Colleagues, for our third and final panel for the day, we welcome, in person, Mr. David Lepofsky, Chair, Accessibility for Ontarians with Disabilities Act Alliance; and by video conference, Michael J. Prince, Professor of Social Policy, Faculty of Human and Social Development, University of Victoria. Thank you to both of you for being with us today.
I now invite you to provide opening remarks. You have five minutes allocated for opening statements, which will be followed by questions from our members. Mr. Lepofsky, the floor is yours.
David Lepofsky, Chair, Accessibility for Ontarians with Disabilities Act Alliance: Thank you.
The core question before you is whether to pass amendments that, I think, everyone agrees would improve this bill. We say “please do,” and even more so, please, senators, move the amendments so they can be debated and voted upon at this table.
We have heard suggestions to trust the government. We say, “trust but verify.” Our amendments would. I will use my time to explain why you should amend. Ask me questions; I’ll explain how to do it.
First, we know the minister is open to amendments. She said she was open to them as long as they are consistent with this as framework legislation. Our amendments are consistent with framework legislation.
Next, the Senate would be very reluctant to controvert or overturn a government policy. We’re not asking you to do that. We’re asking you to make that policy work. Making your life easier, if you look back at what you have heard over these hearings, the content of the amendments we’re seeking are not the subject of any dispute. No one is before you saying that we should make people with disabilities prove their disability a second time; that if they have qualified for provincial benefits, make them go to a doctor again. No one is saying that. Everyone is saying the opposite.
Our amendments would achieve objectives that I believe everybody agrees on — or policy goals — or no one has disputed. In fact, if what we are seeking had been included in the bill from day one or added in the House, I don’t think one single presenter to you would have asked to have it taken out.
You don’t have to worry about whether you are wading into a policy debate. The only issue you’re worried about is that some people have said that if you amend the bill, that could slow or hurt the benefit. We say that our amendments will speed up and strengthen the benefit.
Some of those who have said, please don’t do it, please don’t amend, have suggested that this can be addressed in the regulations. You have heard from qualified lawyers backed by, in some cases, trial lawyers’ associations from across the country. You can’t fix all these problems by regulation. Those that might be addressed in regulations don’t provide guarantees because they are only as trustworthy as the life span of the government that enacts them. Saying to leave it to the regulations is equivalent to believing what is, in fact, a legal misconception.
The next reason I want to stress to you is the overwhelming feedback you have gotten from lawyers, whether it’s all those trial lawyers associations regarding insurance clawbacks or it’s the submission of the Income Security Advocacy Centre, backed by 48 legal clinics. These are people with hands-on experience seeking redress for people with disabilities. They say we need these amendments, and the only lawyer who has come before you expressing the view that you shouldn’t make amendments, didn’t contradict any of their opinions, prove them or wrong or assert a single argument proving them wrong.
The last thing I want to say, because I know my time is tight, is that you want to trust. I say trust that if you make the limited, high-impact, least intrusive amendments we are proposing, my prediction is that people are going to say thank you. How do I know that? First, four years ago, some of us came before this very committee, and said, please make amendments to the Accessible Canada Act. The government got a number of groups, just like this time around, to come and say, please don’t amend it at all, we’re afraid we will lose the bill, just pass it as-is. This committee, wisely, heard their concerns and made amendments. Not only did those get passed by the house, but the groups who came here to say don’t amend it turned around and asked the House of Commons to ratify those amendments. Not only that, but the minister who had previously opposed those amendments came to you a month ago and said you did a fabulous job making those amendments. Everybody said thank you. They will do it again.
In the House of Commons, some of those same groups went to the Standing Committee on Human Resources, Skills and Social Development and the Status of Persons with Disabilities, also known as the HUMA committee, and said, don’t make any amendments. A number of us pressed forward and said, please do. And guess what? HUMA made those amendments — some of them, not enough, nowhere near enough. But those same groups that told the House of Commons not to make any amendments have come to you and said that those amendments made in HUMA are good. The government even said that. I am not saying they are disingenuous, I’m saying, trust me, we will thank you if you do it again. Thank you.
