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As of August 1, 2017, the amount of money personal injury plaintiffs who are receiving Ontario Disability Support Program (“ODSP”) benefits are eligible to receive as compensation for pain and suffering, for out-of-pocket expenses and future care costs, and for Family Law Act claims is no longer capped at $100,000.

ODSP is a government program which provides income support and additional benefits such as prescription drug and dental care to disabled adults.

Reg. 222/98 (the “Regulation”), the general regulation under the Ontario Disability Support Program Act, 1997[1], outlines eligibility for ODSP benefits. To qualify, the monetary amount of an applicant’s income and assets must fall below a prescribed level.

The pre-August 1, 2017 versions of the Regulation stipulated that any amount awarded for pain and suffering, for out-of-pocket expenses and future care costs, and/or for Family Law Act claims to a plaintiff on ODSP above $100,000 would be considered an “asset” and could therefore potentially disqualify the plaintiff from receiving ODSP benefits.

Practically, that meant that if a personal injury plaintiff who was receiving ODSP benefits was awarded compensation for their pain and suffering (called “general damages”), their out-of-pocket expenses and future care costs, and/or for their Family Law Act claims in any amount greater than $100,000, they could personally retain only $100,000 of that amount. The money in excess of $100,000 would have to be provided to the Ontario government. For example, if a plaintiff on ODSP was awarded $150,000 for pain and suffering, they would be required to provide $50,000 ($150,000-$100,000) of that amount to the province, and could keep only $100,000 for themselves. If they kept the additional $50,000, it would be considered an “asset” under the Regulations and the plaintiff would, in all likelihood, be disqualified from receiving future ODSP benefits.

However, as of August 1, 2017, the Regulations no longer state that compensation for pain and suffering, out-of-pocket expenses and future care costs, and for Family Law Act claims is subject to a $100,000 cap. The subsection stipulating that cap has been revoked. This means that personal injury plaintiffs on ODSP can now retain the full amount of their award, without sacrificing their ODSP benefits.

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