AODA Alliance
Accessibility for Ontarians with Disabilities Act Alliance Update
United for a Barrier-Free Society for All People with Disabilities
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Please Email Senate Standing Committee on Social Affairs — Urge Them to Amend Bill C-22 in Accordance with the AODA Alliance Brief that We Submitted Today
April 24, 2023
SUMMARY
The battle to strengthen Bill C-22, the Canada Disability Benefit Act, is really heating up! We welcome your help so that this bill lives up to its promise to lift people with disabilities out of poverty.
This Thursday, April 27, 2023 at 12:30 noon, AODA Alliance Chair David Lepofsky will give his testimony before the Senate Standing Committee on Social Affairs (SOCI Committee). We are the closers! We are giving evidence during the final hour of the Senate’s public hearings.
We now make public the brief we have just submitted to the Senate’s SOCI Committee. It lists the amendments we seek. These have been refined to incorporate the presentations that were made at the SOCI Committee public hearings. This brief is based on the earlier March 22 2023 joint list of proposed amendments circulated by the AODA Alliance and the ARCH Disability Law Centre. Our brief also clears up several serious misconceptions and misunderstandings about the possibility of the Senate amending Bill C-22 that unfortunately have emerged at the public hearings, to the serious detriment of impoverished people with disabilities.
We understand that just 10 days from now, on May 3, 2023, the Senate’s SOCI Committee will decide what amendments, if any, to make to Bill C-22. That is when it is holding its clause-by-clause review of the bill.
At that meeting, the SOCI Committee could pass or reject any amendments that any senator proposes. Some senators may also be thinking of attaching “Senate Observations” to the bill instead of amending the bill, or in addition to amendments. A “Senate Observation” is simply a recommendation that the Senate can make to the Government. It is not binding on the Federal Government. The Federal Government can entirely reject or ignore any Senate Observation, if it wishes.
We strongly believe that Bill C-22 needs our short list of amendments, and nothing less. Senate Observations will not speed up getting money into the pockets of impoverished people with disabilities. Senate Observations will not ensure that the Canada Disability Benefit will be large enough to truly lift people with disabilities out of poverty and cover their added disability-related expenses. Senate Observations will not protect people with disabilities from provincial governments, the Federal Government, or private insurance companies clawing back the Canada Disability Benefit. Senate Observations cannot protect us from a future Cabinet gutting the Canada Disability Benefit at a closed secret Cabinet meeting, where people with disabilities have no say.
Please email the SOCI Committee today, before their May 3, 2023 meeting. Tell senators to make the amendments to Bill C-22 that the AODA Alliance proposes. Tell them that it is not good enough to make non-binding unenforceable Senate Observations about Bill C-22. Email the SOCI Committee by writing:
To see how the Trudeau Government has flip-flopped on whether Bill C-22 needs amendments over the past months, watch the widely-viewed AODA Alliance 7-minute video on Trudeau Government Bill C-22 flip-flops. It has now been viewed over 4,000 times!
Learn all about our non-partisan grass roots campaign to strengthen Bill C-22 by visiting the AODA Alliance website’s Bill C-22 page.
Accessibility for Ontarians with Disabilities Act Alliance Brief on Bill C-22, the Canada Disability Benefit Act
to the Senate Standing Committee on Social Affairs
April 24, 2023
Bill C-22 Needs Amendments, Not Unenforceable Senate “Observations”
Please make a narrow list of least-intrusive amendments to Bill C-22 to address needs that the hearings identified. Each amendment is within the bill’s scope. Each fits in framework legislation. No presenters opposed the policy in any of these amendments, or disagreed with the results we seek for impoverished people with disabilities. Had the Government included these in the original bill, no disability groups would call for them to be removed.
Senate “observations” are no substitute. They won’t speed up money into the hands of impoverished people with disabilities.
Putting to Rest Misconceptions About Amending Bill C-22
Some presenters feared that any amendments endanger or delay this bill. Let us correct misunderstandings that emerged about making limited necessary amendments to strengthen the bill.
Misconception: If the Senate makes amendments, this risks delaying the bill, possibly for years or killing the bill if election is called, keeping money from people who need it.
Reality: The SOCI Committee only needs a meeting or two for clause-by-clause debate, likely to finish on May 3, 2023. There is no risk of an election before Parliament passes this bill.
