Quixote's Horse: Workfare - Social Benefits Tribunal

The SBT - the fix is in

The Social Benefits Tribunal (SBT) is (at least in theory) a quasi-legal 'arms length' creation by the infamous Mike Harris Conservative government. Under the Ontario Works legislation, once you have been denied benefits by the local OW office, filed the requisite Request for an Internal Review (within 10 days), received the almost automatic upholding of the Case Manager's decision, then and only then may you Appeal your denial to the SBT. Many victims of this abusive process surely breathed a sigh of relief at this point in the expectation that finally there was a body setup to fairly hear the case and rule in an objective and judicial manner.

C'mon, folks. We are talking about the notorious Mike Harris Ontario where "all animals are equal but SOME animals are MORE equal than others". Put the kids to bed, let out the cat and get ready for an horror tale that will chill your soul. If it sounds vaguely familiar, think of the documented abuses of the cold war Soviet state, or communist China, or any thoroughly corrupt third world dictatorship. Sure - that should ring a bell quite nicely.

Welfare tribunal stacked with Tory hacks who get $70,000 a year to just say no - Bruce Livesey, Toronto Star 2.11.99

The Mike Harris changes to Ontario's social assistance legislation were never about "saving taxpayers' money" or helping the economically disadvantaged to "transition to meaningful employment" or anything remotely similar. The following brief article sums up the reality succinctly:

Tories Creating Subclass of Slaves March/99

Toronto based Omega Direct Response Inc. will fill 200 of 925 new jobs at a Sudbury Centre with Workfare placements. Omega will receive 1.35 million dollars for training and Community and Social Services Minister Janet Ecker says this is getting people jobs.

Protesters who descended on the centre disagreed. Gary Kinsman of the Sudbury Coalition for Social Justice called it a subsidy for business and virtual slave labour as Workfare placements do not get the minimum wage or a guarantee of basic rights and conditions. Antipoverty activists said working people were being used as slaves, being given to whichever company plays golf with Mike Harris.

Workfare in Canada has been condemned by the United Nations, and any responsible government would obey and stop this practice. The Harris government has no plans to give up Workfare and part of their election platform is a huge expansion of the program that will entirely alter the fabric of society and create a subclass of serfs lacking minimum pay and basic rights. -Citizens on the Web News

Of course, that kind of abuse could be easily enough spun in the media to placate the somnolent Ontario public, but what would happen when the victims shook off their shock and started knocking on the doors of Ontario courts. Judges are not particularly impressed by media spin and human rights abuse sold as ideological "common sense". The Harris solution to this potential glitch in their mad totalitarian agenda was to legislatively invent their own quasi-legal court; the Social Benefits Tribunal. The SBT would replace that annoying Social Assistance Review Board (SARB) that had the nerve to rule in the famous "Spouse in the House" Faulkner case that social services and the Ontario government had no right to poke their intrusive noses into the bedrooms of social assistance recipients.

s.67(2) The Tribunal shall not inquire into or make a decision concerning,
(a) the constitutional validity of a provision of an Act
or a regulation; ...

Since the courts had consistently ruled that Tribunals, in spite of their lack of legally trained Adjudicators, could be relied upon to return an objective and thus fair finding of fact. And since the SBT would not be allowed to consider the Canadian Charter of Rights and Freedoms or the Ontario Human Rights Code in its decisions, then there was only one more piece of the puzzle required to effectively render the single mother or disabled appellant defenseless: simply appoint untrained Tory sympathizers as SBT Adjudicators to fudge the facts and deny the Appeals.

Worked like a charm. What? You don't believe me? That only happened in the USSR or Chile or Burma or ... not here in Ontario, right?!

Wrong. Here is what the Toronto Star uncovered and exposed way back in 1999. Apparently far too few in the province cared. Even less probably understood the threat to themselves. "First they came for... and I said nothing... then they came for me".

Trial and terror
Welfare tribunal stacked with Tory hacks who get $70,000 a year to just say no
BY BRUCE LIVESEY 2.11.99

...

Not surprisingly, other Tory appointees to the SBT embrace the Common Sense Revolution. Many, like Evelyn Dodds, are right-wing ideologues. A former Thunder Bay alderman and unsuccessful Tory candidate in the 1995 election, Dodds was appointed to the SBT just over three years ago. She came to the job with a reputation for deriding the poor.

She has been quoted as saying that it's "tantamount to a subsidized bordello" if single mothers who live in subsidized housing allow their boyfriends to move in. She has also said that "the plain fact is some of us don't want to pay $2,500 for a social service funeral." Dodds also said welfare recipients should have no privacy rights.

