LATC - Week 1 Materials - Law Foundation of BC

LATC - Week 1 Materials

Table of Contents Page

1. Overview of Law Foundation Resources for Advocates 6

a. Lesson Plan 6

b. LATC Course Guide 7

c. Guidelines for Advocates 12

i. Best Practices for Advocates 12

ii. LFBC Scope of Service 16

iii. LFBC Conflict Policy 20

iv. LFBC Reporting Child Abuse 30

v. Monthly Advocacy Statistics FAQ 35

vi. LFBC Support for Advocates 38

d. Resources for Advocates 39

i. Legal Supervision Guidelines 39

ii. Legal Clinic Contact Info 42

iii. CASL 43

iv. PovNet 44

2. Introduction to Administrative Law 45

a. Lesson Plan 45

b. Overview of the Canadian Legal System 46

c. Structure of Courts & Tribunals 82

d. Canadian Judicial System 85

Legal Advocacy Training Course - Week 1 Materials - TOC

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3. Residential Tenancy Overview 90

a. Lesson Plan 90

b. Recorded Webinar 91

c. Residential Tenancy PPT 92

d. Dispute Resolution PPT 119

e. Tenant Survival Guide 138

f. Fact Patterns 139

g. Fact Patterns' Answers 143

4. Professional Responsibility & File Management 152

a. Lesson Plan 152

b. File Management & Prof. Responsibility PPT 153

c. File Management Chart 173

d. File Management Handout 174

e. Forms 180

i. File Opening Checklist 180

ii. Intake Form 181

iii. Medical Authorization 184

iv. Authorization & Waiver of Confidentiality 185

ix. Retainer Letter RTB 186

v. Consent for Disclosure 191

vi. Conflict Letter 192

vii. Decline Assistance 193

viii. Retainer Letter MSDSI 194

x. Withdrawal 198

xi. File Closing Form 200

f. 5 File Management Tips 201

g. Ownership of File Contents 202


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h. What to do with Closed Files 203

i. Myths and Facts about Conflicts 205

j. LFBC Conflict Policy 210

k. Fact Patterns 220

i. In-Class Fact Pattern with Answers 220

ii. Fact Pattern - Conflicts 222

iii. Fact Pattern - Withdrawal 223

iv. Fact Pattern - Confidentiality 224

Early Case - Provincial Court 225

v. Fact Pattern - Acquaintances 231

vi. Fact Pattern - Best Interests 232

5. Statutory Interpretation & Legal Research 233

a. Lesson Plan 233

b. Statutory Interpretation PPT 234

c. Tips for Navicating MSDSI Website 245

d. Research Assignment 248

6. Income Assistance Overview 249

a. Lesson Plan 249

b. Income Assistance Overview Handbook 250

c. Income Assistance Overview PPT 307

d. Assistance Classifications and Rates 349

e. Acronym Cheat Sheet 350

f. CRSQ Contact List 351

g. Fact Patterns 352

i. Employment Sanction Scenario 352

ii. Employment Sanction Scenario Notes 354

iii. Dependency Scenario 356


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iv. Dependency Scenario Notes 360

v. Income Assets Eligibility Scenario 364

vi. Income Assets Eligibility Scenario Notes 373

7. PWD Overview 382

a. Lesson Plan 382

b. PWD PPT 383

c. PWD Training Manual 423

d. Doctor Cover Letter 468

e. Template Doctor Letter 469

f. DABC Reconsideration Letter to Doctor & Questionnaire 470

g. PWD Application & Denial Decision Summary 476

8. CPP Disability Overview 496

a. Lesson Plan 496

b. CPP Disability Overview PPT 497

c. CPP Years Basic Exemption Rate Table 542

d. CPP Personal Information Request 543

e. CPP Application Addition 544

f. MS Society - How to Complete an Application for CPPD 552

9. Case Evaluation 553

a. Lesson Plan 553

b. Case Evlation Reading Materials 555

c. Case Evaluation PPT 570

d. Fact Patterns 584

i. In-Class Fact Patterns 584

ii. Small Group Fact Pattern 1 586

iii. Small Group Fact Pattern 2 588

10. Writing Skills - Persuasive Writing in Letters 589


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a. Lesson Plan 589

b. Writing Skills PPT 590

c. Written Skills Workbook Chapter 627

d. Worksheets 641

i. active voice 641

ii. Hidden Verbs 642

iii. Clutter 644

e. Writing Checklist 646

f. Writing Assignment 649

g. Legislation for Letters 650

h. Writing guidelines 652

11. Interviewing Skills 654

a. Lesson Plan 654

b. Interviewing & Advising Guide 655

c. Interviewing Article 657

d. Fact Patterns 663

e. Interview Questions Funnel 667


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Topic:

LATC Overview and Law Foundation Resources for Advocates

Learning objective/s:

Advocates will be familiar with: • The Legal Advocacy Training Course content and

assessment. • Law Foundation staff and their roles • Documents created by the Law Foundation to provide

guidance to advocates on practice issues. o Scope of service o Best Practices for Advocates o Conflicts o Reporting child abuse o Binder for new advocates

• Support for advocates o PovNet o CASL (FASL) o Supervising lawyers o Education and Training Fund o Resources page

• Reporting requirements of the Law Foundation and options for tracking statistics

Activity:

• Presentations • Discussion in small groups with program staff

Resource persons: • Law Foundation staff Materials

• Scope of service documents • Best Practices for Advocates • Conflicts and Reporting Child Abuse documents • TOC of Binder for New Advocates • PovNet info sheet • CASL info sheet • Sample statistics reporting forms

Assessment • Test

Legal Advocacy Training Course - Week 1 Materials - 1. Overview of Law Foundation Resources for Advocates

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The Law Foundation of B.C.

Legal Advocacy Training Course

Course Guide2021


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Welcome to the Legal Advocacy Training Course (LATC) organized by the Law Foundation of BC. The goal of the Legal Advocacy Training Initiative is to support the professional development of legal advocates so they are well-equipped to provide a full range of advocacy services to clients and client groups. When the Legal Advocacy Training Course started in 2008, staff developed the curriculum for the course by reviewing existing research and opinions about what should be included in training for legal advocates, as well as consulting extensively with advocates and others working in the field. Content of the course has developed and been modified some over the years in response to feedback.

The LATC is now part of the ongoing education and training support for advocates provided by the Law Foundation, and taking the LATC, or proving an equivalent, is required of legal advocates funded by the Law Foundation who work .5 FTE or more with an advocacy program funded by the Law Foundation. Curriculum The areas identified as important elements of the training program include the following:

Practical skills: • basic advocacy skills • oral presentations • writing skills • interviewing and case analysis • legal research • interpreting legislation • file management • principles of administrative law

Substantive knowledge: • welfare law • residential tenancy • employment issues • introduction to family law, consumer

debt law, basic principles of contract law, and child protection

• ethical issues and professional responsibility

The LATC curriculum is designed to provide adult learners with information that is relevant to the work they do in BC as legal advocates. Many sessions include small group work or discussion so that participants may contribute knowledge they already have about topics. All skills training sessions provide time for participants to practise the skills being taught.

The course provides core training on poverty law issues and related advocacy skills. Other training or professional development can build on the skills and information introduced in this training.

Materials All participants in the Legal Advocacy Training Course will receive the following:

• This Student Handbook that sets out information about the course and our expectations of participants.

• A course schedule with an overview of the sessions, assignments and assessments. • Lesson plans and course materials (These will be available online before each session

and compiled into an electronic resource binder at the end of the course).


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Group work The schedule for the Legal Advocacy Training Course is very full. It is important that participants are at all sessions to learn what is being taught and participate in group discussions which are often very valuable elements of the sessions as they give you an opportunity to apply what you learn and see what you know. We expect all participants to attend all sessions. If you find it unavoidable to miss a session, please tell us in advance if possible, or as soon as you can if you have an unexpected illness or serious emergency. (This should not include work for clients as we expect you to plan to have other staff cover your office responsibilities while you are at this course.) You can email our Legal Advocate Training Manager, Lois Shelton at [email protected] . Preparation for class Each lesson plan sets out any preparation asked of participants for each session. For very new advocates, or in sessions that cover a lot of material, reading background materials before the session can improve your understanding of, and ability to participate in, the session. Materials for pre-reading will be available online before the session. We ask everyone to do any pre-reading that is listed for each class. It will be best for you and your clients if you arrange to have someone take responsibility for your files while you are at the LATC. If no one can take over your files please try to manage your schedule so that you have no work to do on behalf of clients when training sessions or the final test are scheduled, or you need time to work on class prep or assignments. Assessment The Legal Advocacy Training Course will assess participants’ understanding of course content through a combination of assignments and the tests described below. • Assignments:

o Legal Research (week 1)

o Persuasive writing: Letter (week 1)

o Presenting submissions: Reconsideration (week 2)

These assignments will be handed out at the Course and must be emailed back to us by the due dates listed in the curriculum. Please note: We expect any work submitted for an assignment to be all your own work. Even when there is some group work in class to prepare for an assignment, the final version you submit should be clearly your own work.


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mailto:[email protected]

• Tests

o Week 1 Test: June 30, 2021 o Week 2 Test: TBD

Both tests will be open book. The materials in your Resource Binder will be clearly marked as core material we expect you to read. Some additional non-examinable materials may be included with some lessons as useful further reading or as a resource you can use in your work. Questions on the test will only be based on core material and class lectures. All exercises, assignments will be marked as “successfully completed” or “not successfully completed”. The passing grade for course tests is 65%. • Results

Results and any feedback will be sent directly to students. If there is remedial work to be done on any assignment the request for this will also be sent directly to the student by the Legal Advocacy Training Manager on behalf of instructors. Final results for each advocate will be sent to the advocate’s organization, supervising lawyer, and Law Foundation program staff responsible for the program. If an advocate does not successfully complete a remedial assignment, the advocate’s organization, supervising lawyer, and Law Foundation program staff responsible for the program will be informed, so that they can develop a plan for appropriate support and further remedial work. Class participation may be considered when making a final decision about whether a participant has successfully completed the Legal Advocacy Training Course. Unexplained absences will also be taken into consideration when assessing the final decision about whether or not a student has successfully completed or not completed the LATC. Participants who successfully complete the course will receive documentation of their accomplishment. Classroom management Please be on time for all sessions. Please do not deal with client matters while you are in class. Please keep your cell phone turned off during class. Please use laptops or other devices only for class work – not personal or client work. We encourage discussion, but please be do not take class time to discuss particular, detailed situations. Please be conscious of the value of involving all participants in classroom discussions. Feedback

Throughout each week of training, you will be asked to comment on the feedback form provided. We ask you to fill out in as much detail as possible. Please write down any suggestions for improvement – in course content, materials or presentations. Any feedback you give is confidential.


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LATC Staff Contact Information Lois Shelton Legal Advocate Training Manager 1340 – 605 Robson Street Vancouver V6B 5J3 Email - [email protected]

Kayla Black Program Assistant 1340 – 605 Robson Street Vancouver V6B 5J3 Email – [email protected]


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THE LAW FOUNDATION OF BRITISH COLUMBIA

BEST PRACTICES FOR ADVOCATES

This document is intended to serve as a guide to advocates funded by the Law Foundation as to what practices and level of conduct are expected of them. The document does not deal with why these are the best practices to be followed, nor does it explain how to implement these practices. Rather it is meant to provide a touchstone regarding the professional fulfillment of the duties of an advocate. If an advocate does not understand why a particular best practice exists or how to meet the standard expected, they should follow up with their supervisor at work, their supervising lawyer or their program director at the Law Foundation for clarification.

Client Relationships and Professional Responsibility

1. Maintain strict confidentiality regarding all information with respect to a client’s file

2. Avoid any conflict of interest regarding a client’s file. If there are any questionsabout a possible conflict of interest, your supervising lawyer should be contacted.

3. Treat all clients with respect and courtesy

4. Clients are entitled to have their files handled in a competent, thorough andtimely manner

5. Communicate clearly with clients regarding what you can do for them, and whatyou cannot do for them, in order to manage client expectations and establishboundaries for your professional well being

6. For every full representation file provide the client with a retainer letter setting outwhat you will be doing, and what you will not be doing, for that client

7. Respond promptly to any communication from clients

8. Keep clients regularly updated on the status of their file

9. Make use of the Community Advocate Support Line lawyer

10. Know what other resources there are, both within your community andelsewhere, to refer clients to

11. Maintain a collection of current Public Legal Education and Information materialsto provide to clients


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Opposing Parties

1. Treat all opposing parties with respect and courtesy

2. Respond promptly to any communication from opposing parties

Tribunals and Courts

1. Treat all administrative tribunal members and judges with respect and courtesy

2. Ensure that all procedural requirements of any tribunal or court are met

3. Respond promptly to any communication from tribunals, courts or othergovernment agencies

File Management

1. Utilize the Foundation’s key precedent documents, or equivalent documents, forfull representation files (intake form, file opening checklist, retainer letters,authorizations to release information, consent for disclosure of information andwaiver of confidentiality, file closing form)

2. Any consent for disclosure of information form used must include permission forLaw Foundation staff or their agents to review the file

3. Maintain a formalized intake process (what is the process once people contactthe office, what happens when they arrive, what are the income criteria, whatpaperwork is to be completed, what happens at the end of the initial interview)

4. Maintain a bring forward system for all open client files

5. Maintain a conflicts check system for all new clients

6. Maintain a system for identifying and monitoring any limitation periods

7. Have file contents organized chronologically (and in accordance withorganization’s protocol)

8. Keep and date notes of all substantive conversations and meetings with respectto client files, in particular information received from and advice given to clients

9. Maintain a system for work load management (what types of cases are taken,merit assessment, time allocation parameters)


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10. Maintain a system for storing open and closed client files securely and separately

11. Maintain a central file index with a list of all open files and all closed files(containing information such as client name, address, legal matter, file number,date file opened, date file closed)

12. Maintain a list of all open files

13. Ensure the safekeeping of all original documents

14. Maintain a formalized file closing process (criteria for when to close a file,completion of a file closing form, review file with supervising lawyer, file closingletter to client, return of any original documents to client, physical storage ofclosed files)

Legal Supervision

1. Be familiar with the Foundation’s Legal Supervision Requirements, which set outa supervising lawyer’s responsibilities in supervising advocates. Bear in mind thatthe Foundation expects that each advocate should be supervised according tohis or her level of competence and experience in each area of law. It is for thesupervising lawyer to assess an advocate’s competence and experience in eacharea of law, and to then determine the level of supervision required. Asupervising lawyer is responsible for the supervision of an advocate’s work inregards to substantive and procedural legal matters

2. Respond promptly to any communication from your supervising lawyer

3. Hold regularly scheduled meetings with your supervising lawyer, and at othertimes as needed

4. If you think you should ask your supervising lawyer about something, no matterhow small – ask


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Professional Education

1. Participate in ongoing professional education (Provincial Training Conference,the Foundation’s Education and Training Fund)

2. Participate in PovNet

3. Participate in regional calls with the Ministry of Social Development or meetingsof groups such as the Front Line Advocacy Workers, as appropriate

4. Keep current on relevant legislation

Law Foundation

1. Respond promptly to any communication from the Foundation

2. Assist with the provision of activity reports to the Foundation, as required by theFoundation’s grant

3. Assist with the provision of monthly statistics to the Foundation, as required bythe Foundation’s grant

4. Be familiar with the Foundation’s Advocacy Program Guidelines

5. Comply with any conditions attached to the Foundation’s grant

W:\TEMPLATE\Info Sheets\Best Practices for Advocates - Nov. 2012.doc


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Poverty Law Advocacy Program Scope of Service November 2019

Overall Objective: The advocate will provide free legal information, advocacy, and representation to low-income people in the community. Poverty Law Matters Covered:

• Income security, income assistance; • Persons with Disability (PWD) and CPP-Disability (CPP-D) • Tenancy issues: RTA and non-RTA issues including mobile homes, Co-

ops, shared accommodation, and room rentals; • Employment law: EI, ESB; • Old Age Security; • Debt and consumer law; • Workers’ rights; • Civil Resolution Tribunal (CRT) assistance on co-op, non-RTA housing, and

small claims. o advocates should not cover strata, ICBC/motor vehicle, and

personal injury matters. • Aboriginal law issues including Indian status applications, health benefits,

band membership applications, housing, and income security; • Family Law – information and referral only; and • Other areas of law will be considered when those issues are connected with

poverty law matters and when not covered by legal aid.

1. Information and Referral:

• Being available to clients in their communities; • Reviewing information provided by clients; • Explaining information and process for clients; • Making legal information available; and • Providing appropriate referrals as needed.

2. Advocacy:

• Identifying clients’ legal issues; i.e. identifying why a client does not have

disability benefits; • Providing information about benefits; • Advocating with decision-makers on behalf of clients;


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• Prioritizing clients legal needs and helping them choose realistic solutions; and

• Representing clients at tribunals and other hearings.

3. Systemic Advocacy:

• Sometimes it is necessary to address systemic, substantive and procedural issues that affect more than one client with the relevant department or decisionmaker. This should involve specific concerns with specific recommendations for change.

4. Becoming a Commissioner for Taking Affidavits:

• The advocate, their organization, and their supervising lawyer have

discretion as to: o whether to seek the appointment order; and o deciding who can access the service.

• This discretion is subject to the following limitations:

o the supervising lawyer must be in agreement with the advocate obtaining the appointment as commissioner;

o advocates must limit their commissioning services to clients of the organization;

o advocates must not commission affidavits or statutory declarations on any matter that relates to real property or any other property or matters with a value in excess of $20,000;

o advocates must take regular Law Foundation training on the correct procedure for commissioning affidavits and statutory declarations; and

o advocates must complete a checklist confirming the procedure they followed when confirming the identity of the client; the fact sheet must remain on the file after closing.

5. Public Legal Education (PLE):

• While PLE is not a core service or required, most advocacy programs will

likely provide some limited PLE workshops and take initiative in doing so; and

• Connect with the Law Matters Program at their local public library. The advocate will:

• Interview clients to help identify legal issues, prioritize their legal needs, and help them choose realistic and fair legal solutions by providing legal information, advocacy, and appropriate referrals to other specialized advocacy programs, lawyers and other resources;


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• Provide clients with options and assist them with decision-making - keeping in mind their specific needs due to disability, cultural or language barriers, literacy issues, transportation and childcare issues; and

• Meet regularly with a supervising lawyer for advice and file review.

Civil Resolution Tribunal (CRT): The advocate should consider a means test or assessment prior to assisting a client with the CRT. Advocates can be either be a “helper” or a “representative”. A helper cannot talk to the CRT on a clients’ behalf but can provide support to the client such as helping them stay organized, taking notes, provide emotional support, and helping them fill out forms. A representative can speak to the CRT on the clients’ behalf and make agreements on their behalf (recognizing that the client will then have to follow through on what is agreed to), act as the contact person for communication with the CRT, file documents on behalf of the client, discuss the dispute with CRT staff, and speak during the tribunal or oral hearing. If a client requests that an advocate act as a representative with the CRT the client must ask permission of the CRT to do so. Other functions:

• Identifying gaps in services and systemic issues and collaborating with others to identify solutions where appropriate;

• Developing legal resources and hand-outs; • Organizing pro bono legal clinics; • Acting as a liaison to the justice system; and • Staying apprised of new legal developments and resources.

Conflicts Policy: All organizations should develop a Conflict Policy. Conflicts can arise where the agency has already represented another party, even outside the poverty law program. Each program will develop a conflicts policy. Advocacy offices should be designed to represent the interests of only one party to a dispute and therefore must keep a robust and up-to-date system of checking for conflicts. Services will be provided to the clients on a first come first served basis. If a Poverty Law Advocacy program and a Family Law Advocacy program are housed in the same organization, the programs will share client lists. Accessing one program will disqualify the opposing separating spouse from accessing the other program. First come, first served means that if client A is using poverty law services, their separating spouse B cannot access the family law advocate. But client B can access other services at the agency. Clients who are “conflicted out” should be referred to another poverty law advocacy program in the closest community.


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Law Foundation Training: Law Foundation Advocates are expected:

• To attend the Legal Advocate Training Course; • To attend the Provincial Training Conference every year; • To attend the monthly two-hour poverty law workshop delivered by the lawyer for

the Community Advocate Support Line (CASL) when available; and • To avail themselves of the Law Foundation Education and Training Fund where

appropriate. Legal advocates funded by the Law Foundation working at least .5 FTE may apply to the fund for financial support for the costs of:

o training for professional development, or o counselling to support advocates dealing with trauma related to their work.

Suggested Percentages as Guidelines:

• Advocacy 80% (75% if working in a focused area with 5% for Law Reform) • PLE – 10% • Community Involvement – 2.5% • Systemic Advocacy - 2.5% • Legal Supervision, Administration, and Training – 5%

If there is ambiguity or uncertainty as to the meaning of terms within this document, then the advocacy program will contact the law foundation program director to resolve the ambiguity or uncertainty.


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Conflicts of Interest: Policy and Procedures for Law Foundation Funded Legal Advocates

January 2020

Maintaining client confidentiality is a key responsibility of legal advocates. It is essential for you to properly do your work and to maintain client confidence in your services. This document explains what conflicts are, and sets out standard procedures that advocates should follow to avoid finding themselves with a conflict of interest. Concrete examples of particular situations, and a table listing some of these, are included to provide further guidance. A. Conflicts of Interest 1. On initial intake You and your organization owe a duty of undivided loyalty to your clients. To ensure that you do not take on a matter that conflicts with duties owed to current or former clients, you must do a conflict check of all advocacy clients every time someone asks you to represent them. You must not act for them if there is a conflict of interest. A conflict of interest between Client A and Client B does not necessarily prevent you from providing information and referral only to Client A, and providing fuller service to Client B. Note, however, that if the Client A gives you information about their situation that may be related to the matter in which you are acting for Client B, you may be in a conflict even though you only gave Client A information and/or referral service. 2. Arising with an current client If you discover a conflict of interest while representing someone, you must immediately advise the client and the other party that you can no longer assist. Commentary in the Law Society of BC’s Code of Professional Conduct (the “Code”) Rule 3.4 sets out the following guidelines for lawyers about what constitutes a conflict of interest:

…a conflict of interest exists when there is a substantial risk that a lawyer’s loyalty to or representation of a client would be materially and adversely affected by the


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lawyer’s own interest or the lawyer’s duties to another client, a former client, or a third person. The risk must be more than a mere possibility; there must be a genuine, serious risk to the duty of loyalty or to client representation arising from the retainer. A client’s interests may be seriously prejudiced unless the lawyer’s judgment and freedom of action on the client’s behalf are as free as possible from conflicts of interest.

Conflicts of interest can be complicated. If you feel that there may be a conflict of interest, you should discuss the situation with your supervising lawyer and obtain their opinion. It is important to check thoroughly for conflicts when opening a new file, although you should also be alert for conflicts that develop during the course of the file. B. Checking for Conflicts when Opening a New File Clients of the agency include all clients, whether in the family law stream or the poverty law stream. The conflict rules and conflict check extend to all advocates working in the same agency. Before opening a file for a new client, the advocate must always perform a conflict search to determine if the other side on the potential new client’s file (called “the opposing party”) has ever been a client of any of the advocates in the organization. If no opposing party has ever been a client of the agency, then the advocate is free to take on the new client. The following steps set out proper file-opening procedure:

1. When an individual contacts your organization for service, reception staff or advocate will ask for the person’s first and last name and the names of other parties involved.

Individuals who do not wish to provide this information may receive basic information and referral only.

2. Before providing brief or full service, staff will:

i. Check the client database to see if another party involved in the matter is, or has been, a client.

ii. Determine if there is a conflict. (For further guidance on this, consider the scenarios below.) If there is a conflict, the new client must be referred out.


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iii. Provide the individual with the applicable terms of service, either verbally, in writing, or both. Ideally clients will sign to indicate their consent. However, if this is not possible, staff will initial the intake form or service notes to indicate the client’s consent.

3. Staff must enter all clients into the client database as soon as possible following

intake and no later than the end of the business day, or, if staff are working off site, by the end of the next business day.

C. Scenarios The scenarios included below provide guidance on conflicts by setting out examples of common situations in which you might have to consider if there is a conflict. 1. Two advocates in the same agency acting for clients with competing interests Principle: Generally, conflict rules extend to all advocates working in the same agency. So, if your agency has both a poverty and a family law advocate, and the poverty law advocate saw a client then, generally speaking, the family law advocate cannot see a party with opposing interests to the client who met with the poverty law advocate. This principle applies to lawyers in law firms where associates shall not represent parties with potentially conflicting interests because they have access to the client records and the client management software is the same. In fact, the Law Society BC goes so far as to say that lawyers sharing an office may not represent clients with adverse interests1. The reason is the same -- lawyers have access to fax machines and incoming mail, pleadings etc, so they can access information that may be detrimental to the opposing party’s file. Is there any situation in which two advocates in an organization may see parties who could possibly have conflicting interests? Consider these indicia:

i. Do you share a client database? ii. Do you have the same fax number and, as such, have access to incoming

material about the other advocate’s client? iii. Do you share a filing cabinet?

1 Refer to the Code Rule 3.4-42 and 3.4-43 on space-sharing arrangements for details on this. https://www.lawsociety.bc.ca/support-and-resources-for-lawyers/act-rules-and-code/code-of-professional-conduct-for-british-columbia/chapter-3-%E2%80%93-relationship-to-clients/


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https://www.lawsociety.bc.ca/support-and-resources-for-lawyers/act-rules-and-code/code-of-professional-conduct-for-british-columbia/chapter-3-%E2%80%93-relationship-to-clients/


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iv. Are your respective offices and filing cabinet locked or can your colleagues access your files?

v. Do you have the same supervising lawyer? vi. Do you have the same supervisor with whom you discuss files? vii. Are there any other way(s) in which you may have access to the other

advocate’s client files? If the answer to any of the above is ‘yes’, then you cannot both accept the clients. If you answered all the above questions with a “no”, then you may take the file. We encourage you to discuss this with your supervising lawyer or the CASL or FASL Lawyers. You will need to arrange for separate lawyer supervision for each client.

Practice tip: If your organization has both a poverty and family law advocate, and is worried about their advocates conflicting one another out in too many cases, consider using different databases for client details and creating walls so that advocates cannot view conflicting client information.

Fact Pattern 1: two clients with competing interests Paul and Sara are married and have a child together. Sara wants the family law advocate’s help with separation. Earlier this year, the poverty law advocate assisted Paul with an Employment Standards issue. Analysis: No, you should not represent both concurrently. Therefore, Sara should be referred out. There might be a conflict in their interests in dealing with the family law matter, which would likely include child and possibly spousal support AND the poverty law advocate has financial information from working with Paul on Employment Standards matter. Fact Pattern 2: two clients with no competing interests Paula and Karima are roommates. Paula seeks help from Advocate 1 at your agency regarding an employment law matter, and Karima seeks assistance from Advocate 2 for an immigration issue. Can the advocates take both matters on? Analysis: Yes, you may work with them concurrently. They do not have competing interests at the moment, so you may represent them both. You should advise them both that if a family law issue comes up, or another matter comes up that may give rise to a conflict, then you will not be able to assist either of them.


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Potential for a conflict in another area of law does not prevent you from working with both parties. Of course, you evaluate conflict at the beginning before you commence work with a client, but it is helpful to constantly evaluate conflict as well.2 2. One advocate asked to assist clients who are spouses, or otherwise related Fact Pattern 1 – spouses with unrelated issues Joe and Sam have been living together in a marriage like relationship for 4 years. Joe wants to retain an advocate to help him with an EI appeal and Sam wants to retain the same advocate to help him with an immigration appeal. Analysis: The advocate can act for both Joe and Sam. Their EI and immigration issues are not competing interests between them. Ideally a separate advocate should act for each of Sam and Joe. That way, confidentiality between Sam and Joe can be better preserved even though the matters the organization is assisting with are wholly unrelated. Fact Pattern 2 – spouses with unrelated issues that get complicated The agency has 3 advocates, 2 in poverty law and 1 in family law. Charlie is a client of the poverty law advocate, getting help with an Employment Insurance appeal. Charlie’s wife Sue wants to retain the family law advocate to help her do an uncontested divorce.

Analysis: The family law advocate should talk to their supervising lawyer. The family law advocate should get Sue’s understanding and consent that the advocate is assisting only with the uncontested divorce. This is because family law cases can “morph” into other issues and the advocate should always be very clear about that issue he or she is dealing with. For example, IF the couple started to argue over financial issues, there would be a conflict because the advocate helping with the EI claim would likely have information about Charlie’s finances. Charlie’s EI appeal and Sue’s divorce are not related matters and there is likely nothing to prevent the advocate from assisting with the uncontested divorce. Charlie and Sue do not have opposing interests in this scenario. Fact Pattern 3 – related issues

2 The Code Rule 3.4-1[2] commentary reads “A lawyer should examine whether a conflict of interest exists not only from the outset but throughout the duration of a retainer because new circumstances or information may establish or reveal a conflict of interest.”


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Imagine the same as above but now Sue wants help to make a claim for spousal support against Charlie. Analysis: These are related matters for clients with opposing interests. The family law advocate cannot assist Sue. 3. A new advocate is bound by earlier conflicts Principle: You and your organization owe a duty of undivided loyalty to a past client. There is no expiration date on this duty to protect your client’s interests. Facts: In 2007, client Paula gets help from an advocate regarding a family law issue. In 2010, the advocate retires and a new advocate is hired. In 2017, Paula’s spouse, Karima, visits the new advocate. Can the new advocate represent Karima?

Analysis: There is a conflict of interest. Paula and Karima are opposing parties. The advocates work for the same organization and may have access to previous records (on paper or otherwise). The duty to represent the client and act in their best interests does not end when the client walks out the door. The new advocate cannot assist Karima. 4. The opposing party is a former client

Principle: If a former client was helped in a meaningful way (that is, more than information referral), then you cannot assist a party with related, opposing interests. Fact Pattern 1 – issues closely related The potential new client (Client B) is subject to a child support order that the advocate helped the other side (Client A) get several years ago. Client A is now a “former client” of the organization. The child who was the subject of the child support order is 18 years of age. Client B wants to consult the advocate about child support for the 2 year old child of their new relationship.

Analysis: Client B’s matter is not “wholly unrelated”. This is because the new matter could reasonably be affected by, and/or related to, Client A’s matter. Child support was a live issue in the former client’s file and could be related in the new representation under the Child Support Guidelines hardship sections.

Fact Pattern 2 -- legal issues of opposing party resolved and therefore unrelated


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On the same fact pattern as above, but now Client B’s child with Client A is now 19 years of age, and is living in Alberta working in the oil patch. Client B does not owe any child support arrears to Client A, and their child is no longer entitled to child support.

Analysis: The advocate will have to obtain the relevant information and determine whether the information is in fact correct before acting, and these efforts should be set out in the file. Fact Pattern 3 – organization no longer has documents for a former client If Client A was a client 10 years ago and your agency shreds documents 7 years after file closings, then you may assist their spouse. Please make sure that you do not have a way to access records for Client A. When in doubt about

• whether another client’s or former client’s matter is “related” to a matter for which the potential client seeks to retain the advocate, and/or

• whether a conflict exists which might prevent representation of the potential client, the Advocate should consult with their supervising lawyer before agreeing to represent the client.

The supervising lawyer will provide an opinion about whether the Advocate is permitted to assume conduct of the potential client’s matter. The supervising lawyer’s opinion should be in writing and should be kept in a file marked “Conflicts” if the potential client does not become a client of your organization, or in the client’s file if the organization assists the client. The supervising lawyer will want to determine whether the organization has a policy backed up with rigorous practice of periodically destroying client files (including data files) after 7 years. If this is the case, and there is no risk of the advocate having any access to confidential information of the former client (since the former client’s file no longer exists), the advocate may act for the potential client. 5. Conflict between the advocate’s client and a client of the supervising lawyer When there is a conflict between the advocate’s client and the supervising lawyer’s client, the advocate and supervising lawyer cannot discuss the matter and the supervising lawyer cannot review the advocate’s file on closing. The advocate should get advice from a different supervising lawyer (or the CASL or FASL lawyer) and the file should be sent to a different supervising lawyer for review on closing.


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Practice tip: In certain cases it may be possible, subject to your supervising lawyer’s views, to discuss a matter without disclosing the parties’ names. If the facts do not identify the parties, then the advocate and supervising lawyer may discuss the matter without checking for conflicts.

6. Personal conflict Sometimes personal relationships give rise to an actual conflict or a possible, perceived conflict between the advocate and their client. The client should be referred out or, at a minimum, the client should be advised of the personal relationship so that they can make their own decision about whether to continue with the advocate. 7. If a conflict is identified after service is provided If you become aware of a conflict after providing services, consider the above scenarios to see if yours fits. Notify your supervisor and supervising lawyer to reach a decision as to what to do and what to say (and not say) to your clients. D. For Victim Service Workers and Family Law Advocates working at the same

organization There is a conflict of interest if the victim service worker is helping a client and the opposing party wishes to access family law services. In some cases there may be firewalls or other insulation methods employed by the agency to ensure there is no conflict or sharing of confidential information. Consider the same indicia that apply to two advocates acting for clients with competing interests:


material about the other advocate’s client? iii. Do you share a filing cabinet? iv. Are your respective offices and filing cabinet locked? This means, can your

colleagues access your files? v. Do you have the same supervising lawyer? vi. Do you have the same supervisor with whom you discuss files?


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vii. Are there any other way(s) in which you may have access to the other advocate’s client files?

Many organizations have both advocates and victim service workers. When they both work for the same organization, but do not work in the same area and maintain completely separate files, conflicts are unlikely to arise. The situation that this section addresses, is when the advocate and the victim service workers work in the same environment and have access to the same client information. Consider the following scenarios. Fact pattern 1: One party is an existing victim services client. An opposing party wishes to access poverty law services for an unrelated matter. Analysis: No conflict. Both parties may be served. If either the poverty law worker or the victim services worker becomes aware that they are serving a client who is an opposing party to a client of the other program, they must notify the other worker; care must be taken to avoid both parties being in the office at the same time. Fact pattern 2: One party is an existing victim services client. An opposing party wishes to access family law services for an unrelated matter (eg. the victim services worker is assisting a woman who assaulted by her husband and the husband comes to the family law advocate seeking assistance with cancelling spousal support arrears related to a previous partner). Analysis: A decision will be made on a case by case basis with respect to services for the second client in consultation with staff, the advocate and their manager, and the supervising lawyer. If service is provided to the second client, care must be taken to avoid having both people in the office at the same time. Facts Pattern 3: One party is an existing victim services client. An opposing party wishes to access family law services for related matter. Analysis: There is a conflict and the advocate cannot act. The opposing party should be referred out.


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E. Conflict Chart First Client

Second Client

Matter: same or unrelated?

Conflict? Conflict Procedure to Follow

Poverty Law Poverty Law Unrelated No

Poverty Law Poverty Law Same or related Yes Opposing Party Referred Out

Poverty Law Family Law Either Yes Opposing Party Referred Out

Family Law Poverty Law Either Yes Opposing Party Referred Out

Family Law Family Law Either Yes Opposing Party Referred Out

Victim Services

Poverty Law Unrelated No

Victim Services

Poverty Law Same or related Yes Opposing Party Referred Out

Poverty Law Victim Services

Unrelated No


Same or related Yes Case by case; may follow “Both Parties Served” procedure if files handled entirely separately

Victim Services

Victim Services

Unrelated No

Victim Services

Victim Services


Victim Services

Family Law Unrelated Yes Case by case; may follow “Both Parties Served” procedure if files handled entirely separately

Victim Services

Family Law Same or related Yes Opposing Party Referred Out

Family Law Victim Services

Unrelated Yes Case by case; may follow “Both Parties Served” procedure if files handled entirely separately




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Reporting Child Abuse: Policy and Procedures for Law Foundation Funded Legal Advocates

January 2020 Issue: Do advocates have to report child abuse to Ministry of Child and Family Development (MCFD), or are client communications with them protected under privilege? Advocates do not have the same privilege as lawyers. Advocates must report child abuse in the circumstances listed in section 13 of the Child, Family and Community Service Act that is set out below. 1. A child needs protection in the following circumstances: a. if the child has been, or is likely to be, physically harmed by the child’s

parent; b. if the child has been or is likely to be, sexually abused or exploited

by the child’s parent; c. if the child has been, or is likely to be, physically harmed, sexually

abused or sexually exploited by another person and if the child’s parent is unwilling or unable to protect the child;

d. if the child has been, or is likely to be, physically harmed because of neglect by the child’s parent;

e. if the child is emotionally harmed by: i. the parent’s conduct; ii. living in a situation where there is domestic violence by or

towards a person with whom the child resides; f. if the child is deprived of necessary health care; g. if the child’s development is likely to be seriously impaired by a

treatable condition and the child’s parent refuses to provide or consent to treatment;

h. if the child’s parent is unable or unwilling to care for the child and has not made adequate provision for the child’s care;

i. If the child is or has been absent from home in circumstances that endanger the child’s safety or well-being;

j. if the child’s parent is dead and adequate provision has not been made for the child’s care;

k. if the child has been abandoned and adequate provision has not been made for the child’s care;


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l. if the child is in the car of a director or another person by agreement and the child’s parent is unwilling or unable to resume care when the agreement is no longer in force.

1.1 For the purpose of subsection 1.b and c, but without limiting the meaning of

‘sexually abused’ or ‘sexually exploited’, a child has been or is likely to be sexually abused or sexually exploited if the child has been or is likely to be;

a. encouraged or helped to engage in prostitution, or b. coerced or inveigled into engaging in prostitution. 1.2 For the purpose of subsection 1(a) and (c), but without limiting the

circumstances that may increase the likelihood of physical harm to a child, the likelihood of physical harm to a child increases when the child is living in a situation where there is domestic violence by or towards a person with whom the child resides.

1.3 For the purpose of subsection 1.e, a child is emotionally harmed if the child

demonstrates severe: a. anxiety; b. depression; c. withdrawal; or d. self-destructive or aggressive behaviour. Reporting Advocates should not make the decision to report child abuse on their own. The default position is not “just report”. There must be persuasive grounds to make a report of child abuse. Before making a report, an advocate should fully document the grounds they are relying on so that accurate evidence can be discussed with the supervising lawyer before taking any steps to report. Discussions with the supervising lawyer should take place as soon as possible after the concern arises. 1. Does the advocate need to inform the client about their duty to report child

abuse?

You should discuss the “duty to report” at the beginning of the first meeting with the new client. Suggestions for how to approach this are:

“everything you tell me is confidential other than I must discuss matters with

my supervisor and my supervising lawyer for assistance and direction on your file. One exception to this rule is that if I believe that there is a threat


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to a child’s safety, then I have an obligation to report that to the Ministry of Children and Family Development.”

“you are my client now so before I make a report of my concern regarding

a child’s safety, I will speak with you”

The client has a right to know what you are obligated to do before they reveal any details to you.

2. Should the Advocate inform the client before calling the Director of Children

and Families (commonly called MCFD) to make a report of a child in need of protection?

• Before calling MCFD, remember that the duty to report to MCFD does not negate

the duty to act in the client’s best interest. Try to avoid situations where the client withholds information from you for fear of being reported. You also do not want to take either the duty to act in the client’s best interest or the duty to report child abuse lightly. This is a difficult path to tread. So do not make this decision alone.

• If you and your supervising lawyer decide that it is necessary to report to MCFD that you believe that a child is in need of protection, before contacting the Ministry you should speak with the client about your obligation to report and explain the reasons to them. Explain to the client that MCFD investigates all complaints and that if MCFD finds that there is no child protection concern, they may close the file. Consider telephoning MCFD with the client in the room. Consider using speakerphone so the client is a party to the conversation. Give your client the tools to deal with MCFD before and/or at the same time as you report. Help the client navigate MCFD and the complaint, and if required, help the client to apply for legal aid and refer to other resources.

• Under certain circumstances, contacting MCFD with the client may not be advisable (e.g. if you have concern that your client is harming the child). Again, this decision should be made in discussion with your supervising lawyer.

• Calls and reports made to MCFD are confidential, and the intake workers or social workers cannot divulge the name of the person who made the call.

3. What if a child tells the Advocate that his/her parents are abusing him?

If the child discloses to the advocate in the course of conducting a file that they are being harmed by their parents (whether they are the advocate’s clients or not) in any of the ways set out in 13(1) CFCSA, this mandates the advocate to make the report to MCFD. When hearing from children, especially very young children, context is important. You may wish to rely on other resources such as the children’s lawyer or a counsellor.


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4. What are an advocate’s responsibilities if they hear information that raises child protection concerns when they accompany a client to a meeting with their lawyer?

Lawyers are protected by privilege and usually do not have to report child abuse (concerns of imminent harm or death are not protected by solicitor-client privilege and must be reported regardless of relationship or privilege). It is not clear whether third parties (like advocates) in the room are also covered by the lawyer’s privilege.

• Communications with third parties may be considered privileged if the third party

is acting on behalf of the client. Case law1 tells us that the third-party’s function must be considered essential or integral to the maintenance or operation of solicitor-client relationship for that to apply.

• The privilege protects communications to or by a “third party acting as a

messenger, translator, and amanuensis, and includes a third party employing an expert to assemble information provided by the client and to explain it to the lawyer” (General Accident at p.323). If the lawyer is employing the third party, then privilege likely applies.

• This means that whether privilege extends to the advocate or not must be

examined in light of the purpose for which the Advocate accompanied the client, and whether the presence was “necessary” for that meeting. For example:

o if the Advocate was interpreting for the lawyer, o if the Advocate attends the meeting for the purpose of helping the client take

notes and organize documents etc.

then there is an argument that the advocate’s presence is integral to the meeting and “solicitor/client” privilege extends to the Advocate.

Best practice: Inform the client before accompanying the client to the lawyer’s meeting that if a child protection concern arises, then you may have to report to MCFD. It is also important to keep in mind that in many cases, third parties are persons who can be compelled to give evidence in Court. For example, if the client attends your office with a friend or family member whom they wish to have sit in on their meeting with you, that friend is likely a compellable witness and could be called upon to disclose the communications that took place at the meeting. The best practice is to meet with clients privately and without such third parties in attendance. 1 General Accident Assurance Co. v. Chrusz (1999), 180 D.L.R. (4th) 241 (Ont. C.A.) at paras. 120 to 122, cited with approval in College of Physicians of British Columbia v. British Columbia (Information and Privacy Commissioner), 2002 BCCA 665 at paras. 46 to 50, leave to appeal dismissed [2003] S.C.C.A. No. 83


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5. Penalties for failing to report Under section 14 of the Child Family and Community Service Act a person who has reason to believe that a child needs protection under section 13 must promptly report the matter to a director or a person designated by a director. To not report in these circumstances is an offence. This section applies even if the information on which the belief is based a. is privileged, except as a result of a solicitor-client relationship; or b. is confidential and its disclosure is prohibited under another Act. A person who knowingly reports to a director, or a person designated by a director, false information that a child needs protection commits an offence.

No action for damages may be brought against a person for reporting information under this section unless the person knowingly reported false information.

A person who commits an offence under this section is liable to a fine of up to $10,000 or to imprisonment for up to 6 months, or both.

The limitation period governing the commencement of a proceeding under the Offence Act, does not apply to a proceeding relating to an offence under this section.

6. Examples: Which situation warrants reporting to MCFD?

• The mother tells you that she left an 11-year-old in the house for 5 minutes while she went to collect the mail. This does not warrant reporting.

• If mum and child disclose that another adult has sexually abused the child, then

you need to report.

• If mum suspects that the father is abusing the child, ask for physical data. Ask what circumstance(s) gave rise to that suspicion. Make suggestions such as taking the child to a doctor, the police, get medical records, and verify information. You can have a discussion without reporting.

• A parent tells you that the other has been feeding the child popcorn for dinner. This does not qualify as “neglect” and you do not need to report.


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Monthly Advocacy Statistics: FAQs (frequently asked questions)

1. If we contact an external agency to help a client, or write a letter on their behalf, but take less than 30 minutes to do that, do we count that as information/referral or advice/summary service?

You should list this work as advice/summary service even though it took you less than 30 minutes to do. If you give advice or advocate on behalf of a client with another party (eg. government ministry, landlord, ministry social worker) that counts as more than information/referral – it must be listed under advice/summary service.

2. Do we have to keep records of information/referral and advice/summary service files?

Yes. You must have a system for recording information about the client, the issue they asked for help with, and what you told the client. You do not have to open a physical file, but you should keep an intake sheet and copies of any documents and notes you have created. The usual way to organize them is alphabetically by year.

3. How do we record advice/summary service files that take less than two hours, but the work is done over more than one month/reporting period? Do we record the file in each month because we worked on it in more than one month-- or just once?

If you provide advice/summary service (less than two hours) but the work takes place over more than one month, record it only in the statistics for the month in which you conclude the work.

4. What should we do if a file we have already recorded as advice/summary service turns into a full representation file in a subsequent month/reporting period? Is there any particular notation we should be making in these situations?

You should not enter a file into your statistics until you are sure what type of file it will beand the file is closed. In this case, that would mean that you would not enter this work into your statistics until you found out if the advice or summary service you providedresolved the matter or if more work was required -- making it a full representation file.

5. When do we have to open a physical file for a client? Any time you provide a client with full representation you must open a physical file so that you have all relevant documents in one place. You may also want a physical file for information/referral or advice/summary service matters if they are significant or if you believe it is appropriate to do so. (As groups develop properly organized electronic file management systems, other options may be available.)While we acknowledge that electronic file management systems may be able to store much of this data, it is anticipated that a physical file will be needed for full representation files


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6. If we help a client apply for a benefit (e.g., disability benefits or welfare) or fill out a form (e.g., child support order), do we close the file after we submit the application, or should we wait to find out the result before closing the file?

Keep a file open until the issue the client asked for help with is resolved.

Poverty Law Example:For example, if a client applied for disability benefits, do not close the file until:

∑ the client is approved for benefits, ∑ the client’s application is refused and the client decides not to appeal that

decision, ∑ the client goes through the appeal/reconsideration process, knows the result of

that decision, and does not plan to do anything else on this issue, or∑ the file is abandoned by the client or you no longer represent the client (you will

determine this by your organization’s policy about when a file is abandoned or when to end your relationship with a client).

Family Law Example:For example, close the file when:

∑ an order is filed or an agreement is reached, ∑ a referral is made (e.g. client may need to file with the FMEP for enforcement), or

the file is abandoned by the client or you no longer represent the client (you will determine this by your organization’s policy about when a file is abandoned

7. What if we work a total of 40 hours on one full representation file? How do we let you know when particular files take a long time to resolve?

You should keep track of the hours you spend on all full representation files. There is a question on the back of the Monthly Advocacy Statistics Form that asks you to list the number of closed full representation files that took more than 16 hours of work. You can also report on particularly important cases in your Activity Report that must be submitted to the Foundation on the dates set out in your grant letter.

8. Where do we record the full representation files that are not closed yet? There is a question on the second page of the Monthly Advocacy Statistics Form that asks you to list “full representation files carried forward to the next monthly reporting period”. You should record the number of open full representation files here.

9. What do we do if a client needs more help after his or her file is closed?You should open a new file. This is true whether the client is coming with a new issue or wants further help with the issue they needed help with before. If they are coming for more help on an old issue, you may want to review the old file, but you should open a new file nonetheless.


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10.When do we enter statistics in response to the question about “full representation files worked on”?

If you did any work on the file -- from making a call about the file through to more involved work -- you should count it in this section.

W:\TEMPLATE\Forms\Monthly Statistics Forms - Current\Monthly Advocacy Statistics - Poverty Law Advocates FAQs Dec 2021.doc


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Link to LFBC Support for Advocates

https://www.lawfoundationbc.org/grantee-resources/support-for-advocates/


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https://www.lawfoundationbc.org/grantee-resources/support-for-advocates/

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LEGAL SUPERVISION REQUIREMENTS October 2019

Thank you for agreeing to be a supervising lawyer for one (or more) of the Foundation’s advocates. These advocates provide an important front-line service to low-income British Columbians and the lawyers who supervise the advocates are making an important contribution to their communities. Please take some time to become familiar with the type of work done by the program you are supervising. General A supervisory lawyer must be a member in good standing of the Law Society of British Columbia and be a minimum of a three year call. As a starting proposition, the Foundation expects that each advocate should be supervised according to his or her level of competence and experience in each area of law. It is for the supervising lawyer to assess an advocate’s competence and experience in each area of law, and to then determine the level of supervision required, based on the guidelines set out below. A supervising lawyer is responsible for the supervision of an advocate’s work in regards to substantive and procedural legal matters. It should be borne in mind that the advocate is an employee of an organization and as such will have a supervisor at that organization in regards to employment related matters. However, should a supervising lawyer have concerns regarding an advocate’s performance of their duties, those concerns should be included in the supervising lawyer’s reports. The initial stages of supervision of an advocate should include the level of supervision for a new advocate. This is to allow the lawyer to become familiar with the advocate’s work. The level of supervision can later be adjusted, as the advocate’s competence and experience dictates. It is expected that at the start of a relationship with an advocate, and annually thereafter, the supervising lawyer will attend at the advocate’s office and review the advocate’s files and file management systems to ensure they are appropriate. The Law Foundation has examples of file management documents that our advocates can use if you wish to see them. Frequency of Meetings There should be regular meetings between the advocate and the legal supervisor, in person if possible, and if not by Skype/Facetime. Meetings should take place at a minimum once per month in addition to being available by phone or email as required.


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Meeting should include a review of the file list, and relevant files, to ensure proper advocacy and file management. Levels of Experience The criteria set out below in this section are meant to provide guidelines for a supervising lawyer to assess an advocate’s level of experience. They are subject to the supervising lawyer’s discretion when taking into account factors such as an advocate’s education or prior related work experience. New Advocate: a new advocate will generally be considered to be someone with up to two years experience in an area of law. Intermediate Advocate: a junior advocate will generally be considered to be someone with two to five years experience in an area of law. Senior Advocate: a senior advocate will generally be considered to be someone with more than five years experience in an area of law. Levels of Supervision The Law Foundation defines an Advice/Summary Service file as: Advice and assistance up to 2 hours. The Law Foundation defines a Full Representation file as: Advice and assistance totaling more than 2 hours, must include document preparation, dealing with external bodies and/or representation at hearings. New Advocate:

1. Review of all full representation files opened, including a merit assessment, and close monitoring of each full representation file to completion.

2. Review of all administrative tribunal and court documents before filing. 3. Review of letters or any other documents containing substantive arguments

regarding a client’s case, prior to their being sent. 4. Review of proposed advocacy work prior to any administrative tribunal or court

appearance. 5. Periodic review of advocate’s file list. 6. Answering any questions posed in relationship to supervised files. 7. Review of all full representation files being closed.


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Intermediate Advocate:

1. Review of all full representation files opened, including a merit assessment.

2. Review of all administrative tribunal and court documents before filing.

3. Review of proposed advocacy work prior to any administrative tribunal or courtappearance.

4. Periodic review of advocate’s file list.

5. Answering any questions posed in relationship to supervised files.

6. Review of all full representation files being closed.

Senior Advocate:

1. Review or discuss of all full representation files opened.

2. Review of all court documents before filing.

3. Review or discuss proposed advocacy work prior to any court appearance.

4. Periodic review of advocate’s file list.

5. Answering any questions posed in relationship to supervised files.

6. Review of all full representation files being closed.

Reporting

The Board of the organization the advocate works for should receive reports from the supervising lawyer with respect to the advocate’s caseload, competence and skill, and indicating the level of supervision. These reports should be provided to the Board to coincide with the organization’s activity reports to the Foundation, and at other times as required by either the organization or the Foundation.

In turn, the Board is accountable to the Foundation for the work of both the advocate and the supervising lawyer and should incorporate the supervising lawyer’s report in its reports to the Foundation.

Please review the Legal Supervisors Reporting Requirements for more details.


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Link to LFBC Clinic Contacts

https://www.lawfoundationbc.org/public-resources/contact-list/


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https://www.lawfoundationbc.org/public-resources/contact-list/

Community Advocate Support Line at CLAS The Community Advocate Support Line (CASL) is a dedicated support service for BC advocates and community workers. CASL is staffed by lawyer Alison Ward, who can give advocates legal information and advice about specific client files they are working on in family and poverty law. CASL is funded by the Law Foundation of B.C. Advocates and community workers in BC can reach CASL by phone at:

From the Lower Mainland: (604) 681 CASL (2275) Toll Free within BC: 1 888 781 CASL (2275)

These numbers are for the use of advocates and community workers only. Please do not release them to your clients or to the general public. Community Advocate Support Line case priorities CASL provides advice and assistance in relation to the following areas of law:

- income assistance; - consumer contracts; - debt collection and bankruptcy; - employment insurance; - family law; - Canada Pension Plan benefits; - residential tenancy and other housing issues - foreclosures; - judicial review

If you have a legal question about a client whose problem falls outside our case priorities, please contact CASL and we will review the situation with you. Information you must give to the Community Advocate Support Line To access legal advice through CASL, you must provide Alison with the full legal name, address and phone number (if any) of your client. You will also need to provide Alison with the full legal names of any opposing parties involved in your client's legal issue. Our professional responsibilities as lawyers require us to review and record this information; it will of course be kept confidential. This means that you should generally obtain your client’s consent to release this information to CASL before calling. We look forward to working with you through CASL, and to hearing your feedback about this service. Rita Hatina Assistant Executive Director, Community Legal Assistance Society Suite 300 – 1140 West Pender Street, Vancouver, BC V6E 4G1 Tel (604) 685-3425; toll-free (1-888-685-6222) [email protected]


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#300 - 1140 W. Pender StreetVancouver, BC V6E 4G1

PhonE (604) 876-8638 fax (604) 685-7611

Email [email protected]

Povnet websiteThe Povnet website provides up-to-date information about welfare, housing and homelessness, unemployment, disability and human right issues.

We host a “Find an Advocate” map to assist people in finding some help wherever they are in BC or across the country. You can also follow up-to-date information on PovNet by linking to our Twitter and Facebook feeds.

PovNet links to resources for immigrants and refugees, seniors, women, youth, workers, people with disabilities, First Nations, Inuit and Aboriginal people. The site offers links to provincial, federal and territorial legislation, information about books, videos and articles about poverty issues.

http://facebook.com/povnet

http://twitter.com/povnet

www.povnet.org

PovNet is funded by the Law Foundation of BC. Additional support for PovNetU courses is provided by BC Government and Service Employees’ Union, BC Coalition of People with Disabilities, BC Teachers Federation, Community Legal Assistance Society, Community Unemployed Help Centre (Winnipeg), First United Church Mission, Hospital Employees Union, Law Foundation of Ontario, Society of Notaries Public of BC and TRAC Tenants Resource and Advisory Centre.

Povnetuhttp://povnetu.povnet.org

Povnetu offers online courses

for front line workers.

Current PovNetU courses include:

n Introduction to Advocacy

n Welfare Level 1 and 2

n Residential Tenancy Level 1 and 2

n Employment Insurance Level 1 and 2

n Seniors’ Residential Care Advocacy

n Persons with Disabilities Appeals

n Dealing with Debt

n CPP Disability

Contact [email protected] for more information and schedules.

Email listsPovnet hosts confidential email lists for front line workers, advocates, community and settlement workers.

These lists provide a forum for discussing cases, sharing strategies and identifying and working on systemic issues that arise in the pursuit of access to justice:

Our BC lists: Our national lists:n Welfare n Canadian Pension

n Housing n Employment insurance

n Mental health n Older adults

n Workers’ rights n issues

n First Nations & Aboriginal

n Debt

If you are interested in joining any of these lists, contact us at [email protected].

U

A network for advocates, community workers and marginalized communities.


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Lesson Plan: Overview Topic:

Overview of the legal system: poverty law advocacy in context (Administrative law in context)

Timing • 1- 3:30 pm May 5, 2021


Learners will be able to: • list the sources of Canadian law and explain their role

(common law, statutes, constitution, precedent and principles of equity)

• review which level of government has jurisdiction over different areas of law

• review the responsibilities of, and relationship between, the different courts in BC and Canada.

• explain how administrative tribunals are regulated and how they relate to the court system

• explain the role of case law/decisions precedent in different administrative tribunals

• List key elements of the rules of natural justice • Know of resources are available for advocates to discuss

violations of natural justice • List options an advocate could consult if they are

concerned that a decision was unfair (supervising lawyer, legal support options, approaches other than judicial review, judicial review)

• List materials an advocate should provide a lawyer considering the possibility of judicial review of a decision

Activity:

• Presentation • Q and A

Resource people:

• Sharon Kearney, lawyer, Community Legal Clinic, Sources Community Resources Society

Materials:

• Powerpoint • Article on Canadian Judicial System • Chart of court and admin law systems.

Assessment: Test

Legal Advocacy Training Course - Week 1 Materials - 2. Introduction to Administrative Law

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1

Overview of the Canadian Legal System – Administrative Law in Context

Prepared by Sarah Khan, Lawyer

Mary 13, 2019

Updated by Sharon Kearney , Lawyer

[email protected]

SOURCES Community Law Clinic Apr i l 28, 2 0 2 1


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2

Outline

1. Sources of law in Canada ▪ The Constitution ▪ Executive, Legislative, Judicial and Indigenous branches of government ▪ Division of powers, fundamental freedoms ▪ Legislation, policies and procedures ▪ Common law ▪ Administrative tribunals

2. The rules of natural justice and procedural fairness 3. Judicial review as a remedy for lack of natural justice or fairness


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3

1. Sources of law in Canada


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4

The Constitution

• Sets out the basic principles of the democratic system in Canada

• Defines the powers of the three branches of government o Executive, legislative and judicial branches

• Available online at http://www.canlii.org/en/ca/laws/


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http://www.canlii.org/en/ca/laws/

5

Branches of government – Executive branch

• Federally, the Prime Minister and federal cabinet ministers form the Executive branch of government – they are answerable to Parliament for government activities

• Provincially, the Premier and provincial cabinet ministers form the Executive branch of government – they are answerable to the provincial legislatures for government activities


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6

Branches of government – Legislative branch

• Federal Parliament, which consists of the House of Commons, the Senate, and the Governor General

• Provincial legislatures, which consist of the Legislative Assembly and Lieutenant Governor o Municipalities are delegated powers by provincial governments

• Most laws are first discussed in Cabinet, then debated and approved by members of Parliament and the Senate or provincial legislatures, and assented to by the Governor General/Lieutenant Governor


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7

Branches of government – Judicial Branch

• Judges who preside over cases before the courts • Interprets laws and the Constitution • Provides impartial decisions • Contributes to the common law when they interpret new past decisions

or set new precedents • Federal government appoints judges to federal courts and the Supreme

Court of Canada, and BC Supreme Court and Court of Appeal judges • Provincial government appoints Provincial Court (small claims) judges • Courts have useful websites – can search decisions, view applicable

legislation and rules of procedure


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8

BC Courts There are three levels of court in British Columbia

• Provincial Court

• Supreme Court

• Court of Appeal


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9

Branches of government – Indigenous governments

• Modern treaties o Nisga'a Final Agreement - May 11, 2000 o Tsawwassen Final Agreement - April 3, 2009 o Maa-nulth Final Agreement - April 1, 2011 o Tla'amin Final Agreement - April 5, 2016 o In ratification: Yale First Nation; Lheidli T’enneh Band

• Self-government • Eg - Shíshálh Nation - 1986.

• Governance on reserve lands

• Constitution s. 35 protects Aboriginal rights. • Duty to consult required when potential infringement of Indigenous rights


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10

Division of Powers (between Federal and Provincial governments)

• Constitution Act 1867, sections 91 and 92

• Key federal powers in section 91 include unemployment insurance, postal service, military, shipping, fisheries, banking. Bankruptcy, Indigenous peoples, citizenship and immigration, divorce, criminal law

• Key provincial powers set out in section 92 include education, hospitals, property and civil rights, the administration of justice within the province, municipalities, and all matters of a local or private nature

• There are still disputes about whether a topic is federal or provincial


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11

Fundamental freedoms – Charter of Rights and Freedoms

• Constitution Act 1982, Part 1

• Fundamental freedoms, democratic rights, mobility rights, legal rights, equality rights, language rights, Aboriginal rights

• All Charter rights and freedoms are limited by s. 1 of the Charter: “The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”


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12

Fundamental human rights • The Canadian Human Rights Act – discrimination in federal areas of

jurisdiction o Can file complaints with the Canadian Human Rights Tribunal

• The BC Human Rights Code – discrimination in services or facilities customarily available to the public, employment, tenancy o Can file complaints with the BC Human Rights Tribunal


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13

Legislation • Legislation refers to the laws that are created by federal

Parliament and provincial legislatures • Federal and provincial legislation is available online:

o Federal: http://www.canlii.org/en/ca/laws/ o BC: http://www.bclaws.ca/ - contains BC laws, regulations,

bills, Hansard legislative debates. • Legislation comes in the form of statutes and regulations


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http://www.canlii.org/en/ca/laws/

http://www.bclaws.ca/-contains

14

Legislation (Continued) • Parliament or Legislatures create statutes (usually called Acts) • Statutes often give the government (usually cabinet, or a cabinet

minister) the power to create regulations that fill in the details about how the statute will operate

• Our society has become very complex, and the power to make regulations allows the legislature and Parliament to delegate the authority to make more detailed laws

• However, if Cabinet enacts regulations that contain powers that are not granted by their enabling statute, then people can challenge those regulations as being unlawful.


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15

Examples of Regulations • Some examples of BC statutes with regulations: ▪ Residential Tenancy Act o Residential Tenancy Regulation ▪ Employment and Assistance for Persons with Disabilities Act o Employment and Assistance for Persons with Disabilities

Regulation ▪ Employment Standards Act o Employment Standards Regulation


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16

Government policies and procedures • Provide further details about how laws are to be implemented • Unlike laws, not binding • Must stay within legislative limits of the government agency

implementing the policy • Examples of policy

o BC Employment & Assistance Policy & Procedure Manual o Residential Tenancy Policy Guidelines


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17

Common law • Common law is a body of law based on judges’ decisions, and on the

customary principles that have developed over centuries via decisions made by judges.

• The concept of precedent is important in common law. This refers to the idea that judges must decide cases in a way that is consistent with previous cases.


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18

Administrative Tribunals ▪ Some statutes create administrative tribunals, which are specialized

decision makers empowered to decide certain issues. For example:

o Employment Standards Act – Employment Standards Tribunal o Employment and Assistance Act – Employment and Assistance

Appeal Tribunal o Human Rights Code – Human Rights Tribunal o Residential Tenancy Act – Residential Tenancy Branch o Workers Compensation Act - Workers Compensation Appeal

Tribunal


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19

Differences between administrative tribunals and courts

• Administrative tribunals operate differently from courts o Can only decide issues within their specialized area defined by

statute o Not always bound to follow precedent o Usually much less formal procedure

• Administrative tribunal decisions can be reviewed in court o Generally the enabling statute sets out which court can review the

tribunal’s decisions o The BC Judicial Review Procedure Act also provides for judicial

review of administrative decisions.


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20

Courts generally give administrative tribunal decisions deference

• Courts are generally reluctant to interfere with administrative tribunal decisions

• This is because the legislature, though legislation, created the administrative tribunals to specialize in deciding issues in the particular area of law they operate in


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21

2. Natural justice and procedural fairness


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22

The duty of fairness ▪ All government decision makers, including administrative tribunals,

have a duty to act fairly. This “duty of fairness” is sometimes described as the obligation to follow the “rules of natural justice” or the “rules of procedural fairness”. In the United States, these principles are called “due process”.

▪ There are two basic elements of the duty of fairness: oThe right to a fair hearing othe right to an unbiased decision-maker


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23

What is fair procedure? ▪ The content of what will count as “fair procedure” varies depending on the context. ▪ In general, the type of procedures that are required in order to ensure fairness will depend on factors including: o the seriousness of the consequences of a decision o how “judicial” or court-like the proceedings are o whether there are any opportunities to appeal the decision


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24

Tribunals often have their own rules of procedure Tribunals often develop rules of procedure to assist parties bringing cases before the tribunal. For example: • Employment and Assistance Appeal Tribunal Practices and

Procedures • Residential Tenancy Branch Rules of Procedure


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25

The right to a fair hearing • The right to a fair hearing is sometimes described using the Latin phrase: audi alteram partem, which means “hear both sides”. At the very least, the rule [of fairness] requires that the parties affected be given adequate notice of the case to be met, the right to bring evidence and to make argument.

• If a decision maker fails to make a decision based on the particular circumstances of the case, she may be found to have fettered her discretion and therefore interfered with a person’s right to a fair hearing.


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26

The right to a fair hearing (continued) Depending on the context, the right to a fair hearing may include:

• sufficient notice of the time and place of the hearing

• sufficient notice of the subject matter of the hearing

• right to be present during the hearing

• right to be represented by counsel (advocate or lawyer)

• right to present your case (written or oral)

• right to know the case against you

• right to test adverse evidence (cross‐examine witnesses)


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27

The right to a fair hearing (continued) • right to be made aware of all evidence that the decision‐maker will take into account

• right to respond to the evidence presented

• right to reasons for a decision

• right to have the decision based on information and evidence presented at the hearing

• right to adjournment if necessary

• right to have the decision made by the decision maker, and not by someone else

• right to have the decision based on the particular circumstance of the case


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The right to an unbiased decision maker ▪ The rule against bias is a rule preventing the decision maker from pre-judging a case. Decision makers should not arrive at a hearing with pre-conceived ideas about how the case should be decided. ▪ While it is necessary that the decision maker is not biased, it is also important that there is no appearance of bias. A court that is asked to judicially review a case for bias will look to see whether the facts in the case give rise to a “reasonable apprehension of bias”.


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How is bias determined? In making a decision about whether bias exists, the court will generally investigate the following questions: 1. Would a member of the public, looking at the situation as a whole,

reasonably suspect that a member of the adjudicating body would be biased?

2. Is there in fact a real likelihood of bias?


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30

Examples of bias Bias has been found when the decision maker has the following:

• kinship or close personal relationship with a party

• vested interest in the outcome

• business relationship with a party (note, however, that the bias rule may not apply if a certain time has elapse since the end of the business relationship, or the relationship is not relevant to the issue to be decided)

• history of hostility towards a party or his or her family

• hearing appeals of the decision-maker’s own decisions


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31

Examples of bias (continued) • acting as complainant, investigator or prosecutor as well as a decision

maker • making statements or engaging in overly aggressive questioning,

indicating unreasonable hostility towards a party, advocate or the case at issue

• a previous professional connection with the case

• absence of a tribunal member during any part of the hearing


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3. Judicial review as a remedy for lack of natural justice or fairness


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33

What is judicial review? ▪ If your client has been denied the duty of fairness, you should talk to a lawyer about the possibility of filing a judicial review of the tribunal’s decision. ▪ A judicial review is the power of courts to review the decisions and conduct of an administrative body or tribunal, to make sure that the decisions were made according to the law.


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Examples of cases that might be suitable for judicial review

• The tribunal went ahead and heard your client’s case, even though your client did not receive notice of the hearing.

• The tribunal refused to grant an adjournment to your client even though she had a good reason to ask for one. Proceeding with the case without the adjournment negatively affected your client’s ability to present her case.

• The tribunal’s written decision ignored significant arguments that were made, or important evidence that was provided.


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Time limits for judicial review There are strict time limits for judicial reviews. For example, judicial reviews of decisions made by the EAAT must be filed within 60 days of the Tribunal’s decision. If you think that your client’s case should be assessed for judicial review, contact a lawyer as soon as possible so that there is enough time to prepare the judicial review materials.


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Thank you!


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Structure of courts


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How BC’s admin tribunals fit in

Judicial review in BC Supreme Court: Res Ten Branch decisions, EAAT, WCAT, Human Rights, Employment Standards

Appeal to BC Court of Appeal:Utilities Commission


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Federal admin tribunals

Federal admin tribunals

Judicial review in Federal Court- Immigration and Refugee Board

Judicial review in Federal Court of Appeal- Social Security Tribunal –Appeals Division


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Home > About the Court > Canadian Judicial System

The Canadian Judicial System

The Constitutional Framework

The organization of Canada’s judicial system is a function of Canada’s Constitution, andparticularly of the Constitution Act, 1867. By virtue of that Act, authority for the judicialsystem in Canada is divided between the federal government and the ten provincialgovernments. The latter are given jurisdiction over "the administration of justice" in theprovinces, which includes "the constitution, organization and maintenance" of the courts,both civil and criminal, in the province, as well as civil procedure in those courts. However,this jurisdiction does not extend to the appointment of the judges of all of these courts. Thepower to appoint the judges of the superior courts in the provinces - which includes theprovincial courts of appeal as well as the trial courts of general jurisdiction - is given to thefederal government, as is the obligation to provide for the remuneration of those judges andthe authority to remove them. This latter authority is a limited one and, in fact, has neverbeen exercised.

The federal government is also given the authority to establish "a General Court of Appealfor Canada and any Additional Courts for the better Administration of the Laws of Canada".It has used this authority to create the Supreme Court of Canada as well as the FederalCourt of Appeal, the Federal Court and the Tax Court of Canada. The federal governmentalso has, as part of its jurisdiction over criminal law, exclusive authority over the procedurein courts of criminal jurisdiction.

