Accessibility for Ontarians with Disabilities Act Alliance
www.aodaalliance.org Twitter: @aodaalliance

ARCH Disability Law Centre
www.archdisabilitylaw.ca Twitter: @ARCHDisability

Income Security Advocacy Centre
www.incomesecurity.org Twitter: @ISAC_Ontario

What Amendments Should the Senate of Canada Make to Bill C-22, the Canada Disability Benefit Act? -- A Discussion Paper 

February 3, 2023

On February 2nd 2023, the House of Commons passed Bill C-22, the proposed Canada Disability Benefit Act. Bill C-22 will now go to Canada’s Senate for debate and public hearings.

The Senate’s public hearings on this Bill may happen very soon, as early as mid-February or early March. We have rushed to prepare this Discussion Paper to help disability organizations, anti-poverty organizations, and individuals with disabilities think about the amendments to Bill C-22 that they might wish to request. This list was compiled by a small team from our three organizations, enriched by the addition of Halifax lawyer Vince Calderhead. Our organizations and Mr. Calderhead are not, at this point, endorsing this list of amendments, or limiting ourselves to them. We welcome your feedback on them.

This Bill is well meaning. It is supposed to ensure that no people with disabilities in Canada live in poverty. However, the Bill is currently weak. It does not ensure that any people with disabilities are ever lifted out of poverty. It also does not ensure that the Canada Disability Benefit will ever be paid, when payment would start, or whether payment will be sufficient.

Some may tell the Senate not to make any amendments. We disagree. This is a once-in-a-generation new law, according to its sponsor, the Minister of Employment, Workforce Development and Disability Inclusion, Carla Qualtrough. If we only get one chance in a generation, we must get it right.

Let us know what you think! But time is short.
Possible Amendments for the Senate to Strengthen Bill C-22, the Canada Disability Benefit Act

1. 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.

2. 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. Without the regulations, there can be no Canada Disability Benefit.

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).

Specifically, the Bill does not (a) set a date for when the Federal Government must begin to start paying the Canada Disability Benefit, (b) establish a deadline for the Federal Government to set up the application processes to apply for the Benefit, and (c) create a process for how an applicant appeals a refusal. The Bill should be amended to specify a date by when the Canada Disability Benefit must begin to be paid, a deadline by when the applications and appeal processes for the Canada Disability Benefit must be available, and a process for how applicants can appeal a decision denying them the Canada Disability Benefit.

3. 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.

4. The Federal Government said it is trying to negotiate agreements with the 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 pay the Canada Disability Benefit to people with disabilities in a province which has signed a no claw back agreement with the Federal Government. 

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.

In addition, the Federal Government should lead by example, and not itself claw back any funds paid to people with disabilities via 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.

5. No private insurance company should be able to divert federal funds, paid to impoverished people with disabilities, to their shareholders. The Bill should be amended to require that any private insurance company that claws back any part of the Canada Disability Benefit to an insured person otherwise entitled to short-term or long-term disability benefits under a policy of private insurance shall remit that clawed-back portion to the Government of Canada.

6. 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.

7. 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.

8. 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 Bill does not set a minimum amount for the Canada Disability Benefit – it could be as low as $1 per month. The amount of the Canada Disability Benefit should be large enough to lift a person with disabilities out of poverty. The Bill should be amended to ensure that a person to whom the Canada Disability Benefit is paid has an income that exceeds the Official Poverty Line as defined in section 2 of the Poverty Reduction Act. While the House of Commons Standing Committee on Human Resources, Skills and Social Development and the Status of Persons with Disabilities ruled an amendment addressing this issue out of order, we do not yet know whether the Senate would take the same position.

10. The House of Commons Standing Committee on Human Resources, Skills and Social Development and the Status of Persons with Disabilities in its recommended amendments made an error regarding section 14 of the Bill that deals with when the Bill comes into force. It does not set a date or let Cabinet set a date. Section 14 of the Bill should be amended to state that the Bill comes into force when the Bill receives Royal Assent.

We welcome feedback on this discussion paper. Please send your comments by email to:
general@arch.clcj.ca