Past Legal Challenges

This is a list of our past challenges:

What kinds of evidence can be submitted to support an ODSP eligibility appeal: Director of ODSP v. Tremblay

ISAC co-counselled with the Kapuskasing legal clinic to represent an ODSP applicant who was granted ODSP benefits by the Social Benefits Tribunal. The Director of ODSP has appealed the Tribunal’s decision to the Divisional Court.

The Director of ODSP was challenging the Tribunal’s reliance on medical information from a previous, unsuccessful ODSP application to support granting the new application. ISAC was concerned that if such an argument is successful, it could limit the Tribunal from considering relevant medical information.

The Ministry’s appeal was scheduled to be heard by the Divisional Court in Toronto on October 13, 2011. Shortly before the hearing, the Ministry withdrew its appeal, leaving the Tribunal ruling intact.

To read ISAC's Factum, click here.

Deduction of Child Support from ODSP Benefits: Director of ODSP v. Ansell

In February 2011, ISAC appeared before the Court of Appeal of Ontario in a case challenging ODSP’s policy of attributing child support as income to adult children, even in cases where the adult children had no access to the child support payments.

Ms. Ansell is a young woman who applied for ODSP benefits in her own name while living with her mother. Her mother was receiving child support payments, which she used to ensure that her daughter had access to necessary disability-related services. She was denied ODSP benefits on the basis that the child support payments to her mother made her financially ineligible. Because the money came by way of child support, she was not allowed to take advantage of rules that allow parents to voluntarily give their children up to $6,000 in any 12 month period or to pay for disability-related expenses without deduction from the adult child’s ODSP entitlement. If her parents had been together, the very same payments would not have been included in her income and she would have been eligible for ODSP.

In April 2011, the Court of Appeal unanimously decided that child support payments should not be considered income to the child. The Court agreed with ISAC’s argument that ODSP’s policy was discriminatory towards the children of separated parents and made a number of important observations about the principles that should be applied in interpreting social assistance legislation.

ISAC co-counselled with the Algoma legal clinic in order to challenge this decision.

To read ISAC's Factum, click here.

To read the Court of Appeal's judgment, click here:

http://www.canlii.org/en/on/onca/doc/2011/2011onca309/2011onca309.html

The discriminatory denial of ODSP benefits for persons with addictions: Director of ODSP v. Tranchemontagne

ISAC intervened at the Court of Appeal of Ontario, in a case challenging the section of the Ontario Disability Support Program Act that denies benefits to persons with addictions. ISAC argued that the law violated the Human Rights Code because it discriminated on the basis of disability. ISAC also argued that the Court should not accept the Ontario government’s position that government evidence and policy decisions should be given special deference by the courts.

On September 16, 2010, the Court of Appeal of Ontario released its judgment in which it found that it was discriminatory for the government to deny persons with addictions access to disability benefits. The Court did not accept the government’s arguments with respect to deference to its evidence. As a result of this court case, persons who are disabled by addictions are entitled to ODSP benefits.

To read the Court of Appeal's judgment, click here:

http://www.canlii.org/en/on/onca/doc/2010/2010onca593/2010onca593.html

Challenge to the characterization of RESP’s as assets under OW/ODSP: Ostique v. The Administrator of Ontario Works for the City of Toronto

This case involves an appeal from a decision of the Social Benefits Tribunal (SBT), which ordered a sole-support mother to cash-out the Registered Education Savings Plan for her daughter, in order to get income support from Ontario Works.

ISAC brought the unfairness of this issue to the attention of the government, the media and the public on October 7, 2004, by holding a press conference. On December 15, 2004, the government did change the regulations and rules around RESPs, and families who need to apply for OW/ODSP no longer have to cash out RESPs in order to qualify.

However, the new RESP rule did not benefit the mother and daughter in this case, because the SBT decision was handed down in November 2003 - before the government made the changes. The changes did not apply to decisions made before December 15, 2004, and so did not apply to this case.

A settlement was reached prior to this case being heard at Ontario Divisional Court.

ISAC worked on this case with counsel from the West Scarborough Community Legal Clinic.

Human Rights complaint about the failure of ODSP to treat WSIB Non-Economic Loss awards as exempt income: Wayne Locke v. Ontario (Ministry of Community and Social Services)

This case involves a human rights complaint against the Ministry of Community and Social Services, which arose due to an ODSP Regulation that characterized Non-Economic Loss (NEL) awards under workers’ compensation legislation as being income and assets for social assistance purposes.