What emerges from these allocations of jurisdiction in the Constitution is a court system inwhich provincial governments have jurisdiction over both the constitution, organization andmaintenance of, and the appointment of judges to, the lowest level of courts (generallyknown simply as "provincial courts"), while the federal government has authority over theconstitution, organization and maintenance of, and the appointment of judges to, theSupreme Court of Canada, the Federal Court of Appeal, the Federal Court and the Tax Courtof Canada. Authority over the superior courts in each province is shared between theprovincial and federal governments; the provinces have jurisdiction over the constitution,organization and maintenance of these courts, while the federal government has authority toappoint the judges. The fact that jurisdiction over these courts is divided in this way meansthat, in order for these courts to function properly, the federal and provincial governmentsare required to cooperate in the exercise of their respective authorities.

Organization of Courts

The courts in Canada are organized in a four-tiered structure. The Supreme Court of Canadasits at the apex of the structure and, consistent with its role as "a General Court of Appealfor Canada", hears appeals from both the federal court system, headed by the Federal Courtof Appeal and the provincial court systems, headed in each province by that province’sCourt of Appeal. In contrast to its counterpart in the United States, therefore, the SupremeCourt of Canada functions as a national, and not merely federal, court of last resort.

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The next tier down from the Supreme Court of Canada consists of the Federal Court ofAppeal and the various provincial courts of appeal. Two of these latter courts, it should benoted, also function as the courts of appeal for the three federal territories in northernCanada, the Yukon Territory, the Northwest Territories, and the Nunavut Territory.

The next tier down consists of the Federal Court, the Tax Court of Canada and the provincialand territorial superior courts of general jurisdiction. These latter courts can fairly bedescribed as the lynchpin of the Canadian judicial system since, reflecting the role of theirEnglish counterparts, on which they were modelled, they are the only courts in the systemwith inherent jurisdiction in addition to jurisdiction granted by federal and provincialstatutes.

At the bottom of the hierarchy are the courts typically described as provincial courts. Thesecourts are generally divided within each province into various divisions defined by thesubject matter of their respective jurisdictions; hence, one usually finds a Traffic Division, aSmall Claims Division, a Family Division, a Criminal Division, and so on.

Court Locations

There are approximately 750 court locations in Canada. The Supreme Court of Canada sitsonly in Ottawa, although teleconferencing facilities to locations across the country areavailable. Hence it is possible for the parties to litigation before the Court to make theirarguments in locations other than Ottawa, and to have those arguments transmitted to theSupreme Court of Canada via satellite. The other three federally established courts, theFederal Court of Appeal, the Federal Court and the Tax Court of Canada, altogether haveoffices at seventeen permanent locations. The provincial and territorial courts sit at over 700locations. These include fifteen permanent provincial and territorial appellate court sittinglocations - one in each province and territory except for Quebec and Alberta, which havetwo each.

The Supreme Court of Canada

The Supreme Court of Canada was constituted in 1875 by an act of Parliament and is nowgoverned by the Supreme Court Act. It is comprised of a Chief Justice and eight puisnejudges (puisne meaning ranked after), all appointed by the Governor-in-Council for terms of"good behaviour", with a minimum of three judges coming from Quebec. Supreme Courtjudges must live within forty kilometres of the National Capital Region.

The Supreme Court is a general court of appeal from all other Canadian courts of law. It,therefore, has jurisdiction over disputes in all areas of the law, including constitutional law,administrative law, criminal law and private law.

In most cases, appeals are heard by the Court only if leave is first given. Such leave will begiven by the Court when a case involves a question of public importance, or if it raises animportant issue of law or of mixed law and fact, or if the matter is, for any other reason, ofsuch a nature or significance as to warrant consideration of the Court. Leave to appeal tothe Court may also be given by a federal or provincial appellate court.

There are cases where leave is not required. In criminal cases, the Criminal Code gives aright of appeal where acquittal has been set aside in the provincial court of appeal or where,in the provincial court of appeal, one judge dissents on a point of law.

The Supreme Court does have a special kind of "reference" jurisdiction, original incharacter, given by s. 53 of the Supreme Court Act. The Governor-in-Council may refer tothe Court, for its opinion, important questions of law or fact concerning the interpretation ofthe Constitution, the constitutionality or interpretation of any federal or provincial


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legislation, or the powers of Parliament or of the provincial legislatures or their respectivegovernments or any other important question of law or fact concerning any matter. Wherethe government of any province has any special interest in any question put in reference,the Attorney General of the province shall be notified in order that he or she may be heard.

Constitutional questions may also be raised in regular appeals involving individual litigantsor governments or governmental agencies. In such cases the federal and provincialgovernments are notified of the constitutional question and may intervene to argue it.

In light of the broad scope of the Supreme Court of Canada’s jurisdiction, it is clear that theCanadian judicial system differs from that of many continental European and Latin andSouth American countries, where it is not unusual for there to be separate courts of lastresort for both constitutional law and administrative law cases in addition to a general courtof appeal.

Federal Courts

The Federal Court of Appeal and the Federal Court have a long history. Since 2003, they arethe successors of the appeal and trial divisions of the Federal Court of Canada, which in1971 succeeded the Exchequer Court of Canada which itself was created in 1875 and hadjurisdiction only over revenue, the Crown in Right of Canada as litigant, industrial andintellectual property, admiralty and a few other subject matters regulated by federallegislation. The Federal Court was given jurisdiction over these matters, but in addition wasgiven the power of judicial review with respect to decisions of federal administrativetribunals and jurisdiction over claims with respect to several other matters falling withinfederal legislative jurisdiction, including inter-provincial transportation and communicationundertakings, bills of exchange and aeronautics. These latter grants of new jurisdiction havespawned a good deal of litigation regarding the nature and scope of the federalgovernment’s authority to grant jurisdiction to courts of its own making. Generallyspeaking, the Supreme Court of Canada has interpreted that power narrowly, with the resultthat the Federal Courts now exercise jurisdiction over a somewhat narrower range ofdisputes than was initially intended.

Tax Court of Canada

The Tax Court of Canada was established in 1983 and has as its primary responsibility, thehearing of appeals in the area of income tax. Its predecessor, the Tax Review Board, was anadministrative tribunal.

Provincial and Territorial Superior Courts

The superior courts of each province and territory include both a court of general trialjurisdiction and a provincial court of appeal. A significant feature of these courts insofar astheir jurisdiction is concerned is that that jurisdiction is not limited to matters over whichthe provincial governments have legislative jurisdiction. In this respect, they are verydifferent from the state courts in the United States. Hence these courts have jurisdictionover disputes arising in many of the areas over which the federal government is grantedlegislative jurisdiction in the Constitution Act, 1867 - for example, criminal law and banking.Moreover, the power to decide disputes in such areas does not have to be explicitlyassigned to these courts by the federal government in order for these courts to havejurisdiction over them. Hence, if federal legislation calls for the exercise at some point ofjudicial authority, but says nothing about which body is to exercise that authority, it isassumed that that authority will reside with these courts.


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As noted above, therefore, these courts can fairly be described as the lynchpin of theCanadian judicial system.

Provincial and Territorial Courts

Although at the bottom of the hierarchy, these courts handle the overwhelming majority ofcases that come into the Canadian court system. They deal with a broad range of criminalmatters, much of the litigation in the area of family law, and all of the civil litigation inwhich the amount at issue is relatively small. If the average citizen has occasion to becomeinvolved in a dispute that requires adjudication on the part of a court, the likelihood is thathe or she will appear before one of these courts.

Administrative Tribunals

Although not formally part of the Canadian judicial system, because they are not in a formalsense "courts", administrative tribunals are an integral component of the system that hasbeen created in Canada by government to resolve disputes. No description of the lattersystem would be complete without mention being made of these important bodies. Someareas - for example, labour relations (both in the unionized and in the non-unionizedsectors of the economy) and individual claims of discrimination in areas like employment,housing and access to services and facilities customarily available to the public - are dealtwith almost exclusively by them.

In the case of some of these administrative tribunals, the courts are limited in theirsupervisory jurisdiction to ensuring that the tribunals do not exceed the jurisdiction giventhem by their enabling statutes; insofar as these tribunals are concerned, the final say onquestions of law that arise within their jurisdiction rests with them, not with the courts. Thisis generally true in the case of labour relation tribunals. In the case of other tribunals, suchas those established to deal with claims of discrimination, the courts exercise a broadersupervisory authority which extends not only to ensuring that jurisdiction is not exceeded,but also to reviewing decisions on questions of law that arise within jurisdiction. However,even in the case of these latter tribunals, the courts have often, at least in recent years,tended to show a good deal of deference to these tribunals when reviewing decisions of thelatter kind.

The Judiciary

All members of the judiciary in Canada, regardless of the court, are drawn from the legalprofession. In the case of those judges appointed by the federal government, which includesthe judges of all of the courts apart from those at the bottom of the hierarchy and describedgenerally as provincial courts, are required by federal statute to have been a member of aprovincial or territorial bar for at least ten years. Lawyers wishing to become judges mustapply to do so and their applications are vetted initially by committees established withinthe various jurisdictions for that purpose, with the ultimate power of decision residing withthe federal cabinet. Analogous systems operate within the respective provinces forappointments to the provincial courts.

All judges in Canada are subject to mandatory retirement. In the case of some of the judgesappointed by the federal government, the age of retirement is fixed by the Constitution Act,1867, at 75. In the case of all other judges, both federally and provincially appointed, theage is fixed by statute, at either 75 or 70, depending on the court.

The independence of the judiciary in Canada is guaranteed both explicitly and implicitly bydifferent parts of the Constitution of Canada. This independence is understood to consist in


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Date Modified: 2009-01-07

security of tenure, security of financial remuneration and institutional administrativeindependence.


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1

Topic: Residential Tenancy /Housing issues

Student prep:

• Review the Tenant Survival Guide • Watch the recorded webinar uploaded to Sched

Learning Objectives:

• Understand the purpose and context of the residential tenancy legislation and process.

• Know the rights and responsibilities of tenants and landlords.

• Be familiar with the main issues clients encounter and how to resolve them.

• Be aware of the time limits for clients dealing with residential tenancy issues

• Understand the dispute resolution process. • Understand the forms used in residential tenancy cases. • Be familiar with resources on residential tenancy issues.

Activity:

• Presentation: o Overview of the legislation o Highlight common problems and resolution

• Group work on common problems • Take up of problems and solutions

Resource persons: • Zuzana Modrovic, staff lawyer, TRAC Housing Clinic,

• Robert Patterson, advocate, TRAC

Materials:

• Tenant Survival Guide • Powerpoint on residential tenancy issues and dispute

resolution • Fact patterns for discussion.

Assessment:

• Test

Legal Advocacy Training Course - Week 1 Materials - 3. Residential Tenancy Overview

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Residential Tenancy Past Webinar

Scroll down to Housing – “Jan. 19, 2021 – Residential Tenancy Workshop – Shadowing”

https://www.lawfoundationbc.org/grantee-resources/webinar-recordings/


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https://www.lawfoundationbc.org/grantee-resources/webinar-recordings/

R E S ID E N TIA L

TE N A N C Y LA W

IN B R ITIS H

C O LU M B IALEGAL EDUCATION ON

TENANTS’ AND LANDLORDS’

RIGHTS AND RESPONSIBILITIES

LAST UPDATED BY ANDREW SAKAMOTO ON FEBRUARY 8, 2019

T E N A N T S . B C . C A

+

R E N T I N G I T R I G H T . C A

promotes the legal protection of residential tenants across BC by providing

I N F O R M AT I O N , E D U C AT I O N ,S U P P O R T and R E S E A R C Hon residential tenancy matters.


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TENANT INFOLINE

D I R E C T A D V O C A C Y

LE G A L W O R K S H O P S / W E B I N A R S

P LA I N LA N G U A G E P U B LI C A T I O N S

W E B S I T E

O N LI N E C O U R S E

TRACOVERVIEW


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C O N TE N T

O U TLIN EResidential Tenancy Act

Dispute Resolution

Tenancy Agreements

Personal Information

Roommates

Deposits and Fees

Condition Inspections

Quiet Enjoyment

Repairs and Maintenance

Services and Facilities

Rent Increases

Serving Documents

Notices to End Tenancy

W H A T I S

R E S I D E N T I A L T E N A N C Y L A W ?

Tenant and landlord RIGHTS and RESPONSIBILITIES

Tenancy laws in BC are different than tenancy laws in other parts of the world.

Cannot avoid or contract out of the Residential Tenancy Act.

Cannot enforce “unconscionable” terms that are oppressive or grossly unfair.


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A r e y o u c o v e r e d b y t h e

Residential Tenancy Act ?

Not everyone who rents their home is a “TENANT”

under the Residential Tenancy Act

Y o u a r e N O T a “ t e n a n t ” u n d e r t h e

Residential Tenancy Act i f y o u :

SHARE a kitchen or bathroom with the OWNER of the property

RENT from another tenant with whom you live as their

LIVE IN:

co-

vacation or travel accommodation


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W H A T I S T H E R E S I D E N T I A L

T E N A N C Y B R A N C H ( R T B ) ?

Government department

in charge of residential

Phone service

Solution Explorer

Service BC Centres across the

province act as extensions of the

RTB.

Only one RTB office in

-

D I S P U T E R E S O LU T I O N

Similar to court, but done over the phone

Arbitrator (similar to Judge) makes a legally-binding decision

$100 fee – but you may be repaid if you win your hearing. If you are a low income applicant, the fee may be waived entirely

You will need evidence, not allegationsExamples: photographs, receipts, witnesses, letters, and affidavits


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T E N A N C YA G R E E M E N T S

A legal CONTRACT between a tenant

and landlord.

TRAC strongly recommends having a

WRITTEN agreement.

VERBAL tenancies are still covered

under the Residential Tenancy Act.

T E N A N C YA G R E E M E N T S

Month-to-month or fixed-term?

Key landlord contact information:

Legal name

Phone number

Address for service

Landlord must give tenant a

signed copy within 21 DAYS


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V A C A T E C LA U S E S

( R T A A m e n d m e n t – D e c . 2 0 1 7 )

Fixed term tenancy agreements with vacate clauses can now only be used:when a tenant temporarily sublets their rental unit to a subtenantwhen a landlord, or a “close family” member of that landlord, intends in good faith at the time of entering into the tenancy agreement to occupy the rental unit at the end of the term.

This change is RETROSPECTIVE and applies to fixed term tenancy agreements

that were in place at the time the law was changed

If your landlord abuses the new vacate clause rules, they could owe you 12

MONTHS OF RENT as compensation (PENDING – section not in force)

D I S C L O S U R E O F

P E R S O N A L I N F O R M A T I O N

Office of the Information and

Privacy Commissioner of BC has

developed a helpful guidance

document:

www.oipc.bc.ca/guidance-

documents/1456


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R O O M M A TE S

CO-TENANTS

SAME tenancy agreement

JOINTLY responsible

TENANTS SHARING

COMMON SPACE

DIFFERENT tenancy agreements

INDIVIDUALLY responsible

“OCCUPANTS /

ROOMMATES”

NOT covered under the

Residential Tenancy Act

D E P O S I T S A N D F E E S

Security Deposit: ½ month’s rent

Pet Damage Deposit: ½ month’s rent, if pets are allowed

No application fees

No guest fees – even for OVERNIGHT visitors

Non-refundable fees:

replacement or additional keys

move-in or move-out fees charged by a strata corporation to the landlord

institution, only if those terms are included in the tenancy agreement


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C O N D I T I O N

I N S P E C T I O N R E P O R T

Tenants and landlords should

complete both MOVE-IN and

MOVE-OUT condition inspection

reports.

the report?

Q U IE TE N J O YM E N T

Freedom from UNREASONABLE disturbances.

For example:

Smoke

Noise

Intimidation / harassment


100


Freedom from illegal landlord entry.

At least 24 HOURS –

days – written notice:

Date

Time (8am – 9pm)

Reasonable reason


EXCEPTION: Landlord emergency entry.

Necessary to protect life or property (e.g.

flood, fire, water leak, etc.)


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R E P A IR S :L A N D L O R D

R E S P O N S I B I L I T Y

Landlords are generally responsible for

making repairs to the tenant’s rental unit to

ensure compliance with health, housing and

safety standards by law

ELEVATORS

R E P A IR S :L A N D L O R D


– Responsibility for

Residential Premises

Municipal Standards of Maintenance Bylaws

HEAT


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R E P A IR S :T E N A N T


PLUMBING

Must maintain reasonable health, cleanliness, and

sanitary standards

If you, your guests, or your pets damage something,

you are responsible for that damage.

This does not include reasonable “WEAR AND TEAR”

Do NOT withhold rent – apply for dispute resolution.

R E P A IR S :T E N A N T


When something needs to be repaired, notify

your landlord in writing IMMEDIATELY.

TRAC Template Letters

(tenants.bc.ca/template-letters)

If you delay and the problem gets worse, you

could be held responsible.BED BUGS


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R E P A IR S :E M E R G E N C I E S

FLOODS

Repair that is URGENT and NECESSARY

for health or safety of people or property:

major leaks in pipes or roof

damaged or blocked water or sewer pipes

or plumbing fixtures

primary heating system

damaged or defective locks

electrical systems

R E P A IR S :E M E R G E N C I E S

If landlord’s emergency contact cannot be

reached after two tries and a reasonable

amount of time has passed, the tenant can:

PAY FOR THE REPAIRS and get money back from

landlord (be reasonable and keep receipts)

OR

APPLY for dispute resolution to ask for an

emergency repair orderDEFFECTIVE LOCKS


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E s s e n t i a l

S e r v i c e s

A landlord must NOT terminate a service or

facility that is essential (necessary,

indispensable, or fundamental) to the

tenant’s use of the rental unit

Examples: heat, hot water, elevator in multi-

storey apartment

N o n -

E s s e n t i a l

S e r v i c e s

Landlords are ALLOWED to terminate or

restrict non-essential services and facilities

as long as they provide 30 DAYS’ written

notice in the approved form (e.g. RTB form)

Examples: cable, internet, parking, storage

R E N T

IN C R E A S E S

Landlords can raise rent once every 12 MONTHS

Check TRAC website or RTB website for annual allowable percentage

2.5%

3 MONTHS’ written notice on an “approved” form

Exceptions:

Non-profit housing where rents are related to income

Increased rent for additional occupants

RTB order


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S E R VIN G

D O C U M E N TS

Rules determine when documents are legally considered received by another party:

on the SAME day if given or served personally

on the THIRD day after faxing it, attaching it to a door, or leaving it in a mail box or mail slot

on the FIFTH day after mailing it

These rules apply unless there is a “rebuttable presumption”.

When you receive a document, consider it received that SAME day to be safe.

E M A IL, TE XT,

S O C IA L M E D IA

For forms/notices that need to be served in writing in accordance with

the RTA, HARDCOPY documents should be used.

Example: a landlord should not attach an eviction notice to an email.

For general correspondence, email, texts and social media MAY be okay,

if it can be proved that the other person received it.

Example: text messages from your landlord about repairs.


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M O VIN G O U T:M O N T H - T O - M O N T H T E N A N C I E S

One FULL month written notice.

Give notice at the END of the

month:

Leave extra days to ensure

notice is received on time.

M O VIN G O U T:F I X E D T E R M T E N A N C I E S

If you end your fixed term tenancy early – also known as “BREAKING YOUR LEASE” – you may

owe your landlord money

loss of rental income

If your landlord wants money for lost rental income, they have a duty to MITIGATE

show the rental unit to prospective tenants

advertise at a reasonable rent

accept a tenant


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LE G A LLY E N D I N GA F I X E D T E R M T E N A N C Y

Mutual Agreement to End Tenancy

Assignment / Sublet

6 months remaining?

Breach of “Material Term”

Family violence / long term care

Third party verifier

R E TU R N IN G

D E P O S ITS

Tenant gives forwarding address in writing within ONE YEAR of the end of the tenancy.

Landlord has 15 DAYS to:

return deposit to tenant,

obtain tenant’s written permission to keep some or all of the deposit, or

apply to RTB for permission to keep some or all of the deposit.

If landlord does not do one of those three things, tenant can apply to the RTB for

DOUBLE the deposit.


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E V I C T I O N

A landlord can give a tenant an

eviction notice (also known as a

NOTICE TO END TENANCY) when

they want the tenant to move out.

There are four main types of

evictions.

E V I C T I O N :1 0 D A Y N O T I C E F O R N O N - P A Y M E N T O F R E N T

Eviction Notice if you are only

one day late, or a few dollars

short.

If you are late paying rent and

you have 5 DAYS to pay up in

order to cancel the eviction.


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enjoyment

damage something and do not help repair it

assign, sublet, or add an occupant/roommate

without permission

repeatedly pay rent late

fail to comply with a “material term” and

ignore the landlord’s written warning

engage in illegal activity that negatively affects

the building, landlord, or other occupants

receive a government order telling you to

move out (e.g. illegal suite)

E V I C T I O N :O N E M O N T H N O T I C E F O R C A U S E

Illegal suites are covered by the Residential Tenancy Act

If they are discovered by your City, they may be shut down

Eviction Notice but NO COMPENSATION

I LLE G A L S U I T E S


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E V I C T I O N :T W O M O N T H N O T I C E F O R L A N D L O R D ’ S U S E O F

P R O P E R T Y

You may get this notice if your

landlord or their close family decide

to move into your place.

“CLOSE FAMILY”:

Landlord’s spouse

Parents or children of the

landlord or the landlord’s spouse

E V I C T I O N :F O U R M O N T H N O T I C E F O R L A N D L O R D ’ S U S E O F

P R O P E R T Y

You may get this notice if your landlord

wants to:

demolish your rental unit

make EXTENSIVE renovations that

MOVE OUT for an

extended period of time


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E V I C T I O N :F O U R M O N T H N O T I C E F O R L A N D L O R D ’ S U S E O F

P R O P E R T Y

Questions to consider:

Have permits been obtained?

How extensive are the renovations?

How long will the unit be vacant?

How much of the unit will be affected?

Common law allows a tenant to

accommodate renovations to avoid eviction

and continue living in their rental unit.

E V I C T I O N :T W O A N D F O U R M O N T H N O T I C E S F O R

L A N D L O R D ’ S U S E O F P R O P E R T Y

If a tenant receives a Two or Four Month Eviction Notice, they get compensated

for ONE MONTH of rent.

Example: they can live there free for the last month.

If a tenant wants to move before the two months are up, they can provide 10

DAYS’ notice in writing and still be compensated for the last month.

If you have evidence that the landlord never followed through with what they

said they would do on the Two or Four Month Eviction Notice, you can apply for

12 MONTHS OF RENT as compensation.


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E V I C T I O N :R I G H T O F F I R S T R E F U S A L

In residential properties containing five or more rental units, tenants being

evicted due to renovations or repairs have a “RIGHT OF FIRST REFUSAL” to

return to their unit once the renovations or repairs have been completed.

Tenant must provide RTB form, “Exercising Right of First Refusal”

must inform the tenant of the date their renovated unit will be available and

provide them with a new tenancy agreement for that effective date

NO LIMIT ON NEW RENT!

If a landlord does not follow the right of first refusal rules, they could end up

owing 12 MONTHS OF RENT as compensation.

S E L L I N G A

T E N A N T E D P R O P E R T Y

A landlord cannot issue an eviction notice simply because they have put a rental

property up for sale.

When a tenant’s rental unit is sold, the existing tenancy agreement TRANSFERS

to the new owner.

The seller can issue an eviction notice on behalf of the purchaser if the

purchaser, or a “close family” of the purchaser, plans to move in, AND all

conditions of the sale have been satisfied.


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D I S P U T I N G A N

E V I C T I O N N O T I C E

If a tenant does not think they

deserve to be evicted, they

can challenge the eviction

notice at dispute resolution.

5 DAYS to dispute

10 DAYS to dispute

15 DAYS to dispute

30 DAYS to dispute

E V I C T I O N P R O C E S S

In order to legally remove a tenant, a landlord must obtain:

1. RTB Order of Possession

2. BC Supreme Court Writ of Possession

3. Services of a Court-Approved Bailiff


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RTB Review

Circumstances beyond individual’s control

New and relevant evidence

Fraud

Judicial Review through BC Supreme Court

Community Legal Assistance Society (CLAS)

C H A L L E N G I N G A D I S P U T E

R E S O L U T I O N H E A R I N G D E C I S I O N

K E Y T E N A N T R E S P O N S I B I L I T I E S

Pay rent in full and on time

Notify the landlord of any repairs

immediately

Pay for any damage caused beyond

normal “wear and tear”

Don’t unreasonably disturb others

Don’t do anything illegal and

dangerous


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K E Y L A N D L O R D R E S P O N S I B I L I T I E S

Provide a copy of the tenancy agreement

Provide opportunities to complete both move-in

and move-out Condition Inspection Reports

Provide a receipt for rent paid in cash

Return deposits on time

Make repairs to ensure that the rental unit

complies with health, housing, and safety

S U M M A R Y

If you want to tell your

landlord to stop breaking the

law, ask them in WRITING.

tenants.bc.ca/template-letters

Always remember to think

about gathering EVIDENCE.

Take photographs, get

witnesses, keep receipts, etc.

If you are unsure about

something, ASK for help!

TRAC is open from

Monday-Friday


116

C O N T A C T

TR AC

tenants.bc.ca

rentingitright.ca

(604) 255-0546

1 (800) 665-1185

@tracbc

@trac_bc

@trac_bc

C O N T A C T

R TB

gov.bc.ca/landlordtenant

[email protected]

-

( ) 665-8779

Offices:

–

*

*

Service BC Centres:

www.servicebc.gov.bc.ca/locations

* Only accepts dispute resolution applications from low income tenants


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Q u e s t i o n s ?


118

Dispute Resolution 101

What is Dispute Resolution?• Legal proceeding for resolving landlord-tenant disputes.

• These proceedings are facilitated by the Residential Tenancy Branch (RTB) –the branch of government in charge of residential tenancy law in BC.

• Similar to court, but less formalo Parties provide evidence (e.g. testimony, photos, receipts, witnesses)o Usually conducted over the phoneo Arbitrator makes a legally-binding decisiono Principles of natural justice apply

• Rules of Procedure for Dispute Resolution can be found on the RTB website, along with the Act and Regulation


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What is Dispute Resolution? • The decision-maker is called an “Arbitrator”

• Arbitrators are NOT bound by previous RTB decisions

• They ARE bound by relevant court decisions

• The standard of proof is balance of probabilities

• The onus is usually on the applicant to prove their case, generally

Assessing the Case• Why has the client come to you and what do they want to achieve?

o Are their goals realistic?o Likelihood of success?

• Are there other options that you and the client should explore?o Has the client attempted to resolve the problem with their

landlord?o Negotiation?o Do they understand all options, and possible outcomes?


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Assessing Your Abilities

• Are you the right person to take on the case?o Are you familiar with the RTB’s Rules of Procedure, and

the Residential Tenancy Act?

• Can you meet the RTB’s deadlines?

• Knowing when to say no

Applying for a Hearing


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Application Deadlines• Generally, 2 years from the end of the tenancy (but don’t wait!)

• Disputing a Notice to End Tenancyo 10 Day Notice for Non-Payment of Rent = 5 dayso 1 Month Notice for Cause = 10 dayso 2 Month Notice for Landlord’s Use of Property or Ceasing

to Qualify for a Subsidized Rental Unit = 15 dayso 4 Month Notice for Extensive Renovations, Demolition, or

Conversion = 30 Days

How to File for Dispute Resolution• Apply in person at a RTB office or Service BC Centre

• Apply online at www.gov.bc.ca/landlordtenant

• $100 filing fee o Low income applicants can apply for a fee waivero Can recover from landlord if tenant is successful at hearing

• Important to list correct legal name and address of respondent(s)o May need to do a land title search

• Where a client wants to make more than one claim, an Arbitrator will generally only hear them together if the claims are related

o Unrelated claims are usually “severed”o If one claim relates to an eviction, usually all others will be severed


122

Notifying the Other Parties

• RTB schedules hearing date, provides applicant a hearing package that contains:o Notice of Hearing with the date, time, and method of

hearingo Hearing information sheet

• Applicant must serve this on all other parties within 3 days of receiving it, either in person or by registered mail.

Preparing for a Hearing


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Important Deadlines- Evidence• Applicant evidence must be received by the RTB and the

respondent at least 14 days before date of hearing

• Respondent evidence must be received by the RTB and applicant at least 7 days before date of hearing

• Cross-Application and supporting evidence must be received by the RTB and applicant at least 7 days before date of hearing.

• The calculation for number of days does not include either:o the day the evidence is received, or o the hearing date

Important Deadlines- Other• Amendments to an application must be received by the RTB

and the respondent at least 14 days before date of hearing

• Requests to adjourn the hearing if both parties agree, must be received by the RTB at least 3 days before the hearing. The request must be in writing and signed by both parties.

o If other party does not agree, you can request an adjournment at the hearing.


124

Serving Evidence• Deadline is for the day the other

party receives the evidence. Evidence must be served in one of the following ways, and each method has a different timeline for when it is deemed to be received:

o In person = same dayo Leaving in mail box, posting on

door, fax = 3 days latero Mail (regular or registered) = 5

days later

Evidence Submission ExampleMarch 2015

Sun. Mon. Tue. Wed. Thu. Fri. Sat.

1 2 3 4 5 6 7

8 9 10 11 12 13 14

APPLICANT’S EVIDENCE MUST BE RECEIVED BY RESPONDENT AND RTB

15 16 17 18 19 20 21

RESPONDENT’S EVIDENCE MUST BE RECEIVED BY APPLICANT AND RTB

22 23 24 25 26 27 28

RTB HEARING DATE

11:00 AM

29 30 31


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Types of Evidence• The Rules of Evidence do not apply in general – up to each arbitrator

to decide what they will accept.

• Good evidence is:o Relevant, Reliable, Authentic, Complete, Legible

• Consider: what is the simplest and most convincing way to prove my case?

• It can be helpful to create a table lining up the factual points that need to be proven in one column, and the evidence to prove those points in the other column.

Types of Evidence• Evidence can be in the form of documents:

o Tenancy Agreemento Condition Inspection Reportso Pictureso Copies of Emails and Text Messageso Letterso Receiptso etc.

• Evidence can be in the form of testimony.

o Sworn, real-time testimony is generally best, as the witness is available for cross examination

o If your client or a witness cannot attend the hearing, he/she can write a signed and dated statement, or swear an affidavit that the facts they are alleging are true

o Consider becoming a commissioner for taking affidavits


126

Digital Evidence• Digital evidence, such as following, may be submitted for a

dispute resolution hearing:o Photographso Video recordingso Audio recordingso E-mails and Text Messages

• Evidence must be a fair and accurate representation of the events depicted on it. For example, evidence may not be accepted if: o Video quality is pooro Parts of an audio recording are missingo Source is not credible

Accepted Devices for Digital Evidence

• Acceptable devices for the file copy are:o USB Device / Memory Sticko Compact Disk (CD)o Digital Video Disk (DVD)

• Must also submit the Digital Evidence Details form

• You need to confirm that other party is able to access the digital evidence. Confirm this with them as soon as possible.


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Organizing Evidence• Evidence must be organized, clear, and legible. All parties need

identical copy.

1. Cover page- List RTB file number, hearing date, names of tenants and landlord

2. Table of contents (all pages numbered)3. Written submission

o Introductiono Facts/backgroundo Lawo Argumento Requested remedy o Your signature

Client Preparation• Consider going over the following with your clients:

o The start time of the hearingo How to call in to the hearingo The general dispute resolution processo All testimony you will ask your client to giveo How to address the arbitrator o Important to act in a professional and a respectful manner, no

matter what the issue. o Important not to interrupt the other party or arbitrator.

The Arbitrator has full control over the proceedings - don’t make promises you may no be able to keep.


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Witnesses Preparation• Consider going over the following with your witnesses:

o All questions you will ask and what they might be cross examined on.

o Tell the truth and don’t exaggerateo Listen carefully to the questions and take your time before

answeringo If you don’t know, say so, don’t guesso If you don’t remember, say so, don’t guesso If you don’t understand the question, say soo Answer the questions directly, then give an explanation if neededo Stay on topico Do not engage in personal attackso Exclusion of witnesses

Self PreparationIt’s important for you to prepare, too!

• Write down direct-examination questions that you expect to ask your client and your own witnesses.

o Refer to evidence where appropriate

• Write down cross-examination questions that you think you will ask the landlord and/or their witnesses.

o Refer to evidence where appropriate

• Write out a closing argument loosely. Expect that the contents of this will change drastically depending on the testimony that comes out during the hearing.

o Important to refer to evidence here


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Procedural Requests• Well before a hearing, think about any procedural requests you

may have.o Do you need an adjournment?o Do you need to ask the Arbitrator to accept documents that were

filed late? Or object to an opposing party’s late evidence?o Does your client need a translator?o Does your client need special accommodation due to a disability?

It is rare, but possible to get an in-person hearing.

During the Hearing


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Typical Structure of a Hearing1) Introduction, procedural issues, swearing in. 2) Applicant presents evidence3) Respondent challenges applicant’s evidence4) Respondent presents evidence5) Applicant challenges respondent’s evidence6) Applicant makes final argument / closing statement7) Respondent makes final argument / closing statement

At the Start of the Hearing

• Have a pen/paper or computer ready so you can take notes.

• Have all of your submitted documents in front of you

• Intorduce yourself and explain you are acting as an advocate/ agent for your client

o RTB Policy Guideline #26 -Advocates, Agents and Assistants


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At the Start of the Hearing

• Be prepared to ask for any procedural requests you may have early on

o For example, evidence issues or adjourning the hearing

• Write down the names of everyone attending

• Check that the Arbitrator and other party have received your evidence

Landlord’s Testimony• Take notes on what the landlord is saying- write down anything you want

to question them on or bring up during your submissions. Don’t interrupt. One exception: If the landlord is presenting documentary evidence that your client never received.

• You can ask questions of the landlord and their witnesses, so can the arbitrator.

• 2 goals of cross-examination:1. Identifying problems with their evidence:

• Gaps or inconsistencies, incorrect or exaggerated, not supported by the documentary evidence

2. Attacking credibility when there is a reason to believe that the person is• Being dishonest, has a lack of knowledge, or simply mistaken


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Your Client/ Witness Testimony• Direct examination of your client/witnesses:

o Ask questions to get them to provide the needed testimony

o Point them to documentary evidence and present it through their testimony

o Testimony should be first-hand, not hearsayo Avoid leading questions.

• Both the landlord and arbitrator will have opportunity to ask your client/witnesses questions after you are finished.

Closing Statement• Usually, this is when you present documentary evidence and explain

your legal arguments.• Be as concise as possible, explain the structure of your presentation to

the arbitratoro Ie. “I will be making the following three points…”

• Reference the law, policy guidelines, case law, etc. • Refer back to testimony.• Refer to documentary evidence. Before explaining each piece of

evidence, tell the arbitrator what page it is on and pause to allow them to locate it.

• Explain what the evidence demonstrates and why it is relevant– don’t assume the arbitrator knows this.


133

At the End of the Hearing

• Thank the arbitrator for conducting the hearing

• Decision generally provided within 30 days of hearing date

• Arbitrators’ decisions are legally binding and enforceable

After the Hearing


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RTB Review

• There are only 3 reasons for the Residential Tenancy Branch to review a decision or order:

1. person was unable to attend the hearing due to circumstances that could not have been anticipated and were beyond their control.

2. person has new and relevant evidence that was not available at the time of the original hearing

3. person has evidence that the decision was obtained by fraud

RTB Review- TimelinesTimeline for RTB review depends on the issue:

• 2 Days:o Notice to End Tenancy for non-paymento Early end to tenancyo Order of Possessiono Landlord withholding consent to sublet or assign unit

• 5 Days:o Notice to End Tenancy for any reason other than non-paymento Repairs and Maintenanceo Terminating or restricting services or facilities

• 15 Days:o Any other matter


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Judicial Review• If you believe your client was denied natural justice / procedural

fairness, or that their decision is patently unreasonable, your client can seek a Judicial Review through Supreme Court.

• The Residential Tenancy Branch is considered an “expert” tribunal –the test for Judicial Review is very high.

• If a tenant is appealing an eviction, they can apply for a Stay during the Supreme Court process that will halt the eviction.

• A Supreme Court judge will usually order a re-hearing at the RTB if the Judicial Review is successful.

Improving Your Knowledge

• For more information on Dispute Resolution:o RTB Rules of Procedure (www.gov.bc.ca/landlordtenant) o TRAC Website (www.tenants.bc.ca) “Dispute Resolution” Tab


136

Questions?


137

Tenant Survival Guide

https://wiki.clicklaw.bc.ca/index.php/Tenant_Survival_Guide


138

https://wiki.clicklaw.bc.ca/index.php/Tenant_Survival_Guide

PLE - Advocates’ Fact Patterns

Pattern 1 - Roommates

Background/Facts

- Your client has received a verbal eviction notice from their “roommate”.- Client rents a separate bedroom in a house that their roommate rents directly from the

owner; the house includes kitchen and bathroom that are shared between client,roommate, and others who rent rooms from the roommate.

- Roommate has a bedroom in the house, but spends almost no time in the house; yourclient thinks sleeps there less than once a month.

- There is a written agreement between client and roommate that says that the partiesagree that they are roommates, and that the Residential Tenancy Act does not apply.

- The roommate has said they will move the client’s belongings out by the end of themonth if they do not move them on their own.

Questions

1) Is the client covered by the Residential Tenancy Act ?2) What can the client do through the Residential Tenancy Branch?3) What other solutions can you come up with to help the client in the short term? What can

they do to prevent their belongings being moved?4) If the client has an RTB hearing and finds out the RTB does not have jurisdiction, what

can they do if they are locked out without reasonable notice?

Pattern 2 - Making Claims against a Landlord

Background / Facts

- Your client has lived in their unit for several years; unit is a two storey house- Downstairs of Unit was flooded in December last year- Your client has verbally asked their landlord to fix water damage and remediate mold

several times since then, but the landlord hasn’t acted- Client emailed landlord to follow up mid January, didn’t get a response- Client has not been able to use the downstairs portion of unit at all since the flood- Client is particularly annoyed because last March the landlord raised the rent by 10%

and your client did not object at that time, as she thought her relationship with thelandlord was good and she didn’t want to rock the boat

- Your client has come to you asking for advice about what dispute resolution claims shecan make against the landlord and whether she should do anything before she files.


139

Questions

1) What claims can this tenant make at dispute resolution?2) Should the tenant do anything prior to filing any of those claims?3) If you think the tenant needs to write a letter, what should it say?

Pattern 3 - Eviction for Cause

Background/Facts

- Long-term tenancy; your client lives in a basement suite where landlord lives in houseupstairs

- Client has had dispute with upstairs landlords over noise for last three months: soundfrom above carries through the floor, client has complained in writing; landlord complainsback in writing that client is making too much noise as well

- An unexpected plumbing issue in basement suite on May 3rd causes minor flooding inthe downstairs kitchen and bathroom; client moves belongings out of the rooms to allowlandlord and their plumber in to fix the pipes; landlord takes photos of unit with manyitems stacked in boxes; client put all things away after the work was finished

- Landlord serves a 1 Month Notice to End Tenancy on May 7th in person. On the notice,the boxes are ticked for “interfered with the right of another occupant/landlord” and “putproperty at significant risk”. There is no evidence attached to the Notice, but detailssection notes “noise complaints from tenants” and “hoarding”

- The client has provided you with the 1 Month Notice, as well as the following:- Copies of the noise complaint letters sent and received from the landlord- Text messages to and from the landlord showing that they had a falling out just before

the noise complaints started- A recording of the landlord and their spouse having a conversation upstairs about how

they could evict the tenant- Photos of their suite after they had put their belongings back in place- A recording of a conversation the client had with the landlord where the landlord tells

them that they don’t care that the client has tidied up the mess, they just want to evictthem

Questions

1) What is the deadline for filing for Dispute Resolution?2) As an applicant, the client must file their evidence first. What evidence should they think

about submitting?


140

Pattern 4 - Demoviction

Background/Facts

- 25 tenants live in a 2 storey Vancouver walk-up that has recently been purchased by aproperty development company

- The developer informs all tenants that the plan is to demolish the whole building- The developer hires an agent, a consultant who professes to be a ‘landlord/tenant

mediation specialist,’ to assist with the process of emptying the building- Over the course of 3 months the agent engages in some aggressive tactics to push

some tenants out of the building, 15 of 25 accept buyouts and leave.- The 10 remaining tenants are given 4 month eviction notices on the appropriate RTB

form. They are served in person on May 1st, 2021 and indicate an effective date ofAugust 31st, 2021.

- The notices state that the landlord has obtained all necessary permits but no permits areattached

- After the notices are served the consultant continues to try to pressure the tenants intotaking buyouts by calling each of them daily as well as knocking on their doors in theevenings every few days

- The tenants do not want to move

Questions

1) If the 10 tenants want to dispute the notice, what is their deadline to file for DisputeResolution?

2) What do they need to do if they want to file as a group?3) If the tenants do not file for Dispute Resolution, when will they have to move out?4) How can they find out what permits have been obtained for the property?5) If the permits are in place, what kinds of arguments could the tenants make at dispute

resolution?6) What, if anything, can they do to prevent the consultant from pressuring them to accept

buyouts?7) One of the 15 tenants who accepted a buyout offer now regrets it and wants to move

back into the building and fight the renoviction along with the tenants who stayed. Hesays he was pressured into taking the deal by the consultant and so the agreementshould be invalid. What, if anything, can he do?


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Pattern 5 - Illegal Eviction

Background/Facts

- A tenant is informed verbally by her landlord that she must move out by the end of thefollowing month.

- The tenant tells the landlord that a verbal eviction notice is not valid, so the landlordwrites her an email stating that she is required to move by the end of the following month

Questions

1) What should the tenant do?.

Pattern 6 - Bad Faith Eviction

Background/Facts

- Your client’s landlord issues a One Month Notice to End Tenancy on December 24th.The landlord then issues a 2 Month Notice to End Tenancy on December 25th, and tellsyour client that he won’t enforce the first Notice.

- The client files on their own for Dispute Resolution to dispute the second Notice onJanuary 7th, but learns from the Branch that the LL has filed to enforce the first, OneMonth Notice. The hearings have been joined together to be heard on January 28th

- The 2 Month Notice states that the LL will be moving his father-in-law into the suite; theclient believes the LL is not married, but does not have any proof.

Questions

1) What evidence should the client think about gathering before the hearing?2) What arguments can the client advance at the scheduled hearing in support of:

a) Cancelling the 2 Month Notice to End Tenancy?b) Stopping the landlord from enforcing the One Month Notice to End Tenancy?

3) After the hearing, but before a decision from the Arbitrator, the Landlord files for a DirectRequest to enforce a 10 Day Notice to End Tenancy that your client was never served.The landlord claims he served the Notice in person on February 2nd. What is theprocess for fighting this Notice if the landlord is successful at getting an Order ofPossession through a Direct Request?


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Fact Pattern #1 Roommates

- Roommates Background/Facts - Your client has received a verbal eviction notice from their

“roommate”. - Client rents a separate bedroom in a house that their roommate rents directly from the

owner; the house includes kitchen and bathroom that are shared between client, roommate, and others

who rent rooms from the roommate. - Roommate has a bedroom in the house, but spends almost no

time in the house; your client thinks sleeps there less than once a month. - There is a written agreement

between client and roommate that says that the parties agree that they are roommates, and that the

Residential Tenancy Act does not apply. - The roommate has said they will move the client’s belongings

out by the end of the month if they do not move them on their own.

Questions

1) Is the client covered by the Residential Tenancy Act?

2) What can the client do through the Residential Tenancy Branch?

3) What other solutions can you come up with to help the client in the short term? What can they do to prevent their belongings being moved?

4) If the client has an RTB hearing and finds out the RTB does not have jurisdiction, what can they do if they are locked out without reasonable notice?

Does the RTA apply -- the issue of jurisdiction can be open to interpretation by the adjudicator.

Whether the RTA applies or not depends on the actual living arrangement between them. Generally, it is

better to be covered by the RTA because it provides more rights (though there might be cases where not

being an RTA tenant could be better for a client).

Where a tenant rents a unit, resides there as their primary residence, and brings in a roommate, the RTA

generally does not apply. However, where a tenant rents a unit, moves out of that unit, and re-rents it

to an occupant, this is effectively a sublet that creates a new tenancy relationship between the tenant

and the occupant. See RTB Policy Guideline 19 for more information on subletting and assignment.

Here, one very important fact is that the client's roommate does not seem to be using the unit as their

primary residence. This suggests that a good case could be made for this being a sublet, and the RTA

therefore applying. Other facts to note:

• Exclusion in s. 4(c) of the Act applies when they share kitchen and bathroom with the owner, so

it does not apply here.

• The letter saying the RTA does not apply doesn’t take it out of the RTA – you cannot contract

out of the act. Whether the parties agree that it applies or that it does not usually has no legal

effect on the legal test for jurisdiction.

What can the client do through RTB – Can apply for an order that the subletting tenant complies with

the RTA and does not illegally evict client.

There may be something in the head tenant's tenancy agreement with the LL that speaks about right to

sublet; if you can get a copy, you can try to see if anything is relevant.


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What other solutions are there to help the tenant not have belongings moved. - ask the client what

they want to do.

- If they want to move out then check for best timing

- If they do not want to move out, you could write a letter to the main tenant and suggest that

the RTA would have jurisdiction regarding the threat about moving their belongings out, and

that the client could pursue them for losses and aggravated damages at the RTB.

Also could consider contacting the LL – if there is a relationship there.

What are remedies if they are locked out without reasonable notice -- apply through CRT and get some

compensation for any losses. Could only claim monetary compensation for expenses incurred for lack of

reasonable notice.


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Fact Pattern #2 - Making Claims against a Landlord

Background / Facts - Your client has lived in their unit for several years; unit is a two storey house -

Downstairs of Unit was flooded in December last year - Your client has verbally asked their landlord to

fix water damage and remediate mold several times since then, but the landlord hasn’t acted - Client

emailed landlord to follow up mid January, didn’t get a response - Client has not been able to use the

downstairs portion of unit at all since the flood - Client is particularly annoyed because last March the

landlord raised the rent by 10% and your client did not object at that time, as she thought her

relationship with the landlord was good and she didn’t want to rock the boat - Your client has come to

you asking for advice about what dispute resolution claims she can make against the landlord and

whether she should do anything before she files.

Questions

1) What claims can this tenant make at dispute resolution?

Unlikely that this damage will be considered urgent so it might not be a claim for emergency action.

Emergency repairs must affect use and there has to be an active leak.

Could ask for repair of the mold. Concerns about mold do not fall under emergency repairs. Mold is a

tricky issue to make a claim for compensation for but it is common in the Lower Mainland. There is little

research that shows the dangers of mold, so it is often difficult to claim compensation simply for mold

being present in a rental unit – it is best to have specific medical evidence to ground that kind of claim.

Asking for remediation of mold in a repair order is much more straightforward, because units should be

mold-free.

Could ask for compensation for loss of use – e.g. since client lost use of about half the house you could

ask for reduction of rent. There are no clear guidelines, but you cannot get what you don’t ask for, so

can ask for larger percentage (as long as you have a rational basis & explanation for the number) and

Arbitrator can award up to that number.

Could ask for the rent increase to be rolled back. The 10% rent increase has to be in writing and it is not

clear that the tenant agreed. There is a policy guideline on rent increases that says that just starting to

pay the rent does not constitute agreement. If the tenant did agree in writing to a larger increase but

the timing requirement for the increase was not met, then can still ask for the overpayments back as

parties cannot opt out of the timing of the increase that is set in the RTA. (12 months)

2) Should the tenant do anything prior to filing any of those claims?

The client should write a letter before filing a claim. Do not want the LL to come to DResolution and say

that they had not heard anything from the tenant. Best to send by registered mail and/or get some

other confirmation that it has been received by the landlord.

3) If you think the tenant needs to write a letter, what should it say?

Set out what you want – compensation and repairs and set a deadline. Good to put the request for

repairs in writing to forestall any complaint by the LL that the tenant did not handle the situation well.

Rules at the RTB allow service by email if the party has provided an email as an address for service.


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Fact Pattern #3 - Eviction for Cause

Background/Facts - Long-term tenancy; your client lives in a basement suite where landlord lives in

house upstairs - Client has had dispute with upstairs landlords over noise for last three months: sound

from above carries through the floor, client has complained in writing; landlord complains back in

writing that client is making too much noise as well - An unexpected plumbing issue in basement suite

on May 3rd causes minor flooding in the downstairs kitchen and bathroom; client moves belongings out

of the rooms to allow landlord and their plumber in to fix the pipes; landlord takes photos of unit with

many items stacked in boxes; client put all things away after the work was finished - Landlord serves a 1

Month Notice to End Tenancy on May 7th in person. On the notice, the boxes are ticked for “interfered

with the right of another occupant/landlord” and “put property at significant risk”. There is no evidence

attached to the Notice, but details section notes “noise complaints from tenants” and “hoarding” - The

client has provided you with the 1 Month Notice, as well as the following: -

Copies of the noise complaint letters sent and received from the landlord –

Text messages to and from the landlord showing that they had a falling out just before the noise

complaints started –

A recording of the landlord and their spouse having a conversation upstairs about how they could evict

the tenant - Photos of their suite after they had put their belongings back in place –

A recording of a conversation the client had with the landlord where the landlord tells them that they

don’t care that the client has tidied up the mess, they just want to evict them

Questions

1) What is the deadline for filing for Dispute Resolution?

Ten days – may 17. Do not need “clear days” for service. There is an explanation of this in the

interpretation act.

For eg. You do need to have 14 clear days for providing evidence – so the person you are serving needs

to have the materials before the hearings.

Best to be careful and make sure you file early enough.

2) As an applicant, the client must file their evidence first. What evidence should they think about

submitting?

Noise complaint letter – putting both letters in with the dates would show that the client complained

first and the LL retaliated. You don't have a duty to disclose evidence that is harmful to your client, and

sometimes it makes sense not to put all the evidence in, but sometimes not putting all the evidence in

could make it seem that you are holding back facts.

Text messages that show a falling out before the noise complaint started – Include these because they

show the LL was acting in an adversarial way. While evictions for cause to not have a good faith

requirement, it is still relevant to the legal test because it suggests an alternative explanation for why


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the landlord is trying to evict (i.e. That they want to evict the tenant because of a personal dispute and

not because they have actually done something that gives rise to the right to issue a 1 Month Notice).

Recording of LL and spouse talking upstairs about how to evict tenant. – Do not include. Seems to bring

into question the tenant’s behaviour. Under privacy law, one needs to be part of a conversation to be

able to properly record it - this could be a criminal issue. And the fact that could hear a conversation

upstairs could show how easily sound travels in the house. Call might be admissible as evidence

because the tribunal does not have to follow the rules of evidence, but the fact that the LL wants to

evict someone is not enough. Overall, it is risky.

Photos of the suite after belongings back in place – Yes; these photos would show that not putting the

property at risk.

Recording of CL convo with LL – yes submit it.

3) Can the LL take photos of the place if they are there to make repairs ? –

if they are going to take photos they have to say they are there to take photos. Photos have to be of the

unit – not the belongings. They can feature the tenants' belongings but must be predominately of the

unit itself.


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Pattern 4 - Demoviction

Background/Facts - 25 tenants live in a 2 storey Vancouver walk-up that has recently been purchased by

a property development company - The developer informs all tenants that the plan is to demolish the

whole building - The developer hires an agent, a consultant who professes to be a ‘landlord/tenant

mediation specialist,’ to assist with the process of emptying the building - Over the course of 3 months

the agent engages in some aggressive tactics to push some tenants out of the building, 15 of 25 accept

buyouts and leave. - The 10 remaining tenants are given 4 month eviction notices on the appropriate

RTB form. They are served in person on May 1st, 2021 and indicate an effective date of August 31st,

2021. - The notices state that the landlord has obtained all necessary permits but no permits are

attached - After the notices are served the consultant continues to try to pressure the tenants into

taking buyouts by calling each of them daily as well as knocking on their doors in the evenings every few

days - The tenants do not want to move

Questions

1) If the 10 tenants want to dispute the notice, what is their deadline to file for Dispute Resolution?

May 31 is the deadline to dispute

2) What do they need to do if they want to file as a group?

If they want to file as a group, first each applies individually, then they submit a a request to join

applications that they all sign.

3) If the tenants do not file for Dispute Resolution, when will they have to move out?

Because they did not give notice until May 1 the four months will not be until the end of September

because the months must be complete months ending the day before rent is due.

4) How can they find out what permits have been obtained for the property?

Municipalities have this info. Some have online databases, others have staff that give out this

information. Also useful to look into what tenant protection policies the municipality might have to see

if landlord is complying with them.

5) If the permits are in place, what kinds of arguments could the tenants make at dispute resolution?

For a demoviction – cannot argue that there is no need to move out (as could for renoviction)

If have evidence that they do not intend to demolish the property – put that info in.


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Could tenant ask for right of first refusal for a new tenancy agreement in another building owned by the

landlord? There is no right of first refusal for demovictions -- that is only guaranteed when the tenant is

looking for another place in the same building.

6) What, if anything, can they do to prevent the consultant from pressuring them to accept buyouts?

Send a letter to the LL to make it clear that the client does not want the LL to keep doing what they are

doing. Can threaten to bring a claim for loss of quiet enjoyment if it persists.

Could not likely apply for restricted access because the LL has not been trying to enter particular suites.

7) One of the 15 tenants who accepted a buyout offer now regrets it and wants to move back into the

building and fight the renoviction along with the e tenants who stayed. He says he was pressured into

taking the deal by the consultant and so the agreement should be invalid. What, if anything, can he do?

The tenant could make an argument in front of RTB – but proving duress is very difficult.


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Pattern 5 – Illegal Eviction

Background/Facts - A tenant is informed verbally by her landlord that she must move out by the end of

the following month. - The tenant tells the landlord that a verbal eviction notice is not valid, so the

landlord writes her an email stating that she is required to move by the end of the following month

Questions 1) What should the tenant do?

The tenant could ignore this because there has not been proper notice. The tenant could also respond

to the landlord and take the position that it is not proper notice and that they will not be moving out.

The tenant could go further and indicate to the landlord the proper notice that they should use if they

want to evict them (some tenants may want this if they want to end their tenancies and/or if they want

to get a 2 or 4 Month Notice that entitles them to some compensation).


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Pattern 6 - Bad Faith Eviction

Background/Facts - Your client’s landlord issues a One Month Notice to End Tenancy on December 24th.

The landlord then issues a 2 Month Notice to End Tenancy on December 25th, and tells your client that

he won’t enforce the first Notice. - The client files on their own for Dispute Resolution to dispute the

second Notice on January 7th, but learns from the Branch that the LL has filed to enforce the first, One

Month Notice. The hearings have been joined together to be heard on January 28th - The 2 Month

Notice states that the LL will be moving his father-in-law into the suite; the client believes the LL is not

married, but does not have any proof.

Questions 1) What evidence should the client think about gathering before the hearing?

Copies of the notices.

Evidence that the LL is not married – facebook or dating profile. Evidence from experience of other

tenants. Be creative!

2) What arguments can the client advance at the scheduled hearing in support of:

a) Cancelling the 2 Month Notice to End Tenancy?

If the LL is not married then would not be the father-in-law, so if can provide evidence of this, then could

prove LL cannot do what they said they would do on the notice. (If LL has spouse, likely does not matter

if they are common law or not.) Could also argue that pattern of eviction notices shows LL has ulterior

motive: just wants tenant to move out. Could stress that the first Notice was a 1 Month, showing that

their primary intention to end the tenancy was for something unrelated to use.

b) Stopping the landlord from enforcing the One Month Notice to End Tenancy?

The 2 month notice came after and is more recent. It does not automatically cancel the first, but service

of a second notice does tend to show did not want to rely on the first notice.

The tenant could explain what the LL said to the tenant about withdrawing the notice, providing

testimony.

3) After the hearing, but before a decision from the Arbitrator, the Landlord files for a Direct Request to

enforce a 10 Day Notice to End Tenancy that your client was never served. The landlord claims he served

the Notice in person on February 2nd. What is the process for fighting this Notice if the landlord is

successful at getting an Order of Possession through a Direct Request.

If the LL lies about serving the 10 day notice, - tenant can file for Review Consideration of the ex parte

Direct Request decision on the basis of fraud (i.e. The landlord lied about serving them) within 2 days of

getting the decision.


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1

Topic: Best practices: File management and professional responsibility

Tiing: ∑ May 12 ∑ 1 – 4 pm

Learning Objective/s: Learners will be able to: ∑ Set up a file according to best practices (and Law

Foundation administrative requirements) foropening and closing files, retainer letters, and dates to be tracked by BFs.

∑ Identify and track limitation periods and other deadlines when setting up a file.

∑ Explain how principles of conflicts and confidentiality apply to client files.

∑ Identify ethical issues to consider when opening a file or when an issue arises.

∑ Explain best practices for handling ethical issues raised in class.

∑ Know where to find information about limitations

Activity: ∑ Presentation on, and discussion about, ethical issues

∑ Group work on fact patterns with ethical problems

Resource person: Odette Dempsey-Caputo, staff lawyer, Kamloops andDistrict Elizabeth Fry Society

Materials: ∑ Precedent Forms from the Law Foundation (essential for file management)

∑ File Management Chart ∑ Ownership of File Contents∑ What to do with Closed Files∑ 5 File Management Tips

∑ Myth vs. Fact: Conflicts of Interest ∑ Law Foundation Conflicts Guidelines∑ Best Practices for Advocates

∑ Limitations and Deadlines Quick Reference List (Law Society online resource)

Assessment: Test

Legal Advocacy Training Course - Week 1 Materials - 4. Professional Responsibility & File Management

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CONFLICT CHECK


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IF THERE IS A CONFLICT

When?Who?


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CONFLICT SCENARIOS Scenario 1: Advocate A and B work for Pics Sell Family Centre. Advocate A isacting for Isabelle and Advocate B is acting for Toi Story.

Scenario 2: Advocate A is acting for Isabelle in her RTB matter. Isabelle's DadRex contacts Advocate B at Pics Sell about human rights complaint he has.

Scenario 3: Isabelle is married to Sy Lent and they have a child together. Isabelle wants to separate from Sy Lent. Sy Lent and Isabelle come toadvocate A and say they want help with a separation agreement.

Scenario 4: Advocate B works at Pics Sell. Pics sell Family Centre has housingfor single mothers which they call the New Life building. Isabelle lives at NewLife and comes to Advocate B asking for help with an issue with her landlord.


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Gather information!!!

Collect information so you can determine how tomeet your client's needs.


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Less than 30 min

Legal and non legal services

Have a list ready

Always good to include areferral in a conflict file

Less than 2 hours

Should be given in writing

If given verbally, follow up withwriting

You MUST include limitationdates

Takes more than 2 hours

Often involves litigation ordocument drafting

Client signs a RetainerAgreement (include a scope ofwork letter)

You MUST include limitationdates


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What level for Isabelle?


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Is there a limitation date?

Full Representation

Retainer Agreement- an agreementbetween you and the client about yourservices.

Scope of Work- a letter that explainswhat you will do for the client and theprocess ex. HRT or RTB.


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When to withdraw?

Conflict No communicationLack of capacityNo trustLies to youClient asks you to lieUnreasonable


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Confidentiality

YOU HAVE A DUTY OF CONFIDENTIALITY TO YOURCLIENT!!!!!!


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Circle of

Trust

Program colleaguesSupervising lawyerLaw Foundation

You will need a consent form foranyone outside the circle.

Not in the Circle

Other service providersClient's relativesSome people in yourorganizationYour familyYou should not even confirm they are

a client without your client'spermission


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Explain confidentiality to your client?

Immediately What it is Who is in the circle(you can include this inthe retainer)Exceptions

Exceptions

If you are in doubt talk to your supervising lawyer


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FILE MANAGEMENT

Client Calls

to make an appointment

Initial

Conflict

Check

Meeting with client

Conflict

Check

Closing Referral/ Summary Full

Letter Information Advice Representation

Scope of Work Letter

Retainer Agreement

DO THE FILE WORK

Keep notes of conversations

Keep notes of work

Closing Close Send

Letter File to Storage


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Level of Service Intake

• During the intake process you should determine what level of service you will be providing to the client.

o This is based on the clients needs, your capabilities and your capacity. Closing immediate

• There are several reasons you may not be able to take on a file: o conflict of interest o difficult clients o outside of approved matters/scope o or you cannot meet the file’s time-sensitive deadline

• You should send a letter explaining why the file is closed and you MUST include any limitation dates.

Referral/Information (less than 30 min)

• Referral’s can be provided for both legal- and non-legal services • It is a good idea to have a list of referrals. • A list of appropriate referrals includes, but are not limited to: the Lawyer Referral

Service, Access Pro Bono Society of BC, Artist Legal Outreach, Indigenous Community Legal Clinic, Legal Services Society, Sources Community Resource Society, and Tenant Resource and Advisory Centre Society, or a legal clinic.

Summary Advice (less than 2 hours) • Summary advice should not be just given verbally; it is a good idea to give it in

writing. • If you give the advice verbally, it is a good idea to follow up with the advice in

writing. • You MUST include limitation dates.

Full Representation (More than 2 hours)

• Files that are to receive full representation are those in which you will take more than 2 hours of your time.

• Often the advocate will take part in some form of litigation or document drafting. • If full representation is to be provided, a scope of work letter and retainer

agreement should be sent to the client.


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Conflict of Interest

• As an advocate you have a duty of undivided loyalty to your client. • You should keep a list of all clients you have helped and the involved parties

(other people involved in the file) • A conflict check is completed to confirm that the client you are helping does not

conflict with another client’s interest including past clients and/or clients of other advocates or lawyers you work with.

• Conflict checks should be done when you have first contact with a client and every time you find out about a new party.

• A conflict of interest can exist between a new client and an existing client, an employee or the clinic/organization you work for.

• If a conflict of interest is identified and confirmed, a closing letter must be sent out and the file must be immediately closed Note: if a limitation date is pending, it should be identified in the closing letter with a reminder that it is unlikely that a claim can be brought after the date passes

• DO NOT tell your client what the conflict is, this may be a breach of confidentiality.

How to do a conflict check

• When you fill out your intake form you should include the client’s full name as well as aliases and all parties that are involved.

• You need to do the check before the client tells you their situation. • Enter the names into the database you have for your clients. • If a name comes up you need to determine if there is a conflict. • If you are unsure whether there is a conflict you should speak to your supervising

lawyer BEFORE proceeding. • If there is a conflict you need to end the meeting and refer the client elsewhere. • If you have already started working on the file you will stop working on the file,

and send a letter to the client saying you can no longer help them due to a conflict of interest and refer them elsewhere.

• If you have begun working with the client you MUST send a letter in writing. • Document your communication with the client in your database.


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File Management GOAL: Another person could pick up the file and have a good understanding of

what is going on. Intake Form: Should include all the information that you need such as: date, name, address, birth date, level of service, gender, income et c. Waivers:

Liability Waiver – the client signs this form to acknowledge the risks in their participation in the program. It can hep reduce the time risk of the legal liability of the organization (this does not include negligence).

Confidentiality- this waiver allows you to discuss the clients case with someone outside your organization.

Consent forms/Authorizations Forms are advising another organization that the client is agreeing to share their information and that they may talk to you about the client’s case. The organization may require you to sign their specific consent form.

Retainer Agreement

• It is important that the retainer agreement sets out specifically what you are helping the client with so the client does not think you are helping them with numerous issues.

• Each separate issue should be it’s own file even if the client is the same. • A retainer agreement sets out the agreement between the advocate and the

client. It explains what the relationship between the two will be. • It should include paragraphs on:

o Confidentiality o Disbursements o File ownership o How the client can terminate the relationship o How you, the advocate, can terminate the relationship o Must be signed by both you and the client (two copies; one for them and

one for your file). Scope of Work:

• The scope of work letter explains what you will do for them and the process. Ex. the process of the RTB and what the client can expect at the hearing.

• It can also set out the options that are available to the client. • It should set out what risks there are to each action the client can take. You can

send the scope of work letter with the retainer agreement.


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4 | P a g e

• You MUST include limitation dates.

Physical File • Documents must be stored in chronological order (its common to have the most

recent on the top) • All notes should be dated and have a brief note at the top explaining what the

note is about • Any document that is no longer needed for the file that contains confidential

information must be shredded • Physical files must be stored in a locked area that is not easily accessible • Physical files should be numbered or organized by name • Open and closed files should be kept separately. • Keep notes of ALL conversations you have with clients in the file.

Database File

• All full representation and summary advice files with letters should in the electronic system.

• Everything from the physical file should be scanned and uploaded into the electronic database if possible.

• All limitation dates, hearing dates and relevant deadlines should be entered as a note or task with various notifications to alert you as to when they are due.

• Keep notes of ALL conversations you have with clients in the file.

Dates

• Limitation Date: A Limitation period/date is the date in which a legal process must start or you will not be able to proceed with the claim.

• Some limitation dates are shorter (RTB eviction is often 10 days) and some are longer (average is 2 years)

• Document all limitation periods and dates in your file and have a secure way to remind you of them, (ex a month, week, day before).

• You MUST inform clients of all limitation dates even if it is not a full representation file.

• Limitation dates are found in legislation like statutes or polices. • If you are unsure of what the limitation date is you should ask your supervising

lawyer. • You should also have reminders for dates of when evidence needs to be

submitted or other important dates in your clients file.


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Working on Files Forms

• Appropriate forms must be used where applicable (i.e. consent forms if you will need to obtain information on client’s behalf)

• When emailing documents to clients for signature, you should always send PDF files, not Microsoft Word documents. This prevents the client from changing the document without you realizing it.

Communication with Clients

• Whenever you have communication with a client or another party on the file you should document it in notes or communications, electronically.

• You should indicate what was said, to who, when et c. • All verbal advice should be followed up with a letter reiterating the advice given

and what actions need to take place. • It is a good idea to file emails in the file (on the database and/or the physical file). • Keep copies of all letters that you send to the client or on the clients’ behalf in the

file. • Keep detailed notes. This will protect you if your client disagrees with you about

what was said or done. Closing the File

• No matter what the reason is that you are closing the file, you must send a letter to your client saying you have done so.

• Common reasons to close a file are: o You have completed your scope of work o The client has decided to end the relationship with you o You have decided to end the relationship with the client

• You should return ALL original documents that were given to you by the client to the client and confirm you have done so in your closing letter.

• DO NOT destroy your file, even if your client has told you to do so. Many clients will want you to destroy the whole file so there is no record that you helped them. You cannot do this. You must keep:

o Your notes o Your forms (intake, confidentiality waivers et c.) (copies to client) o Your work sheets o Original retainer agreement (copies to client) o Communication from the client to you (copies to client) o Communication from you to the client and/or third parties (copies to client)


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o Other documents if you and your supervising lawyer deem them necessary.

• You may need to do a closing memo • Having a closing checklist is a good idea • Once closed the file should move to wherever you keep your closed files. • You and your supervising lawyer should have a plan around retention and

eventual destruction of your files (different files have different lengths of time you have to keep them stored)

• Closed files MUST be kept in a safe and secure location.


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C:\Users\SA-BB-~1\AppData\Local\Temp\BCL Technologies\easyPDF 8\@BCL@1C226AA9\@[email protected]

File Opening Checklist

Intake Form Completed

Conflict Check Completed

Limitation Dates Checked

Retainer Letter Sent

Authorizations to Release Information to an Advocate Obtained

Consent for Disclosure of Information and Waiver of Confidentiality


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Date: ____________

NAME OF ORGANIZATIONADDRESS

INTAKE FORM

Last Name: ____________________________ Middle Name: ________________

First Name: ____________________________

Phone-Home: ____________________________ Phone-Work: _________________

Phone-Cell: ____________________________

E-mail Address: ____________________________

Birth date: ____________________________ Birthplace: _________________

Marital Status: ____________________________ Sex: ____M ____F ____other

Alias or other names you are known by: ____________________________________________

BC Care Card #: ____________________________

Driver’s License #: ____________________________

S.I.N.: ____________________________

Status Card #: ____________________________

If you are of Native Ancestry, please indicate the following:

Status Band Name: ____________________________Non-Status Nation/Ancestry: _________________________Métis/InuitOff ReserveOn Reserve

If applicable, name the opposing parties in this matter and their relationship to you:

____________________________________________________________________________

____________________________________________________________________________

____________________________________________________________________________


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If applicable, name the opposing lawyer or advocate: __________________________________

Briefly give an overview of your problem:

____________________________________________________________________________

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Signature: _______________________

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To Dr. NAMEADDRESS

MEDICAL AUTHORIZATION

This document authorizes you to give NAME OF ADVOCATE any information

and opinions that she/he may require regarding my present or past physical

condition and treatment. This may include: your prognosis, as well as access to

or copies of x-rays, records, or other documents that you may have regarding my

past or present condition or treatment.

You are not to disclose any information concerning myself to any persons other

than NAME OF ADVOCATE, without written authority from me to do so.

All prior authorizations of disclosure are hereby cancelled. I hereby waive any

privilege I have to the information referred to in this document.

