Daily Archives: November 16, 2009

The Ontario Disability Support Program (ODSP) and the Canada Pension Plan: A Comparison

Posted in: "All, Administrative Law, Business Development, Legalese Dictionary by Admin | 1 Comment Monday, November 16, 2009

I recently received a few inquiries regarding the difference between the Ontario Disability Support Program (ODSP)* and the Canada Pension Plan (CPP).^ Below is a brief comparison for your reference. Please be reminded that it’s not meant to be an exhaustive list.

Similarities between ODSP and CPP Disability Benefits

Substantive

  • Both the ODSP and the CPP are designed to assist persons with long-term disabilities.
  • Both programs contain cancellation clauses under which the benefits may be cancelled if the applicant has ceased to be disabled.
  • Both programs contains reinstatement clauses for those who have been cancelled and  have subsequently become disabled again.
  • The Courts have held that interpretation of the legislative requirements demands a liberal reading, and any ambiguity thereof should resolve in the applicant’s favour.

Procedural

  • Both are primarily decided by the administrator of the program.
  • Most decisions made by the administrator may be appealed to independent tribunals. ODSP decisions may be appealed to the Social Benefits Tribunal , CPP decisions to the Office of the Commissioner of Review Tribunal.
  • An Internal review or a reconsideration request is required before the decisions can be appealed to the tribunals.
  • The hearings conducted by the tribunals are relatively informal.
  • The hearings are private and confidential, i.e., not open to the public.
  • The rules of evidence, such as medical documents, are relaxed, as long as procedural fairness is observed.
  • Members of the tribunals travel to conduct hearings in locations that are convenient for the appellants.

Differences between ODSP and CPP Disability Benefits

Substantive

  • The ODSP is an Ontario program, while the CPP is a federal one.
  • The ODSP is funded by the Province of Ontario, while the CPP is largely funded by the participants’ contributions.
  • The ODSP is open to Ontario residents who meet the prescribed requirements, while the CPP is only open to those who have made the required contribution prior to the claim.
  • The amount payable is calculated largely according to the benefit unit’s budget requirement, while the CPP is calculated according to the level of past contribution.
  • ODSP appellants may seek interim assistance before the decision is rendered by the tribunal, while  CPP appellants may not.
  • The legislative definition of “person with disability” differs under the ODSP and the CPP.

Procedural

  • The ODSP appellant may appeal the decision of the Social Benefits Tribunal to the Ontario Superior Court.
  • The CPP appellant may appeal the decision of the Office of the Commissioner of Review Tribunal to the Pension Review Board, and subsequently to the Federal Court.
  • The CPP contains provisions allowing persons directly affected by the decision to take part at the tribunal as a party, while the ODSP doesn’t have such provisions.
  • ODSP appellants have the right to appeal to the Ontario Superior Court on a question of law, while leave (permission) is required for CPP appellants to appeal to the Pension Review Board.
  • The Social Benefits Tribunal is entitled to be represented at the Ontario Superior Court on further appeals, while the Office of the Commissioner of Review Tribunal does not have the right to participate on further appeals.

* Ontario Disability Support Program Act, S.O. 1997, c. 25, Sch. B

^ Canada Pension Plan, R.S.C. 1985, c. C-8

Note: Please keep in mind that this article is provided for information and educational purposes. It does not constitute legal advice and should not be regarded as such. The law may have changed since the publication of the article.

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A Brief Note on the Canadian Pension Plan (CPP) Disability Benefits

Posted in: "All, "Brief Note" Series, Administrative Law, Business Development, Legalese Dictionary by Admin | No Comments Monday, November 16, 2009

The Canadian Pension Plan provides disability pension benefits to persons with disabilities. To become eligible to the benefits, a claimant must meet the financial contribution threshold during the years prior to the claim.

The tests for the CPP disability benefits as set out under the legislation* are as follows:

a person shall be considered to be disabled only if he is determined to have a severe and prolonged mental or physical disability, where

(i) a disability is severe only if by reason thereof the person in respect of whom the determination is made is incapable regularly of pursuing any substantially gainful occupation, and

(ii) a disability is prolonged only if it is determined in prescribed manner that the disability is likely to be long continued and of indefinite duration or is likely to result in death

Most applicants to the CPP disability benefits meet the legislative requirement of having prolonged disabilities. The contention, however, mostly rests on the determination of whether the disability is severe enough to warrant the granting of benefits.

The Federal Court of Appeal ruled in the case Villani v. Canada (A.G.)^ the individual words of “regularly” and “substantially” must be given due emphasis when applying the legislative requirement.

For example, the word “regularly” means “at interval or times” and not “at all times,” while the word “substantial” encompasses “actually existing, not illusory, of real importance or value, practical” and not “completely.”

In addition to the considerations above, the Court commented as follows:#

What the statutory test for severity does require, however, is an air of reality in assessing whether an applicant is incapable regularly of pursuing any substantially gainful occupation.  Naturally, decision-makers already adopt a certain measure of practicality in their severity determinations.  As an obvious example, the scope of substantially gainful occupations suitable for a middle-aged applicant with an elementary school education and limited English or French language skills would not normally include work as an engineer or doctor.

In summary, the legislative test must not be applied in a vacuum. Rather, the particular circumstances of the applicant must be taken into account. If the applicant satisfies the decision maker that he or she cannot largely pursue gainful employment, he or she ought to be granted with the benefits.

* Canada Pension Plan, R.S>C. 1985, c. C-8, s. 42(2)

^ [2001] F.C.A. 248, [2002] 1 F.C. 130 (CanLII)

# Ibid., at para. 46

Note: Please keep in mind that this article is provided for information and educational purposes. It does not constitute legal advice and should not be regarded as such. The law may have changed since the publication of the article.

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