Assemblée législative de l'Ontario

STANDING COMMITTEE ON COMITÉ PERMANENT DES

SOCIAL DEVELOPMENT AFFAIRES SOCIALES

SOCIAL ASSISTANCE REFORM ACT, 1997/LOI DE 1997 SUR LA RÉFORME DE L'AIDE SOCIALE

CONTENTS

Tuesday 4 November 1997

Social Assistance Reform Act, 1997, Bill 142, Mrs Ecker /Loi de 1997 sur la réforme de l'aide sociale, projet de loi 142, M^me Ecker

STANDING COMMITTEE ON SOCIAL DEVELOPMENT

Chair / Présidente

Ms Annamarie Castrilli (Downsview L)

Vice-Chair / Vice-Président

Mr Dwight Duncan (Windsor-Walkerville L)

Mrs Marion Boyd (London Centre / -Centre ND)

Mr Jack Carroll (Chatham-Kent PC)

Ms Annamarie Castrilli (Downsview L)

Mr Dwight Duncan (Windsor-Walkerville L)

Mr Tim Hudak (Niagara South / -Sud PC)

Mr Frank Klees (York-Mackenzie PC)

Mrs Lyn McLeod (Fort William L)

Mr John R. O'Toole (Durham East / -Est PC)

Mr Bruce Smith (Middlesex PC)

Substitutions / Membres remplaçants

Mr Carl DeFaria (Mississauga East / -Est PC)

Mr Peter Kormos (Welland-Thorold ND)

Mr Peter L. Preston (Brant-Haldimand PC)

Mrs Sandra Pupatello (Windsor-Sandwich L)

Mr Bob Wood (London South / -Sud PC)

Also taking part / Autres participants et participantes:

Ms Alison Fraser, counsel, MCSS

Mr Allan Kirk, project manager, social assistance legislation, MCSS

Clerk / Greffière

Ms Tonia Grannum

Staff / Personnel

Ms Betsy Baldwin, legislative counsel

STANDING COMMITTEE ON COMITÉ PERMANENT DES

SOCIAL DEVELOPMENT AFFAIRES SOCIALES

Tuesday 4 November 1997 Mardi 4 novembre 1997

The committee met at 1006 in room 1.

SOCIAL ASSISTANCE REFORM ACT, 1997/LOI DE 1997 SUR LA RÉFORME DE L'AIDE SOCIALE

Consideration of Bill 142, An Act to revise the law related to Social Assistance by enacting the Ontario Works Act and the Ontario Disability Support Program Act, by repealing the Family Benefits Act, the Vocational Rehabilitation Services Act and the General Welfare Assistance Act and by amending several other Statutes / Projet de loi 142, Loi révisant la loi relative à l'aide sociale en édictant la Loi sur le programme Ontario au travail et la Loi sur le Programme ontarien de soutien aux personnes handicapées, en abrogeant la Loi sur les prestations familiales, la Loi sur les services de réadaptation professionnelle et la Loi sur l'aide sociale générale et en modifiant plusieurs autres lois.

The Chair (Ms Annamarie Castrilli): Ladies and gentlemen, welcome to our second day of clause-by-clause on Bill 142. We are going to proceed by going back to some of the sections that were either stood down or required some answer. The first one we deal with is schedule A, subsection 28(11). You will find that on page 29 of your binder. You may recall that one was deferred until today. It was originally moved by the NDP.

Mr Jack Carroll (Chatham-Kent): We were dealing with subsection 28(11). The situation we left yesterday was that there were some questions from the third party, from Ms Lankin, about what this particular section meant and we were unable to satisfy her when we explained that, in our opinion, if the administrator of the program had made a decision, and if that decision was in fact appealable to the tribunal, the onus was on the person, the appellant, to prove the decision was wrong. Ms Lankin had some concerns about that so I said I would get some more information, whatever other information was available.

The only thing I can add to the logic of that this morning is that that particular wording, that the onus is on the appellant to prove the original decision was wrong, will be used as the basis for which the tribunal and its processes will be structured. We have to start from some premise in establishing the tribunal, so the premise under which the tribunal and its processes will be established will be that the appellant has the responsibility to prove that the original decision that was made was wrong.

Mrs Marion Boyd (London Centre): The question, I believe, was whether that is the same principle as now applies or whether it is increasing the burden of proof. Are we still talking about the current situation where the appellant of course bears the responsibility and must prove it beyond a reasonable probability?

Mr Carroll: I'm not sure that was --

Mrs Boyd: The balance of probabilities.

Mr Carroll: Have we anything further to add? Does this increase the burden of proof?

Ms Alison Fraser: No, it does not change the burden of proof. It is still proof on a balance of probabilities as it is today.

Mrs Boyd: The other question then is, in law now, when SARB looks at something, it is looking at the issue the administrator decided upon, but if there is additional evidence to be brought forward in support of the appelant's position, it can be brought forward to the tribunal even if it has not been brought forward to the administrator. Would that remain case the under this section?

Ms Fraser: There was no intent to change the current status on that matter.

Mrs Boyd: Thank you.

The Chair: With that, we'll vote on subsection 28(11). All in favour? Opposed?

Mr Carroll: Are we voting on the subsection or the whole section?

The Chair: Just the subsection, 28(11), on the amendment that was brought in by the NDP.

Mr Peter L. Preston (Brant-Haldimand): Are we voting on the amendment or the section?

The Chair: Mr Preston, we're voting on the amendment of the NDP to subsection 28(11), which was the one that was stood down. All in favour of the amendment? Opposed? The amendment is defeated.

Just to refresh members, there were no amendments that were carried to section 28, so shall section 28 carry? All in favour? Opposed? This section is carried.

Now we need to deal with all of schedule A.

Mr Carroll: On a point of privilege, Madam Chair: We had a discussion yesterday surrounding the reasons for Ms Lankin to be away from the committee and I hope everything went well with her mum. I trust it did because I saw Ms Lankin on television last night, so I trust things are fine with her mum.

The Chair: Thank you, Mr Carroll. We all wish Ms Lankin and her mother all the best.

Shall schedule A, as amended, carry? All in favour? Opposed? Schedule A, as amended, is carried.

Mr Preston: On a point of order, Madam Chair: Could you tell me where we're at with the question I put to Hansard yesterday? You were going to get me the relevant introductions to the votes, the votes yesterday.

The Chair: Yes, I'll ask the clerk to respond.

Clerk of the Committee (Ms Tonia Grannum): Yes, we've put in that request and they will be getting it to us as soon as they can.

Mr Preston: Is there any time frame on that?

Clerk of the Committee: Hopefully today. We'll have somebody check on that.

The Chair: You will recall that a number of amendments to sections were stood down. I propose to go back to those now. With the assistance of the clerk, I hope I don't miss any. They occurred in schedule B. Section 1 was carried. Section 2: There was an amendment to be moved by the NDP.

Mrs Boyd: I move that section 2 of schedule B to the bill be amended by adding the following definitions:

"'assets' means money, funds, property or interests in property that can readily be converted into cash, but does not include money, funds, property or interests in property necessary for the health or welfare of an applicant, recipient or dependant;

"'income' means any payment in the nature of income made to or on behalf of an applicant, recipient or dependant and available to be used for basic needs and shelter."

If I may just give the rationale for the amendment, which I'm sure Ms Lankin did yesterday on schedule A as well, the purpose of the amendment is to be very clear that there is no intention here to deprive people of the wherewithal to support their health and welfare and that any income has to be available for basic needs. The concern of course is around issues which arise partly out of this bill which make it possible that income will have been completely assigned to another party under the Family Responsibility Office act or similar kinds of situations. So we're talking about income that's available for meeting the basic needs.

Mr Carroll: As Ms Boyd said, we dealt with this under Ontario Works, and the bill already has regulation-making authority to define any word or term -- section 74 under Ontario Works and section 54 under the ODSP -- so for that reason this amendment is not necessary.

The Chair: Ms Boyd, just before you start, for the benefit of members, it's around page 62 in the binder in case you're not with us.

Mrs Boyd: We're well aware of the regulation-making power under this bill. The issue for people who came before us as a committee was that they wanted some of these definitions enshrined in legislation so that they couldn't be changed at the whim of the minister or the Lieutenant Governor in Council.

Definitions are extremely important when we are talking about a bill which is talking about the subsistence needs of members of our community. To have these two things left up to the whim of the government of the day is not appropriate. It has been one of the criticisms of social assistance legislation from its inception, that too much is left up to regulation. It is scant comfort to those who came before us when the parliamentary assistant tells us that there's regulation-making power to define virtually anything in the bill. People who object to this bill are well aware that the government can skew this legislation in any direction it wishes because it has left so much up to regulation.

The Chair: Further discussion? All in favour of the amendment? Opposed? The amendment is defeated.

I will remind members with respect to section 2 that we approved one amendment and so my question is, shall section 2, as amended, carry? All in favour? Opposed? The section carries.

Section 3, Ms Boyd, was also stood down.

Mrs Sandra Pupatello (Windsor-Sandwich): The number of the amendment?

The Chair: It's on page 62, which is schedule B, section 2, definitions.

Mr Preston: Page 62?

The Chair: Yes.

Mr Preston: It's the one we just did.

The Chair: Yes, but Ms Pupatello was asking me about that. That's why I repeated it. We are now on section 3.

Mrs Pupatello: That's the one I was asking about.

The Chair: My apologies. I misunderstood you.

We're on section 3, which is the NDP motion on page 63.

Mrs Boyd: I move that subsection 3(1) of schedule B to the bill be amended by inserting after "section 4" in the third line "the person is 60 years of age or older and less than 65 years of age, the person was a recipient of an allowance under the Family Benefits Act on the day before this section is proclaimed in force."

Of course the purpose of the amendment is to ensure that those who are between 60 years of age and 65 years of age continue to keep their eligibility under this act. Age may have been the reason they were considered unable to work, because of disabilities that may not meet this prospect of eligibility change they clearly face with this bill. So we are asking that it be very clear that these folks be specifically included in the ODSPA.

Mrs Pupatello: I want to add for the government members that we tried to have this kind of clause also included under the workfare portion of the bill, and for all of those same reasons we believe it must be included in this portion of the bill.

On all the examples we gave in the House and outside the House as to why 60- to 65-year-olds should be exempt, the minister's response only addressed the issue of how appropriate it would be if it were an opportunity they could choose as opposed to it being mandatory, because indeed some people 60 to 65 may well choose to have opportunities available to them for employment. We cannot carte blanche suggest that all of these people in this age group are going to be appropriate in the workfare program and potentially left out of other programs based on that age, because there are typically many other factors, given the decade they grew up in, were schooled in etc. We brought real-life examples of those people to the minister's attention. The response at that time only answered the question that it would indeed be beneficial to them if they could choose to participate in those programs. I would again like to stress that while you've defeated amendments previous to this, you have another opportunity now to set aside a special clause, at minimum, for this age group, 60 to 65.

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Mr Carroll: I'd just like to remind the committee members that this is the Ontario Disability Support Program Act we are dealing with here. The government's belief is that being over 60 does not mean you're disabled. Being a sole-support parent does not mean you're disabled. We believe this plan is designed for people who are disabled and therefore should not include persons who are 60 to 64 and that is their condition or persons who are sole-support parents. For that reason, this amendment is not acceptable.

Mrs Boyd: It's very clear that the government is saying it is prepared to make it mandatory for people between 60 and 65, who we know from all the employment statistics and research that's been done already have difficulty finding work, that this government is prepared to make that group of people face mandatory workfare exactly the same as others. I think they will find that is not a wise decision for them to make. If people have the choice, those who are able will work and those who are not able will not be able to work. It's just another example of this government being punitive against a whole class of people because of its ideological position.

Mr Preston: Using Ms Boyd's own words, those who are able will work and those who aren't able will be on disability. Governments all over North America have said 65 is the time you start putting people out to pasture, not 60, thank you very much. Able, they work; not able, they're on disability. Your words, not mine.

The Chair: All in favour of the amendment? Opposed? The amendment is defeated.

Mrs Boyd: Madam Chair, I made an inquiry in response to Mr Carroll's inquiry about Ms Lankin's mother. I understand that Ms Lankin did go to see her and that she is holding her own. He made some comment about her being on TV and apparently those were clips that were taken from lunchtime, on education, and did not occur in the evening as the member suggested.

The Chair: Shall section 3 carry? We have just voted on the amendment. All in favour? Opposed? The section is carried.

Section 4: We have an NDP motion which was stood down, subsection 4(1). You will find it on page 64 of your binder.

Mrs Boyd: I'll read the amendment as it is placed.

I move that subsection 4(1) of schedule B to the bill be struck out and the following substituted:

"Person with a disability

"(1) Subject to subsection (2), a person is a person with a disability for the purposes of this part if,

"(a) the person has,

"(i) any degree of physical disability, infirmity, malformation or disfigurement that is caused by bodily injury, birth defect or illness and, without limiting the generality of the foregoing, including diabetes mellitus, epilepsy, any degree of paralysis, amputation, lack of physical coordination, blindness or visual impediment, deafness or hearing impediment, muteness or speech impediment, or physical reliance on a guide dog or on a wheelchair or other remedial appliance or device,

"(ii) a condition of mental retardation or impairment,

"(iii) a learning disability, or a dysfunction in one or more of the processes involved in understanding or using symbols or spoken language,

"(iv) a mental disorder, or

"(v) an injury or disability for which benefits were claimed or received under the Workers' Compensation Act;

"(b) the results of a direct or causally connected and cumulative effect on the person's ability to attend to one or more of his or her personal care, function in the community or function in a workplace;

"(c) the impairment and its likely duration have been verified by a person with the prescribed qualifications."

This definition is taken directly from the current human rights definition. We heard again and again from people coming before the committee that the real concern people have is that the definitions are not clear enough in the act to reassure people that they are going to enable those who have disabilities to have a subsistence income under social assistance, or rather, under the ODSPA, so we are adding this.

I would say, Madam Chair -- and I don't know whether amendments to amendments are allowed in this process; they have been in other committees that are under time allocation but that would be up to you -- that 1(a)(ii), "a condition of mental retardation or impairment," although it is in the definitions that are available in current legislation, is certainly offensive to a lot of people. The acceptable language that has been adopted has been "a condition of developmental delay or impairment." If the committee is willing to look at that as an amendment, I would be prepared to put it.

The Chair: We have no latitude to accept amendments to amendments. Our time allocation motion is quite clear that all of the amendments had to be filed with the clerk on the fifth calendar day following the final day of public hearings on the bill. We've had similar discussions here before and no amendments are possible.

Mr Carroll: On that issue, you have set a precedent by allowing some word change to many Liberal amendments. I think in the name of consistency you must allow Ms Boyd to make this wording change in this amendment, because you have already set a precedent saying it is okay in this committee to change the wording of amendments beyond the time frame allowed in the time allocation motion.

The Chair: I thank you, Mr Carroll, and I certainly am sympathetic to what's been voiced here. If members will recall my ruling at the beginning of the session, the reason the word changes were allowed at that juncture was because the amendments had already been filed and it was only a question of putting them into legal language. There were no changes. I don't think this would stand as a legal language change. For that reason, I can't allow it.

Mr Carroll: Madam Chair, I must --

The Chair: Mr Carroll, that's my ruling and I really would like to move on.

Mr Carroll: Is there no opportunity in this committee for some consistency? You either make decisions and allow changes in wording in amendments for all parties or you make them for no parties. You've already set a precedent by allowing them for your party. I believe you have the obligation to allow them for all parties.

The Chair: I've given you a great deal of latitude, Mr Carroll. I understand the concern and, believe me, I'm sympathetic, but I do believe I'm being consistent.

Mr Preston: Sympathetic but not consistent.

The Chair: Can we go on?

Mrs Pupatello: Madam Chair.

The Chair: Ms Pupatello, is this on the same point? I want to move on.

Mrs Pupatello: Yes. I just had a suggestion that if the committee was prepared to move this particular amendment, I think we can find a way, once we have that motion moved, that perhaps the committee would consider changing the wording of "mental retardation" to "developmentally delayed." If the committee is prepared to defeat the amendment anyway, then this is moot.

The Chair: The difficulty we have, Ms Pupatello, is that we have no facility to move amendments to amendments in this committee.

All in favour of the amendment? Opposed? The amendment is defeated.

Ms Boyd, for your information, the next one is subsection 4(2), but that amendment was ruled out of order in light of the fact that the government amendment to section 4 was carried. For the benefit of the members, there were two government amendments to section 4 that were carried.

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Mrs Pupatello: What are those numbers, Chair?

The Chair: Which numbers, Ms Pupatello?

Mrs Pupatello: The government motions that we passed.

The Chair: That would be clause 4(1)(b) and section 4, on pages 65 and 66.

Mrs Pupatello: Did that make my next motion --

The Chair: Yes. We ruled on it yesterday.

Shall section 4, as amended, carry? All in favour? Opposed? The section, as amended, is carried.

Section 5: For your information, Ms Boyd, that section was carried. There is no need to deal with the NDP motion. It was out of order as a repetition of the Liberal motion.

The next section is section 7. That was also out of order, because I believe that was a recommendation; it was not a motion.

That brings us to a new order of business, section 8.

Mr Carroll: Madam Chair, just a question: Was section 7 carried?

The Chair: Yes, it was. It was our last item of business yesterday.

We are now at section 8. Just so everyone is following along, that would be page 71A in your package.

Mrs Pupatello: I move that subsection 8(1) of schedule B to the bill be struck out.

The discussion around the purpose of this amendment is to completely remove section 8 as it deals with reimbursement requirements. We think that in regulation there are other ways. If there are overpayments for some particular purpose, there are other areas of the bill where you can satisfy obvious overpayments or errors in that way. We have had evidence that many of those issues and errors tend to have more to do with the staff direction than the recipient direction. So we don't see any purpose, other than to be punitive, to have section 8 in there in the first place and we'd like to see that entire section removed.

Mrs Boyd: I would be very curious if the parliamentary assistant could tell us what kind of prescribed circumstances are being anticipated here.

Mr Carroll: I don't know that. We don't know. We haven't determined that yet.

Mrs Boyd: Another pig in a poke.

Mr Carroll: I guess you can call it whatever you want, Ms Boyd.

Mrs Boyd: The reality here is that this is left so open-ended that basically what it requires an applicant to do is to sign away something without any idea under what circumstances that may be acted upon. It seems to me that certainly is a violation of natural justice, if nothing else.

The Chair: All in favour of the amendment? Opposed? The amendment is defeated.

Mr Carroll: I move that section 8 of schedule B to the bill be struck out and the following substituted:

"Agreement to reimburse and assignment

"8(1) The director shall in prescribed circumstances, as a condition of eligibility for income support, require an applicant, a recipient or a dependant to agree to reimburse the director for the income support provided or to be provided.

"Same

"(2) An agreement under subsection (1) may require an assignment, as prescribed.

"Same

"(3) This section does not apply to,

"(a) a payment that would be exempt as income or assets under this act or the regulations; or

"(b) that portion of employment earnings, pension income or other prescribed income that is paid with respect to a period after the period during which the person receives income support."

Subsection (1), as amended, clarifies that a person may be required to agree to reimburse not only assistance to be provided but also assistance that has been provided in the past.

Subsection (3), as amended, clarifies that there's no intention on the part of the government to either (a) seek an assignment against the types of income or assets that are exempted under the regulations or (b) to assign earnings or other income not attributable to a period during which social assistance was received.

Mrs Pupatello: A question for the staff or the parliamentary assistant: Given the further clarification in this area, given the clarification to 8, there must have been concerns that were raised that now the new amendment being put forward takes that element away. Could you give me examples? I know Ms Boyd asked earlier about examples, but even if a person who was disabled should suddenly become not disabled, and you have to be disabled in order to meet the requirements of the ODSP anyway, you're still looking at going back at earnings received through the plan for an individual who has already met the criteria. I can't think of an example. Even if you're blue-skying, could you just give me some type of instance where you have clearly set in further language, when I found the initial one actually not appropriate, in particular for people who have already met these new criteria for actually meeting and becoming eligible for ODSP?

Mr Allan Kirk: This amendment does two things. The amendment to subsection (1) simply makes it clear that when income is going to be assigned, an income will be assigned. This actually is an example of "as prescribed," where someone is receiving, for example, or is eligible to receive Canada pension plan and the application is taking some time to process and they will in fact receive that Canada pension retroactively. The wording in Bill 142 talked about "to be provided." We had to clarify that this was also assistance being provided, so that when the CPP payment finally was made, then we had the ability to assign the CPP that was going to be paid for the same period they received assistance. That's what the first amendment does.

The second amendment makes it clear that this is not a loan program and that the intention is not to assign future earned income or pension income simply because the person had been in receipt of social assistance for some time.

Mrs Pupatello: If an individual who is disabled, for example, gets married or changes family circumstance somehow, where all of a sudden they're in a different financial position, having said they've signed this and now they've agreed to reimburse, would you be in a position to go back for those payments?

Mr Kirk: All recipients or applicants who come on to social assistance aren't automatically asked to sign an assignment. People are asked to sign an assignment when it's expected there will be income for a period for which they received assistance. In the example you gave, if someone's circumstances change while they're in receipt of assistance, if they become married and the spouse has income that makes them ineligible, then they cease to be eligible at that point. They don't assign past social assistance based on the fact that they got married today.

Mrs Pupatello: Can you tell me what part of this new amendment indicates that? I don't read that in the amendment you've forwarded.

Mr Kirk: Subsection (3) says,

"(3) This section does not apply to,

"(a) a payment that would be exempt as income or assets under this act or the regulations; or

"(b) that portion of employment earnings...." and so on.

When you assign future income, when someone comes on social assistance, you don't ask them to sign an assignment based on the belief that one day they will get married or one day they will have a partner whose income will render them ineligible for social assistance. That's a change in circumstances, and if a change in circumstances like that happens, then you deal with it when it happens and it impacts on the allowance when it happens.

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Mrs Boyd: Just to be very clear, because we did hear presentations particularly from advocates for the disabled, if, for example, someone was on the ODSPA and was unable to work -- because I'm most familiar with it, let's use multiple sclerosis as an example -- and became healthier over a couple of years and was then able to go back to work, the objective of this amendment would be to not have them then have to pay, out of the wages they earn once they go back to work, the assistance they had. That's what this is answering, the concerns that people had?

The Chair: All in favour of the amendment? Opposed? The amendment is carried.

Ms Pupatello, given the passage of this amendment, yours is out of order.

Ms Boyd, before you begin on subsection 8(3), I'm advised by legislative counsel there was a drafting error that was made in this particular section. There is no subsection 8(3). The instructions from your caucus were to add subsection 8(3). So on that basis, you may introduce it.

Mrs Boyd: I'm going to withdraw it because of the amendment that has just passed.

The Chair: Shall section 8, as amended, carry? All in favour? Opposed? The section is carried.

Section 9:

Mrs Pupatello: I move that subsection 9(2) of schedule B to the bill be amended by striking out "only in accordance with the regulations" at the end and substituting "once the director has confirmed compliance with the conditions of eligibility for income support."

The purpose of course is that, given other amendments we have forwarded that have since been ruled out of order, as recommendations to withdraw this portion of the bill were not discussed until we saw regulations, it again speaks to the control being so firmly in the lap of what the regulations will read. We're far more comfortable saying clearly that if the director has confirmed compliance with conditions, that should be sufficient, as opposed to what may or may not be in regulation.

The Chair: All in favour of the amendment? Opposed? The amendment is defeated.

Shall section 9 carry? All in favour? Opposed? The section is carried.

Section 10:

Mrs Boyd: I move that section 10 of schedule B to the bill be amended by adding the following subsection:

"Decision

"(3) Where an application is made in accordance with this section, the director shall make a decision on the application within the prescribed time period."

The issue here obviously is that things be done in a timely fashion. It is extremely important that the time limits be clarified and that everyone in the system, whether it's the recipient side of the system or the administrator side of the system, be required to meet the prescribed time.

Mr Carroll: I understand Ms Boyd's concern there and quite frankly I agree with it, but I believe that kind of requirement is more logically done as a delivery standard rather than in the statute. For that reason, this amendment is not acceptable.

Mrs Boyd: That certainly then leaves it up to an issue that is not enshrined in law. It changes in standards, or as with changes in regulations can be done without necessarily the information being provided to people. It is often extremely hard for applicants and their advocates to get hold of the internal standards or policies of the ministry. It's even hard to get hold of regulations sometimes. It would give great comfort to those who are really concerned about this bill to know the requirement is in the act that the time periods will be specified.

The Chair: All in favour of the amendment? Opposed? The amendment is defeated.

Mrs Pupatello: I move that section 10 of schedule B to the bill be amended by adding the following subsection:

"Same

"(3) Every effort shall be made to ensure that the requirements for making an application for income support are readily available and clearly communicated to applicants for income support."

The purpose of this amendment is fairly clear in that it is our intention that efforts and onus be placed on the ministry as well to ensure information is available readily. We have had numerous instances where people simply aren't accessing the system in a timely fashion despite what their needs are because they just lack information. We have to put some onus on the side with front-line workers to say, "This is what individuals need to know." We feel that by enshrining that in the bill, it will give that kind of message, that people who work with those recipients have a job to do and that is to ensure that, given certain circumstances, if an individual is required to come back to the system, they are told of all the opportunities available to them: how, when, where. Those are often the questions. I know as MPPs we get information all the time and it's a matter of us having to get people to the right place at the right time.

Mrs Boyd: I would certainly agree that this lack of information and the lack of clarity around what's expected of recipients can be shown to often lead to some of the misunderstandings that occur in terms of whether people are eligible, whether their eligibility has changed. I think one of the very clear issues that has arisen out of more than 10 years of effort to try and make the social assistance system work better for everyone in Ontario has been that whole issue of information flow.

This government has now downloaded the responsibility for administration of this act for the disabled to municipalities, and it is in the municipal sphere where they have been administering GWA that some of the greatest disparities in terms of the way social assistance has been delivered have been noticed.

We have very little confidence that the kinds of agreements delivery agents will be reaching with the government will require them to provide adequate information. Everything in this act leads us to believe that the effort on the part of the government is to keep recipients in the dark. They may not even be notified if they have an overpayment, for example. So this issue of making sure that people actually understand what they're applying for and what they're agreeing to under this act is extremely important.

It will indeed be very detrimental, in my view, for those with disabilities to find themselves with the kind of uneven application that is likely to happen with this download of their needs to municipalities. It is a very big concern to those who work with the disabled that this be spelled out, that it is a requirement to inform recipients.

