Big win for Canadians with disabilities

November 4, 2021

Justice prevails for a small business with a huge heart committed to ensuring that Canadians with disabilities are able to access the income supports to which they are entitled.

The Supreme Court of British Columbia rules in favour of True North Disability Services Ltd. (TNDS) and Shane Nercessian preventing the Canada Revenue Agency (CRA) from imposing punitive regulations to prevent Canadians with disabilities from accessing professional services to assist with Disability Tax Credit (DTC) applications. CRA no longer has the authority to impose a $100 flat fee for companies assisting taxpayers with their DTC applications and appeals.

Justice Harry J. Slade recognized that most, if not all, DTC service providers will be driven out of business as it will no longer be economical for them to provide many of the services required to assist with a successful application of the DTC. After a two-day trial, and reviewing numerous affidavits filed in support of the application, he granted an injunction against the CRA immediately suspending the operation of the Disability Tax Credit Promoters Restrictions Regulations which would have taken effect on November 15, 2021.

This is a great victory for Shane Nercessian and his company considering that injunctions are by their nature extraordinary and difficult to obtain. Injunctions suspending the operation of legislation are very uncommon indeed.

The proposed Regulations were adopted in 2019 by the CRA citing support from the Disability Advisory Committee. Nevertheless, CRA’s actions were ultimately a betrayal of trust of the Committee since it was never our intention to put these companies out of business.  The CRA specifically noted our Committee's concerns in the Canada Gazette Part II, Volume 155, Number 8, March 26, 2021.

"The DAC discussed the need to strike a balance between ensuring that vulnerable populations (such as individuals with disabilities) are not financially disadvantaged and adequately compensating those that assist them in receiving the benefits to which they are entitled.

“Overall, the DAC was of the view that the fee should be set at an affordable rate for the applicant… and ensure that promoters are adequately compensated for their time to ensure legitimate businesses can continue to operate and provide affordable services to this vulnerable community.”

Justice Slade noted that the Regulation would effectively prevent Canadians with disabilities from being represented by all professionals, including lawyers and accountants, unless, of course, they are willing to accept a $100 cap on their fees. And yet, other members of the public are generally able to retain the same professionals to represent their interests with branches of government in relation to all other matters dealing with taxation without a punitive fee schedule.

The next step in this process is going back to court to determine whether CRA’s Regulations are even constitutional considering that the federal government is encroaching on provincial powers as far as the regulation of fees provided by professionals including Shane Nercessian and his company.