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Ontario Disability Support Program (ODSP) Law
(20 June 2021)

Chapter 1 - Overview

  1. Introduction
    (a) The Structure of Social Assistance Law
    (b) The Reality
  2. Terminology
  3. Legal Basics
  4. Basic Eligibility Issues
  5. Main Concepts
    (a) The Benefit Unit
    (b) "Budgetary Requirements"
    (c) Income Treatment
    (d) Asset Caps
    (e) Information Eligibility
    (f) Other Principles
  6. ODSP Administration
    (a) Overview
    (b) ODSP/Welfare Computer System
    (c) Director of ODSP and "Policy"
    . The Legal Status of Policy
    . Case Note: Moon v Ontario (Director, ODSP)
    (d) The Role of the Social Benefits Tribunal
    (e) The Role of the Courts
  7. The Immediate History of the Present Programs
  8. Philosophy Behind the Present Act


1. Introduction

(a) The Structure of Social Assistance Law
"Complex", "confusing", "Kafkaesque", "a lawyer's nightmare": Kerr v Metropolitan Toronto 4 OR (3d) 430 (Div Ct, 1991).

"Fiendishly difficult", "Byzantine": R v Maldonado [1998] OJ #3209 (OCJPD).
Ontario social assistance law consists of two main pieces of legislation: the Ontario Works Act, 1997 and the Ontario Disability Support Program Act, 1997. The two programs are very similar in structure, with the main difference being the obvious ODSP requirement of medical disability ("person with a disability"). They also differ by which level of government administers them, the amount of financial aid provided and the levels of income and assets allowed before
ineligibility occurs.

This program is about the disability program, more commonly known simply as "ODSP" (Ontario Disability Support Program). The ISTHATLEGAL.CA Welfare (Ontario Works) sister program is linked here:

Welfare (Ontario Works)

The main substance of ODSP law is contained in the chapters dealing with the several primary issues of "Income Rules", "Asset Rules" and "Information Eligibility". Further chapters on "Income Support", "Benefits" and "Assistance for Children with Severe Handicaps" cover the allowance end of things, and essential concepts grounding the administration of ODSP are found in the chapter "Claimants".

Procedural aspects are covered in the chapters on "Applications and Procedures", "Director Decisions", and "Appeals and Other Remedies" - which includes the workhorse appeal system of the Social Benefits Tribunal as well as further court appeals and other legal remedies. The chapter "Fraud and Prosecutions" takes us into the hard end of life on ODSP. A final chapter, "Advocacy", provides practical tips, tactical information and ethical insights which I hope will be useful to lawyers, lay advocates, and claimants alike.

(b) The Reality

This program must of course describe the law of social assistance. However a practitioner of social assistance law soon learns that the purity of the law and the reality of social assistance administration are often very far apart.

Negative social attitudes, excessive worker case loads, legal complexity - and more recently, a highly-criticized computer system - all combine together to produce an administrative actuality that often ignores and short-sells the rights of a claimant. Recipients, case workers and advocates relate stories of seemingly random computer 'acts' of cut-off or overpayment allegations which on investigation or appeal turn out to be computer errors. I have certainly seen my share of these.

Other problems include the chronic failure of Notices of Decision (of cancellation, suspension, refusal and overpayment) to provide the detailed reasons for the decision that is required by law (and by common sense). Many disputes which could be resolved by claimants or their advocates early on - avoiding the necessity and expenses (to both parties) of legal proceedings - if this problem were rectified.

Of course, as is made obvious in Ch.6 "Information Eligibility", I am highly critical of what I view as the illegal approach taken by ODSP as to the "information" duties of recipients. The legal entitlement of the ODSP Director (who administers the program) to such information is much more restricted than the administrative culture of ODSP believes, with the consequence that the privacy loss to recipients - and their more serious loss of constitutional privacy and self-incrimination protections - is near complete.

