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The Holiday Column (December 18, 2003)It is the holiday season once again and time for some legal tips on the commercial side of the season.
The Ease and Convenience of Credit CardsCredit cards can be very useful over the holidays. For example, when used carefully, credit cards can help you pay for unexpected emergencies. They allow you to take advantage of sales or special bargains. They help you keep track of your expenses by listing purchases on a monthly statement. You also avoid the danger of carrying large amounts of cash. Bill payments are simplified by allowing you to make one monthly payment.
There is, however, another side to the coin, or credit card in this case. It is easy to forget that the signing of a $100 sales slip is the same as handing the seller a $100 bill. In fact, it can amount to much more if you do not pay your account off completely each month. You will be charged interest on the outstanding balance. Interest charges can mount up quickly, as interest rates charged on credit cards are generally higher than those charged on other forms of credit. If you treat credit cards like cash and are aware of all the charges associated with them, they can be a great convenience. When you use credit cards, read and understand the rules on interest calculations. Dont set yourself up for any nasty surprises in the New Year. Debit Cards An Alternative Debit cards provide the convenience of credit cards but, because the cash is taken immediately out of your bank account, there is no risk that you will spend more than you have in your account. By not buying on credit you will not be burdened with high interest charges on your credit cards after the holidays. However, because your debit card is equivalent to cash, exercise caution when using it to avoid unauthorized access to your cash. For example, make sure no one can see you entering your PIN at the point of sale. WarrantieMany of the products, which you purchase, come with a specific limited warranty limited in time and the items, which it covers. A typical warranty covers any defect in material or workmanship for a period of one year from the date of sale. During that time the manufacturer agrees to correct such defects by supplying all parts and labour without charge. There are often conditions, which must be met in order for the warranty to be valid. Before purchasing an item, check the conditions of the warranty. For example, it may be the responsibility of the purchaser to return the product to the service depot for warranty work. The warranty may not cover problems connected with such things as faulty installation or the servicing of the product by other than authorized service centres. Retailers may also give their own warranties in addition to or instead of any manufacturer warranty. It is important, when considering the value of a specific limited warranty, to determine not only the limitations in the warranty, but also who is giving it as well as the persons ability to fulfil the promises in the warranty. In addition to specific limited warranties given by sellers, the law of Ontario protects purchasers rights by giving purchasers additional warranties on the sale of goods. For example, there is a warranty that the seller has the right to sell the goods. In addition, in certain circumstances, there is a warranty that the goods will be fit for the ordinary purpose for which they are used. If you have any questions about warranties or about any of the topics covered in this column, do not hesitate to contact us. We always welcome your questions and comments. To all our readers, our best wishes for the season. Susan Irwin/Peter Graham/Anthony Cuthbert A Caution to Hosts over theHolidays
(December 10, 2003)Tis the Season and you invite some friends over for a party. Good food and drinks are a natural part of the festivities. As a social host, are you responsible for damages caused by your guests after they leave your party when they have consumed too much alcohol?
The good news is that the courts have not yet found a social host liable for such damages. The bad news, apart from the fact that a number of social hosts have been sued, is the horrific damages that can be suffered by party goers on their way home from a party. In one case, a young man and woman were in the back seat of a car driven by a drunken partygoer. In the accident, the man was killed and his 18-year-old girlfriends spine was severed. She was left a paraplegic.
The fact that a social host has not yet been found liable for damages suffered by the actions of drunken guests does not mean that no liability exits.
The courts, in the lawsuits against social hosts, have dealt with the issue of social host liability as an expansion of tort law. A tort is a legal action for damages based on the actions or negligence of someone. In the context of responsibility for damages caused by those who have consumed too much alcohol, the courts have found liability on the parts of commercial hosts such as bars and restaurants. Employers have also been found responsible for the actions of their employees leaving office Christmas parties and other celebrations.
Social hosts do not make a profit from alcohol. This distinguishes them from commercial hosts. Social hosts do not have the special relationship of employer/employee, which distinguishes them from employers. However, the issues dealt with by the courts in considering the expansion of tort law to cover social hosts are the same as those dealt with in the commercial host and employer cases. The courts consider the foreseeability of damages and the proper duty of care of hosts to monitor and supervise the drinking of their guests. Based on the cases, organizations, such as the Canada Safety Council have suggested a number of risk management measures for social hosts.
These measures include:
Either don't drink or limit your own consumption of alcohol in order to track that of your guests. Know your guests - it is much easier to track the changes in behaviour of those you know. Try to serve all drinks yourself and avoid self-serve bars to track and monitor your guests' consumption. Consider hiring a bartender trained in alcohol service. Have plenty of non-alcoholic choices. Serve lots of food that has protein and fat - salt encourages more drinking and sugar does not mix well with alcohol. Meet, Greet and Repeat - meet and greet all your guests as they arrive in order to determine if they have had anything alcoholic to drink before arriving. If the party is an open house or cocktail format, repeat the process as guests leave. If a guest is intoxicated, encourage him or her to give you their car keys if relevant. Buddy up with a friend to assist in persuading the intoxicated person to take a cab. Keep the phone numbers of cab companies handy and tell the guest that a cab has been ordered - don't give them the option to refuse. If the guest is quite intoxicated, keep that person with you until they have sobered or can be left with a sober, responsible person. Only time will sober the person, not additional fluids or food. Offering a spare bed is a good recourse. If the person refuses to give the car keys or spend the night at your house, call the police. It may seem drastic, but it could be a choice between that of an upset friend or far more tragic consequences.Following these suggestions will assist social hosts in protecting themselves from liability and more importantly, their guests and others from the tragic consequences of over consumption of alcohol.
Peter Graham, Lawyer
Chronic Pain is Real (November 6, 2003)
The Supreme Court of Canada, in a recent, significant decision, has ruled that many Administrative Tribunals may consider issues under the Canadian Charter of Rights and Freedoms (the Charter) and that provisions of the Workers Compensation Act of Nova Scotia (the Act) related to benefits for workers suffering from chronic pain are in contravention of the Charter.
The appellants in the case, Martin and Laseur, suffered from chronic pain as a result of workplace injuries. According to the Act, the compensation benefits available to each of the appellants was limited to a four-week Functional Restoration Program in lieu of more extensive benefits normally available to injured workers. The appellants initially appealed to the Workers Compensation Appeal Tribunal, arguing that the arbitrary limitation of benefits for chronic pain sufferers was not enforceable, as it was contrary to Section 15 of the Charter. Section 15 ensures equality before and under the law and equal protection and benefit of law.
The two issues before the Supreme Court were i) whether the Workers Compensation Appeal Tribunal had the jurisdiction to make a decision about whether the Act contravened the Charter and ii) whether the provisions of the Act limiting chronic pain benefits actually did contravene the Charter.