The Chair: All in favour of the amendment? Opposed? The amendment is defeated.

Shall section 10 carry? All in favour? Opposed? The section is carried.

Section 11, any discussion? Shall section 11 carry? All in favour? Opposed? The section is carried.

Section 12:

Mrs Pupatello: I move that subsection 12(1) of schedule B to the bill be amended by striking out "The director may appoint a person" at the beginning and substituting "In accordance with the Substitute Decisions Act, 1992, the director may apply to have a person appointed."

The purpose for this is likely clear to everyone. We think there is already legislation in place that would guarantee the appropriateness of appointments for people to act as trusteeships over income for individuals who are going to be on the ODSP. We don't think the director should have this kind of power. We know the Substitute Decisions Act is there and it should be used.

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We feel very strongly about this. We feel that there's an opportunity for appointments to be made incorrectly. Given the very nature and issues that we heard from the disabled community where there's a high incidence of intimidation, often abuse, we just don't think it's appropriate that automatically, for example, a spouse or a family member would be appointed without knowledge necessarily of the history or family history.

There are a whole number of issues, many of which came to our attention during public hearings, and we feel the better course of action here would be to use the Substitute Decisions Act.

Mrs Boyd: I share the concern my colleague has. That was pointed out again and again, not only by those who are legal advocates but by many of the others who came before us. We are expecting a director of an agency that's providing social assistance to make judgements about someone's competence.

We clearly have acts that are there and have recently been revamped to have an even more streamlined process in place. For the government to flout its own agreed law, because there was an opportunity under this government to look at this Substitute Decisions Act when they changed the health consent act, and in fact they made a number of amendments, the reality is that this is trying to go around an act that even this government has agreed is important to protect the rights of the individual. It is quite inappropriate for some person to make a decision around competence when they are not professionally capable of doing so and when they are not required to follow the due process that has already been enshrined under the Substitute Decisions Act.

Mrs Pupatello: I just would like my final comment to be directed as a question to the parliamentary assistant or the staff. If there is a reason the Substitute Decisions Act wasn't used in this and other circumstances, given the history of this act, even with this current government, for what purpose? Was it a matter of time? Is it not a quick enough process? There must be some reason you've selected not to use the Substitute Decisions Act in this.

Mr Kirk: If you remember when we were doing schedule A in Ontario Works, in section 17 one of the government amendments was to remove the ability for the administrator to actually determine that a recipient is incapacitated or incapable of handling his or her affairs. There's a similar motion to amend section 12 of ODSP because we agreed that this was something that could be done through the Substitute Decisions Act. It has been removed in both 17 of OW and 12 of ODSP, but it remains true that there will be instances where it's clear that a recipient is not managing their allowance very well and requires some help, even though it may be that they wouldn't be determined to be incapacitated under the Substitute Decisions Act, which is a lengthy process, by the way.

Mrs Boyd: It may be a lengthy process, but it's a lengthy process to protect the individual and it's a lengthy process precisely because this is leaving an individual here, a disabled individual very vulnerable to other people. There is no restriction on who may be appointed by the director. It could be their landlord. It could be their caregiver. It could be someone who has a direct conflict of interest in terms of looking after their allowance. That is exactly what is frightening to everyone in this system, that this person can make this decision without going through the due process that should be required.

There are many, many people who think that anyone with a developmental delay is incapable of looking after their own money. The reason there are protections in the act, the reason that there has always been a protection in this province around having someone declared incapable of looking after their own income, is to ensure that people are not taken advantage of.

We had example after example in the Ernie Lightman report around how the kind of assignment that happens in care homes in fact takes advantage of people, puts people into a vulnerable position. This government is simply increasing this to include everyone, whether or not they live in that kind of vulnerable circumstance. It is absolutely inappropriate and there is nothing in the government amendment to provide any protection for vulnerable individuals under this section.

Mrs Pupatello: I just want to give the members of the committee an example. If there's an individual who is not capable of speech, the contact between that individual who meets the criteria of ODSP is through the director, an individual on the front line or an individual in the ministry who is making the determination of who should be appointed on their behalf.

Now you've made an assumption that the director has to get that information from someone who'll act as an interpreter somehow for an individual who cannot speak, for example, so you've already assumed that the director assumes that the information that they get from whoever's speaking on their behalf is speaking in the best interests of the individual, so you're already one step removed that. You simply cannot say that a director is in a position to make what is the most important decision for the recipient, and that is their income. There are very few areas in life that you can control that will have a greater impact on how people live, where they live, when they do what, and that is control of their financial affairs.

I cannot tell you or give you an example of something that's more important, and you are completely putting that decision in the hands of a director with no in-between to ensure it's done properly. So just to give yourselves protection for the government's sake, you should be using the Substitute Decisions Act because there was a real reason that was brought in. Those kinds of issues exist, they're real and I don't believe it's in the government's best interests to ignore this. We understand and we know that there's a significant level of abuse in the community with those with disabilities and it happens because these people are less capable of protecting their own interests than people without disabilities.

I understand that we're going on at length about this motion, but given that you've already made some kind of amendment to suggest that you can use the Substitute Decisions Act in other areas, there isn't a reason why you can't clearly state this in section 12.

Mr Carl DeFaria (Mississauga East): I would just like to have a clarification. That would apply, I guess, only if the person is already disabled, because I assume somebody who is not disabled could still make a power of attorney for incapacity.

Mrs Pupatello: They wouldn't be in the ODSP if they're not disabled. These are for people who are disabled.

Mr DeFaria: Right. But what I'm saying is that if those people already had a power of attorney for incapacity under the Substitute Decisions Act --

Mrs Pupatello: Then they've already gone through the system. They've already had a trustee established.

Mr DeFaria: Right.

Mrs Pupatello: This is for people who do not have a trustee established for any other element of their life, but in this case of receiving income assistance through ODSP the director has the power to say: "I'm not giving you the money. I'm giving it to your mother, your brother, your boyfriend, whoever." There's no area of clarification where the director must ensure that this person is safe to handle the financial affairs. There are no safeguards the way it is currently written, and I cannot come up with one good reason why you wouldn't have included it specifically in section 12, because it has to do with who controls the money. There's no greater force of power for individuals who are beholden to a system for their income, for their very existence, than this area. If you've made any kind of adjustments through amendments in other areas of the bill, then it only stands to reason that this is the most significant place to ensure it's in the bill.

The Chair: Further debate? All in favour of the amendment? Opposed? The amendment is defeated.

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Mrs Pupatello: I move that clause 12(1)(a) of schedule B to the bill be amended by striking out "or likely to use" in the first line.

The purposes for this are that the way that (a) is currently written, it says the recipient "is using or is likely to use" and the difference between the two is that clearly the director or someone has proof that the recipient is using the money inappropriately, and that is very different from the speculation that someone may use the money inappropriately. I think that leaves the gate wide open on how an administrator will judge or prejudge a recipient. If they look funny, if they dress funny, if their behaviour is not within accepted norms of behaviour, there is very much room for judgement on the part of the bureaucrats in this instance. If we remove "likely to use," we're at least curtailing that somewhat.

Although I'm not comfortable with the whole thing clearly, as was the purpose of the previous amendment, I do think that at minimum if you remove "likely to use," you're not giving so much leeway to individuals to make judgements on people who are receiving help.

Mrs Boyd: I would certainly agree that this issue "or likely to use" as a prejudgement of what people are likely to do is extremely questionable in its appropriateness. But I would say, and as is shown by our amendment under number 76 in the binder, we believe that this entire section, clause 12(1)(a), in fact imposes a judgement on how assistance is used by recipients and therefore is inappropriate in its entirety.

The Chair: All in favour of the amendment? Opposed? The amendment is defeated.

The clerk advises me that the next four motions in your package are out of order, so with your indulgence I will give you the correct page numbers so we can deal with them sequentially. The first one would be what is your page 76 and it's an NDP motion to schedule B, clause 12(1)(a).

Interjection.

The Chair: No. I can take you through them all now if you wish or I'll do them one by one.

Mrs Pupatello: Just one more so I can run out for a minute.

The Chair: Pardon?

Mrs Pupatello: If I know there's an NDP motion that follows this one --

The Chair: The next one is a Liberal motion. I guess that would be 74D, which we'll be dealing with next. So the first one is schedule B, clause 12(1)(a), which is on your page 76.

Mrs Boyd: I move that clause 12(1)(a) of schedule B to the bill be struck out.

I'm going to read the clause out so that people are very clear what we're talking about. Clause (a) says, "The recipient is using or is likely to use his or her income support in a way that is not for the benefit of a member of the benefit unit."

This quite clearly is the kind of judgemental statement that this government makes all the time about people who are in receipt of assistance, the assumption that people will not be likely to use their benefits appropriately. It is completely inappropriate in this section for a director to (a) make the assumption that someone is not using their benefits and then (b) make the assumption that it's up to that director to name someone else, whether or not the individual agrees that someone may be named to look after their benefit cheque.

You've got to remember that these cheques are the basic subsistence income that someone has. It's all they have under the rules. They do not have additional income. If this kind of basic subsistence income is handed over to someone else by someone, with no restrictions on who this person might name, no requirement for the individual to agree that person is someone who will act in their best interests, it is just absolutely inappropriate. Certainly this kind of clause where someone is able to make an assumption and then to act on that assumption without any requirement for proof at all, without any kind of due process, without even the individual having the chance to answer the accusation, is completely against any kind of principle of due process.

Quite frankly, we'll certainly do everything we can to get this section changed, but it is one of those sections of this act that will be challenged; and I don't think, given the kind of loopholes that there are in terms of people's rights, it is likely to withstand a strong challenge.

Mr Carroll: The effect of this amendment would be to leave the question of incapacity in the bill. We believe that is better dealt with by the Substitute Decisions Act. It also would be to have the question of incapacity as the only determination as to whether or not a trustee should be appointed. We think that for those two reasons this particular amendment is unacceptable because it certainly produces an outcome that I believe both Ms Boyd and the government would not be desirous of, and that is that incapacity would be left up to the discretion of the director and would be the only determining factor.

Mr Preston: Decisions by workers on what they think is going on, what they think is going to happen, happen all the time. There are certain child care workers right now who are being severely chastised because they didn't make a decision on what they saw to be a problem before the problem happened. They see a child in jeopardy and they don't do anything because there are no hard facts. That's ridiculous. If you feel that something is wrong -- they are trained to make decisions. Do you close the door after the horse is gone? If they feel that a particular person is not going to use the funds to take care of their children, another person under the plan, the time -- as you said, this is all the money there is. This is it. There is no more. Do you close them down after the child goes hungry or before, using your experience before the child goes hungry? I believe we err on the right side and decide that if the administrator thinks this person is not going to take care of that child because he's going to gamble, drink, whatever reason, I think the gate should be closed before the horse is out.

Mrs Boyd: That's a very fallacious argument, as I'm sure the member knows.

Mr Preston: It's not fallacious at all. There are people who are being charged --

Mrs Boyd: When a child welfare worker makes a determination, there is a due process that they have to follow. There is a court that has to decide whether or not they have adequate evidence. This is an absolutely open situation. This director can make this decision and choose any person this director decides without the consent of the individual and therefore put the whole family in jeopardy. There is no requirement here on the director to be sure that the person they are handing the money to is going to use it for the benefit of the members of the unit any more than there is that the person who's primarily the recipient is going to use it for the benefit of the unit.

Mr Preston: I have more faith in the administrator.

Mrs Boyd: This is putting people in double jeopardy as a matter of fact.

The Chair: Excuse me, Ms Boyd. Mr Preston, I'll give you the opportunity to speak again if you wish, but I prefer people to speak uninterrupted. Ms Boyd.

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Mrs Boyd: A gut feeling on the part of someone that someone might smoke or drink or gamble rather than buy their children food is not an acceptable reason to hand their money over to another individual who can use that money in any way they wish. This is putting people in complete jeopardy and it is not appropriate. In the instance that the member mentioned, there is a process set down by legislation. There are time limits within which a judge must make a determination as to whether or not there is adequate proof that in fact a child is in need of protection, and that is very much built into child welfare legislation. For this member to suggest that this is a similar kind of protective issue is absolute nonsense and it is drawing in a red herring.

What this government is saying is that it wants to allow individuals within communities to have power over other people's spending decisions without any kind of check, so that all the judgement that is brought to bear on those who are in receipt of social assistance, and largely brought to bear because of the tactics of this government in demonizing people who receive assistance, will be brought to bear on these individuals and they will have no recourse at all when this happens. There is no due process here. It will never stand up, in my opinion, and it really is questionable that this government is trying to in any way assist the disabled when it leaves a clause like this in.

The Chair: Mrs Pupatello.

Mr Preston: If the member believes --

The Chair: Sorry, Mr Preston, Mrs Pupatello had asked to speak first, but I'll give you a turn immediately after.

Mr Preston: I'm sorry.

Mrs Pupatello: I just wanted to mention that if we were assured that individuals who are receiving disability were going to get the same care and accountability that child care workers must give for the children under CASs, for example -- which is the example that you've chosen to use -- that is not reflected in this. The significant difference is, in one case you're dealing with children and in this case you're dealing with adults. First, that's a significant difference, so it simply does not apply. Second, the people who are out to protect children have a very stringent process that they have to be accountable for and it must stand up in court. That is not the case with this bill.

Unfortunately, what you're going to find, as Mrs Boyd mentioned earlier, is that you will be subjected to a challenge on this, if these people will be able to access the legal system, which as you well know is becoming more and more difficult the longer you're in office.

Don't even bring in an argument that has absolutely no bearing on this situation. The director in this case is accountable to absolutely no one for the decision that has been made, very much unlike the people who are protecting children, who are answerable to God and country for what they do on behalf of children's protection.

Mr Preston: I don't think we can divorce children from this because I believe that is one of the main people we're talking about when we say "in a way that is not for the benefit of a member of the benefit unit." I believe that's directed directly at children.

To say that they have due process when a child care worker is working, they have that after the fact. If a child care worker is on the ball, she sees a problem developing and she or he -- pardon me -- takes the child out and then goes through the due process. If they don't, we have the kind of tragedy that happened down east where they didn't move fast enough. Close the door before the horse gets out, and that's what I think we're doing.

Mrs Boyd: There is no due process built into here. Once the cheque is gone, it's gone. There's no due process that's built in. The parliamentary assistant said that the effect of this would in fact be to make only persons who are incapacitated subject to this. That's right, because people who are incapacitated come under the Substitute Decisions Act and they would have some protection of due process. I'm quite aware of what the effect would be, Mr Parliamentary Assistant. That's precisely what I'm trying to accomplish.

I think the discussion here will make it very clear to a court in subsequent cases exactly what the intention of the government was, and that was to take the ability of someone to make choices about their own income out of their hands without due process. Whatever the intention of that may be, it is not a good reason for interfering with people's rights under the charter.

Mr Carroll: Just a couple of quick points to put an end to the discussion. This is the Ontario disability support plan we're talking about. I think the comment that the government is demeaning folks who are receiving benefits under this plan is unjustified. We made a commitment that we would design a plan that was specifically for persons with disabilities. We have done that and, quite frankly, the majority of them believe that the plan addresses many of their needs that the old system of being trapped on welfare didn't.

The other thing I would kind of remind Mrs Boyd about that I'm sure she is aware of, but maybe she hasn't read them yet, is that she talks about without any kind of check or recourse or due process. I'm sure she is aware there are amendments we will come to that make the decision of the appointment of a trustee an appealable decision, and also there is a process put in place to make sure that the trustee is held accountable for the way they do handle the funds. I believe we have addressed the concerns of persons with disabilities who spoke to us during the committee process and there is accountability built in through some amendments we are proposing.

The Chair: Further discussion? All in favour of the amendment? Opposed? The amendment is defeated.

The next motion appears as 74D in your package. I would ask you to turn to that now. Mr Preston, I'll remind you again that the clerk advised me there are five motions that in fact are out of order. She has put them back in order so that we deal with them sequentially with respect to the bill. But they are not sequential in your package at the moment, so that's why I'm giving you these numbers. The next one is 74D, which deals with schedule B, clause 12(1)(b). It's a Liberal motion.

Mrs Pupatello: I move that clause 12(1)(b) of schedule B to the bill be amended by adding at the end "as determined by a qualified medical assessment."

The purpose of doing that is very much in line with what we've tried to do throughout in terms of our amendments and ensure that there is a step away from the front-line individual making a decision that is irrevocable, can cause serious damage or harm and frankly put people who are the recipients in a very precarious position. At minimum -- again, I say at minimum given that I disagree wholeheartedly with this area in section 12 -- if you would add "as determined by a qualified medical assessment," you are at least giving someone with medical qualifications -- since the parliamentary assistant has said that this is going to be strictly based on issues related to the disability, then there should be no reason you wouldn't add a medical assessment done by a professional, and that is laid out in this amendment.

Mr Carroll: Just a quick comment on that: I'm a little surprised that Mrs Pupatello does not agree with us that that whole area should more appropriately be referred to and come under the influence of the Substitute Decisions Act as we have stated below is our intention with a proposed amendment coming up.

Mrs Pupatello: I might remind the parliamentary assistant that when we tried to include qualified medical opinions in the area dealing with the substance addictions section this government turned the amendment down, so we have been consistent on this point.

The Chair: Further discussion? All in favour of the amendment? Opposed? The amendment is defeated.

The next motion would appear as 74E in your package. It's a Liberal motion related to schedule B, subsections 12(4) and (5).

Mrs Pupatello: I move that section 12 of schedule B to the bill be amended by adding the following subsections:

"Annual report

"(4) A person appointed to act for a recipient shall submit an annual report of how the allowance was administered in the prescribed form.

"Same

"(5) A recipient who has had a person appointed to act on his or her behalf has the right to request a report of how the allowance was administered."

The purpose of this: Obviously we expected you not to be passing the amendments previous but I suggest that if you're going to go forward with this ill-conceived manner of dealing with people's money, hence their whole lives, then I would recommend you putting in some kind of a safeguard so that at minimum the person who is receiving this through a trustee who is going to be appointed by a director only has some kind of ability to ask for information. After all, it is their money. There can't be any reason why someone shouldn't be able to get an annual report of the handling of their financial affairs. Frankly, whoever has been appointed should be able to have a report prepared of how this money was being administered. It only makes sense -- again, I disagree with the whole concept -- if you insist on doing this, at minimum, if you include some kind of safeguard.

The Chair: Further discussion? Very well. All in favour of the amendment? Opposed? The amendment is defeated.

If you'll just give me one moment, we are trying to make sure that we get these things in the right order. The next one we will deal with is number 77 in your package. It's an NDP motion dealing with schedule B, subsections 12(4) and (5).

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Mrs Boyd: Madam Chair, I believe it should actually say (4), (5), (6) and (7).

The Chair: The title of the motion is incorrect but the substance of the motion deals with (6) and (7).

Mrs Boyd: I move that section 12 of schedule B to the bill be amended by adding the following subsections:

"Report

"(4) A person acting for a recipient under this section shall submit to the recipient and the director an annual report of how the recipient's income support was administered, as prescribed.

"Same

"(5) A recipient on behalf of whom a person has been appointed may request that the person report to the recipient on how the recipient's income support was administered and if the recipient does so, the person shall give the recipient a written report within 30 days after the request.

"Offence

"(6) No person appointed to act for a recipient under this section shall knowingly misappropriate or misdirect money received on behalf of the recipient or breach an obligation imposed on the person under this act.

"Penalty

"(7) A person who contravenes subsection (6) is guilty of an offence and on conviction is liable to a fine of not more than $5,000 or to imprisonment for a term of not more than six months or to both."

The purpose of the amendment quite clearly is to at least set in legislation parameters for ensuring that in this absolutely outrageous imposition of an informal trustee there is still protection for the vulnerable disabled person. It talks about how there can be an acceptable accountability to the recipient and also to the system, that the money has in fact been spent appropriately, but also a protection making it a provincial offence under this act for someone to misappropriate or misdirect funds in a way that might be fraudulent.

This government is very fond of talking about how likely welfare recipients are to commit fraud, but in fact we know from the experience of many people, many vulnerable people in our own system, that very often the people who experience fraud are welfare recipients themselves, if they are subjected to inappropriate behaviours by landlords or by people who run care homes, that sort of thing. There is lots of evidence for that. So the purpose of this is that if the government is insisting upon this unacceptable process in the first place, at least they should be prepared to guarantee some protections to people if one is to, in any way, take seriously the words they use about trying to be protective of the disabled.

Mr Carroll: A quick comment on that: Mrs Boyd, we certainly agree that there should be some accountability, and our next amendment coming up does put in a requirement to report. That is in that amendment. Second, the whole area of offence and penalty provisions is dealt with more appropriately in the civil law of the country so there is no need to repeat it in this statute.

Mrs Boyd: I think that if you have it in this act, then the onus is very much upon the administrators of this act to be aware that they have a responsibility in this as well. I would say to the member, to the parliamentary assistant, that their proposed amendment simply says, "A person appointed under this section to act for the recipient shall report and account in accordance with the regulations." Again, what regulations? How do we know what those regulations are going to be? How do we know that they are going to be protective enough to ensure that these individuals are not further disadvantaged as a result of this informal trusteeship?

There should be no such thing as an informal trusteeship to begin with, but if this government is going to insist upon it, at least they could build in clear protections to end some of the very appreciable level of fear that has been expressed by the disabled community about this aspect of the bill.

Mrs Pupatello: I'm just interested in the comments of the parliamentary assistant. If that's the case and you are clearly feeling comfortable with some accounting measure in a reporting system, then why wouldn't you have supported the previous amendment that just outlined a reporting measure? The amendment that you just defeated included a reporting mechanism and now you've just stated to Mrs Boyd that you're comfortable that your amendment coming forward is bringing in a reporting mechanism for accountability. So why did you vote down the previous amendment?

Mr Carroll: Mrs Pupatello, our amendment that we are coming up to does include a reporting requirement but also includes several other things that weren't in your amendment.

Mrs Pupatello: But if the content in my amendment is what you have just said, why didn't you support it?

The Chair: Mrs Pupatello, we have had the discussion on the previous amendment. I'd like to move on.

Any further debate? All in favour of the amendment? Opposed? The amendment is defeated.

The next motion is number 75 in your package. It's a government motion, schedule B, section 12.

Mr Carroll: I move that section 12 of schedule B to the bill be struck out and the following substituted:

"Appointment of person to act for recipient

"12(1) The director may appoint a person to act for a recipient if there is no guardian of property or trustee for the recipient and the director is satisfied that the recipient is using or is likely to use his or her income support in a way that is not for the benefit of a member of the benefit unit.

"Same

"(2) The director may provide income support for the benefit of a recipient to the recipient's guardian of property or trustee or to a person appointed under subsection (1).

"Compensation

"(3) A person to whom income support is provided under subsection (2) is not entitled to a fee or other compensation or reward or to reimbursement for costs or expenses incurred by acting under this section, except as prescribed.

"Report and account

"(4) A person appointed under this section to act for a recipient shall report and account in accordance with the regulations."

As explanation of this, in subsection (1) of course we removed the provision that would have allowed social assistance staff to determine an individual's mental capacity. We agree that is more properly governed by the Substitute Decisions Act. Subsection (3) has been amended to provide compensation by the ministry to a trustee where it would be prescribed by regulation and subsection (4) has a new provision to provide greater accountability of appointed trustees as specified in the regulations. These deal with some concerns that we heard during our public consultation on Bill 142.

Mrs Boyd: These amendments simply make this section worse, in my opinion. To add in subsection (3) that a person may be compensated in any way for acting as an informal trustee puts people in even further jeopardy. It then becomes a complete conflict of interest for that person to do so and it adds to the inappropriateness of this area.

It is very important to note that there is nothing about prescribed circumstances here. The regulations will not protect a vulnerable person here. The director may do this and there is no limitation upon the director's ability to decide or not to decide whether a person "is likely to use" their income in a way that doesn't benefit a member of the unit. It is absolutely indefensible and will be seen to be such. Frankly, the addition of "except as prescribed" in subsection 12(3) of this act puts people in even further jeopardy than they were before.

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Mrs Pupatello: In order for any of us to vote on this amendment, in particular for subsections (3) and (4), as prescribed "in accordance with the regulations," could you please tell us what those are so we have some sense of what circumstances there could possibly be that you'll now outline in the regulation for compensation? What could they be? You must know, because you've made an amendment to that effect. In "Report and account" you've included "in accordance with the regulations," so you must know what that regulation is. We can't possibly agree unless you know what they are or what you're intending them to be.

Mr Carroll: I'm not exactly sure what the question means, but no, I don't know what the regulations are.

Mrs Pupatello: Could the ministry staff talk to us?

Mr Carroll: It's made several comments so far in the bill to "in accordance with the regulations," so I'm not sure why all of a sudden you need to know what this particular regulation is. There are circumstances that will arise where it is appropriate that, say, a non-profit agency be allowed to act as a trustee on behalf of a recipient and it would fair that there be some funds available. I think that's a fair situation and I think the bill allows for that kind of situation to happen.

Mrs Pupatello: I guess you're talking about an administration fee that would then be payable to the non-profit. If I read this correctly, given the discussion we've had on the balance of section 12, the individual won't be choosing which non-profit agency is getting that administrative fee out of their lunch money. Basically, this is what we're saying here.

Mr Carroll: First of all, Ms Pupatello, it will not be coming out of their lunch money; it will be paid for by the ministry. To create the impression that the recipient is going to have to pay this compensation is erroneous.

Mrs Pupatello: But is that not the case?

Mr Carroll: No, it's not the case.

Mrs Pupatello: I just want to be clear here because you're telling me things. I admit that I'm not a lawyer. You may have some legal background and I don't, but I am very clear here. When I'm reading, I don't see where it says that the compensation will be paid by the ministry and not from the amount that's given as the allowance to the recipient.

Mr Carroll: You can take it from me that that's the intention, okay?

Mrs Pupatello: Does that mean that you have the regulation because you know that's the case?

Mr Carroll: No, I don't. I said I did not have the regulation. But you can take it from me that that's the intention.

Mrs Boyd: We know what the word of this government is worth, so that's not much comfort to people. Quite frankly, the member has made a statement that what is contemplated is payment of a non-profit agency. Can the parliamentary assistant tell us for sure that that is the only kind of agency that would ever be compensated for administering this kind of informal trusteeship? The reality is that many people -- and obviously a growing number of people given the government's decision to close psychiatric hospitals -- are in for-profit, private care homes.