Michael J. Prince, Professor of Social Policy, Faculty of Human and Social Development, University of Victoria, as an individual: Thank you, senators. I’m calling in today from where I live in Victoria, Vancouver Island. This is the traditional territories of the Lekwungen-speaking peoples, today known as the Esquimalt and the Songhees First Nations. I want to acknowledge that. Thank you all for making the time. I wish I could be there in person, but this is the second best option.
There has been a lot of really rich discussion this morning. I’ve been listening intently to the two previous panels. What I would like to do is speak about the topic of clawbacks, which has very much been on the minds of senators, and also the presenters this morning. I’m also happy to talk during the question period on a number of other aspects of the bill.
It’s obvious that in terms of protecting offsets against long‑term disability benefits, this bill needs to be amended with legislative changes. It also, while doing that, makes clear that federal programs themselves do not offset or clawback the Canada disability benefit. It has been made clear that on the question of provincial and territorial government clawbacks that those have to be done through the arena of intergovernmental negotiations or agreements.
Let me talk about clawbacks and some remarks I want to get on the record. First of all, any talk about clawbacks, particularly by provincial or territorial governments is contrary to the UN Convention on the Rights of Persons with Disabilities, specifically article 28, which guarantees people an adequate standard of living. Also, interestingly, for those provinces that currently have accessibility legislation, like the federal counterpart, the Accessible Canada Act, I believe clawbacks would be a direct violation of those provinces’ own accessibility laws in terms of throwing up additional barriers to people with disabilities to access these essential income supports.
Second, any kind of clawbacks, whether from the private sector or a government, is really a form of what could be called financial ableism. It’s mean-spirited, and it’s an attack on people who live in vulnerable circumstances. It also really perpetuates and aggravates historic and current disadvantages of Canadians with disabilities, and it stereotypes persons with disabilities as financial burdens to taxpayers and government programs.
Most importantly, clawbacks are short-sighted and they are a false economy. They do not foster resilience, they do not signal opportunity or respect, and they are more likely to further compound the anxiety, the sense of marginalization, of devaluation, exclusion, mistrust, food insecurity, physical exhaustion and mental stress. Such stress of basic needs not being met, of feelings of stigma, of being forgotten and of being punished yet again, will increase the pressures on other existing provincial government mental health services, hospitals, emergency departments, crisis centres and crisis lines, and restrict access to education, employment and public transit.
These are the arguments that I would hope to see in your Senate report. Whether it’s called observations or conclusions, these are important points. I don’t think we can legislate or prohibit provincial or territorial government clawbacks, but you can make the case. The moral case and the economic rationale are clear and quite compelling.
I am happy to stop now and leave plenty of time for questions and answers. Thank you very much.
The Chair: Thank you very much, Professor Prince. Colleagues, we will go to a round of questions. Four minutes each is the limit. Let’s see how we do. May I ask you, please, to identify yourself by name to your witnesses before asking your questions? We will start with the deputy chair of the committee, Senator Bovey.
Senator Bovey: Thank you to both our witnesses. Mr. Prince, I want to thank you for your discussion about clawbacks. That’s very helpful. I want to put on the record that Manitoba is now working on an accessibility act and I have been warned by some of my friends in the disability community that they are concerned and are waiting to see what happens with this before they finalize their legislation, so we’ll see what happens.
Mr. Lepofsky, I want to thank you for the material you’ve been sending us over the last while. It has been very helpful.
My question to both of you is now very simple. I would like your thoughts on how the accessibility to the amount should be defined when we have different economic situations in each province across the country. If you can give me your thoughts on that, that would be very helpful.
Mr. Lepofsky: We have a specific proposal. We would support the one that Mr. Calderhead had proposed in the last hour and Senator Lankin said there is a legal opinion that the wording change that he proposed would not be any different than what is in clause 11(1.1) of the bill. Respectfully, I don’t agree. His wording would strengthen it.