On the first issue, the Supreme Court held that the Workers Compensation Appeal Tribunal did have the power to make a decision about the Charter. The Court noted that Canadians should be entitled to assert the rights and freedoms under the Charter in the most accessible forum available. In this case the most accessible forum was the Workers Compensation Appeal Tribunal. If the Tribunal didnt have the power, the appellants would have had to start parallel proceedings in the Courts to address their Charter arguments. The Court noted that any Tribunal decision was subject to review by the Courts.
On the second issue, the Supreme Court held that the provisions of the Act limiting chronic pain benefits was discriminatory and therefore contravened the equality provision of the Charter. The Court declared the provisions of the Act dealing with limited benefits for chronic pain sufferers were invalid but postponed the effective date of the invalidity for six months to give the Nova Scotia government time to change the Act.
The Court, in its explanation of how it had reached the decision on discrimination, noted that:
In the context of the Act, and given the nature of chronic pain, the differential treatment is discriminatory. It is discriminatory because it does not correspond to the actual needs and circumstances of injured workers suffering from chronic pain, who are deprived of any individual assessment of their needs and circumstances. Such workers are, instead, subject to uniform, limited benefits based on their presumed characteristics as a group. The scheme also ignores the needs of those workers who, despite treatment, remain permanently disabled by chronic pain. Nothing indicates that the scheme is aimed at improving the circumstances of a more disadvantaged group, or that the interests affected are merely economic or otherwise minor. On the contrary, the denial of the reality of the pain suffered by the affected workers reinforces widespread negative assumptions held by employers, compensation officials and some members of the medical profession, and demeans the essential human dignity of chronic pain sufferers. The challenged provisions clearly violate s. 15(1) of the Charter.
It is clear that the Supreme Court accepts chronic pain as real. The decision is a victory for injured workers generally and chronic pain sufferers in particular.
Peter Graham, Lawyer
The Hunting Column 2003(October 23 2003)With waterfowl, moose and bear seasons already open in various parts of the province, and with the deer season (firearm) about to open, it is perhaps a good time to review some legal issues that should be considered before heading out to the watch or the blind.
Hunters should be aware that they must have their firearms licence with them when they are in possession of their rifles or shotguns. Conservation Officers from the Ministry of Natural Resources, as well as the police, may ask you to produce your firearms licence. If you do not have a valid Possession and Acquisition Licence (PAL), Possession Only Licence (POL), or Firearms Acquisition Certificate (FAC), you can expect to have your firearms seized and to be charged.
This year hunters are also required to produce proof that the firearm they are using has been registered. It is an offence for any person to be in possession of a firearm without also having in their possession a Registration Certificate issued by the Canadian Firearms Centre for that rifle or shotgun. In other words, hunters will now have to be able to produce valid hunting licences, firearms licences and Registration Certificates if asked to do so by a Conservation Officer or a peace officer. Dont leave home without them!
Breaches of the rules and regulations dealing with firearms are criminal offences and a conviction will result in a criminal record. A hunter who isn't up-to-date on the rules associated with the sport will not find much sympathy in our Courts.
Responsible hunters also know that trespassing is probably one of the most common source of complaints during the hunting seasons. If its not Crown Land, and you don't have clear (preferably written) permission to hunt this year, STAY OFF THE PROPERTY. Wandering where you are not allowed to be can have serious consequences and can, depending on the circumstances, result in charges. Besides a fine, this nuisance behaviour can also result in hunting licences being revoked.
Finally, it always comes as a surprise to find out how many hunters simply ignore the issue of their legal liability in the event of an accident. Although the rate of injury and death in hunting is extremely low, accidents can and do happen. The financial consequences that could arise from an accidental shooting, both for the shooter and the victim, are overwhelming.
Some hunting and shooting organizations offer inexpensive liability insurance to their members that may also include coverage for accidental property damage. The Ontario Federation of Anglers and Hunters and the National Firearms Association are two of the better known organizations that have offered insurance packages.
Information on hunting is available from the Ministry of Natural Resources through its annual hunting handbook (Regulations Summary), its general information line, 1-800-667-1940, and at its website www.mnr.gov.on.ca. Information on the rules and regulations with respect to firearms can be obtained from the Canadian Firearms Centre at 1-800-731-4000.
- Susan Irwin, Lawyer/Executiv
e Director
The Hunting Column-2003(October 16, 2003)
With waterfowl, moose and bear seasons already open in various parts of the province, and with the deer season (firearm) about to open, it is perhaps a good time to review some legal issues that should be considered before heading out to the watch or the blind.Hunters should be aware that they must have their firearms licence with them when they are in possession of their rifles or shotguns. Conservation Officers from the Ministry of Natural Resources, as well as the police, may ask you to produce your firearms licence. If you do not have a valid Possession and Acquisition Licence (PAL), Possession Only Licence (POL), or Firearms Acquisition Certificate (FAC), you can expect to have your firearms seized and to be charged.
This year hunters are also required to produce proof that the firearm they are using has been registered. It is an offence for any person to be in possession of a firearm without also having in their possession a Registration Certificate issued by the Canadian Firearms Centre for that rifle or shotgun. In other words, hunters will now have to be able to produce valid hunting licences, firearms licences and Registration Certificates if asked to do so by a Conservation Officer or a peace officer. Dont leave home without them!
Breaches of the rules and regulations dealing with firearms are criminal offences and a conviction will result in a criminal record. A hunter who isn't up to date on the rules associated with the sport will not find much sympathy in our Courts.
Responsible hunters also know that trespassing is probably one of the most common source of complaints during the hunting seasons. If its not Crown Land, and you don't have clear (preferably written) permission to hunt this year, STAY OFF THE PROPERTY. Wandering where you are not allowed to be can have serious consequences and can, depending on the circumstances, result in charges. Besides a fine, this nuisance behaviour can also result in hunting licences being revoked.
Finally, it always comes as a surprise to find out how many hunters simply ignore the issue of their legal liability in the event of an accident. Although the rate of injury and death in hunting is extremely low, accidents can and do happen. The financial consequences that could arise from an accidental shooting, both for the shooter and the victim, are overwhelming.
Some hunting and shooting organizations offer inexpensive liability insurance to their members that may also include coverage for accidental property damage. The Ontario Federation of Anglers and Hunters and the National Firearms Association are two of the better known organizations that have offered insurance packages.
Information on hunting is available from the Ministry of Natural Resources through its annual hunting handbook (Regulations Summary), its general information line: 1-800-667-1940, and at its website www.mnr.gov.on.ca. Information on the rules and regulations with respect to firearms can be obtained by calling the Canadian Firearms Centre at 1-800-731-4000.
