Is the Canada Disability Benefits Program Consistent with the Social Model of Disablement? The Perils and Promises of Equality Rights Through Income Support Programs

Authors

Ravi Malhotra, University of Ottawa

Document Type

Article

Abstract

The social model of disablement stands for the proposition that it is structural barriers that impede the lives of people with disabilities. Disabled people should be included in all spheres of life, including employment, through the removal and eradication of barriers. At first glance, the expansion of disability benefits appears to contradict the goal of inclusion of people with disabilities in employment. In this article, I argue that the passage of the Canada Disability Benefit Act is fully consonant with the social model of disability. Using the work of disability rights scholar Marta Russell and the philosopher Cornelius Castoriadis, as well as selected findings from my study on the experiences of workers with disabilities concerning disability accommodations, I suggest that reducing poverty among people with disabilities will enable people with disabilities to flourish in a manner consistent with the social model.

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This work is licensed under a Creative Commons Attribution-Noncommercial-No Derivative Works 4.0 License.

Citation Information

Malhotra, Ravi. "Is the Canada Disability Benefits Program Consistent with the Social Model of Disablement? The Perils and Promises of Equality Rights Through Income Support Programs." Osgoode Hall Law Journal 61.2 (2024) : 359-392.
DOI: https://doi.org/10.60082/2817-5069.4017
https://digitalcommons.osgoode.yorku.ca/ohlj/vol61/iss2/3

References

1 Professor, Faculty of Law, Common Law Section, University of Ottawa. I gratefully acknowledge funding from the Social Sciences and Humanities Research Council Insight Grant Program. I thank my research assistant, Jacqueline Moizer, Class of 2023, Faculty of Law, Common Law Section at the University of Ottawa, for excellent research assistance. I also thank Professors Hengameh Saberi and Jinyan Li at Osgoode Hall Law School for organizing the “Women with Disabilities: Income Security and Tax Policy” workshop. Comments from Professors Mark Weber and Doron Dorfman and the participants at the Osgoode Hall workshop were greatly appreciated. All errors are my responsibility.

2 House of Commons Debates, 44-1, No 151 (2 June 2022) at 6027 (Hon Anthony Rota).

3. SC 2019, c 10.

4 Michael J Prince, Struggling for Social Citizenship: Disabled Canadians, Income Security, and Prime Ministerial Eras (McGill-Queen’s University Press, 2016) at 25, DOI: https://doi.org/10.1515/9780773598812 [Prince, Struggling].

5 See generally ibid, ch 3.

6 Ian Tom Coneybeer, The Origins of Workmen’s Compensation in British Columbia: State Theory and Law (Criminology MA Thesis, Simon Fraser University, 1986) [unpublished] at 86-87; Ravi Malhotra & Benjamin Isitt, Able to Lead: Disablement, Radicalism, and the Political Life of ET Kingsley (UBC Press, 2021) at 123, DOI: https://doi.org/10.59962/9780774865784. While never elected to office, ET Kingsley, himself an injured brakeman who lost both of his limbs in an industrial accident, worked closely with his Socialist Party comrades in the legislature to promote radical socialism.

7 See Prince, Struggling, supra note 4 at 66-67. Prince identifies Ontario as having instituted the earliest such program in 1914, followed by “Nova Scotia in 1915, British Columbia and Manitoba in 1916, and Alberta and New Brunswick in 1918.” It appears Prince’s account neglects the early passage of workmen’s compensation legislation in British Columbia.

8 See Eric Tucker, “Compensating Work-Related Disability: The Theory, Politics and History of the Commodification-Decommodification Dialectic” in Ravi Malhotra & Benjamin Isitt, eds, Disabling Barriers: Social Movements, Disability History, and the Law (UBC Press, 2017) 189 at 201, DOI: https://doi.org/10.59962/9780774835251-012. Such an approach, of course, was far from accurate, as it failed to take into account the working conditions and work duties assigned by particular employers. An injury to a hand might be minor in many contexts, but absolutely devastating to a musician.

9 See Prince, Struggling, supra note 4 at 66-67; See generally ibid.

10 See Prince, Struggling, supra note 4 at 66-67.

11 See An Act to amend the Militia Pension Act, SC 1946, c 59, amending Militia Pension Act, RSC 1927, c 133.

12 See Prince, Struggling, supra note 4 at 68.

13 See ibid; The War Veterans Allowance Act, SC 1930, c 48.

14 See Geoffrey Reaume, “Gender and the Value of Work in Canadian Disability History” in Malhotra & Isitt, supra note 8, 42 at 45, DOI: https://doi.org/10.59962/9780774835251-006.

