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A Caution to Hosts Over the Holidays - Dec. 16/04The Holiday Season is once again upon usa time when many invite friends over for a party. After all, good food and drinks are a natural part of the festivities. Tis also a time to remember the potential responsibilities of social hosts for damages caused by their guests after they leave the party where they have consumed too much alcohol.
In the case reported in this column last year, a young man was killed and his girlfriend left a paraplegic following a collision with a car driven by a drunken guest of the defendant hosts. Since last year, the Ontario Court of Appeal has confirmed the lower court decision that the hosts of the party from which the drunken driver had just left were not responsible. However, it is a sobering thought that a number of social hosts have been sued. Even more chilling is the thought of the horrific damages that can be suffered by partygoers on their way home.
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 behavior 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.A final word of caution for the guests who advise that they dont really drink, as they limit themselves to wine. The Association of Canadian Distillers advises that a standard drink is a 12 oz. bottle of regular strength (5% alc./vol.) beer, or a 5 oz. glass of (12% alc./vol) table wine, or a 1.5 oz. measure of (40% alc./vol) spirits. Each of these contains 0.6 oz. of pure alcohol. THEY ARE DIFFERENT BUT EQUAL.
- Peter Graham, Lawyer
The Plight of the Judgement Creditor - Dec. 2/04The increase of the limit on Small Claims Court actions to $10,000 has been of assistance to people who have debts owed to them by debtors who refuse to pay. The Small Claims Courts procedures are not as technical as the higher courts and the costs involved in bringing an action are less. The court is designed for the layman to pursue remedies at a reasonable cost.
However, as a potential Plaintiff (one who is suing another), you should be aware of the challenges that lie ahead in the ultimate collection of your debt. To obtain a judgement from the Court, you must show that the Defendant is liable for the debt and you must also prove the amount of the debt. If you have persuaded the Court on these two counts, a judgement of the Court will be awarded against the Defendant.
Upon judgement being awarded, you, the Plaintiff, become a Judgement Creditor and the Defendant becomes a Judgement Debtor. However, the judgement does not necessarily mean that you, as Judgement Creditor, will be paid by the Judgement Debtor. Rather, the judgement gives you certain additional rights or remedies to collect the debt.
Those rights do not include the right to self-help by simply taking property from the Judgement Debtor. Although taking and selling property of the Judgement Debtor is one way of being paid, such seizure must be done in accordance with the following legal procedures.
To seize personal property you must apply for a Writ of Seizure and Sale of Personal Property. The Writ can then be enforced and the property of the Judgement Debtor seized and held for auction.
To seize real estate the Judgement Creditor must apply for a Writ of Seizure and Sale of Lands that is filed with the Sheriff of the county or district where the Judgement Debtor owns land. This filing may prevent the Judgement Debtor from selling or purchasing any land until the judgement is paid.
Another remedy available to collect a judgement is garnishment. Garnishment is the collection of money from someone who owes money to the Judgement Debtor. This is often the employer of the Judgement Debtor but can include others such as banks in which the Judgement Debtor has an account and persons who owe the Judgement Debtor money under a contract.
If, as a Judgement Creditor, you are not sure of the financial resources of the Judgement Debtor, you can arrange to have the Judgement Debtor attend at an Examination of Debtor before a Judge. During the examination you can ask questions about the bank accounts, assets, employment and related financial information about the Judgement Debtor. The Examination of Debtor will provide valuable information about the practicality of collecting on the judgement.
Although obtaining a judgement gives the Judgement Creditor more options to collect the debt, it is evident from the foregoing that obtaining a judgement is no guarantee that the debt will be paid. It should be kept in mind that each of these collection remedies involves fees, which are added to the judgement to be paid but will only be recouped if and when the judgement is collected.
Before starting an action to collect a debt, it is wise to do some research on the financial resources of the Defendant. In that way, you are able to make an informed decision about whether it is prudent to proceed or you are simply throwing good money after bad.
Peter Graham, Lawyer
To Incorporate or Not? - Nov. 18/04Today many communities are relying more on volunteer-based groups. With government unable to provide services, this trend will undoubtedly continue.
Groups formed for the good of the community are varied. They range from seniors groups to sports organizations providing recreational opportunities for youth.
When any such group forms, it is faced with a decision as to how best to organize. What is the best structure for the group to help it to reach its objectives?
A key issue is whether to incorporate or to run the organization as a non-incorporated association. By incorporating the group creates a separate legal entity, the not-for-profit corporation. In a non-incorporated association all members are essentially acting in their individual capacities.
The greatest benefit to incorporating is the protection of limited liability. As a separate legal entity the not-for-profit corporation can sue and be sued in its own name. Members of the corporation are generally not liable for the debts of the corporation.
Another advantage of incorporation is that it provides a framework for the organization. The by-laws set out procedures to be followed in operating the corporation. For example, they set out how and when meetings of members and directors are to be called. The by-laws provide details of the procedure to be followed at meeting - who is to chair the meetings and how many persons are required for a quorum. They often set out the duties of the officers of the corporation and committees of the Board. Generally, these procedures assist the organization by setting out rules describing who has the power and responsibility to take action on behalf of the corporation and how that power is to be exercised.
The Letters Patent, the document that is issued at the time of incorporation, sets out the objects of the corporation. The objects summarize the types of activities which the corporation is empowered to undertake. An advantage of this is that because the objects are clearly set out, all members will have guidance as to what the organization should be doing. A possible disadvantage is that the corporation cannot do anything that does not further its objects. To expand its field of activity, an application for Supplementary Letters Patent is required.
There are also a number of legal requirements to maintain a corporation. These include the filing of an annual return with the government that lists current officers and directors. Many records, such as minutes, registers of members and directors and financial statements, must be kept at the Head Office of the corporation. There is also an obligation for not-for-profit corporations to provide audited financial statements to its members each year at an annual general meeting of members.
Although there are some disadvantages to incorporating, the advantages frequently outweigh them. It is important that if an organization decides to incorporate, it be aware of the rules that must be followed. The benefits of incorporation may be negated if the organization continues to operate as if it was unincorporated. To avoid this problem or if you have any other questions about not-for-profit corporations, do not hesitate to call us at the legal clinic.
-Peter Graham, Lawyer
The Hunting Column - Oct. 29/04With 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 timely to review some legal issues that should be considered before heading out to the watch or to 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.
Hunters will also be 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 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 sources of complaints during the hunting seasons. If its not Crown Land, and you don't have clear (preferably written) permission to hunt on land that is not your own, 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 can 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.
Further 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
Beware of Phony Charity Scams - Oct. 21/04Nothing embraces the spirit of giving more than the holiday season. With the proliferation of charitable causes, how can one be sure that the charitable donation one gives is actually used to help a legitimate charity? Read on.
A team of government agencies including the Ontario Public Guardian & Trustee, the Ontario Seniors Secretariat, The Ministry of Citizenship and Immigration, the Ministry of Consumer and Business Services and The Canada Revenue Agency has been formed to better inform the public about a seasonal scam: phony charities.