Name: _____________________________________________________

Signature: _____________________________________________________

Date: _____________________________________________________

S.I.N.: _____________________________________________________

Birthdate: _____________________________________________________


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AUTHORIZATION AND WAIVER OF CONFIDENTIALITY

To: NAME AND ADDRESS OF ORGANIZATION OR INDIVIDUAL YOU ARE ASKING FOR INFORMATION

This is to notify you that I, ___________________________________________

authorize the person(s)/organization listed below to act as my representative.

You are authorized to release any and all information regarding my case,

including that which is considered confidential, as the person listed below may

request.

My authorized representative is: NAME OF ADVOCATE

Signature: _______________________________________________________

Date: _______________________________________________________

S.I.N.: _______________________________________________________

Birthdate: _______________________________________________________


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Date:

CLIENT’S NAMEADDRESS

PERSONAL AND CONFIDENTIAL

Dear Client:

Re: Residential Tenancy matter

You have asked me, as legal advocate for Name of Organization to assist you with a residential tenancy matter – specifically with issue. This letter gives you the following information about our work on your case:

∑ the level of assistance our organization can provide∑ your rights and responsibilities, and ∑ other important information.

YOUR LEGAL PROBLEM

You have asked for help with describe why the client has come to you for legal assistance

IMPORTANT TIME TIMITS

You should be aware that your evidence in this case must be submitted by date.

If you disagree with the decision of the Residential Tenancy Branch, you may have a right to appeal that decision to the BC Supreme Court. The deadline for making an appeal is within 60 days of the date when the Residential Tenancy Branch made its decision. If you want to do this, we recommend you ask for help as soon as possible after you get a decision.

WHAT WE HAVE AGREED TO DO

We have agreed to do the following things for you:

give you legal information, general guidance and advice on this matter, in my capacity as a Legal Advocate;


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help you prepare a submission to the Residential Tenancy Branch, including any applicable law and evidence required by the Residential Tenancy Branch;

attend, as your legal advocate, at the Residential Tenancy Branch hearing set for date, and make submissions at the hearing on your behalf as permitted by the Dispute Resolution Officer at the hearing; and

to follow up after the hearing with you and inform you of any applicable next steps.

My legal advocacy services are funded by the Law Foundation of British Columbia for the purpose of providing advocacy for low-income / marginalized women. Therefore, the legal advocacy services I provide are free.

I will help with your case to the best of my ability; however, it is impossible to predict the result, or guarantee any particular outcome in your case.

WHAT YOU HAVE AGREED TO DO

It is also important that you give me any information that is required or helpful for your case. We need you to do the following to help us do our work on your case:

1. tell us promptly of any change of address or other contact information

2. tell us promptly of any new facts or changes in circumstances that may affect your case

3. give us copies of all documents in your possession, or that you may be able to obtain, that are needed for, or helpful to, your case

4. provide us with the following detailed information:

your tenancy agreement with the landlord;

Information about the amount of the security deposit you paid and any proof of payment

details (and any proof you have) about serving your landlord with your Application for Dispute Resolution.

any photos you have that support your Residential Tenancy Branch claim; and,


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names and contact information of all possible witnesses.

5. give us any other information you believe is relevant to your Residential Tenancy Branch matter.

CONFIDENTIALITY

Organization will keep your case confidential unless you authorize us to release information. However, you should be aware that:

1. Your case may be discussed with a lawyer (only as necessary) to get legal advice on your case.

2. We may discuss your case with other staff at our office or with other appropriate advocacy services if it is necessary to properly work on your case.

3. If your case raises important legal principles of issues, we may discuss aspects of your case (in a way that does not identify you) with other lawyers, advocates and community groups.

4. Non-identifying information about your case may be recorded, as required, for statistical purposes.

5. We receive funding from the Law Foundation of British Columbia. In order for the Law Foundation to evaluate the effectiveness of the advocacy programs it funds, Law Foundation staff or a contract person working for them may ask to review our files, and your file might be included in this process. This review would only be to evaluate the services we provide our clients, and information would be kept in the strictest confidence.

6. There is a small possibility that information in your file could be subpoenaed to court. In this unlikely circumstance Organization would oppose the release of your file to court. There is law to support our position but we cannot guarantee any particular outcome should your file information be subpoenaed to court.

7. If you disclose information that a child is in danger or that you are considering harming yourself or another person, Organization could be required by law to release that information without your consent.


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FILE

Your file and all its contents will be kept private and safe by Organization. If you ask for your documents, within a reasonable time after this request we will give you copies of any papers or documents that belong to you and are in your file.

Please note that we may be required by law to keep a copy of some of your file for a certain period. Some documents, such as a legal advocate’s own notes,belong to Organization.

IF YOU WANT TO STOP OUR SERVICES

You are free to end our services (withdraw) for any reason and at any time by writing us a letter saying that.

ORGANIZATION WITHDRAWAL

Organization also has the right to end our legal advocacy services or our services generally for good reason. Those reasons include:

1. You fail to make tell us all the facts, or to show us all documents (both for and against you) relating to your problem

2. You fail to keep us informed of your current contact information

3. We are of the opinion that your case no longer has a reasonable likelihood of success

4. You fail to co-operate with us regarding any reasonable request or to accept our advise

5. You have misrepresented facts or failed to disclose important facts

6. You ask us to do something unethical or illegal

7. If there are threats, inappropriate language or behavior directed at advocates, staff, or other agencies including government staff or agencies

If there is anything in this letter that you do not understand or if you have any questions about the services we will be providing you, please contact us.

Yours truly,


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ADVOCATES NAMENAME OF ORGANIZATION

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CONSENT FOR DISCLOSURE OF INFORMATION AND WAIVER OF CONFIDENTIALITY

I give permission to NAME OF ORGANIZATION for my file to be reviewed by

certain of their employees as needed to work on my file.

I give my permission to NAME OF ORGANIZATION to discuss and disclose all

relevant information regarding my file with any organization or individual deemed

necessary by NAME OF ORGANIZATION to properly work on my file.

I understand that NAME OF ORGANIZATION receives funding from the Law

Foundation of British Columbia. In order for the Law Foundation to evaluate the

effectiveness of the advocacy programs it funds, Law Foundation staff or their

agents may request to review your file. Any review by the Law Foundation would

be solely to evaluate the services of NAME OF ORGANIZATION and information

would be kept in the strictest confidence. I give my permission to NAME OF

ORGANIZATION to allow Law Foundation staff or their agents to review my file.

Name: _____________________________________________________

Signature: _____________________________________________________

Date: _____________________________________________________


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Date:

CLIENT ADDRESS:

Dear CLIENT:

Re: DESCRIPTION OF LEGAL MATTER

As we discussed during our meeting, before we could agree to assist you in this

matter, we had to investigate whether working for you on this matter could

negatively affect the interests of existing or former clients, or if there might be

some other reason that we would be unable to adequately represent your

interests.

We have performed a conflict of interest check and found that we have a conflict

of interest in this case and, therefore, cannot assist you.

Please be aware that there may be time limits on you making a claim. Since time

limitations may be critical in your case, if you want to go ahead with your case,

you should immediately contact a lawyer or another agent for assistance

regarding this matter.

Yours truly,


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Date:

CLIENT ADDRESS:

Dear CLIENT:


After considering the facts and legal issues involved in your case, we regret that

we cannot provide further assistance. As we discussed in our meeting of

________________:

SET OUT REASONS YOU CANNOT ASSIST THIS PERSON WITH THEIR PROBLEM1.2. 3.

This letter is not an opinion about the merits of your case. In saying that we

cannot assist you, we are not expressing an opinion about whether you should

take further action.

You should be aware that there may be strict time limitations you have to meet in

order to protect your rights. If you do not begin your lawsuit by filing an action

within the required time, you could be lose any right to make a claim. Therefore,

if you want to continue with your case, you should immediately contact a lawyer

to obtain advice about any deadlines and to obtain legal representation. We

cannot be responsible for your meeting any outstanding deadlines or limitation

dates.

Yours truly,


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Date:

CLIENT’S NAMEADDRESS


Dear Client:

Re: Income assistance matter

You have asked me, as legal advocate for Name of Organization to assist you with and income assistance matter – specifically with issue. This letter gives you the following information about our work on your case:

∑ the level of assistance our organization can provide∑ your rights and responsibilities, and ∑ other important information.

YOUR LEGAL PROBLEM

You have asked for help with describe why the client has come to you for legal assistance

IMPORTANT TIME LIMITS

You should be aware that your evidence in this case must be submitted by date.

If you disagree with a decision of the Ministry of Social Development and Social Development, you may have a right to appeal. The deadline for making an appeal is ………

WHAT WE HAVE AGREED TO DO

We have agreed to do the following things for you:


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help you to prepare a submission to the Ministry of Social Development and Social Innovation (MSDSI), including any applicable law and evidence required by the Ministry;

provide legal information, general guidance and advice on this matter, in my capacity as a Legal Advocate;

attend, as your legal advocate, at the Employment Assistance Appeal Tribunal hearing set for date, and make submissions at the hearing on your behalf as permitted by the Dispute Resolution Officer at the hearing; and

to debrief the hearing with you and inform you of any applicable next steps.

My legal advocacy services are funded by the Law Foundation of British Columbia for the purpose of providing advocacy for low-income / marginalized women. Therefore, my services as a legal advocate are provided at no charge.

I will assist with your case in my capacity as a legal advocate and to the best of my ability. However, it is impossible to predict the result or guarantee any particular outcome in your case.

WHAT YOU HAVE AGREED TO DO

You have agreed to do as much as possible to assist us with your own case. This will include:

1. informing us promptly of any change of address or other contact information;

2. informing us promptly of any new facts or changes in circumstances that may affect your case; and

3. giving us copies of all documents in your possession, or that you may be able to obtain, that may be necessary or helpful for your case.

CONFIDENTIALITY

Organization will keep your case confidential unless you authorize us to release information. However, you specifically authorize us to do the following:

1. To disclose to the co-petitioners, if any, all aspects of the case as are necessary in order properly pursue the case.


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2. To discuss within our office, or with other appropriate advocacy services,details of all aspects of your case as may be necessary for the proper conduct of your case.

3. If this is a case which raises an issue of concern to low income people throughout the province, to discuss the case with other lawyers, advocates and community groups.

4. We receive funding from the Law Foundation of British Columbia. In order for the Law Foundation to evaluate the effectiveness of the advocacy programs it funds, Law Foundation staff or their agents may request to review your file. This review would be solely to evaluate the services we provide our clients, and information would be kept in the strictest confidence.

FILE

Your file and all its contents belong to Organization. Any papers or documentsthat you give us will be returned to you at the conclusion of the case, if requested. However, the rest of your file belongs to Organization and will remain with us.

WITHDRAWAL BY YOU

You are free to end our services for any reason and at any time by writing us a letter to that effect.

NAME OF ORGANIZATION WITHDRAWAL

We also have the right to terminate our services at any time if we have good reason which includes, but is not limited to, the following:

1. You fail to make tell us all the facts and or to provide us with all documents (both for and against you) relating to your problem;

2. You fail to keep us informed of your current contact information;

3. We are of the opinion that your case no longer has a reasonable likelihood of success;

4. You fail to co-operate with us regarding any reasonable request or to accept our advise;

5. You have misrepresented facts or failed to disclose important facts;

6. You ask us to do something unethical or illegal;


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7. If there are threats, inappropriate language or behavior directed at advocates, staff, or other agencies including government staff or agencies;

If there is anything in this letter that you do not understand or if you have any questions about the services we will be providing you, please contact us.

Yours truly,

ADVOCATES NAMENAME OF ORGANIZATION

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Date:

CLIENT ADDRESS:

Dear CLIENT:


We regret that we cannot provide further assistance. As we discussed in our

meeting of ________________ we cannot take your file because (select from

reasons below, depending on the client’s situation):

1. your case does not have merit 2. the type of assistance you need is not within our mandate – it is not a

service we can provide3. working on this case would require more resources than we have

available

This letter is not an opinion about the merits of your case (this would not be

included if your reason for declining was because the case has no merit). In

saying that we cannot assist you, we are not expressing an opinion about

whether you should take further action.

You should be aware that there may be strict time limitations you have to meet in

order to protect your rights. If you do not begin your lawsuit by filing an action

within the required time, you could be lose any right to make a claim. Therefore,

if you want to continue with your case, you should immediately contact a lawyer

to obtain advice about any deadlines and to obtain legal representation. We

cannot be responsible for your meeting any outstanding deadlines or limitation

dates.

Yours truly,


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Date: ________________

NAME OF ORGANIZATION

FILE CLOSING FORM

Client:

Primary legal issue:

Income Security (includes CPP, WCB, Welfare, Disability, EI)Housing (includes Residential Tenancy)DebtFamilyChild ProtectionOther (includes Criminal, Mental Health, Immigration/Refugee, Wills/Estates, Human Rights, Consumer, Employment, etc.)

1. Briefly describe the client’s problem:

2. What did the client want to have happen?

3. What did the client actually get?

4. For better or for worse, has the client’s problem finished or reached a conclusion? Please explain.

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What to do with Closed Files

GENERAL CONSIDERATIONS

Advocates are responsible for maintaining the safety and confidentiality of their client's files and should take all reasonable steps to ensure the privacy and safekeeping of client's information. The duty of confidentiality survives the professional relationship and continues indefinitely after the advocate has ceased to act for the client.

Many of the documents in a file belong to the client and it is the advocate's responsibility to ensure these are returned to the client when the file is closed.

When a file is closed determine a destruction date. While some documents in the file will have been disposed of upon closing the file, the destruction date is the ultimate date upon which the balance of the file will be destroyed.

STORAGE OF CLOSED FILES

Closed files should be stored securely, separately from open files. Unused office space is an option for the storage of closed files. Since client confidentiality is a concern, closed files should be stored in areas where only staff have access.

It is advisable to store files at the office for at least two years after closing, because this is the most likely time when access may be needed.

If, after storing closed files on site for two years, space becomes an issue, then renting secure off-site storage space may be necessary.

HOW LONG TO RETAIN CLOSED FILES

There is no universal agreement on how long to retain files. Each organization should develop their own policy on the retention and destruction of files, in consultation with the supervising lawyer for the advocacy program.

As a general guideline, files should be retained for a period of six years after they are closed. This general guideline is taken from the Law Society of BC document Closed Files - Retention and Disposition, which is available on their website. That document provides more specifics on retention of closed files, based on area of law, beginning at page 28.


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DESTRUCTION OF CLOSED FILES

When it is time to destroy closed files, confidentiality remains a concern. It is not acceptable to throw files in the trash or into a dumpster.

Burring files may be an option, if there is access to a facility that can ensure the complete destruction of all the file contents.

The main destruction method is paper shredding. An organization may choose to purchase or lease its own paper shredder.

Alternatively, organizations may hire a paper shredding company. Many such companies will travel anywhere in British Columbia to shred and then recycle the material. Companies charge by the weight or the volume of the material to be shredded, with some variation depending on location in the province.

Document shredding is also available from some of the off-site file storage businesses.

A more comprehensive examination of the retention and disposition of closed files can be found in the Law Society of BC document Closed Files - Retention and Disposition, June 2013

Available: http://www.lawsociety.bc.ca/docs/practice/resources/ClosedFiles.pdf


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http://www.lawsociety.bc.ca/docs/practice/resources/ClosedFiles.pdf

Suite 400510 Burrard StreetVancouver, BC V6C 3A8

Tel: (604) 601-6000Fax: (604) 682-0985

www.lss.bc.ca

LawLINE

November 6, 2007 Manjeet K. ChanaProvincial Training Advocacy Conference

Myth vs. Fact: Conflicts of Interest

1. Myth or Fact: It is a conflict of interest to represent both parties in the same

matter (for example, where you are representing both the landlord and tenant in a

residential tenancy matter or a husband and wife in the early stages of a family

law matter).

Fact. You cannot act for both parties in the same matter in light of theseconsiderations:

∑ Duty to give undivided loyalty to each client. This duty cannot be met if you determine that the two parties have very different interests;

∑ Each party may have information that they do not want to the other to know.

However, you can act for clients who have opposing interests in different matters where:

∑ The matters you are representing both parties on are substantially unrelated;∑ Both parties are informed you will act for each of them and they both consent;∑ You do not have confidential information about one of them that might

reasonably affect the representation of the other.

2. Myth vs. Fact: It is a conflict of interest to act for multiple clients who appear to

be on the “same side” (eg. co-tenants in a residential tenancy matter or a spouse

and his or her c/l spouse in a child protection matter).

Myth. You may act for two or more clients who may be “on the same side” as long as:

∑ You tell each client that you have a duty to give undivided loyalty to each of them and each of them gives their informed consent (in writing, if possible) for you to represent both of them;


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∑ You tell each client that if you get confidential information from one of them, it will have to be disclosed or told to the other;

∑ You get each client’s informed consent for what to do in case you later get information from one client that is relevant to you representing both clients. Your clients agree that if this situation arises, you either (1) cannot disclose the information to the other client and you withdraw from representing both or (2) they agree that you must disclose the information to the other client and continue acting for the clients jointly.

3. Myth vs. Fact: It is not a conflict of interest to represent a party in a matter

where the opposing party is a former client of yours (eg. a wife that you formerly

represented in a family law dispute is now a client of another advocate on the

other side of your current client, the husband, in the same ongoing dispute);

Myth. The correct principle is: if you have acted for a client (“A”) in a matter, you should not act against “A” in the same or any related matter because you may have confidential information that might affect your representation of your current client (“B”). The exceptions to this rule are:

∑ “A” is told that you are going to be acting for “B”, who is someone adverse in interest to him/her in the same or related matter and “A” gives you informed consent to do so; or,

∑ your representation of “D”, a new client, is substantially unrelated to the representation of “C”, your former client, and you do not possess confidential information arising from representing “C” that might reasonably affect the representation of “D”.

4. Myth vs. Fact: It is a conflict of interest to act for a client where his or her

interest in a matter competes with a personal or financial interest you have or that

of a third party with whom you have a relationship (eg. a family member of

yours).

Fact. Generally speaking, a legal advocate must, if he or she has a financial interest in a matter they are conducting for a client, adopt the position of saying "I can be your business partner or I can be your legal advocate but I cannot be both". Note that a


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transaction of sale or purchase between a legal advocate and client will be upheld if the legal advocate can prove:

∑ that he or she made full disclosure to the client of all relevant information known to him or her;

∑ that the price was fair; and∑ that the client was advised by an independent solicitor to whom all

circumstances were disclosed

5. Myth vs. Fact: When you are sharing an office space with another advocate, it is

not a conflict of interest to act on behalf of a client who has an opposing interest to

that of a client of another advocate.

Myth. It is a conflict of interest for an advocate to represent a client whose interest is adverse to a client of another advocate in a space-sharing arrangement. One exception to this is where each advocate who is sharing space discloses in writing to all of his or her clients:

∑ that an arrangement for sharing space exists;

∑ the identity of all the advocates who make up the office acting for the client, and;

∑ that advocates sharing space with the office are free to act for other clients who are adverse in interest to the client.

6. Myth vs. Fact: A conflict of interest can arise as a result of an advocate

transferring from one advocacy office to another.

Fact. A conflict of interest exists if you transfer from one office to another office and:

∑ either you or your new office knows or later learns that your former office and your new office each represent a client in the same matter;

∑ the clients have interests that conflict (opposing co-tenants/co-defendants); and,∑ you actually have relevant information about the case that may result in

prejudice or unfairness to your former client if the information is disclosed to your new office.


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In this situation, your new office has to stop acting for its client unless 3 criteria are met:

∑ the former client consents to your new office continuing representation; or∑ your office can show that it is in the interests of justice that your new office’s

representation of the client continue; or∑ your new office has taken reasonable steps to ensure that there will not be

disclosure of the former client’s confidential information to anyone else at your new office. This means you cannot participate in any way in your new office’s representation of the new client unless the former client consents.

This does not apply to a government employee transferring from one department, ministry or agency to another.


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Conflicts of Interest: Policy and Procedures for Law Foundation Funded Legal Advocates

January 2020

Maintaining client confidentiality is a key responsibility of legal advocates. It is essential for you to properly do your work and to maintain client confidence in your services. This document explains what conflicts are, and sets out standard procedures that advocates should follow to avoid finding themselves with a conflict of interest. Concrete examples of particular situations, and a table listing some of these, are included to provide further guidance. A. Conflicts of Interest 1. On initial intake You and your organization owe a duty of undivided loyalty to your clients. To ensure that you do not take on a matter that conflicts with duties owed to current or former clients, you must do a conflict check of all advocacy clients every time someone asks you to represent them. You must not act for them if there is a conflict of interest. A conflict of interest between Client A and Client B does not necessarily prevent you from providing information and referral only to Client A, and providing fuller service to Client B. Note, however, that if the Client A gives you information about their situation that may be related to the matter in which you are acting for Client B, you may be in a conflict even though you only gave Client A information and/or referral service. 2. Arising with an current client If you discover a conflict of interest while representing someone, you must immediately advise the client and the other party that you can no longer assist. Commentary in the Law Society of BC’s Code of Professional Conduct (the “Code”) Rule 3.4 sets out the following guidelines for lawyers about what constitutes a conflict of interest:

…a conflict of interest exists when there is a substantial risk that a lawyer’s loyalty to or representation of a client would be materially and adversely affected by the


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lawyer’s own interest or the lawyer’s duties to another client, a former client, or a third person. The risk must be more than a mere possibility; there must be a genuine, serious risk to the duty of loyalty or to client representation arising from the retainer. A client’s interests may be seriously prejudiced unless the lawyer’s judgment and freedom of action on the client’s behalf are as free as possible from conflicts of interest.

Conflicts of interest can be complicated. If you feel that there may be a conflict of interest, you should discuss the situation with your supervising lawyer and obtain their opinion. It is important to check thoroughly for conflicts when opening a new file, although you should also be alert for conflicts that develop during the course of the file. B. Checking for Conflicts when Opening a New File Clients of the agency include all clients, whether in the family law stream or the poverty law stream. The conflict rules and conflict check extend to all advocates working in the same agency. Before opening a file for a new client, the advocate must always perform a conflict search to determine if the other side on the potential new client’s file (called “the opposing party”) has ever been a client of any of the advocates in the organization. If no opposing party has ever been a client of the agency, then the advocate is free to take on the new client. The following steps set out proper file-opening procedure:

1. When an individual contacts your organization for service, reception staff or advocate will ask for the person’s first and last name and the names of other parties involved.

Individuals who do not wish to provide this information may receive basic information and referral only.

2. Before providing brief or full service, staff will:

i. Check the client database to see if another party involved in the matter is, or has been, a client.

ii. Determine if there is a conflict. (For further guidance on this, consider the scenarios below.) If there is a conflict, the new client must be referred out.


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iii. Provide the individual with the applicable terms of service, either verbally, in writing, or both. Ideally clients will sign to indicate their consent. However, if this is not possible, staff will initial the intake form or service notes to indicate the client’s consent.

3. Staff must enter all clients into the client database as soon as possible following

intake and no later than the end of the business day, or, if staff are working off site, by the end of the next business day.

C. Scenarios The scenarios included below provide guidance on conflicts by setting out examples of common situations in which you might have to consider if there is a conflict. 1. Two advocates in the same agency acting for clients with competing interests Principle: Generally, conflict rules extend to all advocates working in the same agency. So, if your agency has both a poverty and a family law advocate, and the poverty law advocate saw a client then, generally speaking, the family law advocate cannot see a party with opposing interests to the client who met with the poverty law advocate. This principle applies to lawyers in law firms where associates shall not represent parties with potentially conflicting interests because they have access to the client records and the client management software is the same. In fact, the Law Society BC goes so far as to say that lawyers sharing an office may not represent clients with adverse interests1. The reason is the same -- lawyers have access to fax machines and incoming mail, pleadings etc, so they can access information that may be detrimental to the opposing party’s file. Is there any situation in which two advocates in an organization may see parties who could possibly have conflicting interests? Consider these indicia:


material about the other advocate’s client? iii. Do you share a filing cabinet?

1 Refer to the Code Rule 3.4-42 and 3.4-43 on space-sharing arrangements for details on this. https://www.lawsociety.bc.ca/support-and-resources-for-lawyers/act-rules-and-code/code-of-professional-conduct-for-british-columbia/chapter-3-%E2%80%93-relationship-to-clients/


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iv. Are your respective offices and filing cabinet locked or can your colleagues access your files?

v. Do you have the same supervising lawyer? vi. Do you have the same supervisor with whom you discuss files? vii. Are there any other way(s) in which you may have access to the other

advocate’s client files? If the answer to any of the above is ‘yes’, then you cannot both accept the clients. If you answered all the above questions with a “no”, then you may take the file. We encourage you to discuss this with your supervising lawyer or the CASL or FASL Lawyers. You will need to arrange for separate lawyer supervision for each client.

Practice tip: If your organization has both a poverty and family law advocate, and is worried about their advocates conflicting one another out in too many cases, consider using different databases for client details and creating walls so that advocates cannot view conflicting client information.

Fact Pattern 1: two clients with competing interests Paul and Sara are married and have a child together. Sara wants the family law advocate’s help with separation. Earlier this year, the poverty law advocate assisted Paul with an Employment Standards issue. Analysis: No, you should not represent both concurrently. Therefore, Sara should be referred out. There might be a conflict in their interests in dealing with the family law matter, which would likely include child and possibly spousal support AND the poverty law advocate has financial information from working with Paul on Employment Standards matter. Fact Pattern 2: two clients with no competing interests Paula and Karima are roommates. Paula seeks help from Advocate 1 at your agency regarding an employment law matter, and Karima seeks assistance from Advocate 2 for an immigration issue. Can the advocates take both matters on? Analysis: Yes, you may work with them concurrently. They do not have competing interests at the moment, so you may represent them both. You should advise them both that if a family law issue comes up, or another matter comes up that may give rise to a conflict, then you will not be able to assist either of them.


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Potential for a conflict in another area of law does not prevent you from working with both parties. Of course, you evaluate conflict at the beginning before you commence work with a client, but it is helpful to constantly evaluate conflict as well.2 2. One advocate asked to assist clients who are spouses, or otherwise related Fact Pattern 1 – spouses with unrelated issues Joe and Sam have been living together in a marriage like relationship for 4 years. Joe wants to retain an advocate to help him with an EI appeal and Sam wants to retain the same advocate to help him with an immigration appeal. Analysis: The advocate can act for both Joe and Sam. Their EI and immigration issues are not competing interests between them. Ideally a separate advocate should act for each of Sam and Joe. That way, confidentiality between Sam and Joe can be better preserved even though the matters the organization is assisting with are wholly unrelated. Fact Pattern 2 – spouses with unrelated issues that get complicated The agency has 3 advocates, 2 in poverty law and 1 in family law. Charlie is a client of the poverty law advocate, getting help with an Employment Insurance appeal. Charlie’s wife Sue wants to retain the family law advocate to help her do an uncontested divorce.

Analysis: The family law advocate should talk to their supervising lawyer. The family law advocate should get Sue’s understanding and consent that the advocate is assisting only with the uncontested divorce. This is because family law cases can “morph” into other issues and the advocate should always be very clear about that issue he or she is dealing with. For example, IF the couple started to argue over financial issues, there would be a conflict because the advocate helping with the EI claim would likely have information about Charlie’s finances. Charlie’s EI appeal and Sue’s divorce are not related matters and there is likely nothing to prevent the advocate from assisting with the uncontested divorce. Charlie and Sue do not have opposing interests in this scenario. Fact Pattern 3 – related issues

2 The Code Rule 3.4-1[2] commentary reads “A lawyer should examine whether a conflict of interest exists not only from the outset but throughout the duration of a retainer because new circumstances or information may establish or reveal a conflict of interest.”


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Imagine the same as above but now Sue wants help to make a claim for spousal support against Charlie. Analysis: These are related matters for clients with opposing interests. The family law advocate cannot assist Sue. 3. A new advocate is bound by earlier conflicts Principle: You and your organization owe a duty of undivided loyalty to a past client. There is no expiration date on this duty to protect your client’s interests. Facts: In 2007, client Paula gets help from an advocate regarding a family law issue. In 2010, the advocate retires and a new advocate is hired. In 2017, Paula’s spouse, Karima, visits the new advocate. Can the new advocate represent Karima?

Analysis: There is a conflict of interest. Paula and Karima are opposing parties. The advocates work for the same organization and may have access to previous records (on paper or otherwise). The duty to represent the client and act in their best interests does not end when the client walks out the door. The new advocate cannot assist Karima. 4. The opposing party is a former client

Principle: If a former client was helped in a meaningful way (that is, more than information referral), then you cannot assist a party with related, opposing interests. Fact Pattern 1 – issues closely related The potential new client (Client B) is subject to a child support order that the advocate helped the other side (Client A) get several years ago. Client A is now a “former client” of the organization. The child who was the subject of the child support order is 18 years of age. Client B wants to consult the advocate about child support for the 2 year old child of their new relationship.

Analysis: Client B’s matter is not “wholly unrelated”. This is because the new matter could reasonably be affected by, and/or related to, Client A’s matter. Child support was a live issue in the former client’s file and could be related in the new representation under the Child Support Guidelines hardship sections.

Fact Pattern 2 -- legal issues of opposing party resolved and therefore unrelated


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On the same fact pattern as above, but now Client B’s child with Client A is now 19 years of age, and is living in Alberta working in the oil patch. Client B does not owe any child support arrears to Client A, and their child is no longer entitled to child support.

Analysis: The advocate will have to obtain the relevant information and determine whether the information is in fact correct before acting, and these efforts should be set out in the file. Fact Pattern 3 – organization no longer has documents for a former client If Client A was a client 10 years ago and your agency shreds documents 7 years after file closings, then you may assist their spouse. Please make sure that you do not have a way to access records for Client A. When in doubt about

• whether another client’s or former client’s matter is “related” to a matter for which the potential client seeks to retain the advocate, and/or

• whether a conflict exists which might prevent representation of the potential client, the Advocate should consult with their supervising lawyer before agreeing to represent the client.

The supervising lawyer will provide an opinion about whether the Advocate is permitted to assume conduct of the potential client’s matter. The supervising lawyer’s opinion should be in writing and should be kept in a file marked “Conflicts” if the potential client does not become a client of your organization, or in the client’s file if the organization assists the client. The supervising lawyer will want to determine whether the organization has a policy backed up with rigorous practice of periodically destroying client files (including data files) after 7 years. If this is the case, and there is no risk of the advocate having any access to confidential information of the former client (since the former client’s file no longer exists), the advocate may act for the potential client. 5. Conflict between the advocate’s client and a client of the supervising lawyer When there is a conflict between the advocate’s client and the supervising lawyer’s client, the advocate and supervising lawyer cannot discuss the matter and the supervising lawyer cannot review the advocate’s file on closing. The advocate should get advice from a different supervising lawyer (or the CASL or FASL lawyer) and the file should be sent to a different supervising lawyer for review on closing.


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Practice tip: In certain cases it may be possible, subject to your supervising lawyer’s views, to discuss a matter without disclosing the parties’ names. If the facts do not identify the parties, then the advocate and supervising lawyer may discuss the matter without checking for conflicts.

6. Personal conflict Sometimes personal relationships give rise to an actual conflict or a possible, perceived conflict between the advocate and their client. The client should be referred out or, at a minimum, the client should be advised of the personal relationship so that they can make their own decision about whether to continue with the advocate. 7. If a conflict is identified after service is provided If you become aware of a conflict after providing services, consider the above scenarios to see if yours fits. Notify your supervisor and supervising lawyer to reach a decision as to what to do and what to say (and not say) to your clients. D. For Victim Service Workers and Family Law Advocates working at the same

organization There is a conflict of interest if the victim service worker is helping a client and the opposing party wishes to access family law services. In some cases there may be firewalls or other insulation methods employed by the agency to ensure there is no conflict or sharing of confidential information. Consider the same indicia that apply to two advocates acting for clients with competing interests:


material about the other advocate’s client? iii. Do you share a filing cabinet? iv. Are your respective offices and filing cabinet locked? This means, can your

colleagues access your files? v. Do you have the same supervising lawyer? vi. Do you have the same supervisor with whom you discuss files?


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vii. Are there any other way(s) in which you may have access to the other advocate’s client files?

Many organizations have both advocates and victim service workers. When they both work for the same organization, but do not work in the same area and maintain completely separate files, conflicts are unlikely to arise. The situation that this section addresses, is when the advocate and the victim service workers work in the same environment and have access to the same client information. Consider the following scenarios. Fact pattern 1: One party is an existing victim services client. An opposing party wishes to access poverty law services for an unrelated matter. Analysis: No conflict. Both parties may be served. If either the poverty law worker or the victim services worker becomes aware that they are serving a client who is an opposing party to a client of the other program, they must notify the other worker; care must be taken to avoid both parties being in the office at the same time. Fact pattern 2: One party is an existing victim services client. An opposing party wishes to access family law services for an unrelated matter (eg. the victim services worker is assisting a woman who assaulted by her husband and the husband comes to the family law advocate seeking assistance with cancelling spousal support arrears related to a previous partner). Analysis: A decision will be made on a case by case basis with respect to services for the second client in consultation with staff, the advocate and their manager, and the supervising lawyer. If service is provided to the second client, care must be taken to avoid having both people in the office at the same time. Facts Pattern 3: One party is an existing victim services client. An opposing party wishes to access family law services for related matter. Analysis: There is a conflict and the advocate cannot act. The opposing party should be referred out.


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E. Conflict Chart First Client

Second Client

Matter: same or unrelated?

Conflict? Conflict Procedure to Follow

Poverty Law Poverty Law Unrelated No

Poverty Law Poverty Law Same or related Yes Opposing Party Referred Out

Poverty Law Family Law Either Yes Opposing Party Referred Out

Family Law Poverty Law Either Yes Opposing Party Referred Out

Family Law Family Law Either Yes Opposing Party Referred Out

Victim Services

Poverty Law Unrelated No

Victim Services

Poverty Law Same or related Yes Opposing Party Referred Out


Unrelated No



Victim Services

Victim Services

Unrelated No

Victim Services

Victim Services


Victim Services

Family Law Unrelated Yes Case by case; may follow “Both Parties Served” procedure if files handled entirely separately

Victim Services

Family Law Same or related Yes Opposing Party Referred Out


Unrelated Yes Case by case; may follow “Both Parties Served” procedure if files handled entirely separately




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Fact Pattern 1

Both advocates work in the same office. Advocate A is being asked to act for Isabelle and Advocate B is asked to work for Toi Story.

Check both

Fact Pattern 2

Both advocates work in the same office. Advocate A is acting for Isabelle in an RTB issue and Isabelle’s Dad contacts Advocate B about a human rights complaint.

These are unrelated issues so there is no need for a conflicts check

Fact Pattern 3

Isabelle married to SyLent and they have a child together. Isabelle wants to separate from SyLent. SyLent and Isabelle come to advocate A and says they both want help from her with a separation agreement.

Would not take both on for a matter such as a separation in which both have an interest. Even if both say there will be no conflict.

A related example would be 2 tenants claiming against a landlord in a complaint about bedbugs. You might be able to take this on, but you have to make it very clear that if there ever is a conflict you can only work for one of them.

Fact Pattern 4

Advocate B works at Pics Sell: the family centre at Pics Sell has housing for single moms. Isabelle lives in this housing. She comes to advocate B for help with an issue with her landlord (ie Pics Sell).

Cannot represent in this situation – there is a conflict with your organization. You could, however, represent a tenant in your organization’s housing on a completely separate issue – like a separation.

Questions from the chat

What if a board member is a property manager in the community and there are complaints against the property that person manages. In fact they control about 30% of the property in the community

Your board member should not know about your client files so you probably could represent them. But you might want to discuss this with your supervising lawyer / ED or Board if you think it might affect perception of your service in the community.

What if an employee is a board member at another organization that is the opposing party in a matter.

If the employee has access to your files then you are conflicted out. Cannot be using the same printer or if files cannot be locked.


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An organization that handles a lot of housing and other programs in the community. Several clients have grievances against that organization (that your agency uses for services). Not a direct conflict but good to talk with your ED about acting against that organization without it affecting your own organization.

Board members should not know about your files – they are not part of the circle of trust. If there are general policy issues discussed at the Board level then they should declare any conflicts and step away from the discussion.


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Fact Pattern

Conflicts

You have previously represented Brad, a handsome man who faced an attempt by his landlord to illegally evict him from his trendy Los Angles apartment. You conducted a RTB Hearing, and were successful in defeating the eviction attempt. It is now just over two years later. In the interim you have had no contact with Brad, though you often read about him in magazines. A woman, Jennifer, comes to see you. She has three children with Brad, from a relationship they had which ended six years ago, and which you have read about in the same magazines. Jennifer is destitute and seeks your help in attempting to obtain a child support order against Brad. Can you act for Jennifer against Brad? Are there any limitation periods that affect your decision of whether to act for Jennifer or not? If you do act for her, are there any limitation periods you need to be concerned about?

Points

1. The general principal is you cannot act against a former client in the same

or any related matter because you may have confidential information that

might affect your new representation. In this case, the matters are

unrelated and you would not have any confidential information that would

affect your representation of Jennifer. An exception might be if in

representing Brad you had gained knowledge of his income.

2. You could act against Brad, even if you had confidential information, if

Brad consented.

3. Your duty is to give undivided loyalty to every client.

4. There are no limitation periods for conflicts of interest. They are in no way

diminished or erased by the passage of time.

5. There are no limitation periods for bringing a child support claim. The only

way time might affect a claim would be if the children were self-supporting

and/or adults.


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Fact Pattern

Client Withdraws You act for A in a claim for PWD benefits. You have had a doctor and assessor provide the necessary forms and have collected other supporting documents. You are ready to submit the application, on which you have expended considerable time. Your relationship with A has been difficult from the beginning. She is a demanding client; constantly challenging your decisions and questioning your knowledge. The day before you are to submit her application, she barges into your office and fires you. She demands “her file” right away and insists she will not leave the office without her file in hand. What do you do? What, if anything, do you provide A from her file? What, if anything, do you keep?

Points

1. She can fire you 2. She should leave and you should set a time at which she can return and

collect her file 3. She is entitled to parts of her file and you are as well. See the document,

Ownership of File Contents 4. Record what the client is being given 5. Invite her to provide you with her reasons for leaving, and note those in

the file


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Fact Pattern

Confidentiality You are a witness in a child protection case where the Director is seeking continuing custody of a child, based on the mother’s neglect. You have provided support and guidance to the mother and have worked with her lawyer. As with all your clients, you have assured the mother confidentiality, but advised her that your communications could be subject to a Court order. The code of ethics at your Advocacy Centre has a confidentiality rule, except in the event of child abuse. In Court you object to answering questions by the Director’s counsel in areas where the mother has communicated with you in confidence. You argue that your value as an advocate in your community would be compromised should the mother be required to reveal your conversations. What will the judge rule on your objection to answering these questions, and why?

Points

1. The fact the advocate had aided the mother’s counsel, and there was a

risk of offending solicitor/client privilege, was a factor, but not determinative.

2. “Legal Aid cutbacks is a real life reality that prompts advocates such as

this witness to take on responsibility perhaps formerly carried on by counsel and her confidential communications are protected under the umbrella of solicitor/client privilege.”

3. The interests served by protecting the communications outweighed the

interests of pursuing the truth and properly disposing of the litigation. (Because it was neglect, not abuse and the Director could find other sources of the information.)

4. The effect of forcing disclosure of the confidential communications would

have a serious effect on those who relied on the Advocacy Centre.

5. “There are child abuse cases where it is essential to learn of the confidential communications even made to an advocate.”

6. That the communications were in private was an important factor. Taken from: Provincial Court of BC, Docket 1615 173B, Nelson


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Fact Pattern

Acquaintances You have an excellent working relationship with the receptionist at your office. In casual conversations in the office, you have heard a little bit about her sister’s separation from her husband. The sister’s husband is on the same curling team as your husband. By all accounts, their separation is cordial. The receptionist approaches you at the end of a day and asks if you will help the couple prepare a simple Separation Agreement. The receptionist assures you there are no issues in dispute and they can both come to see you and provide joint instructions. You know the couple is in a tight spot financially, as the husband has been laid off from his job at the local mill for some time. They cannot afford a lawyer. There are no other resources they could use closer than a two hour drive away. Do you help them? If so, how? What should your concerns be?

Points

1. Acting for people you know 2. What is the risk of this matter becoming contested 3. What duty you owe different parties 4. Separating work from the rest of your life


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Fact Pattern

Best Interests of Client

Your client, George, asks you to write a letter from him, to a film studio he is in a dispute with. In your opinion, the letter George wants you to write would not be in his best legal interests. What do you do?

Points

1. You can say no to a client when what they want you to do is not in their best interests.

2. You could draft the letter, let George send it, and inform them, in writing of

your concerns.

3. Explore with George why he wishes to pursue this course of action, and your concerns with it. Go over the pros and cons of what he wants to do.

4. If your concerns are strong enough, you can inform George that if he sends this letter, you will end your representation of him.


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Topic:

Case Research and Statutory Interpretation – finding and interpreting relevant legislation, regulation and policy

Tming • 1 – 4 pm May 17, 2021


Learners will be able to: • Understand and apply basic principles of statutory

interpretation • Research a legal issue using secondary sources

(booklets and website) • Locate primary sources such as legislation and case

law using CanLII • Understand what legislation, regulation and policy are. • Cite legislation in proper format

Activity:

• Presentation on statutory interpretation and legal research with examples.

• Group work on sample fact patterns

Resource person: • Didi Dufresne, advocate, First United • Danielle Sabelli, staff lawyer, Community Legal

Assistance Society

Materials

• Course materials

Assessment:

• Test • Legal Research Assignment

o Handed out at end of class o Due July 5,,2021

Legal Advocacy Training Course - Week 1 Materials - 5. Statutory Interpretation & Legal Research

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Legislative Interpretation

Presented by Didi Dufresne, Manager of Advocacy/ Legal Advocate with First United Church Advocacy Program

Danielle Sabelli, Lawyer with Community Legal Assistance Society

Legal Advocacy Training Conference, May 17, 2021

What do you See?

What does this Mean?


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Driedger’s Modern Rule

Ordinary Meaning + Context


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DRIEDGER’S CONSTRUCTION OF

STATUTES:

Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context in their grammatical and ordinary sense harmoniously with the scheme of the Act,

the object of the Act and the intention of Parliament.

The three ways in which common law courts have dealt with statutes:

1.) the object of the enactment (mischief rule);

2.) the words with which it is expressed (literal rule); and

3.) the harmony among its provisions and other statutes (golden rule).


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Finding THE ORDINARY MEANING

“Hans Solo and Leia: Spouses?”

Meaning of "spouse"

1.1 (1)Two persons are spouses of each other for the purposes of this Act if

(a)they are married to each other,

(b)they declare to the minister that they are in a marriage‐like relationship, or

(c)they have resided together for at least the previous 12 consecutive months

and the minister is satisfied that the relationship demonstrates

(i)financial dependence or interdependence, and

(ii)social and familial interdependence consistent with a marriage‐like

relationship.

(2)The Lieutenant Governor in Council may prescribe circumstances in which

two persons are not spouses of each other for the purposes of this Act.


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Context:1.) Other interpretations;

2.) Specific context (outside knowledge to interpret the language of the provision);

3.) Purpose of the provision;

4.) Wider context (how does the provision fit into the larger picture?).

Finding the Ordinary Meaning

Leia and Hans Solo began living together in Vancouver on October 3, 2016. On August 10, 2017, Leia was summoned to participate in the rebellion and has not returned since.

Leia makes more money than Hans Solo. Leia gives Hans Solo an allowance each month. In exchange for this allowance, Hans Solo does all of the housework. Hans Solo and Leia eat dinner together approximately 3 times a week, and occasionally go out to dinner on the weekends.

Leia and Hans Solo have separate bank accounts. Leia is Hans Solo emergency contact, because he does not have any other family or friends in Vancouver, however Leia’s emergency contact is her brother, Luke Skywalker.

Leia and Hans Solo are both listed on the tenancy agreement and share utility bills.

Leia and Hans Solo have a son together, who is off at college in another galaxy.


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GOING BEYOND THE ORDINARY MEANING: SPECIFIC CONTEXT

“Kylo Ren’s Eviction”

Residential Tenancy ActWhen Documents are Considered to Have Been Received

90 a document given or served in accordance with section 88 [how to give or serve documents generally] or 89 [special rules for certain documents] is deemed to be received as follows:

(a) if given or served by mail, on the 5th day after it is mailed;

(b) if given or served by fax, on the 3rd day after it is faxed;

(c) if given or served by attaching a copy of the document to a door or other place, on the 3rd day after it is attached;

(d) if given or served by leaving a copy of the document in a mail box or mail slot, on the 3rd day after it is left.


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Interpretation ActCalculation of time or age

25 (1) this section applies to an enactment and to a deed, conveyance or other legal instrument unless specifically provided otherwise in the deed, conveyance or other legal instrument.

(2) if the time for doing an act falls or expires on a holiday, the time is extended to the next day that is not a holiday.

(3) if the time for doing an act in a business office falls or expires on a day when the office is not open during regular business hours, the time is extended to the next day that the office is open.

(4) in the calculation of time expressed as clear days, weeks, months or years, or as "at least" or "not less than" a number of days, weeks, months or years, the first and last days must be excluded.

Interpretation Act cont’d…

(5) in the calculation of time not referred to in subsection (4), the first day must be excluded and the last day included.

(6) if, under this section, the calculation of time ends on a day in a month that has no date corresponding to the first day of the period of time, the time ends on the last day of that month.

(7) a specified time of day is a reference to pacific standard time, or 8 hours behind greenwich mean time, unless daylight saving time is being used or observed on that day.

(8) a person reaches a particular age expressed in years at the start of the relevant anniversary of his or her date of birth.


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SPECIFIC CONTEXT

While away at college, Kylo Ren rented a house with 3 of his friends. One night, KyloRen and one of his roommates got into a really heated debate about the darkside of the force. During this argument, Kylo Ren’s roomate purposely referred to him as as “Ben,” knowing that it would make Kylo Ren extremely angry. Subsequently, Kylo Renresponded by destroying the kitchen and the bathroom of the rental unit.

One week after the incident, Kylo Ren’s landlord mailed Kylo Ren and his roomates a one month notice to end the tenancy for cause, which needed to be disputed within 10 days of receiving of the notice.

The notice to end the tenancy was dated December 7th. Kylo Ren disputed the notice to end on December 29th which fell on a Friday.

Going Beyond the Ordinary Meaning: Context

Where else can we look to for help with interpreting legislation?

Are the tools helpful to our clients?

How persuasive are the tools?


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More Context: What is the Purpose?

“Finn Leaves Employment”

Employment Insurance ActDisentitlement — anticipated loss of employment

33 (1) a claimant is not entitled to receive benefits if the claimant loses an employment because of their misconduct or voluntarily leaves without just cause within three weeks before

(a) the expiration of a term of employment, in the case of employment for a set term; or

(b) the day on which the claimant is to be laid off according to a notice already given by the employer to the claimant.


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Employment Insurance ActInterpretation

29 (b.1) voluntarily leaving an employment includes(i) the refusal of employment offered as an alternative to an anticipated loss of employment, in which case the voluntary leaving occurs when the loss of employment occurs,

(ii) the refusal to resume an employment, in which case the voluntary leaving occurs when the employment is supposed to be resumed, and

(iii) the refusal to continue in an employment after the work, undertaking or business of the employer is transferred to another employer, in which case the voluntary leaving occurs when the work, undertaking or business is transferred; and

Employment Insurance Act Cont’d…

(c) just cause for voluntarily leaving an employment or taking leave from an employment exists if the claimant had no reasonable alternative to leaving or taking leave, having regard to all the circumstances, including any of the following:

(i) sexual or other harassment,

(ii) obligation to accompany a spouse, common‐law partner or dependent child to another residence,

(iii) discrimination on a prohibited ground of discrimination within the meaning of the canadian human rights act,

(iv) working conditions that constitute a danger to health or safety,

(v) obligation to care for a child or a member of the immediate family,

(vi) reasonable assurance of another employment in the immediate future,


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Employment Insurance Act Cont’d…

(vii) significant modification of terms and conditions respecting wages or salary,

(viii) excessive overtime work or refusal to pay for overtime work,

(ix) significant changes in work duties,

(x) antagonism with a supervisor if the claimant is not primarily responsible for the antagonism,

(xi) practices of an employer that are contrary to law,

(xii) discrimination with regard to employment because of membership in an association, organization or union of workers,

(xiii) undue pressure by an employer on the claimant to leave their employment, and

(xiv) any other reasonable circumstances that are prescribed.

CONTEXT

Finn commenced employment with the Storm‐Troopers Benevolent Society on a 5 year term contract. At first, Finn truly believed in the impressive mandate of the organization. He thought that this type of work would truly allow him to assist individuals who had barriers to finding housing.

While in the 5th year of employment, Finn began to notice that his employer was doing more harm than good to the individuals they served, and believed the organization spent more time violating the rights of individuals instead of protecting them as they are mandated to do.

Frustrated by this, Finn terminated his employment in the 4th year of his 5 year term contract.


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Tips for Navigating MSD’s Online ResourceAlison Ward, Barrister and Solicitor, Community Legal Assistance Society, November 15, 2011

The Online Resource (“OLR”) is the Ministry of Social Development’s policy manual. Policy is not law. The OLR is simply the Ministry’s interpretation of the Employment and Assistance, and Employment and Assistance for Persons with Disabilities, Acts and Regulations. The OLR itself is not law.

Still, it is important to know how to navigate the OLR to find Ministry policy. Ministry policy may support your client. Or you may be able to argue that the Ministry’s policy is not a reasonable interpretation of the legislation.

The OLR can be hard to search. Here are some navigation tips for it.

∑ The OLR is at http://www.gov.bc.ca/meia/online_resource/ It has a search box at the top of the page. Do not use the search box; it works badly.

∑ The OLR home page has a link to the index for the OLR, and a link to a table of contents for the OLR. The table of contents is confusing. The index is very useful; use it!Bookmark the index at http://www.gov.bc.ca/meia/online_resource/or_index/

∑ The index is in alphabetical order by subject, and has cross references. Try using it instinctively. E.g if you want information about funding for crutches, look under “C”. There is an entry for crutches that refers you to go to Medical Equipment - Basic Mobility, Positioning and Breathing Devices. You will find the policy you want under “M” for Medical.

∑ The OLR is divided into “topics.” Each topic has many sub-topics. For example, if you want information on Crisis Supplements, look in the index under “C”. Click on the main entry for crisis supplements, and you will get to this page:


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http://www.gov.bc.ca/meia/online_resource/

http://www.gov.bc.ca/meia/online_resource/or_index/

2

∑ That page is the “home page” for the Crisis Supplement topic. It just gives a topicoverview. The “Topic Contents” blue box on the right hand side of the page has links that are all sub-topics, specific to the topic you looked up. For example, if you click on “policy” in the “topic contents” box above, that will take you to the actual MSD policy on crisis supplements:

∑ The “procedures” section of the Topic Contents box is also worth looking at; this section sometimes has policy-like information that may help you argue that MSD should do something in your client’s favour.

∑ The “Resources for Staff” and “Resources for Clients’ sections are also work looking at if you are having trouble finding something. For example, the dental fee schedules are found in the “Resources for Clients” section of the “Dental and orthodontic services” topic.

∑ The Topic Contents box can also help you locate legislation that applies to a particular issue. If you are having trouble finding what sections of the Regulations apply to a particular issue, the “Acts and Regulations” link in the Topic Contents box may help you hone things down and find what you are looking for. Let’s say you can’t remember what section of the Regulations allows MSD to issue a family bonus top up if your client’s child tax benefits are delayed. You know it’s in one of the Schedules, but can’t find it. Try using the OLR. The OLR index has an entry for Family Bonus Supplement; click on that. You get to the Family bonus Supplement topic. From there, click on the “Acts and Regulations” box in the Topic Contents box. Up will come a list of the various sections of the legislation that the Ministry thinks apply to that topic (note: MSD does not alwaysinclude all relevant sections, so don’t rely on this for research).


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This screen shot does not capture all the sections of the legislation that MSD has listed as being relevant to the family bonus topic. But toward the end of the list you will find it lists the EA Regulation, Schedule A, subsections 2(2) to 2(5) which, you realize, is what you were looking for.


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Case Research and Statutory Analysis John Matheson is a client of yours who struggles to make ends meet. Last year, he found a reasonably affordable 1-bedroom apartment in a building that’s small and quite run down, but it’s in a very nice area. Since moving in in May, 2018, his rent has been $550 per month plus $50 for his storage locker, utilities included. Last week he came in to see you and told you that his landlord had left a letter taped to his apartment door. He lets you look at the letter, and it says:

Dear tenants: Because of ongoing problems in the building, I have decided that I’m going increase rents. This place had become a headache and, right now, I’m not even making any money. So, as of the first of next month, your rent will go up to $850 per month. There’s a place for rent in the building next door that is $925 per month, so you’re still getting a good deal. Sincerely, Your landlord

John wants to know what his rights are and whether he has to pay the increased rent next month or in the future.1 Hint: The annual allowable rent increase provisions in the Residential Tenancy Act may not be the only provision to consider. Legal Research After reviewing the fact pattern, please do the following.

1. List relevant statute and any case, regulation, policy or fact sheet that you think might

apply to John’s situation.

2. Describe the research process you followed to find the resources you are using. Statutory Interpretation

1. List the section or sections of the statute, regulation or policy that you believe are most relevant to the fact pattern.

2. Based on your research set out the advice you would give John based on research and statutory analysis. If necessary, describe any assumptions you need to make to give your advice.

1 Note that the annual allowable rent increase is available on the Residential Tenancy Branch website. Consider the current situation and what may apply in the after Covid times.


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Topic: Welfare law basics (Welfare Overview) Timing: • May 19, 2021

• 1 – 4 pm

Student prep: • Background reading: Income Assistance Overview

Learning Objective/s:

Learners will be able to: • List requirements to qualify for different types of benefits • List requirements to stay eligible for income assistance • Know common problems that may arise for clients • Explain to clients the requirements they must meet to apply

for health benefits and crisis supplements. • Identify options and deadlines for helping a client deal with

a negative decision by MSDPR staff. • Be aware of important timelines in welfare legislation and

regulations. • Understand the process of appealing a decision on income

assistance.

Activity:

• Presentation: o Overview of the legislation o Highlight common problems and resolution

• Group work on common problems • Take up of problems and solutions

Resource person:

• Thea McDonagh, advocate, Together Against Poverty Society

Materials:

• LSS publications on welfare • Course materials

Assessment:

• Week 1 Test

Legal Advocacy Training Course - Week 1 Materials - 6. Income Assistance Overview

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Legal Advocacy Training Course – 2021

Income Assistance Overview

Updated by Thea McDonagh, May 2021


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Table of Contents

MinistryofSocialDevelopment&PovertyReductionOverview…Page4A. Income Assistance B. Legislative Authority C. Vision, Mission, Principles & Responsibilities D. Duty to Accommodate E. Structure

ApplicationforIncomeAssistance…Page7A. Application Process Overview B. Work Search Requirement C. Immediate Needs Assessment (INA) D. Persons Fleeing Abuse E. Homeless Indicator & Application Protocol

BarrierstoEligibilityforIncomeAssistance…Page11A. 2-Year Financial Independence B. Identity Established C. Citizenship Requirements D. Outstanding Warrants E. Employment Plans F. Employment Related Sanctions G. Information, Verification & Reporting Obligations H. Compliance Reviews

CategoriesandRatesofAssistance…Page16A. Hardship Assistance B. Regular Assistance C. Persons with Persistent Barriers to Employment (PPMB) D. Persons with Disabilities (PWD) E. Hudson v. BC F. Income Assistance Rates

LivingArrangements&Dependency…Page23A. Room & Board B. Renting C. Homeowners D. Homeless E. Co-Habitation & Dependency

Income&Assets…page28A. Income B. Assets C. Trusts for Persons with Disabilities


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Supplements…page36A. Crisis Supplement B. Moving Supplement C. Health Supplements

Appeals…page40A. Administrative Law B. Appeal Process Overview C. Reconsiderations D. Employment & Assistance Appeal Tribunal E. Judicial Review

Resources…page48A. BCEA Policy & Procedures Manual B. MSDPR Duty to Accommodate C. CRSQ Manager Contact Info D. PPMB Employability Screen E. PWD Dr. Template Letter F. Supplements Table G. Reconsideration & Appeal Timetable


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MINISTRYOFSOCIALDEVELOPMENTANDPOVERTYREDUCTION A. INCOME ASSISTANCE Provincial income assistance is available through the Ministry of Social Development and Poverty Reduction (MSDPR). MSDPR administers the BC Employment and Assistance program (BCEA). The BCEA program “assists British Columbians by helping people move from income assistance to sustainable employment, and by providing income assistance to those who are unable to fully participate in the workforce”1. B. LEGISLATIVE AUTHORITY The legislative authority for the BCEA comes from several pieces of legislation:

Employment and Assistance Act, [SBC 2002] c. 40 Employment and Assistance Regulation, B.C. Reg. 263/2002 Employment and Assistance for Persons with Disabilities Act, [SBC 2002] c. 41 Employment and Assistance for Persons with Disabilities Regulation, B.C. Reg. 265/2002

There are also extensive BCEA policies and procedures available through the BC Employment & Assistance Policy & Procedure Manual:

https://www2.gov.bc.ca/gov/content/governments/policies-for-government/bcea-policy-and-procedure-manual

The policies set out the MSDPR’s intent with respect to the Acts and Regulations. However, policy is not law. Policy provides guidelines to assist the Ministry make decisions. Decisions must be based on the legislation. Further, where policy and the legislation conflict, the legislation must be followed. In addition, the MSDPR is bound by:

• Interpretation Act: applies to and provides direction for interpreting all provincial legislation

• Freedom of Information and Protection of Privacy Act: governs the conduct of the Ministry in relation to the collection, protection, retention, and disclosure of a person’s personal information held by government; and

• BC Human Rights Code: which dictates the Ministry’s obligations as a service provider with respect to discrimination and the “duty to accommodate”

C. MINISTRY VISION, MISSION, PRINCIPLES & RESPONSIBILITITES: The vision, mission, principles and responsibilities of the Ministry are infused with the concept of “employment before assistance”. The BCEA is intended to be the payor of last resort. Consequently, applicants are expected exhaust all other sources of income before applying for

1 “Overview of BCEA Program” http://www2.gov.bc.ca/gov/content/governments/policies-for-government/bcea-policy-and-procedure-manual/ministry-overview/overview-of-bcea-program


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assistance, must extensively search for employment before obtaining assistance, and must be moving from assistance to employment wherever possible.

D. DUTY TO ACCOMMODATE The BC Human Rights Code protects British Columbians from discrimination. The Code prevails over MSDPR policy and practice. Consequently, MSDPR is bound in its provision of services not to discriminate on the basis of a protected ground in the Code. MSDPR also has a legal duty to accommodate individual needs to the point of undue hardship where the need is based on a protected ground. Undue hardship in this context means MSDPR may be excused from this obligation only where it has a reasonable justification, made in good faith, for not accommodating an individual's needs. Generally speaking, issues of cost, administrative difficulty or inconvenience will not be sufficient to excuse this duty. The nature and extent of the accommodation depends on the particular circumstances. MSDPR recognizes some clients may not expressly communicate the need for. Staff must be proactive and make reasonable inquiries in determining whether it may be appropriate to offer accommodation. [See Resources – MSDPR Policy and Procedure Manual: Duty to Accommodate]

Vision (updated April 1, 2018) “We make a difference in the lives of British Columbians trying to overcome social and economic barriers by:

• Believing in their ability to realize their potential and make meaningful contributions to their community, and

• Providing access to the services and resources to help them build the resilience and personal accountability necessary to achieve those goals.”

Mission (updated April 1, 2018) “A province in which British Columbians in need are assisted to achieve their social and economic potential.” Values (updated July 10, 2006) In carrying out its mission, MSDPR states it is guided by the following principles:

• people – organization’s greatest asset are its people, work to support each other and clients • personal responsibility – towards empowerment and self-reliance • respect and empathy • equity and fairness • accountability • transparency and open communication

Case Management Principles (effective December 1, 2003)

• Employment and Independence – “work-first” approach • Personal Responsibility – of clients • Engage clients quickly – with respect to employment related obligations • High Expectations for success – of employment/independence plans


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E. MINISTRY STRUCTURE2

There are several Assistant Deputy Ministers each responsible for separate divisions including:

Corporate Services Division • Financial and Administrative Services Branch (FASB)

o CPP Program Services

Employment & Labour Market Services Division • Program Management • Services to Adults with Developmental Disabilities

Research, Innovation & Policy Division • Accessibility Secretariat • Strategic Policy Branch • SDPR-MCFD Legislation, Litigation and Appeals

o Reconsideration Branch & Appeals Branch

Service Delivery Division • Provincial Contact Centres • Intake and General Supplements • Local Office Services and Outreach (Supervisors & Frontline Workers) • Health Assistance Branch (HAB) • Prevention and Loss Management Services (PLMS) • Engagement, Partnerships and Strategic Initiatives (includes regional CRSQs) • Office of Homelessness Coordination

The 1-866-866-0800 telephone line is generally the starting point for all inquiries. Each region also has its own offices and office supervisors, but the Ministry has increasingly moved to a province wide service delivery model, meaning communication is less focused on local offices, and is instead directed to call centers or service “streams”.

2BC Government Directory https://dir.gov.bc.ca/gtds.cgi?page=1&Index=ByUnitHier&OrgCode=SDPR&PrevPage.x=28&PrevPage.y=7&PrevPage=previous+page

Premier

Minister

Deputy Minister

Assistant Deputy Ministers


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APPLICATIONFORINCOMEASSISTANCE

A. APPLICATION PROCESS OVERVIEW

*Returning applicants who have received assistance within 6 months may be eligible to have their eligibility determined via a monthly report from rather than the 2-stage application process.

Ineligible

Ineligible

Apply for Income Assistance Online, in person, or pre-arranged phone call

Work Search Requirements First time applicants or recipients

returning after more than 6 months *Unless INA established

Immediate Needs Assessment? If immediate need determined, fast

tracked to eligibility interview for “Hardship - Work Search Required”

Work Search Exempted? Ex. Received assistance within the last 6 months, medical condition precluding employment; Fleeing

abuse; Single parent of >3yo; 65+, PWD etc.

BCEA Application Stage 1 Assess work search activities

Stage 2: Eligibility Interview Gather documents; assess eligibility;

eligibility determination for income/hardship assistance

ELIGIBLE FOR ASSISTANCE Employment Plan Signed

Cheque Issued

Not Eligible for Assistance Hardship Eligibility?

Accept decision or appeal

Applying for PWD Temp. asset exemption Soft “Employment” Plan

Reconsideration and/or Appeal

Success

ELIGIBLE FOR PWD ASSISTANCE

Not Eligible for PWD

Reconsideration and/or Appeal

Success


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B. WORK SEARCH REQUIREMENT Because the BCEA program is intended to be the payor of last resort, applicants must demonstrate they have completed a satisfactory work search lasting three weeks before their eligibility for assistance is assessed. Critics of the BCEA point to the work search requirement as one of many barriers to obtaining assistance.

Whether work search activities are satisfactory is determined by the Ministry. An individual may also be able to demonstrate they have completed a satisfactory work search within the 30-day period prior to the date of the application. This is important as it can significantly reduce an applicant’s waiting period.

Work search exemptions are available if the applicant: • received income assistance within the last 6 months • is fleeing an abusive spouse or relative • is a sole applicant

o with a dependent child under 3 years old (including foster child and child in the home of a relative)

• has a physical or mental condition that, in the minister's opinion, precludes the applicant from completing a search for employment

• has a person in the family unit that is a person with disabilities (PWD) • cannot legally work in Canada • is 65 years or older • is applying for medical equipment, medical supplies, or medical transportation and is

otherwise not eligible for assistance, but is facing an imminent life-threatening need • is in a hospital or facility and receiving a comforts allowance and needs to apply for

regular assistance because they are leaving the facility

Applicants who are exempt from the work search requirement are supposed to be provided with an eligibility appointment within five business days.

C. IMMEDIATE NEEDS ASSESSMENT (INA) Applicants who are in immediate need of assistance and cannot wait the work search period may be eligible for an “Immediate Needs Assessment”. Applicants are considered in immediate need if they have:

• An immediate need for food o The availability of food banks does not negate this need

• An immediate shelter need o Including impending eviction, utility disconnect, lack of suitable housing. Availability of

shelters does not negate this need. • An immediate need for urgent medical attention


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o Including prescriptions, medical supplies, needing medical transportation

Being eligible for an INA does not mean an applicant is automatically eligible for assistance. Applicants in immediate need are still required to complete their work search unless otherwise exempt. However, their eligibility should be assessed for Hardship Assistance – Immediate Needs – Work Search Required, which provides hardship assistance while INA applicants complete their work search. Pending Immediate Need: MSDPR procedures state staff should also determine whether an applicant will soon have an immediate need, taking into consideration the likelihood and timing of the immediate need arising. This is referred to as a “Pending Immediate Need”. Therefore, even if an applicant does not have an eviction notice yet, if they will not have money to pay their rent by the end of the month, their immediate need will occur in the reasonably foreseeable future. Eligibility Interview Within One Day? Even when an applicant is found in immediate need, they may still be waiting several days for an intake appointment. In responding to complaints from advocates, the BC Ombudsperson recommended: “The ministry continuously improve compliance in providing eligibility appointments within one business day to individuals with immediate needs.”3 Although MSDPR accepted this recommendation, it is not always successfully implemented. Current MSDPR procedure states: “If an eligibility interview cannot be completed in time to meet the immediate need, then staff must ensure the applicant's immediate need is addressed within the same business day.”

D. PERSONS FLEEING ABUSE If an applicant discloses that they are fleeing abuse, Ministry staff are to invoke specific MSDPR policies to ensure that:

• the Person Fleeing Abuse Alert is applied to each contact on the case; • the immediate safety needs of the client are met, including the needs of any dependent

children involved; and • the eligibility decision on assistance is expedited so the applicant/recipient does not

remain in the abusive situation because of financial need

New applicants who are fleeing abuse are given critical priority and exempt from the work search requirement, some citizenship requirements and employment obligations for up to six months. They proceed to Stage 2 of the intake process and the intake interview should be scheduled within one business day.

3 “Last Resort: Improving Fairness and Accountability in British Columbia’s Income Assistance Program” (2009). https://bcombudsperson.ca/documents/last-resort-improving-fairness-and-accountability-british-columbias-income-assistance


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Both applicants and recipients who disclose they are fleeing abuse, may also be eligible for a Moving, Transportation and Living Costs supplement to help them gain safety. Ministry staff should proactively assess their eligibility for this supplement. It is not necessary for abuse or domestic violence to be verified for the specific policies to be applied, only that it be disclosed. Abuse is not limited to physical violence, and can include psychological or emotional abuse, intimidation and stalking.

E. HOMELESS – INDICATOR & APPLICATION PROTOCOL During the application process, Ministry staff are to determine whether the applicant is homeless, and if so, apply the homeless indicator to their file. A person is considered homeless if:

• They have been living in public spaces or shelters for more than 30 days; or • Were brought to the Ministry by a BC Housing Outreach Worker through the Homeless

Outreach Program

Once the homeless indicator has been set, it should not change until the person has been stably housed for 12 consecutive months. Applicants who are homeless should receive same day service from MSDPR. Eligibility interviews should be completed within one business day. Employment plans for people with the homeless indicator should be created to reflect the person’s current circumstances. Example activities as set out in MSDPR policy include:

• Client to continue to work on personal health and well-being to the best of their ability • Client to work with BC Housing Outreach Worker (and/or other community agencies)

toward seeking stable housing and managing their health, life skills and explore volunteer or employment options

If the applicant has no physician, other health care professionals can provide the medical information required in relation to employability. In exceptional circumstances a supervisor can also waive the requirement for an Employment Plan. Those who have the homeless indicator set should also be issued shelter assistance and security deposits on the same day upon submission of a shelter information form.


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BARRIERSTOELIGIBILITYMinistry staff assess eligibility based on the following general criteria:

• Established identity of each family member • Meet Canadian citizenship requirements • Resident of British Columbia • No outstanding warrants • Number of persons and the dependent relationships established • Not be full-time students • Pursuing and accepting all other income or means of support available first • Demonstrate assets are within the applicable asset levels • Agree to and comply with employment obligations [Employment Plans] • Provide all information as requested

Most have some exceptions which are important to keep in mind when assisting individuals.

A. Identity Established To be eligible for assistance the identity of each member of the family unit must be established, including verification of the Social Insurance Number (SIN) of all adults in the family. At the time of application for assistance, applicants must provide two pieces of identification (ID), and one must be a photo ID. In couples, only the primary applicant must satisfy the ID requirement for the family unit to be found eligible, though the partner/dependant is required to supply this information as soon as possible. Applicants unable to provide the required identification may opt to access the ministry's Client Identification Process (CIP). Assuming all other eligibility requirements are met, applicants who meet identification requirements using CIP will be eligible for income assistance on a temporary basis (for up to 6 months) while they pursue the required ID documents. In circumstances where a person does not wish to access the CIP, and their identity cannot otherwise be established, the person may qualify for Hardship Assistance – Identity Not Established if they meet all other eligibility criteria and the applicant makes every effort to obtain the required ID. Recipients of income, disability and hardship assistance may be eligible for an identification supplement to cover the costs associated with obtaining identification.

