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Welfare (Ontario Works) Law
(01 January 2016)

Chapter 1 - Overview


  1. Introduction
    (a) The Structure of Welfare 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. Welfare Administration
    (a) Geographic Areas and Delivery Agents
    (b) Welfare Computer System
    (c) Director of Ontario Works and "Policy"
    . The Director of Ontario Works
    . Policy-Making Role
    . The Legal Status of Policy
    . Case Note: Moon v Ontario (Director, ODSP)
    (d) Cost-Sharing Between Delivery Agents and Province
    (e) The Role of the Social Benefits Tribunal
    (f) 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 Welfare 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. They also differ by the level of government that administers them, the amount of allowance and the levels of income and assets allowed before ineligibility occurs.

This program is about the first of these, Ontario Works - more commonly known simply as "welfare". ODSP is treated in a separate Isthatlegal.ca Legal Guide (linked at the header, above).

The main substance of Ontario Works is contained in the chapters dealing with "Income Rules", "Asset Rules", "Workfare" and "Information Eligibility". Further chapters on "Basic Assistance" and "Benefits" cover the allowance end of things. Essential concepts grounding the administration of welfare are found in the chapter "Claimants". Procedural aspects are covered in the chapters on "Applications and Procedures", "Administrator 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 hardest end of life on welfare. 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 Guide 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.

Government administrative underfunding, excessive case loads upon workers, 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 suspension, refusal and overpayment) to provide the detailed reasons for the decision that is required by law (and by common sense). Many disputes 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.5 "Information Eligibility" I am highly critical of the illegal approach taken by welfare administrators to the "information" duties of recipients. In my view the legal entitlements of administrators to such information are much more restricted than are accepted with the administrative culture of welfare, with the consequence that the privacy loss to recipients - and their more serious loss of constitutional 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 (to the credit of many welfare workers) for the benefit of the claimant. For example, 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 subject to. Most other public benefit schemes are not means-tested at all - but 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 familial privacy that most citizens come to expect as a matter of course.

The importance of welfare to its recipients is of course high. Unlike most circumstances of administrative law enforcement even temporary suspension of welfare 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 as inadequate and consequently apprehend children,

  • health problems such physical malnutrition, exacerbation of pre-existing psychiatric problems, loss of drug cards.
Usually assistance can be reinstated quickly - at least on a temporary basis - by following the appeal process [see Ch.10, s.1(i): "Appeals and Other Remedies: Appeal Process: Interim Assistance"], 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 the welfare (and ODSP) 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 for assistance rates - I can recall the exact exasperated exclamation: "My God, how do they expect people to live on this?", from many such clients. In my experience it is usually recipients who were formerly middle class that commit most welfare fraud, the problem being that their indignation and lack of expectation of consequences (thinking of welfare 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 are usually much 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 welfare fraud. If a person is hiding enough money to disentitle them, then they are not (by welfare's definition at least) poor, but in fact middle class.


2. Terminology

Throughout this Legal Guide 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.

As well, while monies paid under the welfare program for shelter, basic needs (ie. food and ancillary living expenses), and "benefits" (typically a range of discrete medical and social benefits) are formally called "basic financial assistance" - I use the term "assistance", though technically this latter term covers "employment assistance" (ie. workfare) as well [Act s.2,3,5].

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 assistance are all distinct types of adverse administrator decisions, I may use the generic terms "disentitlement" unless the context calls for a more specific term.

The immediate provider of welfare on the local level is properly called a "delivery agent", run by an "administrator". I use the latter term throughout as it is the one parties see most commonly in documentation.


3. Legal Basics

It is useful to know the relationship between the several levels of 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 Works Act - includes, like most, '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 welfare, the main "General Regulation" (Reg. 134/98 as amended) contains much of the immediately relevant law. There are others however, discussed in this chapter. As many Ontarians - including lawyers - discovered after the recent 2010 G8/G20 protest arrests, Regulations no longer require publication in the Ontario Gazette (a weekly government publication) to be effective as law [Legislation Act, s.22]. Now 'filing' in a publically-available online registry is adequate. Ontario Gazette publication should follow within 30 days, and consolidated online E-laws publication "promptly" thereafter - but publication or consolidation failure has no effect on the legitimacy of the Regulation.