15 RSC 1927, c 156; See Prince, Struggling, supra note 4 at 69.

16 See Prince, Struggling, supra note 4 at 69-70; For a discussion on the distinction between income-tested and needs-tested social programs, see generally Ken Battle & Sherri Torjman, The Post-Welfare State in Canada: Income-Testing and Inclusion (Caledon Institute of Social Policy, 2001) at 8-9.

17 See An Act to amend the Old Age Pensions Act, RSC 1937, c 13, amending Old Age Pensions Act, RSC 1931, c 42.

18 See Prince, Struggling, supra note 4 at 70. For a comparable account of blind activism for social benefits in the United States, see Jennifer L Erkulwater, “Constructive Welfare: The Social Security Act, the Blind, and the Origins of Political Identity among People with Disabilities, 1935–1950” (2019) 33 Studies in Am Political Development 110 at 123-24, DOI: https://doi.org/10.1017/S0898588X18000172.

19 RSC 1952, c 17.

20 See Prince, Struggling, supra note 4 at 82-83.

21 SC 1954, c 55, s 3(2).

22 Prince, Struggling, supra note 4 at 84.

23 For a discussion of this in the American context, see Doron Dorfman, “Re-Claiming Disability: Identity, Procedural Justice, and the Disability Determination Process” (2017) 42 L & Soc Inquiry 195 at 195-231, DOI: https://doi.org/10.1111/lsi.12176.

24 While a full discussion of Keynesian theory is beyond the scope of this article, Keynesianism may briefly be described as the idea that the state may achieve full employment and price stability through active intervention in the economy. See Sarwat Jahan, Ahmed Saber Mahmud & Chris Papageorgiou, “What is Keynesian Economics?” (2014) 51 Finance & Development 53 at 53.

25 National Labor Relations Act, 29 USC ^§§ 151-169 (1935) [Wagner Act].

26 See Judy Fudge & Harry Glasbeek, “The Legacy of PC 1003” (1995) 3 CLELJ 357 at 374 (discussing the pivotal Ford award that resulted in restrictions on untimely strikes); see also Anne Forrest, “Securing the Male Breadwinner: A Feminist Interpretation of PC 1003” (1997) 52 RI 91 at 97, DOI: https://doi.org/10.7202/051153ar (“What emerged from this historic confrontation was a compromise designed to quell unrest in the critical war industries”). The PC 1003 system has been famously summarized by the slogan, “work now, grieve later.”

27 On women as inauthentic workers, see generally Vicki Schultz, “Life’s Work” (2000) 100 Colum L Rev 1881 at 1892-1919.

28 See Forrest, supra note 26.

29 See generally Mark P Thomas, Regulating Flexibility: The Political Economy of Employment Standards (McGill-Queen’s University Press, 2009) at 48-49, DOI: https://doi.org/10.1515/9780773576766.

30 See Prince, Struggling, supra note 4 (observing at 242: “Canada’s liberal approach to social policy and liberal discourse on social citizenship privilege labour market participation, earned benefits, private insurance, and categorical diagnoses of bodily impairments”). While he is writing here in the context of the meagre disability benefits program Canada would later develop, this principle a fortiori applied prior to 1961 as well. As Prince illustrates, this pattern was consistent regardless of which political party formed government.

31 See RSC 1960-61, c 26.

32 See Prince, Struggling, supra note 4 at 87.

33 See e.g. Helen P LeVesconte, “Some Aspects of Rehabilitation in Canada” (1955) 22 Can J Occupational Therapy 47 at 47, DOI: https://doi.org/10.1177/000841745502200204. For a more recent analysis, see Dustin Galer, “‘A Place to Work Like Any Other?’: Sheltered Workshops in Ontario, 1970-1985” (2014) 3 Can J Disability Studies 1 at 1-30, DOI: https://doi.org/10.15353/cjds.v3i2.155.

34 See Prince, Struggling, supra note 4 at 97. The Quebec Pension Plan (QPP) offered more generous benefits but an analysis of the QPP is beyond the scope of this article.

