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Basic income judicial review: A view from the gallery

in Community/Health/Local News/Poverty Reduction by

Monday, January 28. Outside it’s bitterly cold, winds swirl, and an Alberta Clipper is expected to bring up to 20 cm of snow. In Osgoode Hall’s courtroom number three all is calm and well-ordered. Tiers of dark wood benches line the room below a vaulted ceiling and an elaborate chandelier.

But there’s an air of expectancy: Basic Income is having its long-awaited day in court, and not just any court, but the Ontario Superior Court of Justice.

The applicants are Dana Bowman, Grace Marie Doyle Hillion, Susan Lindsay, and Tracey Mechefske. Dana and Grace are in the gallery. They are being represented by Mike Perry, a qualified but not practicing lawyer. He’s dressed in robes borrowed from Lindsay lawyer Jason Ward. Mike is acting pro bono. All the other costs of bringing a case — filing fees, photocopying and printing, administrative support, expert fees and insurance — have been covered through a GoFundMe campaign launched last August. (As the hearing begins the amount raised sits at $9,770; the next day it will reach its $10,000 target, a total of 117 having made contributions).

Mike Perry.

The case is being brought against the Ontario government, represented by a team of four, led by Christopher Thompson, counsel, Crown Law Office. They, it’s safe to say, are not acting pro bono. The legal team and all of the government’s court expenses are being paid for by you, me, and other Ontario citizens.

Presiding are a panel of three judges, led by panel chair Justice Julie Thorburn. They sit on high in black robes and red sashes. Stacks of bound documents a foot-high (some government, some thanks to that GoFundMe campaign) are in front of them.

Completing the scene is the gallery, which, aside from this Advocate scribe, contains a CBC and a Toronto Star reporter, and Basic Income supporters and advocates from Lindsay, Hamilton, and even (I learn) Thunder Bay. Observing from the back corner are Mike Perry’s partner, Jill, and their two children, Abigail (3) and Gabriel (under a year old).

All in the gallery are silent and attentive (well, with the occasional exception of Gabriel). A number of people lean forward as they follow the proceedings.

It’s Mike Perry, representing the applicants, who leads off. For 80 minutes he takes the justices through the facts of the case, sets out the issues, and presents the law and legal precedents underpinning the request that the court quash the government’s decision to kill the Basic Income project.

Perry argues the government decision is reviewable by the court, and that the decision is unfair, irrational, and made in bad faith.

Occasionally one or another of the justices asks a question, looking to pare arguments down to their essences and to clearly define terms.

As Perry proceeds, never does he let the court forget how the broken commitments have affected real people, not only Dana, Grace, Susan and Tracey but all 4,000 who in good faith signed up for the research project.

The quote in the opening lines of the “Factum” document, sets the tone: “The words of Justice Pardu best describe this application. ‘This application is brought on behalf of a large, marginalized, vulnerable and disadvantaged group who face profound barriers to access to justice. It raises issues that are basic to their life and well-being.’”

After Perry sums up there’s a brief recess and then it’s the government’s turn. The lead counsel  sets out the government’s position: that the decision to cancel the program was a policy choice not subject to judicial review; and that even if determined to be reviewable it was not made in bad faith or irrational.

A lot seems to hinge on what you’d think is a simple phrase: “up to three years.” To the government lawyer, the signed documents stating participants would receive income for ‘up to’ three years, just meant the program might go that long. It wasn’t a guarantee.

The judges are having none of it. “That’s a very slender read for 4,000 vulnerable individuals,” is Justice Fred Myers’ response. “It’s not what it means to an average person.” Justice Thorburn asks, “Why didn’t you just say, ‘This program may only last two months’?” For both it seems clear the program was designed to run for the full three years.

Later, when the government lawyer claims the justification for cancelling was that basic income implemented across the province would be too expensive, the judges again seem unconvinced by the logic.

In her report later that day Toronto Star reporter Laurie Monsebraaten would give an account of  the rebuke from the bench: “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 whether or not they should? . . . Nobody is suggesting the government . . . (had to) do anything after the three years.’”

After three hours, all that remained was for the government to wrap up. With the snow outside already swirling, this observer headed for Union Station and the return to Lindsay.

Afternote: The judges are reserving judgement. It will all be decided on dispassionate consideration of the the points of law.

Will the court decide it doesn’t have the power to quash the government decision? Hard to know, though if it does, Mike Perry is ready to launch a class action civil suit.

