Simon's Megalomaniacal Legal Resources

Welfare (Ontario Works) Legal Guide
(20 June 2021)

Chapter 11 - Workfare

1. Overview
   (a) General
   (b) Who Must Participate in Workfare
   (c) Who Can Voluntarily Participate
   
2. Participation Agreements
   
3. Community Participation
   
4. Employment Measures
   (a) Overview
   (b) Literacy
   (c) Education Programs
   (d) Substance Addictions
   . Overview
   . Substance-Addiction Screening
   . Assessment Programs
   . Treatment
   (e) Employment Information Sessions
   
5. Duty to Work
   (a) General
   (b) Loss of Work and Fault
   (c) Case Law
   
6. Exemptions from Workfare
   
7. Non-Compliance
   (a) Overview
   (b) Applicants
   . Refusals
   (c) Recipients
   . Overview
   . Non-Compliance

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1. Overview

(a) General

Formally, welfare assistance is divided into two types: "basic financial assistance" (Ch.3 "Basic Assistance") and "employment assistance" [Act s.3]. However most people think of the financial assistance when welfare is discussed, and the "employment assistance" is really a duty or "condition of eligibility" known as "workfare".

"Employment assistance" (aka "workfare") [Act s.4] includes "community participation" (s.3 below) and a variety of "employment measures" (s.4 below), which typically include education, training, and volunteering placements. As well, there is a general "duty to work" (ie. seek, maintain and improve employment, s.5 below).

Participation in workfare is a "condition of eligibility" [Act s.7(4); Reg s.3], failing which assistance may be refused or reduced (see s.7 "Non-compliance", below) - unless the participant is otherwise exempted from participation (see s.6 "Exemptions from Workfare", below).

(b) Who Must Participate in Workfare

These workfare duties apply to "participants", which means any member of the benefit unit except:

• minors in temporary care (see Ch.2 "Claimants"), and
  
  
• dependent minors who are either of pre-school age or are attending school.

Of course, the administrator can excuse any member of the benefit unit from workfare participation on a variety of grounds (s.6 below).

With some exceptions, non-disabled spouses and "dependent adults" within ODSP benefit units are also required to participate in workfare [ODSP Reg s.6].

(c) Who Can Voluntarily Participate

Even if the administrator does not require a particular member of a benefit unit to participate in workfare, the following may still do so voluntarily [Act s.6; Reg s.31]:

• a recipient or a dependant (which includes spouses);
  
  
• ODSP applicants and recipients, their spouses, and dependent adults;
  
  
• any member of the benefit unit temporarily deferred mandatory workfare participation by the administrator.

Anyone not already in a welfare benefit unit will have to make a separate welfare application to voluntarily participate in workfare [Reg s.24].

Of course, failure to adequately participate in workfare for such 'volunteers' does not impact eligibility.


2. Participation Agreements

To embody the terms of workfare participation, written and signed "participation agreements" must be completed on the initial welfare application by the claimant, their spouse and by any administrator-designated dependents [Reg s.18].

The specific terms of the participation agreement are said to be 'negotiated' with the administrator. However - because in most cases workfare participation is mandatory (at threat of disentitlement from financial assistance), and because the administrator has a unilateral legal right to establish and amend the participation agreement as to terms, conditions and duration [Reg s.29(1), 30] - the concept of 'negotiation' is clearly misleading. The participant, though they will be consulted on initial application, has little other than suggestive control over the contents of their plan. The only restriction placed on the administrator in setting the terms of participation is that the member must be "physically capable" of performing the activity.

That said, administrators will often take into account previous skills, pre-existing relationships and preferences of the member in establishing the nature of workfare participation. Indeed, many members already have pre-existing volunteering arrangements which they simply 'convert' into their workfare duties.


3. Community Participation

"Community participation" includes participation in activities that contribute to the "betterment of the community" [Act s.2]. Practically it means any of a wide range of volunteering activities with an approved community agency.

Community participation shall not be for more than 70 hours per month [Reg s.29(2)].

The Labour Relations Act, 1995 does not apply with respect to participation in a community participation activity under this Act (ie. they can't unionize). More specifically, community participation participants are prohibited from joining trade unions, collective bargaining and striking with respect to their community participation activities [Act s.73.1].