Susan Irwin, Lawyer/Executive Director
Renting Rules: CMHC's Online Guide (July 17, 2003)With the frenzy, pride and accomplishment of graduation behind them, many of Ontarios double cohort students will be moving on to college, university and employment opportunities. Such a move will likely involve leaving home and perhaps renting accommodation for the first time. Renting can present its own challenges and raise a whole host of questions for the new renter, including:
Can a landlord demand a security deposit? Do I have to give post-dated rent cheques? Can I keep my cat or will I be evicted for having a pet? Can I withhold my rent if the landlord doesnt repair the premises? How much notice do I have to give if I want to move?The answer to these and many other tenancy questions depends on where you live in Canada. The laws governing the right and obligations of landlords and tenants are different in each and every province and territory.
For example in Ontario, security deposits are not allowed. A landlord may demand payment of the first and last months rent at the start of the tenancy, but the last months rent is not a security deposit because it can never be used to cover damages and repairs. The landlord can only use the deposit to cover the last months rent and is obligated to pay to the tenant interest on the deposit at the rate of 6% compounded annually. Elsewhere in Canada however, with the exception of Quebec, security deposits are allowed, although the amounts and interest provisions vary.
In Ontario, under the Tenant Protection Act you cannot be evicted for having a pet unless your pet causes damage or bothers other tenants. Other provinces are not so accommodating - if the lease prohibits pets, then you can expect to be evicted for keeping Fluffy.
Landlords in Alberta can demand post-dated cheques from tenants but not in Ontario (although they may be suggested). Notice periods and frequency of rental increases also vary across the country. In Ontario and Nova Scotia a landlord is limited to an annual rent increase, whereas a tenant with a one-year lease in Alberta may face a rent increase every 180 days. And even though the frequency of rent increases is the same in Ontario and Nova Scotia, the required notice period is different: 90 days in Ontario and 4 months in Nova Scotia.
Clearly if you want to avoid a bad rental experience it helps to know the rules. Before signing a lease or verbally agreeing to rent a room, apartment or house, make sure you know your rights and obligations as a tenant, as well as those of the landlord, in the province or territory where you will be living.
To make it easier for tenants, landlords and property managers across Canada the Canada Mortgage & Housing Corporation (CMHC) has published an online renters guide at www.cmhc.ca. To access the guide from the CMHC home page, go to shortcuts for individual consumer and click on renter.
Once at the guide youll be able to view provincial and territorial fact sheets summarizing the key provisions of the governing legislation as well as a listing of other resources for more information. The guide also allows you to explore most aspects of the rental process, including:
how to look for rental accommodation, how to prepare for your meeting with a landlord, what questions a landlord can or cannot ask, what to do once youve entered a rental agreement, dealing with issues during the tenancy and moving out.Theres even an illustrated feature about common household pests like fleas and cockroaches with measures to eliminate them.
For those without internet access a written guide from CMHC is in the works but not yet published. In the meantime, information on landlord and tenant issues is available without charge for residents of northern Frontenac and northern Lennox & Addington counties from Rural Legal Services. Please give us a call at 613-279-3252 or toll free at 1-888-777-8916.
Information can also be obtained from the Ontario Rental Housing Tribunal at 1-888-332-3234 and for landlords from the Landlords Self Help Centre at (416) 504-5190.
Susan Irwin, Lawyer/Executive Director
Who Makes The Law (June 19,2003) By Peter Graham Lawyer The title of this column is taken from the headline of a letter from Leo M. van der Ham in the May 8 edition of the Frontenac News. In his letter Mr. van der Ham was surprised that the Court of Appeal in British Columbia, rather than the government, was making the decision that same sex marriages should be legal. Without commenting on the merits of the decision, Mr. van der Ham questioned how Canadians could be subject to the whims of unelected jurists. He thought laws could only be made by elected representatives who were accountable to the Canadian people.
The answer to Mr. van der Hams question could fill this newspaper. My challenge is to give a brief overview in the next few paragraphs.
The laws passed by all governments in Canada are subject to review by the Courts to ensure that such laws are consistent with the Constitution, the supreme law of Canada. The Constitution includes the Charter of Rights and Freedoms.
The underlying purpose of the Charter is to place in the hands of individuals the means to more effectively enforce and enjoy their fundamental rights and freedoms. The rights and freedoms protected by the Charter include freedom of religion, expression, assembly and association, various procedural and other legal rights and the right to equal protection of the laws. It was the equal protection of the laws that was at issue in the case referred to by Mr. van der Ham.
The Court found that same sex couples were not receiving equal protection of the law in B.C. because they were denied marriage licenses. The Court then turned to the question of whether such unequal treatment could be justified in a free and democratic society. The Charter provides that the rights protected by the Charter are limited to the extent such rights are justified in a free and democratic society. If the unequal treatment can be justified there is no contravention of Charter rights. However, in the B.C. case, the Court found that such unequal treatment could not be justified.
A hot topic for debate in legal circles is the proper role of the Courts in determining whether laws contravene Charter rights. For example, in determining whether a particular law is justifiable in a free and democratic society, should the Courts have the power to determine whether the law is correct or simply whether it is reasonable? If the Courts have the power to determine correctness, they have significant power to consider the policy behind the law. Based on decisions of the Supreme Court of Canada, the Courts have the power to determine the correctness of a particular law and therefore have substantial scope in considering public policy matters. Some argue that the Courts should look only at the reasonableness of the laws and leave the policy making to the governments. In other words, the Courts should show more deference to the governments who are elected by the people.
As interesting as the debate is, there is a trump card available to any government willing to stand up for its convictions. The Charter provides that any law passed by governments in Canada can be free from review by the Courts for consistency with the Charter if the law specifically provides that it shall operate notwithstanding the provisions of the Charter. That is, the law would be free from scrutiny by the Courts under the provisions of the Charter protecting freedom of religion, expression, assembly and association, the various procedural and other legal rights, and the right to equal protection under the laws.
In the case referred to by Mr. van der Ham, the government is free to override the Charter and effectively overrule the Court by passing a law that states that notwithstanding the provisions of the Charter, marriage does not include same sex unions.
It seems to this writer that so long as governments have the power to override the Charter, ultimate power rests with elected officials and Canadians are not subject to the whims of unelected jurists. However, by making it necessary for governments to specifically override basic freedoms, the Charter, as interpreted by the Courts, provides an essential protection against arbitrary government action.
Your comments or questions arising from this very brief overview would be most welcome.
A guide to Programs and Services for Seniors in Ontario (June 6,2003)The mandate of the Ontario Seniors Secretariat , which is part of the Ontario Ministry of Citizenship, is to improve seniors quality of life, and to educate seniors, their families, caregivers, and colleagues about programs and services to which they are entitled.
