April 24, 2023

Introduction

ARCH makes this submission to the Standing Senate Committee on Social Affairs, Science and Technology (SOCI) regarding its study of the proposed Act to reduce poverty and to support the financial security of persons with disabilities by establishing the Canada disability benefit and making a consequential amendment to the Income Tax Act (Bill C-22).

ARCH’s submission draws upon our legal knowledge of, and experience with, federal disability legislation, including the Accessible Canada Act (ACA)[1]and its regulations, the Canadian Human Rights Act, the Canadian Charter of Rights and Freedoms, and medical assistance in dying (MAiD) legislation. We draw upon our legal knowledge of, and experience with, the Convention on the Rights of Persons with Disabilities, a fundamental international human rights treaty which Canada ratified in 2010. In addition, our submission is informed by the experiences of persons with disabilities, our clients and the communities we serve.

ARCH Disability Law Centre is a specialty legal aid clinic that practices exclusively in disability rights and poverty law. Information about ARCH and our work is available at: ARCH Disability Law Centre website

Urgent Need for Income Support Benefit to Persons with Disabilities in Canada

Bill C-22 offers a significant opportunity to provide persons with disabilities with crucial and life-changing income support. However, in its present state, Bill C-22 provides little assurances that it will achieve its intended purposes.

Persons with disabilities in Canada experience higher rates of poverty as compared to the general population, resulting from systemic barriers to economic and social inclusion.^[2] The expansion of Canada’s medical assistance in dying (MAiD) law has placed additional pressure on persons with disabilities who are experiencing poverty. As a result, some persons whose lives have been impacted by the cycle of poverty have, in fact, resorted to MAiD because they do not have any other viable options for living with dignity in the community.

Notwithstanding the importance of these issues, Bill C-22 fails to adopt critical elements that promote a disability rights framework. While the recommendations below do not address all of the issues regarding this Bill, as a specialty legal clinic, we offer concrete ways for the Senate to address some key concerns raised by our diverse communities of persons with disabilities living in poverty. These have been co-developed with legal thinkers and leaders in our communities. 

Given what is at stake, there is an opportunity to implement in law elements of Canada’s international human rights commitments under the Convention on the Rights of Persons with Disabilities, specifically Article 28. In its current state, Bill C-22 in no way reflects a disability rights based approach. We share concerns that the Bill does not frame its purpose as poverty eradication; does not commit to a minimum standard of adequate living to lift people with disabilities out of poverty; does not guarantee any minimum eligibility, harmonization or prohibit claw-backs of federal/provincial/territorial benefits and supports; and does not include any detail on an accessible, fair and transparent appeal process. Strengthening this Bill from a rights based approach will yield a stronger legislative framework, and this can be done without stalling the legislative process, a concern raised by some disability groups. The amendments we suggest focus on strengthening this Bill from a rights based approach in order to establish a stronger legislative framework for regulation development.

The suggested amendments: 1) aim at advancing the stated purpose of the Bill; 2) address problems that can only be resolved, or more appropriately be resolved, by legislation rather than regulation; 3) do not substantively impact the nature of the legislative structure of the Bill and allow for the details to be identified through regulation development; and 4) can facilitate and expedite the overall regulation development process and availability of benefits to persons with disabilities who are most in need. ARCH has followed the hearings before this Committee closely, and we share concerns voiced by some members of our communities that passing this Bill with no amendments hurts rather than helps those most in need.

This Brief offers only select amendments for the Committee to consider, in addition to the full list of proposed amendments co-written with the AODA Alliance and made public on March 22, 2023.  There have been important amendments proposed by numerous witnesses before this Honourable Committee that we believe deserve strong consideration. In addition, ARCH strongly endorses the written briefs submitted to this Committee by the AODA Alliance, the Income Security Advocacy Centre (ISAC), Vince Calderhead, and Steven Muller/Share Lawyers and co-author Hart Schwartz.

Select Amendments to Strengthen Bill C-22

1. Fix the Bill’s Coming into Force Date

Bill C-22 fails to specify how or when it comes into force. This technical deficiency can be remedied by either removing section 14 of the Bill altogether, or by amending section 14 to be worded as follows:

This Act comes into force upon receiving Royal Assent.

