I.
ARCH – A LEGAL RESOURCE CENTRE FOR PERSONS WITH DISABILITIES
425 Bloor Street East, Suite 110
(416) 482-8255 (Main)
1 (866) 482-ARCH (2724) (Toll Free)
Toronto, Ontario M4W 3R5
(416) 482-1254 (TTY)
1 (866) 482-ARCT (2728) (Toll Free)
www.archlegalclinic.ca
(416) 482-2981 (Fax)
1 (866) 881-ARCF (2723) (Toll Free)
February 27, 2004
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.
Ten Tax Tips for the
2003 Taxation Year
by Harry Beatty, Barrister & Solicitor
Consultant in Disability Law and Policy
Once again, it's tax time! Returns for the 2004
taxation year must be filed by 30 April 2003.
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.
INSIDE THIS ISSUE
Tip # 1
Obtain disability-related information from
CRA. CRA has two publications which you
should get: “Information for People with
Disabilities,” and Interpretation Bulletin IT519R2, “Medical Expense and Disability Tax
Credits and Attendant Care Expense
Deduction (Consolidated).” Like most CRA
publications, these are available in accessible
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5
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Ten Tax Tips for the 2003 Taxation Year
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8
9
UN Convention on Disability
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12
13
14
16
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ODA Consultations Commence
Child Disability Benefit Arrives!
Wayne Johnston says “au revoir”
but not “goodbye”
Value of ODSP Sinks to New Low
Tax Improvements "Forgotten”
by the Government of Ontario
Health Privacy Bill Hurries Along
Respectfully Submitted
Education Update
Defining Disability
Unmet Health Needs
ARCH Alert
www.archlegalclinic.ca
Tip # 2
February 27, 2004
relating to employment cases; wage-loss
replacement plan benefits (including longterm 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 LumpSum Payment, from whatever organization
paid the lump sum benefit.
File a return even if your income is nontaxable. 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 nontaxable.
Tip # 4
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.
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 nonrefundable 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 “lifesustaining therapy” to enable you to perform
basic activities of daily living.
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
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
speechlanguage pathologists. The revised DTC form
for the 2003 taxation year is available on the
CRA website.
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
If your DTC claim has been rejected in
previous years, ask your health professional
to consider certifying your eligibility using the
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February 27, 2004
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.
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).
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.
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.
Tip # 6
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.”
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
Tip # 5
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.
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 2003 Federal Budget added three new
items to the list of medical expenses:
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February 27, 2004
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.
the cost of real-time captioning, paid to
persons engaged in the business of providing
such services, on behalf of individuals with a
speech or hearing impairment,
the cost of note-taking services used by
individuals
with
mental
or physical
impairments and paid to persons engaged in
the business of providing such services, and
the cost of voice recognition software used
by individuals with a physical impairment (the
need for these services or the software must
be certified by a medical practitioner), and
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.
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.
If a parent has a disability which prevents him
or her from caring for a child, either
temporarily or long-term, then the higherincome 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 # 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 workrelated 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 postsecondary
educational
institution
or
secondary school.
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 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
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February 27, 2004
As many of you know, on 8 October 2003
ARCH officially launched our new Library and
Reference Centre. We are excited to provide
persons with disabilities and the community
with a full service library and reference centre,
including a comprehensive website.
Child Disability Benefit Arrives!
by Bill Holder, Staff Lawyer
The Child Disability Benefit (CDB) is a new
non-taxable benefit provided by the federal
government. The CDB came into effect in July
of 2003. The CDB is worth up to $133.33 per
month and is designed to assist families (with
low-to-moderate incomes) with the extra costs
associated with raising children with
disabilities. The first payment of the CDB, a
nine-month lump-sum amount retroactive to
July of 2003, will be made to families next
month.
In 2002, ARCH committed to fulfill the
following three objectives in our Strategic
Plan:
develop the ARCH Resource Centre into a
functional activity for the benefit of the public;
support
community
capacity-building
initiatives of persons with disabilities
throughout Ontario; and
utilize ARCH's website to enhance Resource
Centre's goals.
On 12 February 2004, the McGuinty
Government thankfully indicated, in a policy
bulletin, that the value of the CDB will “not be
treated as income or assets for the purpose of
ODSP (including Assistance for Children with
a Severe Disability Program).” The exemption
also includes the initial lump-sum payments
that will be received next month. The effect of
the policy bulletin should be that the value of
the CDB will reach ODSP recipients and not
get clawed back by the Provincial
Government.
Under Wayne’s leadership, ARCH has met
and exceeded these identified strategic
priorities. Indeed, for over twenty years,
ARCH has collected information in the form of
books and reports on many disability-related
topics. Our collection contains a wealth of
information dealing with human rights,
employment,
social
assistance,
and
accessibility, among other areas of interest to
persons with disabilities, their allies and the
general public.
For more information about the CDB from the
Canada Revenue Agency, visit its website at
www.ccra-adrc.gc.ca/cdb.