B. Citizenship Requirement For a family unit to be eligible for income assistance or disability assistance, each applicant in the family unit must be one of the following:

• a Canadian citizen • a permanent resident • a protected person (Convention refugee or person in need of protection)


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• in Canada on a Temporary Resident Permit • a refugee claimant • under a removal order that has been stayed or cannot be executed • a dependent child

Section 7.1 of the Regulations provides a very limited exemption as follows:

Only applicants who meet the citizenship requirement or are exempt as per the above section will be issued income or hardship assistance. In circumstances where one family member meets the citizenship criteria, but the other does not, assistance will only be issued to the family member who meets the citizenship requirement. C. Outstanding Warrants Those with outstanding warrants issued under the Immigration and Refugee Protection Act or in relation to an offence prosecuted by indictment, are ineligible for income assistance. The intention of this legislation is to ensure BC doesn’t pay social assistance benefits to people wanted for serious crimes in other provinces. However, in practice almost all charges, including those for minor offenses, are captured under the definition of “indictable”. The result is that many people are forced to plead guilty to charges for offences they may not have committed in order to qualify for assistance. There are some exemptions to this, but they are limited to warrant holders under 18 years, who have confirmation of pregnancy, or who have reached the end stage of a life-threatening disease. If an adult in a family unit has an outstanding arrest warrant, the remaining family members may still be eligible for assistance at a reduced rate.

7.1 (1) Despite section 7 (1), a family unit is eligible for income assistance if the minister is satisfied that all of the following apply: (a) the applicant is a sole applicant or, in the case of a recipient, the recipient is a sole recipient; (b) the applicant or recipient has one or more dependent children who are Canadian citizens; (c) the applicant or recipient has separated from an abusive spouse; (d) the applicant or recipient has applied for status as a permanent resident under the Immigration and Refugee Protection Act (Canada); (e) the applicant or recipient cannot leave BC with the dependent children because

(i) a court order, agreement or other arrangement with respect to one or more of the dependent children provides custody, guardianship or access rights to another person who resides in BC and leaving BC with the dependent children would likely contravene the provisions of the court order, agreement or other arrangement, (ii) another person who resides in British Columbia is claiming custody, guardianship or access rights with respect to one or more of the dependent children and the person’s claims have not yet been resolved, or (iii) the applicant or recipient, or a dependent child of the applicant or recipient, is being treated for a medical condition and leaving British Columbia would result in imminent danger to the physical health of the applicant, recipient or dependent child.


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While dealing with an outstanding warrant, individuals may be eligible for a repayable warrant supplement if they can demonstrate undue hardship. This assistance will be provided for three months, with the possibility of three additional months with supervisor authorization. A repayable supplement may also be provided for transportation to the jurisdiction where the warrant was issued in order to resolve the matter. D. Employment Plans The Employment Plan (EP) “supports the ministry’s mission and mandate by emphasizing employment before assistance”. Under the BCEA, all employable clients are required to comply with an EP as a condition of their eligibility. The EP is a legal document designed to “assist clients to achieve employment and self-sufficiency”. All family members with employment obligations must adhere to the EP. The decision to require a client with employment-related obligations to enter into an EP cannot be appealed to a tribunal, however, it may be subject to ministry reconsideration. Clients can be temporarily exempt from EP obligations. Factors the Ministry will consider in such cases include:

• a client who meets the Expected to Work – Medical Condition (ETW-MC) criteria

• intend to apply for Persons with Persistent Multiple Barriers (PPMB) or Persons with Disabilities (PWD) within six months

• the client is not able to attend programs, even with accommodations, due to a health condition; or

• the client has other barriers that, in the Minister’s opinion, impede the client’s ability to search for work or participate in employment programs.

While most clients receiving income assistance have employment-related obligations and are expected to comply with an employment plan, Section 29(4) of the Regulation provides a list of people with no employment obligations. See pages 16–17 of this overview for the complete list.

E. Employment Related Sanctions Where individuals fail to accept suitable employment, or voluntarily quit without just cause or are fired for just cause, they are subject to the following sanctions for two calendar months from whichever is later, the date of application for assistance or the date the default occurred:

• Singles and couples are ineligible for assistance • Family units with dependent children are subject to a $100/month rate reduction for

each applicant or recipient subject to the sanction

F. Information, Verification & Reporting Obligations The legislation empowers MSDPR to collect and obtain information from a variety of sources for


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Information and verification 10. (1) For the purposes of

(a) determining whether a person wanting to apply for income assistance or hardship assistance is eligible to apply for it, (b) determining or auditing eligibility for income assistance, hardship assistance or a supplement, (c) assessing employability and skills for the purposes of an employment plan, or (d) assessing compliance with the conditions of an employment plan, the minister may do one or more of the following: (e) direct a person referred to in paragraph (a), an applicant or a recipient to supply the minister with information within the time and in the manner specified by the minister; (f) seek verification of any information supplied to the minister by a person referred to in paragraph (a), an applicant or a recipient; (g) direct a person referred to in paragraph (a), an applicant or a recipient to supply verification of any information he or she supplied to the minister.

(2) The minister may direct an applicant or a recipient to supply verification of information received by the minister if that information relates to the eligibility of the family unit for income assistance, hardship assistance or a supplement. (3) Subsection (1) (e) to (g) applies with respect to a dependent youth for a purpose referred to in subsection (1) (c) or (d). (4) If an applicant or a recipient fails to comply with a direction under this section, the minister may

(a) reduce the amount of income assistance or hardship assistance provided to or for the family unit by the prescribed amount for the prescribed period, or (b) declare the family unit ineligible for income assistance, hardship assistance or a supplement for the prescribed period.

(4.1) The Lieutenant Governor in council may prescribe circumstances in which subsection (4) )a) or (b) does not apply. (5) If a dependent youth fails to comply with a direction under this section, the minister may reduce the amount of income assistance or hardship assistance provided to or for the family unit by the prescribed amount for the prescribed period.

Reporting obligations 11. (1) For a family unit to be eligible for income assistance, a recipient, in the manner and within the time specified by regulation, must

(a) submit to the minister a report that (i) is in the form prescribed by the minister, and (ii) contains the prescribed information, and (B.C. Reg. 263/2002)

(b) notify the minister of any change in circumstances or information that (i) may affect the eligibility of the family unit, and (ii) was previously provided to the minister.

(2) A report under subsection (1) (a) is deemed not to have been submitted unless the accuracy of the information provided in it is affirmed by the signature of each recipient.

the purposes of determining eligibility. Further, recipients of assistance are expected to provide information when it is requested, and to regularly report as a condition of ongoing eligibility.

The ministry may declare a family unit ineligible for assistance or reduce the family unit's assistance by $25 per month for failure to provide or verify information as directed until compliant. The $25 per month reduction can only be applied to family unit who are recipients of assistance and not applicants. If a family unit is homeless or is at imminent risk of homelessness and fails to provide or verify information under Section 10, the family unit must remain eligible for assistance despite that non-compliance.


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G. Compliance Reviews The Prevention and Loss Management Services (PLMS) Branch of the Ministry conducts reviews to determine client’s current and past eligibility for assistance. Compliance reviews are initiated as a result of random selection, data matching, and allegations from the general public or Ministry staff.

During the compliance review, PLMS staff request substantial amounts of information and documentation within a tight timeframe to verify eligibility. Recipients are given 16 business days from the date the letter is sent but can request additional time if required. Reviews may result in:

• no change to assistance • an increase or decrease to, or discontinuation of assistance • an underpayment or overpayment.

The ministry will communicate, in writing, the outcome of the review. Ministry policy obliges all staff to apply principles of administrative during the compliance review process, as well as to consider a person’s need for accommodation or any mitigating circumstances that may impact their ability to comply. In the context of compliance reviews, this could include:

• Providing language and ASL interpreters, or braille translation • Arrange in-person meetings with an IO at a local office • Providing time extension for document submission • With consent, obtaining documents or information that are unattainable by the client

In addition, Ministry policy outlines the limitation of Section 10. For example, Section 10 should not be used to determine someone ineligible for assistance when:

• The ministry has reasonable basis to conclude that the information or document requested does not exist or is not legally accessible to the person

• The ministry has other relevant documentation to determine eligibility • There is evidence to support an eligibility decision being made under a different section

of the legislation • The ministry can verify/obtain information with/from other persons or agencies directly,

through a data match, or through an information sharing agreement or memorandum of understanding


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CATEGORIES&RATESOFASSISTANCE

A. HARDSHIP ASSISTANCE An individual not eligible for income assistance may receive funds under one of several categories of hardship assistance. Eligibility must be re-established on an ongoing basis and some categories of hardship assistance are repayable. Schedule D of the Regulation sets out the amount of Hardship an individual may receive. Notably there is no guaranteed amount issued under this category:

Hardship assistance may be provided in the following circumstances:

• Awaiting EI Benefits –applicants awaiting Employment Insurance (EI) • Awaiting Other Income –applicants awaiting income from another source • Assets in Excess – for specified family units who have assets in excess of specified

exemption levels, and the assets are not immediately available • Strike/Lockout –applicants on strike or locked out, if union unable to meet their needs • Income in Excess – for families with dependent children, who have received income in

excess of the maximum rate for their family unit and the excess income could not have been reasonably expected to meet basic needs

• Immediate Need – Work Search Required - for applicants with an immediate need for food, shelter or medical attention who have not satisfied work search requirements

• Sponsorship Undertaking Default – applicants awaiting verification of default of a Sponsorship Undertaking

• Identity Not Established – for persons who have insufficient identification • SIN Required – applicant or adult dependent is unable to provide a SIN

B. REGULAR ASSISTANCE Individuals on basic assistance fall into categories depending on the employment obligations and are entitled to different benefits depending on what category they are in: Employable

• Physically and mentally capable of searching for and engaging in employment • Employment Plan: referral to Employment Program or Independent Work Search • Basic Medical & Emergency Dental Only

No entitlement to a specific amount of hardship assistance 1 (1) The minister may provide a family unit that is eligible for hardship assistance under Part 4 of this regulation an amount not exceeding the amounts authorized by this Schedule. (2) Subject to subsection (1), the actual amount of hardship assistance to be provided under this Schedule is in the discretion of the minister based on the financial need of the applicant’s family unit. (3) Nothing in this Schedule or in Part 4 of this regulation entitles a family unit to a specific amount of hardship assistance.


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• Earnings Exemption = $500.00 per month (following the first calendar mo. of eligibility) Expected to Work – Medical Condition

• Temporary medical or mental health condition which obstructs, impedes or prevents ability to participate in employment

• Medical Verification Required • Employment Plan: mandatory activities to improve employability • Basic Medical & Emergency Dental Only • Earnings Exemption = $500.00 (following the first calendar mo. of eligibility)

No Employment Related Obligations

• Although considered employable, recipients are given a temporary exemption from employment related obligations if they are:

o 65 years of age o Single parent, foster parent or people with CIHR where child is under 3 or has a medical

condition precluding caregiver from leaving home for employment o Person residing in special care facility or admitted to hospital requiring extended care o Caring for spouse with a physical or mental condition o Person participating in treatment or rehabilitation program o Person separated from abusive spouse/relative within previous six months o Person qualified as PPMB o Citizenship exempt

• Medical Verification or Other Supporting Evidence Required • Basic Medical & Emergency Dental Only • Earnings Exemption = $500.00

C. PERSONS WITH PERSISTENT MULTIPLE BARRIERS TO EMPLOYMENT (PPMB) The Persons with Persistent Multiple Barriers (PPMB) category provides assistance to clients who have long-term barriers to employment that are not expected to be overcome in the short term despite all reasonable steps. PPMB recipients have no employment obligations. However, they are eligible for Voluntary Participation Plans (VPP) as well as the Self-Employment Program (SEP) for help establishing and operating a self-employment enterprise. Eligibility Criteria: Recipients who qualify for Persons with Persistent Multiple Barriers (PPMB) are those who meet the following criteria:

• has a health condition that has lasted for at least 1 year and is likely to continue for at least 2 more years or has a health condition that has occurred frequently in the past year and is likely to continue for at least two more years. This health condition is a


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barrier that seriously impedes a person’s ability to search for, accept or continue in employment

AND

• has at least one additional barrier (listed under Barriers to Employment, below) that seriously impedes the person from searching for, accepting or continuing in employment.

Eligible for: • Increased Assistance Rate • Schedule C Health Benefits • Earnings Exemption = $900.00

D. PERSONS WITH DISABILITITES (PWD) An individual with PWD designation has no employment obligations. However, like PPMB, they can participate in VPP or the SEP. Eligibility Criteria: Section 2(2) of the EAPWD Act sets out the eligibility criteria for the PWD designation: (2) The minister may designate a person who has reached 18 years of age as a person with disabilities for the purposes of this Act if the minister is satisfied that the person is in a prescribed class of persons or that the person has a severe mental or physical impairment that

(a) in the opinion of a medical practitioner or nurse practitioner is likely to continue for at least 2 years, and (b) in the opinion of a prescribed professional

(i) directly and significantly restricts the person's ability to perform daily living activities either

(A) continuously, or (B) periodically for extended periods, and

(ii) as a result of those restrictions, the person requires help to perform those activities.

Prescribed Class: The EAPWD Act permits the Ministry to provide someone with the PWD designation without going through the standard application process if the person has already been approved for another prescribed government program or benefit. This is limited to:

• people enrolled in BC PharmaCare Plan P (Palliative Care Benefits) • people determined eligible for the MCFD At Home Program – Medical Benefits and

Respite (assists families with the costs of caring for a severely disabled child)


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• People eligible for CLBC support and services • People eligible for Canada Pension Plan Disability (CPP-D) benefits

Prescribed class applicants have a much smaller application to complete. By signing the application, the applicant consents to the Ministry verifying their eligibility for the prescribed program indicated on their application directly with the providing agency. Eligible for:

• Increased Assistance Rate • Schedule C Health Benefits • Transportation Support Allowance/bus pass • Earnings Exemption

o $15,000.00 Annualized Earnings Exemption (AEE) § Once a family unit's AEE limit is reached, any additional earnings received

will be deducted dollar for dollar from their disability assistance. § Each calendar year is a new exemption year. § AEE calculations are impacted by the timing and kinds of changes to a

person’s family circumstances, such as spouses or leaving and returning to assistance during the AEE period.

E. HUDSON v. BRITISH COLUMBIA: PWD Eligibility & Statutory Interpretation Proving an individual meets the PWD eligibility criteria can be very difficult. Whether a condition is “severe” is determined by the Minister and is not defined in the legislation. The BC Supreme Court in Hudson v. British Columbia (Employment and Assistance Appeal Tribunal) 2009 BCSC 1461 highlighted several important legal considerations in assessing applications for PWD designation. Firstly, at paragraph 43, the Court speaks to the scope of the restriction. A person need not be restricted in all daily living activities in order to qualify for PWD. Rather, there must be evidence of restriction on at least two:

[43] Section 2(2) of the EAPDA requires evidence from a “prescribed professional” that a severe physical impairment “directly and significantly restricts the person’s ability to perform daily living activities.” There is no indication that every one of the daily living activities listed must be affected. The ordinary meaning of the plural “activities” in this section dictates that there must be evidence from a prescribed professional indicating a direct and significant restriction on at least two daily living activities.

Secondly, at paragraph 64 the Court address the weight which should be given to the applicant’s evidence contained in the Section 1 (Self-Report) of the PWD application, stating:


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[64] Concerning the weight to be given to the petitioner’s evidence, while s. 2(2) of the EAPDA makes it clear that certain eligibility criteria for PWD status need to be confirmed by the applicant’s physician or assessor, nothing in the EAPDA prevents the Ministry or the Tribunal from placing considerable weight on the Petitioner’s evidence, provided the statutory eligibility criteria are met. Indeed, it would be illogical for the Application to demand of the petitioner to describe her disabling condition if the situation were otherwise.

Thirdly, the Court held that the evidence of the physician and assessor must be read in their entirety and in a broad way. Even if the physician or assessor does not tick a specific box on the PWD application form, his or her evidence must be reviewed in full, including narrative portions, to see if eligibility confirmation can be found elsewhere [see paras 3-7, 41, 51-54] Finally, at paragraph 35 of the decision, the Court considers s. 8 of the Interpretation Act regarding the applicable principles of statutory interpretation when dealing with both the EAA and EAPWDA:

[35] Furthermore, in reviewing this decision, it is important to keep in mind the Interpretation Act, s.8, which reads “[e]very enactment must be construed as being remedial, and must be given such fair, large and liberal construction and interpretation as best ensures the attainment of its objects.” In dealing with similar legislation to the EAPDA, the Ontario Court of Appeal in Gray provided valuable instruction for interpreting the type of social welfare legislation at issue:

[10] It is my view that as social welfare legislation, any ambiguity in the interpretation of the ODSPA should be resolved in the claimant’s favour. In Wedekind v. Ontario (Ministry of Community and Social Services) (1994), 1994 CanLII 1659 (ON CA), 21 O.R. (3d) 289 (C.A.) at 296-297, this court stated:

[T]he principle of construction … applicable to social welfare legislation … is, where there is ambiguity in the meaning of a statute, the ambiguity should be resolved in favour of the applicant seeking benefits under the legislation.

[11] Likewise, in Abrahams v. Canada (Attorney General), 1983 CanLII 17 (SCC), [1983] 1 S.C.R. 2 at 10, Wilson J. wrote with respect to the Unemployment Insurance Act: Since the overall purpose of the Act is to make benefits available to the unemployed, I would favour a liberal interpretation. … I think any doubt arising from the difficulties of the language should be resolved in favour of the claimant.

[12] The rationale for such an approach was set out by the Federal Court of Appeal in Villani v. Canada (Attorney General) 2001 FCA 248 (CanLII), 205 D.L.R. (4th) 58 (F.C.A.) at 70 as follows:

The liberal approach to remedial legislation flows from the notion that such legislation has a benevolent purpose which courts should be careful to respect.


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If you are assisting someone who has been denied PWD, the starting point is to review whether the medical opinion accurately reflects the person’s actual restrictions and need for assistance. If the individual reports information either not contained in the application or not correctly reported, contact the doctor/assessor and request an amended opinion. One option is to draft a “template letter” or “checklist” containing the updated information for the doctor/assessor to adopt if they agree with the contents [see Resources Section]. As well, if the applicant receives assistance completing daily living activities, a letter could be requested from that individual outlining the amount and type of help they provide.

F. INCOME ASSISTANCE RATES The amount of assistance an individual receives depends on the type of assistance they are eligible for, as well as the size and make up of their family unit. Assistance cheques are divided into a “Shelter” and “Support” portion. Support Allowance:

• Food • Transportation (Gas, Insurance,

Vehicle Repairs) • Clothing • Non-eligible Medical Expenses • Expenses (Personal Hygiene, Debt

Repayment)

Shelter Allowance: • Rent or Mortgage • Strata Fees • House Insurance or Property Tax • Fuel (cooking or heating) • Hydro and water • Landline phone • Garbage disposal


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Income Assistance Rate Table - Effective May 1, 20214

The asterisk indicates the most recent rate table changes Key A. Employable singles, couples, and two-parent families where all adults are under 65 years of age B. Singles, couples, and two-parent families where all adults meet the Persons with Persistent Multiple Barriers

(PPMB) criteria and all are under 65 C. Employable one-parent families where the parent is under 65 D. Singles, couples, and two-parent families where one adult is 65 or older E. Couples and two-parent families where both adults are 65 or older F. One-parent families where the parent is 65 or older G. One-parent families where the parent meets the Persons with Persistent Multiple Barriers (PPMB) criteria and

is under 65 H. Couples and two-parent families where one adult meets the PPMB criteria and all are under 65

4 http://www2.gov.bc.ca/gov/content/governments/policies-for-government/bcea-policy-and-procedure-manual/bc-employment-and-assistance-rate-tables/income-assistance-rate-table

The asterisk indicates the most recent rate table changes

Support Rate Shelter Maximum

Unit Size

A B C D E F G H

1 *$560.00 *$607.92 N/A *$856.42 N/A N/A N/A N/A $375.00

2 *$857.22 *$1,002.06 *$700.58 *$1,250.56 *$1,499.06 *$997.08 *$748.58 *$946.22 $570.00

3 *$951.06 *$1,096.06 *$700.58 *$1,344.56 *$1,593.06 *$997.08 *$748.58 *$1,040.06 $660.00

4 *$951.06 *$1,096.06 *$700.58 *$1,344.56 *$1,593.06 *$997.08 *$748.58 *$1,040.06 $700.00

5 *$951.06 *$1,096.06 *$700.58 *$1,344.56 *$1,593.06 *$997.08 *$748.58 *$1,040.06 $750.00

6 *$951.06 *$1,096.06 *$700.58 *$1,344.56 *$1,593.06 *$997.08 *$748.58 *$1,040.06 $785.00

7 *$951.06 *$1,096.06 *$700.58 *$1,344.56 *$1,593.06 *$997.08 *$748.58 *$1,040.06 $820.00


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Disability Assistance Rate Table – Effective May 1, 20215

Support Rate Shelter Maximum

Unit Size Size

A B C D

1 *$983.42 N/A N/A N/A $375.00

2 *$1,377.56 *$1,853.06 *$1,124.08 *$1,626.06 $570.00

3 *$1,471.56 *$1,947.06 *$1,124.08 *$1,720.06 $660.00

4 *$1,471.56 *$1,947.06 *$1,124.08 *$1,720.06 $700.00

5 *$1,471.56 *$1,947.06 *$1,124.08 *$1,720.06 $750.00

6 *$1,471.56 *$1,947.06 *$1,124.08 *$1,720.06 $785.00

7 *$1,471.56 *$1,947.06 *$1,124.08 *$1,720.06 $820.00

Note: An additional Transportation Supplement is provided to a person with the Persons with Disabilities designation as $52 in cash or as an in-kind bus pass

Key A. Singles, couples, and two-parent families where one family member is a person with disabilities (PWD), and

the other is not a PWD and is under 65 B. Couples and two-parent families where both adults are PWDs C. One-parent families where the parent is a PWD D. Couples and two-parent families where one adult is 65 or older but is not a PWD and one adult is a PWD

LIVINGARRANGEMENTS&DEPENDENCY

A. ROOM & BOARD SITUATIONS “Room & Board” is not defined in the legislation. However, the Ministry’s “Shelter Information” form indicates it is when common areas are shared with the landlord and meals are included.

In room and board scenarios it is assumed food costs are included in the shelter costs. Consequently, an individual receives less overall in assistance depending on the amount of their housing costs. They will be eligible to receive the smaller of:

• the sum of the actual cost of room and board plus

5 https://www2.gov.bc.ca/gov/content/governments/policies-for-government/bcea-policy-and-procedure-manual/bc-employment-and-assistance-rate-tables/disability-assistance-rate-table


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o $60.00 per calendar month for each adult o $40.00 per calendar month for each child, OR o $127.00 per calendar month for each person with the PWD designation, OR

• the amount calculated under Schedule A for the applicable family unit size

This is highly problematic as it assumes $60.00 is sufficient to cover all monthly expenses outside of housing and food. B. RENTING An individual or family unit renting a suite can claim all allowable shelter expenses in the calculation of their actual shelter costs. If two or more family units share the same place of residence, the actual shelter costs of any one of the units is the lesser of the following:

• the calculation of the following steps: 1. dividing the actual shelter costs for all of the family units by the number of

persons occupying the residence 2. multiplying the result by the number of persons in that one family unit, AND

• the amount declared by the family unit as its shelter cost The Ministry requires documentation verifying eligible shelter costs. As per Ministry policy, documentation may include, but is not limited to a tenancy agreement or a completed shelter information form. Ministry policy also makes clear that shelter allowance for rent should not be denied because the shelter cost information is provided by someone other than the landlord or registered property owner.

C. HOMEOWNERS Homeowners are eligible to receive shelter assistance for utilities, phone, mortgage, house insurance premium, property taxes, and monthly strata corporation assessment fees. As well they can receive the actual cost of maintenance and repairs to the home if the costs are pre-approved by the Ministry.

D. HOMELESS Recipients who do not have any shelter costs are not eligible for shelter assistance but are eligible for support to cover other living costs. Temporary housing such as hostels or hotels are legitimate shelter expenses.

E. CO-HABITATION & DEPENDENCY Assistance is issued to an applicant/recipient on behalf of their entire “family unit”. A “family unit” applying for income or disability assistance is made up of the applicant and his or her dependants as per the Act. The Ministry considers the eligibility of a family unit as a whole when determining whether assistance will be issued (Section 28 of the Regulation).


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Dependants According to the Act, "dependant", in relation to a person, means anyone who resides with the person and who

(a) is the spouse of the person, or (b) is a dependent child of the person

Spouses The definition of “spouse” for the purposes of the BCEA Program is: Ministry procedure suggests a list of factors to be considered in determining whether two peoples living together are living in a “marriage-like relationship”:

Factor Documentation or Demonstration Suggested Questions Resided together for at least 12 months; residency factor is satisfied if absence is employment If “yes” continue assessment for factors 2 and 3

• Mail (bills) received by each party (both are clients) at the residence

• Tenancy agreement verified by landlord

• History of sharing common residence

I see you are sharing the household with another adult. How long have you lived together? Have you resided together before?

The relationship demonstrates financial dependence or interdependence consistent with a marriage-like relationship If “yes” continue assessment for factor 3

• Shared financial products(such as joint bank accounts)

• Declared spouse on tax documents (CRA)

• Verbal confirmation of how income and assets are split/shared

• Third party checks indicate a marriage-like relationship exists (e.g., landlord states client shares home with spouse and shares rent).

How does the household work? How are the bills paid? Do you share credit cards or bank accounts? Who is your beneficiary? How would your situation change if this person moved away? How would you manage if you were in hospital? (would this

Meaning of "spouse" 1.1 (1) Two persons are spouses of each other for the purposes of this Act if

(a) they are married to each other, (b) they declare to the minister that they are in a marriage-like relationship, or (c) they have resided together for at least the previous 12 consecutive months and the minister is satisfied that the relationship demonstrates

(i) financial dependence or interdependence, and (ii) social and familial interdependence,

consistent with a marriage-like relationship.


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• Named as beneficiary (life insurance, will, etc.)

person assume responsibilities for you?)

The relationship demonstrates social and familial interdependence consistent with a marriage-like relationship If “yes” consider the evidence available to support each factor. If the overall picture indicates a marriage-like relationship, determine status.

• Documents that identify parties as “spouse”

• Verbal confirmation that identifies both persons as interdependent or not (e.g., completing household chores for each other, parenting separately or together, etc.)

• Criteria 2 and 3 may be demonstrated with the same documents.

Would this person be considered your spouse or partner? How do you manage household duties? I see the children have same last name, tell me about the relationship. Tell me how the children relate to the other person?

The ministry recognizes that an applicant or recipient may be in a relationship that resembles a marriage-like relationship but is not in fact marriage-like.

Example #1:

When a person with a disability is living with another adult for the purposes of having support, staff should consider whether the person’s disability explains the financial, social and family-like aspects of their relationship. A person may have joint bank accounts and other joint assets because the person is unable to do their own banking or manage their own finances. The need for assistance from another individual due to a disability may also explain why the other person completes or assists with household tasks for the individual. It should be noted that individuals who meet these criteria may still be considered a spouse due to other factors.

Example #2:

When a person states they are separated from another person, staff should consider that it is possible to be separated while still demonstrating some factors of interdependence. A person may have declared a spouse on last year’s income taxes, which is evidence of financial interdependence, but the person could still be considered separated if the separation occurred after the tax filing period and if other evidence demonstrates separation.

Example #3:

Staff must consider the whole picture once each factor has been demonstrated. A person may describe a situation in which they share expenses and babysitting responsibilities. If the picture you are left with is that the two persons are roommates sharing expenses and babysitting responsibilities, then it is not appropriate to conclude that the relationship is marriage-like.

• The suggested questions and list of documents are not exhaustive and should be used to supplement information received and other interview questions (record notes).


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• Verbal testimony is considered evidence and must be balanced in consideration with other kinds of evidence

• In order for two persons to be assessed as spouses, you should be confident that there is sufficient evidence to support your decision. In some cases, the documentation that demonstrated financial dependence or inter-dependence will also demonstrate social / familial dependence (example, a credit application form that lists the other person as “spouse”, a tenancy agreement that when verified by the landlord indicated it was a marriage-like relationship).

• In making the determination, ensure that you have a preponderance of evidence that when considered in its totality supports your decision.

• If all three criteria have been met, add notes on the case detailing how they were met. Scan and profile necessary documents.

• Follow process for adding the spouse to the case or the application. • A follow-up assessment may be booked if the applicant or recipient advises that they

have not resided for more than 12 months with the current person they are residing with.

A determination of spousal relationship is appealable. Dependent Child A "dependent child", means a child, who resides in the parent's place of residence for more than 50% of each month and relies on that parent for the necessities of life and is not a child who is 18 years of age and is a person with disabilities. Applicants and recipients of income assistance are eligible for both support and shelter assistance for dependent children. Shared Parenting Assistance Shared parenting assistance (SPA) is provided to recipients of income assistance and disability assistance when neither parent has the child for more than 50% of each month. To be eligible for SPA, the family unit includes a child who is not a dependent child and who relies on the parent for the necessities of life and resides in the parent's place of residence for not less than 40% of each month (11 nights in the month of February, or 12 nights in the other calendar months).

The amount of SPA equals the amount of increase in shelter allowance attributed to the family when the shared child or children are added to the family unit, based on actual shelter costs. There is no support allowance component in SPA. If only one parent is in receipt of assistance (and other parent is not requesting assistance on behalf of the same child), Ministry workers have the discretion to determine that the child is a dependent child of the applicant or recipient.


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Parental Role With respect to a dependent child, a parent includes: biological mother or father; adoptive mother or father; individual(s) with legal custody or legal guardianship; OR a person who is the parent of the parenting dependant child. Someone temporarily caring for a child without legal custody or guardianship may also be considered a parent. Caring for a child may include one or more of the following, but is not limited to:

• making day-to-day decisions affecting the child • having day-to-day care, control and supervision of the child • making decisions respecting where the child will reside • making decisions respecting the child's education and participation in extracurricular

activities • making decisions respecting the child's cultural, linguistic, religious and spiritual

upbringing and heritage • applying for a passport, licence, permit, benefit, privilege or other thing for the child • exercising any other responsibilities reasonably necessary to nurture the child's

development

INCOME&ASSETS

A. INCOME The BCEA Program requires applicants and recipients to pursue, accept and use all other income to support themselves before receiving assistance. Income is treated differently depending on whether it is deemed earned or unearned, and whether it will be deducted from or exempt from the calculation for benefits. Earned Income Earned income is any of the following:

• any money or value received in exchange for work or the provision of a service • pension plan contributions refunded because of insufficient contributions to create a pension • money or value received from providing room and board at a person's place of residence • money or value received from renting rooms common to and part of a person's place of

residence Deductions from Earned Income The only deductions permitted from earned income are any amount deducted at source for the following:

• income tax • employment insurance • medical insurance • Canada Pension Plan


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• Superannuation • company pension plan • union dues

Earnings Exemptions6

Income Assistance

Eligible Clients Earnings Exemption Amount (per month)

All family units, including individuals eligible for income assistance who are not listed below

$500

All family units with a dependent child or caring for a supported child $750

A family unit where at least one individual is a Person with Persistent Multiple Barriers (PPMB)

$900

All family units with a dependent child with a severe disability or who care for a supported child with a severe disability where the disability of the child precludes a parent from working outside the home for more than 30 hours per week

$900

Disability Assistance

Eligible Clients Base amount (multiplied by the # of qualifying months in the calendar year)

Maximum Annual Earnings Exemption (full calendar year)

A family unit with one adult recipient who has the PWD designation

$1,250 $15,000

A family unit with two adult recipients where only one recipient has the PWD designation

$1,500 $18,000

A family unit where both individuals have the PWD designation

$2,500 $30,000

Unearned Income Everything NOT considered earned is defined as “unearned income”, and includes, without limitation, any of the following:

• money, annuities, stocks, bonds, shares, and interest-bearing accounts or properties • cooperative associations as defined in the Real Estate Development Marketing Act • war disability pensions, military pensions and war veterans' allowances

6 http://www2.gov.bc.ca/gov/content/governments/policies-for-government/bcea-policy-and-procedure-manual/eligibility/income-treatment-and-exemptions


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• insurance benefits, except insurance paid as compensation for a destroyed asset • superannuation benefits • any type or class of Canada Pension Plan benefits • employment insurance • union or lodge benefits • financial assistance provided under the Employment and Assistance for Persons with Disabilities

Act or provided by another province or jurisdiction • workers' compensation benefits and disability payments or pensions • surviving spouses' or orphans' allowances • a trust or inheritance • rental of tools, vehicles or equipment • rental of land, self-contained suites or other property except the place of residence of an

applicant or recipient • interest earned on a mortgage or agreement for sale • maintenance under a court order, a separation agreement or other agreement • education or training allowances, grants, loans, bursaries or scholarships • a lottery or a game of chance • awards of compensation under the Criminal Injury Compensation Act or awards of benefits

under the Crime Victim Assistance Act, other than an award paid for repair or replacement of damaged or destroyed property

• any other financial awards or compensation • Federal Old Age Security and Guaranteed Income Supplement payments • financial contributions made by a sponsor pursuant to an undertaking given for the purposes of

the Immigration and Refugee Protection Act (Canada) or the Immigration Act (Canada) • tax refunds • gifts of money, annuities, stocks, bonds, shares, and interest-bearing accounts or properties • gifts in the form of payment by another person of a debt or obligation;

Deductions from Unearned Income Any amount garnished, attached, seized, deducted, or set off from income is considered income, unless it qualifies for an exemption. The only deductions permitted from unearned income are the following:

• any income tax deducted at source from Employment Insurance benefits • essential operating costs of renting self-contained suites

Exempt Income When calculating the net income of a family unit for the purposes of section 28 (b) [amount of income assistance], the Ministry must apply any relevant income exemptions. A list of income exemptions can be found in Schedule B: https://www2.gov.bc.ca/gov/content/governments/policies-for-government/bcea-policy-and-procedure-manual/bc-laws/bc-employment-and-assistance-regulation#schb_s1


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People with the PWD designation have some additional exemptions that apply to their income calculation. The following are also exempt as per Schedule B:

• money or other value received, by will or as the result of intestacy, from the estate of a deceased person

• education and training allowances, grants, bursaries or scholarships, other than student financial assistance

In addition, Schedule B Section 7 exempts some forms of unearned income, including:

• the portion of interest from a mortgage on, or agreement for sale of, the family unit's previous place of residence if the interest is required for the amount owing on the purchase or rental of the family unit's current place of residence

• $50 of each monthly Federal Department of Veterans Affairs benefits paid to any person in the family unit

• a criminal injury compensation award or other award, except the amount that would cause the family unit's assets to exceed, at the time the award is received, the limit applicable under section 11 [asset limits]

• Maternity and parental benefits, or special benefits for parents of critically ill children paid under the Employment Insurance Act

Loans, Credit & Gifts Loans – If an applicant or recipient chooses to negotiate a cash loan, the loan amount is not defined as "earned" or "unearned" income. The amount, when received, is an "asset" in the form of cash and the recipient becomes ineligible if the asset exceeds the asset limit for the family. This also applies to funds accessed from a line of credit, credit card or a reverse mortgage. However, to be considered a loan, repayment terms must exist prior to acceptance. If there are no repayment terms, the item may be considered a gift.

Gifts – For the purposes of the BCEA program, gifts include cash or stocks, bonds, shares, and interest-bearing accounts or properties that can easily be converted to cash.

All gifts are considered to be unearned income, and are exempt for persons receiving PWD assistance. Non-recurring gifts are exempt for persons receiving income assistance; however, recurring gifts are not exempt. In determining whether a gift is “recurring”, the Ministry considers both the source and the frequency of the gift.

A gift does not have to be directly provided to a client. It could be in the form of payment by another person to pay a debt or obligation. Examples include a parent paying a client’s car insurance or BC Hydro bill.

B. ASSETS Assets include any of the following:

• cash • equity in property • equity in investments or other financial instruments


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• equity in trust where the applicant or recipient has control over disbursements Assets are only assets if they can be converted to cash. All assets have an intrinsic monetary value; therefore, the term convert refers to the "ability" to sell the asset. The decision as to whether the asset is convertible is the responsibility of ministry staff to make based on information provided by the applicant or recipient. The onus rests with the applicant or recipient to provide reasonable documented evidence that the asset could not be sold.

Income Assistance Disability Assistance

Single Couple, and One or Two Parent Families

Family with One PWD Designation

Family with Two PWD Designation

Basic Limits Cash/Savings $5,000 $10,000 $100,000 $200,000 Vehicle One vehicle One vehicle

Registered Savings and Trusts Limits Redeemable RRSP Not Exempt Not Exempt

Non-Redeemable RRSP

Exempt Exempt

RESP No limit/exempt No limit/exempt Non-Discretionary Trusts

Not Exempt Exempt up to $200,000 in contributions

Discretionary Trusts

Exempt in certain narrow circumstances Exempt/no limit

RDSP

Not Applicable

No limit

RDSP Disbursement

All RDSP disbursements are exempt. It’s the client’s responsibility to clearly document that the funds originated directly from an RDSP.

Self-Employment/Business Assets Self-Employment/ Business Asset

For both Income Assistance and Disability Assistance recipients participating in the ministry’s Self-Employment Program

Exempt Assets The following assets are exempt for the purposes of determining the assets of an applicant or recipient, for income assistance or disability assistance

• clothing and necessary household equipment • one motor vehicle generally used for day-to-day transportation needs • a family unit's place of residence


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• money received or to be received from a mortgage on, or an agreement for sale of, the family unit's previous place of residence if the money is either:

o applied to the amount owing on the family unit's current place of residence o used to pay rent for the family unit's current place of residence

• business tools (incl. farming and fishing); seeds; breeding stock; • essential equipment and supplies for farming and commercial fishing • uncashed life insurance policy with a cash surrender value of $,1500 or less • prepaid funeral costs • tax refund, tax credits, child tax credit, BC Early Childhood Tax Benefit • a refundable medical expense supplement • awards under Criminal Compensation, redress payments, settlement payments from

government of Canada and BC • post-adoption assistance payments provided under the Adoption Regulation (BC) • assets exempt under the Self-Employment Program • assets held in asset development accounts • assets held in trust for persons in special care facility or for PWD persons • funds held in a registered education savings plan (RESP) for which a recipient or a dependent

child in a family unit is either a named beneficiary of the RESP, the subscriber to the RESP or both

• a travel supplement provided under the authority of Community Living British Columbia • individual payments dispersed from the BC Institutional Legacy Trust Fund • working income tax benefit, including a disability supplement under the Income Tax Act

eviction compensation payments • funds held in, or money withdrawn from, a Registered Disability Savings Plan (RDSP) • a disabled contributor's child's benefit paid or payable under the Canada Pension Plan • payments granted under an agreement referred to in section 94 of the Child, Family and

Community Service Act; • money that is paid or payable, in respect of a child, from property that comes into the control

of, or is held by, the Public Guardian and Trustee; • money that is paid or payable from a settlement in respect of Treaty No. 8 agricultural benefits; • money that is paid or payable from a settlement under

o the Cadboro Bay Litigation Settlement Agreement, dated for reference November 1, 2017, between the Esquimalt Nation and Canada, or

o the settlement agreement, dated for reference October 30, 2017, between the Songhees Nation and Canada;

• money that is paid or payable under the Memorial Grant Program for First Responders established under the authority of the Department of Public Safety and Emergency Preparedness Act (Canada)

Special Asset Level & Exemption for IA Applicants/Recipients Intending to Apply for PWD

EA Regulation 11(2.1) Despite subsection (2), a family unit that includes an applicant or a recipient who has applied for and has not been denied, or who the minister is satisfied has a genuine intention to apply for, designation as a person with disabilities under section 2 of the Employment and Assistance for Persons with Disabilities Act may receive income assistance, subject to all other eligibility criteria, if the family unit has assets with a total value of no more than

(a) in the case of a family unit that includes one applicant or recipient who has applied for and has not been denied, or who the minister is satisfied has a genuine intention to apply for, designation as a person with disabilities, $100 000, or (b) in the case of a family unit that includes 2 applicants or recipients who have applied for and have not been denied, or who the minister is satisfied have a genuine intention to apply for, designation as a person with disabilities, $200 000.


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If someone who intends to apply for PWD has assets above the allowable limit outlined in Section 11(2.1), a three-month exemption period may be provided for the asset if the person intends to establish an RDSP or contribute the asset to a trust. The exemption period may be extended if the minister is satisfied that the person is making reasonable efforts to establish a registered disability savings plan or trust. [S. 12.1 EAPWD Regulation]. There are specific policies and procedures that Ministry staff must follow if an IA applicant states they intend to apply for PWD with “assets in excess”. MSDPR should provide regular checks on the progress of both the PWD application and steps to establish a trust or RDSP.

Asset-Related Sanctions In addition to the allowable asset limits, an individual may be ineligible of they fail to pursue an available asset OR dispose of their asset incorrectly.

Where an individual disposes of their property for inadequate consideration (i.e. less than the actual or market value), or intentionally disposes their property to reduce their assets, they are ineligible for one calendar month for each $2,000 of the value of the foregone income, asset or other means of support. In the case of recipients or applicants with dependent children, their assistance is reduced during the sanction period. C. TRUSTS FOR PERSONS WITH DISABILITIES Clients with PWD designation and applicants for the PWD designation may have extra costs directly related to or as a result of their disability. In recognition of this, PWD recipients are eligible to retain their benefits when their assets are over their asset limit if they are put into trust for their future use. There are two basic kinds of trusts:

Discretionary Trust: • the trustee has complete authority to decide whether to provide trust funds to the beneficiary,

or to spend trust funds on their behalf • The ministry generally does not consider it to be an asset, provided the beneficiary has no legal

right to end the trust and take the capital. Because such a trust is not considered an asset, there is no limit to the value of assets that can be held in it

• If the beneficiary has a legal right to collapse the trust and gain control of the assets it is deemed a “collapsible discretionary trust”, the ministry considers it an asset

Non-Discretionary Trust:

• the trustee does not have absolute authority over payments of capital and income from the trust. The beneficiary may have some control

• is considered an exempt asset so long as the value of all capital contributions over time does not exceed $200,000.

• Any return on investment generated by the trust can grow the value of the trust • Capital contributions over $200,000 are not exempt as an asset unless approved where the

minister is satisfied that the lifetime disability-related costs of the beneficiary will exceed $200,000


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Tax Free Savings Accounts as Non-Discretionary Trust: A Tax-Free Savings Account (TFSA) is a flexible, registered, general-purpose savings vehicle that allows Canadians to earn tax-free investment income. Some TFSAs carry a declaration of trust or trust agreement that meets the legal definition of a trust and satisfies the Ministry requirements. In these trusts, the financial institution acts as the trustee and the account holder is the beneficiary. There are limits to the amount a person can contribute to a TFSA, but it has the benefit of being easier to establish and manage by the individual. Trust Payments – “Disbursements” Payments from both discretionary and non-discretionary trusts are considered unearned income subject to exemptions. Exemptions apply only to persons with disabilities (PWD) clients, PWD applicants and clients who reside in a private hospital or a special care facility. Trust payments are fully exempt for eligible clients when used for:

• Buying a place of residence for the client, • A contribution to a Registered Education Savings Plan, • A contribution to an RDSP, or • Disability-related costs

Disability-related costs7

Devices, or medical aids, related to improving the person’s health or well-being.

Examples of devices, or medical aids, related to improving the person’s health or well-being include but are not limited to:

• High performance wheelchairs for recreational/leisure or sports use • Vehicle modifications (hand controls, van lifts) • Lift chairs

Caregiver services or other services related to the person’s disability. “Other services related to the person’s disability” is interpreted broadly and includes many services. Examples include but are not limited to:

• Home-maker services • Community Connectors (social network facilitators) • Employment services or supports • Speech therapy • Physiotherapy • Occupational therapy • Behavioural or communication therapy • Applied behavioural analysis • Counselling

Any other item or service that promotes the person’s independence.

“Any other item or service that promotes the person’s independence” is interpreted broadly and is determined by the beneficiary or trustees, not ministry staff.

7 http://www2.gov.bc.ca/gov/content/governments/policies-for-government/bcea-policy-and-procedure-manual/eligibility/trusts


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Transferring assets out of trust could be considered to promote independence.

Education or training

Renovations or changes to the person’s place of residence necessary to accommodate the needs resulting from the person’s disability (not applicable to clients who reside in a special care facility, a private hospital or an extended care unit in a hospital)

Necessary maintenance on the person’s place of residence (not applicable to clients who reside in a special care facility, a private hospital or an extended care unit in a hospital)

Transferring Income or Assets in Trusts If a person receives income (including inheritance, CPP back payments, awards) it is considered income the month it is received. If the money is then put into the trust, it is converted into an exempt asset. If as asset passes directly into the trust, then it is not treated as income in the month it is received.

VII.SUPPLEMENTS A. CRISIS SUPPLEMENT A crisis supplement may be available to provide recipients who face unexpected needs or expenses with a one-time payment to prevent imminent danger to their physical health or the removal of a child under the Child, Family and Community Service Act. Requirements:

• requires the supplement to meet an unexpected expense or obtain an item unexpectedly needed

• unable to meet the expense or obtain the item because there are no resources available • failure to meet the expense or obtain the item will result in imminent danger to the

physical health of any person in the family unit or removal of a child under the Child, Family and Community Service Act

• supplement must not be provided to support an ongoing situation or as a way to provide assistance that is prohibited by other regulatory direction

Limitations:

• may be provided only for the calendar month in which the application or request for the supplement is made.

• may not be provided for the purpose of obtaining a health supplement described in Schedule C or any other health care goods or services.

• A crisis supplement may not be issued to cover a user fee required for landlord/tenant arbitration. The Residential Tenancy office will waive this fee for recipients of BC Employment and Assistance.

Crisis supplements for food, clothing, or shelter are restricted to the following amounts:

• Food – up to $40.00 per person per month


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• Clothing – up to $100 per person per year, or $400 per family or four or more per year • Shelter – restricted to the combined shelter and support rates for the family unit.

Essential Utilities Supplement A crisis supplement for essential utilities may be provided if the requirements for a crisis supplement have been met, and the person is at risk of disconnection because they are behind in payments, or are facing the risk of having no fuel for heating or cooking. A disconnection notice does not have to be issued to receive an essential utilities crisis supplement; however, the Ministry does require documentation confirming the arrears. Ministry policy also makes clear that the BC Hydro Customer Crisis Fund is not considered a resource for the purposes of a crisis supplement.

B. MOVING SUPPLEMENT A supplement to cover necessary moving and transportation may be provided to recipients who have no other resources. Moving supplements are only available under limited circumstances. The recipient is required to obtain prior approval before incurring costs and, only the least expensive appropriate mode of transportation will be paid for.

57 (1) In this section: "living cost" means the cost of accommodation and meals; "moving cost" means the cost of

(a)moving a family unit and the family unit's personal effects from one place to another, and (b)storing the family unit's personal effects while the family unit is moving if the minister is satisfied that storing the personal effects is necessary to preserve the personal effects;

"transportation cost" means the cost of travelling from one place to another (2) Subject to subsections (3) and (4), the minister may provide a supplement to or for a family unit that is eligible for income assistance or hardship assistance to assist with one or more of the following (a) moving costs required to move anywhere in Canada, if a recipient in the family unit is not working but has arranged confirmed employment that would significantly promote the financial independence of the family unit and the recipient is required to move to begin that employment; (b) moving costs required to move to another province or country, if the family unit is required to move to improve its living circumstances; (c) moving costs required to move anywhere in British Columbia because the family unit is being compelled to vacate the family unit's rented residential accommodation for any reason, including the following:

(i)the accommodation is being sold; (ii)the accommodation is being demolished; (iii)the accommodation has been condemned;

(d) moving costs required to move anywhere in British Columbia if the family unit’s shelter costs would be significantly reduced as a result of the move; (e) moving costs required to move anywhere in British Columbia to avoid an imminent threat to the physical safety of any person in the family unit; (f) transportation costs and living costs required to attend a hearing relating to a child protection proceeding under the Child, Family and Community Service Act, if a recipient is given notice of the hearing and is a party to the proceeding. (g) transportation costs, living costs, child care costs and fees resulting from

(i) the required attendance of a recipient in the family unit at a hearing, or (ii) other requirements a recipient in the family unit must fulfil in connection with the exercise of a maintenance right assigned to the minister


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C. SCHEDULE C – HEALTH SUPPLEMENTS MSDPR provides specified health supplements to all recipients of assistance who meet the eligibility criteria for each supplement. General health supplements are provided to specific categories of these recipients who meet the eligibility criteria for each supplement. Recipients must also meet the eligibility criteria for the specific health supplement.

Health Supplements and Programs

Supplement Item Maximum Amount Dental Everyone who receives assistance can access

emergency dental services to relieve pain

Basic dental services, such as restorations, extractions and preventative services. Partial dentures, replacement dentures or reline/re-base of dentures. Crowns and bridges, under certain circumstances. *Only up to the maximum amount per service in the fee schedule

Up to $1,000 over two calendar years, beginning on January 1 of every odd-numbered year

*Child under 19 yrs: $2,000 of basic dental services every two calendar years

Diet supplements Restricted sodium diet $10 per month

Diabetes $35 per month Kidney dialysis $30 per month High protein diet $40 per month, $30 towards blender Gluten-free diet $40 per month Dysphagia $40 per month, $30 towards blender Ketogenic diet (Apr 1/10) $40 per month Phenylalanine diet (Apr 1/10) $40 per month Cystic fibrosis $50 per month

Medical transportation supplement

Travel allowance related to vehicle transportation $0.20 per km Allowance for exceptional cases where circumstances warrant a meal allowance

$4 per meal

Monthly Nutritional Supplement

Dietary items Up to $165 per month Vitamins or minerals Up to $40 per month Clients receiving less than this amount through appeal awards under Schedule C may apply for the monthly nutritional supplement

$205 per month

Natal supplement Single pregnancy or birth $45 per month Multiple pregnancy or birth $90 per month

Optical services Eye exam provided by an optometrist $44.83 Eye exam provided by an ophthalmologist $48.90

Extended Medical Therapies

MSP rate for extensions to acupuncture (April 22, 2008), chiropractic, massage therapy, naturopathy, podiatry and physiotherapy services

$23 per visit

Supplement for alcohol and drug treatment

Per eligible recipient $500 per calendar year


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Medical Services Only (MSO) Designation The Ministry provides Medical Services Only (MSO) coverage to assist former recipients of PPMB and PWD assistance to maintain access to specific health supplements when they no longer qualify for assistance due to income in excess of assistance rates. To receive MSO, a family unit must be no longer eligible for assistance due to receiving one of the following types of income:

If previously received PPMB assistance: • Old age security (OAS)/Guaranteed Income Supplement (GIS) • Crime Victim Assistance • Lump sum payment from CPP class action settlement

If previously received PWD assistance: • Employment income • OAS/GIS, CPP or CPP-D payments • Crime Victim Assistance • Family maintenance payments • Lump sum payment from CPP class action settlement • MCFD’s youth agreement • Persons who were designated MSO under BC Benefits (prior to 2002)

The person must also reside in BC and some categories must meet the income test of $42,000. If you’re working with someone you think qualifies for MSO due to income in excess, contact the Ministry directly to ensure that a person’s file switches to MSO. If you are assisting a client who is approaching 65 years old, but is unlikely to qualify for PWD, see if they may be eligible for PPMB so they can keep their valuable health benefits as a “MSO” recipient. Important Notes on Health Supplements & Equipment

It is important to note that often times the amount of MSDPR coverage available for a specific item or service, such as dental, optometry, medical equipment (orthotics, etc.) will not be sufficient, and individuals will often need to find resources to pay the difference between their coverage and the actual costs. It is therefore very important to do the following before incurring any costs:

1) Verify the eligibility criteria for the service/device 2) Get quote for item or service in question 3) Submit quote/obtain prior approval from the Ministry before incurring the cost/verify

coverage through Health Schedules available through online resource 4) If necessary, shop around to see what providers match MSDPR/MSP rates or verify what

the difference will be


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Following these steps will hopefully avoid being in a situation where the individual is stuck with a bill they cannot afford and which MSDPR will not pay.

VIII.APPEALS A. ADMINISTRATIVE LAW Working with legislation through BCEA Program means you are working in an administrative legal system. Administrative law ensures that government actions are authorized and that laws are implemented and administered in a fair and reasonable manner. Administrative law is based on the principle that government actions must be legal, and that citizens who are affected by unlawful government acts must have effective remedies.

Administrative decision makers must make decisions within their legislative authority that are fair and made in an appropriate way. As a result, decisions made by government staff must be backed by legislation and an appeal system must be defined in order to ensure the fairness of decisions being made. This fairness is defined by the "principles of natural justice which require that:

• Parties hearing the case are impartial and independent of the results of the hearing • The parties hearing the case should not have assisted in the original decision • Both parties have the right to present and hear the case against them • Both sides have the same information available to them about the case • Both parties have the right to question and reply to witnesses or evidence • The party hearing the case makes the decision on the outcome.

All the above elements must be present in the appeal process as this is what ensures a fair process. Administrative tribunals are to be independent of the government and are defined as quasi-judicial and are not as formal as a court hearing. The province's appeal system requires basic principles in administrative hearings. Those principles are:

• Fair and just decisions • Consistency • Timeliness • Finality • Accessibility • Cost-efficiency


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B. APPEAL PROCESS OVERVEIW


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C. RECONSIDERATION REQUEST The first level of appeal of a Ministry decision is to request a reconsideration of that decision. A person who applies for or receives assistance can ask for a reconsideration of a decision that resulted in a refusal, reduction or discontinuance of income or disability assistance, or a supplement; a decision regarding the amount of a supplement; or a decision that refuses to grant hardship assistance. At any time before a request for reconsideration is made, a person may request and must receive copies of all documents and information on which the ministry decision was based. A person requests a reconsideration by obtaining and completing an Employment and Assistance Request for Reconsideration (HR0100). These forms are prepared by EAWs, can be obtained at a local Ministry Office, by phone or through MySelfServe. A separate HR0100 is completed for each decision being reconsidered. The form must specify the Ministry’s decision, the reason for the decision, and the applicable/relevant legislation. A person who wishes to request reconsideration must deliver a completed HR0100 to a local ministry office within 20 business days after the date the person was notified of the decision. If not received within 20 business days the decision is deemed to be accepted. If you need more than 20 days you can request an extension. The ministry must receive the request for extension before the reconsideration decision has been made by submitting the form to the Reconsideration Branch, advising it is not ready for adjudication, and requesting an extension. Extensions are granted from the day they are requested, therefore, depending on the circumstances, it can be advantageous to wait until the deadline provided to request the extension. When an extension is granted, the Ministry’s deadline to adjudicate the reconsideration is also pushed back by 10 business days from their initial adjudication deadline, therefore the extension granted will provide you with up to an additional 20 business to submit the reconsiderations. Extension requests can be sent to the Reconsideration Branch by fax. When submitting the reconsideration package include any new information or evidence in the case you can obtain.


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Sample Reconsideration Submission

Reasons for Request for Reconsideration for Mr. XXXX XXXX

Issue: State what the issue under reconsideration is very briefly. For example, “Mr. XXXX submits that he meets the eligibility criteria for a crisis supplement for shelter pursuant to Section 57 of the Employment and Assistance Regulation (the “Regulation”). As such, he requests that the Ministry reconsider its decision to deny his application for the same”. Relevant Legislation & Legal Considerations: Include the sections of the legislation that are relevant/applicable to the case. Also include any Ministry policies and/or procedures that are relevant in your case. Background Information: In this section set out all of the facts that are legally relevant to the case. List the facts chronologically and number the paragraphs for ease of reference. Include any new information or evidence that the Ministry did not consider or have at the time of the original decision. Reference new evidence and attach it to the submission, for example, letters from doctors/medical assessors, quotes. Submission: Set out the eligibility criteria and explain how the facts/evidence show the client has met the requirements. For example, of a Crisis Supplement…. Unexpected Need Why was the need unexpected? What facts demonstrate client could not have anticipated the need? No Other Resources Available to Meet the Need Explain why they have no other means of meeting the financial need. Failure to Obtain the Item Will Result in Imminent Danger to Physical Health Explain why there is a danger if they do not receive the item/service requested. Ex. telephone will be cut off, but they need the phone to call doctor/ambulance because of medical condition. Conclusion: Summarize very briefly, for example: “In conclusion, it is respectfully submitted that Mr. XXXX meets the eligibility criteria for a crisis supplement for shelter pursuant to Section 57 of the Regulation for reasons A, B, and C, we therefore respectfully request that he be provided a crisis supplement for the same”


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Submitted by, ADVOCATE D. EMPLOYMENT & ASSISTANCE APPEAL TRIBUNAL If your case is unsuccessful at reconsideration, the next step is to consider an appeal of the decision. Clients have 7 business days from the date they received the Ministry’s decision to submit a Notice of Appeal Form to The Employment and Assistance Appeal Tribunal (EAAT). The EAAT is the body which reviews MSDPR decisions. Section 81 of the Regulation (and s. 73 of the PWD Regulation) sets out decisions which are not appealable. The EAAT panel decides whether the ministry’s decision was:

• Reasonably supported by the evidence; or • A reasonable application of the legislation given the circumstances of the

recipient/applicant When submitting the Notice of Appeal you have the option of indicating what form of hearing you would like: oral (in person or over phone) or in writing. The Hearing will be set within 15 business days of the Tribunal receiving the Notice of Appeal. The hearings themselves are informal, with parties often referring to each other by their first names. A representative from the Ministry will present their case. Typically, this involves reading the Reconsideration Decision aloud and answering any questions from the Panel. The Panel must make a decision within 5 business days of the hearing. The Panel has 5 days to communicate the decision to the EAAT, at which point the decision is mailed to the appellant. Under Ministry policy, when the Tribunal rescinds the Ministry’s reconsideration decision, the effective date of eligibility is dependent on the type of assistance applied for. Some are retroactive to the date of the Reconsideration decision, others effective the first of the month following the Reconsideration decision. Adjournments

If a Hearing Date is set, you can request an adjournment by completing an Adjournment Request Form available on the EAAT website. Generally the Tribunal is quite flexible in accommodating adjournment requests; however, the Ministry will also be consulted whether they consent or refuse the request. Additional Evidence at Hearing

If since the time of the Reconsideration you obtain or become aware of other evidence which will help your case, you may include it in your submission. The appeal panel may admit information to a hearing that it considers relevant, necessary and appropriate. It may also


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consider evidence that is not part of the appeal record, if it considers the evidence is reasonably required for a full and fair disclosure of all matters related to the decision under appeal. The appeal panel may exclude anything unduly repetitious and any evidence that would be inadmissible in court because of a privilege under the law of evidence.

Sample Tribunal Submission

EAAT Guidelines for Members – Considering New Evidencehttp://eaat.ca/view.asp?ccid=608 The Legislation Section 22(4) of the Employment and Assistance Act (the “Act”) states that “a panel may consider evidence that is not part of the record as the panel considers is reasonably required for a full and fair disclosure of all matters related to the decision under appeal.” This new section 22(4) broadens the scope of new evidence the Tribunal may admit from the previous wording of the legislation which only permitted new evidence to be admitted if it was in support of evidence contained in the appeal record. When new evidence is admitted, the appeal is not strictly a review on the record below but rather a review on the basis of all admissible evidence. Accordingly, instead of asking whether the decision under appeal was reasonable at the time it was made, panels should ask themselves whether the decision under appeal was reasonable based on all admissible evidence, including any new evidence admitted under s. 22(4) of the Act. Examples of New Evidence What new evidence might be reasonably required for a full and fair disclosure of all matters related to the decision under appeal? Generally speaking, new evidence will meet this test if it is relevant to the issue(s) on appeal. This includes evidence that may contradict evidence in the appeal record. Evidence that is not relevant to the issue is inadmissible. Determining what is relevant depends on the facts of each case and the particular issue(s) on appeal. Example 1: The issue on appeal is whether the ministry reasonably denied the appellant’s application for a crisis supplement for a winter jacket. The Appellant had submitted copies of bank records showing a deficit balance and personal submissions explaining why they could not afford a new jacket without the assistance and explaining that their old jacket had deteriorated to the point it could no longer be worn. In the reconsideration decision the Ministry stated that the bank records did not show the Appellant’s monthly assistance cheque and held that accordingly, the Appellant had other funds available and did not meet the test for the crisis supplement. At the hearing the Appellant, brought in a letter from the Appellant’s landlord indicating that the Appellant’s rent was always paid in cash and was the total amount of the Appellant’s monthly social assistance. This new evidence ought to be admitted as new evidence as it is directly related to a fact at issue in the appeal (i.e., Did the Appellant have other resources?) Example 2: Using the same fact pattern as above, instead of the letter from the landlord, the Appellant brings to the hearing a letter from their doctor, which diagnoses the Appellant with epilepsy and states that the Appellant has a medical condition that requires accommodation. This new evidence ought not to be admitted as it is not related to a fact at issue in the appeal and is instead an entirely different issue that was not considered in the reconsideration decision.


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A submission to the Tribunal is similar to a Reconsideration submission, with the exeption being the ground of appeal is the reasonableness of the Ministry’s decision. A overview might look as follows:

BEFORE THE BRITISH COLUMBIA EMPLOYMENT AND ASSISTANCE APPEAL TRIBUNAL

IN THE MATTER of the Employment and Assistance for Persons with Disabilities Act

BETWEEN:

XXXX XXXX APPELLANT

MINISTRY OF SOCIAL DEVELOPMENT

RESPONDENT

APPELLANTS’ WRITTEN SUBMISSION

Overview: You want to identify the issue of the dispute or what the tribunal looking at. The Tribunal’s scope is determining whether the ministry was “reasonable” in applying the legislation, based on the evidence before them at the time the original or reconsideration decision was made. Consequently, you want to identify clearly what was unreasonable. Legislation: You want to include all applicable legislation pertaining to the matter. If you believe there is other legislation that needs to be looked at that the ministry did not include in the decision you should include this as well. Relevant Facts: At this point you give the history leading up to the tribunal. This may include circumstances leading to a request or the events of the appeal to this point. Submission: This is to forum where you present your evidence and arguments on the issue. You will want to include all factual information you want the panel to hear or review as well as circumstances, arguments or cases that support your position or interpretation of legislation. You will also need to draw a connectiong between the evidence and why the Minsitry’s decision was unreasonable. If you have new information this will be the time to make argument why it sould be accepted as information in support vrs “new evidence”. You should also highlight relevant principles of statutory interpretation that should be applied in the case, principles of natural justice/administrative fairness which were not followed by the Ministry, caselaw in support of your position. Conclusion:


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This is the highlights of your case, the strong points you want the tribunal to remember or consider when making their decision and where you specifically ask the tribunal panel to rescind the ministry’s decision. Remember, the target is “reasonableness”! Attachments: Exhibits - Evidence referred to in your package. E. JUDICIAL REVIEW The Tribunal decision is final; however, you can file a petition in the BC Supreme Court asking a judge to review it. This is called a judicial review. Generally this must be done within 60 days of the Tribunal’s decision. As well, if you believe you were treated unfairly by the ministry or the Tribunal, you can contact the Office of the Ombudsperson. The Community Legal Assistance Society (CLAS) has an excellent resource on Judicial Reviews: http://www.clasbc.net/judicial_review_guide


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IX.RESOURCES BC EMPLOYMENT & ASSISTANCE POLICY AND PROCEDURE MANUAL http://www2.gov.bc.ca/gov/content/governments/policies-for-government/bcea-policy-and-procedure-manual


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MSDPR – POLICY: INDIVIDUAL CASE MANAGEMENT http://www2.gov.bc.ca/gov/content/governments/policies-for-government/bcea-policy-and-procedure-manual/case-administration/individual-case-management Duty to Accommodate – Policy: Effective: October 3, 2016 The British Columbia Human Rights Code (the Code) protects British Columbians from discrimination. The Code prevails over ministry policy and practice, as well as other legislation. The ministry is committed to providing an environment that is inclusive and does not discriminate on the basis of race, colour, ancestry, place of origin, religion, marital or family status, physical or mental disability, sex, sexual orientation, age (19 years and over), or other grounds protected under the Code. Discrimination is contrary to the standards and values of the ministry. The ministry strives to abide by the Code in all activities and in particular the provision of services to clients. The ministry is committed to providing accommodation to clients for needs related to the grounds protected under the Code (for example, accommodating the needs of a client with disabilities). Through its staff, the ministry has a legal duty to accommodate individual needs to the point of undue hardship where the need is based on a protected ground in the Code, as is consistent with current human rights law. Undue hardship in this context means the ministry may be excused from this obligation only where it has a reasonable justification, made in good faith, for not accommodating an individual’s needs. Generally speaking, issues of cost, administrative difficulty or inconvenience will not be sufficient to excuse the ministry’s duty to accommodate the individual needs. Staff must review each case individually to determine the appropriate accommodation, which may vary depending on the individual circumstances. The nature and extent of the accommodation will depend on the particular circumstances in which the need arises. To facilitate a need for accommodation, both the client in need of accommodation and the ministry have a shared responsibility to work together towards reasonable solutions. However, the ministry recognizes that some clients may not expressly communicate the need for accommodation or may not want to self‑identify. Staff must be proactive and make reasonable inquiries in determining whether it may be appropriate to offer accommodation. The ministry’s duty to accommodate is at all points of contact with an applicant or recipient. For example, from assisting an applicant to complete the Application for Assistance to assisting with requests for crisis supplements or applying for the Persons with Disabilities designation. Duty to Accommodate – Procedures: Effective: October 18, 2018 The ministry is committed to providing accommodation to clients for needs related to the grounds protected under the Human Rights Code. These procedures assist staff when working with clients who may be in need of or have requested an accommodation. Although in many cases the ministry may do so, the ministry’s duty to accommodate does not mean that it must necessarily adopt the specific accommodation requested by the client. The manner in which the client’s request can be accommodated will be determined through discussions between the ministry and the client. The parties


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must work together to reach a reasonable solution or accommodation. Staff should consult their supervisor if they require guidance. If a supervisor requires policy related guidance, they should consult their Policy and Program Implementation Manager. If it is service quality related, they should consult their Manager of Community Relations and Service Quality. Duty to accommodate can take many forms. Staff must review each case individually to determine the appropriate accommodation, which may vary depending on the individual circumstances. Once an accommodation has been agreed upon, the ministry will create a duty to accommodate alert. These alerts can be amended and removed at any point, based on the client’s individual accommodation needs. Certain accommodations may be more common for people with certain disabilities, for example:

• Physical o Client uses a wheelchair and requests contact be through MySelfServe or phone to

avoid travel to local office • Mental Health

o Client requests all information or requests be provided in writing. o Client has Consent to Disclosure of Information – Service Authorization on file for

Canadian Mental Health Association o Client may request additional time and help gathering required documents o Client requests information to be provided verbally, please use phone rather than

MySelfServe messages o Client requests in-person help completing monthly reports

• Deaf and Hard of Hearing o Client requests communication through MySelfServe. If phone or in-person client

requests ASL interpreter. • Cognitive

o Client requires all communication to be through (caregiver/parent/advocate/trustee) as per (ROI/POA/Representation Agreement/Trust Agreement)

o Client requests in-person help completing monthly reports • Visual

o Client requests in-person help completing monthly reports o Client requests contact by phone, including help reading ministry correspondence

• Client requests to be called by (name) and/or client requests to be referred by (pronoun). The duty to accommodate may include but is not limited to the following: Providing information or requests in writing When required or requested by a client whose need arises from a protected ground under the Code, staff will accommodate the client’s request to provide information or requests in writing. For example, a client who has difficulty remembering or is confused by verbal information because of a mental disability may require or request that information or requests sent by the ministry be provided in writing. Staff will accommodate this need. Obtaining documents Staff may assist the client in obtaining documents where the client requires assistance. While it is a client’s responsibility to provide all information and documents necessary to demonstrate eligibility for assistance, the duty to accommodate may require staff to assist a client with disabilities or


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those with language barriers to obtain and provide required information, or provide clients with additional time to provide information, or both. Interpretation services For clients who do not comprehend or communicate through written or spoken English, the ministry provides access to interpretation services by telephone and on a case by case basis, in person. Designated worker When requested by the client, ministry staff may assign a designated worker to the client. Staff assess whether a designated worker is appropriate to meet the unique needs of the client. Staff may also identify a client with challenges or unique needs and proactively assign a designated worker on behalf of a client. Clients who receive a designated worker may need to contact the designated worker by telephone. To ensure clients have accessibility to the designated worker by telephone, staff may:

• give their phone number to the client if they have a direct line; • advise the client to leave a message asking for their designated worker to call them back when

they dial the 1-866 number; or • announce the client’s name to the designated worker before transferring the call when client

asks for their designated worker. Documenting Consents Clients may authorize the ministry to disclose information to a third party or authorize a third party to start certain services on their behalf. Staff document the consent on the client case. Some clients, advocates, or legal representatives may wish that the consent, a representation agreement or power of attorney be highlighted on their case. Staff will accommodate that request by creating a duty to accommodate alert with the information. [For more information on consents, see Related Links – Information Privacy and Security (FOIPPA).]


