The Government of Ontario, via the Ontario Disability Support Program Act 1997 systematically discriminates against disabled people on ODSP. The ODSP Act violates the Ontario Human Rights Code and the Canadian Charter of Rights and Freedoms. Prove me Wrong, Dalton McGuinty can’t.

Be the first person to prove the ODSP Act does not violate the Charter and the Code and I’ll pay you $1,000. To prove me wrong you must clearly explain how the ODSP Act 1997 fully complies with the Charter and the Code.

Community and Social Services Minister Madeleine Meilleur can’t prove the ODSP Act fully complies with the Charter and the Code. The Ontario Government cannot prove the ODSP Act does not discriminate against disabled people on the Ontario Disability Support Program. ODSP staff use the delegated power of Minister Madeleine Meilleur to enforce ODSP discrimination against disabled people. ODSP discrimination is a political policy choice legislated by the Harris Conservatives and continued by Dalton McGuinty’s Liberals. Prove Me Wrong, Dalton Can’t.

Dalton McGuinty’s Liberal Government is actively enforcing ODSP discrimination against disabled people. Prove me Wrong, Dalton Can’t.

Urgent political action is needed. Every Liberal MPP in Dalton McGuinty’s Government is accountable for ongoing ODSP discrimination. ODSP discrimination against disabled people will continue until Liberal MPPs compel Dalton McGuinty to stop it.

Detailed Argument

The essential eligibility criteria to be on the Ontario Disability Support Program is that the Government of Ontario must agree that the person is medically disabled.

The ODSP Act Schedule B, Section 3.1 states: “Income Support shall be provided to a person with a disability,...”

The ODSP Act Schedule B, Section 4.(1), (a) & (c) states:
“4.(1) A person is a person with a disability for the purposes of this Part if,

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

(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.”

Under the ODSP Act only a medical professional can verify a person is ‘a person with a disability’.

The ODSP Act part VII section 46.(1) states: “For the purpose of subsection 4.(1) of the Act, the following persons may verify that a person has a substantial mental or physical impairment and its likely duration:
1. A member of the College of Physicians and Surgeons of Ontario
2. A member of the College of Psychologists of Ontario
3. A member of the College of Optometrists of Ontario
4. A member of the College of Nurses of Ontario who is a registered nurse and who holds an extended certificate of registration...”

Financial need is a secondary and somewhat flexible ODSP eligibility criteria. The ODSP Act exempts significant income and assets from ODSP financial eligibility decisions.

The ODSP Act Schedule B Section 5.(1) [a] & [c] states: “No person is eligible for income support unless:
[a] the person qualifies under section 3.(1)
[c] The budgetary requirements of the person or any dependents exceed their income and their assets do not exceed the prescribed limits as provided for in the regulations.”

The ODSP Act sections 41-43 prescribes over 4 pages of income exemptions. ODSP Asset exemptions allow a disabled person to financially qualify for ODSP even though his/her total real assets exceed ODSP limits.

The ODSP Act, Part IV Sec 28 prescribes over 20 categories of exempt assets. A person on ODSP can possess up to $100,000 of exempt real assets and still obey ODSP asset limits.

The Ontario Human Rights Code applies to the ODSP Act. Section 47 of the Code protects disabled people on ODSP.
The Ontario Human Rights Code Section 47.(1) & (2) states:
“47.(1) Act Binds the Crown – This Act binds the Crown and every agency of the Crown.”

“47.(2) Act has Primacy over other Acts – where a provision in an Act or Regulation purports to require or authorize conduct that is a contravention of Part 1, this Act applies and prevails unless the Act or Regulation specifically provides that it is to apply despite this Act.”

The Ontario Government did not specifically exempt the ODSP Act from the Authority of the Ontario Human Rights Code.

Every Ontario Government prescribed barrier and restriction that applies only to disabled people on ODSP is discrimination because of medical disability. The Ontario Disability Support Program Act is the single largest source of discrimination against Ontario’s Disabled People.

