Delays and Uncertainties Pervade Regarding the Promised Canada Disability Benefit, Over Six Weeks After Parliament Passed It

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

August 3, 2023

SUMMARY

When will people with disabilities who languish in poverty start to receive the promised Canada Disability Benefit? How much will they get each month from the Federal Government? Which people with disabilities will qualify for the Canada Disability Benefit? Will provincial or territorial governments or private insurance companies claw back any or all of the Canada Disability Benefit? What will be in place to protect people with disabilities from those clawbacks? Exactly how, when and where can people with disabilities apply for the Canada Disability Benefit?

Even six weeks after Parliament finally passed Bill C-22, we do not know the answers to any of these important questions. In this update, we provide you with some important reflections and up to date information. We also set out an impressive guest column in the July 12, 2023 Ottawa Citizen. It recounts the success that disability advocates had in getting the Senate to strengthen Bill C-22. The AODA Alliance was an active participant in that effort. Our efforts are all documented on the AODA Alliance website’s Bill C-22 page.

MORE DETAILS

Lessons Learned from the Disability Advocacy Campaign Over Bill C-22

Where Are We Now?

It is, of course, great that Parliament has passed Bill C-22. Yet, there are important, hard lessons that the disability community can and should learn from the effort over the past year to get Bill C-22 strengthened, as it made its way through Parliament.

For three years, the Justin Trudeau Government promised to deliver a new Canada Disability Benefit – a once-in-a-generation reform to Canada’s social safety net – with the aim of lifting people with disabilities out of poverty. We applaud this.

The Federal Government spoke in grand, promising, and commendable terms about what they were seeking to do. For example, on June 14, 2023, Minister Carla Qualtrough, the Bill’s sponsor in the House of commons, said this:

“Each time I have risen in the House on Bill C-22, I have begun by declaring that no person with a disability in this country should live in poverty…”

She said the same thing in every major speech she made in Parliament on this Bill. Her statement is one of those rare, profound, long term political statements that aims to speak to the present and the distant future. It might remind us of when President John F. Kennedy committed the U.S. to land a person on the moon.

We also applaud such a vision. However, we have learned that we cannot be lulled by such encouraging visionary statements and good intentions into thinking that our community’s hard work is mostly done.

We regret that the final Bill C-22 that Parliament passed does not ensure that this visionary goal will ever be reached for anyone. As written, it ensures that it will not lift thousands of people with disabilities out of poverty, those who are not working age. For working-aged people with disabilities, it does not even ensure that any of them will ever be lifted out of poverty. If they are initially lifted out of poverty, there is no protection against them sliding back into poverty in the future, with a change in ministers or of governments. We still don’t know how much the Canada Disability Benefit will be, or who will be eligible for it or how much of it will end up being clawed back by provincial or territorial governments or by private insurance companies.

Bill C-22 is Still Not in Force

It is great news that Bill C-22 quickly got Royal Assent back on June 22, 2023. However, that does NOT mean that Bill C-22 is in force. It is not in force until the Federal Cabinet proclaims it is. Cabinet has a full year to do that. If it does not do so within that year, then the Bill automatically comes into force one year after the Bill received Royal Assent.

As far as we have seen, the Federal Government has not proclaimed the Bill in force. It has not even announced when it will do so. At the current rate, the Trudeau Government could easily wait out the entire year before proclaiming it in force.

What does that delay mean for those people with disabilities who need the Canada Disability Benefit now? It means that the timelines which the Senate added to the Bill at our request and at the request of several other disability advocates does not start to run. Cabinet has one year to enact the regulations under the Bill needed to get the Canada Disability Benefit started. However, that important one year clock that we won does not start ticking until the Federal Cabinet proclaims the bill in force. By delaying the Bill’s proclamation, the Trudeau Government is simply buying more time for it to meet that deadline. The Government agreed in June to add that deadline to the bill, but did not then say that it planned on frustrating that deadline by delaying its proclamation in force of the bill.

