Comments on A Discussion Paper: Issues and Ideas – June 2011 prepared by the Commission for the Review of Social Assistance in Ontario

Written Submission of

ARCH Disability Law Centre

to the

Commission for the Review of Social Assistance in Ontario

August, 2011

Ivana Petricone and Edgar-Andre Montigny ARCH Disability Law Centre

425 Bloor Street East, Suite 110 Toronto, Ontario, M4W 3R5

(416) 482-8255 or 1-866-482-2724 (Voice) (416) 482-1254 or 1-866-482-2728 (TTY) (416) 482-2981 or 1-866-881-2723 (Fax)

www.archdisabilitylaw.ca petricoi@lao.on.ca

montignye@lao.on.ca

2

INTRODUCTION

ABOUT ARCH ARCH is an Ontario-based community legal clinic that is dedicated to defending

and advancing the equality rights of people with disabilities. ARCH is governed

by a volunteer board of directors, a majority of whom are people with disabilities.

We provide a telephone summary advice and referral service to Ontarians with

disabilities and represent individuals as well as provincial and national disability

organizations in test case litigation at all levels of tribunals and courts. We

provide education to people with disabilities on disability rights and to the legal

profession about disability law. We make submissions on matters of policy and

law reform. ARCH maintains a web site on disability law at:

www.archdisabilitylaw.ca.

ARCH’s experience with people with disabilities who rely on social assistance

and/or who live in poverty is broad and is based on our contacts with people with

disabilities themselves, their families and support people, advocates and

community organizations. ARCH regularly hears concerns about the delivery of

employment supports and services to people with disabilities, and ARCH staff

provide legal information and advice as part of our summary advice and referral

service to individuals who experience barriers in securing employment or

discrimination in the workplace for reason of their disability. ARCH has

represented clients in litigation dealing with employment issues. We have

engaged in discussions of these issues with consumer and advocacy groups and

have conducted legal and non-legal research on employment supports and

services for people with disabilities.

Given the community that ARCH serves, our submissions will focus on issues

related to the experience of persons receiving or eligible for Ontario Disability

Support Program benefits.

3

TABLE OF CONTENTS ARCH COMMUNITY CONSULTATION ………………………………………………..…… 3 THEORETICAL AND LEGAL FRAMEWORK …………………………………………….. 4

A. Theoretical Framework B. Legal Framework

DISCUSSION OF ISSUES RAISED BY CONSULTATION

A. Ensuring an Adequate Standard of Living for Low-Income Persons with Disabilities…………………………………………………………………………….…9Accessing social assistance benefits

i. Ensuring access to ODSP for the most vulnerable persons with disabilities

ii. Social assistance and minimum wage iii. Increases in number of persons receiving ODSP benefits

B. Ensuring Social Assistance Benefits are Not Conditional on Training,

Employment, Volunteering or Treatment……………………………………………14 i. Overview ii. Treatment iii. Barriers to employment for persons with disabilities iv. Summary

C. Reliance on the AODA to Remove Barriers to Employment for Persons with

Disabilities………………………………………………………………………………23 D. The Need for Better Training and Educational Supports, Programs to Address

Social Inclusion and Remove Barriers to Employment……………………………25 i. Overview ii. Adequacy of training programs iii. Persons with intellectual disabilities iv. Persons with mental health disabilities v. Working more closely with employers vi. Funding for accommodations

• Attendant services • Direct funding • Assistive devices • Wheel-Trans and Transportation

vii. Accommodation by employers viii. Claw-back of employment income ix. Summary

E. No Distinctions between People with Disabilities who are “Able to Work” and

Those Who are “Unable to Work”………………………………………………….35

F. No Distinctions between People “Severe” and “Not Severe” Disabilities…..….38

CONCLUSION …………………………………………………………………………………40

4

1. ARCH COMMUNITY CONSULATION In order to canvas the views and opinions of persons with disabilities ARCH

consulted a wide range of organizations that advocate on behalf of persons with

disabilities, including persons with intellectual disabilities, persons with physical

disabilities and persons with mental health disabilities. These submissions

represent a compilation of the comments gathered through this consultation

process as well as comments based upon the experiences of those persons with

disabilities who seek assistance or information from ARCH.

ARCH’s consultation revealed that the following issues raised in the

Commission’s Discussion Paper are the areas of key concern among persons

receiving Ontario Disability Support Program benefits. Each of these issues will

be addressed in these comments.

A. Ensuring an adequate standard of living for low-income persons with

disabilities B. Ensuring that Ontario Disability Support Plan (ODSP) benefits are not

conditional on work, training, volunteering or treatment. C. The over-reliance on the AODA to remove barriers to employment for

people with disabilities. D. The need for better training and education supports, better programs to

address social inclusion as well as barriers to employment. E. The suggestion of a distinction between people with disabilities who are

“able to work” and those who are “unable to work”. F. The suggestion of a two-tiered system for people with “severe” and “not

severe disabilities”. 2. THEORETICAL AND LEGAL FRAMEWORK ARCH urges the Commissioners to situate their analysis and recommendations

within the following frameworks:

a) the theoretical framework of the social model of disability, and;

5

b) the legal framework of the United Nations Convention on the Rights of

Persons with Disabilities (the UN Convention) which Canada ratified in

March 2010, along with Ontario’s Human Rights Code.

A. Theoretical Framework For some time there have been two key theoretical perspectives on disability.

The more traditional perspective has been called the medical model. This

perspective focuses on disability as an individual flaw or abnormality. 1 For the

most part it is the responsibility of the person with a disability to fit themselves

into society. For those people who are ‘too disabled” to function within society,

the state should provide some means of support.

The social model of disability defines disability as a part of the normal spectrum

of the human condition. The social model also contends that most ‘disability’ is

due to barriers created by negative social attitudes and inaccessible

environments rather than the impact of the disability itself upon the individual. 2

As noted in the Preamble to the United Nations Convention on the Rights of

Persons with Disabilities (the Convention), States Parties recognize that disability

is an evolving concept and that disability results from the interaction between

persons with impairments and attitudinal and environmental barriers that hinder

their full and effective participation in society on an equal basis with others. This

model places responsibility upon society as a whole to eliminate both social and

physical barriers to the full inclusion of persons with disabilities. 3

More recently, the World Health Organization has put forward the concept of a

hybrid - ‘Bio-psycho-social model’ of disability. While emphasising the “social”

aspects of disability, this model acknowledges that functioning and disability is ‘a

1 Marcia Rioux and Fraser Valentine, “Does Theory Matter?: Exploring the Nexus Between Disability, Human Rights and Public Policy,” In Diane Pothier and Richard Devlin (eds.), Critical Disability Theory: Legal and Policy Dimensions (Vancouver, 2005):47-69. 2 See Rioux and Valentine, 3 United Nations Convention on the Rights of Persons with Disabilities, preamble, section (e)

6

dynamic interaction between health conditions and contextual factors, both

personal and environmental’. 4

ARCH accepts that persons with disabilities experience barriers arising directly

from their individual circumstances or health conditions. We also accept that

medical intervention can be effective in controlling or reducing the negative

impacts of some disabilities. However, while medical factors play a role in

determining the extent to which a person with a disability can participate in

society, including employment activities, the crucial determinant in most cases, is

the manner in which society as a whole responds to disability.

ARCH urges the Commissioners to situate their recommendations on social

assistance policy, particularly those relevant to persons with disabilities, within

the framework of the social model of disability, recognizing (a) that individuals

with disabilities face both personal and societal barriers to their full participation

and inclusion in society and that these barriers are increased by the experience

of poverty; and (b) that society as a whole has an obligation to eliminate the

attitudinal, environmental and economic factors that create barriers to full social

inclusion for persons with disabilities.

B. Legal Framework ARCH urges the Commissioners to situate their recommendations within the

legal framework outlined in general terms by Canadian legislation such as the

Canadian Human Rights Act, Ontario’s Human Rights Code and the Canadian

Charter of Human Rights and Freedoms, and detailed in more specific terms by

the Articles of the United Nations Convention on the Rights of Persons with

Disabilities (the UN Convention).