Under workers’ compensation legislation, a NEL award is granted where a worker suffers a permanent impairment, that is, a physical, functional or psychological loss related to a workplace injury. Because NEL awards were classified as income and assets, injured workers would be required to spend their NEL awards in order to remain eligible for ODSP, or see their ODSP suspended while they used the money from the NEL to meet their basic needs.

This case was brought forward by an injured worker who had to rely on ODSP income support while he waited for a decision in his workers’ compensation appeal. The worker was eventually awarded a NEL, and was faced with the prospect of disposing of it or having his ODSP suspended. In order to keep on-going ODSP benefits for his family, he disposed of his NEL. Afterwards, he filed a complaint with the Ontario Human Rights Commission, claiming that the ODSP Act treated injured workers differently than other people with disabilities because it treated NEL awards differently than other awards. The ODSP Act treated NEL awards like income and assets, but did not treat other awards in the same way. For instance, ODSP recipients could keep the whole amount of awards for pain and suffering arising from personal injury lawsuits, or for injuries arising from “tainted blood”, and maintain their ODSP benefits, while injured workers had to dispose of their NEL awards in order to keep their ODSP benefits.

The Ontario Human Rights Commission advanced his complaint forward to hearing at the Human Rights Tribunal of Ontario.

As part of the reforms announced on December 15, 2004, the government changed the OW/ODSP regulations defining Non-Economic Loss awards as income and assets.

NEL awards are no longer treated as income, and injured workers who receive ODSP can keep their NEL awards (up to a maximum of $100,000). Injured workers who receive OW can also keep their NEL awards (up to a maximum of $25,000).

These changes did not benefit the Complainant in this case, because the change was not retroactive. A settlement was reached prior to a hearing at the Human Rights Tribunal.

Challenge to impact of EI pregnancy benefit eligibility rules for women working part time: A.G. Canada v. Kelly Lesiuk

Kelly Lesiuk was denied Employment Insurance benefits because, as a mother working part-time, she was unable to accumulate the number of work hours necessary to qualify. Ms. Lesiuk has launched a Charter challenge to the EI eligibility requirements, arguing that they discriminate against women and mothers. ISAC has been granted intervener status before the court.

In 1998, Kelly Lesiuk moved from Brandon to Winnipeg, Manitoba where her husband had recently found employment. For almost five years prior to the move, Ms Lesiuk had been a part-time registered nurse at the Brandon General Hospital. She was also the primary caregiver for the couple’s daughter. When Ms Lesiuk applied for EI benefits shortly after arriving in Winnipeg, the Employment Insurance Commission determined that she had worked fewer than 700 insurable hours in the previous 52 weeks and therefore could not qualify for regular, pregnancy or sickness benefits. Under the new EI rules, she was 33 hours short. Significantly, under the old Unemployment Insurance Act she would have had enough insurable weeks to qualify.

Assisted by the Community Unemployed Help Centre in Winnipeg and the Public Interest Law Centre, Ms Lesiuk appealed the Commission’s decision to the Employment Insurance "Umpire", arguing that the new EI eligibility rules discriminated against women and parents. In March 2001, the Umpire held that the violated the equality guarantee in section 15 of the Charter of Rights and Freedoms. The Commission appealed the decision to the Federal Court and the case was heard on November 19 and 20, 2002. ISAC was granted intervenor status to make submissions relating to the impact for low income unemployed workers forced to rely on social assistance because of restrictive EI eligibility rules. On January 8, 2003, the Court of Appeal released a decision overturning the Umpire's verdict that EI rules violate the Charter. Leave to appeal to the Supreme Court of Canada was denied later that year.

For more information click here

For a list of resources click here

Challenge to deduction of pregnancy benefit weeks from regular EI benefit entitlement: Joanne Miller v. Attorney General of Canada

Joanne Miller is challenging Employment Insurance rules that discriminate against women, parents and people with disabilities by reducing the regular benefit period for claimants who had previously received maternity, parental or disability benefits...

In March 1996, after giving birth to her second child, Joanne Miller applied for maternity and parental benefits under Canada’s Unemployment Insurance Act. She received 15 weeks of maternity benefits and 10 weeks of parental benefits, the maximum number of weeks available at the time.

