XCVXCV - ARCH Disability Law Centre Alert - Febru… · Web viewThe Supreme Court of Canada has upheld the constitutionality of spanking, as a defence to a charge of assault, in

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February 27, 2004

Ten Tax Tips for the2003 Taxation Yearby Harry Beatty, Barrister & SolicitorConsultant in Disability Law and Policy

Once again, it's tax time! Returns for the 2004 taxation year must be filed by 30 April 2003. This article will provide persons with disabilities and their families with some suggestions as to how to complete their returns. This is general advice only – it's not meant to cover every point in detail. If you have questions, you should consult Canada Revenue Agency officials or publications, or your own tax advisor. (“Canada Revenue Agency” is the new name for the “Canada Customs and Revenue Agency,” which before that was called “Revenue Canada;” “Canada Revenue Agency” is abbreviated to “CRA” in this article.) There is also a more detailed article by the present author entitled “Disability-Related Income Tax Provisions,” as well as an in-depth article by ARCH Staff Lawyer Bill Holder entitled “Introduction to the Disability Tax Credit” available on the ARCH website at www.archlegalclinic.ca.

Tip # 1

Obtain disability-related information from CRA. CRA has two publications which you should get: “Information for People with Disabilities,” and Interpretation Bulletin IT-519R2, “Medical Expense and Disability Tax Credits and Attendant Care Expense Deduction (Consolidated).” Like most CRA publications, these are available in accessible

formats or through the Internet. CRA accommodates persons with communication disabilities through specialized telephone information lines and alternative format materials, as explained in "Information for People with Disabilities" or in the General Income Tax and Benefit Guide 2003. These publications are available in a range of formats, together with other tax information, on a CRA “People with Disabilities” web page, accessed through the general website at www.ccra-adrc.gc.ca.

INSIDE THIS ISSUE

1 Ten Tax Tips for the 2003 Taxation Year

5 Child Disability Benefit Arrives!

5 Wayne Johnston says “au revoir”but not “goodbye”

6 UN Convention on Disability

8 Value of ODSP Sinks to New Low

9 Tax Improvements "Forgotten”by the Government of Ontario

11 ODA Consultations Commence

12 Health Privacy Bill Hurries Along

13 Respectfully Submitted

14 Education Update

16 Defining Disability

17 Unmet Health Needs

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February 27, 2004Tip # 2

File a return even if your income is non-taxable. If your main source of income is social assistance (Ontario Disability Support Program or Ontario Works) or workers' compensation (Workplace Safety and Insurance Board payments) you should file a tax return, even though this income is non-taxable.

By filing a tax return, you become eligible to claim the GST/HST credit, as well as refundable provincial tax credits, such as the Ontario sales tax and property tax credits. (“Refundable” means that people can get money back even if they do not pay or owe income tax.) You also need to file a tax return to claim the Canada Child Tax Benefit, and to qualify financially for some provincial programs for persons with disabilities, such as the Trillium Drug Program. If you have a “legal representative” (e.g., a power of attorney, trustee, or a person appointed to manage your ODSP income benefits), your “legal representative” can and should file a tax return on your behalf.

Social assistance income is reported on Line 145 of your income tax and benefit return, and workers' compensation income on Line 144. Both kinds of income are then deducted at Line 250, so that no tax is payable.

Tip # 3

Ask CRA to tax a retroactive lump sum payment at a reduced rate. Some persons

with disabilities receive retroactive lump sum payments that cover more than one taxation year. In the past, this has caused a problem because the payments were all taxed in one year, usually at a high rate. The Income Tax Act was changed some years ago to cover this situation for CPP-disability, and the system was changed again in 2000 to provide tax relief for other retroactive lump-sum payments, including the following: employment income, settlements and awards relating to employment cases; wage-loss replacement plan benefits (including long-term disability insurance if it is taxable); spousal or child support payments; and Employment Insurance benefits. To obtain this tax relief, you should obtain form T1198, Statement of Qualifying Retroactive Lump-Sum Payment, from whatever organization paid the lump sum benefit.

Tip # 4

Discuss eligibility for the Disability Tax Credit (DTC) with your doctor or other health professional – be sure to use the new DTC (T2201) Form for the 2003 Taxation Year! The DTC (also known as the Disability Amount) may be claimed by persons with disabilities, or by their spouses, common-law partners or other supporting relatives. It may be claimed with respect to persons of any age, from infants to seniors. It is a non-refundable credit, so it can only be used to reduce tax which would otherwise be payable.

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February 27, 2004To be eligible for the DTC, you must be blind or be unable, or take an excessive amount of time, to perform a basic activity of daily living, even with the use of aids, medication, or therapy. Or, you may be receiving “life-sustaining therapy” to enable you to perform basic activities of daily living.

For the 2003 taxation year, there is a revised DTC application form (T2201). The form was revised by CRA in consultation with organizations representing persons with disabilities and the health professionals who can complete the form – medical doctors, optometrists, audiologists, psychologists, occupational therapists, and speech-language pathologists. The revised DTC form for the 2003 taxation year is available on the CRA website.

If your DTC claim has been rejected in previous years, ask your health professional to consider certifying your eligibility using the new T2201 form, which contains more specific questions and examples than the “old” form. For more detailed information regarding the new T2201 form, see the website of advocate Lembi Buchanan at www.disabilitytaxcredit.com.

It is very important to have the new DTC application form (T2201) filled out carefully and completely by your doctor or other health professional. Some health professionals charge a fee for this service – it is not covered by OHIP or by CRA.

