AODA Alliance
Accessibility for Ontarians with Disabilities Act Alliance Update
United for a Barrier-Free Ontario for All People with Disabilities
www.aodaalliance.org aodafeedback@gmail.com Twitter: @aodaalliance
Senate Standing Committee on Social Affairs Passes Four Important Amendments to Bill C-22 (the Canada Disability Benefit Act) and a Final Amendment to be Voted on Next Wednesday – We Need the Whole Senate to Pass Bill C-22 on Third Reading, Including These Amendments for Which So Many Fought So Hard
May 7, 2023
SUMMARY
It has been an incredible uphill battle, and it is not over yet! This past week, we reached a major interim milestone in our campaign with other disability advocates to strengthen the weak Bill C-22, the Canada Disability Benefit Act. The Trudeau Government brought this bill forward to lift people with disabilities out of poverty.
Last week, the Senate’s Standing Committee on Social Affairs (SOCI Committee) held two meetings to review Bill C-22 clause-by-clause, and to decide what amendments, if any, to make to the bill. At its May 3, 2023, meeting the SOCI Committee regrettably rejected every amendment that any senator proposed. However, things took a much more promising turn at the May 4, 2023, SOCI Committee meeting. There, four major amendments were made to the bill. These four amendments include:
- The SOCI Committee passed an amendment to prevent insurance companies from clawing back the Canada Disability Benefit from a person with disabilities who receives long-term disability benefits under an insurance policy or employee plan. An overwhelming case for this amendment was presented to the SOCI Committee by Toronto lawyers Steven Muller and Hart Schwartz at the Standing Committee’s April 27, 2023, public hearings. The AODA Alliance, the ARCH Disability Law Centre, the Income Security Advocacy Centre and every provincial Trial Lawyers Association supported this amendment.
- The SOCI Committee voted to amend the bill to guarantee that there will be a right of appeal for applicants for the Canada Disability Benefit.
- The SOCI Committee amended the bill to require Cabinet to take into account the poverty line, the additional costs of living with a disability, the intersectional disadvantages facing disadvantaged groups, and Canada’s international human rights obligations when deciding how much the Canada Disability Benefit payment will be to impoverished people with disabilities. Before this amendment, the bill required Cabinet to consider only the poverty line.
- The SOCI Committee amended the bill to impose a 1-year deadline for regulations to be enacted that are necessary to start paying out the Canada Disability Benefit to impoverished people with disabilities. Some mistakenly thought that the House of Commons Standing Committee (HUMA) had imposed a deadline for Cabinet to make those regulations, but it had not done so. The Senate Standing Committee has cleared this up.
No one could credibly disagree with the policy in these amendments. We and others have been campaigning for these amendments for months. We are extremely pleased with these results, even though a number of other important amendments were rejected.
The SOCI Committee has one more amendment to consider, one which would clear up the date when Bill C-22 will come into force. It is scheduled to be addressed at its next meeting, on Wednesday, May 10, 2023.
We have every expectation that at that meeting, the SOCI Committee will complete its review of Bill C-22 and refer it back to the whole Senate. If the Senate votes to pass the amended bill, then it must go back to the House of Commons for the Senate amendments to be ratified.
We hope the Senate will quickly pass Bill C-22 on Third Reading with the amendments that the SOCI Committee made. It would be horrible if any senator tried to oppose the balanced decisions that the SOCI Committee made after extensive and thorough public hearings, and careful clause-by-clause analysis of the bill. However, we cannot take anything for granted, and urge everyone to email any and all senators to quickly pass Bill C-22 with the amendments that the SOCI Committee made.
If the House of Commons ratifies the Senate’s amendments, then Bill C-22 is officially passed by Parliament. After the formality of Royal Assent, it becomes a law that was passed by Parliament.
In this Update, we describe the four amendments that we collectively won. We also describe the one remaining amendment that the SOCI Committee will consider next week.