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MSDPR COMMUNITY RELATION SERVICE QUALITY MANAGERS – CONTACT INFORMATION

COMMUNITY RELATIONS AND SERVICE QUALITY (CRSQ) MANAGER CONTACT LIST

(March 18, 2021)


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General Supplements & Programs Rate Table Effective: August 1, 2020

Supplement Item Maximum Amount

Bus pass fees

Annual fee for:

• persons who are receiving federal Old Age Security (OAS) and the Guaranteed Income Supplement (GIS)

• persons aged 65 and older who meet all of the eligibility requirements for the GIS except the 10-year residency requirement

• persons aged 60 and over who are receiving the federal Spouse’s Allowance to OAS

• persons aged 60 or older who are receiving income assistance

• persons aged 60 or older who live on a First Nations reserve and receive income assistance from the band office

• a spouse of a person who has a PWD designation : o is aged 60 and over who are receiving disability

assistance. o Receives federal Spouse’s Allowance to OAS or

GIS o Is 65 years of age or older who meets all the

eligibility requirements for GIS except the 10 year residency requirement

Note: No Annual fee for applicants and recipients with the PWD Designation.

Note: For recipients with the PWD designation who are receiving disability assistance that turn 65 years of age, their eligibility for the bus pass is transitioned to a bus pass under the Senior’s Bus Pass Program. In the year they transition there is no fee.

$45

Replacement fee for:

All client categories

• First lost pass:$10 • Second lost pass:$20 • Third lost pass: $50

Christmas supplement

Single person with no dependent children $35 per calendar year

Childless couple $70 per calendar year

Either single- or two-parent family with dependent children $70 per calendar year plus $10 for each dependent child


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Community volunteer supplement (applications closed)

Per eligible recipient Up to $100 per calendar month

Co-op share purchase supplement

Lump sum Limited to the smaller of following:

• $850 • 50% of cost of membership shares

Crisis supplement

Food Up to $40 per person per month

Clothing

Up to:

• $100 per person per year • $400 per family of four or more

per year

Shelter

Restricted to the actual cost up to the maximum combined shelter and support rates, as shown in Rate Table: Income Assistance, Disability Assistance or Hardship Assistance, plus the following actual amounts that the family unit is eligible to receive:

• Shared Parenting Assistance • Pre-Natal Shelter Supplement • CIC Temp Absence Assistance • Deceased Adjustment Supplement

Child benefits top-up supplement1

First Child • *$206.17 per calendar month

Second Child • *$182.42 per calendar month

Third and each additional child • *$173.50 per calendar month

Funeral costs

Funeral provider's basic service fee • Up to $1285

Other items or services fee • Up to $815

Transportation fee • Kilometres 0 to 32: Included in

funeral provider's basic service fee • Kilometres 33 to 82: $1.00 per km


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• Kilometres 83 to 182: $0.90 per km

• Kilometres above 182: $0.60 per km

Cost of urn • Up to $200

Guide animal supplement

Per eligible recipient or dependant $95 per calendar month

School start-up supplement

Child aged 5 to 11 $100 per calendar year

Child aged 12 and over $175 per calendar year

Transportation Supplement

Per eligible adult recipient $52 per calendar month

Transportation to Residential Alcohol and Drug Treatment Facility Supplement

Travel allowance related to vehicle transportation $0.20 per kilometre

Allowance for exceptional cases where circumstances warrant a meal

$4 per meal

Travel supplement

Per eligible adult recipient Up to $46 per calendar month

Transitional Transportation Support

Per eligible adult recipient

[See Transportation Supplement – Policy]

$52 per calendar month


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RECONSIDERATION AND APPEAL TIMETABLE EMPLOYMENT AND ASSISTANCE ACT and EMPLOYMENT AND ASSISTANCE FOR PERSONS

WITH DISABILITIES ACT Originally Prepared by Prepared by Allan A. Parker, Barrister and Solicitor, May 2003

ACTION TIME LIMIT STEPS TO TAKE THE ACTION REFERENCE

1 You may ask MSDPR to reconsider a decision that comes within the provisions of EAA s. 17(1) or EAPDA s. 16(1)1

Within 20 “business days” after you are notified of a decision2

1. complete a request for reconsideration in the specified form3

2. deliver the form to the MSDPR office where you are applying or receiving assistance4

EAA s. 1; EAA Reg s. 79; EAPDA s. 1; EAPDA Reg s. 71; Interpretation Act ss. 25, 29

2 MSDPR must respond to a reconsideration request

Within 10 business days after receiving the reconsideration request

1. MSDPR must reconsider the request

2. MSDPR must mail a written determination to the person requesting the reconsideration

EAA Reg s. 80; EAPDA Reg s. 72

3 You may appeal a reconsideration decision to the Employment and Assistance Appeal Tribunal (“EAAT”) 5

Within 7 business days of the date that you receive notice of MSDPR’s reconsideration decision

1. complete an appeal form as specified by MSDPR

2. submit the form to the chair of the tribunal6

EAA s. 21; EAPDA s. 16

4 The EAAT must hold an appeal hearing in response to the appeal request

Within 15 business days after the appeal form has been delivered to the EAAT7

1. chair of tribunal arranges the hearing, including date, time, location

2. chair of tribunal appoints panel members, including panel chair

EAA Reg s. 84

EAA, subs. 22(1) and (2)

5 The EAAT must notify the parties of the date, time, and location of the hearing

At least 2 business days before the hearing date8

See Action EAA Reg s. 85(2); EAPDA s. 16

6 a. The panel must provide its decision to the chair of the EAAT9; and

b. The panel must send to the chair of the EAAT all documents submitted to the panel

a. Within 5 business days of the conclusion of the hearing10; and

b. Within 5 business days after the panel makes its determination

See Action a. EAA Reg s. 87(2)

b. EAA Reg s. 86(f)

7 The EAAT chair must mail a copy of the panel decision to all parties

Within 5 business days of receiving the panel decision

See Action EAAR, s. 87(6)


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1 In a few instances, a decision cannot be reconsidered either because the decision does not come within the definition of what can be appealed or because the decision is specifically excluded from reconsideration under EAA s. 17(1)(d) or EAPDA s. 16(1)(d). In such situations, you may be able to ask for an Administrative Review. The BC Employment and Assistance Manual, at s. 12.2, has information on Administrative Reviews: http://www.MSDPR.gov.bc.ca/PUBLICAT/VOL1/Part12/12-2.htm 2 There is no provision for any extensions on this time limit. “Business days” is defined in EAA, s. 1 and EAPDA, s. 1 as meaning “a day other than Saturday or a holiday”. “Holiday” is defined in the Interpretation Act, s. 29 as including all Sundays, ten yearly statutory holidays (e.g., Christmas Day), and any other day specified by the Legislature or the federal Parliament. In counting days, the date of the action (e.g., the day you were notified of the decision) is not counted, but the final day is counted as the last day for the action. When the last day in the count does not fall on a business day (e.g., if it falls on a Sunday, or a holiday Monday) the last day is the next business day. 3 CAUTION: Be clear about what action must actually be done. For you to deliver notices, it usually means ensuring timely delivery to an office address; for some actions by MSDPR and the EAAT the action required is mailing, and so actual delivery through receipt or notification to you may come a few days later. 4 Delivery can be “by leaving it with an employee in the ministry office” or by it “being received through the mail at that office” CAUTION: If you are intending to mail the form ensure that you leave enough time for delivery; it would be a good idea to use certified mail so that you have proof of the date of delivery 5 A few reconsideration decisions are not subject to appeal to the EAAT – see EAA s. 17(3). 6 Neither the Acts nor the Regulations specify how delivery is to be made. The EAAT Chair has advised they accept delivery by fax, and the BC Employment and Assistance Manual, s. 12.1 provides that a client can “deliver the notice to the local ministry office” and that it then “should be immediately sent to the Appeal Tribunal office”. 7 The time for a hearing can be extended if the chair of the EAAT and all the parties consent to the extension: EAA Reg s. 85(2). 8 Under terms of the Interpretation Act, s. 25(4) this means at least two “clear” business days. EXAMPLE: You receive notice of the hearing on a Tuesday morning; the notice should be for no earlier than a hearing on Friday morning. There is nothing in the legislation dealing with how the parties are to be contacted. There is currently no policy about whether advocates can be the alternate contact for an appellant. 9 The decision must be in a specified form, and must contain certain basic information including a summary of the issues and facts, reasons for the decision, and a specific outcome of the appeal: EAA Reg s. 87(1). 10 The chair of the EAAT can extend the 5 day time limit for the panel to provide their decision, for no more than 10 additional days, in the discretion of the EAAT chair: EAA Reg s. 87(3).


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Presented by Thea McDonagh of Together Against Poverty Society (TAPS)


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§ Introduction

§ Ministry of Social Development & Poverty Reduction

§ Application For Income Assistance

§ Barriers To Eligibility For Income Assistance

§ Categories & Rates of Assistance

§ Living Arrangements & Dependency

§ Income & Assets

§ Supplements

§ Appeals


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Tenant AdvocacyIncome Assistance Advocacy Volunteer Disability Advocacy

Employment Standards AdvocacyLitigation Project

Public Legal EducationIncome Tax Preparation

Largest anti-poverty group on Vancouver IslandIndividualized & Systemic Advocacy


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Income Assistance or “Welfare”§ BC Employment and Assistance Program (BCEA)

The BCEA program “assists British Columbians by helping people move from income assistance to sustainable employment, and by providing income assistance to those who are unable to fully participate in the workforce.”

Legislative Authority§ Employment and Assistance Act & Regulation§ Employment and Assistance for Persons with Disabilities Act &

Regulation§ MSDPR Policy & Procedures …. Remember policy is not law§ Also: Interpretation Act, BC Human Rights Code


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§ Employment before assistance

§ A work-first approach

§ Personal responsibility

§ Active participation

The BCEA is the payor of last resort. Applicants must pursue all other sources of available income and be actively pursuing employment as a condition of continued eligibility.


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Service Delivery§ Provincial Contact Centre

§ Intake & General Supplements

§ Local Office Services & Outreach

§ Health and Specialized Services Branch

§ Prevention and Loss Management Services

§ Engagement, Partnerships & Strategic Initiatives (includes regional CRSQ Managers)


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' 1-866-866-0800

§ Ombudsperson Investigations§ ACE line - [email protected]§ Local Supervisors, Assistant Supervisors & Outreach§ MSDPR Community Relations & Service Quality Managers

§ [email protected] 604-760-4471 (Lower Mainland)

§ Contact Centre, Specialized Services, [email protected] 250 507-4502 (Vancouver Island)

§ CRSQ Issues Support [email protected] 604-999-6476 (Interior and Northern BC)

§ Specialized [email protected] 250-961-5501 (Interior and Northern)

§ Senior Manager, Stakeholder Relations Ann Evans Locker: 250 896-3323


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Exemptions - s. 4.1(4) of the Regulation:§ cannot legally work in Canada § is 65 years or older§ Has a physical or mental condition precluding employment

search§ is fleeing an abusive spouse or relative§ sole applicant with dependent child under 3 years old§ is applying for Medical Services Only (MSO)


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Applicants who are in immediate need of assistance may be eligible for an “Immediate Needs Assessment”. Applicants are considered in immediate need if they have:§ An immediate need for food

§ The availability of food banks does not negate this need

§ An immediate shelter need§ Including impending eviction, utility disconnect, lack of suitable

housing. Availability of shelters does not negate this need.

§ An immediate need for urgent medical attention§ Including prescriptions, medical supplies, needing medical

transportation


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Exempt from:§ Work search requirement§ Employment Obligations § Some citizenship requirements§ Eligibility decision is expedited

Requirements:§ No verification of violence necessary, disclosure sufficient§ Immediate safety needs of the client and any dependent children are

met§ Not limited to physical violence


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MSDPR defines homelessness as:§ Living in public spaces or shelters for more than 30 days§ Brought to MSDPR by BC Housing Outreach

§ Same day service

§ Homeless indicator set

§ Employment plans


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What is the “duty”?

§ Equal treatment ≠ Equity§ MSDPR “Individualized Case Management Policy”§ To the point of undue hardship

What can you do as an Advocate?

§ Work together with client to identify need

§ Request accommodation – specifics help

§ New “accommodation alert” on client files


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Eligibility Criteria§ Identity Established

§ Citizenship Requirements§ Resident of BC

§ No Warrants§ Dependency Relationships

§ No Full-time Students§ Other Income First

§ Asset levels§ Employment Obligations

§ Information Provided

§ Literacy

§ Accessibility§ Physical§ Technological

§ Capacity/Cognitive Barriers

Other Barriers


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Requirements§ a Canadian citizen§ a permanent resident§ a protected person (Convention refugee or person in need of

protection)§ in Canada on a Temporary Resident Permit§ a refugee claimant § under a removal order that has been stayed or cannot be executed§ a dependent child

Exemptions. 7.1 very limited exception, rarely applicable


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Requirement§ Outstanding warrant under Immigration & Refugee Protection Act or

offence prosecuted by indictment§ In practice captures even minor offenses

Exceptions§ Remaining family members still eligible§ 18 or under, pregnant, or end-stage disease

Repayable Assistance if undue hardship AND dealing with warrant.

Transportation Assistance to help address warrant


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Requirement§ all employable clients are required to comply with an EP as a

condition of their eligibility § EP requirement only waived for clients with a physical or mental

condition that precludes them§ S. 29 of the Regulation provides list of recipients without

employment obligations§ Decisions regarding conditions of an EP cannot be appealed but

may be reconsidered§ Ministry can apply sanctions if employment obligations not met


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Rosie and Tom


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Requirement:S. 10: Information & VerificationS. 11: Reporting Obligations

Consequence: § Ineligibility or reduction

Section 10 “Compliance Review” How Can you Advocate?§ Duty to Accommodate

§ Overpayment Calculations/Challenges

“Verification must balance the ministry obligation to verify a client’s circumstances in order to assess their eligibility with a commitment to respecting the client’s right to privacy and to be treated with respect and dignity”


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At a glance…

§ Hardship Assistance

§ Regular Assistance

§ Persons With Persistent Multiple Barriers to Employment (PPMB)

§ Persons With Disabilities (PWD)


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Support Allowance

§ Food§ Transportation§ Clothing§ Non-eligible Medical

Expenses§ Other Expenses

§ Personal Hygiene§ Debt Repayment

Shelter Allowance

§ Rent/Mortgage§ Strata Fees§ House Insurance§ Property Tax§ Fuel § Hydro§ Water§ Landline phone§ Garbage Disposal


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Awaiting EI BenefitsAwaiting Other IncomeAssets in Excess only for families w dependent children

Strike/LockoutIncome in Excess only for families w dependent children

Immediate Need – Work Search RequiredSponsorship Undertaking DefaultIdentity Not EstablishedSIN Required

Many types of hardship are repayable, meaning someone must agree in writing to repay the amount provided before hardship is issued


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Employable§ EP = Employment Program or Independent Work Search§ Basic Medical & Emergency Dental§ $500 Earnings Exemption

Expected to Work – Medical Condition§ Temporary medical condition obstructs, impedes or prevents participation

in employment§ EP = Mandatory activities to improve employability

All Family Units with a dependent child§ $750 Earnings Exemption

All Family Units with Disabled Child§ Unable to work more than 30hrs/wk due to child caregiving§ $900 Earnings Exemption

No Employment Obligations§ Employable, but temporary exemption from employment obligations


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Eligibility Criteria§ Health Condition

§ Lasted for > 1 year§ Likely to continue for > 2 years§ Seriously impedes ability to workPLUS§ One additional barrier

Eligible For§ Increased assistance rate§ Schedule C Health Benefits … MSO eligible§ $900 Earnings Exemption


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Eligibility Criteria§ 18+

§ Minister is satisfied the condition is severe

§ Medical Practitioner/Assessor’s opinion§ Duration: 2 years or more§ Directly & significantly restricts ADLs continuously or periodically for

extended periods§ Requires assistance due to restrictions

Eligible for§ Increased Assistance rate§ Schedule C Health Benefits and MSO§ Transportation Support Allowance/bus pass§ Earnings Exemption $15,000/year

Prescribed Class – applicants enrolled in BC PharmaCare Plan P, MCFD At Home Program, CLBC, or CPP-D


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Room & Board Situations§ Common areas shared with the landlord AND meals provided§ Not necessarily a good deal…

Renting § Verification not limited to tenancy agreement or shelter form§ Should not be denied because verification provided by someone other

than the landlord or registered property owner.

Homeowners§ Actual costs of repairs if pre-approved


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Dependency ScenarioArwen


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Co-Habitation & DependencyThe Act defines as spouses as:

Meaning of "spouse"1.1 (1) Two persons are spouses of each other for the purposes of this Act if

(a) they are married to each other,(b) they declare to the minister that they are in a marriage-like relationship, or(c) they have resided together for at least the previous 12 consecutive months and the minister is satisfied that the relationship demonstrates

(i) financial dependence or interdependence, and(ii) social and familial interdependence



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Earned Income§ Any money or value received from

§ Employment§ Refunded Pension Plan Contributions§ Rental of Rooms or Boarders

Unearned Income§ Everything else


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Schedule B s. 1(a)§ Income earned by a dependent child

attending F/t school

§ BC Early Childhood Tax, Benefit Basic Child Tax, GST Credit, Income Tax Return

§ Universal Child Care Benefit

§ Redress & Criminal Injury Payments

§ Rent Subsidies

§ Money from RDSP

§ Child Support

§ CPP Orphan’s benefit

§ CPP Disabled contributor’s child benefit

Schedule B s. 7 (unearned income)

§ interest from a mortgage on/agreement for sale of previous place of residence if interest is for the amount owing on the purchase or rental of current residence

§ $50 of monthly Federal Department of Veterans Affairs benefits

§ criminal injury compensation award or other award, except the amount that would cause assets to exceed limit

§ Maternity and parental benefits, or special benefits for parents of critically ill children paid under the Employment Insurance Act


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Loans§ Cash loan neither earned nor unearned income. When received

is an non-exempt cash asset. If no repayment terms at time of loan then it is considered a gift.

Gifts

§ Unearned income§ IA – non-recurring gifts are exempt§ PWD – all gifts exempt


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§ Cash§ Equity in property§ Equity in investments or other financial instruments§ Equity in trust where recipient has control over

disbursements

Assets are only assets if they can be converted into cash. “Convert” refers to the “ability” to sell the asset. Whether it is convertible is the responsibility of MSDPR staff to decide. The onus is on the applicant/recipient to provide documentation that the asset could not be sold.


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Income Assistance Disability Assistance

Single Couple, and One or Two Parent families

*Family Unit with One PWD Designation

Family Unit with Two PWD Designations1

Basic Limits

Cash/Savings $5,000 $10,000 *$100,000 *$200,000

Vehicle *Exempt: One vehicle used for day to day transportation needs *Exempt: One vehicle used for day to day transportation needs

Registered Savings and Trusts Limits

Redeemable RRSP Same treatment as cash/savings. Basic limits apply (see above) Same treatment as cash/savings. Basic limits apply (see above)

Non-Redeemable RRSP Exempt – see Assets & Exemptions Exempt – see Assets & Exemptions

RESP Exempt/No limit Exempt/No limit

Trusts Trust asset limits only apply to individuals on IA if they are receiving accommodation or care in a private hospital or a special care facility

Non-Discretionary: $200,000 *contributionDiscretionary: No limit

Trust Withdraw See Trusts

RDSP

Not Applicable

No limit

RDSP *PaymentRDSP disbursement is exempt even if it is converted to a non-exempt asset. It is the client’s responsibility to clearly document that the funds originated directly from an RDSP.

Self-Employment/Business Assets

Self-Employment/ Business Asset

For both Income Assistance and Disability Assistance recipients participating in the ministry’s Self-Employment Program, please see the policy Self-Employment Program for PPMB and PWD


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https://www2.gov.bc.ca/gov/content/governments/policies-for-government/bcea-policy-and-procedure-manual/eligibility/assets-and-exemptions

https://www2.gov.bc.ca/gov/content/governments/policies-for-government/bcea-policy-and-procedure-manual/eligibility/assets-and-exemptions

https://www2.gov.bc.ca/gov/content/governments/policies-for-government/bcea-policy-and-procedure-manual/eligibility/trusts

https://www2.gov.bc.ca/gov/content/governments/policies-for-government/bcea-policy-and-procedure-manual/eppe/self-employment-program-sep-for-ppmb-and-pwd

§ Clothing, necessary household items§ One motor vehicle § Place of residence§ Money received from mortgage on or agreement of sale of place

of residence if:§ Applied to amount owing on current place of residence§ Used to pay rent for current place of residence

§ Uncashed Life Insurance Policy (max $1,500)§ Tax refund, tax credit, child tax credit, BC Early Childhood tax§ RDSP§ Redress & Criminal Injury compensation payments


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Income/Assets ScenarioGimli


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Eligibility

§ Discretionary Trusts

§ Non-Discretionary Trusts

§ TFSA (if governed by trust agreement)

§ Temporary asset exemption available for applicants who are over the asset limit

Disbursements

§ Buying a place of residence for the client,

§ A contribution to a Registered Education Savings Plan,

§ A contribution to an RDSP, or

§ Disability-related costs§ devices/medical airs§ caregiver & other services§ education and training§ renovations/maintenance § any other item or services that

promotes independence


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Crisis Supplement§ Unexpected Need

§ No Resources

§ Imminent Danger or Removal of Child

Health Supplements§ Schedule C – must meet health

supplements general criteria & specific item criteria

§ MSO

§ Moving Supplements§ Confirmed employment

§ Reduced shelter costs

§ Improved living circumstances

§ Compelled to vacate

§ Imminent threat

§ Child protection hearing

§ Maintenance order


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Denied, Reduced or Discontinued Assistance or

Benefits

Request for Reconsideration

• Due 20 days from date informed of decision

Reconsideration Branch

• 10 days to review evidence and make decision

Employment & Assistance Appeal

Tribunal• Notice due 7 days from

receipt of MSDPR decision

Tribunal Hearing

• Set within 15 days• Oral or written

Tribunal Decision

• Made within 5 days• Uphold or rescind

MSDSI’s decision

Judicial Review

• Provincial Court


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Principles of Administrative Fairness

§ Fair and just decisions§ Consistency§ Timeliness§ Finality§ Accessibility§ Cost-efficiency

Principles of Natural Justice

§ Impartial and independent of the results of the hearing

§ Not have assisted in the original decision

§ Right to present and hear the case against them

§ Same information available to the parties about the case

§ Right to question and reply to witnesses or evidence

§ Hearing the case makes the decision on the outcome


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Timelines§ 20 business days from date informed of MSDPR decision§ Extension of “10 business days” from MSDPR adjudication deadline

What to Include§ Argument/Submission

§ Applicable Legislation, MSDPR Policy & Procedures§ Facts/Background§ Argument§ Legal Considerations: Principles of Statutory Interpretation

§ ALL relevant Information & Evidence


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Timelines§ 7 business days to file Notice of Appeal after receiving

Reconsideration decision§ Hearing set within 15 business days§ Decision made within 5 business days of Hearing

What to Include?Was the MSDPR’s decision:

§ Reasonably supported by the evidence; or§ A reasonable application of the legislation given the circumstances of

the recipient/applicant§ All relevant evidence (including new evidence)


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*Updated May 2021

Assistance Classifications, Rates, and BenefitsClassification Monthly Benefits (Single person) Medical Benefits Other

Shelter Support TotalEmployable $375 $560 $935 Pharmacare deductible

covered, diet and natal supplements, emergency dental

Earnings exemption: $500

PPMB $375 $607.92 $982.92 Enhanced medical: (dental, optical, medical transportation,equipment & supplies)

Earnings exemption: $900

PWD $375 $983.42 $1358.42 Enhanced medical: (dental, optical, medical transportation,equipment & supplies)

Earnings exemption: $15,000/year

Note: Shelter amount and some earnings exemptions increase with number of family members


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Acronym Cheat Sheet

MSDPR Acronyms:

MSDPR Ministry of Social Development and Poverty ReductionIA Income AssistancePWD Person with DisabilitiesPPMB Person with Persistent Multiple BarriersR4R Request for ReconsiderationINA Immediate Needs Assessment AEE Annual Earnings Exemption EAAT Employment and Assistance Appeal TribunalEAW Employment and Assistance WorkerCRSQ Community Relations and Service Quality ManagerHAB Health Assistance BranchMSO Medical Services OnlyADL Activities of Daily Living

Federal Benefits:

CPP Canada Pension PlanCPP-D Canada Pension Plan Disability (Federal Disability)GIS Guaranteed Income SupplementOAS Old Age Security


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MINISTRY OF SOCIAL DEVELOPMENT AND POVERTY REDUCTION COMMUNITY RELATIONS AND SERVICE QUALITY (CRSQ) MANAGER

CONTACT LIST (March 18, 2021)

Please note: To streamline responsiveness, Lower Mainland, Fraser and Vancouver Coastal geographic issues are managed collectively through one mailbox: Lower Mainland MCRSQ mailbox ([email protected]) to be used by Lower Mainland stakeholders and ministry staff only, as the preferred method of contact. Stakeholder queries sent to the mailbox will be responded to by the first available MCRSQ as soon as possible. Please continue to use the complaint resolution process: Staff → Supervisor → MCRSQ

STREAM

(All Provincial Issues)

Community Relations and Service Quality Manager (CRSQ)

PHONE GEOGRAPHIC AREA (Includes Ombudsperson

Investigations & MySS Appls)

INTAKE (Applications general)

Michele Lauzon

[email protected]

Mobile:

604 760-4471

Lower Mainland Fraser and Van Coastal

[email protected]

John Bethell

[email protected]

Mobile: 604 512-5487


[email protected]

CRSQ ISSUES SUPPORT SDSI.IssuesSupport.CommunityRelation

[email protected]

Steven Clayton

[email protected] 604-785-2506


[email protected]

Kellie Vachon [email protected] (PLMS: Section 10 liaison)

Mobile:

604 999-6476

Interior

Peta Poulton

[email protected]

Mobile:

250-203-6311

Vancouver Island

SPECIALIZED SERVICES: Funeral Assistance, Special Care

Facilities, Case Review Team, etc.

Ian Harrower

[email protected]

250 649-2624

Mobile: 250 961-5501

Northern

CONTACT CENTRE (includes ACE & Bus Pass)

Specialized Services*:

*EPs & Reconsiderations

HA, HEALTH SUPPLEMENTS MED TRANS

Nadia Boukhouali

[email protected] (CPPD Liaison)

Mobile:

250 507-4502

Vancouver Island

Ann Evans Locker

Senior Manager, Stakeholder Relations

Mobile: 250 896-3323


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EMPLOYMENT SANCTION SCENARIO

The Facts:

Rosie Cotton is a single mother of 8 year old Elanor. Rosie and Elanor have struggled financially for years. Rosie has worked a lot of odd jobs and done yard work under the table just to keep the roof over their heads. Last month she was hired on as server at one of the local taverns, but was terminated last week for missing two shifts in a row because she couldn’t find child care. She contacted an employment standards legal advocate who said she had no recourse through the Employment Standards Branch, and suggested she apply for income assistance to help cover the cost of necessities. She completed the application last week, and submitted all requested documentation including a copy of her ROE from the tavern.

Rosie received a call from an intake worker yesterday who advised she would be ineligible for assistance for two months. The worker cited her ROE, saying that she was terminated from the position, and therefore would be sanctioned. Rosie requested a reconsideration of the sanction applied to her file and has come to you for help.

1) Based on your understanding of the legislation, should Rosie be sanctioned for beingdismissed for just cause? Explain.

2) Is there merit in moving forward with the reconsideration?

APPLICABLE LEGISLATION

EA ActConsequences of not meeting employment-related obligations

13 (1) Subject to the conditions of an employment plan, the family unit of an applicant or a recipient is subject to the consequence described in subsection (2) for a family unit matching the applicant's or recipient's family unit if

a) at any time while a recipient in the family unit is receiving income assistance or hardship assistance or within 60 days before an applicant in the family unit applies for income assistance, the applicant or recipient has

i. failed to accept suitable employment,ii. voluntarily left employment without just cause, oriii. been dismissed from employment for just cause

(2) For the purposes of subsection (1),

(a) if a family unit includes dependent children, the income assistance or hardship assistance provided to or for the family unit must be reduced by the prescribed amount for the prescribed period, and

(b) if a family unit does not include dependent children, the family unit is not eligible for income assistance for the prescribed period.


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EA Regulation

Consequences of failing to meet employment-related obligations29 (1)For the purposes of section 13 (2) (a) [consequences of not meeting employment-related obligations] of the Act,

(a)for a default referred to in section 13 (1) (a) of the Act, the income assistance or hardship assistance provided to or for the family unit must be reduced by $100 for each of 2 calendar months starting from the later of the following dates:

(i)the income assistance application date under this regulation;(ii)the date the default occurred, and

(b)for a default referred to in section 13 (1) (b) of the Act, the income assistance or hardship assistance provided to or for the family unit must be reduced by $100 for each calendar month until the later of the following occurs:

(i)the income assistance or hardship assistance provided to the family unit has been reduced for one calendar month;(ii)the minister is satisfied that the applicant or recipient who committed the default is demonstrating reasonable efforts to search for employment.


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EMPLOYMENT SANCTION SCENARIO

The Facts:

Rosie Cotton is a single mother of 8 year old Elanor. Rosie and Elanor have struggled financially for years. Rosie has worked a lot of odd jobs and done yard work under the table just to keep the roof over their heads. Last month she was hired on as server at one of the local taverns, but was terminated last week for missing two shifts in a row because she couldn’t find child care. She contacted an employment standards legal advocate who said she had no recourse through the Employment Standards Branch, and suggested she apply for income assistance to help cover the cost of necessities. She completed the application last week, and submitted all requested documentation including a copy of her ROE from the tavern.

Rosie received a call from an intake worker yesterday who advised she would be ineligible for assistance for two months. The worker cited her ROE, saying that she was terminated from the position, and therefore would be sanctioned. Rosie requested a reconsideration of the sanction applied to her file and has come to you for help.

Notes from discussion

Sanctions∑ The legislation (EA Act) says that applicants/recipients of assistance can be sanctioned if

fired for just cause in 13 (1) (a)∑ 13 (2) (b) relates to applicants/recipients of assistance with dependent children and says

that the assistance is still available, but must be reduced by the prescribed amount for the prescribed period. Note that when something is mentioned as being “prescribed” in the legislation, it’s a good idea to then look at the regulation

∑ Section 29 of the regulation states that for applicants/recipients of assistance with dependent children, the assistance is to be reduced by $100 for two calendar months

Just Cause∑ There was some discussion about whether Rosie was fired for just cause. Thea: just

cause is potentially debateable, could argue that fired without just cause, however because the scenario mentions having already gone to an employment standards advocate who determined there was no recourse, for the purpose of scenario it’s okay to assume there was just cause. However, if wanted to argue it (if this wasn’t addressed by the scenario or otherwise confirmed that there was just cause), it’s recommended that advocates help Rosie apply to income assistance and make a complaint/contact Employment Standards at the same time. Thea wasn’t sure but assumed Employment Standards would take longer, so good to pursue both at the same time so don’t hold up income assistance request

1) Based on your understanding of the legislation, should Rosie be sanctioned for beingdismissed for just cause? Explain.

Yes. Rosie should be sanctioned as per 13 (1) (a) of the Act which states that applicants/recipients of assistance are subject to consequences when dismissed from employment for just cause.

2) Is there merit in moving forward with the reconsideration?

Yes. Rosie is still eligible for assistance, however at a reduced amount as per 13 (1) (b) and section 29 of the Regulation.


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APPLICABLE LEGISLATION

EA ActConsequences of not meeting employment-related obligations

13 (1) Subject to the conditions of an employment plan, the family unit of an applicant or a recipient is subject to the consequence described in subsection (2) for a family unit matching the applicant's or recipient's family unit if

a) at any time while a recipient in the family unit is receiving income assistance or hardship assistance or within 60 days before an applicant in the family unit applies for income assistance, the applicant or recipient has

i. failed to accept suitable employment,ii. voluntarily left employment without just cause, oriii. been dismissed from employment for just cause


(a) if a family unit includes dependent children, the income assistance or hardship assistance provided to or for the family unit must be reduced by the prescribed amount for the prescribed period, and

(b) if a family unit does not include dependent children, the family unit is not eligible for income assistance for the prescribed period.

EA Regulation

Consequences of failing to meet employment-related obligations29 (1)For the purposes of section 13 (2) (a) [consequences of not meeting employment-related obligations] of the Act,

(a)for a default referred to in section 13 (1) (a) of the Act, the income assistance or hardship assistance provided to or for the family unit must be reduced by $100 for each of 2 calendar months starting from the later of the following dates:

(i)the income assistance application date under this regulation;(ii)the date the default occurred, and

(b)for a default referred to in section 13 (1) (b) of the Act, the income assistance or hardship assistance provided to or for the family unit must be reduced by $100 for each calendar month until the later of the following occurs:

(i)the income assistance or hardship assistance provided to the family unit has been reduced for one calendar month;(ii)the minister is satisfied that the applicant or recipient who committed the default is demonstrating reasonable efforts to search for employment.


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DEPENDENCY SCENARIO

The Facts:

Arwen Evenstar contacts you because her disability assistance has been cut off. She says this is because her ex-boyfriend moved back in with her a year ago. Arwen had previously kicked out her ex-boyfriend as she grew tired of the unreliability that accompanied his lifestyle as a ranger. She and her son, Eldarion, to whom her ex is the father, have relied on PWD assistance to meet their basic needs since her ex left.

Now her ex is back after being laid off of a ranger’s quest in the north. Having nowhere else to go, Arwen allowed him to move in while he gets back on his feet. She thinks it’s really good for Eldarion to have time with his father, though she notes he has not been the most helpful in terms of parenting. Her ex has significant assets set aside in an RRSP from aprevious fellowship he was part of, but doesn’t want to cash it out until retirement. Arwen is clear that they are not in a relationship anymore, but she admits she likes having him around because he helps her with things around the house she can’t do because of her disability. She says they are just roommates, but the Ministry disagrees.

1) What additional questions would you want to ask Arwen?

2) After reviewing the legislation and policy, do you see merit in arguing that the Ministry has erred in denying Arwen benefits? Explain why.


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1 (1) In this Act:

"dependant", in relation to a person, means anyone who resides with the person and who

(a) is the spouse of the person,

(b) is a dependent child of the person, or

(c) indicates a parental role for the person's dependent child;

"dependent child", with respect to a parent, means a child, other than a child who is 18 years of age and is a person with disabilities, who resides in the parent's place of residence for more than 50% of each month and relies on that parent for the necessities of life, and includes a child in circumstances prescribed under subsection (2);

"family unit" means an applicant or a recipient and his or her dependants;

"spouse" has the meaning in section 1.1;

Meaning of "spouse"1.1 (1)Two persons are spouses of each other for the purposes of this Act if

(a)they are married to each other,(b)they declare to the minister that they are in a marriage-like relationship, or(c)they have resided together for at least the previous 12 consecutive months and the minister is satisfied that the relationship demonstrates

(i)financial dependence or interdependence, and(ii)social and familial interdependence


Eligibility of family unit

3 For the purposes of this Act, a family unit is eligible, in relation to disability assistance, hardship assistance or a supplement, if

(a) each person in the family unit on whose account the disability assistance, hardship assistance or supplement is provided satisfies the initial and continuing conditions of eligibility established under this Act, and

(b) the family unit has not been declared ineligible for the disability assistance, hardship assistance or supplement under this Act.


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Policy and Procedure Manual

Ministry procedure suggests a list of factors to be considered in determining whether two peoples living together are living in a “marriage-like relationship”:

Factor Documentation or Demonstration

Suggested Questions

Resided together for at least the previous 12 consecutive months

If “yes” continue assessment for factors 2 and 3

∑ Mail (bills) received by each party at the residence

∑ Tenancy agreement verified by landlord

∑ History of sharing common residence

I see you are sharing the household with another adult. How long have you lived together?

Have you resided together before?

Demonstration of financial dependence or interdependence consistent with “marriage-like”

If “yes” continue assessment for factor 3

∑ Shared financial products(such as joint bank accounts)

∑ Declared spouse on tax documents (CRA)

∑ Verbal confirmation of how income and assets are shared

∑ Third party checks (when verifying client information) indicate a marriage-like relationship exists

∑ Named as beneficiary (life insurance, will, etc.)

How does the household work?

How are the bills paid?

Do you share credit cards or bank accounts?

Who is your beneficiary?

How would your situation change if this person moved away?

How would you manage if you were in hospital?

The relationship demonstrates social and familial interdependence consistent with “marriage-like”

If “yes” consider the evidence available to support each factor. If the overall picture indicates a marriage-like relationship, determine status.

∑ Documents that identify parties as “spouse”

∑ Verbal confirmation of interdependence (completing chores for each other, parenting separately or together, etc.)

∑ Factors 2 and 3 may be demonstrated with the same documents.

Would this person be considered your spouse or partner?

How do you manage household duties?

I see the children have same last name, tell me about the relationship.

Tell me how the children relate to other person?

Are you emergency contacts for each other?


∑ Procedures also direct Ministry staff to consider whether the person’s disability explains the financial, social and family-like aspects of their relationship. The ministry


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also recognizes that an applicant or recipient may be in a relationship that resembles a marriage-like relationship but is not in fact marriage-like

∑ When a person states they are separated from another person, staff should consider that it is possible to be separated while still demonstrating some factors of interdependence.

∑ Staff must consider the whole picture once each factor has been demonstrated. A person may describe a situation in which they share expenses and babysitting responsibilities. If the picture you are left with is that the two persons are roommates sharing expenses and babysitting responsibilities, then it is not appropriate to conclude that the relationship is marriage-like.

A determination of spousal relationship is appealable.


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DEPENDENCY SCENARIO

The Facts:

Arwen Evenstar contacts you because her disability assistance has been cut off. She says this is because her ex-boyfriend moved back in with her a year ago. Arwen had previously kicked out her ex-boyfriend as she grew tired of the unreliability that accompanied his lifestyle as a ranger. She and her son, Eldarion, to whom her ex is the father, have relied on PWD assistance to meet their basic needs since her ex left.

Now her ex is back after being laid off of a ranger’s quest in the north. Having nowhere else to go, Arwen allowed him to move in while he gets back on his feet. She thinks it’s really good for Eldarion to have time with his father, though she notes he has not been the most helpful in terms of parenting. Her ex has significant assets set aside in an RRSP from aprevious fellowship he was part of, but doesn’t want to cash it out until retirement. Arwen is clear that they are not in a relationship anymore, but she admits she likes having him around because he helps her with things around the house she can’t do because of her disability. She says they are just roommates, but the Ministry disagrees.

Notes from discussion

∑ They are not married to each other and have not declared they are in a marriage-like relationship. As per 1.1. (c) of the Act, two individuals must have resided together for at least the previous 12 consecutive months, must demonstrate financial dependence or interdependence, and must demonstrate social and familial interdependence consistent with a marriage-like relationship. Keep in mind that to be considered spouses, all three factors must be present.

∑ The Ministry has robust policy and procedure around this but there are still grey areas, areas that can push back on and challenged, especially when it comes to determining whether there is social and familial interdependence consistent with a “marriage-like” relationship. For example, many roommates may help each other out with chores or parenting responsibilities, and this does not make them spouses. The recent changes also recognize that folks may choose to live together because the arrangement provides support to those living with a disability, with the procedure directing Ministry staff to “consider whether the person’s disability explains the financial, social and family-like aspects of their relationship.” There is also acknowledgement that a couple may separate from each other and still demonstrate some factors of interdependence like living together.

∑ Because of these considerations and the diversity in living arrangements and relationships, if you have clients who tell you they are not a couple, then this often should be enough to provide a basis for challenging the Ministry’s assessment of their relationship.

1) What additional questions would you want to ask Arwen?

Would want to ask additional questions to get more information related to three factors (living together for previous 12 consecutive months; financial dependence or interdependence; and social and familial interdependence consistent with “marriage-like” relationship). For example, questions could include: Do you have a shared bank account? Do you file taxes together? Who pays for utilities? Are you both listed on the tenancy agreement? How long has he been living there? If he has been living there for 12 months, would want to know if it’s been consecutive or if he’s been away at times. If he has been there for 12 consecutive months, would still need to look at two other factors and as per notes above, an important consideration would still be how Arwen describes the relationship.


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2) After reviewing the legislation and policy, do you see merit in arguing that the Ministry has erred in denying Arwen benefits? Explain why.

Yes. Regardless of whether they have been residing together for 12 consecutive months, there are reasons to challenge the determination around social and familial interdependence. Some of the considerations could be explained by their specific circumstances and their being roommates. Furthermore, Arwen has stated that they are just roommates.

1 (1) In this Act:

"dependant", in relation to a person, means anyone who resides with the person and who

(a) is the spouse of the person,

(b) is a dependent child of the person, or

(c) indicates a parental role for the person's dependent child;

"dependent child", with respect to a parent, means a child, other than a child who is 18 years of age and is a person with disabilities, who resides in the parent's place of residence for more than 50% of each month and relies on that parent for the necessities of life, and includes a child in circumstances prescribed under subsection (2);

"family unit" means an applicant or a recipient and his or her dependants;

"spouse" has the meaning in section 1.1;

Meaning of "spouse"1.1 (1)Two persons are spouses of each other for the purposes of this Act if

(a)they are married to each other,(b)they declare to the minister that they are in a marriage-like relationship, or(c)they have resided together for at least the previous 12 consecutive months and the minister is satisfied that the relationship demonstrates

(i)financial dependence or interdependence, and(ii)social and familial interdependence


Eligibility of family unit

3 For the purposes of this Act, a family unit is eligible, in relation to disability assistance, hardship assistance or a supplement, if

(a) each person in the family unit on whose account the disability assistance, hardship assistance or supplement is provided satisfies the initial and continuing conditions of eligibility established under this Act, and

(b) the family unit has not been declared ineligible for the disability assistance, hardship assistance or supplement under this Act.


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Policy and Procedure Manual

Ministry procedure suggests a list of factors to be considered in determining whether two peoples living together are living in a “marriage-like relationship”:

Factor Documentation or Demonstration

Suggested Questions

Resided together for at least the previous 12 consecutive months

If “yes” continue assessment for factors 2 and 3

∑ Mail (bills) received by each party at the residence

∑ Tenancy agreement verified by landlord

∑ History of sharing common residence

I see you are sharing the household with another adult. How long have you lived together?

Have you resided together before?

Demonstration of financial dependence or interdependence consistent with “marriage-like”

If “yes” continue assessment for factor 3

∑ Shared financial products(such as joint bank accounts)

∑ Declared spouse on tax documents (CRA)

∑ Verbal confirmation of how income and assets are shared

∑ Third party checks (when verifying client information) indicate a marriage-like relationship exists

∑ Named as beneficiary (life insurance, will, etc.)

How does the household work?

How are the bills paid?

Do you share credit cards or bank accounts?

Who is your beneficiary?


How would you manage if you were in hospital?

The relationship demonstrates social and familial interdependence consistent with “marriage-like”

If “yes” consider the evidence available to support each factor. If the overall picture indicates a marriage-like relationship, determine status.

∑ Documents that identify parties as “spouse”

∑ Verbal confirmation of interdependence (completing chores for each other, parenting separately or together, etc.)

∑ Factors 2 and 3 may be demonstrated with the same documents.

Would this person be considered your spouse or partner?

How do you manage household duties?

I see the children have same last name, tell me about the relationship.

Tell me how the children relate to other person?

Are you emergency contacts for each other?


∑ Procedures also direct Ministry staff to consider whether the person’s disability explains the financial, social and family-like aspects of their relationship. The ministry


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also recognizes that an applicant or recipient may be in a relationship that resembles a marriage-like relationship but is not in fact marriage-like

∑ When a person states they are separated from another person, staff should consider that it is possible to be separated while still demonstrating some factors of interdependence.

∑ Staff must consider the whole picture once each factor has been demonstrated. A person may describe a situation in which they share expenses and babysitting responsibilities. If the picture you are left with is that the two persons are roommates sharing expenses and babysitting responsibilities, then it is not appropriate to conclude that the relationship is marriage-like.

A determination of spousal relationship is appealable.


363

INCOME/ASSETS ELIGIBILITY SCENARIO

The Facts:

Gimli Durin’s father Gloin was tragically killed by an orc during the battle for Middle Earth. Gloin had a significant amount of treasure and Gimli had received a letter from his lawyer saying that he would be inheriting $125,000.

Gimli was applied for the PWD designation after injured his left collar bone and neck in a carriage collision last December. Gimli has been receiving PWD benefits for several months and wants to know how the inheritance will impact his benefits.

1) Identify the applicable legislation and policy.

2) Based on your understanding of the legislation, will Gimli be eligible for income assistance next month? Explain why.

3) Will there be any ongoing eligibility issues for Gimli? Explain why.

4) Is there any additional advice you would give Gimli for the future?


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Limits on income9 (1) For the purposes of the Act and this regulation, "income", in relation to a family unit, includes an amount garnished, attached, seized, deducted or set off from the income of an applicant, a recipient or a dependant.(2) A family unit is not eligible for disability assistance if the net income of the family unit determined under Schedule B equals or exceeds the amount of disability assistance determined under Schedule A for a family unit matching that family unit.

Net Income Calculation

Deduction and exemption rules (list not exhaustive)1 When calculating the net income of a family unit for the purposes of section 24 (b) [amount of disability assistance] of this regulation,(a)the following are exempt from income:

(i)any income earned by a dependent child attending school on a full-time basis;(ii)Repealed. [B.C. Reg. 96/2017, App. 2, s. 2 (a).](iii)Repealed. [B.C. Reg. 48/2010, Sch. 1, s. 2 (c).](iv)a family bonus, except the portion treated as unearned income under section 10 (1) of this Schedule;(iv.1)the Canada child benefit, except the portion treated as unearned income under section 10 (1) of this Schedule;(v)the basic child tax benefit;(vi)a goods and services tax credit under the Income Tax Act (Canada);(vii)a tax credit under section 8 [refundable sales tax credit], 8.1 [climate action tax credit] or 8.2 [BC harmonized sales tax credit] of the Income Tax Act (British Columbia);(viii)individual redress payments granted by the government of Canada to a person of Japanese ancestry;(ix)individual payments granted by the government of Canada under the Extraordinary Assistance Plan to a person infected by the human immunodeficiency virus;(x)individual payments granted by the government of British Columbia to a person infected by the human immunodeficiency virus or to the surviving spouse or dependent children of that person;(xi)individual payments granted by the government of Canada under the Extraordinary Assistance Plan to thalidomide victims;(xii)money that is

(A)paid or payable to a person if the money is awarded to the person by an adjudicative panel in respect of claims of abuse at Jericho Hill School for the


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Deaf and drawn from a lump sum settlement paid by the government of British Columbia, or(B)paid or payable to or for a person if the payment is in accordance with the settlement agreement approved by the Supreme Court in Action No.C980463, Vancouver Registry;

(xii.1)money that is paid or payable to or for a person if the payment is in accordance with the settlement under the Final Settlement Agreement and Supplementary Agreement approved by the Federal Court June 22, 2018 in Court File No. T-370-17, Todd Edward Ross et al. v. Her Majesty the Queen;(xii.2)money that is paid or payable to or for a person if the payment is in accordance with the settlement under the Final Settlement Agreement approved by the Federal Court January 30, 2019 in Court File No. T-1068-14, Raymond Michael Toth v. Her Majesty the Queen;(xiii)the BC earned income benefit;(xiv)money paid or payable under the 1986-1990 Hepatitis C Settlement Agreement made June 15, 1999, except money paid or payable under section 4.02 or 6.01 of Schedule A or of Schedule B of that agreement;(xv)a rent subsidy provided by the provincial government, or by a council, board, society or governmental agency that administers rent subsidies from the provincial government;(xvi)Repealed. [B.C. Reg. 197/2012, Sch. 2, s. 11 (a).](xvii)money paid or payable to a person in settlement of a claim of abuse at an Indian residential school, except money paid or payable as income replacement in the settlement;(xvii.1)money that is paid or payable to or for a person if the payment is in accordance with

(A)the Sixties Scoop Settlement made November 30, 2017, or(B)the Federal Indian Day Schools Settlement made March 12, 2019, as amended May 13, 2019;

(xviii)post adoption assistance payments provided under section 28 (1) or 30.1 of the Adoption Regulation, B.C. Reg. 291/96;(xix)a rebate of energy or fuel tax provided by the government of Canada, the government of British Columbia, or an agency of either government;(xx)money paid by the government of British Columbia, under a written agreement, to a person with disabilities or to a trustee for the benefit of a person with disabilities to enable the person with disabilities to live in the community instead of in an institution;(xxi)Repealed. [B.C. Reg. 85/2012, Sch. 2, s. 7.]


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(xxii)payments granted by the government of British Columbia under section 8 [agreement with child's kin and others] of the Child, Family and Community Service Act;(xxiii)payments granted by the government of British Columbia under the Ministry of Children and Family Development's At Home Program;(xxiv)Repealed. [B.C. Reg. 85/2012, Sch. 2, s. 7.](xxv)payments granted by the government of British Columbia under an agreement referred to in section 93 (1) (g) (ii) of the Child, Family and Community Service Act, for contributions to the support of a child;(xxvi)a loan that is

(A)not greater than the amount contemplated by the recipient's business plan, accepted by the minister under section 70.1 of this regulation, and(B)received and used for the purposes set out in the business plan;

(xxvii)payments granted by the government of British Columbia under the Ministry of Children and Family Development's

(A)Autism Funding: Under Age 6 Program, or(B)Autism Funding: Ages 6 — 18 Program;

(xxviii)Repealed. [B.C. Reg. 148/2015, App. 2, s. 1 (a).](xxix)payments made by a health authority or a contractor of a health authority to a recipient, who is a "person with a mental disorder" as defined in section 1 of the Mental Health Act, for the purpose of supporting the recipient in participating in a volunteer program or in a mental health or addictions rehabilitation program;(xxx)a refund provided under Plan I as established under the Drug Plans Regulation;(xxxi)payments provided by Community Living BC to assist with travel expenses for a recipient in the family unit to attend a self-help skills program, or a supported work placement program, approved by Community Living BC;(xxxii)a Universal Child Care Benefit provided under the Universal Child Care Benefit Act (Canada);(xxxiii)money paid by the government of Canada, under a settlement agreement, to persons who contracted Hepatitis C by receiving blood or blood products in Canada prior to 1986 or after July 1, 1990, except money paid under that agreement as income replacement;(xxxiv)money withdrawn from a registered disability savings plan;(xxxv)a working income tax benefit provided under the Income Tax Act (Canada);(xxxvi)Repealed. [B.C. Reg. 180/2010, s. 2 (b).](xxxvii)the climate action dividend under section 13.02 of the Income Tax Act;(xxxviii)money paid or payable to a person under the Criminal Injury Compensation Act as compensation for non-pecuniary loss or damage for pain, suffering mental or


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emotional trauma, humiliation or inconvenience that occurred when the person was under 19 years of age;(xxxix)money that is paid or payable to or for a person if the payment is in accordance with the settlement agreement approved by the Supreme Court in Action No. S024338, Vancouver Registry;(xl)payments granted by the government of British Columbia under the Ministry of Children and Family Development's Family Support Services program;(xli)payments granted by the government of British Columbia under the Ministry of Children and Family Development's Supported Child Development program;(xlii)payments granted by the government of British Columbia under the Ministry of Children and Family Development's Aboriginal Supported Child Development program;(xliii)money paid or payable from a fund that is established by the government of British Columbia, the government of Canada and the City of Vancouver in relation to recommendation 3.2 of the final report of the Missing Women Commission of Inquiry;(xliv)payments granted by the government of British Columbia under the Temporary Education Support for Parents program;(xlv)a BC early childhood tax benefit;(xlv.1)a BC child opportunity benefit;(xlvi)child support;(xlvii)orphan's benefits under the Canada Pension Plan Act (Canada);(xlviii)money or other value received, by will or as the result of intestacy, from the estate of a deceased person;(xlix)gifts;(l)education and training allowances, grants, bursaries or scholarships, other than student financial assistance;(li)money withdrawn from a registered education savings plan;

Asset limits10 (1)The following assets are exempt for the purposes of subsection (2):(a)clothing and necessary household equipment;(b)one motor vehicle generally used for day to day transportation needs;(c)a family unit's place of residence;(d)money received or to be received from a mortgage on, or an agreement for sale of, the family unit's previous place of residence if the money is

(i)applied to the amount owing on the family unit's current place of residence, or(ii)used to pay rent for the family unit's current place of residence;

(e)a Canada child tax benefit;


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(e.1)a Canada child benefit;(f)a goods and services tax credit under the Income Tax Act (Canada);(g)a tax credit under section 8 [refundable sales tax credit], 8.1 [climate action tax credit] or 8.2 [BC harmonized sales tax credit] of the Income Tax Act (British Columbia);(h)an uncashed life insurance policy with a cash surrender value of $1 500 or less;(i)business tools;(j)seed required by a farmer for the next crop-year;(k)basic breeding-stock held by a farmer at the disability assistance application date, and female stock held for stock replacement;(l)essential equipment and supplies for farming and commercial fishing;(m)fishing craft and fishing gear owned and used by a commercial fisher;(n)prepaid funeral costs;(o)individual redress payments granted by the government of Canada to a person of Japanese ancestry;(p)individual payments granted by the government of Canada under the Extraordinary Assistance Plan to a person infected by the human immunodeficiency virus;(q)individual payments granted by the government of British Columbia to a person infected by the human immunodeficiency virus;(r)individual payments granted by the government of Canada under the Extraordinary Assistance Plan to thalidomide victims;(s)money that is

(i)paid or payable to a person if the money is awarded to the person by an adjudicative panel in respect of claims of abuse at Jericho Hill School for the Deaf and drawn from a lump sum settlement paid by the government of British Columbia, or(ii)paid or payable to or for a person if the payment is in accordance with the settlement agreement approved by the Supreme Court in Action No. C980463, Vancouver Registry;

(t)money paid under the 1986-1990 Hepatitis C Settlement Agreement made June 15, 1999, except money paid under section 4.02 or 6.01 of Schedule A or of Schedule B of that agreement;(u)Repealed. [B.C. Reg. 197/2012, Sch. 2, s. 3 (b).](v)money paid to a person in settlement of a claim of abuse at an Indian residential school, except money paid as income replacement in the settlement;(v.1)money that is paid or payable to or for a person if the payment is in accordance with

(i)the Sixties Scoop Settlement made November 30, 2017, or(ii)the Federal Indian Day Schools Settlement made March 12, 2019, as amended May 13, 2019;


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http://laws-lois.justice.gc.ca/eng/acts/I-3.3/

https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/96215_00

(w)post adoption assistance payments provided under section 28 (1) or 30.1 of the Adoption Regulation, B.C. Reg. 291/96;(x)for a recipient who is participating in a self-employment program funded or established by the minister under section 8 of the Act,

(i)up to a maximum of $5 000 kept by the recipient in a separate account described in section 4 (2) (b) (ii) of Schedule B, and(ii)up to a maximum of $50 000, or a greater amount approved by the minister, consisting of

(A)the value of assets used by the recipient in operating a small business under the self-employment program, and(B)a loan that is not greater than the amount contemplated by the recipient's business plan, accepted under section 70.1 of this regulation, and received and used for the purposes set out in the business plan;

(y)assets exempted under(i)section 11 (2) [asset development accounts],(ii)section 12 (2) [assets held in trust for person with disabilities], or(iii)section 12.1 (2) [temporary exemption of assets for person with disabilities or person receiving special care];

(z)Repealed. [B.C. Reg. 85/2012, Sch. 2, s. 3.](aa)payments granted by the government of British Columbia under section 8 [agreement with child's kin and others] of the Child, Family and Community Service Act;(bb)payments granted by the government of British Columbia under the Ministry of Children and Family Development's At Home Program;(cc)Repealed. [B.C. Reg. 85/2012, Sch. 2, s. 3.](dd)payments granted by the government of British Columbia under an agreement referred to in section 93 (1) (g) (ii) of the Child, Family and Community Service Act, for contributions to the support of a child;

(2)A family unit is not eligible for disability assistance if the family unit has assets with a total value of more than the following:

(a)in the case of a family unit that includes one applicant or recipient who is designated as a person with disabilities, other than a family unit to which paragraph (b) applies, $100 000;(b)in the case of a family unit that includes one applicant or recipient who is designated as a person with disabilities, and another applicant or recipient who has applied for and has not been denied designation as a person with disabilities, $200 000;


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(c)in the case of a family unit that includes 2 applicants or recipients who are designated as persons with disabilities, $200 000.

(3)The minister may authorize one or more of the following:(a)that the total cash surrender value of an uncashed life insurance policy of an applicant or recipient is not to be included as an asset of the family unit for the purposes of subsection (2) for the period specified by the minister;(b)that saleable acreage and buildings owned by an applicant or recipient are to be treated as though they were the place of residence of the applicant's or recipient's family unit for the period specified by the minister.

Assets held in trust for person with disabilities12 (1)In this section, "disability-related cost" means the cost of providing to a person with disabilities or a person receiving accommodation or care in a private hospital or a special care facility, other than a drug or alcohol treatment centre,

(a)devices, or medical aids, related to improving the person's health or well-being,(b)caregiver services or other services related to the person's disability,(c)education or training,(d)any other item or service that promotes the person's independence, and(e)if a person with disabilities does not reside in a special care facility, a private hospital or an extended care unit in a hospital,

(i)renovations to the person's place of residence necessary to accommodate the needs resulting from the person's disability, and(ii)necessary maintenance for that place of residence.

(2)If a person referred to in subsection (1) complies with subsection (4), up to $200 000, or ahigher limit if authorized by the minister under subsection (3), of the aggregate value of the person's beneficial interest in real or personal property held in one or more trusts, calculated as follows:

(a)the sum of the value of the capital of each trust on the later of April 26, 1996 or the date the trust was created, plus(b)any capital subsequently contributed to a trust referred to in paragraph (a),

is exempt for the purposes of section 10 (2) [asset limits].

Policy

Inheritance

Effective: December 1, 2015

An inheritance is considered money or other value received, by will or as the result of intestacy, from the estate of a deceased person.


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https://www2.gov.bc.ca/gov/content/governments/policies-for-government/bcea-policy-and-procedure-manual/eligibility/income-treatment-and-exemptions

Description Income Status

Treatment Income Type

A family unit eligible for income assistance or hardship assistance where no one in the family unit has PWD designation

Unearned Not Exempt 29 – Other Unearned

Sub-Type –Inheritances

A family unit eligible for disability assistance or hardship assistance where at least one person in the family unit has PWD designation

Unearned Exempt 29 – Other Unearned


[For treatment of testamentary trusts see Related Links – Trusts]


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INCOME/ASSETS ELIGIBILITY SCENARIO

The Facts:

Gimli Durin’s father Gloin was tragically killed by an orc during the battle for Middle Earth. Gloin had a significant amount of treasure and Gimli had received a letter from his lawyer saying that he would be inheriting $125,000.

Gimli applied for the PWD designation after he injured his left collar bone and neck in a carriage collision last December. Gimli has been receiving PWD benefits for several months and wants to know how the inheritance will impact his benefits.

1) Identify the applicable legislation and policy.

Sections 9 and 10 of the Regulations for the Employment and Income Assistance for People with Disabilities

Section 1 of Schedule B of the Employment and Income Assistance for People with Disabilities Regulation

Money received is income in the month you receive it and then is an asset in the following months.People on PWD are allowed assets of $100K. Inheritances are exempt income.

2) Based on your understanding of the legislation, will Gimli be eligible for income assistance next month? Explain why.

In this case, the income is exempt because it is an inheritance. The advocate can help the client declare the income and let the ministry know that as an inheritance it is exempt.

3) Will there be any ongoing eligibility issues for Gimli? Explain why.

The inheritance exceeds $100K so Gimli will need to exempt a portion of his assets in order to continue to be eligible for PWD. To do this, he can use some of the income to buy exempt assets such as a vehicle or a home, or consider putting some of the money into a RDSP or trust.

4) Is there any additional advice you would give Gimli for the future?

Refer to financial adviser for advice on how to best manage his inheritance. Refer to DABC for information on DTC and RDSPs and refer to a lawyer for information regarding trusts.


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Limits on income9 (1) For the purposes of the Act and this regulation, "income", in relation to a family unit, includes an amount garnished, attached, seized, deducted or set off from the income of an applicant, a recipient or a dependant.(2) A family unit is not eligible for disability assistance if the net income of the family unit determined under Schedule B equals or exceeds the amount of disability assistance determined under Schedule A for a family unit matching that family unit.

Net Income Calculation

Deduction and exemption rules (list not exhaustive)1 When calculating the net income of a family unit for the purposes of section 24 (b) [amount of disability assistance] of this regulation,(a)the following are exempt from income:

(i)any income earned by a dependent child attending school on a full-time basis;(ii)Repealed. [B.C. Reg. 96/2017, App. 2, s. 2 (a).](iii)Repealed. [B.C. Reg. 48/2010, Sch. 1, s. 2 (c).](iv)a family bonus, except the portion treated as unearned income under section 10 (1) of this Schedule;(iv.1)the Canada child benefit, except the portion treated as unearned income under section 10 (1) of this Schedule;(v)the basic child tax benefit;(vi)a goods and services tax credit under the Income Tax Act (Canada);(vii)a tax credit under section 8 [refundable sales tax credit], 8.1 [climate action tax credit] or 8.2 [BC harmonized sales tax credit] of the Income Tax Act (British Columbia);(viii)individual redress payments granted by the government of Canada to a person of Japanese ancestry;(ix)individual payments granted by the government of Canada under the Extraordinary Assistance Plan to a person infected by the human immunodeficiency virus;(x)individual payments granted by the government of British Columbia to a person infected by the human immunodeficiency virus or to the surviving spouse or dependent children of that person;(xi)individual payments granted by the government of Canada under the Extraordinary Assistance Plan to thalidomide victims;(xii)money that is

(A)paid or payable to a person if the money is awarded to the person by an adjudicative panel in respect of claims of abuse at Jericho Hill School for the


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Deaf and drawn from a lump sum settlement paid by the government of British Columbia, or(B)paid or payable to or for a person if the payment is in accordance with the settlement agreement approved by the Supreme Court in Action No. C980463, Vancouver Registry;

(xii.1)money that is paid or payable to or for a person if the payment is in accordance with the settlement under the Final Settlement Agreement and Supplementary Agreement approved by the Federal Court June 22, 2018 in Court File No. T-370-17, Todd Edward Ross et al. v. Her Majesty the Queen;(xii.2)money that is paid or payable to or for a person if the payment is in accordance with the settlement under the Final Settlement Agreement approved by the Federal Court January 30, 2019 in Court File No. T-1068-14, Raymond Michael Toth v. Her Majesty the Queen;(xiii)the BC earned income benefit;(xiv)money paid or payable under the 1986-1990 Hepatitis C Settlement Agreement made June 15, 1999, except money paid or payable under section 4.02 or 6.01 of Schedule A or of Schedule B of that agreement;(xv)a rent subsidy provided by the provincial government, or by a council, board, society or governmental agency that administers rent subsidies from the provincial government;(xvi)Repealed. [B.C. Reg. 197/2012, Sch. 2, s. 11 (a).](xvii)money paid or payable to a person in settlement of a claim of abuse at an Indian residential school, except money paid or payable as income replacement in the settlement;(xvii.1)money that is paid or payable to or for a person if the payment is in accordance with

(A)the Sixties Scoop Settlement made November 30, 2017, or(B)the Federal Indian Day Schools Settlement made March 12, 2019, as amended May 13, 2019;

(xviii)post adoption assistance payments provided under section 28 (1) or 30.1 of the Adoption Regulation, B.C. Reg. 291/96;(xix)a rebate of energy or fuel tax provided by the government of Canada, the government of British Columbia, or an agency of either government;(xx)money paid by the government of British Columbia, under a written agreement, to a person with disabilities or to a trustee for the benefit of a person with disabilities to enable the person with disabilities to live in the community instead of in an institution;(xxi)Repealed. [B.C. Reg. 85/2012, Sch. 2, s. 7.]


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(xxii)payments granted by the government of British Columbia under section 8 [agreement with child's kin and others] of the Child, Family and Community Service Act;(xxiii)payments granted by the government of British Columbia under the Ministry of Children and Family Development's At Home Program;(xxiv)Repealed. [B.C. Reg. 85/2012, Sch. 2, s. 7.](xxv)payments granted by the government of British Columbia under an agreement referred to in section 93 (1) (g) (ii) of the Child, Family and Community Service Act, for contributions to the support of a child;(xxvi)a loan that is

(A)not greater than the amount contemplated by the recipient's business plan, accepted by the minister under section 70.1 of this regulation, and(B)received and used for the purposes set out in the business plan;

(xxvii)payments granted by the government of British Columbia under the Ministry of Children and Family Development's

(A)Autism Funding: Under Age 6 Program, or(B)Autism Funding: Ages 6 — 18 Program;

(xxviii)Repealed. [B.C. Reg. 148/2015, App. 2, s. 1 (a).](xxix)payments made by a health authority or a contractor of a health authority to a recipient, who is a "person with a mental disorder" as defined in section 1 of the Mental Health Act, for the purpose of supporting the recipient in participating in a volunteer program or in a mental health or addictions rehabilitation program;(xxx)a refund provided under Plan I as established under the Drug Plans Regulation;(xxxi)payments provided by Community Living BC to assist with travel expenses for a recipient in the family unit to attend a self-help skills program, or a supported work placement program, approved by Community Living BC;(xxxii)a Universal Child Care Benefit provided under the Universal Child Care Benefit Act (Canada);(xxxiii)money paid by the government of Canada, under a settlement agreement, to persons who contracted Hepatitis C by receiving blood or blood products in Canadaprior to 1986 or after July 1, 1990, except money paid under that agreement as income replacement;(xxxiv)money withdrawn from a registered disability savings plan;(xxxv)a working income tax benefit provided under the Income Tax Act (Canada);(xxxvi)Repealed. [B.C. Reg. 180/2010, s. 2 (b).](xxxvii)the climate action dividend under section 13.02 of the Income Tax Act;(xxxviii)money paid or payable to a person under the Criminal Injury Compensation Act as compensation for non-pecuniary loss or damage for pain, suffering mental or


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emotional trauma, humiliation or inconvenience that occurred when the person was under 19 years of age;(xxxix)money that is paid or payable to or for a person if the payment is in accordance with the settlement agreement approved by the Supreme Court in Action No. S024338, Vancouver Registry;(xl)payments granted by the government of British Columbia under the Ministry of Children and Family Development's Family Support Services program;(xli)payments granted by the government of British Columbia under the Ministry of Children and Family Development's Supported Child Development program;(xlii)payments granted by the government of British Columbia under the Ministry of Children and Family Development's Aboriginal Supported Child Development program;(xliii)money paid or payable from a fund that is established by the government of British Columbia, the government of Canada and the City of Vancouver in relation to recommendation 3.2 of the final report of the Missing Women Commission of Inquiry;(xliv)payments granted by the government of British Columbia under the Temporary Education Support for Parents program;(xlv)a BC early childhood tax benefit;(xlv.1)a BC child opportunity benefit;(xlvi)child support;(xlvii)orphan's benefits under the Canada Pension Plan Act (Canada);(xlviii)money or other value received, by will or as the result of intestacy, from the estate of a deceased person;(xlix)gifts;(l)education and training allowances, grants, bursaries or scholarships, other than student financial assistance;(li)money withdrawn from a registered education savings plan;

Asset limits10 (1)The following assets are exempt for the purposes of subsection (2):(a)clothing and necessary household equipment;(b)one motor vehicle generally used for day to day transportation needs;(c)a family unit's place of residence;(d)money received or to be received from a mortgage on, or an agreement for sale of, the family unit's previous place of residence if the money is

(i)applied to the amount owing on the family unit's current place of residence, or(ii)used to pay rent for the family unit's current place of residence;

(e)a Canada child tax benefit;


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(e.1)a Canada child benefit;(f)a goods and services tax credit under the Income Tax Act (Canada);(g)a tax credit under section 8 [refundable sales tax credit], 8.1 [climate action tax credit] or 8.2 [BC harmonized sales tax credit] of the Income Tax Act (British Columbia);(h)an uncashed life insurance policy with a cash surrender value of $1 500 or less;(i)business tools;(j)seed required by a farmer for the next crop-year;(k)basic breeding-stock held by a farmer at the disability assistance application date, and female stock held for stock replacement;(l)essential equipment and supplies for farming and commercial fishing;(m)fishing craft and fishing gear owned and used by a commercial fisher;(n)prepaid funeral costs;(o)individual redress payments granted by the government of Canada to a person of Japanese ancestry;(p)individual payments granted by the government of Canada under the Extraordinary Assistance Plan to a person infected by the human immunodeficiency virus;(q)individual payments granted by the government of British Columbia to a person infected by the human immunodeficiency virus;(r)individual payments granted by the government of Canada under the Extraordinary Assistance Plan to thalidomide victims;(s)money that is

(i)paid or payable to a person if the money is awarded to the person by an adjudicative panel in respect of claims of abuse at Jericho Hill School for the Deaf and drawn from a lump sum settlement paid by the government of British Columbia, or(ii)paid or payable to or for a person if the payment is in accordance with the settlement agreement approved by the Supreme Court in Action No. C980463, Vancouver Registry;

(t)money paid under the 1986-1990 Hepatitis C Settlement Agreement made June 15, 1999, except money paid under section 4.02 or 6.01 of Schedule A or of Schedule B of that agreement;(u)Repealed. [B.C. Reg. 197/2012, Sch. 2, s. 3 (b).](v)money paid to a person in settlement of a claim of abuse at an Indian residential school, except money paid as income replacement in the settlement;(v.1)money that is paid or payable to or for a person if the payment is in accordance with

(i)the Sixties Scoop Settlement made November 30, 2017, or(ii)the Federal Indian Day Schools Settlement made March 12, 2019, as amended May 13, 2019;


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http://laws-lois.justice.gc.ca/eng/acts/I-3.3/


(w)post adoption assistance payments provided under section 28 (1) or 30.1 of the Adoption Regulation, B.C. Reg. 291/96;(x)for a recipient who is participating in a self-employment program funded or established by the minister under section 8 of the Act,

(i)up to a maximum of $5 000 kept by the recipient in a separate account described in section 4 (2) (b) (ii) of Schedule B, and(ii)up to a maximum of $50 000, or a greater amount approved by the minister, consisting of

(A)the value of assets used by the recipient in operating a small business under the self-employment program, and(B)a loan that is not greater than the amount contemplated by the recipient's business plan, accepted under section 70.1 of this regulation, and received and used for the purposes set out in the business plan;

(y)assets exempted under(i)section 11 (2) [asset development accounts],(ii)section 12 (2) [assets held in trust for person with disabilities], or(iii)section 12.1 (2) [temporary exemption of assets for person with disabilities or person receiving special care];

(z)Repealed. [B.C. Reg. 85/2012, Sch. 2, s. 3.](aa)payments granted by the government of British Columbia under section 8 [agreement with child's kin and others] of the Child, Family and Community Service Act;(bb)payments granted by the government of British Columbia under the Ministry of Children and Family Development's At Home Program;(cc)Repealed. [B.C. Reg. 85/2012, Sch. 2, s. 3.](dd)payments granted by the government of British Columbia under an agreement referred to in section 93 (1) (g) (ii) of the Child, Family and Community Service Act, for contributions to the support of a child;

(2)A family unit is not eligible for disability assistance if the family unit has assets with a total value of more than the following:

(a)in the case of a family unit that includes one applicant or recipient who is designated as a person with disabilities, other than a family unit to which paragraph (b) applies, $100 000;(b)in the case of a family unit that includes one applicant or recipient who is designated as a person with disabilities, and another applicant or recipient who has applied for and has not been denied designation as a person with disabilities, $200 000;


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(c)in the case of a family unit that includes 2 applicants or recipients who are designated as persons with disabilities, $200 000.