If the member wants to guarantee and make it very clear here that only non-profit organizations would be receiving any fee -- and the parliamentary assistant is well aware that it says nothing here about the government paying a fee; it simply talks about a fee. There is no guarantee that the individual will not be charged the fee. You have not provided for that in this section at all, and you're well aware of that, I know.

What you're saying here is that we should take on trust that people won't be further disadvantaged by your subsection (3). Given your record, no one can take that on trust. What we are asking for is this to be clarified ahead of time.

Mrs Pupatello: I guess I have to just continue on here. This whole new section that you've brought in as an amendment was clearly brought in for a particular reason that wasn't covered in the initial section 12. Something in terms of information came across your desk that resulted in the writing of additional sections here.

If we can get some further information, in the "Report and account" section, what is your view of what that reporting and accounting will be? Did someone think that if you saw an annual report -- that it would be quarterly; that it would be given directly to the director; that it would go to directly to the recipient on request; that it would an informal kind of reporting; would it be oral, would it be written?

The reason I ask those questions is because we're dealing with ODSP. Some people can't read; some people can't see. If only what you'll have in regulation is that a report will be submitted in writing annually. Then what good is that to the blind person, or whomever, whose interpreter may be the trustee? Do you follow?

I just have to understand that you brought in an amendment and you wrote it, so you have some sense of why you needed this. If you haven't written a regulation yet, you know what you're going to write. At least put the intent on the table of what you intend the reporting mechanism will be like.

Mr Carroll: Our intention with the reporting mechanism was in answer to comments that we heard at the committee that a trustee that is appointed should be held accountable. We agree. We've put the provision in here that they will be held accountable by regulation.

Mrs Pupatello: Could I ask the ministry staff if they have any additional information that the parliamentary assistant may not be privy to? Given the recent journalism reports of late, I wouldn't be surprised if that's the case, the way it circumvents process these days. Can the staff tell me what intention there is? Is there any other part of the ministry anywhere where there is a reporting regulation that you might be copying, something somewhere that says, "Here's a regulation and this is what it means when we've written 'reporting mechanisms'"? Is there any case that you're going to use?

Mr Carroll: I'm not so sure where this is going. Subsection (4) says there will be a reporting mechanism. That is in response to concerns we heard. The regulation is not ready. Quite frankly, that is all the information we have available to share with you today.

Mrs Boyd: Under the current act, even if a person is in an institution like a care home or even a psychiatric facility or a home for the developmentally disabled, the one guarantee they have is an allowance of $112 a month that will be theirs free and clear to use as they choose. In this act, and certainly under this section, there's no clarity that there would be any requirement on the part of this informal trustee to ensure someone has that basic disposable income, if you like, of $112 a month which is now provided. Am I to take it that provision is no longer available to someone in the act, particularly if they're under trusteeship?

Mr Carroll: Does anybody have an answer to that?

Mr Kirk: Section 3 of ODSP talks about eligibility for income support and it talks about the eligibility of a disabled person and other prescribed classes. For the people who are currently in institutional settings, the intention is to continue to pay those who are the responsibility of the Ministry of Community and Social Services the personal needs allowance.

Mrs Boyd: Just clarify it for me. There is no requirement for an informal trustee under this section, where they're going to be looking after the allowance for someone, to make sure the person has some disposable income. Is that correct?

Mr Kirk: If the person is eligible for the personal needs allowance of $112, then the expectation would be that the person would receive that personal needs allowance of $112. If they were in an institutional setting and they had an informal trustee, the expectation would be that that $112 would be made available to the recipient. Through the reporting mechanism we would be able to ensure that is in fact the case.

Mrs Pupatello: Because there are some cases where non-profit agencies currently act as trustees for their clients and it is a voluntary kind of arrangement, unless it's through some other mechanism. For example, Community Living, through their group homes, takes care of clients. Can you tell me if currently the practice is that part of the allowance that the recipient receives goes to an administration fee to Community Living? What is the current arrangement?

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Mr Kirk: Not to my knowledge, no.

Mrs Pupatello: If it's the case that currently, as far as you know, these agencies or non-profits are not receiving moneys but there are instances where non-profit agencies are doing this -- in Windsor's case on behalf of adults who have disabilities, and most of them are developmentally delayed, as far as I know, who are in this arrangement -- why is there a change now that would allow it, whether it's through the ministry paying or the recipient paying some portion? Has something come to light now that these agencies should be paid for things that they are currently doing?

Mr Carroll: Are you suggesting, Mrs Pupatello, that you don't think there should be any provision for any compensation?

Mrs Pupatello: No. What I'm asking is, was that upon request of non-profits that they be paid for a service that is currently in practice in Ontario?

Mr Carroll: Does it make any difference who the requesters are? Are you suggesting that you don't think we should make any allowance for the provision of a payment to a non-profit organization that wants to act as a trustee?

Mrs Pupatello: I guess the difference is you're the government and I get to ask the questions.

Mr Carroll: I understand that, but I'm trying to figure out where you're coming from on this.

Mrs Pupatello: I'm trying to see why you would bring in a paragraph as an amendment -- it wasn't in the original bill. We went through a public hearing process. In all of the days that I travelled, and I was consistently on every day and heard all of the submissions, I didn't hear one submission regarding a non-profit agency requesting compensation. I didn't hear any of the disabled community coming forward and saying, "I want to pay an administration fee to those who might be appointed trustees." There was nothing presented during the process that would have led to this, because I saw them all and I read them all.

It's not in your original bill, so it wasn't anything that was masterminded before it went on the road. It's come forward in an amendment. Something clearly has come to light within the ministry, within the government, whatever, to add a clause, "Compensation: A person to whom income support is provided...is not entitled to a fee...." You've identified where money can't be given to someone and you've also identified that according to regulations there will be instances where money can go to someone else. It doesn't specify in the bill that this compensation isn't part of the allowance of the recipient and it doesn't indicate that it isn't part of that allowance. It just doesn't say at all.

We don't know the regulations. You are not giving us even an inkling of what might be in the regulations or the intent of the regulations. You've not told us the regulations, you've not told us the intent, you haven't told us why it suddenly appeared as an amendment, and you want to sit back and ask me questions about this? No. The point is, we want to discuss as a group and have a vote on an amendment that you clearly made for a particular purpose. I feel that we deserve at minimum the rationale, the real rationale, not to sort of poke holes and say, "You don't feel non-profits should be paid?" I come from the non-profit sector. I know exactly what its role should be. I don't suspect you would want to be questioning me in this area.

The point is, I insist on knowing the background. Your government members should know the background, because I don't think they came in here with blinders on. I don't want to be lectured to. I want to know why you're doing this, because you're affecting many people. I believe we are owed that much. Don't make light of this. This is a significant section of the bill. I haven't spent that much time talking about other regulations, amendments, proposals here. But there are certain parts of this that are totally offensive to me and to my party, and I think you could, at minimum, give us the real reasons why you've elected to put additional amendments in this bill, which you are going to pass anyway.

Mr Carroll: I have no more comment.

Mr Preston: I think you've started using terminology and instances that are not even part of this bill. The use of the word "fee" specifically --

Mrs Pupatello: It says "compensation."

Mr Preston: During this discussion --

Mrs Pupatello: What do you think they're going to bring them, a sack of potatoes in exchange for service?

The Chair: Mrs Pupatello, you will be allowed to speak if you wish to speak again. Mr Preston has the right to speak uninterrupted.

Mrs Pupatello: Don't patronize us, for Christ's sake.

Mr Preston: I don't think he has anything to do with that. Right now I'm speaking.

The word "fee" is specifically in here; it says they're not entitled to a fee. The words "non-profit organization" are not in here either, but we've decided during our discussions that we're talking about a fee being paid to a non-profit organization. Now, has anybody thought that possibly Joe Public, who is made a trustee, should be compensated for out-of-pocket expenses -- long-distance telephone calls, cheque charges, stamps -- so that this does not become something that is costing a trustee anything? I don't think it's the intent of this part to make the trustee profit by it. I think it's to take care of out-of-pocket expenses. The word "fee" and the word "non-profit" are not mentioned in here at all. We've manufactured that.

Mrs Boyd: The word "fee" is clearly mentioned here.

Mr Preston: And "not entitled to" is also previous to "fee."

Mrs Boyd: "Except as prescribed." That is our objection, "except as prescribed." It carries on. If you read very carefully, the "except as prescribed" refers to all of those things. There is nothing in this amendment that suggests that the fee or compensation or reward or reimbursement will not come out of the allowance of the individual. That's our number one objection. Our number two objection is that we have no idea what will be prescribed. The parliamentary assistant suggests it would only be in a case of a non-profit corporation, but he doesn't guarantee that and certainly neither do the ministry staff.

My real question here is, who has the ultimate fiduciary responsibility here? Is it the director? Is it the person who's appointed? Who has the fiduciary responsibility for the subsistence income of someone who is assigned an informal trustee to look after their money? Perhaps counsel for the ministry could answer that.

The Chair: Response? Mr Carroll?

Mr Carroll: I have no more response on the issue. I think we've talked it to death.

The Chair: Legal counsel?

Ms Fraser: With respect to the issue of fiduciary responsibility, if someone is appointed a trustee, it is that person who is the fiduciary.

The Chair: Thank you. Is this a new point, Mrs Boyd? Mrs Pupatello was on the list as well.

Mrs Boyd: It is a point on that because this does not say someone is being appointed a trustee. What this amendment says is, "The director may appoint a person to act for the recipient if there is no guardian...or trustee...." I want clarification from counsel. Is counsel saying that the person appointed by the director to act for a recipient under this amendment becomes a trustee?

Ms Fraser: Madam Chair, I have nothing to add re this response.

Mrs Pupatello: I guess for the government members who want to join the fray here, all of the questions that you placed are the same questions I placed, and that's exactly why we need to have clarification of the intent of what's going to be in regulation. If it's not going to be in the bill, and you want to make an argument that you want to keep a very specific important piece of information only in regulation so that it can be changed at whim of a government or a minister or cabinet without ever coming into the House, fine, you make that argument. But at minimum, while you ask the questions of, "Is it pocket change, is it stamps, is it driving to and from the grocery store?" those are exactly the questions I'm asking.

When you have a very informal process that's going to appoint someone to be responsible for someone's income, their very livelihood, how they live, where they live, when and what they do something will be totally controlled by someone who's just appointed at whim. That's exactly what the bill reads. You may want to look at those facts, but when you ask questions like, "They must mean it's for stamps," I would like to hear from the parliamentary assistant that it is the government's intention that when they write the regulation it will cover out-of-pocket expenses for such things as paying bills on behalf of the individual, that it would be for such things as an administrative fee to a non-profit for taking care of whatever. The sense I get currently is that they don't know and that when you have that, it is completely open to interpretation when whoever, at whatever time, is writing a regulation, if they choose. The non-profit sector is very hard done by under this current government. They are having an enormous amount of difficulty raising funds, not like in the past. This is very different now because the playing field is very crowded.

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This would be an opportunity for non-profits to collect some kind of administrative fee, given the service they're providing to their clients. Is it in fact coming out of the ministry's pocket or the pocket of the recipient? If it's not clearly coming out of the recipient's pocket, it should be on record today at committee that it is not coming out of the recipient's pocket, that it is definitely coming out of a different bag of money: the ministry's. To say that here for sure and clearly, if that's truly the intention, there shouldn't be any problem with that. Frankly, it's an embarrassment to see that the parliamentary assistant chooses to be silent on this issue when it could truly mean a very different style of living for certain individuals who reside right here in Ontario.

The Chair: Further debate? All in favour of the amendment? Opposed? The amendment is carried.

Shall section 12, as amended, carry?

Mrs Pupatello: Recorded vote, please.

Ayes

Carroll, DeFaria, Preston, Bob Wood.

Nays

Boyd, Pupatello.

The Chair: Carried.

Section 13. We'll continue with the normal order now. We're on page 77.

Mrs Pupatello: This is continuing in the same vein we've been in for the last hour or so.

I move that section 13 of schedule B to the bill be amended by inserting after "recipient" in the third line "on the agreement of the recipient."

The purpose of the bill is, once again, to include the recipients in decision-making that truly alters their way of living -- what they do, when they do it, how they do it, where they live and all those things. It is incumbent upon the government to continue to put some kind of safeguard in this bill that's going to ensure in the area of money being paid to a third party that it be done consensually, with agreement. By making and accepting this amendment, you would be doing that, at minimum in this area of money being paid to a third party.

The Chair: Further discussion?

All in favour of the amendment?

Mrs Pupatello: Recorded vote, please.

Ayes

Boyd, Pupatello.

Nays

Carroll, DeFaria, Preston, Bob Wood.

The Chair: The motion is defeated.

Mrs Boyd: I move that section 13 of schedule B to the bill be struck out and the following substituted:

"Money paid to third party

"13(1) A portion of income support may be provided to a third party on behalf of a recipient if an amount is payable by a member of the benefit unit to the third party for costs relating to shelter and the recipient requests that it be provided to the third party or consents to its being provided to the third party.

"Same

"(2) The amount provided to the third party shall not exceed the maximum shelter allowance payable to the recipient.

"Same

"(3) If a recipient or trustee disputes the amount of money to be paid to a third party under this section, and notifies the director of that fact, no portion of income support shall be provided to the third party until the dispute is finally resolved.

"Offence

"(4) No person shall provide false or misleading information to the director or withhold relevant information from the director in order to receive a payment under this section.

"Penalty

"(5) A person who contravenes subsection (6) is guilty of an offence and on conviction is liable to a fine of not more than $5,000 or to imprisonment for a term of not more than six months or to both."

The purpose of the amendment is to try and put limitations in legislation on this to make it clear that the individual continues to be a party to the decision-making. We know there are provisions around this in the Substitute Decisions Act which protect people who are incapacitated. There was no protection for someone who, because a director decides they may not spend their money the way the director thinks they should, will not find themselves in this kind of situation. I think it is extremely important that we put some protections in place for vulnerable people, particularly when we have the clear evidence of a very extensive report by Dr Ernie Lightman around how people who are disabled are taken advantage of now by people who are presumably providing accommodations and care for these individuals.

This is not a matter of speculation; this is a clear matter of record that the exploitation of these individuals is a problem under the current act, and what the government is doing by this act is just perpetuating that kind of exploitation, only extending it well beyond what it was before.

Mr Carroll: The requirement for a request or consent actually defeats the whole purpose of third-party payments and could easily lead to a more cumbersome, more restrictive situation of a trustee being appointed. We believe this amendment would defeat the purpose of third-party payments. Also, we believe it could jeopardize the beneficiary. A final item is regulation-making authority under section 54 to provide for the rules surrounding the whole area of their payments.

For those reasons, we do not support this amendment.

Mrs Boyd: Could I have some clarification from the parliamentary assistant? In what way would this jeopardize the beneficiary?

Mr Carroll: It's the government's belief that in some cases where it would be approved, it's in the best interests of the recipient that someone make sure their rent is paid so they don't find themselves evicted, and if they're not capable of making that decision themselves, then we believe it is in their best interests that somebody pay that rent directly on their behalf to make sure they have a place to stay.

Mrs Boyd: There is already provision in law in the Substitute Decisions Act around capacity. This is all based on the government's beliefs about people who are in receipt of social assistance, their belief that you can't trust people who are in receipt of social assistance to meet their financial obligations. If someone is incapacitated, is incapable of making those decisions, there is a procedure under the law of Ontario to make that determination.

What the government is doing is extending that well beyond the issue of capacity and is making a social judgement, dragging us back to the days of Dickens, when the all-meaning government made a decision that people who were poor were to be punished for being poor by being put in the workhouse or put in the poorhouse or put in debtors' prison. This is exactly what this is all about. This is all based on ideological belief, not on reality. It certainly takes no account of the rights of the individual.

Mrs Pupatello: I'd like some clarification about what's going to happen in regard to third-party payment. The assistant mentions the area of rent. If there are individuals who are renting an apartment, for example, and the roof is leaking and it's falling in and the landlord refuses to fix that, as we've seen in examples through schedule A of this bill, what recourse does the individual recipient have to stop the rent being paid until the roof is fixed?

Mr Carroll: My understanding is that any recourse that tenants would have would not be impacted by pay-directs.

Mrs Pupatello: Could you explain that, please?

Mr Carroll: My understanding is that any recourse that tenants would have would not be impacted by pay-directs. It's pretty straightforward to me.

Mrs Pupatello: Which means that the payment will continue to be made to the landlord.

Mr Carroll: No, I didn't say that. I said any recourse that tenants would have under the Landlord and Tenant Act would not be negatively impacted by pay-directs.

Mrs Pupatello: I guess in interpretation -- you're going to have to clarify this -- there's some avenue for this recipient of ODSP to stop the third-party payment until the roof is fixed.

Mr Carroll: Tenants have recourse to negligent landlords under the Landlord and Tenant Act. They would not lose those with pay-directs.

Mrs Pupatello: But they don't have any way to get to whoever has decided is doing the third-party payment in this case.

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Mr Carroll: Are you aware, and Ms Boyd, that this practice of pay-directs is already in effect?

Mrs Pupatello: Yes, I am, and you are aware, parliamentary assistant, that it is consensual at this point and you are making it mandatory? You are aware of that?

Mr Carroll: We're making it mandatory. We're suggesting that where a tenant has not demonstrated an ability to pay their rent consistently, then it's in their best interests that somebody makes sure it's paid on their behalf. By doing that, they do not give up what rights they have under the Landlord and Tenant Act.

Mrs Pupatello: So you agree that it's happening now and it's happening by agreement, not by a mandatory nature such as what you're presenting?

Mr Carroll: The question you asked about giving up their rights, they do not give up their rights under the Landlord and Tenant Act by pay-directs.

Mrs Boyd: Quite clearly under the GWA, yes, there can be an assignment of rent. People who are disabled are not under the GWA; they're already under family benefits, a different situation. These people are now being put in under a regime that they were not under before. We're talking about this part of the act. They were not under that before. These are the people who were on family benefits. In family benefits, that could not happen.

Second of all, a director makes this decision without any kind of due process that somebody needs a third party to look after their money. There's no limitation on that third party and conflict of interest for that third party. Ms Pupatello is saying that the likelihood is that the third party may very well act in the position of a landlord, particularly if we're talking about care homes, which we have to talk about because that's the most problematic kind of situation. If the landlord is the third party, the landlord will keep on paying himself or herself the money. You talk about recourse under the Landlord and Tenant Act -- talk about double jeopardy for somebody. This is exactly what we're worried about.

There are no prescribed circumstances. Remember, you just passed your amendments. There is no prescribed circumstance for the director. There is nothing in regulation to prevent the director from naming somebody who has a conflict of interest, like a landlord or a care giver. There is nothing like that in this act. What you have done is made disabled people absolutely vulnerable to care givers and landlords under this act.

The Chair: All in favour of the amendment? Opposed? The amendment is defeated.

Shall section 13 carry? All in favour?

Mrs Boyd: A recorded vote.

Ayes

Carroll, DeFaria, Bob Wood.

Nays

Boyd, Pupatello.

The Chair: The section is carried.

Section 14: 78A.

Mrs Pupatello: I move that subsection 14(3) of schedule B to the bill be amended by striking out "or the recipient's spouse" in the second line.

The Chair: Discussion?

Mrs Pupatello: This has come up repeatedly in this bill, where for example directors or supervisors will not be aware of conditions surrounding the spouse: if there is any relationship, if the relationship is legal, if the people may still be living together etc. To suggest that recovery of overpayment can be borne by the recipient's spouse I think is very inappropriate. This has come up time and time again and we would suggest that whole clause be struck out. Removing "or the recipient's spouse" clearly puts the onus on the individual who is the recipient.

The Chair: Further debate? No. All in favour of the amendment? Opposed? The amendment is defeated.

Mrs Boyd: I move that section 14 of schedule B to the bill be amended by adding the following subsections:

"Exception

"(5) This section and sections 15, 16 and 17 do not apply with respect to an overpayment,

"(a) that was the direct result of the failure of the director to act on information received within a reasonable time;

"(b) that was the direct result of an error in determining the amount of income support;

"(c) that was the direct result of an error in judgement on the part of the director; or

"(d) that was due to the error or neglect of a person who received money on behalf of a recipient under section 12."

This is again an effort to ensure that those who are disabled are protected from the errors of both those administering their benefit plan and other people who might be assigned that responsibility as informal trustees by the plan. It would apply not only to section 14 but also to 15, 16 and 17, all of which are concerned with overpayment.

Mr Carroll: Just a quick comment on this. We believe that prudent use of the taxpayers' funds requires that if money is paid to someone in excess of what they are entitled to under any program, that money should be recoverable. That is the practice with other government programs such as employment insurance. For that reason we cannot support this amendment.

Mrs Boyd: This is simply leaving the door open to the kind of slack administration that has been problematic in the past and particularly makes it very difficult for people who are in receipt of funds. The director is not required, under this act, to inform someone that there's been an overpayment.

Picture this: A disabled person gets a cheque. It comes from whoever is administering this in their particular locale. Nothing has changed for them. They have no reason to assume that the amount of that cheque is not correct. We're talking subsistence allowance here. People don't have a whole lot of money set aside so that if the government makes a mistake they can suddenly pay back the money the government made a mistake on. Governments for many years have had to write off their own errors to a large extent, some years larger than others, because of bad administration. The onus should not be on the individual to pay for the mistakes of the administrator of the plan.

Mr Carroll: I agree that the onus should not be on the individual to pay for the mistakes of the administration. However, if individuals receive money to which they are not entitled, there is an obligation on the part of the individuals to repay the funds.

Mrs Boyd: The person does not know they're not entitled. They're given this money by the department, they spend the money and the next month they're told that they owe part of that money back. Although they're on a subsistence allowance, money gets deducted from their next month's cheque because of an error on the part of the department. If you read through this bill, there's no limit on the length of time it may take to make a repayment through no fault of their own. There's no requirement on the director to inform them that there's been an overpayment. They just suddenly get a different amount on their cheque and they don't have any explanation for that, necessarily, because there's no requirement to give an explanation and they have no recourse.

If they were doing something wrong, if they had a reason to believe that the money they were getting was the wrong amount of money, the punitive attitude of the parliamentary assistant might be appropriate. But the number of times the errors are made and accumulate over months and months, and the errors are on the part of a worker in the department, it is not appropriate to expect someone then to go through months and months of inadequate resources because someone in the department made an error. That's ridiculous.

The Chair: Further debate? No. All in favour of the amendment? Opposed? The amendment is defeated. Ms Pupatello.

Mrs Pupatello: I'll withdraw -- similar.

The Chair: All right. Shall section 14 carry? All in favour?

Mrs Boyd: A recorded vote.

Ayes

Carroll, DeFaria, Bob Wood.

Nays

Boyd, Pupatello.

The Chair: Section 15, any discussion? No. Shall section 15 carry? All in favour? Opposed? Section 15 is carried.

Section 16.

Mrs Boyd: I move that subsection 16(1) of schedule B to the bill be amended by striking out "and the prescribed information concerning the decision" at the end and substituting "the reason for the overpayment and the basis for the calculation of the amount owing."

This is to get at this issue that I discussed before, that it surely ought to be the right of the recipient to understand why there was an overpayment and how the repayment is being calculated.

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Mr Carroll: As we stated under Ontario Works, we believe that this type of thing is more appropriately left to the regulations.

The Chair: Further discussion? All in favour of the amendment? Opposed? The amendment is defeated.

Mrs Pupatello: I move that subsection 16(1) of schedule B to the bill be struck out and the following substituted:

"Notice of overpayment

"(1) The director will give a recipient notice in writing of a decision determining that an overpayment exists and the notice shall set out the amount of the overpayment, the reason for the overpayment and the basis for the calculation of the amount owing."

The purposes, as described earlier, are clear. We have significant difficulty with the notice of overpayments. Often recipients, depending on their circumstances, will not have access to regular mail, may not get it, the mail could be slow. We think that there's something to be said about the ministry's responsibility to ensure that people are aware of situations and we think that this substitution of notice of overpayment would much improve the circumstance.

The Chair: Further debate? All in favour of the amendment? Opposed? The amendment is defeated.

Mrs Boyd: I move that subsections 16(3), (4) and (5) of schedule B to the bill be struck out.

The reason for subsection (3) is that a decision like this ought to be appealable. For the government yet again in another piece of legislation to try and limit the appealability of its decisions is not appropriate and is very prejudicial to the rights of individuals.

Subsections (4) and (5) involve the dependent spouse. This is particularly serious and this issue has been raised again and again around the kind of jeopardy a dependent spouse is in with the provisions of this bill. It is not appropriate that a dependent spouse should in any way feel responsible for reimbursement around an overpayment.

Mr Carroll: Subsection (3) talks about "the decision of the tribunal shall be final and enforceable against the recipient...." We believe this is an accountability provision that is required in the act.

As to the issue of the spouse, our belief as a government is that if the spouse was a beneficiary of the overpayment, then, as with other spousal debts, the spouse should be responsible for repayment of the overpayment. We think that's consistent with practices in other domains. For that reason we are opposed to this amendment.

The Chair: Further debate? All in favour of the amendment? Opposed? The amendment is defeated.

Mrs Pupatello: I withdraw -- same.

The Chair: Thank you. Shall section 16 carry? All in favour? Opposed? The section is carried.

Section 17.

Mrs Pupatello: I move that section 17 of schedule B to the bill be amended by striking out "whether or not notice has been provided under section 16" at the end and substituting "subject to the conditions under section 16."

The purpose of this: Section 17 discusses recovery of overpayments. We can't imagine why you would not subject it to the conditions set out under the previous section 16. As was mentioned by the parliamentary assistant a moment ago, this is intended to be a safeguard somehow, so we can't imagine that this wouldn't apply in section 17 as well. It just makes sense to include "subject to the conditions under section 16."

The Chair: Further discussion? All in favour of the amendment? Opposed? The amendment is defeated.

Shall section 17 carry? All in favour? Opposed? The section is carried.

Section 18.

Mrs Boyd: I move that subsections 18(2), (3) and (4) of schedule B to the bill be struck out.

The issue here is that this is a subsistence income that individuals are receiving and it is not appropriate, in our opinion, for the total amount to be deducted to pay other government debts out of that subsistence amount.

Mr Carroll: The government's position is that there is a responsibility of someone receiving income supports under the ODSP to be in a position to be required to make some sort of commitment to outstanding child support in government debts. For that reason we are opposed to this amendment.

