New Changes in ODSP & Personal Injury Claims

Effective August 1, 2017, new legislative amendments took force under the Ontario Disability Support Program Act (s. 28(1)14, 14.1, 14.2, and 41(13) and 42, and 43(1)4, 9, (5)), affecting persons who are in receipt of Ontario Disability Support Program (“ODSP”) benefits and have suffered injuries as a result of an accident.

Prior to August 1, 2017, a recipient of ODSP was entitled to maintain his or her ODSP funding and receive court-awarded compensation for personal injuries, but only up to a maximum of $100,000 for:

– Pain and suffering as a result of loss, injury or death;
– Expenses from an injury or death of a family member; or
– The loss of care, guidance and companionship due to an injury or death of a family member.

Effective August 1, 2017, the $100,000 “cap” no longer applies. As such, any award for pain and suffering is fully exempt as the award is no longer considered to be “income” or “assets”. Furthermore, judgement/awards for medical and rehabilitation benefits under SABS and awards under the Family Law Act are also exempt.

However, the following payments continue to be treated as income and/or assets for the purpose of determining ODSP entitlement:

– Income Replacement Benefits;
– Non-Earner Benefits;
– Past or Future loss of income (including any accompanying prejudgment interest); and
– Punitive damages awards

Interest

Interest earned on exempt compensation awards is considered “income” and an “asset”, subject to other applicable exemptions. However, prejudgment interest awarded on compensation for the delay in receiving damages on pain and suffering awards is considered under the legislation a part of the actual award for pain and suffering. Therefore, the exemption can include the pain and suffering award as well as amounts awarded for prejudgment interest.

Use of exempt award

If the exempt funds are used to purchase an “asset” (i.e. a principal residence; any other approved asset that is necessary for health and welfare; or an exempt asset such as a primary motor vehicle), that asset remains exempt as an asset and will have no impact on the recipient’s income support.

If an ODSP recipient purchases a non-exempt asset such as a second home or a second vehicle that is not required for a member of the benefit unit to maintain employment outside the home, that asset is not exempt and will count towards the benefit unit’s asset limit.

To read more about the changes click here.

If you, a friend or a loved one has been injured and are receiving ODSP benefits, please contact the personal injury team at Daniel & Partners LLP to learn how your accident may affect your current entitlement.