Did the government act unfairly, irrationally, and in bad faith? The view inside the courtroom was unquestionably in the affirmative.

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Jamie is a retired teacher and Chair of the Kawartha Lakes Library Board. For The Lindsay Advocate he is reviving the 'Friends & Neighbours' column he wrote for the Lindsay Post, as well as writing a column on the library’s contributions to the community.

7 Comments

  1. Great overview of the proceedings at the Ontario Supreme Court day for Basic Income. Like Universal Healthcare that Tommy Douglas fought for 5o years ago, Basic Income trial is critical to test, learn and develop to insure we can bridge the gap and not have generations of families in poverty. Great work BI Team and thx Mike Perry for your vision and concern for this great cause.

    • I disagree. We have more than enough comprehensive data to write legislation, including from the WHO, the In From the Margins report and the Manitoba study. We don’t need to pay six figures to more researchers to collect limited local data on a sample size too small and specific to be reliable. We need to write law – now – to protect the poor. Federal law.

  2. I have never been more proud to be a resident of Kawartha Lakes/Lindsay than January 28 at Osgoode Hall, witnessing Mike Perry speak on behalf of our recipients of Basic Income. I was grateful too to see first-hand that when we believe our government has acted in bad faith we have a process for remedy. Thank you Mike and thank you Dana, Grace, Tracey, and Susan and all the BI supporters who are making the government accountable. In the end the basic income pilot might be cancelled but you have shown a dedication to fairness and good faith that has brought this community together in common cause — and no government can cancel that.

    • I will be surprised if Mike succeeds with a judicial review but even more surprised if he does not succeed to get damages for his clients in a civil suit. I suspect he may win the battle for a few but lose the war for the nameless, faceless hoards who die in poverty.

  3. Mike Perry is the CEO of the City of Kawartha Lakes Family Health team so whoever funds his salary there is paying for his time in court.

    Would that be everyone who pays taxes, including beneficiaries of the Basic Income pilot? Just playing devil’s advocate. Everyone loves Mike.

    I did not support the pilot because 1) the sample size was too small to be reliable for the purpose of writing legislation, 2) we already have sufficient data to write legislation, 3) basic income law should be federal, and 4) it left the majority of poor in dire poverty for three years while a poorly designed study collected more data we don’t need; it put off, yet again, dealing with what really needs to be done – writing law.

    We have comprehensive data from the WHO, the Manitoba study and the In From the Margins report. We don’t need to pay six figures to more researchers. We need to write and implement law.

    I have a question, if anyone is qualified to answer. When the Crown argued that its decision was not subject to review because it was a policy decision, was its claim that there is no jurisdiction under the law to review government policies and policy decisions? If so, what is the precedent or statute that argument is based on. Anyone?

  4. My daughter went to college all based on this Basic Income. She worked as a dishwasher, and this opportunity made her want to educate herself to find a more sustainable job. These days you rarely get hired if you don’t have an education. She was thrilled at the prospect of a new beginning for her future. Then, not even in her first semester, but after registering for college, it was all ripped away.

    Couple that with the grants being taken away as well, she is now devastated. She will have to go back to a minimum wage job. At night I can feel and hear the stress in her voice. And, she cries. It’s heartbreaking. A future has been destroyed.

    She was deserving of this chance. Her grade average was over 90% in her first semester. Things aren’t going as well her second semester. Too much stress and heartache are on her mind. And, she still cries. She puts it all on herself. She blames herself.

    You know what!? I don’t blame her. I blame Doug Ford. Hopefully with him hurting our youth in such a manner, they will all remember when it comes time to vote.

    As her mother, seeing her pain, I cry.

  5. Doug Ford is an arrogant fool! During his Campaign he literally made a promise to keep the basic income pilot program running for the entire duration and he looked forward to seeing the results! As soon as he was elected bam he said the complete opposite and ripped it away! People tried to get the Federal Government to step in and our Prime Minister basically said no go fend for yourselves! How sad is that our Prime Minister doesn’t even give a shit?! Doug Ford doesn’t care about you! He only cares what’s better for him and his finances! Low income people, foster children and youth, veterans, the disabled, post secondary students, and this list of his attacks can go on! When will it ever be enough of his irrational behaviour! When will the Government step in and say stand down! This is Canada, I thought we were better than this but clearly not!

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