Sunday, May 17, 2009


There are two seemingly very different, but disturbing trends that may impact on the well being of persons with disabilities in Ontario. One involves current policy discussions on the design of disability income supports. The second involves the provincial Progressive Conservative leadership contest and the stated intentions of at least two of the candidates to disband the Ontario Human Rights Commission and Human Rights Tribunal of Ontario. While both issues may appear to be distant and not within the realm of the possible to many people who care about human rights, we better start paying attention to the progress of both initiatives.

With regards to the income support issue, our provincial government in Ontario has promised as part of its poverty-reduction strategy to carry out a review of both the Ontario Works and Ontario Disability Support Programs. While anti-poverty activists welcome the review, many of us are taking a cautious approach to this. While many of the reviewed items will be to enhance one's "incentives" to join or re-join the paid labour force, poverty-reduction activists are cautious because we are not sure of what this scope would mean and how disability benefits would look in the future, if proposals become adopted.

A federal paper by Richard August, who is a policy analyst from Saskatchewan, cites a proposal that leaves many advocates in Ontario concerned. The paper, which can be found at the Caledon Institute of Social Policy website, raises the spectre of "passive disability benefits" versus something that the author contends would place conditionality to its receipt. While August does support taking disability supports outside the welfare system, which is a point many people in Ontario's disability advocacy community do support, the concept of "conditionality" in his paper leaves this path to be less clear. The reference to the term "passive" would imply that receipt of disability benefits on the condition of entitlement and eligibility alone would hint the obligations on the part of the recipient should be increased.

A clear read of this policy paper which is more than thirty pages in length leaves the reader concerned that if this proposal were to come to light, there were be greater conditionality on the part of persons with disabilities to find and keep a job, and that one's income supports would be measured by the degree to which "outside supports", such as assistive devices, personal care attendants and other related disability related needs are required. For those of us with experience in the mental health field, we know this would exclude most persons with mental health diagnoses, leaving them to live on what very little income supports that may be left for them. At the same time as imposing conditionality, August does not impose similar obligations on the employers who more often than not shirk their responsibilities in hiring and paying good wages to persons with disabilities. The assumptions raised in this paper assume that if "barriers" imposed by social assistance regulations alone were removed, that all persons with disabilities that want to work, will find jobs.

Further, benefits themselves would be restructured where income supports and disability supports would be separate benefits and measured based on need, as opposed to membership in the "disability" category. While this may make sense for some types of disabilities, there are many "disability related costs" that are more hidden and pervasive that such a policy would not cover. For example, for people who do not drive, their costs for most basic goods and services are much higher than for those that do. For persons with "invisible" disabilities, the types of counseling and training supports required are not covered under provincial medicare plans and need to be paid for out of pocket. For some persons, it is imperative that certain supports and expenses be covered to enable labour force participation to any extent. For example, I am presently challenging the whole notion that it depends on where one lives, if somebody on ODSP can access dentures, orthotics, braces, etc. as opposed to need. It is possible such a reformed vision of disability supports might remove this form of geographic discrimination, but then again, will it limit for all what supports can be covered?

Further, what would the author of such a paper feel is an adequate income to cover basic non-disability related needs, such as housing, food, normal travel, clothing, etc.? Even this author seemed to want to tie a subsidized housing benefit to the disability program, which I have frequently pointed out in other entries in this blog would work against labour market participation, as well as penalize those who have family members move in and out of the home. While the author did say there appears to be a dichotomy between the issues of adequacy and "incentives" to work, he has not addressed this issue very well either. If you create more "incentives" to work by reducing benefits, this is not going to make more jobs available to those whose ability to participate in the labour market is limited. All this does is create greater financial distress for people who have no other source of income than disability income supports.

Until we get employers willing to hire people with disabilities in ALL levels of employment within their organizations and pay them the same as they would a non-disabled counterpart doing the same job, this is not going to work. Reports are as high as 90% of persons with mental health issues and vision loss are unemployed and at its best, maybe 50% for some other disability groups. For those employers that do hire persons with disabilities, their skills, education and prior work experience are not recognized and it is assumed that such employees are only capable of doing low-skilled, repetitive work. This is in spite of the fact more and more persons with disabilities are gaining a higher education, and even among them, there continues to remain a high rate of reliance on social assistance.

I sat downtown at a fast food take out station near the hub of our downtown, where many persons with disabilities meet and obtain coffee after their daily activities draw to an end. Among this group, I have a man trained in forensic psychology, a man with a degree in social work, an engineer, a woman trained as a teacher and another, an early childhood educator. Virtually all of them are on ODSP and unable to secure any work, let alone work in their fields. Is it really a good thing to tell these people that their incomes will now drop to OW levels to give them more "incentive" to find low paying work? To me, all this does is enhance the low wage labour force and allow abusive employers to continue to operate with impunity. At the same time, it is denying society the skills these people would otherwise offer in more appropriate occupations, which would usually pay enough to get them out of poverty -- let alone off assistance. To me, forcing people into low wage labour does nothing to counter poverty.