Moreover, this bill MUST be amended, no matter what. The House of Commons messed up Section 14. Its wording is unclear on when the bill comes into effect. Last fall, we alerted the Federal Government to this error, and pressed it to fix it in the house on third Reading. The Government did not do so. It left it to the Senate to fix the bill.
senators need not fear that passing a short list of other amendments that we request would kill the bill or cause harmful delays. Four years ago, some feared the same boogey person. Some told the SOCI Committee that they feared that if it amended that bill, it risked killing the bill. Despite that, the SOCI Committee wisely and courageously amended that bill. The House of Commons only took a month to ratify the Senate’s amendments. Last month, Minister Qualtrough told the SOCI Committee that SOCI did a “fabulous job” with those amendments.
Even if the Senate passed this bill today, impoverished people with disabilities will likely not see a dime before 2025. The Federal Government has announced no “no clawback” agreements with any provinces or territories, even in principle. A few more days in the Senate won’t change that.
Misconception: There is a risk that Bill C-22 will die in the Senate.
Reality: There is no risk that Bill C-22 will die in the Senate. Third reading could well take place in May. No senator opposed the bill or disputed its priority.
Misconception: 280 organizations wrote senators saying to pass the bill “without amendments.”
Reality: That is not what that letter said. That letter said that the bill should be passed without “unnecessary amendments.” All the amendments we seek are necessary.
Misconception: The bill’s limitations can all be fixed in the regulations.
Reality: Not so! For example, regulations under this bill cannot stop private insurance companies from clawing back the CDB, cannot fix the bill’s date for coming into force, and cannot set a binding deadline for enacting regulations. Only the bill can do those things.
Misconception: The Federal Government cannot start developing regulations under the bill until the bill is passed.
Reality: The Government can, and no doubt has, been working on the regulations for months. Once it gives its lawyers directions, they can do the technical drafting in days, if necessary. Once Parliament passes the bill (if amended as we request so that it comes into force upon Royal Assent), Cabinet can quickly pass regulations.
Misconception: The bill now sets reasonable timelines for regulations to be enacted to implement the Canada Disability Benefit.
Reality: Contrary to a letter from a number of disability organizations, the bill sets no timeline at all for Cabinet to ever enact regulations. Cabinet is not required to ever enact any regulations. There can be no CDB until Cabinet makes necessary regulations.
Organizations who incorrectly think that the bill sets a reasonable timeline for Cabinet to make regulations, presumably support the idea of the bill setting such a timeline. To achieve this goal which we all share, the bill must be amended, as we propose, to set those timelines.
Misconception: The House of Commons HUMA Committee made all the amendments that are needed.
Reality: Some groups told the House HUMA Committee to pass the bill without amendment. Some of the same groups now applaud the amendments that the House of Commons HUMA Committee made, and now tell the Senate to make no amendments. As noted earlier, some of those groups incorrectly believe that the House of Commons amended the bill to set reasonable timelines for Cabinet to make regulations, something we asked the House to do, without success. Just like those groups, the Government told HUMA to pass the bill without amendment. HUMA nevertheless amended the bill. The Government called those amendments “excellent.” Our widely viewed 7-minute video shows this.
Four years ago, some of the same groups told the Senate to pass the Accessible Canada Act without amendments. The Senate nevertheless amended that bill. Those same groups then urged the House of Commons to ratify those amendments.
Misconception: All we need to do is just trust Disabilities Minister Carla Qualtrough, who is strongly and passionately dedicated to achieving a good CDB.
Reality: We are deeply indebted to Minister Qualtrough for her passionate dedication to this cause. Amendments we seek would strengthen her hand, as she presses to move the CDB to fruition.
No matter how dedicated she is, Minister Qualtrough is only one member of a large caucus. She is not immortal. There is no assurance that all future ministers and Cabinet members will replicate her enthusiasm for ending disability poverty.
Misconception: It will take too long to make the bill perfect.
Reality: We seek a better bill, not a perfect bill. We ask for a minimum number of amendments needed to fix the bill’s biggest problems, consistent with the Senate’s role.
Misconception: The Federal Government has committed to “co-create” the regulations with the disability community.
Reality: It is good that the Government committed to consult the disability community on regulations. However, it never committed to “co-create” the regulations with the disability community.