However, if that wording either doesn’t make a difference or, alternatively, would be stronger than the government would find acceptable, we have offered you two proposals. We urge you to pass both. Responsive to what you heard here, number one, our recommendation 5.1, where the provision now says, “the cabinet, in setting the amount should consider the poverty line” we say add three things. They should also have to take into consideration the additional costs of living with a disability — you have heard about that — they should have to take into account the intersectional needs of disadvantaged individuals and groups, and Canada’s international obligations.
We also say that the minister and all future ministers, when setting an amount or adjusting it, should be required to report to both Houses of Parliament on whether they have achieved the poverty line or superceded it, and if not, to give reasons. Trust but verify.
Senator Bovey: Thank you. And Mr. Prince?
Mr. Prince: Thank you for the question. The committee has heard a number of experts, presenters and leaders talk about the additional costs. The fact that we now have the Market Basket Measure is very important. This is the first major new federal income benefit that will be introduced after the Poverty Reduction Act. This is the first new federal income benefit that should be informed by the Market Basket Measure. However, we do know that it is inadequate as a measure. Statistics Canada knows this. Employment and Social Development Canada and the minister knows this.
So again, whether there is wording or not, it acknowledges that 20% or 30% gap. Also again, in your report, you make a note in observations that for continued work by Statistics Canada and Employment and Social Development Canada to develop an adequate Market Basket Measure plus, and the plus would be to have evidence-based indicators and estimates as to what the additional average costs are. It would have to be average and span a great diversity of disabilities, as you well know, senator. We can probably come up with an agreed number that would adequately and fairly address the additional cost of living and out-of-pocket expenses that many Canadians with disabilities incur.
The Chair: Thank you, Professor Prince.
Senator Seidman: Thanks to both Mr. Lepofsky and Dr. Prince for your presentations. Dr. Prince, thank you for all of the scholarly work that you have done in disability and social policy over the decades. Mr. Lepofsky, thank you for your enormous contribution to the rights of the disability community over the years and your activism, which is truly appreciated by us as legislators. I have one question for you, Dr. Prince, and one for you, Mr. Lepofsky.
Dr. Prince, do you agree with the proposal we heard from Mr. Muller and Mr. Schwartz to prevent clawbacks from private insurance providers?
Mr. Prince: In a word, yes.
Senator Seidman: That was a quick response. Okay, thank you very much. That’s very helpful.
Mr. Lepofsky, in your presentation to us — that would be from, of course, Accessibility for Ontarians with Disabilities Act Alliance — you referred to amendments to the provincial‑territorial clawbacks around insurance. You also referred to federal government clawbacks, which is something that we really haven’t talked a lot about. You said the federal government should set an example.
When the minister was here on March 22 — I would like to read this into the record because I think it’s really important. In fact, I asked her your very question about clawbacks in the provinces. I asked if the federal government is:
. . . prepared to allow the Canada disability benefit to be paid to people with disabilities in a province or territory that has signed an agreement with the federal government even if other provinces or territories have not signed a no‑clawback agreement?
Her reply to that question was:
First of all, this will be a direct monthly payment to individuals. That will happen regardless whether there exists an MOU in their province or territory or not. In fact, ideally, those agreements would predate the first payment. There is no world where somebody wouldn’t get paid because we have not made an agreement with their province or territory. I don’t want that to happen because I don’t want the impact of that payment to be that it gets offset or clawed back, but everyone can be assured that there will be no holding hostage of any single recipient as we negotiate these agreements with provinces and territories — absolutely, 100%.
I would like to know what you say about this.
Mr. Lepofsky: I say, respectfully, that the minister’s answer doesn’t solve the problem. Here is the problem: Either this benefit will start flowing in a province as soon as the premier signs but in no other province, or this benefit doesn’t start flowing until all 10 premiers and all territories sign, which could be a long time off.