As well, participants in workfare community participation are fully exempt from the Employment Standards Act [ESA s.3(5)]. That means that basic employment standards like minimum wage, overtime, hours of work and similar do not apply to them.


4. Employment Measures

(a) Overview

"Employment measures" can include a wide range of activities, as follows [Reg
s.26]:

• job search
  
• job search support services
  
• literacy screening questionnaire, assessment and/or training
  
• basic education and job specific skills training
  
• employment placement
  
• an education or training program approved by the administrator
  
• self-employment activities approved by the administrator
  
• supports to self-employment
  
• substance addiction screening tests, assessment and treatment
  
• programs to obtain a high school diploma, to develop employment skills, and to further develop parenting skills
  
• attending employment information sessions required by the administrator.

Some of these specific activities are discussed in more detail in the following sub-sections.

(b) Literacy

"Literacy" for purposes of employment measures includes literacy in either English or French, and numeracy [Reg s.25(2)].

Welfare administrators in geographic (welfare cachement) areas where appropriate programs have been established (as approved by the Director of Ontario Works) may require participation in literacy screening, assessment and training [Reg s.26,29(1.2)(a). Such literacy activities are not required if the participant member provides the administrator with a "written statement from a member of the College of Physicians and Surgeons of Ontario or a member of the College of Psychologists of Ontario certifying that the person has a learning disorder" [Reg s.29(1.3)].

Literacy screening may be required for any member of the benefit unit, except minors in temporary care and dependent minors (see Ch.2: "Claimants") who are under school-age or are attending school [Reg s.29(1.1)].

(c) Education Programs

Education and training programs can come in a broad variety of forms, all requiring approval of the administrator and inclusion in a "participation agreement" (see above). Sometimes other sources of public student funding may be available to assist with the costs of such programs.

While it is beyond the range of this program to explore all those funding sources in details, most forms of generally-available student funding such as loans, grant, bursaries and awards are subject to special income treatment (see Ch.6 "Income Rules: Student and Education-Related Income") and asset treatment (see Ch.7 "Asset Rules: Asset Exemptions: Student Loans").

As well, recipients should also be aware that some single full-time post-secondary students receiving student funding (or ineligible for it for various reasons) are categorically ineligible to receive welfare assistance (see Ch.2 "Claimants: Post-Secondary Students").

(d) Substance Addictions

. Overview

Welfare administrators in geographic (welfare cachement) areas where appropriate programs have been established (as approved by the Director of Ontario Works) may require participation in [Reg s.26.1,29(1.2)(b):

• substance addiction screening (testing);
  
• substance addiction assessment programs;
  
• substance addiction treatment.

. Substance-Addiction Screening

However, participation in a substance-addiction screening test shall not be required unless the administrator has "reasonable grounds to suspect that the person repeatedly uses a substance to the extent that the use may impair his or her ability" [Reg s.29(1.4)]:

• to participate successfully in another employment assistance activity; or
  
  
• to accept or maintain employment for which he or she is otherwise physically capable.

. Assessment Programs

Participation in a substance-addiction assessment program shall not be required unless the administrator has "reasonable grounds to suspect that the person repeatedly uses a substance to the extent that" all of the following apply [Reg s.29(1.5)]:

• he or she is periodically or chronically intoxicated;
  
  
• he or she has an overwhelming need to use the substance;
  
  
• the use results in substantial physical, psychological, economic or social harm to him or her;
  
  
• he or she has difficulty in voluntarily ceasing or modifying his or her use of the substance despite the harm that results from it; and
  
  
• the use may impair his or her ability,
  - to participate successfully in another employment assistance activity, or
  - to accept or maintain employment for which he or she is otherwise physically capable.