(3)The minister may authorize one or more of the following:(a)that the total cash surrender value of an uncashed life insurance policy of an applicant or recipient is not to be included as an asset of the family unit for the purposes of subsection (2) for the period specified by the minister;(b)that saleable acreage and buildings owned by an applicant or recipient are to be treated as though they were the place of residence of the applicant's or recipient's family unit for the period specified by the minister.

Assets held in trust for person with disabilities12 (1)In this section, "disability-related cost" means the cost of providing to a person with disabilities or a person receiving accommodation or care in a private hospital or a special care facility, other than a drug or alcohol treatment centre,

(a)devices, or medical aids, related to improving the person's health or well-being,(b)caregiver services or other services related to the person's disability,(c)education or training,(d)any other item or service that promotes the person's independence, and(e)if a person with disabilities does not reside in a special care facility, a private hospital or an extended care unit in a hospital,

(i)renovations to the person's place of residence necessary to accommodate the needs resulting from the person's disability, and(ii)necessary maintenance for that place of residence.

(2)If a person referred to in subsection (1) complies with subsection (4), up to $200 000, or a higher limit if authorized by the minister under subsection (3), of the aggregate value of the person's beneficial interest in real or personal property held in one or more trusts, calculated as follows:

(a)the sum of the value of the capital of each trust on the later of April 26, 1996 or the date the trust was created, plus(b)any capital subsequently contributed to a trust referred to in paragraph (a),

is exempt for the purposes of section 10 (2) [asset limits].

Policy

Inheritance

Effective: December 1, 2015

An inheritance is considered money or other value received, by will or as the result of intestacy, from the estate of a deceased person.


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https://www2.gov.bc.ca/gov/content/governments/policies-for-government/bcea-policy-and-procedure-manual/eligibility/income-treatment-and-exemptions

Description Income Status

Treatment Income Type

A family unit eligible for income assistance or hardship assistance where no one in the family unit has PWD designation

Unearned Not Exempt 29 – Other Unearned


A family unit eligible for disability assistance or hardship assistance where at least one person in the family unit has PWD designation

Unearned Exempt 29 – Other Unearned


[For treatment of testamentary trusts see Related Links – Trusts]


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1

Topic: Person With Disabilities Benefits (PWD)Timing ∑ May 26

∑ 1 – 4 pm Learning Objective/s: Learners will be able to:

∑ Find and explain to clients the criteria to apply for PWD∑ Identify the elements of the definition of who is a person

with disabilities (PWD) and what their situation must be to qualify for benefits.

∑ Assess the strengths and weaknesses of PWD applications

∑ Understand how different disabling conditions may meet the definition of disabilities

∑ Tell clients what benefits someone receives on PWD ∑ Find and track timelines for PWD applications∑ Understand strategies for reconsiderations and appeals∑ Use or refer clients to resources for people applying for

PWD

Activity: ∑ Presentation on PWD ∑ Group work on case examples.

Resource person: ∑ Andrew Robb, lawyer, Disability Law Clinic, Disability Alliance BC (DABC)

Materials: ∑ Course materials

Assessment: ∑ Test

Legal Advocacy Training Course - Week 1 Materials - 7. PWD Overview

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The Persons with Disabilities (PWD)

DesignationLaw Foundation Legal Advocate Training Course

Wednesday, May 26, 2021


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Overview

What is PWD? Who is eligible? What is the advocate’s role in the application process? What is the advocate’s role in the request for reconsideration? The Employment and Assistance Tribunal Resources Questions


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What is PWD?

PWD is a provincial government benefit administered by the Ministry of Social Development and Poverty Reduction (MSDPR)

MSDPR also administers income assistance and persons with persistent multiple barriers to employment benefits (PPMB)

Derek takes on applying for PWD!


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How much do you get?


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Additional benefits with PWD Monthly transportation supplement

- $52 cash or bus pass May be eligible for additional health

supplements such as a Monthly Nutritional Supplement or Diet Supplement

PWD may also help clients qualify more easily for secondary programs such as Fuel Tax Refund Programs or travel supports for people with disabilities


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Annual Earnings Exemption Under PWD, a person can still work and earn money up to a certain amount

Earnings exemption applies to money earned from January 1 to December 31 of any given calendar year Remaining exemption does not carry over

Any money earned over annual exemption amount is deducted from assistance

Current exemptions as of 2021: $15,000 for a single person with PWD designation

$18,000 for a family with two adults where only one person has PWD designation

$30,000 for a family where both adults have PWD designation

Monthly reports for income by the fifth of every month


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Rules and Policies

https://www2.gov.bc.ca/gov/content/governments/policies-for-government/bcea-policy-and-procedure-manualOR Search for “PWD policy manual”


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Preliminary requirements for PWD

Established through the Ministry’s MySelfServe online Application Income and asset test

Citizenship and residency requirements

Family Composition requirements

Age requirements


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Who is eligible for PWD?

Must be at least 18 years old Must be a BC resident who is a Canadian citizen or

permanent resident Person has a severe mental or physical impairment

that In the opinion of a medical practioner or nurse

practitioner is likely to continue for at least 2 years, and

In the opinion of a prescribed professional Directly and significantly restricts the

person’s ability to perform daily living activities either continuously or periodically AND

as a result of these restrictions, the person needs help to perform those activities


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What are daily living activities? Daily living activities in relation to a

severe physical or severe mental impairment, it means Preparing own meals

Managing personal finances

Shopping for personal needs

Using public or personal transportation

Performing housework that is needed to make their residence sanitary

Performing self-care and personal hygiene

Managing personal medication

Daily living activities in relation to a severe mental impairment includes Making decisions about personal

activities, care, or finances

Relating to, communicating, or acting with others effectively


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Medical Eligibility In most cases medical eligibility for

PWD will turn on whether the Ministry agrees the application establishes: A severe physical or mental

impairment

Direct and significant restrictions to daily living activities

That helped is needed from another person, an assistive device, or an assistance animal


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Examples of Common Disabling Conditions Arthritis

Degenerative disk disease, and other back problems

Heart disease

Fibromyalgia/myalgic encephalomyelitis and chronic fatigue syndrome

Acquired brain injuries, or other acquired injuries

Depression/anxiety

Trauma

Substance dependence

Unfamiliar disabling condition?


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Prescribed Classes

A person who is enrolled in Plan P (palliative care) under the Drug Plans Regulation

A person who was determined at any time to be eligible for payments made through the Ministry of Children and Family Development’s At Home Program

A person who has at any time been determined by Community Living BC to be eligible to receive community living support, or whose family has at any time been eligible for community living support to assist them.

A person who is considered to be disabled under the Canada Pension Plan


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Application for PWD DesignationThe Advocate’s Role


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PWD Application Guiding Principles

The application should help the Ministry adjudicator to understand the applicant’s Disabling conditions

Severity and frequency of symptoms

Nature of restrictions to Daily Living Activities

Support needs

Strive for consistency between all sections of the application


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Applicant’s Report – Section One Application Information

Description of Applicant’s Disabilities

Effect of Applicant’s Disabilities on Life and Ability to Care for Self

Signature and Consent


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Conducting an interview with your client

Building rapport and discussing sensitive topics

Conducting a thorough interview and understanding your client’s experience of their disabilities

The “bad day” perspective

Keeping the client’s doctor in mind


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Supporting Medical Documentation

Credibility Who is the document from? What is the relationship to the applicant? Are they competent to speak to the information provided?

Helpfulness Is the information likely to help in determining if the applicant is eligible? Is the information reasonably current? Can the information provided be understood by an ordinary person? Is there any possibility that the information will harm the applicant’s

application?


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Medical Report –Section Two

Who can complete the report? Who should complete the report? Finding a doctor Navigating the advocate, client, and

doctor, relationship

Derek goes to the doctor!


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Mailing the Application and Getting a Decision

Mail to Health Assistance Branch using pre-addressed envelope attached to the PWD application

Advocates can request confirmation of receipt from Ministry on the last page of the application

Wait times can vary greatly, but are currently very short.


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Breakout Groups


403

Questions for breakout groups

Strengths/Weaknesses

of application

Inconsistencies

between part 2 and 3?

Would further info be

helpful? What info?


404

Request for ReconsiderationThe Advocate’s Role


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Health Reconsideration Branch

Requests for Reconsideration are reviewed by Reconsideration Adjudicators at the Health Reconsideration Branch

Adjudicators are ministry employees who were not involved in the original decision

Derek is denied PWD!


406

Steps to start a request for

reconsideration

Client must notify the Ministry if they want a reconsideration

Ministry sends a “reconsideration package”, explaining the decision, and the client must fill in an attached form.

Reconsideration package includes the deadline for submitting the form. It should be 20 days from when the client gets the form.

The deadline can be extended upon request.


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Understanding the original denial decision

When a PWD application is turned down, the Ministry provides written reasons that explain their decision

Reasons should consist of: Evidence relied on to make the decision

Relevant legislative provisions

Application of facts to legislation

The Ministry has a duty to provide reasons for its decision – if you cannot understand the reasons for a decision you are reviewing, this may be a basis for appeal in itself


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Assessing the merit of reconsideration Not all decisions that can be reconsidered should be

reconsidered necessarily

You need to have a plausible basis to argue that the reconsideration adjudicator should come to a different conclusion

Factors to consider when assessing the merits may include:

Misinterpretation or omission of relevant legislation

Incorrect or insufficient facts

Unreasonable exercise of discretion

Availability of additional evidence to prove the client’s case

Procedural unfairness

Insufficient written reasons

Appearance of prejudice or bias


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Supporting Evidence Reconsideration adjudicators have the power to make a new

decision and can weigh any new evidence

New evidence means evidence that was not in front of the Ministry at the time of the original decision


410

Developing Arguments

Your arguments should be developed in reference to the Minister’s reasons for denial

Do you agree the Ministry has correctly applied the applicable law to the facts?

Has the Ministry failed to consider relevant evidence or legislation?

Can you acquire new evidence that would help to establish your position?

Having difficulty developing arguments? →Bounce ideas off of a colleague, or Povnet, or your supervising lawyer, or CASL, etc.


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Preparing submissions

Submission length should be tailored to how complicated the issue is

Concise and well-organized submissions that make succinct arguments are often the most effective

Write in a courteous and respectful manner

If you have more complicated submissions, consider organizing submissions into subsections to make them easier to read


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Breakout Groups


413

Questions for breakout groups

How does template

doctor letter address

the problems identified

in the denial decision?

Does the template letter

address all the

problems?

Would you add anything

else?


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Receiving a decision

Make sure you instruct your clients to contact you to let you know about the outcome of a decision in case you do not receive a copy

If a decision is denied, review the reasons and determine the next steps

Possible next steps include: Reapplying for the benefit

Appeal to the EAAT

Seeking other support options


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The Employment and Assistance Appeal Tribunal

(EAAT)Derek goes to the Tribunal!


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The EAAT

The tribunal is independent from MSDPR and is responsible for reviewing MSDPR decisions including PWD denials

Decisions of the Tribunal are made by an assembled panel

The panel consists of: a Chair and up to two additional panel members


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Initiating an Appeal

Client receives Reconsideration Decision

Client completes, submits, and signs Notice of Appeal within 7 business days

Appeal coordinator schedules hearings within 15 business days

Provide submissions to Appeal Coordinator within 3 business days of the hearing

EAAT holds a hearing (written or oral)


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Appeal Time Limits

A person who has a right of appeal to the tribunal has to start the appeal in the way described by the legislation within 7 business days of the date the person receives the notice of the decision being upheld


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Reconsideration or Appeal Supplement The Minister may provide a supplement to a family unit

that is eligible for disability assistance if the recipient in the family unit delivers a request for reconsideration under section 71 or submits an appeal form under section 84 of the Employment and Assistance Regulation in the case of a family unit that is eligible for disability assistance, resulted a discontinuation or reduction of disability assistance or a supplement

The Minister will do this only if the recipient agrees in writing to repay the amount of supplement provided under this section


420

Further resources for advocates and clients

DABC Helpsheets: https://disabilityalliancebc.org/category/publications/help-sheets/

MSDPR online policy manual: https://www2.gov.bc.ca/gov/content/governments/policies-for-government/bcea-policy-and-procedure-manual


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https://disabilityalliancebc.org/category/publications/help-sheets/


Questions?


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Legal Advocacy Training Course – 2021

Persons with Disabilities Designation Overview

Created by Thea McDonagh of the Together Against Poverty Society, May 2019

Updated by Milica Palinic and Andrew Robb of Disability Alliance BC, May 2021


423

2

Contents

Persons with Disabilities Designation – page 3

Income Assistance Classification and BenefitsPWD EntitlementsIncome Assistance LegislationEAPWD ActEligibility Criteria for PWDAlternatives to PWD

Guide to Application Process – page 11

The PWD Application PhysiciansEligibilitySection OneSubmitting the Application and Receiving a Decision

Reconsiderations and Appeals – page 16

Requesting a ReconsiderationMerit AssessmentStrategiesEAAT

Appendix – page 20

Self-report template 1Self-report template 2Cover letter to physician/assessorTemplate support letterReconsideration extension requestPhysician cover letter – reconsiderationPhysician template letterShort form reconsideration submissionLong form reconsideration submissionEAAT submission


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INCOME ASSISTANCE CLASSIFICATIONS AND BENEFITS

*Note: Shelter and support amount increases with number of family members*For all BC Employment and Assistance Rate Tables, go to:

https://www2.gov.bc.ca/gov/content/governments/policies-for-government/bcea-policy-and-procedure-manual/bc-employment-and-assistance-rate-tables

Classification Monthly Benefits MSDSI Medical Benefits Other AdvantagesShelter Support Total

Employable $375 $560 $915 Pharmacare, Diet and NatalSupplements, Emergency Dental, Dentures under certain circumstances

Earnings exemption:

$500 per month

Person with Persistent Multiple Barriers [PPMB]

$375 $607.92 $982.92 The Above plus: Enhanced medical, dental, optical, transportation, medical equipment & supplies

Earnings exemption:

$900 per month

Person with Disabilities [PWD]

$375 $983.42 $1358.42 The Above plus: annual bus pass or $52 per month in transportation subsidy

Priority for subsidized housing

Earnings exemption:

$15,000 per year


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PWD ENTITLEMENTS

A person with the PWD designation may be eligible for:

∑ Monthly support and shelter benefits∑ Medical Services Plan and Pharmacare coverage as well as health supplements such as

dental and optical coverage ∑ Transportation supplement ($52 per month or bus pass)∑ An earnings exemption of $15,000 per year∑ Asset limit of $100,000∑ Some income exemptions∑ Exemptions from time limits and employment obligations ∑ Monthly Nutritional Supplement∑ Special Transportation Supplement∑ Medical Equipment and devices

NOTE: For further information with regards to available supplements for PWD recipients please refer to these two websites:

Disability Alliance BC http://disabilityalliancebc.org/hs7/

“When You’re on Welfare” published by the BC Legal Services Society at https://lss.bc.ca/publications/pub/your-welfare-rights-when-youre-welfare

INCOME ASSISTANCE LEGISLATION

∑ Employment and Assistance Act & Regulation [EA Act/Reg]∑ Employment and Assistance for Persons with Disabilities Act & Regulation [EAPWD

Act/Reg]

The above legislation is available online through the BC Employment & Assistance Policy & Procedure Manual at: https://www2.gov.bc.ca/gov/content/governments/policies-for-government/bcea-policy-and-procedure-manual

To determine which act a client falls under you only need to determine whether they have received ‘Persons with Disabilities’ designation.


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http://disabilityalliancebc.org/hs7/

https://lss.bc.ca/publications/pub/your-welfare-rights-when-youre-welfare



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EMPLOYMENT AND ASSISTANCE FOR PERSONS WITH DISABILITIES ACT

Persons with Disabilities

2 (1) In this section:

"assistive device" means a device designed to enable a person to perform a daily living activity that, because of a severe mental or physical impairment, the person is unable to perform;

"daily living activity" has the prescribed meaning;

"prescribed professional" has the prescribed meaning;

(2) The minister may designate a person who has reached 18 years of age as a person with disabilities for the purposes of this Act if the minister is satisfied that the person is in a prescribed class of persons or that the person has a severe mental or physical impairment that

(a) in the opinion of a medical practitioner or nurse practitioner is likely to continue for at least 2 years, and


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(b) in the opinion of a prescribed professional


(A) continuously, or

(B) periodically for extended periods, and



(a) a person who has a severe mental impairment includes a person with a mental disorder, and

(b) a person requires help in relation to a daily living activity if, in order to perform it, the person requires

(i) an assistive device,

(ii) the significant help or supervision of another person, or

(iii) the services of an assistance animal.

(4) The minister may rescind a designation under subsection (2).

EMPLOYMENT AND ASSISTANCE FOR PERSONS WITH DISABILITIES REGULATION

2 (1) For the purposes of the Act and this regulation, "daily living activities",

(a) in relation to a person who has a severe physical impairment or a severe mental impairment, means the following activities:

(i) prepare own meals;

(ii) manage personal finances;

(iii) shop for personal needs;

(iv) use public or personal transportation facilities;

(v) perform housework to maintain the person's place of residence in acceptable sanitary condition;

(vi) move about indoors and outdoors;

(vii) perform personal hygiene and self care;

(viii) manage personal medication, and


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(b) in relation to a person who has a severe mental impairment, includes the following activities:

(i) make decisions about personal activities, care or finances;

(ii) relate to, communicate or interact with others effectively.

(2) For the purposes of the Act, "prescribed professional" means a person who is

(a) authorized under an enactment to practise the profession of

(i) medical practitioner,

(ii) registered psychologist,

(iii) registered nurse or registered psychiatric nurse,

(iv) occupational therapist,

(v) physical therapist,

(vi) social worker,

(vii) chiropractor, or

(viii) nurse practitioner, or

(b) acting in the course of the person's employment as a school psychologist by

(i) an authority, as that term is defined in section 1 (1) of the Independent School Act, or

(ii) a board or a francophone education authority, as those terms are defined in section 1 (1) of the School Act,

if qualifications in psychology are a condition of such employment.


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http://www.bclaws.ca/civix/document/id/complete/statreg/96216_01



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ELIGIBILITY CRITERIA FOR PWD

1. Applicants must be 18 years old or older. Applicants that are under the age of 18 canapply for the designation 6 months before their 18th birthday.

2. The Minister must determine that the disability is severe in nature.

3. A physician or nurse practitioner must confirm that the impairment is likely to continue for at least two years from the date of application.

4. The applicant must be significantly restricted from performing activities of daily living either continuously or periodically for extended periods.

5. The applicant must be significantly restricted from performing activities of daily living either continuously or periodically for extended periods.

6. The applicant must require help to perform activities of daily living either from an assistive device, another person or an assistance animal.

*The client MUST meet all of these criteria in order to qualify*


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ALTERNATIVES TO PWD

Not all clients meet the criteria necessary to obtain PWD designation. There may be other options available to your client.

1. They may be eligible for Persons with Persistent Multiple Barriers (PPMB) designation,2. They may be eligible for an exemption from work search requirements or,3. They may be eligible for federal disability benefits (CPP-D).

Persons with Persistent Multiple Barriers (PPMB)

The Persons with Persistent Multiple Barriers (PPMB) category provides assistance to clients who have long-term barriers to employment. PPMB clients are exempt from employment obligations. See page 3 of the manual for more information on PPMB entitlements.

PPMB applies to clients who are eligible under the Employment and Assistance Act. PPMB is not included in the Employment and Assistance for Persons with Disabilities Act. Therefore, PPMB cannot be assessed for spouses of clients with the Persons with Disabilities (PWD) designation.

PPMB Legislative Requirements

1. A person must have been in receipt of income assistance or hardship benefits for 12 of the preceding 15 months (expected to change this summer)

2. A medical condition, excluding addictions (expected to change this summer) that has been confirmed by physician and lasted for 1 year and is likely to continue for 2 or more years

3. Scores 15 or higher on the ministry Employability Screen and has a medical conditionthat seriously impedes the person’s ability to search for, accept or continue in employment OR

4. Scores less than 15 on the Employability Screen and has a medical condition that precludes the person from searching for, accepting or continuing in employment

5. Has taken all reasonable steps, in the Ministry’s opinion, to overcome employment barriers identified in the Employment Screen


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Canada Pension Plan Disability Benefits

Clients who do not meet the criteria for the PWD designation may also be eligible for Canada Pension Plan Disability (CPP-D) benefits. This a federal disability benefit for clients who:

∑ Are under 65 years old∑ Have contributed to CPP in four out of the six years before becoming disabled or, if they

have contributed to CPP for 25+ years, then must have contributed to CPP in three out of the six years before becoming disabled

∑ Have a severe and prolonged disabilityo Severe: regularly prohibits any substantially gainful employmento Prolonged: long-term and of indefinite duration, or likely fatal

CPP-D is based on employability.


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STEP BY STEP GUIDE TO THE APPLICATION

Obtaining the PWD Application

Applicants can request a PWD application through an Employment Assistance Worker (EAW) at the Ministry of Social Development and Poverty Reduction (MSDPR). They have to have an open file and have completed the intake process for income assistance to have their income and assets tested prior to receiving a PWD application.

Keep in Mind

If the applicant does not have a physician:

∑ you can search for one who is accepting new patients on the College of Physician and Surgeons of BC website: https://www.cpsbc.ca/physician_search

∑ some walk-in clinics post their schedule, this allows clients to build a relationship with a doctor if they are unable to obtain a family physician

∑ You should encourage the applicant to build a relationship with a new physician and attend at least a couple appointments BEFORE completing the PWD application.

Eligibility

1. Must be eligible for disability benefits (income and asset tested)2. Must be at least 18 years of age3. Medical practitioner must confirm that the impairment is likely to continue for at least

two years

The next three criteria are the most frequently denied criteria:

4. The disability must be deemed severe5. The disability must directly and significantly restrict the ability to perform daily living

activities either continuously or periodically for extended periods; 6. The applicant must require help to perform daily living activities from an assistive

device, another person and/or an assistance animal

PWD Applications Consist of Three Sections

Section 1: This section is for the applicant to complete. As an advocate you can assist the applicant to fill out this section.Section 2: This section must be completed by a medical or nurse practitioner Section 3: This section is to be completed by a Prescribed Professional (Assessor)


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https://www.cpsbc.ca/physician_search

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A Prescribed Professional can include: ∑ a registered psychologist∑ a registered nurse or registered psychiatric nurse∑ an occupational therapist∑ a physical therapist∑ a registered social worker∑ chiropractor∑ nurse practitioner∑ physician (physicians can fill out Sections 2 and 3)

ÿ Physicians and Assessors are compensated for filling out the PWD application. The billing information is located on page 6 of the PWD application.

Section One

PART A – Personal Information

This area is designated for the applicant’s information. If the applicant does not have a fixedaddress, you can provide a C/O address. Notice of Approval or Denial will be sent to this address. This is especially important for clients who do not have access to My Self Serve. In the event of receiving a denial notice, the applicant will have to respond promptly; it is important that they have good access to whatever address they use.

This part also asks, “Do you need help completing this application?” If you are assisting the applicant with the application, check yes.

PART B – Disabling Condition

As an advocate you may assist your client in filling out this section of the PWD application. The courts have said that Ministry adjudicators must place significant weight on the evidence of the applicant unless there is a legitimate reason not to do so. However, the personal testimony of clients is not always given significant weight in the adjudication of PWD applications. By assisting your client to have a strong self-report, you are setting the stage for any future appeals that may be necessary.

In addition, a well written self-report can be helpful to your client’s physician in filling out the other sections of the application. There may be important information in the self-report that your client has not shared with their physician. The self-report can be typed by the advocateand provided to the physician prior to the completion of sections 2 and 3. You may find that the client has filled out this section by themselves - it is still useful to fill out a separate self-report document.


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Things to remember when helping client with section 1:

• Write in 1st person• Be as concise as possible• Stick to the legislative criteria• It is not necessary to have a diagnosis. If there are no diagnoses, simply describe the

symptoms• It may be necessary to do some research into diagnoses to better understand the

applicant’s symptoms. Do not diagnose.• Even when the individual receives no support, establish that a need for assistance exists

Definitions

Daily Living Activities: according to the Employment and Assistance for Persons with Disabilities Act, daily living activities include the following:

∑ preparing own meals∑ managing personal finances∑ shopping for personal needs∑ using public or personal transportation facilities∑ performing housework ∑ moving about indoors and outdoors∑ performing hygiene and self-care∑ managing personal medication

For applicants with a mental impairment or brain injury, daily living activities also include:

∑ making decisions about personal care, activities, or finances∑ relating to, communicating with, or interacting with others effectively

Continuous Assistance: needing significant help most or all of the time for an activity.

For example: An individual with a severe brain injury may require continuous help with all daily living activities, due to memory loss; inability to concentrate or perform simple tasks; feelings of agitation; difficulties with communication, and so on.

Periodic Assistance: needing significant help for an activity some of the time.

For example: An individual with irritable bowel syndrome may have periods of increased symptoms for extended periods of time. During this time, the individual may not be able to leave their home and require significant help with any daily living activities


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outside the home, as well as activities such as housekeeping, meal preparation, and so on, until symptoms decrease in severity.

Note: When periodic assistance is required it is important to indicate the frequency and duration that it is required for. For example: “John requires periodic assistance on average 3-4 days per week with daily shopping when his back pain is exacerbated.”

Significant help may be required; however, this does not mean the applicant is actually receiving help.

PART C – Declaration and Notification

The declaration requires completion by the applicant. Any person, over the age of 18, can witness the applicant signing this page. The witness is required to provide their name, signature, and contact information (if they have address/phone).

If the applicant is unable to sign the declaration, a legal authority such as a guardian, proof of committee, or power of attorney is able to sign the page on the applicant’s behalf.

Submitting the Application

It is important to have the applicant bring their completed PWD application to you before submitting it to MSDPR. This gives you the opportunity to make sure that all sections of the application are thoroughly filled out and reflect the applicant’s impairments.

If the physician or assessor filled out their section incorrectly or forgot to add information, you can request that they make the changes and/or additions. Many times, changes will be made without hesitation; however, other times, the applicant may experience resistance from their health practitioner. Again, an advocate is extremely helpful in this situation. The health practitioner may require more information on PWD designation or how the applicant experiences their disability.

When the PWD application is complete and ready – go over the quick checklist on the inside back cover of the PWD application. Better to be safe than sorry!

Receiving the Decision

Although the Health Assistance Branch can take up to 3 months to adjudicate a PWD application, it has not been taking this long. If the application is denied, the applicant has the option to appeal this decision, re-apply for PWD, or accept the decision.


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Applicants have the right to appeal if they are turned down for PWD and it is important to act fast if they choose this option. If the applicant wants to re-apply for PWD they can submit a new application, with added information that may increase their chances of being approved. If the applicant recognizes that the decision was valid and they have accepted the decision, Persons with Persistent Multiple Barriers (PPMB) benefits may be a possible option.


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RECONSIDERATIONS AND APPEALS

There are two levels of appeal available to someone whose application for PWD has been denied.

Requesting a Reconsideration

The first level of appeal of a ministry decision is to “Request a Reconsideration” of that decision. A person requests a reconsideration by obtaining and completing a Request for Reconsideration form (HR0100). These forms are prepared by EAWs, and can be obtained at a local office or by calling the ministry’s general inquiries line. The form specifies the ministry’s decision, the reasons for the decision, and the applicable/relevant legislation.

Merit Assessment

A merit assessment should be conducted before proceeding with a reconsideration. Some things you may want to consider before agreeing to proceed include:

∑ Likelihood of success∑ Advocates workload and ability to take on the file∑ Client’s ability to advocate for themselves

During your merit assessment you may determine that there is no or little likelihood that the reconsideration will be successful. This can be due to a number of reasons such as lack of medical evidence, an unsupportive physician or the client not meeting the legislated criteria. In this case, it may be a better for the client to reapply or pursue a different benefit.

In order to conduct a thorough merit assessment, you will need to review the denial decision summary, PWD application and any other evidence submitted with the application. A good starting point is to review whether the medical opinion accurately reflects the person’s actual restrictions and need for assistance. If the individual reports information either not contained in the application or not correctly reported, contact the doctor/assessor and request an amended opinion.

Reconsideration Strategies

When submitting the reconsideration package include any new information or evidence in the case you can obtain. The ministry places significant weight on the medical evidence included in the PWD application and/or submitted at reconsideration. It is important to gather the best medical evidence available to support the client’s application. Rather than focusing on lengthy legal arguments that reference case law and precedence, we have found that a strong doctor`s letter is most effective.


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Once you have gathered information from the client, compared it with their application and reviewed the reasons the ministry has given for denial, you should have a clear understanding of what information needs to be submitted. Our practice at TAPS is to draft a template letter or checklist for the physician that addresses any discrepancies and contains the updated information for the doctor/assessor to adopt if they agree with the contents (See page 32-33).

It is important that a cover letter be sent with the template explaining who you are and what your role is. The cover letter should include language that explains that this is only a template and that it is not meant to replace the physician’s medical opinion (See page 29).

We have found that most physicians are happy to use our template as it saves them time. Occasionally we have physician’s that are not comfortable signing a letter they have not drafted themselves. In this case, we always offer an electronic copy so they can make any changes they deem necessary. We have found that a strong physician’s letter is often sufficient evidence to reverse the Ministry’s decision. When submitting a reconsideration with a strong physician letter we use a short form reconsideration submission (See page 34).

If additional medical evidence is not available a longer submission may be required (See pages 35-38). In these circumstances there may be an interpretation argument to be made or relevant case law that could alter the Ministry’s decision.

Submitting a Request for Reconsideration

A request for reconsideration must be submitted within 20 business days from the date the person was notified of the decision. If a completed HR0100 form is not received within 20 business days, it is deemed that the person has accepted the ministry’s decision.

Extensions may be provided by the ministry if a person is unable to submit the completed reconsideration form within 20 business days. The ministry must receive the extension requestbefore the reconsideration decision has been made. A request is made by submitting the form to the Reconsideration Branch, advising that the matter is not ready for adjudication, and requesting an extension (See page 30). Typically a person is given a 10 day extension from the date the exention is requested. However, it is also possible to request that an additional 20 business days from the initial deadline, as the Reconsideration Branch has 20 days to adjudicate the file when an extension is granted.


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Employment and Assistance Appeal Tribunal

If your case is unsuccessful at reconsideration, the next step is to consider an appeal of the decision. You have 7 business days from the date you received the Ministry’s reconsiderationdecision to submit a Notice of Appeal Form to The Employment and Assistance Appeal Tribunal (EAAT).

The EAAT is the body which reviews MSDPR decisions. The EAAT panel decides whether the ministry’s decision was:

∑ Reasonably supported by the evidence; or∑ A reasonable application of the legislation given the circumstances of the

recipient/applicant

When submitting the Notice of Appeal, you have the option of indicating what form of hearing you would like: oral (in person or over phone) or in writing. The hearing will be set within 15 business days of the Tribunal receiving the Notice of Appeal.

The Panel must make a decision within 5 business days of the hearing. The Panel has 5 days to communicate the decision to the EAAT, at which point the decision is mailed to the appellant.

Under Ministry policy, when the Tribunal rescinds the ministry’s reconsideration decision, the effective date of eligibility is dependent on the type of assistance applied for. Some are retroactive to the date of the Reconsideration decision, others effective the first of the month following the Reconsideration decision.

Additional Evidence at Hearing

If, since the time of the Reconsideration, you obtain or become aware of other evidence which will help your case, you may include it in your submissions. The Panel may consider evidence that was not part of the prior record as the panel thinks is reasonably required for a full and fair disclosure of all matters related to the decision under the appeal.


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APPENDIX

SELF REPORT TEMPLATE 1

Persons with Disability Designation Application Applicant: Gary Roy

Describe your disability:

I am 50 years old and living with chronic lower back, knee and shoulder pain. I was in a motor vehicle accident when I was six years old which left me completely immobile in a body cast for over a month. I sustained a broken collarbone and leg and continued to experience pain from these injuries. At nineteen, I began to experience debilitating pain in my lower back. Throughout my twenties and thirties, I sustained multiple work-related injuries, including two serious falls. Over the last thirty years, my chronic back pain has impacted every aspect of my functioning, both physically and emotionally. At least three days per week I am unable to leave my home due to pain. I cannot fall asleep when I am in pain and experience an erratic sleep cycle. The inability to do many activities causes severe depressive episodes which manifest primarily through feelings of hopelessness, worthlessness, hostility and a desire to self-isolate.

How does your disability affect your life and your ability to take care of yourself?

Physical Functioning: There are 3-4 days per week that my back pain is so severe that I am unable to leave my house. During those periods, I am unable to do any element of physical functioning.

Walking: Even on good days, I am unable to walk even one block without experiencing sharp pain in my lower back. Stairs: Similarly, due to the pain in my right knee, it takes me approximately 3-4 times longer than average to climb one flight of stairs. Lifting: I cannot lift more than 5 pounds. Carrying and holding: I am unable to carry or hold more than five pounds without assistance. Standing: I am only able to stand for five minutes and can only do so if I am shifting my weight from foot to foot or bracing my weight on surroundings. Sitting: I cannot stay seated for longer than thirty minutes without experiencing severe, shooting pain throughout my lower back.

Cognitive/Emotional Functioning:

Bodily functions: The disturbance to my sleeping pattern is profound. I am only able to get 4-5 hours of interrupted sleep per day. Often times I am completely unable to sleep throughout the night and as such my longest stretches of sleep are sometimes in the middle of the day. My


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chronic pain and depression both affect my appetite and my ability to cook for myself and I often eat only one meal per day; an average of 2 days per week I will not eat at all. Consciousness: Due to lack of sleep, I constantly feel drowsy and fatigued throughout the day. Physical pain severely impacts my ability to remain alert to my surroundings as I am often preoccupied with my pain symptoms. Emotions: The depression I experience in relation to my physical pain manifests primarily as intense anger. I often feel a complete lack of control over my emotional state as well as intense feelings of hopelessness and worthlessness. Extreme levels of pain leave me agitated and on edge, making social situations incredibly difficult to navigate as I can easily lash out or become hostile. Due to both my physical state and the related emotional impairments I self-isolate approximately half of every week. Attention/concentration: Due to my chronic pain and fatigue, I experience extreme difficulty maintaining concentration. I have a hard time staying on task or focusing on a conversation.Memory: I find it tremendously challenging to remember new information, even if it is relevant and important for my life.Executive functioning: My ability to plan, organize, and problem-solve are greatly impacted by my chronic pain because I am unable to focus on anything other than the pain. Additionally, it is hard to plan as the intensity of my back pain is unpredictable, so I am unable to determine what my abilities will be ahead of time. Often times I am unable to make important appointments due to being completely immobile. Motivation: I have lost all motivation to attempt to do things I once enjoyed because most everything causes me physical pain.

Activities of Daily Living (ADLs): I am unable to complete any ADLs during the 3-4 days per week that my back pain is extreme.

Personal care: Dressing: The twisting and bending involved in getting dressed causes me significant pain, and I am only able to change my clothes approximately 2-3 days per week. Grooming: Activities of grooming that requires bending and twisting, such as clipping my toe nails, will leave me in excruciating pain throughout the rest of the day and as a result I avoid them until absolutely necessary. Bathing: Bathing requires constant mindfulness and attention to my movements and as a result takes me 3-4 times longer than average. I also require a grab bar to enter and exit the shower safely. Toileting: I must use a grab bar when getting on and off the toilet. Transferring in/out of bed: Getting out of bed takes a long time as sudden movements will cause shooting pains throughout my back and knees. This can take anywhere from five to fifteen minutes depending on the severity of my pain in the morning.

Basic Housekeeping


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Laundry: The bending and lifting required to complete my laundry greatly aggravates my back. I am only able to complete laundry an average of once per month as I am often unable to carry my laundry as far as the elevator. Housekeeping: Any household tasks that require bending and twisting are not possible. I cannot complete tasks that require me to kneel such as washing the bathtub or wiping up a spill. At least four days per week I am completely unable to do any housekeeping tasks. I require the assistance of a neighbor with removal of garbage and recycling from my home as I am not able to carry it to and from the elevator.

Shopping: My ability to go shopping is severely limited due to my lower back pain. Walking around a store can cause me debilitating pain and I am only able to purchase 3-4 items at a time as I cannot carry more than five pounds.

Meal preparation/cooking: I rely heavily on ready-made food as cooking is often too difficult. When I am able to cook for myself, I have to sit down while I do activities such as chopping vegetables and rest multiple times throughout the cooking process. This takes approximately 6-8 times longer than average and as a result, I usually only eat one meal per day.

Transportation: I am unable to take public transit as I cannot walk to the bus stop without my back causing me severe pain, therefore I am heavily reliant on the amenities that are within one block from my home.

Social functioning: Social decisions: When I am experiencing severe pain, I am unable to make sound social decisions. I will often act impulsively and have a tendency to become confrontational. Developing and maintaining relationships: I constantly have to cancel plans because of my chronic pain, and often avoid making plans since the pain is so unpredictable. I feel guilty and anxious about how often I cancel plans, and find staying in contact with family, friends, and neighbours overwhelming.Interacting with others: I find interacting with others frustrating because they are not able to understand the scope of my chronic pain and its effects on my life. When I am experiencing severe pain, I completely self-isolate in order to avoid potentially negative interactions with others.Dealing with unexpected demands: 3-4 days per week, I am completely unable to deal with any unexpected demands as I am so consumed by my chronic pain. Securing assistance: I experience deep shame in relation to my loss of mobility and my physical impairments, making it extremely difficult for me to ask for assistance from others. I will often attempt to complete a task multiple times before securing assistance from others.

Describe the degree of support that is needed to assist you to accomplish activities of daily living including the use of assistive devices.


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I require periodic assistance 3-4 days per week with all daily activities due to increases in my pain levels. I require continuous assistance for housekeeping, shopping, preparing and cooking meals, and laundry. I require a grab-bar for showering and bathing. Additionally, I require continuous and ongoing support to manage my depression and social functioning.

The preceding information was prepared with the assistance of an advocate at Together Against Poverty Society.

Signed ____________________________ Date ______________________ 2019


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SELF REPORT TEMPLATE 2

Persons with Disability DesignationApplicant: Ms. Georgina Crane

Describe your disability:

I am a 43-year-old woman and I live with fetal alcohol spectrum disorder (FASD), borderline personality disorder and post-traumatic stress disorder (PTSD). I was born with alcohol dependency and showed significant developmental deficits at an early age. I was placed in over26 different foster homes throughout the course of my childhood. I began showing signs of post-traumatic stress disorder around my tenth birthday, prior to which, I had experienced multiple instances of abuse. These traumatic experiences, coupled with a complete absence of a consistent caregiver throughout my childhood, has severely impacted my ability to form healthy adult relationships. My social skills are further impacted by symptoms of FASD and borderline personality disorder. I often oscillate between deep feelings of love and extreme paranoia and distrust of anyone close to me. I have difficulties identifying when I am being taken advantage of or when someone is acting with malicious intent, and as a result, I often find myself in highly abusive relationships.

As a result of being alcohol-affected, I have substantial learning disabilities and neurological impairments which impact my day to day life in a variety of ways; I am unable to follow a budget, I struggle with basic mathematics and even though I am talkative, my receptivity skills are significantly impaired. I have profound attention deficits and am often unable to pay attention to a conversation for longer than one minute. I struggle to identify social cues and often act inappropriately in social environments. I have serious memory impairments and I struggle to retain any new information, even if it is of personal importance.

In addition to my mental health diagnoses, I also live with irritable bowel syndrome (IBS) and substance use disorder. These both have profound impact on my day to day physical functioning; 3-4 days per week I experience severe abdominal pain and a complete loss of appetite.

How does your disability affect your life and your ability to take care of yourself?

Physical Functioning:

Walking: Between 2-3 days per week I am unable to walk more than one block without experiencing severe abdominal pain.


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Lifting, Carrying and Holding: Approximately 2-3 days per week I am unable to have a bowel movement in the morning. This causes extreme restriction around my core and I am unable to bend lift or carry items weighing more than 2 pounds. Standing: I cannot stand still for any amount of time. Due to pain, anxiety and my attention deficit, I constantly have to shift my weight from leg to leg.

Communication

I have significant challenges with both verbal and non-verbal communication. Even though I am expressive, my receptive language skills are severely impacted by FASD. I struggle to read and write basic statements and require continuous assistance with any written form of communication. I am unable to pick up on subtle non-verbal cues, which impacts my ability to interact in social settings and I often become extremely uncomfortable and self-conscious.

Cognitive/Emotional Functioning:

Bodily functions: IBS severely impacts my digestive system and I oscillate between constipation and diarrhea, both causing extreme discomfort. My IBS is best managed through a strict schedule and diet; however, because I am homeless, I am not able to regulate either my routine or my diet and as a result I consistently feel a nagging, dull pain in my abdomen due to chronic bloating and constipation. Approximately 2-4 days per week I am unable to have a bowel movement in the morning; this causes me abdominal pain that worsens throughout the day. I experience significant difficulties regulating my sleeping patterns and often only get between 3-4 hours of uninterrupted sleep per night. This is due in part to paranoid thoughts I experience about sleeping in communal shelters which keep me awake. I have a very limited appetite and I rely heavily on meal replacements as I do not have any teeth. I often go 2-3 days without eating and require constant reminders that I need to eat.

Emotions: Anxiety: I experience unpredictable panic attacks that are linked to PTSD. Almost daily, I am triggered by social interactions and any perceived unkindness, which will cause a panic attacks. During panic attacks, I will lose control of my body and experience a tightening sensation in my chest, like I am having a heart attack. When this overwhelming sense of panic occurs, I need to stop whatever I’m doing and leave the area immediately.Depression: As a result of PTSD and borderline personality disorder, I experience a vicious cycle of melancholy, hostility and severe paranoia. During my daily struggles with depression, I get trapped in a cycle of negative self-talk which can lead to suicidal ideation.Trauma-Related Symptoms: I experience intrusive memories, nightmares, and flashbacks of traumatic events from throughout my past on a daily basis. These memories often make me so distressed that I feel physically pained and nauseous. These symptoms considerably exacerbatemy depression and anxiety. Impulse control, insight, and judgment: I impulsively spend money and am often unable to comprehend when those around me are being financially abusive, leading me to spend well


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beyond my means. I engage in risky behaviors such as illicit drug use and having one-night stands without using protection.Attention/concentration/memory: FASD severely impacts my attention, concentration and memory. I experience extreme difficulty following a conversation, completing a task from start to finish or maintaining concentration for longer than five minutes. I experience so many racing thoughts I easily lose my train of thought. My memory has been severely impacted and I now show signs of early-onset dementia. I experience short term memory lapses that cause me a huge amount of anxiety. I am often unable to retain any new information, even when it is of significance to me. Executive functioning: My ability to plan, organize, and problem-solve are greatly impacted by FASD and my mental health impairments. I am easily overwhelmed by planning and organizing my daily life, and I become emotional in situations that require problem-solving. I require the continual support of a case worker with any type of complex planning or organizing.Motivation: I often become depressed to the point that I lack any motivation to care for myself. It is a tremendous struggle to motivate myself to face the day, and as such, I am often unable to complete basic day to day tasks. Motor activity: My anxiety and trauma-related symptoms cause me extreme tension and agitation. As such, I constantly pace back and forth as a response to the tension. Neuropsychological problems: As a result of my FASD, I live with psychomotor impairments which slow down my thought process, my ability to communicate and movements. As a result, I experience difficulty carrying out basic self-care tasks and daily living activities. Activities requiring very little mental or physical effort can feel insurmountable.Language: I have difficulty communicating when stressed or overwhelmed. My speech becomes rapid, stuttered, and disorganized. I cannot find any of the words I am looking for, and get so frustrated that I shut down completely. My receptive language skills are significantly impacted by FASD. Psychotic Symptoms: I experience intense paranoia and delusional thoughts on a weekly basis. Currently, I am unable to use or own a telephone because I am convinced that I am being monitored by authorities and even the general public. When I am depressed, I experience intrusive thoughts about throwing myself into traffic. Hostility: My anxiety and trauma-related disorder leave me feeling on edge, agitated, and hostile. I get visibly and overly agitated on a daily basis. I am quick to overreact when my anxiety is triggered. Knowing that I easily become hostile, I constantly isolate myself so I do not cause emotional pain to those around me.

Activities of Daily Living (ADLs):

All ADLs: Approximately 2-3 days per week, I am unable to complete any ADL’s while I am experiencing severe anxiety, paranoia or physical pain.

Personal care:

Dressing: I experience tactile hyper-sensitivity and cannot have any tags or seams touch my skin as it causes me intense discomfort. I have to cut all the tags out of my clothing and I often wear my clothes inside out to avoid having seams touching my skin. I cannot wear any fabric that is


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itchy or textured as it feels painful and I am unable to focus on anything other than the physical sensation.

Grooming/Bathing: I have intense anxiety about germs that I come into contact with and as a result my grooming and bathing routines border on obsessive. Every time I use the washroom I have to wash my hands four-five times until I feel as though I have rid myself of all germs. My anxiety is made worse by the fact that I am reliant on public washrooms – I have to hover above toilet seats and clean every surface I touch.

Toileting: IBS heavily impacts my bodily functions and causes chronic diarrhea. Because I am homeless, I am reliant on the availability of public washrooms and have limited access. At least 3-4 days per week I have to hold my bodily functions causing agonizing abdominal pain and increased anxiety as a result.

Regulating diet: I am completely unable to regulate my diet. At least 3 days per week I have little to no appetite and if I am not given any reminders I will forget to eat for 2 days at a time. I rely heavily on Ensure and other meal replacement drinks as I do not have any teeth and find most foods difficult to chew with partial dentures. I would benefit from the continuous support of a health professional in regulating my diet.

Housekeeping and Laundry: I oscillate between completely neglecting my household chores and having obsessive tendencies – approximately 2-3 days per week, when I am in severe physical pain, I am not able to complete any household chores. When I am physically able to complete chores, I do so in an obsessive manner.

Shopping: My ability to shop is impacted by both FASD and anxiety. I am often unable to make appropriate purchases and struggle to complete basic budgeting required for grocery shopping. My ability to get to the store, wait in a checkout line, and interact with the clerk are all severely limited by anxiety. A busy store can easily trigger a panic attack and if I experience any adverse interaction I often have to leave immediately.

Meal planning, food preparation, and cooking: Even though I am aware of my dietary needs I have significant challenges in meal planning accordingly. I am limited to eating only soft foods that require almost no chewing and as such, I am heavily reliant on meal replacement drinks. I require continuous support and reminders that I need to eat.

Paying bills and rent: I find attending to financial responsibilities challenging as I have difficulty focusing and making decisions. I impulsively spend beyond my means, and cannot budget or prioritize bills. I require assistance with budgeting and paying bills on time.

Social functioning:

Social decisions: My social functioning is severely impacted by my mental impairments. I lack the insight to identify when I am getting into dangerous situations. I find it challenging to make healthy and safe decisions when depressed or panicked and I often become defiant and hostile when met with those in positions of authority.

Developing and maintaining relationships: As a result of my childhood trauma I experience deep distrust of those around me and this leaves me completely unable to have healthy, stable relationships. I experience a lot of anxiety and paranoia in social situations, so even though I want


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to make new friendships, I become too overwhelmed with anxiety and intrusive thoughts. I actively isolate myself on a daily basis, and cannot develop or maintain new friendships. I will go to great lengths to avoid running into people I know to the point that I will detour my route to avoid them.

Interacting with others: My immediate social networks are highly disrupted by my mental impairments. Several people have told that I can be hard to be around when I am too stressed and anxious. Additionally, I am easily triggered if I perceive that anyone is being unkind or grumpy with me, and I will break down and cry. Due to my anger and agitation related to my mental illness, I often get in conflict or lash out at those close to me. Additionally

Describe the degree of support that is needed to assist you to accomplish activities of daily living including the use of assistive devices.

I require continuous assistance with diet regulation, housekeeping, shopping, meal planning, managing finances and reading and writing. Additionally, it takes me significantly longer to bath, groom and toilet. I require ongoing one-on-one support to improve my cognitive, emotional and social functioning.

The preceding information was prepared with the assistance of an advocate at Together Against Poverty Society.

Signed ____________________________ Date ______________________ 2019


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COVER LETTER TO PHYSICIAN/ASSESSOR

828 View Street, Lekwungen Territories, Victoria, BC, Canada V8W 1K2Tel: (250) 361-3521 Fax: (250) 361-3541 Web: www.tapsbc.ca

Dear Dr. Spock, December 2, 2018

I am writing to you from the Together Against Poverty Society (TAPS). TAPS assists individuals and their medical professionals as they apply for provincial disability benefits. If an applicant is successful, they will receive additional medical and financial supports.

The application is lengthy and requires detailed medical information. TAPS advocates assist applicants by completing the Self-Report section. We believe reading this report saves physician time and facilitates communication between you and your patient.

In order to be approved your patient must:

∑ Have a severe mental or physical impairment that,o is likely to continue for at least two years,o significantly restricts the ability to perform daily living activities,o the applicant requires assistance to perform those activities

Please note the application is not based on employability. Below are some definitions you may find helpful.

Assistance required: it is only necessary to establish that the need exists, not that the person is or will be receiving the assistance.

Continuous: refers to the need for significant help most or all of the time or an inability to perform an activity independently.

Periodic: refers to the need for significant help intermittently for extended periods. It is important to indicate how often the assistance is required.

Any additional narrative from the physician is important in giving the applicant the best chance of success.

Yours truly, Jane Doe, Legal AdvocateTogether Against Poverty Society


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RECONSIDERATION EXTENSION REQUEST

CONFIDENTIAL FAX COVER SHEET

DATE: December 17, 2015

TO: Ministry of Social Development and Social Innovation – Reconsideration Branch

FAX #: 1-855-771-8784

FROM: Thea McDonagh – Together Against Poverty Society

PAGES: 4(incl. cover)

RE: Patty Patience (SIN 000-000-000)Extension request for SR# 1-00000000000

SPECIAL INSTRUCTIONS OR MESSAGE:

This reconsideration is not ready for adjudication. Please allow for an extension so Ms. Patiencemay gather additional evidence in support of her appeal. If this request is accepted Ms. Patience’s new due date will be January 18, 2016. If there are any concerns with this request please contact me directly at (250) 361-3521.

Please find attached:

1. Signed Reconsideration Form2. Release of Information

Most Sincerely,

Thea McDonagh, Legal AdvocateTogether Against Poverty Society


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PHYSICIAN COVER LETTER – RECONSIDERATION

April 2, 2019Dear Dr. MacNaughton,

RE: Mr. Christopher Moore

We represent your patient Mr. Christopher Moore and are contacting you on his behalf. A releaseof information is enclosed.

You kindly completed Christopher’s application for the provincial Persons with Disabilitiesdesignation. Unfortunately, the Ministry determined that there was insufficient information andtherefore denied his application.

I have reviewed Christopher’s application and believe there is merit in appealing the Ministry’sdecision. I am contacting you for your support.

We appreciate you have a busy practice and the deadline for appealing the Ministry’s decision isshort. I have enclosed a sample letter that speaks to Christopher’s restrictions. The letter is basedon an extensive interview with Christopher and the information you provided in his application.It is not meant to replace your medical opinion; rather it is a template for your consideration.Please make any changes you deem necessary. An electronic copy is available on request.

If you agree with the contents you may simply sign, date and return the completed letter to myattention. The deadline for Christopher’s appeal is short; please return your letter to my attentionby Wednesday, April 10, 2019.

Thank you for your thoughtful consideration of this request. Please do not hesitate to contact meshould you have any questions or concerns.

Most Sincerely,

___________________________Thea McDonagh, Legal AdvocateTogether Against Poverty Society


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PHYSICIAN TEMPLATE LETTER

April 2, 2019

Attention: Ministry of Social Development and Poverty Reduction

RE: Christopher Moore - DOB: 1963/04/18

I am writing in support of Mr. Christopher Moore’s application for Persons with Disabilities (PWD) designation. I understand that Christopher was denied as the Ministry could not determine the level of restriction to his daily living activities or the assistance he requires.

Christopher lives with a neurological disorder called cerebellum atrophy, an essential tremor and osteoarthritis in both knees and ankles. As indicated in his initial application, the neurological disorder impacts Christopher’s equilibrium causing poor balance and the essential tremor causes uncontrollable shaking. Bending over and turning his head causes Christopher dizziness due to his poor equilibrium. Osteoarthritis causes chronic pain and stiffness in his knees and ankles.

In regards to the level of restriction to Christopher’s physical functioning:

Walking: Christopher uses a cane for all mobility both indoors and out. Even with the use of a cane, it takes Christopher an average of 4-5 times longer than average to ambulate. Stairs: Christopher uses a cane to climb stairs and requires support from another person to descend stairs due to poor balance and risk of falling.Lifting: Bending over to pick something up off the floor impacts Christopher’s balance and increases his risk of falling. He is unable to lift with two hands as he needs one hand at all times for his cane. Carrying and holding: Christopher is limited to carrying with one hand and only on a flat surface.Standing: Christopher requires a cane for support when standing.

In regards to the level of restriction to Christopher’s daily living activities and the level of assistance he requires:

Personal self-care:Dressing: Christopher cannot bend over without falling and therefore must be seated to get dressed and put on shoes.Bathing: Christopher requires a grab-bar to safely enter and exit the shower as well as for stability while showering. Toileting: Christopher requires a grab-bar for support when getting on and off the toilet. Feeding self: Christopher cannot carry hot liquids due to his tremor. Transfers: Christopher requires a cane to transfer in and out of a chair.


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Laundry: Christopher cannot carry a laundry basket and bending over to transfer laundry causes dizziness. His mother does all his laundry for him.Housekeeping: Any activity that requires Christopher to bend over can take up to 10 times longer than average. He has to use a cane indoors which also makes housekeeping difficult. He lives with his mother and she does his housekeeping for him.Shopping: Christopher requires a cane to go to and from the store, to ambulate while there and while standing in line to pay for purchases. Shopping take significantly longer due to poor balance and slow mobility. Carrying purchases is challenging as Christopher can only use one hand for this activity. Meals: Christopher uses a cane to move about in the kitchen and prepare meals. Essential tremor impacts his ability to use a knife and prepare foods. Finances: Christopher requires a cane to go to and from the bank and his mobility is approximately 4-5 times slower than average. Medication: Christopher requires a cane to fill prescriptions and his mobility is approximately 4-5 times slower than average. He regularly skips his medication due to the drowsiness it causes. Transportation: Christopher is unable to drive and gets rides from his mother or takes public transit. When taking the bus, he requires the bus to be lowered in order to enter and exit safely.

In summary, Christopher uses a cane for all mobility and for all daily living activities. In addition, he requires continuous assistance with doing laundry and housekeeping, and transportation and requires grab-bars for bathing and toileting. All mobility is approximately 4-5 times slower than average.

It is my opinion that Christopher meets the criteria for this designation due to the significant restrictions he faces in performing daily living activities and the assistance and assistive devices he requires as a result. Please do not hesitate to contact me should you have further questions.

Sincerely,

Dr. David J. MacNaughtonPhone: 250-595-8231


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SHORT FORM RECONSIDERATION SUBMISSION

8 May 2019

Request for Reconsideration – Christopher Moore - SR# 1-55777619971

Issue: Whether Mr. Christopher Moore qualifies for Persons with Disabilities (PWD) statuspursuant to Section 2 of the Employment and Income Assistance for Persons with Disabilities Act(the Act).

Background: Mr. Moore has been diagnosed with a neurological disorder called cerebellumatrophy, an essential tremor and osteoarthritis in both knees and ankles. His doctor has confirmedthat these disabilities will continue for two or more years and that they cause significantrestrictions to Mr. Moore’s daily living activities such that he requires assistance.

The Ministry adjudicated Mr. Moore’s PWD application on February 21, 2019. The Ministryfound that Mr. Moore satisfies the criterion for age and duration but determined that there wasinsufficient information to establish that Mr. Moore has a severe impairment, significantrestrictions in his ability to perform daily living activities and that he requires help as a result.Mr. Moore requested a reconsideration of the Ministry’s decision.

Submission: Mr. Moore submits that he meets the requirements in Section 2 of the Act.Attached is a letter from Dr. MacNaughton that elaborates on how Mr. Moore qualifies for PWD.The letter addresses the matters the Ministry adjudicator felt were difficult to discern andprovides the details the adjudicator felt were lacking in the initial application.

Mr. Moore respectfully requests the Ministry read the letter along with the initial application,which together includes the necessary evidence to conclude that he qualifies for PWDdesignation.

Sincerely,



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LONG FORM RECONSIDERATION SUBMISSION

May 7, 2019

Request for Reconsideration: Lise Wauthy

Issue: Ms. Wauthy submits that she meets the eligibility criteria for the “Persons with Disabilities” (“PWD”) designation pursuant to s. 2 of the Employment and Assistance for Persons with Disabilities Act (the “Act”). As such, she requests that the Ministry reconsider its decision to deny her the same.

Relevant Legislation:

Employment and Assistance for Persons with Disabilities Act, [SBC 2002] c. 41“Persons with disabilities”2 (1) In this section:

"assistive device" means a device designed to enable a person to perform a daily living activity that, because of a severe mental or physical impairment, the person is unable to perform;"daily living activity" has the prescribed meaning;"prescribed professional" has the prescribed meaning.

(2) The minister may designate a person who has reached 18 years of age as a person with disabilities for the purposes of this Act if the minister is satisfied that the person has a severe mental or physical impairment that

(a) in the opinion of a medical practitioner or nurse practitioner is likely to continue for at least 2 years, and(b) in the opinion of a prescribed professional


(A) continuously, or(B) periodically for extended periods, and


(3) For the purposes of subsection (2),(a) a person who has a severe mental impairment includes a person with a mental disorder, and(b) a person requires help in relation to a daily living activity if, in order to perform it, the person requires

(i) an assistive device,(ii) the significant help or supervision of another person, or(iii) the services of an assistance animal.


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Background:

1. Ms. Wauthy submitted an application for the PWD designation in September 2018. Ms. Wauthy completed the “Section 1 – Applicant Information” with support from Together Against Poverty Society, her physician, Dr. Anoma Perera, completed the “Section 2 –Medical Report”, and “Section 3 – Assessor Report” was completed by a physician at Quadra Village Medical Clinic, Dr. Stamp-Vincent.

2. The Ministry adjudicated Ms. Wauthy’s application on November 27, 2018. While the Ministry determined that Ms. Wauthy satisfied the criteria for age and duration of impairment, the Ministry found there was insufficient information to establish:

∑ that Ms. Wauthy has a severe physical and/or mental health impairment ∑ that her impairment directly and significantly restricts her ability to perform daily

living activities either continuously or periodically for extended periods, and∑ that as a result of those restrictions, she requires help to perform those activities

3. Ms. Wauthy subsequently requested a reconsideration of the Ministry’s decision.

Submission:

4. Ms. Wauthy disagrees with several conclusions made by the adjudicator in the “Decision Summary”. These are addressed below:

a. The physician reports the periodic use of a cane; however, the physician reports also that the applicant is able, unaided, to walk 1-2 blocks, climb 2-5 steps, lift up to 5 lbs, and sit for up to an hour.

Findings in this statement refer to Section 2.D “Function Skills” on page 11 of the application, which requests physicians to provide their opinion of the applicant’s capacity in relation to a series of physical skills by providing a corresponding set of ranges for each skill. The section does not request additional narrative from the physician in relation to each skill.

Ms. Wauthy submits that the above conclusions do not accurately reflect the information supplied by Dr. Perera. Dr. Perera indicated that Ms. Wauthy’s capacity for each of the above skills is within the indicated range (walking: between 1 to 2 blocks, climbing stairs: between 2 to 5, lifting: under 5lbs, and sitting: less than 1 hour), and did not specify Ms. Wauthy’s precise capacity in each range. Therefore, we submit that concluding that Ms. Wauthy’s capacity is at the top of each indicated range is not reasonably supported by the evidence.


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The finding concerning Ms. Wauthy’s physical functioning also fails to consider additional relevant information provided by Dr. Perera on page 12 of the application where she confirms that mobility inside and outside of the home is continuously restricted. Similarly, in “Section 3 – Assessor Report”, Dr. Stamp-Vincent states that Ms. Wauthy uses an assistive device walking indoors, walking outdoors, standing, and carrying and holding. Dr. Stamp-Vincent also confirms that Ms. Wauthy requires continuous assistance with lifting.

b. The assessor/physician reports the use of a cane for walking and standing and indicatesthe use of a shopping cart for carrying/holding; however, it should be noted that shopping carts do not meet the definition in legislation of an assistive device…

In “Section 2 – Medical Report”, Dr. Perera confirms that Ms. Wauthy is limited to lifting less than 5 pounds. On page 17, Dr. Stamp-Vincent corroborates this by reporting that Ms. Wauthy uses an assistive device for carrying and holding and in the corresponding space he writes uses shopping cart.

On page 11 of the application, Dr. Perera confirms that Ms. Wauthy ability to perform daily shopping is continually restricted. Page 12 also asks the physician to indicate what assistance the applicant needs with daily living activities. In response, Dr. Perera stated “carrying heavy groceries, doing laundry – needs help.”

Ms. Wauthy submits that her wheeled shopping bag does meet the statutory definition of an “assistive device” as it is specifically designed to enable a person to perform a daily living activity – namely shopping – that they would otherwise be unable to perform because of inability to carry items (lifting and mobility restrictions).

c. Periodic assistance is indicated by the assessor/physician for meals, two aspects of using transportation, and one aspect of social functioning; however, as the nature, frequency and duration of periodic assistance are not provided or explained, and as good social networks are reported, it is not established that periodic assistance is required for extended periods…

While it may be helpful for the Minister to have information regarding the nature, frequency and duration of assistance required, we submit that the absence of this information should not preclude an applicant’s eligibility.

To determine eligibility, the Act requires confirmation from a prescribed professional that there is restriction to daily living activities (either continuously or periodically for extended periods) and that as a result of those restrictions, the person requires help to perform those activities. Confirmation of the restriction to daily living activities is requested in “Section 2 – Medical Report” and confirmation of the need for assistance is requested in “Section 3 – Assessor Report”. Dr. Perera confirms continuous restriction to seven out of ten of the listed daily living activities on page 12 of the application. Ms. Wauthy submits that there is no statutory requirement to determine the nature, frequency, and duration of the assistance she requires with daily living activities.


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d. While it is acknowledged that the applicant experiences some limitation to her basic mobility, the application evidence overall does not establish that the applicant has a severe restriction in her ability to function independently, effectively, appropriately, or for a reasonable duration.

Ms. Wauthy submits that the above finding suggests that the adjudicator considered information supplied by Dr. Perera and Dr. Stamp-Vincent independently from each other, which is not consistent with direction from the BC Supreme Court. In Hudson v. Employment and Assistance Appeal Tribunal, 2009 BCSC 1461, (“Hudson”) the BC Supreme Court provided direction on the importance of considering the evidence from the physician and the assessor in its entirety, including narrative portions of the application, when determining the applicant’s eligibility. Holistic consideration of the evidence confirms that all of Ms. Wauthy’s daily living activities are restricted either continuously or periodically and that she requires assistance with walking indoors, walking outdoors, standing lifting, carrying and holding, doing laundry, going to and from stores, carrying purchases, all aspects of meal preparation, two aspects of transportation, and one aspect of social functioning.

Furthermore, we submit that adequate consideration of the evidence provided when establishing a significant restriction and the level of assistance required, compels the Ministry to also consider the effect that using an assistive device for walking indoors and outdoors has on daily function, as either walking inside or outside is, at least in part, necessary to carry out almost all daily living activities.

Additional Evidence:

5. In addition to the information provided in the application, Dr. Perera has provided additional evidence about Ms. Wauthy’s impairments in the attached letter dated January 22, 2019.

6. Ms. Wauthy requests that the Ministry review the letter along with her initial application, which together include the necessary evidence to establish that Ms. Wauthy qualified for the PWD designation.

Sincerely,

____________________________________________________________________________Thea McDonagh – Legal Advocate Together Against Poverty Society


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EMPLOYMENT AND ASSISTANCE APPEAL SUBMISSION

BEFORE THE BRITISH COLUMBIA EMPLOYMENT AND ASSISTANCE

APPEAL TRIBUNAL

IN THE MATTER of the Employment and Assistance for Persons with Disabilities Act

BETWEEN:

Ms. Traci Nernberg

APPELLANT

MINISTRY OF SOCIAL DEVELOPMENT AND POVERTY REDUCTION

RESPONDENT

APPELLANT’S SUBMISSION

Issue

Ms. Nernberg submits that she meets the eligibility criteria for the “Persons with Disabilities” (“PWD”) designation pursuant to s. 2 of the Employment and Assistance for Persons with Disabilities Act (the “Act”). She further submits that the Minister of Social Development and Poverty Reduction’s (the “Minister’s”) decision to deny her the same is an unreasonable application of s. 2 of the Act.

Overview

1. Ms. Nernberg has been diagnosed with addiction, depression, anxiety, c-spine herniated disc and scoliosis. Her mental health impairments are the result of an extensive trauma history which she has described in the “Section 1 – Applicant Information” on pages 81 and 82 of the Appeal Record.

2. Ms. Nernberg submitted an application for the PWD designation on November 5, 2018. Ms. Nernberg completed the “Section 1 – Applicant Information” with assistance from the Victoria Cool Aid Society. Dr. Anoma Perera completed the “Section 2 – Medical Report” and Registered Nurse, Ms. Linda Anderson-Armitage, completed the “Section 3 – Assessor Report”.

3. The Minister adjudicated Ms. Nernberg’s PWD application on January 3, 2019 and determined there was insufficient information to establish that she met the criteria for the PWD designation. As seen in the Denial Decision Summary on pages 40 to 42 of the Appeal


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Record, the Minister found that Ms. Nernberg satisfied one of the five eligibility criteria: that she was at least 18 years of age. However, the Minister found that:

i. the application evidence did not establish that the impairment is likely to continue for two or more years;

ii. the application evidence did not establish a severe physical or mental impairment;iii. the application evidence did not establish that she has significant restriction in her

ability to perform a range of daily living activities, and; iv. the application evidence did not establish that she requires help as a result of the

restrictions to her daily living activities.

4. Ms. Nernberg disagreed with the Minister’s conclusions and requested a reconsideration of the decision on January 25, 2019.

5. On February 28, 2019, Thea McDonagh, an advocate from Together Against Poverty Society, contacted Dr. Perera on behalf of Ms. Nernberg and requested additional information regarding the nature of her impairment for the purpose of her reconsideration.