Now, with the child care benefit, the government took a decision that it would start flowing in a province as soon as they signed. We propose that as the solution here, and that’s what our first recommendation is. Once they sign, within six months, the money should flow.
But we don’t want to tie the federal government’s hands if they want to go on and pay in a province that has not signed. We have revised that recommendation. You’ll see the second paragraph of our recommendation number one says that the federal government will remain free to do exactly what the minister said in that quote.
Here is the problem, and with this I conclude. The problem is that the minister and the government — I’m not focusing particularly on this minister — have a conundrum. The minister has commendably said last fall that she has a red line and that they will not allow any clawbacks. In a province that has not committed to, signed, that there will be no clawbacks, then paying the money in that province could cross that red line.
So what do you do? Do you either not pay it in that province, or do you hold up the rest of the country? We say get the money to the most people with disabilities the quickest you can. If a province is ready to sign, get the money flowing there. Give the minister the freedom to pay elsewhere, if they wish, but let the pressure be on the other premiers to sign, and your citizens and residents will be entitled to get the money too.
Senator Osler: Thank you to both witnesses for your testimony. This question is for both of you, but perhaps I will start with Dr. Prince. It is a follow-up to Senator Seidman’s initial question.
This committee heard from a witness earlier today that:
Without a prohibition on deduction or set-off by a private insurance provider, the targeted beneficiaries of the Canada disability benefit will receive no supplemental benefit at all.
My question to both of you, starting with Mr. Prince, can you please elaborate or provide further commentary on deterrents to or prohibitions on private insurance deductions or set-offs?
Mr. Prince: As you heard from the panel that initially raised, they are the experts. I’m not in the world of long-term disability. Where I have some knowledge is with how they interact with the Canada Pension Plan disability program, or CPPD, and the Quebec equivalent.
There, the benefit is treated as the first payer. In other words, the government benefit is regarded as the first payer. The insurance programs are wrapped around that, with the assumption that an applicant would go to the public program first and apply for that. Then the amount that you would get from long-term disability is a function of whether you are successful in getting the public benefit and how much you get from that public program.
The new Canada disability benefit is the flip side of that. It is not intended to be first payer. It is meant to be a supplement to other existing income sources, including private insurance, long‑term disability or short-term disability programs. It’s absolutely essential to be clear that there will be no set-offs or clawbacks with interaction between them.
Again, I would only defer to the expertise and the warning that you heard earlier this morning about the real possibility of offsets from the private insurance industry. I think that needs to be taken very seriously.
On the question of the federal programs interacting, why not include that as some clarity in the legislation? The tough nut to crack is on the provincial-territorial side, which Mr. Lepofsky just talked about. That gets us into the world of intergovernmental relations and negotiations.
On long-term disability, I think there is a clear risk that has not been addressed by the bill and ought to be. Thank you.
Mr. Lepofsky: Let me offer you four lightning-fast points.
First, on March 22, the minister conceded that this is a problem, and she agreed that there should not be any insurance companies clawing back, for their profits, the money meant for poor people with disabilities. Good on her.
Second, she said we could address this by a memorandum of understanding. As Mr. Schwartz explained last hour — and I agree with his constitutional opinion, not just because we’re buddies but because we both worked in the same Constitutional Law Branch. It is part of my sordid past. The fact is that if a person with a disability finds their private insurance company is clawing it back, they can’t go and declare that there is a memorandum of understanding between the federal government. The response would be, “Thank you very much. We’re clawing it back.” If you go to court, similarly, it’s no answer. The only answer is a federal amendment that will guarantee this.
Third, the minister said that we could just call it a social benefit, echoing what the insurance industry said. However, Mr. Muller — and you can’t find a better expert — full confession: He’s also a buddy, but we didn’t work in the same office — is the guy who figured out this problem and brought it to everybody. As he put it, there are major insurance contracts for which, the way they’re worded, calling it a social benefit does not protect the insured from clawbacks.
