A Powerful Letter from Two Legal Experts to Prime Minister Trudeau, Endorsed By Every Provincial Trial Lawyers Association in Canada, Urges the House of Commons to Ratify The Senate’s Amendments to Bill C-22 (the Canada Disability Benefit Act), Including the Ban on Private Insurance Companies from Clawing Back the Canada Disability Benefit

Accessibility for Ontarians with Disabilities Act Alliance Update United for a Barrier-Free Ontario for All People with Disabilities https://www.aodaalliance.org aodafeedback@gmail.com Twitter: @aodaalliance

May 30, 2023

SUMMARY

With the impressive endorsement of every Trial Lawyers Association in Canada, Toronto lawyers Steven Muller and Hart Schwartz have written Prime Minister Trudeau, calling for the House of Commons to ratify the Senate’s recent amendments to Bill C-22, the proposed Canada Disability Benefit Act. Their powerful letter is set out below. The AODA Alliance fully endorses it.

Three long years ago, the Trudeau Government promised to lift people with disabilities out of poverty by creating a new social benefit, the Canada Disability Benefit. However, the House of Commons needs to ratify recent amendments to Bill C-22, the Canada Disability Benefit Act, if this law is to pass Parliament now. If the House of Commons does not do so, there will be months of delay, leaving impoverished people with disabilities languishing as the Senate is forced to reconsider this bill again.

Earlier this week, an open letter to Parliament from 37 organizations also called for the House of Commons to immediately ratify the Senate’s amendments to Bill C-22. This is especially important, as this is National AccessAbility Week. Today’s letter to Prime Minister Trudeau from lawyers Muller and Schwartz, endorsed by all of Canada’s provincial Trial Lawyers Associations, ramps up the pressure on Prime Minister Trudeau even more!

The Muller/Schwartz letter focuses especially on one vital amendment that the Senate wisely made to Bill C-22. That amendment stops a private insurance company from clawing back the Canada Disability Benefit from people with disabilities who are receiving long-term disability benefits under a private insurance plan. If the House of Commons rejects that amendment, then the new Canada Disability Benefit, which is intended to lift impoverished people with disabilities out of poverty, could instead end up in the bank accounts of rich insurance companies.

Without this amendment that the Senate wisely passed, Bill C-22 will have a horrible loophole that will hurt any people with disabilities who are receiving long-term disability insurance. The Muller/Schwartz letter urges Prime Minister Trudeau to side with impoverished people with disabilities.

In the Senate, two senators, Senator Marc Gold and Senator Brent cotter, tried to argue that this amendment was somehow unconstitutional because the Federal Government has no authority here. Muller and Schwartz give a clear and compelling explanation why the Federal Government has clear constitutional power to pass this carefully tailored and limited amendment. It is important to remember that Senators Cotter and Gold were speaking for the Trudeau Government, when they addressed the Senate on this Bill. Senator Cotter was the Government’s official sponsor of the bill. Senator Gold is the Liberal party’s Government House Leader in the Senate. Their job is to say what the Trudeau Government wants them to say. It is also noteworthy that Senator Cotter ended up voting to pass Bill C-22 on Third Reading, including the amendment that prevents private insurance companies from clawing back the Canada Disability Benefit from people with disabilities who are receiving private long term disability benefits.

All of Canada’s provincial Trial Lawyers Associations cannot be wrong on this! We call on all political parties to commit to ratify all the Senate’s amendments to Bill C-22.

For more on this issue, check out:

* The May 29, 2023, open letter to the House of Commons from 37 community organizations and groups, calling for immediate ratification of the Senate’s amendments to Bill C-22.
* AODA Alliance Chair David Lepofsky’s May 29, 2023 guest column in the Toronto Star’s Metroland Newspapers. * A summary of the Senate’s amendments to Bill C-22.
* The AODA Alliance website’s Bill C-22 page.

