Legalese_07-22

Jeff Green | Jun 07, 2007

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Who is Disabled?

byWilliam A. Florence, Barrister and Solicitor

Legalese is a column of general information and opinion on legal topics by the lawyers of Rural Legal Services, Box 359, Sharbot Lake, ON, K0H2P0, 613-279-3252, or 1-888-777-8916. This column is not intended to provide legal advice. You should contact a lawyer to determine your legal rights and obligations.

I once heard a person who was “disabled” say that an apt description for non-disabled people is that they are “temporarily able”. He was commenting on the fact that for most of us, at some point in our lives, we will become disabled for one reason or another. There is a vast range of disability that we can experience; therefore defining disability is not a simple task.

The Canada Pension Plan and the Ontario Disability Support Program both provide benefits for “persons with disabilities”, and thus have to define who is disabled, and who is not. The Canada Pension Plan is a federal program, which among other things provides disability benefits. Employed Canadians make contributions to this program, and disability benefits are only provided to those who have contributed. One has to have made enough contributions to the Plan within a certain timeframe, in addition to meeting the definition of disability that is set out in the legislation.

The Canada Pension Plan defines disability as a physical and/or mental condition that is both “severe” and “prolonged”. “Severe” means that one is not physically and/or mentally capable of regularly doing their previous job or any other type of substantially gainful work. “Prolonged” means that the “severe” condition is expected to be long-continued and of indefinite duration or is likely to result in death.

The Ontario Disability Support Program Act is provincial legislation. The ODSPA defines disability as a substantial physical or mental impairment that must be expected to last more than one year. The impairment must result in substantial restrictions in one or more of the following activities of daily living: personal care; functioning in the community; and/or functioning in the workplace.

As mentioned above, disability is difficult to define. When the ODSPA and CPP legislation were drafted, the purpose of the legislation informed how disability would be defined. In part, the purpose of the ODSPA is to provide “income and employment supports to eligible persons with disabilities” and “recognizes that government, communities, families and individuals share responsibility for providing such supports”. There are stringent financial eligibility requirements; only those with low incomes would receive ODSP. The CPP legislation is different, as the purpose of the CPP is not modelled as a social welfare scheme, but more a compulsory social insurance scheme. Those who qualify receive CPP disability benefits regardless of current assets or income.

Former Chief Justice McMurtry of the Court of Appeal for Ontario compared the definition of disability under the ODSPA, to that of the CPP. Justice McMurtry stated: “it would appear that the current definition of “person with a disability” in the ODSPA was intended to encompass a broader segment of society and to provide assistance to persons with significant but not severe long-term functional barriers.”

The social welfare scheme of the ODSPA has a less strict definition of disability, which recognizes the shared responsibility of Ontarians in providing support to those who are disabled, as opposed to the social insurance scheme of the CPP, which has a more strict definition of disability. Defining disability is not simple, but the different purposes behind the ODSPA and the CPP can illustrate the meaning of the choices made for the respective definitions of disability.

Your community legal clinic is an excellent resource for further information.