Finally, a question was put to my friends before: Could there be a court challenge? Folks, I was in the law business. There can always be a court challenge. However, I would hate to be the one arguing that, and I would love to be the one in court explaining to a judge that diverting money from poor people with disabilities into the profits of rich people with insurance stocks is something the federal government just can’t prevent. I mean, good luck.
The Chair: Thank you very much.
Senator Osler: I’ll cede the rest of my time to the committee.
Senator Petitclerc: Thank you, witnesses, for being here and for the value of your comments. It’s very helpful in our study.
My first question will be to you, Mr. Lepofsky. It is a simple question, but I’m sure you have something to say about it, I have no doubt.
Mr. Lepofsky: I will make it complicated.
Senator Petitclerc: We have had many witnesses, including the minister and the sponsor of the bill, talking about how this bill has a potential — potential, potential — to lift persons with disabilities out of poverty. This “potential” component doesn’t sit well with me.
How can we ensure that this bill has more than a “potential”? Are the proposals that we have in front of us and that we spoke about earlier with Mr. Muller, for example — are those proposals that would move this bill to be from potential to a little more of a certainty or an assurance to lift persons out of poverty?
Mr. Lepofsky: When Senator Dasko asked one of the bill’s strongest defenders if, just passed as is, how many people will this lift out of poverty? The answer was, basically, “We hope it will, and we’ll fight for it.”
I commend that viewpoint, but I respectfully suggest we have to do more than just hope. We don’t just hope about this minister who is so dedicated but about every other minister, for all time. Laws are passed to try to do better than that.
For example, here is how you can breathe some more hope or some more potentiality into it. Everything depends upon the regulations, but there is no deadline for the regulations to be made. The minister said six months ago that she needs a year, and they don’t have to wait until the bill is passed. They’re doing policy work now. The end drafting has to wait until the bill is passed, but that takes a couple of weeks, once they know exactly what they want it to say.
She said that half a year ago. We said back then to pass an amendment and please set it for 10 months. It’s now been six months. We’re still asking for 10 months. So set it for a year — whatever. Set a deadline.
You’ll recall, senator, that there were no timelines in the Accessible Canada Act. If memory serves, you folks imposed one; we asked for it. That makes a huge difference.
The last thing I’ll say about that is that as you’re trying to square the circle between some groups saying not to amend and others saying to do so, you folks got a letter from a bunch of organizations that said not to amend it because the amendments in the House were good enough. We didn’t sign that letter, by the way, but that letter specifically said that the amendments in the House were good enough, among other things, because they set reasonable timelines for regulations to be enacted.
Folks, read the bill, read it again and read it a third time. Respectfully, the bill doesn’t say that. You could make it say that.
Senator Lankin: First of all, I just want to say to the committee that Mr. Lepofsky’s comments about the existence of case law that supports — there is a difference between the words “compatibility” and “consistency with” or “taken into consideration.” That question I put to Mr. Calderhead, and he is going to be replying to us. He says there are federal precedents, unlike what the law clerk has said. We will receive that and can take a look at it at that point in time.
Second, I was tempted to say to Mr. Lepofsky, with the passion with which he presents his information, to please tell us what you really think. I want you to put yourself in my place for a moment. Back in the days of being a provincial cabinet minister, Mr. Lepofsky was one of the key internal legal advisers in government. I always found him very intimidating. I don’t anymore, Mr. Lepofsky; it’s okay. I can debate with you now.
I want to come to clause 11 setting out some of the things that must either be compatible with or in consideration of, whichever wording we end up with. There is the poverty line and its definition. There are costs associated with living with a disability. There are intersectional needs and human rights obligations.
I’ve asked you this directly and, Dr. Prince, I’d appreciate your comments on this well. It’s very confusing to look at the patchwork of supports across the country, but with respect to the additional costs of living with a disability, I think there in every province or territory, to differing degrees of adequacy, assisted devices programs. At the federal level, there is — and there is some comparability at some provincial and territorial levels — a disability tax credit.