If your spouse, common-law partner or relative with a disability qualifies for the DTC, but cannot benefit from it because he or she pays or owes no income tax, you may be able to make the DTC claim as a supporting relative, subject to certain restrictions. This is called a “transfer” of the DTC claim by CRA. If you are claiming a transfer of the DTC, it is only the taxable income of your relative which reduces the claim. Social assistance (ODSP or Ontario Works) or workers' compensation payments (WSIB) do not reduce the DTC transfer, although they do reduce (and may eliminate) other tax claims, such as the “infirm dependant credit” and the “caregiver amount.”

Tip # 5

If you have a child with a disability under age 18, consider whether your family qualifies for the Child Disability Benefit. The Child Disability Benefit (CDB) is a new provision, announced in the 2003 Federal Budget. It is available to low-income and modest-income families who qualify financially for the Canada Child Tax Benefit (CCTB), and who have a child whose disability makes her or him eligible for the DTC. The CDB has a maximum value of $1,600 tax-free annually, and is included as a supplement to the family's monthly CCTB payments. It will be paid for the first time in March of 2004, but the payments made at that time will be retroactive to July 2003 to families who qualify.

The full $1,600 CDB will be provided for each eligible child to families having a net income

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February 27, 2004less than the level at which the National Child Benefit (NCB) supplement is fully phased out (that is, $33,487 in July 2003 for families having three or fewer children).

For further details, including how to apply (basically, you must apply for both the CCTB and the DTC), see the CRA "Child Disability Benefit" web page accessible through the general website of the CRA.

Tip # 6

Consider claiming the caregiver amount if an adult dependant lives with you. You may claim a caregiver amount if an adult dependent relative in certain defined classes lives with you. To make this claim, the relative must be “mentally or physically infirm” unless he or she is your parent or grandparent who is over 65. The relative's income, whether taxable or non-taxable, affects this claim but does not eliminate it entirely on the Federal Income Tax and Benefit Return unless it is over $16,172, and does not eliminate it entirely on the Ontario Tax and Benefit Return unless it is over $16,290.

Tip # 7

Consider whether disability-related items are claimable as medical expenses. A range of disability-related items are claimable as medical expenses, including home modifications for accessibility (renovations or new home construction), moving expenses in moving to an accessible home, 20% of the cost of a van adapted for use by a person in a

wheelchair to a maximum of $5,000 (and the cost of the modifications themselves), guide and hearing-ear dog expenses, sign language interpreter fees, and 50% of the cost of an air conditioner prescribed by a health professional.

The 2003 Federal Budget added three new items to the list of medical expenses:

the cost of real-time captioning, paid to persons engaged in the business of providing such services, on behalf of individuals with a speech or hearing impairment,

the cost of note-taking services used by individuals with mental or physical impairments and paid to persons engaged in the business of providing such services, and the cost of voice recognition software used by individuals with a physical impairment (the need for these services or the software must be certified by a medical practitioner), and

the incremental cost associated with the purchase of gluten-free food products for individuals with celiac disease who require a gluten-free diet.

Consult the CRA publication “Medical Expense and Disability Tax Credits and Attendant Care Expense Deduction (Consolidated)” listed in Tip #1 to see details as to what medical expense claims are permitted.

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February 27, 2004Tip # 8

Claim attendant care expenses as work-, research-, or study-related if possible. In the income tax system, attendant care may be claimed only by those who are medically eligible for the Disability Tax Credit. There are two types of attendant care claims, a work-related claim and a medical expense claim. The work-related claim is for attendant care expenses which you incurred yourself to enable you to be employed, self-employed, to conduct research, or to attend a post-secondary educational institution or secondary school.

This claim can include attendant care actually provided in the home so long as the purpose is to enable you to work, do research of study, such as someone helping you to get ready in the morning. If you are working, you should consider whether your attendant care expenses are work-related, as this claim is a deduction rather than a credit, and is worth more to you. Attendant care expenses which are not work-related can be claimed as medical expenses by you or by a supporting relative. If more than $10,000 is claimed as a medical expense, however, the DTC cannot be claimed.

Tip # 9

Child care expense claims can be increased if the child, or a parent, has a disability. There are child care expense rules which take into account the disability of a child, or of a parent. If the child qualifies for the Disability Tax

Credit, a higher claim may be made than if the child did not have a disability. This claim is for a maximum of $10,000 in expenses (subject to the other rules governing child care expenses). For this purpose, “child” includes a son or daughter who has a disability, even if he or she is over 18.

If a parent has a disability which prevents him or her from caring for a child, either temporarily or long-term, then the higher-income parent may be able to claim child care expenses (ordinarily, this claim is limited to the lower-income parent). Obtain the Child Care Expenses Deduction form (T778) for more information.

Tip # 10

You can still make claims back to the 1985 taxation year. If you failed to make claims in the past, you can still make claims back to the 1985 taxation year, as explained in the General Income Tax and Benefit Guide. Retroactive claims are scrutinized carefully by CRA, but should be made if clearly allowed by the rules.

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February 27, 2004Child Disability Benefit Arrives!by Bill Holder, Staff Lawyer

The Child Disability Benefit (CDB) is a new non-taxable benefit provided by the federal government. The CDB came into effect in July of 2003. The CDB is worth up to $133.33 per month and is designed to assist families (with low-to-moderate incomes) with the extra costs associated with raising children with disabilities. The first payment of the CDB, a nine-month lump-sum amount retroactive to July of 2003, will be made to families next month.

On 12 February 2004, the McGuinty Government thankfully indicated, in a policy bulletin, that the value of the CDB will “not be treated as income or assets for the purpose of ODSP (including Assistance for Children with a Severe Disability Program).” The exemption also includes the initial lump-sum payments that will be received next month. The effect of the policy bulletin should be that the value of the CDB will reach ODSP recipients and not get clawed back by the Provincial Government.

For more information about the CDB from the Canada Revenue Agency, visit its website at www.ccra-adrc.gc.ca/cdb.