4. Basic Eligibility Issues

Scattered throughout the Ontario Works 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 assistance.

Indeed, a person will be disentitled from receiving assistance unless they satisfy "all conditions of eligibility under this Act of the regulations" [Act s.7(1)].

The main "conditions of eligibility are":
  • Ontario Residence: [Act s.7(3)b];
    Note re Absence from Ontario:
    Persons absent from Ontario for more than seven days are disentitled unless the absence has been approved by the administrator as necessary for "reasons of health" or "exceptional circumstances" [Reg s.5(1-3)]. For these purposes, an absence for "reasons of health" is:

    • an absence to receive necessary medical treatment outside of Ontario that is prescribed by a physician; and

    • the medical treatment is an out of province or out of country insured service under the Ontario Health Insurance Plan, confirmed by a letter from the Ministry of Health and Long-Term Care verifying "that he or she is approved for the insured service under the Ontario Health Insurance Plan".
  • 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 Eligibility: The "budgetary requirements" (see Ch.3 "Assistance") of the "benefit unit" (see Ch.2 "Claimants") exceed chargeable income (see Ch.6 "Income Rules") [Act s.7(3)];

  • Asset Eligibility: The benefit unit's assets do not exceed the maximums allowed (see Ch.7 "Asset Rules") [Act s.7(3)];

  • Information Eligibility: The benefit unit has provided the "information and the verification of information required to determine eligibility" including [Act s.7(3)]:

    - "personal identification information, as prescribed",

    - "financial information, as prescribed", and

    - "any other prescribed information".

  • Workfare Eligibility: These include duties to pursue and maintain employment, and to participate in "workfare" programs such as job searches, volunteering, training and education [Act s.7(4)].

  • "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.5 "Asset Rules") [Act s.7(3)].
The previous law that imposed a life-time ban on the receipt of Ontario social assistance for those convicted of any form of welfare fraud has since been repealed.

Persons with housing should apply in the "geographic area" [see s.6(a) below] of their local welfare office [Reg s.4(1), 16(1)], while homeless persons (see Ch.2 "Claimants") who do not have a "residence" are "deemed" to reside in the welfare geographic area where they apply (ie. apply at any office) [Reg s.4(2)]. Similarly, applicants for "emergency assistance" (see Ch.8: "Procedures and Appeals") may apply in another geographic area if they cannot reasonably apply in their home area [Reg s.16(2)].


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 assistance 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 "parents" with children), single adults, or they can be single minors (those 16-18 years old). The legal situation of minors aged 16 and 17 can be quite complex and onerous as the law places numerous requirements on them directed at keeping them both in school and within a family unit. Children under 16 may not normally collect welfare unless they themselves are parents.

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 assistance payment.

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 been eligible as two separate benefit units.

(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 an allowance, or cheque. These amounts are set out in charts in the regulations (which are replicated in this Legal Guide). Actual assistance paid is the result of determining "budgetary requirements", adding in the value of any additional benefits (see Ch.4) 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 welfare. We will assume them to be a renter as this is the more common situation (boarders are treated differently). The monthly welfare allowance for such a claimant is comprised of a fixed $221 "basic allowance" and then a "shelter allowance" of up to $364 maximum, to a total monthly maximum of $585.

If shelter costs are less (which is very rarely the case) then that lesser amount is what is paid - but no more than $364 will be paid in any case.

It is pretenses like this - having the temerity to call such an inadequate allowance a "budgetary requirement", that inflame the passions of recipients and their advocates. The offensive pretense is the implicit claim to supply all the claimant's "requirements", while in fact only supplying an inadequate fraction of them.

