Quixote's Horse: Workfare - What the Lawyers have Said

What the Lawyers have Said

Before we document the abuses served up by the notorious Social Benefits Tribunal, it is important that we should offer some legal context in the form of opinions on the case offered by the various lawyers involved. After all, as passionate as I am about the case, as thorough as my own research has been, there is more than a grain of truth in the old saw that a person representing himself has a fool for a client. I have sought formal written opinions from four Kingston lawyers: John Done (Kingston Community Legal Clinic), Chad Carter (Racioppo, Zuber, Coetzee, Dionne), Christopher Ecclestone (Ecclestone & Ecclestone LLP) and Richard Bourdeau (R. Bourdeau Legal Services).

The opinion of John Done is documented in the previous installment [Who Watches the Watchers? (part 2)]. Mr. Done is either in denial or has an hidden agenda since he continues to maintain the opinion that the case "has no legal merit" in spite of an April 2006 ruling by the Supreme Court of Canada that upheld an ODSP-Sudbury Community Legal Clinic appeal (Tranchemontagne v. Ontario (Director, Disability Support Program), [2006] 1 S.C.R. 513, 2006 SCC 14) that featured the identical legal arguments. John Done nonetheless maintains his position and most recently attempted (apparently successfully so far) to influence the Kingston Legal Aid Office to deny my current application for a Legal Aid Certificate. I was in the Legal Aid Office when the call was made.

In support of my first application for a Legal Aid Certificate in a letter dated April 19, 2001 and addressed to Peter Radley of Legal Aid, Chad Carter documented his preliminary recommendation regarding the legal merits of the case:

"There are certainly arguments to be made that the [Ontario Works] Participation Agreement violates the Charter. The argument that it violates international law is even stronger. I would advise a person of modest means to pursue this matter."

Mr. Carter went on to prepare absolutely nothing, then leave the firm of Racioppo, Zuber, Coetzee & Dionne without bothering to inform me and (according to a very reliable source) accepted a commission offered from the City of Kingston Social Services Department. Make whatever you like of those facts, gentle reader.

Let us move on to the real lawyers who are currently involved in attempting to secure a Certificate for representation at the Social Benefits Tribunal.

Christopher Ecclestone provided the first opinion in my current application for a Legal Aid Certificate:

March 18,2007

Legal Aid Kingston
507 Princess Street
Kingston, ON
K7L lC6

Attention: Area Director. Peter Radley C

Dear Mr Radley:

Re: Coppin, Wayne -9014-07. (our file # 9014-07)

I have met with Mr Coppin and have reviewed some of the material which he has compiled and prepared in the matter of his appeal of a Social Benefits Tribunal decision in his case (tribunal file # 0610-08908).

Mr Coppin has refused to sign a "Participation Agreement", which the policies enforced by the SBT require him to do as a condition precedent to receiving social benefits. He has no objection to complying with the terms of the "Agreement", but he strongly objects to the document being called an "Agreement" when he has no choice but to sign it if he needs social assistance.

The term "Agreement" suggests a consensus reached by parties of relatively equal bargaining power. By that definition there is no agreement between Mr. Coppin and the SBT. If the name of the document were changed to indicate the lack of choice, Mr Coppin would have no objection to signing it. The SBT either can not or will not change the name of the document.

Mr Coppin believes the requirement that he sign a document which purports to be an agreement in the absence of any bargaining power on his part and in the absence of consensus amounts to coercion, and that being coerced into signing an "Agreement" is contrary to his personal creed, and therefore constitutes a violation of his human rights under §1 of the Human Rights Code R. S. O. 1990c.H-19 which reads:

"Every person has a right to equal treatment with respect to services, goods and facilities, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, CREED; sex, sexual orientation, age, marital status, family status or disability. R.S.O.1990, c. H19, s.l; 1999, c. 6, s. 28(1); 2001, c. 32, s. 27 (1); 2005, c. 5, s. 32 (1).." [emphasis added]

The definition of "creed" as given in the Oxford English Reference Dictionary is as follows: "1. a set of principles or opinions, esp. as a philosophy of life (his creed is moderation in everything)" The following definitions relate to religious creeds.

Mr Coppin having maintained his strong belief that signing the mis-named "Participation Agreement" for years in the face of adversity supports the conclusion that his principles are strongly and genuinely held. There can be little doubt of the sincerity and bona fides of his creed.