The team points out in a recent letter to the legal Clinic that most charities and fund-raising groups are legitimate. Without their efforts, those in need would suffer. There are, however, a number of fund-raisers who do not represent charitable organizations at all. They are, in fact, in the business of exploiting the generosity of others for their own gain.
As the holiday season approaches, many people will be approached by organizations asking for charitable contributions. Be aware that some organizations claiming to be raising money for charity are not legitimate and may actually be pocketing donations.
Many phony charities use names similar to those of established charitable organizations. Con artists posing as legitimate fundraisers can be very charming and very convincing. Most victims never know that they have lost their money to a con artist. The only real defence against falling victim to this type of scam is to be an informed donor. Once a donation has been made, there is usually very little that can be done to get the donors money back. Prevention is the key.
Here are some suggestions from the team to assist in the fight against phony charities.
To be an informed donor, ask before you give.
Ask if you can get a tax receipt.Ask for the charitable registration number of the organization.Ask how much of your donation goes directly to helping others and how much to administration and fundraising costs.Ask if you can get more information in the mail before you donate.Prevention is the key. To protect yourself -
Dont give in to pressure.Take your time to decide whether to donate. Dont rush.Beware of names that sound like well-known charities.Dont give cash. Make cheques payable to the charitys full name.Dont give out personal information.Check facts. Reject vague answers.For more information, call or contact the following:
To find out if a charity is registered and for other details, contact Canada Revenue Agency Charities Directorate at 1-800-267-2384 or on the web at www.cra.gc.ca/charities.To learn how to avoid fraud and scams (1) Ministry of Consumer and Business Services Consumer Services Bureau at 1-800-889-9768 or on the web at www.cbs.gov.on.ca and (2) Public Guardian & Trustee Charities Team at 1-800-366-0335 or on the web at www.attorneygeneral.jus.gov.on.ca/english/family/pgt.To file a complaint, call your local police or Project PhoneBusters at 1-888-495-8501.Following these suggestions will help ensure that those most in need over the holiday season will, in fact, get assistance.
- Peter Graham, Lawyer
Another Federal Scandal - Oct. 7/04The following article appeared in the Summer 2004 edition of Plain Talk, the newsletter of the Income Security Advocacy Centre (ISAC). ISAC is funded by Legal Aid Ontario to work with and on behalf of low-income communities in Ontario to address issues of income security and poverty. We thank authors Jacquie Chic, Director of Advocacy and Legal Services (ISAC) and Deena Ladd, Executive Director (Toronto Organizing for Fair Employment) for their permission to use the article for Legalese.
Simmering beneath the surface of the sponsorship scandal is a sleeping giant of such magnitude that it could cause major headaches for Prime Minister Martin.
As unemployed workers struggle to make ends meet on the meagre benefits provided by Employment Insurance that is if they are eligible for any benefits in the first place, the surplus in the EI account has reached $44 billion. At the same time as she brought attention to the sponsorship scandal, Auditor General Sheila Fraser emphasized that the EI program would not need more than a $15 billion cushion to meet workers needs even in rough economic times.
The surplus is the direct result of changes to the former Unemployment Insurance program introduced in 1996. Paul Martin was a chief architect and proponent of the shifts that caused a dramatic decline in the number of workers able to collect benefits when they lose or cant find jobs. There has been a sharp descent in the percentage of unemployed workers eligible to receive benefits since the changes. Overall, coverage fell from three-quarters of the unemployed in 1990 to less then 40% today. In a number of cities, less than a quarter of the unemployed receive EI.
We all work hard and notice the EI deductions from our pay cheques.
These deductions are supposed to ensure a minimal level of security, a mere 55% of our wages to a maximum of $413.00 a month, if we find ourselves unemployed. However, many workers are finding they cant access these benefits when they need them workers like the hotel and restaurant staff who were laid off during the SARS crisis last year. To make matters worse, $44 billion of workers hard-earned money is sitting in the governments general revenue fund the same fund from which the $100 million was taken for federal sponsorship contracts.
While government coffers get fatter, unemployed workers unable to collect benefits they have paid for are forced to apply for social assistance and are catapulted into poverty. It is worth noting that the restrictions on eligibility found in the EI program are echoed in the social assistance rules. In other words, unemployed workers can find themselves without income from any source.
There is a hideous irony in all of this. Unemployment Insurance was first introduced in 1940 in response to an uprising by unemployed workers who had been compelled by R. B. Bennett to work in relief camps in remote areas of northern Ontario and B.C. These workers, who endured inhumane conditions for 20 cents a day, insisted their unemployment was not a result of their personal failings, but rather structural inadequacies in the economy. They demanded a UI program that acknowledged this. And indeed, the original UI program did. But the governments subtext was that the UI program was to get people off welfare.
The 1996 reforms, however, compel unemployed workers to apply for social assistance. And there has been a nasty reversion to the blame the worker mentality that predated the original UI program.
To add insult to injury, the ever mounting surplus is disproportionately at the expense of women, immigrant and disabled workers, all of whom are over-represented in part time and contingent work, and are therefore least likely to be able to meet the hours of work requirements that determine eligibility.
In 2001, only 33% of the unemployed women in Canada received EI benefits compared to 44% of unemployed men. The number of hours required to gain entry to the program has doubled and in some locations tripled while the length of the benefit period was cut by as much as half of what is was in 1990. The icing on the cake is that the benefit rate dropped to 55% of average weekly earnings. For minimum wage workers, this spells almost certain disaster. And it is minimum wage workers who are most likely to be shut out of receiving benefits because these workers are most likely to have precarious and short-term jobs that just dont add up to the hours needed to establish eligibility. Of course it is low-wage workers who most need the protection. And not surprisingly, it is women, immigrants and people of colour who are over-represented amongst low-wage workers.
Prior to the 1996 changes, UI had to be financed on a break-even basis. Break-even was defined in terms of the average payout over three years. The 1996 law removed the prohibition against running a surplus in the insurance fund.
ISAC is currently working with various community and labour groups to win much needed changes to the EI system.
Peter Graham, Lawyer
The Right to Remain Silent - Sep. 30/04Its 2 a.m. when a young man walking down a deserted city street is stopped by police and asked to identify himself. Does he have to answer, or does he, as in the TV cop shows, have the right to remain silent?
When stopped and questioned by police most people believe they have to respond and provide the information requested. In reality there are few situations when a member of the public has a legal duty to talk to police. They include:
If you are involved in an accident: you must remain at the scene and give your name and address to the police. You are also required to tell the police what happened.
If you are stopped by the police while driving a motor vehicle: You must give the police your drivers licence, vehicle ownership and insurance. Similar rules apply to the operators of snowmobiles, ATVs, and other off-road vehicles. Boat operators, hunters, and owners of firearms also have a legal duty to produce applicable permits and licences or other identification when asked to do so by a peace officer. People engaging in activities regulated by specific statutes, such as the Highway Traffic Act, should be aware of their obligations.
If the police believe they observe you in the act of committing an offence and approach you about it: you must provide your name and address.
