CERB and CRB Discriminated Against Canadians With Disabilities, New Charter Challenge Claims The Star

Unlike other income replacement programs like parental or maternal benefits, the Canadian Pension Plan Disability benefit did not count toward the $5,000 threshold to qualify for CERB and CRB. By Rosa SabaBusiness
Toronto Star, Nov. 26, 2021

A worker with a disability has launched a challenge under the Canadian Charter of Rights and Freedoms, claiming that the federal government’s COVID-19 relief programs for workers discriminated against workers with disabilities.

Valerie Jacob hopes this challenge could bring long-overdue recognition to the value of workers with disabilities and the many structural and cultural barriers they face in seeking and maintaining employment.

“There’s just been so much inequality that’s been highlighted (and) brought about by this pandemic as to who is worthy and who has value and who is deserving of pandemic support,” she said.

Like many Canadians, Jacob was working when the COVID-19 pandemic began. Like many Canadians, she was laid off and told to stay home.

But unlike many Canadians, Jacob didn’t qualify for the Canada Emergency Response Benefit (CERB), which the government launched for the millions of laid-off workers in the beginning of the pandemic.

Nor did she qualify for the Canada Recovery Benefit (CRB), a similar program that replaced CERB in September 2020.

In both cases, Jacob didn’t qualify because of her disability.

Jacob was diagnosed with severe ulcerative colitis in 2001 and severe Crohn’s disease in 2016. Her illnesses, and complications stemming from them, eventually cut her career as an art therapist short. To this day, Jacobs receives regular treatments and has had multiple surgeries; the treatments suppress her immune system, putting her at a higher risk during the pandemic. When her health is stable, Jacob is able to work around 15 hours a week.

She receives the Canada Pension Plan Disability benefit (CPPD), a partial income replacement program for people with permanent or long-term disabilities. Recipients can earn up to $6,100 in a year without losing the CPPD benefit, which begins to be clawed back after that threshold is crossed.

CERB and CRB had two main eligibility criteria: that the person had lost their job due to COVID-19, and that they made $5,000 or more in the year prior to losing that job.

Jacob had made less than $5,000 in 2019 due to the limitations caused by her disability. And her CPPD payments did not count as eligible income for CERB or CRB even though other income replacement payments like parental or maternal benefits did count for the CERB.

“Why that and not CPPD?” asked her lawyer, Sujit Choudhry.

“She’s a disabled worker, and this is a worker benefit.”

Federal employment minister Carla Qualtrough did not comment on the Charter challenge, as it’s before the courts.

Jacob remembers watching Prime Minister Justin Trudeau promise that the government would support all working Canadians who had lost income due to COVID-19.

“That has fallen short for people with disabilities,” said Jacob.

Jacob’s challenge argues that the CERB and CRB violate several sections of the Charter via the $5,000 threshold and the exclusion of CPPD from eligible income sources for eligibility.

Not only did Jacob’s disability prevent her from meeting the $5,000 threshold in 2019 for CERB, it also further prevented her from going back to work during the pandemic, because she is immunocompromised, therefore preventing her from working toward that threshold for CRB. She also suffered declining health in 2021 which further prevented her from working.

In contrast, Jacob was able to receive Employment Insurance for a short period of time, thanks to the lowered eligibility criteria due to COVID-19; EI relies on hours worked, not dollars earned, for its eligibility.

Jacob has tried twice to pursue retraining for a career she believes would be a good fit for her, as a medical transcriptionist. The ability to work from home and have flexible hours would make her work life more sustainable, she said, but the cost of retraining has been prohibitive. Had she received CERB and/or CRB, she would have been able to get that training, the challenge claims.

“I certainly would have used those funds to go back to school and pursue something that really may give me job satisfaction,” she said.

Jacob’s Charter challenge is asking for these provisions to be struck down, and for her to receive retroactive CERB and CRB payments.

Choudhry said it’s the first case he’s aware of where a person with a disability has launched a challenge regarding the income eligibility requirements for an income support program.

“It could have much broader systemic implications,” he said.

The CRB is on its way out, as a suite of pandemic benefits are set to expire Oct. 20, 2021

If the challenge is successful, Jacob said it will be an “important step in moving the rights of the disabled forward.”

I hope there’s going to be a ripple effect,” she said.

Rabia Khedr, national director of Disability Without Poverty, said Jacob’s case could result in a “significant win” for people with disabilities, many of whom likely found themselves in a similar position.

“We know that people with disabilities have been pushed further into deeper poverty as a result of the pandemic,” she said. “And we certainly see the inequity in what is deemed necessary for working aged Canadians to live versus what is deemed necessary as income for disabled people.”

A successful Charter challenge could influence future government income support programs, not only those launched during the pandemic, said Khedr.

Michelle Hewitt, co-chair of Disability Without Poverty and a member of the social justice committee of the Council of Canadians with Disabilities, said people with disabilities have often been “legislated into poverty” by earnings criteria for government support, not only pandemic-specific programs.

People with disabilities in Canada are more likely to live below the poverty line, according to data from Statistics Canada.

“We need Charter challenges like this to lift disabled people out of those traps,” said Hewitt.
Original at https://www.thestar.com/business/2021/11/26/cerb-and-crb-discriminated-against-canadians-with-disabilities-new-charter-challenge-claims.html?source=newsletter&utm_content=a07&utm_source=ts_nl&utm_medium=email&utm_email=2189C599528DBC9810DF35C6523917CE&utm_campaign=teve_88533