Mr Coppin's argument is further bolstered by § 11 of the Human Rights Code which reads:

11. (1) A right of a person under Part I is infringed where a requirement, qualification or factor exists that is not discrimination on a prohibited ground but that results in the exclusion, restriction or preference of a group of persons who are identified by a prohibited ground of discrimination and of whom the person is a member, except where,

(a) the requirement, qualification or factor is reasonable and bona fide in the circumstances; or

(b) it is declared in this Act, other than in section 17, that to discriminate because of such ground is not an infringement of a right. R.S. O. 1990, c. R 19, s. 11 (1).

Idem

(2) The Commission, the Tribunal or a court shall not find that a requirement, qualification or factor is reasonable and bona fide in the circumstances unless it is satisfied that the needs of the group of which the person is a member cannot be accommodated without undue hardship on the person " responsible for accommodating those needs, considering the cost, outside sources of funding, if any, and health and safety requirements, if any. R.S. O. 1990, c. H.19, s. 11 (2); 1994, c. 27, s. 65 (1); 2002, c. 18, Sched. C, s. 2 (1).

§11 (2) prohibits the Commission, Tribunal or a court from invoking § 11 (1) (a) or 1 (b) to justify or permit the continuation of what would otherwise be a breach of § 11 unless it is satisfied that the requirement, qualification or factor is minimally impaired.

In Mr Coppin's case, the denial of Social Benefits flowing from his creed-based refusal to sign an "Agreement" which is not an agreement fails to meet the minimal impairment test. All that need be done to accommodate Mr Coppin's creed is to change the name of the "Agreement" to remove any suggestion of consensus. For example, the "Agreement" could be called an "Acknowledgement of Requirement to Participate".

Mr Coppin's case has a good foundation in law. This is a case which could only be brought by a person of modest means, since anyone of other than modest means would be disqualified from collecting Ontario Works benefits on other grounds. It may be that many people of modest means would, or even do, compromise their principles and sign the mis-named "Agreement" despite their beliefs. Mr Coppin has demonstrated quite clearly that he is not prepared to do that.

The Social Benefits Tribunal, and through it, the government of Ontario, is likely to oppose Mr Coppin -if necessary all the way to the Supreme Court. Mr Coppin will require substantial assistance from the Ontario Legal Aid Plan to make his case initially and to defend any successes against appeals.

The first hearing is set for 28 March, and I am advised (today) that the Ontario Works office has filed documents which are more than half an inch thick, and which Mr Coppin advises me are incomplete. I do not believe that I could be properly prepared to proceed on that date. I do not believe that the standard Tariff would provide enough time or resources to properly prepare for and argue Mr Coppin's case. This will not be a quick or simple matter.

I may be willing to assist Mr Coppin in making his argument provided that the Ontario Legal Aid Plan was willing to cover the time required at the Legal Aid Rate and to authorize disbursements as required. This case will almost certainly quickly exceed any applicable Tariff cap on hours, and I could not afford to fund the litigation entirely, nor am I willing to go on the record without written assurances from the Legal Aid Plan that I will be paid for time spent. I am not in the habit of over-billing clients, whether legally aided or not and I do not intend to start now.

Yours very truly,

Ecclestone & Ecclestone LLP
Per: Chris Ecclestone

Mr. Ecclestone clearly did his homework. In response, the Kingston Legal Aid Director, Peter Radley, offered up the following unbelievable rejection. Please pay particular attention to the Comments paragraph in which Mr. Radley blatantly states that "A person of modest means paying privately would not proceed with the matter due to the costs involved."

Notice of Refusal of Authorization Amendment

Date: March 29, 2007

Thomas Christopher Ecclestone
Barrister & Solicitor
1046 Gardiners Road
Kingston, ON, K7P 1R7

Client Name: Wayne Coppin
Client Number: CLT1025463
Certificate: CE54716520

On the basis of the information before me, this is to advise that I have refused your request to provide additional coverage on this certificate, specifically the request to add:

For representation at Administrative Board or Tribunal. Tariff maximum of 8 hours for all services prior to the first day of hearing other than attendance at hearing - and additional tariff maximum of 2 hours for all services other than attendance for each subsequent day of hearing.,
RE: APPEAL

The request for authorization/amendment is refused for the following reasons:
Other -Legal ineligibility

Comments:

Further services under this certificate will not be authorized. A person of modest means paying privately would not proceed with the matter due to the costs involved. Mr. Ecclestone: Please submit your account for the opinion.

If you have additional information to support your request, please contact me at this office. Your client may choose to appeal this decision to the area committee at this office by filing a notice of appeal in writing within 10 days of delivery of this notice.