Wayne Johnston says “au revoir”but not “goodbye”by Fraser Valentine, ARCH Board Member

Wayne Johnston, ARCH’s librarian, has moved on to new and exciting challenges at the University of Guelph. Wayne has not, however, said goodbye to ARCH forever. Instead, he will continue to support the Library and Reference Centre on an informal and volunteer basis. We are lucky to have Wayne’s continued support – he has been an invaluable addition to ARCH’s team!

As many of you know, on 8 October 2003 ARCH officially launched our new Library and Reference Centre. We are excited to provide persons with disabilities and the community with a full service library and reference centre, including a comprehensive website.

In 2002, ARCH committed to fulfill the following three objectives in our Strategic Plan:

develop the ARCH Resource Centre into a functional activity for the benefit of the public;

support community capacity-building initiatives of persons with disabilities throughout Ontario; and

utilize ARCH's website to enhance Resource Centre's goals.

Under Wayne’s leadership, ARCH has met and exceeded these identified strategic priorities. Indeed, for over twenty years, ARCH has collected information in the form of books and reports on many disability-related topics. Our collection contains a wealth of information dealing with human rights,

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February 27, 2004employment, social assistance, and accessibility, among other areas of interest to persons with disabilities, their allies and the general public.

On behalf of the ARCH Board of Directors and staff, I would like to thank Wayne for his expertise, insight, innovation, dedication, and commitment. Wayne has truly put into practice the vision identified by the Board, staff, and membership. It is without question that Wayne put in place an invaluable resource for persons with disabilities in Ontario and indeed, across Canada. Further, he has provided us with a solid foundation upon which our Library and Reference can grow and expand.

ARCH is pleased to simply say “au revoir” – and not “goodbye” – to Wayne. We look forward to his continued involvement in our work.

ARCH's library is available for use by the general public Monday through Friday between the hours of 10:00 a.m. and 4:00 p.m. The complete catalogue to the collection is available on our website. Additionally, we offer two adaptive technology workstations for visitors with visual or motor disabilities.

UN Convention on DisabilityAn Interview by Wayne Johnston

On 10 February 2004 ARCH correspondent Wayne Johnston interviewed two United

Nations officers in New York about the proposed International Convention on Protection and Promotion of the Rights and Dignity of Persons with Disabilities. Mona Paré and Akiko Ito represent the UN Department of Economic and Social Affairs, Division for Social Policy and Development. Below is some selected text from that interview.

WJ: Can you provide a brief overview of the developments to date of this new international convention?

MP: This process was initiated by Mexico at the 56th Session of the General Assembly (2001). The General Assembly accepted a resolution to establish an ac hoc committee that would study the possibility of having a convention on the rights of persons with disabilities. The ad hoc committee met for the first time in 2002, in August, and it was decided then to ask for views of governments and international organizations and civil society on the possible elaboration of a convention. Also, which type of convention it should be, what it should include, whether we should have a convention or not. Then the ad hoc committee had its second session last year, June 2003, and that’s where it was decided that they would actually go ahead and start the convention process.

So they established a working group composed of government and NGO representatives to draft a first text, or proposal, for the ad hoc committee to then

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February 27, 2004start negotiations after that. The working group met early this year in January for two weeks and actually did prepare draft articles, 25 articles all-in-all plus a preamble, which identify issues that there is agreement on but then also has notes for the ad hoc committee on issues that need to be further discussed and clarified. And this is what the ad hoc committee will then use as the basis for its negotiations when it meets the next time in May this year.

During the last General Assembly session it was also decided that there would be two ad hoc committee meetings this year to accelerate the process. So this is where we are right now.

WJ: What is the relationship between the new convention and the Declaration on the Rights of Disabled Persons?

AI: Since the inception of the organization the UN has worked on the rights of persons with disabilities but, as you have probably learned from the literature, in the early stages, like in the ‘40s and ‘50s and ‘60s, it was more to do with contributing to the well-being of people with disabilities through social services. Those were the basic elements of the work. But since the ‘70s, in terms of the Declaration on the Rights of Disabled Persons, the United Nations started to take a human rights approach. Even so, of course, the instrument was a reflection of the times. It’s a more protective approach to disabilities which is not

considered very much of a human rights-centred perspective.

Then in the ‘80s the World Programme of Action Concerning Disabled Persons, which is the framework, the pillar of the United Nations’ work on disabilities, was adopted. It was a significant work because it actually had a human rights perspective in terms of promoting the human rights of persons with disabilities in economic and social development. So that was a very significant international agreement that was concluded in ’82.

And from 1983 to 1992 we had the international Decade of Disabled Persons which really raised awareness of society in terms of disabilities. Prior to that decade it was seen more as a social welfare issue and a medical issue, but throughout the decade it became a catalyst in changing this perception of disability based on the World Programme of Action into a human rights issue. So the result of this decade was adoption of the Standard Rules on the Equalization of Opportunities for Persons with Disabilities, which was a human rights instrument to promote the human rights of persons with disabilities. WJ: Are there any particularly contentious issues that were identified by the working group?

MP: One major issue was that of international cooperation, whether that should be included

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February 27, 2004in the Convention and if it’s included, does it imply certain obligations for member states? Does it mean that there is an obligation to provide development aid for instance, or does it have another meaning, just basic collaboration, exchange of knowledge and technologies between countries?

Then of course one of the major contentious issues is that of the definition of disability. Can there be a common definition? Is it desireable to have a definition in the Convention, whether that would then limit the scope of the Convention or not? And then what type of a definition, whether it is based on human rights or medical or environmental/social aspects of disability.

There was also discussion about discrimination, what types of discrimination the Convention should deal with because that’s one of the main underlying principles in the Convention.