Other forms of allowance such as special diet, pregnancy supplement, transportation, etc may also be added to these allowances if they are given in monetary form. Drug coverage usually takes the form of a "drug eligibility card" attached to the monthly cheque or statement.

(c) Income Treatment

The general rule is that any income is deducted from "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 earnings are processed through a several step calculation before the amount of "chargeable income" is determined. Essentially, half of net earnings is "exempt" income, and only when that reduced amount exceeds budgetary requirements will the recipient 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 are any Canada Pension Plan - Disabled (CPP-D) entitlements being received.

These are just examples, see the Ch.6: "Income Rules", for a full treatment of the issue.

(d) Asset Caps

Recipients on welfare (generally) cannot have assets exceeding one month's budgetary requirements (ie. for a single recipient: usually $585) or else they are ineligible for the period that the situation persists. For ODSP claimants the asset cap is much higher, being $5000 for an applicant, $2500 for a spouse, and $500 for each subsequent dependent.

This asset cap is quite absurdly low and arguably disentitles a person immediately on receipt of one month's assistance if they still have a penny left in their pocket from last month - though this degree of surveillance is not known.

That said, there are extensive exceptions to the asset caps for cars, tools of employment, real estate occupied by the benefit unit, and savings intended for certain approved purposes such as "disability-related expenses". See Ch.7 "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.

Welfare's policy expectations for documentation evidencing eligibility usually exceeds the actual legal entitlements of the administrator - 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 illegal disentitlement. It is a particular problem for homeless persons or those otherwise in crisis, 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 welfare eligibility).

(f) Other Principles

Welfare claimants are also required to engage in workfare participation and employment searches unless otherwise excused (for example, for medical reasons). They must also discharge other duties such as the duty to maximize all available assets (eg. seek work, 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 assistance. Any decision which effects entitlement to and/or 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.10.


6. Welfare Administration

(a) Geographic Areas and Delivery Agents

The province sets out in regulations the "geographic areas" (administrative areas) of welfare [Act s.37]. Within these areas the province designates "delivery agents" to provide welfare services. These are typically municipalities or Indian bands [Act s.38, Reg 136//98].

Delivery agents must appoint provincially-approved "administrators" to conduct the day-to-day administration of the welfare programs [Act s.43,44]. Such administrators will normally act through delegates, being the employees and staff of their social services department [Act s.46].

Delivery agents may also contract-out delivery services if they wish [Act s.45]. In some cases the Ministry of Community and Social Services itself may act as delivery agent, through this is only likely to happen where no appropriate local governmental body exists, such as in the northern extremes of the province that are not municipally-organized [Act s.50].

Where Indian bands act as delivery agents they have been marginally effected by the small legal revolution in the relationship between natives and governments in Ontario. In the Mushkegowuk Council v Ontario litigation series the province has effectively recognized the right of natives to be "consulted" before any major changes are made to welfare laws effecting their people. That case challenged the 1995 welfare rate cuts as illegal for lack of such consultation.

(b) Welfare Computer System

Delivery agents maintain their files in a form and computer system established by the province [Act s.42]. They must also collect personal information on a claimant, and report information on claimants to the province when requested [Act s.40,41].

The computer system, purchased from Andersen Consulting (now Accenture) - a large multinational corporation that had been shopping similar welfare 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 it's 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.
There were also well-publicized technical problems with the computer system when the new Liberal government tried to implement a (meagre) 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 Ontario Works and "Policy"

. The Director of Ontario Works

The Province's direct voice in the administration of welfare is the "Director of Ontario Works" [Act s.47], a very low-profile provincial appointee who acts primarily through staff. The Director of Ontario Works is responsible for establishing and monitoring delivery standards, assessing how delivery agents will be compensated by the province for delivery costs, reviewing the finances of each delivery agent's operation, and in some cases withholding payment of delivery costs where deemed appropriate [Act s.48].