We know that things like CPP disability are first payer as opposed to supplemental, so we don’t get any additional benefit through that. However, there are a myriad of other ways in which this has been addressed — and again, I’m not talking about the adequacy of how it has been addressed — and to come up with an average, as Dr. Prince has talked about, is a difficult concept when you think about how very different disabilities are and what different persons with disabilities need.
I’m very open to and supportive of trying to do the right thing here. I’m just conscious that we might have a number of efforts that lead to duplication. Mr. Lepofsky, could you shoot me down on that one, as you have before? Dr. Prince, could you comment on it as well?
Mr. Lepofsky: Briefly, calculating costs of disability is a complicated thing. We’ve totally avoided that by simply saying that it’s a factor that cabinet must take into consideration. We’ve tried to come up with wording that this committee could pass and that we would have a really great case for in the House of getting approved, because it doesn’t enmesh us in those complexities; it simply asks for cabinet to take it into account, without tying their hands on how they were going to do it.
Mr. Prince: Thank you for the question. You mentioned, senator, various other programs that are delivered provincially. You gave the example of assistive devices, aids and equipment.
You’re quite right. The reality across a lot of provinces is there are wait lists for many of those programs. There are asset test limits for people that are often very low. They are very patchwork. You’re quite right.
For Old Age Security and Guaranteed Income Supplement, many years ago, Parliament decided to assume an average need for seniors. We pay that cheque to everybody in Canada, coast to coast to coast. We don’t try to fine-tune.
In terms of eligibility, I think what you’re hearing from a lot of disability groups is that we can do the same thing here. I recognize there is a tremendous variety of embodied experiences for disablement limitations, but in terms of an income benefit, if we try to go down the road like we do with the disability tax credit, itemizing and scrutinizing, we will defeat the spirit and purpose of this bill, absolutely.
Senator Arnot: My question is for Mr. Lepofsky.
Mr. Lepofsky, my name is David Arnot. I’m a senator from Saskatchewan. We met with Minister Qualtrough in 2017 on some of these very issues.
I say that just to say this: You’ve been unequivocal and unambiguous about making this legislation as strong as possible and doing it now and leave the least that you possibly can to regulation, as I understand it. You’re in complete concert with the recommendation we heard in the last panel of making an amendment to the act that ensures that a time limit is set to create these regulations in 10 months.
Are you comfortable with the access that civil society has to be able to have in the kind of input you want in the design of the benefits, particularly your organization? Is there any issue that has not been raised by the committee thus far that you want to amplify for the committee today? What can the committee do to ensure that civil society has the kind of input it requires in the design of the benefits?
Mr. Lepofsky: Let me answer both of your questions. First, I think the minister is quite sincere that she wants to push an open consultative process. I think some people have used the term “co-creation” to mean literally taking the pen and writing it or sitting together in the room where the decisions are made. That’s never going to happen. Cabinet doesn’t invite people in.
I think there are groups that are quite excited about being included, and I think that’s great too. I think they are sincere all around, but here is the real world: I’ve been involved both as a government lawyer on the inside and, most importantly, as a disability advocate on the outside. It is brutally difficult to have much impact on regulations, even with those commitments.
With the Accessible Canada Act, we had great commitments on how much impact we were going to have on the shape of regulation setting accessibility standards. Around the same time, the Canadian Transportation Agency wrote new accessible air travel regulations. Folks, they read in no small part like they were written by the airlines, and they hurt us in some ways. It’s really upsetting.
I’m not in any way questioning the minister’s dedication or her sincerity. I’m saying that even achieving what she and these other groups want is brutally uphill.
As for things you haven’t asked, there is only one more I am going to give you. You have a bunch on the table, but you and we have heard from people who say that disability and poverty don’t end at 65. Some want the working age limit taken off. I know the government is not going to go that far, so we’ve offered a modest definitional suggestion to you, which is the access working age. It doesn’t define it. Why don’t you pass an amendment that says that working age means 70 or such higher date that cabinet says? At least it is a bit of a down payment — to mix metaphors — for some seniors that we recognize that disability poverty doesn’t end at 65 without eliminating in any way the working-age cap that the government is committed to at the core of this legislation.
