Debating the Definition of Disability

Over 500,000 individuals and their qualifying family members received the Ontario Disability Support Program (ODSP), prior to the pandemic. Our social supports system will be even more important in the economic recovery following the pandemic.

ODSP is a last resort income support paid to individuals who are disabled, as defined in s. 4(1) the of the Ontario Disability Support Program Act, 1997,

(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.

These definitions are further defined in case law. In Gray v. Director, Ontario Disability Support Program, the Court of Appeal clarified that the definition was deliberately intended to encompass a broader segment of society, even when compared to the legislation that preceded it, and similar legislation federally. When definition what a “substantial” disability is, the court said, 

…the word should be given a flexible meaning related to the varying circumstances of each individual case in a manner consistent with the purposes of the Act.

The Court of Appeal further stated in Crane v. Ontario (Disability Support Program), that determination of whether an impairment is substantial requires consideration of the “whole person,” including the ability of a person to function in areas such as personal care, participation in community, and involvement in the workforce.

This approach is consistent with the World Health Organization (WHO) established definition of health in the Preamble to the Constitution of WHO. Health is a state of complete physical, mental and social well-being, rather than the mere absence of disease or infirmity. This definition was established in 1946, entered into force in 1948, and has not been amended since. In evaluating disability under ODSP, overlapping areas of health are considered to determine whether a disability is substantial.

The ODSP program is continuously reviewed and changed, as it is one of the most significant social programs offered by the province. The cost is also steadily increasing over time, from approximately $3.1 billion in 209 to $5.4 billion in 2018/19, but has yet to reach historic levels of funding after a series of cuts over 30 years ago. 

In 2017, the process was simplified further, so that individuals whose medical conditions haven’t improved since the initial application would no longer need to fill out those same forms. This saved time and money for those receiving these supports, but also contributed to the increase in recipients. The program also was getting disproportionately expensive to fund, attracting the attention of the Auditor General.

But nobody is getting rich, or even comfortable on ODSP. The maximum a person could receive for basic needs and shelter under ODSP for a single person is just over $14,000 a year, while the poverty line in Ontario in 2017 was estimated to be $23,000. Therefore this benefit goes to the most vulnerable among the most vulnerable members of society.

On November 22, 2018, the Minister of Children, Community and Social Services announced a plan to change the definition of disability under the ODSP to add a requirement that the severe and prolonged. This would align the ODSP definition more closely with the definition used in the Canada Pension Plan (CPP), but would effectively exclude many people receiving this support, especially those with psychological disabilities.

These individuals would then be left with even less social support to live off, with lower levels of support provided through Ontario Works (OW). The impact of these changes was estimated to potentially affect nearly half of all ODSP recipients.

Tort law also attempts to make distinctions between different types of physical and psychological harms. The Court in Vanek v. Great Atlantic & Pacific Company of Canada Limited reviewed the settled law in Ontario that recovery cannot occur without a “recognized psychiatric illness.”

This principle was relied on by the appellate courts in Mustapha v. Culligan of Canada Ltd. to overturn a successful claim based on psychological illnesses on the basis of proximity, requiring foreseeability of serious injury from the perspective of “a person of ordinary fortitude.” The challenges in assessing what is ordinary for psychological claims manifested in deeply psychological ways remains an unanswered question by the Court, despite the subsequent declaration in Saadati v. Moorhead at para 23 that the “loss of our mental health is a more fundamental violation of our sense of self than the loss of a finger.”

Changes to the definition of ODSP in the middle of the pandemic would be particular concerning for many of these vulnerable populations who are receiving this support. The opposition to proceeding with this plan expanded well beyond the advocacy groups who typically speak on the subject.

On Nov. 4, 2020, Janet Menard, Deputy Minister of Ministry of Children, Community and Social Services, stated at the Standing Committee on Public Accounts,

We heard the message, we heard the concerns, and at this point in time there is no plan to change the definition of “disability.”

Our focus, however, is on improving the adjudication process associated with determining eligibility related to the definition of disability. We’ve given many examples of how we’re doing that, but there is no decision or plan to change the definition.

This is the first official recorded statement I have found confirming that the government plans to keep the definition the same.

The adjudication process is certainly also in need of significant improvements, with hearing dates often extending to over a year and a half, and nobody on any side of the debate around definition disputes that. Although the statement by the Deputy Minister is not binding on the government on either count, there are many people in society counting on this particular plan to redefine disability at this time on hold indefinitely.

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