Other Tory appointees are more notable for their lack of relevant experience. Winston Clarke, for example, was a North York pharmacist when appointed in 1997. At the standing committee on government agencies, he thanked his "Almighty Creator eternally" for being there, called Washington, D.C., the "chocolate city" and evidently didn't have a clue about the tribunal's function. "I have not done any research or any investigation" about the job, Clarke admitted.

And then there's the conflict of interest surrounding Douglas Collins, who was a Tory candidate in the 1990 Ontario election in Nepean and later sought a PC federal nomination. Prior to his appointment last year, Collins had spent 24 years working for the Ministry of Community and Social Services, most recently as a program supervisor. To take the job at the SBT, Collins went on a leave of absence from the ministry. When he appeared before the standing committee on government agencies last year, one MPP highlighted this conflict of interest -- of having a ministry employee sitting on a judicial body ruling on that same ministry's decisions.

Collins has been a disastrous tribunal member. One eastern Ontario legal clinic has received seven decisions from him, lost five and is appealing all five. "We usually win 95 per cent of our cases," says one of the clinic's lawyers, who spoke on the condition of anonymity, hoping to avoid any repercussions to clients.

How bad are Collins' decisions? In one case he accepted that a 27-year-old mother of four who was suffering from depression was eligible for family benefits, but then said her case would be reviewed in one year. Yet no legislation gives Collins the power to demand such a review. In another case, Collins denied family benefits to a 40-year-old mother who had held one week's work in 24 years, partially on the grounds she seemed capable enough to have raised two children. He overlooked the fact that one of her children assaulted and verbally abused her. "If Collins would go back to his old job I would be happier," says one caseworker.

Other tribunal members have displayed a lack of compassion for -- or even interest in -- people who come before them. The Metro Toronto Chinese and South East Asian Legal Clinic recently brought to the tribunal two elderly Asian men whose immigration sponsorship had collapsed. Both men had been denied welfare.

One was a victim of familial abuse, the other seriously ill and suffering from depression after a family tragedy. Their lawyers say the tribunal members asked rude questions or looked bored, staring at the ceiling and fiddling with jewelry while their clients testified. "They asked outrageous things," relates one lawyer. "There was no compassion or understanding." At one juncture a tribunal member asked one of the men why he hadn't sued his own daughter for assistance.

The article does not mention the truck driver and Tory bag man who was rewarded with one of the $70,000 per year plums or that the Law Society had published that many of the SBT decisions at the time were "legally incoherent".

The performance of Kingston Community Legal Clinic Director John Done as reluctant and unprepared representative during the first Tribunal Hearing on this case back in 2000 has already been documented sufficiently.

The following is the complete text of the SBT Decision in 2000. I have cleaned up most of the spelling and grammar errors that it contained. The Request for Reconsideration follows the SBT Submission.

SOCIAL BENEFITS TRIBUNAL APPEAL DECISION
Hearing Date: August 15, 2000

APPELLANT: WAYNE A. COPPIN
RESPONDENT: ADMINISTRATOR, DEPARTMENT OF SOCIAL SERVICES
FILE NO: 9906-03687
DATE OF ADMINISTRATOR'S DECISION: May 3, 1999
DATE OF APPEAL: June 2, 1999
Ontario Works Act Sections 1, 3, 4, 7(1), 67 (1)(2) and O. Reg. 134/98 as amended, Sections 17 (1)(2), 18(1), 20(1)(3), 27(1)(2) and 35

ISSUE

The issue to be determined is whether the Administrator's decision to refuse the Appellant assistance under the Ontario Works Act for failure to complete and sign a Participation Agreement Application For Assistance: Part 2 is correct.

REASONS

The Appellant applied for assistance under the Ontario Works Act in March 1999. On 30 March 1999, the Appellant submitted an Application for Assistance: Part 1. The Appellant also completed a Participation Agreement, Application for Assistance: Part 2. The Appellant refused to sign this document, indicating in the place for his signature that he "will participate but not sign this form".

The Appellant alleges that the participation requirements of Ontario Works, otherwise known as employment assistance activities, are coercive and equate to slave labour, and are therefore offensive to his creed. The Appellant alleges that the requirement to sign the Participation Agreement, Application for Assistance: Part 2 amounts to discrimination under Section 1 of the Ontario Human Rights Code based on his creed. The Appellant's creed would appear to be based at least in part on his religious beliefs, the thoughts expressed in the statements of a number of religious leaders with respect to provisions of the Ontario Works Act, as well as certain international instruments including, The International Covenant on Economic, Social and Cultural Rights, and Article 23(1) of The Universal Declaration of Human Rights.

