https://www.thestar.com/news/gta/2019/01/28/justices-spar-with-ford-government-lawyers-over-cancellation-of-basic-income-pilot.html
Justices spar with Ford government lawyers over cancellation of basic
income pilot
By Laurie MonsebraatenSocial Justice Reporter
Mon., Jan. 28, 2019
Ontario Superior Court justices blasted the Ford government Monday for
saying participants in the now-cancelled basic income pilot project were
wrong to expect the study to run for three years.
Despite signing documents that said they would receive income for “up
to” three years, it was not a “guarantee of three years,” government
lawyer Christopher Thompson argued before the three-judge panel being
asked to overturn the decision to kill the project.
But an incredulous Justice Fred Myers took aim at Thompson’s legal
parsing of the English language.
“Are you here to suggest that the Liberal government under (then)
premier (Kathleen) Wynne didn’t intend this to be a three-year program?
You are lawyering like crazy over two words,” Myers said, leaning
forward in his chair. “Of course it intended it to be a three-year
program … It’s perfectly obvious.”
It was one of several testy exchanges between the justices and
government lawyers who argued the courts do not have the power to
overrule policy decisions or force governments to spend money.
Lawyer Mike Perry, acting on behalf of Lindsay-area participants Dana
Bowman, Grace Hillion, Susan Lindsay and Tracey Mechefske, said the
courts can step in when governments act irrationally, in bad faith and
in breach of ethics. By asking the panel to quash the decision, Perry
said he was not prescribing any specific government spending but leaving
it “up to government to decide how to comply with the court’s order.”
Under the three-year initiative launched by the previous Liberal
government in April 2017, about 4,000 people in the test communities of
Hamilton-Brantford, Thunder Bay and Lindsay were to receive up to
$16,989 annually. Couples were to get up to $24,027 while individuals
with disabilities were eligible for a $6,000 top-up.
The goal was to see if regular payments with no strings attached would
give people living in poverty the security and opportunity to reach
their full potential.
It was also studying whether a basic income would be a simpler and more
economic way to deliver social assistance than the current demeaning and
rule-bound system.
Although cabinet policy decisions may be supreme, Perry urged the
justices to consider the government’s ethical responsibility to human
research subjects in the study.
When Social Services Minister Lisa MacLeod pulled the plug July 31, the
government left vulnerable participants in the dark for a month before
informing them their payments would continue until the end of March this
year, as part of a wind-down plan, Perry noted. That was a full year
earlier than originally planned.
The government signed a research protocol with an independent ethics
board to oversee the study, a move that committed the government to
abide by certain ethical behaviour, he said.
But despite the government’s agreement to seek the board’s approval for
any changes to the project, no approvals were sought, nor granted when
it ended the initiative, Perry said.
Instead, when the ethics board rejected the cancellation and “wind-down
plan,” the government “fired” the board, Perry told the court.
Thompson argued cabinet’s policy decisions can’t legally be fettered by
research ethics boards or any other unelected entity. Nor can they be
questioned based on reason or rationality, he added.
Even if the court were to rule it has jurisdiction, the decision was
rational, he argued, because basic income was too expensive for Ontario.
And the new government prefers a more employment-focused approach to
social assistance.
“The government does not intend to pursue a basic income policy across
Ontario,” he said.
But panel chair Justice Julie Thorburn said it was “silly” for the
government to argue it was cancelling the experiment because it would
cost $17 billion to extend the payments to all low-income Ontarians.
“Wasn’t the whole point of the study to find out if there was data to
show whether or not they should?” she asked, during the hearing at
Osgoode Hall in Toronto.
“It’s a research experiment. So you get the data and then you make a
decision to do it, or not to do anything, based on the data,” she
chided. “Nobody is suggesting the government . . . (had to) do anything
after the three years.”
But the justices wondered whether the case would be better handled in
civil court as a class action.
“To the extent to which participants have a legitimate expectation (of
payment,) isn’t the proper forum a class action?” Justice Thorburn asked.
Perry, who is not a practising lawyer and is handling the case pro bono,
has also launched a class-action on behalf of the four participants.
But he argued judicial review of the decision was a “pro-active”
approach and the “first available remedy.” If successful, there would be
no need to pursue the class action.
“We put up a fight, it got covered and the voices got heard,” he said
outside court.
The justices have reserved their decision.
