CACL CCD Submission before the Senate Committee on Banking, Trade and Commerce

(December 11, 2013)

CACL Introduction

• Founded in 1958, CACL is a national federation of over 40,000 individual members, 400 local associations, and 13 Provincial/Territorial Associations for Community Living. CACL is a national member of Inclusion International, the international federation of associations working to advance the inclusion and human rights of people with intellectual disabilities and their families.

CCD Introduction

• CCD is a national association of persons with disabilities that seeks to improve the status of persons with disabilities.  CCD’s priorities are alleviating the poverty of Canadians with disabilities, making Canada’s labour force more inclusive of persons with disabilities and improving access to the goods and services of Canada.   CCD was founded in 1976, is cross disability in nature, and seeks to make Canada more accessible and inclusive.  CCD has 9 provincial member organizations and 7 other national associations as members, each with a seat on the National Council.   CCD’s National Coordinator was a member of the three person Expert Panel appointed by Minister Flaherty to create the RDSP.    CCD has a long history of collaborating with governments and was directly involved in ensuring protection from discrimination on the basis of disability was included in the Charter and more recently our focus has been on the development, ratification and implementation of the United Nations Convention on the Rights of Persons with Disabilities. 

Brandon Pooron Introduction

• I am here as advisor to CACL and CCD.  I am family member of two siblings both whom were born with a developmental disability.  Professionally, I am a lawyer that specializes in disability law and policy.  I also teach Critical Disability Law at York University, am a director of various disability organizations and a lawyer member of the Ontario Consent and Capacity Board. 
• Thank you for providing us with an opportunity to speak with you today.

Issue:

• The impediment created by the contractual competence and legal authorization requirements for opening a Registered Disability Savings Plan (RDSP) has been frequently cited by individuals with intellectual disabilities and their family members as a barrier that prevents eligible beneficiaries from opening a plan.  For many family members, they are caught between their desire to assure the future financial security of their relative, and the stigma, and restriction of basic rights to liberty, they know comes with formally placing their relative under a substitute decision-making or guardianship order.

Background:

• Amendments to the Income Tax Act in 2008, which created the RDSP, appear to disqualify adults who have disabilities and who are otherwise eligible to open their own RDSPs from doing so if they are deemed not to be “contractually competent”.
• The legislation requires that an RDSP must be opened for them by a “qualifying person”, who is “legally authorized to act on behalf of the beneficiary”.
• This requirement does not reflect developments in law and policy in Canada, in particular Canada’s ratification of the United Nations Convention on the Rights of Persons with Disabilities, that recognize the stigmatizing impact of formally labeling people “incapable”, excluding them from employing whatever capabilities they have in the decision-making process, and officially designating other persons as substitute decision makers on their behalf.  In many provincial and territorial jurisdictions, an individual would have to undergo a formal capacity assessment, be found incapable of managing property, give up all of their decision making rights, and be the subject of a guardianship order in order to benefit from an RDSP.
• The implication of this gap in legislation means that a considerable proportion of the population for which the RDSP was meant to benefit is currently unable to do so.
• Since the RDSP`s inception in 2008, individuals that face this barrier have lost out on $27,000 of federal government contributions.  For those who have since turned 49 years of age, these contributions are permanently gone.  For every December 31 that goes by, eligible beneficiaries under the age of the 49, forego $16,500 in federal contributions.  This is in addition to private contributions and growth on their investment.  I need to emphasize this point again, at the end of this month, there will be another cohort of eligible beneficiaries who will not benefit from government contributions because they would have “aged out” from receiving these benefits.  Needless to say, this issue requires an urgent and immediate resolution.
• CACL, CCD, PooranLan and PLAN undertook extensive legal research to examine potential solutions and outlined a ‘Canadian Option’ that could be developed within the parameters of the legislation, based on the principles of ‘supported decision making.
• This solution was presented to the Ministry of Finance in 2011.  To our disappointment, the solution was not adopted.
• It was suggested that a national solution, rather than one by each of the thirteen provincial and territorial governments - may be constitutionally outside of federal jurisdiction. The concern is that “property and civil rights in the province” are assigned by s. 92 of the British North America Act (BNA Act) to the exclusive jurisdiction of the provincial legislatures, and that no new statutory rules or definitions pertaining to legal capacity could be undertaken by the federal authority.   Based on our legal analysis, it is our respectful submission, that the Ministry’s interpretation of the jurisprudence and legal doctrine was incorrect.  I will address the jurisdiction issue in a few minutes.

