I.
ARCH – A LEGAL RESOURCE CENTRE FOR PERSONS WITH DISABILITIES
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April 2, 2004
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ARCH Alert April 2, 2004
Electricity Costs Increase
by Bill Holder, Staff Lawyer
Yesterday, electricity (also called hydro) rates went up in Ontario. Rates increased from 4.3 cents to 4.7 cents per kilowatt-hour for the first 750 kilowatt-hours used in a month, and increased from 4.3 cents to 5.5 cents per kilowatt-hour for electricity used beyond the 750 kilowatt-hour threshold.
The increases are the result of a decision of the Government of Ontario to reduce its subsidization of the cost of electricity. The Government hopes that reducing energy subsidies will have the effect of saving money and encouraging Ontarians to make better conservation efforts.
Unfortunately, the Government’s energy policy is not dovetailing very well with its social assistance policy. Persons in receipt of benefits under the Ontario Disability Support Program (ODSP) may face significant hardship as a consequence of the rise in electricity rates. The problem is tied to the fact that the Government of Ontario is increasing the cost of electricity without correspondingly increasing ODSP rates to provide a way for recipients to afford the higher costs.
The Government has not, in fact, increased ODSP rates in over a decade, which has caused the value of benefits to decline markedly relative to the cost of living. The value of ODSP benefits are now so low that many recipients cannot afford to eat. When every penny counts, a Government announcement that electricity rates are going up is very distressing.
The Government estimates that average increases in electricity costs will be in the range of $10 per month. In the last issue of the ARCH Alert, it was pointed out that, in Toronto, ODSP recipients receive on average
Inside This Issue1 / Electricity Costs Increase
2 / ARCH Litigation Update
4 / Federal Budget Developments
5 / A Preliminary Analysis of the
Disability Supports Deduction
6 / DTC Forum
7 / CRTC Addresses Unfair Portrayals
of Persons with Disabilities
8 / ODSP Update
9 / In Search of . . . the ACSD Directive
9 / Parking Permit Proposals
10 / Court Finds ESA to be Discriminatory
11 / Education Case Law
11 / Province Announces Autism Funding
12 / My Big Fat Wheel-Trans Experience
14 / ARCH AGM Scheduled
approximately $46 per month to cover all non-rent expenses. If $10 is now going to be taken from that amount, then recipients will have even less money to feed themselves and pay for their non-rent expenses.
The Government’s goal of encouraging Ontarians to conserve energy is laudable but many ODSP recipients lack discretion to conserve. Most recipients live in small apartments without much control over insulation, heating, refrigerator choices, and so on. Also, the electricity-use of many ODSP recipients is often tied to their disability and cannot, for that reason, be reduced. The use of rechargers for electronic scooter and wheelchair batteries, for instance, cannot be curtailed. Nor can disability-related use of electronic air filters, air conditioners, teletypewriters, optical scanners, household lifts, and many other assistive devices.
Increasing the electricity costs of ODSP recipients, who are already living on the edge, could be devastating and might even result in homelessness. In an effort to reduce the impact of the increase, the Government very recently announced that it would set up a Provincial Rent Bank and a $2 million Energy Assistance Fund (EAF) to assist ODSP recipients and other low-income Ontarians. The Rent Bank will provide assistance to tenants facing eviction, but it can only be accessed once every two years. In addition, the assistance provided will be in the form of a loan. It is not clear how ODSP recipients will be able to repay a rent bank loan, given that the level of their benefits is not sufficient to accumulating savings.
Minister of Community and Social Services Sandra Pupatello has said that the modest EAF is designed to help “low-income households deal with energy-related emergencies ... and help prevent homelessness.” Unfortunately, the EAF may offer only “one-time” emergency assistance, and so it may only help ODSP recipients with respect to their April electricity bills but not thereafter. The EAF will nevertheless be something that ODSP recipients will need to learn more about. Given that it was announced only four days ago, no details are yet available regarding how it may be accessed. Recipients are encouraged to speak to Ministry staff at their local ODSP office to find out how the fund may be used.
In terms of steps that can be taken to conserve electricity usage, consider the usual recommendations: turn off lights and computers that are not being used, turn down the heat if you can and if doing so is not medically contraindicated, defrost the freezer, use a microwave if available rather than a stove or oven, and so on. For more energy-saving tips, visit the website of the Ministry of Energy at
ARCH Litigation Update
by Dianne Wintermute, Staff Lawyer
Significant New Decision
On 18March 2004 the Divisional Court in Ontario found that the Government of Ontario’s treatment of two families, who had tried to access individualized funding with respect to their children with disabilities, breached the standards of procedural fairness. The families were represented by the Community Legal Clinic (Simcoe, Haliburton, Kawartha Lakes), and assisted by ARCH and WeirFoulds LLP. The families had tried, for three years, to obtain individualized funding sufficient to provide necessary supports and services for their children. Each year, the Government provided only a fraction of the funding that was needed without offering any explanations.