4 World Health Organization & the World Bank, World Report on Disability (July 2011). p. 4.

7

By ratifying the UN Convention, Canada committed itself as a nation to

protecting, promoting and ensuring the full enjoyment of human rights by persons

with disabilities and to ensuring that they enjoy full equality under the law and full

participation in society.5

The UN Convention accepts that environmental barriers and discrimination

contribute to the poverty and exclusion of persons with disabilities and outlines

the measures needed to remove barriers and foster participation. In this way, the

UN Convention makes general human rights principles specific to persons with

disabilities and clarifies international law regarding disability. 6 ARCH urges the

Commissioners to ensure that their recommendations are consistent with the

principles outlined in the UN Convention.

Most important to a review of social assistance policy in Ontario are Articles 27

and 28 of the UN Convention which are presented below.

Article 27: Work and employment

1. State Parties recognize the right of persons with disabilities to work, on an equal basis with others; this includes the right to the opportunity to gain a living by work freely chosen or accepted in a labour market and work environment that is open, inclusive and accessible to persons with disabilities. States Parties shall safeguard and promote the realization of the right to work, including for those who acquire a disability during the course of employment, by taking appropriate steps, including through legislation, to, inter alia; (a) Prohibit discrimination on the basis of disability with regard to all matters concerning all forms of employment, including conditions of recruitment, hiring, employment, continuance of employment, career advancement and safe and healthy working conditions; (b) Protect the rights of persons with disabilities, on an equal basis with others, to just and favourable conditions of work, including equal opportunities and equal remuneration for work of equal value, safe and healthy working conditions, including protection from harassment; and the redress of grievances;

5 Canada News Centre, “Canada Ratifies UN Convention on the Rights of Persons with Disabilities” (no. 99 March 11, 2010). 6 World Report on Disability p. 12.

8

(c) Ensure that persons with disabilities are able to exercise their labour and trade union rights on an equal basis with others; (d) Enable persons with disabilities to have effective access to general technical and vocations guidance programmes, placement services and vocational and occupational training; (e) Promote employment opportunities and career advancement for persons with disabilities in the labour market, as well as assistance in finding, obtaining, maintaining and returning to employment. (f) Promote opportunities for self-employment, entrepreneurship, the development of co-operatives and starting one’s own business; (g) Employ persons with disabilities in the public sector; (h) Promote the employment of persons with disabilities in the private sector through appropriate policies and measures, which may include affirmative action programmes, incentives and other measures; (i) Ensure that reasonable accommodation is provided to persons with disabilities in the workplace; (j) Promote the acquisition by persons with disabilities of work experience in the open labour market; (k) Promote vocational and professional rehabilitation, job retention and return-to-work programmes for persons with disabilities. 2. States Parties shall ensure that persons with disabilities are not held in slavery, servitude, and are protected, on an equal basis with others, from forced or compelled labour.

Article 28: Adequate standard of living and social protection

1. State Parties recognize the right of persons with disabilities to an adequate standard of living for themselves and their families, including adequate food, clothing and housing and to the continuous improvement of living conditions, and shall take appropriate steps to safeguard and promote the realization of this right without discrimination on the basis of disability.

2. States Parties recognize the right of persons with disabilities to social protections and to the enjoyment of that right without discrimination on the basis of disability, and to take appropriate steps to safeguard and promote the realization of this right including measures:

(a) To ensure equal access by persons with disabilities to clean water services, ensure access to appropriate and affordable services, devices and other assistance for disability-related needs.

9

(b) To ensure access by persons with disabilities, in particular women and girls with disabilities and older persons with disabilities, to social protection programmes and poverty reduction programmes; (c) To ensure access by persons with disabilities and their families living in situations of poverty to assistance from the State with disability-related expenses, including adequate training, counselling, financial assistance and respite care; (d) To ensure access by persons with disabilities to public housing programmes; (e) To ensure equal access by persons with disabilities to retirement benefits and programmes.

The recommendations made in these submissions reflect the social model

perspective on disability. ARCH’s recommendations are also consistent with

provisions of the Convention, particularly Articles 27 and 28.

3. DISCUSSION OF ISSUES RAISED IN CONSULTATIONS A. Ensuring an Adequate Standard of Living for Low-Income Persons with Disabilities There are strong links between disability and poverty. The UN Convention

acknowledges that the majority of persons with disabilities live in poverty.

Disability increases the risk of poverty and poverty increases the risk of disability

and often increases the negative impact of a disability upon an individual.

Persons with disabilities experience worse educational and labour market

outcomes (overall in Canada in 2006 persons with disabilities had an

employment rate 22% lower than that of people who did not have a disability), 7

and are more likely to be poor than persons without disabilities (average annual

earnings of adults with disabilities in Canada in 2005 were about $9,000 lower

than people without disabilities).8 A recent poll of persons with disabilities

conducted by the Centre for Independent Living Toronto found that 30% of

respondents reported annual income below $8,000, while another 40% reported

7 Statistics Canada, Participation and Activity Limitation Survey, 2006: Labour Force Experience of People with Disabilities in Canada (Ottawa: Social and Aboriginal Statistics Division, 2006) 8 Participation and Activity Limitation Survey, 2006

10

incomes of between $8,001 and $16,000, all well below the current Canadian

Low Income Cut Off of $22,637.9

The World Report on Disability confirms that people with disabilities and their

families are more likely to experience economic and social disadvantage than

people without a disability. These conditions apply to persons in developed

nations as well as developing nations. This is often because people with

disabilities are more likely to be unemployed, generally earn less when

employed, and have less access to resources to promote self-employment and

livelihood activities. Persons with disabilities also generally have extra costs

related to their disability, such as medical expenses, the purchase and

maintenance of assistance devices, special dietary needs, laundry services or

personal assistance, so even when persons with disabilities have similar incomes

to others, their standard of living remains lower. 10

Poverty has a direct impact on social inclusion. People who lack resources are

less likely to participate in a range of community activities and are less likely to

develop social ties and skills that support inclusion and promote employment. No

one should underestimate the emotional toll poverty can have on people by

creating a sense of powerlessness and frustration. 11

The UN Convention recognizes the critical need to address the impact of poverty

on persons with disabilities. Pursuant to Article 28 (1) of the Convention, States

Parties are obliged to recognize the right of persons with disabilities to an

adequate standard of living for themselves and their families and to take steps to

safeguard and promote the realization of this right without discrimination on the

basis of disability. Article 28(2) also obligates States Parties to ensure access to

appropriate and affordable services, devices and other assistance for disability

related needs. 9 Centre for Independent Living Toronto, A Safer City for All (July 2011). P. 17. 10 World Report on Disability p. 10. 11 For more detail see A Safer City for All . p. 50-52.

11

ARCH asserts therefore that any attempt to promote the full and equal inclusion

of persons with disabilities in society requires a robust system of income and

other supports for persons with disabilities, recognizing not only their right to a

adequate standard of living but also the extra costs related to living with a

disability.

i. Accessing social assistance benefits ARCH urges the Commissioners to ensure that persons with disabilities who

require social assistance receive those benefits without having to undue scrutiny

or overly restrictive or complex rules. While the system must be accountable,

there is a difference between setting up criteria to ensure that people are eligible

for benefits and setting up a system of surveillance that assumes that people on

social assistance are dishonest or untrustworthy and require constant and

detailed monitoring to prevent fraud. Such polices suggest the application of

stereotypical assumptions about low-income persons and persons with

disabilities. Need and vulnerability do not equate with dishonesty.

ii. Ensuring access to ODSP for most vulnerable persons with disabilities. ARCH urges the Commissioners to ensure in their recommendations that the

ODSP application process is accessible to the most vulnerable populations of

persons with disabilities, such as the homeless, particularly those with mental

health disabilities. More must be done to reach out to those persons who are so

segregated from the mainstream population that even visiting a doctor, filling in

forms or having an address to receive a response to their application are beyond

their capabilities. The extreme need, extreme social isolation and extreme

poverty of these people should not be allowed to act as a barrier to their

receiving the social supports and income they urgently require.

