Hon. Marilou McPhedran: Honourable senators, hello, tansi.

As a senator from Manitoba, I acknowledge that I live on Treaty 1 territory, the traditional lands of the Anishinaabe, Cree, Oji-Cree, Dakota, and Dene, and the homeland of the Métis Nation.

I also want to acknowledge that the Parliament of Canada is situated on unceded and unsurrendered Algonquin Anishinaabe territory.

[English]

Honourable senators, I rise today to speak to Bill C-22, the Canada disability benefit act, with appreciation to Minister Qualtrough and Senator Cotter, the bill’s sponsor here, for best efforts to shepherd it through the legislative process culminating in our review today.

Many parliamentarians understand how crucial this bill is. It is long overdue and deserves support for the millions of people with disabilities across Canada who live in poverty.

We can be proud of the thorough and thoughtful contributions made by members of the Standing Senate Committee on Social Affairs, Science and Technology, or SOCI, and of the trust placed in us by colleagues in this chamber in their support for these amendments, which result in a stronger Bill C-22 returning to us today with all but one of our six amendments incorporated.

The accepted amendments include an appeal mechanism by which applicants can contest decisions about their eligibility to receive the benefit and the amounts to which they are entitled. Also adopted was the expanded list of factors that must be considered in the benefit calculation, among which are Canada’s poverty line, the costs created by systemic barriers to accessing work, the intersectional needs of applicants and Canada’s human rights obligations as they relate to the disability community.

The final amendments accepted are those that provide for an expedited implementation timeline for the benefit by requiring that all the regulations must begin to pay out under the act and be in place within 12 months of the new act’s coming into force date. These changes bolster this framework act by ensuring crucial implementation mechanisms rather than risking them to the uncertainty of regulations yet to be drafted.

One amendment has been rejected. I doubt Senator Gold intended to ghost me, but it was proposed by me on behalf of disability rights experts and organizations. Proposed for clause 9(c) of the bill, this amendment would have protected recipients of the Canada disability benefit act by preventing private insurance companies from deducting the amount of the benefit paid out under the act from payments made under long‑term disability policies.

These clawbacks by private insurance providers were not discussed in committee in the other place, but they were studied extensively when Bill C-22 was examined by the Senate’s Social Affairs Committee. The amendment to stop rich insurance companies from clawing back the benefit from poor people with disabilities was endorsed by over 40 legal aid clinics, community leaders, academics and disability advocacy groups. On the question of its constitutionality, every provincial trial lawyers’ association in Canada supported the amendment as viable in law.

Therefore, we have before us a bill that enables private insurance companies to claw back the new, publicly funded disability benefit regardless of whether Minister Qualtrough calls it a social benefit or not.

Many private insurance contracts are clear that they can set-off any government benefit, effectively subsidizing private insurers instead of providing additional financial support for members of the disability community as intended by the act.

Colleagues, concerns about industry clawbacks are not far-fetched or hypothetical. Clawbacks are happening now to available public benefits. Old Age Security benefits, for example, are already explicitly set-off from long-term disability payments by many private insurance companies while similar deductions have been made from insurance payouts to recipients of the dependent benefit under the Canada Pension Plan, or CPP.

Further, the courts have sided with private insurers. For example, in a 2008 class action, the court affirmed the legality of deductions from long-term disability payments of this nature absent any provision in either the policy or in the legislation prohibiting it, and private insurers leaped to enforce those deductions through litigation against disabled recipients.

For example, in a case involving the State Farm Mutual Automobile Insurance Company, the appellant’s insurance company sought to enforce the deductibility of the CPP dependent benefit on the basis of the 2008 class action ruling. And in Industrial Alliance Insurance and Financial Services Inc. v. Brine, the private insurer sought to enforce deductions from a long-term insurance policy in the amount of benefits received by the policyholder under both the Canada Pension Plan and the Public Service Pension Plan.

Time does not allow me to list the many other cases wherein private insurers went to court to claw back payouts under long‑term disability policies premised on the policyholder’s receipt of public benefits. The rejected amendment prohibiting clawbacks of the new benefit by private insurers would have done what the courts have said needed to be done in order to protect recipients and ensure that benefits are received by those for whom they are intended rather than function to subsidize private insurers.

The time to respond to this concern is sooner rather than later. When the CPP dependent benefit offset was challenged in 2008, industry relied on the fact that its premiums were adjusted on the assumption that it could offset CPP benefits but held that without the availability of that offset, insurance premiums would undoubtedly rise. No such adjustment can presently be relied on by industry in relation to the Canada disability benefit, as premiums taking the new benefit into account have yet to be calculated.