A huge thank you to all the disability advocates who have helped press for Bill C-22 to be amended and for all the senators who showed real courage by voting to amend this bill. To learn all about the amendments to Bill C-22 that we and other disability advocates have been fighting for, check out the AODA Alliance’s April 24, 2023, brief to the SOCI Committee and AODA Alliance Chair David Lepofsky’s April 27, 2023, evidence at the SOCI Committee public hearings. All our efforts aimed at strengthening Bill C-22 are documented on the AODA Alliance website’s Bill C-22 page.
MORE DETAILS —
The First Amendment
The SOCI Committee passed an amendment to prevent insurance companies from clawing back the Canada Disability Benefit from a person with disabilities who receives long-term disability benefits under an insurance policy or employee plan. An overwhelming case for this amendment was presented to the SOCI Committee by Toronto lawyers Steven Muller and Hart Schwartz at the Standing Committee’s April 27, 2023, public hearings. The AODA Alliance, the ARCH Disability Law Centre, the Income Security Advocacy Centre and every provincial Trial Lawyers Association supported this amendment.
The senator who introduced this amendment explained it as follows:
“Senator McPhedran: …Then this amendment is to add (c.1), which is an additional protection — “cannot be recovered or retained, in whole or in part, under the terms of any contract, insurance plan or similar instrument.”
I want to thank Senator Seidman for raising this very question when the minister was before this committee. I note the minister indicated that she felt comfortable with the assumption that the insurance industry would characterize this as a “social benefit,” to use her words, and that would somehow create a protection.
If I may, I want to summarize something with some additional points I have received from the two experts we heard from.
The disability supplement to Old Age Security is being set off now — this is the reality — by private insurance companies from the amount that they would otherwise pay out for long-term disability. That is a clawback. Private insurance companies — there is a practice that I am told by Professor Schwartz — will set off the amount that they believe a person could get by way of the disability supplement, whether or not that person has applied. If they have applied and refused, then the insurance company will expect them to appeal that refusal and set off this amount.
So this amendment, with all due respect to the minister’s comfort with what the insurance companies have told her, insulates the Canada disability benefit from that kind of set-off or clawback, which is already going on. There is every reason to believe the same treatment that the private insurance companies already exhibit to what would also be characterized a social benefit and would apply to this new proposed disability benefit.
Indeed, the fact that these private insurance contracts and plans state clearly that they can set off any government benefit indicates that it does not matter whether the Canada disability benefit is characterized as a social benefit or an income benefit. It is any benefit that can be clawed back under the terms of those contracts.
Again, with all due respect, this is not something that regulations can handle. This is something that we need to set out clearly in the statute itself. With all due respect, we have evidence that insurance companies are already doing this, and this is not something we should allow to continue to make those people living with disabilities and who qualify for the disability benefit to then lose it in this way.
That is why Senator Lankin and I are asking this committee to consider this amendment carefully, please.”
The Second Amendment
The SOCI Committee voted to amend the bill to guarantee in it that there will be a right of appeal for applicants for the Canada Disability Benefit. Before this, the bill gave Cabinet the power to create an appeal. However, it did not require Cabinet to create an appeal. A future Cabinet could repeal the right of appeal in a secret Cabinet meeting.
Here is the explanation of this amendment that was given by the senator proposing it:
“Senator McPhedran: Thank you. It is my understanding that Senator Lankin has encouraged me to move this amendment, and I’m very pleased to do so.
This relates to clause 10 of the bill. It is currently stated as “all benefits payable under this act are to be paid out of the Consolidated Revenue Fund.”
I’m suggesting that there be a clause 10.1 that looks at what is considered by many to be a very important rule of natural justice, and that is the whole notion of appeal. I move:
That Bill C-22 be amended on page 4 by adding the following after line 5:
“10.1 A person, or any other person on their behalf, may appeal, to a body identified in regulations made under paragraph 11(1)(i), a Minister’s determination
(a) that the person is ineligible for a Canada disability benefit; or
(b) of the amount a Canada disability benefit that the person has received or will receive.”.
The reasoning for this is that the silence in the Statute does not in any way indicate that the regulations would be able to take care of this. Once again, we have this uncertainty that always exists before regulations have actually been prepared and issued, and the need here is that when we are talking about such an essential income source for people with disabilities living in poverty that it is crucial that the right to appeal is in the Statute.”
