Simon's Megalomaniacal Legal Resources

Ontario Disability Support Program (ODSP) Legal Guide
(20 June 2021)

Chapter 6 - Information Eligibility

1. Overview
   (a) General
   (b) Comment
   . Overview
   . The Administration Attitude towards Eligibility Information
   . Advocacy
   
2. Initial and On-going Eligibility Information Required
   (a) Basics
   (b) Improvident Disposition of Assets
   
3. The Legal Problem: Information versus "Verification of Information" versus "Evidence"
   (a) Overview
   (b) s.5 Act
   (c) s.14 Regulation
   (d) s.12 Regulation
   (e) Reg s.16(3)
   (f) Consents to Disclose and Verify Information
   (g) Freedom of Information and Protection of Personal Privacy Act (FIPPA)
   (h) Summary
   
4. Eligibility Review Officers
   (a) Overview
   (b) EROs and On-going Eligibility
   
5. Home Visits
   (a) Overview
   (b) Nature of a "Home Visit"
   (c) Verbal Questions During a "Home Visit"
   (d) Refusal of a "Home Visit"
   
6. Practical Issues Related to Providing Information
   (a) No On-Going 'Duty to Meet'
   (b) Cheque-'Holds'
   (c) Unclear Requests for Information
   (d) Substitute Forms and Sources of Information and "Proof"
   (e) Where Disclosure to Ontario Works is also Disclosure to ODSP
   
7. Summary

________________________________________

IMPORTANT NOTE

Any monies or things of value received by or to be received by a recipient or any member of their benefit unit should be considered from several perspectives. These include: 1. reporting duties (see Ch.6: "Information Eligibility"), income treatment (see Ch.7: "Income Rules") and asset treatment (see Ch.8: "Asset Rules"). It is an extremely common mistake to ignore any or all of these considerations, often resulting in disentitlement and/or overpayment assessments (see Ch.11: "Director Decisions") and in some cases fraud prosecution (see Ch.14: "Fraud Prosecutions").

1. Overview

(a) General

Many of the other chapters in this program deal with the primary "conditions of eligibility" that applicants and recipients must satisfy to get and maintain eligibility for ODSP income support, including: income and asset eligibility, categorical eligibility, status as a "person with a disability", Ontario residence, etc.

Effectively however another free-standing and separate "condition of eligibility" exists which relates to - and over-arches - all primary conditions of eligibility. This is what I call "information eligibility": the providing [by the applicant/recipient and (most) members of their benefit unit] to the Director of the information and "verification of information" required to establish these primary "conditions of eligibility":

Act s.5(1)
No person is eligible for income assistance unless,

.....

(d) the person and the prescribed dependants provide the information and the verification of information required to determine eligibility including,

(i) information regarding personal identification, as prescribed,

(ii) financial information, as prescribed, and

(iii) any other prescribed information; ...

Fact situations involving this issue occur whenever an applicant receives the so-common "failure to provide information" disentitlement Notices. While these cases are often closely intertwined with allegations that the applicant has 'failed to prove' or 'does not meet' the primary conditions of eligibility it is important to know that the legal ground of disentitlement is quite distinct.

A recent court case Rea v Simcoe County has focussed on this distinction and also made the specific consequences of non-compliance with information duties more onerous than for other types of non-compliance (see Ch.11: "Administrator Decisions: Cancellation, Suspension and Reduction Decisions: Consequences of Non-Compliance: Non-Compliance with Information Duties". Essentially, non-compliance by ANY member of the benefit unit results in complete benefit unit disentitlement - rather than the normal 'splitting-off' of the 'bad' member that is applicable in other instances of single-member non-compliance with conditions of eligibility.

This chapter discusses the nature of these information requirements and (extensively) their legitimacy. This topic is closely and delicately intertwined with the issue of ODSP prosecutions (see Ch.14 "Fraud and Prosecutions") - which almost invariably involves allegations of concealment or misrepresentation of the "information" required to establish eligibility. As will be seen in that chapter, a key theme on these prosecution issues is the tension between "information", "verification of information" and self-incrimination rights that arise in the criminal situation.

Anyone involved in these more serious prosecution concerns should review both this chapter and Ch.14 carefully, AND seek the advice of a competent criminal lawyer.

(b) Comment

. Overview

In my view, the duty to provide information (and especially "verification of information") is the most misapplied and misunderstood area of social assistance administration, and it is the one where claimants most frequently get themselves into trouble - both in terms of eligibility and in terms of fraud prosecution.