Mrs Boyd: We are talking here about disabled people whose needs are quite extreme in many cases and whose access to income under this act is unlikely even to meet their basic needs. We've seen lots of evidence of that. Subsection (3) says, "The total amount deducted from income support...shall not exceed the prescribed amount unless the recipient agrees to a greater amount."

We don't know what the prescribed amount is going to be. Since we are looking at an allowance that barely covers the basic needs of shelter, clothing and food, and if they're fortunate the opportunity, as this government would put it, to pay copayments for drugs and that sort of thing, to then leave this possibility that support, for example, might be deducted from this is extremely punitive.

We're talking here about disabled people. We're talking about people who are unable to earn their living because of a disability. We're not talking about people who choose not to work or people who may be temporarily out of work. We're talking about people who are disabled and are on this allowance because it is the only way to get their basic needs met. They didn't plan to become disabled. They're not voluntarily giving up their responsibility to their children or their responsibility to the internal revenue department or something. They have had a reversal of fortune, in many cases, which has caused them to be disabled, and if they are under this plan they are unable to earn other income.

If we subscribe to this as being a plan that meets the basic needs of people and then we said, "Oh yes, and by the way, without limiting this in legislation, making it up to the whim of the government of the day, we can force these people to pay debts out of this subsistence income," it becomes quite absurd and it certainly puts the lie to the claim that this is going to be so much better for disabled people than the current circumstances.

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The Chair: Further discussion? Very well. All in favour of the amendment? Opposed? The amendment is defeated.

Shall section 18 carry? All in favour? Opposed? The section carries.

Section 19.

Mrs Boyd: I move that section 19 of the schedule B to the bill be struck out and the following substituted:

"Notice of decision

"19(1) Where the director proposes to refuse, cancel or suspend income support, he or she shall give notice to the applicant or recipient together with the reasons for the decision.

"Same

"(2) If the decision is one that may be appealed under this act, the notice shall inform the applicant or recipient that the decision may be appealed, that an internal review must be requested before the appeal and how to request an internal review and an appeal."

This is the kind of informational piece that is absolutely essential to those who need to depend upon this plan for having their basic needs met. They have a right to know, first of all, if they're going to be refused and, second of all, why they're going to be refused. They need, as has been the cry all along, to know how they can appeal that decision. It is simply a matter of trying to ensure that individuals are able to carry through and know what their rights are under this, since this is a plan to provide them with subsistence income.

Mr Carroll: We find this amendment unacceptable for a couple of reasons. Number one is, a proposal is not a decision, therefore there's an inconsistency there. The second thing, there are several provisions in the bill, appropriate provisions for providing notice to recipients. For those reasons we cannot support this amendment.

Mrs Boyd: It is not clear in section 19 which decisions are going to be appealable and which ones are not. If we go on to section 20, we talk about a decision that is appealable, and this happens, but we don't define what is appealable and what isn't in this section. It's important that if people are being refused for a reason that's appealable, they understand that, and if they are being refused for a reason that's not appealable, that they understand that.

The Chair: Any further discussion? All in favour of the amendment? Opposed? The amendment is defeated.

Mrs Pupatello: I move that section 19 of schedule B to the bill be struck out and the following substituted:

"Notice of decision

"19(1) Where the administrator proposes to refuse, cancel or suspend benefits, he or she shall give notice to the applicant or recipient together with the reasons for the decision.

"Same

"(2) If the decision is one that may be appealed under this act, the notice shall inform the applicant or recipient that the decision may be appealed and how to request an appeal.

"Final avenue of appeal

"(3) The Ombudsman of Ontario remains the final avenue of appeal of any decisions made by the tribunal."

That's supposing that we have an Ombudsman left. That was my addition.

The whole purpose is as was described earlier. One of the greatest difficulties of individuals who are accessing this current government is a lack of information, a lack of awareness as to the process, what possible avenues they have available to them. We feel it's important to put it in the bill. A recipient needs to know that there's an appeal available to them, that they can request it and exactly how they do that. The final avenue of appeal, the Ombudsman of Ontario, who has been completely ignored to date by the current government, should remain, at least have some availability, so that there would be decisions made by the tribunal which then could be taken to the Ombudsman, while I acknowledge that the record so far of this government has been abysmal in taking up the recommendations made by the Ombudsman.

The Chair: Further discussion? All in favour of the amendment? Opposed? The amendment is defeated.

Shall section 19 carry? All in favour? Opposed? The section carries.

Section 20, any discussion? All in favour of section 20? Opposed? Section 20 carries.

Section 21.

Interjection: Mine are not numbered.

Mrs Pupatello: I have 84A. What's the government's?

The Chair: They're in the wrong order here; my apologies. Wait just a moment till I find where we are. The orders have been inverted.

Mr Carroll: I move that section 21 of schedule B to the bill be amended by striking out paragraph 4 of subsection (2).

This amendment of course responds to the criticism we had from the Ombudsman, and quite frankly from other groups, that not having a right to appeal the appointment of a trustee is a fundamental denial of justice. This amendment ensures that in fact the appointment of a trustee would be appealable to the Social Benefits Tribunal.

Mrs Boyd: I'm glad that the parliamentary assistant has decided to heed at least some of those concerns. I would caution him against using the terminology of "trustee." That is not the language in the act. The act has "a person to act on behalf of a recipient." Counsel for the ministry has refused to confirm that that person is the trustee within the meaning of "trustee." Therefore we are talking about a person who's appointed to act on behalf of a person, not a trustee. At the very least the parliamentary assistant should be talking about an informal trustee when he tries to discuss this issue.

The Chair: Further debate? All in favour of the amendment? Opposed? I see none. The motion carries.

Mrs Pupatello: Is mine in order?

The Chair: You're 84A.

Mrs Pupatello: Is it still in order, given the last --

The Chair: The previous motion only dealt with paragraph 4. Yours deals with 3, 4, 5 and 6. You may withdraw if you wish.

Mrs Pupatello: No. I don't know if it's in order. I guess that's my question.

Mr Carroll: Madam Chair, just a point of order: Does the fact that paragraph 4 is no longer part of the bill, due to the previous amendment, not rule this amendment out of order?

The Chair: Just give me a second, please. I think you can proceed with it, Ms Pupatello, but if you wish to withdraw it you may.

Mrs Pupatello: I prefer to proceed.

Mr Carroll: Madam Chair, just a point of interest: An amendment that deals with a section of the bill that does not exist, how can that be in order?

The Chair: We'll proceed.

Mr Carroll: Madam Chair, may I have an answer to my question?

The Chair: I'd like to proceed, Mr Carroll.

Mr Carroll: Madam Chair, why am I not entitled to an answer to a very basic question of process? If an amendment refers to a section of the bill that has already been deleted, how is that amendment considered to be in order?

The Chair: I'd like to continue, please.

Mr Carroll: So I don't get an answer to my question?

Mrs Pupatello: I move that subsection 12(2) of schedule B to the bill be amended by striking out paragraphs 3, 4, 5 and 6.

I can only suggest in my remarks concerning this amendment that I think if there is anything that's going to give any credence to the fact that you agree that there have to be checks and balances presented in the bill, people out there who are going to be directly impacted by this bill have to have some sense of justice when decisions are made for them. As we have seen by the defeated amendments so far, you refuse for the allowance of individuals with medical credentials to make significant decisions on the part of the disabled. You have repeatedly denied us amendments that would have placed safeguards in the system. Now you have subsection 21(2) that deals with the appeals process.

We believe that we need to strike out those paragraphs where you have clearly outlined where no appeal lies with the tribunal decisions "with respect to the following matters." I believe that this has to be changed, that you cannot stand up at any time and suggest that there is justice for individuals who are receiving this support if you do not pass this amendment.

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The Chair: Further discussion? All in favour of the amendment?

Mrs Pupatello: Recorded vote.

Ayes

Boyd, Pupatello.

Nays

Carroll, DeFaria, Bob Wood.

The Chair: The amendment is defeated.

Mrs Boyd: I move that subsections 21(2) and (3) of schedule B to the bill be struck out. The reason for this of course is that these two decisions -- and they are "a decision respecting discretionary income support" and, second, "a decision of the Lieutenant Governor in Council respecting income support in exceptional circumstances" -- must be appealable decisions. It is inappropriate that people not be able to appeal those decisions, since there is no basis for the making of those decisions in the act. The possibility of arbitrariness in this section is quite extreme and it is necessary, in my opinion, that people be able to appeal those decisions.

Mr Carroll: The government's position is that basic government policy is that those decisions not be appealable. Therefore we find this amendment unacceptable.

The Chair: Further discussion? All in favour of the amendment?

Mrs Boyd: Recorded vote.

Ayes

Boyd, Pupatello.

Nays

Carroll, DeFaria, Bob Wood.

The Chair: The amendment is defeated.

Shall section 21, as amended, carry? All in favour? Opposed? The section is carried.

Section 22.

Mrs Boyd: I move that section 22 of schedule B to the bill be amended by adding the following subsections:

"Rights on review

"(5) The director shall ensure that before making a decision on an internal review, the applicant or recipient,

"(a) is informed of the case he or she must meet on the review;

"(b) receives any information of the director that may affect the internal review; and

"(c) is given an opportunity to make submissions to the director on the review.

"Same

"(6) An applicant or recipient has a right to be accompanied and assisted by counsel or a third party on an internal review.

"Assistance

"(7) In a review of a decision to reduce a recipient's income support, the director shall restore the amount of income support to the amount the recipient received before the decision, pending completion of the internal review.

"Completion of review

"(8) An internal review shall be completed within 10 days after it is requested."

The purpose of this is obviously to ensure that access to the internal review process be available for all decisions where there is going to be a real issue in dispute, whether or not that issue is appealable to the Social Benefits Tribunal. All of these decisions affect the subsistence level of these individuals on disabilities and therefore it is only appropriate that people know what case they have to meet. The onus is on the individual, as we talked about earlier, to indeed prove the decision was inappropriate. They can't do that unless they know the basis on which the decision was made.

It is essential that people, particularly with disabilities, have an opportunity to make submissions in such a review and that they have a right to be accompanied by a support person of their choice in such an internal review. We are quite cognizant, in subsections (7) and (8) that the government doesn't want what has happened in the past -- very long periods of interim assistance, happening -- so we are putting (7) and (8) together so that in (7) until the decision is made the person receives the income, and of course the opposite is contemplated by the bill, but that review has to be completed within a timely fashion so that we do not have these long periods of interim assistance. I think that for sure everyone would benefit from a faster decision.

It is really important that there be due process here. If there is not due process, frankly it makes the whole bill vulnerable. I think it is very important that these rights for the beneficiary of assistance be added to the bill.

Mr Carroll: I agree with Mrs Boyd that the internal review should be completed in a timely fashion. That certainly is our intention. To that end, we see the internal review process as a very unstructured, very quick reassessment of the facts to determine whether or not the original decision was proper. We see this amendment as complicating it, putting some structure on it that in fact would cause it to take longer and defeat the original purpose of the internal review. For that reason, we cannot support this amendment.

Mrs Boyd: So I take it that the purpose of the bill here is to set up an arbitrary process that makes it impossible for the applicant to meet the onus of making the case. That's certainly what the parliamentary assistant is saying. In the interest of speed, we are doing away with everything that would make it possible for an applicant to meet the onus that has been put on them by this bill. It needs to be very, very clear that this is a considered and deliberate effort on the part of the government to ensure that people have no recourse under law.

Mr Carroll: I'd put just a little different perspective on it than that. I believe it is incumbent upon the government to allow that internal review process to proceed quickly for the benefit of the applicant, so that they can then take the next step if they choose to, to go to the tribunal. Hopefully, this whole process is set up to benefit the applicant and not strictly for the sake of speed.

Mrs Boyd: It is inconceivable that even in these days of Toryspeak that kind of interpretation can be taken seriously. It is never to the benefit of someone who is appealing a decision not to know what the reasons are for that decision and not to be able to answer the case.

The Chair: Further debate? All in favour of the amendment?

Mrs Boyd: Recorded vote.

Ayes

Boyd, Pupatello.

Nays

Carroll, DeFaria, Bob Wood.

The Chair: The amendment is defeated.

Mrs Pupatello: I move that section 22 of schedule B to the bill be amended by adding the following subsection:

"Standards

"(5) Notwithstanding this section, the following standards will apply to an internal review:

"1. The applicant or recipient has the right to know the reason for the decision under review and the right to know the case he or she has to meet.

"2. The applicant or recipient will have an opportunity to present his or her case and respond to all concerns.

"3. The decision-maker will be independent of the initial decision-maker and will strive to be impartial.

"4. The applicant or recipient will be informed of the reason for a decision to refuse or terminate assistance.

"5. The applicant or recipient will have right of access to his or her file in sufficient time before the review.

"6. The applicant or recipient will have the right to be accompanied by counsel or a friend where this is necessary for the individual to be able to participate properly.

"7. The applicant or recipient will have the right to present evidence and opportunity to respond to the administrator's concerns.

"8. The applicant or recipient will have the right to be heard in person if the issue involves personal credibility."

I just want to mention that it is inconceivable to me that an internal review would not include these items. I think if the general public were aware of exactly what the government is up to, they would be very surprised that the rights accorded to individuals in any circumstance, in any kind of their interaction with government at any level, if they were to understand that this government has gone out specifically with the intent of keeping information from individuals directly affected, it would be very surprising for people to learn that the moment you are on the system in the form of ODS supports, you have lost rights that are available to everyone in every instance. Quite frankly, individuals would not stand for this if it weren't for the fact that they are on government assistance.

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The Chair: Further debate? All in favour of the motion? Opposed? The motion is defeated.

Shall section 22 carry? All in favour? Opposed? The section carries.

Section 23.

Mrs Pupatello: I move that subsection 23(1) of schedule B to the bill be amended by striking out "that shall include reasons for requesting the appeal" at the beginning.

This is in keeping with discussions we have already had to date on this issue, that it is necessary that information regarding reasons for the request of the appeal be set out in the beginning, because that whole area deals with the appeal to the tribunal. They're going to have to have reasons that are shared, and it's very difficult to understand why that wouldn't be set out in section 23.

The Chair: Further debate? All in favour of the amendment? Opposed? The amendment is defeated.

Mrs Boyd: I move that subsection 23(1) of schedule B be struck out and the following substituted:

"Appeal to tribunal

"(1) An applicant or recipient may appeal a decision of the director after the period for completion of an internal review has elapsed by filing a notice of appeal."

The purpose of the amendment is, instead of the prescribed time limit, to allow for that internal review to actually take place, because it is not clear, quite frankly, from the act here that the internal review is going to be completed. The other part of it, of course, is a similar sort of issue, taking out the reasons for requesting the appeal, as in the previous amendment by the Liberals.

No one should be prevented from appealing a decision because they have to produce reasons in order to appeal that decision, particularly when there is no obligation on the part of the director to give the reasons for the refusal in the first place. People have no way of providing anything except that they need to appeal because they think the decision is unfair, so it's just quite a ridiculous stipulation and ought to be removed.

Mr Carroll: To maintain the integrity of the appeal process, the government believes it's essential that appellants provide reasons for the appeal. Also, providing reasons provides all of the parties to the appeal process some advance notice of the basis on which the appeal will be brought and therefore they will be better prepared to deal with the issues. For those reasons we cannot support this amendment.

Mrs Boyd: The parliamentary assistant has simply made the argument that we have been making all along, that indeed people need to have reasons in order to be able to appeal anything. It's interesting that the government reserves this right for itself and not for recipients, and it certainly gives a full flavour to the kind of appeal process they're putting in place. Integrity and this appeal process have nothing in common and are in fact an oxymoron.

The Chair: Further debate? All in favour of the amendment? Opposed? The amendment is defeated.

Mrs Pupatello: I move that subsections 23(5) and (6) of schedule B to the bill be struck out.

If we look at what (5) and (6) relate to, again they relate to notice to spouse. In (5) we have, "If an appeal relates to a determination of an overpayment of which the director has given notice to a dependent spouse...the spouse shall be added as a party," and in (6), "A spouse who has been added as a party...may not commence an appeal in relation to that determination."

We've got to think about this. Here we have a spouse -- we don't know what the relationship is with the recipient -- who has now been brought into this whole situation of potential overpayment or whatever the issue may be. The spouse who is directly affected has absolutely no right of appeal of a decision that will directly impact on that spouse, or they wouldn't have been brought in in the first place.

Before we go forward and government members choose to defeat this amendment, I need to understand what the rationale could possibly be to not allow the spouse the right of appeal when the spouse is brought into this process because they were directly affected.

The Chair: That's a question, Mrs Pupatello?

Mrs Pupatello: Yes, please.

The Chair: Mr Kirk?

Mr Kirk: Subsection (5) allows that the spouse shall be added as a party. They then do become part of the appeal process. What subsection (6) does is make it clear that once the hearing has been held and a decision is made, the spouse cannot then go back and request yet another hearing on the same issue, because they've been added as a party, they've been part of the appeal process and they have had an opportunity to state their case.

Mrs Pupatello: For information, could you clarify if the spouse has a choice to be drawn in as a party, because this says the spouse "shall," but in your description just now you said "may."

Mr Kirk: If the spouse has been given notice of the overpayment, then the spouse "shall" be added as a party.

Mrs Pupatello: So the spouse has no choice but to be added as a party, but the spouse has absolutely no choice as to the outcome and the appealability of it then.

Mr Kirk: They're part of the process. If they're added as a party they're part of the process before the tribunal, and as a party before the tribunal they have an opportunity to make their submission and to state their case. Subsection (6), as I said, simply says that you can't hear the same appeal twice.

Mrs Pupatello: I want to give you an example of a couple who legally are spouses. Let's say that's the instance, the spouse who is living or not with the individual, is abused or not, intimidated or not, completely at the whim of the individual who is of the recipient. We know that this case occurs. We heard about it during our public hearings, and certainly if we get these kinds of calls in our constituency we are aware of situations that spouses may find themselves in.

My question is simple, for the staff of the ministry, likely, or the parliamentary assistant. You need to explain to me how the spouse, having no choice but to be drawn in, may or may not be -- for example, one individual may say, "Here's what I'm doing with my money," or, "This is why I can't pay my money back; my spouse has it, my spouse has spent it," whatever. The spouse has no opportunity to not be brought in because she or he doesn't even live there. Once you've brought the spouse in, against their will, that spouse has no opportunity for appeal even though the outcome will directly impact on that same spouse. We know those situations exist. We know what coercion exists out there in the field. We heard that from people who came to present to us, and there is no safeguard anywhere. Not even in the appeal section is there a safeguard for individuals who find themselves in this circumstance.

Mr Carroll: Just a quick comment on this section. We are dealing with overpayments, and overpayments that the spouse was a beneficiary of.

Mrs Pupatello: You're assuming that, though, because you don't know that.

Mr Carroll: No, I said that in cases where the spouse was the beneficiary of an overpayment, then they would be required to participate in the repayment of the overpayment. We think that's fair.

Mrs Pupatello: I guess you've made my point. You've made the assumption that the spouse is the beneficiary of the overpayment. Are you telling me that you are not aware of any circumstance or even the probability that a spouse perhaps is not the beneficiary of the overpayment? We heard that together. We were together during the public hearing process when that came forward.

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Mr Carroll: If the spouse was not a beneficiary of an overpayment, then the spouse would not be involved in the process.

Mrs Pupatello: But it's by no determination of that spouse whether they are or are not involved in the process. In fact, the other spouse is the one who can very well bring them into the process and they don't have a choice. Suddenly they are in the process and it's not appealable. Does any of that sound unfair in any way to you?

Mr Carroll: Not really. If a spouse was a beneficiary of an overpayment, was a recipient of an overpayment, then that spouse has an obligation to be part of the repayment of that overpayment.

Mrs Pupatello: But would you agree that there is nothing in here that would allow the spouse an opportunity, depending on the outcome of the decision -- they can't appeal it. You're not certain that they have been a beneficiary. You're only assuming that they've been drawn in because the person who is trying to appeal is saying there is some reason to bring the spouse in, or the director or supervisor or front-line worker, whoever it is, brings the spouse in. The spouse has no opportunity here to say, "I wasn't a beneficiary."

Mr Carroll: They do, because they have an opportunity to participate in the appeal process.

Mrs Pupatello: Once that fails, for whatever reason, for the same reason that they came to us to speak with us, "Here's the law and here's what happens to us privately," the kind of coercion that goes on in the home, if the spouse is an abused spouse, for the sake of the children, all of that terminology, those are areas you are aware of. We heard about it together. I know you were listening to them. You know these are issues. Our greatest concern is in the area when you're bringing spouses into this field. You've got to, at minimum, give them the right of appeal as well, if they're being drawn in with no opportunity --

Mr Carroll: They have the right of appeal, Ms Pupatello.

Mrs Pupatello: They don't.

Mr Carroll: If you read sections 5 and 6, they are part of the appeal process. What this says is that as part of the appeal process, if they don't like the answer the tribunal brings down, they don't have the right to a second appeal. We think that's fair.

Mrs Pupatello: Quite frankly, that is not the case, because you don't know that they've been involved initially. They may not have been involved initially. In fact, the only time -- and it could be the first time -- that they're involved in the process is when they're brought in on appeal. So it's not like there's a second go-round or third go-round for them. They've been coerced into participating by the government and they are coerced to live with the decision-making, with no right of appeal. That is what you're doing to these people. Predominantly they will be women and predominantly they may well be abused. Because of the way life is for these people, they will have no recourse thanks to your government.

Mr Carroll: Ms Pupatello, you put any spin you want on this.

Mrs Pupatello: That is the reality.

Mr Carroll: The act is quite clear. We have explained it satisfactorily, so you can put any spin you want on that explanation.

Mrs Boyd: In fact, if you read these -- let's read them into the record:

"(5) If an appeal relates to a determination of an overpayment of which the director has given notice to a dependent spouse under subsection 16(4), the spouse shall be added as a party.

"(6) The spouse who has been added as a party to the appeal of a determination may not commence an appeal in relation to that determination."

They may not appeal the determination that they are a party to this issue. It's not what you describe, a double kind of thing; it simply says that if the director has decided and given notice that they are a party, they are a party no matter what the circumstances are. We had described to us by people why that might be inappropriate and why it might be dangerous in some cases for them to be involved in a situation, and how very frequently, particularly in abusive situations, spouses have absolutely no control over the situation and may not have even been notified themselves -- if they have left, if they are in a shelter, if they are elsewhere -- that they have been determined to be a dependant.

This decision that they're a dependent spouse is without their saying: "No, I left months ago. He kept on receiving social assistance as though I were there, as though the kids were there. That's where the overpayment comes from. Now I can't even appeal the fact that I'm being named as a party to this overpayment."

Mrs Pupatello: And be forced to pay it back.

Mrs Boyd: And be forced to pay it back. This happens again and again. I worked in this field for years and I can tell you that this is not an uncommon happening. So did the people coming before the committee make it very clear that the person who says they've been dependent during that period of time may well be the fraudulent person. You're allowing them no way of appealing the decision that they have been a beneficiary of the overpayment and they are not. They may not even have been in the home, but they have no way of knowing that he's been notified that she's a party to it. She's just not in contact with him. You're not getting the picture here.

Mr Carroll: With all due respect, Ms Boyd, you're saying they have no right of appeal. Subsection (6) says, "A spouse who has been added as a party to the appeal," so obviously if they're added as a party to the appeal, they're part of the appeal process, they have an option to put their case forward. I don't understand why that does not allow them to appeal. Obviously you two have a different interpretation of this than I have. I believe it's quite clear. We have explained it to you and I don't think there's any more to say on the issue.

Mrs Pupatello: You may well think there is nothing more to say. You will recall the amendments that you've already defeated that included notices, that included how much time you're going to allow a letter to arrive somewhere. If you think of these instances and how they impact on a situation like this, could it be that a spouse wouldn't show up for the appeal because they don't even know there's one on, because they can't reach that person because you haven't put in any safeguard in terms of notification, even though we suggested we do that through amendments to try to recoup some kind of safeguard in this?

You've refused all of the amendments that would guarantee that a spouse would even know. So for you to suggest all of a sudden that because in section (5) "a spouse shall be added" is their right of appeal is ridiculous. It's absolutely ridiculous. You haven't done anything to directly combat the concerns we have for people who are in situations where life will be forced on them. In particular, you are going after a very vulnerable group. You've had the opportunity to accept amendments for safeguards and you've refused to do that. It's been pointed out to you again and again, and while you think that's all that has to be said, quite frankly you haven't taken care of this. People came and spoke to you, and I don't know who you were listening to at the time. These people clearly aren't lying. They live this life and they took the time to come and speak to you about it and you have not made sure that's reflected in this bill.

Mr Carroll: Point of order, Madam Chair: It's past 1 o'clock. Are we going to break for lunch?

The Chair: We can break for lunch. I'm just going to let Ms Boyd make a final comment. I'd like to dispose of this amendment if we could.

Mr Carroll: Yes, so would I.

The Chair: I'd rather not have to come back to it.

Mrs Boyd: Don't get so touchy. This is part of the democratic process here. You're just showing your true colours, Mr Carroll.

Mr Carroll: I'm hungry.

Mrs Boyd: Mr Kirk, I understood you to say that there was no choice on the part of someone who was a spouse about whether or not they would be party to an appeal. Is that correct?

Mr Kirk: If they were given notice of the overpayment, that's correct.

Mrs Boyd: How do you determine that someone is given notice? Does the individual have to sign that they have received notice, or could in this case, an abusive situation where the woman is not in the home, has not benefited, but the spouse declares that she has been there and she has benefited, is there any consent mechanism for the person to be a party to the action or is this just going to be automatic? It has nothing to do with the circumstances; if you're in a spousal relationship and this all happens, you automatically become a party to an appeal?

Mr Kirk: You become a party to the appeal if you have been given notice under 16(4), yes.

Mrs Boyd: Personally given notice or are we carrying this notion of spouses as one person one step further? There has to be a receipted notice by this individual?

Mr Kirk: If we have to go to the spouse, yes, the spouse would have to have been added.

Mrs Pupatello: Would you review how you give that notice?

Mrs Boyd: That's not how we read this.

Mr Kirk: In the same way that we would give any other notice.

Mrs Boyd: But it doesn't say that.

Mrs Pupatello: Subsection 16(4) says, "If a recipient had a dependent spouse when an overpayment was incurred, the director may give notice in writing to the spouse respecting the overpayment."