Concerns were raised at the Social Affairs Committee and in this place as to the constitutionality of a provision that engages with the insurance industry by purporting to regulate insurance contracting as falling outside the jurisdiction of the federal parliament. The fact is that such a provision is not unprecedented in Canadian benefit regimes. For forty years, the Merchant Seaman Compensation Act, for example, has protected recipients with wording closely similar to that proposed in the rejected amendment. Forty years, honourable senators, with no court challenges, constitutional or otherwise.

Another relevant precedent can be found in the 2020 reference regarding the Genetic Non-Discrimination Act, which grappled with the constitutionality of a federal legislative scheme to regulate aspects of insurance contracting by preventing private insurers from requiring genetic test results as a precondition for health insurance eligibility. In reviewing the legislative scheme, the court determined that its overall goal was not regulation of the insurance industry per se, but rather the prevention of genetic discrimination in the provision of goods and services such that the insurance provisions at issue comprised only part of a broader regulatory scheme and were necessary in order to preserve the purpose of the federal legislation. Sound familiar?

Absent the act’s protective insurance-related measures, the scheme’s purpose would be seriously undermined, justifying the minor incursion into a matter traditionally falling within the ambit of provincial jurisdiction.

These real-life cases support the viability of a provision like the rejected amendment prohibiting set-offs by private insurers of payments under the Canada disability benefit act. It is clear in the act that the Canada disability benefit is designed to be supplementary for those who qualify under the act.

The legislative purpose of making a supplementary sum available to eligible recipients is undermined if private insurers are permitted to correspondingly claw back payments under their policies because, in practice, the recipient is left with substantially the same amount they were receiving before introduction of the benefit. Absent this simple operational protection, the bill before us today will effectively indemnify private insurers and deny the intended recipients the benefit.

Lifting disabled people out of poverty is the stated fundamental purpose of this bill. In this regard, it will become a mockery of Minister Qualtrough’s promise to disabled people, who desperately need and deserve the Canada disability benefit. The exclusion of this amendment to prohibit benefit clawbacks by private insurers is a choice the Trudeau government has made: to not ensure that certain eligible recipients under the act receive the full supplemental benefit promised to them.

Time will tell how many private insurers will exploit this loophole given to them, and perhaps some day Parliament will have a second chance to bring justice to those disabled recipients who are now exposed to the legal force of rich private insurers.

But let’s not pretend that the real cost will be borne by poor, disabled recipients who would be made to suffer because this government chose not to protect them. They will suffer, and the cost will be borne by them.

Last week, Senator Pate and I received a letter from Mr. Duncan Young, whose standard of living is determined largely by a private insurer. I share the following with his permission:

I am not one of the many selfless volunteers who advocate on behalf of the disabled. Neither am I an activist or lobbyist for any such person or group. I am simply an “average” 55 year-old working-class Canadian, who happens to love his job, and is looking forward to working at it for as long as he can. Or at least I was...

3 years ago, I received a diagnosis of spinocerebellar ataxia 3 (SCA3): an extremely rare, hereditary, neurological disorder that causes the cerebellum to atrophy, thus completely destroying a person’s motor skills; impairing walking, talking, swallowing, bladder control, etc.

It is progressive, has no known treatment(s) to abate its development-and there is no cure. Of note, an affected person typically does not present symptoms until somewhere between ages 40-55: Meaning I (and most like me) are enjoying a full life, still in its ascendency, when suddenly your brain will not allow your legs to form the motion necessary to let you run to catch the bus, or let your fingertips stay still long enough to do up the tiny buttons on your button-down collar.

Let me be clear: Without that amendment enshrined in statute, as worded, I will receive $0 from the creation of the benefit. It would be-in its entirety-an eligible clawback according to my LTD provider’s contract. In short, the only beneficiary of such a benefit would be the shareholders of a publicly-traded insurance company-while I continue to slip below the poverty line. Both points here are not conjecture: They are quantitative facts.

So now you know exactly, unquestionably and with detail, exactly what the passing of C-22 without this amendment will mean to myself and every disabled person in similar positions: Nothing.

I’m so sorry, Mr. Young, but at this stage we must hope that Minister Qualtrough and this government can somehow turn this around by actively convincing provinces and territories to ban private insurance clawbacks of the Canada disability benefit within their respective jurisdictional authority. Such advocacy should not be left, again, to the disability community to take on alone.