This recommended amendment also directly aligns with addressing the urgency expressed by disability communities before this Committee.

2. The Canada disability benefit must avoid unnecessary administrative barriers and ensure efficient and expeditious eligibility processes

Persons with disabilities who are currently eligible and receive an existing provincial or territorial disability benefit should be deemed automatically eligible to receive the Canada disability benefit without having to engage in a burdensome administrative process in order to re-prove their disability status for the purpose of a new benefit.

Providing direct eligibility for persons who are enrolled in pre-existing disability programs will ensure that the benefit reaches eligible persons as quickly and efficiently as possible, while utilizing fewer administrative resources, and avoiding the creation of additional barriers that would otherwise occur if individuals need to unnecessarily “re-prove” their disability.

We propose that what is currently section 4 of the Bill be amended by adding further subsections (2) and (3) respectively, to guarantee automatic eligibility for people on pre-existing disability programs and to ensure their ongoing eligibility is based on the Bill’s criteria and not the criteria of their pre-existing disability programs:

Eligibility

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.

3. Bill C-22 fails to establish a right to an adequate standard of living

The amendment introduced by the Standing Committee on Human Resources, Skills and Social Development and the Status of Persons with Disabilities Committee (HUMA), which introduced subsection 11(1.1) “Amount of benefit”, is a helpful development toward ensuring that persons with disabilities can and will be lifted out of poverty. However, this amendment is not sufficient in establishing parameters that legislatively enshrine the objective to lift people with disabilities out of poverty. The Bill requires further strengthening to ensure that recipients are provided with an adequate benefit, by acknowledging that persons with disabilities face higher living costs that are not factored into the Official Poverty Line (such as housing, medical equipment, health-related services, devices, and supports), and that Article 28 of the Convention on the Rights of Persons with Disabilities provides that States Parties recognize the right to an adequate standard of living for persons with disabilities and their families.

Section 5 of the bill should be amended by adding 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.

Alternatively, if this recommendation is not passed, the following two recommendations together should replace it:

11(1.1) In 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.

11(1.2) 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.

4. Timeline Needed for Initial Regulation Development

Bill C-22 does not offer any assurance as to when and whether regulations will be enacted. As the legislation is structured to be wholly dependant on the development of regulations, meaning that no benefit can ever be paid out without the passing of various regulations, it is important to establish a timeline and a reasonable expectation.  As the Accessible Canada Act was amended to establish a timeline for particular regulations at section 117(1.1), it is equally appropriate to establish similar requirements and expectations within this Bill. 

To address this concern, the following addition to Section 11 is recommended:

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.

5. 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 has indicated that as it is negotiating agreements with provincial and territorial governments, preventing the recovery or “clawback” of the Canada disability benefit will be an important objective. We support all efforts to ensure that no “clawback” of the benefit occurs. However, there is a growing concern that such negotiations do not unfairly delay or hold up the receipt of the benefit for people in provinces who already have an agreement in place.   

The Bill can address this concern by adding 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.

6. Bill C-22 fails to guarantee appeal rights for Canada disability benefit recipients

We propose amending the Bill to correct this concern by adding the following:

Appeal to Tribunal

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.

Conclusion

We urge this Committee to consider necessary amendments that strengthen the Bill in achieving its purpose. As we have experienced with the passage of the Accessible Canada Act, the amendments put forward by this Committee were significant and important to achieving the stated legislative objectives. Similarly within this context, observations on many of the concerns raised will not suffice – amendments are required. 

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[1] Accessible Canada Act, SC 2019, c 10[ACA].
^[2] More details are available at “Low income among persons with a disability in Canada,” online: <https://www150.statcan.gc.ca/n1/pub/75-006-x/2017001/article/54854-eng.htm>.

Recording of the Standing Senate Committee on Social Affairs, Science and Technology (SOCI)  Re: Bill C-22

ARCH presented its recommendations on BillC-22 at the Senate on April 27, 2023.
ARCH’s presentation on Bill C-22: ARCH’s presentation at the Senate on Bill C-22
Full recording of the Senate meeting on Bill C-22: Senate Meeting – April 27th 2023 on Bill C-22