35 See Prince, Struggling, supra note 4 at 250. This interestingly anticipates the later failure of the Trudeau government to include disability discrimination in the original version of the Canadian Charter of Rights and Freedoms. For more information, see David Lepofsky, “The Long, Arduous Road to a Barrier-Free Ontario for People with Disabilities: The History of the Ontarians with Disabilities Act – The First Chapter” (2004) 15 NJCL 125 at 140-46.

36 See Prince in ibid at 93-98. This concerned an amendment of section 94A of the then British North America Act. See also British North America Act 1867 (UK), 30 & 31 Vict, c 3, s 94A.

37 Sherri Torjman, The Canada Pension Plan Disability Benefit (Caledon Institute of Social Policy, 2002) at 5-7.

38 See RSC 1985, c F-7, s 28(1)(g.1).

39 See Torjman, supra note 37 at 9, 20; Prince, Struggling, supra note 4 at 102. However, in modern times, the CPP only replaces about one-quarter of pre-retirement income. See also Mary Condon, “Privatizing Pension Risk: Gender, Law, and Financial Markets” in Brenda Cossman & Judy Fudge, eds, Privatization, Law, and the Challenge to Feminism (University of Toronto Press, 2002) 128 at 136, DOI: https://doi.org/10.3138/9781442678774-006.

40 See Prince, Struggling, supra note 4 at 103. The “severe and prolonged physical or mental disability” requirement remains in force to this day. See also Canada Pension Plan, RSC 1985, c C-8, s 42(2)(a).

41 Granovsky v Canada (Minister of Employment and Immigration), 2000 SCC 28 [Granovsky]. Nonetheless, the CPP drop-out provisions, which enable a claimant to exclude a certain number of years when they had little or no earnings, are relatively generous. See Torjman, supra note 37 at 9.

42 See Prince, Struggling, supra note 4 at 117-22.

43 See ibid at 118-19.

44 See ibid at 121, 140.

45 As I note above, an individual with an intermittent back condition unsuccessfully challenged the contribution requirement in Granovsky, supra note 41 and associated text.

46 See Torjman, supra note 37 at 26. Recommendation 39 proposed the federal government establish a Comprehensive Disability Insurance Program which would be integrated with the existing CPP/QPP and would cover all disabled employees, spouses, and dependents, be actuarily sound and funded out of expanded premiums, and be indexed to the Consumer Price Index. See House of Commons, Obstacles: Report of the Special Committee on the Disabled and the Handicapped (February 1981) (Chair: David Smith) at 53.

47 See Prince, Struggling, supra note 4 at 148, 156. The actual time limit depended on the person’s work history and could vary from months to years.

48 See Torjman, supra note 37 at 29.

49 See generally Prince, Struggling, supra note 4 at 180 (noting, for instance, that “[t]he rising basic exemption in relation to the disability program had the effect of disqualifying some workers with especially low incomes from being entitled to disability benefits”).

50 See ibid at 193-98.

51 An exhaustive account of provincial social assistance programs is beyond the scope of this article.

52 See Torjman, supra note 37 at 43.

53 See ibid at 30. In 2002, it was reported that approximately 60 per cent of initial CPP–D claimants were rejected, and this number was predicted to rise.

54 See Don Kerr, Tracy Smith-Carrier & Juyan Wang, “From Temporary Financial Assistance to Longer Term Income Support: Probing the Growth in Ontario’s Disability Support Program” (2019) 79 Can Rev Soc Pol’y 11 at 22, noting that “[f]or Ontario residents who do not qualify for any of the federal programs or WSIB, and are without access to private disability insurance or other forms of income support, provincial social assistance remains the only option (OW or ODSP).” For a discussion of the pernicious impact of hierarchies between people with disabilities who have worked and those who have not in the Israeli context, see Sagit Mor, “Between Charity, Welfare, and Warfare: A Disability Legal Studies Analysis of Privilege and Neglect in Israeli Disability Policy” (2006) 18 Yale JL & Human 63 at 63-64.

55 See Income Security Advocacy Centre, “OW & ODSP Rates and the Ontario Child Benefit,” (February 2020), online: [perma.cc/KJ88-8DNT].

56 See Kerr, Smith-Carrier & Wang, supra note 54 at 14.

57 Only 48 per cent of Canadians have access to long-term disability benefits. See Leah Golob, “Fewer Canadians have disability insurance,” Investment Executive (24 April 2018), online: [perma.cc/ECB6-SY5S].