P Radley
Area Director at Kingston
507 Princess Street
Kingston, ON, K7L 1C6
Telephone: 613/546-1179
Fax :613/546-5407
TTY -for: 416/598-8867
the deaf: 1-866/641-8867

Horrific. Mr. Radley is saying two things:

1. I am being refused because I am too poor to afford to pursue my legal rights
2. My creed based beliefs are a trivial concern or that my beliefs are not sincerely held

The reader is welcome to interpret Mr. Radley's shocking Comment as you see fit. However I strongly suspect that, had I been a Jew or a Muslim or Black, heads would be rolling (figuratively, I trust) or people would be taking to the streets en masse in expressions of outrage at such an humiliating, hate filled comment.

When I recovered from the shock and humiliation, I promptly appealed the hate filled decision to the Area Committee. The Appeal went ahead in April of 2007. And if you think the matter could not get any stranger, wait until you see what the Area Committee decided.

Much to my complete puzzlement, the Area Committee overturned the refusal but instead of leaving it at that and directing the issuance of the Certificate, the Area Committee stepped outside its mandate and demanded that I provide a second opinion, from a second lawyer, specifically addressing the Participation Agreement.

Trust me folks - it was hard enough finding the first lawyer in Kingston. This is a very small government town and few could be expected to even look at a case that the government clearly did not want to defend. Who can blame them? Lawyers who wish to find work in Kingston soon learn not to rock the boat.

Nonetheless, with the help of the Kingston Coalition Against Poverty, we had found Mr. Ecclestone. So I again turned to K.C.A.P. for help. Eventually a second lawyer was located.

Richard Bourdeau turned out to be just as supportive as Mr. Ecclestone, no doubt much to Mr. Radley's surprise and irritation:

August 14, 2007

Dear Mr. Radley:

Re: Coppin, Wayne
Certificate Number: CE54757877

I have met with Mr. Wayne Coppin regarding a second opinion on his claim before the Social Benefit Tribunal (SBT) which is adjourned until November 2007 [sic: now rescheduled for December 12, 2007]. I have also had the advantage of reviewing Mr. Chris Ecclestone's opinion letter.

My opinion would echo Mr. Ecclestone's opinion, with two major differences. I would consider the priority of the Ontario Human Rights Commission (OHRC) vis-a-vis the enabling legislation for Ontario Works (OW) and the comments of Justice Laskin J.A. in the Falkiner decision. Consideration must also be given to the decision in Tranchmontagne.

In Tranchmontagne, Tranchmontagne v. Ontario (Director, Disability Support Program), [2006] 1 S.C.R. 513,2006 SCC 14, it is stated clearly and unequivocally that tribunals are mandated to address human rights issues; "I therefore conclude the SBT has jurisdiction to consider the Code. The ODSP and the OW A can confirm that the SBT can decide questions of law."

The fact that the SBT is shying away from this direction must be challenged, and if not satisfactorily addressed then appealed to a court of competent jurisdiction. Mr. Coppin has brought a human rights issue before but the SBT has refused to address the challenge. It has adjourned his hearing until November. [sic: now rescheduled for December 12, 2007] As human rights issues are complicated and the SBT has few legally trained chairs Mr. Coppin would benefit by having legal representation to enforce his right to have a human rights claim heard.

In Falkiner, Falkiner v. Ontario (Ministry of Community and Social Services) 59 O.R. (3d) 481 [2002] 0.1. No. 1771 Justice Laskin (I.A.) stated that discrimination as a result of reception of social benefits is a ground to be read into the human rights code; "They support the conclusion that recognizing receipt of social assistance as an analogous grounds of discrimination under 2. 15 (1) would further the protection of human dignity." Mr. Coppin is not and has not been given the opportunity to seek legal advice because he is in reception of social assistance. Being forced to sign into a participation agreement in order to participate in Ontario Works benefits is a form of discrimination which enslaves Mr. Coppin. The fact that it violates his "Creed" is in addition to his rights to be treated equally before the law as any other citizen of Ontario.

Finally, the position of OW is that their enabling legislation supersedes all other legislation. This is a blatant error in law. The OHRC is the primary governing legislation in this province and all provincial laws must be in accordance with the Code.

Further, the Supreme Court of Canada is the final arbitrar of legal interpretation and it has recognized the role of both the OHRC and tribunals in enforcing the Code. Therefore, the refusal of the Ontario government to recognize both the supremacy of the OHRC and the role of the SBT in enforcing/arbitrating human rights issues must be challenged.

In my opinion Mr. Coppin has a defensible claim against OW, the SBT and the Ontario government for discrimination. The adjudication of his case will probably end at the Ontario Court of Appeal.

In conclusion, I would recommend that legal aid support Mr. Coppin and his attempt to have his human rights issues be resolved.

