Law Times

Law Times • sepTember 12, 2016 Page 5 www.lawtimesnews.com Only $25,000 of compensation can be kept Government stealing from assault survivors: lawyer BY YAMRI TADDESE Law Times L awyers are urging the Ontario government to implement a select com- mittee recommendation to get rid of laws that leave poor survivors of sexual assault with only a small portion of their cash entitlements when they win lawsuits against their abusers or arrive at a settlement. Currently, Ontarians who re- ceive benefits under the Ontario Works program are allowed to keep only $25,000 of their total court-awarded compensation for pain and suffering when they win personal injury cases, even if the case arises out of sex- ual assault. If they want to con- tinue receiving benefits under Ontario Works, they must give the government the balance of their compensation. If victims receive support via the Ontario Disability Sup- port Program, they get to keep $100,000 of their total compen- sation and put the rest of the cash into government coffers. The scheme amounts to "stealing" from sexual assault survivors, says London, Ont. lawyer Robert Talach, who often represents victims of sexual as- sault in civil cases. "This is the reward these people get for going through the [court] process, tearing the scab off to a certain extent," Talach says. "If you give the client one dollar more than $100,000, [the province] cuts them off ODSP." After hearing about these "unfair" schemes from Toronto lawyers Elizabeth Grace and Su- san Vella, the Select Committee on Sexual Violence and Harass- ment recommended last year that sexual assault victims be exempted from the government clawbacks. In its report, issued last De- cember, the committee recom- mended abolishing these restric- tions on how much of their com- pensation awards sexual assault victims can retain if they're also recipients of social assistance. "The committee believes that receipt of such awards should not affect a recipient's ongoing eligibility for social assistance or result in a claw back of social as- sistance benefits," the report said. After enduring difficult and intrusive legal processes, Grace says her most vulnerable clients are receiving "second-rate" com- pensation. "This is an access to justice issue. What it does is give [sur- vivors] a discounted compensa- tion. Others who are not poor, who are not vulnerable or disen- franchised . . . get their full com- pensation," Grace says. "To add insult to injury, we have just antiquated schemes in place," she continues. The On- tario Works cap of $25,000 has not been amended to keep up with inf lation since 1990, and ODSP caps of $100,000 have been in place since 1997. If those amounts had kept up with in- f lation, recipients today would have been able to retain $41,000 in the case of Ontario Works and more than $142,000 when it comes to ODSP, Grace says. The Ministry of Community and Social Services says it is con- sidering the recommendations made by the select committee. "The select committee's re- port recommends that the leg- islature review the progress on implementation of the recom- mendations in this report within two years of its adoption," said Kristen Tedesco, spokeswoman for the ministry in an e-mail to Law Times. "The ministries indi- cated in the report are currently considering the recommenda- tions made by the select commit- tee, including these ones." Grace says exempting survi- vors of sexual assault from these clawbacks shouldn't be a com- plex or time-consuming process. "This is an easy change to make. One doesn't have to amend the acts," Grace adds, referring to the Ontario Works Act and the Ontario Disability Support Pro- gram Act. "What has to be done is merely changes to the regulations . . . it doesn't have to go before the legislature," she adds. Talach says that, in two in- stances, he was able to achieve exemption from the clawbacks for his clients, but he adds that the way individual exemptions are granted is inconsistent. While the laws remain, one way he's been able to help his clients retain their compensation or- ders is by putting the money away in structures and making it inaccessible to the client until they are 65 years of age and no longer receiving ODSP. Grace says following the se- lect committee's recommenda- tion, she encourages clients to tell the ministry their compensation was a result of a sexual assault lawsuit or settlement. She also encourages clients to let the min- istry know they're aware of the select committee's recommen- dation and the potential changes coming to the regulation. In Ontario, there is precedent of exempting certain types of compensations from the Ontario Works and ODSP clawbacks. Grace says examples of com- pensations that will not affect eligibility for social assistance or result in clawbacks include the Indian Residential Schools Settlement Agreement, the Helpline Reconciliation Mod- el Agreement, the Grandview Agreement, the Ontario Hepa- titis C Assistance Plan and the Walkerton Compensation Plan. Tedesco said the government is "moving forward to build a multi-year action plan to re- form social assistance within the broader income security land- scape and aligned with the ef- forts to combat poverty." In the meantime, the govern- ment is ending the full clawback of child support from social assistance payments, Tedesco said. "It's also important to note that other assets are exempt and do not count toward Ontario Works and ODSP asset limits, such as a car and a principal resi- dence. Furthermore, [Registered Disability Savings Plans] and [Registered Education Savings Plans] are also not counted as as- sets for ODSP recipients." LT NEWS Elizabeth Grace says her most vulnerable clients are receiving 'second-rate' compen- sation after enduring difficult and intrusive legal processes. Order # 804218-65203 $426 2 volume looseleaf supplemented book Anticipated upkeep cost – $319 per supplement 4-6 supplements per year Supplements invoiced separately 0-88804-218-3 Shipping and handling are extra. Price(s) subject to change without notice and subject to applicable taxes. Cited by the supreme court of Canada Canadian Employment Law Stacey Reginald Ball "The most comprehensive text on employment law in Canada. It is carefully constructed and accurate." Canadian Bar Review More than 7,000 cases cited Canadian Employment Law is a one-stop reference that provides a thorough survey of the law and analysis of developing trends, suggesting potential avenues of attack as well as identifying potential weaknesses in the law. Canadian Employment Law has been cited by the Supreme Court of Canada, in superior courts in every province in Canada, and is used in law schools throughout Canada. With methodically organized chapters covering the complete range of employment law, Canadian Employment Law provides the kind of detailed examination of the facts you can count on. The subject-matter is wide-ranging and addresses issues such as: wrongful dismissal, fiduciary obligations, tort law and vicarious liability issues, remedies, constitutional issues, occupational health and safety, employment contracts, duty of good faith and fidelity and human rights. Includes a Table of Reasonable Notice — a chart, which groups together comparable types of positions so you can easily compare length of notice awards. Plus, all topics are illustrated with extensive case law and useful footnotes. Available risk-free for 30 days Order online: www.carswell.com Call Toll-Free: 1-800-387-5164 In Toronto: 416-609-3800 Also available online on WestlawNext® Canada EmploymentSource™ © 2016 Thomson Reuters Canada Limited 00234UC-84746-CE 82 Scollard Street, Toronto, Canada, M5R 1G2 Excellence in Employment & Labour Law • Counsel in Leading Cases • • Author of Leading Treatise • Wrongful Dismissal Employment Law Human Rights Post Employment Competition Civil Litigation Appellate Advocacy Disability Ball Professional Corporation Referrals on behalf of employees and employers respected Contact Stacey Ball at web: www.staceyball.com (416) 921-7997 ext. 225 or srball@82scollard.com all_LT_Nov7_11.indd 1 11-11-08 11:44 AM

• Cover