It says "may"; it doesn't say "shall." It also supposes that they know where the spouse is. This is only going to be a problem if the spouse is in a shelter or if there are issues within the family for the spouse. You cannot say that it's all there and it's all okay because of 16(4). Subsection 16(4) does not allay our fear here; in fact it confirms it. The director "may" give notice. They have to find the spouse. How do they give notice? It's in writing. How much time is that? Where do they mail it to? These are the kinds of issues that abused women have faced time and time again.

Now weren't we all surprised when people representing abused women showed up at Bill 142? This is why, and you didn't take time to allay any of their fears in this bill or in the preparation of amendments once it was made clear to you.

The Chair: Any further debate? All in favour of the amendment?

Mrs Pupatello: Recorded vote.

Ayes

Boyd, Pupatello.

Nays

Carroll, DeFaria, Bob Wood.

The Chair: The amendment is defeated. In view of the hour, we will recess until 2 o'clock.

The committee recessed from 1300 to 1401.

The Chair: Ladies and gentlemen, we're back in session. We continue with subsection 23(9).

Mr Peter Kormos (Welland-Thorold): There's a motion that's been tabled, identified as number 88.

The Chair: That's correct.

Mr Kormos: I ask that that be withdrawn. The bill currently refers to "parties." Unfortunately it carries on to say "as prescribed" or disclosure in a manner as prescribed.

The Chair: Very well. It's withdrawn.

Mr Kormos: But you'll have to withdraw what is identified as motion 88.

The Chair: Terrific. I appreciate that. Subsection 23(10) then; that's page 89.

Mr Kormos: I move that subsection 23(10) of schedule B to the bill be struck out.

Once again, you've got an incredible burden on the appellant. I suggest, with respect, that if subsection 23(10) were to be deleted, common law rules of natural justice would prevail and there would be fairness to persons appealing decisions.

The Chair: Any further comment? Very well. All in favour of the amendment? Opposed? The amendment is defeated.

Next is a Liberal amendment which is identical to the one we've just defeated so it's out of order.

Shall section 23 carry? All in favour? Opposed? The section carries.

Section 24: Any comments? Shall section 24 carry? All in favour? Opposed? Section 24 carries.

Section 25.

Mr Kormos: I move that subsection 25(1) of schedule B to the bill be amended by striking out "will suffer" in the fourth line and substituting "may suffer."

Once again, "will suffer" puts an incredible burden on an appellant as compared to "may suffer," which I suggest to you is more akin to the balance of probabilities or the likelihood of suffering. It talks about the tribunal being satisfied and "will suffer" puts a really high threshold there. "May suffer" gives the appellant the benefit of the doubt during that period of time.

The government has, however, talked about expediting the processes, so we're not talking about protracted periods of time. I hope that the fairness -- and I'm not suggesting that the language when it was first written was intended to be as onerous as it turns out to be. I quite frankly suspect that with the inclusion of the words "will suffer" in fact what was being contemplated was "may suffer"; in other words, is there a likelihood that there's going to be suffering if there isn't a continuation of assistance on an interim basis?

Mr Carroll: Just a quick comment on this: We dealt with this under page 30 in the Ontario Works Act and it is the government's intention that the tribunal must be satisfied that true financial hardship does exist and therefore it is our intention to leave the word "will" in there and "may" is unacceptable.

The Chair: Further discussion? All in favour of the amendment? Opposed? The amendment is defeated.

Shall section 25 carry? All in favour? Opposed? The section carries.

Section 26.

Mr Kormos: I move that section 26 of schedule B to the bill be amended by adding the following subsection:

"Reasons

"(1.1) The tribunal shall give reasons for its decision."

This is consistent with the amendment that was made to schedule A, the corresponding piece of legislation. I appreciate the support for that amendment, but I believe there should be consistency between the two parts, schedule A and schedule B.

Mr Carroll: I agree with Mr Kormos.

The Chair: All in favour of the amendment? Opposed? Seeing none, the amendment is carried.

I believe the next is identical, is it not, Ms Pupatello? So it's out of order.

Shall section 26, as amended, carry? All in favour? Opposed? The section is carried.

Section 27.

Mr Kormos: I move that section 27 of schedule B to the bill be struck out and the following substituted:

"Recovery of interim assistance

"27. Where the tribunal dismisses an appeal it may order that any interim assistance paid in excess of that to which the appellant would have been entitled under the tribunal's order be repaid and the amount of that excess shall be deemed to be an overpayment."

I appreciate that this deals with interim assistance rather than with overpayments in the regular course of things, and the parliamentary assistant knows there was a great discussion and concern. Again, this is a matter of fairness for people who are appellants. At the end of the day they're the little people and they're fighting the state, they're fighting the government and its agencies.

Mr Carroll: A quick comment on that: The tribunal has the right to deny, grant, grant the appeal in part or refer the matter back to the director. They do not have the right to dismiss an appeal; therefore, this amendment is inappropriate.

The Chair: Further discussion? All in favour of the amendment? Opposed? The amendment is defeated.

Shall section 27 carry? All those in favour? Opposed? The section carries.

Section 28: Pages 93 and 93A are out of order. They're not motions.

Mr Kormos: One moment, though, Chair. We're on section 28?

The Chair: Yes.

Mr Kormos: Discussion, please, on that section. We will be voting against the section. I appreciate that was filed as a motion when it's as much a tickler or a reminder as to where we're going to be on this.

The Chair: We've had a number of them throughout this bill.

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Mr Kormos: I know, Chair.

We heard a lot during the course of public hearings about this. This is a very frightening, a very draconian bit of law, "frivolous or vexatious." I understand and the parliamentary assistant may well say that's language that's used in other pieces of legislation and it's language which has had judicial interpretation. He may well suggest that's the case and the intent for the language here. But the government's going to be dealing with people in very sensitive, very unique situations, people who have very modest power, if any, compared to the power of the government and its tribunal. I'm concerned, and the parliamentary assistant may want to explain what remedies and how effective the remedies are for a person whose appeal is deemed or determined to be frivolous or vexatious.

Mr Carroll: Mr Kormos, you are a lawyer, so you probably know the answer to that question better than I. "Frivolous and vexatious" is open, I guess, to interpretation and each case would be judged based on its own merits. I don't have any better answer than that.

Mr Kormos: I understand that. I anticipated Mr Carroll relying upon that being traditional terminology. However, I'm anxious to understand what rights or remedies a person has whose appeal has been deemed or determined to be frivolous and vexatious, but who says no way -- that may be in the interpretation that the tribunal gives it, but how does that person go -- you and I both know what "frivolous or vexatious" can be, and I appreciate that there has to be or could well be some rationale for control on it. But I'm concerned about the lack of remedies for a person whose appeal is determined to be frivolous and vexatious, but who is being inappropriately determined that way. I would even defer voting on this, quite frankly, or ask that it be deferred until later during the day if we could get some response to that. I think it's a very legitimate query, if we could get some response to that.

Mr Carroll: Can we share something with Mr Kormos that would help him to deal with this? I can't say any more than what I've said, so maybe the staff could give us something.

Ms Fraser: If it's of assistance to the committee, there is of course the right of appeal to the court under section 31: A party to the proceeding "before the tribunal may appeal the tribunal's decision to the Divisional Court on a question of law." On the question of law with respect to that determination there is a right of appeal.

Mr Kormos: Can the parliamentary assistant confirm for us that, as has been indicated by the ministry staff, section 31 is designed to provide an appeal to a determination under section 28, as well as other tribunal decisions? Can the PA confirm that 31 is intended to permit appeals from a determination under 28 as has been described by ministry staff?

Mr Carroll: I'd ask the staff to confirm that.

Ms Fraser: The section reads, "may appeal the tribunal's decision." In my opinion, certainly a decision that the tribunal refused to hear an appeal is a decision.

Mr Kormos: I don't want to prolong this. Is the parliamentary assistant, on behalf of the minister, in accord with that interpretation?

Mr Carroll: I'm comfortable with that interpretation given by the staff.

Mr Kormos: Can we agree that is the -- well, okay. I understand the position the PA's in.

Mr Carroll: I'm not quite sure what you're asking in that last question.

Mr Kormos: I'm asking obviously for a very firm and clear comment or undertaking, if you will, on your part, on behalf of the minister, as to the intent of 31 being to provide appeals as well from section 28, determinations under 28.

Mr Carroll: So your question is, if the tribunal rules that an appeal is frivolous or vexatious and therefore they won't hear it, is that decision appealable under section 31? Is that what your question is?

Mr Kormos: Yes, sir, very specifically.

Mr Carroll: Can we give a yes or no answer to that?

Ms Fraser: If the appeal is with respect to a question of law, as required by section 31, then yes, we can, in my opinion. A decision by the tribunal not to hear a matter because it is frivolous or vexatious is indeed a decision.

Mr Kormos: Thank you, Chair. To carry this on would be simply to waste time obviously. Can we have a recorded vote, please?

Ayes

Carroll, DeFaria, Preston, Bob Wood.

Nays

Kormos, Pupatello.

The Chair: The section carries.

Section 29.

Mr Carroll: I move that section 29 of schedule B to the bill be amended by adding the following subsection:

"Jurisdiction of tribunal

"(3) The tribunal shall not make a decision in an appeal under this act that the director would not have authority to make."

This is consistent with a provision found in section 67 of Ontario Works, which states that the Social Benefits Tribunal "shall not make a decision...that the administrator would not have authority to make."

Mr Kormos: It seems to me that this is also consistent with the government's intention to prohibit its own governmental judicial body from establishing, let's say, case law or making determinations that go beyond the ministerial interpretations that will be forced on it. My suspicion is that's the purpose or that's the motive behind this amendment. I understand why the government's making it, but in that context I can't support it because there is some distinct, direct ministerial control over a director. It would seem to me that a judicial body or a quasi-judicial body, a supervisory body which has, yes, an appellate function from the director shouldn't be hampered in this way. I'll be voting against this amendment.

Mrs Pupatello: I just wanted to have a little bit of further clarification. Is it the intention then to restrict individuals who would ordinarily try to make an appeal to not be able to make an appeal based on the fact that the director would have already concluded that it wasn't appealable? Perhaps the staff can answer that.

Mr Carroll: Perhaps you could just elaborate on the question a little more. I'm not really sure what you're asking me.

Mrs Pupatello: The final line says that "the director would not have the authority to make." We're assuming that the director has the authority to make a decision which then is not appealable. You've just clarified that through this amendment. If you could just give me the justification for making it at all.

Mr Carroll: As I understand the amendment, the tribunal cannot make a decision in an appeal that the director would not have had the right to make.

Mrs Pupatello: Right. So I'm just looking for clarification, if I could have an example of what this added clause would mean in an instance. Can you give me some sense? Work me through an example here where you've needed to clarify this by adding the clause.

Mr Carroll: I don't know whether Allan can give any kind of example, but the director has a variety of areas where he can make decisions. The tribunal cannot make decisions in any areas outside of that. If the director cannot make the decision, neither can the tribunal make the decision.

Mrs Pupatello: Which says that the things that are sent to tribunal are going to be purely process issues, not judgemental ones? Because when it goes to the tribunal, the tribunal literally then is simply reviewing the decision-making of the director, not making additional judgements on the same issues.

Mr Carroll: Allan, can you add anything to this?

Mr Kirk: The tribunal can determine if the decision that the director made was correct. They cannot make a decision that a director couldn't have made within the act or the regulations, so they can't make a decision that someone is eligible if they're clearly ineligible based on the act and the regulations.

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Mrs Pupatello: So, for example, if the employment supports were denied, the tribunal could reinstate and have the employment supports allowed. Would that be correct? Because the director could have made that determination.

Interjection.

Mrs Pupatello: Okay, bad example. Skip it. I'll have to come back to it and give you a better example. I'm voting against it in any event.

The Chair: Further discussion? All in favour of the amendment? Opposed? The amendment carries.

Shall section 29, as amended, carry? All in favour? Opposed? The section carries.

Section 30.

Mrs Pupatello: I move that section 30 of schedule B to the bill be amended by inserting after "act" in the third line "without reasonable cause."

If we look at section 30, it's clear that because section 30 deals with no further appeals being allowed, it's reasonable to insert a clause that says "without reasonable cause." It has everything to do with the time periods being allowed. There may well be incidences, in particular with this client group that we're speaking of, where there can be very justifiable reasons why an individual has not met the condition to launch an appeal at an appropriate time.

Unless the parliamentary assistant can suggest some reason the director wouldn't consider reasonable cause in an appeal to the tribunal, maybe they could suggest that. Otherwise, I think it's perfectly reasonable to add "without reasonable cause," because it's still up to the discretion of someone other than the recipient to determine what "reasonable cause" may be.

Mr Carroll: A quick comment on that, Madam Chair: In subsection 23(2), "The tribunal may extend the time for appealing a decision if it is satisfied that there are apparent grounds for an appeal and that there are reasonable grounds for applying for the extension."

Mrs Pupatello: I then would ask the parliamentary assistant if there's some reason why you wouldn't put it in.

Mr Carroll: It's already covered under subsection 23(2).

Mr Kormos: Mrs Pupatello's concerns are of interest. The staff were helpful in pointing out subsection 23(2), which Mr Carroll just referred to. But then the question is, why do we need section 30? If it's clearly in section 23, the time frame contemplated provided by regulation obviously, "prescribed period," and then in subsection (2) an opportunity to extend time, I wonder why we need section 30.

It seems to me that you're inviting debate about which prevails, whether section 30 prevails. A judge at some point is going to say, "Wait a minute. I appreciate there's 23(2). Does that mean that before the time expires" -- because that's the argument I can anticipate. Some clever government lawyer is going to appear before Judge MacPherson or some other judge over at the Supreme Court and argue that section 23 is all-inclusive; that's it, that's the package there. But they're also going to say, when you look at 30, that 23(2) merely permits you to apply for time to extend the appeal before the appeal time is expired.

In other words, let's assume there's a 30-day period to serve notice of appeal. I'm on day 29; I don't have my material together; I'm still waiting to see the legal assistant at the Niagara South Legal Services. I can file to get some sort of interim relief, a speedy way of extending time to file a notice of appeal. But then the counterargument is that section 30 would make it quite clear that you can't seek leave to extend time for appeal once the appeal period is exhausted. Do you understand what I'm saying, that it would restrict the impact of the effect of 23(2)?

It seems to me Ms Pupatello raises an interesting point. You don't need 30 if 23(2) is meant to be extending time to appeal both prior to the termination of the time as well as afterwards. In other words, the 30 days have lapsed, I'm on day 40, 10 days after. Subsection 23(2) would seem to permit that, but section 30 would seem to prohibit it, thereby restricting subsection 23(2) to an application for extension of time only if you file that application and obtain your extension of time before the time frame is up. That's assuming 30 days. That's not an unusual time frame, though I'm not suggesting that's what it should be. I hope the PA understands my dilemma.

Mr Carroll: I do understand it and I'd like to comment on it from a non-legalistic standpoint. My interpretation of subsection 23(2) is the tribunal may extend the time for appealing a decision. That's fairly straightforward. They have the option to extend the time. Section 30 says that if the appeal is not filed during the time set out, there's no further recourse. So whether it's the original time or an extended time, as allowed under 23(2), if the appeal is not filed during the time allotted, there's no further appeal. That's how I would understand it. If I'm wrong, then I would ask for clarification on that. Is that the proper interpretation?

Ms Fraser: Yes, it is.

Mr Kormos: Once again, I'm glad to have the PA indicate that it wasn't designed to restrict applications for relief only to the period of time within the time necessary for filing the appeal. Everybody's shaking their head, but is that how the parliamentary assistant, on behalf of the minister, explained section 30?

Mr Carroll: Section 30, as I understand it, is fairly straightforward. If the director's decision is not appealed within the time required under this act -- and part of this act says that there can be an extension applied for -- no further appeal lies. To me, that's very straightforward.

Mr Kormos: I'm glad we've got that on the record. I still have my concerns about 30.

Mr Preston: Your statement that if you have 30 days and you come on day 40, the appeal is over, you're right. Your example was if the time is up on the 30th day and you come back on the 40th day for appeal, you're out of luck, unless that was extended during the appeal time.

Mr Kormos: Here we are. That's exactly my point. Mr Preston understands my argument.

Mr Preston: As I understand what you've said, your argument and statement was that if an extension is asked for because of the mail, because of various reasons, and you get that extension, that is the time within which you have to give your appeal. Am I correct?

Mr Kormos: That's my understanding.

Mr Preston: Right. And if you go beyond that day, your appeal is down the tube.

Mrs Pupatello: I appreciate the government MPP making the case that indeed you have to make the request for the extension during the initial time period.

Mr Preston: That's when you know you're going to run out.

Mrs Pupatello: So you're also assuming that during that time period you're in a position to request the extension. I would suggest that in most cases, if you're aware of the appeal happening, if you're aware of the process, you won't need the extension. Usually you need the extension because you haven't been made aware in time. That's exactly the point, that for any number of reasons, more reasons for this particular client group than others, they're likely to be in a position where they may not know in time and need the extra time, given that with this amendment you would have the director still determining if it's reasonable cause, like a lengthy hospital stay, whatever.

Those kinds of things are more likely with this group than with another group, and if you put it also in section 30, you're not requesting the length during the initial 30-day period, you're able to ask for an extension under what the director decides is reasonable cause, like an operation, hospital stay, whatever -- that's the whole point and that's why it should also be set out in section 30, because if you don't happen to get it, for reasons that are more likely in this client group than in other client groups, that seem to be reasonable.

Please remember that the director is still the one to determine if it's a reasonable cause. If it was a vacation in the south of France, that probably isn't reasonable cause, but an operation, being on particular medication, for whatever purpose a director would say is reasonable cause, I don't think that's requesting a lot. If it means one more line somewhere that some may view as duplicate somehow but may actually be helpful to individuals, I just don't see what the big deal is to err on the side of caution.

1430

Mr Kormos: I'm sorry we're spending so much time on this, but I really think it is important. I appreciate what Mr Preston is saying; I understand what he's saying. He's demonstrating or arguing exactly the point that I have concern about. Clearly, extension for leave to appeal under 23(2) -- without section 30, 23(2) would clearly permit you to apply for leave to extend time either within the original appeal time or afterwards.

I know there are other people who have had a lot more experience with this type of legal stuff than I have, but clearly when a tribunal extends time for leave to appeal, it says, "Okay, you have until X date to do it." Mr Preston alludes to that type of reference. That's inclusive, that's inherent in 23(2), Mr Carroll; it's there already. That makes section 30, if your interpretation is to be argued, redundant, and with Mr Preston's interpretation it makes it crucial in terms of its impact.

If your position is the one that we really want to give effect to -- and quite frankly, your position would be great, if that were how it were being interpreted at the end of the day -- you don't need section 30, because any extension for a leave to appeal is not going to be open-ended. The tribunal is going to acknowledge that you're either within the appeal time frame but you need an extra 10 days to file your notice or whatever paperwork, or it's going to say: "You've gone beyond it, but you've established reasonable grounds for an extension. Although the period expired last week, we'll extend it to June 30." But clearly, once that happens you've got until June 30 and there's nothing more to be said or done. I tell you sincerely, that's my modest understanding of how these things work in other arenas.

I think you're hearing a strong argument from a number of members of this committee against section 30. I think it's going to be very difficult for you to justify section 30 in terms of what 23(1) and 23(2) already do.

Mr Carroll: Just to clarify, my impression of this whole section is that if an appeal is not made or a request for an extension is not made within the original time, then neither option exists after that. That's my understanding.

Mr Kormos: I'm glad you've said that. Legal counsel indicates that wasn't the intent.

Mr Carroll: I'll ask that she clarify that.

Ms Fraser: Yes, I will attempt to clarify it. What subsection 23(2) says is the tribunal may extend the time for appealing decisions if it is satisfied and so forth. It does not say, "The tribunal may extend the time for appealing a decision before that time expires, if it is satisfied." It does not say that, intentionally. The point is to permit the tribunal to extend the time, where it is satisfied of those factors, either before or after the expiration of the time. That is the intent.

Mr Carroll: That addresses Mr Kormos's concern.

Ms Fraser: I believe it does.

Mr Carroll: Mr Kormos, does that address your concern?

Mr Kormos: I understand what legal counsel says the purpose of those sections is from her point of view. I'm concerned that there could be people down the road who are inclined to take your view. I'll be voting against section 30 for that reason. I think it's a very dangerous section.

The Chair: Further discussion? All in favour of the amendment?

Mr Kormos: Recorded vote.

Mr Carroll: What exactly are we voting on?

The Chair: We are voting on the amendment that appears on 94A to section 30.

Ayes

Kormos, Pupatello.

Nays

Carroll, DeFaria, Preston, Bob Wood.

The Chair: The amendment is defeated.

Shall section 30 carry?

Mr Kormos: Recorded vote.

Ayes

Carroll, DeFaria, Preston, Bob Wood.

Nays

Kormos, Pupatello.

The Chair: The section carries.

Section 31.

Mr Kormos: I move that subsection 31(1) of schedule B to the bill be amended by striking out "of law" at the end and substituting "that is not a question of fact alone."

What that does is basically use the parallel language, a matter of law or fact and law. Quite frankly, as I understand it, that's the standard in the current legislation. It also is a historical and traditional standard for right of appeal to administrative tribunals and in the course of appeals in the courts under administrative law.

The question of law obviously prevents -- and we're not restricting it to law or fact, "that is not a question of fact alone," but it incorporates the opportunity for an appellant for whom the facts have been, let's say, misinterpreted, who's in a situation of fact and law there, to pursue that. That is a historical standard, as I understand it -- I'm subject to correction -- for appeals of an administrative nature. I ask the PA to seriously consider that.

We're not suggesting questions of fact alone. Clearly, the amendment would say "that is not a question of fact alone," which means a question of law or fact and law.

Mr Carroll: This amendment was passed under Ontario Works prior. Our intention is that it is based on law, that it is a question of law, and in our opinion the information provided in B is consistent with a number of Ontario statutes.

The Chair: Further discussion? Very well. All in favour of the amendment?

Mr Kormos: Recorded vote.

Ayes

Kormos, Pupatello.

Nays

Carroll, DeFaria, Preston, Bob Wood.

The Chair: The amendment is defeated.

Mrs Pupatello: I move that subsection 31(1) of schedule B to the bill be amended by -- oh, it's the same; I'll withdraw.

The Chair: Help me with this. One says "that is not a question of fact alone"; the other one says "that is not a question of law alone."

Mrs Pupatello: They have the same effect.

The Chair: It's different wording.

Mrs Pupatello: I move that subsection 31(1) of schedule B to the bill be amended by striking out "of law" at the end and substituting "that is not a question of law alone."

I think we've had some discussion on this item already. I'm not envisioning the government changing its mind; however, I would like to say that often if you leave in the words "of law," you're talking about procedural legal wording. The whole intent of this amendment is that it is not simply based on that, that it is not just a question of law in the issue of appeal.

The Chair: Any further discussion? All in favour of the amendment? Opposed? The amendment is defeated.

Shall section 31 carry?

Mr Kormos: One moment, if I may. I believe it would be appropriate, in view of what the next amendment is, identified as number 96, which creates 31.1 -- or is that regarded as a new section?

The Chair: It's a separate section, Mr Kormos. We will deal with it as such.

Shall section 31 carry? All in favour? Opposed? The section carries.

Section 31.1.

Mr Kormos: I move that part II of schedule B to the bill be amended by adding the following section:

"Rights advisor

"31.1 An applicant or recipient has the right to be accompanied by counsel or any other third party in an appeal to the tribunal or to the court."

You take a look at subsection 31(4), where there's a right to counsel, and it could well be argued that the applicant has a similar inherent right to counsel. However, the issue is any other third party. Chair, you know that most of this type of work in Ontario in the area of, let's say, poverty law is done by advocates working out of constituency offices, or legal clinics, or trade unions, or various community groups, organizations of the ilk. The majority of the people doing that advocacy work are very, very skilled in the type of work they do. In fact, many of them surpass lawyers because theirs is a specialized area and they're extremely experienced in it. You heard a lot of evidence from these types of people. Some are lawyers, many are not. Many are paralegals, advocates, what have you.

1440

Again, we're dealing here with poor people. You're not under schedule A or schedule B if you're prosperous. We're also dealing here, and I don't want to debate the issue now, with a point in time when the legal aid system is not funding certificates in the instance of retaining legal counsel to do this type of work.

We're also talking about up north, especially in terms of the isolated areas. You heard again from some of these same advocates who are far more accessible to a potential applicant than would be a lawyer, never mind the issue of cost and so on.

Clearly the court has the power to control its own process, so we don't have to be worried. One of the issues or concerns regarding non-lawyers, so to speak -- again, I really don't have any special affection for lawyers as compared to other advocates. As I say, in specialized areas like welfare law, lay advocates, non-lawyer advocates have proven themselves to be as capable as, if not more capable than, because of the speciality, members of the bar.

I would urge the PA to accept this amendment. At the end of the day it's going to make the whole process happen a lot easier and a lot smoother and a lot more promptly.

Among other things, here we are in schedule B and we're dealing with persons who have disabilities. Those disabilities range from Z to A or A to Z. The presence of an advocate, either counsel or other third party, and that's a broad range, is going to make things happen a lot more quickly, a lot more efficiently. I'm not sure there's an implied right to counsel by virtue of the ministry being able to be heard by counsel, and there may well be, but why don't we say so? Why don't we in terms of counsel, but also any other third party? We're dealing in schedule B with persons with disabilities. These are people for whom sometimes, perhaps many times, it's going to be very difficult to do their own advocacy if they don't have a lawyer. I plead with the PA to accept this amendment.

Mr Carroll: I understand Mr Kormos's concern here and I'm sure he knows better than I do, that being his professional calling, that the Statutory Powers Procedure Act already gives the right to a person who is to be at a hearing to have the right to counsel. That already exists and for that reason we believe there's no necessity to include it in this particular act.

Mr Kormos: I already suggested that there is an inherent right to have counsel, so that means there's no quarrel with the part about saying that here in this bill. If it's there it's of no harm or in no way contrary to anybody's interest, political or otherwise, to include it.

Let's get down to the issue of third parties, though. I want to repeat what I said about the role of lay advocates, highly trained in their own right, but not members of the bar, not regarded as counsel. That's the crucial part here. That's the real gist of the amendment. I would be interested in hearing what the PA has to say about counsel. I already suggested there could well be an inherent right. What does he say about laypeople, about lay advocates and how important they can be in the process, especially with what's becoming a more restrictive access to lawyers because of issues with legal aid and geographic accessibility?