While citizens may have a moral duty or a social duty to assist the police, apart from the limited circumstances identified above, there is no general legal duty to identify yourself to police or to answer a single question. The police cannot simply arrest someone because they refuse to answer questions. For a lawful arrest to occur the police must have reasonable and probable grounds to believe that you were involved in the commission of a crime.
This legal principle was recently affirmed by the Honourable Justice Rommel Masse in staying charges against a 23 year old man in Kingston. The man, who had been walking down Montreal Street around 2 a.m., refused to identify himself when asked to do so by Kingston Police. After repeatedly refusing to give his name and address the man was cautioned and ultimately arrested for allegedly being intoxicated in a public place. As there was no evidence to suggest that the man was drunk, (he was not found staggering, wandering down the middle of the road, or otherwise courting injury) his Honour ruled that the arrest was unlawful. The man was therefore perfectly within his rights to refuse to identify himself.
However, where the police have reasonable grounds to believe that an individual has committed a crime, the individual must give his or her name and address when asked by police. Before doing so, the person has the right to ask if he or she is being arrested and what the charges are. Beyond identifying him or herself, the individual has the legal right not to say anything else or, in other words, to remain silent. Unless arrested, the individual is also under no legal obligation to go to the police station.
The right to remain silent also extends to witnesses. While the police are entitled to approach and question any person in the course of investigating whether and by whom a crime has been committed, the person has the legal right not to answer.
The right to remain silent does not however, give a person the right to lie. Be aware that if you provide false information to police you can be convicted of public mischief, attempting to obstruct police or obstructing justice.
If you should find yourself detained by police, remember that you have the right to:
Remain silent;Consult with a lawyer; and Have your lawyer present while you are being questioned.This column is not advocating that people should refuse to co-operate with the police. The apprehension of criminals is essential to public safety and it is generally in the interests of all members of the community to work with our police officers. However, if people are aware of their legal rights and responsibilities they are less likely to find themselves in trouble with the law.
Susan Irwin,Lawyer/Executive Director
Attitudes Regarding Disability - Sep.2/04Bill Holder, a staff lawyer at ARCH, a specialty legal clinic in Toronto, reports on a report prepared for the federal Office for Disability Issues in a recent edition of ARCH ALERT, a news letter of ARCH: A Legal Resource Centre for Persons with Disabilities. We thank Mr. Holder and ARCH for allowing us to reprint his article.
In March the Environics Research Group completed a report prepared for the federal Office for Disability Issues. Titled Canadian Attitudes Toward Disability Issues, the disturbing information contained in the report reveals a strong need in Canada for more and improved public education regarding disability issues.
Many participants who were interviewed for the report demonstrated a significant degree of ignorance regarding persons with disabilities. It was indicated that persons with no college or university education were more likely to initially think of a disabled person as a person in a wheelchair, or a person who walks with a cane. There were many questions that participants had regarding persons with disabilities. The report notes that [s]ome wondered if they think like the rest of us.
Some participants revealed very negative attitudes toward persons with disabilities. Here is a sampling of some quotes taken from the report:
Some even admitted that they really didnt want to have contact with a person with disabilities
Many were uncomfortable with some aspects involved in developing relations or communications with those who have various types of disabilities
Most indicated that they would be quite comfortable around a person with disabilities as long as that persons ability to communicate was not affected
There is a sort of hierarchy, in terms of socially acceptable physical disabilities. Most felt that they could interact comfortably with a person who was blind, while some felt that a person who could not hear might be less comfortable. Some said that they could be comfortable with most disabilities as long as it wasnt disfiguring
Many admitted that they are made very uncomfortable by behaviour that doesnt seem normal
With respect to the issue of inclusion of persons with disabilities, some participants expressed reservations:
A few participants in this study were not so sure that integration is the most appropriate approach for either visible or invisible disabilities. Some wondered if perhaps a disabled person might not enjoy the company of people with similar disabilities to their own
Many admitted that they are particularly uncomfortable with the idea of integration of those with mental illness into mainstream, work and school
Participants were said to generally agree that it is important that persons with disabilities benefit from and participate in Canadian society, and there were other encouraging findings in the report. However, the level of ignorance toward persons with disabilities, as revealed by the report, is shocking. The report is not yet available to the public, but a release is planned this summer.
More information on the federal Office for Disability Issues may be obtained from the Human Resources and Skills Development web site at www.hrsdc.gs.ca. On the home page search for Office for Disability Issues.
Peter Graham, Lawyer
Ontario Social Assistance Rate Increase - Aug. 26/04The Ontario governments May 2004 budget provided for a three (3%) percent rate increase to the basic needs and maximum shelter allowance for individuals and families on social assistance.
The press release announced that These are the first increases to social assistance rates since 1993. The fact that rates have not increased in 11 years is sad enough, but unfortunately does not present the full story. To understand the financial pressures on those in receipt of social assistance the following is of note:
The last adjustment of social assistance rates was a decrease of twenty-one point six (21.6 %) percent in the rate of welfare assistance in 1995. This decrease was introduced when welfare was renamed Ontario Works.The full implementation of the increase will not take place until March of 2005. This is because the rate increase cannot be input into the Ministry of Community and Social Services computer system. This computer system was implemented at the time of the rate reduction at a cost of $500 million! Until the rate increase can be implemented, social assistance recipients will receive two lump-sum payments in the fall of 2004. In both September and November, a single person on the Ontario Disability Support Program (ODSP) will receive an extra $110, and a family on ODSP will receive an extra $200. In both October and December, a single person on Ontario Works (OW) will receive an extra $65, and a family on OW will receive an extra $130. There is no consideration given in the lump-sum payments to the size of the family.Once the increase is implemented properly in March 2005, single ODSP recipients will receive $959 per month, an increase of $29. Single OW recipients will receive $536 per month, an increase of $16.
The sufficiency of the new rates may be evaluated in the context of Income for Living?, a report on welfare income released by the National Council on Welfare in the spring of this year. The National Council on Welfare advises the federal Minister of Social Development on poverty and social policy issues. The report uses the governments new Market Basket Measurement to assess the situation of low-income people in Quebec, Ontario, Alberta and British Columbia during 2000. Some of the reports conclusions are that:
Welfare rates are far below either the Market Basket Measure (MBM) or Statistics Canadas low income cut-offs (LICO) The MBM confirms what we knew already that people on welfare live without the basic items the rest of us cannot imagine doing without.A single employable person on welfare in Ontario in 2000 received 50% of the MBM and 45% of the LICO.The report recommends an increase in welfare rates in every province to a level where families and individuals can at least afford their basic living costs and the costs to get back on their feet. The Ontario increase in social assistance rates is a tiny first step in that direction. Much more is needed.
Peter Graham, Lawyer
Intensive Support Amount (ISA) Terminated - Aug. 12/04How best to assist students with special needs is an ongoing issue with educators in Ontario. For the past several years the determination of funding available to provide supports for students with special needs has been through applications by school boards for Intensive Support Amounts (ISAs). As explained by Roberto Lattanzio, Staff Lawyer, of ARCH in the following article, the ISAs have not been effective in addressing the needs of students and are being terminated. ARCH: A Legal Resource Centre for Persons with Disabilities is a community legal clinic based in Toronto which defends and promotes the equality rights of persons with disabilities through litigation, law/policy reform and legal education. We thank Mr. Lattanzio and ARCH for allowing us to reprint his article.
