Basic income class action lawsuit dismissed, appeal still possible

By Roderick Benns

Tracey Mechefske, Dana Bowman (plaintiffs), with Mike Perry (lawyer), and Roderick Benns (Advocate publisher.)

A Superior Court of Justice judge has dismissed the Ontario Basic Income Pilot class action lawsuit that was initiated by four Lindsay residents.

The current Conservative government cancelled the Ontario Basic Income Pilot in one of the first policy decisions the government made when it came to office in 2018 — despite a campaign promise to let the three-year pilot play out.

The pilot was initiated by the Province in 2017 under the Liberal government of Kathleen Wynne. It was set up in three areas – Hamilton region, Thunder Bay area, and Lindsay. Almost 4,000 people were involved, with 1,840 participants from Lindsay. It was set to run for three years. Payments ended prematurely in March of 2019, leaving hundreds of people scrambling.

Dana Bowman, Grace Marie Doyle Hillion, Susan Lindsay, and Tracey Mechefske, all from Lindsay, argued through their lawyers that the early termination of the basic income payments amounted to “a breach of contract, a breach of undertaking, negligence…and a breach of section 7 of the Canadian Charter of Rights and Freedoms — and that as a result they have suffered damages.

Much of the class action lawsuit case depended on defining the basic income pilot as a “contract” between the province and the pilot participants, based on the fact that the government’s own documents repeatedly stated it was a “three-year pilot.”

However, Justice Stephen Bale didn’t agree. “In my view,” he wrote in his statement, “the facts pleaded, as supplemented by the terms of those documents, do not support a contractual relationship. The BI Pilot was a social benefits program with a research component. In these circumstances I conclude that it is plain and obvious that the statement of claim does not disclose a reasonable cause of action for breach of contract.”

Bale referred often to the government’s actions as a “core policy decision” for which Ontario may rely “upon Crown common law immunity.”

The judge also noted that Bowman and the other plaintiffs said in their statement that Ontario had undertaken to make the payments for three years, “in the context of a novel basic income research study,” and that they made fundamental life decisions “in reliance upon the promise that those payments would be made.”

Many people upgraded their housing situation and signed leases, began buying healthier food, got more reliable transportation, and went back to school, among other big life changes.

“They say,” writes Bale, “that the deprivation stems from the discretionary winding down of the payments, after the policy decision to terminate the pilot was made.”

But he says what the plaintiffs’ theory amounts to, then, “is that they relied upon what they say was an undertaking,” and while the giving of an undertaking by government may be relevant to a private law remedy, “the plaintiffs have provided no authority for the proposition that such an undertaking can form the basis of a constitutional right to a continuation of the payments.”

Tracey Mechefske, one of the four plaintiffs from Lindsay, says she is “disappointed but not surprised by the decision.”

“I still believe basic income is the answer to poverty, homelessness and personal progress.”

She also thinks it’s still attainable “anywhere but Ontario, while Ford is in power.”

“I lost faith that anyone in a place of power would do the right thing when money and power are concerned. The vulnerable sector, including the working poor, have been ignored in good times and continue to be now when we need it most,” she says.

The Basic Income Canada Network released a survey report, Signposts to Successin March of 2019, documenting the experiences of recipients in the pilot. It provided compelling indicators of lives remarkably changed for the better.

Responses from more than 400 recipients showed that the pilot was working — enabling women and men to get and keep jobs, start businesses, pursue education and training, overcome barriers and improve health and well-being for themselves and their families.

For instance, 58 per cent improved their housing situation, 34 per cent found the basic income supported employment by affording transportation to work, child care or ability to start or expand a business, and 32 per cent of respondents were able to go back to school or upgrade their skills.

Mike Perry, a local lawyer and social worker, initially took on the task of launching the class action lawsuit. Later the Toronto law firm of Cavalluzzo LLP took over.

Perry was also disappointed in the decision.

“I know the brave Lindsay plaintiffs respect the court, but this ruling must be so hard for the people who signed up for the pilot and took the risk to join. They must feel like the system is against them,” he told the Advocate.

Perry said there “must be a path for justice when governments pull the financial rug out from under people, especially people struggling to make ends meet and living with disabilities who were promised payments in return for their participation and made changes to their lives.”

He is talking to the Toronto law firm about appealing the decision.

 — Full disclosure: Roderick Benns is a member of the Basic Income Canada Network and was a supporter of the Ontario Basic Income Pilot.

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