58 See e.g. Daniel Béland, Gregory P Marchildon & Michael J Prince, “Understanding Universality within a Liberal Welfare Regime: The Case of Universal Social Programs in Canada” (2020) 8 Soc Inclusion 124 at 125, DOI: https://doi.org/10.17645/si.v8i1.2445.

59 See Evelyn L Forget, “The Town with No Poverty: The Health Effects of a Canadian Guaranteed Annual Income Field Experiment” (2011) 37 Can Pub Pol’y 293 at 287, DOI: https://doi.org/10.1353/cpp.2011.0036.

60 Tom Shakespeare, “The Social Model of Disability” in Lennard J Davis, ed, The Disability Studies Reader, 4th ed (Routledge, 2013) 214 at 216 [Shakespeare, “Social Model”]. See also Tom Shakespeare, Disability Rights and Wrongs (Routledge, 2006), DOI: https://doi.org/10.4324/9780203640098.

61 See Anna Lawson & Angharad E Beckett, “The social and human rights models of disability: towards a complementarity thesis” (2021) 25 Intl JHR 348 at 349, DOI: https://doi.org/10.1080/13642987.2020.1783533.

62 See Shakespeare, “Social Model,” supra note 60 at 216.

63 The literature on the social model is voluminous and what follows is necessarily selective. See e.g. Michael Oliver & Colin Barnes, The New Politics of Disablement, 2nd ed (Macmillan, 2012), DOI: https://doi.org/10.1007/978-0-230-39244-1; Michael Oliver, The New Politics of Disablement (Macmillan, 1990), DOI: https://doi.org/10.1007/978-1-349-20895-1; Jenny Morris, Pride Against Prejudice: Transforming Attitudes to Disability (The Women’s Press, 1991). American versions of the social model are more typically influenced by postmodernism. See e.g. Simi Linton, Claiming Disability: Knowledge and Identity (New York University Press, 1998).

64 See Janine Owens, “Exploring the critiques of the social model of disability: the transformative possibility of Arendt’s notion of power” (2015) 37 Sociology Health & Illness 385 at 387.

65 See generally Oliver, supra note 63 at 12-24.

66 The Union of the Physically Impaired Against Segregation & The Disability Alliance, Fundamental Principles of Disability (UPIAS & DA, 1976) at 14.

67 See Lawson & Beckett, supra note 61 at 348.

68 Kelly Fritsch, Jeffrey Monaghan & Emily van der Meulen, “Resisting the Criminalization of Disability: Cripping Disability Injustice toward Accessible Decarceral Futures” in Kelly Fritsch, Jeffrey Monaghan & Emily van der Meulen, eds, Disability Injustice: Confronting Criminalization in Canada (UBC Press, 2021) 3 at 4, DOI: https://doi.org/10.59962/9780774867146-001.

69 See Bruce Uditsky, “From Integration to Inclusion: The Canadian Experience” in Roger Slee, ed, Is There a Desk With My Name On It? The Politics of Integration (The Falmer Press, 1993) 82 at 84 (noting that “[i]n the 1970s another movement began. New generations of parents were developing their own ideas, concepts which were extensions of what parents before them had dreamed. Like so many past reformers, the radical parents of old became the protectors of the status quo—the segregated school”) [citations omitted]. Disability rights advocates have had to create entirely new terminology such as “public stripping” to describe intrusive medical examinations that people with disabilities were subjected to, even in school settings, as part of routine training for medical students. See e.g. Sherene Razack, “From Consent to Responsibility, from Pity to Respect: Subtexts in Cases of Sexual Violence Involving Girls and Women with Developmental Disabilities” (1994) 19 Law & Soc Inquiry 891 at 897, DOI: https://doi.org/10.1086/492488; Mary Louise Fellows & Sherene Razack, “Seeking Relations: Law and Feminism Roundtables” (1994) 19 Signs 1048 at 1055, DOI: https://doi.org/10.1086/494950.

70 See e.g. Fritsch, Monaghan & van der Meulen, supra note 68 at 4.

71 See Michael J Prince, Absent Citizens: Disability Politics and Policy in Canada (University of Toronto Press, 2009) at 76, DOI: https://doi.org/10.3138/9781442687301 [Prince, Absent].