Last month Education Minister Gerard Kennedy announced both an intention to adopt a new funding model for accommodating students with disabilities and $100 million in new funding. This money is intended to assist children with acute and severe accommodation needs. Intensive Support Amount (ISA) funding, which has been the funding model used since 1998 to support such students, will be discontinued following the transitional year of 2004-05.
The Ministry of Education decided to abandon the ISA funding model after a review revealed a doubling in ISA claims over the past two years, in the context of an overall decline in enrollment. The ISA funding model has been considered problematic for many reasons. It discouraged recognition of improvement and progress, since only negative descriptions of students were rewarded with funds. Funds were not tied to particular students, but rather were spent at the discretion of school boards (in the past year, numerous school boards hoarded an estimated $80 million in ISA funding instead of using it to address the needs of students with disabilities). The non-individualized ISA approach to assessing accommodation needs and providing accommodation measures was inconsistent with the requirements of the Human Rights Code. There was a lack of accountability with regard to how ISA funds were spent. School boards, furthermore, complained that accessing funds through the model required an onerous amount of documentation.
The new model proposes an accountability framework to ensure that accommodation funds are spent helping the students the money was intended for and requires the documentation of educational progress. A permanent office to enforce accountability and provide monitoring, named the Effectiveness and Efficiency Office, will be established. An Equity and Effectiveness Fund will also be created to support school boards in addressing any unmet needs. Whether the new accommodation funding model will conform to the requirements set out in the Human Rights Code remains to be seen.
Peter Graham Lawyer
Boating Refresher - Jul. 22/04With summer well under way, boats of a dizzying array of size and type have returned to our area lakes and rivers. 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. Generally, the larger and more powerful your boat, the longer the list of required safety equipment will be.
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
Credit Card Use: Be Alert but not Alarmed - Jun. 30/04Credit cards are a great convenience in our busy lives. Not only do they give us a detailed report on our spending each month but provide a series of interest free loans so long as the full amount of indebtedness is paid on time each month.
The other side of the coin, or card in this case, is the considerable potential costs involved in credit card use. The rules about the calculation of interest, how and when it is calculated, have been discussed in previous Legalese columns. This week I will cover three examples of how credit card issuers are giving cardholders information about the rules covering the use of their credit cards. I have criticized the industry, in previous columns, for its failure to properly disclose the rules on credit card use. The first item in this column is to congratulate one issuer on its straightforward and clear statement about changes to credit costs. Then, I will cover two instances where the issuers have been, in my view, less than successful in advising me on the rules.
Congratulations go to RBC Royal Bank Visa for its notice advising that if the Minimum Payment is not paid in full as required each month, the cardholder will lose the benefit of any lower rate promotional offers in which he or she is participating. The change will not take effect until November 1, 2004. The notice is clear and has been given in lots of time for cardholders to avoid problems in dealing with the change. There are other changes dealing with interest rate increases if Minimum Payments are missed but I will not go into detail here. Suffice it to say that although the potential costs of the changes are significant, cardholders have been informed of the upcoming changes in a clear and timely manner.
I was not as impressed with an offer I received from the new affinity credit card issuer for Queens University. Before signing the application, I reviewed the paragraph authorizing the issuer to conduct credit checks on me. Buried in that authorization was the further authority for the issuer to debit any of my accounts that were identified in the credit checks. In other words, the issuer would have the authority to take money from my bank accounts in the event of a dispute about the amount owing. A significant departure from other issuers and a power I was not willing to give. I did not submit the application.
Another example of poor disclosure was in connection with my PC Financial MasterCard. To my mind, it has one of the best reward programs - free groceries. Like all other credit cards it is subject to a credit limit. If one is over ones credit limit further transactions may be denied. Fair enough. However, what the credit card agreement doesnt tell you is that if you make a payment in excess of $5,000, the payment will be held for several days to ensure it clears. The agreement provides that payments will be processed by the next business day following payment. Imagine my surprise when I had a transaction declined following the payment of the account. When I enquired, I was advised by Customer Service of the $5000 rule. The customer service representative suggested that a simple way around the rule was to make two smaller payments and there would be no hold put on crediting the account!! I no longer use the PC Financial MasterCard.
The moral of these stories is that there is an alarming potential for unexpected costs and embarrassment associated with the use of credit cards if the rules are not adequately disclosed. However, the point of this column is not to alarm but advise.
When using credit cards - BE ALERT BUT NOT ALARMED.
- Peter Graham, Lawyer
Swearing Affidavits and Notarizing Documents - Jun. 10/04"I need a document notarized, can you do it?" is a question we often get at the legal clinic. The short answer is "yes" but like so many short answers, more information is required before we can determine that "yes" applies to the particular questioner.
To start, we need clarification as to what the caller means by having a document "notarized". It usually means that he or she needs a "notarized true copy" of a document. A "notarized true copy" is a photocopy of a document that is certified by a Notary Public to be an accurate copy of the original document. Notarized true copies are useful for such things as applications for government benefits. The government often requires the original document (such as a birth certificate) and will not accept a photocopy. However, it will accept a notarized true copy of the document instead of the original.
The lawyers at the clinic are Notary Publics. We base our certification on the fact that we have compared the original document to the photocopy of the document, which we are certifying as the true copy. Therefore, if you need a notarized true copy of a document, dont forget to bring the original document for comparison.
The term notarized sometimes comes up in the context of "swearing a document" or "having your signature sworn", which means that you are swearing under oath that the contents of the document, called an affidavit, are true. Unless the affidavit is for use outside Ontario, it is usually sufficient to swear it before a Commissioner for taking Affidavits. As most of the affidavits sworn at the legal clinic are for use in Ontario, the lawyers at the legal clinic will take them in their capacity as Commissioners for taking Affidavits (they are both Notary Publics and Commissioners for taking Affidavits).
It is a criminal offence to swear a false affidavit. It is therefore very important to review the statements in an affidavit very carefully to ensure that they are accurate. The affidavit is only valid if sworn before a Notary Public or Commissioner for taking Affidavits. Therefore, you must not sign the affidavit before attending the legal clinic.
It is also important to bring some identification with you, preferably with your photo and signature on it. A Commissioner for taking Affidavits is required to satisfy him or herself that the signature of the person swearing the affidavit is genuine. In addition, if your affidavit is taken at the clinic it is often done as a courtesy only. That is, the lawyers are not retained in the matter and are not in a position to give legal advice as to the import of the affidavit. If this is the case, you may be asked to sign an acknowledgment that no legal advice is being given by the legal clinic.
As noted, we are pleased to take your affidavit, especially if it will save you a costly trip to a major centre. However, we are reluctant to simply witness your signature on a document. If only a witness is required, you do not require a Commissioner for taking Affidavits. Anyone over 18 who is capable is able to witness your signature.