In a stinging decision regarding the ability of families to access funding of “monumental” importance, the Court found that the Government’s treatment of the families “fell short of the procedural fairness mandated by law.” The specific criticisms of the Government made by the Court include not informing the families of the eligibility criteria for the programs, leading the families to believe that sufficient funding would be forthcoming, and providing only a fraction of the funding requested without reasons.
The outcome of the decision may be felt province-wide, since the Government of Ontario should now be compelled to explain to everyone the eligibility criteria for individualized funding programs and provide principled reasons for funding denials.
ARCH at the Supreme Court
Clients of ARCH have been granted leave to intervene at the Supreme Court of Canada in two very significant cases. The first case is British Columbia (Attorney General) v. Connor Auton. Four children living with autism, and their families, are challenging the B.C. government’s refusal to fund a medical treatment for autism. The families successfully argued, before lower courts, that the refusal contravenes the equality guarantee set out at s. 15 of the Canadian Charter of Rights and Freedoms (Charter).
ARCH, along with co-counsel from Cavalluzzo Hayes Shilton McIntyre & Cornish, is representing the Canadian Association of Community Living (CACL) and the Council of Canadians with Disabilities (CCD). The CACL and the CCD are national disability rights organizations whose perspective on the issues raised in the Auton case has been informed by the experience and voices of consumers and their families, national consultations, and considerable research. The litigation advisory committee is comprised of ten people from these two organizations ranging from consumers to academics. They bring a wealth of knowledge and understanding of disability and equality rights to shaping the strategy of this litigation.
The intervention will explore a principled approach to the equality guarantee in the Charter. An argument will be made that the denial of government-funded disability-related supports, services, benefits, and ameliorative mechanisms that are successful in promoting social inclusion, equal citizenship, and participation of persons with disabilities violates s.15 of the Charter. The CACL and the CCD will not take a position on specific autism treatments. The case is scheduled to be heard by the Court on 9 and 10 June 2004.
ARCH is also representing the Canadian Hearing Society (CHS), the CACL, and the CCD in Newfoundland and Labrador Association of Public and Private Employeesv. Her Majesty the Queen in Right of Newfoundland. The issue of concern in this case is whether the Supreme Court of Canada should revisit a long-standing test used to determine when a violation of the Charter can be upheld as being justifiable under s.1 of the Charter. The Court of Appeal for Newfoundland and Labrador urged the Supreme Court to adopt a new test that would be more deferential to the rationales offered by governments for violating the Charter rights of Canadians.
ARCH identified this issue as having a potentially negative impact on the hard- won gains achieved by persons with disabilities in Eldridge v. British Columbia (Attorney General) in 1997. In the intervention, ARCH will argue that the Court must continue to uphold the rights and interests of persons with disabilities when considering justifications for Charter breaches. In particular, it will be argued that whatever changes are being contemplated with respect to s. 1 of the Charter, the changes must not have the effect of eliminating the “undue hardship” standard to which governments are held in cases pertaining to the duty to accommodate persons with disabilities. The case is scheduled to be heard by the Court on 12May 2004.
Federal Budget Developments
by Bill Holder, Staff Lawyer
Last week the Federal Government delivered its Budget and there were some new measures introduced that will affect persons with disabilities.
For post-secondary students, the Government announced that commencing in the 2005-2006 school year a new grant will be available for students with permanent disabilities. For those who qualify for loans under the Canada Student Loans program, there will be an “up-front” $2000 grant available. It is believed that the new grant will replace the Canada Study Grant for High-Need Students with Permanent Disabilities, which was a $2000 grant available only to students whose financial needs exceeded a weekly threshold despite having received the maximum amount available under Canada-Ontario Integrated Student Loan funding. The new grant does not affect the Canada Study Grant for Students with Permanent Disabilities (through which up to $8000 in accommodation funding may be obtained).
For persons trying to enter the labour force, the Government allocated $30 million in additional funding to its existing commitment pertaining to the Multilateral Framework for Labour Market Agreements for Persons with Disabilities (the successor program to Employability Assistance for Persons with Disabilities). The funding is used, in Ontario, to finance the Employment Supports Program within the Ontario Disability Support Program. Significantly, the Government also promised to amend the Canada Pension Plan to ensure automatic reinstatement of disability benefits to persons who are forced, within a two-year period, to stop working “for reasons related to their disability” after making an attempt to return to work.