The main reasons for this are:

• The adminstration of ODSP in Ontario has developed a culture of information intrusiveness which far exceeds their legal entitlements (explained below);
  
  
• Practically any information given to ODSP can be used both to determine eligibility and in prosecution of the claimant for fraud (see Ch.14 "Fraud and Prosecutions");
  
  
• ODSP claimants as a class are amongst the most unsophisticated and vulnerable persons in our society, and loss of assistance has drastic impact on such things as housing loss, loss of custody of children (the ability to support children is relevant to apprehension and continued custody), health (drug coverage can be lost and psychiatric health often suffers), and nutrition;
  
  
• ODSP (and welfare) are THE programs of last-resort for many people (ie. they are thoroughly means-tested and most other sources of income are "deducted" from it) - so failure to satisfy a "condition of eligibility" can result in total loss of income for the claimant - effectively coercing them into compliance with the Director's's excessive information and evidence demands.

. The Director's Attitude towards Eligibility Information

While the law requires the claimant to "provide the information and verification of information required to determine eligibility" [Act s.5(1)(d)], this phrase taken in isolation (as it is in Director policy) is quite misleading. The legal duty to "verify" is much lighter than welfare policy would have claimants believe (see the section 3 below: "The Legal Problem: Information versus "Verification of
Information").

Further, ODSP has an independent duty (not a discretion) to inquire into the circumstances of a claimant [Reg s.21] - and effective means to do so through the use of the "Consent to Disclose and Verify Information" (from THIRD parties) forms which are a mandatory part of the application process (see Ch.10 "Applications and Procedures". While these forms exist and are used in all ODSP applications - there is nothing to say that they should be used ONLY to seek information AGAINST claimants as they almost universally are. There are many instances - birth certificates and Health Card numbers are classic examples - where they could be used as the basis to establish functional information exchange relationships BETWEEN government departments to relieve unsophisticated applicants of the difficulty of wending their way through bureaucracies to prove something FROM one government agency TO another government agency.

The significant - sometimes overwhelming - pressure that is placed on applicants for them to provide eligibility information and evidence well beyond their legal duties has developed out of a combination of imbalance of power and administrative convenience. It's practice is supported and perpetuated by a range of factors, including:

• the use of income support cut-off as coercion to provide more information and evidence;
  
  
• applicant ignorance as to their true information duties;
  
  
• an administrative culture that has institutionalized its excess information "entitlements" (ie. in its Policies and Procedures);
  
  
• the insertion of excessive information into the Director-designed forms used in welfare applications.

. Advocacy

So institutionalized is the mindset that a claimant is entirely responsibility for providing the information and evidence required to establish eligibility that - ironically - many "failure to provide information" eligibility refusals can be 'solved' by obtaining a copy of the claimant's prior file from ODSP (or welfare)(see Appendix 2: "Getting a Copy of Your Welfare File") and then returning to them information or copies of documents that the file contains.

Further, while many or most claimants may be content to comply with the excessive demands of welfare policy for the sake of convenience or to avoid dispute, this compliance may not always be possible or advisable - particularly if investigation is afoot (see Ch.14 "Fraud and Prosecution"). For such cases, it is essential for claimants and advocates to understand the limits of ODSP's right to information.


2. Initial and On-going Eligibility Information Required

(a) Basics

The information [and in one instance, "proof"] which the administrator may require from a claimant (and most members of the benefit unit) on initial application includes the following [Reg s.14]:

1. The person's social insurance number.
   
   
2. The person's health number under the Health Insurance Act.
   
   
3. proof of the person's identity and of his or her birth date.
   
   
4. Information with respect to the person's income and assets.
   
   
5. Reports of persons described in s.46 relevant to a determination under s.4 of the Act [determining "person with a disability" status].
   
   
6. Information with respect to the benefit unit's budgetary requirements.
   
   
7. Information regarding attendence and attendance and progress in an education or training program with respect to dependent adults required to satisfy conditions relating to employment assistance under the Ontario Works Act, 1997.
   
   
8. Information regarding employment and proposed employment assistance activities with respect to dependent adults required to satisfy conditions relating to employment assistance under the Ontario Works Act, 1997.
   
   
9. Information with respect to the person's status in Canada.

In addition to the information taken on initial application (above), the applicant may also be required to provide on-going information as follows [Reg s.12]:

• new or changed circumstances;
  
  
• disability or membership in a prescribed class;
  
  
• receipt or disposition of assets,
  
  
• receipt or expected receipt of income or some other financial resources.