Disability Without Poverty told the HUMA Committee that co-creation means more than simply consulting the disability community. It means that the disability community has an equal seat at the table where decisions are made. The Government has not agreed to that. Cabinet makes the decisions, in closed meetings. Moreover, the disability community is not being included in the Government’s all-important negotiations with provinces and territories, about which we know little.
Misconception: “Framework legislation” honours the disability rights principle “Nothing about us without us.”
Reality: The best way to honour disability rights is to enshrine disability rights in the bill itself, so that a future Cabinet cannot gut them at a closed Cabinet meeting, with no vote in Parliament. The bill could honour “Nothing about us without us” by including guarantees for people with disabilities in the bill itself, like ensuring that the CDB amount lifts people with disabilities out of poverty.
Misconception: To amend this bill violates its status as “framework legislation.”
Reality: This bill remains “framework legislation” (a term with no legal significance) even with the amendments we seek. Even if the Senate makes these amendments, the vast majority of decisions about the CDB will be made by regulations, far more than we would prefer.
To remain “framework legislation”, this 6-page bill can be far more detailed. The Federal Government also called the Accessible Canada Act “framework legislation”. The ACA is over 100 pages.
Needed Least-Intrusive Amendments, Refined in Response to Evidence at the Hearings
These are based on the proposed amendments that the AODA Alliance and ARCH Disability Law Centre made public on March 22, 2023.
Start Paying the Canada Disability Benefit in Any Province or Territory Once It Signs a “No Clawbacks” Agreement with the Federal Government
The Federal Government is negotiating agreements with provincial and territorial governments so that they don’t “claw back” the CDB from any people receiving it. Once a premier signs a “no clawbacks” deal with the Federal Government, impoverished people with disabilities in that province should immediately start to receive the CDB, even if some other premiers have not signed a “no clawbacks” deal with the Federal Government. If no CDB can be paid anywhere in Canada until all provinces and territories sign these agreements, it will unfairly delay the CDB. It would wrongly let one premier hold the CDB up for all Canada.
The bill should be amended to require the Federal Government to pay the CDB in any province or territory once it has reached an agreement with the provincial or territorial government, even if one or more other provinces or territories have not reached an agreement with the Federal Government. This follows the powerful precedent of the federal Early Learning and Child Care Framework.
- The bill should be amended to add the following section:
Notwithstanding anything else in this Act or the regulations, within six months of the Government of Canada entering into an agreement under Section 8 which prevents any clawback of or deduction from the Canada Disability Benefit as defined in this Act, the Government of Canada shall commence the payment of the Canada Disability Benefit to eligible applicants who are resident in the province or territory to which that agreement pertains.
Nothing in this section prevents the Government from paying the benefit in a province or territory where no such agreement has been reached.
Fix the Bill’s Coming into Force Date
The bill needs to specify the exact time when it comes into force. Due to the House of Commons’ Standing Committee’s confused, technically deficient amendment to Section 14, the bill neither sets that date nor gives Cabinet the power to do so. The bill should come into force upon Royal Assent.
- Section 14 should be amended to replace the current wording with:
This Act comes into force upon receiving Royal Assent.
Alternatively, Section 14 should be repealed, so that the bill automatically comes into force upon Royal Assent by operation of law.
Forbid Private Insurance Clawbacks
The bill does not prevent private insurance companies from clawing back all or part of the CDB from a recipient of private disability benefits, such as a person getting long term disability benefits from a private insurance company. That would divert federal payments, meant to help impoverished people with disabilities, into the profits of rich insurance companies.
- Section 9 should be amended to add the following:
(c) A benefit under this Act cannot be retained by way of deduction, set-off or compensation under any Act of Parliament other than this Act or by contract, agreement, private insurance plan or similar instrument; and
(d) Anyone who retains by way of deduction, set-off or compensation by or under any contract, agreement, private insurance plan or similar instrument of any part of the Canada Disability Benefit paid to an eligible recipient, shall remit that clawed-back portion to the recipient of the Canada Disability Benefit.
Ban Federal Clawbacks of the Canada Disability Benefit
When it comes to the danger of clawbacks of the CDB, the Federal Government should lead by example. The Federal Government should not itself claw back any funds paid to people with disabilities that receive the CDB. The bill should be amended to require that the CDB cannot be recovered or clawed back in whole or in part under any Act of Parliament other than the Canada Disability Benefit Act.