The Solution

• Before that, I would like to provide a brief overview of the solution at this time. 
• The proposed solution involves a Federal Government Form (“the Form”) authorized by Finance Canada and the Canada Revenue Agency enabling the appointment of one or more qualifying persons, as defined in the Income Tax Act, who may act as joint RDSP Account Holders in their capacity as an adult’s decision-making supporters.
• The Form provides for adults who may not be deemed to have contractual capacity to authorize one or more qualifying persons and it will enable persons who have special relationships to the beneficiary to be self-appointed as qualifying persons where a beneficiary may not be able to give direction.
• The standard for capacity to make such an appointment has statutory precedence in the British Columbia Representation Agreement Act – based on “whether the adult has a relationship with the representative that is characterized by trust.”
• We realize that it is important to be protective of the interests of people who are vulnerable by way of their intellectual capacity while at the same time assuring their participation in affairs that are relevant to them, and assuring their rights and dignity.
• To that end, the Form requires a third unrelated party to attest to the nature of the relationship between the adult and the qualifying person where the adult is unable to give direction. All signatures on the Form must be witnessed.
• Any decision-making supporters must subscribe to the principles of supported decision- making, must agree to assume fiduciary responsibility in their capacity as joint holders of plans, must attest that they are not in a conflict of interest and must agree to assume liability in the event of a wrong-doing on their part.
• My friends at PLAN will describe this solution in greater detail. 

 
Jurisdictional Issue

• Returning to the jurisdictional issue, in a paper authored by CACL, we concluded that the issue of legal representation and the RDSP could be dealt with by measures within the power of either level of legislative authority in Canada, or by a combination of both”¹.  That conclusion was reached on the basis of an analysis by Professor Peter Hogg of the constitutional division of powers in Canada between the federal and provincial governments and legislatures.
• Professor Hogg analyzed a number of cases going back to 1970 where the Supreme Court of Canada had addressed the question of the extent to which it is permissible for the federal power to encroach on those matters that are assigned by the BNA Act to the provinces, or vice versa. The prevailing test permitting federal intrusion into areas of provincial jurisdiction has been whether there is a “rational, functional connection” between those elements of a federal statute that are clearly within the legislative authority of the Parliament of Canada and the “impugned” provision that would ordinarily be reserved for provincial or territorial action. (see the Multiple Access v. McCutcheon (1982))²
• The Multiple Access precedent was followed in 1989 in General Motors v. City National Leasing³ with some fine tuning to distinguish between “minor” encroachments, where a simple rational connection was sufficient to justify exercising a power ordinarily reserved to the provinces, and “major” encroachments, where the federal exercise of a provincial power would have to be “essential” to the creation of an effective national legislative scheme. Where the federal statute intruded into a provincial area of jurisdiction only “in a limited way”, the issue of whether it was necessary to do so did not even have to be addressed.⁴
• Any revision of the rules governing contractual competence in the opening of an RDSP would, it is submitted, be a very limited incursion by the federal government into the realm of property and civil rights. Not only that, but it could be argued that it is in fact essential to remove disparities based on disability and province or territory of residence from a federal program such as the RDSP.
• The issue of the development of “a uniform national remedy” that involves the federal Government’s direct action in dealing with matters that are ordinarily within the jurisdiction of the provinces and territories was also addressed and upheld by the Supreme Court in Kirkbi v. Ritvik Holdings in 2005.⁵
• Most recently, in a reference to a proposed national Securities Act in December, 2011, the Supreme Court reaffirmed the reasoning in the General Motors case, however, distinguished the proposed Securities Act, stating that “its effects would be to duplicate and displace the existing provincial and territorial securities regimes”.⁶
• We submit that the proposed solution to the problem of contractual competence in the federal RDSP legislation is clearly intended to provide for consistency across the country without limiting in any way the authority of the provinces and territories to enact or maintain their own legislation relating to the status of “qualifying persons” for RDSP purposes, and would therefore not violate any constitutional division-of-powers principles as interpreted by the courts. Not only that, the federal solution to resolve the legal representation question would have relevance only in the RDSP context, which removes it even further from crossing the line beyond which federal interference in provincial or territorial jurisdiction would be legally unacceptable.

Conclusion

• In conclusion, we believe that the federal government does have the legal authority to implement a national solution.  This is much preferred when compared to a patchwork of legislative schemes among the provinces and territories intended to address this issue.  A consistent policy and legislative framework would ensure that eligible Canadians with disabilities are able to access the benefits of the RDSP regardless of the type or degree of their disability or their province or territory of residence. 
• From an implementation standpoint, I believe that a national solution would also be preferred by the financial institutions – rather than having to design and develop new process and systems enhancements to incorporate  a myriad of legislative solutions that satisfy the requirements of each province and territory.
• We are now approaching the end year 6 of the RDSP.  This gap in legislation has contributed to the uptake rate among potential beneficiaries of RDSPs being less than 15%. Twenty days from now, another cohort of eligible beneficiaries will unfairly lose out on benefiting from this generous program.
• This legal issued has garnered much attention from our respective organizations since the introduction of the RDSP in 2008. We are more than willing to work with you in the coming months to make a national solution a reality for our community. 
• Thank you.

Footnotes
1. “Understanding Legal Representation and Supported Decision Making for Persons with Disabilities in Canada”, Note 1 above, page 6.
2. [1982] 2 S.C.R. 161.
3. [1989] 1 S.C.R. 641.
4. Hogg, Note 3 above, p. 15-42.
5. [2005] 3 S.C.R. 302, (emphasis added).
6. Reference re Securities Act, Note 8 above, Headnotes, (emphasis added).