For example, Thomasson is a disabled organic market gardener on ODSP. As a person Thomasson is free to claim all Revenue Canada approved business expenses. As a disabled person on ODSP, Thomasson is denied various normal business expenses for ODSP net income calculations. The result is that Thomasson cannot hire the vegetable pickers he needs, to generate sufficient income, to responsibly support himself and escape ODSP.

ODSP Directive 5.7 Farm Income November 2006 page 7 states:
“Non-Approved Farm Expenses…

Wages to Employees: Wages paid to employees of the farm are not approved expenses. Related payroll expenses e.g., income tax, Employment Insurance (EI), Canada Pension Plan (CPP), Workplace Safety and Insurance Benefits (WSIB), are also not approved expenses. The recipient may deem this expense as necessary; however, it is not an approved expense. Employee wages cannot be used to reduce the recipient’s net business income for the purposes of determining ODSP income support amount. If
If the recipient claims wages and related expenses, it should not be allowed as a farm expense.”

THE ODSP ACT QUASI-JUDICIAL PUNISHMENT PROCESS

The ODSP Act legislated a unconstitutional quasi-judicial prosecution and punishment process. Every person punished by a ODSP “Director’s Decision” was discriminated against under the Ontario Human Rights Code and the Charter. Prove Me Wrong, Dalton McGuinty can’t.

The ODSP Act Director’s Decision process denies the disabled defendant:
- the right to notice of charges before conviction
- the right to counsel before conviction
- the right to defend before conviction
- the right to plead innocent before conviction
- the right to examine and cross-examine witnesses and evidence before conviction
- the right to a public hearing before conviction

The Charter, Section 7 states: “Everyone has the right to life, liberty, and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.”

The Charter, Section 15(1) states: “Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination...”

The Charter Section 11(d) states: “Every person charged with an offence has the right:
(d) to be presumed innocent until proven guilty according to the law in a fair and public hearing by an independent and impartial Tribunal.”

The ODSP Act empowers the Director and delegated staff to use statutory power of decision to judge and punish a disabled ODSP recipient with the force of law without obeying the rule of law.

The Statutory Powers Procedure Act Section 1 Interpretation states:
“1. (1) In this Act,
‘statutory power of decision’ means a power or right, conferred by or under a statute, to make a decision deciding or prescribing,
(a) the legal rights, powers, privileges, immunities, duties or liabilities of any person or party, or
(b) the eligibility of any person to receive, or to the continuation of, a benefit or license, whether the person is legally entitled thereto or not;”

The “Director” is not just a single manager. The “Director” is also a class of bureaucrats across Ontario. The Director, appointed by the Minister, administers and enforces the ODSP Act by delegating power to ODSP staff across Ontario. The Ontario Government via the ODSP Act gives the Director and delegated staff the power to investigate, judge, and punish a disabled ODSP recipient before informing him/her of ODSP accusations and evidence against the disabled person. The disabled person is never allowed to defend as innocent before being punished by a “Director’s Decision”. In practice many ODSP staffers who are income support specialists and above, exercise the power of the director.

The ODSP Act Schedule B Definitions states:
“2. In this Act,
‘Director’ means the Director of the Ontario Disability Support Program appointed by the Minister;”

The ODSP Act Schedule B Section 37.(1)-(4)states:
“37.(1) The Director shall exercise the powers and duties conferred or imposed on the Director by this act and the regulations.
(2) If the Director is absent or unable to act or the office of the Director is vacant, the employee of the Ministry designated by the Minister has and shall exercise the powers and duties of the Director.
(3) The Director, may, in writing, authorize a person or class of persons to exercise any of the powers or duties of the Director under his/her supervision and direction.
(4) A decision made by exercising the Director’s powers or duties under subsection (3) shall be deemed to be a decision of the Director.”