12

In addition, information about ODSP and its policies must be available to all

persons with disabilities in a format is accessible, including, but not limited to,

print, Braille, audio or electronic formats. 12

iii. Social assistance rates and minimum wage

ARCH also urges the Commissioners not to accept the traditional argument that

social assistance rates must always be kept lower than the lowest wage available

to ensure that people are always “better off” employed than receiving social

assistance.

The purpose of a social assistance program should be to provide an adequate

standard of living for low-income people with disabilities and their families. 13

What constitutes an adequate standard of living for persons in receipt of social

assistance must be based upon a reasonable assessment of the true cost of

living in Ontario, including the additional costs related to having a disability, such

as the cost of support services, assistive devices, counselling, respite care and

other disability related needs.

Ontario is committed to the reduction of poverty. Poverty reduction is in

everyone’s interest since poverty creates negative impacts for our entire society.

Keeping social assistance rates lower than the lowest wages available does

nothing to reduce poverty. In fact such policies perpetuate and entrench poverty.

There is ample evidence that at minimum wage levels, even full-time work cannot

provide a sufficient income to purchase the basic necessities of life. Forcing

people on social assistance to survive on even less would defeat entirely any

attempt to reduce poverty in this province. The point is not how much people

receive either through social assistance or employment, but whether that amount

12See Alliance for Equality of Blind Canadians, Strengthening Social Assistance in Ontario (a response to A Discussion Paper: Issues and Ideas)(August 2011). 13 UN Convention, Article 28(1).

13

is adequate to provide the essentials of life for a person with a disability. If both

social assistance and minimum wage levels are inadequate to provide a basic

standard of living then both should be increased. Providing either social

assistance or minimum wage rates that are insufficient to purchase the essentials

of life will merely ensure the perpetuation of poverty and sabotage the success of

any poverty reduction strategy.

iv. Increases in number of persons receiving ODSP benefits

Another common argument is that more adequate social assistance rates would

encourage more people to apply for assistance and the numbers of people in

receipt of assistance are already far too high. Any increase in the number of

persons in receipt of ODSP benefits is taken as a cause for concern. The

assumption seems to be that increasing numbers must be a product of a

combination of an overly lenient application process and an increasing

willingness of people to seek social assistance benefits instead of pursuing

employment. Lower assistance rates are necessary to discourage a perceived

over-reliance on social assistance.

This argument ignores the fact that changes in other ‘social’ programs affecting

eligibility criteria, the duration of benefits or basic funding have had an impact

upon the number of people seeking ODSP or other forms of income

maintenance. Clearly, changes to eligibility for Employment Insurance or

reductions in benefits for workers’ compensation or other related programs will

limit the options available to people and force a larger portion of the population in

need of income support to rely on ODSP or OW. Rather than indicating any

increased willingness to take advantage of ODSP benefits, increases in the

number of persons in receipt of ODSP, is mainly due to the fact that many people

who were formerly eligible for or receiving other forms of income assistance are

increasingly being forced to rely on ODSP or OW alone.

14

Additionally, there is no evidence that more ‘generous’ social assistance rates

discourage people from seeking employment. In fact the opposite is true. Low

benefit levels have a negative impact on a person’s ability to seek and maintain

employment. Living below the poverty line means among other things that

housing is inadequate and precarious and many dietary requirements go unmet.

These factors amount to barriers to employment. This is particularly true for

persons with disabilities. 14 Meanwhile more adequate benefit levels encourage

greater social participation, improve outlook and promote employment.

B. Ensuring Social Assistance Benefits are Not Conditional on Training, Employment, Volunteering or Treatment. i. Overview

Article 28 (2) of the UN Convention obliges States Parties to ensure people with

disabilities have access to adequate training, counselling and financial

assistance. Therefore States Parties have an obligation to provide persons with

disabilities with both adequate social assistance benefits and access to training

and counselling. Given this dual obligation, ARCH asserts that is not open to

Canada to place undue conditions on the receipt of either, or impose coercive

measures that threaten a person’s access to either adequate benefits or training.

Article 27 of the Convention protects persons with disabilities from forced or

compelled labour. Any policy that compels a person with a disability to accept

any available employment whether suitable for them or not, in order to maintain

necessary social assistance supports, may be found to violate Section 2 of

Article 27 of the Convention. The goal cannot be the fastest route to employment.

The goal must be achieving suitable, meaningful and stable employment.

14 Harvey Stevens, Improving the Adequacy of Social Assistance Budgets: A Methodology for Pricing Budgets and a Rationale for Marking Current Rates More Adequate (Social Planning Council of Winnipeg, 2011)

15

The Ontario Human Rights Code prescribes that persons with disabilities be

accommodated to the point of undue hardship. Accommodation must be

individualized to ensure it is appropriate and effective. To impose a general or

universal requirement that persons receiving ODSP benefits must pursue

employment or training ignores the need to accommodate the individual needs of

persons with disabilities. It is not appropriate to impose similar obligations upon

people with very different types of disabilities. Undue hardship is a high standard

to meet. Accommodation cannot be denied simply because it might be

complicated or expensive.

Employment, volunteer work and training are all positive activities and all should

be encouraged. However, rather than punishing or threatening people who do

not participate in these activities, social assistance policy should offer incentives

to encourage individuals to participate. More importantly, the state has an

obligation to ensure that training programs are adequate and that the conditions

necessary to promote and facilitate employment for persons with disabilities are

in place.

At the very least, the additional daily costs associated with attending training or

employment must be reimbursed. People have to have an income sufficient to

cover the cost of the extra food, toiletries and clothing necessary to engage for

employment. In addition, it is also necessary to ensure that people with

disabilities have an accessible, reliable and affordable means of travelling to and

from training or employment activities, that they have access to the assistive

devices they require as well as the resources necessary to repair and maintain

these devices. The government must also be able to ensure that people with

disabilities will be properly accommodated in all training and employment

settings.

The Commissioners must also acknowledge the risks that people in receipt of

ODSP benefits face when they pursue employment. The transition from ODSP to

16

employment can be fraught with challenges. In particular, increased costs for

clothes and transportation combined with the loss of vital forms of support, may

result in employment leading to a reduced standard of living. People on social

assistance often transition to low paid jobs with few benefits. Therefore,

employment can mean the loss of coverage for the cost of medications and the

loss of access to funding for assistive devices or transportation. If employment is

to be promoted, policies must be put in place to ensure that necessary supports

for persons with disabilities remain in place so that employment leads to

improvements in living conditions, not a reduction. Persons with disabilities

cannot be expected to self-accommodate, in the sense that they are forced to

pay their own disability related costs in order to maintain employment – placing

them at a distinct economic disadvantage relative to fellow employees without

disabilities.

Policies that seek to coerce or punish people with disabilities for not pursuing

employment are based on two assumptions; the assumption that there are

actually decent jobs available for anyone who wants one; and the more

discriminatory assumption that the poor or the disabled are inclined to ‘take

advantage of the system” and therefore will take no action to improve their

situation unless forced to. Any policy based on such assumptions is

discriminatory since it perpetuates and reinforces unacceptable stereotypes that

portray the poor and persons with disabilities as lazy and dishonest. 15

Large portions of the population of persons with disabilities, no matter what the

disability, want to work. 16 This point was repeated at numerous consultations

and is reiterated by advocates representing a wide range of different disability

groups. There is, therefore, no need to compel people on ODSP to pursue

employment or training. Like anyone else, persons with disabilities will eagerly

15 Ontario (Disability Support Programme) v. Tranchemontagne 2010 ONCA 593 at para. 121. 16 Please see The Dream Team, Houselink and CAMH, “What Stops Us From Working? New Ways to Make Work Pay, by Fixing the Treatment of Earnings Under the Ontario Disability Support Program (June 2011) especially pp. 11-14.