72 See Erving Goffman, Stigma: Notes on the Management of Spoiled Identity (Prentice-Hall, 1963); Erving Goffman, The Presentation of Self in Everyday Life (Edinburgh University Press, 1956). For one disabled woman’s commentary on her struggles with disability identity, see Harilyn Rousso, Don’t Call Me Inspirational: A Disabled Feminist Talks Back (Temple University Press, 2013).

73 Michelle R Nario-Redmond, Ableism: The Causes and Consequences of Disability Prejudice (John Wiley & Sons, 2020) at 6, DOI: https://doi.org/10.1002/9781119142140.

74 See Judith Butler, Gender Trouble: Feminism and the Subversion of Identity (Routledge, 1990) at 33 (“sex will be shown to be a performatively enacted signification (and hence not ‘to be’), one that, released from its naturalized interiority and surface, can occasion the parodic proliferation and subversive play of gendered meanings”).

75 For a qualitative research study that reports that a participant was asked by random strangers about her ability to conceive and bear children, see Octavia Calder-Dawe, Karen Witten & Penelope Carroll, “Being the body in question: young people’s accounts of everyday ableism, visibility and disability” (2020) 35 Disability & Society 132 at 143, DOI: https://doi.org/10.1080/09687599.2019.1621742.

76 Ibid at 143-44.

77 See Claire Tregaskis, “Social Model Theory: the story so far…” (2002) 17 Disability & Society 457 at 457, DOI: https://doi.org/10.1080/09687590220140377.

78 See Rosalyn Benjamin Darling, Disability and Identity: Negotiating Self in a Changing Society (Lynn Rienner Publishers, 2013) at 5, DOI: https://doi.org/10.1515/9781626370951.

79 See Julianne M Acker-Verney, “Changing Public Services: Intersectionality and the Experiences of Women with Disabilities” (2017), online: Canadian Research Institute for the Advancement of Women [perma.cc/3292-QZEP] at 5-6. For an overview of intersectional theory in the context of race and gender, see Kimberlé Crenshaw, “Mapping the Margins: Intersectionality, Identity Politics, and Violence Against Women of Color” in Kimberlé Crenshaw et al, eds, Critical Race Theory: The Key Writings That Formed the Movement (New Press, 1995) 357.

80 See Statistics Canada, Work Experiences of Women with Disabilities, by Christoph Schimmele, Sung-Hee Jeon & Rubab Arim, Catalogue No 36-28-0001 (Statistics Canada, 27 October 2021).

81 See Condon, supra note 39 at 130-31.

82 See generally Carol Thomas, Sociologies of Disability and Illness: Contested Ideas in Disability Studies and Medical Sociology (Palgrave MacMillan, 2007). See also Dorfman, supra note 23 at 200-01.

83 See generally Office on Women’s Health, “Chronic fatigue syndrome,” online: US Department of Health and Human Services (noting “[w]omen are two to four times more likely than men to be diagnosed with ME/CFS”) [perma.cc/2CFM-X8F4].

84 See e.g. Maya Dusenbery, “‘Everybody was telling me there was nothing wrong’” (29 May 2018), online: BBC News [perma.cc/U4FB-YLYL]; Bayda Disability Law Firm, “Canada Pension Plan (CPP) – Disability Benefits,” online: [perma.cc/MQ97-96DJ] (advising CPP–D claimants with chronic fatigue syndrome and fibromyalgia to avoid getting medical documentation from physiatrists or orthopedic surgeons).

85 See Dorfman, supra note 23 at 198, 219. A poignant example is provided by a research participant, Lisa, who emphasizes in her answers that she spends her time doing laundry due to her incontinence, rather than other leisure activities, to ensure that the graphic nature of her impairments will guarantee she obtains the benefits she needs to live. See also Doron Dorfman, “Disability Identity in Conflict: Performativity in the U.S. Social Security Benefits System” (2015) 38 Thomas Jefferson L Rev 47 at 69. This kind of invasive monitoring is not restricted to benefits applications. See Suzanne Stolz, “Disability community, policy, care and empowerment: ‘growing up’ at MDA camp and the shaky social contract” in Ravi Malhotra, ed, Disability Politics in a Global Economy: Essays in Honour of Marta Russell (Routledge, 2017) 166 at 170, DOI: (observing how a muscular dystrophy camp Stolz attended in Kansas required the public display of charts that monitored when campers had showers and bowel movements).

