Changes to ODSP Exemptions for Pain and Suffering Awards

The Ontario Disability Support Program (ODSP) is a provincial assistance program that provides income and employment support to Ontario residents with disabilities.

To qualify for ODSP, applicants must be medically eligible and meet the financial requirements. In addition, those receiving ODSP benefits must not own liquid assets or cash over $5,000.00 for individuals and $7,000.00 for couples. Compensation awarded for pain and suffering during a lawsuit are considered “assets” under the legislation.

Until recently, a recipient of ODSP was entitled to maintain his or her ODSP funding and receive court-awarded compensation for personal injuries, but only up to a maximum amount of $100,000 for:

  • Pain and suffering, as a result of a loss, injury, or death.
  • Expenses from an injury or death of a family member (typically in an accident).
  • The loss of care, guidance, and companionship due to an injury or death of a family member.

The limit of $100,000.00 often meant that the most severely impaired individuals faced the probability that their ODSP benefits would be “clawed back” by the Ontario government. Once court-awarded compensation surpassed that limit, eligibility for ODSP would be revoked and assistance through the program would end – without regard for the individual circumstances of the recipient.

The $100,000.00 limit created a two-tiered system, particularly for survivors of sexual abuse. Survivors who received compensation through suing the Government in a class action were able to retain the entirety of their settlement while continuing to receive ODSP benefits. However, survivors not part of class proceeding put their ODSP in jeopardy by bringing an action.

To OTLA and OTLA Board of Directors member, Simona Jellinek, the exemption was unfair, arbitrary, and implemented without any guiding criteria, and did not treat equally all plaintiffs who received the same or similar awards through the litigation process.

It was OTLA’s position that the previous limitations imposed on damages for pain and suffering was inherently problematic, particularly for those who suffered any form of sexual assault or historical sexual abuse. Perpetrators are not always Government entities or representatives, and survivors ought to be able to choose to sue individually rather than as a member of a class. To provide statutory protection to some individuals but not others created a structure of relief which benefitted those who sued the Government over other non-Government individuals and entities.

It was OTLA’s belief that for survivors of sexual assault and sexual abuse, ongoing access to disability-related benefits should not be contingent upon the nature of the litigation and/or the identity of the perpetrator. Nor should the choice to proceed with litigation in any way compromise a survivor’s ability to receive continued ODSP supports. Forcing a survivor to choose between ODSP benefits and a negotiated settlement or award was, for many, a major institutional barrier to social assistance.

As a result of a lobby effort led by OTLA, Ms. Jellinek, and her team, the Ontario government has amended the legislation to exempt the entirety of pain and suffering awards.[1]Awards for loss of care, guidance and companionship are now also exempt. The change is effective as of August 1, 2017.

The government has indicated that the purpose for the change is to provide Ontarians receiving ODSP with the flexibility to use their awards in a way which best meets their needs.  For example, those receiving ODSP are now able to use their pain and suffering compensation for any purpose, rather than solely for pre-approved disability-related costs.

To prevent further disenfranchisement or vulnerability of those survivors who are disabled and reliant upon ODSP, the proposed amendment removes any statutory distinction between settlement awards and/or victim experiences pertaining to sexual assault or historic sexual abuse.

The recent changes to the ODSP Regulations are a positive step forward in improving access to justice for some of the most vulnerable Ontarians. OTLA will continue to lobby on behalf of the rights of the injured and injusticed.

[1] See section 28 (1) paragraph 14, of the Ontario Disability Support Program Act, 1997, S.O. 1997, c.25, Sch. B

 

 

Anna Stoll
Written by

Anna is an associate lawyer on the personal injury team of Siskinds LLP. She has had the privilege of working closely with Douglas Bryce, a partner at the firm.

Anna holds a B.A. from the University of British Columbia and a J.D. from the University of New Brunswick. She was called to the bar in 2016 and is a member of the Ontario Trial Lawyers Association.