Text of the May 30, 2023, Letter to Prime Minister Justin Trudeau from Toronto Lawyers Steven Muller and Hart Schwartz

From: Steven Muller
Sent: Tuesday, May 30, 2023, 11:36 AM
To: David Lepofsky
Subject: Muller/Schwartz Send Message to Trudeau Endorsed by All Canadian Provincial Trial Lawyers Associations

From: Steven Muller
Sent: Tuesday, May 30, 2023 11:11 AM
To: justin.trudeau@parl.gc.ca
Subject: Canadian Provincial Trial Lawyers Associations Endorse Senate Amendment: No Insurance Claw Backs in Bill C-22
Prime Minister, Justin Trudeau, we are asking yourgovernment to support the adoption of Bill C-22 as amended by the Senate.
On December 3rd, 2022, you issued a statement on the International Day of Persons with Disabilities. You stated:
“When persons with disabilities have equal opportunities to work, have same quality of service from their government, can access the supports and programs they need to enjoy the same quality of life as everyone else, we build stronger communities, a stronger economy, and a stronger country. Today, and every day, I encourage all Canadians to work together to help make our country more inclusive, equitable, and accessible place to call home.” We agree with these statements.
Bill C-22, as amended, includes a critical protection. The Senate amendment prevents private providers of disability benefits from clawing back the new Canada disability benefit. It is not a benefit if the impoverished disabled have no ability to receive the support they would otherwise be entitled to. On this issue, we would hope that the government would side with those with disabilities and not with insurance companies. The Federal government should be able to protect its money.
We support the amendments that the Senate has adopted. The amendment that prevents claw backs by providers of disability insurance, in our view, are not unconstitutional.The federal spending power has been recognized in numerous cases as a sound source of, and basis for, federal jurisdiction. Itslegitimacy as a federal head of power is now beyond dispute.
Imposing a prohibition on third parties, including insurance providers, is in pith and substance a part of the federal spending power. This is because the insurance providers are not really strangers to the arrangement between the federal benefit provider and the claimant. They have, by contract, inserted themselves into that relationship by deducting the amount of the federal benefit from their financial obligation. Just as the federal government, under the spending power, can earmark whowillreceive the benefit, it can also identify persons and entities (i.e., insurance providers) whowill notreceive the benefit, either directly or indirectly.
The federal ability to prevent claw backs would also be supported as an ancillary power as, without this protection, the federal purpose of providing supplementary support would be undermined. Federal legislation that prohibited insurance companies from including, as a term and condition of their contracts, that an insured person have a genetic test, or disclose genetic test results, was upheld by the Supreme Court of Canada in 2020. This was because the prohibitions on the insurance companies aligned with Parliament’s remedial purpose of preventing discrimination. So, too, the amended Senate Bill C-22 aligns with Parliament’s purpose of ensuring the new disability benefit gets to the intended beneficiary.
Canadian lawmakers have a constitutional obligation to ensure they do not create unfair or unequitable negative outcomes for those in minority positions. Senator Kim Pate’s comments in the Globe and Mail dated May 24th, 2023 are instructive: “Rather than see provinces and insurance companies enriched at the expense of the very people the benefit is being designed to assist, we think, better for the government to err on the side of constitutional protections of those most vulnerable.”
Finally, we urge you the Government of Canada to be a leader in helping to lift those with disabilities out of poverty by passing the Canada Disability Benefit Act as amended by the Senate. To reject the Senate’s amendments would, in our view, lead to a Canada Disability Benefit Act that would be inequitable, not inclusive and would fail to achieve its salutary goal. Yours truly,
Steven Muller
Vice President of Litigation at Share Lawyers,
Lexpert Ranked Lawyer 2023 in Long-Term Disability
and
Hart Schwartz
Adjunct Professor, Osgoode Hall Law School
This message is endorsed by all Canadian Provincial Trial Lawyers Associations which include:

Atlantic Provinces Trial Lawyers Association
The Ontario Trial Lawyers Association
Saskatchewan Trial Lawyers Association
Alberta Civil Trial Lawyers Association
Trial Lawyers Association of British Columbia