Mr Carroll: Maybe Mr Kormos can help me a little bit. Does the Statutory Powers Procedure Act -- he refers to "counsel" -- prohibit that counsel being a layperson?

Mr Kormos: I don't want to be presumptuous, but I would ask that the PA request that of the ministry staff, because I believe there are some problems in that regard. We're talking here about an appeal to the court. That's where you run into problems currently with laypeople appearing in court. I'd just like to clear this up. Does it preclude?

Ms Fraser: The Statutory Powers Procedure Act refers to "counsel," which means someone called to the bar of Ontario, which means a lawyer. However, the rules of the law society also permit representation by non-lawyers in certain circumstances. Those rules would govern in this event as well. I don't have them with me. My recollection of them is that non-lawyers would certainly be entitled to appear before a tribunal. However, they would likely not be entitled to appear before a court. That is true for all matters, not just matters of this nature.

Mr Carroll: Are you satisfied that the Statutory Powers Procedure Act deals with the issue, the concerns that Mr Kormos has in this area?

Ms Fraser: Yes, Mr Carroll, together with the rules of the law society I believe that's the case.

Mr Kormos: That's exactly the point. Laypeople are entitled to act as agents in provincial courts, but as I understand it, not in courts where you have federal appointments. I appreciate what ministry staff have said, but I think it speaks very much to the point that there is unlikely to be access for a lay advocate, notwithstanding that they could be highly trained. This is where I made reference to the court's power. I'd be pleased to hear from ministry counsel here. If there's concern about, let's say, somebody who is just being obstreperous and fouling things up rather than helping them along, the court -- as referred to here, the court, capital C -- has a far stronger jurisdiction to control its own process. It can say, "Mr So and So -- or Ms So and So -- you're not helping things along; you're not being useful here." There are all sorts of remedies, I suppose, contempt or any number of other things, or the court's power to appoint counsel.

But it's clear that a lay advocate wouldn't, as of right, have access -- this amendment could give effect to that -- to the court for the purpose of representing an applicant appealing from a tribunal. I've got to tell you, Chair, it's been a real problem with the constituency work we've done, and my staff, who are very confident and competent and capable, are cut off at the level where you start dealing with court appeals, even though I'm confident that their capacity to represent at the court level is as qualified as any lawyer's. That's exactly the point here. This excludes lay advocates.

We've got a growing and healthy tradition of lay advocates. I'm suggesting that the prohibition against lay advocates in courts -- as I say, it would usually be courts with federally appointed judges; obviously in provincial court (criminal division) it depends upon the nature of the charge; lay advocates can appear for indictable offences, as I understand it, only summary conviction -- seems to me to be a somewhat archaic rule in the self-interest of lawyers, perhaps. Cynics about the legal profession might suggest that. It seems to me that in this type of law, when we're dealing with what has been historically described as an area of poverty law and recognizing the huge growth in advocacy and highly trained and highly skilled advocates, this government could make a big move in including any other third party in an appeal to a tribunal, it's a given, or to the court.

1450

The Chair: Further discussion? Seeing none, shall the amendment, section 31.1, carry?

Mr Kormos: Recorded vote.

Ayes

Kormos, Pupatello.

Nays

Carroll, DeFaria, Preston, Bob Wood.

The Chair: The amendment is defeated.

Section 32, 96A. Mrs Pupatello.

Mrs Pupatello: Pardon me?

The Chair: Don't you have a 96A? Could we just hold on a minute, Mrs Pupatello?

Mrs Pupatello: Well, 98A is my next motion.

The Chair: All right. We are missing 96A and 97.

Mrs Pupatello: I have 97 and 98, which are not Liberal motions.

The Chair: So we are missing 96A. Mr Kormos, do you have 96A?

Mr Kormos: No, Chair, I don't. I have 96. My number 96 is the amendment I just moved creating section 31.1.

The Chair: I have two copies of 96A.

Mrs Pupatello: May I see it before you copy it, Tonia? This is the one I have as number 98A.

The Chair: Is it in the wrong order? No, 98A is a different one. Shall we stand this one down and proceed to the next one to save time? Any problem? Terrific. Then we'll move to 97.

Mr Kormos: I move that section 32 of schedule B to the bill be struck out and the following substituted:

"Provision of employment supports

"32. (1) Employment supports may be provided to a person described in subsection (2) in order to remove barriers to the person's employment and assist the person in attaining his or her employment goal.

"Who receives employment supports

"(2) Employment supports shall be provided to a person if the person is a person with a disability as defined in section 4."

This was again a major issue during the course of hearings. One, there was much concern expressed about the prescribed employment supports and how that list could become very, very narrow at the whim of the Lieutenant Governor in Council, cabinet, behind closed doors. There was also concern about the language "competitive employment." This obviously deletes the word "competitive" twice in subsection (1). Let me speak to that part first.

Competitive employment: I think all of us during the course of the hearings were getting a drift as to what that meant. It's an interesting bit of language to include there. We heard from any number of people in their own right and representing constituencies out there who talked about their fear about competitive employment. What does it say to so many people, for instance, for whom a disability might prohibit a 35- or 40-hour workweek, whose capacity, because of their disability, is for that point in time so restricted that they are not going to be out there, lined up with persons without those same disabilities, able to take on that same job under those same conditions?

The two key terms here are "prescribed" and "competitive employment," because the only time they are going to be considered is if it is to remove barriers to the person's competitive employment. That will reduce the group of persons entitled to consideration for employment supports considerably.

For instance, we heard from deaf people speaking on behalf of, I'm sure, large portions of the deaf community almost in every place we were in the province. It would be argued by the government, and I'm sure down the road by any service provider of employment supports, that for instance a signer would make that person non-competitive in terms of the labour market. It's very, very dangerous language and I think it is highly exclusionary.

The other consideration, and this is where we get to subsection (2), is the business that "employment supports may," and we were asked why there is no appeal right from employment supports. It became obvious: because it is totally discretionary. How could you appeal something and why would there be a need for appeal for something that's totally discretionary? It seems to me that if the government is serious that the word "shall" is imperative there, then the qualifying section obviously would be section 4, and not a matter of discretion on behalf of a service coordinator, service provider, if you will.

We heard if privatized service providers are utilized -- and it's not out of the question, by any stretch, the HMO type of model -- how they are going to cherry-pick, how they are going to take the persons with, let's say, the lowest level of disability -- and I'm not sure that's appropriate language -- and very inexpensively provide them with employment supports. But those are the people for whom it's going to be far easier to provide employment supports. It's going to leave out the people who most need the support from consideration.

The government took great pride in schedule B to this bill. It did. It earned kudos. I'm still cynical about schedule B, but it did; it earned kudos from a lot of Ontarians. Gary Malkowski was one of the first, for instance, on behalf of the Canadian Hearing Society, when the minister made her announcement about the intended structure of this, to praise the government for schedule B. We've seen the submissions of the Canadian Hearing Society, along with others, giving the government due praise when it comes to schedule B. But for the caveats about language like "competitive employment" and the discretionary "may provide," with of course no right to appeal, and a right to appeal would be irrelevant, I put it to you that this amendment responds very directly to some very real concerns expressed by a large number in the provincial community and a large number of members in the communities of persons with disabilities who had some cautious support for schedule B but for this sort of language. Thank you.

Mr Carroll: A couple of comments. Subsection (2) refers to "employment supports...provided to a person if the person is a person with a disability as defined in section 4." Section 4 deals with eligibility for income support, which would then limit the provision of employment supports for persons who were also receiving income supports. We do not believe that is a policy we want to put forward. Second, it is the government's policy intention that employment supports be provided to people who have the ability to move towards competitive employment. That is the policy direction of the government that is not up for compromise. For those reasons we cannot support this amendment.

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Mr Kormos: May I respond to Mr Carroll, because subsection (4), which establishes eligibility, quite right, for income supports, is also a broad definition relative to the definitions under subsection (2). I'm suggesting to you that if the bill is interpreted fairly, everybody who would be included in subsection 32(2), paragraphs (a) and (b), would also be dealt with under section 4 if the intent of the bill was really to be given effect. It seems to me that this government would want the broadest possible coverage of employment supports. We're not talking about enabling people to participate in the economy by working at a decent job for fair wages just so they can be at work rather than receiving assistance; I think we're talking about it as a goal of any fair or democratic or just society that people with disabilities have a right to participate in the economic activity -- a right.

Look what happened on the issue of access. We're talking the most basic access of ramps and electronic doors and so on. In the course of a mere 10 years, attitudes have changed a great deal, fortunately. The Human Rights Commission and the courts had a great deal to do with it. People had to be pushed; governments had to be pushed. You know what the courts have said about accessibility: Accessibility doesn't mean through the back door. I'm arguing that this amendment would create some modest rights for persons with disabilities, regardless of the type of disability, to participate in the economy. I say no more.

The Chair: Further discussion? All in favour of the amendment? Opposed? The amendment is defeated.

We go back to 96A. Everyone has a copy of 96A now?

Mrs Pupatello: I move that section 32 of schedule B to the bill be amended,

(a) by striking out "competitive" wherever it occurs; and

(b) by striking out "is eligible for income support under part I" in the second and third lines of subsection (2) and substituting "is a person with a disability as defined in section 4."

We have already touched on some of the issues arising out of the use of the word "competitive." Just by way of explanation, we would very much like to see this clause, particularly that word, removed. For example, there are a number of people in the disabled community who work in environments that would never be considered competitive. I need to ask the parliamentary assistant or the staff if there's some indication, with these examples, that they would be considered competitive environments.

Members of the disabled community who work at a non-profit agency: Would that be considered a competitive environment, specifically those who work at Goodwill Industries, for example? These are organizations that are beholden to the goodwill of the community for their existence. They're not based on an actual financial statement that affects the bottom line of good, competitive position. Would those constitute competitive employment? There are still sheltered workshops in our communities. Employment supports required for those with disabilities who work in those kinds of workshops: Are those considered competitive environments?

If I could get clarification on that, that'll help me understand and maybe I won't be so fearful of the word "competitive." That can certainly be interpreted to mean that those environments would not apply and would not be considered competitive.

Mr Carroll: I'm not prepared to say whether or not a specific job qualifies as "competitive environment." I will tell you, however -- I'll just get it here because it was in the briefing binder that we all had a copy of -- what we mean by "competitive employment." I'm sure we had the exact words that we all were furnished with.

Mrs Pupatello: Do you have your copy?

Mr Carroll: I don't have my copy with me.

Mrs Pupatello: Thank you.

Mr Carroll: I just want to make sure of the exact terminology. I know it has to do with the ability to improve oneself. I'm not sure exactly --

The Chair: Ms Pupatello, do you have any other comments while this is being done? Oh, I see they've found it.

Mr Carroll: "'Competitive employment' refers to the ability to earn income at a level that helps to increase a person's independence. It could mean traditional waged employment, self-employment or a community-owned business. It includes both full-time and part-time work and would recognize that due to the nature of some disabilities, some people move in and out of the labour force."

Mrs Pupatello: That definition of "competitive," which I also read, still leads me to a question. If there are individuals who work in sheltered workshops, what they receive is a stipend as opposed to a wage. It's not minimum wage by any means. It wouldn't be considered a wage in that true sense where they're able to better their position. Those are the kinds of environments that a majority of people are perhaps going to be in a position to go to. That may be all they can go to. If that's the case, if an individual needed employment supports with all that means, would those people be entitled to them?

The wording was very clear, not only in this section we're discussing now, section 32, but also in subsection 21(3): "No appeal lies to the tribunal with respect to a decision taken under part III of this act." Part III of the act is "employment supports, no appeal." Not only do we have a definition that is not extensive enough to answer my questions, like, would a sheltered workshop apply -- that is pretty common out there in the community. I would say most individuals who work there are not in a competitive environment in the normal sense of the word by what you've just read. The majority of the people who work there are individuals with disabilities who would require some kind of employment support in order to continue there.

You've not given me the specific information of whether sheltered workshops apply to that definition. We've got a mention where no appeal is allowed, specifically in the area of employment supports. You can understand my concern that I see this as another attempt to say, "If the job isn't enough to get you off the system, we're not spending the money on you" even if it's for their betterment as individuals to get them outside and working with the community etc.

It's not going to be enough to warrant a decrease in the kind of income you get on disability or perhaps move you right off the system. We're not prepared to invest money in employment supports. Not only that, when we choose not to invest in the employment supports, you don't have the right to appeal that. We specifically asked you to revoke that subsection and you didn't allow us to do that. You voted that down. We've got some real concerns about where many, many people in this community fit.

The Chair: Further discussion?

Mrs Pupatello: I would like to have an answer from the parliamentary assistant, something officially on record.

Mr Carroll: I didn't hear a question.

Mrs Pupatello: Does the situation of a sheltered workshop apply, given that the definition of "competitive" doesn't tell us that, you or me. You must have some sense, by regulations or something that's going to be coming, that it covers those kinds of areas where people clearly aren't in a position to better their standing by virtue of some of those workplaces not being at minimum-wage payments, let alone anything to move them off the income support system.

Mr Carroll: As I understand the policy direction, it would not. We're basing the decision on where the person works. We're basing the decision on whether or not the work they're engaged in will help them to move towards more independence. That to me is as understandable as anything Ms Pupatello has said. Whether or not that happens in a sheltered workshop, whether that happens in self-employment, regardless of where that happens, it's the person who is evaluated as to whether or not they're participating in competitive employment, not the place where they happen to be working, as I understand it. So the explanation we gave you, which you've had for some time now, could apply to any kind of a workforce, as I understand it.

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Mrs Pupatello: Your definition of becoming more independent, is that more financially independent or more independent in terms of not relying on family or on the system? I understand the definition of "competitive" as it was provided to us. That's what has led to these questions. It hasn't clarified enough the fact that a lion's share of many people who will be on ODSP clearly qualify as substantially disabled -- and, and, and, or, or, or. However you've changed it now, the point is still the same. Would a situation like that preclude them from getting employment supports because it doesn't make them more independent financially but it does make them more independent in terms of their participation in the community? If the answer is that yes, it's financial, then my fear is for those who are being brought into communities by virtue of other non-profit agencies whose job it is to get these people things to do -- we've got several of them in my community -- but they don't make any kind of living that would get them off the system eventually.

Moreover, you're not allowing for any appeals when those kinds of decisions are made. I need to hear whether a place like Goodwill Industries that might utilize individuals with disabilities who may not make a full wage, who might just be making a stipend -- can we get that kind of clarification before we vote on the amendment within the next hour or so, so we don't run the clock, before we pass this and know exactly what we're going to defeat or pass?

Mr Carroll: I'm not in a position to tell you that any specific job in any specific place for any specific person qualifies as competitive employment.

Mrs Pupatello: Okay, can I ask the assistant, if you'd go back then. Given the information that we can't get or that you don't have now, could you explain the rationale for having this section unappealable?

Mr Carroll: The employment support system, as I understand, has its own appeal process.

Mrs Pupatello: Actually, subsection (3) of 21 says, "No appeal lies to the tribunal with respect to a decision taken under part III of this act."

Mr Carroll: It is a standalone process, the appeal process to employment supports. It is not appealable to the tribunal.

Mr Kormos: My goodness, this came up again. Ms Pupatello is dead on and I'm grateful, because if she had moved her motion first and it hadn't been successful, mine would have been out of order. Whatever concerns the government might have had about my amendment, clearly Ms Pupatello's is a little broader in scope.

Let's take a look at the appeal that the parliamentary assistant is talking about in subsection 36(2). It's a self-contained process, you bet your boots it is, because it's like appealing to the trial judge who convicted you instead of a separate tribunal: "A service coordinator shall not determine that a person is ineligible...without first giving the person notice...." I hope he's speaking about something more than 36(2), because that's not an appeal by anybody's stretch of the imagination.

That's exactly what Ms Pupatello is talking about. I hope, since he brought up this business of appeal being there, that in addition to the other comments Ms Pupatello made by way of query, the PA would respond to that.

The Chair: Is your question to the parliamentary assistant, Mr Kormos? I didn't hear a question.

Mr Kormos: Yes, Chair, please.

Mr Carroll: Madam Chair, we've now moved up into a discussion of section 36. I would suggest that since we're dealing with section 32, possibly we should keep our comments to section 32.

Mrs Pupatello: I need to ask again if the parliamentary assistant is in a position to check with anyone in the next hour or so within the ministry to confirm that these kinds of examples do indeed fit the definition of "competitive" as laid out in the binder. People aren't going to have those kinds of concerns if you tell us: "It's pretty inclusive. It includes the kind of employment placements that are currently out there in the field." If you said that, if you at minimum were prepared to go out on a limb and say, "These kinds of activities that disabled individuals are currently engaging in constitute a move towards independence" -- whether that means four hours away from family members, that constitutes independence, would it? If the answer is yes, then people aren't going to be concerned that all those people who are never going to be in a position to be "competitive," to become more independent, and that that means financial -- that we're assured individuals like that are going to get employment supports.

Again my fear is that you've specifically outlined an area that is not appealable. I don't consider an internal review an appeal process, so I don't think the next section is applicable in any event. You've specifically outlined a special subsection that no appeals can be taken with regard to employment supports. That was very strange at the time, and the reason for that is, unless you have an intention of denying that, we know that coming up in the same area, in the same schedule B, will be an application for a director to consider going to the same individual and asking him to pay for employment supports.

When you get into the detail here -- and they say the devil is in the detail -- this is a hell of a beast. Time and time again throughout this section -- you waved the banner all over the bloody province about what a fabulous job you were doing for the disabled. When you get into the heart of the matter, you've got employment supports that may or may not be granted. When a decision is made it's not appealable. Maybe they're going to pay for them, and depending on what kind of work it is, they may not get them at all. That's the detail that is currently in this clause.

If what I'm telling you isn't true, you should be prepared for the sake of your own government's reputation in the disabled community to say, "Those kinds of employment placements today, even if they don't move them off the income system, are going to be supported with employment supports," if that was your intent, because that's what the people believe you to be doing. If you don't confirm that today, as we're going through this clause-by-clause, all I can suggest is that everything you've said before was a sham, it was all a lie, you're doing it and you're finding ways to take stuff away instead of giving stuff. If that's not true, then just confirm that it's not your intention to deny people employment supports based on being placed where they may not be moved off the system and into financial independence.

That's a question for the parliamentary assistant.

Mr Carroll: Madam Chair, I have nothing further to add to the discussion.

The Chair: Very well. Any further discussion? All in favour of the amendment? Just to remind you, we're dealing with 96A.

Mrs Pupatello: A recorded vote.

Ayes

Kormos, Pupatello.

Nays

Carroll, DeFaria, Bob Wood.

The Chair: The amendment is defeated.

Mr Carroll: I move that clause 32(2)(a) of schedule B to the bill be amended by striking out "physical, psychiatric, developmental or learning impairment" in the first and second lines and substituting "physical or mental impairment."

This amendment makes the definition of "disability" for the purposes of employment support consistent with the definition of "disability" for income support by including "mental impairment." "Mental impairment" covers psychiatric, developmental or learning impairments.

Mr Kormos: I was fascinated when I first read this amendment, because on the contrary, it would seem to delete learning impairment, delete developmental impairment and delete psychiatric impairment. I'm going to prevail upon Mr Carroll, and if I'm wrong please say so. Let's take the example of, let's say, an obsessive-compulsive personality disorder. The APA diagnostic manual clearly identifies obsessive-compulsive disorder as a psychiatric disorder. There will be those who will argue that it is not a mental impairment, that the two are entirely different animals, notwithstanding that an obsessive-compulsive personality disorder -- and we heard from people who were either family of or advocates for or survivors of psychiatric illness.

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I'm not suggesting Mr Carroll's doing anything underhanded here, but I'm concerned that he's just plain flat wrong when he says that "mental impairment" would include all psychiatric disorders that lead to impairment rather than exclude them. In fact, it seems to me that mental impairment would imply an impairment of cognitive functioning, which is far different from, let's say, a psychiatric illness like obsessive-compulsive personality disorder, like perhaps some cases of bipolar manic-depressive diseases, where there isn't a mental impairment. People suffering these psychiatric illnesses can retain all of their faculties in terms of their cognitive skills and their mental functioning, yet they still suffer a psychiatric illness. I am very concerned.

Again, developmental or learning impairment: I don't pretend to have any great expertise in this, any more so than laypeople would have, but dyslexia is a mental impairment as compared to a learning impairment? I would suggest that people with dyslexia are quite capable and oftentimes are extremely bright, extremely capable, but rather than suffering from a mental impairment they suffer from a learning disability more significantly consistent with learning impairment.

I really question the wisdom of this amendment. I think it's very, very dangerous. Mr Carroll suggests that "physical" -- physical, fine, but then he replaces "psychiatric, developmental or learning impairment" with "mental impairment."

I would like to ask him, is he suggesting that "mental impairment" is a more inclusive definition or a more exclusive definition? That is to say, is it his intention that "mental impairment" go beyond even merely "psychiatric, developmental or learning," since that's what he's replacing with "mental impairment" here?

Mr Carroll: As I understand from the hearings, this issue did come up. There was concern among that particular community that under the definition of "disability for income support" we would use "the person has a substantial physical or mental impairment," and that we would change the terminology when it came to employment supports. My understanding is that the terminology "mental impairment" is more inclusive than enunciating the three separate areas. For that reason we've responded to a request to be more consistent in how we're explaining this than we were under the original act.

Mr Kormos: I thank you for that, Mr Carroll. Can I put a very direct question? Is it therefore the intention of the government, by replacing "psychiatric, developmental or learning impairment" with the words "mental impairment," to include not only those three previous things but even more?

Mr Carroll: I don't know whether I can be that specific on that particular issue because I'm not that familiar with the "even more," but my understanding is that it is much more inclusive terminology than specifically stating those three, that it opens up for more types of mental impairment to be included than being specific with the three.

Mr Kormos: I obviously have no quarrel with that, sir. Let's make it clear what I'm trying to do, and that's why for you merely to say "I understand" -- you're the PA, and obviously I'm trying very hard on some of these issues to make a record as to the intent of the government so that should, down the road, some legal interpretation be advocated or advanced that's inconsistent with the intent of the government, there's a record here -- not that it's conclusive in its own right but that there's a record here. I'm not trying to play dirty pool. I'm just asking you if you would be prepared to say that the intention of "mental impairment" is to include psychiatric, developmental or learning impairment.

Mr Carroll: The intention of "mental impairment" -- and I'll stand to be corrected if I'm not right -- is to be more inclusive than to specifically mention "psychiatric, developmental or learning impairment."

Mr Kormos: Thank you. I appreciate that.

Mr Carroll: The counsel from the ministry agrees that's the intention of changing the wording.

The Chair: Further discussion? All in favour of the amendment? Opposed? The amendment carries.

Shall section 32, as amended, carry? All in favour? Opposed? The section carries.

Section 33:

Mrs Pupatello: I move that section 33 of schedule B to the bill be amended,

(a) by adding "and" at the end of clause (a);

(b) by striking out "competitive" in the second line of clause (b); and

(c) by striking out clauses (c) and (d).

If I may just direct you to what those are: In particular, striking out clauses (c) and (d) would be our request to amend by deletion clause (c), which says "member of a class of persons prescribed to be ineligible for employment supports." We don't know who those people are. We have no idea what's going to be prescribed in terms of the class.

Second, (d) "the person enters into a funding agreement with a service coordinator based on a competitive employment plan." Once again we don't have enough information to allow a clause like that to stand without, at minimum, having seen the regulations in advance in terms of what that could potentially mean. For example, can that be interpreted to mean the funding agreement is that the service coordinator is going to place an individual with disabilities into competitive employment and then be able to garnish a portion of wages as payment? Is it going to be a head tax that's charged by anyone who gets placed? These are the kinds of questions that strike me immediately when I see that the person is to enter into a funding agreement, and unless they're prepared to do it, they will not be able to be eligible for employment supports.

You see, you've got them coming and going with this section. If they don't agree to what you're setting out, they don't get the employment supports, so their back is against the wall. Either they sign on the dotted line or that's it, they're not getting employment supports.

If the government meant to come forward with this bill because it was a gravy train for the disabled community in Ontario, it just is not showing up here in clause-by-clause. We have yet another section where we don't know what "enters into a funding agreement" means. I suggest it be withdrawn. Subsection (c), yet another, "member of a class of persons prescribed." We have no idea of what that means and we have a great deal of difficulty with both of those.

Going to (a) and (b) of the amendment I'm proposing, that we add the word "and" at the end of subsection (a) and strike out "competitive" for all of the reasons that we gave earlier, we do not know what "competitive" means, nor has any description given so far been substantial enough for us to have any comfort with this area.

The Chair: Further discussion? All in favour of the amendment?

Mr Kormos: Recorded vote, please.

Ayes

Kormos, Pupatello.

Nays

Carroll, DeFaria, Preston, Bob Wood.

The Chair: The amendment is defeated.

Mr Kormos: I move that section 33 of schedule B to the bill be amended,

(a) by striking out "competitive" in the second line of clause (b);

(b) by adding "and" at the end of clause (b);

(c) by striking out clause (c); and

(d) by striking out "a competitive" in the last line of clause (d) and substituting "an."

This is similar to Mrs Pupatello's amendment but somewhat narrower, which is why it isn't out of order. The arguments she made which I joined with are essentially the arguments in support of this as well.

The Chair: Further discussion? All in favour of the amendment?

Mr Kormos: Recorded vote, please.

Ayes

Kormos, Pupatello.

Nays

Carroll, DeFaria, Preston, Bob Wood.

The Chair: The amendment is defeated.

Shall section 33 carry? All in favour? Opposed? The section carries.

Section 34, any discussion? Shall section 34 carry? All in favour? Opposed? The section is carried.

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Section 35:

Mrs Pupatello: I move that subsection 35(1) of schedule B to the bill be amended by striking out "and" at the end of clause (a) and by striking out clause (b).

If I may turn you to that on page 47 of the bill, 35(b) is very interesting. It says:

"(b) the amount of financial contribution, if any, to be made by the person applying toward the cost of providing employment supports."

I find this most interesting. They keep trying to get headlines, this government, about how much more money they're spending for the disabled community, yet we find time and time again that there are all kinds of little clauses here and there that talk about when they're not giving employment supports, not when they are; about how they are going to sign on the dotted line in order to get the placement or they don't get the employment supports; about how the employment supports aren't appealable, about all of those things.