Honourable senators, we all know this disability benefit is long overdue and desperately needed. The disability community in Canada has advocated for stronger and more reliable income support for far longer than this bill has been in contemplation by Parliament.

I am grateful for the many insightful comments and valuable contributions to the development of this bill from community leaders and advocates, both in committee and various other capacities. Mindful of time, I can acknowledge only a few. I extend appreciation for the legal expertise provided to the Social Affairs Committee by witnesses who brought the clawback to our attention: David Lepofsky, Robert Lattanzio, Steven Muller and Hart Schwartz. For the sake of those eligible recipients who are unlikely to ever see a penny of the Canada disability benefit, I fervently hope that those experts will continue to be vital contributors to the minister’s promised consultations to fill in the framework legislation.

Let us now pass this bill into law before we leave for the summer. Thank you, meegwetch.

Hon. Marilou McPhedran: I rise to speak briefly in support of every amendment to this bill. I have been asked to bring you a brief message from disability rights experts and some of the community leaders who testified at the Social Affairs, Science and Technology Committee. They ask you to support Bill C-22, as amended, and in so doing stand up for ensuring that no private insurance company can claw back the Canada disability benefit from impoverished people with disabilities.

Let me offer a different perspective than that of Senator Cotter on this amendment, sharing with you the fact that the Supreme Court of Canada upheld a provision in the Genetic Non-Discrimination Act that prohibited private insurance companies as a term of their contracts from certain actions. This amendment to this bill is a similar limitation.

Please also bear in mind that private insurance companies in their contracts and plans state that they can set off any government benefit, and that regulations to this act could not change that. The protection of Canada disability benefits reaching intended recipients must be in the statute. This is key to the amendment made to this bill by a majority of the members of the Social Affairs Committee.

Allow me to offer another reassuring example.

Enacted more than 40 years ago, the Merchant Seamen Compensation Act has a section very similar to what our committee added to Bill C-22. This provision in the Merchant Seamen Compensation Act has protected recipients of the compensation from private insurance set-offs or clawbacks for decades without legal challenge.

It may also be helpful to share with you this clear interpretation of federal authority from Canada’s dean of constitutional law, the late Professor Peter Hogg:

. . . the federal Parliament may spend or lend its funds to any government or institution or individual it chooses, for any purpose it chooses; and that it may attach to any grant or loan any conditions it chooses, including conditions it could not directly legislate.

Disability rights experts are asking you to adopt Bill C-22 as amended and, in doing so, stand up for cabinet having a reasonable timeline set for passing the regulations that are needed to get the Canada disability benefit to impoverished people with disabilities.

Stand up for the right to appeal that is now in this bill, and take note of the fact that the amendment secures appeal options in the two most crucial areas of decision making: eligibility and amount.

While also noting that Senator Cotter’s concern is addressed by the fact that this amendment in no way constrains development of regulations in consultation with disability rights advocates that could expand the appeal categories.

Stand up for ensuring that cabinet must take into account the additional costs of living with a disability and the intersectional needs of disadvantaged groups when setting the amount of the Canada disability benefit.

Honourable colleagues, senators have demonstrated they know the significance of the Canada disability benefit and have worked hard to be thorough and efficient. It was promised by the government in 2020, but introduced in the other place almost two years later, and then not called again for debate for more than three months. Consideration in committee was more focused and timely. The bill passed third reading on February 2 of this year.

In all, Bill C-22 spent eight months in the other place. In contrast, the Senate has conducted its own comprehensive study, including more days of second reading debate and almost double the amount of committee study time in little more than three months. The Senate has clearly responded to the pleas for urgent action. Today, we can ensure that this bill is returned to the other place, made stronger and clearer with amendments.

Honourable senators, please vote today to approve Bill C-22 with the high impact, least intrusive amendments in the report to you from the Social Affairs Committee based on substantial supporting evidence from experts in the field of disability rights.

I wish to close with appreciation to Minister Qualtrough for her dedication and skill as a disability rights expert and parliamentarian; to Senator Cotter for his dedicated sponsorship; to Senator Seidman for her thoughtful contributions as the official critic of this bill; to Senator Ratna Omidvar, Chair of the Social Affairs Committee, for her deft navigational guidance; to expert assistance from Senate and Library of Parliament staff; and, of course, to members of the Social Affairs Committee but, most of all, to every witness and individual who communicated with senators on this crucial legislative initiative that we are now given the honour and responsibility of returning as a strengthened bill to the other place, where all parties have expressed their support for the urgent need for Bill C-22 to proceed.