. Treatment

Further, participation in substance-addiction treatment shall not be required unless "the administrator is satisfied that" all of the following apply:

• the person repeatedly uses a substance to the extent that,
  
  - he or she is periodically or chronically intoxicated,
  
  - he or she has an overwhelming need to use the substance,
  
  - the use results in substantial physical, psychological, economic or social harm to him or her,
  
  - he or she has difficulty in voluntarily ceasing or modifying his or her use of the substance despite the harm that results from it, and
  
  - the use impairs his or her ability,
  
  (A) to participate successfully in another employment assistance activity, or
  
  (B) to accept or maintain employment for which he or she is otherwise physically capable;
  
  and
  
  
• the program is the least restrictive and least intrusive program that is appropriate in the circumstances.

(e) Employment Information Sessions

"Employment information sessions" may also be required as an "employment measure" from recipients, spouses and dependent adults [Reg s.17(3),26(10)].

Unlike other "employment measures", these sessions are conducted as part of the "application process" such that attendence at such a session by all required members is necessary for an application to be considered completed [Reg s.20(3)].


5. Duty to Work

(a) General

Alongside other forms of workfare ("employment assistance") participation duties (discussed above), claimants have a general duty to accept and maintain employment that they are "physically capable" of performing. Further - even if they are working - they have a duty to seek full-time or better-paying employment [Reg s.28].

This duty is a "condition of eligibility", failing which assistance may be refused [Act s.7(4)(d)] or suspended [Reg s.33,34]. The duty falls on the recipient, their spouse, and any dependent adults - unless they are otherwise exempted as per s.6 "Exemptions from Workfare", below.

(b) Loss of Work and Fault

Of course, loss of employment is not always the fault of the member of the benefit unit.

Generally, loss of employment is excusable when the claimant quits their job for just cause (constructive dismissal) or is fired without just cause. These issues are essentially the same as in employment law and both revolve around the degrees of respective fault of the claimant/employee and the employer.

A "constructive" dismissal occurs when the circumstances of employment become intolerable for any of a variety of reasons (eg. harassment, danger, medical inability), in which case the employee is entitled to treat the job as ended without fault on their part. A firing without just cause occurs when the employee's behaviour has been appropriate but they were still fired.

The difficulty in these distinctions for the claimant is that they will rarely know whether the job termination was justified or not (by either party) before a termination happens. Usually, after the termination occurs, welfare will assess the circumstances by consulting both the claimant and the employer, and then make its decision - leaving the recipient to bear the risk that the decision will go against them.

In rare circumstances the claimant could bring the circumstances to the attention of welfare beforehand and get their position at that time, hopefully obtaining some certainty about its impact on their welfare assistance.

These issues may also be accompanied by employment insurance disputes.

Constructive termination, just cause and other employment-related issues are considered extensively in the Isthatlegal.ca Employment Law (Ontario) Legal Guide, linked here:

Ch.6: Termination and Wrongful Dismissal
(c) Case Law

In Laviolette v Prescott and Russell (United Counties) 2 O.R. (3d) 253 (Div Ct, 1991) a GWA recipient who quit his Quebec job to be with his pregnant Ontario spouse was not penalized for it. The situation was held to be within the meaning of the term "circumstances beyond the control of the applicant".

In Kerr and Metro Toronto 22 OR (3d) 588 (Ont CA, 1995) a GWA recipient quit a full-time job to complete her high school education. The Court upheld her disentitlement as she was not "unable to obtain regular employment" which was a part of the definition of "person in need" in the GWA legislation (since repealed). Despite the laudable purpose, the decision to quit was entirely within the control of the recipient.


6. Exemptions from Workfare

Benefit unit members required to participate in workfare (as outlined in this chapter above), may still be temporarily excepted by any one of the following circumstances [Reg s.27(2); ODSP Reg s.6(2)]:

• participant is a sole support parent with at least one child (includes children receiving assistance in temporary care) for whom publically-funded education is not available (generally, a child not yet of school age);
  
  
• participant is a caregiver for a family member that requires ongoing and daily physical assistance because of disability, illness or old age, and that "persons providing support services to the household" have confirmed in writing that workfare participation is therefore impractical for the participant/caregiver;
  
  
• participant is 65 years of age or older;
  
  
• other exceptional circumstances, approved by the Director (not the administrator; ie. they will be set out in a Policy Directive).
  