Unless immediately appealed ODSP Director’s Decisions and Internal Review Decisions are final and equal in force of law to decisions by the Ontario Superior Court. The prescribed quasi-judicial ODSP process does not obey the rules and responsibilities of the Ontario Superior Court, nor the Statutory Powers Procedure Act. ODSP Bureaucrats exercise the force of law without obeying the rule of law. For example, the initial Director’s Decision is made without notification of intent to decide and without allowing any form of defense by the disabled person. The Director is only required to give notice of a decision that may be appealed. Prove Me Wrong. Dalton McGuinty can’t.

The ODSP Act Schedule B Section 19 states:
“The Director shall give notice to the applicant or recipient of a decision that may be appealed and the notice shall advise the applicant or recipient that he or she may request an internal review of it.”

The ODSP Act Schedule B, Section 16.(2) & (3) states:
16.(2) A decision determining that an overpayment exists shall be final and enforceable against the Recipient as if it were an order of the Ontario Court (General Division)…

16.(3) …The Decision of the Tribunal shall be final and enforceable against the recipient as if it were an order of the Ontario Court (General Division).”

The Ontario Court (General Division) was renamed the Ontario Superior Court of Justice on April 19, 1999

The initial ODSP “Director’s Decision” changes the disabled person from a innocent defendant to a guilty appellant without allowing the disabled person to defend as innocent before conviction by “the Director”.

The ODSP Director’s Decision prosecution process excludes the defendant, the defendant’s lawyer, defense witnesses, the news media and the public. ODSP staff use quasi-judicial administrative process to judge the disabled person in absentia, in secret, without independent observers and without a recorded transcript. The disabled person is always wrongly convicted before he/she is allowed to defend against ODSP accusations.

The ODSP Act “Notice of Decision” is vital information. The Notice of Decision informs the disabled person that he/she has been punished under the ODSP Act by an appealable decision of the Director. The 10 calendar day deadline to apply for an Internal Review of the Director’s Decision starts automatically when the Notice of Decision is deemed received 3 calendar days after mailing. The Director is not required to confirm delivery of the Notice of Decision to the disabled person. The Director is only required to mail the Notice of Decision. Standard ODSP practice is to send Director’s Decisions by regular mail. The ODSP process allows the 10 day appeal deadline to expire without ever verifying the disabled person received the information.

The ODSP Act Section 56.(1) states:
“A Notice under section 19 of the Act shall be in writing and shall be delivered to the applicant or recipient personally or by prepaid regular mail to the individual’s last known address.”

The ODSP Act Schedule B Section 50 states:
“If notice is given by ordinary mail it shall be deemed received on the Third Day following the date of mailing.”

The disabled person must immediately appeal the Director’s Decision by requesting an Internal Review of the Decision before the 10 calendar day appeal deadline expires or else the Director’s Decision is final and cannot be appealed.
The ODSP Act Section 58 (1) states:
“The prescribed time for requesting an Internal Review is 10 days from the day the Decision is received or deemed to have been received under section 50 of the Act.”.

The ODSP Act Schedule B Section 20.(3) (a), (b) states:
“20.(3) A Director’s Decision that may be appealed is final
(a) when the prescribed time for requesting an internal review expires, if no internal review is requested within that time; or
(b) on the earlier of the day the prescribed time for requesting an internal review expires and the day the internal review is completed, if an internal review has been requested.”

The Internal Review application must provide reasons against the Director’s Decision yet ODSP does not fully disclose the reasons and evidence used to convict the disabled person until after the Internal Review has been completed and the disabled person has been approved for a Social Benefits Tribunal hearing at which the disabled person must defend as a guilty appellant.

The standard ODSP Notice of Decision letter, page 2 states; “All decisions can be reviewed internally. An internal review is an efficient and informal review of a decision to ensure that it is consistent with the Legislation, Regulations and Policy Directives.”

During the Internal Review ODSP bureaucrats exercise the force of law without obeying the rule of law.

The ODSP Act Schedule B Section 22.(4) states:
“The Statutory Powers Procedure Act does not apply to an internal review.”

ODSP staff must complete the Internal Review within 10 calendar days.
The ODSP Act Section 59.(1) states: “The prescribed time for completing an internal review is 10 days from the day the Director receives the request for the Internal Review.”

