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Attention: Disability advocates worldwide
Ontario disability benefits (ODSP) class action needs your advice!
PLEASE CIRCULATE
Toronto law firm Roach, Schwartz & Associates recently filed a statement of claim at Ontario Superior Court against the provincial Ministry of Community and Social Services over the operation of a disability benefits program intended to provide necessities for severely disabled persons of very limited finances. Plaintiffs claim the government has established an application process that forces applicants to endure excessive, life-threatening delays (in many cases, more than 18 months) before applications are determined and benefits received. Often, determinations are made against applicants wrongly and without reasons. Ironically, the government also fails to provide standard disability accommodations applicants need just to access the program.
Crown brought a motion to strike the action in November. A few days ago the motion was granted. However, Cullity, J. has encouraged plaintiffs to amend their statement of claim, and the judgment provides a helpful blueprint to do so. But the case involves that old operations - policy wheeze, the two-part Anns test. The facts, as you'll see in the judgment, strongly suggest that the excercise of government discretion in this case to create policies, such as staff and funding cutbacks, has had a foreseeably devastating effect on operations, ultimately defeating the very purpose of the program. In this case, the exercise of discretion has made a mockery of stated legislative intent, which is to provide means for necessities of life to severely disabled Ontarians in dire financial need. The question: Is there sufficient evidence to overcome the Ann's test and claim abuse of public office/administrative negligence (more here).
A second hurdle - AND THERE ARE OTHERS! - concerns the application for relief under s. 7 of the Charter. The court advises plaintiffs meet the Chaoulli test, which requires the principle of fundamental justice at issue be (1) a legal principle (2) about which there is societal consensus that it is fundamental to the way in which the legal system ought fairly to operate, and (3) it must be identified with sufficient precision to yield a manageable standard against which to measure deprivations of life, liberty or security of the person."
With respect, such tortured analysis allows the court to stray way-y-y too far from the basic test, which ought to be simply:
What was the program intended to achieve? Is the program achieving its purpose? If not, has the government exceeded the scope of its discretion in wilfully creating policies affecting operations adversely and in a manner causing devastating, foreseeable harm, thus defeating the very purpose of the program?
Why you should care
Ontario is among the wealthiest provinces in Canada, a country that boasts long-tme membership in the G8 and, at one time at least, something of a world leader in the provision of health services. This case is of interest because of its potential application not only to other Canadian provinces and territories but to all nations grappling with the implementation of similar programs. This is an opportunity for THE WORLD to tell our leaders how we want to care for the weakest members of our respective societies.
Please review the judgment and e-mail any and all ideas and comments ASAP! to editor@bcdisabilities.co. We'll post them below for visitors, including Ontario plaintiffs who might join the action, disability advocates worldwide and the maverick attorneys bravely undertaking this difficult suit.
For more information about the case and law firm, contact:
Kikelola Roach
Roach,
Schwartz & Associates
Barristers & Solicitors
688 St. Clair Avenue West
Toronto, Ontario, Canada
M6C 1B1
Tel: 416-657-1465
Fax: 416-657-1511
E-mail: kroach@roachschwartz.com
Comments from editor@bcdisabilities (Jan. 24/08)
Suggested changes:
at para 7 - No time limit on Director's initial decision clearly causes foreseeable harm, especially to those not provided with reasons and for long periods of time.
at para 8 - 20 pgs. of Regulation AND 80 policy directives - looks excessive but you'd have to compare with similar legislation and probably in other jurisdictions.
at para 16 - judge wants you to particularize general allegations of inefficient and unnecessarily complicated procedures. List EACH of them. Put Crown on the defensive for EACH particular. This should be the heart and soul of the statement of claim. Make 'em jump.
at para 32 - Do SUGGEST as in Gorecki that OD-- is indeed isolated from other government funds and why this might be so.
at para 47 - Do SUGGEST that the very crtical nature of these benefits does indeed impose an obligation to legislate to provide emergency income support benefits especially in view of the delays. Support with expert evidence on the effects - physical and psychological - of waiting and wondering whethering the rent will be paid, whether there may be groceries for three months. (I could certainly testify to the fact that many of my visitors - occasionally from Ontario - refer NOT to their disabilities but to the agony of waiting and wondering, feeling like a criminal, while an overworked anonymous govt clerk they'll never meet decides their fate).
at para 49 - There MUST be something in the equitable doctrine of laches that would be of sufficient authority to support the notion of a new threat - endless, unjustified, Kafka-esque languishing - imposed by the exercise of govt discretion to make excessive cutbacks to staff and funding such that the program is no longer able to achieve its legislated purpose. At a certain point, policy exceeds govt discretion to affect operations, and that point has been reached in this case. The Anns test cannot be found to operate to support govt discretion when policy defeats legislative intent, which is to provide basic survival benefits to eligible claimants.
at para 52 - fundamental justice as merely a legal principle - With respect, the court in Chaoulli doesn't get out enough. Such an interpretation assumes wrongly that Joe Public would be able to name even one basic tenet of our legal system. However, while Joe may not wax poetic on the democratic principles of Magna Carta, if you asked him whether a three-month wait for basic life necessities when he already has one or, more likely, multiple disabilities represents anything close to natural justice, he'd spit in your eye and he'd be right! Delays and denials of these benefits (and be specific) are creatures of govt discretion (creating policy) in determining how the program will meet the legislative intent (operations), so in that sense, at least, the subject of the claim is indeed fundamental to the way in which the legal system ought fairly to operate. Might be good to compare how other jurisdictions track their performance with similar programs.
at para 56 - Separate various types of delays according to reasons. If reasons are not publicly available, it means the govt is not accountable to the public, which has a right to expect govt programs are properly administered - in this case, that eligible claimants are receiving these benefits in a timely manner according to legislative intent, AND it's a Charter breach if claimants have no way (no precedents) beyond reading the statute of preparing a case. Too often, these clever bastards hide behind health-info-is-confidential to conceal the devastating impact of their policies on the actual operation of the righteous-sounding program.
at para. 73 - Again, govt excercise of discretion over operations created a crisis so this was indeed acting wilfully.
Authorities that might assist -
Gosselin claim for relief - Here, the court might have found in favor of G. if her idiot law professor advocates running the file had not punched above their weight in the claim for relief. There was NO WAY judges were going to impose an expense like that on govt. Ask for something the court can actually give without offending the govt who might have recommended them to the bench. A declaration for the necessity of a reasonable deadline by which Director must issue a decision with reasons. I can't think of any other public program anywhere in the civilized world that would allow such discretion with necessities of life.
Return to first principles - There's an SCC insurance case that turned the insurance bar inside out about five years ago when Bev overturned an exclusion clause because, she wrote, 'the purpose of insurance is to insure accidents.' Something like that. A school bus accident. I don't have Lexis-Nexis but I think it starts with a D. It was a radical approach that would assist here.
Also, have a look at the two Justice Emmett Hall Reports, which led to national health care in Canada years ago. Include a few paragraphs to support legislative intent material.
Charles Dickens and the Court of Equity - Dickens did more for justice than the legal profession ever did. Quote the opening passage to his novel, Bleak House when you describe the waiting and languishing. The allusion will not be lost. And this IS VERY MUCH a Dickensian-like problem.
Ultimately, govt cannot have it both ways - discretion with respect to how to run a program and total disregard of the consequences - especially if the consequences are concealed from Joe Public, who probably has no idea people are waiting like this for benefits. If Ontario is anything like B.C., govt uses the 'confidentiality' argument to conceal the ugly truth.
That's all I can think of so far. I could actually find these authorities and send them to you if you like. Let me know.
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