Then there were very disability-specific issues concerning intervention and institutionalization, especially forced intervention and institutionalization. Whether that should be prohibited in every case or whether there are some cases in which it still should be possible. So, all this related to the concepts of independent living and autonomy of persons with disabilities.

Then also because of the huge variety of different types of disabilities and the use of different modes of communication, different

languages. How much can be included in the Convention? Which ones should be specifically dealt with, whether there should be emphasis on some certain ones? Especially there were issues about sign language and Braille, whether they should be specifically mentioned.

There was an important, major discussion also about education, whether there should be emphasis in the Convention on inclusive education or on special education. A lot of delegates, governments and NGOs were of the view that the principle should be that of mainstreaming; however there were some groups of persons with disabilities who emphasized the importance of special education for them.

Then, they didn’t discuss much the issue of monitoring. That was mostly because of lack of time. Everybody knows that this is something that will have to be thoroughly discussed, including monitoring at the national level, whether states should set up certain institutions, whether the Convention should actually say which type of institutions states should set up to monitor implementation. And then also the issue of monitoring at the international level, whether the Convention should establish a specific international body of experts to monitor the Convention because this is the case for all the other major human rights conventions, or whether this isn’t the best time to do so because there are talks about reform of the whole human rights monitoring process, so

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February 27, 2004whether we should actually wait to see what comes out of that or not.

Note: for more information on the proposed Convention and other activities of the United Nations related to disability, visit its Enable website at www.un.org/esa/socdev/enable.

Value of ODSP Sinks to New Lowby Bill Holder, Staff Lawyer

The cost of living is constantly rising. Last week Statistics Canada released a national report on inflation revealing that in 2003 “consumers paid 2.8% more for goods and services in the Consumer Price Index (CPI) basket than they did in the previous year.” Last year energy prices rose, nationally, by 7.9%. In a report released last month, Statistics Canada stated that in Ontario average electricity bills in December of 2003 were 84.8% higher than in December of 2002. Toronto Public Health has reported that the cost of a Nutritious Food Basket in Toronto rose, between 1999 and 2003, by approximately 10%.

Persons who are in receipt of benefits under the Ontario Disability Support Program (ODSP) are understandably concerned about the rising cost of living. Without an increase since 1993, the value of ODSP benefits, measured against the cost of living, is reaching a new low every month.

Single persons with a disability have received, since 1993, at most $930/mo in ODSP benefits. According to the Bank of Canada, a $930 basket of goods and services in 1993 cost, in 2003, approximately $1114. The percentage change is almost 20%. Although the cost of living (based upon the CPI) is approximately 20% higher in February of 2004 than it was in 1993, ODSP rates remain set as they were in 1993. The National Council on Welfare reported that, in 2002, ODSP rates were set at just 61% of the poverty rate. The value of ODSP benefits have continued to sink since then, pushing persons with disabilities farther and farther below the poverty level.

This week, the Canadian Institute for Health Information published a report confirming what seems a matter of common sense: having a low income in Canada correlates with poor health. For example, the report states that in 1996, the “life expectancy for high income men was five years longer than for low income men.” The implication of the report is that as the value of ODSP benefits fall, so do the health prospects, and life expectancy, of persons with disabilities.

The value of ODSP benefits at present is so low that recipients are, in record numbers, resorting to food banks in order to feed themselves. In a report of the Community Social Planning Council of Toronto released in September of 2003, it was indicated that “two out of five food bank recipients reported having a disability.” This comes as no

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February 27, 2004surprise, when one considers that a single person with a disability in Toronto receiving $930/mo in ODSP benefits pays on average $884/mo for rent. (The average rent amount is taken from October 2003 figures from the Canadian Mortgage and Housing Corporation for one-bedroom apartments, but does not take into account the fact that accessible housing may be even more expensive.) Such ODSP recipients, therefore, receive on balance only $46/mo to cover all non-rent expenses. Toronto Public Health calculates that in 2003 it cost single men aged 19-49 approximately $150/mo to feed themselves nutritiously. It is clear that ODSP benefits are set at levels that are insufficient to feed persons with disabilities.

For the past decade, the value of ODSP benefits has declined, causing persons with disabilities to become significantly poorer, hungrier, and less healthy. At the same time, tax breaks have been granted which have disproportionately enriched the most affluent in Ontario, who are disproportionately persons without disabilities (persons without disabilities in Ontario annually earn, on average, 50% more than persons with disabilities). For approximately a decade, government policy has directed resources into tax breaks rather than into cost of living adjustments to the ODSP program. The tax breaks, disproportionately benefiting persons without disabilities, have effectively been paid for by persons with disabilities.

The McGuinty Government campaigned on a promise to provide, upon forming government, “a cost of living increase for participants in the Ontario Disability Support Program.” The Government did not campaign, unfortunately, on a promise to raise ODSP benefits to the level they would by now have reached had they been indexed to inflation since 1993. The promise was less generous than that but, after four months in office, persons in receipt of ODSP are still waiting for the more limited promise to be fulfilled. As the value of benefits decreases each month to a new low, the need for the McGuinty Government to fulfil its promise to persons with disabilities becomes more pressing. Regrettably, a recent report has suggested that the Government may not honour its promise until 2005.

The McGuinty Government is interested in hearing from ARCH Alert readers, and input may be provided to it through the Government’s “Town Hall” website at www.townhallontario.gov.on.ca. To ask the Government to stop financing tax breaks on the backs of persons with disabilities, or to fulfil its campaign promise to immediately add a cost of living increase to ODSP, consider making a request in the “additional ideas or suggestions” section of the on-line Town Hall survey.

The ODSP Action Coalition, of which ARCH is a member, will be participating in an “Ontario Needs a Raise” province-wide lobby day on 26 March. Watch for news of the lobby day on

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February 27, 2004the website of the Income Security Advocacy Clinic (www.incomesecurity.org).