The Internal Review Decision is vital information for the disabled person. The Internal Review Decision informs the disabled person that he/she has been judged guilty by the Ontario Government and must appeal to the Social Benefits Tribunal within 30 days or the decision is final. Standard ODSP practice is to mail the Internal Review Decision, in which case, it is deemed received after 3 calendar days. The 30 day Social Benefits Tribunal appeal deadline begins automatically. The disabled person must appeal the Internal Review Decision to the Social Benefits Tribunal within 30 days or the Internal Review Decision is final and cannot be appealed. The ODSP quasi-judicial appeal process allows the Tribunal appeal deadline to expire and the decision to become final without first verifying the disabled person received the Internal Review Decision.

ODSP Act Schedule B, Section 30 states:
“If the Director’s Decision is not appealed to the Tribunal within the time required under this Act, no further appeal lies to the Tribunal or a court with regard to that decision.”
ODSP Act Section 61.(1) states: “For the purpose of subsection 23 (1) of the Act, the prescribed time for appealing a decision of the Director is 30 days from the day the Director’s decision is final under clause 20 (3) (b) of the Act.”
The Internal Review Decision exercises the force of law against the disabled person. The Director is not required to verify delivery of the Internal Review Decision to the disabled person. The Director is only required to mail the Internal Review Decision.

The ODSP Act section 60.(1) states: “A decision made on an internal review shall be in writing and shall be delivered personally to the applicant or recipient or sent by regular mail to his or her last known address.”

Both the Initial Director’s Decision and the subsequent Internal Review Appeal Decision are equal in force of law to a decision by the Ontario Superior Court unless appealed immediately to the Social Benefits Tribunal. At the Tribunal the disabled person is denied the presumption of innocence. ODSP only permits a disabled person to defend, in a private hearing, after he/she has been deemed guilty by a quasi-judicial Director’s Decision and Internal Review Appeal.

The ODSP Act Schedule B Section 23.(10) states: “The Onus lies on the appellant to satisfy the tribunal that the decision of the Director is wrong.”

The Social Benefits Tribunal violates the discovery and disclosure rights of the disabled defendant. Section 5 of the SPPA permits disclosure and discovery prior to a hearing IF the Tribunal has made rules for disclosure under Section 25 of the SPPA. The Social Benefits Tribunal has chosen not to make any disclosure rules and therefore defendants cannot exercise their discovery and disclosure rights while they are preparing their appeal. The Social Benefits Tribunal choice to have no disclosure rules effectively denies the disabled defendant the basic rights of discovery and disclosure of the case against him/her.

For example ODSP Act Section 65.(2) legislates unequal treatment and discrimination against the disabled appellant.
“65.(2)...A party who intends to produce written or documentary evidence or written submissions...at an oral hearing shall provide copies of that evidence or those submissions to the other parties and the Tribunal,
(a) in the case of the appellant at least 20 days before the hearing,
(b) in the case of the Director and any other parties at least 10 days before the hearing.”

The ODSP Act Section 68(6) repeats the act of discrimination for reconsideration hearings.

The Social Benefits Tribunal can only do what the Ontario Government instructs the Tribunal to do via legislation and directives. The entire quasi-judicial Social Benefits Tribunal process is a political choice prescribed by the Ontario Government. The Ontario Works Act governs the proceedings of the Ontario Disability Support Program Social Benefits Tribunal.

The Ontario Works Act Section 60(2) states: “60.(2) The Tribunal shall conduct those hearings and carry out those duties that are assigned to it by or under this Act or any other Act.”

For example the Ontario Government chose to deny disabled people the right to a public Social Benefits Tribunal hearing. The Ontario Government legislated that all Social Benefits Tribunal hearings must occur in private.
The Ontario Works Act section 66.(1) states: “66.(1) Despite the Statutory Powers Procedure Act, all hearings of the Tribunal shall be heard in private.”

The ODSP Act quasi-judicial punishment process is unconstitutional and must be struck down.