The second issue is related to the Human Rights Commission and the Human Rights Tribunal of Ontario. Many people are not aware that there is currently serious debate about scrapping both the Commission and the Tribunal and forcing these types of issues to be heard in a regular courtroom. While people who are not usually the type who would be subject to human rights abuses would not see this as a problem, regular courts are inaccessible to the vast majority of those who would file human rights complaints. Every annual report from the commission identified that the vast majority of complaints are filed by persons with disabilities and in most of those cases, the issue involves employment. Other cases creeping up the ladder involve services, including government mandated services, such as education, transportation and access to certain kinds of benefits.

Human rights tribunals are specialized and now empowered under Bill 107 to provide certain equitable relief in meritorious cases. You do not need to be represented by a lawyer to go to the Human Rights Tribunal. A licensed paralegal with experience in this field can do just as well, and some articulate persons themselves would be able to manage the Tribunal on their own as its procedures are more simpler and straight forward than a court, which would often require multiple discoveries, etc. Going to court would always invariably involve hiring a lawyer, most of whom ask for $2,000 to $5,000 upfront for this type of case and at the end it may cost between $40,000 to $60,000 to take the matter to trial. Legal Aid has enough difficulty paying for certificates to cover criminal cases and certain family law cases, and does not cover these types of cases at all. Almost all the human rights cases my office has handled over the past few years involve a "plaintiff" that is unable to pay these kinds of fees up front or any fees at all.

The reason why some interests are even discussing this measure is because employers, landlords and other interests are getting tired of getting whacked with human rights complaints and the orders that come with it. Many of these respondents want to continue to discriminate with impunity and not suffer the consequences of their actions. They pick straw man arguments, such as the debate around Ezra Levant's defence against a claim filed against him at the Canadian Human Rights Tribunal (which was dismissed in Levant's favour by the way). They say human rights commissions interfere with free speech. First, neither our provincial Commission or Tribunal have the power to decide on issues of free speech, nor do either have the authority to penalize a writer or publication for being "politically incorrect" - even blasphemous in their tones to protected classes of people.

Human Rights Tribunals in Ontario rule on acts of discrimination, as well as discriminatory policies that are placed intentionally or unintentionally that keep people from protected classes from having equal access to valued goods and resources, such as a job, a place to live, a membership in an association, a service, etc. To take these matters of access to a regular court would remove the balance of power between the applicant and respondent to the point that very few claims will be filed, due to costs and lack of resources. This would be just an invitation for all employers, landlords and others to discriminate with impunity, while policy makers for the former issue will continue to cut access to income and other resources on the presumption people can simply find work in the "free market".

If you don't believe this is a real possibility, both Randy Hillier and Tim, Hudak, leadership candidates for the provincial Progressive Coinservative party have announced this in their platforms. Unfortunately, many of their supporters are drawn to promises like this - the same ilk among the public that cheered when welfare benefits were dropped by 22% in 1995, leaving many people homeless and destitute. Please read Hudak's latest announcement where he promises to scrap this easier method to access justice for legitimate human rights complainants. The Code has provisions within it for Tribunals to screen out frivolous, vexatious and other minor complaints in the public interest and the Rules of Practice for the Tribunal are being drawn up to permit these types of considerations, just as the Commission had when it was in charge of accepting and screening complaints.

The fear that I have is that Dalton McGuinty was stupid enough to introduce the harmonized sales tax (HST) at a time when Ontario has plunged into a major recession. Over 67% of persons polled oppose this tax, and both the PC's and the NDP are adamantly taking this matter to the public and hoping to gain electorally by this opposition. Even though it is not clear to those opposed that it WAS the federal Conservatives imposing this change on Ontario, led by the PC's own former Finance Minister Jim Flaherty, too many voters in Ontario will move to the PC's over this issue. I know for a fact that if the PC's did get to power, they will eventually impose the HST anyways, so it would be unwise to change your vote just because of that issue. But I fear that many voters will ignore the issue of scrapping the Human Rights Commission and Tribunal of Ontario, thinking they would never face these circumstances until it is too late ... I would recommend that voters in PC ridings that are concerned about this to write to their PC MPPs expressing YOUR personal opposition to this policy of scrapping access to human rights protections. Further, if this is kept up, significantly and personally, I would sooner vote in McGuinty (holding my nose while I do it mind you) for another four year term if it meant maintaining human rights protections for people with disabilities in Ontario.

Another issue that sort of floated below the radar of publicity is the 75% reduction of medical benefits paid for by insurance companies in the event of a car accident. Instead of a policy limit of $100,000 per claim, most claims will now be subject to a $25,000 cap. Again, this is another issue that most people don't pay any attention to until they need the help. The types of rehabilitation services paid for by insurance are not otherwise covered by OHIP. The government took chiropractic, physiotherapy, etc. out of its billable schedule a few years ago, as well it never included psychotherapy ... and anybody seeking psychotherapy even without an accident knows that costs for this range from $85 - $180 per hour, depending on the provider. To me, this is just another way to further impoverish another part of the population and push them into low paying, unstable work ..

Your thoughts?.