Of importance to persons with disabilities, too, is a new “disability supports deduction.” For more on this development, refer to the companion article in this ARCH Alert specifically addressing the deduction.
For persons with disabilities who qualify as dependants under the Income Tax Act, their caregivers will be able to claim qualifying medical expenses under the Medical Expense Tax Credit (METC) up to $5000, beginning in the 2004 taxation year, using the usual rules for calculating the amount. The Government is removing a “notch provision” which had the effect of reducing the value of the METC when it was being claimed on behalf of a dependant.
The Budget provides funding for data to be collected again regarding the demographic make-up of persons with disabilities in Canada, as part of the next census, to be conducted in 2006.
Unfortunately, the Government also announced in the Budget that it will only permit, after 2004, taxpayer-requested adjustments going back ten years. This will mean that persons with disabilities who are unaware of certain disability-related tax measures will lose their present ability to request adjustments back to 1985. This could have an unfair effect on persons with disabilities because the Government has not publicized, very well, the existence of its tax measures for persons with disabilities. Statistics Canada recently reported, for instance, that the majority of persons with very severe disabilities are unaware of the existence of the Disability Tax Credit.
In the Budget, the Government also promised to “ensure that its policies as the nation’s largest employer do more to promote the hiring and retention of Canadians with disabilities in government employment.” This announcement comes in the wake of a 2003 report pertaining to the Employment Equity Act, which indicated that the Government has been performing poorly with respect to its employment of persons with disabilities. The report stated, for instance, that “in 2001-2002, more persons with disabilities left the public service than were hired.” Whereas the Government should have been increasing the representation of persons with disabilities within its employ, it in fact reduced the representation. The Government is legally required to redouble its efforts to comply with the Employment Equity Act, and the corresponding commitment made in the Budget is therefore not surprising.
A Preliminary Analysis of the
Disability Supports Deduction
by Bill Holder, Staff Lawyer
Last week in the Budget of the Federal Government a new deduction for persons with disabilities who are employed or in school was introduced into the Income Tax Act (it will become effective for the 2004 taxation year).
Currently, at s.64 of the Act, a deduction exists for attendant care expenses. The Budget proposes that this deduction be converted into a general disability supports deduction to include “both attendant care expenses and other eligible disability supports expenses.”
Disability rights organizations, including ARCH, have been calling on the Government, for years, to cease taxing persons with disabilities on income used only to pay for accommodations and on accommodation funding that they receive. Since persons with disabilities have a right to accommodation, it is inconsistent to tax the accommodation, in effect forcing persons with disabilities to pay for their accommodation. The new disability supports deduction appears to represent, finally, a response (albeit imperfect) to the calls made to cease taxing accommodation.
Persons with disabilities who are employed, attending school, or carrying on research through a grant will be able to claim, under the new deduction, certain expenses including the following:
sign-language interpretation
real-time captioning
text teletypewriters
Braille printers and large-print on-screen devices
optical scanners
electronic speech synthesizers
note-taking services
voice-recognition software
tutoring services for persons with learning disabilities
talking textbooks
attendant care services
The Government states that “[t]he effect of the new deduction will be that no income tax will be payable on income (including government assistance) used to pay for these expenses.” This should mean, for example, that students who receive accommodation funding in the form of the Canada Study Grant for Students with Permanent Disabilities will not pay tax on the Grant. Importantly, the Government insists that “this income will not be used in determining the value of income-tested benefits.” This will hopefully mean that accommodation funding will not be included in income for the purpose of determining eligibility for such income-tested benefits as the GST credit.
To the extent that expenses are claimed under the new deduction, they may not also be claimed under the Medical Expense Tax Credit (METC). If the expenses are reimbursable through, for instance, insurance, then they cannot be claimed pursuant to the new deduction. Expenses claimed under the new deduction will be included into the calculation of the Refundable Medical Expense Supplement. This should mean that those who claim their expenses under the new deduction rather than the METC will not have the value of the Refundable Supplement reduced as a consequence.
The previous version of this deduction, which could only be used to offset attendant care expenses, was only available to taxpayers who also met the eligibility criteria for the Disability Tax Credit (DTC). Disability rights organizations have long criticized the narrow and arbitrary eligibility criteria pertaining to the DTC. Thankfully, eligibility for the new deduction is not expected to be tied to DTC eligibility. This is good news for all persons with disabilities, and we will watch to see whether the requirement will now be removed with respect to attendant care deductions.