17

pursue employment or training that offers stability and financial security as well

the opportunity to develop their skills and enhance their standard of living. ODSP

or other policies therefore must be based on the assumption that persons with

disabilities are willing to work and most would pursue any reasonable opportunity

to gain meaningful employment. Persons who do not pursue training or

employment are generally those who are unable to do so due to the impact of

their disability or environment upon them.

The Commission’s Discussion Paper outlines that the percentage persons on

ODSP who are involved in employment activities is identical to that of persons on

OW. Under both programs, 11 per cent of primary applicants have some

earnings from employment.17 This indicates that persons with disabilities are no

less likely to seek employment than persons receiving other forms of social

assistance, even though they have no obligation to do so and it is recognized

that finding suitable employment is more challenging when a person has a

disability.

Clearly, there is no need to force people receiving OSDP to seek employment. If

the goal is to increase the portion of persons with disabilities engaged in the

workforce it will be necessary to both expand the employment opportunities

available to persons with disabilities and eliminate the barriers to employment

they face. Putting pressure on people with disabilities to pursue employment

without doing anything to ensure that they have meaningful access to jobs would

not accomplish this goal.

ii. Treatment

Similarly, while it may appear to be sound policy, forcing people with mental

health or other disabilities to seek treatment or take medications, as a condition

17 A Discussion Paper: Issues and Ideas – June 2011 prepared for the Commission for the Review of Social Assistance in Ontario, Appendix 1: Profile of People Receiving Social Assistance in Ontario.

18

of receiving ODSP or other benefits, creates undue barriers for many persons

with disabilities. Singling out persons with a particular type of disability for

punitive measures is highly discriminatory. There are certainly other groups who

would benefit from treatment, such as smokers, for example. Yet, few suggest

that ODSP or other benefits should be withheld or reduced for people who refuse

to stop smoking. These measures appear palatable in a just society, we submit,

due to the high level of prejudice and stigma in our society faced by people with

mental health disabilities or addictions. Policies based upon or justified by

stereotypes or prejudice can never be appropriate.

Imposing coercive measures on persons with mental health disabilities or

addictions could undermine the client/case manager relationship and would most

likely lead to an increase in social dislocation as those denied benefits would

have to find other means of survival. The other factor to consider is that the

testing and monitoring processes would be expensive without offering clear

benefits to the individuals in question or society as a whole. 18

Most importantly, imposing such a condition on individuals with certain types of

disabilities, particularly those with mental health disabilities or addictions would

be discriminatory. As stated in Ontario (Disability Support Program) v.

Tranchemontagne, 2010 ONCA 593 at para. 121, “it is well known that addicts

and welfare recipients have been, and continue to be, the subjects of stigma and

prejudice”. The very idea that mandatory testing is necessary for recipients of

welfare reflects the stereotypical assumption that people on social assistance are

more likely to abuse drugs or alcohol. The fact is that most studies do not support

the idea of elevated rates of substance abuse problems among this population. 19

For ODSP or other social assistance legislation to create a distinction between

people with addictions imposing additional burdens or obligations upon them

compared to people with other disabilities, would be to discriminate against them 18 See Scott Macdonald, Christine Bois et al., “Drug Testing and Mandatory Treatment for Welfare Recipients,” International Journal of Drug Law Policy, vol. 12, no. 3 (September 2001): 249-57. 19 Tess Sheldon, Drug Testing and Mandatory Treatment for Welfare Recipients (unpublished paper) p. 3

19

by “perpetuating prejudice and disadvantage and by stereotyping” through

depriving them of benefits available to other disabled people”. 20

If the goal is to ensure the individual’s long-term well-being, treatment, whether it

be for addictions or other conditions, cannot be imposed through coercive or

punitive means. Tying the receipt of social benefits to treatment would be

coercive. Often a degree of stability and security, such as that offered by the

receipt of ODSP benefits, is required before a person is able to maintain a

treatment regime. Such a policy could make some feel that they had to continue

an ineffective or even harmful treatment because rejecting the treatment would

leave them without a means of financial support.

It is also far from clear that drug testing or mandatory treatment policies would

increase employment among recipients of social assistance benefits. There is

some question as to whether substance abuse is major barrier to employment.

There is certainly no evidence to suggest it is a greater barrier than any other

disability. Studies have revealed that about 70% of drug users are employed. 21

At the very least it is clear that physical and mental health problems, lack of job

skills, education and literacy levels, discrimination, stereotypes, and lack of

transportation are far more serious barriers to employment. 22 To initiate polices

that suggest that certain persons in receipt of ODSP benefits are ‘responsible’ for

their lack of employment income, when it is obvious that the elimination of the

true barriers to their employment is beyond their control, would be highly unfair

and discriminatory.

Treatment is a personal and private decision. Treatment impacts every person

differently and every person must be allowed to make their own choices about

whether they seek treatment and what type of treatment they receive, without

fear of reprisal or punishment should they not chose the type of treatment that 20 Ontario (Disability Support Programme) v. Tranchemontagne 2010 ONCA 593 at para. 121. 21 Drug Testing and Mandatory Treatment for Welfare Recipients p. 3 22 Drug Testing and Mandatory Treatment of Welfare Recipients p. 8

20

others might decide is appropriate for them. People with mental health disabilities

and addictions, particularly those living in poverty, already face numerous

challenges when it comes to seeking, receiving and continuing treatment. Adding

a coercive or punitive element to the situation is unlikely to achieve positive

results and risks deterring people from seeking the medical assistance they

require.

Even if treatment is effective, it does nothing to remove the existing barriers to

employment faced by people with disabilities. Treatment can create additional

barriers to employment, due to side effects. People with mental health disabilities

often face the same level of stigma and discrimination in the workforce whether

they seek treatment or not. The focus must be rather on the numerous barriers

people with disabilities face when attempting to engage in the workforce.

iii. Barriers to employment for persons with disabilities

As a States Party to the UN Convention, Canada is obliged to take action to

eliminate barriers to the equal participation of persons with disabilities in society,

to modify or abolish laws, regulations, customs and practices that constitute

discrimination against persons with disabilities, to refrain from engaging in any

act or practice that is inconsistent with the UN Convention and to take

appropriate measures to eliminate discrimination on the basis of disability by any

person, organization or private enterprise. 23 ARCH submits that, pursuant to

Canada’s obligations under the UN Convention, obligations that are similar to

existing obligations under the Charter as well as provincial and federal Human

Rights legislation, the Commission must focus on crafting recommendations

aimed at eliminating barriers to the full inclusion and participation of low income

persons with disabilities in their communities and in the workforce rather than

suggesting policies that penalize persons receiving benefits such as ODSP for

not participating in the workforce.

23 See UN Convention, preamble and Article 4 – general obligations (especially sections b, d, e)

21

A person’s environment has a huge impact on the experience and extent of

disability. Inaccessible environments create disability by creating barriers to

participation and inclusion. Polices and service delivery systems, including the

rules underlying service provision can also be obstacles. 24 Raising awareness

and challenging negative attitudes are often the first steps toward creating more

accessible and inclusive environments.

It must also be understood that negative attitudes create barriers that can have

long-term adverse effects on persons with disabilities. A study of ten countries

found that the general public lacks understanding of the abilities of people with

disabilities, particularly those with intellectual disabilities, and that negative

stereotypes and stigma persist, especially in relation to persons with mental

health disabilities.25 Persons with disabilities who have been exposed to negative

stereotypes since childhood often experience low self esteem and reduced

participation in a variety of public activities.

These negative impacts are only worsened by the experience of living in poverty.

