Trudeau Government Wrongly Rejects Senate Amendment to Bill C-22 that Would Ban Insurance Companies from Scooping New Canada Disability Benefit from Impoverished People with Disabilities on Private Long-Term Disability Benefits

ACCESSIBILITY FOR ONTARIANS WITH DISABILITIES ACT ALLIANCE

NEWS RELEASE – FOR IMMEDIATE RELEASE

 

Trudeau Government Wrongly Rejects Senate Amendment to Bill C-22 that Would Ban Insurance Companies from Scooping New Canada Disability Benefit from Impoverished People with Disabilities on Private Long-Term Disability Benefits

 

June 15, 2023 (Toronto) Last night, the House of Commons ratified the Senate’s amendments to Bill C-22, the proposed Canada Disability Benefit Act, with one glaring and seriously harmful exception. On a motion by the Trudeau Government, the House did not ratify the Senate’s amendment that would ban private insurance companies from clawing back the new forthcoming Canada Disability Benefit from impoverished people with disabilities who receive private long-term disability (LTD) insurance benefits.

 

Because of that vote, private insurance companies will be free to scoop the forthcoming new Canada Disability Benefit from impoverished people with disabilities who get private LTD benefits, if their insurance contract entitles the insurance company to do so. Public payments that the Federal Government intended to lift people with disabilities out of poverty will instead wrongly lift the profits of rich insurance companies, a profound misuse of public money.

 

“The Federal Government claimed that the Senate wrongly invaded provincial authority, but a powerful legal argument, endorsed by every provincial Trial Lawyers Association in Canada, proves that claim to be utterly bogus,” said David Lepofsky, Chair of the non-partisan AODA Alliance, one of the organizations that had campaigned for this amendment to the bill. “In effect, the Justin Trudeau Government has unilaterally declared the sacred Canada Health Act to also be unconstitutional, given the contorted legal reasons it gave for rejecting this much-needed Senate amendment to the proposed Canada Disability Benefit Act.”

 

Two Toronto lawyers with expertise in this area, Steven Muller and Hart Schwartz, led the charge for this Senate amendment, with the backing of every provincial Trial Lawyers Association in Canada. The AODA Alliance heartily endorses a strong June 14, 2023, public statement by two of the senators who advocated for this amendment, Senators Kim Pate and Marilou McPhedran, set out below.

 

It was a relief that the Trudeau government approved the five other amendments that the Senate made to this bill at the request of disability advocates, including the AODA Alliance. For months, the Liberals flip-flopped time and again, first opposing any amendments to the bill in the House of Commons, then applauding opposition amendments passed in the House last fall, then orchestrating a vigorous campaign to get the Senate to make absolutely no amendments to the bill, and finally, now accepting and commending the five other Senate amendments to the bill that the Trudeau Government had earlier opposed (with the exception of the protection against private insurance companies clawing back the Canada Disability Benefit). Last winter, a widely viewed 7-minute video by the AODA Alliance showed the first round in those dizzying flip-flops.

 

Because of the Trudeau Government’s action yesterday and because no opposition party tried to get the House of Commons to override Trudeau’s minority government on this issue, passage of Bill C-22 is further delayed. It must once again go back to the Senate for another debate and vote. It is expected that by tradition, the Senate will approve whatever the House of Commons now sends to it.

 

“We call on the Federal Government to proclaim this bill in force as soon as it receives Royal Assent, since there is no reason for any more delays,” said Lepofsky. “Since the Trudeau Government rejected the Senate amendment that bans private insurance clawbacks of the Canada Disability Benefit, the Trudeau Government should immediately launch a public campaign to get every province and territory to enact bans on private insurance companies clawing back the Canada Disability Benefit. Vulnerable, disempowered and impoverished people with disabilities should not have to bear that undue hardship in one province after the next, right across Canada, a hardship directly caused by the Trudeau Government’s failure to ratify that Senate amendment.”

 

Contact: David Lepofsky

Email: aodafeedback@gmail.com

Twitter: @aodaalliance

 

For more background, check out:

 

 

June 14, 2023 News Release by Senators Pate and McPhedran

 

Senators McPhedran and Pate react to Government Rejection of Key Senate Amendment to C-22, The Canada Disability Benefit

 

FOR IMMEDIATE RELEASE

 

June 14, 2023 (Ottawa) The Government has long indicated that C-22 is a priority piece of legislation and will bring the Senate amended bill to the House of Commons today.

 

We are pleased that the Government has seen fit to accept 5 of the 6 senate amendments to C-22, including: codified provisions outlining a benefit appeals and tribunal process; greater emphasis and acknowledgement of the additional costs of living, intersectional conditions, and related systemic barriers facing the disability community; and stronger implementation timelines. These amendments, developed in partnership with disability advocates, will strengthen the bill and advance disability rights and inclusion for millions of Canadians.

 

Unfortunately, we are dismayed that the Government has opted to reject a key Senate amendment which sought to protect the disability benefit from potential private insurance claw backs. Citing concerns over provincial jurisdiction over the regulation of the insurance industry, the government is effectively removing one of the strongest safeguards introduced by the Senate that was intended to protect benefit recipients and lift them out of poverty.

 

Without the Senate safeguard amendment, Bill C-22 leaves the door open for private insurance companies to clawback the Canada Disability Benefit from people with disabilities receiving long term disability benefits. This amendment – designed to protect disabled people – has been endorsed by every Provincial Trial Lawyer Association in Canada. These Associations represent thousands of lawyers throughout our country who represent hundreds of thousands of disabled clients.

 

The Government position does not hold water. Many federal statutes, from banking to bankruptcy, maritime insurance to divorce, human rights codes to genetic non-discrimination legislation, touch on and affect the terms and conditions of sectors within provincial jurisdiction.

 

Some examples of existing Federal statutes that contradict the government position on C-22:

  • The supreme court of Canada (2020 SCC 17) upheld as constitutional a provision in the Genetic Non-Discrimination Act that prohibited private insurance companies as a term of their contracts from certain actions.
  • Provisions in the Merchant Seaman’s Compensation Act have insulated recipients of this compensation from private insurance setoffs and clawbacks – for more than 40 years – without a single challenge. The Senate’s private insurer amendment in C-22 relies on a similar justified limitation.

Despite these important precedents, the Government seems prepared to concede defeat. As Disability law experts Steven Muller and Hart Schwartz have stated:

“Under the government’s approach, the insurance industry effectively wins its constitutional challenge without ever even having to start it in the first place. From day one, that industry will be allowed to claw back monies targeted for the impoverished disabled. The Government is effectively granting the victory without requiring the insurance industry to go to court.”

 

It is significant that no provincial or territorial government, let alone any private insurance company, has publicly objected to this amendment on constitutional or other grounds, or indicated that they would challenge it in court.

 

More than 44 disability groups, trial lawyers, academics and Senators are urging parliamentarians to adopt the full set of Senate Amendments and not be seen as prioritizing wealthy insurance companies over the disabled community. Parliament should be protecting taxpayers’ money and disabled people who greatly need this disability benefit rather than de facto subsidizing already rich insurance companies.

 

Despite our grave reservations over the rejection of this amendment, we will vote to pass this legislation, as the disability benefit is long overdue and desperately needed. Time will tell how this private insurance loophole may be exploited. If -and when- it is, parliament will have a second chance to correct it. But it will come at the expense of the disabled community, who will be made to suffer because the government failed to act courageously at the outset.

 

Contact:

John Inca Anderson

Office of the Hon. Marilou McPhedran

Johninca.anderson@sen.parl.gc.ca / 343-572-1608