On behalf of the ARCH Board of Directors
and staff, I would like to thank Wayne for his
expertise, insight, innovation, dedication, and
commitment. Wayne has truly put into
practice the vision identified by the Board,
staff, and membership. It is without question
that Wayne put in place an invaluable
resource for persons with disabilities in
Ontario and indeed, across Canada. Further,
he has provided us with a solid foundation
upon which our Library and Reference can
grow and expand.

Wayne Johnston says “au revoir”
but not “goodbye”
by Fraser Valentine, ARCH Board Member
Wayne Johnston, ARCH’s librarian, has
moved on to new and exciting challenges at
the University of Guelph. Wayne has not,
however, said goodbye to ARCH forever.
Instead, he will continue to support the
Library and Reference Centre on an informal
and volunteer basis. We are lucky to have
Wayne’s continued support – he has been an
invaluable addition to ARCH’s team!
ARCH is pleased to simply say “au revoir” –
and not “goodbye” – to Wayne. We look
forward to his continued involvement in our
work.
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February 27, 2004
So they established a working group
composed of government and NGO
representatives to draft a first text, or
proposal, for the ad hoc committee to then
start negotiations after that. The working
group met early this year in January for two
weeks and actually did prepare draft articles,
25 articles all-in-all plus a preamble, which
identify issues that there is agreement on but
then also has notes for the ad hoc committee
on issues that need to be further discussed
and clarified. And this is what the ad hoc
committee will then use as the basis for its
negotiations when it meets the next time in
May this year.
ARCH's library is available for use by the
general public Monday through Friday
between the hours of 10:00 a.m. and 4:00
p.m. The complete catalogue to the collection
is available on our website. Additionally, we
offer two adaptive technology workstations for
visitors with visual or motor disabilities.

UN Convention on Disability
An Interview by Wayne Johnston
On 10 February 2004 ARCH correspondent
Wayne Johnston interviewed two United
Nations officers in New York about the
proposed
International
Convention
on
Protection and Promotion of the Rights and
Dignity of Persons with Disabilities. Mona
Paré and Akiko Ito represent the UN
Department of Economic and Social Affairs,
Division for Social Policy and Development.
Below is some selected text from that
interview.
During the last General Assembly session it
was also decided that there would be two ad
hoc committee meetings this year to
accelerate the process. So this is where we
are right now.
WJ: What is the relationship between the new
convention and the Declaration on the Rights
of Disabled Persons?
WJ: Can you provide a brief overview of the
developments to date of this new international
convention?
AI: Since the inception of the organization the
UN has worked on the rights of persons with
disabilities but, as you have probably learned
from the literature, in the early stages, like in
the ‘40s and ‘50s and ‘60s, it was more to do
with contributing to the well-being of people
with disabilities through social services.
Those were the basic elements of the work.
But since the ‘70s, in terms of the Declaration
on the Rights of Disabled Persons, the United
Nations started to take a human rights
approach. Even so, of course, the instrument
was a reflection of the times. It’s a more
protective approach to disabilities which is not
considered very much of a human rightscentred perspective.
MP: This process was initiated by Mexico at
the 56th Session of the General Assembly
(2001). The General Assembly accepted a
resolution to establish an ac hoc committee
that would study the possibility of having a
convention on the rights of persons with
disabilities. The ad hoc committee met for the
first time in 2002, in August, and it was
decided then to ask for views of governments
and international organizations and civil
society on the possible elaboration of a
convention. Also, which type of convention it
should be, what it should include, whether we
should have a convention or not. Then the ad
hoc committee had its second session last
year, June 2003, and that’s where it was
decided that they would actually go ahead
and start the convention process.
Then in the ‘80s the World Programme of
Action Concerning Disabled Persons, which is
the framework, the pillar of the United
Nations’ work on disabilities, was adopted. It
was a significant work because it actually had
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a human rights perspective in terms of
promoting the human rights of persons with
disabilities
in
economic
and
social
development. So that was a very significant
international agreement that was concluded
in ’82.
February 27, 2004
There
was
also
discussion
about
discrimination, what types of discrimination
the Convention should deal with because
that’s one of the main underlying principles in
the Convention.
Then there were very disability-specific issues
concerning
intervention
and
institutionalization,
especially
forced
intervention and institutionalization. Whether
that should be prohibited in every case or
whether there are some cases in which it still
should be possible. So, all this related to the
concepts of independent living and autonomy
of persons with disabilities.
And from 1983 to 1992 we had the
international Decade of Disabled Persons
which really raised awareness of society in
terms of disabilities. Prior to that decade it
was seen more as a social welfare issue and
a medical issue, but throughout the decade it
became a catalyst in changing this perception
of disability based on the World Programme
of Action into a human rights issue. So the
result of this decade was adoption of the
Standard Rules on the Equalization of
Opportunities for Persons with Disabilities,
which was a human rights instrument to
promote the human rights of persons with
disabilities.
Then also because of the huge variety of
different types of disabilities and the use of
different modes of communication, different
languages. How much can be included in the
Convention? Which ones should be
specifically dealt with, whether there should
be emphasis on some certain ones?
Especially there were issues about sign
language and Braille, whether they should be
specifically mentioned.
WJ: Are there any particularly contentious
issues that were identified by the working
group?
