Accessibility for Ontarians with Disabilities Act Alliance
ARCH Disability Law Centre

March 22, 2023

On Wednesday, March 22, 2023, the Senate’s Standing Committee on Social Affairs (SOCI) begins its public hearings on Bill C-22, the proposed Canada Disability Benefit Act. This well-intentioned but weak bill needs to be strengthened. To assist the SOCI Standing Committee and all those who will make written or oral presentations to the Standing Committee’s public hearings, the AODA Alliance and ARCH Disability Law Centre present the following list of ongoing concerns with the Bill and proposed ways to address them. We support these in principle. We fully acknowledge that in addition to these, others may present other amendments to the Standing Committee that are needed, and that deserve the Committee’s careful consideration.

The messaging from the Federal Government is that any concerns with Bill C-22 can be addressed when the Federal Cabinet makes regulations, after the bill is passed. This is incorrect. Several of the issues addressed here cannot technically be addressed by regulations under this Bill. Of those which could be, there is no assurance that the needed regulations will be made to address them, and that no future Cabinet would ever weaken or repeal them.

In several places, we propose actual wording for an amendment, to help the discussion. We are very flexible on how these amendments might be worded, and expect that the Senate’s legislative lawyers will come up with their own wording.

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 trying to negotiate agreements with all provincial and territorial governments so that they will not “claw back” any part of the Canada Disability Benefit from any people with disabilities who receive it. It should not be necessary for the Federal Government to sign these agreements with every provincial and territorial government, before the Federal government can start to pay the Canada Disability Benefit to people with disabilities in a province which has signed a no claw back agreement with the Federal Government. If no Canada Disability Benefit can be paid anywhere in Canada until all provinces and territories sign these agreements, it will unfairly delay the Canada Disability Benefit. It would wrongly empower one premier to hold the Canada Disability Benefit up for all of Canada.

The Bill should be amended to require the Federal Government to pay the Canada Disability Benefit in any province where 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.

1. 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.

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 and 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.

2. Section 14 should be amended to replace the current wording with:

This Act comes into force upon receiving Royal Assent.

Forbid Private Insurance Clawbacks

The Bill does not prevent private insurance companies from clawing back all or part of the Canada Disability Benefit 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 lift impoverished people with disabilities out of poverty, into the profits of rich insurance companies.

3. 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 Parliamentother 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 Canada Disability Benefit, 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 Canada Disability Benefit. The Bill should be amended to require that the Canada Disability Benefit cannot be recovered or clawed back in whole or in part under any Act of Parliament other than the Canada Disability Benefit Act.

4. Section 9 should be amended to add the following subsection:

The Benefit cannot be recovered in whole or in part, or 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 has 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 Canada Disability Benefit – under the terms of the Bill, it could be as low as $1 per month.

The Bill will only achieve its purpose if the amount of the Canada Disability Benefit is large enough to lift a person with disabilities out of poverty, when combined with a person’s other income. The Bill should be amended to ensure that a person to whom the Canada Disability Benefit is paid results in having an income that exceeds the Official Poverty Line as defined in section 2 of the Poverty Reduction Act.

5. 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.

Set A Timeline for Cabinet to Make Initial Regulations Needed to Start Paying the Canada Disability Benefit

Under the Bill, the Canada Disability Benefit 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 Canada Disability Benefit.

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 (which could be two years after Royal Assent, according to the wording of Section 14). That Minister’s report “on the progress made in the regulatory process”, might end up stating 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 the regulations that are necessary to enable the Canada Disability Benefit 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 from claimants for the Canada Disability Benefit).

6. 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 for when the Federal Government must begin to start paying the Canada Disability Benefit. People with disabilities languishing in poverty need a concrete goal. The Bill’s preamble should be amended to specify best efforts to achieve a target date for the Canada Disability Benefit to begin to be paid.

7. 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 are made that Set the Benefit’s Amount and Eligibility Criteria, Don’t Let a Future Cabinet Reduce These Without Any Oversight By Parliament

Under this Bill, a future Cabinet could reduce or eliminate the Canada Disability Benefit, or make it harder to qualify to receive it. Parliament would have no say before those harmful regulations were enacted. That is unfair.

Once Cabinet makes the initial regulations that set the Canada Disability Benefit’s amount and the 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 down Cabinet from making the initial regulations that start up the Canada Disability Benefit. It would not restrict in any way Cabinet’s power to increase the Canada Disability Benefit or to make it easier to qualify.

8. This requirement should be added as a new subsection in Section 11:

After the amount of the Benefit is initially established by regulations and the eligibility criteria to qualify for the Benefit, 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 Canada Disability Benefit to be paid to “working age” people with disabilities. The Bill does not define “working age”. The Bill 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 below 70.

9. 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 who applies for the Canada Disability Benefit and is refused, will have a right to appeal that refusal. The Bill should be amended to give a person a right to appeal a refusal of the Canada Disability Benefit to a Tribunal.

10. 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 Canada Disability Benefit. 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 Canada Disability Benefit. 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 Canada Disability Benefit, 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 Canada Disability Benefit, with the Bill and regulations spelling out the eligibility criteria.

Moreover, without limiting who has a “disability” for applying for the Canada Disability Benefit, the Bill should be amended to provide that a person who applies for the Canada Disability Benefit 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.

11. 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 of an Applicant

The Bill should be amended to ensure that a Social Insurance Number is not required to apply for the Canada Disability Benefit. It should require the Federal Government to accept alternative means of identification for persons applying for the Canada Disability Benefit who do not have a Social Insurance Number, e.g. due to homelessness or other circumstances.

12. 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 Never be any 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 Canada Disability Benefit 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 Canada Disability Benefit. It should be amended to establish an accessible complaints process for people with disabilities to file complaints if any of their provincial/territorial or federal monetary or non-monetary benefits or services, or private disability-related insurance benefits, are clawed back or reduced directly or indirectly because they have received the Canada Disability Benefit. 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.

For more information, visit:

AODA Alliance: www.aodaalliance.org/c22
ARCH Disability Law Centre: https://archdisabilitylaw.ca/