Tax Improvements "Forgotten"by the Government of Ontarioby Harry Beatty, Barrister & SolicitorConsultant in Disability Law and Policy

In its 2003 Ontario Budget, the previous Government proposed improvements to the provincial income tax system for persons with disabilities, seniors, and family caregivers. The current Government has apparently found it convenient to “forget” about these proposed improvements. They have been left out of the 2003 Ontario tax forms altogether. This has saved the Government an estimated $50 million. At the same time, of course, this potential financial support has been lost by persons with disabilities, seniors, and family caregivers.

The current Government was able to achieve this with no fanfare, as the previous Government had never enacted its proposed changes into law. So the current Government did not have to repeal any legislation or change any forms to "roll back" the improvements. All it had to do was leave the Ontario tax forms as they were, and this is precisely what it did!

Here's what former Treasurer Janet Ecker included in her 2003 Budget documents:

Increased Support for Caregivers

Ontario's tax system currently provides assistance to individuals with disabilities or infirmities and relatives who care for them through a number of non-refundable tax credits, including the disability credit, caregiver credit and infirm dependant credit. However, the care provided by individuals for an infirm spouse or common-law partner goes unrecognized by the current income tax system, as do the efforts of adult children to help their infirm parents or grandparents with modest incomes remain in their own homes.

Three enhancements are proposed to these credits, effective January 1, 2003.

First, the amounts on which these tax credits are based would be increased to $6,637.

Second, the Budget proposes to expand the caregiver credit and the infirm dependant credit to include spouses or common-law partners who are dependent by reason of mental or physical infirmity, and to provide support to more caregivers living apart from dependent relatives.

Third, the dependant's income level at which the caregiver credit and infirm dependant credit are reduced would be raised to $13,050, and both credits would be eliminated when the dependant's income reaches $19,687.

This increased tax support would provide annual benefits of $50 million to about 165,000 family caregivers and people with

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February 27, 2004disabilities, providing average savings of about $300 each.

While the details of these three changes are not all explicit, there is no doubt that each would have represented a step in the right direction, by beginning to increase the tax relief available to persons with disabilities, seniors and family caregivers. There is also no doubt that each has been abandoned by the current Government, at least for the 2003 taxation year.

The first change would have set the disability tax credit, the infirm dependant credit, and the caregiver credit each equal to $6,637, which is the amount of the spouse or common-law partner claim. But on the 2003 Ontario tax forms, the disability tax credit (DTC) is only $6,316, and the infirm dependant credit and the caregiver credit, which are alternative claims (taxpayers can only claim one of them with respect to a dependant) are still only $3,684, almost $3,000 less than what the 2003 provincial Budget promised.

Now these figures do not mean that family caregivers are losing almost $3,000 on the infirm dependant credit or caregiver credit. Far from it. What they are losing is 6.05% of that amount, or about $180. This is because provincial non-refundable tax credits are converted from the amounts listed by 6.05%, equal to the lowest provincial marginal tax rate. But $180 would still have been a start towards providing caregiving families with more support.

In the first of the three proposed changes, there is a reference to raising "these tax credits" to $6,637, but exactly which tax credits are meant is not specified. It appears that besides the DTC, the credits to be raised to this level would include the Infirm Dependent Credit and the Caregiver Credit, which would be a very significant increase for each. Some commentators on the Ontario Budget 2003 also stated that the DTC Supplement for Children would be increased to this level, but it is not specifically mentioned in the description of the proposed changes.

The second of the three proposed changes, including spouses and common-law partners in the list of dependants with respect to whom the Infirm Dependant Credit and Caregiver Credit could be claimed, would be a significant advance in recognizing the circumstances of couples where one has a disability. In such couples, the non-disabled spouse often has to assume both the role of breadwinner and caregiver. The proposed improvement would have at least begun to recognize the difficult circumstances of such families.

The third improvement would have raised the dependant's income threshold at which the Infirm Dependant Credit and the Caregiver Credit begin to be reduced to $13,050. This would have been a modest improvement with respect to the Caregiver Credit, but a significant improvement with respect to the

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February 27, 2004Infirm Dependant Credit, which now begins to be reduced once the dependant's income is over $5,238. This change would have eliminated (for purposes of Ontario tax) the difference between the calculation of the two credits, and the existing difference between the tax relief provided for an infirm dependant living with the taxpayer, as opposed to an infirm dependant not living with the taxpayer.

It will be interesting to see if, in its 2004 Budget, the present Government reinstates these proposed improvements, or proposes other tax measures to benefit persons with disabilities, seniors, and their families.

ODA Consultations Commenceby Bill Holder, Staff Lawyer

The McGuinty Government campaigned on a promise to pass, within one year of forming government (i.e., by October of 2004) a "strong and effective" Ontarians with Disabilities Act (ODA).

In the last issue of the ARCH Alert, Dr. Marie Bountrogianni, Minister of Children's Services and Minister of Citizenship and Immigration, invited readers to let her know how the ODA can be made strong and effective. On 28 January the McGuinty Government announced that in February and March it is holding meetings at which members of the public can provide input with respect to improving the ODA.

By the time that this issue of the ARCH Alert is distributed, meetings will already have taken place in four regional centres in Ontario. Remaining consultations will be held in Sudbury on 17 March, in Toronto on 23 March, and in Thunder Bay on 25 March. For those unable to attend the meetings, written submissions may be provided to the Government by 31 March. They may be mailed to the Accessibility Directorate of Ontario at 400 University Avenue, 3rd Floor, Toronto, Ontario, M7A 2R9.