- Section 9 should be amended to add the following subsection:
The Benefit cannot be recovered in whole or in part, or be the subject of any deduction, set-off or compensation, under any Act of Parliament other than this Act.
Make the Bill Live Up to its Commendable Purpose
The Federal Government repeatedly said that this bill’s purpose is to lift people with disabilities out of poverty. However, the bill does not set a minimum amount for the CDB. Under the bill, it could be as low as $1 per month.
The bill will only achieve its purpose if the CDB amount is large enough to lift a person with disabilities out of poverty, when combined with their other income.
- Section 5 of the bill should be amended to add this subsection:
A benefit paid under Subsection 1 must be sufficient to ensure that the person to whom it is paid, in combination with their other sources of income, does not live below the official poverty line as defined in Section 2 of the Poverty Reduction Act.
If Recommendation 5 is not passed for any reason, then the following two recommendations together should replace it:
5.1 Section 11(1.1) of the bill should be replaced with the following:
“11(1.1) When making regulations under paragraph (1)(c) respecting the amount of a benefit, the Governor in Council must take into account the Official Poverty Line as defined in section 2 of the Poverty Reduction Act, the additional costs associated with living with a disability, the intersectional needs of disadvantaged individuals and groups, and Canada’s international human rights obligations.”
5.2. The Following subsection Should also be added to Section 11 of the bill:
Within one month after the Governor General in Council passes a regulation that sets or alters the amount of the benefit, the Minister shall submit a report to both houses of Parliament that confirms that the amount of the benefit will be sufficient to lift people with disabilities out of poverty, or, if the amount will not do so, provides reasons why the benefit was not sufficient to meet the poverty line, in combination with a recipient’s other sources of income.
Set A Timeline for Cabinet to Make Initial Regulations
Under the bill, the CDB cannot be paid until the Federal Cabinet passes a series of regulations to do such things as spell out the amount of the Benefit and who is eligible for it. The bill does not require those regulations ever to be enacted. It sets no deadline for Cabinet to make those regulations. Without those regulations, there can be no CDB.
The bill does not establish any timetable to ensure regulations are developed within a reasonable timeframe following Royal Assent. Section 11.2(2) of the bill merely requires the Minister to file a report with Parliament, a full year after the day when the bill comes into force. That could be two years after Royal Assent, according to Section 14’s wording. That Minister’s report might just say that little or no progress had been made in the regulatory process.
Accordingly, the bill should be amended to require the Federal Cabinet, within 10 months of the passage of the bill, to enact regulations necessary to enable the CDB to begin to be paid. For example, setting the amount of the Benefit, who is eligible for it, the process for applying for the Benefit, and the process for appealing if a person applies for the Benefit but is refused (including designating the Tribunal which will deal with appeals).
Parliament can include in legislation such timelines for making regulations. Section 117(1.1) of the Accessible Canada Act provides:
“(1.1) The Governor in Council must make at least one regulation under any of paragraphs (1)(e) to (h) within the period of two years that begins on the day on which this subsection comes into force.”
- The following subsection should be added to Section 11:
Within ten months of this Act coming into force, the Governor General in Council shall make regulations under paragraphs 11(1) (a) through (f), (h), (i), (k) and (n) that are necessary to enable the Canada Disability Benefit to be paid in accordance with this Act.
The bill does not set a date when the Federal Government must begin to start paying the CDB. People with disabilities in poverty need a concrete goal. The bill’s preamble should be amended to specify best efforts to achieve a target date for the CDB to begin to be paid.
- The preamble should be amended to add the following:
Whereas the Government of Canada is committed to use its best efforts to begin paying the Canada Disability Benefit within one year of this Act coming into force;
Once Initial Regulations Set the Benefit’s Amount and Eligibility Criteria, Don’t Let a Future Cabinet Reduce These Without Any Oversight By Parliament
This bill unfairly lets a future Cabinet reduce or eliminate the CDB, or make it harder to qualify for it. Parliament would have no say before those harmful regulations were enacted.
Once Cabinet makes initial regulations that set the CDB’s amount and eligibility criteria, a future Cabinet should have to get Parliament’s approval before it can reduce the amount or make it harder to qualify. This would not slow Cabinet from making initial regulations that start up the CDB. It would not restrict Cabinet’s power to increase the CDB or make it easier to qualify.