Senator Arnot: I think the working age for senators is 75. Maybe you should —
Mr. Lepofsky: I could make any number of arguments of it being higher. There is no magic in 70, but we wanted something that was a modest increase over 65 to break the 65 sound barrier.
Senator Arnot: Thank you for your advocacy.
Senator Bernard: Thank you to both of our witnesses. I want to add my voice to thank you for your many decades of advocacy in this space. It’s important.
I have one question for Mr. Lepofsky. One of the amendments that you are proposing talks about intersectionality. For the record, could you tell this committee why you think that’s important?
Mr. Lepofsky: In crafting these recommendations, we revised and added that after we read all of what was in the hearings.
Senator, you and some of your colleagues have raised that with witnesses who didn’t talk about it. A number of groups came before you who raised these issues, who brought it up on their initiation. We struggled with how to put this in within the framework of this bill.
If we had more time and the bill wasn’t at this stage, there might be other things we might consider adding, but to me and to us, at the very least, we need it in there.
The only thing you might want to do, if you want to even go beyond our wording, is to say in 5.1 what the government must take into consideration when setting the amount.
In our 5.2, the report that the minister must make, you might add to what we’ve written that the minister should report not only on whether the government has met the poverty line — and if not, what reasons — but also ask how the other factors of the added cost of disability and intersectionality we are listing are being addressed. Again, trust, but verify.
That’s beyond what we wrote, but as I’m talking to you, I think it would do more to focus on the objective you’re talking about.
Senator Bernard: Thank you very much.
Professor Prince, could you tell us whether or not you believe that taking an intersectional approach to discussions around disability is important and, if so, why you would say it is?
Mr. Prince: Thank you, senator, for the question. Absolutely. Partly it’s important because of, as this committee has also raised, the issue of the hard-to-reach populations. I think that came up several meetings ago with respect to using the Social Insurance Number as the application gateway in.
I’m not sure if the bill as it currently stands is clear enough as to whether that is to be the only or primary or exclusive gateway, but as you well appreciate, using that entirely as the only way in would exclude a lot of marginalized groups. So an intersectional analysis brings that to the attention.
What Mr. Lepofsky just said, that we’re already doing it, this committee did a wonderful report on the GBA Plus policy framework of the Government of Canada. We see it regularly in federal budgets now. I think we should continue to do it and build on the progress it is moving. If this is a new generation opportunity, let’s make this forward-looking and embed intersectional analysis as a way of normally looking and thinking about the impacts of the benefit. Thank you.
Senator Burey: Thank you, Mr. Lepofsky and Dr. Prince. I had the pleasure of meeting Mr. Lepofsky yesterday. Thank you for that engagement and also for your long service to the disability community.
My question is really aimed at Dr. Prince. You can respond to this with a written response, if you don’t mind.
I’ve always seen this bill as an investment in our human capital as a country, something that you alluded to in some of your remarks. You’ve done such wonderful research on this.
I’m wondering if you would be able to share with this committee, in a written response, some of the economic, health and justice outcomes and making the case for such a piece of legislation.
Mr. Prince: I would be happy to send some material. I’m sure your researchers are also able to provide this sort of documentation.
Clearly, the bill is partly about lifting poverty. The second objective of this bill is to provide financial security. As we know, that is as much about public health and mental health as it is about income benefits, so I think the spirit behind this bill is very much informed by allowing and empowering people to be able to engage in their communities and participate in social and community events and in labour market and economic activities in a way that we can only appreciate and imagine. Part of the hope of this bill, too, is that it be an adequate and accessible enough benefit that removes the barriers and unleashes the potential of hundreds of thousands of Canadians with disabilities who just want to be able to participate in this society.
Thank you.