MP: One major issue was that of international
cooperation, whether that should be included
in the Convention and if it’s included, does it
imply certain obligations for member states?
Does it mean that there is an obligation to
provide development aid for instance, or does
it have another meaning, just basic
collaboration, exchange of knowledge and
technologies between countries?
There was an important, major discussion
also about education, whether there should
be emphasis in the Convention on inclusive
education or on special education. A lot of
delegates, governments and NGOs were of
the view that the principle should be that of
mainstreaming; however there were some
groups of persons with disabilities who
emphasized the importance of special
education for them.
Then of course one of the major contentious
issues is that of the definition of disability.
Can there be a common definition? Is it
desireable to have a definition in the
Convention, whether that would then limit the
scope of the Convention or not? And then
what type of a definition, whether it is based
on
human
rights
or
medical
or
environmental/social aspects of disability.
Then, they didn’t discuss much the issue of
monitoring. That was mostly because of lack
of time. Everybody knows that this is
something that will have to be thoroughly
discussed, including monitoring at the
national level, whether states should set up
certain institutions, whether the Convention
should actually say which type of institutions
states
should
set
up
to
monitor
implementation. And then also the issue of
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monitoring at the international level, whether
the Convention should establish a specific
international body of experts to monitor the
Convention because this is the case for all
the other major human rights conventions, or
whether this isn’t the best time to do so
because there are talks about reform of the
whole human rights monitoring process, so
whether we should actually wait to see what
comes out of that or not.
February 27, 2004
cost, in 2003, approximately $1114. The
percentage change is almost 20%. Although
the cost of living (based upon the CPI) is
approximately 20% higher in February of
2004 than it was in 1993, ODSP rates remain
set as they were in 1993. The National
Council on Welfare reported that, in 2002,
ODSP rates were set at just 61% of the
poverty rate. The value of ODSP benefits
have continued to sink since then, pushing
persons with disabilities farther and farther
below the poverty level.
Note: for more information on the proposed
Convention and other activities of the United
Nations related to disability, visit its Enable
website at www.un.org/esa/socdev/enable.
This week, the Canadian Institute for Health
Information published a report confirming
what seems a matter of common sense:
having a low income in Canada correlates
with poor health. For example, the report
states that in 1996, the “life expectancy for
high income men was five years longer than
for low income men.” The implication of the
report is that as the value of ODSP benefits
fall, so do the health prospects, and life
expectancy, of persons with disabilities.

Value of ODSP Sinks to New Low
by Bill Holder, Staff Lawyer
The cost of living is constantly rising. Last
week Statistics Canada released a national
report on inflation revealing that in 2003
“consumers paid 2.8% more for goods and
services in the Consumer Price Index (CPI)
basket than they did in the previous year.”
Last year energy prices rose, nationally, by
7.9%. In a report released last month,
Statistics Canada stated that in Ontario
average electricity bills in December of 2003
were 84.8% higher than in December of
2002. Toronto Public Health has reported that
the cost of a Nutritious Food Basket in
Toronto rose, between 1999 and 2003, by
approximately 10%.
The value of ODSP benefits at present is so
low that recipients are, in record numbers,
resorting to food banks in order to feed
themselves. In a report of the Community
Social Planning Council of Toronto released
in September of 2003, it was indicated that
“two out of five food bank recipients reported
having a disability.” This comes as no
surprise, when one considers that a single
person with a disability in Toronto receiving
$930/mo in ODSP benefits pays on average
$884/mo for rent. (The average rent amount
is taken from October 2003 figures from the
Canadian Mortgage and Housing Corporation
for one-bedroom apartments, but does not
take into account the fact that accessible
housing may be even more expensive.) Such
ODSP recipients, therefore, receive on
balance only $46/mo to cover all non-rent
expenses. Toronto Public Health calculates
that in 2003 it cost single men aged 19-49
approximately $150/mo to feed themselves
nutritiously. It is clear that ODSP benefits are
Persons who are in receipt of benefits under
the Ontario Disability Support Program
(ODSP) are understandably concerned about
the rising cost of living. Without an increase
since 1993, the value of ODSP benefits,
measured against the cost of living, is
reaching a new low every month.
Single persons with a disability have received,
since 1993, at most $930/mo in ODSP
benefits. According to the Bank of Canada, a
$930 basket of goods and services in 1993
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set at levels that are insufficient to feed
persons with disabilities.
February 27, 2004
fulfil its campaign promise to immediately add
a cost of living increase to ODSP, consider
making a request in the “additional ideas or
suggestions” section of the on-line Town Hall
survey.
For the past decade, the value of ODSP
benefits has declined, causing persons with
disabilities to become significantly poorer,
hungrier, and less healthy. At the same time,
tax breaks have been granted which have
disproportionately enriched the most affluent
in Ontario, who are disproportionately
persons without disabilities (persons without
disabilities in Ontario annually earn, on
average, 50% more than persons with
disabilities). For approximately a decade,
government policy has directed resources into
tax breaks rather than into cost of living
adjustments to the ODSP program. The tax
breaks, disproportionately benefiting persons
without disabilities, have effectively been paid
for by persons with disabilities.
