Class Action - Standing Up For Disabled Ontarians

Lawyer Sarah Shartal has launched a class action lawsuit on behalf of 230,000 disabled Ontarians caught in bureaucratic quagmire.

Carol Goar

Thanks to a feisty lawyer, a sympathetic judge and two brave plaintiffs, the government of Ontario may finally be held to account for the way it treats the province's poorest, sickest citizens.

The lawyer is Sarah Shartal of Roach, Schwartz and Associates.

For years, she has used every device at her disposal – reason, persuasion, harassment, outrage – to get the province to fix its badly broken disability support system. Now, as a last resort, she is trying litigation. She has launched a class action lawsuit on behalf of the 230,000 disabled Ontarians caught in the bureaucratic quagmire.

The judge is Maurice Cullity of the Ontario Superior Court.

Last month, to the surprise of legal observers, he blocked an attempt by the government to have Shartal's suit thrown out of court. He recognized the importance of the case and gave Shartal three weeks to amend her statement of claim to meet the court's stringent standards for class action suits.

The plaintiffs are Joy Adams and Janice Wareham.

The two severely disabled women have agreed to put their lives on display to show how hard it is to qualify for disability support and how it takes to get the money. "I needed clients with the emotional courage and strength not to be harmed by the process," Shartal explained.

No case like this has ever gone to trial in Ontario.

If it is certified to proceed, Shartal will be making legal history. But that's not what is motivating her. "I just ran out of other options."

Roughly 25,000 Ontarians apply for disability support every year. Half are turned down. Many more don't even apply because the process is so onerous.

First, an applicant has to convince a welfare caseworker that he or she is in dire financial need. That requires employment records, bank documents and identification papers.

Once that hurdle is cleared, the applicant has 90 days to get a doctor to fill out a lengthy medical form describing and assessing his or her disabilities.

Anyone who is homeless, illiterate, doesn't have a health card or doesn't have a doctor has no hope of meeting this requirement.

Individuals who do manage to complete all the paperwork still face a 5-month wait while the province's Disability Adjudication Unit determines whether they are eligible for benefits. If the answer is no – as it frequently is – an applicant can request an internal review, then appeal to the Social Benefits Tribunal. But that often takes years.

The reward for reaching the end of this maze is the princely sum of $979 per month – which falls 44 per cent below the National Welfare Council's poverty line.

A report written for Legal Aid Ontario in 2003 concluded that the program "imposes arduous and unrealistic barriers on the very people it purports to help."

Since the late '90s, Shartal has used her legal skills – plus her willingness to go into the city's shelters and ravines — to obtain benefits for thousands of severely disabled clients. At any given time, she has 120 claims on the go.

But she is no longer content to fight for justice case by case. "The government knows the system doesn't work," she says. "But all it does is tinker around the edges. What we're saying is this is wrong in a basic, democratic legal sense."

Shartal is seeking damages of $2,000 for each plaintiff, plus $100 for each month the Ministry of Community and Social Services kept a client waiting for a decision.

Wareham, a single mother and abuse survivor, waited 11 months. Adams, who was mistakenly told she didn't have to provide hospitalization records, waited 18 months.

If Shartal and her clients win, all 230,000 disability support recipients will be eligible for similar payments.

It is little wonder the government wanted to quash the lawsuit.

It is a small miracle that the judge said no.