Finally, there are instances when we are asked, as lawyers, to act as a "guarantor" on an application. For example, to act as guarantor on a Passport Application. We are able to assist only if we have known you for the required period.
To save time and perhaps an unnecessary trip to the legal clinic, we recommend that you call ahead with details of the nature of the document and service required. We are pleased to help, but cannot do so in all cases.
Peter Graham, Lawyer
Secured Loans - May 20/04
Sooner or later, most of us must plan the purchase of a major item such as a house, car or some farm equipment. This seldom can be done without arranging a loan to finance the purchase.
The person who agrees to lend you the money, the creditor, may do so based simply on your promise to repay the loan. More often than not, however, the creditor wants more than your promise. I think of Linus, in the Peanuts comic strip, and his security blanket. The creditor, like Linus, wants to feel secure but wants something more than a blanket!
What the creditor wants is some protection if you are unable to repay the loan. One way the creditor can obtain protection is by obtaining security for the loan. For example, in the case of personal property (a car, boat or some other item that is not real estate) the creditor obtains such security by taking a "security interest" in the property.
In Ontario, the granting of security interests is governed by the Personal Property Security Act (PPSA). The security interest gives the creditor certain rights in the property. If you, the debtor, do not make payments on the loan as promised, the creditor, in addition to suing you on your promise to pay, may seize the property. By following a procedure set out in the PPSA, the creditor may sell the property and use the money received from the sale to pay off the loan. Before doing so, he must give you notice of the sale and an opportunity to buy back the property.
The same type of approach is used in the purchase of real estate. The interest in the real estate that is granted to the creditor is a "charge" which is commonly referred to as a mortgage. The person lending the money is the mortgagee and the person borrowing the money is the mortgagor.
The interest in the land taken by the mortgagee secures the repayment of the loan. If the mortgagor is unable to repay the loan, the mortgagee has steps he can take in addition to suing the mortgagor on the promise to pay. For example, it is a common provision of a mortgage to grant to the mortgagee the right to sell the property if the mortgagor is in default for a specified length of time.
If the personal property under the PPSA or the real estate subject to a mortgage is sold on the default of the loan, the amount received by the creditor in excess of the amount owing to him is paid to the debtor.
The above examples of secured transactions are for the purchase of personal property or real estate. That is, the loan is made to pay for the property and the security is taken in the property purchased.
Security can also be given by a debtor in property that he already owns. For example, a mortgage can be given on your house to secure the payment of a loan you require to start a business. This arrangement is referred to as "collateral security".
Collateral security may also be in the form of a charge known as a lien. For example, if you apply for legal aid, and own real estate, you will be required to grant a lien on your property to secure the payment of your share of the legal fees. The lien remains on the property until you pay your share of the legal fees. If you have still not paid your share of the legal fees by the time you sell the property, the amount owing is paid from the money received from the sale.
There are many variations on the foregoing security arrangements. If you are asked to secure a loan, make sure you understand the nature of the security being requested. Also ask about the action the creditor can take against the security if you can't make the loan payments on time.
- Peter Graham, Lawyer
Not-for-Profits and PIPEDA - Apr. 26/04What is a PIPEDA (pronounced PIE-pee-dah)? It is the acronym for the new federal legislation covering the collection, use and disclosure of personal information by organizations in the course of commercial activities. The full name is the Personal Information Protection and Electronic Documents Act.
The legislation attempts to strike a balance between an individuals right to privacy with respect to his or her personal information and the need of organizations to collect, use and disclose personal information. The widespread use of computers and the interchange of personal information over the Internet have raised significant privacy concerns.
PIPEDA has been in force since January 1, 2004. There has been much discussion as to what not-for-profit corporations and charities in Ontario must do, if anything, to comply with the legislation.
Because PIPEDA covers only personal information collected, used or disclosed in the course of commercial activities, the legislation will probably either not apply to not-for-profits and charities or apply only with respect to limited collection, use and disclosure of personal information. I use the word probably because although Commercial activity is defined in PIPEDA as any particular transaction, act, or conduct that is of commercial character, including the selling, bartering or leasing of donor, membership or other fund raising lists the term will remain unclear until decisions have been made by the Privacy Commissioner of Canada and the Courts.
The practical solution is to use the framework of PIPEDA to adequately control the management of personal information whether the legislation technically applies to your organization or not. There are many good business reasons to properly manage such personal information. For example, if your organization had a privacy breach it could be damaging to your organizations reputation and business relationships as well as result in serious harm to your clients (e.g. identity theft). Improperly managed personal information could also lead to a deterioration of your organizations information assets and to client mistrust of your organization.
At the core of PIPEDA is the Code for Protection of Personal Information. The Code is made up of the following ten principles:
ACCOUNTABILITY - An organization is responsible for personal information under its control and shall designate an individual or individuals in the organization who will be accountable for compliance with PIPEDA.
IDENTIFYING PURPOSES - An organization must identify the purposes for which personal information is collected and used at the time of, or before the collection of personal information.
CONSENT - The consent of the individual providing personal information is required at or before the collection of personal information.
LIMITING COLLECTION - The collection of personal information shall be limited to that which is necessary for the purposes identified by the organization.
LIMITING USE, DISCLOSURE AND RETENTION - Personal information shall not be used or disclosed for purposes other than those purposes for which it was collected or as required by law. Personal information shall be retained only as long as necessary for the fulfillment of those purposes.
ACCURACY - Personal information collected shall be accurate, complete and up-to-date as is necessary for the purposes for which it is to be used.
SAFEGUARDS - Personal information shall be protected by security measures appropriate to the sensitivity of the information.
OPENNESS - An organization shall make readily available to individuals specific information about its policies and practices relating to the management of personal information.
INDIVIDUAL ACCESS - Upon request, an individual shall be informed of existence, use and disclosure of his or her personal information and shall be given (i) access to the information, (ii) the opportunity to challenge the accuracy of that information and (iii) the right to have it amended as necessary.
CHALLENGING COMPLIANCE - An individual shall be entitled to address a challenge concerning compliance with the foregoing principles to the designated information officer or individual referred to under the Accountability principle.
By incorporating these principles into your organizations privacy practices and procedures you will not only ensure the proper management of personal information but substantial compliance with PIPEDA. Please direct any questions to the legal clinic. Further information may also be obtained at the web site of the Privacy Commissioner of Canada at www.privcom.gc.ca.
- Peter Graham, Lawyer
Do-It-Yourself Wills: To do or not to - Apr. 1/04A few years ago my husband, armed with a self-help book, tried his hand at some electrical wiring. On the plus side, the house didnt burn down. On the negative side, he had to endure the laughter of an amused electrician and family friend who found it hysterically funny that anyone could forget about something as basic as a ground wire.
The error was easily fixed. The joke so good that no bill was ever forthcoming.
People who plunge into the task of organizing their affairs with a lawyer approved Will kit remind me of my husbands attempt at being an electrician. Unfortunately, if the tricky task of drafting a Will is not handled properly, there may be no second chance. When family members and executors attempt to interpret such Wills, the author is not around to clear up any confusion. Where legal requirements have not been met, or if the confusion ends up in a family feud, the legal fees are likely to be significant and in many cases can eat up a large portion of any inheritance.