  
• spouses and dependent adults in an ODSP benefit unit, for any of the above reasons and if they are already participating in activities adequate to assist them become and stay employed or increase their income from employment [ODSP Reg s.6(2)].

7. Non-Compliance

(a) Overview

Refusal or failure (variously, as below) by applicants, recipients or required members of their benefit units (ie. participants) to adequately participate in workfare as discussed above (sections 3,4,5) - barring any excepting circumstance (s.6 above) - can result in refusal of or reduction of "assistance" [Act s.14].

In cases of reduction, the assistance rate (ie. "budgetary requirements", see Ch.3 "Basic Assistance") shall be calculated as though the 'offender' is not a part of the benefit unit ("splitting-off"). Note however that the offender's income (see Ch.6 "Income Rules") and assets (se Ch.7 "Asset Rules") will still be counted for purposes of reducing and disentitling the benefit unit.

Previous "quit/fire" rules, which set out specific periods of suspension for unjustified termination of employment by an applicant/recipient, and for justified termination of an applicant/recipient's employment by an employer were revoked in June 2006 [Reg 261/06]. These changes may have little impact on administrator practice as the "quit/fire" rules are still essentially embodied in the persisting s.28 duty to accept and maintain employment, which has its own similar suspension penalties upon non-compliance.

(b) Applicants

The refusal "offences" applicable to applicants and participant members of their benefit unit include [Reg s.34]:

• refusal to comply with their "duty to work" requirements (s.5 above); or
  
  
• refusal to participate in their "community participation" (s.3 above) or "employment measures" (s.4 above) requirements.

In such cases, single person benefit units shall be refused eligibility. Where the benefit unit has dependents, eligibility may be granted but the bugetary requirements of the refusing members will be "split-off" from assistance as described above.

(c) Recipients

. Overview

The workfare "offences" and suspension penalties of a recipient and their benefit unit are set out here.

In any case of suspension, where the recipient or any member of their benefit unit requires a continuation of drug coverage (ie. drug card) "for a serious illness or serious health condition", then the drug card shall continue through the period of the suspension [Reg 33(1.1)(1.2)].

. Non-Compliance

The non-compliance "offences" of recipients and participant members of their benefit unit include [Reg s.33]:

• failure to comply with their "duty to work" requirements (s.5 above);
  
  
• refusal or failure to make reasonable efforts to participate in their "community participation" (s.3 above) or "employment measures" (s.4 above) requirements.

In such cases, the penalty is:

• for a single person benefit unit, suspension of benefits for one month for first non-compliance "offence", and three months if there has been a prior similar non-compliance "offence" under either welfare or ODSP (ie. for ODSP spouses or dependent adults under workfare duties) [OW Reg s.33(2), ODSP Reg 24];
  
  
• for a recipient with dependents (which includes a spouse), the allowance shall be reduced by the budgetary requirements of the person who offended for one month for the first non-compliance "offence" and three months if there has been a prior similar non-compliance "offence" under either welfare or ODSP (ie. for ODSP spouses or dependent adults under workfare duties) [OW Reg s.33(3), ODSP Reg 24].

For purposes of suspensions, time shall count from the date of the administrator's decision regarding the non-compliance [Reg 33(4)].

Assistance will not automatically re-start when the period of suspension is over, so recipients must re-apply at that time (see Ch.9: "Administrator Decisions: Cancellation, Suspension and Reduction Decisions: Re-Application and Reinstatement").

Where a recipient's suspension is grounded in refusal or failure to make reasonable efforts respecting substance addiction screening (testing), assessment programs or treatment, then the suspension or reduction may terminate earlier if the offending member enters into a participation agreement agreeing to engage in the activities (note that the suspension ends on the date of the agreement, not the date of actual compliance) [Reg 33(4.1)].

Where a recipient's suspension is grounded in refusal or failure to make reasonable efforts respecting a literacy assessment and/or training program, and if the administrator "believes on reasonable grounds that the participant may have a learning disorder," then the suspension may be held off for up to 90 days pending a letter from "a member of the College of Physicians and Surgeons of Ontario or a member of the College of Psychologists of Ontario" confirming the learning disorder. If such a letter is received there shall be no suspension.