Another reality of social assistance administration is that sometimes the application of the many and complex rules embodied in the Acts, the Regulations, and in the policies of the administrators is just too burdensome for all involved. Corners are cut - sometimes (it must be stated to the credit of some ODSP workers) to the benefit of the claimant. Sometimes workers, out of sympathy or convenience will simply 'hold' cheques without formal notice of refusal or suspension, until further financial or identification documentation is supplied - at which point the cheque is released. Such informal waiver of strict rule compliance keeps the system functioning.

The administrative burden is due to the relatively extreme means-testing scrutiny that social assistance claimants are subjected to. While most other public benefit schemes are not means-tested at all, when they are they hold themselves to a much lower day-to-day standard (income tax is a good example). To apply for social assistance is to waive practically all rights of financial and social privacy that most citizens come to expect as a matter of course.

The importance of ODSP to its disabled recipients is of course extremely high, arguably even higher than for welfare recipients who are (at least presumed in law to be) able to seek employment. Unlike most circumstances of administrative law enforcement even temporary suspension of ODSP can result in extreme consequences such as:
  • loss of housing with accompanying physical risk, especially to women,

  • loss of children as Children's Aid Society assess the new living circumstances of the parent or parents and apprehend children,

  • health problems such physical malnutrition, exacerbation of pre-existing psychiatric problems, loss of drug cards.
With appropriate action income support can be quickly reinstated (at least on a temporary basis: interim assistance) by following the appeal process (see Chapter 12), but when these consequences occur in a permanent form, their seriousness can be magnified to inhumane proportions.

I have been impressed by a common shock reaction of many claimants coming to social assistance systems from a middle-class background. They find the administrative demands of a life on social assistance to be degrading and intrusive to the point of indignation. As to the welfare and ODSP income support rates - I can recall the exact exasperated exclamation: "My God, how do they expect people to live on this?", from so many such clients. In my experience it is usually recipients who were formerly middle class that commit most ODSP fraud, the problem being that their indignation and lack of expectation of consequences (thinking of ODSP fraud like most middle class people think of tax fraud) can lead them into temptation (typically non-declaration of collateral income sources such as other pensions). Such attitudes render them ripe for criminal fraud exposure - which can be emotionally devastating for them. Recipients having a cultural familiarity with social assistance (ie. the chronically poor) are usually more realistic and matter of fact with their duties, making them more honest and usually easier to serve.

I have sometimes argued - half in jest - that "the poor" CANNOT commit social assistance fraud. If a person is hiding enough money to disentitle them, then they are not (by ODSP's definition at least) poor, but in fact middle class.

2. Terminology

Throughout this book I refer to Ontario Works as "welfare", and the Ontario Disability Support Program as "ODSP". While it may be more accurate to refer to the first as "OWA", the term "welfare" is by far the more commonly used. I use the term "social assistance" when referring to the programs collectively.

Further, while the terms "applicant" and "recipient" are used separately in the law, I will generally use the term that best fits the context, or the term "claimant" to cover them together.

While the categories "cancellation", "suspension" or "reduction" of income support are all distinct types of adverse administrator decisions, I may use the generic terms "decision" or "disentitlement" unless the context calls for a more specific term.

3. Legal Basics

It is useful to know the relationship between the several laws and rules that make up social assistance law, and the government bodies which make them.

The primary source of Ontario social assistance law is of course provincial statutes, also known as "legislation" - or "Acts" of the Ontario legislature. These are voted on and passed into law by the provincial legislature: our elected members of provincial parliament.

The main Act - the Ontario Disability Support Program Act - (like most Acts includes 'regulation- making' powers which delegate to the provincial cabinet formally, the "Lieutenant Governor in Council") specific further law-making powers. "Cabinet" is the ruling board or committee of the party in power, also known as the executive government.

In the case of ODSP, the main "General Regulation" (Reg. 222/98 as amended) contains much of the immediately relevant law. There are others however, discussed on this chapter. Regulations must be published in the Ontario Gazette, a weekly government publication, and (like statutes) declared into force in order to be effective.

4. Basic Eligibility Issues

Scattered throughout the ODSP Act and Regulations in association with recipient duties is the phrase "condition of eligibility". Whenever this phrase is used it means that failure to satisfy the "condition" can result in partial (reduction), temporary (suspension) or full (cancellation) disentitlement from income support.