The following September, shortly before Ms. Miller was to return to her job, she received a letter from her employer stating that her position was no longer available. As a result, she had to apply for regular unemployment insurance benefits to give her the time she needed to find alternate employment. Because she had just received maternity and parental benefits, Ms. Miller was only able to receive 15 weeks of regular unemployment insurance benefits. Had she not received these ‘special’ benefits, she would have been entitled to 40 weeks of regular benefits.

Ms. Miller challenged the reduction in the regular benefit period for claimants who have previously received special benefits such as maternity, parental or disability benefits. She argued that this automatic reduction violated the right to equality found in the Canadian Charter of Rights and Freedoms by discriminating against pregnant women and working parents; it penalized these groups for needing to access special benefits by reducing the time available to look for work. Like the Lesiuk case, Ms. Miller’s challenge highlighted the discriminatory nature of Canada’s unemployment insurance legislation.

ISAC made written and oral submissions as an intervenor at the Federal Court of Appeal level of Joanne Miller’s case. Again, the basis of ISAC’s intervention was to ensure that the Court was apprised of the impact of the benefit restriction for low income unemployed parents forced to rely on social assistance where EI was not available.

The Federal Court of Appeal delivered its judgment in October 2002, and, disappointingly, dismissed Ms. Miller's appeal, holding that the reduction in the regular benefit period is not a violation of the Charter. As with Lesiuk, leave to appeal this decision to the Supreme Court of Canada was denied.

For more information click here

For a list of resources click here

Charter Challenge to OW/ODSP rules deeming income for sponsored immigrants in receipt of social assistance. VJ et al v. Attorney General of Ontario

Since 1993, social assistance programs in Ontario have discriminated against sponsored immigrants in need of financial assistance by automatically deducting a minimum of $100/month from their benefits. ISAC is representing three individuals in a class action Charter challenge to these reductions…

This case has been resolved.

On December 15, 2004, the government changed the OW and ODSP rules that required the automatic deductions from the welfare benefits of sponsored immigrants (for more details, refer to the section "Liberals make changes to OW/ODSP rules".

For more information click here

The Inquest into the Death of Kimberly Rogers

In 2002, ISAC represented two public interest intervenors in the inquest into the death of Kimberly Rogers. The year before, Kimberly Rogers had been found dead in her Sudbury apartment. She had been under house arrest after being convicted of welfare fraud for collecting OSAP loans while on social assistance. She was eight months pregnant and Sudbury was experiencing an extreme heat wave at the time.

When she plead guilty to welfare fraud three months earlier, Kimberley Roger’s only source of income was social assistance and the social assistance rules at the time required that her benefits be automatically suspended for three months as a result of the fraud conviction. In spite of that reality, she was sentenced to six months house arrest (in addition to 18 months probation and restitution of over $13,000 to Ontario Works), with no means of financial support.

With the help of the Sudbury legal clinic and a private bar lawyer, Kimberly succeeded in obtaining a constitutional injunction that temporarily re-instated her social assistance benefits, but at $486 a month they were far from adequate. After paying her rent, she had only $18 left over for food and other necessities. Community organizations, already over-extended, could provide only limited support.

An inquest into Kimberley Roger’s death began on October 15, 2002 and lasted for 9 weeks, with final submissions heard on December 11 and 12. The Coroner's inquest looked at the circumstances surrounding Kimberly Rogers' death including the role played by social assistance rules and policy. The intervenors represented by ISAC were granted status to address that issue and participated with ISAC’s assistance in examining witness, calling experts on social assistance rules and impacts and in proposing recommendations to the Coroner and the Coroner’s jury. ISAC and its clients also worked with a broader coalition of groups to publish daily inquest updates and provide media briefings.

The Coroner's jury released its recommendations in December 2001 and a number of key recommendations were directed to social assistance policy including

eliminate the lifetime and temporary social assistance bans for people convicted of welfare fraud;
assess the adequacy of social assistance rates and base allowances on actual living costs within a particular community or region;
Ontario Works drug benefits for the treatment of serious medical conditions should not be discontinued during any Ontario Works suspensions;

permit local Ontario Works administrators to exercise discretion in the use of any suspension of benefits;
establish a committee composed of various stakeholders across Ontario to develop a model for assessing whether cases involving allegations of welfare fraud should be referred for prosecution. The model should include an evaluation of the life circumstances of the recipient and the consequences of a conviction on the recipient and any dependents.

For a list of resources click here