The long term psychological impact of discrimination and stereotypes combined

with the impact of poverty and loss of hope must be factored in when assessing a

person’s ability to pursue employment or other activities. The individual or

personal barriers resulting from a long-term disability, particularly for those living

in poverty, may go well beyond the immediate impact of the disability itself. 26

In addition to personal factors, barriers can be obvious physical barriers within

the employment or training environment or they can be less obvious social or

attitudinal barriers that lead employers to assume persons with disabilities cannot

function effectively within an employment environment. Many employers,

particularly those in the lower wage sector, either cannot or will not cover the 24 World Report on Disability. p. 5. 25 World Report on Disability p. 6 26 World Report on Disability p. 6.

22

costs of necessary accommodations.27 There are also the additional hurdles a

person with a disability must overcome when dealing with basic issues such as

the physical strain or challenges of getting to and from work or meeting the

demands of a work schedule.

Until all these barriers have been eliminated or reduced, it would simply not be

reasonable to ‘demand’ that persons with disabilities pursue either employment

or training as a condition of receiving their benefits or to reduce entitlements if a

person feels unable to pursue employment. Such policies would be inconsistent

with the social or hybrid social model of disability and would also violate the basic

premise of Canadian human rights law and the UN Convention.

iv) Summary

When seeking employment persons with disabilities have to first overcome a

complex array of barriers, some due to the physical or emotional/psychological

impact of their disability upon them, while other barriers are created by social

attitudes, ignorance and prejudice. The exact impact these barriers may have on

an individual or their ability to seek and maintain employment will vary from

person to person and over time. It is clear that coercive or punitive measures,

while creating undue fear and stress for people already under extreme

pressures, will do nothing to lessen the impact of these barriers. More

27 ARCH receives many calls through our summary advice and referral service from persons with disabilities across the province of Ontario who cannot retain employment due to an employer’s failure to appropriately accommodate. ARCH has represented persons with disabilities and disability organizations in cases involving employment and the duty to accommodate. ARCH is currently representing a recipient of ODSP benefits before the Canadian Human Rights Tribunal who alleges to have been denied an employment opportunity due to his disability. ARCH has represented interveners in cases before the Supreme Court of Canada that have dealt with termination due to disability including: Honda Canada Inc. v. Keays, 2008 SCC 39, [2008] 2 SCR 362; and McGill University Health Centre (Montreal General Hospital) v. Syndicat des employes de l’Hopital general de Montreal, 2007 SCC 4; [2007] 1 SCR 161. ARCH has also represented interveners in cases before the Supreme Court of Canada in which that Court acknowledged historical disadvantage and exclusion of persons with disabilities: Battleford and District Co-operative Ltd. V. Gibbs, [1996] 3 S.C.R. 566 at para. 31; Eldridge v. British Columbia (Attorney General),[1997] 3 S.C.R. 625 at paras. 35 et seq.; Granovsky v. Canada (Minister of Employment and Immigration), [2001] 1 S.C.R. 703 at para. 68; Nova Scotia (Workers’ Compensation Board) v. Martin; Nova Scotia (Workers’ Compensation Board) v. Laseur, 2003 S.C.R. 54, [2003] 2 SCR 504 at para. 90.

23

importantly, such policies would be discriminatory. It would also be unreasonable

and highly unfair to penalize persons with disabilities for not entering the

workforce while clearly impeded by barriers to workforce participation,

stereotypical assumptions about persons with disabilities and, a labour market

that does not readily accommodate all disabilities.

It is clear that external societal barriers, including the stigma and prejudice noted

by the Court of Appeal for Ontario in Ontario (Disability Support Program) v.

Tranchemontagne, 28 and not the actions or choices of individuals with

disabilities are the main reasons persons with disabilities often remain

unemployed. The imposition of additional burdens or requirements upon persons

with mental health disabilities would replicate the exclusionary policies identified

in Tranchemontagne as being discriminatory and therefore unacceptable. ARCH

therefore urges the Commissioners to focus attention on the elimination of

barriers rather than the creation of coercive or punitive, and most likely

discriminatory, measures affecting persons with disabilities.

The question that social assistance policy should attempt to answer is not - how

can people on social assistance be forced into employment? Rather, this Review

should recommend answers to the question: “what can be done to eliminate

barriers and provide support to persons with disabilities searching for meaningful

employment that allows them to capitalize on their individual skills, abilities and

aspirations?”

C. Reliance on the AODA to Remove Barriers to Employment for People with Disabilities Throughout the Commission’s Discussion Paper prepared for this Review, there

are frequent references to the Accessibility for Ontarians with Disabilities Act

(AODA) which appears to be relied upon to ensure complete accessibility for

persons with disabilities in all sectors of the economy. The AODA is an important 28 Ontario (Disability Support Program) v. Tranchemontagne 2010 ONCA 593 at para 121.

24

step forward in achieving accessibility for Ontarians with disabilities. However,

the AODA and the Integrated Accessibility Standards (IAS), which relate to

employment, have very limited impact on workplace accessibility for persons with

disabilities.

For those employers who wish to be pro-active, the Employment Standards

contained in the AODA’s Integrated Accessibility Standard (IAS) provide useful

guidance concerning what should be done to accommodate persons with

disabilities. However, if an employer chooses to ignore the guidelines, the AODA

offers little that can be done to force that employer to comply. There is no

provision for public complaints about a particular employer’s failure to adhere to

the provisions of the legislation. The Employment Standards contained in the IAS

do not apply to enterprises employing fewer than 50 employees. This excludes

the vast majority of employers from compliance with a number of the AODA

provisions and the IAS. Indeed, Statistics Canada reports that over 95% of

businesses in Ontario employ fewer than 50 employees, making the impact of

this Standard negligible. Most importantly in many areas compliance with the

AODA is not even required for many years.

Another major concern with the Employment Standards is the lack of any real

enforcement mechanisms to ensure compliance with the Standards. As the

Standards are currently written, there is really no robust system in place that will

ensure meaningful investigations for those organizations covered by the

Standards; there is no significant public complaints process that would allow

members of the public to make complaints about non-compliance; and most

importantly, there are no ways for any member of the public who has been

denied accessibility under the Employment (or other) Standards to receive any

individual compensation or redress for a violation that they have experienced. In

this way, we believe that the Employment Standards have failed to accomplish

the promise that was made to make Ontario and its workplaces more accessible

for Ontarians with disabilities.

25

Indeed, the Standards offer far less than is currently legislated under the Ontario

Human Rights Code in terms of accessibility and accommodations for persons

with disabilities. This makes an application to the Human Rights Tribunal of

Ontario a much more effective way of rectifying an employer’s refusal to

accommodate an employee with a disability. The Human Rights Tribunal has

extensive remedial powers, offering those who have experienced discrimination a

wide range of potential remedies – from individual compensation to systemic

remedies requiring those who breach the Code to correct violations. However,

an application to the Human Rights Tribunal must be initiated by an individual,

who must go through a fairly lengthy and increasingly legalistic process.

D. The Need for Better Training and Education Supports as Well as Programs to Promote Social Inclusion and Remove Barriers to Employment.

i. Overview

Article 27 of the Convention obligates States Parties to enable persons with

disabilities to have effective access to general technical and vocational guidance

programmes, placement services and vocational and continuing training and, to

promote employment opportunities and to ensure that reasonable

accommodation is provided to persons with disabilities in the workplace.

ARCH encourages the Commission to focus on ensuring that low-income

persons with disabilities have access to effective optional training programs

guided by professionals with an understanding of the needs of persons with

disabilities. ARCH also urges the Commission to prioritize the elimination of

barriers to employment for persons with disabilities and the assurance that

persons with disabilities are properly accommodated in the workforce.

26

ii. Adequacy of training programs

Throughout ARCH’s consultations, the issue of the inadequacy employment

supports through the ODSP and other programs was a common theme. There

was general consensus that current programs do little to prepare persons with

disabilities for meaningful jobs that respect their individual talents, abilities and

aspirations. Employment training was often found to be of little use and some

programs seemed to be based upon stereotypes and discriminatory assumptions

about the limited abilities of persons with disabilities. Overall people found the

current system of employment services and supports fragmented, difficult to

navigate and challenging to manage to the extent that many commented that the

services created barriers to employment rather than removing them.