Indeed, a person will be disentitled from receiving income support unless they satisfy "all conditions of eligibility under this Act of the regulations" [Act s.5(1)].

The main "conditions of eligibility are":
  • ONTARIO RESIDENCE: [Act s.5(1) (b)];

  • CATEGORICAL ELIGIBILITY: This refers to eligibility that is conditioned by the status of the applicant, such as immigration status, age, institutionalization, etc. (see Ch.2 "Claimants");

  • INCOME ELIGIBLE: The "budgetary requirments" (see Ch.3 "Income Support") of the "benefit unit" (see Ch.2 "Claimants") exceed chargeable income (see Ch.7 "Income Rules") [Act s.5(1)(c)];

  • ASSET ELIGIBLE: The benefit unit's assets do not exceed the maximums allowed (see Ch.8 "Asset Rules") [Act s.5(1)(c)];

  • INFORMATION ELIGIBILITY: The benefit unit has provided the "information and the verification of information required to determine eligibility" including [Act s.5(1)(d)]:

    - "information regarding personal identification, as prescribed",

    - "financial information, as prescribed", and

    - "any other prescribed information".

  • WORKFARE ELIGIBILITY: These are the duties of non-disabled adults in the benefit unit to pursue and maintain employment, and to participate in "workfare" programs such as job searches, volunteering, training and education [Reg s.6].

  • "OTHER CONDITIONS OF ELIGIBILITY": These include such things as duties to realize all available support resources and the duty not to "improvidently" dispose of assets (see Ch.8 "Asset Rules") [Act s.5(1)(e)]
The previous law that imposed a life-time ban on the receipt of Ontario social assistance for those convicted of any form of social assistance fraud has since been repealed.

5. Main Concepts

(a) The Benefit Unit

The first key concept that must be set out is that of the "benefit unit" (Ch.2 "Claimants"). A benefit unit is that grouping of co-resident persons, designated by law, to whom income support will be paid as a unit. The benefit unit is also the group whose total income and assets will be examined for purposes of determining whether limits are exceeded or reductions are due. Of course, the size, living and personal circumstances the benefit unit members determines the amount of allowance, and the income and asset limits that apply to the benefit unit.

It is not safe to assume that co-residing family members will be included in the benefit unit. Typically however, a benefit unit consists of the claimant, commonly a co-resident spouse, and all co-resident "dependents". Dependents are typically minor offspring, but can also - in some circumstances - include adult offspring (18 and over).

Benefit units can be conventional 'family' units (ie. one or two adults with or without children) or single adults. Only adults (18 and over) may be ODSP claimants: single minors (those 16-18 years old) may apply for welfare.

Much legal debate has raged around the concept of the "dependent spouse" - or more accurately the forced aggregation of spouses with applicants (into the "benefit unit") for purposes of financial assessment and income support payment. I discuss this issue critically in the welfare program at Appendix 4: "The Concept of Spousal Dependency".

Same-sex spousal relationships have recently been acknowledged fully in social assistance law. In fact this change has reduced the collective allowance available to some same-sex households, which might otherwise have avoided income and asset aggregation which often results in disentitlement.

(b) "Budgetary Requirements"

The second key concept to understanding social assistance is that of "budgetary requirements".

Budgetary requirements are in fact the maximum amounts that social assistance allows for the main components that make up income support. These amounts are set out in charts in the regulations, and are replicated in this program in Ch.3: "Income Support". Actual income support paid is the result of determining "budgetary requirements" and then reducing that by "chargeable income", social assistance overpayment deductions and - less often - child and spousal support order deductions.

Few would claim that "budgetary requirements" bear any reasonable relationship to actual expenses that claimants face in the private marketplace. Neither do they - except with minor examples for northern residents (north of 50th parallel) - vary with the various living expense levels faced in different parts of the province.