Over the past year, while Bill C-22 was before the House of Commons, Minister Carla Qualtrough and her Liberal colleagues – like her Parliamentary secretary, Irek Kusmierczyk – repeatedly pressed for Bill C-22 to be passed as quickly as possible, without amendments that might strengthen it, so that money could speed to needy people with disabilities more quickly. Now that the Bill has been passed, that political rhetoric rings somewhat hollow. The Government itself, and not any opposition parties, or senators, or disability advocates is solely responsible for the current delay.

Trudeau Government’s Repeated Call to Trust Minister Carla Qualtrough

As the Bill made its way through Parliament, the Trudeau Liberals urged the disability community to simply trust the Government, and not to worry about the fact that the Bill guaranteed people with disabilities nothing specific. The Trudeau Government especially emphasized that we all should trust them, because the Minister in charge of the Bill was Carla Qualtrough. Minister Qualtrough has a disability, voiced a strong commitment to disability rights, and passionately invoked the disability rights movement’s maxim: “Nothing about us without us!”

Throughout the past year, it was the Trudeau Government’s strategy to position Carla Qualtrough as a centrepiece of their political marketing approach with the disability community. More than once we were told that this is a once-in-a-generation moment for change, anchored to this particular minister.

For our part, we warned that we should never be left to simply trust the Government. We cautioned that Minister Qualtrough would not be in office forever, and that under this Bill, the disability community will have to plead again and again with one federal Cabinet after the next to ensure that the Canada Disability Benefit is maintained, and not reduced. Moreover, we reminded one and all that Minister Qualtrough is only one member of the Liberal caucus, no matter how dedicated, passionate and supportive she is.

Our concerns quickly turned out to be quite justified. Within one short month of Bill C-22 receiving royal Assent, Carla Qualtrough was shuffled out of the Cabinet post that is responsible for implementing the Canada Disability Benefit. She will not lead the development of the regulations that will implement the Bill. She will not be in charge of negotiating with the provinces and territories to prevent clawbacks. She will not spearhead negotiations with Canada’s Finance Minister over the size of the Canada Disability Benefit. She will not have responsibility for ensuring that the voices of people with disabilities are central to the development of the details of the Canada Disability Benefit.

Instead, Carla Qualtrough was shuffled into the role of Minister of Sport (Canada). By any measure, this is a demotion. It certainly is not a promotion. Her replacement, Kamal Khera, is not a high-profile, experienced individual within the Liberal caucus. We wish her well, but she will basically be starting from scratch as a Minister responsible for this file, replacing Carla Qualtrough who had been steeped in it since 2020, if not earlier.

Expect Still More Delays

Making this worse, Minister Qualtrough told Parliament – and the public – time and again over the past year, that it would take about one year for “the regulatory process” (i.e. the process of developing the regulations needed to implement the Canada Disability Benefit.) She told Canada that it would be during that process that the decisions would be made over the size of the Canada Disability Benefit, and over who will be eligible for it.

Yet, right near the end of Bill C-22’s journey through Parliament, we were told that it would be something like 18 months before the Canada Disability Benefit would be paid. From the perspective of impoverished people with disabilities who need this money now, a one-year wait inflated to an 18-month wait is even more devastating. This is another reason why it would have been very unwise to simply trust the Trudeau Government.

This delay has led some disability advocates to organize an online petition to Parliament. It calls on Parliament to create an emergency disability benefit to fill the long gap while impoverished people with disabilities continue to wait for the Canada Disability Benefit. We encourage one and all to sign that petition.

The Government is now engaging in a consultation with the disability community over the Canada Disability Benefit. It announced its plan for this process in very general terms on July 24, 2023, under the headline: “Starting the engagement process to design the Canada Disability Benefit Regulations.”

This announcement does not commit to the “co-creation” of the regulations about which some Government MPs and disability advocates (such as Disability Without Poverty) spoke in Parliament. It does not commit that the disability community will have an equal seat at the very table where the decisions will be made, the definition of “co-creation” for which Disability Without Poverty advocated. We warned over the past year that the Trudeau Government was not committing to such a co-creation process.