The Secretariat has recently released A Guide to Programs and Services for Seniors in Ontario. The Guide aims to bring together into one resource the programs and services provided to Ontario seniors by the government, as well as by community organizations and service providers. The Guide was developed in consultation with both provincial and federal government ministries, major seniors organizations and service providers and members of the Ontario Seniors Secretariat Seniors Liaison Committee.
The Guide provides a general introduction to programs and services for seniors, plus telephone, e-mail and Internet sources where seniors can learn more about specific programs or services. The Guide even provides tips for using these technologies to those who may be unfamiliar with or have difficulty using them.
The Guide is divided into 16 chapters covering a wide range of services, from Disability Supports to Active Living, Leisure and Travel.
My attention was immediately drawn to the chapter on Legal Matters, Human Rights and End of Life Issues. This chapter gives information on: how to find a lawyer; Legal Aid Ontario; Ontario Human Rights Commission; Office of the Public Guardian and Trustee; advance care planning; organ and tissue donation, and wills and estates. As regular readers know, these are topics often discussed in this column.
Another helpful chapter provides information on Consumer Information and Protection. Topics include where to get consumer information and advice, and specific information on door-to-door sales as well as frauds and scams. The Guide notes that with many departments and agencies involved in different aspects of consumer issues, finding the right information or the right contact can be a daunting task. A good place to start is the Canadian Consumer Information Gateway web site at www.consumerinformation.ca, which provides access to provincial, federal and territorial consumer information.
Under Disability Supports there is information on many programs and services for seniors requiring assistance including: the Assistive Devices and Home Oxygen Programs; Disabled Person Parking Permit Program; transportation services for persons with disabilities; tax credits for persons with disabilities; Residential Rehabilitation Assistance Program for Persons with Disabilities and Ontario parks and facilities for persons with disabilities.
In the chapter on Active Living, Leisure and Travel there is information on nutrition, sports and recreation and the outdoors. The chapter also covers travel and things to see and do in Ontario.
We have a paper copy of the Guide at the legal clinic if anyone wishes to consult it. One may order ones own copy by contacting the Ontario Seniors Secretariat, Ministry of Citizenship, 77 Wellesley St. W., 6th Floor, Ferguson Block, Toronto, ON, M7A 1R3 or calling 1-888-910-1999. As the Guide is rather a substantial volume of 230 pages, it may be easier to consult it online at www.gov.on.ca/citizenship/seniors.
- Peter Graham, Lawyer
Legalese Boating Refresher (May 22,2003) With the long May weekend just behind us, Im sure everyone is looking forward to launching into those long hazy days of summer! However, long gone are the days when any person could launch and operate a boat of any size without appropriate training or experience.
In an effort to reduce the number of accidents and fatalities experienced in recreational boating, regulations under the Canada Shipping Act were passed several years ago to impose competency requirements for the operators of recreational boats. Boat operators, just like drivers of motor vehicles, are expected to be aware of the rules that govern their activities. These rules and requirements depend on several factors, including the age of the operator and the size of the boat and motor to be used. If you want to avoid troubled waters, make sure you know how the rules apply to you and your choice of craft! For example, all persons regardless of their age who are operating powerboats less than four meters in length, including Personal Water Craft (PWC or Seadoos) must carry proof of competency. Proof of competency for operation of a powerboat can be obtained by: Successful completion of a written test administered by an accredited course provider (usually after completion of a Canadian Coast Guard approved boating safety course given by that accredited provider); Completion of a dockside boating safety checklist when renting a boat (good only for the time of rental), or, Proving the successful completion of an acceptable boater safety course prior to April 1, 1999 (including a course taken in another jurisdiction).Minimum age limits also apply to the operation of powerboats and PWCs. Only persons 16 years of age who have proof of operator competency can lawfully operate a PWC. Children under 12 years of age may not operate a boat with more than a 10 hp motor unless accompanied and directly supervised by a person 16 years or older, while 12 to 16 year olds may not operate a boat with over 40 hp without the presence and supervision of an older person.
The regulations also impose extensive safety equipment requirements for all boats, including canoes, kayaks, rowing skiffs, paddle boats, sailboats and PWCs. The larger and more powerful the boat, the longer the list of required safety equipment. At a minimum, boats must be equipped with approved personal floatation devices or life jackets of appropriate size for each person on board, a towline, a manual propelling device (such as a paddle) or anchor, a bailer or manual water pump, a watertight flashlight or flares, and sound signaling equipment. Navigation lights may also be required. Charges can be laid against the operators of boats who fail to provide proof of competency, or who are operating a boat without proper safety equipment. (The old floating seat cushions are not approved personal flotation devices). Operators can also be charged with a whole host of other offences, from being impaired to operating a craft in a careless way that could adversely affect the safety of others. In this column only a few of the more important points have been touched on. More information can be obtained by calling the Canadian Coast Guards Boating Safety Line at 1-800-267-6687 or visiting their website at www.ccg-gcc.gc.ca. Courses for operator competency are also offered locally.Safe Boating!Susan Irwin, Executive Director/Lawyer
Denial by Design . . . The Ontario Disability Support Program (May 15, 2003) In 1998 the Ontario government introduced the Ontario Disability Support Program (ODSP) as a separate income support program for people with disabilities that meets their unique needs. The Community Legal Clinics across Ontario have found that the reality, over the past five years, has not met expectations.
To address the many problems associated with the ODSP, the legal clinic system joined forces with other concerned organizations, including the Canadian Mental Health Association, Centre of Addiction and Mental Health, Coalition of Family Practitioners and CONNECT/Canadian Hearing Society to form the ODSP Action Coalition. Forums were held across Ontario to identify problems and formulate proposed solutions. In January of this year the Income Security Advocacy Centre, a specialty community legal clinic in Toronto, released a comprehensive report outlining the many problems with the ODSP application and adjudication process. The report, entitled Denial by Design . . . The Ontario Disability Support Program, was based on information collected from the case files at the legal clinics and at the forums.
The report identified several problems with the ODSP application process. For example, it found that it is generally acknowledged that the application process is complex. The application process is a paper one, which entails completing several forms - a Health Status Report, Activities of Daily Living form and a Self Report. The forms are difficult to complete, as the information requested is vague and often difficult to ascertain. There is no assistance available to clarify the information requirements. The report includes in its recommendations that the forms be simplified and shortened. It also calls for the provision of clear language information and training on the application process for applicants, community agencies and health practitioners.