The ODSP Action Coalition, of which ARCH is
a member, will be participating in an “Ontario
Needs a Raise” province-wide lobby day on
26 March. Watch for news of the lobby day on
the website of the Income Security Advocacy
Clinic (www.incomesecurity.org).

Tax Improvements "Forgotten"
by the Government of Ontario
by Harry Beatty, Barrister & Solicitor
Consultant in Disability Law and Policy
In its 2003 Ontario Budget, the previous
Government proposed improvements to the
provincial income tax system for persons with
disabilities, seniors, and family caregivers.
The current Government has apparently
found it convenient to “forget” about these
proposed improvements. They have been left
out of the 2003 Ontario tax forms altogether.
This has saved the Government an estimated
$50 million. At the same time, of course, this
potential financial support has been lost by
persons with disabilities, seniors, and family
caregivers.
The McGuinty Government campaigned on a
promise
to
provide,
upon
forming
government, “a cost of living increase for
participants in the Ontario Disability Support
Program.” The Government did not campaign,
unfortunately, on a promise to raise ODSP
benefits to the level they would by now have
reached had they been indexed to inflation
since 1993. The promise was less generous
than that but, after four months in office,
persons in receipt of ODSP are still waiting for
the more limited promise to be fulfilled. As the
value of benefits decreases each month to a
new low, the need for the McGuinty
Government to fulfil its promise to persons
with disabilities becomes more pressing.
Regrettably, a recent report has suggested
that the Government may not honour its
promise until 2005.
The current Government was able to achieve
this with no fanfare, as the previous
Government had never enacted its proposed
changes into law. So the current Government
did not have to repeal any legislation or
change any forms to "roll back" the
improvements. All it had to do was leave the
Ontario tax forms as they were, and this is
precisely what it did!
The McGuinty Government is interested in
hearing from ARCH Alert readers, and input
may be provided to it through the
Government’s “Town Hall” website at
www.townhallontario.gov.on.ca. To ask the
Government to stop financing tax breaks on
the backs of persons with disabilities, or to
Here's what former Treasurer Janet Ecker
included in her 2003 Budget documents:
Increased Support for Caregivers
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Ontario's tax system currently provides
assistance to individuals with disabilities or
infirmities and relatives who care for them
through a number of non-refundable tax
credits, including the disability credit,
caregiver credit and infirm dependant
credit. However, the care provided by
individuals for an infirm spouse or
common-law partner goes unrecognized
by the current income tax system, as do
the efforts of adult children to help their
infirm parents or grandparents with modest
incomes remain in their own homes.
February 27, 2004
The first change would have set the disability
tax credit, the infirm dependant credit, and the
caregiver credit each equal to $6,637, which
is the amount of the spouse or common-law
partner claim. But on the 2003 Ontario tax
forms, the disability tax credit (DTC) is only
$6,316, and the infirm dependant credit and
the caregiver credit, which are alternative
claims (taxpayers can only claim one of them
with respect to a dependant) are still only
$3,684, almost $3,000 less than what the
2003 provincial Budget promised.
Three enhancements are proposed to
these credits, effective January 1, 2003.
Now these figures do not mean that family
caregivers are losing almost $3,000 on the
infirm dependant credit or caregiver credit.
Far from it. What they are losing is 6.05% of
that amount, or about $180. This is because
provincial non-refundable tax credits are
converted from the amounts listed by 6.05%,
equal to the lowest provincial marginal tax
rate. But $180 would still have been a start
towards providing caregiving families with
more support.
First, the amounts on which these tax
credits are based would be increased to
$6,637.
Second, the Budget proposes to expand
the caregiver credit and the infirm
dependant credit to include spouses or
common-law partners who are dependent
by reason of mental or physical infirmity,
and to provide support to more caregivers
living apart from dependent relatives.
In the first of the three proposed changes,
there is a reference to raising "these tax
credits" to $6,637, but exactly which tax
credits are meant is not specified. It appears
that besides the DTC, the credits to be raised
to this level would include the Infirm
Dependent Credit and the Caregiver Credit,
which would be a very significant increase for
each. Some commentators on the Ontario
Budget 2003 also stated that the DTC
Supplement for Children would be increased
to this level, but it is not specifically
mentioned in the description of the proposed
changes.
Third, the dependant's income level at
which the caregiver credit and infirm
dependant credit are reduced would be
raised to $13,050, and both credits would
be eliminated when the dependant's
income reaches $19,687.
This increased tax support would provide
annual benefits of $50 million to about
165,000 family caregivers and people with
disabilities, providing average savings of
about $300 each.
While the details of these three changes are
not all explicit, there is no doubt that each
would have represented a step in the right
direction, by beginning to increase the tax
relief available to persons with disabilities,
seniors and family caregivers. There is also
no doubt that each has been abandoned by
the current Government, at least for the 2003
taxation year.
The second of the three proposed changes,
including spouses and common-law partners
in the list of dependants with respect to whom
the Infirm Dependant Credit and Caregiver
Credit could be claimed, would be a
significant advance in recognizing the
circumstances of couples where one has a
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disability. In such couples, the non-disabled
spouse often has to assume both the role of
breadwinner and caregiver. The proposed
improvement would have at least begun to
recognize the difficult circumstances of such
families.