Individuals noted that many training programs refuse to accept clients on the

assumption that their disability rendered them ‘unemployable’. It appears that

funding for employment services forces service providers to reject those people,

such as persons with disabilities, who require extra time or effort, on the basis

that the cost of providing necessary support and accommodations will be greater

than the funding provided. Others commented that training program personnel

often had little experience with or sensitivity to the individual needs of persons

with disabilities or how to accommodate those needs. Certainly few found

programs that were stimulating, productive or could realistically lead to

meaningful employment.

iii. Persons with intellectual disabilities

During ARCH’s community consultation process, persons with intellectual

disabilities voiced strong objections to the use of segregated programs such as

‘sheltered workshops’ or ‘day programmes/life skills training’ that promote

segregation instead of inclusion and that often involve menial and repetitive

activities, and exploitive pay rates. Advocates are calling for an end to

27

segregated employment practices like sheltered workshops because they do not

promote inclusion and have damaging effects on individual quality of life,

reinforce poverty, limit abilities, assume limited potential for advancement and

growth and limit transition to more inclusive opportunities. 29 Persons with

intellectual disabilities desire more inclusive training and employment programs

that offer them the opportunity to enter into mainstream employment earning the

same wages as others.30 Currently the employment rate for persons with

intellectual disabilities is less than 30%. Not surprisingly poverty rates among this

community are high – 75% of the working age population of persons with

intellectual disabilities.31 The fact is that with proper training, supports and

accommodation for individuals and employers, a far larger portion of the

population of persons with intellectual disabilities could be working.32 In

particular studies maintain that the concept of supported employment, which

offers a range of customized supports to an individual to facilitate community

employment for competitive wages, is beneficial to both persons with intellectual

disabilities and taxpayers. Studies have demonstrated that every dollar invested

in the provision of supported employment services saves more than that in

reduced social assistance costs.33 As prescribed in the UN Convention,

members of this community have the right to work on an equal basis with others.

This is a right that States Parties have an obligation to promote.

ARCH urges the Commissioners to turn to the Canadian Association for

Community Living, “Achieving Social Inclusion and Economic Inclusion: From

Segregation to “Employment First” (June 2011)” as well as the submissions of

the Ontario Disability Employment Network and those of Community Living

Ontario for more detail on these issues.

29 National Disability Rights Network, Segregated and Exploited: A Call to Action! The Failure of the Disability Service System to Provide Quality Work (2011) (see http:///www.napas.org/en/resources/publications.hmtl ). 30 Canadian Association for Community Living, Achieving Social and Economic Inclusion: From Segregation to “Employment First” (June 2011). P. 7. 31 See Achieving Social and Economic Inclusion 32 See Achieving Social and Economic Inclusion 33 Achieving Social and Economic Inclusion. p. 10

28

iv. Persons with mental health disabilities

During ARCH’s community consultation process, persons with mental health

disabilities voiced similar concerns with training and employment programs that

segregate them and offer training (such as sprout growing) that is of little or no

use when it comes to finding meaningful employment. Others argued that

segregated training programs for persons with mental health disabilities resulted

in stigmatizing the participants, making it even more difficult to overcome barriers

to employment.

Programs that focus on only basic skills or menial activities merely help

perpetuate the stereotype that persons with disabilities lack ability and cannot

pursue anything beyond entry level unskilled minimum wage jobs. It is clear that

many persons with disabilities have abilities, education, skills and experience.

What they require is help developing those skills and assistance in locating jobs

that utilize and respect those skills.34

In addition, career development for persons with disabilities must be supported

on an on-going basis, even after a person has found employment. Support must

be provided to help them continue to develop their career goals and enhance

their skills to allow them to find a better job. Removing employment supports or

other supports, such as drug cards or assistance with travel costs, too early may

result in people being trapped in an entry level job even once they are ready to

move to better employment.

Some policies meant to support the employment of persons on ODSP appear to

be limiting people’s ability to secure long-term employment. During ARCH’s

community consultations individuals noted that some programs offer employers

financial assistance to employ a person from a training program for a few

34 For a more detailed discussion see World Report on Disability, Chapter 8: Work and Employment. pp. 235-51.

29

months. The goal may be to get people into a job in the hope that the employer

would keep them employed after the financial incentives end. The actual result is

that few employers keep the person employed once the financial assistance

comes to an end, especially if new funding is available for hiring a new person.

The result is that employers hire a string of people for short term positions, but

very few are able to secure a permanent job.

As noted by Cameron Crawford, greater labour force participation and access

can be achieved through precarious labour markets that result in low-paid,

insecure jobs. However, such access can leave a person with inadequate income

and benefits, or personal resources or time to participate and be valued in the

social dimension of community life, and lead effectively to social isolation. 35 To

achieve any positive long-term results, people have to be able to access jobs that

have meaning to them and that offer both security and opportunities for

advancement.

Training programmes must focus on preparing people for jobs that might actually

offer a degree of autonomy and financial independence, even if this requires

longer training periods and better qualified trainers. Only then can a job really

offer hope of a path out of poverty rather than simply offering a way to reduce the

‘burden’ that person represents to the social assistance system.

Finding employment that is meaningful begins with developing each individual’s

particular skills and goals. Programs that treat all participants the same and

assume that everyone should acquire the same skills rarely allow participants to

pursue their own goals. People with disabilities in particular need to be able to

cater their employment goals to their own abilities.

35 See Cameron Crawford, Towards a Common Approach to Thinking about and Measuring Social Inclusion (Toronto: Roeher Institute, 2003); and Andrew Jackson, “Good Jobs in Good Workplaces”: Reflections on Medium-term Labour Market Challenges, Toronto; Caledon Institute of Social Policy, 2003).

30

v. Working more closely with employers

Another common frustration is that employment training often seems to bear little

relation to the kinds of jobs that are actually available. Almost everyone

consulted urged the government to engage more directly with businesses and

employers to discern how many jobs may be available in the near future and

what skills employees may actually need. There is little point in training people

for jobs that do not exist or teaching them skills that are no longer relevant in the

job market. It does not seem to be reasonable to initiate policies that penalize

recipients of social assistance for not pursing employment opportunities if there

are few suitable jobs available.

In addition, it is critical that government address the unwillingness of many

Ontario employers to provide necessary accommodations for employees with

disabilities and enforce the duty to accommodate.

vi. Funding for accommodations

Persons with disabilities often require a variety of supports ranging from relatively

minor and inexpensive interventions to complex and costly ones. To the extent

that any of these needs remain unmet, a person with a disability will face barriers

to employment and full inclusion. In the context of offering training and

employment support to persons in receipt of ODSP benefits, support must be

offered throughout the entire cycle from training to employment. Diverse

responses are required; even two individuals with the same impairment may

have very different experiences and needs. 36 People with physical disabilities

may require attendant services, special equipment or assistive devices, or the

installation of ramps or elevators. Persons with other disabilities may require

modified schedules, more time to complete assignments, or frequent breaks. A

36 World Report on Disability. p. 22

31

necessary part of supporting the employment aspirations of persons with

disabilities in receipt of social assistance is the provision of funding to ensure all

necessary supports are available and accessible.

Article 26 of the UN Convention calls for:

appropriate measures, including through peer support, to enable persons with disabilities to attain and maintain their maximum independence, full physical, mental, social and vocational ability, and full inclusion and participation in all aspects of life.

The Article also calls on States Parties to organize strengthen and extend

comprehensive habilitation and rehabilitation services and programs, which

should begin as early as possible, based upon multidisciplinary assessment of

individual needs and strengths, including the provision of assistive devices and

technologies. Unmet rehabilitation needs can limit activities, restrict participation,

cause deterioration in health, increase dependence on others for assistance, and

decrease quality of life. 37

In addition, Article 19 of the UN Convention obliges States Parties to ensure that

persons with disabilities have access to a range of in-home, residential and other

community support services, including personal assistance necessary to support

living and inclusion in the community and to prevent isolation or segregation. In

Ontario under-funding of these vital support services has acted as a major barrier

to the full inclusion of persons with disabilities in society.