As an illustration let's take the case of a single person on ODSP. We will assume them to be a renter as this is the more common situation (boarders are treated differently). The monthly ODSP allowance for such a claimant is comprised of a fixed $543 "basic allowance" and then a "shelter allowance" of up to $436 maximum, to a total monthly maximum of $979. If shelter costs are less then that lesser amount is what is paid, but no more than $436 will be paid (there is a rare exception for excessive heating costs).

Other forms of financial aid such as special diet, pregnancy supplement, transportation, etc may also be added to these amounts. Drug coverage usually takes the form of a "drug eligibility card" attached to the monthly cheque or statement. There are also a range of incentive and disability-related benefits unavailable to welfare recipients (see Ch.4: "Benefits").

(c) Income Treatment

The general rule is that any income is deducted from the budgetary requirements dollar for dollar, but many exceptions apply which reduce - or even eliminate -these deductions. Thus arises the useful concept of "chargeable income", as distinct from gross income.

For example, employment and business earnings are processed through a several step calculation before the amount of "chargeable income" is determined. Essentially, half of net earnings are "exempt" income until such time as the amount of "chargeability" exceeds budgetary requirements, at which time (generally) the recipient will be disentitled. This main earnings deduction is meant to operate as an incentive to financial independence.

As another example, any employment insurance (EI) payments are fully deductible, as is any Canada Pension Plan - Disabled (CPP-D) income.

These are just examples, see the Ch.7 "Income Rules" for a full treatment of the issue.

(d) Asset Caps

Single recipients on ODSP (generally) cannot have chargeable (ie. non-exempt) assets exceeding $5,000 or else they are ineligible for the period that the situation persists. The equivalent figure for welfare recipients is $536, or one month's maximum budgetary requirements.

That said, there are extensive asset "exemptions" [ie. exempt from 'counting' as a "chargeable" asset] for cars, tools of employment, real estate occupied by the benefit unit, and savings intended for certain approved purposes such as "disability-realted expenses". See Ch.8 "Asset Rules" for full treatment of this issue.

(e) Information Eligibility

Although not usually acknowledged as a separate "condition of eligibility", non-compliance with information and verification demands by administrators is itself a separate ground of disentitlement.

Thus recipients - and members of their "benefit unit" - must comply with extensive financial and personal information disclosure - both in the initial application process, in updating reports and as a general on-going duty to report changes in circumstances.

The Director's policy expectations for documentation evidencing eligibility usually exceed their actual legal entitlements - which are limited for the most part to information only. This is a very pertinent and under-advocated area in social assistance law, and a major area of improper disentitlement. It is a particular problem for homeless persons and the mentally disabled, where identification documentation is often immediately unavailable to them due to loss or theft (while ironically it is almost always located within government files somewhere - often in those held regarding previous social assistance eligibility).

(f) Other Principles

Non-disabled adult members of ODSP benefit units (typically spouses and dependent adults) are also required to engage in the same workfare participation and employment searches as do adult welfare recipients, unless otherwise excused. All benefit unit members must also discharge other duties such as the duty to maximize all available assets (eg. other public benefits, child support or litigation claims) and not to transfer assets for inadequate consideration just so as to maintain or establish eligibility.

Substantial violation of just about any eligibility requirement results in reduction, suspension or cancellation of income support. Any decision which effects entitlement for and/or the allowance amount is appealable to the Social Benefits Tribunal, an independent quasi-judicial body which is the first appeal level. Appeal procedures are extensively covered in Ch.12.

6. ODSP Administration

(a) Overview

Unlike its sister program Ontario Works (where the primary delivery agent is local municipalities), ODSP is directly administered by the province, acting through the "Director of ODSP" in numerous Ministry of Community and Social Services local offices throughout the province [Act s.37,38].

While there are provisions in the ODSP Act [s.39-44] and Regulations [esp. Reg 225/98] for local administration by agents, and cost-sharing between them and the province - these provisions have not found any wide use.

(b) ODSP/Welfare Computer System

ODSP files are maintained in a single massive computer system established by the province.