We believe that the Government should make this a very short process. It should not become yet another source of delay.

In this consultation process, we as a disability community do not need to show that people with disabilities live in poverty, or that living in poverty is awful. We do not need forums to tell stories about individual suffering.

We, instead, need a narrow focus on specific things like: the amount of the Canada Disability Benefit; who will be eligible; how to apply; and how to appeal a refusal. We need the Government to now make public an Options Paper that lists options for each of these major issues, so that people have something concrete upon which to comment. We need the Government to now make public the results of its three years of discussions with the provincial and territorial governments over clawbacks. We need to know the Federal Government’s action plan for ensuring that private insurance companies can never clawback the Canada Disability Benefit.

There is another reason why this needs to be a very short consultation. The Federal Government said earlier that it had been conducting a major consultation with the disability community on the Canada Disability Benefit, both before and during the Bill’s journey through Parliament. We don’t need that effort duplicated. We have seen other governments use lengthy consultations to delay action. We don’t want any risk of that happening here.

Has the Mainstream Media Let Down the Disability Community?

We have seen, yet again, that the mainstream media has too often done a poor job of covering leading disability issues; in the case of the Accessible Canada Act in 2019, the media gave scant attention (with a few salient exceptions), to the fight that several of us waged in the senate to get Bill C-22 strengthened. We succeeded against tough odds, despite the Trudeau Government’s concerted effort to get some disability organizations to ask the Senate to pass the Bill without any amendments at all. The Ottawa Citizen column, set out below, is proof positive that this is a newsworthy issue meriting more attention in the media.

An Unexplained Puzzle about Bill C-22

There is a very strange, unexplained puzzle about Bill C-22. It has cast a shadow on this Bill from the start.

Why is it that we still don’t know how much the Canada Disability Benefit will be, as long as three full years after the Trudeau Government promised it, and even weeks after Parliament passed Bill C-22? Why is it that the Government has not budgeted a dime for actually paying this benefit? Parliament must approve that spending in its budget.

It is shocking that the Government has still not publicly priced and budgeted for this new Canada Disability Benefit. How can a government promise to do something if it has not worked out the cost of doing it, at least to some extent? It has been our experience for years that whenever anyone asks any government to pass a new law or adopt a new program or policy, the very first penetrating question that politicians will ask is: “How much will this cost?” That is not a surprise. It is expected.

If any Cabinet minister went to a meeting of a Cabinet to propose some new law or project, their fellow Cabinet ministers would immediately ask – “what it will cost?” Those other ministers are busy pressing for their own priorities, and are trying to get more money from the government’s budget for their pet projects.

It makes no sense to us that a Minister like Carla Qualtrough could try to get the Trudeau Government’s Cabinet and caucus to agree to let her bring forward Bill C-22 in 2021 – and once again in 2022 – without first asking this simple and obvious question, and getting a clear answer. Yet, at every point in Bill C-22’s journey through Parliament, whenever Minister Qualtrough was asked about it, she said the Government had not yet decided on the size of the Canada Disability Benefit. She said that the amount of the Canada Disability Benefit will be decided after the Bill is passed, when the Government is making regulations to implement it. She also told Parliament that the Government has not yet approved a budget for the Canada Disability Benefit itself.

At first, we found this hard – if not impossible – to believe. It makes no sense at all.

However, there is a possible explanation. We have no direct proof of this. It is just an educated attempt to figure this out.

It may be that two years ago, Carla Qualtrough got the green light from the Trudeau Cabinet to bring forward Bill C-22 to Parliament on a strong commitment that the Government would not decide how much it will spend on the Canada Disability Benefit until after the Bill was passed. In exchange, Cabinet may have told her that the Bill must leave the Federal Government and Cabinet totally free to decide how much or how little to spend on it.