Attendant Services

It is clear that persons who require attendant services are at a distinct

disadvantage when it comes to achieving full social inclusion. Under-funding of

public programs offering attendant services means that few people receive

anything close to the number of hours of service they require, particularly

individuals who cannot afford to purchase additional private services. Often

attendant services assist a person with the necessary activities of daily living,

37 World Report on Disability, p. 95.

32

such as getting out of bed, dressing, bathing, toileting and food preparation.

These activities often take up all available attendant services. There are rarely

hours left over to allow a person to leave their residence even to shop, let alone

attend job interviews or training programs. Until the number of hours of attendant

services a person can access is increased substantially, it will impossible for

many people who require these services to engage in employment or other

activities outside their home.

Direct Funding

Direct Funding offers individuals a greater degree of flexibility and control over

their attendant services. However, it is difficult to qualify for this program and

currently there is a waiting list of over 5 years to access Direct Funding. Clearly,

until additional funding is provided for this program, it is not a realistic option for

most persons with disabilities.

Assistive Devices

Assistive Devices are essential for many persons with disabilities to participate in

most social activities. Unfortunately, even if a person qualifies for funding to help

purchase an assistive device, many low-income people find it extremely difficult

to maintain their assistive devices. 38 Financial assistance to cover the cost of

maintenance and repairs is not always readily available. Repairs on wheelchairs,

for instance, can be extremely expensive; even replacing a tire can cost more

than most people on ODSP benefits have available. Therefore, it cannot be

assumed that a person who uses an assistive device will always have access to

a fully functional assistive device.

Disability Transit Systems and Transportation

Transportation provides independent access to employment, education, and

health care facilities as well as to social and recreational activities. Without

accessible transportation people with disabilities are more likely to be excluded

38 World Report on Disability. pp. 106-108

33

from services and social contact. 39 Yet persons with disabilities note there

remain numerous safety, accessibility and affordability issues related to

transportation in Ontario. Everything from unplowed roads in winter to poorly

maintained sidewalks to the impact of construction projects can create unsafe or

inaccessible conditions for wheelchair users, people with visual impairments or

anyone with mobility impairment. 40

Disability transit systems throughout the province, such as Wheel-Trans in

Toronto, are under-funded and are having difficulty responding to the increasing

level of demand for the service. 41 The result is that there is rarely a guarantee

that transportation will be available when a person needs it. People report being

frequently late for work or stranded for hours after work waiting for the local

disability related transit service to take them home. Delays such as these often

have other repercussions for people who may have particular toileting needs or

medication schedules, compounding the negative impact of gaps or delays in

service. Transportation systems, therefore, are not sufficiently accessible or

reliable to ensure that people with disabilities can get to and from work at the

appropriate times.

Public transit systems in Ontario, where they exist, are not entirely accessible to

person to persons with disabilities. In more remote communities there is no

public transit or at least no accessible system that can get them to and from

employment at appropriate times. Even where public transit exists, for persons

living on ODSP benefits or receiving minimum wage, the cost of using the service

on a regular basis can be prohibitive.

39 World Report on Disability. pp. 170-71. 40 A Safer City for All pp. 35-36. 41 A Safer City for All pp. 33-34.

34

vii. Accommodation by Employers

Even if appropriate accommodations are provided by all training programs,

employers offering low wage jobs are rarely willing or able to provide

accommodations that might cost more than person’s wages. The calls ARCH

receives indicate that many persons with disabilities, even those with higher paid

professional positions, still face major challenges obtaining the accommodations

they require at work. Many are afraid to ask for accommodations for fear that the

request may jeopardize their employment. Many face disciplinary action related

to poor performance that could be explained by a lack of necessary

accommodation.

Unless funding to cover the costs of accommodations is made available to

employers, persons with disabilities will always be at a distinct disadvantage in

the job market, regardless of their abilities or potential. These barriers are

increased for persons who must also rely on services such as attendant services,

assistive devices or special transportation services. The situation is even more

challenging for new Canadians who may face language and cultural barriers as

well as barriers related to a disability.

viii. Claw-back of employment income

People on ODSP find the 50% claw-back of employment income particularly

onerous. Given that the wages earned by people on ODSP are often low and

may not include benefits of any kind, it is particularly distressing to individuals

who find employment, to discover that half of their income will be recouped by

ODSP if they wish to remain on that system. If public policy wishes to encourage

people on ODSP to seek employment, then this major disincentive to work must

be removed. 42

42 For more detail see “What Stops Us From Working? Pp. 10-12

35

Given the challenges faced by people with disabilities when it comes to finding

and maintaining employment, it is discouraging for them to receive such a small

return from their efforts. The general consensus among recipients of ODSP is

that they should be able to keep 100% of any earned income at least up to the

point that their total income from all sources reaches the “poverty line’ (defined

here as the income required to provide for the necessities of life using recent and

realistic price calculations; it has been suggested that a sum of between $500 to

$700 should be the portion of employment income recipients of ODSP should be

able to retain before ‘claw-back’ begins). A staggered claw-back could be

applied to income in excess of a basic poverty line income, although even then

individuals should be able to retain a reasonable portion of their income.

ix. Summary

While every encouragement and form of support should be offered to recipients

of ODSP benefits to promote their employment, it is clearly unreasonable to

assume that persons on ODSP will be able to easily enter or re-enter the

workforce. There may simply be no suitable jobs available, or at least none that

provide necessary accommodations. Under-funding of a wide range of services

vital to persons with disabilities also means that some people are not able to

leave their homes to pursue employment while others have no access to reliable

means of transportation to take them to and from work. It must also be

acknowledged that many persons with disabilities are not able to work full-time,

even with accommodations. Therefore, even those persons who locate

employment may not receive enough income to support themselves, especially if

they must cover extra expenses related to their disability.

36

E. There Should Be No Distinctions Made Between People With Disabilities Who Are “Able to Work” and Those Who Are “Unable to Work” ARCH submits that an individual’s access to employment services and supports

should not be limited or denied based upon the severity of their disability.

Article 27(1) of the UN Convention requires States Parties to prohibit

discrimination on the basis of disability with regard to all matters concerning all

forms of employment, including conditions of recruitment, hiring, employment,

continuance of employment, career advancement and safe and healthy working

conditions. Creating distinctions on the basis of assumptions about the ability of a

person with a disability to pursue employment would violate this provision and

also would be discriminatory according to the Ontario Human Rights Code. Such

a distinction would also violate the Charter. 43 It is also unclear what would be

accomplished by such a distinction. The only purpose of such distinctions is to

treat people differently based on the nature or impact of their disability. There can

be, therefore, no legitimate non-discriminatory purpose of dividing the population

of persons with disabilities in receipt of ODSP benefits into those who can work

and those who cannot. It is far from clear that such a distinction could even be

made effectively.

ARCH, therefore, strongly recommends that distinctions between those persons

with disabilities who are able to work and those who are unable to work be

avoided. The distinction is of no real value and rarely reflects reality. Although

there may be a certain population of persons with disabilities who may never be

able to pursue employment, for the majority of persons with disabilities their

inability to pursue employment is either a temporary or episodic product of their

disability, the result of an inaccessible or hostile environment or the lack of

proper accommodations. At the same time, those people who may be considered

‘able to work’, may not be able to work at all times. The impact of a disability

43 Nova Scotia (Workers’ Compensation Board) v. Martin; Nova Scotia (Workers’ Compensation Board) v. Laseur, [2003] 2 S.C.R. 504.