February 27, 2004
public can provide input with respect to
improving the ODA.
By the time that this issue of the ARCH Alert
is distributed, meetings will already have
taken place in four regional centres in
Ontario. Remaining consultations will be held
in Sudbury on 17 March, in Toronto on
23 March, and in Thunder Bay on 25 March.
For those unable to attend the meetings,
written submissions may be provided to the
Government by 31 March. They may be
mailed to the Accessibility Directorate of
Ontario at 400 University Avenue, 3rd Floor,
Toronto, Ontario, M7A 2R9.
The third improvement would have raised the
dependant's income threshold at which the
Infirm Dependant Credit and the Caregiver
Credit begin to be reduced to $13,050. This
would have been a modest improvement with
respect to the Caregiver Credit, but a
significant improvement with respect to the
Infirm Dependant Credit, which now begins to
be reduced once the dependant's income is
over $5,238. This change would have
eliminated (for purposes of Ontario tax) the
difference between the calculation of the two
credits, and the existing difference between
the tax relief provided for an infirm dependant
living with the taxpayer, as opposed to an
infirm dependant not living with the taxpayer.
Those interested in participating in the
consultation
process
should
consider
encouraging the McGuinty Government to, at
a minimum, keep its campaign promises as
they relate to the ODA. Before the election,
Mr. McGuinty committed to amending the
ODA and drafting regulations to establish
meaningful accessibility standards, timelines
for barrier removal, and a mechanism of
effective
enforcement.
Mr. McGuinty
committed to ensuring that the new ODA
would incorporate certain principles that were
adopted by the Ontario legislature in 1998.
Fulfilling this campaign promise would entail
extending the application of the ODA to the
private sector.
It will be interesting to see if, in its 2004
Budget, the present Government reinstates
these proposed improvements, or proposes
other tax measures to benefit persons with
disabilities, seniors, and their families.

ODA Consultations Commence
by Bill Holder, Staff Lawyer
The existing ODA is very weak legislation,
which does not require the removal of any
barriers. The penalty provision, for failing to
comply with the ODA, is not in force.
Organizations – including the Government –
required to develop accessibility plans have
not complied with their ODA obligations.
Many organizations have purported to comply
with the ODA by developing meagre
accessibility plans that ignore existing barriers
that were supposed to have been identified.
The minimal provisions of the existing ODA
are not being followed and there is no way to
enforce compliance.
The McGuinty Government campaigned on a
promise to pass, within one year of forming
government (i.e., by October of 2004) a
"strong and effective" Ontarians with
Disabilities Act (ODA).
In the last issue of the ARCH Alert, Dr. Marie
Bountrogianni, Minister of Children's Services
and Minister of Citizenship and Immigration,
invited readers to let her know how the ODA
can be made strong and effective. On 28
January
the
McGuinty
Government
announced that in February and March it is
holding meetings at which members of the
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Accessibility within the public and private
sector has been a legal requirement in
Ontario since certain amendments were
made to the Human Rights Code in 1981.
Despite this legal requirement, which has
existed for 23 years, old barriers are not being
removed and new barriers continue to be
erected. The Human Rights Code has not
been effective, systemically, with respect to
barrier removal. The ODA was conceived as
legislation that would do the job that the Code
has failed to do. To fulfil its purpose, it is
essential for the ODA be strengthened so that
barriers in Ontario actually get prevented and
dismantled. An ODA that does not put an end
to a segregated Ontario – with portions that
are inaccessible and unwelcome to persons
with disabilities – will be insufficient.
February 27, 2004
government intends for the law to come into
force on 1 January 2005.
Despite the time constraints, ARCH provided
written submissions to the Committee on
6 February. ARCH expressed support for the
framework and the generally good ideas
which are embodied in the Bill, but also
concern about the very short timelines in
which such an important new law is being
developed. Considering the implications,
ARCH submitted that everyone wishing to
examine and have input on the development
of the Bill should have been given a better
opportunity to do so.
ARCH commented on the scope of the Bill.
The stated purpose of the Bill is to protect the
confidentiality of information and the privacy
of individuals, but it does so only with respect
to "health information custodians." Large
amounts of very detailed personal health
information are collected by many other
“information
custodians,”
including
employment, insurance, education, and
service agencies. ARCH submitted that
information should be protected no matter
whose hands or offices it sits in, and
recommended that the Bill be broadened
accordingly.

Health Privacy Bill Hurries Along
by Lesli Bisgould, Staff Lawyer
In the last issue of the ARCH Alert, it was
reported that Ontario's provincial government
has introduced the Health Information
Protection Act, 2003 (Bill 31). In the
information age, the protection of private
health information is a welcome initiative. The
provincial government is moving this
legislation along very quickly, and ARCH is
paying
close
attention
to
related
developments.
ARCH objected to the fact that fees may be
set later through regulations without ensuring
that low income individuals who require
access to their own records will be protected.
ARCH recommended that the legislation be
amended to clearly set reasonable limits on
fees which would not preclude access, and
that there be a mandatory waiver of fees for
individuals in receipt of social assistance or
who are otherwise in financial need.