Those interested in participating in the consultation process should consider encouraging the McGuinty Government to, at a minimum, keep its campaign promises as they relate to the ODA. Before the election, Mr. McGuinty committed to amending the ODA and drafting regulations to establish meaningful accessibility standards, timelines for barrier removal, and a mechanism of effective enforcement. Mr. McGuinty committed to ensuring that the new ODA would incorporate certain principles that were adopted by the Ontario legislature in 1998. Fulfilling this campaign promise would entail extending the application of the ODA to the private sector.

The existing ODA is very weak legislation, which does not require the removal of any barriers. The penalty provision, for failing to comply with the ODA, is not in force. Organizations – including the Government – required to develop accessibility plans have not complied with their ODA obligations.

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February 27, 2004Many organizations have purported to comply with the ODA by developing meagre accessibility plans that ignore existing barriers that were supposed to have been identified. The minimal provisions of the existing ODA are not being followed and there is no way to enforce compliance.

Accessibility within the public and private sector has been a legal requirement in Ontario since certain amendments were made to the Human Rights Code in 1981. Despite this legal requirement, which has existed for 23 years, old barriers are not being removed and new barriers continue to be erected. The Human Rights Code has not been effective, systemically, with respect to barrier removal. The ODA was conceived as legislation that would do the job that the Code has failed to do. To fulfil its purpose, it is essential for the ODA be strengthened so that barriers in Ontario actually get prevented and dismantled. An ODA that does not put an end to a segregated Ontario – with portions that are inaccessible and unwelcome to persons with disabilities – will be insufficient.

Health Privacy Bill Hurries Alongby Lesli Bisgould, Staff Lawyer

In the last issue of the ARCH Alert, it was reported that Ontario's provincial government has introduced the Health Information Protection Act, 2003 (Bill 31). In the information age, the protection of private health information is a welcome initiative. The

provincial government is moving this legislation along very quickly, and ARCH is paying close attention to related developments.

Bill 31 was introduced and had its first reading on 17 December 2003. It was then referred to the Standing Committee on General Government. Brief consultations were held in several cities, and the public was invited to submit comments by 6 February. The Committee conducted its "clause-by-clause" analysis on 9 February. More than 150 amendments were tabled, though not all of them passed, and an amended Bill is expected to be available when the legislature returns on 22 March. Second reading is expected by the end of March, and the government intends for the law to come into force on 1 January 2005.

Despite the time constraints, ARCH provided written submissions to the Committee on 6 February. ARCH expressed support for the framework and the generally good ideas which are embodied in the Bill, but also concern about the very short timelines in which such an important new law is being developed. Considering the implications, ARCH submitted that everyone wishing to examine and have input on the development of the Bill should have been given a better opportunity to do so.

ARCH commented on the scope of the Bill. The stated purpose of the Bill is to protect the confidentiality of information and the privacy

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February 27, 2004of individuals, but it does so only with respect to "health information custodians." Large amounts of very detailed personal health information are collected by many other “information custodians,” including employment, insurance, education, and service agencies. ARCH submitted that information should be protected no matter whose hands or offices it sits in, and recommended that the Bill be broadened accordingly.

ARCH objected to the fact that fees may be set later through regulations without ensuring that low income individuals who require access to their own records will be protected. ARCH recommended that the legislation be amended to clearly set reasonable limits on fees which would not preclude access, and that there be a mandatory waiver of fees for individuals in receipt of social assistance or who are otherwise in financial need.

ARCH expressed concern that the legal consequences for a breach of someone's privacy were unduly limited. For instance, consequences flow only in cases where “actual harm" results from a breach of privacy. One can only be compensated for mental anguish if it was caused "wilfully or recklessly," which ignores the fact that breaches may be caused not only with intent but, and much more likely, by simple negligence and bureaucratic bungling. Moreover, the limit for damages in a lawsuit arising from a breach of one's right to health privacy was set at $10,000. ARCH submitted

that each of these limitations is unjustified and undermines the serious goals of the legislation.

ARCH also recommended that the Assistant Commissioner for Personal Health Information, which the Act envisions, as well as a sufficient number of that person's officers and employees, have proven experience or knowledge of the communities most affected by the legislation – including the community of persons with disabilities.

The development of this legislation is a matter of utmost concern to the disability community and we will continue to monitor it carefully. If you would like a copy of ARCH's submission, please contact Theresa Sciberras at ARCH by e-mail at [email protected] or by phone at 416-482-8255.

Respectfully Submittedby Bill Holder, Staff Lawyer

ARCH participated recently in consultations and made submissions that are summarized below.

Human Rights Tribunal of Ontario

The Tribunal is revising the procedures that apply to its proceedings, called the Rules of Practice. Proposed changes that ARCH is particularly concerned about include a power to impose costs against complaints in certain circumstances (for instance, where the

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February 27, 2004Tribunal considers a complainant’s conduct to be “unreasonable,” whatever that may come to mean).

ARCH urged the Tribunal not to invest itself with such a power, since the human rights regime in Ontario is supposed to be cost-free in order to ensure that complainants feel undeterred from coming forward with their complaints. Once the human rights process becomes associated with costs, it is inevitable that complainants will cease complaining and discrimination will go unchecked. A cost power constitutes an impediment to an accessible human rights system and will operate at odds with the goal of eradicating discrimination. For persons with disabilities, the impediment is particularly problematic: the Tribunal is contemplating a power to award costs equal to an amount greater than the total amount of assets possessed by each person in receipt of benefits under the Ontario Disability Support Program.

The Tribunal has been able to operate without the power to award costs against complainants for over 40 years and there does not exist a compelling reason to add such a power now. Adding a power to award costs against complainants is also arguably something the Tribunal cannot do, since its enabling legislation – the Human Rights Code – has already set out the persons against whom costs may be awarded, without including complainants.