37

upon a person can fluctuate and vary greatly over time. As stated by the Alliance

for Equality of Blind Canadians:

“the employability of people with disabilities is a dynamic interaction that exists along a continuum determined by a number of factors, including the health, age, education, skills and past experience of the individual, as well as the supports available to facilitate their employment, the degree of accommodation available in the workplace, and the job opportunities available in the labour market.” 44

There is, therefore, no bright line distinction between persons with disabilities

who are able to work and those who are unable to work. In the majority of cases,

the most that be said is that, at any given point in time, some people in receipt of

ODSP benefits may be more likely to be able to pursue employment for at least

certain periods of time and other people will be less likely to be able to pursue

employment. This does not mean that people in the first group will not

experience periods when they are unable to work. Nor does it mean that people

in the second group would not be able to work if all the proper conditions were

met and all necessary accommodations provided.

The distinction between ‘able to work’ and ‘unable to work’ suggests other forms

of discrimination. Would the designation of ‘unable to work’ mean that a person

would no longer be eligible for training programs? Would the purpose of

designating a person ‘able to work’ be to impose conditions, such as compulsory

training programs, on the receipt of benefits? An earlier category of

“permanently unemployable” persons was part of the former Family Benefits Act.

Many people with disabilities were and continue to be opposed to such a

designation.

People are not rendered able or unable to work by their disability alone. The very

question of whether someone is ‘able to work’ or ‘unable to work’ demonstrates a

clear lack of understanding of the interaction between individual disability and the

44 Alliance for Equality of Blind Canadians, Strengthening Social Assistance in Ontario (A Brief in Response to A Discussion Paper: Issues and Ideas) (August 2011). See Item 8.

38

social and physical environment. Often external environmental factors, such as

the provisions of proper accommodations or the levels of funding for disability

related expenses, have a major impact on the degree to which a person is able

or unable to pursue employment. The question is not whether an individual is

able to work or not. The question is to what extent do social, economic or

environmental factors hamper or promote a person’s ability to seek and maintain

employment.

The best way to accommodate persons with disabilities is to avoid attempts to

impose a particular ‘identity’ upon them. Instead policy should promote flexibility,

offering support to those persons who feel able to pursue employment, without

penalizing or segregating those who may not be able to work, realizing that the

same person may be in one group now and the other group later.

F. There Should Be No Distinctions Made Between People with “Severe” and “Not Severe” Disabilities.

The World Disability Report notes that health conditions, living conditions and

disability interact in numerous ways and can have a different impact upon each

individual. Chronic health problems often occur together and the relative impact

of any particular condition can vary greatly over time, can vary by age, social

status and geographical location. The environment in which a person lives can

have a huge effect on the extent and impact of a disability. 45 Even changes in

the weather can affect the impact of conditions such as arthritis. This is all to say

that setting up criteria to differentiate between ‘severe’ and ‘not severe’

disabilities would be nearly impossible. Even if it were possible to make such a

distinction, the distinction has no value and attempting to classify disabilities in

this manner may very well be discriminatory. Currently to qualify for ODSP

benefits a person must be accepted as having a substantial disability. This

criterion should remain sufficient.

45 World Report on Disability, pp. 32-37

39

Creating a social assistance system that distinguishes between persons with

‘severe’ disabilities and those with ‘not severe’ disabilities would be fraught with

many of the same challenges as the ‘able to work’/’not able to work” distinction

above. Such a distinction would be contrary to human rights law as it has

developed in the area of social assistance and would violate the basic elements

of our Human Rights legislation and the UN Convention. Deciding on the

boundary between severe and not severe disabilities would compel the medical

profession and social assistance personnel to make arbitrary and even

discriminatory assumptions about what constitutes a ‘not severe’ disability.

The distinction seems to suggest that persons with severe disabilities would be

deemed ‘unemployable’ and therefore ineligible for employment supports or

training, while those with not severe disabilities would be obliged to pursue

employment in order to retain benefits. However, some people with what could

be called ‘severe’ disabilities may nevertheless be able to function in employment

or other settings, while some supposedly ‘not severe’ disabilities may still greatly

restrict a person’s activities. More importantly, the nature and impact of a

disability can vary over time, so a disability that is ‘not severe’ now, may very well

become ‘severe’ later or visa versa. Therefore, any attempt to create separate or

distinct forms of assistance based on the severity of a disability will most likely

have to rely on artificial, arbitrary and potentially discriminatory distinctions with

no real meaning. More importantly such distinctions would be almost entirely

based upon medical criteria which ignore the social and environmental factors

that contribute to disability. A person may have a disability that medical

practitioners describe as non-severe yet that person may still face major barriers

to employment or social inclusion due to the interaction between their medical

condition and environmental factors.

Such a process could also promote the assumption that some people,

particularly the ‘unemployable’, are truly disabled and therefore ‘deserving’

recipients of social assistance supports, while others are not really disabled and

40

therefore, ‘undeserving’ or at least less deserving than those with more serious

disabilities. Such distinctions are not productive.

Trying to make these distinctions will require a more complex and challenging

application and assessment process – increasing the costs associated with

administering ODSP without increasing the benefit to recipients. Overall it is

unclear what benefits or cost reductions could be gained by creating these

distinctions.

3. CONCLUSION

Situating our analysis within the theoretical framework of the social model of

disability and the legal framework of general Canadian legislation such as the

Canadian Human Rights Act, Ontario’s Human Rights Code and the Canadian

Charter of Rights and Freedoms as well as the more specific provisions of the

United Nations Convention on the Rights of Persons with Disabilities, ARCH has

outlined a number of key recommendations in relation to the provision of social

assistance and related services to low-income persons with disabilities in

Ontario. We briefly highlight below the key elements of those recommendations:

Adequate Standard of Living

1. The Commissioners must ensure that low-income persons with disabilities

are able to access social assistance that provides them with an adequate

standard of living that offers them a degree of safety, stability and security.

Only once people can provide for the necessities of life will they be able to

focus on becoming engaged in their communities or pursing employment.

2. It is not productive to make any distinctions between people who are ‘able

to work’ and those who are ‘unable to work’ or between persons with ‘severe’

disabilities and those with ‘non-severe’ disabilities. These distinctions are of

very little value. The nature and impact of a disability can vary over time or

41

from person to person – so it is simply not possible to categorize people

according to these criteria. To do so would only help to perpetuate

discriminatory assumptions and stereotypes about persons with disabilities.

Employment, Training and Treatment

3. Persons with disabilities are entitled to an adequate standard of living

whether they chose to engage in training programs, treatment or employment

activities or not. Under no circumstances should the receipt of social

assistance be conditional on individuals agreeing to accept treatment. No

particular group of persons with disabilities should be targeted for treatment

or have other ‘conditions’ placed upon their ability to receive social assistance

benefits.

4. Training programs must be offered to persons with disabilities on a

voluntary basis. These training programs must be effective and offer real

hope to persons with disabilities by opening doors to meaningful employment

that engages the specific talents and abilities of individuals with disabilities.

Employment support must be catered to individual needs and must be on-

going to ensure that people with disabilities can progress from entry level

positions to more challenging opportunities.

5. Physical, social and economic barriers to the full inclusion of persons with

disabilities are the key reason persons with disabilities are unable to pursue

employment. People in receipt of social assistance cannot be penalized for

being unable to overcome these barriers on their own.

Barriers to Social Inclusion and Employment for Persons with Disabilities

6. Numerous barriers to employment persist despite the protection of human

rights codes or legislation such as the AODA. Many workplaces remain

42

inaccessible to persons with particular disabilities and many employers refuse

to provide necessary accommodations.

7. Many persons with disabilities rely on various forms of assistance, such as

attendant services, assistive devices, transportation services, and various

other forms of government funding to provide for their disability related needs.

Without these programs many people are unable to achieve inclusion or

pursue employment.

Based upon these recommendations, ARCH is hopeful that the Social Assistance

Review will offer the opportunity to recreate social assistance in Ontario to

ensure that low-income persons, particularly those with disabilities, are provided

with the financial and other support they require to live with dignity as valued

members of society able to participate in effective training, fulfilling volunteer or

meaningful employment activities of their choice to the extent they are able.

ARCH further hopes that the Commissioners will be able to use this opportunity

to highlight to need for all levels of government to ensure that existing barriers to

the full inclusion of persons with disabilities are eliminated.