Manitoban on disability assistance wins right to appeal being forced to go on Old Age Pension at 65

Court of Appeal grants man leave to argue provincial rule goes against Charter

Manitoban on disability assistance wins right to appeal being forced to go on Old Age Pension at 65
Lawyer Karen Burwash represents Martin Stadler in appealing a ruling saying he must apply for OAS at 65

A Manitoba man living on a disability allowance has won the right to pursue his appeal of a provincial decision forcing him to apply for his Old Age Security pension at 65 even though he would be better off, in the long run, to wait until he was 70.

In late January, the Manitoba Court of Appeal granted leave for Martin Stadler to have the court hear arguments on whether the Social Services Appeal Board in Manitoba erred in deciding to suspend his income assistance benefits and insisting he apply for OAS (and the related Guaranteed Income Supplement). The appeal court will now also be able to look at whether the board was wrong in determining that it does not have jurisdiction to review its own legislation’s constitutionality.

“There is no real dispute that the applicant has raised two questions of law and that they are of sufficient importance to warrant the attention of this Court,” Justice Jennifer Pfuetzner wrote in her decision.

“The first issue identified by the applicant potentially affects all disabled recipients of income assistance benefits who are approaching, or have attained, the age of 65 years. The second issue raises an important question regarding the ability of the Board to consider the Charter in making decisions under each of the statutes over which it has jurisdiction.”

The implications of this case, and a similar one launched earlier by Stadler, are important for social assistance allowances in Manitoba and across Canada, says Stadler’s lawyer Karen Burwash. She notes that most provinces have similar rules requiring social assistance recipients to apply for federal pension programs as soon as they are eligible.

“There are a lot of people who are on social assistance because of some form of disability, either physically or mentally,” says Burwash, “who through no fault of their own have to go on social assistance.” Yet, they don’t have the same rights as anyone who has income, whether from work or other sources, to choose when they take federal pension benefits.

“And the social assistance appeal board here in Manitoba doesn’t just deal with assistance payment matters. It has jurisdiction to deal with many other matters involving vulnerable people.”

Nova Scotia lawyer Vince Calderhead, along with counsel at Manitoba’s Public Interest Law Centre, has made submissions on behalf of Winnipeg’s Social Planning Council to argue that such regulations discriminate against those with disabilities.

The rules perpetuate and exacerbate the burdens already placed on a disadvantaged group, Calderhead says. "Because of the nature of pension benefit applications, once the pension is taken at a reduced amount, that reduction is permanent."

Calderhead says the rules in Manitoba are similar to those in other provinces, with the exception of B.C. and Ontario.

As well, statistical evidence presented to the appeal court shows a greater proportion of those over 60 who are on social assistance have more disbilities than those under 60. "It condemns those with disabilities to a life of poverty, because once you take CPP or OAS early, that reduction in pensions stays," he says, "just so that provinces can save a few dollars."

Stadler had decided he preferred to apply for OAS/GIS at 70 instead of 65, as it would increase his benefits by 36 per cent. The board then suspended his social assistance income based on a provision in The Manitoba Assistance Act that recipients of social assistance “shall make all reasonable efforts on behalf of himself or herself and any dependants to obtain the maximum amount of compensation, benefits or contribution to support and maintenance that may be available under another Act or program, including an Act of Canada or a program provided by the Government of Canada.”

The board argued that it “does not have the jurisdiction to review the constitutionality of its own legislation” and can’t determine whether the regulations infringe on Stadler’s Charter rights.

Pfuetzner concluded in her decision what “while there may be limited jurisprudence to support some of the applicant’s [Stadler’s] arguments, and I am not persuaded that they have no realistic prospect of success.”

They are not frivolous, she wrote, adding that Stadler’s arguments “cannot be dismissed through a preliminary examination of the question of law.”

Stadler’s case is the second he has taken to court to fight a Manitoba Social Services Appeal Board decision. Stadler, a computer engineer who isn’t able to work because of a physical disability, took his first case to the appeal court to fight a 2014 decision of the Social Services Appeal Board, saying he had to apply to collect his Canada Pension Plan at age 60, rather than at age 65. As with OAS/GIC, the Manitoba legislation requires any person receiving provincial social assistance to make efforts to get benefits or support from a federal government program like Canada Pension Plan as soon as it is available.

In May, the court of appeal found that Stadler’s Charter rights were violated in being forced to apply for CPP at 60 rather than 65. The court also ruled that the Manitoba Assistance Regulation, which sets out rules around eligibility for provincial benefits, should exclude people with disabilities who are recipients of income assistance from being required to apply for pension benefits before they turn 65.

The appeal court panel that heard Stadler’s first case, comprised of Richard Chartier, Freda Steel and Barbara Hamilton, held that the section of the regulation “perpetuates and exacerbates the burdens of an already disadvantaged group.” The rule breaches s. 15 of the Charter, which guarantees the right to the equal protection and equal benefit of the law without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

In the latest case, Stadler argues that the Social Services Appeal Board is bound by the reasoning of the earlier decision, “as the CPP and OAS/GIS programs are nearly factually indistinguishable.” Burwash adds that because of the length of time it took to deal with the first case, Stadler had to apply for CPP before turning 65.

“His social assistance benefits were terminated, so from a financial point of view, he had to. Unfortunately, it took longer than we thought to deal with this.”

The Manitoba Department of Families said last May, when the appeal court decision on the first case was released, that it is “closely reviewing” the ruling to determine the next steps.

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