ARCH also made lengthy submissions about proposed changes to the Rules of Practice that will make proceedings more complex than they have ever been. The consequence of adding complexity to the human rights process is, like the addition of costs, inaccessibility. This is of particular concern to persons with disabilities, whose complaints last year constituted two-thirds of all complaints received by the Ontario Human Rights Commission.

Ministry of Labour

The Ministry of Labour under the McGuinty Government is planning to end the 60-hour work-week that was instituted by the Harris Government. The Ministry is planning to implement a 48-hour work-week but nevertheless intends to permit employers, in certain circumstances, to go beyond such a limit.

ARCH submitted that when re-thinking work-week standards, the Ministry has an opportunity to do so in conjunction with broader social policy objectives that would, among other beneficial effects, improve the employment prospects of persons with disabilities. The Ministry has an opportunity to move away from standards that raise expectations that persons will work 48 or, where permitted, more hours in one week. Such expectations create employment barriers for many persons with disabilities. Persons with disabilities are employed at about half the rate as persons without

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February 27, 2004disabilities, in part because of expectations that jobs in Ontario require employees who will work an excessive and varying number of hours every week. Ministry standards that seemingly legitimize such work expectations have the effect of causing employers to hire only employees who will (or are perceived to be able to) work 48 or more hours every week. This has an adverse effect on the employment prospects of persons with disabilities.

ARCH encouraged the Ministry to ensure that the accommodation obligations of employers, imposed by the Human Rights Code, are not ignored in the new standards being contemplated.

Education Updateby Roberto Lattanzio, Student-At-Law

The Supreme Court rules on spanking –but what about restraints?

The Supreme Court of Canada has upheld the constitutionality of spanking, as a defence to a charge of assault, in the Criminal Code. In Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), Chief Justice McLachlin, for the majority, provided clarification regarding the impugned provision, which permits parents and teachers to apply reasonable force on a child for corrective purposes.

The Court delineated the spanking defence to only provide protection if the intention for the use of force was “for educative or corrective purposes.” Also, the use of force must be sober and reasoned, address the child’s behaviour, and be “designed to restrain, control, or express some symbolic disapproval of his or her behaviour.” Justice McLachlin also stated that the child must be capable of benefiting from the correction and that a child may be “incapable of learning from the application of force because of disability or some other contextual factor.”

For the exemption to apply, the force must be “reasonable under the circumstances.” This was interpreted by the Court as “minor corrective force of a transitory and trifling nature.” Corporal punishment of children under two years of age and of teenagers, degrading or inhumane treatment, and blows to the head are examples of unreasonable uses of force. With respect to teachers, the Court stated that they “may reasonably apply force to remove a child from a classroom or secure compliance with instructions, but not merely as corporal punishment. Coupled with the requirement that the conduct be corrective, which rules out conduct stemming from the caregiver’s frustration, loss of temper or abusive personality.”

The test to be applied when assessing whether the use of force is reasonable is an objective one.

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February 27, 2004What are the implications of the decision with respect to the use of physical restraints within schools on children with disabilities? The Court did not examine the impact of restraints on children with disabilities and it did not explicitly describe which, if any, practices of restraining would be considered defensible. However, the Court stated that the use of force would be defensible where the purpose of imposing force is “educative or corrective.” Since the purpose of restraints is to restore safety in a crisis and is not “educative or corrective,” the decision may make it difficult for a School Board to defend the use of restraints. Also, as noted by Justice McLachlin, a child’s disability must be considered when assessing the child’s ability to learn from the use of force. Since many children with disabilities will not, because of their disabilities, be able to learn from the imposition of restraints, using such on children with disabilities may become furthermore indefensible. Since the reasonableness of force, including restraints, will be assessed by the courts on an incident-by-incident basis, one is left to wonder about what the courts will make of the inclusion of restraints generally in a child’s accommodation plan (Individual Education Plan). Such inclusion may be argued to constitute planned uses of force that are not defensible as might be impromptu uses in a crisis, to restore safety.

In light of the requirements and relevant factors set out in this decision, the scope to

include the use of physical restraints on children with disabilities has been narrowed.

A copy of this judgment may be accessed at the Supreme Court of Canada’s website at www.scc-csc.gc.ca.

Graduation Denied

The McGuinty Government is currently faced with legal action concerning the Ontario Secondary School Literacy Test (OSSLT), a legacy from the previous government. Students are required to pass the OSSLT in order to graduate. Introduced in 2001, the OSSLT will deny some 27,000 students in Ontario a high school diploma this year, regardless of whether all required credits have been achieved. For students with disabilities, providing accommodations for writing the test may not be sufficient. It is ARCH’s position that the test is inherently discriminatory, due to its design and content.

A Law Reform Proposal

ARCH met with Education Minister Gerard Kennedy on 4 December 2003 and called for progressive measures to be taken with respect to the Safe Schools Act. ARCH submitted a no-cost law reform proposal to the Minister, aimed at remedying the discriminatory effects caused by the Act currently felt by students with disabilities. The introduction of the Act has provided mechanisms to exclude children on grounds of their disability.

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February 27, 2004

For a copy of the law reform proposal, please contact Robert by e-mail at [email protected].

A Roundtable Discussionon Ontario’s Education System

Community Living Ontario, the Ontario Coalition for Inclusive Education, the Canadian Association for Community Living, and ARCH will be hosting a roundtable discussion on Friday, April 16, 2004. The purpose of this discussion is to unite all stakeholders of Ontario’s education system (the community, government, and representatives from the education sector), and discuss effective strategies to ensure excellence within our schools for all children.

For more information, please contact Gordon Kyle at Community Living Ontario by e-mail at [email protected] or by phone at 416-447-4348 ext 230.