Unlike our electrician friend, lawyers tend not to have any sense of humour about do-it-yourself projects gone awry.
This is not to say that some people cannot successfully use one of the several Will kits now available. But as in the case of any other highly specialized task, people ought to think carefully about seeking professional advice before striking out on their own.
Wills are tremendously important documents and they are also extremely complicated. Making even a simple Will is not really a very simple task: the law has strict requirements when dealing with such testamentary documents regardless of the size of the estate.
The technical legal requirements must be met. A kit should explain the necessity for two witnesses who must sign the Will in the presence of each other and the person making the Will. It should also explain that some people may not legally act as witnesses, such as a beneficiary.
The self-help kit may not point out the importance of those witnesses if the Will must be probated (a necessity if certain large assets, including real estate, make up part of the Estate). Probate is a general term describing an application to the Court requesting that a Judge find that the Will is indeed valid and that the named Executor(s) have the authority to deal with the assets. One essential piece of evidence will be an Affidavit given by one of the witnesses confirming that he or she witnessed the signing of the Will and that it was signed in the presence of the Testator with both witnesses present. The Affidavit must be sworn before a Commissioner for Taking Oaths (such as a lawyer) or a Notary Public.
If this Affidavit is not properly completed and sworn at the time of the execution of the Will, the Executor(s) may be faced with the impossible task of finding one of the witnesses many years later. If the witnesses have died, or cannot be found, it may be very difficult, and certainly very expensive, to convince a Judge as to the validity of the Will. The task will be even more difficult and expensive if a beneficiary or family member also questions its validity.
It is standard practice for lawyers to prepare the necessary Affidavit when a Will is signed and attach it to the original document, thus avoiding the problem of the missing witnesses.
This is just one potential pitfall for the unwary. There are many others that arise out of the substance of the Will. Setting up trusts for children, or designating alternative beneficiaries (in case one or more die before the person making the Will), can easily be done improperly or not at all.
Whether a problem exists with the legal technicalities, or in the actual instructions as to how to distribute the estate, the end result is the same: the wishes of the deceased may not be carried out as he or she intended when drafting the Will.
There is also the problem of how to deal with potential income tax liabilities when drafting a Will, depending upon the nature of the assets and how they are to be distributed.
Lawyers look at a Will as only one part of an Estate Plan. Fees for this type of work are usually very reasonable, given the importance of the task, but will certainly increase with the complexity of the estate. A few telephone calls inquiring as to fees for straight-forward Wills would be a good idea before deciding that a do-it-yourself kit is the route to follow. What you save by using a kit will certainly be lost and then some if the Will is not drafted or signed properly.
For those people who meet Legal Aid Ontarios financial eligibility requirements, the legal clinic is often able to draft Wills (and Powers of Attorney) without charge. All residents of northern Frontenac County and northern Lennox & Addington County are, of course, welcome to call us to discuss any questions they may have about Wills and how to find a lawyer to help them if they do not qualify for further assistance from our office.
Every adult should have a Will, and one that will work not like my husbands new light fixture. Susan Irwin, Lawyer/Executive Director
Ten Tax Tips for 2003 Part II - Mar. 18/04 by Harry Beatty, Barrister & Solicitor Consultant in Disability Law and Policy
Tip # 5 - If you have a child with a disability under age 18, consider whether your family qualifies for the Child Disability Benefit. The Child Disability Benefit (CDB) is a new provision, announced in the 2003 Federal Budget. It is available to low-income and modest-income families who qualify financially for the Canada Child Tax Benefit (CCTB), and who have a child whose disability makes her or him eligible for the DTC. The CDB has a maximum value of $1,600 tax-free annually, and is included as a supplement to the family's monthly CCTB payments. It will be paid for the first time in March of 2004, but the payments made at that time will be retroactive to July 2003 to families who qualify.
The full $1,600 CDB will be provided for each eligible child to families having a net income less than the level at which the National Child Benefit (NCB) supplement is fully phased out (that is, $33,487 in July 2003 for families having three or fewer children).
For further details, including how to apply (basically, you must apply for both the CCTB and the DTC), see the CRA "Child Disability Benefit" web page accessible through the general website of the CRA. [also refer to Legalese Column of February 12, 2004]
Tip # 6 - Consider claiming the caregiver amount if an adult dependant lives with you. You may claim a caregiver amount if an adult dependent relative in certain defined classes lives with you. To make this claim, the relative must be mentally or physically infirm unless he or she is your parent or grandparent who is over 65. The relative's income, whether taxable or non-taxable, affects this claim but does not eliminate it entirely on the Federal Income Tax and Benefit Return unless it is over $16,172, and does not eliminate it entirely on the Ontario Tax and Benefit Return unless it is over $16,290.
Tip # 7 - Consider whether disability-related items are claimable as medical expenses. A range of disability-related items are claimable as medical expenses, including home modifications for accessibility (renovations or new home construction), moving expenses in moving to an accessible home, 20% of the cost of a van adapted for use by a person in a wheelchair to a maximum of $5,000 (and the cost of the modifications themselves), guide and hearing-ear dog expenses, sign language interpreter fees, and 50% of the cost of an air conditioner prescribed by a health professional.
The 2003 Federal Budget added three new items to the list of medical expenses:
the cost of real-time captioning, paid to persons engaged in the businessof providing such services, on behalf of individuals with a speech orhearing impairment,
the cost of note-taking services used by individuals with mental orphysical impairments and paid to persons engaged in the business ofproviding such services, and the cost of voice recognition software used byindividuals with a physical impairment (the need for these services or thesoftware must be certified by a medical practitioner), and
the incremental cost associated with the purchase of gluten-free food products for individuals with celiac disease who require a gluten-free diet.
Consult the CRA publication Medical Expense and Disability Tax Credits and Attendant Care Expense Deduction (Consolidated) listed in Tip #1 to see details as to what medical expense claims are permitted.
Tip # 8 - Claim attendant care expenses as work-, research-, or study-related if possible. In the income tax system, attendant care may be claimed only by those who are medically eligible for the Disability Tax Credit. There are two types of attendant care claims, a work-related claim and a medical expense claim. The work-related claim is for attendant care expenses which you incurred yourself to enable you to be employed, self-employed, to conduct research, or to attend a post-secondary educational institution or secondary school.
This claim can include attendant care actually provided in the home so long as the purpose is to enable you to work, do research of study, such as someone helping you to get ready in the morning. If you are working, you should consider whether your attendant care expenses are work-related, as this claim is a deduction rather than a credit, and is worth more to you. Attendant care expenses which are not work-related can be claimed as medical expenses by you or by a supporting relative. If more than $10,000 is claimed as a medical expense, however, the DTC cannot be claimed.