Thank you. Meegwetch.

Senator McPhedran: Thank you for this opportunity. Meegwetch.

Hon. Marilou McPhedran: Honourable senators, thank you for the courtesy of allowing me to adjourn for the balance of my time on Tuesday evening.

In continuing, with great appreciation of his acumen as a sponsor, I wish to address briefly two assertions made by Senator Cotter in his speech.

First, he stated that:

. . . a vast majority of the disability community — I have counted — is comfortable with the structure of the bill before us and strongly supports its passage in its present form.

Perhaps we are speaking to different disability rights experts?

Second, Senator Cotter encouraged trust in the cabinet process and trust in Minister Qualtrough to deliver far more than is required or even mentioned in this bill.

As much as I respect Senator Cotter and Minister Qualtrough and know that they speak from their lived experiences with disability and deep commitment as champions to better the lives of people with disability, I must question the wisdom of such a leap of trust as the rationale for this bill.

The disability rights experts with whom I have consulted understand that a perfect bill, or a perfect benefit, cannot be achieved this time around. They all agree that this initiative by Minister Qualtrough must be seen through, with the best possible version of this bill finalized and enacted in this session of Parliament, and this bill must not die.

But their political pragmatism — born of necessity — does not excuse us from our duty to give this bill our full consideration and to make achievable critical improvements.

Yes, this is a framework bill. But it’s not a rights-based framework as much as it is aspirational.

Briefly, the glaring omissions and shortcomings in this bill include the following: The bill may never lift anyone out of poverty; there is no minimum standard in the benefit; there is no requirement for the regulations — which are core to any positive change — to be done by the time the act is operational; there is no deadline for payments to be dispersed; the benefit disqualifies thousands of disabled people by their age — clearly discriminatory; the bill lacks transparency and therefore it lacks accountability because it puts decision-making processes behind closed doors; the bill makes an ultimatum, not a real choice.

Given the stakes at hand, it is troubling that this bill does not build more on Canada’s international human rights commitments, principally Article 28 in the Convention on the Rights of Persons with Disabilities, addressing, “Adequate standard of living and social protection.”

Strengthening this bill from a rights-based approach will yield a stronger legislative framework, and, as we saw in the other place, this can be done without stalling the legislative process if the government wills it so.

Dr. Nancy Hansen, Director of the Interdisciplinary Master’s Program in Disability Studies at the University of Manitoba, summarized this approach as a:

. . . charity ethic to support disabled Canadians . . . an overarching colonial aspect of service provision for disabled people . . . that maintains people in marginalized positions. It is residual legislation. It’s better than nothing, but a “once in a generation” fix should be done better than this.

Similarly, Senator Seidman, in her excellent analysis of the bill, raised important questions of moral and ethical compulsion versus mere legal obligation to persons with disabilities.

As noted in the Convention on the Rights of Persons with Disabilities, people with disabilities who also identify as members of minority groups are subject to “multiple or aggravated forms of discrimination.”

There are numerous relevant human rights commitments which Canada has made that should influence our review, but I will list just two more. First, the UN Universal Declaration of Human Rights, Article 25.1, states, “Everyone has the right to a standard of living adequate for the health and well-being . . . .” Second, in the UN Sustainable Development Goals, Goal 10 is to “reduce inequality within and among countries.” Under that goal, target 10.2 is:

By 2030, empower and promote the social, economic and political inclusion of all, irrespective of age, sex, disability, race, ethnicity, origin, religion or economic or other status. Entrenched within the Canadian Constitution, the Canadian Charter of Rights and Freedoms unequivocally underlines the concept of substantive equality, to which I note direct reference is made in the preamble to Bill C-22.

In R. v. Kapp, the Supreme Court reiterated that this concept of substantive equality is grounded in the idea that:

“The promotion of equality entails the promotion of a society in which all are secure in the knowledge that they are recognized at law as human beings equally deserving of concern, respect and consideration” . . .

There is an additional sense of urgency in protecting the fundamental human rights of persons with disabilities in this bill. Applications and requests for MAID as a response to struggles with poverty increase. Bill C-22 does not guarantee that any persons with disabilities will be brought out of poverty. It does not guarantee that any dollar amount will be dispersed in a timely manner, and put bluntly, it doesn’t guarantee the existence of the Canada disability benefit at all.