Defining Disabilityby Bill Holder, Staff Lawyer

On 3 December 2003, the federal Office for Disability Issues released an interesting report titled “Defining Disability: A Complex Issue.” The report was written in response to numerous complaints having been made, over the past few years, regarding disharmony with respect to definitions of “disability” in federal programs.

The report consists primarily of a survey – and the survey is its chief strength – of federal laws that pertain to disability and the approach taken to the meaning of “disability.” Not many laws dealing with disability actually define the word and, with respect to those that do, the definitions are inconsistent. For many persons with disabilities, the inconsistency is frustrating. Many persons, for example, cannot understand why the government would consider them to have a disability for the purpose of the Canada Pension Plan but not for the Disability Tax Credit, and vice-versa.

Despite the fact that disability is defined inconsistently, the report concludes that “a single harmonized ‘operational’ definition of disability across federal programs may not be desirable or achievable.” The conclusion, that harmonization is not achievable, is based on a finding that “disability is difficult to define because it is a multi-dimensional concept with both objective and subjective characteristics.”

Although not clearly discussed in the report, it would seem that one of the reasons that some people push for harmonization is because of an assumption that disability programs are intended to be available to all persons with disabilities. Once the assumption of universality is made, it becomes sensible to seek harmonization of the definition of “disability” in all programs. Surely universal programs should have the same – universal – application. However,

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February 27, 2004when programs are not universal, harmonization becomes unnecessary. When programs – like the federal disability programs – have different purposes and are intended to benefit different subsets of the group of persons with disabilities, what becomes important is whether persons belong to one or more of the subsets. It is unnecessary that we agree on who belongs to the general set of all persons who are persons with disabilities.

The report does not go so far as calling for the employment of language in federal legislation that would more accurately describe to whom certain disability programs apply (i.e., to clarify that application is not to all persons with disabilities). The report nevertheless recognizes that there is a communication problem. The report concludes that federal disability programs must be made more coherent and, to this end, it recommends “more effective communication” from the federal Government.

The report appropriately finds that much of the frustration that exists with respect to federal disability programs results not from the use of the word “disability” but from issues related to “eligibility, assessments and communication.” Accordingly, the report concludes that “efforts must be undertaken to relieve some of the tensions in policy and program responses.” Such efforts are thankfully being undertaken, including a review related to whether application

processes for federal disability programs can be harmonized.

The report may be accessed on the website of the Office for Disability Issues, at www.hrdc-drhc.gc.ca/hrib/sdd-dds/odi.

Unmet Health Needsby Bill Holder, Staff Lawyer

A new report by the Queen’s University Centre for Health Services and Policy Research indicates that persons with disabilities in Canada have “about three times as many” unmet health needs as Canadians without disabilities.

The report indicates that persons with disabilities face difficulties accessing the health care system: “Not only do people with disabilities experience access problems related to physical barriers, provider expertise and ill-informed attitudes, they also experience socio-economic disadvantages relative to poorer levels of education, employment and income.”

The low incomes of persons with disabilities correlate to unmet health care needs. Persons with disabilities report that cost is a barrier to accessing health services twice as often as do persons without disabilities. The report indicates that cost barriers “could be direct or indirect costs of service, and could involve ancillary costs for equipment, supplies or medication, many of which are only

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February 27, 2004partially covered.” With respect to the Medical Expense Tax Credit, often asserted by the federal government to constitute a solution to the problem of increasing health costs for persons with disabilities, the report states that it is an “ineffective policy tool.”

Last year, the Participation and Activity Limitation Survey of Statistics Canada found that persons with disabilities have unmet needs with respect to assistance with everyday activities. More than one third of persons with disabilities have such unmet needs. When this information is considered together with the finding of the Queen’s

report, one is left to conclude that not meeting the needs of persons with disabilities is a systemic problem.

According to the Queen’s report, Canada’s health care system is “failing” persons with disabilities. Among the recommendations of the report are the following: ensure prescription drug coverage for all persons with disabilities and increase community care services and supports.

The report may be accessed on the website of the Centre for Health Services and Policy Research, at http://chspr.queensu.ca

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February 27, 2004

ARCH ALERT is published by ARCH: A Legal Resource Centre for Persons with Disabilities. It is distributed free via e-mail, fax, or mail to ARCH member groups, community legal clinics, and others with an interest in disability issues. ARCH is a non-profit community legal clinic, which defends and promotes the equality rights of persons with disabilities through litigation, law/policy reform and legal education. ARCH is governed by a Board of Directors elected by representatives of member groups reflecting the disability community. The goal of ARCH ALERT is to provide concise information, so that people are aware of important developments and resources. Articles may be copied or reprinted to share with others provided that they are reproduced in their entirety and that the appropriate credit is given. We encourage those who receive it to assist with distribution of information in this way. We do ask that both Word and Text Formats are distributed to ensure accessibility. Charitable Reg. #118777994RR01.

Editor: Bill Holder Production & Circulation: Theresa Sciberras

We welcome your comments and questions, as well as submissions. We will endeavour to include all information of general interest to the community of persons with disabilities and their organizations, but reserve the right to edit or reject material if necessary. We will advise you if your submission is to be edited or rejected. Please assist us in your submissions by being brief and factual. Please address communications regarding ARCH ALERT to: Theresa Sciberras, Administrative Assistant, ARCH: A Legal Resource Centre for Persons with Disabilities, 425 Bloor Street East, Suite 110, Toronto, Ontario, M4W 3R5, fax: 416-482-2981, TTY: 416-482-1254, e-mail: [email protected] Website www.archlegalclinic.ca

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XCVXCV - ARCH Disability Law Centre Alert - Febru… · Web viewThe Supreme Court of Canada has upheld the constitutionality of spanking, as a defence to a charge of assault, in