The Appellant is requesting that the Tribunal determines the requirement to sign a Participation Agreement, which effectively means sign an application, as set out in the Regulation, discriminates against him due to his creed. He is requesting the Tribunal to provide a remedy in the form of an exemption to the regulation.

The Administrator's refusal of assistance for the Appellant under the Ontario Works Act is based on the Appellant's failure to sign the Participation Agreement, Application for Assistance: Part 2 and thus, his failure to complete an application for assistance under the Ontario Works Act. In support of the decision, the Administrator cited section 7 of the Act, and sections 18(1), 20(1) and 20(3) of Regulation 134/98 as amended made under the Ontario Works Act.

In accordance with Section 28(11) of the Act, the onus is on the Appellant to satisfy the Tribunal that the decision of the Administrator is wrong.

The Tribunal has reviewed all of the evidence, including the testimony of the Appellant and that of the Administrator's witness, as well as the submissions of the parties. The Tribunal has also considered the provisions of the Ontario Works Act, 1997 and Regulation, the Ontario Human Rights Code, The International Covenant on Economic, Social and Cultural Rights, and Article 23(1) of The Universal Declaration of Human Rights. After this review, the Tribunal determines that the Appellant has failed to establish on the balance of probabilities that the decision of the Administrator is wrong.

In considering this matter, the Tribunal finds the following sections of the Ontario Works Act and Regulation 134/98 as amended of particular relevance.

Section 1 of Ontario Works Act speaks to the purpose of the Act as follows:

1. The purpose of this Act is to establish a program that,

recognizes individual responsibility and promotes self-reliance through employment;
provides temporary financial assistance to those most in need while they satisfy obligations to become and stay employed;
effectively serves people needing assistance; and
is accountable to the taxpayers of Ontario.

Section 3 of the Act sets out the two forms of assistance provided under the Act, employment assistance and basic financial assistance. Section 4 discusses employment assistance as follows:

4. Employment assistance is assistance to help a person to become employed and stay employed and includes,

community participation; and
other employment measures, as prescribed.

Section 27(4) of Regulation 134/98 as amended sets out that every participant is required to participate in one or more employment assistance activities in accordance with sections 28 and 29 of the Regulation. Section 27(2) sets out six categories of individuals for which the Administrator shall temporarily defer the requirement to participate in employment assistance activities. The appellant does not fall under any of these categories.

Section 7(1) of the Act states that income assistance shall be provided in accordance with the regulations to persons who satisfy all conditions of eligibility under the Act and regulations.

An applicant for assistance under the Ontario Works Act is required to complete and sign an application. Section 17(1) of regulation 134/98 as amended states that an application for basic financial assistance shall be made to the Administrator in the form and manner approved by the Director of Ontario Works. Section 17(2) provides clarification for the types of information, which the administrator may require an applicant to provide as part of the information necessary to determine and verify the applicant's eligibility for basic financial assistance.

Section 18(1) of Regulation 134/98 as amended refers to the requirement for an application for income assistance to include a Participation Agreement as follows:

18. (1) An application for income assistance, other than an application related solely to temporary care assistance shall include a participation agreement for the applicant and for his or her spouse included in the benefit unit [Emphasis added]

Section 20 of the Regulation refers to when an application is considered to be complete, in part, as follows:

20. (1) An application for basic financial assistance and all accompanying forms shall be signed by the applicant and the applicant's spouse included in the benefit unit. [Emphasis added]
(3) An application is not complete until the application and all accompanying forms, agreements and consents have been completed and signed and have been provided, together with any required verification of information, to the administrator. [Emphasis added]

In the opinion of the Tribunal, the Regulation is clear on these two points. The application for income assistance under the Ontario Works Act includes a Participation Agreement and an application is not complete until the application and all accompanying forms have been completed and signed.

The Administrator provided a witness, who is a case manager in the Kingston office, who testified with respect to the application process. the witness testified that there are two parts to the application for income assistance under the Ontario Works Act. Part 1 of the application captures basic personal and financial information. Part 2 of the application is the Participation Agreement. This is consistent with the document provided by the Administrator on 1 November 1999 (Exhibit R-2). This document, which the Appellant refused to sign on 30 March 1999, is identified at the top of the page as Participation Agreement Application for Assistance: Part 2.

The Tribunal is satisfied based on the evidence adduced and the provisions of the Act and Regulation that the application for assistance consists of two parts as set out supra.