The computer system, purchased from Andersen Consulting (now Accenture) - a large multinational corporation that had been shopping similar social assistance software across North American jurisdictions for years - has come under much criticism for delay, cost overruns and inadequacies.

These concerns have even found their way into usual social assistance litigation in an odd sort of '(computer) dog wagging the (legal) tail' way. In Ontario(Director, ODSP) v Eluck [2001] OJ #3764 part of the Director's (of ODSP) concern on an appeal to the Divisional Court was that its computer system was "not enabled to track recipients whose benefits have been cancelled for a period in excess of three months" - despite the legal necessity to do just that. The court quite rightly gave little consideration to this concern, stating:
As to the practical concern of the Appellant relating to its computer program, we are all of the view that it is irrelevant to this appeal.
In other words: that's your problem, fix it.

There were also well-publicized technical problems with the computer system when the new Liberal government tried to implement a (meager) rate increase to recipients. The system was unable to perform this relatively simple - and entirely foreseeable - task, necessitating significant extra expense, delay - and even a later regulation amendment to accommodate for a 'catch-up'.

(c) Director of ODSP and "Policy"

. The Legal Status of Policy

The Director of ODSP also has the primary policy-making role in the administration of the program.

The Director has the primary policy-making role in ODSP administration, policies which workers must follow.

While both statutes and regulations together can properly be called "law", "policy" is not. Policy is drafted by government staff for the immediate use of those involved in the administration of the programs. "Policy" guides the supervisor, the case worker and various other program functionaries as to how they deal with the multitude of factual situations they may be presented with.

Recently-updated ODSP "Policy Directives" are publically available on-line: ODSP Policy Directives.

Advocates and claimants must take care not to accept the positions set out in policy documentation as law (see the "Case Note" below). "Policy" is no more than an embodiment of the views and administrative practices of ONE party to the legal relationship between the government and the claimant. Government "policy" in this sense has no greater legal (practical is another story) significance than a "policy" manual scratched out on the back of a napkin by an imaginative recipient who establishes their own personal "code" for dealing with ODSP workers. "Policy" - being the view of one party as to its legal duties - is necessarily an exercise in bias. Policies can and do embody requirements which are not legally justifiable, reflecting rather administrative convenience, propriety, and comfort - and (in fairness) even in some cases benevolence.

In the differences between law and policy lies much work for an advocate. No responsible advocate should accept positions set out in policy documentation as law without confirming them through their own analysis of the statutes and regulations. Law trumps policy.

That said, a familiarity with policy is useful in anticipating and understanding the administrator's behaviour. As well and as noted, sometimes policy is in fact more lenient to an applicant than the law is.

. Case Note: Moon v Ontario (Director, ODSP)

In Moon v Ontario (Director, ODSP) [2002] OJ #2045 (Div Ct) the court allowed a recipient's appeal over the issue of whether his earnings were from employment or from contracting (in which case business expenses would be deductible). The Tribunal on first appeal had endorsed the use of the Director's policy in this determination. The Court dismissed such use of policy in the following comment:
We further hold that the policy statement referred to in the tribunal's decision should not have been used in determining the question before it. Its use in determining whether Mr. Moon was an employee or engaged in a business operation is not authorized by regulation nor by the provisions of the statute.
Properly put, the application of policy IS mandatory on the Director and its employees as a matter of law as noted above, but this does not mean that the policy as established accords with the law - as this case result shows.

(d) The Role of the Social Benefits Tribunal

The Social Benefits Tribunal is the workhorse appeal tribunal which hears the vast majority of legal disputes stemming from welfare and ODSP situations. Hearings are held in front of (usually) one member in private, and are conducted as "hearings de novo" - which means that they hear evidence on the whole appeal issue with no deference to the original decision under appeal (other than the appellant bearing the onus of disproving that decision).

While decisions of the higher court have a binding precedent authority over the Tribunal, its own decisions do not. As was stated in a leading ODSP case, Director (ODSP) v Gallier [2000] OJ #4541 (QL)(Div Ct):
The Tribunal's decisions are not binding on other panels and the Tribunal does not exercise policy-making or regulatory functions.
Full appeal procedures are discussed in Ch.12 "Appeals and Other Remedies".