If that is the case, then Carla Qualtrough might well have decided that it was better to bring forward an empty Bill like Bill C-22 (which decides nothing about the amount of the Canada Disability Benefit), than bring forward no Bill at all. She would be in a better position to leverage money out of Cabinet for the Canada Disability Benefit after the Bill was passed by Parliament, than if she first tried to get Cabinet to approve a Canada Disability Benefit program with a full budget, and only after that, to bring forward a Bill.

If this is correct, then it totally explains why the Trudeau Government was so vehemently opposed to making any amendments to Bill C-22 either in the House of Commons or the Senate. It also explains why Carla Qualtrough was trying so hard over the past year to justify the Bill as intentionally designed with no specifics in it at all, and to get disability advocates to support the idea of passing the bill “as is” and with no amendments..

Over the past year, Liberal MPs and Senators kept saying that amendments were a bad thing because they would slow down the Bill and hurt impoverished people with disabilities who need the Canada Disability Benefit right away. However, we now know that the Government is not so worried about that. As we discussed earlier in this Update, the Trudeau Government has still not even proclaimed the Bill in force. Instead, the real reason they opposed any amendments (like one that ensured that the Canada Disability Benefit would be adequate to lift people with disabilities out of poverty), would tie the Government’s hands – and that would violate the conditions for giving Carla Qualtrough the green light to introduce the Bill into Parliament.

At times over the past year, the Government had even said that it needed the Bill passed quickly so it could start developing the regulations. We called them out on that inaccurate claim. The Government could do most of the work on those regulations before the Bill passed. However, let’s take the Government at its word. If it needed the Bill enacted before it could develop the regulations, then it surely must need the Bill to be immediately proclaimed in force. Otherwise, the bill gives the Government no power to do anything. Yet, as we have explained, the Government has been in no hurry to proclaim the Bill in force.

If we have correctly diagnosed the situation, then the Trudeau Government would have easily predicted by the summer of 2022 – if not sooner – that they would have a political problem that they would have to deal with, after they introduced the Bill. They must have known that, at least some, if not many, within the disability community would read this short bill and quickly realize that Bill C-22 guaranteed absolutely nothing. We’d would ask for Parliament to make amendments to strengthen it.

The Trudeau Government must have predicted that it would need to come up with a political strategy to oppose amendments to the Bill, while still making strong public commitments – like Carla Qualtrough’s repeatedly proclaiming that no person with disabilities in Canada should ever live in poverty. What could they do?

Their political solution appears to heavily promote a commitment to the disability community’s maxim: “Nothing about us without us!” They could come to the disability community pledging a strong commitment to the post-Bill process of developing regulations. They could seek organizations within the disability community whom they could bring into their “inner circle,” and give them a feeling that they will be central in this process. They could heavily market Minister Qualtrough as a minister that people with disabilities can and should personally should trust on this.

They could try to get those people to then make the Government’s case for why the Bill should pass without any amendments. Then the Government could simply quote those members of the disability community, and say that the Government is just trying to do what the disability community wants.

Again, we have no inside information documenting all of this. It is just our genuine attempt to look at all the facts we know, and to draw reasonable conclusions. However, our analysis does completely explain and make sense of the puzzling events of the past year. This cries out for the media to unleash its capacity for investigative journalism!

We welcome feedback on what others think might explain this puzzling situation. Write us at aodafeedback@gmail.com

Lessons We Can Learn

From all of this are important lessons. Here are some. We welcome feedback including other lessons to learn:

1. Never reduce your disability rights advocacy when a government urges the disability community to simply trust them to do the right thing. If anything, that “Trust us” mantra should make us worry, and should lead us to redouble your efforts.

2. Don’t place all hopes in any one politician, no matter how much you feel that they support the disability rights cause. None are politically or biologically immortal.