Now we have the amount the persons themselves will have to pay towards the employment supports. We are putting in millions of dollars, supposedly, in this area, and I don't see where you have extended the definitions anywhere or added clauses that we've recommended you do in order to be most inclusive of people you've already succeeded in getting over the bar to meet the criteria of your new definitions. You've been very stringent in terms of how you've described people with substantial disabilities who now meet your criteria to be disabled. Here they are, in ODSP, and now as we go through, those who are going to get employment supports are going through an absolute obstacle course in order to get there, depending on the placement: "Is it competitive? Will I sign on the dotted line? Is it a funding agreement?" This is the kind of thing that creates a higher and higher level of distrust in the government.

This one is unbelievable:

"(b) the amount of financial contribution...to be made by the person applying toward the cost of providing employment supports."

What does that mean? You pay the first $10,000 and the government pays the second $10,000? When they make the financial contribution towards it, is it before or after they get the placement and start receiving income? If they choose not to pay it because they feel they can't afford it, is it deducted from the income they're receiving on ODSP?

Those are the kinds of questions I'm left wondering about that simply are not set out, not because you've provided them in regulations; we don't even know that. Evidence so far dictates that the parliamentary assistant himself doesn't even know the contents of the regulations that are going to be coming. These kinds of questions give us great cause for concern, grave concern. I can see at every turn some area that you've managed to tell people no, but you've already got the headlines, so you've got no interest now in making sure that your bill is truly reflective, to be most inclusive of those people you've already managed to say have to get over the bar.

I'd like to see some kind of amendment of ours being passed here so that you can say: "No, no, you guys are crazy. These concerns are just unfounded." I want to see this amendment passed so you can tell me, "No, no, this is unfounded." Strike out that clause.

The people who would have been in a position to pay for employment support wouldn't have come to the government for assistance in the first place. That just makes eminent good sense to me. If you're not going to do this, I need to hear very concrete logic to tell me why on earth you would have put in this clause in the first place. I ask the parliamentary assistant that.

Mr Carroll: If Ms Pupatello had read her briefing binder, she would know that the minister announced what the government's intentions were here on June 5, that where people have a higher income, over $52,000 in taxable income, they could be reasonably expected at that point to provide something towards their employment supports. That is why that particular clause (b) is in there.

Mr Kormos: The briefing notes are not part of the legislation, nor are they part of the regulations. We've heard so many people from within this government, both before and after their election, make so many promises. We heard the Premier promise that he had no plans to shut down any hospitals. We heard the Premier promise, both before and after, that not a penny was going to be removed from education.

Ms Pupatello is, in my view, quite astute in her comments, because what we're observing more and more is the fraud of schedule B, being something other than a General Welfare Assistance Act. We talked a few moments ago about the controlled praise that some members of the community of persons with disabilities had. When you look at how all this becomes very circular, notwithstanding what Mr Carroll just said about his amendment to 32(2)(a), where he restricted it to physical or mental impairment, it all comes down to income, because we've still got discretion as to employment supports.

The ultimate test is still going to be income at the end of the day, and that makes it so eminently identical to schedule A which is, let's call it what it is, the old General Welfare Assistance Act, especially after the section regarding exemption from other provincial statutes was voted down by the committee yesterday, eliminating workfare. It's the old General Welfare Assistance Act, probably back 40 or 50 years. The ultimate test here is still going to be income: "the amount of financial contribution, if any, to be made by the person applying...." That's why there's discretion as to the provision of employment supports. That's why there are going to be proscribed employment supports as well as prescribed employment supports. That's why the test is competitive employment.

Once again, as Ms Pupatello pointed out, at the end of the day, if you have a wealthy person who lives with a disability, who is a member of the community of persons with disabilities, or a person who has a prosperous job with a good income, they're not going to be coming to the local service provider. The fact is that the vast majority of persons with disabilities is poor. This government is going to keep them poor with the structure of this bill, and at the end of the day its offer of employment supports is going to be the crudest, saddest and most fraudulent lip-service to a huge community in this province that deserves far, far better.

I obviously support Ms Pupatello's amendment.

Mrs Pupatello: Just to continue, in response to the parliamentary assistant's comments regarding an income level as designated in the binder, not in regulations and certainly not in the bill, if I take the parliamentary assistant back to 5(c), if the parliamentary assistant has the bill, it says:

"(c) the budgetary requirements of the person and any dependants exceed their income and their assets do not exceed the prescribed limits, as provided for in the regulations."

To come to me in some kind of manner to tell me, "This is what the binder says, which actually sets out a limit" -- the number means absolutely nothing because you haven't given us the regulations as prescribed that tell us where that level is going to be set to begin with. By giving that kind of answer -- I don't know if you're just trying to be smart or whether it's just because I didn't bring my binder with me -- you presume I haven't read it and therefore don't understand it. I don't know if you're trying to be patronizing with me, but the truth is, at every turn you have not given us a significant piece of information to understand if the level that is identified in some other part of the binder is even going to be sufficient. I don't know if it's just the kind of footnote they gave you to read on this page or what, I'm just talking straight logic.

The truth is that the people who would be at a higher level of income that the parliamentary assistant believes to be high enough to pay employment supports could very likely be high enough to make them ineligible to ever get on the system, and $52,000 a year, depending on the disability and the expense of that disability, may or may not be that level. We don't know because you haven't told us in regulations.

I'd appreciate some straight facts here and, frankly, some straight answers. Our concerns are real. You haven't presented anything to prove to me our concerns are unfounded. In fact I think they are very much founded and they continue to be repeated throughout schedule B of this bill. Moreover, in the end, skipping right through, as to the appealability of this section, you've taken that right away. In answer to that you say, "No, no, because you get it in another section." Oh no, you don't get it in another section. Throwing little numbers out about other sections isn't going to fool us because in the end you're going to be tried for exactly what we read here.

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The Chair: Further discussion? Shall the motion carry?

Mrs Pupatello: Recorded vote.

Ayes

Kormos, Pupatello.

Nays

Carroll, DeFaria, Preston, Bob Wood.

The Chair: The amendment is defeated.

Shall section 35 carry? All in favour? Opposed? The section carries.

Mr Kormos: I move that clause 36(1)(c) of schedule B to the bill be struck out.

The Chair: Mr Kormos, I believe it's Mrs Pupatello.

Mr Kormos: My apologies, but it might be safer -- no, it's up to Ms Pupatello. I'm not sure which of these amendments -- I appreciate there might be a different order. I'm just considering. I'll defer to Ms Pupatello.

Mrs Pupatello: Could you give me a moment?

The Chair: We are at 99B at the moment.

Mrs Pupatello: I'll withdraw.

The Chair: The amendment is withdrawn.

Mr Kormos: If I may, I would simply suggest to Ms Pupatello that she defer to me, without withdrawing her motion.

The Chair: You can do that, if you wish.

Mrs Pupatello: That would be great.

The Chair: All right. Mr Kormos.

Mr Kormos: I move that clause --

Mr Carroll: Chair, could you explain what just happened?

The Chair: Mrs Pupatello changed the order of her motion with that of Mr Kormos.

Mr Carroll: I thought she said she withdrew it and you said it was withdrawn. Isn't that what happened? I thought that happened. Correct me if I'm wrong. Did she not say, "I withdraw it," and you say, "It is withdrawn?"

Mr Kormos: She said, "Quick-draw McGraw."

Mr Carroll: No, tell me if that's not right.

The Chair: Mrs Pupatello did say she was withdrawing it and she then changed her mind.

Mr Carroll: Did you not accept that it was withdrawn?

The Chair: I did accept that it was withdrawn.

Mr Carroll: Then I would guess it's withdrawn.

The Chair: You have a valid point, Mr Carroll.

Mr Preston: What are you going to do about the valid point?

The Chair: I'm sorry?

Mr Preston: If he has a valid point, what are you going to do about the valid point?

The Chair: It's withdrawn and we're going on to Mr Kormos.

Mr Kormos: I move that clause 36(1)(c) of schedule B to the bill be struck out.

If I may speak to this, Chair, I should indicate that it's unfortunate these things are numbered and ordered because this obviously deletes all of 36(1)(c), and the Liberal amendment clearly only deletes one word of (1)(c) so it's unfortunate that the committee --

Mrs Pupatello: Because it might remind them of the past.

Mr Kormos: Well, I'm not sure of that but it would have provided an option for the committee, in view of what they've said about competitive employment all along --

Mr Preston: A point of order, Madam Chair?

The Chair: We are talking about the motion on page 100, Mr Kormos.

Mr Kormos: Quite right.

Mr Preston: Madam Chair, on a point of order: The committee had nothing to do with this. It was the Chair's ruling that withdrew the motion. The committee had nothing to do with it.

The Chair: Mr Preston, you're quite right. However, in a spirit of consensus, we might have allowed Mrs Pupatello to change her mind as in fact she did.

Mr Preston: You would have gone back on your ruling?

The Chair: I have ruled that we are moving on, Mr Preston. Mr Kormos.

Mr Kormos: The Chair is the committee and the committee is the Chair. You speak for all of us.

The Chair: Mr Kormos, I don't want to revisit the issue. Please proceed with the motion on page 100.

Mr Kormos: I'm not, Chair. Trust me.

I'm speaking to my motion to delete clause 36(1)(c).

This is a nasty little clause in here because it submits persons with disabilities to the prospect of a meat chart, the prospect of somebody else's expectation as to their progress during the course of rehabilitation. Let me put it this way: Whatever employment supports are being provided, obviously if the person utilizing those employment supports feels they're not being in any way successful, that person, she or he, is going to be the first person to say, "Don't submit me to that," or "Don't expect me to undergo this particular process."

Again it's the service coordinator. I'm scared out of my skin by an HMO model for service provision. I recall all too well the concerns that were expressed about that on several occasions and the potential for cherry-picking. Where you've got a contract provider and it's a privatized for-profit service, they are going to, as I say, cherry-pick or high-grade.

They are going to want to take the people who have disabilities which are most readily dealt with or accommodated or responded to, and ignore the people whose disabilities are such that their rehab rate is far less speedy. I am very concerned about this, especially because once we move beyond this amendment, we'll then have to talk about 36(2) and Mr Carroll will have to defend the absence of appeal rights because once again here, 36(1)(c), in the absence of appeal rights, makes victims of people with disabilities and has the potential to cruelly punish them for being disabled.

Mr Carroll: Just for the sake of prolonging this, because really, we have discussed this on several occasions, everybody, I would just kind of point out to Mr Kormos that we see an employment plan being entered into between the recipient and the provider of the employment supports, and we see that comprising some elements: one being a goal they would agree on; another one being identification of the supports required to achieve that goal; another one being progress milestones so that progress can be evaluated; the fourth one being a funding application so that once everyone had agreed on the goal, the milestones to get to the goal, the supports required to get to the goal, then the funding could be established to meet that goal. If in fact that plan was not working, then all persons involved would probably say: "Well, the plan is not working. It's time to make some changes to it."

I think it's a reasonable plan that empowers the person who has a disability, who can get some help. It empowers them to go and be part of a plan to improve their particular position. It puts some responsibility on the supplier of the services and on the person who is going to get the services to agree on where this whole process should go and build some accountability into it. It is consistent with the government's goal to improve the employment support program for people with disabilities. For that reason we cannot entertain this particular amendment.

The Chair: Further comments or discussion?

Mr Kormos: Recorded, please.

The Chair: All right. All in favour of the amendment, recorded vote?

Ayes

Kormos, Pupatello.

Nays

Carroll, DeFaria, Preston, Bob Wood.

The Chair: The amendment is defeated.

Shall section 36 carry? All in favour?

Mr Kormos: One moment, Chair, please.

The Chair: Mr Kormos?

Mr Kormos: Debate on 36?

The Chair: Well, 36(1)(c) was your motion.

Mr Kormos: Yes.

The Chair: And? I'm sorry, I'm not hearing you.

Mr Kormos: There are no further amendments to 36, so if we can engage in some discussion about section 36 as it stands, unamended, please.

The Chair: All right. I asked if there was any further discussion before we went to the vote on the section, but you want to talk about the section in general and not your amendment. Is that correct?

Mr Kormos: Yes, ma'am.

The Chair: Very well then.

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Mr Kormos: Subsection 36(2): Ms Pupatello has been after Mr Carroll for some time now. Quite frankly, she has been concerned, as have I, as have a whole lot of folks in the province, about the lack of appeal rights. She made reference to this earlier this afternoon. Let me ask Mr Carroll, please, is subsection 36(2) what you call appeal rights, when you indicated to Ms Pupatello earlier this afternoon that indeed there were appeal rights on the issue of employment supports?

Mr Carroll: Subsection 36(2) lays out the rights and 36 (3) is the process.

Mr Kormos: You're suggesting this is the appeal rights you're talking about.

Mr Carroll: Yes, I am.

Mr Kormos: Why, may I ask, are the appeal rights not parallel to the appeal rights in other parts of the bill, to the tribunal, and then, as you put it, on a matter of law alone, because the mixed fact or law, or law alone, wasn't deemed appropriate by your government? Why shouldn't the person have the same appeal rights on the issue of employment supports as they do on other areas of schedules A and B?

Mr Carroll: As I understand it, because it's a different process does not mean they don't have the same rights. I don't understand why, moving to a different process that would be established at arm's length from the provider, why access to that process for appeals would be construed as being less option for appeal than going through the tribunal just because it's a different process.

Mr Kormos: Mr Carroll, please, let's take a look at 36(2) and let's look at it very carefully -- "an opportunity to respond" to the person whose employment supports are deemed ineligible or suspended or cancelled "in accordance with the service coordinator's dispute resolution process." Nobody in the free world would regard that as an arm's-length appeal. This is the sort of stuff that Stalin and Khrushchev would have revelled in. Nobody's sense of fairness, nobody's sense of natural justice, nobody's sense of due process would ever permit the conclusion that this is an arm's-length appeal -- "the service coordinator's dispute resolution process."

It doesn't suggest -- and I read it in conjunction with subsection (3) -- the utilization of an external body or agency or even individual, and who sets up the process but the service coordinator. They make the rules and then they control the dispute resolution process and there's no appeal from it.

Mr Carroll, I understand what you're trying to say, but how is a dispute resolution process set out by the service coordinator and the process to be determined by the service coordinator an arm's-length adjudication?

Mr Carroll: Subsection 36(3): "Each service coordinator shall establish a dispute resolution process for the purposes of subsection (2)." That dispute resolution process that would have to be set up would be an independent, arm's-length committee to review the decisions.

Mr Kormos: I understand that's what the briefing notes say. Why is it so difficult for the bill to say that? When you say "shall establish a dispute resolution process," it doesn't say, "shall appoint a body to establish, subject to the approval of the minister or subject to whatever's prescribed." Very clearly the law contradicts the statute here, contradicts what your briefing notes say: "Each service coordinator shall establish a dispute resolution process...." It doesn't say anything about arm's length. It doesn't determine the test. It doesn't set any standard here.

You know, please, that the service coordinator is going to have a strong self-interest. It has incredible power. Everybody acknowledges that. We understand that. It's discretionary as to the provision, sans appeal, and then the dispute resolution process isn't determined in the bill to be arm's-length. There isn't a design or a model.

Some service coordinators, because we're going to have districts across the province, may well set up a meaningful dispute resolution process. Others may not. Where's the equality from region to region in terms of service delivery areas in the province? There are no standards here and there's quite frankly no suggestion, although I appreciate that the regulation-making powers are very broad -- you could respond by saying that the province will make regulations concerning that, and that would be a perfectly consistent thing for you to say, but surely something that essential, something that crucial -- I'm being a little rhetorical, aren't I, because I know the answer. Since it's discretionary, appeal is irrelevant, and dispute resolution doesn't constitute adjudication.

Take, for example, up there in North York, the Automobile Insurance Board with its dispute resolution. It in no way adjudicates but merely tries to get two parties to agree. At the end of the day that's the long and short of it. In the dispute resolution process it doesn't even indicate that it's going to be binding. It's not like mediation. I would understand and it would be a little clearer if you say there will be a mediation process, the decision of which will be binding, especially if it were a tripartite mediation and it will be binding. It's a dispute resolution process. You know what those are. Come on. The auto industry has one to avoid lemon-aid laws in this province, but it's controlled by the auto industry. The Automobile Insurance Board has one to deal with grievances, complaints about payouts on no-faults, but again it's primarily an industry-dominated one.

Mr Carroll, please, this is very transparent legislation. I understand what you said about the briefing notes. You've been a good soldier for the minister, for the government. On this one, I think you've got to concede this isn't much by way of appeal right. Maybe you don't.

Mr Carroll: The only comment I'd like to make, just to finish the discussion, is again 36(3): "Each service coordinator shall establish a dispute resolution process for the purposes of subsection (2)," and then paragraph 37 of subsection 54(1), regulation-making power and "prescribing standards for the dispute resolution process" referred to "in subsection 36(3)." Mr Kormos, that is the process. It's laid out.

Mr Kormos: But I answered your question for you. I said that's what you were going to do.

Mr Carroll: I was just confirming that you were right.

Mr Kormos: It's almost as if I can read minds. They're so predictable.

The Chair: Any further discussion?

Mr Kormos: Recorded vote, please.

The Chair: Shall section 36 carry?

Ayes

Carroll, DeFaria, Preston, Wood.

Nays

Kormos, Pupatello.

The Chair: The section carries.

Mrs Pupatello: Chair, I'd like to request a recess, please.

The Chair: We need unanimous consent for a recess. Do we have consensus for a recess? For how long, Mrs Pupatello?

Mrs Pupatello: Ten minutes would be sufficient for me -- or 15, please.

The Chair: No objection?

Mr Carroll: Everybody understands we're under a restriction of 5 o'clock.

Mrs Pupatello: We realize.

The Chair: We're back at 4:15.

The committee recessed from 1559 to 1614.

The Chair: We're back in session. We have sections 37 to 45. There have been no motions with respect to these sections. Is there any discussion?

Mr Kormos: Section 45?

The Chair: Sections 37 to 45. Any discussion? Shall sections 37 to 45 carry? All in favour? Against? Sections 37 to 45 are carried.

Section 46, Mr Kormos.

Mr Kormos: We're opposed to this in the strongest terms. This is a search warrant provision. This is a serious breach and violation of people --

Mr Preston: A point of order, Madam Chair.

The Chair: Just a second, Mr Preston, we're trying to find the material here. Here we go. My apologies, I'm on the wrong page. Mr Kormos, your motion is out of order. You can speak to the section if you wish.

Mr Kormos: Of course. That's why I was speaking to the section.

Mr Preston: That was my point of order.

The Chair: Thank you very much.

Mr Kormos: This gives the eligibility review officers -- it isn't under the section that's dealing with so-called fraud control units, which are a little bit of a sham to begin with. We are adamantly opposed to section 46 and we'll be voting against it.

The Chair: The next motion is a Liberal motion that's also out of order for the same reason.

Mrs Pupatello: May I speak to that?

The Chair: You may speak to the section.

Mrs Pupatello: I would like to speak to the section that does in fact talk about the kinds of designations that will occur under the director. The director may be appointing persons as eligibility review officers. You'll note that in subsection 46(2) it talks about the "powers including, if it is so prescribed," and of course we don't know what that is, "the authority to apply for a search warrant and act under it."

I would tell you that this is a very inappropriate place to give that kind of authority to an individual, that a director is going to designate someone in their department to be this ERO. The difficulty that we have and that we've confirmed out there in the field is that these individuals who may be designated are not people who are going to have the kind of training required to apply for and act under a search warrant. Police officers who do this as a part of their duty spend two years at a police college. They spend an enormous amount of time learning all of the details required to be able to apply for a search warrant.

I feel you're setting yourself up for failure as a government, because if this area is not done properly, when it comes to court the likelihood is much greater that it will be thrown out because individuals who have gone through the process of applying for a search warrant haven't done it properly because they haven't been trained to. Any suggestion that you're going to bump up the training allotment for departments in order for these people to get training just simply isn't believable, because you've made cuts to this ministry, along with all of the others, and they have not had training budgets used for some time already.

The fact of the matter is that while you think you're giving yourself more authority to get in there and get those fraudulent people, you're setting it up in a way that is doomed to fail. I would strongly encourage that this be completely eliminated and that we would be voting against this section.

The Chair: Any further discussion on section 46? Shall section 46 carry? All in favour? Opposed? The section carries.

Section 47, Mrs Pupatello.

Mrs Pupatello: I move that subsection 47(1) of schedule B to the bill be amended by inserting after "director" in the first line "on the agreement of the recipient."

If we look at that section 47 it talks about, "Designate persons as family support workers to assist applicants for income support, recipients and dependants in taking whatever action is necessary." We believe that this kind of section, as it is written, should certainly include the agreement of the recipient.

The Chair: Further comments? All in favour of the amendment? Opposed? The amendment is defeated.

Mrs Pupatello: I move that subsection 47(2) of schedule B to the bill be amended by adding at the end "within the parameters of freedom of information and protection of privacy legislation."

I think that should be there without saying and doesn't need any further discussion.

The Chair: Any further discussion? All in favour of the amendment? Opposed? The amendment is defeated.

Shall section 47 carry? All in favour? Opposed? The section is carried.

There are no motions to section 48. Any discussion? Shall section 48 carry? All in favour? Opposed? The section is carried.

Section 49, Mrs Pupatello.

Mrs Pupatello: I move that section 49 of schedule B to the bill be amended by striking out "related to a child who has a severe disability" at the end and substituting "related to a person's substantial disability or the treatment thereof."

The Chair: Discussion? All in favour of the amendment? Opposed? The amendment is defeated.

Mr Kormos: I move that section 49 of schedule B to the bill be amended by striking out "severe" in the last line and substituting "significant."

This is a somewhat narrower amendment than Ms Pupatello's amendment, which I supported. The government may see fit to support this. I don't have to speak about the enormous burden that families undertake in being the caretakers of a person with a disability. "Severe," once again, is at incredibly high thresholds; "significant," I think, addresses the realities.

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Mr Carroll: I'd just like to comment briefly. The eligibility for handicapped children's benefits, the status quo currently uses the term "severe."

The Chair: Any further discussion?

Mr Kormos: I was looking forward to some reform.

The Chair: All in favour of the amendment? Opposed? The amendment is defeated.

Shall section 49 carry? All in favour? Opposed? The section carries.

Section 50.

Mrs Pupatello: I move that section 50 of the bill be amended by adding at the end "unless the person to whom notice is given did not, through absence, accident, illness or other cause beyond his or her control, receive the notice until a later date." This does speak to some of the comments made by government members where they can justifiably reason that notice could not be received in time and that there would be some allowance where there's some kind of reason beyond his or her control that the notice was not received until a later date. It does allow people a little bit of leeway, given the circumstances that you may find more prevalent in this community that we're dealing with.

The Chair: Further discussion?

Mr Kormos: If I may, very quickly, and I obviously support this, let's understand where people who have low incomes live and how they live. They don't have neat little detached homes with neat little mail slots on their front doors. One doesn't have to travel far to see that poor people, be it because they're disabled or otherwise, live in situations where they don't enjoy the luxury of nice, orderly lives, including nice, orderly, neat mail delivery. I think this is an entirely appropriate amendment.

The Chair: Further discussion? All in favour of the amendment?

Mrs Pupatello: Recorded vote.

Ayes

Kormos, Pupatello.

Nays

Carroll, DeFaria, Preston, Bob Wood.

The Chair: The amendment is defeated. Mr Kormos.

Mr Kormos: Withdrawn.

The Chair: Shall section 50 carry? All in favour? Opposed? The section carries.

Section 51: Any discussion? Shall section 51 carry? All in favour? Opposed? The section carries.

Section 52.

Mr Carroll: I move that section 52 of schedule B to the bill be struck out and the following substituted:

"Subrogation

"52(1) If a person suffers a loss as a result of a wrongful act or omission of another person and if, as a result of the loss, the person receives income support or employment supports under this act, the director or service coordinator is subrogated to any right of the person to recover damages or compensation for the loss.

"Same

"(2) A proceeding may be commenced in the name of the director or service coordinator or in the name of the person who suffered the loss.

"Same

"(3) A claim under this section shall not exceed the total of,

"(a) the costs incurred as a result of the loss for past income support or employment support provided to the person;

"(b) the costs likely to be incurred as a result of that loss for future income support or employment support;

"(c) the costs incurred as a result of that loss for social assistance provided under the General Welfare Assistance Act, the Family Benefits Act or the Ontario Works Act, 1997, or assistance under the Vocational Rehabilitation Services Act by the person responsible in each case for administering that act; and

"(d) the costs incurred as a result of that loss under a prescribed statute.

"Same

"(4) An applicant for or recipient of income support or employment supports shall forthwith notify the director or the service coordinator, as the case may be, of any action brought against a person to recover damages or compensation for a loss referred to in subsection (1)."

The Chair: Discussion?

Mr Carroll: The rationale behind this: This amendment clarifies in whose name proceedings may be brought. It also ensures that the right to recover public funds is broad enough to include damages or compensation arising out of breach-of-contract situations. This provision also ensures the ministry's or the delivery agent's right to be subrogated to a person's claim for any damages or compensation. The amendment requires an applicant or recipient to notify the director, delivery agent or service coordinator of an action taken against the party who caused the loss suffered by the applicant recipient. In addition, clause 54(3)(d) allows for the recovery of claims ordered under another statute.

Mr Kormos: Very quickly, I'm interested in the rationale for deleting "negligence" in making this "wrongful act or omission" unless the government is of the view that "wrongful act" includes negligence. I understand the balance of it. I'm concerned because I anticipate, for instance, with the privatization of workers' compensation and the possible deletion of the no-fault element of workers' compensation, workers being -- I appreciate this replicates some existing obligations on the part of a welfare or assistance recipient, but obviously one of the issues here is going to be compensation for pain and suffering, which should not be confused with income and income loss. Assistance is there to provide for income loss. I'll be dealing with that subject later.

The Chair: Further discussion?

Mr Kormos: Can I ask just quickly about the omission of "negligence?"

Mr Carroll: I'm going to ask counsel to answer that question for you.

Ms Fraser: I apologize. Could I ask to have the question repeated?

Mr Kormos: The original wording said "as a result of...negligence...wrongful act or omission." The amendment says "wrongful act or omission." I'm just interested: Why did you delete "negligence?"

Ms Fraser: The original section said "negligence or some other wrongful act or omission." The concern was, when we reviewed that drafting, that it might exclude a breach of contract. That was never our intention. We wanted to ensure that even a breach of contract could be covered by this section. We changed it to say "wrongful act or omission," which does indeed include both negligence and breach of contract.