The Appellant's counsel submitted that because there are two different participation agreement documents in evidence, or specifically, two different versions of a Participation Agreement, the Tribunal does not know if these documents have been approved by the Director as required in Section 17(1) of the Regulation. The document referred to supra as part of Exhibit R-2 bears the identification of the Province of Ontario and the Ministry of Community and Social Services. It is clearly identified as referred to supra as Part 2 of the Application for Assistance. It has a form number and a date of implementation at the bottom of the page as well as a form number reference for the French version of the document. The document in Exhibit R-3 appears to be a computer print out of the Appellant's information set out in the Participation Agreement, which would have been completed when he was previously in receipt of assistance. While in a different format, the information fields are as those set out in the document in Exhibit R-2. This document is also identified as Part 2 of the Application for Assistance. It appears that the document was computer produced for the purpose of updating the Appellant's information.

The Tribunal does not have valid reasons to believe that these forms are other than forms in the prescribed manner as contemplated in Section 15 of the Act. It is therefore not unreasonable to presume on the balance of probabilities that the Director of Ontario Works has approved their use. It was open to the Appellant and his counsel to rather than engage in speculation as to the validity of the documents, to adduce evidence that they do not have the approval of the Director. The Appellant failed to do so. Speculation is not a valid basis on which to base a decision.

The Appellant has made much of the fact that while refusing to sign the Participation Agreement, he committed to complete the negotiated employment assistance activities. He also pointed out that while in receipt of interim assistance, he has in fact been adhering to those requirements. He stated that he offered to provide a signed memo containing only the negotiated terms relating to a structured job search.

However, the Tribunal does not find that the Appellant's actions, or his suggested alternative satisfies the legislated requirement for a signed application. The Tribunal can find no provisions in the Act or Regulation providing the Administrator with the authority to provide income assistance to an applicant in the absence of an application completed and signed in the prescribed manner. The use of the word "shall" (as opposed to the word "may") in sections 18 and 20 clearly indicates the intent of the Legislators to include the Participation Agreement as part of the Application for Assistance and that the application be signed before it can be considered as being complete and assistance provided.

The inclusion of the Participation Agreement in the Application is consistent with the purpose of the Ontario Works Act as set out in Section 1 of the Act and as referred to supra. The Participation Agreement is the applicant's recognition and acceptance at the application stage of an individual's responsibility to achieve self reliance through employment and of their obligation to become and stay employed. It is an acknowledgement on the part of the applicant of an agreement to undertake certain employment assistance activities to achieve these goals.

As such, the Participation Agreement is a tool required by the Director to exercise her mandate to assist individuals to become self reliant and employed. The use of a standardized application form enables the Director to maintain financial and administrative accountability for public funds. Prescribing a mandatory application form was necessarily incidental to achieve this purpose.

Section 35 of Regulation 134/98 as amended requires the Administrator to refuse income assistance to an applicant who fails to comply with a condition of eligibility other than those referred to in sections 32, 33, 34, or 36. The failure to complete an application is not one of the enumerated exceptions.

The Tribunal therefore determines that the Appellant has not completed and signed an application for income assistance under the Ontario Works Act and is therefore ineligible for such assistance.

As previously mentioned, the Appellant is alleging that the requirement to sign the Participation Agreement (Part 2 of the Application for Assistance) represents discrimination under Section 1 of the Ontario Human Rights Code based on his creed. The Appellant has stated that his creed includes at least in part his religious beliefs, the thoughts expressed in the statements of a number of religious leaders with respect to provisions of the Ontario Works Act as well as certain international instruments including, The International Covenant on Economic, Social and Cultural Rights, and Article 23(1) of The Universal Declaration of Human Rights.

The Appellant is requesting that the Tribunal find the requirement to sign a Participation Agreement, which effectively means sign an application, as set out in the Regulation, discriminates against him under Section 1 of the Ontario Human Rights Code based on his creed. He is requesting the Tribunal to provide a remedy in the form of an exemption to the Regulation.

The Appellant has also made reference in his submissions to the Regulation violating his rights under the Charter of Rights and Freedoms. Subsection 67(2) of the Ontario Works Act provides as follows:

67.(2) The Tribunal shall not inquire into or make a decision concerning,
the constitutional validity of a provision of an Act or a regulation; or
The Tribunal therefore determines that it does not have the jurisdiction to deal with the Charter issue raised by the Appellant in his submissions.