Tip # 9 - Child care expense claims can be increased if the child, or a parent, has a disability. There are child care expense rules which take into account the disability of a child, or of a parent. If the child qualifies for the Disability Tax Credit, a higher claim may be made than if the child did not have a disability. This claim is for a maximum of $10,000 in expenses (subject to the other rules governing child care expenses). For this purpose, child includes a son or daughter who has a disability, even if he or she is over 18.
If a parent has a disability which prevents him or her from caring for a child, either temporarily or long-term, then the higher-income parent may be able to claim child care expenses (ordinarily, this claim is limited to the lower-income parent). Obtain the Child Care Expenses Deduction form (T778) for more information.
Tip # 10 - You can still make claims back to the 1985 taxation year. If you failed to make claims in the past, you can still make claims back to the 1985 taxation year, as explained in the General Income Tax and Benefit Guide. Retroactive claims are scrutinized carefully by CRA, but should be made if clearly allowed by the rules.
[This article was originally published in ARCH ALERT, the newsletter of ARCH: A Legal Resource Centre for Persons with Disabilities, in Toronto, a specialty legal clinic in Toronto. Part 1 appeared last week]
Ten Tax Tips for 2003 Part I - Mar. 11/04 by Harry Beatty, Barrister & Solicitor Consultant in Disability Law and Policy[The following article was originally published in ARCH ALERT, the newsletter of ARCH: A Legal Resource Centre for Persons with Disabilities, a specialty legal clinic in Toronto. Part 2 will appear next week]
Once again, it's tax time! Returns for the 2003 taxation year must be filed by 30April 2004. This article will provide persons with disabilities and their families with some suggestions as to how to complete their returns. This is general advice only it's not meant to cover every point in detail. If you have questions, you should consult Canada Revenue Agency officials or publications, or your own tax advisor. (Canada Revenue Agency is the new name for the Canada Customs and Revenue Agency, which before that was called Revenue Canada; Canada Revenue Agency is abbreviated to CRA in this article.) There is also a more detailed article by the present author entitled Disability-Related Income Tax Provisions, as well as an in-depth article by ARCH Staff Lawyer Bill Holder entitled Introduction to the Disability Tax Credit available on the ARCH website at www.archlegalclinic.ca.
TIP # 1: Obtain disability-related information from CRA. CRA has two publications which you should get: Information for People with Disabilities, and Interpretation Bulletin IT-519R2, Medical Expense and Disability Tax Credits and Attendant Care Expense Deduction (Consolidated). Like most CRA publications, these are available in accessible formats or through the Internet. CRA accommodates persons with communication disabilities through specialized telephone information lines and alternative format materials, as explained in "Information for People with Disabilities" or in the General Income Tax and Benefit Guide 2003. These publications are available in a range of formats, together with other tax information, on a CRA People with Disabilities web page, accessed through the general website at www.ccra-adrc.gc.ca.
TIP # 2: File a return even if your income is non-taxable. If your main source of income is social assistance (Ontario Disability Support Program or Ontario Works) or workers' compensation (Workplace Safety and Insurance Board payments) you should file a tax return, even though this income is non-taxable.
By filing a tax return, you become eligible to claim the GST/HST credit, as well as refundable provincial tax credits, such as the Ontario sales tax and property tax credits. (Refundable means that people can get money back even if they do not pay or owe income tax.) You also need to file a tax return to claim the Canada Child Tax Benefit, and to qualify financially for some provincial programs for persons with disabilities, such as the Trillium Drug Program. If you have a legal representative (e.g., a power of attorney, trustee, or a person appointed to manage your ODSP income benefits), your legal representative can and should file a tax return on your behalf.
Social assistance income is reported on Line 145 of your income tax and benefit return, and workers' compensation income on Line 144. Both kinds of income are then deducted at Line 250, so that no tax is payable.
TIP # 3: Ask CRA to tax a retroactive lump sum payment at a reduced rate. Some persons with disabilities receive retroactive lump sum payments that cover more than one taxation year. In the past, this has caused a problem because the payments were all taxed in one year, usually at a high rate. The Income Tax Act was changed some years ago to cover this situation for CPP-disability, and the system was changed again in 2000 to provide tax relief for other retroactive lump-sum payments, including the following: employment income, settlements and awards relating to employment cases; wage-loss replacement plan benefits (including long-term disability insurance if it is taxable); spousal or child support payments; and Employment Insurance benefits. To obtain this tax relief, you should obtain form T1198, Statement of Qualifying Retroactive Lump-Sum Payment, from whatever organization paid the lump sum benefit.
TIP # 4: Discuss eligibility for the Disability Tax Credit (DTC) with your doctor or other health professional be sure to use the new DTC (T2201) Form for the 2003 Taxation Year! The DTC (also known as the Disability Amount) may be claimed by persons with disabilities, or by their spouses, common-law partners or other supporting relatives. It may be claimed with respect to persons of any age, from infants to seniors. It is a non-refundable credit, so it can only be used to reduce tax which would otherwise be payable.
To be eligible for the DTC, you must be blind or be unable, or take an excessive amount of time, to perform a basic activity of daily living, even with the use of aids, medication, or therapy. Or, you may be receiving life-sustaining therapy to enable you to perform basic activities of daily living.
For the 2003 taxation year, there is a revised DTC application form (T2201). The form was revised by CRA in consultation with organizations representing persons with disabilities and the health professionals who can complete the form medical doctors, optometrists, audiologists, psychologists, occupational therapists, and speech-language pathologists. The revised DTC form for the 2003 taxation year is available on the CRA website.
If your DTC claim has been rejected in previous years, ask your health professional to consider certifying your eligibility using the new T2201 form, which contains more specific questions and examples than the old form. For more detailed information regarding the new T2201 form, see the website of advocate Lembi Buchanan at www.disabilitytaxcredit.com.
It is very important to have the new DTC application form (T2201) filled out carefully and completely by your doctor or other health professional. Some health professionals charge a fee for this service it is not covered by OHIP or by CRA.
If your spouse, common-law partner or relative with a disability qualifies for the DTC, but cannot benefit from it because he or she pays or owes no income tax, you may be able to make the DTC claim as a supporting relative, subject to certain restrictions. This is called a transfer of the DTC claim by CRA. If you are claiming a transfer of the DTC, it is only the taxable income of your relative which reduces the claim. Social assistance (ODSP or Ontario Works) or workers' compensation payments (WSIB) do not reduce the DTC transfer, although they do reduce (and may eliminate) other tax claims, such as the infirm dependant credit and the caregiver amount.
Part II
The Big Deal About Impaired Driving - Mar. 4/04
Charged with yet another impaired driving offense, Tim Allen of New Lowell, Ontario, was quoted as saying: So I made another mistake and had a couple of beers Whats the big fn deal? The big deal for 38-year-old Mr. Allen was that after being convicted of more than 20 drunk-driving related offences, the Ontario Court of Justice took the unprecedented step of designating Mr. Allen a long-term offender.
In doing so, Mr. Allen achieved the notoriety of being the first repeat drunk driver in Canada ever to warrant the designation under section 753.1 of Canadas Criminal Code. Usually reserved for sex offenders and dangerous violent offenders, the designation of long-term offender will mean that upon Mr. Allens release from jail, his every move will be supervised for 10 years. Should Mr. Allen breach even one condition of his release, he could find himself in prison for another term of up to 10 years.