Bill 31 was introduced and had its first
reading on 17 December 2003. It was then
referred to the Standing Committee on
General Government. Brief consultations
were held in several cities, and the public was
invited to submit comments by 6 February.
The Committee conducted its "clause-byclause" analysis on 9 February. More than
150 amendments were tabled, though not all
of them passed, and an amended Bill is
expected to be available when the legislature
returns on 22 March. Second reading is
expected by the end of March, and the
ARCH expressed concern that the legal
consequences for a breach of someone's
privacy were unduly limited. For instance,
consequences flow only in cases where
“actual harm" results from a breach of
privacy. One can only be compensated for
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mental anguish if it was caused "wilfully or
recklessly," which ignores the fact that
breaches may be caused not only with intent
but, and much more likely, by simple
negligence and bureaucratic bungling.
Moreover, the limit for damages in a lawsuit
arising from a breach of one's right to health
privacy was set at $10,000. ARCH submitted
that each of these limitations is unjustified
and undermines the serious goals of the
legislation.
February 27, 2004
ARCH urged the Tribunal not to invest itself
with such a power, since the human rights
regime in Ontario is supposed to be cost-free
in order to ensure that complainants feel
undeterred from coming forward with their
complaints. Once the human rights process
becomes associated with costs, it is inevitable
that complainants will cease complaining and
discrimination will go unchecked. A cost
power constitutes an impediment to an
accessible human rights system and will
operate at odds with the goal of eradicating
discrimination. For persons with disabilities,
the impediment is particularly problematic: the
Tribunal is contemplating a power to award
costs equal to an amount greater than the
total amount of assets possessed by each
person in receipt of benefits under the Ontario
Disability Support Program.
ARCH also recommended that the Assistant
Commissioner
for
Personal
Health
Information, which the Act envisions, as well
as a sufficient number of that person's officers
and employees, have proven experience or
knowledge of the communities most affected
by the legislation – including the community
of persons with disabilities.
The development of this legislation is a matter
of utmost concern to the disability community
and we will continue to monitor it carefully. If
you would like a copy of ARCH's submission,
please contact Theresa Sciberras at ARCH
by e-mail at scibert@lao.on.ca or by phone at
416-482-8255.
The Tribunal has been able to operate
without the power to award costs against
complainants for over 40 years and there
does not exist a compelling reason to add
such a power now. Adding a power to award
costs against complainants is also arguably
something the Tribunal cannot do, since its
enabling legislation – the Human Rights Code
– has already set out the persons against
whom costs may be awarded, without
including complainants.

Respectfully Submitted
by Bill Holder, Staff Lawyer
ARCH also made lengthy submissions about
proposed changes to the Rules of Practice
that will make proceedings more complex
than they have ever been. The consequence
of adding complexity to the human rights
process is, like the addition of costs,
inaccessibility. This is of particular concern to
persons with disabilities, whose complaints
last year constituted two-thirds of all
complaints received by the Ontario Human
Rights Commission.
ARCH participated recently in consultations
and made submissions that are summarized
below.
Human Rights Tribunal of Ontario
The Tribunal is revising the procedures that
apply to its proceedings, called the Rules of
Practice. Proposed changes that ARCH is
particularly concerned about include a power
to impose costs against complaints in certain
circumstances (for instance, where the
Tribunal considers a complainant’s conduct to
be “unreasonable,” whatever that may come
to mean).
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Ministry of Labour
February 27, 2004
Education Update
by Roberto Lattanzio, Student-At-Law
The Ministry of Labour under the McGuinty
Government is planning to end the 60-hour
work-week that was instituted by the Harris
Government. The Ministry is planning to
implement a 48-hour work-week but
nevertheless intends to permit employers, in
certain circumstances, to go beyond such a
limit.
The Supreme Court rules on spanking –
but what about restraints?
The Supreme Court of Canada has upheld
the constitutionality of spanking, as a defence
to a charge of assault, in the Criminal Code.
In Canadian Foundation for Children, Youth
and the Law v. Canada (Attorney General),
Chief Justice McLachlin, for the majority,
provided clarification regarding the impugned
provision, which permits parents and teachers
to apply reasonable force on a child for
corrective purposes.
ARCH submitted that when re-thinking workweek standards, the Ministry has an
opportunity to do so in conjunction with
broader social policy objectives that would,
among other beneficial effects, improve the
employment prospects of persons with
disabilities. The Ministry has an opportunity to
move away from standards that raise
expectations that persons will work 48 or,
where permitted, more hours in one week.
Such expectations create employment
barriers for many persons with disabilities.
Persons with disabilities are employed at
about half the rate as persons without
disabilities, in part because of expectations
that jobs in Ontario require employees who
will work an excessive and varying number of
hours every week. Ministry standards that
seemingly legitimize such work expectations
have the effect of causing employers to hire
only employees who will (or are perceived to
be able to) work 48 or more hours every
week. This has an adverse effect on the
employment prospects of persons with
disabilities.