The Third Amendment
The SOCI Committee amended Bill C-22 to require Cabinet to take into account the poverty line, the additional costs of living with a disability, the intersectional disadvantages facing disadvantaged groups, and Canada’s international human rights obligations when deciding how much the Canada Disability Benefit payment will be. Before this amendment, the bill required Cabinet to consider only the poverty line.
Some disability organizations mistakenly thought that the House of Commons Standing Committee (HUMA) last year had imposed a deadline for Cabinet to make those regulations, and praised the HUMA Committee for doing so. In fact, the House of Commons never imposed any duty on Cabinet to make any regulations under this bill by any deadline.
Here is the explanation for this amendment that was given at the SOCI Committee:
“Senator Dasko: I’m sorry. I thought we were at another point.
It is moved by Honourable Senator Lankin, P.C.:
That Bill C-22 be amended in clause 11, on page 6, by replacing lines 11 and 12 with the following:
“must take into consideration
(a) the Official Poverty Line as defined in section 2 of the Poverty Reduction Act;
(b) the additional costs associated with living with a disability;
(c) the challenges faced by those living with a disability in earning an income from work;
(d) the intersectional needs of disadvantaged individuals and groups; and
(e) Canada’s international human rights obligations.”.
Colleagues, during our seven meetings, we had many witnesses who came to speak to us about the factors and conditions that they felt should be considered when it comes to developing a benefit for people with disabilities. The existing bill already includes part (a), that is to take into consideration the official poverty line as defined in section 2 of the Poverty Reduction Act. That is already there. What we are talking about adding are parts (b), (c), (d), and (e).
We know from testimony that people with disabilities have tremendous additional costs of living in terms of many services in their lives — transportation, food preparation and many other additional costs. This should be an important consideration when it comes to developing the benefit.
We know, also from testimony, that they face many challenges in earning a living. A number of witnesses have asked us to take this into account and that this be mentioned or noted in the legislation as a factor that should be considered.
We’ve also heard about intersectional needs; we’ve heard about the barriers and issues faced by women, people of racialized backgrounds and by Indigenous people. We heard how those statuses can create additional barriers and needs.
We have also heard about Canada’s international human rights obligations and how that should be a consideration in setting the benefit levels.
So, essentially, these factors are coming to us from witnesses. We have spent seven meetings with witnesses, and they have come here to tell us their stories. I feel we are obliged to take their testimony and stories into account. We are obliged to improve this bill by taking those factors into consideration. Why are we here if it is not to improve this bill?
I don’t think we are here to close the door on the testimony of people with disabilities who have come here to tell us these things. There are ways that we can improve this bill by actually mentioning and putting into the legislation these factors. Why would we have done this work and why would we have invited witnesses to come to this committee to take the time and effort to come here, knowing how difficult it is for so many people with disabilities to actually come to this setting and to make their case? I believe this reflects their voices.
So I’m putting this on the table. Actually, this is an amendment from Senator Lankin, supported by me, obviously. Therefore, I feel that we should write this into legislation so that these factors are actually being considered.
I mentioned that the language does say “must take into consideration” so that’s a very important part of this. It just takes the wording that is there with respect to the poverty line and includes some additional factors that should be there.
The wording just builds upon what is there to reflect the testimony we have heard over seven meetings with witnesses who have come here to talk about the conditions of life and what should be considered in the benefit.”
The Fourth Amendment
The fourth amendment imposes a 1-year deadline for regulations to be enacted that are necessary to start paying out the Canada Disability Benefit to impoverished people with disabilities. This is how this amendment was explained by the senator who proposed it:
“Senator McPhedran: Thank you. As you indicated, Madam Chair, we’re on page 6. We’re looking at the subheading “amount of benefit” where we already have an amendment 1.1 looking at guidance for making regulations under paragraph 1(c) respecting the amount of a benefit.
We already have the beginning of guidance, and this is to strengthen the amendment that was put in place. That is that Bill C-22 be amended in clause 11, on page 6 by adding the following after line 12, which is the 1.1 to which I have just referred. This would be 1.2, and I am making a slight amendment in that I’m proposing today that it state:
Within 12 months of this act coming into force, the Governor-in-Council must make regulations under paragraphs 11(1)(a) to (f), (h), (i), (k) and (n) that are necessary to enable a Canada disability benefit to be paid in accordance with this act.