Monthly reports, in a form established by the province, may be required from any benefit unit member to the Director regarding business or employment income and assets, workfare participation, and "any other conditions relevant to determining the person's eligibility" [Reg s.12(2)] [yearly reports may be required regarding business assets and income: Reg s.12(3)]. Failure to provided these reports may result in ineligibility [Reg s.12(5)]. These reports are normally only be required where a benefit unit member has regular employment or business income or other regularly changing circumstances.

(b) Improvident Disposition of Assets

A major area where initial and ongoing eligibility information requirements are misapplied by the Director is with respect to the 'improvident disposition of assets' provisions [discussed more fully in Ch.8, s.7 "Asset Rules: Improvident Disposition of Assets"].

As is explained in that discussion, the Director has specific authority to investigate 'improvident disposition of assets' (this concept is explained at that reference) back one year from the application, or one year back from any point during eligibility. Additionally, if the Director has reasonable grounds for suspicion that there may have been such improvident disposition within the last three years (again, from application or from any point during eligibility), then they may inquire into those three years as well.

However it is (uncritical) Director policy, whenever they suspect past improprieties respecting assets and income-reporting, to require the applicant/recipient to disclose past income and assets received without limiting themselves to the one and three-year periods mentioned above (ie. prior to these periods). Most significantly, it is the Director's view that failure of the applicant or recipient to make such unauthorized pre-one/three year disclosure justifies suspension or cancellation of eligibility, something which again is quite unauthorized by the ODSP Act or General Regulation.

While investigation into periods before the one/three year limit set for improvident disposition of assets are justified under other ODSP provisions (see Ch.6. s.4: "Information Eligibility: Eligibility Review Officers"), this is only when such investigation is conducted by an eligibility review officer (ERO) themselves, not a regular caseworker or even supervisor. Such ERO investigations are invariably only conducted after a supervisor has decided that circumstances merit such a more thorough review, and are much rarer than normal caseworker inquiries. As well, even where such an investigation is conducted by an ERO, there is no authority for the Director to suspend or cancel eligibility for non-co-operation.

In sum, applicants or recipients who are subject to caseworker inquiries respecting dispositions of income and assets prior to these one/three year retroactive periods (as applicable) are entitled to resist them in the face of threats against current eligibility. This form of investigative eligibility 'blackmail' is standard ODSP practice, and should be called out and challenged for what it is.


3. The Legal Problem: Information versus "Verification of Information" versus "Evidence"

(a) Overview

ODSP policy assumes that the claimant must not only provide the "information" that the law requires, but also that they must 'VERIFY' it - in practice almost always a demand for some sort of third party documentary "evidence" substantiating the information (leases, rent receipts, cheque stubs, bank statements, etc). A simple example would be the giving of a Social Insurance Number (SIN) (information) versus the providing of an original SIN card (verification of information, or evidence) - ODSP wants the card as well as the information.

The reality is that - when the eligibility information laws are examined in detail - they (overwhelmingly) only require a claimant to provide 'information'. ONLY in one very specific and narrow information situation do they mention 'proof' - and even then 'proof' is not defined any further - leaving it open to flexible interpretation.

(b) s.5 Act

So let's look at that whole passage that was quoted in s.1 ("Overview") above(emphasis added):

s.5(1)(d)
No person is eligible for income assistance unless,

......

(d) the person and the prescribed dependants provide the information and the VERIFICATION of information required to determine eligibility including,

(i) information regarding personal identification, as prescribed,

(ii) financial information, as prescribed, and

(iii) any other prescribed information; and

.........

As mentioned, it is to this passage that ODSP policy and administrators point to when justifying their demands for 'verification' and documentation - ie. documentary "evidence".

Note however that each of the sub-paras (i,ii and iii) of 5(1)(d) is conditioned by the phrase "as prescribed". This is legal terminology meaning that the specifics of the thing referred to are actually spelled out in the regulations (remember the difference between Act and Regulations explained in Chapter 1). So it is to the wording of these regulations that we must have regard.

The key regulation sections are s.12 and s.14. They were referred to in section s.2 ("Initial and On-going Eligibility Information Required") above.

(c) s.14 Regulation

I repeat the passage relevant to our present discussion here (emphasis added):

s.14(2) Reg
The Director may require an applicant to provide INFORMATION NECESSARY TO DETERMINE AND VERIFY the applicant's eligibility for income support, including the following information with respect to any member of the benefit unit:

1. The person's social insurance number.
   
   
2. The person's health number under the Health Insurance Act.
   
   
3. PROOF of the person's identity and of his or her birth date.
   
   
4. Information with respect to the person's income and assets.
   
   
5. Reports of persons described in s.46 relevant to a determination under s.4 of the Act [determining "person with a disability" status].
   