The Court, in reviewing Mr. Allens incorrigible record of impaired driving related convictions, determined that jail was not a sufficient deterrent. Past programs that attempted to help Mr. Allen deal with his abuse of alcohol were also obviously not successful. The Court was unconvinced by Mr. Allens oft repeated promise to never drink and drive again as he had committed the current offence while on parole.
The trouble on this occasion started when Mr. Allen once again got drunk. He then stole a vehicle, only to drive through a stop sign and collide with a vehicle driven by teenaged girl. The force of the collision drove the girls face and knees into the dashboard, and her head into the windshield causing injuries that resulted in the loss of her Grade 12 school year. As in past offences, Mr. Allen ran away from the scene and was caught hiding: bleeding and smelling of alcohol.
Mr. Allen ultimately pled guilty to a number of charges, including the charge of impaired driving causing bodily harm for which he was sentenced to four years in prison and subjected to a lifetime driving ban. However, the occasioning of bodily harm combined with a jail sentence of more than two years also allowed the Crown Attorney, with the consent of Ontarios Attorney General, to initiate the Court process associated with the long-term offender designation.
The decision by the Ontario Court to impose the designation on Mr. Allen has been applauded by Mothers Against Drunk Driving (MADD) and viewed favourably by the Ontario government. It is also being carefully considered by other provinces as a way to deal with chronic repeat drunk drivers.
Ontario, under its Highway Traffic Act, already has in place a number of additional sanctions to regulate drivers who are convicted of impaired driving offences under the Criminal Code, including:
Suspension of an Ontario drivers license for one year for the first conviction, three years for the second and indefinitely for subsequent convictions; Retention of the impaired driving offence on a drivers record for 10 years; The completion of prescribed assessments and remedial programs at the drivers expense prior to reinstatement of an Ontario drivers license; and Prohibition against driving a vehicle that is not equipped with an approved ignition interlock device as a condition of reinstatement of an Ontario drivers license.Even prior to a conviction for an impaired driving offence a driver in Ontario can be subject to an automatic 90 day drivers license suspension if the driver provides a breath sample with a blood alcohol concentration over the legal limit, or if the driver fails or refuses to provide a breath sample when requested to do so by a police officer. The suspension is effective whether or not there is a subsequent criminal conviction.
These provincial sanctions, when combined with the risk under Canadas Criminal Code of incarceration and the possibility of being designated in certain circumstances as a long-term offender, make drinking and driving in Ontario a very big deal indeed!
Susan Irwin, Lawyer/Executive Director
Child Disability Credit - Feb. 12/04The federal government has introduced an income benefit to help children with severe and prolonged disabilities living in low and modest income families.
The income benefit is called the Child Disability Benefit (CDB). The CDB is a tax-free benefit of up to $1,600 per year ($133.33 per month) for low and modest income families caring for children under the age of 18 who have a severe and prolonged mental or physical impairment. The amount of the CDB depends on the amount of other income received by the family. As the CDB will be included as a supplement to the Canada Child Tax Benefit payment, the child must be receiving the Canada Child Tax Benefit [discussed in the Legalese column of July 4, 2000] to receive the CDB.
Not all children with disabilities will qualify for the CDB. The criteria for the CDB are the same as those required to qualify for the Disability Tax Credit. (The Disability Tax Credit is a non-refundable tax credit that reduces the amount of income tax payable.)
To be eligible for the Disability Tax Credit, and the CDB, the child must meet one of the following:
The child is blind all or almost all of the time, even with the use of corrective lenses or medication, and the impairment is prolonged. The child has a severe and prolonged mental or physical impairment that markedly restricts his or her ability to perform a basic activity of daily living. The child needs and dedicates time specifically for life-sustaining therapy to support a vital function.A prolonged impairment is one that has lasted or can reasonably be expected to last for a continuous period of at least 12 months.
The basic activities of daily living are: walking; speaking; perceiving, thinking or remembering; hearing; feeding and dressing; and eliminating bodily waste.
The child is considered markedly restricted if, all or almost all of the time the child is unable (or it takes an extremely long time) to perform an activity of daily living.
To apply for the CDB a Form T2201 Disability Tax Credit Certificate must be filed with Canada Customs and Revenue Agency. The Form T2201 includes a report from a medical practitioner containing an assessment of the childs disability. The Form T2201 may be submitted to the Canada Customs and Revenue Agency at any time of the year or may be attached to an income tax return.
The first CDB payments will be issued to eligible families in March 2004. The March 2004 payment will include a retroactive amount for the period July 2003 to March 2004.
For more information about CDB call 1-800-387-1193 or visit www.ccra.gc.ca/benefits. - Peter Graham, Lawyer
Rural Legal Services: A Legal Information Resource - Jan. 29/04Early in January the Board of Directors and staff of Rural Legal Services met to develop our service priorities for 2004. While the range of our free legal services are governed by the terms of our funding from Legal Aid Ontario and the provisions of the Legal Aid Services Act, the Board and staff retain some discretion to determine goals and priorities in delivering legal services to the community.
The legal services that we provide are available without charge to the residents of northern Frontenac and northern Lennox & Addington counties, and include:
providing legal information casework and representation before courts and tribunals public legal education.Providing legal information is an important service priority for Rural Legal Services. We are aware that not all residents of our geographic service area appreciate that our information service is available to all residents regardless of income. As a Community Legal Clinic funded by Legal Aid Ontario to provide free legal services there is naturally a sense that our services are restricted in all cases to people with lower incomes who would not otherwise be able to obtain help.
Of course, certain services are necessarily subject to income restrictions, but not all. For example, when we accept a case, agree to prepare documents such as a Will or Powers of Attorney, or to represent a person before a court or administrative tribunal, that persons income must not exceed the prescribed Legal Aid guidelines. However, for the purposes of providing information only or for public legal education initiatives, our services are available to all area residents.
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, 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, organizing public legal education sessions, and writing this column.Many people who have never had to see a lawyer before tell us how helpful this service is in determining how to approach or deal with a legal problem. Others have remarked favourably on the information provided in our Legalese column, while still others have expressed concern that it is not being published with the frequency it once was.
Our Legalese column is an important means of communicating legal information and remains a service priority for 2004. However last year, as demand for our services increased by 23 percent without any corresponding increase in our resources, we were unfortunately unable to maintain the weekly publication of our column. This year we are committed to writing our Legalese column on a monthly basis but will do so more frequently if demand warrants and time permits.
If more frequent publication is important to you, please let us know. If you have legal topics that you would like us to cover, again, please let us know. We would also welcome hearing from you if you require legal information or require legal assistance. Please give us a call at (613) 279-3252 or toll free at 1-888-777-8916. Alternatively, you may visit us at 14064 Road 38 in Sharbot Lake or at our branch office in Northbrook at Land o Lakes Community Services Corporation on Wednesdays.
We look forward to hearing from you!
-Susan Irwin, Lawyer/Executive Director