The Chair: Thank you. I have a bit of time for my question to both of you, but let me start by thanking David Lepofsky for keeping us so well informed throughout the process of the study and, of course, for all your advocacy on behalf of the people of Canada, in particular the disability community.
My question is about doing it now versus doing it right. I recall testimony from the disability rights community, who came before this committee earlier and informed us that it was critically important to get financial aid to disabled people and that they were, in fact, already working as civil society groups across the country in negotiating and setting the stage for negotiations between the federal and governments.
I would like to know your response to that strategy and that statement.
Mr. Lepofsky: The fact is that we want to speed it up too. That’s not a disagreement. The fact is that this bill has got to be amended at a technical level anyway because clause 14 got messed up by the standing committee in the House of Commons. I know this because I saw it happen, and I emailed the government, the minister’s office and the parliamentary secretary five minutes after it happened telling them to fix it, and they didn’t. We said, “You’ve got to fix it at third reading.” They didn’t. They left it to you. You’ve got to fix it.
Quickly, I’ll help you understand why this matters. Clause 14 used to say that cabinet will decide when this comes into effect. The House standing committee removed that. They took the cabinet’s power away in an intent to speed it up by replacing the wording that says that it shall come into force no later than one year after the bill receives Royal Assent. But it doesn’t say when in that year.
So, there are two possibilities. The first is that the ambiguity, which is clearly there, leads federal bureaucrats to invoke the one year and say, “Well, we’ve got to wait a year.” That’s going to hurt people who want the money sooner. The second possibility is that it’s going to lead to the conclusion that because it’s ambiguous, the Interpretation Act really means that it goes into effect now, even though it doesn’t say it goes into effect now. Then you have a cloud hanging over the regulations.
If you clear it up by either amending clause 14 to say it goes into effect on Royal Assent or simply repealing clause 14 because it does the same thing, then you’ve solved the problem. That means this has to go back to the house. If you make the other minor changes we’re talking about, they’ve got to go back to the house.
The advantage you’ve got is just like what happened four years ago. There was a division in this committee on whether to amend or don’t amend, and this committee amended. Then, we all came together within a couple of weeks to call on the House unanimously to ratify the Senate’s amendments, and that’s what the House did. We did it working with the exact same minister we’re working with now. That’s why I have confidence it will happen again.
The Chair: Thank you very much. I have space for one final question of two or three minutes.
Mr. Prince: Would you like a comment from me, Madam Chair, on that question?
The Chair: Yes.
Mr. Prince: About this question that Senator Bovey has repeatedly presented about the dilemma or the conundrum on timing: Even if you were to rubber stamp the bill as it is today and make no amendments, there will be no benefits going out to Canadians with disabilities for this program until well into 2024, possibly even into 2025. Next year — 2024 — would be the most optimistic scenario.
The question, then, is this: I think there are amendments that need to be made over questions of due process, rights of appeal, et cetera. In the meantime, there is an opportunity in the Fall Economic Statement and in the next federal budget in the spring of 2024 for additional monies to go to Canadians with disabilities in need. There are precedents for that. It’s not an either/or. If we want to get money sooner rather than later, there are opportunities through other avenues, and the minister can work with her colleagues on that.
So I don’t think you should feel the need to rush it that way. There are important things that need to be clarified around long‑term disability in this bill, and clarity is needed in the regulation, among other things.
The Chair: Thank you to both our witnesses. You have provided us with so much information and insight. We really value that.
Colleagues, we will be proceeding to clause by clause next week. We are still waiting to hear whether one final witness will be scheduled, but the clerk of the committee will let you and your staff know whether we proceed to clause by clause on Wednesday or Thursday. In either case, senators are encouraged to consult with the office of the law clerk when drafting their amendments. It is very helpful, of course, to share amendments or observations with the clerk in advance. They will be treated confidentially unless you wish them to be shared with your committee members in advance of the meeting.
Thank you, colleagues. Once again, thank you to the witnesses. This meeting is adjourned.
(The committee adjourned.)