The Chair: Any further discussion? All in favour of the amendment? Opposed? The amendment carries.

Mr Kormos, your motion is out of order, given the fact that we just passed the government motion.

Mr Kormos: One moment if I may, Chair. Au contraire.

The Chair: Au contraire?

Mr Kormos: Yes, because it still amends section 52 even as amended by the government. The government has basically created a new 52 to which my amendment is still relevant.

The Chair: You may certainly speak to the section if you wish, but your amendment is to section 52, schedule B to the bill. We've just passed the government amendment to that section.

Mr Kormos: I'll not argue the issue.

The Chair: That's the issue, but do you have anything to say?

Mr Kormos: Obviously the concern we have is the inclusion inherently in your language of the loss of pain and suffering. Again, the lawyers here can speak to that more thoroughly, but compensation for pain and suffering clearly isn't compensation for loss of income. One can understand the subrogation of rights for loss of income. Pain and suffering is grossly inadequate but as close as we can get in hopefully a civilized society to compensating people for that non-economic loss; that is to say, their pain and suffering. We seek an exemption of pain and suffering with a ubiquitous exception there. I say it's ubiquitous because it's been around so long. We just think it's grossly unfair that pain and suffering be considered income.

The Chair: Further discussion? Shall section 52, as amended, carry? All in favour? Opposed? The section, as amended, carries.

Section 53.

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Mr Carroll: I move that subsections 53(7) and (8) of schedule B to the bill be struck out and the following substituted:

"Personal information disclosed

"(7) A body under paragraph 4 of subsection (1) may disclose personal information in its possession to the director if the information is necessary for purposes related to the director's powers and duties under this act.

"Confidentiality provisions in other acts

"(8) Subsection (7) prevails over a provision in any other act, other than the Freedom of Information and Protection of Privacy Act or the Municipal Freedom of Information and Protection of Privacy Act, that would prevent such disclosure."

This amendment responds to the requests of the Information and Privacy Commissioner. It provides the necessary authority for disclosure by a third party which may or may not have a statutory provision in its governing legislation preventing such disclosures. The amendment clarifies that the privacy legislation continues to apply.

The Chair: Further discussion? All in favour of the amendment? Opposed? The amendment carries. Mr Carroll.

Mr Carroll: I move that section 53 of schedule B to the bill be amended by adding the following subsection:

"Accuracy of information

"(12) The minister shall take reasonable measures to seek assurances that information collected under this section is accurate and current."

This amendment responds again to the request of the Information and Privacy Commissioner. It provides increased assurance that data collected by the director, and upon which decisions affecting eligibility are made, are accurate and current.

The Chair: Further discussion? All in favour of the amendment? Opposed? The amendment carries.

Shall section 53, as amended, carry? All in favour? Opposed? The section, as amended, carries.

Section 53.1.

Mr Carroll: I move that schedule B to the bill be amended by adding the following section:

"Sharing of information

"53.1 The minister and the director may share with one another and with the director and each delivery agent under the Ontario Works Act, 1997 personal information in their possession and collected under this act, the Ontario Works Act, 1997, the Family Benefits Act, the General Welfare Assistance Act or the Vocational Rehabilitation Services Act if the information is necessary for the purposes related to their powers and duties under this act or the Ontario Works Act, 1997."

This is necessary to provide specific authority for personal information related to Ontario Works, Ontario disability support, general welfare assistance, the Family Benefits Act or the Vocational Rehabilitation Services Act to be shared between the minister and director and each delivery agent under the Ontario Works Act for the proper administration of Ontario Works or ODSP.

Mrs Pupatello: Does this include the sharing of information with a private company if that delivery agent is in fact a private company?

Mr Carroll: I didn't hear the question.

Mrs Pupatello: This would include the sharing of information with a private company if the private company is then deemed to be the delivery agent in a particular region?

Mr Carroll: It says, "The minister and the director may share with one another and with the director and each delivery agent," so whoever that delivery agent is would be included under this.

Mrs Pupatello: So that would include a private company?

Mr Carroll: It would include a delivery agent.

Mrs Pupatello: Could I get staff to respond if that would include a private company if the delivery agent is --

Mr Carroll: The act is very clear. It says "each delivery agent." It doesn't preclude whoever that might be.

Mrs Pupatello: Could I get some kind of idea from the staff?

Mr Carroll: Chair, the answer to the question has been given.

The Chair: Mrs Pupatello, the question has been answered.

Mrs Pupatello: Well, it hasn't been answered, actually. It has just been repeated back to me. Clearly it's not an answer.

The Chair: Mr Carroll can answer the question in any way he wants.

Mrs Pupatello: Well, I need to know this, because we would need to know then that the tendering process that's going to be put in place to get a private company to be the delivery agent is going to include some kind of clause that makes it now subject to the same rules etc, so when that does come to bear, we can actually check that. Do you understand the purpose for the question?

Mr Carroll: I'm sure, should that eventuality arise some time in the future, that the provisions in this section of the act would apply.

Mrs Pupatello: To a private firm?

Mr Carroll: To any delivery agent.

The Chair: I think we have covered it. Any further discussion? All in favour of section 53.1? Opposed? The section is carried.

Mr Carroll: On a point of order, Madam Chair: I'll bring this up now, because it is 4:40 and I'm not sure exactly where we'll be. We have an amendment in the file to sections 54.1 and 54.2. It's page 119 and it deals with the whole area of biometric information. The same amendment is over on page 58 in the Ontario Works section. In drafting these amendments, the leg counsel folks were instructed to draft these identically, and there is one small difference in section 5 of these amendments.

If you will read page 58, paragraph 5 says, "To enable an individual to make a declaration electronically by voice or other means for any purposes authorized under this act." Page 119 is supposed to be identical, but as you can see, it says, "To enable an individual to make a declaration by voice or other electronic means for any purposes authorized under this act." In fact, the words "electronically by voice" -- there is just a slight change in the wording there. It should have been the same. What I'm asking for is unanimous consent that in the amendment on page 119 to sections 54.1 and 54.2, we be allowed to substitute a corrected amendment with the proper wording in it that reflects the instructions given to leg counsel when they drafted the amendment and which is consistent with page 58.

Mr Kormos: I understand what Mr Carroll is attempting to do, but surely we are to go through these amendments one at a time, in order, and the time for him to request that, it seems to me, would be when it's time for him to move his motion.

Mr Carroll: Mr Kormos, I understand, except that after 5 o'clock we can't do anything like this. That's why I had to do it now.

Mr Kormos: Remarkable.

Mr Carroll: I'm just asking unanimous consent.

Mr Preston: Madam Chair?

The Chair: Mrs Pupatello was first, and then I'll listen to you, Mr Preston.

Mrs Pupatello: If we chose to allow that change, it would have to be under, and only under, the case that the legal interpretation word would change and not the change of the amendment, so the Chair would have to approve that it's a legal word change, which is the only way we could change the amendment.

Mr Preston: As far as taking these amendments in order, I believe we made a great -- well, we went along with the NDP yesterday by standing theirs down for quite some time and then coming to them later. As far as being in order, that has not been a criterion from the start of this.

Mrs Pupatello: The issue isn't one of order. It's one of being allowed to --

The Chair: Mrs Pupatello, please let Mr Preston finish. I want to rule on this.

Mr Preston: Being in order or out of order has not been a criterion of this committee since we started. There have been changes made to accommodate people. This is a typo. A couple of times today we have had typos in other amendments and we've just said, "Oh, that's a typo," and we went on. This is obviously a typo. If the leg lawyers were asked to do a certain thing and it got changed in the interpretation, it's a typo. We haven't had to make a big deal about it; we've just changed it.

The Chair: There are two issues here, as I see them. One is that there is obviously a legislative drafting issue here, and it certainly falls within this committee to import the wording in 58 to 119 as a legislative drafting error that can be corrected.

The other issue is how we deal with it, and you're quite correct that we have made exceptions in other cases to deal with things out of order, but we've done it on unanimous consent. So what would be required is unanimous consent to simply do that in this case, to read what is a drafting change which doesn't change the substance -- well, it does change the substance, but it's perfectly within our mandate as a committee.

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Mr Kormos: I'm sorry. Once again, Chair?

The Chair: Mr Kormos, our committee is empowered to look at what are drafting errors and amend them, and that's what Mr Carroll is asking with respect to page 119. The issue is, though, that in order for us to be able to do that, and read 119 with the language of 58, we need unanimous consent to deal with the motion out of order.

Mr Preston: I wouldn't think that would be a problem after yesterday.

The Chair: I take it Mr Carroll is asking for unanimous consent?

Mr Carroll: I'm not asking for unanimous consent to deal with it out of order. I am asking for unanimous consent for us to do what was the intention -- the instructions given to the leg counsel that this amendment in fact mirror the amendment approved on page 58.

The Chair: It still requires us to deal with 119 out of order.

Mr Carroll: I understand that.

Mr Preston: That doesn't require unanimous consent, does it?

Mr Carroll: Yes.

The Chair: Yes, it does, because it's not sequential.

Mrs Pupatello: I would just like to hear the parliamentary assistant ask for unanimous consent, and then I am prepared to give it.

Mr Carroll: I'm sorry. I started off, I thought, by asking for unanimous consent.

The Chair: Is there unanimous consent?

Mr Kormos: No.

Mrs Pupatello: To change the word or to change the order?

The Chair: We have to consider 119 out of order in order to be able to change the wording. We can limit our consent to just changing the wording and not necessarily dealing with the motion in terms of voting with it. I understand Mr Carroll to say that he's asking for unanimous consent simply to change the wording in 119 to reflect 58. He's not asking for a discussion; he's not asking for a vote at this juncture. The question is, is there unanimous consent?

Mr Kormos: No.

Mr Preston: On a point of order, Madam Chair: We started out these meetings, day one, yesterday, with a complete change of all the Liberal motions. Every single one was allowed to be changed, every one. What are there, 100? Every single one was changed yesterday at 10 o'clock. Fine and dandy. That's fine. We want to change two lousy words that were made by mistake, not by us submitting them, but by the legislative counsel.

The Chair: Mr Preston, I have no power to grant unanimous consent if there isn't.

Mr Preston: You had the power to allow these things to be put in by the Liberals after they were submitted.

The Chair: With respect, Mr Preston, I was very clear in my ruling, and I refer you to it. All that happened, with respect, and I will read you the quote if you like because I want to be very precise: "Legislative counsel has limited her changes to creating proper sentences in the context, putting an instruction as a new subsection following the subsection where they were discussed, and putting them in the usual motion format."

Mr Preston: All I'm asking is the same ruling on this situation.

The Chair: It is not the same circumstance and unanimous consent has not been granted, so we'll need to move on.

Mrs Pupatello, is this a new matter?

Mr Preston: Madam Chair, I continue with my point of order: There has been nothing settled here by the Chair. There was a mistake made in the drafting of all the Liberal amendments --

The Chair: Mr Preston, I have dealt with it. There was no unanimous consent. We move on. Mrs Pupatello.

Mr Preston: I want it on record that I severely disagree with an order that will go with one party and not with another.

The Chair: Mrs Pupatello, please continue.

Mr Preston: The Chair in this case is not unbiased: biased 100%.

Mrs Pupatello: On another point of order: When we discussed the Liberal amendments yesterday, I believe there wasn't unanimous consent for the Chair's decision. I do believe the Chair will have the authority, if it's her pleasure, to make a change to number five of the amendment, because that's in fact what happened; it was the Chair's decision, so that the Chair could choose, because of the legal wording being changed only and not because it relates to the content.

The Chair: Mrs Pupatello, I don't want to return on this question. It's a very simple matter. We need unanimous consent. We did not get it.

Is there a new point, Mr Carroll? I want to facilitate, trust me.

Mr Carroll: On the outside chance that my original question was not properly understood, could I just one more time ask, can we have unanimous consent --

Mr Kormos: On a point of order, Chair.

The Chair: Would you let him finish?

Mr Kormos: He just did. I'm talking about the appropriateness of that. I have so enjoyed the discomfiture of the Tory members. They've been playing those kind of games throughout the course of these hearings, but under the circumstance --

The Chair: Mr Kormos, please spare us.

Mr Kormos: -- I'm inviting Mr Carroll to seek unanimous consent again.

The Chair: Thank you very much. We truly appreciate it.

Mr Kormos: I'm prepared to be far more generous than they were during the course of the last three weeks.

Mr Carroll: We appreciate your magnanimous gesture, Mr Kormos.

Mr Preston: He's always like that.

Mr Carroll: I guess he said yes this time.

The Chair: Very well. Is there unanimous consent?

Mrs Pupatello: No. Just kidding.

The Chair: The hour is late, Mrs Pupatello; don't test us. Very well. There is unanimous consent. What we have in fact agreed to is that we will insert a new, rewritten motion. Thank you very much, Mr Carroll.

We then proceed to section 54, and I'm sure we've all been waiting for this one. Mr Kormos, I believe you're up first with section 54.

Mr Kormos: If I may.

The Chair: You may. I would remind you, though, that we have 10 minutes left. Promptly at 5, our time allocation motion requires us to put everything to a vote.

Mrs Pupatello: Could I just get exactly the word that's been changed?

The Chair: If you looked at page 58, it's the identical wording that's in number 5. Mr Kormos.

Mr Kormos: I move that subsection 54(1) of schedule B to the bill be amended by adding the following paragraph:

"1.1 defining 'income' and 'assets' for the purposes of this act and exempting the prescribed income or assets from inclusion in the determination of budgetary assets."

That's so the Lieutenant Governor in Council has the power to identify certain income and assets as not being income and assets for the purpose of determining budgetary eligibility.

Mr Carroll: Quickly, Mr Kormos, 54(1)3 has regulation-making power there, "determination of budgetary requirements, income and assets and the maximum value of assets permitted," so we believe that it's already included.

The Chair: Further discussion? All in favour of the amendment? Opposed? The amendment is defeated.

Mr Carroll: I move that paragraphs 7 and 8 of subsection 54(1) of schedule B to the bill be struck out and the following substituted:

"7. prescribing what shall be considered to be authorized by prescription for the purposes of subsection 5(2);

"8. prescribing matters to be considered in determining what a substantial restriction in activities of daily living is attributable to for the purposes of subsection 5(2)."

This amendment changes the reference to the regulation-making authority related to the exclusion of people with substance dependency from income support to match its new location in subsection 5(2) as a criterion of eligibility.

Mrs Pupatello: Does it change anything other than the order?

Mr Carroll: Does it change anything --

Mrs Pupatello: Other than the order. You've added this because of where it was changed in your earlier amendment?

Mr Carroll: Yes, because subsection 5(2) is where we deal with the eligibility.

The Chair: Any further discussion? All in favour of the amendment? Opposed? The amendment is carried.

Mr Kormos: I move that subparagraph (ii) of paragraph 9 of subsection 54(1) of schedule B to the bill be amended by striking out "including the time and manner of providing that information, verification of that information" in the second, third and fourth lines.

The Chair: Discussion?

Mr Carroll: Quickly, Mr Kormos, we find this unacceptable because it has no effect other than replacing specific with general language. I'm sure as a lawyer you would understand that.

The Chair: Further discussion? All in favour of the amendment? Opposed? The amendment is defeated.

Mr Kormos: I move that paragraph 11 of subsection 54(1) of schedule B to the bill be struck out.

If I may, anticipating Mr Carroll's frequent remarks, I should remind him that I was a criminal defence lawyer, which in my view is a far more suitable background to be a member of this Legislature than any other practice of law, but that my familiarity with civil law and other areas is really not sufficient to render an opinion. But I appreciate your confidence.

Mr Carroll: Paragraph 11 provides us the authority to prescribe persons who are not eligible, such as prisoners.

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The Chair: Any further discussion? All in favour of the amendment? Opposed? The amendment is defeated.

The next amendment I believe is similar so out of order. We're on 112B; 112A is out of order. It's identical to the previous amendment.

Mrs Pupatello: I move that paragraph 44 of subsection 54(1) of schedule B to the bill be struck out.

We are not comfortable at all with the kinds of powers that are being prescribed to eligibility review officers etc, as outlined there, and specifically service coordinators, which may well be private companies, as we know, which are going to be given an inordinate amount of power.

The Chair: Further discussion? All in favour of the amendment? Opposed? The amendment is defeated.

Mr Carroll: I move that subsection 54(1) of schedule B to the bill be amended by adding the following paragraph:

"50. providing for the collection, retention, use, disclosure and safeguarding of privacy of personal information referred to in clause (4)(a)."

This amendment supports the transfer of regulation-making authority for collection and use of biometric information from the minister to the Lieutenant Governor in Council to ensure that privacy concerns are addressed by cabinet. This amendment has the support of the Information and Privacy Commissioner.

The Chair: Further discussion? All in favour of the amendment? Opposed? The amendment carries.

Mr Kormos: I move that paragraph 2 of subsection 54(2) of schedule B to the bill be struck out.

The Chair: Any discussion? All in favour of the amendment? Opposed? The amendment is defeated.

Mrs Pupatello: I move that paragraph 2 of subsection 54(1) of schedule B to the bill be struck out.

The Chair: This is paragraph 2 of subsection 54(2)? Have I got the wrong one? There's a drafting error in here. The title does say 54(2). Did you read 54(1)?

Mrs Pupatello: Yes, I did because it was indicated with arrows on my page.

The Chair: If it is a typo, then it's identical to the one Mr Kormos just read that was defeated so it's out of order.

Mr Carroll: I move that paragraph 3 of subsection 54(2) of schedule B to the bill be struck out.

This amendment supports the transfer of regulation-making authority for collection and use of biometric information from the minister to the Lieutenant Governor in Council to ensure that privacy concerns are addressed by cabinet. Again this amendment has the support of the Information and Privacy Commissioner.

The Chair: Any further discussion? All in favour of the amendment? Opposed? The amendment is carried.

Mrs Pupatello: I move that subsection 54(4)(a) of schedule B to the bill be amended by striking out "or encrypted biometric information" in the third and fourth lines.

The Chair: Discussion?

Mr Kormos: Recorded vote, please.

Ayes

Kormos, Pupatello.

Nays

Carroll, DeFaria, Preston, Bob Wood.

The Chair: The amendment is defeated.

Mr Kormos: I move that subsection 54(4) of schedule B to the bill be struck out.

The Chair: Discussion?

Mr Kormos: Recorded vote, please.

Ayes

Kormos, Pupatello.

Nays

Carroll, DeFaria, Preston, Bob Wood.

The Chair: The amendment is defeated.

Mr Kormos: I move that subsection 54(6) of schedule B to the bill be struck out and the following substituted:

"(6) A regulation made under subparagraph (vi) of paragraph 9 of subsection (1) may only apply with respect to money due or owing or which may become due or owing to a recipient which would, if received, have been income during the period of receipt of income support."

The Chair: Discussion? All in favour of the amendment? Opposed? The amendment is defeated.

Mr Carroll: I move that section 54 of schedule B to the bill be amended by adding the following subsections:

"Apportionment of costs

"(7.1) A regulation made under paragraph 42 of subsection (1) may do one or more of the following:

"1. Authorize municipalities in a geographic area to determine by agreement how their costs are to be apportioned, subject to the prescribed conditions.

"2. Provide for an arbitration process for determining how the costs of those municipalities are to be apportioned.

"3. Set out the manner in which the costs of those municipalities are to be apportioned.

"Same

"(7.2) A regulation under paragraph 1 or 2 of subsection (7.1) may,

"(a) provide, on an interim basis, for the manner in which costs are to be apportioned and for the time and manner in which they are to be paid;

"(b) permit an agreement or an arbitration decision to apply to costs incurred and paid before the agreement or decision is reached; and

"(c) provide for the reconciliation of amounts paid on an interim basis.

"Same

"(7.3) Where a regulation under paragraph 3 of subsection (7.1) is retroactive, it may provide for the reconciliation of amounts paid."

The rationale: Currently there's an impression among municipalities that the province will require separated cities and counties to share social assistance costs on the basis of assessment. A standard method based on assessment would mean that separated cities, which would benefit significantly from that approach, have no incentive to negotiate with counties on the consolidation of service delivery and would prefer to wait for the province to impose a solution.

This amendment indicates that other approaches also exist, such as arbitration, and that assessment should not be presumed to be the favoured solution. This provides incentives for municipalities to work towards a solution they can agree to. The province prefers locally generated solutions and does not wish to have to impose a solution.

The Chair: Ladies and gentlemen, it is now 5 o'clock by my watch and therefore, in accordance with our time allocation motion, all amendments which haven't been moved shall be deemed to be moved. We'll now proceed to those.

Dealing first with the amendment that has just been moved, all in favour of the amendment? Opposed? The amendment is carried.

Shall section 54, as amended, carry? All in favour? Opposed? The section, as amended, is carried.

Shall sections 54.1 and 54.2 carry?

Mr Kormos, there is no debate.

Mr Kormos: No, it's not debate, it's a point of order.

The Chair: Let's hear your point of order.

Mr Kormos: We've got 54.1 and 54.2. Is it not appropriate to refer to the identification number of the amendment that creates those sections, because down the road we're going to have separate amendments dealing with the same section.

The Chair: I'm not following you, Mr Kormos. I said sections 54.1 and 54.2. That's dealt with.

Mr Kormos: But it's by way of amendment. All I'm saying is that I trust everybody has it identified as number 119.

The Chair: Oh, you want me to read the page number as well.

Mr Kormos: Yes, just so that we have a reference point to know, because there are subsequent amendments.

The Chair: That's fine. I will be happy to do that. It's a reasonable request.

Sections 54.1 and 54.2 on page 119.

Mr Kormos: Recorded vote, please.

The Chair: I'm sorry. With respect, our time allocation motion requires that any divisions are deferred until all other questions are dealt with, so we will have to defer this until we've dealt with other sections and amendments.

There is no amendment to section 55 of the bill. Shall section 55 carry?

Mr Kormos: Recorded vote, please.

The Chair: Deferred.

Subsection 56(3), page 120: Shall that amendment carry? All in favour? Opposed? The amendment is defeated.

An amendment on page 120A to subsection 56(3): All in favour? Opposed? The amendment is defeated.

Shall section 56, as amended, carry?

All in favour? Opposed? The section carries.

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Mrs Pupatello: Is that 121?

The Chair: Let's do this in order. We're now at 121.

Section 57, the amendment on page 121: All in favour?

Mr Kormos: Recorded vote, please.

The Chair: Deferred.

We now move to schedule C, subsection 1(0.1), on page 122. All in favour of that amendment? Opposed? The amendment carries.

Page 123, the amendment to subsection 1(1): All in favour? Opposed? Carried.

Shall section 1, as amended, carry? All in favour? Opposed? Carried.

Section 2, page 124, the amendment to subsection 2(3): All in favour?

Mr Kormos: Recorded vote, please.

The Chair: Very well.

Shall sections 3 to 8 of the bill carry? All in favour? Opposed? Those sections are carried.

We move now to schedule D, sections 1 through 11. All in favour? Opposed? Carried.

Section 12, an amendment on page 125: All in favour of the amendment? Opposed? The amendment is carried.

Section 13, an amendment on page 126: All in favour? Opposed? The amendment is carried.

Shall section 13, as amended, carry? All in favour? Opposed? The section is carried.

Shall schedule D carry, as amended? All in favour? Opposed? Carried.

Schedule E, sections 1 through 5.

Mr Carroll: I'd like to request a vote on 1 separately.

The Chair: Very well. Section 1: All in favour? You're not asking for a recorded vote, are you?

Mr Carroll: No.

The Chair: Section 1: All in favour? Opposed? Section 1 is defeated.

Sections 2 to 5: All in favour? Opposed? Those sections are carried.

On section 6 there is an amendment on page 127. All in favour of the amendment? Opposed? Carried.

Shall section 6, as amended, carry? Opposed? Carried.

Sections 7 to 13: All those in favour? Opposed? Carried.

Shall schedule E carry as amended? All in favour? Opposed? Carried.

We now deal with the recorded votes. We go back to 54.1 in schedule B on page 119.

Ayes

Carroll, DeFaria, Preston, Bob Wood.

Nays

Kormos, Pupatello.

The Chair: The section is carried.

Section 55: All in favour?

Ayes

Carroll, DeFaria, Preston, Bob Wood.

Nays

Kormos, Pupatello.

The Chair: The section is carried.

Section 57, on page 121.

Ayes

Kormos, Pupatello.

Nays

Carroll, DeFaria, Preston, Bob Wood.

The Chair: The amendment is defeated.

Shall section 57, the short title of the bill, carry? All in favour? Opposed? Section 57 carries.

Shall schedule B, as amended, carry?

Mr Kormos: Recorded vote, please.

Ayes

Carroll, DeFaria, Preston, Bob Wood.

Nays

Kormos, Pupatello.

The Chair: Schedule B carries.

We move on to schedule C, section 2, on page 124. All those in favour of the amendment on page 124?

Mr Kormos: Recorded vote.

Ayes

Carroll, DeFaria, Preston, Bob Wood.

Nays

Kormos, Pupatello.

The Chair: The amendment is carried.

Shall section 2, as amended, carry? All in favour? Opposed? The section is carried.

Shall schedule C, as amended, carry?

Mr Kormos: Recorded vote.

Ayes

Carroll, DeFaria, Preston, Bob Wood.

Nays

Kormos, Pupatello.

The Chair: Carried.

Shall the long title of the bill carry? All in favour?

Mr Kormos: Recorded vote.

Ayes

Carroll, DeFaria, Preston, Bob Wood.

Nays

Kormos, Pupatello.

The Chair: The long title of the bill is carried.

Shall Bill 142, as amended, carry?

Mr Kormos: Recorded vote.

Ayes

Carroll, DeFaria, Preston, Bob Wood.

Nays

Kormos, Pupatello.

The Chair: Bill 142, as amended, is carried.

Shall we report the bill, as amended, to the House?

Mr Kormos: Recorded vote.

Ayes

Carroll, DeFaria, Preston, Bob Wood.

Nays

Kormos, Pupatello.

The Chair: I shall report the bill, as amended, to the House.

Ladies and gentlemen, thank you all very much for your patience throughout all this. In particular, I know members of the committee would want me to thank the technical staff, Hansard, our legislative counsel and of course Tonia Grannum, without whom none of this would have been possible, because she has worked absolute miracles to get us from point A to point B, to this point today. Thank you all very much.

The committee adjourned at 1710.