6. Shortly thereafter, Ms. Nernberg met with Dr. Perera and also requested more information for her reconsideration, however, Dr. Perera advised that she did not have the time to provide further details.

7. The Minister adjudicated Ms. Nernberg’s request for reconsideration on March 19, 2019. Based on the initial application alone, the reconsideration officer upheld the decision to deny Ms. Nernberg the PWD designation. However, unlike the previous decision, the reconsideration officer found that:

i. the application evidence did establish a severe physical or mental impairment; ii. the application evidence did establish that Ms. Nernberg has a significant restriction to

her ability to perform a range of daily living activities, and;iii. the application evidence did establish that she requires help as a result of the

restrictions to her daily living activities.

8. The only criteria not confirmed by the reconsideration officer was the duration of Ms. Nernberg’s impairment.

9. Ms. Nernberg submitted a Notice of Appeal to the Employment and Assistance Appeal Tribunal (the “EAAT”) on March 25, 2019.

Relevant Legislation

Employment and Assistance for Persons with Disabilities Act, [SBC 2002] c. 41

“Persons with disabilities”2 (1) In this section:


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"assistive device" means a device designed to enable a person to perform a daily living activity that, because of a severe mental or physical impairment, the person is unable to perform;"daily living activity" has the prescribed meaning;"prescribed professional" has the prescribed meaning.

(2) The minister may designate a person who has reached 18 years of age as a person with disabilities for the purposes of this Act if the minister is satisfied that the person has a severe mental or physical impairment that

(a) in the opinion of a medical practitioner or nurse practitioner is likely to continue for at least 2 years, and(b) in the opinion of a prescribed professional


(A) continuously, or(B) periodically for extended periods, and


(3) For the purposes of subsection (2),(a) a person who has a severe mental impairment includes a person with a mental disorder, and(b) a person requires help in relation to a daily living activity if, in order to perform it, the person requires

(i) an assistive device,(ii) the significant help or supervision of another person, or(iii) the services of an assistance animal.

(4) The minister may rescind a designation under subsection (2).Employment and Assistance for Persons with Disabilities Regulation, B.C. Reg. 265/20022 (1) For the purposes of the Act and this regulation, "daily living activities",

(a) in relation to a person who has a severe physical impairment or a severe mental impairment, means the following activities:

(i) prepare own meals; (ii) manage personal finances;(iii) shop for personal needs;(iv) use public or personal transportation facilities;(v) perform housework to maintain the person's place of residence in acceptable sanitary condition;(vi) move about indoors and outdoors;(vii) perform personal hygiene and self care;(viii) manage personal medication, and


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(b) in relation to a person who has a severe mental impairment, includes the following activities:

(i) make decisions about personal activities, care or finances; (ii) relate to, communicate or interact with others effectively.

Legal Issue

10. As per s. 24(1) of the Employment and Assistance Act (“Decision of panel”), the EAAT panel members must determine whether the decision being appealed is either reasonably supported by the evidence or a reasonable application of s. 2 of the Act in the appellant’s circumstances.

11. The Minister has acknowledged that Ms. Nernberg meets the age criterion; has a severe physical and/or mental impairment; that her impairment directly and significantly restricts her daily living activities; and that she requires assistance to perform those activities. Therefore, the issue in this appeal is whether the Minister’s decision to deny Ms. Nernbergon the finding that it cannot be determined her impairment is likely to last for two years or more is either reasonably supported by the evidence or a reasonable application of s. 2 of the Act.

Submission

12. We submit that Ms. Nernberg’s initial application and the additional evidence she has provided with this submission establish that her impairment is likely to last for two years or more and that she therefore meets the criteria for the PWD designation.

Additional evidence

13. Ms. Nernberg recently received a referral to Nurse Practitioner, Harry Uppal, and met with him on April 11, 2019 for a medical consultation. Mr. Uppal has significant experience working with patients with mental health impairments and reviewed Ms. Nernberg’s PWD application, health history and symptoms extensively.

14. As per s. 2 of the Act, the duration of impairment must be confirmed by a medical practitioner or nurse practitioner. Mr. Uppal has been a nurse practitioner for 1.5 years and has provided a letter that confirms both Ms. Nernberg’s physical and mental health impairments are likely to last for two or more years.

15. Ms. Nernberg also submits a letter from Registered Nurse, Ms. Linda Anderson-Armitage,that elaborates on her assessment in the “Section 3 – Assessor Report” of the initial application. Although, Ms. Anderson-Armitage is a Registered Nurse and unable to confirm duration for the purposes of the statutory criteria, she has extensive experience and training with substance use disorders and her evidence corroborates Mr. Uppal’s opinion.

Admission of additional evidence

16. In order to determine whether the Minister’s decision is reasonably supported by the evidence, the Tribunal must first determine whether the additional evidence provided by Ms. Nernberg is admissible.


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17. As per s. 22(4) of the Employment and Assistance Act (“Panels of the tribunal to conduct appeals”), a panel may admit as evidence only (a) the information and records that were before the minister when the decision being appealed was made, and (b) oral or written testimony in support of the information and records referred to in paragraph (a).

18. The Tribunal’s Guidelines (available on the EAAT website) provide direction on how s. 22(4) of the Employment and Assistance Act ought to be interpreted. Specifically, the Additional Evidence Guideline (the “Guideline”) states that:

“Section 22(4)(b) is designed to strike a balance between a pure appeal on the record of the ministry decision and a hearing de novo (a completely new hearing). […] If the additional evidence substantiates or corroborates the information and records before the minister at the reconsideration stage, the evidence should be admitted; if it does not, then it does not meet the test of admissibility under s. 22(4)(b) of the Employment and Assistance Act and should not be admitted” (page 1, para. 5 of the Guideline).

19. The Guideline provides examples for consideration when determining admissibility of additional evidence including,

“… if an appellant appealing the denial of the PWD designation submits a doctor's note verifying the appellant’s testimony in the record of the ministry decision regarding the need for help with daily living activities, the doctor’s note could properly be admitted as it is written testimony “in support of” the information and records, corroborating the information before the minister at reconsideration” (page 2, para. 2 of the Guideline).

20. Similarly, the Guideline also provides examples when panel members should not admit additional evidence.

“Additional evidence should not be admitted if it introduces an entirely new issue that is not related to the issue in the record of the ministry decision. In PWD cases, for example, appellants frequently provide additional evidence in appeal regarding a medical diagnosis or condition. If this medical diagnosis or condition is not contained in the record of the ministry decision, then the additional evidence would not be admissible as it would not be “in support of” or corroborate the information and records before the minister at reconsideration.

21. We submit that the evidence contained in the letter from Nurse Practitioner, Mr. Harry Uppal, does not introduce new information but rather, substantiates the information and records before the Minister at reconsideration.

22. In Ms. Nernberg’s initial application, on page 24 of the Appeal Record, when asked to indicate whether the impairment is likely to last for two years or more, Dr. Perera states that she is “not sure.”


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23. In the “Section 3 – Assessor Report,” on page 36 of the Appeal Record, Registered Nurse Linda Anderson-Armitage states that, “[Ms. Nernberg] will need 24-36 months to get recovery well established.”

24. The evidence from Nurse Practitioner, Mr. Uppal, corroborates the evidence concerning duration provided by Registered Nurse, Linda Anderson-Armitage and clarifies the information Dr. Perera was unable to confirm. Mr. Uppal specifically states, “…it is very likely that [Ms. Nernberg’s] mental health and physical impairments will last for two years or more.”

25. In addition, on page 22 of the Appeal Record, Dr. Perera also states that “[Ms. Nernberg] has not disclosed to me that she has addiction problems.” Ms. Nernberg submits that she had not discussed her mental health or substance use challenges with Dr. Perera prior to October2018 and that Dr. Perera had limited knowledge of the history of these impairments.

26. Furthermore, on page 26 of the Appeal Record, the PWD application asks the medical or nurse practitioner to indicate the frequency of contact they have had with the applicant. While Dr. Perera did not indicate how many times she had seen Ms. Nernberg in the past 12 months, Ms. Nernberg submits that she had only seen Dr. Perera twice in the three years preceding her PWD application.

27. We submit that the evidence of Mr. Uppal is in support of information already before the Minister, and that it is admissible under s.22(4) of the Employment and Assistance Act.

Reasonableness of Decision in light of all admissible evidence

28. A recent Notice to Members issued by the Chair of EAAT, Emily Drown, provides direction to panel members on the issue of considering admission of additional evidence. Specifically, the Chair reiterates that the appeal is not strictly a review of the record but rather a review on the basis of all admissible evidence. The Chair reminds panel members to exercise discretion when admitting evidence under s. 22 (4) of the Employment and Assistance Act and consider whether the decision under appeal is reasonable based on all admissible evidence, including any new evidence admitted under s. 22(4).

29. Mr. Uppal’s letter states that it is likely the Ms. Nernberg’s impairments will last two years or more.

30. We submit that, when the evidence of Mr. Uppal is considered, the Minister’s decision that Ms. Nerberg has failed to meet the requirements in s.2(a) is not a reasonable application of this section.

Conclusion

31. In conclusion, we submit that Dr. Perera was unable to confirm the duration of Ms. Nernberg’s impairment due to limited knowledge of her mental health impairments. We


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submit that the evidence provided by Nurse Practitioner, Mr. Harry Uppal, clarifies the uncertainty in the application regarding duration of Ms. Nernberg’s impairment.

32. We further submit that the additional evidence provided by Nurse Practitioner, Mr. Harry Uppal, should be admitted as it clarifies and corroborates the information that was before the Minister when the reconsideration decision was made.

33. Finally, on consideration of all the admissible evidence, the Minister’s decision is neither reasonably supported by the evidence, nor is it a reasonable application of s. 2 of the Act. For these reasons, we respectfully request that the panel rescind the Minister’s decision to deny Ms. Nernberg the PWD designation.

All of which is respectfully submitted,

May 1, 2019

_____________________________Thea McDonagh – Legal Advocate Together Against Poverty Society


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828 View Street, Lekwungen Territories, Victoria, BC, Canada V8W 1K2Tel: (250) 361-3521 Fax: (250) 361-3541 Web: www.tapsbc.ca

Supported by:The Law Foundation of British Columbia, United Way of Greater Victoria,

Province of British Columbia,The Provincial Employees Community Services Fund,

and other generous donors.

April 14, 2019Dear Dr. McGonagall,

RE: Ms. Hermione Granger - DOB: 1966/07/19

We represent your patient Ms. Hermione Granger and are contacting you on her behalf. A release of information is enclosed.

You kindly completed Ms. Granger’s application for the provincial Persons with Disabilities designation. Unfortunately, the Ministry determined that there was insufficient information in the application and therefore denied her application.

I have reviewed Ms. Granger’s application and believe there is merit in appealing the Ministry’s decision. I am contacting you for your support.

We appreciate you have a busy practice and the deadline for appealing the Ministry’s decision is short. I have enclosed a sample letter that speaks to Ms. Granger’s restrictions. The letter is based on an extensive interview with Ms. Granger and the information provided in herapplication. It is not meant to replace your medical opinion; rather it is a template for your consideration. Please make any changes you deem necessary. An electronic copy is available on request.

If you agree with the contents you may simply sign, date and return the completed letter to my attention. The deadline for Ms. Granger’s appeal is short; please return your letter to my attention by Monday, April 29th, 2019.

Thank you for your thoughtful consideration of this request. Please do not hesitate to contact meshould you have any questions or concerns.

Most Sincerely,



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April 14, 2019

Attention: Ministry of Social Development and Poverty Reduction

RE: Hermione Granger - DOB: 1966/07/19

I am writing in support of Ms. Hermione Granger’s application for Persons with Disabilities (PWD) designation. I understand that Hermione was denied as the Ministry could not determine the severity of her impairments or the level of restriction to her daily living activities.

As indicated in her initial application, Hermione lives with anxiety, depression, arthritis, chronic fatigue syndrome, and fibromyalgia. I would like to clarify and elaborate on the information I provided in Hermione’s application in support of establishing her eligibility for this benefit.

In regards to Hermione’s physical functioning and as indicated in the initial application, Hermione experiences significant muscle and joint pain due to fibromyalgia and arthritis. This pain is severe on average 4 days per week and on these days, she is generally restricted to her home.

As I stated in the initial application, Hermione uses a cane for mobility. Please note that she uses this assistive device for outdoor mobility on average 80% of the time and for indoor mobility every afternoon. It takes Hermione 5-7 minutes to go up the 13 steps in her home as she has to stop and rest. Hermione sleeps on the couch 4-5 days per week to avoid climbing the stairs to her bedroom. Also indicated in the initial application is Hermione’s limitations regarding lifting. I indicated that Hermione is limited to lifting less than 5 pounds due to chronic pain and fatigue. Specifically, she is unable to lift more than 2 pounds which clearly limits her ability to perform a wide range of daily living activities.

In regards to Hermione’s ability to perform daily living activities, I confirmed in her initial application that she requires continuous assistance with meal preparation, basic housework, daily shopping, mobility inside and outside the home, use of transportation and social functioning. In addition, I verified that she requires periodic assistance with personal self-care, management of medications, and management of finances.

It is my opinion that Hermione meets the criteria for this designation due to the severity of herimpairments and the significant restrictions she faces in performing daily living activities. Please do not hesitate to contact me should you have further questions.

Sincerely,

Dr. Minerva McGonagallPhone: 250-934-0000


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January 1, 2022

Dear Dr. Lee,

Re: John Doe – date of birth January 1, 1980 – Disability appeal

Despite your caring work on his disability form, John Doe was denied PWD and has requested our assistance with the appeal. As you may know that designation will provide your patient with a little more money and medical coverage to aid in health promotion. Unlike with Canada Pension Plan Disability employability is not a criterion.

We are hopeful that a little more information from you will clarify the severity of your patient’s impairment and the consequent ongoing restrictions in ability to perform daily living activities independently in a timely fashion and need for (not necessarily receipt of – must prove need)assistance from other people and/or assistive devices.

A restriction means that someone takes significantly longer than normal to do a task, that they can’t do it at all or that they can’t do it without significant encouragement and/or help from another person or assistive devices. A restriction is considered continuous if it’s unpredictable or ongoing; it is considered periodic if it only happens sometimes when the person needs to do the task.

After interviewing your patient and reviewing the application and Ministry decision, and in orderto save you time and facilitate communication with the Ministry, I have enclosed a doctor’s question sheet with the some questions for you to answer that target the criteria for PWD. For your convenience, I have also included a copy of the questions with answers suggested for your consideration.

Thank you for taking time to respond to this request. The government does not pay doctors for their valuable work on appeals, and neither can we afford to pay you since we are a non-profit, non-government organization. Unfortunately the time allowed to file appeals is very short. If you decide to assist your patient in this way we need your response as soon as possible. If possible, may I suggest you email me the doctor’s question sheets to me as soon as possible at [email protected].

Thank you for considering this matter.

Sincerely,

Advocate


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To Whom It May Concern:

Re: John Doe - Eligibility for Disability Benefits (PWD)

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The following questions are posed to the applicant’s doctor in order to assist in determining eligibility for the disability designation.

1. When the impact of their conditions on their daily functioning is considered, does your patient have a severe impairment? If so, please explain:

Yes. Severe coronary arterial diseaseMultiple ME’s requiring stentingCVA – restricted cognitive functioning, global amnesia. Congenital heart failures

Symptoms are affecting chronic pain bilaterally in legs and left foot, shortness of breath,severe fatigue, restricted mobility and physical activity.

Depression, anxiety and cognitive restrictions (experiences low motivation, restricted memory and restricted concentration).

2. Does your patient often take significantly longer than normal to complete most daily living activities as a direct result of their limitations?

Yes at least 3x longer due to complete all tasks due to chronic pain, shortness of breath, cognitive restrictions and severe fatigue.

3. Is your patient’s level of activity significantly reduced as a direct result of their impairment?

Yes.

4. How often is your patient significantly restricted in their ability to perform daily living activities by one or more of the recurring symptoms?

Daily


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5. Overall, do your patient’s health limitations significantly restrict their ability to perform a range of daily living activities ongoing?

- if yes, which tasks?

Daily living activities2 (1)For the purposes of the Act and this regulation, "daily living activities",(a) in relation to a person who has a severe physical impairment or a severe mental impairment, means the following activities:(i) prepare own meals;(ii) manage personal finances;(iii) shop for personal needs;(iv) use public or personal transportation facilities;(v) perform housework to maintain the person’s place of residence in acceptable sanitary condition;(vi) move about indoors and outdoors;(vii) perform personal hygiene and self care;(viii) manage personal medication, and

(b ) in relation to a person who has a severe mental impairment, includes the following activities:(i) make decisions about personal activities, care or finances; (ii) relate to, communicate or interact with others effectively.

Yes.Housework – Due to chronic pain and fatigue, patient is significantly restricted in completing household chores. Takes 3x as long compared to an average person their age with no restrictions. Requires help from friends and family members to assist with household chores.

Daily shopping – Restricted in grocery shopping due to fatigue, low motivation, chronic pain. Restricted in walking around store, waiting in line etc. Will only buy a few items at a time due to restrictions in lifting and carrying. Has friends and family who will buy him items when they go grocery shopping.

Mobility inside and outside the house- Periodically uses a cane (40% of the time), chronic pain in legs and feet. Shortness of breath and fatigue. Max 1 block before needing to take a break.

Use of transportation – Restricted driving due to chronic pain and fatigue. Only able to do short drives. Restricted use of public transit – requires a seat all of the time, restricted standing (waiting for public transit) walking to and from transit etc. Requires the use of a cane when using public transportation.

Medication management – requires the use of an alarm and blister pack, will still frequently forget to take medication as directed. Requires reminders from friends and family to set up and remember to medications.

Financial management- Due to restricted memory, will forget to pay bills on time. Frequently gets notices of disconnection before he remembers to pay his bills.

Meal preparation- Will forget pans on stove while cooking and forget due to restricted memory. Requires assistance from family or friends who will cook meals for him and bring them to him.

Easily overwhelmed by unexpected demands, very short-term memory, and very disrupted social functioning with family.


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6. As a result of your patient’s health restrictions, can you confirm that your patient needs significant ongoing help from other people and/or assistive devices to manage daily living activities?

- If yes, help with which DLAs and from which assistive devices?

Yes.Patient requires the use of a cane, bathtub grab bar and a toilet grab bar.

Patient needs significant ongoing help from another person with household chores, daily shopping, medication management and meal preparation and has received psychological counselling to cope with severe chronic pain, depression and anxiety.

Dear Doctor: The following pages have questions for you to answer if you are willing. They target the criteria for PWD. Your own letter, if you are willing, would be most welcome.


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To Whom It May Concern:

Re: John Doe - Eligibility for Disability Benefits (PWD)

The following questions are posed to the applicant’s doctor in order to assist in determining eligibility for the disability designation.

1. When the impact of your patient’s conditions on their daily functioning is considered, does your patient have a severe impairment? If so, please explain:

2. Does your patient often take significantly longer than normal to complete most daily living activities as a direct result of their limitations?

3. Is your patient’s level of activity significantly reduced as a direct result of their impairment?

4. How often is your patient significantly restricted in the ability to perform daily living activities by one or more of their recurring symptoms?


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5. Overall, do your patient’s health limitations significantly restrict their ability to perform a range of daily living activities ongoing?

- if yes, which ones?

Daily living activities2 (1)For the purposes of the Act and this regulation, "daily living activities",(a) in relation to a person who has a severe physical impairment or a severe mental impairment, means the following activities:(i) prepare own meals;(ii) manage personal finances;(iii) shop for personal needs;(iv) use public or personal transportation facilities;(v) perform housework to maintain the person’s place of residence in acceptable sanitary condition;(vi) move about indoors and outdoors;(vii) perform personal hygiene and self care;(viii) manage personal medication, and(b ) in relation to a person who has a severe mental impairment, includes the following activities:(i) make decisions about personal activities, care or finances; (ii) relate to, communicate or interact with others effectively.

6. As a result of your patient’s health restrictions, can you confirm that your patient needs significant ongoing help from other people and/or assistive devices to manage daily living activities?

- If yes, which daily living activities and what assistive devices?

_____________________________ _______________________Physician’s signature Date

Office stamp or name and address:


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1

Topic: CPP Disability Benefits Timing • May 31

• 1 – 4 pm


Learners will be able to: • Explain how CPP Disability is different from PWD. • Describe the application process for CPP • List the requirements (set out in the definition) to qualify

for CPP and how they are different from PWD. • Find and track timelines for CPP applications • Identify some of the serious issues are that can arise in an

application for CPP Disability, and where to get help dealing with these.

• Understand the reconsideration appeal process. • Identify and use resources that the advocate or their client

can use for CPPD applications and appeals.

Activity:

• Presentation on CPP – understand how PWD and CPP are different

• Group exercise and discussion

Resource person:

• Ashley Silcock, advocate Disability Alliance Society BC

Materials:

• Course materials

Assessment:

• Test

Legal Advocacy Training Course - Week 1 Materials - 8. CPP Disability Overview

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CPP Disability Benefits

May 2021

The goal of this presentation is to give new(er) Advocates:

• an understanding of what CPP‐Disability (CPP‐D) is and the program’s eligibility requirements.

• a description CPP‐D application process, timelines and the provisions that can impact an application.

• an explanation of any similarities and differences between the Persons With Disabilities (PWD) designation provided by the Ministry of Social Development and Poverty Reduction (MSDPR)

• a description how PWD and CPP‐D interact, describe an example of ways you can manage your time on these files, when it may benefit clients to go after one program or the other, and problems that some times come up for clients when using both programs. .

• Provide resources that you can use for your own self‐education and resources you can use for your clients.


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Minimum Qualifying Period (MQP)

An applicant can only get the CPP‐D designation if they have made sufficient contributions to the CPP‐D program.

For people who stopped working after 1998 that means they must have worked and paid into the plan for at least 4 out of 6 years. In 2008 the program also added a 3 out of 6 year MQP for people who had worked for 25 year or more.

To assess a person’s MQP you may need to have a look at their “Statement of Contributions”

Applicants can access one of these online if they have a registered MyServiceCanada account, by calling Service Canada 1‐800‐277‐9914, or in person at a Service Canada office.


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How much does a person have to earn to contribute to CPP? Terms:

Disability Basic Exemption (DBE) – this is the minimum earnings a person must have had to pay into CPP‐D. This is calculated very differently than the one used at retirement. The YBE for retirement benefits has been set at the 1996 level for many years

Years Maximum Pensionable Earnings (YMPE) – this is the maximum income a person will pay into CPP from. Anything over that amount will not impact the payment rates .

Sounds Confusing? Don’t panic.

According to the Act

Amount of Year’s Basic Exemption

20(1) Subject to subsection (2), the amount of Year’s Basic Exemption is the highest multiple of $100 that is less than or equal to 10% of the Years Maximum Pensionable Earnings

Subsection (2) explains that when it comes to retirement benefits YBE has been set at $3, 500 since 1997.


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Calculating YBE resource

In the presentation materials the electronic file titled “Year Basic Exemption Rate Table” will give you a break down of YBE and YMPE with a reminder of how to calculate it so that you can update it each year and have a current reference you can look at when you are trying to make sense of a Statement of Contributions.

To expand the document

https://www.canada.ca/en/revenue‐agency/services/tax/businesses/topics/payroll/payroll‐deductions‐contributions/canada‐pension‐plan‐cpp/cpp‐contribution‐rates‐maximums‐exemptions.html

Late Applicant Provision

Many people apply for CPP‐D benefits years after their MQP has ended. For clients in this position they can still apply for CPP‐Disability benefits and have a possible chance of success.

To succeed and obtain the pension will require providing medical evidence that they met the definition of disability before the end of their MQP.

However, in most cases retroactive benefits will be calculated based on the date of application and not date of disability.


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Incapacity ProvisionThis provision is rarely applied to CPP‐D files and the threshold is extremely high.

This provision is only applied if a person can prove• that they had been physically or mentally incapable forming or communicating the intent to apply for CPP Disability benefits and,

• that they had been continuously disabled from the date the MQP ended up to present.

• that it has been less than 1 year since they have regained capacity

For example: A person who had been in a coma for a number of years.

These forms are not publically available and must be requested from Service Canada directly.

Childrearing Drop‐out

To access this provision a person must have:• lower earnings while being the person most responsible for taking care of a dependent child’s needs while the child was under the age of seven and

• Received Family Allowance payments or qualified (even if you did not collect) for the Canada Child Benefit.

This allows a person to remove the months or years they had no or lowered income from the calculation of their CPP‐D payment rate and from the calculation of their MQP.


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Credit Split Application

If the credits are not signed away in the divorce agreement this provision can actually enable people who are divorced or separated from their partners to qualify for CPP‐D benefits even if they have never personally worked.

For people who are eligible and request one of these the contributions for both partners during the duration that they were married/lived together will be combined and then split between the two.

THIS ONLY BENEFITS THE LOWEST INCOME EARNER AND CANNOT BE UNDONE ONCE APPLIED FOR

Calculating MQPVertical slide 2


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Other things related to eligibility and applications

Terminal Illness Application

If you are assisting or speaking with someone who has a terminal illness and their conditions likely to result in death in the next six months they do not want to a typical CPP‐D application.

There is a much shorter form for people in this position and the processing times are dramatically shorter (days or weeks vs. months) as these applications are given priority and triaged.


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Collecting other forms of CPP

The program is set up in a way where you can only collect one form of CPP at a time.

This can create issues if people have taken CPP Early Retirement (CPP‐ER). Once on CPP ER there is a 15 month window to switch from CPP‐ER to CPP‐D and that can only happen for conditions that started before the applicant began receiving ER.

For people who are on ER who have collected benefits for more than 15 months or who have conditions that began after they started collecting their ER benefits there is now a Post Retirement Disability Benefit that can be paid up to the age of 65. It uses the same application and appeals process as Disability but the payment rates are different.

CPP‐D’s definition of disability• Section 42(2) of the Canada Pension Plan defines disability. It says that:

• a person shall be considered to be disabled only if he is determined in prescribed manner to have a severe and prolonged mental or physical disability, and for the purposes of this paragraph,

• a disability is severe only if by reason thereof the person in respect of whom the determination is made is incapable regularly of pursuing any substantially gainful occupation, and

• a disability is prolonged only if it is determined in prescribed manner that the disability is likely to be long continued and of indefinite duration or is likely to result in death; and

• a person shall be deemed to have become or to have ceased to be disabled at such time as is determined in prescribed manner to be the time when he became or ceased to be, as the case may be, disabled, but in no case shall a person be deemed to have become disabled earlier than fifteen months before the time of making any application in respect of which the determination is made.

• (R.S.C. 1985, c.30 (2nd Supp.), s. 2(2)


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What is a substantially gainful?

Any form of employment where the annual amount of earnings from the work is more than 12 times the maximum CPP‐D amount.

Please note though: any type of work will likely be considered evidence of employability at application and that people often earn below that amount and despite going through the appeals process they are denied benefits because the work they are doing is seen as evidence that they have the capacity for work that would be substantially gainful.

Other forms of employment that may not be considered evidence of real work capacity are:

1. Sheltered employment

2. Work of a benevolent employer


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Sheltered Employment is defined in the CPP Adjudication frame work Sheltered employment Is not considered to be an “occupation” for the purposes of eligibility for a CPP Disability benefit. Sheltered employment involves simple tasks performed in a closely supervised environment where performance goals are defined by the employee’s capabilities. The work is therapeutic in that it give steh employee a sense of accomplishment as well as an income. The client employed in a sheltered work environment is incapable of pursing any work in the competitive workplace. Often sheltered employment is offered in co‐ordination with other public programs, psychiatric of mental health organizations.

A benevolent employer is defined in the CPP Adjudicator frame workA “benevolent employer” is someone who will vary the conditions of the job modify their expectations of the employee in keeping with [their] limitations. The demands of the job may vary, the main difference being that the performance output or product expected from the client, are considerably less than the usual performance output or product expected from other employees. This reduce ability to perform at a competitive level is accepted by the “benevolent” employer and the client is incapable of regularly pursuing any work in a competitive workforce. Work for a benevolent employer is not considered to be an “occupation” for the purposes of eligibility or continuing eligibility for a CPP Disability benefit.


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CPP Disability Application form

CPP‐D applications are available to anyone in the general public even if a person has no MQP

If someone has an online MyServiceCanada account they can begin the application process here.

Paper applications can be obtained by:• telephone: 1‐800‐277‐9914

• HTML/PWD online: https://www.canada.ca/en/services/benefits/publicpensions/cpp/cpp‐disability‐benefit/apply.html

• At your local Service Canada Office


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B1:When an application of someone who is divorced or separated arrives for adjudication credit split application forms are automatically sent out.

Remember the credit split will only benefit the highest income earner in that relationship

B2: These applications will take dramatically longer to process.

B3: Only one parent can claim this amount.


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C1: This must be before the applicants MQP expires

C2: List the names of the conditions and “see attached” in a word document describe the specific symptoms that your client experiences the application itself gives no space for that.

C4&5: Both of these areas often do not have enough space to cover every hospitalization or medications.


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C6&7: Like medications and hospitalizations I sometimes have to include more information than there is space for in the application itself.

C7) This includes the Ministry of Social Development and Poverty Reduction, Workers Compensation, ICBC, and LTD benefits.

If your client will not let the decision makers collect information from these places it can impact how credible the applicant appears.

C8: This can be the most time consuming section of the application. Application appointments range from 1 hour to 6 hours depending on the specifics of the case.

For clients who are trying to obtain the CPP‐D designation I use an attachment document that goes into much more details and gives information that this form does not require but can help lay a stronger foundation to build an appeal.


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You will note this section asks about abilities only on a typical day. While there is some space below to include information about “bad” days there is very little space.

The window it offers into the applicant’s condition(s) is very limited and at this stage most of the decisions are going to be made based on what is in the paper.

The following table and examples I have developed to cover off this section.

The word document is in the presentation materials.

How would you rate your ability to do the following? Excellent Very good

Good Fair Poor Totally unable or not done safely

1. Remain on your feet for at least 20 minutes

I cannot stand more than a few minutes without an assistive devices such as a cane or walker. If I know in advance if I will be standing I try to bring my walker so I can sit down at a moment’s notice. If I get a sudden pain

On a typical day I can do this but it increases my pain and fatigue and is something I have to rest and recover from. The pain is a gnawing pain that goes from my lower back into my feet and it feels like it burrows in. It can increase my pain from a 4 or 5 up to a 7 or 8.

I cannot do this multiple times.

After standing this long I start to have brain fog due to the pain and the fatigue. I have to rest and recover. Recovering from standing this long can take me anywhere from 10 minutes to the next morning. When I start standing I never know how long it will take me to recover.

I have unpredictable bad days where I would not be able to stand this long at all. On those days standing for seconds causes me too much pain or I am too fatigued.

Typical day

Bad day that I cannot predict.

Needs assistive device or unsafe.


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How would you rate your ability to do the following? Excellent Very good

Good Fair Poor Totally unable or not done safely

2. Walk a block (about 100 meters) on flat ground

I cannot safely walk if I don’t have an assistive device with me. I use a cane, or a walker.

On a typical day I can make it 100 meters at a time. I use the walker so that I have a seat with me at all times so I stop and change positions walking.

When I am walking this distance I am very slow on a typical day. It takes me ages and ages to walk. Seniors with their walkers overtake me.

If I have done too much or have too much pain brain fog becomes an issue. As my brain fog increases my sense of direction decreases. Sometimes I have to phone my partner to come and pick me up with the car because I am not sure how to get home from where I am. Or I get so confused that I mix up the stop lights on the road and I start to walk out to incoming traffic.

I have to recover from all walking. This can range from half an hour to as long as three or four days. Walking increases my pain and fatigue a lot.

Typical day

Bad day that I cannot predict

Needs assistive devices or unsafe

Risks getting lost with brain fog. Risks walking into traffic

• There are also pages in this section of the application form dedicated to:

• Behaviours and Emotions

• Thinking and Feeling

• Other activities of daily living

A blank template has been included in the materials. I use this document at every stage with CPP‐D


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E1:Most people will be denied if they are still working in any capacity.

If you think the work they are doing is not “real world” work like if they are working in a shelter employment or benevolent employer situation you lay the foundations of that argument here but do so understanding it may take years for the client to collect benefits.


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E7 This can be really helpful during appeal Having tried working with accommodations and failing due to disability can be used to make a stronger case.

E8 If yes this may cause problems. Your client may need to explain themselves because when you collect regular EI you are saying your are willing and able to work.

E9 Education will be relevant when looking at this person in the real world. Must explain what about the disability stops them from using any transferrable skills.

There is a separate payment that Service Canada will pay. It is $257.58/month for each child.

The Ministry of Social Development and Poverty Reduction does not deduct these payments.

When the child is 18‐25 if in full time school they may be eligible to collect it themselves.


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If the disabled parent turns 65 and stops collecting the CPP‐D benefits themselves the child portion does stop.


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Service Canada will likely contact a number of people during this process including doctors and previous employers. While the applicant can refuse to give them permission for this the forms itself do not ask for enough details to get onto benefits for most people.

It can also give the impression that there is hidden information. Also, Service Canada will only pay for the documentation that they ask for and the burden of proof is on the applicant. This is a way of getting free medical information to work with.

CPP‐D Medical Report

The CPP‐D Application can be sent separately from the CPP‐D Medical Report. If the Medical Adjudicators do not receive a Medical Report they may reach out to the doctors but this may cause delays in the application.

If the client has more than one medical condition the family physician may be the best one to complete a medical report. They will be able to give information about how all of the conditions interact to prevent a person from working.

Specialists may have more weight in their one area but they cannot speak to anything outside of that or they risk making themselves appear as not being credible.


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Section 3 If this date is after the client’s MQP the doctor needs to explain what evidence they are using from that time to base their answers from.

Section 4A condition is considered terminal if the prognosis is an estimate 6 months.

Grave conditions are specific medical conditions that have historically had high rates of approval.

See following slide.

Grave medical conditions1. Acute Lymphoid Leukemia

2. Adrenal Cancer

3. Alzheimer’s Disease: Early Onset

4. Amyloidosis

5. Amyotrophic Lateral Sclerosis (ALS)

6. Anal Cancer

7. Brain Cancer

8. Chronic Kidney Disease (Stage 4 or later

9. Chronic liver Disease

10. Colorectal Cancer

11. Esophagus Cancer

12. Frontemporal Dementia

13. Gall Bladder Cancer and Cancer of the Bile Ducts/Malignant Neoplasm of the Gallbladder and Extraheptic Bile Ducts

14. Huntington’s Chorea Disease

15. Progressive Polyneuropathy

16. Idiopathic Pulmonary Fibrosis (IPF)/Idiopathic Fibrosing Aleveolitis/Idiopathic Interstitial Pneumonia

17. Kidney Cancer

18. Liver Cancer

19. Lung Cancer/Carcinoma of the Lung/Malignant Neoplasm of the Trachea, Bronchus, and Lung

20. Malignant Melanoma

21. Malignant Tumours of Small Intestine, including Duodenum

22. Multiple Myeloma

23. Muscular Dystrophy (Adult Onset)

24. Ovarian Cancer

25. Pancreatic Cancer

26. Paranoid

27. Schizophrenia, Chronic Undifferentiated

28. Post‐inflammatory Pulmonary Fibrosis/Interstitial (Non‐idiopathic) Pulmonary Fibrosis

29. Primary Cerebellar Degeneration/Unspecified Types of Cerebellar Ataxia

30. Stomach Cancer


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Calculating MQP Exercise 1:

Year Earnings1999 24121999 02000 17822001 303552002 303552003 332182003 334102004 346862005 373652006 77552007 19422007 383552008 430972009 84252010 181562011 139102012 361382013 345262014 361902015 272432016 123112017 384902018 27869

Calculating MQP Exercise 2Year Earnings Child’s Age1999 2412 32000 1782 42001 30355 52002 30355 62003 33218 72004 34686 82005 37365 92006 7755 0 + 102007 1942 1 + 112008 43097 2 +122009 8425 3 + 132010 18156 4 + 142011 13910 5 + 152012 36138 6 + 162013 34526 7 + 172014 36190 8 + 182015 27243 92016 12311 10 2017 38490 11 2018 27869 12 2019 0 2, 13 2020 0 3, 142021 0 4, 15


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When there are multiple overlapping medical conditions with similar symptoms I like to group them as space is at a premium

If I make a sample for the doctor I include the top disclaimer on each page

Prognosis The strongest applications will have the condition’s prognosis as deteriorate or remain the same. If it is expected to improve either the doctor must say something that explains that the improvements expected will not be to the degree the patient will regain the capacity to work in the future.

FrequencyIf recurrent/episodic you will want the doctor to make a note of how the unpredictable the episodes are or how they interact with other conditions to result in the inability to take part in meaningful work.

Medications/TherapiesI include a version of the table I use during applications. This includes more information and more space.

Note: Section 5 gives room for only three medical conditions. When assisting a client who has more than three conditions or grouping of overlapping and similar conditions I will include blank copies of this page so the doctor can include everything.


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In cases where diagnosis comes after the MQP ends it is important that the doctor can show proof that the symptoms were present

While the blank tables I attach give more information in cases where the doctors are less than receptive to doing extra work I will sometimes switch to this approach to listing medications and treatments and then ask the client to get their Pharmacare records to go with their application

If the doctor filling in the medical report was not the doctor who told the client to apply for CPP‐D benefits it can be helpful if the doctor includes a note saying that they agree that as of x date the patient could no longer continue to work.

I will ask all doctors who are supportive to please review their patient’s typed answers about their functional limitations and comment if they found them to be accurate and credible.


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If there are specific reports you are aware of that are supportive but the client does not have personally ask the doctor to include them with the application. Some doctors my prefer to wait

to be asked for additional information as when Service Canada requests it they will offer the doctor payment for the time that goes into locating or creating documents.

Attachments to the medical report

Cover letter for doctor.

Copy of the typed table that is included with the applicants application. You can ask the doctor to make a note confirming that they have read it and that they find it to be accurate and credible in the comments of a Medical Report.

There are a number of cover letters in the materials to go with this presentation.


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Application Processing Times

• Terminal Illness Application – 7 days approx

• Grave Medical Conditions – 30 days approx.

• CPP‐D Application 3‐6 months approx.

This is from the date that EDSC receives a complete application. In some cases it can take much longer. If the adjudicator is waiting for results from tests that haven’t been done yet or for contributions from outside of Canada for example.

It is in the applicant’s best interests to allow them the additional time.

Decision letters

At the end of the processing time once the information has been reviewed a decision letter will be sent to the applicant in the mail.

If an application is approved it will be sent to processing and your client can expect CPP‐D payments going forward.

If the application is denied there is the option of requesting a reconsideration. People are given 90 days to make such a request. This is best done using a Reconsideration Request form

https://catalogue.servicecanada.gc.ca/content/EForms/en/Detail.html?Form=ISP1145


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CPP‐D Reconsiderations

If the 90 days has expired and the person has not applied for Reconsideration they can try submitting the form and ask for an extension.

These extension are not automatically awarded. To increase the chances of getting one approved you must provide an explanation for why the Reconsideration request was submitted late.

The benefit of doing this is any potential retroactive may go back to the date of disability.


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Managing Client Expectations

Depending on the file CPP Reconsiderations can take between 3‐12 months.

Occasionally it may take them long to make a decision. Typically that happens in cases where the decision maker is putting off making the decision until after medical information develops and specific treatments have been tried or appointments have been had.

It is often in the client’s best interests to give the decision maker this time. Frequently when rushed

Screen for eligibility before committing to assisting with a reconsideration:• You should assess the MQP of every person you are considering approaching. Ensure that your potential client is not eligible for any of the special provisions.

• You should get an idea of the medical conditions that were present before the end of the MQP and if they would have stopped the person from working. Remember, in most cases the burden of proof is on the person trying to get the benefit.

The one exception is cases where a person had been collecting CPP‐D benefits and following a reassessment they were cut off of benefits.


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• Ensure that the possible client knows to not send in any additional information or medical reports that you may not have seen. Also, make sure they are not in the process of trying to gather medical information.

Service Canada will not pay for reports and doctors will not write unlimited reports. You want to make sure that what the doctors do share addresses the eligibility criteria and for example is not a letter about Daily Living Activities only.

• Service Canada give people 90 days from the date that they get their decision letter to submit a Reconsideration Request in writing. This can be done by writing a letter or with a Request for Reconsideration form.

• You can obtain a Request for Reconsideration form at:

https://catalogue.servicecanada.gc.ca/content/EForms/en/Detail.html?Form=ISP1145


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Section 2: This is where people have to explain if their appeals are late and explain that they intended to continue to the appeal. If they have exhausted the 90 day deadline.

Weigh the chances of success and how long you are going to need to get new information.


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Section 3: You will almost always want to collect additional information. Indicate the bottom option and make a note in your cover letter that you would like the opportunity to review the file and then you will either make written submissions or gather additional information.

Because the reconsideration form instructs people to not wait to submit additional information whenever possible have the appellant wait to see you before they send in documentation.

Section 4: “I do not agree with the initial medical adjudicator’s decision. I have approached an advocate for help with this appeal. They will need time to review the file.


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If the appellant is a new client I will have them complete the table that is used to replace the Functional Abilities section of a CPP‐D application form.

Also, I include a brief biography that has some personal information in it such as:• Age (if it is close enough to 65 that retraining is unlikely)

• English Language Learner (if you can explain why they cannot improve their ability to use English due)

•Education level (if you can explain why they cannot upgrade)

•What happened with the client tried doing different work or an explanation for why they haven’t tried different work.

•Impact the disabilities have had on their relationships with the people in their lives

•….. There are many other things so don’t limit yourself to just these listed here.

Send this form with the Reconsideration Request form to obtain a copy of the file. This will include any additional medical reports Service Canada has collected during the application process.

This will give you some idea of the gaps in a file or missing information that you need to send in.

This template is in the materials or you can obtain a blank form at:

https://www.tbs‐sct.gc.ca/tbsf‐fsct/350‐58‐nf‐eng.pdf


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In addition to the InfoSource requesting the person’s file this form is required so that Service Canada’s staff can discuss the case with you.

Sample letter to doctor

Dear Doctor

Re: _________________________DOB:____________________

Your patient has approached us for assistance with applying for Canada Pension Plan Disability benefits (CPP‐D_.

In order to qualify for CPP‐D your patient must show that they by the end of [ DATE } I met/will meet their definition of a disability. CPP‐D defines a disability as a medical condition that is both severe and prolonged.

A disability is considered severe if it prevents a person from taking part in regularly scheduled, substantially gainful, real world employment.

A disability is considered prolonged if even with medical treatments and interventions it is expected to continue into the future or result in death

If you are able to complete the Medical Report for your patient, please include:

• When you began treating the medical condition (s).).

• A Section 5 sheet for each of the medical conditions.

• This form asks you to describe your patient’s impairments, limitations and treatments. It is set up so that each medical condition gets an individual Section 5 sheet.

The forms however only have 3 of these pages so we have attached _____ blanks as your patient reports having ______ medical conditions. .

• Prognosis does not have to be written in stone. For you to get CPP Disability the decision‐makers are looking at is “is the applicant’s condition likely going to improve, deteriorate, stay the same, or unknown”. The strongest application will be one where the condition(s) meet the definition of severe and will likely deteriorate or stay the same.

Expected duration should be more than 1 year. Any conditions that are temporary may not have an impact on CPP‐D eligibility


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• A list of the medications is asked for. The form does not have room for many. We have enclosed a blank table that you can use to list more of the medications your patient may be currently taking or has taken in the past. Alternatively, a print out of their Pharmacare Records would be considered acceptable.

• Types of treatments used to control your patient’s condition(s). Like medications there is not a great deal of space to list these. We have enclosed a blank sheet that you can use to paint the full picture of all the work you and your patient have done up until this point.

• The Applicant’s employment situation (Section 6)

• If you did not recommend that they stop working but you agree with your patient has been unable to work since ______ please add a brief note (Question 1).

• Your patient tells me that they feel they are unlikely to regain the ability to work in the future. If you agree with them please consider saying so in this section (Question 2) If you do believe they will regain the capacity to work then there may be a miscommunication between yourself and your patient.

• Supporting documentation (Section 8)

• We have taken the liberty of attaching a document that your patient and I worked on for their application that lays out some of their functional abilities. If you review this and find it to be accurate and credible please consider saying so in your report.

• The CPP Disability Medical Report often does not go into a great level of detail.. Please attach any report(s) or notes that you think would be relevant to the application.

ESDC do offer an $85 payment for completing these reports. You must submit an invoice to Service Canada. Instructions on how to submit and what information is needed to process these payment requests are located on page 3 of the CPP‐D Medical Report.

Your hard work on behalf of your patients in doing these forms is greatly appreciated.

If you have any questions please reach out to myself at (604) 872‐1278 or [email protected].

Sincerely,

[Name & Signature]

Reviewing the fileAfter approx. 1 month you should have the client’s paper file from Service Canada. There are many different ways to organize yourself and your file. My personal approach is to create an electronic time line:

January 13, 2018 Dr. Barbra Gordon rheumatology p. 18

[relevant point]

January 2, 2018 Dr. Jason Bard orthopedic surgeon p. 210

[relevant point]

December 15, 2017 Mr. Dick Grayson physical therapist p. 103

[relevant point]

December 12, 2017 Dr. Bruce Wayne psychologist w. specialization in grief and chronic pain p. 8

[relevant point]


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Gathering additional information

• Request hospital records • Pharmacare print outs • Friends and family on what they have observed• Allied health professionals • Employment counsellors• PWD (and other) application forms• LTD/WCB/ICBC reports• Doctors

If someone has a really supportive doctor who is willing to cover all of the main points you need addressing in a detailed and long letter that is the ideal situation. That will be the most compelling for decision makers.

Most doctors are not able or willing to the find the time to do this so instead there is a document that I use that covers most things that come up at appeal.


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[Date]

Service Canada

Attn: CPP‐Disability Reconsideration

PO Box 1177 Stn CSC

Victoria BC V8W 2V2

To Whom It May Concern,

Re: _________________________SIN_________________

[Client Name] was denied CPP‐Disability benefits (CPP‐D) on [date] and they are requesting a reconsideration of the decision made to deny them CPP‐Disability benefits. Enclosed, please find:

Reconsideration Request form

InfoSource requesting the complete CPP‐D file

Client letter dated ________________ describing how their disabilities impact their ability to function..

Consent to Communicate With an Authorized Person

Letter from [friend/family member] describing the ways they see the appellant’s disability impact their ability to function

Letter from [doctor] updating ………. ONLY IF IT IS NOT IN THE FILE ALREADY AND SUPPORTIVE if you are unsure the document has gone in wait to see the file first.

Letter from allied health professional updating……. ONLY IF IT IS NOT IN THE FILE ALREADY AND SUPPORTIVE

Once I have had a chance to review [Client Name]’s file we may gather additional information to support his appeal or we may follow up with written submissions.

Sincerely,

Written submissions

• Do not just list information from the file use it to make arguments in support of your client’s appeal.

•Do not ignore reports or documents in the file that indicate your client may not fit CPP’s definition of disability. Explain why that document should be discounted

•Make the submission easy to read.

• Personal time management:

• If there is enough material to work with in the file already I will often make an initial submission immediately after reviewing a file. If more information develops I attach a cover letter with arguments related to the new material.

• If there isn’t enough material to work with right away on those files I wait to get information in first and then make a submission once I have the documentation


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CPP Reconsiderations take 3‐12 months typically. Most of the delays are caused by Medical Adjudicators waiting for additional information.

IMPORTANT

Advise your clients they should not rush the decision. If it was possible to say yes based on what was already in the file they would already be on the benefit. Rushing often means that the application is denied and important information is not collected.

Remember Service Canada will only pay for the information they request. Clients may find themselves having to pay for medical reports at Tribunal that could have been collected at Service Canada’s expense.

If the application is denied the client will have 90 days to appeal to the Social Security Tribunal’s General Division.

Due to time and experience level we are not going to cover the Social Security Tribunal in this presentation. However, when you do become more experienced and are attending the Provincial Training Conference in the future that is a topic that is presented on at times.


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If the reconsideration is denied the client will have 90 days to inform the Social Security Tribunal that they wish to appeal.

There are often workshops done on this stage at the Law Foundation’s training conferences in the fall.

These cases are often more complex and can involve using things such as case law in your arguments.

Differences between CPP‐D and PWD


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CPP‐D PWD

Provided by Employment and Social Development

Canada federally

The Ministry of Social Development

and Poverty Reduction

Contributory requirements Yes. A Minimum Qualifying Period must

be established and you must be able to

show that you met their definition of

disability before the end of that date.

No.

Income or asset tests. No. Yes. A family unit must demonstrate

financial eligibility to collect these

benefits. Residency requirements None at application or while collecting

the benefit.

Must be a resident of B.C. at

application and must continue to reside

in the province to continue to collect

benefits.

Leaving B.C. for more than 30

consecutive days without prior

authorization can disqualify you from

continuing to collect cheques

CPP‐D PWDDefinition of disability To be considered disabled a person

must demonstrate that their medical

conditions prevent them from working

at any “real world” employment and

those restrictions must be expected to

continue into the future and to be

prolonged.

A person applying for this benefit must

have a medical condition that is

expected to continue for at least two

years from the date of application.

These conditions must restrict the

applicant’s ability to take part in specific

Daily Living Activities.

Getting the application forms Publically available. Will be processed

and considered regardless of if a person

meets basic eligibility requirements.

Must have demonstrated financial

eligibility to open up a file with the

Ministry of Social Development and

Poverty Reduction.

Time lines Typically days for terminal conditions.

Monthly for “grave medical conditions”

Months or years for everyone else

depending on if and how far they have

to appeal

Even at its slowest the Ministry of Social

Development and Poverty Reduction

typically have processed and approved

people faster than with CPP‐D


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CPP‐D PWD

Payment rates Flat rate + amount based on the

contributions.

People receive vastly different amounts

each much

Set amount based on the number of

people in the family unit.

This amount is uniform. Every 1 person

family receives the same rate. Every 2

person family with 1 person on PWD gets

the same rate. Every 2 person family

with both adults on PWD gets the same

rate. Taxable benefit Yes, this benefit is taxable income.

People can either have taxes taken off of

their benefits each month.

Would encourage clients whose family

income does require them to pay income

tax to apply for the Disability Tax Credit.

This is not considered taxable income.

CPP‐D PWD

Can it be garnished Yes.

If someone is in the position where their

monies are being garnished from their

bank they may not want to have their

cheque direct deposited.

No. However, at times the banks will

make an error here.

Associated health benefits No. CPP‐D is simply financial there are

no associated medical benefits with this

designation.

Yes. People who are awarded the PWD

designation are eligible to receive

medical services that include:

‐ Diet supplements

‐ Limited dental coverage

‐ Pharmacare no deductible

‐ Medical equipment and devices

Access to a bus pass Not through this program.

In some areas such as the transit

authority may have a separate program

that will allow people if approved to

travel on concession fairs.

Yes.


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CPP‐D PWD

Employment while collecting benefits Is allowed. However, each year

(adjusted for inflation) there is a cut off

where people have to inform CPP‐D

that they have exceeded.

In 2021 this amount is $6, 100

Exceeding this amount does not mean

automatically the person will be cut off

of benefits. It will simply trigger a

reassessment where they look at if the

person has regained the capacity to do

“real world” employment

Annual earnings exemption of $15, 000

for a single person.

Earnings should be declared monthly.

Ashley SilcockDisability Alliance BC#1405‐605 Robson StreetVancouver, BC

[email protected]

Office phone:604‐872‐1278872‐1278 or 1‐800‐663‐1278

Personal Cell (please do NOT give this to clients)

The volume of calls and the size of appeal files means at times I have be difficult to reach using the office phone.

During office hours please feel free to reach out to me over text of audio call.

604 786 4494


541

Year Maximum annual pensionable earnings

DBE (how much a client has to work to make valid contributions for CPP Disability

202320222021 $61, 600 $6, 1002020 $58, 799 $5, 8002019 $57, 400 $5, 7002018 $55, 900 $5, 9002017 $55, 300 $5, 3002016 $54, 900 $5, 4002015 $53, 600 $5, 3002014 $52, 500 $5, 2002013 $51, 100 $5, 1002012 $50, 100 $5, 0002011 $48, 300 $4, 8002010 $47, 200 $4, 7002009 $$46, 300 $4, 6002008 $44, 900 $4, 4002007 $43, 700 $4, 3002006 $42, 100 $4, 2002005 $41, 100 $4,1002004 $40, 500 $4, 0002003 $39, 900 $ 3, 9002002 $39, 100 $3, 9002001 $38, 300 $3, 8002000 $37, 600 $3, 7001999 $37, 400 $3, 700

https://www.canada.ca/en/revenue-agency/services/tax/businesses/topics/payroll/payroll-deductions-contributions/canada-pension-plan-cpp/cpp-contribution-rates-maximums-exemptions.html

Remember when adding future years it is 10% of the Maximum annual pensionable earnings rounded down to the nearest 100.


542




543

Consider whether your abilities vary between good days and bad days and whether your abilities have improved or worsened over time.a) Physical abilities

How would you rate your ability to do the following? Excellent Very good Good Fair Poor Totally unable or not done safely

1. Remain on your feet for at least 20 minutes

When I try and stand

2. Walk a block (about 100 meters) on flat ground

When I try and walk

3. Go up and down 12-15 steps

When I try and do stairs

4. Get down into a kneeling or squatting position and back up again

When I try and kneel

5. Bend down to pick up coins from the floor

When I try to bend

6. Remove an item from your back pocket

When I try and reach behind me

7. Change a light bulb in the ceiling above your head

When I try to reach above me to change a light bulb

8. Sit for at least 20 minutes in a straight back chair

When I try to sit

9. Transfer to and from a bed, chair, toilet, car

When I try to get on or off of furniture

10. Drive a car


544

Consider whether your abilities vary between good days and bad days and whether your abilities have improved or worsened over time.How would you rate your ability to do the following? Excellent Very good Good Fair Poor Totally

unable or not done safely

Driving a car is

11. Pull or push a heavy door to open it

When I try to move heavy doors

12. Pick up two bags of groceries and walk a block (100 meters)

Trying to do this would

13. Open a can with a manual can opener

Opening a can like this would

14. Pound a nail with a hammer

When i try to pound a nail with a hammer

15. Use your index finger to press keys on a computer keyboard

When I try to use just one finger to type I

16. Stare at a computer screen for at least 20 minutes

Looking at a screen like this for that long

Other:


545

Consider whether your abilities vary between good days and bad days and whether your abilities have improved or worsened over time.B) Behaviours and emotional abilities

How would you rate your ability to do the following? Excellent Very good Good Fair Poor Totally unable/not done safely

1. Work in a team

For me working in a team is

2. Change your usual work approach when asked to do so

This would be

3. Keep at difficult tasks until you get them done

Sticking with difficult tasks is

4. Adjust easily to unexpected changes

I find change to be

5. Figuring out what to do when you are stressed

Problem solving or figuring out what tasks to start for me is

6. Ask for help from co-workers when needed

Asking help for me would be

7. Deal with people you do not know

For me dealing with strangers

8. Control your temper when dealing with others

My temper is

9. Do what people in authority ask you to do

Dealing with authority ifgures for me is

10. Control emotions and impulses that other people would probably find


546


unable/not done safely

inappropriate

Controlling emotions would be

11. Manage your anxiety

Anxiety fo rme is

12. Handle being in public places or situations

Being out in public is

Other


547

Consider whether your abilities vary between good days and bad days and whether your abilities have improved or worsened over time.C) Communication and thinking abilities


1. Understand what people say in everyday conversation

Talking with other people I

2. Call to mind words that you want to use while talking with someone

Finding the words that I want to use is

3. Remember to do important things, such as keeping appointments

I find my memory for things like appointments or deadlines is

4. Find your way to a familiar place, such as the bank or grocery store

For me this is

5. Concentrate and focus your attention for at least 30 minutes

Concentration has become

6. Keep track of what you are doing even if you are interrupted

If I get interrupted during a task I will

7. Learn new things such as organizing files according to a system

Learning something new for me is

8. Prioritize and plan your day

When I am palling my day i

9. Decide between two options

Making decisions with my disabilities is

10. Put together a shopping list of 10 or more items


548



Deciding what should go on the list is

11. Add and subtract numbers

Math and managing money has become

12. Read a short message

My ability to read is

13. Write an email

When it comes to using computers I

Comments:


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Consider whether your abilities vary between good days and bad days and whether your abilities have improved or worsened over time.D) Other daily abilities


1. Take care of personal hygiene such as bathing, brushing your teeth, combing your hair, or shaving

Over all when it comes to my hygiene it has become

2. Take medication(s) as directed and handle medication(s) safely.

My ability to manage my medications is

3. Dress yourself (including buttoning clothes and putting on shoes)

I get dressed

4. Get to the bathroom in time

Using the bathroom for bladder functions has been

5. Go to the bathroom in time

Using the bathroom for bowel functions has been

6. Do housekeeping such as home maintenance without frequent breaks , such as cleaning, laundry, meal preparation, shopping or yard work.

Housework now is

7. Answer the telephone

If my phone rings I would

8. Open and sort mail at your home

My mail is

9. Manage your budget and pay your bills

Managing my finances now is


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10. Use public transportation

If I were to try and take public transit I wouldComments:


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MS Society

Guidelines for Applying for CPPD

Chapter 2 provides a good summary of eligibility criteria

https://mssociety.ca/library/document/HLAR9rwfIvsSbckPpY8W637EQ04CKgTi/original.pdf


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https://mssociety.ca/library/document/HLAR9rwfIvsSbckPpY8W637EQ04CKgTi/original.pdf

1

Topic: Case Evaluation: merit, triage, referrals

Timing ∑ June 9, 2021 ∑ 1 – 4 pm

Student prep: Read Chapter 3 of Poverty Law Guide

Learning Objective/s: Learners will be able to: ∑ Consider if the issue with which a client needs

help is within the mandate of their organization. ∑ Set priorities so that advocacy resources are

efficiently used. ∑ Work with a client to identify what the advocate

and client can each do. ∑ Evaluate cases to assess if the issue the client is

dealing with has merit and understand the value of explaining to a client when a case does not have merit.

∑ Make use of resources to help advocates assess how to proceed with a case:

o Supervising lawyero Legal research o PovNet listso Community Advocates’ Support Line

(CASL)∑ Make appropriate referrals to:

o Legal representation serviceso Legal information or advice serviceso Self-help resources (in person and online) o PLEI materials

Activity: ∑ Class discussion and presentation about whatadvocates should consider when assessing whether or not to go forward with a case and how to proceed on a case once the decision is made to act for a client.

∑ Class group discussion of a fact pattern. Model how to evaluate a case

∑ Group work on exercise. Work to review a file, identify the key issues to consider, and options of how to proceed.

∑ Class take-up of work on fact patterns and discussion of questions arising from exercise.

Legal Advocacy Training Course - Week 1 Materials - 9. Case Evaluation

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2

Resource persons: Alison Ward, lawyer, Community Legal Assistance Society (CLAS)

Michelle Beda, advocate, TRAC

Materials: ∑ Chapter 3 Poverty Law Guide ∑ Checklist on coverage ∑ In class handouts

Assessment: Test June 30


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DRAFT CHPT 3 – COVERAGE & MERIT

Chpt 3 - Coverage and merit © Anne Beveridge Page 3-1 of 156/15/2021

Introduction

The purpose of this chapter is to give you guidelines for deciding whether or not a particular client’s issue should be covered by your office. The key to determining whether your client is entitled to coverage is assessment of merit. (The degree of merit also affects the level of service you may provide.)

The reality of life as a poverty law advocate means that we must have a priority system that allocates our limited resources to those clients who are in greatest need, who will derive the most benefits from our intervention, and who will suffer the greatest damage from refusal of service. In some offices, the demand for service is so great that, at times, staff may have to work on a “legal triage” basis.

Coverage of Client Problems

Studies of what coverage advocates and other services can provide, have identified four types of service. These divisions continue to provide a useful focus when deciding what client issues should be covered in a particular situation:

∑ Priority 1 - Mandated by funder∑ Priority 2 - Mandated by local board ∑ Priority 3 - Requested by community in addition to 1 & 2 ∑ Priority 4 – Other services

Priority 1 - Poverty law services for individual clients – mandated by funderThe following are factors that several studies about coverage suggest be considered. However, they must be read with reference to the specific guidelines for your agency. Consider if:

∑ The problem has a substantial legal component in the sense that a reasonable person would likely hire a lawyer;

∑ The problem presents a substantial menace - present or imminent;

∑ The problem places the person’s interest in real jeopardy; or

∑ The problem involves one of the following interests:

∑ A safe living or working environment, including conditions in the home, at the workplace, and in public facilities;

∑ Mental safety or health, to the extent that the legal problem is affecting the applicant’s ability to function;

∑ The right to secure the basic necessities of life for the person’s dependants;

∑ The ability to make a living, either directly or indirectly.


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Priority 2 - Board mandated poverty law services for individual clientsThe poverty law services your agency decides to provide may include the following:

∑ Legal information to all who request it;

∑ Summary legal advice to financially eligible people;

∑ Legal services, including representation, if:

∑ The person is financially eligible;

∑ The person is unable to reasonably protect his/her own interest without assistance (for reasons such as age, disability, language problem, or illiteracy);

∑ The problem has a substantial legal component in the sense that a reasonable person would be likely to hire a lawyer; and

∑ The problem is urgent in the sense that either:

ß serious adverse consequences are imminent; orß the person’s financial circumstances will qualitatively worsen if the

problem is left unaddressed....

∑ Legal representation where the problem arises out of poverty or disability and the case raises legal issues of importance for other members of the group to which the individual belongs.1

Priority 3 - Poverty law services for clients requested by communityThese services may be provided if funding permits. For example, your community may have indicated that certain individuals at high risk have great need of some service even if they do not meet your eligibility tests. Such an individual might be a disabled senior who is in danger of losing a home and/or comfortable income due to abuse by a care giver or scam artist. Short service, such as letter writing or contacting local support agencies could prevent financial and emotional disaster for this client.

If your office has an advisory committee or community board, you should ask for policy direction about what discretionary services your office might provide.

Priority 4 – Other servicesEven if your funder does not cover work such as community development or law reform for instance, you may be able to provide additional services through another funder or in partnership with another agency program. If this is the case, you must be careful that non-funded work does not encroach on time available for funded services unless the ultimate result enhances your ability to provide concurrent or future funded services. If you are in doubt about providing any non-funded service, you should discuss this issue with your supervisor or executive director.

1 As above


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Merit Test

Assessing merit is different from the task of determining coverage. A case could fulfill the requirements for coverage but if it has no merit, the appropriate response is to refuse service.

The merit test involves a type of cost/benefit analysis but these costs and benefits are not exclusively financial. Because we are unable to serve every financially eligible client who asks for help, most of us already carry out some kind of test when deciding whether or not to assist aclient. Subjective factors inevitable play a part in this assessment, either consciously or unconsciously. For example, it is only human nature to prefer helping a distressed but polite client than one who is rude and insults you. The following guidelines should help you maintain a more objective attitude in the face of a difficult client with a genuine legal problem or a sympathetic client whose case unfortunately has no legal merit.

You must also be careful to distinguish merit from subjective opinions about the ethics or morality of a client’s conduct. If something in your own history makes it impossible for you to deal with a client without making adverse prejudgments, you have a duty to refer the client to someone else. Your job is to consider potential consequences of legal problems rather than make moral judgments about their causes. This applies when you would like to help as well as when you want to refuse. For instance, you must refuse a case that has little or no chance of success even when you feel that the client is the victim of injustice. This does not mean you must send them away empty handed. You may be able to refer them to a more appropriate person or agency, suggest they speak to the media, speak to their city councilor, MLA or MP, or inform them of a community group that may be doing law reform work in the subject area that has affected the client

Remember that the purpose of poverty law service is to level the playing field, not to tip the balance towards the clients solely on the grounds that they are poor and the issue is on your list of covered topics.

Sometimes an interviewer will be able to make a decision about merit at the intake stage which may result in minimum service (diversion to other community services, delivery of summary legal information, or distribution of written materials). More often, decisions about merit require a careful review of the facts and law by the advocate. In most cases, it is at this stage that you will have to make a decision about merit. You should not make any commitment to provide extended service until you have assessed merit.

You should ask the following questions when reviewing for merit:

Does this case have a reasonable likelihood of success, given its particular facts and applicable law?

Will the outcome of the case, if successful, confer a substantial benefit on an individual or group?


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Is there any other service by means of which the client could pursue this case or is legal aid the last resort?

1. Reasonable likelihood test

The threshold questions under this heading are: “ Does a cause of action exist? Can it be pursued in this jurisdiction? Is there a limitation period deadline coming up or passed? Is the evidence available - or likely to become available - to pursue this matter to a successful conclusion?”

Before agreeing to provide service you must determine whether there is a reasonable likelihood that the case will result in a positive outcome for the client. The test is similar to the civil proceedings “balance of probabilities” test. Its purpose is not to prejudge the outcome of the case but rather to make a rough yet fair assessment of the prospects for success, recognizing that success may be achieved only on appeal or through law reform.

At the outset, you should take a liberal approach in applying this test as you will be relying on the client’s - probably incomplete - story and will be hampered by a lack of available evidence. Unless the client’s story is entirely frivolous or fails to disclose any legal issue, you should consider offering summary assistance even if the case appears to be of dubious merit. Your review of the facts and law may confirm lack of merit, in which case you should go no further. On the other hand you may discover new facts that indicate that further intervention or extended service is likely to change the case from “dubious” to “meritorious.”

2. Substantial benefit test

Even though there might be a reasonable chance of winning a legal argument, this alone is not enough to warrant providing extending legal services to the client. Where the potential benefit is strictly financial, limited to a single client, and the amount relatively small, services should be limited. On the other hand, where there is no expected financial benefit but intervention is necessary to prevent irreparable loss, such a case would pass the “substantial benefit” test. In the latter case, the “benefit” is prevention of harm.

Examples:

∑ Client A is the victim of a scam artist. She has sent money to ABC Company and has not received the goods promised. ABC no longer exists and the principals of the “company” have skipped town. The evidence shows that A would likely obtain a judgment against ABC but there is little chance that she will ever get her money back. You would not be justified in offering extended service to A. If she insists on proceeding “on principle,” you could give her information about how to pursue a small claim and about applicable limitation periods. (Even in a case such as this, you would have to consider many factors before turning A down. For example, if she knows the identity of the scam artist, she might be able to sue him personally. By refusing service too hastily, she might lose a possible remedy.)

∑ Client B is receiving LTD benefits which place him above the poverty line. The insurer is threatening to cut him off next week if he fails to sign a waiver of certain rights and provide


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additional medical evidence. Signing the waiver may remove future valuable entitlement. B can’t get an appointment to see his specialist until next month at the earliest. This is a situation where you should help the client before he is plunged into financial crisis. Summary assistance now could avoid the necessity for extended service in the future when B could be homeless and phoneless as well as disabled.

Even though the expected benefit is small for an individual, it may have a substantial impact on the group to which the individual belongs. This might justify accepting the client as a “test case.”

The benefit need not always be tangible. Where it is intangible, you must have good reason to believe that the treatment of an identifiable group of disadvantaged people would improve if the case were to succeed.

Example:

∑ Client C is the victim of an unlawful arrest and wants to complain to the police commission. The potential benefit in this case stems from the redress of the client’s grievance which would open the door to a remedy for others who may have been treated in the same way. It may also prevent recurrence in similar future situations.

However, keep in mind the example above in which A wanted to proceed “on principle.” Unless a win in her case would also assist a whole identifiable group of scam victims, you should not use scarce resources to fund litigation.

In summary:

You should provide services regardless of the size of benefit where:

∑ the benefit represents an essential item needed by the applicant;

∑ the issue raises a question of law or policy involving social welfare legislation (for example, income assistance or disability benefits), where a successful outcome will provide some benefit, however, small, to a large number of persons living in poverty;

∑ the client belongs to a disadvantaged group, and the case raises issues of importance to other members of that group, the majority of whom would be financially eligible for assistance;

∑ the client will receive little or no financial benefit, but service is intended to curb abuse of power by government or persons in authority, or to “keep the system honest.” Common examples include:

∑ police complaints∑ debt collection/bailiff complaints∑ complaints to an Ombudsman


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You should not consider the following when assessing merit:

∑ the client’s subjective assessment of merit unless it conforms with your professional opinion

∑ the client’s role, if any, in creating the situation.

Once you choose to provide service to a client, you must do your best to keep your personal biases or prejudices from adversely affecting your work. In reality, it is impossible to be completely objective about every case that comes your way. It is easier to cope with difficult situations if you continue to refocus on the notion that your role is to help clients make decisions based on a variety of reasonably available and legal alternatives.

Here are some ways that you can fail to be objective:∑ making assumptions about the cause of problems∑ over-identification with the client’s situation∑ failure to explore all reasonable alternatives∑ reaching premature conclusions based on partial information∑ not recognizing that one person’s perspective is but one viewpoint∑ becoming overwhelmed by personal feelings∑ leading clients to reach conclusions that you favour (in situations where personal choice

is involved.)∑ “black and white” thinking∑ distortion of facts, misinterpretation of verbal and non-verbal cues.2

3. Last resort test

You should always consider alternative resources within your community before agreeing to provide assistance. If you are in a small community, you are probably aware of those lawyers who are willing to provide pro bono services, either via groups or on their own initiative. If you are in a larger community, it might be helpful to take steps to find out which local lawyers may be willing to offer pro bono representation.