86 See Lepofsky, supra note 35 at 140-46.

87 I disclose that I participated for many years on the Human Rights Committee of the CCD.

88 See Pub L No 101-336, 104 Stat 327 (1990) (codified as amended in scattered sections of 42 and 47 USC) [ADA].

89 For a classic account, see Joseph P Shapiro, No Pity: People with Disabilities Forging a New Civil Rights Movement (Times Books, 1993).

90 See Lawson & Beckett, supra note 61 at 351-57.

91 See ibid at 357-58. While Lawson and Beckett draw a distinction between the social model and the human rights model, for my purpose I treat them as one.

92 See Mark C Weber, “Disability Rights, Disability Discrimination, and Social Insurance” (2009) 25 Ga St U L Rev 575 at 596-97. “Attendant services” refer to assistance in activities of daily living including bathing, dressing, and toileting. This also accords with the skepticism of critical race theorists towards rights. See Crenshaw, supra note 79 and associated text.

93 See Matthew Diller, “Dissonant Disability Policies: The Tensions Between the Americans with Disabilities Act and Federal Disability Benefit Programs” (1998) 76 Tex L Rev 1003 at 1003-10.

94 For a recent articulation see e.g. Duncan Kennedy, “The Critique of Rights in Critical Legal Studies” in Wendy Brown & Janet Halley, eds, Left Legalism/Left Critique (Duke University Press, 2002) 178 at 178-228, DOI: https://doi.org/10.2307/j.ctv11hpn4c.

95 For an account of radical activism in the American disability rights movement, see Doris Zames Fleischer & Frieda Zames, The Disability Rights Movement: From Charity to Confrontation (Temple University Press, 2011) at 82-85 (discussing the radical non-hierarchical disability rights activist group ADAPT).

96 For information regarding non-discrimination with respect to federal grants and programs, see generally Rehabilitation Act of 1973, Pub L No 93-112, 87 Stat 355 (codified at 29 USC ^§ 794).

97 See Ruth Osorio, “Disabling Citizenship: Rhetorical Practices of Disabled World-Making at the 1977 504 Sit-in” (2022) 84 College English 243 at 243, DOI: https://doi.org/10.58680/ce202231678.

98 For one such view, see David Renton, Against the Law: Why Justice Requires Fewer Laws and a Smaller State (Repeater Books, 2022) (arguing that a project of egalitarian de-juridification is imperative for social justice).

99 For a classic account, see generally William N Eskridge Jr, “Gaylegal Narratives” (1994) 46 Stan L Rev 607 at 621-25, DOI: https://doi.org/10.2307/1229103 (recounting how rights challenges for a Black gay soldier expelled from the US military failed to capture the complexity of his multiple identities).

100 See Dorfman, supra note 85 and accompanying text.

101 See Sins Invalid, “10 Principles of Disability Justice,” online: [perma.cc/3MAZ-642A].

102 See Ellen Samuels, “Six Ways of Looking at Crip Time” (2017) 37 Disability Studies Q, DOI: https://doi.org/10.18061/dsq.v37i3.5824; Alison Kafer, Feminist Queer Crip (Indiana University Press, 2013) at 27.

103 Margaret Price, “Time Harms: Disabled Faculty Navigating the Accommodations Loop” (2021) 120 South Atlantic Q 257 at 258, DOI: https://doi.org/10.1215/00382876-8915966.

104 Marta Russell, Beyond Ramps: Disability at the End of the Social Contract (Common Courage Press, 1998) [Russell, Beyond].

105 See Ravi Malhotra, “The legal politics of Marta Russell: a Castoriadan reading” in Malhotra, supra note 85 at 4-5 [Malhotra, “Legal Politics”].

106 See Russell, Beyond, supra note 104; Malhotra, “Legal Politics,” ibid at 6-7. A collection of her writings has also appeared recently. See Keith Rosenthal, ed, Capitalism & Disability: Selected Writings by Marta Russell (Haymarket Books, 2019).

107 See Russell, Beyond, supra note 104 at 9.

108 Ibid.

109 See Beatrice Adler-Bolton, “On Marta Russell’s Money Model of Disability” (13 December 2021), online: Blind Archive [perma.cc/3UT6-9VAU]. For a discussion of telethons and their relationship with corporate charity, see Paul K Longmore, Telethons: Spectacle, Disability, and the Business of Charity (Oxford University Press, 2015) at 11, DOI: https://doi.org/10.1093/acprof:oso/9780190262075.001.0001.