   
6. Information with respect to the benefit unit's budgetary requirements.
   
   
7. Information regarding attendence and attendance and progress in an education or training program with respect to dependent adults required to satisfy conditions relating to employment assistance under the Ontario Works Act, 1997.
   
   
8. Information regarding employment and proposed employment assistance activities with respect to dependent adults required to satisfy conditions relating to employment assistance under the Ontario Works Act, 1997.
   
   
9. Information with respect to the person's status in Canada.

First notice that the language in s.14 above is permissive: that the "Director MAY ...require". This means that the requirement is not a mandatory one on the part of the Director - but discretionary. Legally, any discretionary duty must be exercised reasonably in all the circumstances of the situation - and as well the exercise of this discretion may be reviewed by the Social Benefits Tribunal (see Ch.12: "Appeals and Other Remedies"). If there is a reasonable excuse why the information cannot be provided, the Director must fairly consider whether they should insist on full compliance.

Next note that the phrasing: "information necessary to determine and verify", easily encompasses the claimant giving (1) eligibility information (eg. income information) and (2) giving further information that would enable the eligibility information to be verified BY THE DIRECTOR (eg. the name and contact information of an employer). Recall the discussion of the burden on the Director to investigate eligibility on their own [(s.1(b) "Comment" above].

Next - all of the listed items in 14(2) - except items 3 and 5 - require only "information" or "numbers", and item 5 requires medical reports in some circumstances (usually for PWD determination). ONLY item 3 applies a requirement for anything like 'verification': ie. "PROOF of the person's identity and of his or her birth date."

Note: Legal authority given to ODSP to obtain "biometric" (eg. fingerprints, DNA) identity information [Act s.56] and to use electronic signatures [Act s.57] is not yet implemented.

It is a principle of statutory interpretation that where otherwise similar provisions differ in an important respect (here the requirement for "proof") that the term should not be implied in the provisions where it is absent.

Therefore if we are to understand the term 'verification' in s.14 Reg as meaning "evidence" (as it invariably is understood by ODSP), there is in law only one evidence requirement - regarding identity and date of birth.

It is also a principle of statutory interpretation that any uncertainty in the interpretation of benefits-conferring legislation (which ODSP certainly is) flows in favour of the benefits-claimant: Rizzo v Rizzo Shoes [1998] 1 SCR 27. In short, if there is any doubt in the interpretation of the law on this issue, the benefit of the doubt goes to the rights-claimant.

Even in the one instance where "proof" is required - (ie. "of the person's identity and of his or her birth date") the law does not specify that the ONLY acceptable proof is a birth certificate (as ODSP policy requires). If a birth certificate is not readily available, what about an affidavit? a letter from a parent? or another reliable document that contains the information? - Why not? Remember that all ODSP applications are taken in the form of sworn affidavits [see Ch.10: although legal authority for this is dubious as only "signing" is required in law: Reg s.16(1)]: the worker asks the questions (including name and date of birth), completes the form, and then presents it the claimant for review (if they can read). The claimant is expected to verbally confirm the information as true and then sign and swear to it.

The applications are then co-signed ("commissioned") by the worker just like a lawyer commissioning an affidavit (all ODSP workers are legally Commissioners for the Swearing of Affidavits: Act s.69. In any other legal situation, including court, an affidavit such as this is adequate "proof" or 'verification' for most purposes. Why should the sworn statements in the application affidavit be treated with less respect and weight?

(d) s.12 Regulation

This passage deals with on-going reporting duties. It reads in full:

s.12(1)
The Director shall determine that a person is not eligible for income support if the person fails to provide the INFORMATION the Director requires to determine initial or ongoing eligibility for income support, including information with respect to,

(a) new or changed circumstances;

(b) disability or membership in a prescribed class;

(c) the receipt or disposition of assets; and

(d) the receipt or expected receipt of income or some other financial resource.

12(2)
The Director may require that a member of a benefit unit provide monthly reports to the administrator respecting,

(a) the income and assets of members of the benefit unit;

(b) any other conditions relevant to determining the person's eligibility.

Subsection (1) here only requires "information", so the intricacies discussed above do not even arise in this case. Subsection (2) relates to claimant-completed monthly reports [and sometimes yearly: Reg s.12(3)](which are required in this form for information-gathering convenience only. There is no further requirement for independent or documentary 'verification' contained in s.12.