RICHARD BOURDEAU
File #398-001
RJB/ms
C.C. Wayne Coppin

Surely that would wrap it up, right? The Area Committee now had its second opinion and it was again supportive... in fact, more so and this time it even affirmed my actual legal position first documented in 1999-2000.

Wrong again.

Apparently Kingston bureaucrats really do believe that they are above the law and can do or say anything they damn well please. Apparently a few still do not know me. Please read the following cite from the Legal Aid Services Act - the legislation that governs Legal Aid in the province:

30. (1) An appeal lies to the area committee from the refusal of the area director to issue a certificate or from the area director’s cancellation of a certificate.

Appeal from area committee’s decision

(2) A further appeal lies to the officer or employee of the Corporation designated by the board of directors of the Corporation from the decision of the area committee dismissing an appeal under subsection (1) or refusing to approve the issuance of a certificate under subsection 28 (3).

Area director not to participate in appeal

(3) An area director shall not participate in any appeal from a decision made by him or her EXCEPT TO PROVIDE INFORMATION ON THE APPLICATION [emphasis added], to explain the reasons for his or her decision being appealed and to answer any questions from the members of the area committee respecting the application or decision. 1998, c. 26, s. 30.

Did you note subsection (3)? Just by way of reminder: the Appeal to the Area Committee was heard in April of 2007. Now note the dates of the following correspondence from Mr. Bourdeau's office. Note the clear indications of repeated interference by Mr. Radley in the local Legal Aid Office in blatant disregard for subsection 3 of the Legal Services Act. Mr. Radley's involvement must be confined to clarifying his office's position on the APPLICATION I made to the Area Committee... nothing else! Otherwise, there is a conflict of interest by definition. If I add that I was deliberately and repeatedly denied input or even access to the ongoing discussions indicated in the following correspondence and that the Legal Aid Office to date has refused to turn over the communication in question, then it is reasonable to conclude that Mr. Radley is aware of his breach of the Act and suspected that I would be aware of it too.

August 23, 2007

Peter J. Radley BY FAX: 613-5465407
Area Director
507 Princess St.
Kingston, ON K7L 1C6

To Whom It May Concern:

Re: Coppin, Wayne
CE#54757877

In response to your letter of August 21, 2007, I have read the participation agreement for the above-noted client. The specific clause you are referring to is the Declaration - stating that he, "Acknowledges...and that they (he) agree(s) to them." He objects in that being forced to agree to something without external (legal) consultation goes against his personal creed, and it obliges him to contract without the opportunity to seek independent legal advice.

Thank you for bringing my attention to this issue.

Sincerely,

RICHARD BOURDEAU
File # 398-00 I
RJB/aw

October 11, 2007

Mr. Peter J. Radley COPY BY FAX: 613-546-5407
Legal Aid Ontario Kingston
507 Princess St.
Kingston Ontario, K7L 1C6

Dear Mr. Radley:

Re: COPPIN, Wayne
CE#54757877

Further to my telephone conversation with a member of your staff, Mr. Coppin has two objections to signing the Ontario Work Participation Agreement.

a) He feels pressured for not having been allowed the benefit of independent legal advice.
b) He feels that his personal code and spiritual beliefs are being violation by being forced into signing a document that he disagrees with but is necessary to his personal well-being.

I would add that there is a sub-issue in that the Social Benefits Tribunal has refused to hear Mr. Coppin's complaint as a human rights issue, contrary to the dicta of the Supreme Court.

Sincerely,

RICHARD BOURDEAU
File #398-001
RJB/aw

Mr. Bourdeau's original opinion satisfied the requirements of the Area Committee, even though the requirements were well beyond the Committee's mandate. Yet here we have seen that Mr. Radley has been a busy little bee poking his nose into the process where the governing legislation specifically prohibits such interference.

Sure enough - the Decision of the area Committee was to refuse the certificate on the grounds that the case did not have sufficient legal merit. If you can make any sense of that decision in light of the documentation that I have posted here, then I would appreciate it if you dropped me an e-mail. Click the Main Menu item on the upper left of this page.

Naturally I appealed to the next level. I dropped off my Appeal to the Toronto Legal Aid office (per the protocol as instructed) at the Kingston office and have not received even an acknowledgement of that appeal. I pointed out the clear interference and also demanded that the Toronto office pursue a further investigation into allegations that Mr. Radley's documented statements and behaviours merit charges under Canada's so-called hate crimes legislation - a criminal offense.

Needless to say, this web site will have the latest developments as they occur.

Part 7: Legal Aid - Legal Treachery.

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What the Lawyers have Said

Part 7: Legal Aid - Legal Treachery.