Submitted on August 29, 2011

I. Introduction

II. Precarious Work

III. Principles for the Law and Persons with Disabilities

IV. Reasonable Expectations and Necessary Supports to Employment

V. Appropriate Benefit Structures

VI. Easier to Understand

VII. Integration

VIII. Conclusion

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I. Introduction

The Law Commission of Ontario (LCO) welcomes the opportunity to provide a Submission in response to Discussion Paper: Issues and Ideas (“Discussion Paper”) released by the Commission for the Review of Social Assistance in Ontario (“the Commission”) in June 2011. The issues raised are important and challenging ones, touching profoundly on the lives of some of the most vulnerable Ontarians, and the LCO is pleased to see the Commission undertaking this work.

The LCO operates independently of government to recommend law reform measures to enhance the legal system’s relevance, effectiveness and accessibility; improve the administration of justice through the clarification and simplification of the law; consider the use of technology to enhance access to justice; stimulate critical legal debate; and study areas that are underserved by other research. It selects projects that are of interest to and reflective of the diverse communities in Ontario and is committed to engage in multi-disciplinary research and analysis and to make holistic recommendations, as well as to collaborate with other bodies and consult with affected groups and the public more generally. It was created through an Agreement among the Law Foundation of Ontario, the Ontario Ministry of the Attorney General, Osgoode Hall Law School and the Law Society of Upper Canada, all of whom provide funding for the LCO, and the Ontario Law Deans.

The LCO’s interest in the work of the Commission arises from two of its current projects. The LCO is completing consultations and drafting an Interim Report on a project examining Vulnerable Workers and Precarious Work The project reviews the nature of precarious work, the identity of vulnerable workers, the existing protections for employees engaged in these forms of paid work, the limitations of the protective legislation, the challenges and difficulties of enforcing rights under existing legislation, the impact of precarious work on the daily lives of vulnerable workers and some of the potential responses. We are also engaged in a multi-year project on the Law as it Affects Persons with Disabilities. The aim of this project is to develop a coherent and principled approach to this area of the law. The project will not result in recommendations for changes to any particular area of law, although law reform is certainly needed in many areas; rather, the outcome will be a principled evaluative framework, which can be used to analyze, evaluate and reform existing laws or to develop new laws in a way that will appropriately address the needs and circumstances of persons with disabilities. The LCO has conducted considerable research to understand the way the law shapes the lives of persons with disabilities, including funding several research papers. We also undertook a very extensive public consultation during the summer of 2010 with persons with disabilities and with organizations that represent, serve or advocate for persons with disabilities. During these consultations, many issues were raised regarding the Ontario Disabilities Support Program (ODSP), as well as broader themes. We have included information and quotations from those consultations throughout this submission.

Based on this work, we believe that our perspective may be of assistance to you as you consider the next stage of your project. Given the nature of our projects, and the fact that they are still under development, we cannot provide specific policy prescriptions; rather, we can point to general concerns and approaches to solutions.

Due to the more advanced nature of our project on the law as it affects persons with disabilities, this submission will focus mainly on the law reform issues regarding this group and concerns regarding reforms to ODSP. We will begin by setting out the general approach to law reform for persons with disabilities that has been adopted by the LCO, and then generally follow the structure of the Discussion Paper to comment on the issues that you raise. A preliminary section will touch briefly on some of the key issues respecting vulnerability and precarious work.

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II. Precarious Work

We understand from your Discussion Paper that your Review will not directly examine precarious employment or reforms to address the rise in non-standard forms of employment, but that this phenomenon will be considered within recommendations that you will make.  Upon review of your Discussion Paper, we wish to identify two issues for your consideration.

First, the LCO believes that any reforms that seek to end people’s reliance on social assistance and transition them into paid employment must consider the nature of those paid jobs. We have heard of numerous workers in part-time, temporary, or other precarious forms of employment who seek out more stable, permanent forms of employment with related benefits in order to stay out of poverty. We were told that it is a significant challenge for many workers to make a decent income from precarious jobs, and many must take on multiple precarious jobs to survive. There is also an increasing body of research which suggests that those in part-time, temporary or contract positions are at an increased risk of poor health, given the stressors and uncertainty about their employment and income.[1] Other research suggests that certain types of precarious jobs, given the temporary nature of the work, involve greater health risks because of lacking or inadequate safety training.