(e) Reg s.16(3)

A further provision that might be pointed to by an administrator on this issue is Reg s.16. This section deals with the execution of a welfare application and the documentation that is required with it:

s.16(3)
The application is not complete until the application and all accompanying forms, agreements and consents have been completed and signed and have been provided, together with any required verification of information, to the Director.

The key phrase here is "required verification". Legally the administrator does not have authority to 'require' anything unless it is authorized elsewhere by law, so this phrase can only draw it's meaning from otherwise expressly stated legal authority. As such it can only refer to the very limited authority established in s.14, discussed above, and it does not extend that authority in any respect.

(f) Consents to Disclose and Verify Information

Another practical mechanism available to administrators to obtain eligibility information is the "Consent to Disclose and Verify Information" [Form 0985], which is a mandatory element of any Application for either welfare and ODSP. These Consents can be used to exercise the administrators' authority - and indeed duty[see s.1(b) "Comment" above] - to engage in its own verification of eligibility information with third parties. However it must be noted that such "Consent" authority is limited to gathering "information" from third parties (NOT documentation, and certainly not evidence, as will be seen to be crucial in Ch.14) [Reg s.16].

Surprisingly, the Form used for this purpose [Form 0985], and drafted by the Director of OW is not particularly over-reaching on its face - referring consistently to "information" and not to documents. However it is almost universally accepted amongst third parties that these "Consents" operate to allow them to provide the administrator with copies of material documents as the means of conveying this "information". Any lawyer will tell you that there is a huge evidentiary difference between 'information' and information embodied in a pre-existing documents (ie. "business record" evidence). Given the extreme consequences of these unquestioned practices by third parties, it is conceivable in some cases that excessive or unwarranted disclosures by such involved third parties may form the basis of a civil action for breach of fiduciary duty.

(g) Freedom of Information and Protection of Personal Privacy Act (FIPPA)

Additional Ontario law respecting the collection [FIPPA s.38(2)], use [FIPPA s.41] and disclosure [FIPPA s.42] of "personal information" is set out in the Municipal Freedom of Information and Protection of Personal Privacy Act (FIPPA).

While the FIPPA definition of "personal information" extends beyond 'pure' information to include "recorded information" [FIPPA s.2(1), 38(1)] (ie. documentst or computer-stored information, etc), these provisions only address the right of institutions to collect and use information by their own efforts where they are otherwise entitled to it. They do nothing to assist the Director in 'compelling' applicants and recipients to disclose information or documents to them.

Further, while the ODSP Act adopts the FIPPA definition of "personal information" as its own [Act s.2], none of the material information provisions discussed above use that term - they all speak of "information" (alone) in the context of disclosure by the applicant.

FIPPA use and collection authority essentially duplicates "rights" that the administrator already has via the "Consent to Disclose and Verify Information" forms which are a mandatory part of the application process. It does NOT extend such rights into widespread document and evidence-gathering ventures.

(h) Summary

A solid legal basis exists for the position that - with one exception - the only form in which a claimant must provide eligibility information (either directly or through third party consents) is just that: to give INFORMATION. "Proof" may be required only of identity and date of birth.

Otherwise, the providing of "proof" or "verification" such as documents or sworn affidavits (ie. the application form) are not required in ODSP law. In particular, there is no legal authority to demand, as a condition of eligibility, any of the following typically-demanded documents:

• SIN cards
  
• OHIP cards
  
• income cheq stubs
  
• bank, RRSP, GIC etc statements
  
• copies of leases or rent receipts
  
• immigration documentation

Of course, it may be more expedient for the claimant to provide these documents, and they can do so if they choose. But even if this choice is made, where these forms of documentation are NOT readily available, it is open to the recipient to provide reasonable alternative forms of verification.

That said, the unfortunate reality is that ODSP authorities will refuse eligibility unless they are provided with the form of documentary evidence that they view as appropriate. On these issues, ODSP authorities have, with the aid of provincially-mandated policies, misapplied the law. This has been done to the gross detriment of thousands of unsophisticated claimants who cannot meet these excessive and illegal demands, and at the cost of illegal infringement into of privacy rights of hundreds of thousands of others. These practices and policies reflect an undue focus on the concerns of fraud to the prejudice of those legitimate claimants who simply have difficulty meeting the excessive and illegal evidence requirements demanded by ODSP practices.

Continue this chapter ...