3. If you cannot win the improvements to a Bill that we need from the House of Commons, take your case to the Senate. Senators can be freer to strengthen a Bill than are Members of Parliament in the House of Commons. We succeeded in winning improvements to Bill C-22 in the Senate in 2023, and to the Accessible Canada Act in 2019. In both cases, the Government got some voices from the disability community to publicly fear that any amendments to a Bill in the Senate could lead to the Bill dying on the order paper. In the cases of both Bill C-22 and the Accessible Canada Act, those fears turned out to be entirely unfounded.

Ottawa Citizen July 12, 2023

Originally posted at https://ottawacitizen.com/opinion/malhotra-and-rasic-how-canadas-senate-helped-improve-disability-benefits

How Canada’s Senate helped improve disability benefits
With Bill C-22, Canadians have been well served by two houses of Parliament working together to make lives better.

Author of the article: Ravi Malhotra, Emily Rasic

The recent passage of Bill C-22, the Canada Disability Benefit Act, is a striking example of how parliamentarians, working together cohesively, can greatly improve society for persons with disabilities. Bill C-22 creates a federal income benefit to reduce poverty and support the financial security of people with disabilities.

In recent years, the Senate has played an increasingly important role in proposing amendments to key legislative initiatives.

It has gained new respect through its prominent action on a wide range of contested public policy issues, including legislative reforms in areas as diverse as cannabis regulation, reforming RCMP members’ collective bargaining to include issues of harassment and workplace wellness, and the legalization of sex trade work. By holding hearings from informed experts on contemporary issues and proposing constructive amendments that may be debated by the House of Commons, the Senate facilitates and allows otherwise marginalized voices to be heard.

A more robust and productive dialogue between the Senate and the House of Commons allows for bills before Parliament to be reviewed, debated and revised. Perspectives and nuance that may have been missed in the House of Commons are potentially amplified by senators less beholden to partisan loyalties. The result benefits not only Canadians as a whole, but particularly individuals with disabilities.

Why is Bill C-22 so important? People with disabilities have long experienced deep poverty as barriers in transportation and education have made it difficult for many to secure full-time employment. Too often, this results in people with disabilities facing major challenges to thrive as constant financial worries regarding essentials such as food and rent weigh heavily on the mind.

Recently, disability rights advocates have successfully used the Senate to propose significant reforms to Bill C-22. First, the Senate voted to prevent insurance companies from clawing back the disability benefit from people with disabilities who receive long-term disability benefits. This was backed by many trial lawyers and disability rights advocates who work daily on these issues.

Second, it advocated for the creation of a right of appeal for Canada Disability Benefit applicants.

Third, it required Cabinet to consider a variety of factors in determining the amount of the Canada Disability Benefit, including: the additional cost of living experienced by people with disabilities; the intersectional barriers experienced by women, racial minorities and other disadvantaged groups living with a disability; and Canada’s international human rights obligations. This dynamic approach provided a nuanced and accountable method of determining the fairest rate.

Fourth, it set a one-year deadline to enact regulations to start paying out the Canada Disability Benefit.

Fifth, it set a date for when the Bill comes into force.

Upon review by the House of Commons, nearly all the amendments proposed by the Senate were accepted. The exception was the provision that precluded insurance companies from clawing back the Canada Disability Benefit from people receiving long-term disability benefits. While this unfortunate development requires further advocacy at the provincial level and has been justifiably criticized by prominent disability rights activists, the fact remains that the Canada Disability Benefit Act was significantly improved by dialogue between the Senate and the House of Commons.

Including the voices of people with disabilities is strong evidence of the constructive role of the Senate and gives meaning to the disability rights motto: nothing about us without us.

Addressing poverty experienced by persons with disabilities requires far greater political commitment, including greater empathy and understanding by Canadians. Nonetheless, in this instance, Canadians have been well served by the Senate and the House of Commons working together to improve the lives of Canadians with disabilities.

Ravi Malhotra is a full professor at the Faculty of Law, Common Law Section, University of Ottawa and is writing a book about disability accommodations and time. Emily Rasic is completing her final year at the Faculty of Law, University of Ottawa, and is a research assistant in Mahotra’s study of disability accommodations and time.