Life-reducing poverty among persons with disabilities has always been with us, but there is now an additional sense of urgency. Since March 2021, Canada has expanded MAID to be available to people who are not at the end of life to die due to their disability-related suffering and who meet other eligibility criteria. Widespread social and economic deprivation has created conditions in which dying appears to be the only answer for some persons with disabilities to escape poverty.

The Parliamentary Secretary to the Minister of Employment, Workforce Development and Disability Inclusion, Irek Kusmierczyk, acknowledged this reality. He said:

Living with dignity is a far-off hope for many in these circumstances, and some persons with disabilities have, unfortunately and tragically, chosen to apply for MAID in the past year, with poverty being the key driver. The sad fact is that eligibility for MAID has expanded faster than have the social supports that would lift persons with disabilities out of poverty and allow them to live with dignity.

Former Chief Human Rights Commissioner for Ontario, Professor Emeritus Catherine Frazee, described this alarming aspect of MAID:

We dial 911, we pull you back from the ledge, and yes, we restrain you in your moment of crisis. Autonomy be damned. We will get to the heart of the problem that drove you out into the woods and we will beckon you back toward a life that is bearable. Unless your suffering is medical or disability related, then and only then there will be a special pathway to assisted death.

Death on demand, essentially.

As we heard from Senator Miville-Dechêne today, there is a troubling connection between MAID and surprising numbers of people living with disabilities saying clearly that they are now choosing MAID because they cannot live their lives with dignity and adequacy because they are kept poor.

This is why high and welcome aspirations in Bill C-22, unmatched by required resource adequacy, have disability advocates telling us that the focus needs to be placed on strengthening the insufficient framework of this bill. It is not an either/or proposition. Advocates are not suggesting that all details must be worked into the bill. There is no need. Nor are they calling for overly prescriptive legislation here.

Professor Hansen, Professor Frazee, lawyers David Lepofsky and Roberto Lattanzio and their many colleagues are experts. They are seasoned advocates in our democracy. They have to be. They well know that the majority of all legislation is fine-tuned and developed via regulation. They are not being naive in their assessment of essential changes that are needed for this framework to truly bring positive changes to the lived reality in the nitty-gritty of daily lives.

Put bluntly, Bill C-22 is too hollow, too void of direction and there is barely any scaffolding upon which a strong, durable framework can be built.

Here are four clear, practical improvements that the committee could consider: Bring a rights-based lens to the right to an adequate standard of living and social protection, consistent with the Convention on the Rights of Persons with Disabilities. Article 28 provides that “States Parties recognize the right —

Hon. Marilou McPhedran: Honourable senators, I want to join colleagues who have spoken previously in expressing appreciation to Senator Cotter for his leadership on this bill, but I also want to share in a number of the very key points that have been raised.

As a senator from Manitoba, I do want to recognize that I come from Treaty 1 territory. It is the traditional territory of the Anishinaabeg, Cree, Oji-Cree, Dakota and Dene, and the homeland of the Red River Métis Nation.

[Translation]

I acknowledge that the Parliament of Canada is situated on the unceded and unsurrendered territory of the Algonquin Anishinaabe people.

[English]

Colleagues, the bill before us is extremely important. In so stating, I do not seek to take away from the merit of all the bills that come before us, but we have particular urgency attached to this bill. Persons with disabilities in Canada continue to face disproportionate levels of economic and social exclusion. Many are living with insufficient resources and supports to meet the most basic of needs.

There is undisputed consensus amongst the community of disability experts that federal income support legislation is needed, and it is, devastatingly, long overdue. Bill C-22 has been termed a generational landmark endeavour — a once-in-a-generation attempt to right long-entrenched wrongs.

Senator Cotter said this benefit stands as the cornerstone of Canada’s Disability Inclusion Action Plan, and will represent “. . . the commitment of a generation.” So it is urgent — but urgency here means more than simply rapid action. Urgency also means that we have to look at the deep, persistent and insistent need to address this pressing issue, and, frankly, it boils down to this: Quick action is called for, but effective action and quick action are even better.

That is the urgency I wish to speak to. In our haste to provide a rapid remedy, I fear that we are missing the actual point, which is to properly address the persistent need itself, and, sadly, Bill C-22 does not accomplish this.

I am waiting for a consultation that was supposed to take place today, but will now take place tomorrow. I want to be absolutely sure that the points that I wish to raise are consistent with this consultation. With permission, I would like to adjourn for the balance of my time, if I may, please.

(On motion of Senator McPhedran, debate adjourned.)