It would be extremely unfortunate if reforms that sought to end reliance on social assistance only moved people into precarious forms of works. Many would land in only marginally improved economic positions, and they would always run the risk of returning to social assistance once those unstable and insecure forms of employment ended. Many could be at an increased risk of poor health, adding to the costs of our health care and disability support systems.

Second, with respect to employment support services, we share the conclusion reached by the 2008 Provincial-Municipal Fiscal and Service Delivery Review that employment services are “…not well integrated and, for the individual looking for help, can be hard to access and confusing.” The complexity aside, and from our discussions with the Ministry of Training, Colleges and Universities, we understand these programs are directed almost exclusively at helping people find any job. As we discuss below, research suggests that programs directed at helping people find stable and secure employment would have a greater impact on reducing poverty than ones that lead them to precarious forms of work.

We also question the usefulness of programs that place significant emphasis on job-searching skills, such as resume writing and interview skills workshops, and whether these financial resources might better be spent on job-specific educational or training programs. U.S. studies have concluded that these types of employment support services are of marginal assistance to those looking for work. In Ontario, at least one study similarly concludes that they are ineffective; at best, these employment supports may assist workers to find short-term employment, but once they take up precarious employment, they tend to remain in a series of precarious jobs with their associated negative health impacts.[2] A further study of 300 Caribbean and Latin American workers found that strategies to help people out of poverty include longer job tenure in one’s current job, and moving to a less precarious and more stable job. The same study found that the most significant strategy to reduce precarious employment was individual investment in education, and employer supported on-the-job training.[3]  Both  these studies found that once a worker lands in a precarious job, it is very difficult for the worker to move on to better paid, more stable form of employment. This would suggest that any employment support strategy ought to target the attainment of secure jobs suitable to the individual’s particular skills and interests.

We also met with representatives from unions who partially funded and staffed various Worker Action Centres following manufacturing plant closures to seek their input on the functions and effectiveness of these Centres. The services provided were integrated and comprehensive, and exceeded the services typically offered through government employment support agencies. Through community partnerships, these Worker Action Centres were able to facilitate and enable advanced training opportunities and enhance labour market prospects for workers disadvantaged by complex basic skills needs.[4]

Finally, as suggested in your Discussion Paper, there is a strong argument that the local employer community should be directly involved in shaping the programs, and in particular, the educational programs and supports, that are offered by employment support agencies. This was a comment we heard during our consultations.

Therefore, the LCO believes that reforms related to employment supports might most profitably focus on:

(a)  improved and easier access to employment support services;

(b)  the attainment of secure and suitable employment, rather than “any job” or less secure precarious employment, as the primary objective of employment support agencies;

(c)  funding and access to education and training programs for vulnerable workers and the unemployed; and

(d)  direct input and involvement by the employer community in the types of services and educational/training programs offered by employment support agencies.

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III. Principles for the Law and Persons with Disabilities

Persons with disabilities are themselves disproportionately likely to be vulnerable workers and find themselves engaged in precarious employment.[5] In 2006, employment earnings were the largest source of income for only 52.1% of persons with disabilities. In contrast, 81.2% of persons without disabilities reported employment earnings to be the largest portion of their income.[6] The comments above in relation to precarious workers are therefore also applicable to many persons with disabilities. There are, however, a number of particular challenges that persons with disabilities may face that are relevant to the Review, and which will be addressed in the remainder of this Submission.

Based on the LCO’s research and broad consultations, we believe that it is important to consider the law as it affects persons with disabilities in a holistic and principled way, taking into account the actual needs and circumstances of these individuals, as well as their aspirations. The LCO’s Framework will therefore be based on a set of principles for the law as it affects persons with disabilities. Identifying a set of principles to guide the law as it affects persons with disabilities can help to ensure that this area of the law is as a whole is consistent and coherent, that the goals of the law are in harmony with the aspirations of persons with disabilities themselves, and that the law is effective in its approach to the needs and experiences of persons with disabilities.

The LCO has identified six principles to guide the law as it affects persons with disabilities. The value of substantive equality underlies all of the principles and acts as a guide to their interpretation. The principles are:

1.    Respecting the dignity and worth of persons with disabilities, which includes respecting their worth and contributions, avoiding stereotyping and seeing those with disabilities as full persons rather than simply as their impairments.