A major complaint with the adjudication process is the fact that it is a paper process only. That is, the Disability Adjudication Unit bases its decision on whether an applicant is disabled solely on written reports and forms, without the opportunity of meeting the applicant. The adjudicators tend to require excessive and unnecessary medical documentation. The high initial denial rate is shown to be unnecessary, as many of the denials are overturned on appeal to the Social Benefits Tribunal (SBT). Overall, in the 2000/2001 fiscal year, close to 50% of appeals to the SBT resulted in the original denial being overturned.
The report is an attempt to outline major problems in the application and adjudication process of the ODSP and make recommendations for change. It notes, however, that there are also many problems associated with ODSP for those receiving benefits. Problems for recipients include the adequacy of benefit levels, employment supports and client services.
Representatives of the ODSP Action Coalition met with Brenda Elliott, Minister of Community, Family and Childrens Services on January 27, 2003. The Coalition presented the report and forum findings. The Coalition focused on four main recommendations: raise the rates; simplify applications and provide help for people with the complicated application process; improve the earnings and work-related rules; and restructure the local offices to improve client support. Four joint working groups have been struck to improve the ODSP. Well keep you posted.
The report Denial by Design . . . The Ontario Disability Support Program may be viewed on the web site of the Income Security Advocacy Centre at www.incomesecurity.org.
Peter Graham, Lawyer
Spring Passages - Remembering Fred (May 1, 2003)
As the snow fell on Wednesday, April 23, 2003, family, friends and colleagues joined together at St. Andrews Anglican Church in Sharbot Lake to remember Frederick Talbot Tomkins. And there was much to remember.
His contributions to our community were many, from his strong voice with the Arden Glee Club to his longstanding support for the provision of local services by Rural Legal Services and Northern Frontenac Community Services. Fred kindly served repeated terms as a Director of Rural Legal Services and was still an active member and serving Director when he died on April 13, 2003. Rural Legal Services will now miss the wit, perceptiveness and intelligence that Fred brought in abundance to the Board table.
Last December another longstanding Board member, David Brison passed away. David was one of the founding Directors of Rural Legal Services and like Fred, generously served repeated terms. His support has been very much missed.
People like Fred and David serve to remind us of the invaluable service that all volunteers provide to the community. On behalf of the Board and staff of Rural Legal Services I am grateful for this opportunity to publicly recognize the contributions made by David Brison and Frederick Talbot Tomkins to the legal clinic and our community.
Bill 191- 2002In recent weeks articles appearing in local papers have informed readers of upcoming changes to the Highway Traffic Act intended to ensure the safety of emergency vehicles that are stopped on a highway, and the safety of people who are outside those stopped emergency vehicles. On April 3, 2003 Bill 191 became law. Ontario motorists will now be expected to slow down if they see an emergency vehicle stopped on a highway with its red light flashing, and if safe to do so, to move into a lane not adjacent to the emergency vehicle. Failure to do so will be expensive. Motorists convicted of a first offence will face a fine of $400 to $2,000, and for subsequent offences a minimum fine of $1,000 up to a maximum of $4,000.
Bill C-28In the 2002 throne speech the Federal Government announced its promise to make provision for Canadians to care for a gravely ill or dying child, parent or spouse without putting their jobs or income at risk. Bill C-28 contains amendments to the Employment Insurance Act that will make good on this commitment as of January 1, 2004. The provisions are however, more limited than some of us would have hoped.
The Bill provides employees with up to six weeks of benefits to care for certain family members. In order to take advantage of these compassionate care benefits an employee must have at least 600 hours of insurable employment in their qualifying period. They must also obtain a certificate from a medical doctor in respect of the ill family member that indicates that the family member has a serious medical condition with a significant risk of death within 26 weeks, and that he or she requires the support of one or more family members. Only one certificate can be issued within the 26-week period.
As well, since the proposed amendments to the Employment Insurance Act only make provision for the payment of benefits and not for job protection, further amendments will be required to employment standards legislation to ensure that an employees job is protected while on compassionate care leave.
But at least Bill C-28 is a start.
Susan Irwin, Lawyer/ Executive Director
Age-Based Mile Legal Milestones (April 16, 2003)In Ontario one is a child (minor) under age five, with none of the responsibilities of an adult. At age 18 one reaches the age of majority (becomes an adult) with all the rights and responsibilities of an adult. In between there are a number of legal milestones marking the transition from child to adult. This column reviews a number of them. The following information is taken from a Summary of Age-Based Legal Milestones for Youth in Ontario, prepared by Justice for Children and Youth. Justice for Children and Youth is a specialty legal aid clinic which aims to assist and empower children and youth in obtaining fair and equal access to legal, educational, medical and social resources. It is a sister clinic of Rural Legal Services, providing summary legal advice, information, and assistance to young people, parents (in education matters), professionals and community groups across Ontario.
Six and OverSchool attendance required.
Twelve and Over
Can be prosecuted for provincial offences such as truancy. Can be charged with a criminal offence. Can consent on ones own to counseling by service provider. Must consent before name changed.Fourteen and Over
Can be transferred to adult court for prosecution of a criminal offence. Can see adult accompaniment films without an adult. Can consent to sexual activity except with a person in position of authority or trust. Under Sixteen Can be apprehended and taken to place of safety and can be subject to child protection proceedings. Parents obligation to provide financial support is absolute and not dependent on where the child lives or why the child left home.Sixteen and Over
Considered an adult for purposes of the Provincial Offences Act and the Mental Health Act. Can voluntarily withdraw from parental control but may lose right to parents financial support. Can no longer be apprehended by the Childrens Aid Society. Can refuse emergency treatment. Can be or appoint a substitute decision-maker in medical treatment and personal care matters. If single, entitled to social assistance in special circumstances. Eligible for novice drivers license in graduated licensing scheme.Under Eighteen
Parents may be civilly liable for damages caused by their minor children. Liability based on failing to supervise and depends on maturity of the child.
If a student, entitled to reduced minimum wage.
Eighteen and Over Age of majority ceases being a minor. Can sue or be sued in his/her own name. Eligible to vote. Can appoint or be a substitute decision-maker with respect to property matters. Can no longer be subject of custody or access orders. Parents obligation to provide financial support ceases, unless in school full time. Eligible for social assistance, if in need. Entitled to earn full minimum wage. Can enter into contracts. Can make a will. Can change name. Can see restricted movie. Can marry without permission. Nineteen and Over Can consume alcohol. Can purchase tobacco. Eligible for GST refund credit.Thanks to Justice for Children and Youth for this interesting overview. If you have any questions arising from this column do not hesitate to give us a call.
Peter Graham, Lawyer
Two Kinds of Power of Attorney (April 10, 2003) Last week we talked about Powers of Attorney, contrasting them to Wills and simple agency agreements. This week well discuss how the Continuing Power of Attorney for Property, and the Power of Attorney for Personal Care work. This will help you determine whether one or both might be useful legal tools to add to your estate plan.