Further, the province - through the Director - may at any time take over the role of delivery agent if the province determines it is necessary [Act s.50].

. Policy-Making Role

The Director has the primary policy-making role in welfare administration, that of making policies which delivery agents are legally bound to follow [Act s.39(2)]. Failure to meet these standards and duties may result in the province ordering fines, penalties and interest payable to the province or other involved parties [Act s.53,54,78]. These are collectable by deduction against any other monies due to delivery agent (again, usually a municipality) by the province [Act s.56]. This aggressive "tough love" approach to delegated bodies is characteristic of the Progressive Conservative government elected in 1995, which passed the current governing pieces of legislation into law.

. The Legal Status of Policy

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.

Another key feature of "policy" is that - because it is not law - it can also be varied and excepted unilaterally by those who make it. In fact, the rigid application of policy by a decision-maker can result in their decision being over-turned by a court: see s.3 "Fettering Discretion" in: Criminal Injuries Compensation: Questionable Board Practices.

Recently updated welfare "Policy Directives" are publically available on-line OWA 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 by an imaginative recipient who establishes their own personal "code" for dealing with welfare 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, but reflect 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 from their own reading of statutes and regulations. To do otherwise is to betray 800 years of English common law civil rights advancement bought with blood and courage foreign to Mike Harris and his soft-handed ilk.

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 to reduce chargeable income. 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.
Put plainly, policy is not law. It is a compilation of guidelines made by the Director of Ontario Works for the use of delivery agents and their staff. If it varies from the law then it will be superceded, but - barring the delivery agent being convinced otherwise - only by an appeal body such as the Social Benefits Tribunal or a court.

(d) Cost-Sharing Between Delivery Agents and Province

'Delivery agents' (typically municipalities or Indian bands) are the bodies that directly administer and pay welfare. The standard cost-sharing formula between the province and delivery agents for years has been that the province pays 80% of "assistance costs" (actual assistance payments), and 50% of administrative costs [Act s.51,52; Reg 135/98, s.7]. However, starting in 2010, the province will annually increase it's share of assistance costs until in 2018 and forward the percentage is 100%. Municipalities in the Greater Toronto Area have their own cost-sharing formula until 2012.

In the case of native reserves the province picks up 100% of all assistance-related costs. Non-native delivery agents are compensated in full by the province for any assistance costs for claimants who are former residents of reserves, until the claimants have lived in the delivery agent's geographic area for one year [Reg 135/98, s.8].

Each delivery agent gets a maximum of $8.75 per month per claimant for discretionary benefits such as travel and transportation, vocational training, moving, funeral and other similar expenses. Health-related discretionary benefits, including health travel, are not so restricted and fall under the general cost-sharing formulae [Reg 135/98, s.7.1].

(e) 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.

Full appeal procedures are discussed in Ch.10 "Appeals and Other Remedies".

(f) 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.36], which means that fact-findings - unless they manifest an "overriding and palpable" 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.10).

It is a standard and well-established principle of interpretating "benefits-conferring" legislation such as the Ontario Works 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 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 sometimes "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's new approach to social assistance by cutting welfare rates by 21%. The effect of these cuts has been exacerbated since that time, as welfare (and ODSP) rates are NOT "cost-of-living" or otherwise inflation-indexed by statute.

Since the Liberal government came into power in 2003, they have eliminated a few of the worst aspects of the old Tory welfare regime, including the cumbersome and alienating phone-intake system - and of course the life-time ban on social assistance eligibility upon conviction of any form of welfare fraud. However the Liberals did not reverse the 1995 cuts and their impact is still felt, despite periodic inflationary-style rate increases brought into force over the last several years by a series of Regulation amendments. Other than these 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.

The stated purposes of the Ontario Works Act, drawn from the Acts of legislature themselves, are quoted below.
OWA 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. 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. Welfare recipient are subject to constant monitoring of employment efforts and financial status, and are required to participate in half-hearted, underfunded remedial programs (ie. 'workfare').
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