In this section, the Rights-Outcome Lens is applied to ODSP to illustrate how it may be used in practice.  For this discussion, we begin with a general overview of ODSP, including contextual background.  We then analyze the eligibility criteria: those that determine disability status and financial eligibility. .  Finally, we address the process and administrative factors that influence access to ODSP.  We conclude with our observations of ODSP’s eligibility criteria in light of the Rights-Outcome Lens.

 

A.   Overview of the Legislation

ODSP is a social assistance program targeted to those with a significant financial need.  It is, as such, directed to those with a disability and who have little available income or assets.[57]  This disability-related benefit does not stand alone, but instead operates within a system including other benefits that are available to persons with disabilities from private and public sources.  Other income support programs include private disability insurance, federal disability pension under the Canada Pension Program, Employment Insurance and Ontario’s Workplace Safety and Insurance compensation. Access to these programs depends on when and how the impairment or injury was acquired and whether or not an individual had been part of the paid workforce prior to injury.  When a disability exists from an early age, preventing participation in work, or where other factors have led to non-paid employment, part-time or precarious employment, an individual is left to provincial social assistance programs such as ODSP for income support. 

Ontario, like most Canadian jurisdictions, divides income support between a general welfare program (Ontario Works) and a disability program (ODSP).  As the federal government has reduced its commitment to shared funding of these programs, more responsibility has fallen on the provinces and, in the case of general welfare programs, to municipalities.[58]  When the Ontario government announced the creation of ODSP in 1998, it indicated that the new program was intended to provide a different level of support and marked “the start of a new era of fair treatment and opportunity for people with disabilities in Ontario.”[59]  Increased benefit payments, employment supports, medical supports and exemption from participation in workfare, distinguished ODSP from Ontario Works, implying  that persons with disabilities were “more deserving” poor.  The Supreme Court has acknowledged this distinction between programs:

It is clear that the ODSPA and the OWA are meant to serve very different goals. The former statute is meant to ensure support for disabled applicants, recognizing that the government shares in the responsibility of providing such support (ODSPA, s.1). The latter statute, on the other hand, seeks to provide only temporary assistance premised on the concept of individual responsibility (OWA, s.1). The divergent purposes of these two statutes was alluded to by the Honourable Janet Ecker, the Ontario Minister of Community and Social Services, on the day after the ODSPA was proclaimed:

                        

This new program removes people with disabilities from the welfare system, where they should never have been in the first place, and it creates for them an entirely separate system of income support….

(Legislative Assembly of Ontario, Official Report of Debates, No. 19A, June 2, 1998 at p. 971)[60]

 

However, despite the acknowledged difference in purpose between ODSP and Ontario Works, ODSP maintained many of the same individual obligations and enforcement mechanisms as the general welfare system, situating ODSP  firmly within the charity model.[61] 

To qualify for ODSP, initial determinations of income and assets are made. Often, this is done through municipal welfare programs, administered under Ontario Works.  Once the financial criteria have been established, a disability determination package is completed by the applicant.  Some portions are completed by physicians or other health care practitioners while the “self-report” is completed by the applicant themselves.  This process focuses on determining whether an individual is unable to support themselves financially due to a medical condition.  The application is reviewed by the Disability Adjudication Unit (DAU).  If the DAU refuses an application, an individual may apply to for an “internal review” whereby the application is reconsidered by a panel of three adjudicators.  If a negative decision is made at this level, the applicant has the opportunity to have the decision considered by the Social Benefits Tribunal (SBT), an independent tribunal.  The SBT can confirm, set aside or amend the decision of the DAU. 

 

B.   Eligibility based on Disability Status

Determining who is considered “disabled enough” to qualify for benefits depends upon how “disability” is defined.   Given that all persons fall within a natural spectrum of ability, it becomes necessary when targeting disability-related support programs to make a distinction among individuals in order to best focus resources on the intended recipients.  However, as described by the Ontario Human Rights Commission, while “the government has the right to “draw the line” to accommodate resource availability… there must be a tenable justification for the resultant differential treatment.”[62]  In other words, applying outdated stereotypes or negative beliefs about persons with disabilities would not be an appropriate or principled mechanism to guide disability-related benefit eligibility.  To guide decision-making, it is necessary to identify whether choices are made based on principled values.  We apply the outcome measures to the disability status eligibility criteria to evaluate the extent to which a principled approach is achieved.  While the legislative test and its judicial interpretation largely meet the criteria from the Rights-Outcome Lens, substantial weaknesses were noted in the administrative application of disability adjudication.

The explicit definition of “a person with a disability” in ODSP is addressed in section 4 of the Ontario Disability Support Program Act which states:[63]

A person is a person with a disability for the purposes of this Part if,

(a) the person has a substantial physical or mental impairment that is continuous or recurrent and expected to last one year or more;

(b) the direct and cumulative effect of the impairment on the person’s ability to attend to his or her personal care, function in the community and function in a workplace, results in a substantial restriction in one or more of these activities of daily living; and

(c) the impairment and its likely duration and the restriction in the person’s activities of daily living have been verified by a person with the prescribed qualifications.

A number of outcome measures directly impact the determination of disability status: : recognition of the individual experience of disability, recognition of the diversity of persons with disabilities, recognition of disability as both a lived experience and a social construct, and accessible and respectful processes.

 

1.         Definition of Disability that Recognizes Individual Experience

As outlined above, the experience of disability is not uniform, nor does it easily fit within specific categories of impairments or disease.  Eligibility criteria that identify “a person with a disability” must be alive to the diverse and changing understanding of disability as well as the individual experiences of disability.

On a plain reading of section 4, the ODSP definitional criteria provide for an expansive understanding of disability.  First, paragraph (a) requires an impairment that is substantial.  The use of the word substantial is a shift from previous legislation which required a serious impairment, a change that the courts have interpreted as  a lower threshold.  For example, the Ontario Court of Appeal in Gray held that this definition is “much more generous” since the provision “was intended to encompass a broader segment of society.”[64] The use of the word “substantial” is different from other provincial regimes in Canada and the federal Canadian Pension Plan disability eligibility requirements.[65]  Similarly, ODSP requires that an impairment be “continuous or recurrent”, allowing for the possibility of fluctuating illnesses.  The l impairment need only be “expected to last for one year or more” and does not have to be “permanent” as is required in other jurisdictions.[66]  In this way, the legislation normalizes the experience of disability as part of the human condition.[67] 

Inclusion of “recurrent” conditions is particularly important in the context of particular conditions, for example, conditions related to mental health.[68]  This inclusion acknowledges that conditions are not necessarily fixed and that a short term “snap shot” of an individual’s situation does not adequately represent the experience of the condition.  Nonetheless, the condition may be an impairment that can substantially restrict the individual’s participation in one or more of the enumerated areas of daily life.

The definition of disability also requires an examination of the “cumulative” impact of multiple impairments on the person and, as a result, the cumulative restrictions:

The assessment as to whether a person has a substantial physical or mental impairment must consider the various conditions individually and cumulatively. It is not necessary to break down the analysis to every part of the mind and body affected and find at least one disorder is substantial. Such artificiality would detract from the person centered and remedial purposes of the ODSPA. To analyze each physical or mental disorder separately and require that each separately result in a ‘substantial r