The Continuing Power of Attorney for Property (PofA Prop) is a legal document whereby you appoint one or more people, substitute decision makers (SDMs) to make financial and property decisions for you. Under a PofA Prop, without conditions or restrictions, your SDMs can make all property decisions for you except make a Will. A Power of Attorney for Personal Care (PofA PC) is a legal document whereby you appoint SDMs to make personal care decisions for you. Personal care decisions are the non financial day-to-day decisions, including decisions about health care, nutrition and shelter.
Both kinds of Powers of Attorney are legal tools whereby you decide who will make decisions for you if you cant. Being able to decide who will make decisions for you is the benefit of having Powers of Attorney prepared. The risk is that the incredibly powerful set of authorities granted to your SDMs may be mismanaged or misused. Bottom line, as noted last week, is that you have the utmost confidence and trust in your SDMs.
Powers of Attorney are flexible tools that can be modified to meet your particular circumstances and minimize the risk of misuse or mismanagement.
For example, rather than granting authority to one person you may grant it to two or more as a check and counterbalance. In that case you must specify how the authority is to be shared. Can the SDMs act individually or must they act together? If they must act together, what happens if they cant agree on a course of action? The Power of Attorney should set out a dispute resolution mechanism many are available.
The PofA Prop can be effective on the date of signing or on the date of incapacity. As it is difficult to determine and substantiate incapacity, it is our recommendation that the date of signing be the effective date. As a practical matter, until the SDM has the original document, his or her power will not be recognized by anyone asked to act on the authority of the SDM under the PofA Prop. Withholding the original document is one way to control mismanagement or misuse. If the PofA Prop is not to be effective until the incapacity of the grantor, the document should clearly set out how incapacity is to be demonstrated.
Unlike the PofA Prop, which can be effective as soon as it is signed, the PofA PC is only effective if and to the extent the grantor is incapable or making personal care decisions. The general test is that a SDM cannot make a decision under a PofA PC unless he or she has reasonable grounds to believe that the grantor is incapable of making the decision. The document can set out additional requirements to substantiate incapacity, such as a letter from a physician confirming incapacity. However, this additional protection may delay decisions to the detriment of the grantor.
There are many issues to consider in planning a Power of Attorney appointment. We have brochures at the legal clinic that set out these issues in detail. For more information you can give us a call or pick up a brochure. We would also be pleased to meet with you to discuss the issues and options available. If you qualify financially, we will prepare the documents for you as well.
Peter Graham, Lawyer
Employment Standards Act, 2000 (March 27, 2003)
The Employment Standards Act, 2000 (ESA) has been in effect in Ontario since September 4, 2001. The ESA was updated, according to the government, to facilitate flexible work arrangements and to promote the provinces global competitiveness. In many cases the increased competitiveness is gained at the expense of workers. Workers should be aware of the new rules.
The ESA sets out minimum workplace rights for most of Ontarios employees. There are exceptions, such as employees working for businesses under federal jurisdiction (e.g. banks), police officers and those holding political or religious office. Also some rules do not apply to some occupations. For example, the overtime rules do not apply to paramedics.
The ESA contains general rules but, as with its application, there are many exceptions and special rules. A new twist is that many of the rights of employees can be modified by an agreement between employer and employee. Employees should make sure that they understand the rules before entering into an agreement with their employer.
For example, the general rule covering hours of work provides for a maximum of eight hours per day and forty-eight hours per week. The exception to the daily maximum is when the regular work day, based on past practice for example, is longer than eight hours. The weekly maximum can be increased up to sixty hours if the employee and employer agree.
The ESA provides that employees are entitled to a thirty minute eating break after five hours of work. Employees can agree to take two fifteen-minute breaks instead. The employer is not required to pay for these breaks nor is there a requirement that a coffee break be given. The startling fact that coffee breaks are not mandatory highlights the fact that the ESA sets out minimum employee rights.
The general rule for overtime pay provides for pay, at a rate of time and a half, for hours worked in any week in excess of forty-four. The general rule can be modified by an agreement between the employer and employee whereby the hours worked are averaged over four week periods. This averaging reduces the amount of overtime in jobs with variable weekly hours.
Employees are entitled, after working for twelve months, to a minimum of two weeks paid vacation each year. Employees are also entitled to be paid for eight public holidays during the year. The ESA contains many rules covering eligibility for public holiday pay and the calculation of the amount of holiday pay.
The ESA provides for pregnancy and parental leave as well as a new category of emergency leave. It also covers minimum notice periods or pay in lieu of notice if employment is terminated.
Employees are able to enforce their rights through a claims procedure. Following a complaint to the Ministry of Labour, an Employment Standards Officer has the power to investigate the claim and order payment of unpaid wages and/or compliance with the ESA rules. There are time limits within which an employee must make a complaint. Therefore, if you think your employer is not following at least the minimum rules of the ESA you should enquire immediately.
If you have questions about the ESA, help is available by calling the legal clinic or the Employment Standards Branch of the Ministry of Labour. Detailed information about the ESA is available by calling the Ministry of Labour Publications at 1-800-809-4731 or by logging on to the Ministrys web site at www.gov.on.ca/lab/main.htm.
Peter Graham, Lawyer
Rural Legal Services opens Northbrook BranchOn February 5, 2003, Rural Legal Services opened the door of its new satellite office in Addington Highlands. Located at Land O Lakes Community Services Corporation in Northbrook, the opening of our new office witnesses the culmination of more than two years of negotiations with Legal Aid Ontario for funding to provide free legal services to the residents of Northern Lennox & Addington.
For more than 10 years Rural Legal Services, as a Community Legal Clinic, has received funding from Legal Aid Ontario to provide legal services to residents of North and Central Frontenac, as well as to residents of Bedford District in South Frontenac. Over the decade, as awareness of our services spread, we realized that that we were receiving an increasing number of inquiries from people living in Lennox & Addington who did not have access to a similar service. Consequently, when Legal Aid Ontario announced an expansion initiative for Community Legal Clinics in 2000, Rural Legal Services (RLS) submitted an proposal to provide services to the northern half of our neighbouring county.
Since funding was tied to population density, it appeared at first that no additional funding would be available even though Legal Aid Ontario determined that RLS would be responsible for delivering services to Northern Lennox & Addington. However late last year, funding was confirmed to allow us to commute to Northbrook one day per week to staff an office at Land o Lakes Community Services Corporation. Every Wednesday a lawyer will be available at Land O Lakes from 10:00 a.m. to 4:00 p.m. to meet with residents of Addington Highlands. Appointments should be arranged by calling our Sharbot Lake Office at 1-888-777-8916, Monday through Friday. Lawyers are also available at our Sharbot Lake office to answer calls or meet with you.