- This requirement should be added as a new subsection in Section 11:
After the amount of the Benefit and the eligibility criteria to qualify for the Benefit are initially established by regulations, any regulations proposed by the Governor in Council that would reduce the amount of the Benefit, or make it more difficult for a person to qualify for the Benefit, must be tabled by the Minister in each House of Parliament, and the regulation does not come into force until it is approved by vote in both Houses of Parliament.
Never Treat Disability Poverty As If It Ended at Age 65
The bill provides for a CDB to be paid to “working age” people with disabilities. It does not define “working age”. It should be amended to define “working age” as at least 70. This amendment would let Cabinet pass regulations to raise “working age” above 70, but not lower.
- The following subsection should be added to Section 2:
“Working age” means age 70 or such greater age as may be set by regulations.
A Right to Appeal Should Be Statutorily Guaranteed
The bill does not guarantee that a person refused the CDB, will have a right to appeal that refusal. The bill should be amended to give a person a right to appeal to a designated tribunal.
- The bill should be amended to add this new section:
A person, or any person on their behalf, who is dissatisfied with a decision of the Minister made under sections 4 or 5, may appeal the decision to a Tribunal, as set out in the regulations.
Streamline and De-Bureaucratize the Application Process
People with disabilities who now qualify for a provincial or territorial social assistance disability benefit should automatically qualify to receive the CDB. They should not have to re-prove that they have a disability and are living in poverty.
Therefore, the bill should be amended to create a two-track way to qualify for the CDB. Track 1: Those who already receive a provincial or territorial social assistance disability benefit (such as the Ontario Disability Support Program) should automatically qualify for the CDB, without having to go through a second application process. Track 2: Those who are not now receiving a provincial or territorial social assistance disability benefit should have a way to apply for the CDB, with the bill and regulations spelling out the eligibility criteria.
Without limiting who has a “disability” for applying for the CDB, the bill should be amended to provide that a person who applies for the CDB is automatically deemed to have a qualifying “disability” and does not have to re-prove that they have a disability, if they:
(a) receive benefits under a federal or provincial employee’s or worker’s compensation law;
(b) receive disability benefits under a private insurance plan; or
(c) qualify for the Disability Tax Credit.
- The following subsections should be added to Section 4:
4 (1) A person is eligible for a Canada disability benefit if they meet the eligibility criteria set out in the regulations.
(2) A person is deemed eligible for a Canada disability benefit under subsection 1 if they are in receipt of,
(a) a federal, provincial or territorial disability benefit, as set out in the regulations;
(b) compensation under a federal or provincial employee’s or worker’s compensation law, as set out in the regulations; and
(c) any other benefits, as set out in the regulations.
(3) If a deemed eligible person is no longer receiving benefits listed under subsection 2, their continued eligibility for a Canada disability benefit shall be determined based on the eligibility criteria set out in subsection 1.
Social Insurance Number Should Not Be the Only Valid Form of Acceptable Identification
The bill should be amended to ensure that a Social Insurance Number is not required to apply for the CDB. The Federal Government should accept alternative means of identification for persons applying for the CDB who have no Social Insurance Number, e.g., due to homelessness.
- The following subsection should be added to Section 7:
(2) The Minister is authorized to collect and use, for the purposes of the administration and enforcement of this Act, other forms of government identification of an applicant, as set out in the regulations, for applicants without a Social Insurance Number.
Effectively Monitor and Enforce the Federal Government’s Red Line that there will be No Clawbacks of the Canada Disability Benefit
Nothing in the bill now gives any people with disabilities a place to go to complain if any of their CDB is clawed back by a provincial or territorial government, or by a private insurance company. The bill should be amended to require the Federal Government to establish an office to monitor and annually report to the public on compliance with federal/provincial/territorial agreements regarding the CDB. It should be amended to establish an accessible process for people with disabilities to file complaints if their provincial/territorial or federal monetary or non-monetary benefits or services, or private disability insurance benefits, are clawed back or reduced because they have received the CDB. The office should be required to investigate and attempt to mediate those complaints. The office should also be required to publicly report its findings and recommendations, anonymized to protect the confidentiality of persons filing complaints.