(e) The Role of the Courts

The next appeal from the Social Benefits Tribunal is to the Ontario Divisional Court, a branch of the main trial court in Ontario, the Superior Court of Justice. Appeals from welfare and ODSP matters to the court are only permitted on "questions of law" [Act s.31], which means that fact-findings - unless "overriding and palpably" in error - are not subject to appeal.

The Divisional Court and the Superior Court also have a less-used "judicial review" jurisdiction which is available when no statutory right of appeal exists. This form of review gives a high degree of deference to the original decision-maker on both fact-finding and legal conclusions (again, see Ch.12).

It is a standard and well-established principle of interpretating "benefits-conferring" legislation such as the ODSP Act that any ambiguity in the legislation (ie. Acts and Regulations) flows in favour of the benefits-claimant: Rizzo v Rizzo Shoes [1998] 1 SCR 27.

7. The Immediate History of the Present Programs

The "new" Ontario Works Act and Ontario Disability Support Program Act were passed into law in 1998, succeeding the previous General Welfare Assistance Act (GWA) and the Family Benefits Act (FBA). The new name "Ontario Works" was part of trend by politicians in the 1990s to somehow brighten the reality of a situation by re-naming it with "reverse-speak" - the change from "unemployment insurance" to "employment insurance" was another example.

GWA - like OWA is now - was commonly referred to as "welfare". Family Benefits was referred to loosely as "FBA" or "mother's allowance". FBA originally covered single parents, disabled people and older single persons, but single parents were shifted to the Ontario Works scheme in 1997. In 1995 the (then new) progessive conservative government in Ontario signalled it new approach to social assistance by cutting welfare rates by 21%. The effect of these cuts has only increased from that time, as social assistance rates are NOT "cost-of-living" indexed or otherwise subject to any regular inflationary increase.

Since the Liberal government came into power in 2003, they have eliminated a few of the worst aspects of the old Tory social assistance regime, including the cumbersome and alienating phone-intake system (welfare only) - and of course the life-time ban on social assistance eligibility upon conviction of any form of ODSP fraud. However the huge rate cuts from 1995 are still present - and even aggravated now by inflationary loss. Other than these and other minor changes however no systemic reform is anticipated in the foreseeable future.

8. Philosophy Behind the Present Act

The whole field of social assistance law and policy is intensely politically-charged. There are few people who don't have an opinion on the moral worthiness, one way or the other, of social assistance claimants - or for that matter, of the Mike Harris government which reworked the entire social social assistance field in 1995-1998 (which changes remain overwhelmingly intact).

The stated purposes of the ODSP scheme, drawn from the Act itself, is:
ODSP Act s.1
The purpose of this Act is to establish a program that,

(a) provides income and employment supports to eligible persons with disabilities;

(b) recognizes that government, communities, families and individuals share responsibility for providing such supports;

(c) effectively serves persons with disabilities who need assistance; and

(d) is accountable to the taxpayers of Ontario.
The Ontario Works (welfare) equivalent reads:
OW Act s.1
The purpose of this Act is to establish a program that,

(a) recognizes individual responsibility and promotes self reliance through employment;

(b) provides temporary financial assistance to those most in need while they satisfy obligations to become and stay employed;

(c) effectively serves people needing assistance; and

(d) is accountable to the taxpayers of Ontario.
While the language may be bright and shiny, the moral and philosophical views they embody are not new and date back well over a hundred years to old 'poor laws'. The social assistance regime still manifests a distinction between the 'deserving' and the 'undeserving' poor - essentially what we know in other contexts (ie. auto insurance) as a "fault" approach. Today's 'deserving' poor are the disabled who receive the (marginally) higher ODSP rates, the less deserving (ie. those at moral fault) are relegated to the lower welfare rates. Non-disabled adults in both programs are subject to constant monitoring of employment efforts, and are required to participate in half-hearted, underfunded remedial programs (ie. workfare).


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Last modified: 11-01-23
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