When you contact RLS the following legal services are available without charge:
Legal InformationInformation on a variety of legal topics is available to all residents of our geographic service area regardless of income. Our information services include:
identifying whether or not you have a legal problem identifying the legal issues discussing whether you need a lawyer and how to go about finding one if we are not able to represent you identifying whether there are other services such as government ministries or agencies that may be able to provide further assistance providing general information on legal topics including the distribution of pamphlets and brochures. RepresentationCasework and representation before our provinces courts and administrative tribunals is also available for residents of our geographic service area who meet the financial eligibility guidelines prescribed by Legal Aid Ontario. Our casework and representation services include:
Wills and Powers of Attorney Incorporation (notforprofit) Consumer/Contract/Debt Landlord / Tenant Ontario Works Ontario Disability Support Program Canada Pension Plan Disability Insurance Criminal Injuries Compensation Provincial Offences and Highway Traffic Act Public Legal EducationWorkshops and Public Information Sessions are organized and provided by our lawyers to interested community groups and members of the public. Most recently we have conducted workshops/sessions on Wills, Powers of Attorney, Landlord & Tenant issues, Employment Standards, and Officers and Directors Responsibilities.
If you would like to learn more about our services, and live in Addington Highlands, North Frontenac, Central Frontenac or Bedford District in South Frontenac, please give us a call at 279-3252 or toll free at 1-888-777-8916. Wed like to hear from you!
Susan Irwin, Lawyer/Executive Director
Employment Standards Act, 2000 (March 6, 2003 edition)The Employment Standards Act, 2000 (ESA) has been in effect in Ontario since September 4, 2001. The ESA was updated, according to the government, to facilitate flexible work arrangements and to promote the provinces global competitiveness. In many cases the increased competitiveness is gained at the expense of workers. Workers should be aware of the new rules.
The ESA sets out minimum workplace rights for most of Ontarios employees. There are exceptions, such as employees working for businesses under federal jurisdiction (e.g. banks), police officers and those holding political or religious office. Also some rules do not apply to some occupations. For example, the overtime rules do not apply to paramedics. The ESA contains general rules but, as with its application, there are many exceptions and special rules. A new twist is that many of the rights of employees can be modified by an agreement between employer and employee. Employees should make sure that they understand the rules before entering into an agreement with their employer. For example, the general rule covering hours of work provides for a maximum of eight hours per day and forty-eight hours per week. The exception to the daily maximum is when the regular work day, based on past practice for example, is longer than eight hours. The weekly maximum can be increased up to sixty hours if the employee and employer agree. The ESA provides that employees are entitled to a thirty minute eating break after five hours of work. Employees can agree to take two fifteen-minute breaks instead. The employer is not required to pay for these breaks nor is there a requirement that a coffee break be given. The startling fact that coffee breaks are not mandatory highlights the fact that the ESA sets out minimum employee rights. The general rule for overtime pay provides for pay, at a rate of time and a half, for hours worked in any week in excess of forty-four. The general rule can be modified by an agreement between the employer and employee whereby the hours worked are averaged over four week periods. This averaging reduces the amount of overtime in jobs with variable weekly hours. Employees are entitled, after working for twelve months, to a minimum of two weeks paid vacation each year. Employees are also entitled to be paid for eight public holidays during the year. The ESA contains many rules covering eligibility for public holiday pay and the calculation of the amount of holiday pay. The ESA provides for pregnancy and parental leave as well as a new category of emergency leave. It also covers minimum notice periods or pay in lieu of notice if employment is terminated. Employees are able to enforce their rights through a claims procedure. Following a complaint to the Ministry of Labour, an Employment Standards Officer has the power to investigate the claim and order payment of unpaid wages and/or compliance with the ESA rules. There are time limits within which an employee must make a complaint. Therefore, if you think your employer is not following at least the minimum rules of the ESA you should enquire immediately. If you have questions about the ESA, help is available by calling the legal clinic or the Employment Standards Branch of the Ministry of Labour. Detailed information about the ESA is available by calling the Ministry of Labour Publications at 1-800-809-4731 or by logging on to the Ministrys web site at www.gov.on.ca/lab/main.htm.Peter Graham, Lawyer
After Ontario Works (February 27, 2003 edition) A recent survey of people who have left the Ontario Works Program (OW) in Toronto indicates that the program has had some success in improving the lives of those who have participated in the program. But the success is limited and may well be short-lived.
The survey report, entitled After Ontario Works: A Survey of people who left Ontario Works in Toronto in 2001 was prepared by Toronto Social Services, the City of Toronto department which administers OW in Toronto.
The survey was directed at people who had left social assistance between January and March 2001. Its purpose was to gather information about the people, who left, including why they left, how they have fared and whether they are better off after leaving.
The survey report findings included the following.
Why did people leave OW?56% of survey respondents indicated that they had left OW for employment-related reasons (e.g. beginning or returning to a job, getting a better job).
44% of respondents exited the caseload for non-employment reasons (e.g. got another government benefit, started school).
What have people done since leaving OW?77% of respondents worked at some point subsequent to leaving OW (64% were employed at the time of the survey).
23% of respondents had not worked at all between the time they left OW and the time they were interviewed.
Are people better off after leaving OW?Persons with employment reported income in excess of OW benefit rates. However, in relation to Statistics Canadas 2001 Low Income Cut-Offs (LICOs), 68 % of respondents had annual wages below incomes which are considered to constitute straitened circumstances i.e. they spend more than 70% of their income on food, shelter and clothing.
OW recipients, incur new costs in making the transition to work. These costs include those required to maintain employment and the well being of their families. For example, OW covers the costs of prescription medicines. However, on return to work only 29% of respondents had drug plan coverage at work and 51% had no job related benefits at all.
Survey respondents reported that they continued to experience hardships such as being unable to make rent or mortgage payments on time and food shortages, but not to the extent experienced while on OW.
From an economic perspective, 52% of respondents did not consider their situation to have improved since leaving OW 19% felt things were the same and 33% thought their standard of living was worse. Despite the fact that the majority of survey respondents did not report they were better off financially after leaving OW, they did convey a sense of personal satisfaction and confidence with having left social assistance.
A critical question is whether the limited apparent successes of a workfare type program can continue or are they simply temporary. The findings of this survey, similar to those reported in American jurisdictions, suggest that the success of the work first programs like OW, which focus on moving people quickly into jobs rather than on skills and educational upgrading, is largely a by-product of strong economic conditions. While a majority of former OW recipients obtain jobs, the jobs are typically unstable and low paying with few benefits. For many, the net effect is a cyclical pattern of moving back and forth between social assistance and marginal employment. The effect is made worse by cuts to other income support and employment programs like federal Employment Insurance (EI).