The Court delineated the spanking defence to
only provide protection if the intention for the
use of force was “for educative or corrective
purposes.” Also, the use of force must be
sober and reasoned, address the child’s
behaviour, and be “designed to restrain,
control,
or
express
some
symbolic
disapproval of his or her behaviour.” Justice
McLachlin also stated that the child must be
capable of benefiting from the correction and
that a child may be “incapable of learning
from the application of force because of
disability or some other contextual factor.”
For the exemption to apply, the force must be
“reasonable under the circumstances.” This
was interpreted by the Court as “minor
corrective force of a transitory and trifling
nature.” Corporal punishment of children
under two years of age and of teenagers,
degrading or inhumane treatment, and blows
to the head are examples of unreasonable
uses of force. With respect to teachers, the
Court stated that they “may reasonably apply
force to remove a child from a classroom or
secure compliance with instructions, but not
merely as corporal punishment. Coupled with
the requirement that the conduct be
corrective, which rules out conduct stemming
from the caregiver’s frustration, loss of temper
or abusive personality.”
ARCH encouraged the Ministry to ensure that
the accommodation obligations of employers,
imposed by the Human Rights Code, are not
ignored in the new standards being
contemplated.

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February 27, 2004
Graduation Denied
The test to be applied when assessing
whether the use of force is reasonable is an
objective one.
The McGuinty Government is currently faced
with legal action concerning the Ontario
Secondary School Literacy Test (OSSLT), a
legacy from the previous government.
Students are required to pass the OSSLT in
order to graduate. Introduced in 2001, the
OSSLT will deny some 27,000 students in
Ontario a high school diploma this year,
regardless of whether all required credits
have been achieved. For students with
disabilities, providing accommodations for
writing the test may not be sufficient. It is
ARCH’s position that the test is inherently
discriminatory, due to its design and content.
What are the implications of the decision with
respect to the use of physical restraints within
schools on children with disabilities? The
Court did not examine the impact of restraints
on children with disabilities and it did not
explicitly describe which, if any, practices of
restraining would be considered defensible.
However, the Court stated that the use of
force would be defensible where the purpose
of imposing force is “educative or corrective.”
Since the purpose of restraints is to restore
safety in a crisis and is not “educative or
corrective,” the decision may make it difficult
for a School Board to defend the use of
restraints. Also, as noted by Justice
McLachlin, a child’s disability must be
considered when assessing the child’s ability
to learn from the use of force. Since many
children with disabilities will not, because of
their disabilities, be able to learn from the
imposition of restraints, using such on
children with disabilities may become
furthermore
indefensible.
Since
the
reasonableness of force, including restraints,
will be assessed by the courts on an incidentby-incident basis, one is left to wonder about
what the courts will make of the inclusion of
restraints
generally
in
a
child’s
accommodation plan (Individual Education
Plan). Such inclusion may be argued to
constitute planned uses of force that are not
defensible as might be impromptu uses in a
crisis, to restore safety.
A Law Reform Proposal
ARCH met with Education Minister Gerard
Kennedy on 4 December 2003 and called for
progressive measures to be taken with
respect to the Safe Schools Act. ARCH
submitted a no-cost law reform proposal to
the Minister, aimed at remedying the
discriminatory effects caused by the Act
currently felt by students with disabilities. The
introduction of the Act has provided
mechanisms to exclude children on grounds
of their disability.
For a copy of the law reform proposal, please
contact
Robert
by
e-mail
at
archst1@lao.on.ca.
A Roundtable Discussion
on Ontario’s Education System
Community Living Ontario, the Ontario
Coalition for Inclusive Education, the
Canadian Association for Community Living,
and ARCH will be hosting a roundtable
discussion on Friday, April 16, 2004. The
purpose of this discussion is to unite all
stakeholders of Ontario’s education system
(the
community,
government,
and
representatives from the education sector),
In light of the requirements and relevant
factors set out in this decision, the scope to
include the use of physical restraints on
children with disabilities has been narrowed.
A copy of this judgment may be accessed at
the Supreme Court of Canada’s website at
www.scc-csc.gc.ca.
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and discuss effective strategies to ensure
excellence within our schools for all children.
February 27, 2004
some people push for harmonization is
because of an assumption that disability
programs are intended to be available to all
persons
with
disabilities.
Once
the
assumption of universality is made, it
becomes sensible to seek harmonization of
the definition of “disability” in all programs.
Surely universal programs should have the
same – universal – application. However,
when
programs
are
not
universal,
harmonization becomes unnecessary. When
programs – like the federal disability
programs – have different purposes and are
intended to benefit different subsets of the
group of persons with disabilities, what
becomes important is whether persons
belong to one or more of the subsets. It is
unnecessary that we agree on who belongs
to the general set of all persons who are
persons with disabilities.
For more information, please contact Gordon
Kyle at Community Living Ontario by e-mail at
Gordon@communitylivingontario.ca or by
phone at 416-447-4348 ext 230.

Defining Disability
by Bill Holder, Staff Lawyer
On 3 December 2003, the federal Office for
Disability Issues released an interesting
report titled “Defining Disability: A Complex
Issue.” The report was written in response to
numerous complaints having been made,
over the past few years, regarding
disharmony with respect to definitions of
“disability” in federal programs.
