Vince Calderhead and counsel at Manitoba’s Public Interest Law Centre made submissions on behalf of the Social Planning Council of Winnipeg.

Stadler v Director, St Boniface/St Vital 2020 MBCA 46

The Manitoba Court of Appeal found the requirement that individuals in receipt of income assistance apply for Canada Pension Plan retirement benefits (CPP) as soon as they become eligible violates people with disabilities’ equality guarantee under section 15(1) of the Charter (Stadler).

Pink Larkin’s Vince Calderhead along with counsel at Manitoba’s Public Interest Law Centre, made submissions on behalf of the Social Planning Council of Winnipeg, successfully arguing that

While on its face, the Regulation is neutral and treats all persons receiving income assistance identically, the Regulation impacts persons with disabilities to a greater extent, perpetuating their disadvantage.

The Manitoba scheme requires individuals in receipt of income assistance to apply for CPP as soon as they are eligible, age 60, rather than waiting to apply for the CPP benefit at age 65, resulting in a significant (36%) reduction in their total CPP benefits.

The negative income effect is disproportionately suffered by individuals with disabilities, in violation of the Charter section 15(1) equality guarantee:

[110]         The Regulation widens the gap between persons with disabilities who receive income assistance and the rest of society by perpetuating their dependence on income assistance. Its effect is to permanently reduce their income for the rest of their lives due to a temporary or situational need at the age of 60. Persons with disabilities are disproportionately affected by the Regulation in question because they are at greater risk of living in poverty and, as a result, are dramatically over-represented among those in receipt of income assistance. Being forced to apply early for CPP benefits rather than at the age of 65, permanently reduces the income of a person with physical disabilities. The resulting reduction in their CPP benefits leaves them more at risk of remaining in poverty with the possibility of lifetime dependence on income assistance. As well, the forced choice takes away recipients’ autonomy and affects their dignity (Quebec (Attorney General) at para 139).

[111]         Thus, the Regulation perpetuates and exacerbates the burdens of an already disadvantaged group. Because of the permanent nature of the CPP application, once the pension is taken at the age of 60 at a reduced amount, that reduction is permanent and, at 36 per cent, it is a significant reduction. That is not the case with other benefits. None of the other benefits are permanently reduced as a result of accessing them sooner. The Board’s analysis fails to account for the adverse impact of the law on Stadler on the basis of his disability.

Every other provincial income assistance regime includes the requirement to apply for CPP at age 60, except British Columbia which ceased the practice in January 2020.

In Nova Scotia, the income assistance scheme is similar. Section 13 of the Employment Support and Income Assistance Regulations requires income assistance recipients to apply for CPP as soon as they are eligible as part of the general requirement that income assistance recipients must access any other feasible source of income that might be available to them.

In light of this decision, provinces like Nova Scotia should carefully consider whether their income assistance regimes are Charter compliant, or whether they leave recipients “more at risk of remaining in poverty with the possibility of lifetime dependence on income assistance.”

By Jason Edwards

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