The conclusion that programs such as OW are successful on only a temporary basis, at best, is echoed in a recent report of Human Resources Development Canada entitled Lessons Learned. That report noted, Even though short-term labour force attachment strategies can increase labour market participation, especially in high-growth economies, long-term outcomes for many clients are disappointing
Data continues to be collected on the effectiveness of OW. We, at the legal clinic, tend to see the cases where OW is less than successful. It is our hope that further study will convince the government to modify OW by increasing the emphasis on education and training, for example, so the long-term outcomes are not disappointing.
Peter Graham, Lawyer
Common Law doesn't equal Marriage (February 12, 2003)It can come as a nasty surprise to common law spouses in the throes of separation that they still dont share the same statutory rights to property division as their married counterparts. In Ontario, provisions governing the equalization of property are restricted by the Family Law Act to married spouses of the opposite sex, although common law spouses, including same sex partners, do have the same support rights as married spouses.
With the increasing social acceptance and prevalence of common law relationships many family law practitioners and academics are of the opinion that property rights, like support rights, should be extended to common law couples. It was therefore not surprising that the case of Susan Walsh and Wayne Bona was watched with great interest as it wove its way through the courts of Nova Scotia to the Supreme Court of Canada. Nova Scotia, like Ontario, also has legislation that provides for an equal division of family assets on separation or divorce where spouses of the opposite sex are married to each other.
Upon separating in 1995, Susan Walsh sought a declaration that the definition of spouse in Nova Scotias Matrimonial Property Act was unconstitutional and should be struck down. She and Wayne had cohabited for 10 years, produced two children, acquired a house and a cottage but never married. Walsh argued that the exclusion of common law relationships from the definition of spouse in the Nova Scotia Act discriminated against her equality rights under Section 15 of the Canadian Charter of Rights and Freedoms by denying her the same equal division of property granted to married spouses who separate.
Section 15 of the Charter provides that: Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination It followed that if Walshs claim succeeded before the Supreme Court of Canada, the definition of spouse relating to property division in Ontarios Family Law Act would be similarly suspect and open to challenge.
The decision of the Supreme Court of Canada was therefore eagerly awaited, but when delivered in December 2002 it was not what many in the legal community expected. To their surprise, the Court ruled that the different treatment of common law spouses and married spouses on separation was not unconstitutional.
The Court found that legislative provisions that attach advantages and burdens to marriage are not discriminatory in and of themselves. Although the Court recognized that the institution of marriage is treated differently, it determined that the different treatment was not discriminatory because those who choose not to marry are free to take steps to deal with their personal property in such a way as to create an equal partnership between them. That is, common law spouses are free to enter into a cohabitation agreement governing the ownership of property and its division on separation. Similarly, they can choose to own property jointly, justifying an equal division at the end of their common law relationship.
By structuring their property affairs in this manner, common law spouses can still avail themselves of the same economic benefits as married spouses. As a consequence, the Supreme Court ruled that Nova Scotias definition of spouse did not contravene the equality provisions of the Charter because it did not deny common law spouses access to an advantage available to married persons.
In reaching its decision the Supreme Court of Canada emphasized the right of an individual to freedom of choice noting that the decision to marry, or not, is an intensely personal one. Those who do decide to marry are making a contractual commitment to respect the consequences and legal obligations of their choice. To presume that common law couples want to be bound by the same obligations as married couples is contrary to their choice to live in a common law relationship without the obligations of marriage.
Given this decision by the highest Court in Canada, it is clear that unless the provincial governments move to amend family law legislation to extend the same property rights to common law spouses, those choosing to live common law would be wise to consider carefully their economic relationship with their partner and to structure their affairs accordingly.
Susan Irwin, Lawyer/Executive Director
The Right to Social Assistance (February 5, 2003) In a five to four decision, the Supreme Court of Canada has held that certain workfare provisions of the Quebec governments social assistance legislation did not violate either the Canadian Charter of Rights and Freedoms (the Canadian Charter) nor the Quebec Charter of Human Rights (the Quebec Charter).
The case of Gosselin v. Quebec challenged the validity of the 1980s workfare provisions in Quebec that dramatically reduced assistance to employable recipients under the age of 30. The Quebec government, for a two year period between 1987 and 1989, reduced the monthly social assistance payments to single employables under 30 to $170 (compared to the full amount of $507). The full amount was paid only to those single employables under 30 who participated in work placements or community work. It was an experiment in workfare, according to the government, to discourage reliance on social assistance and encourage job searches.
Louise Gosselin, who was unable to participate, had her benefits reduced and endured homelessness and many risks to her security. She challenged the workfare provisions as being contrary to section 45 of the Quebec Charter and sections 7 and 15 of the Canadian Charter.
Section 45 of the Quebec Charter states: Every person in need has a right, for himself and his family, to measures of financial assistance and to social measures provided for by law, susceptible of ensuring such person an acceptable standard of living.
Section 7 of the Canadian Charter states: Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
Section 15 of the Canadian Charter states: Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
The majority in the Supreme Court found that the Quebec Charter mandated only that the government be able to point to measures susceptible of ensuring an adequate standard of living without having to defend the wisdom of its enactments. The adequacy of the particular measures adopted was beyond the reach of judicial review.
The majority in the Supreme Court also found that the workfare provisions did not contravene either section 7 or 15 of the Canadian Charter.
According to the majority, the workfare provisions did not have a negative effect within the meaning of section 15. The majority found that Ms. Gosselin had not demonstrated that the government had treated her as less worthy than other welfare recipients, simply because it conditioned increased payments on her participation in programs. The programs were designed specifically to integrate her into the work force, thereby enhancing her dignity and promoting her long-term self-sufficiency.
Also, according to the majority, section 7 does not place positive obligations on the state, such as a positive obligation to guarantee adequate living standards. Rather, section 7 restricts the states ability to deprive people of their right to life, liberty and security of person.
The four dissenting justices found that the workfare provisions contravened section 15 of the Canadian Charter. The workfare provisions treated under 30s as less worthy than older people. The additional participation of younger people in workfare was based on the view that young people were able to survive a period of economic crisis better. These additional participation obligations perpetuated a stereotypical view of young peoples situation in the labour market.
It is significant that two of the four dissenting justices also found that the workfare provisions contravened section 7. They found that section 7 of the Charter imposes a positive obligation on the state to offer basic protection for the life, liberty and security of its citizens. If this ever becomes the prevailing view of the Court, it will have significant implications for the nature of Canadian society and the role of government within it.