As I think the words clearly indicate, this is a reasonable amount of time for the government to actually follow through on the promise of this bill, and it is also to address the fact that there is a distinct possibility that this could go on for years. This is a very complex process that the government has proposed, particularly with federal-provincial-territorial negotiations, and this would reinforce the assurances we have received. But unfortunately, we have a minority government, and we have no guarantee that the current highly effective minister would remain in that position. So this speaks to the government as a whole and creates some greater certainty that what has been promised will actually be delivered within a reasonable amount of time.”
The Fifth Amendment that the SOCI Committee is Expected to Consider at its May 10, 2023, Meeting
We are hoping and expecting that at the next SOCI Committee meeting, the Committee will consider deleting Section 14 of the bill or amending it to state that the bill comes into force upon Royal Assent. We have pointed out that the House of Commons Standing Committee on Human Resources, Skills and Social Development and the Status of Persons with Disabilities messed up that provision. It is supposed to specify when this bill comes into force. However, it does not specify an exact date and does not give Cabinet the power to proclaim it in force.
Within minutes of the House of Commons Standing Committee messing it up last fall, the AODA Alliance emailed the Trudeau Government to get them to fix it. We urged them to amend this section when the House of Commons debated Bill C-22 on Third Reading. The Trudeau Government did not do so. The Senate is left to clean up the mess.
One senator raised this problem right at the end of the May 4, 2023, SOCI Committee meeting. She asked the Government’s officials about it. Those officials confirmed what we have been telling the Government for six months. Here is the exchange at the SOCI Committee:
“Senator Petitclerc: I do have some questions before we proceed to clause 14. That’s where we’re at.
I just need some clarity from the officials. I will ask you a few questions. I will do so in French because my notes are in French. It’s coming from a conversation with Senator Lankin, but I’m supportive. I need that clarity as well.
In the original version of the bill, so before the amendment that took place at HUMA, for the date of coming into force, it was provided that the law would come into force on a date set by decree. So you will remember, there was this amendment, and it was modified. Now what we have before us is the law that comes into force, and I quote “… no later than the first anniversary of Royal Assent. “, so at the latest, “… no later than… »
What we are told and what we read is that this is not a formulation that is commonly found in the coming into force of legislation. When we look at section 5 of the Interpretation Act, it clearly refers to either a date or an order-in-council. However, here we end up with a delay, “… no later than… I just need to understand to make sure there are no irregularities and that we are compliant.
So do you consider that the wording “… no later than the first birthday…” as a date, and is it consistent with the Interpretation Act?
Are there any examples? We have tried to find examples of that, examples of legislation that is worded as a date of coming into force, or an entry into force that is “… at the latest…»?
Mme Wilcox: Thank you for the question…)
Senator Petitclerc — who is “at the latest”?)
Ms. Wilcox: Thank you for the question. I’m going to take them in a couple of points. I will say I’m not a lawyer, so I won’t speak to whether it complies with the Interpretation Act. I’m not able to do that.
First maybe on clause 5, that’s about the regulations. That would be when the government makes the regulations, those would come into force at the time they are made, which is different from the legislation itself. It could be the same time. Different legislation has that.
But this specific clause, clause 14, where your question is around the “no later than” —
Senator Petitclerc: It may be the…)
Mme Wilcox: … is around the ”no later than”?)
Senator Petitclerc: Perhaps that is the translation, when I was referring to section 5 of the Interpretation Act.
Ms. Wilcox: Sorry for that, just coincides. That also has a different date on it.
In fact, the “no later than” doesn’t actually have any way to be implemented, so there is no authority that has been given to the Governor-in-Council to actually bring the law into force earlier than the first anniversary. I can’t speak to the compliance, but there is a question about how one would bring the law into force earlier, as it doesn’t provide the authority to the Governor-in-Council to do so.
The Chair: Thank you, colleagues. Our time is over. We will resume our debate and discussion on Bill C-22 next week.”