The report does not go so far as calling for
the employment of language in federal
legislation that would more accurately
describe to whom certain disability programs
apply (i.e., to clarify that application is not to
all persons with disabilities). The report
nevertheless recognizes that there is a
communication
problem.
The
report
concludes that federal disability programs
must be made more coherent and, to this
end, it recommends “more effective
communication” from the federal Government.
The report consists primarily of a survey –
and the survey is its chief strength – of federal
laws that pertain to disability and the
approach taken to the meaning of “disability.”
Not many laws dealing with disability actually
define the word and, with respect to those
that do, the definitions are inconsistent. For
many
persons
with
disabilities,
the
inconsistency is frustrating. Many persons, for
example, cannot understand why the
government would consider them to have a
disability for the purpose of the Canada
Pension Plan but not for the Disability Tax
Credit, and vice-versa.
The report appropriately finds that much of
the frustration that exists with respect to
federal disability programs results not from
the use of the word “disability” but from issues
related to “eligibility, assessments and
communication.” Accordingly, the report
concludes that “efforts must be undertaken to
relieve some of the tensions in policy and
program responses.” Such efforts are
thankfully being undertaken, including a
review related to whether application
processes for federal disability programs can
be harmonized.
Despite the fact that disability is defined
inconsistently, the report concludes that “a
single harmonized ‘operational’ definition of
disability across federal programs may not be
desirable or achievable.” The conclusion, that
harmonization is not achievable, is based on
a finding that “disability is difficult to define
because it is a multi-dimensional concept with
both objective and subjective characteristics.”
Although not clearly discussed in the report, it
would seem that one of the reasons that
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The report may be accessed on the website
of the Office for Disability Issues, at
www.hrdc-drhc.gc.ca/hrib/sdd-dds/odi.
February 27, 2004
involve ancillary costs for equipment, supplies
or medication, many of which are only
partially covered.” With respect to the Medical
Expense Tax Credit, often asserted by the
federal government to constitute a solution to
the problem of increasing health costs for
persons with disabilities, the report states that
it is an “ineffective policy tool.”

Unmet Health Needs
by Bill Holder, Staff Lawyer
A new report by the Queen’s University
Centre for Health Services and Policy
Research indicates that persons with
disabilities in Canada have “about three times
as many” unmet health needs as Canadians
without disabilities.
Last year, the Participation and Activity
Limitation Survey of Statistics Canada found
that persons with disabilities have unmet
needs with respect to assistance with
everyday activities. More than one third of
persons with disabilities have such unmet
needs. When this information is considered
together with the finding of the Queen’s
report, one is left to conclude that not meeting
the needs of persons with disabilities is a
systemic problem.
The report indicates that persons with
disabilities face difficulties accessing the
health care system: “Not only do people with
disabilities experience access problems
related to physical barriers, provider expertise
and
ill-informed
attitudes,
they also
experience socio-economic disadvantages
relative to poorer levels of education,
employment and income.”
According to the Queen’s report, Canada’s
health care system is “failing” persons with
disabilities. Among the recommendations of
the report are the following: ensure
prescription drug coverage for all persons
with disabilities and increase community care
services and supports.
The low incomes of persons with disabilities
correlate to unmet health care needs.
Persons with disabilities report that cost is a
barrier to accessing health services twice as
often as do persons without disabilities. The
report indicates that cost barriers “could be
direct or indirect costs of service, and could
The report may be accessed on the website
of the Centre for Health Services and Policy
Research, at http://chspr.queensu.ca
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February 27, 2004
ARCH ALERT is published by ARCH: A Legal Resource Centre for Persons with Disabilities. It
is distributed free via e-mail, fax, or mail to ARCH member groups, community legal clinics, and
others with an interest in disability issues. ARCH is a non-profit community legal clinic, which
defends and promotes the equality rights of persons with disabilities through litigation, law/policy
reform and legal education. ARCH is governed by a Board of Directors elected by
representatives of member groups reflecting the disability community. The goal of ARCH
ALERT is to provide concise information, so that people are aware of important developments
and resources. Articles may be copied or reprinted to share with others provided that they are
reproduced in their entirety and that the appropriate credit is given. We encourage those who
receive it to assist with distribution of information in this way. We do ask that both Word and
Text Formats are distributed to ensure accessibility. Charitable Reg. #118777994RR01.
Editor: Bill Holder
Production & Circulation: Theresa Sciberras
We welcome your comments and questions, as well as submissions. We will endeavour to
include all information of general interest to the community of persons with disabilities and their
organizations, but reserve the right to edit or reject material if necessary. We will advise you if
your submission is to be edited or rejected. Please assist us in your submissions by being brief
and factual. Please address communications regarding ARCH ALERT to: Theresa Sciberras,
Administrative Assistant, ARCH: A Legal Resource Centre for Persons with Disabilities,
425 Bloor Street East, Suite 110, Toronto, Ontario, M4W 3R5, fax: 416-482-2981, TTY: 416482-1254, e-mail: scibert@lao.on.ca Website www.archlegalclinic.ca
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