110 See Marta Russell, “What Disability Civil Rights Cannot Do: Employment and Political Economy” in Malhotra, supra note 85 at 220 [Russell, “Disability Civil Rights”]. Of course, many Republican members of Congress were primarily motivated to support the ADA because it was believed that it would lead to more Americans with disabilities gaining employment and reducing the social assistance payout. For an account of how some disability rights advocates framed their arguments to appeal to this conservative constituency, see Samuel R Bagenstos, “The Americans with Disabilities Act as Welfare Reform” (2003) 44 Wm & Mary L Rev 921, DOI: https://doi.org/10.2139/ssrn.311400.

111 For an iconic early statement on challenging productivity as a measure of the value of people with disabilities, see Sunny Taylor, “The Right Not to Work: Power and Disability” Monthly Review (1 March 2004), online: [perma.cc/ZBB6-NQZA].

112 Russell, “Disability Civil Rights,” supra note 110 at 222. Unlike in Canada, the ADA had the further disadvantage of a narrow interpretation of its definition of disability. For a similar take in the British context, see Ellen Clifford, The War on Disabled People: Capitalism, Welfare and the Making of a Human Catastrophe (Zed Books, 2020), DOI: https://doi.org/10.5040/9781350225732.

113 In the Canadian context, private sector union density rates have plummeted from 19 per cent in 1997 to under 14 per cent in 2021. See Statistics Canada, Trade Union Density Rate, 1997 to 2021, Catalogue No 14-28-0001 (Statistics Canada: 30 May 2022).

114 Russell, “Disability Civil Rights” supra note 110 at 226-30. See also Marta Russell, “Marxism and Disability” in Rosenthal, supra note 106, 12 at 12-20.

115 Marta Russell, “Targeting Disability” in Rosenthal, ibid at 109.

116 See Statistics Canada, supra note 113.

117 Convention on the Rights of Persons with Disabilities, 30 March 2007, 2515 UNTS 3 art 28 (entered into force 3 May 2008, accession by Canada 11 March 2010) [CRPD].

118 Stephen Hastings-King, Looking for the Proletariat: Socialisme ou Barbarie and the Problem of Worker Writing (Brill, 2014) at 15, DOI: https://doi.org/10.1163/9789004235373.

119 See Cornelius Castoriadis, The Imaginary Institution of Society, 1st ed, translated by Kathleen Blamey (MIT Press, 1987) at 146-47 [Castoriadis, Imaginary]; Cornelius Castoriadis, “Radical Imagination and the Social Instituting Imaginary” in David Ames Curtis, ed, The Castoriadis Reader (Blackwell, 1997) 319 at 334 [Castoriadis, “Radical”]. See also Sophie Klimis, “From Modernity to Neoliberalism: What Human Subject?” in Ingerid S Straume & Giorgio Baruchello, eds, Creation, Rationality and Autonomy: Essays on Cornelius Castoriadis (NSU Press, 2013) 133 at 144. The literature on Castoriadis is voluminous and the treatment here is necessarily selective.

120 Brian CJ Singer, “Cornelius Castoriadis: Auto-Institution and Radical Democracy” in Martin Breaugh et al, eds, Thinking Radical Democracy: The Return to Politics in Post-War France (University of Toronto Press, 2015) 141 at 141, DOI: https://doi.org/10.3138/9781442621992-007.

121 Castoriadis, Imaginary, supra note 119 at 146-47.

122 Singer, supra note 120 at 148-49.

123 Castoriadis, Imaginary, supra note 119 at 146-47. The “ensemblist-identiary dimension” refers to how institutions act in a traditional ontology based on set theory in mathematics. For a deeper discussion, see Suzi Adams, “Towards a Post-Phenomenology of Life: Castoriadis’ Critical Naturphilosophie” (2008) 4 Cosmos & History: J Natural & Soc Philosophy 387 at 387-88; Alexandros Schismenos, “Time in the ontology of Cornelius Castoriadis” (2017) 5 Socrates 64, DOI: https://doi.org/10.5958/2347-6869.2017.00023.1.

124 Castoriadis, “Radical,” supra note 119 at 332-33. See also Singer, supra note 120 at 145. Singer notes that “[s]ocial forms are, in the last instance, created ex nihilo; they are formed by what he terms the radical imaginary.”