Many unions have experienced advocates who can assist with EI, WCB, CPP and other issues. Before considering referral to a union, you should make sure that the client has not already tried and failed to obtain their help. A surprising number of clients fail to tell you that their union has refused to help because they believe this information will bias you against them. (“If they don’t believe me, why should you?”)

Some issues can be resolved by mediation. If your community offers low (or no) cost services to low income clients, you should consider a referral - keeping in mind the issue of equality of bargaining power. Mediation may not be appropriate for many of your clients.

2 Counselling text [find cite], “Professional Behaviour” at page 42.


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Guidelines for referral:

∑ The organization or person must be competent and able to provide the appropriate level of service required. Lay advocates may be able to assist with simple legal problems but some services can be delivered only by a lawyer or supervised paralegal/advocate.

∑ If agencies do not require legal supervision for their services, be very cautious about referring to such organizations. You may wish to implement a call back system to check on quality of service given to the client.

∑ Many government agencies provide information and limited service but are unable to represent clients at hearings. You should be aware of what they can and cannot do. Sometimes you can work in cooperation with these agencies by persuading them to obtain important information that will help your case.

∑ If in doubt, return to your mandate. If the referral agency cannot provide mandated service to which you believe your client is entitled, you should not refer.

Examples of government services:∑ Residential Tenancy Branch - gives information and can offer mediation if both parties

consent.∑ Canada Pension Plan advocates - limited service∑ Credit Counselling Society - cannot provide legal representation but have power and

expertise to convince creditors to reach settlements. ∑ Workers’ Advisers - Because of their case load, they are not always able to represent clients

at hearings. They can give knowledgeable advice and have direct access to WCB client computer files. If client is financially eligible, you may wish to set up a post-referral system for checking whether client will be represented. Note that Workers’ Advisers have a substantial budget for obtaining medical reports. If your agency has no access to a disbursement fund, you may wish to consider the possibility of working with the Adviser on the file.

∑ Public Guardian & Trustee - for matters of competency, especially where there is suspicion of abuse and the risk of loss of considerable assets.

∑ Ombudsman - is situations of abuse of government (or government-funded) process.

If you are in a small community, you have the advantage of having more intimate knowledge of all available services. However, you have the disadvantage of lacking access to the variety of services available in large centres. An assessment of the availability of good quality alternative services is a matter for each office. At the very least, you should consider the option of a referral before allotting staff resources to a case.


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Other considerations when assessing merit

Barriers to legal remedies

Barriers caused by client attributes such as language, culture, disability, illiteracy or other personal characteristics are considered more fully in the next chapter dealing with Level of Service. In theory, the case should pass the merit test before it is necessary to look at barriers. In practice, it is difficult, if not impossible, to ignore these barriers especially in relation to determination of substantial risks and benefits. For example, a healthy young client might not have so much to lose if they fail to win a landlord/tenant dispute involving noisy neighbours. They are more likely to be able to move to other accommodation than a disabled or mentally ill client living in scarce subsidized housing.

Abuse of power by an opposing party may be considered if it affects the ability of your client to function effectively in dealing with the problem. This issue often arises because these clients arealready at risk because of personal characteristics that make them easy targets for abusers; for example, recently widowed and isolated clients may be more susceptible to plausible fraudsters because of grief and loneliness. In other cases it is the abuse itself that makes the client vulnerable; for example, survivors of spousal assault.

Service necessary to assess merit

This issue has been partially discussed above. In summary, you should take the following steps:

∑ If, at the initial interview, you find that the client’s case is clearly unreasonable or without legal merit, you should refuse service. If the client might benefit from information that would prevent a recurrence of the problem or would help them understand why the problem arose, you should give them appropriate PLE material. If you think a second opinion will convince the client that the case has no merit, you should refer them to Lawyer Referral. Such a referral will also give you some protection if you are wrong in your assessment. In some situations, you may consider telling the client to return if an experienced private bar lawyer says the case has a chance of success,

Example:

∑ Client with grade 12 education signs contract for goods without reading it. Had he read it, he would have been fully capable of appreciating the risk involved. The other party to the contract has acted in good faith and has done nothing that would give rise to a common law defence or statutory remedy for client’s breach. This case would appear to have no merit and warrants a refusal of service. However, Lawyer Referral is a good back-up and is a positive service to offer.

∑ In most cases you will have to take several hours, read many documents and seek further information before you can make a realistic assessment of merit. In some legal areas, such as Workers’ Compensation, you may have to wade your way through years of accumulated documents that may take weeks to arrive.


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∑ In complicated cases, the assessment process itself is a form of extended service. If you record your findings in the form of a status report or detailed review of documents, you will have something of value to give to your client even if you have to refuse further service. A report written in terms that the client can understand goes a long way towards defusing anger and resentment about termination of services. Putting your assessment in writing also assists you in applying the merit test. Finally, if the client appeals your termination to your Board, you already have detailed reasons on file to explain your decision.

Changes in merit during a proceeding

When you agree to accept a case, you may often have only the client’s version of the facts and limited knowledge of the legal issues. That is why it is useful to send a “limited retainer” letter to the client to confirm that, until you have heard both sides and researched the law you will not be able to give them a commitment to represent them or offer extended service. Often a case that looks promising at the beginning takes on a different complexion after disclosure of documents, discussions with potential witnesses, discoveries or receipt of expert opinions.

Because clients pay little or nothing for poverty law services, they have no incentive to abandon a case that appears to have little prospect of success. You should tell them at the outset that you will be unable to continue if new evidence emerges that contradicts your initial impression of merit. Clients often hear only what they want to hear. And what they hear when you say you will look at their case to determine merit is that you have agreed to represent them fully. It is recommended that you deal with this possible misperception by confirming in a retainer letter what you will and will not do.

Sometimes, during a case, you will receive an offers to settle from the other side. Sometimes clients will want to reject it and fight to the end. Because they are not paying legal fees, the “bird in the hand” may not seem so attractive as gambling for “two in the bush.” In this case, you should ask the question: Does the offer of settlement justify pursuing the case further?

Example:

∑ Mrs. X. lost a top tooth when she bit into a piece of glass that must have come from a package of cereal bought from ABC Company. Because ABC did not take her claim seriously and kept delaying, by the time she reached the legal aid office, her bottom plate was damaged through excessive chewing on the side of her mouth away from the missing tooth. Cost of replacing the tooth and repairing the plate was $1,950 but the dentist recommended replacing the lower plate at an extra cost of $800. ABC offered to settle for $2,000. Mrs. X wanted to go to court for $3,000 plus damages for emotional distress (months of embarrassment from facing people with large gap in her mouth).

The amount of the offer in this case would not justify taking it to trial. You would present Mrs. X with the option of accepting the offer or going to Small Claims Court on her own.


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Appendices

1. Coverage checklist

2. Checklist for determining meriti. This checklist may be used to keep track of steps taken to assess merit.

It is particularly useful for poverty teams who are sharing work on a file. Rather than putting a “tick” in the “Yes” “No” and “Done” columns, you may want to use initials and date (where applicable)


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Appendix 1 - Coverage Checklist

Client Name: Client and case numbers:

Question Yes No Comments1. Is there an identifiable and

substantial legal issue?2. If so, is it a poverty law issue?

(see Poverty Law Topics)3. Is it complex?4. Is there more than one poverty law

issue?5. Do you have the expertise – or access

to expertise - necessary to provide timely and effective services?

6. Does the problem present an immediate or substantial threat to:

∑ Home, work, public environment∑ Physical or mental safety∑ Right to secure necessities of life for

client or immediate family∑ Ability to make a living?7. Would a reasonable person of

ordinary means likely retain a lawyer?

8. Does the legal issue have merit?9. Is the client unable to reasonably

protect own interests because of vulnerability due to:

∑ Age∑ Disability∑ Language problem∑ Illiteracy∑ Other?10. Are adverse consequences

imminent?11. Does case raise issues of importance

to other members of client’s group?12. Has client utilized all other available

options?13. Has the community requested the

type of poverty law service that client needs?


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Appendix 2 - Checklist for determining merit

The purpose of the following table is to condense the information in Chapter 3 in a way that will alert you to those stages in a case when you should assess or reassess merit. It is set out to conform to the usual order of events that occur when clients present you with their problems.

Experienced staff will likely go through this process without using a checklist. Many of the questions in the table are automatically part of the process of assessing a case. Other people prefer to use different types of checklists and “to do” lists that fit their way of working. The following table should be useful for new staff while they are in training.

Questions Yes No Action Deadline Done

1. First Contact

Are all or some of client’s issues covered?

If yes

If no

Proceed to next step

Give client refusal form , PLE material and referral if appropriate. If contact is by telephone only, offer to provide PLE material. (If in doubt, make appointment for interview.)

Using a liberal inter-pretation, does case appear to have merit?

If yes, or if in doubt

If answer is clearly no

Proceed to Step 2.

Give client refusal form or non-retainer letter briefly explaining your decision. Offer PLE material and referrals if appropriate. Inform client they can return if new facts arise that are favourable to their case.

2. Discuss nature of service you may provide

Do you have enough information to make a firm decision that case has merit?

If yes Agree to provide specific services; outline what issues, if any, are not covered or have no merit. Confirm in retainer letter setting out your role


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If no

and that of client – with clause allowing termination. Have client sihn letter and “withdrawal as counsel” form if applicable.

Explain you are examining case for merit only and send (or give) client limited retainer letter. Obtain further information and evidence to determine whether case meets merit test.

List further information you require to make final decision; for example

∑ Disclosure of government file∑ Opposing party’s version of facts∑ Expert opinion (eg. medical

report)∑ Witness statements∑ Bank or other financial

statements∑ Photographs∑ Contracts∑ Legal research∑ Advice from practice advisor

3. After review of new information

Does case pass reasonable likelihood of success test in whole or part? (Does legal research indicate that you could win?)

If no

Does case pass substantial benefit test?

If no

Does case pass last resort test?

If no

If answers are yes

Record reasons on file, inform client and close file (or part that involves this issue).

As above

Refer to other sources of assistance

Obtain signed retainer letter as above


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and “withdrawal as counsel” form if applicable

4. Changes in merit after full retainer

Are you reviewing file each time new information arrives?

If no

If yes, should new information reverse your decision on merit?

If yes

Have any new laws, regulations or policies been passed that adversely affect merit?

If yes

Create bring forward system for file

Record reasons on file and inform client in writing that you are terminating or reducing services – and why. Invite response from client. If none, try to contact client before closing case or reducing services.

Explain to client in writing that new law now makes success unlikely. If necessary, send client for second opinion or obtain one yourself. Terminate unless second opinion leads you to reconsider.

5. Changes in merit in client’s favour afterearlier refusal

Contact client, make appointment and open new file


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Case Evaluationfor Poverty Law Advocates

June 2, 2021

Michelle Beda, legal advocate, Tenant Resource & Advisory Centre (TRAC) Alison Ward, lawyer, Community Advocate Support Line (“CASL”) Community Legal Assistance Society


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What is“PovertyLaw”?

This Photo by Unknown Author is licensed under CC BY


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https://mesh.tghn.org/articles/engaging-social-justice-interview-ceri-davies-research-director-national-centre-social-research/

https://creativecommons.org/licenses/by/3.0/

Poverty Law – a definition

Poverty law – a legal problem that threatens:

(a) a person’s mental or physical safety or health, or that of their family

(b) a person’s ability to feed, clothe and provide shelter for themselves and their dependents, or

(c ) a person’s livelihood.*

*Definition of poverty law from the old (pre May 2002) Legal Aid BC/LSS mandate.


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LF Poverty Law Advocacy Program Scope of Service

(Nov 2019)

Poverty Law Matters Covered:

• Income security, income assistance; • Persons with Disability (PWD) and CPP-Disability (CPP-D) • Tenancy issues: RTA and non-RTA issues including mobile homes, Coops, shared accommodation, and room rentals; • Employment law: EI, ESB;• Old Age Security;• Debt and consumer law;• Workers’ rights;• Civil Resolution Tribunal (CRT) assistance on co-op, non-RTA housing, and small claims.

o advocates should not cover strata, ICBC/motor vehicle, and personal injury matters.• Aboriginal law issues including Indian status applications, health benefits, band membership applications, housing, and income

security; • Family Law – information and referral only; and• Other areas of law will be considered when those issues are connected with poverty law matters and when not covered by legal

aid


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GroupbrainstormWhat do we need to consider when deciding whether to take on a case?

This Photo by Unknown Author is licensed under CC BY-NC-ND


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http://tucuriosity.blogspot.com/2012/03/brainstorming.html

https://creativecommons.org/licenses/by-nc-nd/3.0/

Merit test: factors to consider


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Case evaluation

Conflict of interest?

Most appropriate resource?


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Case Evaluation:

four factors to consider

Merit

Mandate/scope of

service

Competency

Time


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Group exercisesFact Pattern #1

You are an advocate in a community service organization in the Central Interior. You have been on the job about 5 months. Your organization administers a number of other community service projects. The other advocate that you work with in your program works half time. You have a supervising lawyer who works at a local law firm – she has been a lawyer for about a year and does mainly wills and estates.

Your program’s mandate is to do advocacy for low-income residents, mainly in areas of welfare law and residential tenancy. Yesterday, a woman who you had helped with a PWD designation application a few months ago dropped off some documents for you at your reception. There was a note clipped to it saying:

“Help! They want to take my house. You must do something. I do not understand these court papers! The mortgage man said it was OK if I missed a payment.”

You looked at the documents this morning. There is something called a Petition and other documents labeled “Affidavit”. The Petition is from the BC Supreme Court and has a list of things it wants “declared” and also says they want a judgment against the client.


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Fact Pattern #1 (continued)

Your receptionist has made an appointment for the client to see you tomorrowConsider the following questions as you prepare for the appointment:

1. Would you consider this case to be within your mandate?

2. What additional information will you need from the client (if any)?

3. What resources might help you understand the issues in this case?

4. The client asked if she has any deadlines. What should you tell her?

5. What, if any, services would you offer the client?


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Group ExercisesFact Pattern #2You are an advocate with a multicultural organization in the Lower Mainland. The organization has recently received funding for a poverty law advocate position from the Law Foundation. You have been on the job for 2 months. Your main clientele is newcomers to Canada, though your program serves the entire community.

Your program’s mandate is to do advocacy around immigration and refugee issues. One of your new clients is a woman who is trying to sponsor her parents to come to Canada. In the course of getting more details from her last week, she told you she has another legal problem she needs help on. She has a very dear uncle who just died. He was the husband of the client’s maternal aunt.

Your client brought in the aunt last week. She is very upset. The story is that there are three adult children (your client’s cousins, who all live in Vancouver) and they are fighting over the will. The aunt tells you the estate is “very substantial”…….. (continued next page)


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(page 2)

Yesterday, the aunt brought in the will. You are unfamiliar with wills, but what you can make of it is that your client’s aunt is appointed executrix; she is to get half the estate, a quarter goes to charity, and the last quarter is left over for the children. The problem is that one of the children is not named in the will as getting a share of that quarter. She tells you that this child was always considered the “problem child” in the family.

The aunt has asked for your help. You’ve said you will need a couple of days to get back to her.

Consider the following questions as you prepare for your next meeting:

1. Would you consider this case to be within your mandate? 2. What additional information will you need from the client (if any)?3. What resources might help you understand the issues in this case? 4. The client asked if she has any deadlines. What should you tell her? 5. What, if any, services would you offer the client?


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Questions?

.


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Staying in touch

Michelle Beda, legal advocate, Tenant Resource & Advisory Centre (TRAC)

• Phone: (604) 255 3099 extension 220• Email: [email protected]

Alison Ward, lawyer, Community Legal Assistance Society

• Phone: (604) 681 2275 or 1 888 781 2275• Email: [email protected]


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In-class Fact Patterns for Case Evaluation

Fact Pattern #1

You are an advocate in a community service organization in the Central Interior. You have been on the job about 5 months. Your organization administers a number of other community service projects. The other advocate that you work with in your program works half time. You have a supervising lawyer who works at a local law firm – she has been a lawyer for about a year and does mainly wills and estates.

Your program’s mandate is to do advocacy for low -income residents, mainly in areas of welfare law and residential tenancy. Yesterday, a lady who you had helped with a PWD application a few months ago dropped off some documents for you at your reception. There was a note clipped to it saying:

“Help! They want to take my house. You must do something. I do not understand these court papers! The mortgage man said it was OK if I missed a payment.”

You looked at the documents this morning. There is something called a Petition and other documents labeled “Affidavit”. The Petition if from the BC Supreme Court and has a list of things it wants “declared” and also says they want judgment against the client.

Your receptionist has made an appointment for the client to see you tomorrow. Consider the following questions as you prepare for the appointment:

1. Would you consider this case to be within your mandate? 2. What additional information will you need from the client (if any)?3. What resources might help you understand the issues in this case?4. The client asked if she has any deadlines. What should you tell her? 5. What, if any, services would you offer the client?


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Fact Pattern #2

You are an advocate with a multicultural organization in the Lower Mainland. The organization has recently received funding for a community advocate position from the Law Foundation. You have been on the job for 2 months. Your main clientele is newcomers to Canada, though your program serves the entire community.

Your program’s mandate is to do advocacy around immigration and refugee issues. One of your new clients is a lady who is trying to sponsor her parents to come to Canada. In the course of getting more details from her last week, she told you she has another legal problem she needs help on. She has a very dear uncle who just died. The uncle’s wife is a sister of the client’s mother.

Your client brought in the aunt last week. She is very upset. The story is that there are three adult children (your client’s cousins, who all live in Vancouver) and they are fighting over the will. The aunt tells you the estate is “very substantial”.

Yesterday, the aunt brought in the will. You are unfamiliar with wills, but what you can make of it is that your aunt is appointed executrix; she is to get half the estate, a quarter goes to charity, and the last quarter is left over for the children. The problem is that one of the children is not named in the will as getting a share of that quarter. She tells you that this child was always considered the “problem child” in the family.

The aunt has asked for your help. You’ve said you would need a couple of daysto get back to her. Consider the following questions as you prepare for your next meeting:

1. Would you consider this case to be within your mandate? 2. What additional information will you need from the client (if any)?3. What resources might help you understand the issues in this case?4. The client asked if she has any deadlines. What should you tell her? 5. What, if any, services would you offer the client?


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Case Evaluation: Fact patterns for small group work

Fact Pattern #1

You are an advocate in a local women’s centre in Northern Vancouver Island, doing family and poverty law advocacy. You have been on the job for 2 years. You are the only advocacy organization in town. You have a supervising lawyer who comes from another town to your office once every two weeks to review your new files.

Your program’s mandate is to do advocacy for women. You get mainly family law cases coming to your office though you often try to help every client that comes to your office. You have just finished interviewing a new client, Betty Housen, who has problems with a collection agent and with a landscaper.

Betty lives with her sister in a house that they own jointly. Her sister works part time at a local craft store, and Betty works in a local hair salon. They are both in their 40’s. They have a very large back yard. It is mainly lawn, and they have always wanted to make it into something nice.

In your interview with Betty, she tells you that about 3 months ago she got an invoice at the salon for 4 expensive new hair dryers. The invoice was addressed to Betty. Betty says she never ordered or received these hair dryers. The invoice was from a hair salon supply place that she had only contacted once, and that was to order a curling iron. At first Betty thought this was just a mistake, so she didn’t contact the company that sent the invoice. But then, last month, she got another invoice for $650 for the 4 hair dryers. And for the last 2 weeks, a collection agency has been calling her at the salon about the bill. The calls are in the morning and in the late afternoon. They are very irritating, and Betty tells you that she doesn’t know what to do about this situation.

Betty also says that she and her sister contracted with a “nice young man” who had been painting her next-door neighbour’s fence. He agreed with Betty and her sister to put in a nice rock garden at the back of her house. He quoted $3500 to put in a deck, rock garden, and add shrubs around the perimeter. They agreed and paid a $2000 “deposit” him.

Unfortunately, that was almost a month ago and, despite numerous calls to him, he hasn’t started the work. The client tells you that the young man’s mother left a rude voice message a couple of days ago saying he was “not in that business anymore” and couldn’t do the job now. There was no mention of repaying the deposit.

You have told the client you will need a day to review the case and get back to her.

Consider the following questions:



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Case Evaluation: Fact patterns for small group work

Fact Pattern #2

You are an advocate in an agency in a very small town in the Okanagan. You are funded to provide advice and representation on poverty law issues. You do a lot of work on Residential Tenancy issues, due to the housing crisis.

A single mother on PWD benefits comes into your office. Her name is Ana. Ana explains that she owns her own home, and that she rents out a room in it. For the last 4 months, she has been renting a room to Tom, a 22-year-old man.

At first things were okay, but for the last two months he has been acting strangely. Tom has friends that come and go from his room at all hours, and several times Ana has smelled marijuana smoke coming from his room. When Ana tried to talk to Tom about this and explain it is not okay to smoke pot in her house, Tom got angry and yelled at her. Ana stopped trying to talk to him about it as she is does not want to upset her 4-year-old daughter.

Tom’s rent was due 4 days ago, but he has not paid yet. This morning when Ana tried to tell Tom he has to pay his rent today, he got angry, threw a book at the wall, and stormed out of the house.

Ana called the police to see if they would help her, but they told her it is a civil matter and that she should go and see an advocate.

Ana needs the money from renting out the room, but she can’t live with Tom in the house anymore. Can she get rid of him? How?

You told Ana you would need a day to review the case and then get back to her. Consider the following questions:







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1

Topic: Introduction to Writing (Part 1) Written Skills Part I (informative writing letters)

Learning Objective/s: • Write letters for clients dealing with poverty law issues thatincorporate best practices from the model provided inclass

• List the elements of a model letter• Clearly outline elements of an informative letter

Activity: • Presentation about common problems in writing andpossible solutions.

• Exercises

Resource person: • Nicky Dunlop, Executive Director, PovNet

Materials: • Powerpoint notes about the writing process• Revision Checklist• Writing Guide

Homework: • See below

Assessment: • Write letter based on fact pattern handed out• Hand in by July 5, 2021

Legal Advocacy Training Course - Week 1 Materials - 10. Writing Skills - Persuasive Writing in Letters

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1

Writing SkillsPart 1

Writing Letters

1

About the

Writing Process

2


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2

Cartoon 1

3

Cartoon 2

4


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3

5

Three‐part Writing Process

What we do when preparing to write

consider purpose

consider readers

consider context

consider constraints

find information

generate ideas

6


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4

Consider your purpose

What is your main purpose?

Do you have an immediate and a long‐term purpose?

Can you find shared purposes between you and your reader?

What information must you give to accomplish your purpose?

What is the least you can write?

Do you need to write at all?

7

Consider your readers

What do they believe and value?

How do they feel about the subject?

What would make them angry or defensive?

What objections may they have to my ideas, and how can I anticipate and counter those objections?

What will make them want to agree with me?

8


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5

What changes when you consider your reader?

content

word choice

sentences

layout and design

tone

9

What we do when we write

organize ideas

re‐evaluate ideas, expression, and organization

check grammar

check spelling

check punctuation

10


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6

Controlling tone

11

Dear Fred 1

12


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7

Dear Fred 2

13

Dear Fred 3

14


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8

Tone continuums

attitude toward the subject

unemotional . . . . emotional

attitude toward the reader

impersonal . . . . . personal

formal . . . . . . . . . informal

adversarial . . . . . cooperative

how you project yourself

deferential . . . . . cocksure

no role . . . . . . . . . playing a role15

How is the tone?

As of today's date I will be closing your file, but if you have any other inquiries please feel free to contact me.

16


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9

How is the tone?

If the government continues to pursue her in this unrelenting fashion, she will become unable to work. With this demand for debt payment, the government is now the abuser.

17

Cutting clutter

18


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10

expenditure of words

Your expenditure of words is greater than your income of ideas.

19

Eliminate throat clearing

It would appear that

It must be remembered that

It should be stated at the outset

It should be noted that

Further to your letter of

Enclosed herewith

20


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11

Avoid overstatement

clearly

obviously

undoubtedly

anyone can see that

21

Delete needless modifiers

time period

briefly summarize

end result

mandatoryrequirement

completely unanimous

month of December

22


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12

They're all about about

with respect to about

in regards to about

in this regard about

in connection with about

in the matter of about

23

The time is now

at this point in time now

at the present time now

by the time when

after the conclusion of after

during the time that while

prior t0 before

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Other extra connectives

the question of whether whether

in order to to

for the purpose of to

with the exception of except

due to the fact that since

for the reason that because

in view of the fact that because

25

Are you this concise?

During a court case, a taxpayer testified: "As God is my Judge, I do not owe this tax."

The judge responded:"He's not. I am. You do."

26


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14

Make it concise

Are there any other treatment options available to me with respect to my health?

27

Are any other treatment options available?

Make it concise

The Ministry’s faulty finding of fact is not supported with evidence. It is a mere assumption. Based on the evidence provided there is no supporting evidence as to how the Ministry came to the conclusion that Mr. Houston has the ability to perform daily living activities. This is an incorrect finding of fact.

28

There is no evidence to support the Ministry’s finding that Mr. Houston can perform daily living activities.


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15

Make it concise

I am asking that you please reconsider the decision you made regarding Andy's request for assistance.

29

Please reconsider your decision about Andy's request for assistance.

Make it concise

I would like to take this opportunity to sincerely thank you for completing this

application.

30

Thank you for helping me with my application.


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16

Make it concise

Please find enclosed a copy of the Request for Review form that you need to complete to appeal the decision that WCB has made regarding your claim.

31

Please fill out the enclosed form for your WCB appeal.

Make it concise

The irony is strongest when seen through the fact that the government would not be asking her to pay if she had remained a victim with her abuser, and continued to compliantly suffer and support him through his sponsorship years.

32

The government would not ask her to pay if she had remained with her abuser and continued to support him through his sponsorship years.


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17

Make it concise

You were quite careful to specify your precise requirements as to the terms and conditions on which you would provide and release the funds.

33

You carefully specified the terms on which you would release the funds.

Uncovering Hidden verbs

34


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18

Hidden verbs

provide informa‐tion

give permiss‐ion

arrange circula‐tion

make a reserva‐tion

35

Inform

arrange

circulate

reserve

Hidden verbs

justifica‐tion

assess‐ment

require‐ment

sugges‐tion

excep‐tion

36

justifyassessrequiresuggestexcept


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19

Before

Should you have knowledge of someone whose background configuration provides an approximation of the position specifications above, we would welcome a recommendation from you or directly from the exploring individual.

37

After

If you know someone who qualifies for this job, please tell us or ask the person to contact us.

38


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20

Uncover hidden verbs

The manager should make a statement as to the history of this procedure.

39

The manager should describe the history of this procedure.


It has come to my notice that you have made an application to the Boardto have these payments reduced.

40

I note that you have applied to the Board to have these payments reduced.


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21


The failure to maintain adequate records may result in the termination of your right to assistance.

41

You may lose your right to assistance if you fail to keep adequate records.


The purpose of our advocacy project is the promotion and education of legal rights and benefits for people in these six communities.

42

Our advocacy project informs people in six communities of their legal rights and benefits.


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22


Ms. McArthur is submitting for your review and consideration a request for debt suspension.

43

Ms. McArthur is asking you to suspend her debt.


Any confusion or misunderstanding could have been addressed by you prior to the application being submitted.

44

You could have addressed any misunderstanding before you applied.


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23


Decisions about the distribution of assistance funds should be made taking into consideration the following questions. Will the plan foster the conservation of existing stock through the prevention of housing deterioration? Will it foster the promotion of neighborhood stability?

45


To decide how to distribute these funds, consider the following questions:

46

• Will the plan prevent current housing stock from deteriorating?

• Will it promote neighborhood stability?


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24

Using Active Voice

47

What is active voice?

The Ministry ignored our client’s rights.

Passive voice:

Our client’s rights were ignored (by the Ministry).

48


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Active or passive?

Our client was found injured by a Good Samaritan.

49

A Good Samaritan found our injured client.

Active voice

Upon completion, these applications are faxed to the intake worker for processing.

50

The advocate faxes completed applications to the intake worker for processing.


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26

Active voice

My application for CPP Disability benefits was recently denied by Human Resources and Social Development Canada.

51

Human Resources and Social Development Canada recently denied my application for CPPDisability benefits.

Active voice

It is anticipated that a further one week will be needed.

52

We anticipate that John will need one more week.


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27

Active voice

A special diet is required to best treat my diagnoses with minimal medication.

53

A special diet reduces my need for medication.

Active voice

It would be greatly appreciated if you could fax this report to Ingrid by June 7, 2008.

54

Please fax this report to Ingrid by June 7, 2008.


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28

Active voice

Two computer terminals were reported stolen over the weekend by the head of office security.

55

The head of security reported that computer terminals were stolen this weekend.

Keep the verb together

The jurisdiction of the old tribunal is not, by the passage of the act creating a new tribunal before the establishment and staffing of the new tribunal, entirely taken away.

56

The jurisdiction of the old tribunal is not entirely taken away by the passage of the act creating a new tribunal before it is established and staffed.


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29

Using Format for Easy Reading

57

Uppercase

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30

Headings checklist

Do all of the points under a given heading relate to that heading?

Do headings include a verb?

Do headings fit on one line?

Have you avoided all upper case?

59

Bullets ‐‐‐ this?

We are involved in direct client service, walk‐in/appointment clients, and assist in filling out forms or consult with communities, government agencies on behalf of the client and represent clients in arbitrations or hearings.

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31

Or this? We serve both walk‐inclients and clients with appointments. We:

61

• help them fill out forms

• consult with communities andgovernment agencies on their behalf

• represent them in arbitrations and hearings

Including legislation

This ?

57(1) The minister may provide a crisis supplement…if

(a) the family unit…., and

(b) the minister…. will result in

(i)imminent danger

(ii)removal

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32

63

Or this ?

57(1) The minister may provide a crisis supplement…if

(a) the family unit…., and

(b) the minister…. will result in

(i)imminent danger

(ii)removal

Organizing your Letters

64


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33

Introduction (star)

Clear description of problem

To the point

Interesting

65

A good start?

Further to our telephone conversation of Feb. 6, 2008, we write at this time to provide an opinion regarding your situation with respect to the above mentioned matter.

66


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34

Better:

You have asked for our opinion on placingforeign students with a particular "home study" family. We understand the facts to be:

67

Weak starts

Referring to

Regarding

Respondingto

Replying

68

• In reply to

• With reference to

• On the subject of


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35

Weak starts

This letter will provide

The purpose of this memo is

Enclosed please find

I am in receipt of

As per your request

69

The body (chain)

FactsChronologicalRelevant With details

Summary of relevant legislation

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36

Conclusion (hook)

Clear statement of what you want

Clear statement of next steps: What you plan to do

What you want the other party to do.

71

Planning your Letter

72


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37

Outline

Mindmap

73


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Legal Advocacy Training Course

Written Skills Part 1

About the writing process .................................... page 1Cutting clutter ......................................................... page 3Controlling tone ..................................................... page 5Uncovering hidden verbs..................................... page 6Using active voice.................................................. page 7Organizing your letters.......................................... page 9Revision checklist ................................................. page 10Reference books and web sites ........................ page 13


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1

About the writing processFor all of us, writing is complex and demanding. We must decide why we’rewriting, generate and evaluate ideas, find language and a structure to expressand organize the ideas, and check grammar, spelling and punctuation. Whenwe try to do all of this at the same time, we put an enormous burden on ourshort-term memories.Research shows that the most efficient writers manage their writing time byfollowing some version of this flowchart:

Three-part writing process

Consideryourpurpose

TestDefineyouraudience(s)

Write thefirst draft Review

Determinecontext andconstraints

2. Write1. Pre-write 3. Rewrite

Plan yourmessage EndEdit

Rewrite

Writing well is a question of time management as much as of knowing therules of grammar. Efficient writers plan extensively, draft quickly, and reviseextensively. As they plan, they consciously attend to three major variables thatinfluence both the content and form of their message: their purpose, theirreaders, and the context or constraints under which they write.

Because they schedule close to half their time for revisions, efficient writers canwrite a first draft quickly with their internal editors turned off. They use the firstdraft as a way to explain the subject to themselves. They strive for content, notperfection. The finished first draft is their solution to the problem; in the nextstage they concentrate on communicating that solution to their readers.

Only at the revising stage do efficient writers turn their editors on. They revisesystematically using all the tools at their disposal. Rather than just proofread,they rearrange, substitute, add, and delete. Because they didn’t agonize overthe precise wording of a sentence in the first draft, they’re willing now to throw asentence out and start again if it doesn’t fit their revised organization orimproved tone. They also take time to test what they have written and confirmthat it communicates their message to others.


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2

readerspurposes

contextsand

constraints

message

Ask about your purposeWhat is your main purpose? Do you have other important purposes?Do you have an immediate and a long-term purpose?Can you discover mutual purposes between you and your reader?What information must you communicate to accomplish your purpose?What is the least you can write? Do you need to write at all?

Ask about your readersWhy would they read this letter?Where does their self interest lie?When and where will they read it?What information do they need? In what order?Can you assume any shared knowledge?Will their age, sex, education, or culture affect how they read my message?

Ask about your context and constraintsWhen is it due?Are others contributing related writings?Is there a hidden agenda?Do you have personal constraints or preconceptions: political, emotional,intellectual?

Write the whole first draftIsolate yourself.Turn your critic off: just go for content.Start wherever is easiest.

NOW LEAVE BAKING TIME


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Cutting clutterIf you have only five minutes to edit, concentrate on cutting the clutter from yourwriting.

Eliminate needless contentBefore looking for clutter in a sentence, ask whether you can remove thethought all together. Eliminate:

• ideas your reader doesn’t need• over explaining• repeated ideas

Eliminate throat-clearing phrasesThroat-clearing phrases complicate your writing and fail to give a reader anysense of direction:

• Consideration should be given to . . . .• In my considered opinion . . . .• It is respectfully suggested that . . . .• It is worth mentioning that . . . .

Avoid timid qualifiersTimid qualifiers make you appear unconfident and whittle away your reader’strust in your advice. If you are uncertain about something, give sound reasons.Avoid these vague qualifiers:

• rather • a bit• it is said that • sort of• it would seem that • quite• it might be said that • I think• it seems to me

Delete needless modifiersCombat the tendency to include modifiers like these:

actively engaged absolutely necessary true factslater in time utterly reject brief overviewseriously consider perfectly clear obviously apparentbinding contract past history few in number

plan in advance thoroughly examine definitely interested


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4

More clutter to watch for:


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5

Controlling toneTone in your writing is like body-language in your speech. It reveals yourattitudes toward the subject, your reader, and yourself. Here’s how ThomasKane puts it:

You are a vital part of the subject. No matter what the topic, you are reallywriting about how you understand it, how you feel about it. Good writing haspersonality. Readers enjoy sensing a mind at work, hearing a clear voice,responding to an unusual sensibility. . . . Interest lies not so much in a topic as inwhat a writer has made of it.

One mark of a good writer is the ability to change the tone of a piece to suit itsaudience and purpose. Sometimes a writer wants a formal, authoritarian tone,at other times a relaxed, friendly one. For example, you choose different toneswhen you write a report to the Law Foundation, a response to a client, or amemo to a colleague about an office party.

When you write, consider these tone continuums:● your feelings and the reader’s feelings about the subject

unemotional . . . . emotional

● your attitude toward the readerimpersonal . . . . personalformal . . . . . . . . informaladversarial . . . . cooperative

● how you project yourselfdeferential . . . cocksureno role . . . .role playing

Notice that tone depends on word choiceThe tone you achieve is largely a function of word choice. To adjust the degreeof formality, carefully select the names, labels, or legal terms you use. Forexample, to suit your purpose you might name someone the mother, or Mrs.Jones, or the Complainant. The label you choose adjusts the distancebetween the person you are writing about and your reader.

Some problem words and phrasesrespectfully requestin order toprior toplease provideplease find enclosed (herein)please be advised thathereinafterthe writer

Re:I believe . . .clearlyobviouslyno rational person wouldit is inconceivable thatThis is patently ridiculous!


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Uncovering hidden verbsWe often hide verbs as nouns, usually by adding -ment, -al, -tion, -sation, -ance,-ence, -ity, -ness, -ing.

Nouns VerbsIf they make a decis-ion... If they decide...He will give a state-ment... He will state...You can place your reli-ance on... You can rely on...She entered an appear-ance... She appeared...Please give your respon-se... Please respond...

For easy reading, cross out and reword usingenter into an agreement agreemake an argument that argue that

make the assumption that assume thatmade an inquiry inquired

give consideration to considermake an objection object

make payment to paymake provision provide

applicationdetermination

notificationrecommendation

Notice the difference a strong verb makesWeak: Proving the existence of bias on the part of the

committee is dependent on the production of evidenceof their refusal to interview minority applicants.

Strong: To prove the committee was biased, you must produceevidence that they refused to interview minorityapplicants.


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7

Using active voice

What is active voice?When you use the active voice, the subject of the sentence acts.

The Ministry ignored our client’s rights.(subject) (verb) (object)

If the subject is doing the action of the verb, we say the voice is active. Noticethat the action flows from the beginning of the sentence to the end.

When you use the passive voice, the subject of the sentence is acted upon.Our client’s rights were ignored by the Ministry.

(subject) (verb) (object)

If the subject of the sentence is receiving the action of the verb, we say the voiceis passive. In passive voice, the person or thing doing the action doesn’tappear until the end of the sentence, if at all. The action flows back from theend of the sentence to the beginning.

How do you find passive voice?1. Look for a two-part verb:

• a part of the verb to be (am, are, is, was, will be, etc.)• the -ed form of the verb that expresses the action in the sentence

2. Look for the little word “by.”3. Ask whether the doer of the action has moved to the end of the sentence or

disappeared.

How do you change passive voice to active voice?1. Find the verb that expresses the action in the sentence.2. Ask by whom or by what after the verb.3. Place the answer to the above question in front of the verb.

Why prefer active voice?Active voice is easier to read: we experience the world actively, not passively.Active voice uses fewer words than passive voice.Passive voice allows you to leave out the doer of the action.

Notice shall be given.... Who must give notice?The premises may be entered.... Who has the power to enter?The lawyer will have been notified.... By whom?


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When might you prefer passive voice?1. When you want to emphasize the receiver of the action by making it the

subject.Example: I was severely injured as a result of your negligence.

2. When the doer of the action is unimportant or unknown.Example: This conclusion is based on a careful analysis of the

case law.

3. When you deliberately don’t want to mention the doer of the action.Example: Unfortunately, the decision was made without

consulting the senior partners.


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Organizing your letters

STAR

CHAIN

HOOK


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Revision checklist: write for all your readers

■ contentDo readers need all the content you have chosen?Have you included only important issues?Have you included all needed details? Can you add concrete examples?Have you answered their questions?Would lists, graphs, or charts help?Have you checked the truth and accuracy of all content?

■ organizationWhat is the overall organization? Is it what your reader needs?Will the opening interest and direct the reader?Does the main idea come near the beginning?Could a reader easily outline your finished work?Is each point covered in a single place or scattered?Does your conclusion follow from your discussion?Should you finish with a hook asking for a specific action by a certaindate?Have you shown the organization to your readers?

overviewfrequent full-sentence headingssculptured sections

■ paragraphsDoes each paragraph feature one main idea?Do paragraphs maintain a consistent topic string?Have you made any leaps of logic?Left any unsupported generalizations?Repeated thoughts or allowed intrusions?Do all of your transitions work unobtrusively?


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■ sentencesDid you use mainly active voice?Express the main action in each sentence in a verb, not a noun?Keep subject and verb close together at the front of the sentence?Cut out junk words, phrases, and sentences?Choose the right subject and verb?Use the verb 'to be' only when you mean it?Express parallel ideas in parallel structure?State your message positively?Subordinate lesser ideas?Vary sentence length and type?Emphasize important points in short or unusual sentences?

■ vocabularyDid you use your readers’ vocabulary or explain your vocabulary?Use concrete, specific words?Use inclusive language, not gender-biased language?Avoid awkward repetitions of the same word?Substitute short words for long?Maintain a consistent, appropriate tone?Do any words offend your readers?Does your choice of words make both you and your reader soundhuman?

■ document designDoes the design of your document make clear its organization?Have you used typography that invites reading?

readable type face and sizelower caseragged-right marginno hyphenation at line endswhite space and generous marginshighlight sparingly – bold rather than underline


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■ mechanicsHave you checked for errors in grammar?Punctuation?Spelling?After final printing, are the pages all there, in order, right side up, withoutduplication or blanks?Are any headings at the bottom of the page?

■ testingHave you read your work aloud?Had a writing partner read it?Used spelling and grammar checkers again?Checked with the experts: your readers?


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Reference books and web sites1. Joseph, Albert, Executive Guide to Grammar, Cleveland, Ohio: International

Writing Institute, 1984.

2. Sabin, William A., The Gregg Reference Manual, 6th ed., New York: McGraw-Hill, 1985.

3. http://www.bartleby.com/141/ Contains The Elements of Style, by William Strunk, Jr.—an excellent resource.

4. http://grammar.ccc.commnet.edu/grammar/quiz_list.htmA series of exercises on everything you can imagine relating to grammar. Atthe end is a link to a Guide to Grammar and Writing and to Sentence Sense—bothare terrific.

5. http://web.uvic.ca/wguide/The University of Victoria’s Hypertext Writing Guide contains everything fromhow to construct essays to the essentials of language.


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Exercise 4 - Using active voice

1. Upon completion, these applications are faxed to the intake worker forprocessing.

2. My application for Canada Pension Plan Disability benefits was recentlydenied by Human Resources and Social Development Canada (HRSDC).

3. It is anticipated that a further one week will be needed.

4. A special diet is required to best treat my diagnoses with minimal meds.

5. It would be greatly appreciated if you could fax this report to Ingrid by June 7, 2008.

6. Two computer terminals were reported stolen over the weekend by thehead of office security.


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Exercise - Uncovering hidden verbs

1. The manager should make a statement as to the history of this procedure.

2. It has come to my notice that you have made an application to the Board tohave these payments reduced.

3. The failure to maintain adequate records may result in the termination ofyour right to assistance.

4. The purpose of our advocacy project is the promotion and education oflegal rights and benefits for people in these six communities.

5. Ms. McArthur is submitting for your review and consideration a request fordebt suspension.


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6. Any confusion or misunderstanding could have been addressed by youprior to the application being submitted.

7. If the tenancy termination was based solely on Mr. Doe’s use of a legal substance, it was an abuse of discretion and a violation of the rules ofnatural justice.

8. Decisions about the distribution of assistance funds should be madetaking into consideration the following questions. Will the plan foster theconservation of existing stock through the prevention of housingdeterioration? Will it foster the promotion of neighborhood stability?


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Exercise - Cutting clutter

1. Are there any other treatment options available to me with respect to my health?

2. The Ministry’s faulty finding of fact is not supported with evidence. It is a mere assumption. Based on the evidence provided there is no supportingevidence as to how the Ministry came to the conclusion that Mr. Houston has the ability to perform daily living activities. This is an incorrect finding of fact.

3. I am asking that you please reconsider the decision you made regardingAndy’s request for assistance.

4. I would like to take this opportunity to sincerely thank you for completing this application.

5. Please find enclosed a copy of the Request for Review form that you need to complete to appeal the decision that the WCB has made regarding your clai


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6. The irony is strongest when seen through the fact that the government would not be asking her to pay if she had remained a victim with her abuser, and continued to compliantly suffer and support him through hissponsorship years.

7. You were quite careful to specify your precise requirements as to the terms and conditions on which you would provide and release the funds.


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Revision checklist: write for all your readers

contentHave you included only important issues?Do readers need all the content you have chosen?Do they need additional content?Have you answered their questions?Would lists, graphs, charts, or point form be clearer than sentences?Have you checked the truth and accuracy of all content?

organizationWill the opening interest and direct the reader?Does the main idea come near the beginning?Is the opening proportional to the document?Are the space and details devoted to each topic proportional to its importance?Could a reader easily outline your finished work?Is each point covered in a single place or scattered? Does your ending show you’ve reached your destination?Is your ending tight, conclusive, and satisfying?Have you shown the organization to your readers?

overviewfrequent full-sentence headingssculptured sections

paragraphsDoes each paragraph feature one main idea?Does each paragraph have a topic sentence?Do paragraphs maintain a consistent topic string?Have you made any leaps of logic?Left any unsupported generalizations?Repeated thoughts or allowed intrusions?Do all of your transitions work unobtrusively?


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sentencesDid you use mainly active voice?Express the main action in each sentence in a verb, not a noun?Keep subject and verb close together at the front of the sentence?Cut out junk words, phrases, and sentences?Choose the right subject and verb?Use the verb 'to be' only when you mean it?Express parallel ideas in parallel structure?State your message positively?Subordinate lesser ideas?Vary sentence length and type?Emphasize important points in short or unusual sentences?

vocabularyDid you use your readers’ vocabulary or explain your vocabulary?Use concrete, specific words?Include appropriate figures of speech?Maintain a consistent, appropriate tone?Use inclusive language, not gender-biased language?Avoid awkward repetitions of the same word?Choose words that mean and connote what you intend?Substitute short words for long?

document designDoes the design of your document make clear its organization? Have you used typography that invites reading?

readable type face and sizelower caseragged-right marginno hyphenation at line endswhite space and generous marginshighlight sparingly―bold rather than underline


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mechanicsHave you checked for errors in grammar?Punctuation?Spelling?After final printing, are the pages all there, in order, right side up, without duplication or blanks?Are any headings at the bottom of the page?

testingHave you read your work aloud?Had a writing partner read it?Used spelling and grammar checkers?Checked with the experts: your readers?


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The Law Foundation of BC Legal Advocacy Training Course – June 2021

Writing assignment (week 1)

Background information You are an advocate with a Lower Mainland advocacy organization that assists tenants. You received the file from your intake staff last week, and interviewed the client yesterday.

The client’s name is Dorothy Lock. She has come to you on behalf of herself and 3 co-tenants.The basic story is that she is a student from Nova Scotia who attends UBC. During 2018 Dorothy was renting a small house in East Vancouver, sharing with three other UBC students (Maggie Child, Kerry Christie, and Anna Wallace). Everyone moved out at the end of 2018 and Dorothy now lives in a bachelor apartment by herself.

Dorothy and her co-tenants had signed a regular RTA tenancy agreement form, supplied by the landlord. It was for a month-to-month tenancy. From your interview with her, you find Dorothy and her co-tenants gave proper notice to the landlord and told him her new address in writing. They worked really hard to tidy the house and felt they left it in better shape than they had foundit.

Unfortunately, the landlord, Jimmy Abercrombie, was on vacation at the end of 2018, and was not available for an inspection before everyone moved. This was despite Dorothy offering him several dates. Eventually, he left a voice message on Dorothy’s cell phone in late Decembersaying “just leave the keys in the mail box and I’ll get back to you about the security deposit.”Dorothy understood he was going to have a relative occupy the house so you don’t have much information about the new tenants or their move in.

The house rent was $2000 per month plus utilities. There is no issue about unpaid rent, and all the utilities have been sorted out. The problem is the security deposit -- Dorothy had covered the whole security deposit herself. It turns out that Dorothy paid a $1000 security deposit.

Dorothy tells you she tried calling Jimmy and connected once or twice but he has been evasive. He said things like “the place was a little messy” and “I’m still sorting out how much I need to keep from the security deposit.” She is adamant that the place was left spotless and that there is no cause to keep any of the security deposit. None of the tenants signed anything consenting to the security deposit being kept, and they have not applied to the Residential Tenancy Branch.

Assume today’s date is April 30, 2019. Assume that your client is financially eligible for your advocacy services, that this case is within the mandate of your organization, and that you are able to act for the client and her three friends.

You have agreed to write a letter to the landlord regarding the security deposit. Dorothy’s instructions are that she wants it all back, and if Jimmy doesn’t pay it all she wants help in making an RTA application to get it back.

Assignment Write a letter to that landlord, Jimmy, that: outlines the facts as you understand them, summarizes the relevant law (do not simply copy and paste the legislation into the letter) in this situation, and states your client’s position. Please do not write more than 500 words (approximately 2 pages)

Due date: July 5, 2021


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Completed for: _________________________________Completed by: _________________________________

Date: _________________________________

WRITING GUIDE

CONTENT COMMENTS

[ ] 1. Confirms relevant facts on which opinion is based.

[ ] 2. If appropriate, makes logical assumptions.

[ ] 3. Outlines briefly the relevant law.

[ ] 4. Applies the law to the facts and expresses opinion.

[ ] 5. Identifies the client’s legal rights or obligations.

[ ] 6. Gives reasons for the opinion, qualifying it asnecessary.

7. Identifies and discusses relevant options by:

[ ] a. if appropriate, briefly outliningcorrect procedural steps of each option; and

[ ] b. assessing the advantages and disadvantagesof each option.

[ ] 8. Makes appropriate recommendations, giving reasons.

9. Opinion given and options discussed:

[ ] a. address the client’s problem and concernsrealistically;

[ ] b. help the client to make an informed decision;

[ ] c. do not prejudice the client’s interests; and

[ ] d. deal properly with ethical issues, if any.

[ ] 10. Avoids internal contradictions and inconsistencies.

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ORGANIZATION

11. Gives introduction that:

[ ] a. summarizes the problem;

[ ] b. identifies client’s concerns; and

[ ] c. states the purpose of the letter.

Legend:[÷ ] Satisfactory[M] Marginal[X] Unsatisfactory


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[ ] 12. Defines the issues.

[ ] 13. Keeps text consistent with stated purpose.

[ ] 14. Discusses topics in a logical sequence.

[ ] 15. Creates smooth transitions within text.

16. Concludes by:

[ ] a. briefly summarizing advice;

[ ] b. seeking instructions; and

[ ] c. if necessary, requesting additional information.

[ ] 17. Uses paragraphing and subparagraphing correctly.

[ ] 18. Creates and uses headings and definitions appropriately.

[ ] 19. Uses suitable format.

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LANGUAGE

20. Uses correct:[ ] a. grammar;[ ] b. punctuation;[ ] c. diction; and[ ] d. spelling.

[ ] 21. Avoids complex sentence structure.

[ ] 22. Is concise (e.g. avoids repetition, wordinessand unnecessary discussion).

[ ] 23. Uses precise language and concrete words(avoids ambiguity and vagueness).

[ ] 24. Uses consistent language.

[ ] 25. Uses active rather than passive voice.

[ ] 26. Avoids legal jargon and explains legal terms.

[ ] 27. Uses language and tone suitable to the letter and the reader.

[ ] 28. Revises (e.g. proofreads and edits) the letter.

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Topic: Interviewing Startegies Timing June 9, 1 – 3 pm Student prep:

Pre-reading • Interviewing Guide


Learners will be able to: • Describe the elements of an interview model • Conduct the introductory stage of the interview model

provided in class Related issues/skills:

• Sensitivity to interviewing clients from other cultures, or who are dealing with violence

• Clients with mental health issues or disabilities • Helping clients who are upset. • Ethical issues in interviewing

Activity:

• The Instructors will lead a discussion of best practices in an interview, and will introduce the concept of a structured interview to maximize information gathering from a client

• The Instructors will conduct a demonstration of the interview model, and lead a class reflection on the demonstration

• Students will practise elements of the interview in pairs

Resource person • Thea McDonagh, Director of Advocacy, Together Against Poverty Society

Materials:

• Interviewing materials • Interviewing Guide

Legal Advocacy Training Course - Week 1 Materials - 11. Interviewing Skills

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Date: _______________________ Completed for: ________________________________

Client Role: __________________ Completed by: ________________________________

ADVOCATE INTERVIEWING AND ADVISING GUIDE

A. ORGANIZATION COMMENTS

1. Introduction:[ ] a. Begins interview appropriately.[ ] b. Allows client to explain problems, concerns

and goals[ ] c. Summarizes advocate’s understanding of client

problem, concerns and goals[ ] d. Explains preliminary matters and structure

of the interview.

2. History:[ ] a. Encourages client to relate history

of problem using appropriate techniques.b. Avoids interrupting client with questions

except:[ ] (i) to clarify;[ ] (ii) to keep client on track; and[ ] (iii) to avoid chronological gaps.

3. Questioning:[ ] a. Identifies potentially relevant topics.[ ] b. Questions client thoroughly and

systematically on each topic to obtainrelevant facts.

[ ] c. Uses appropriate questioning techniques tomotivate and exhaust client’s recall of relevant facts.

[ ] d. Identifies further facts required.[ ] e. Avoids giving premature advice.


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4. Advising[ ] a. Gives a brief introduction to the advising process.[ ] b. Briefly outlines the relevant law.

c. Applies the law to the client’s problem by:[ ] (i) explaining the client’s legal rights or obligations;[ ] (ii) outlining the available legal and non-legal options; and[ ] (iii) working with the client to identify and

assess the advantages and disadvantages of each option.

[ ] d. If necessary, qualifies advice.[ ] e. Encourages client to make decision (if

appropriate, advocate makes recommendation).

5. Adjourning[ ] a. Determines if the advocate will assist the client further.[ ] b. If appropriate, refers client to other source

of assistance.c. Confirms a plan which specifies:

[ ] (i) steps to be taken;[ ] (ii) time frames; [ ] (iii) methods of obtaining further facts; and[ ] (iv) advocate and client responsibilities.[ ] d. Adjourns interview.

B. PRESENTATION

[ ] 1. Establishes and maintains rapport withclient.

[ ] 2. Demonstrates effective listening skills.3. Uses language which:

[ ] (a) is clear and concise;[ ] (b) avoids legal jargon; and[ ] (c) explains legal terms.[ ] 4. Demonstrates courteous and professional

attitude.[ ] 5. Provides smooth transition between

interview stages.

C. CONTENT

[ ] 1. Accurately explains the law andprocedural steps relevant to client problem.

[ ] 2. Gives advice which addresses client problem realistically, and which does not seriously prejudice client interests.

[ ] 3. Deals appropriately withethical issues, if any.

Adapted with permission from PLTC Litigation Interviewing and Advising Guide.


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Based on materials by Jess Hadley and Kendra Milne, and prior LTAC materials

INTERVIEWING

June 9, 2021

Presented by Thea McDonagh and Daniel Jackson

Together Against Poverty Society

Materials originally created by Kendra Milne

GOALS FOR AN INTERVIEW Your goals for a client-centred interview are simple: you will get all the information necessary to properly assist client, and the client will feel supported and respected. THE IDEAL INTERVIEW STRUCTURE The following is a suggested framework for an initial client interview (see attached handout).

1) Introduction/welcome: this is your opportunity to set the stage with the client in terms of who you are, what you understand their issues to be, how the interview will proceed, and why the client should feel comfortable telling you their story. Specifically, explain:

• Who you are, and what your role is.

• Confidentiality of the meeting and the importance of giving you all of the information.

• General structure of the interview (“I will ask you to tell me what brought you here, then I will ask some questions to make sure I understand, and then we will try and identify some options for you.”)

• Explain how much time you have for the interview.

• Ask your client to briefly explain why they have sought your assistance. Summarize their answer for them to make sure you understand.

• Make sure you don’t offer advice or explain next steps at this stage because you don’t have enough information. If the client asks you detailed questions,


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explain that you are not able to answer accurately until you have all the information.

2) History: this stage allows you to get the basic chronological history from the client with minimal interruption. It lets her tell her story with your indirect support and helps you to understand her specific legal issues.

• Prompt the client with open-ended, non-leading questions like “what happened next?”

• Do not ask for additional details at this stage. This is the time for the client to tell her story.

• Support the client by using active listening.

• Use scoop technique only once client has exhausted her story. (E.g. “Is there anything else you want to tell me?”)

3) Funnel questions on each issue: this is your opportunity to identify potential legal issues and get additional detail from the client using the funnel questioning technique (see attached).

• Using the information you obtained in the “History” stage, identify all possible legal issues/problems.

• Check your understanding of the main issues by summarizing them for the client. (E.g. “It sounds like you have an issue with your landlord issuing you an eviction notice, and then you also have an issue with the Ministry cutting off your benefits. Does that sound right?”)

• Scoop! (E.g. Is there anything else you are concerned about?”)

• For each legal issues you have identified, explore it using funnel questions:

o Start with open-ended questions – the more open the better. “What can I do for you?” or “How can I help you?” are good ways to start.

o Follow up questions should remain broad: “Can you tell me more about that?” Don’t go to narrow questions yet!

o Once open ended questions are exhausted, follow-up with narrower questions. (E.g. “What date did you get the notice to end tenancy?” “Do you have a copy of the notice to end tenancy?”)

o Check your understanding of the issues by summarizing for the client - “Does that capture it?”


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o Ask scoop questions (e.g. “Is there anything else?”) until there is nothing else the client can tell you.

4) Get all the information -- final scoop question

• Before giving any advice ask a final scoop question - “Is there anything else you can tell me that might be important?”

5) Advising: this is your chance to outline the law that applies to the client’s situation.

• ONLY do this after all the questioning is done to make sure you have all the information. Jumping into advice is the easiest way to miss key information, which can make a lot more work for you and can seriously impact the client’s legal rights.

• Explain the client’s legal situation, to the extent you can. You can do this by explaining the law that applies and what the client’s options might be.

• REMEMBER: if you need to think about it, do some research, or talk it over with someone before you can give them advice about what to do, or how strong their case is, say so. It is normal and perfectly fine not to know the answer right away! Even if it’s an urgent situation it is never a good idea to guess.

• If you must research a point, conduct further investigations, or consult your supervisor before advising, tell the client this and make a next appointment.

• When you are able to advise, it is important to always encourage the client to make a decision. It is not for the advocate to decide which option is best for the client. If the client decides what option she wants to pursue, make sure she’s clear on that decision.

6) Adjourning - come up with a plan for next steps

• What does the client need to do next? (E.g. bring you documents, fill in a form, get a potential witness to call you.) Come up with a plan including timelines, and write it down if you think that will help.

• What do you need to do next? (E.g. fax in a notice of appeal, call a Supervisor, call the client’s landlord.) Come up with plan and tell the client what to expect.

• It is usually a good idea to get the client to sign release of information form(s) so that you can obtain any additional documents you may need.


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• Be clear with expectations. If you are going to do something, explain to the client when you will be able to do it and put it in your notes so you remember. If you cannot do something for a client, and or cannot proceed until the client does something, make that very clear.

WHY INTERVIEW STRUCTURE IS HELPFUL No matter how many client interviews I have done, reviewing the structure of an ideal interview is always beneficial. In fact, the more interviews I do, the more I can appreciate the importance of the ideal structure and keeping it in minds during all interviews. This is because the ideal interview model is client-centered. It puts the focus on the client by allowing the client to get her story out in her own way, with the interviewer simply supporting the process. Many of us have a variety of priorities at work. We might be focused on trying to assist a client as quickly as possible because we have other clients waiting, or we might be focused on statistics for our program. Our client might be upset and we want to get them through the process as quickly as possible to limit their distress, or our client may say things that offend us and we simply want to get them out of our office. All of these points are valid, but prioritizing them before the client-centred approach can lead to missing information or the client feeling rushed and disrespected. Missing relevant information can lead to mistakes that can worsen a client’s legal situation, and a client feeling rushed can set the stage for an acrimonious advocate/client relationship from the very beginning. The client comes to the interview with crucial information – what brings them to the advocate, and usually, what result is wanted. The advocate has important information also – knowledge about the law and what facts are relevant given the law. Advocates tend to use their knowledge to focus on the specifics of the case, and take control before giving the client a chance to tell the whole story. As a result, the client may feel like they never got a chance to tell the story, and the advocate may fail to understand what the client really wants. Whenever possible, it is helpful to keep this ideal interview structure in mind when interviewing clients, and stick to it as much as possible. SITUATIONS WHERE THE IDEAL INTERVIEW STRUCTURE WON’T FIT There are some situations where the interview structure set out above just won’t work. Some clients, because of disabilities, literacy, or other issues, may have a great deal of difficulty answering open ended questions and even identifying their general issue for


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you. Some clients can literally go on for hours and the ways they communicate their story makes it very difficult to determine what is or is not relevant. In those situations, you may have to adjust the interview model to help their client get out her story and, in particular to get out relevant information. The interview structure set out above is intended to be a framework for you to keep in mind during interviews, but you also need to flexible with each client to make sure that you assist them to provide you with the information you need to assist them. The important thing to remember in all situations is not to assume that a client will not be able to follow the structure and start jumping in with advice or closed questions. When you have to modify the structure of an interview, keep the ideal structure in the back of your head as reference point. COMMUNICATION BARRIERS

While interviewing a client, many different kinds of communication barriers can arise. Some of the more common barriers are set out below, but it’s important to focus on identifying that there is a barrier and trying to empathize with the client and overcome the barrier.

Some difference in communication and cultural styles that might impact your communications with the client are set out below. They can be helpful to keep in mind to help you to identify what’s happening.

1) egalitarian vs. hierarchical: some client will want to be on an equal level with you, and communicate in that respect, and others will be much more comfortable with levels of authority and want to use titles, etc.

2) emphasis on individual v. emphasis on group: some clients will be more worried about their own situation, while others will be more focused on the larger picture and others (maybe they want to achieve “justice” so their situation doesn’t happen again, or maybe they’re worried about the other tenants they will leave behind if they decide to move).

3) task focus vs. relationship focus: some clients will want to “get down to business” and will make a goal and be unwilling to stray from it. Others are much more focused on relationships and getting along, and may be willing to give up a lot of maintain it.

4) strict time conscientious v. flexible time consciousness: some client will be very aware of time, will always be on time to appointments, and will be good with deadlines. Others are not.


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5) change oriented vs. tradition oriented: some clients are very comfortable with changes in their lives and more willing to take risks in that respect. For others, change makes them very uncomfortable and they will be most interested in maintaining the status quo.

6) conflict tolerant vs. preference for harmony: some clients thrive in conflict (with you, with their landlord, etc.) and some will avoid conflict at all costs, even if it means avoiding dealing with a legal dispute and losing their right to do so.

7) direct communication vs. indirect communication: some clients will be very uncomfortable with direct communication, not wanting to make eye contact and not wanting to answer questions “yes” or “no”. Others will be very direct and be very clear in their answers to you.

8) linear/logical vs. lateral/intuitive: some clients will be very comfortable with a linear approach to things (the legal system generally takes a very linear approach). For others, it will be very difficult because they may be more focused on story telling or a holistic approach to problems.

Addressing communication barriers is tricky, and there is no magic formula. But, there are some steps you can take:

(1) try to identify what is happening without making it worse; and

(2) normalize the problem (in other words, try to softly explain or reflect back to the client what you see happening, and assure the client that is a very normal reaction and offer any solution you might have.)

You can try to put yourself in the position of the client, to really understand and empathize with the client’s problems, and use active listening techniques to reflect back the client’s feelings. (Active listening can also involve non-verbal signals of attention, such as head nodding, eye contact, or phrases of reassurance.) For instance:

Client: “I don’t want to testify in court. It sounds like a bad experience—all those questions, people looking at me—I would probably be so uptight, I’d say the wrong thing.” Advocate: “It sounds like you feel anxious about getting up on the stand and perhaps embarrassing yourself (Advocate reflects client’s feelings, identifying what she thinks is the issue). Don’t worry, a lot of people feel that way (normalize the client’s feelings). Before the hearing we will practice your examination and visit the courtroom where you will testify (Try to address the client’s concerns).”


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Introduction to Interviewing: Fact Pattern #1

Client: Your name is Jordan Quinn. You are 55 years old and use he/him pronouns. You are single and have no children.

Presentation: You present as monotone, withdrawn and uncomfortable and downplay your need for assistance. You do not offer any more information than absolutely necessary and often give one-word answers to questions asked.

Legal Issue: You were in a severe car accident 5 years ago and have lived with chronic back pain ever since. You moved in with your sister so that she can help you. You recently applied for welfare after much encouragement from your sister and were told that you were not eligible because you are over the asset limit.

History: After the car accident, you received a settlement of $200,000. Although you have been living off of this money, you still have approximately $120,000 in both savings and investments. You had been planning to live off this money but your sister is concerned about your financial future and thinks you should apply for PWD.

You have always been very independent and resist asking for help. You are unsure if you want to apply for PWD because you have always thought it was a kind of a scam. Your physical restrictions are very difficult for you to accept and you have become withdrawn. You dislike being a burden on your sister and have agreed to apply for PWD but don’t think you are really eligible. You have a family doctor who is also encouraging you to apply and is willing to help fill out the disability application.

You experience severe chronic pain in your back that is exacerbated with activity but refuse to take pain medication. You cannot walk more than 1 block and do so at a pace that is significantly slower than average due to back pain. You are limited in what you can lift and cannot bend over. You avoid stairs when possible as it is painful and takes a long time.

Most activities take you a long time due to back pain. You use a grab bar to get in and out of the bath and on and off the toilet. Basic housekeeping is impossible as you cannot lift or bend, and you frequently need help preparing meals. Your sister provides you with assistance with most of these activities. She does all the cooking, shopping, cleaning and laundry and drives you to appointments. Since the accident you have become withdrawn and socially isolated and you are wondering if you are depressed.


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Introduction to Interviewing: Fact Pattern #2

Client: Your name is Jennifer Tak. You are 35 years old and use she/her pronouns. You have one child.

Presentation: You are somewhat anxious and very stressed about your currentcircumstance. You are easily frustrated by burocratic processes. You struggle to manage your frustration and often feel like others are treating you unfairly. You feel that all of the below is connected to the eviction.

Legal Issue: You have filed for Dispute Resolution at the Residential Tenancy Branch to dispute a 10 day Notice to End Tenancy for unpaid rent that you received from yourlandlord. You are looking for someone to represent you at the hearing as you are too nervous to do it on your own.

History: Since September, 2011, you have been renting the basement suite of a house in Richmond. It’s a 2 bedroom suite and you pay $1500 per month. You are on disability assistance and your income, including all benefits, is $1947.56 per month. Yourlandlord, Jim, and his family live upstairs.

You received a 10 day eviction notice for not paying your rent. Your landlord, Jim, posted it on your door on June 2, 2021 and it says that you owe $750 for June rent. Youpaid the $750 on June 10 and your landlord accepted it but gave you a receipt for use and occupancy only.

In addition to paying rent, you filed for Dispute Resolution. You completed yourapplication for dispute on June 6th. You completed your fee waiver on June 7th. Youserved the Notice of Dispute when you received it, on June 11th. The hearing is set for August 25th.

You did not receive your June PWD cheque, so you did not have rent on time for June 1. You had a hard time talking to someone at the Ministry about what was happening, and when you finally did, you found out that they thought you had moved without telling them. You were able to provide utility bills to confirm you are still living in the same place, so the Ministry agreed to issue your June cheque, but all of this took severaldays. Finally, on June 7, they told you that your cheque would be ready Monday morning. You picked it up, cashed it, and paid your landlord.

You has been late paying rent a couple of times over your tenancy, but Jim has never told you it’s a problem. You’ve had a good relationship as far as you are concerned.

Jennifer has an ex-partner, Pat. They have a very tense and acrimonious relationship. Pat initially lived with Jennifer and her daughter in the rental, but they broke up and he moved out right after Jennifer’s daughter was born (Pat is the father). While they lived


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together, they got in a lot of yelling fights and Jim had to call the police twice. Jennifer doesn’t get any child support from Pat.

Last month, Pat showed up at Jennifer’s door, drunk and banging on it. She was worried about the noise so she eventually let him inside. He fell asleep on the couch and when he woke up, she insisted that he leave. He left quietly. A couple of days later, Jim mentioned to her in a text that she heard Pat was over and he was very concerned if Pat was moving back in. Jennifer didn’t think it was any of Jim’s business, so she didn’t respond. Since then, Jim and his wife seem to be avoiding her.


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Introduction to Interviewing: Role Play Instructions

Instructions for Interviewer:

∑ You will interview a Co-learner who will role play according to a set of client instructions

∑ You will conduct three fact gathering stages of the interview (Introduction, History, Questioning)

∑ Assume you have basic client information including address, phone number, and date of birth from the intake sheet

Instructions for Client:

∑ Please read your confidential role play instructions carefully∑ During the interview, you may make up brief facts to facilitate the interview, but

do not make up facts which are inconsistent with these instructions∑ Please play the role as realistically as possible – do not give all your facts at

once, let the interviewer question you to elicit those facts∑ Pay attention to the instructions on how this client presents∑ Be prepared to offer two to three points of constructive feedback at the end of the

interview


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CLIENT INTERVIEW QUESTION FUNNELFor every separate legal issue:

Follow-up with open questions to gather more information.

Ask open questions and encourage the client to tell his/her story. Don’t jump in or make assumptions.

Check your understanding by summarizing for the client.

Follow-up with increasingly narrowing questions to gather more facts and legally

relevant information.

Ask pinpointed questions to

clarify.

Scoop before moving on: “Is there anything else you’d like to tell me on this topic?”


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LATC - Week 1 Materials - Law Foundation of BC

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Transcript of LATC - Week 1 Materials - Law Foundation of BC