125 Toula Nicolacopoulos & George Vassilacopoulos, (Un)willing Collectives: On Castoriadis: Philosophy and Politics (Re.Press, 2018) at 22; Castoriadis, Imaginary, supra note 119 at 214: “Thus we can understand, interpret the covering over of otherness, the denial of time, society’s ignorance of its own social-historical being in so far as these are grounded in the very institution of society such as we know it, namely, such as it has up to now instituted itself.”

126 Nicolacopoulos & Vassilacopoulos, ibid at 20. See Cornelius Castoriadis, World in Fragments: Writings on Politics, Society, Psychoanalysis, and the Imagination, ed and translated by David Ames Curtis (Stanford University Press, 1997) at 395 (commenting, “[t]ime is being insofar as being is otherness, creation, and destruction”).

127 Schismenos, supra note 123 at 77. See also Alexandros Schismenos, Nikos Ioannou & Chris Spannos, Castoriadis and Autonomy in the Twenty-first Century (Bloomsbury Academic, 2021) at 77-78, DOI: https://doi.org/10.5040/9781350123403.

128 For an interesting commentary on Black History Month and its relationship to historical time, see Kenan van de Mieroop, “On the Advantage and Disadvantage of Black History Month for Life: The Creation of the Post-Racial Era” (2016) 55 History & Theory 3, DOI: https://doi.org/10.1111/hith.10784.

129 Ibid.

130 “Focus Group Participant – Blake” (2 August 2022) via Zoom [communicated to author].

131 “Focus Group Participant – Andrea” (17 August 2022) via Zoom [communicated to author].

132 “Focus Group Participant – Melissa” (17 August 2022) via video communications [communicated to author].

133 Villani v Canada (Attorney General), 2001 FCA 248 [Villani].

134 RSC 1985, c C-8, s 42(2)(a)(i). The subparagraph reads: “[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.”

135 See Villani, supra note 133 at para 38.

136 Ibid at para 2.

137 Ibid at paras 2, 7.

138 Ibid at para 14.

139 Ibid at para 38.

140 Ibid at para 30.

141 See Canada Pension Plan, supra note 40.

142 Balkanyi v Canada (Attorney General), 2021 FCA 164.

143 Ibid at para 3.

144 Ibid at paras 23-26.

145 Riccio v Canada (Attorney General), 2021 FCA 108 at para 9 [Riccio]. See also JD v Minister of Employment and Social Development, 2021 SST 7 (General Division failed to properly apply the Villani real-world factors in assessing the severity criterion with respect to a case involving a woman with polio and plantar fasciitis).

146 See Riccio, ibid at para 23.

147 Ibid.

148 For the framing of this issue as a UBI, see Roderick Benns, “Opinion: Basic income for people with disabilities would be a step forward for the whole UBI movement,” Basic Income Today (2 February 2022), online: [perma.cc/5NQP-YZ72].

149 I thank Professor Mark Weber for discussion on this point, as well as on the points in the following paragraph.

150 See e.g. Robert Greenstein, “Commentary: Universal Basic Income May Sound Attractive But, If It Occurred, Would Likelier Increase Poverty Than Reduce It” (13 June 2019), online: Center on Budget and Policy Priorities [perma.cc/4YLM-DJYJ].

151 Ibid.

152 See John Clarke, “Defending the left case against basic income” (3 May 2021), online: [perma.cc/GD76-6DA4].

153 Ibid.

154 See Disabled People Against Cuts, “Written evidence from disabled people against cuts” (November 2020), online: [perma.cc/B773-F8DT].

155 See Sherri Torjman, “Primer on a New Disability Income Benefit” (2020) at 4, online: Institute for Research and Development on Inclusion and Society [perma.cc/S4HM-TEHY].

156 Ibid at 5.

157 Ibid.

158 See Bobby Hristova, “This Ontario man has waited over 2 years for his broken electric wheelchair to be replaced,” (13 January 2022), online: CBC News [perma.cc/P7WH-N9EK].

159 See Keith Gordon, “Survey Report: Reforming Ontario’s Assistive Devices Program” (2022) at 29-30, online: Canadian Council of the Blind [perma.cc/4E4Y-54X9].

160 Jennifer Zwicker & Stephanie Dunn, “Breaking Down Barriers to the Disability Tax Credit,” (5 January 2018), online: Policy Options [perma.cc/PRC5-PGNG].