The Tribunal has given careful consideration to the provisions of the Ontario Human Rights Code, including Section 1, while reviewing the Administrator's interpretation and application of the provisions set out in the Ontario Works Act and regulation with respect to requiring the Appellant to complete and sign a Participation Agreement Application For Assistance: Part 2. Section 1 of the Ontario Human Rights Code states:

S. 1. 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 handicap.

The Tribunal is satisfied that the Administrator has interpreted and implemented the provisions of the Act and Regulation with an even hand and in a non-discriminatory fashion. The Act and Regulation require that all applicants for income assistance under the Ontario Works Act except those applications solely for temporary care assistance or otherwise temporarily exempted due to Regulation, complete and sign an application, which includes a Participation Agreement. The Act and Regulation do not provide the Administrator with discretion to vary from this requirement. The testimony of the Administrator's witness is that the Administrator requires all applicants, with the exception of those applications solely for temporary care assistance or otherwise temporarily exempted due to the Regulation to sign a completed application, which includes a Participation Agreement. The Tribunal is satisfied that the Administrator has not attempted to deny the Appellant for reasons set out in Section 1 of the Ontario Human Rights Code, including his creed. The Tribunal is therefore satisfied that the Administrator has not acted in a discriminatory manner toward the Appellant in requiring him to sign a completed Application, which includes a Participation Agreement.

The Appellant is in essence, requesting the Tribunal to find that the provisions of the Ontario Works Act and Regulation with respect to employment assistance activities and the requirement to sign the Participation Agreement, which is Part 2 of the Application For Assistance discriminates against the Appellant under Section 1 of the Ontario Human Rights Code based on his creed. The Appellant is requesting that the Tribunal provide a remedy, which represents an exemption from the requirement set out in the Regulation.

The Tribunal acknowledges that it is settled law that administrative tribunals in Canada are required to interpret legislation in a manner that is consistent with human rights legislation. This of course would include the Social Benefits Tribunal and the Ontario Works Act, 1967. [sic] Human rights legislation is quasi-constitutional and has primacy over ordinary legislation. Therefore, all other legislation is subject to human rights legislation and in the case of conflict, the human rights legislation prevails unless the conflicting legislation expressly provides otherwise.

In considering in general the question of a Tribunal's jurisdiction, the Tribunal finds informative the descriptions with respect to decision-making powers set out in Administrative Law in Canada [footnote deleted], which states in part, as follows:

An administrative tribunal has no inherent powers to make orders or to take proceedings that may affect interests of members of the public. Being created by statute, it has only those powers conferred on it by statute or, in the case of a non-statutory tribunal, by its constating documents.

...A tribunal may, indeed must, determine the scope of its own powers. It may interpret its enabling statute to ascertain whether it has the power necessary to perform a specific act.

... A tribunal has not only authority but also a duty to determine the scope of its powers. It cannot refuse to act because it is not sure whether it has the power it is called upon to exercise. It must decide whether it has that power... Lack of power cannot be waived, nor may parties by their acquiesce confer on a tribunal power that it does not have.

...A tribunal may issue only such orders as it is authorized to make. It may not, in the absence of authority, order anyone to do anything. If the constating documents specifically describe the types of orders that may be issued, the tribunal may not make an order of another type. If the statute empowers the tribunal to enforce compliance but does not specify the types of orders that may be made, any order that is consistent with the intent of the Act and is not solely punitive may be made. [Footnotes omitted]

As set out supra, the jurisdiction of a tribunal normally is determined by statute. Tribunals are created by statute, and they are established in order to administer or carry out provisions of particular legislation.

The Social Benefits Tribunal was established pursuant to the provisions of Part IV of the Ontario Works Act, 1997 wherein it is set out in subsection 60(2) that the Tribunal shall conduct those hearings and carry out those duties that are assigned to it by or under the Ontario Works Act or any other Act, which would include the Ontario Disability Support Program Act, 1997, and any Regulations made under those Acts.

In considering its jurisdiction in this matter, the Tribunal looks to its enabling Acts. In particular, the Tribunal has considered the provisions of subsection 67(1) of the Ontario Works Act, which sets out those matters that may be appealed to the Tribunal, with exceptions to this general rule set out in subsection 67(2) of the Act.

Subsection 67(1) of the Ontario Works Act sets out the jurisdiction of the Tribunal as follows:

67.(1) The Tribunal shall not make a decision in an appeal under this Act that the administrator would not have the authority to make. [Emphasis added]

The Tribunal has determined that the Administrator is not given the authority under the Act and Regulation to vary from the requirement that with the exception of an application for temporary care assistance, an applicant must complete and sign an application for assistance, which includes a Participation Agreement. The Tribunal further finds that the Act and Regulation do not confer on the Administrator the authority to determine that a provision of the Act or Regulation discriminates against an individual for reasons set out in Section 1 of the Ontario Human Rights Code.

The Tribunal is respectful of the Appellant's right to question whether the provisions of the Act or Regulation infringe on his human rights. Regretfully, however, after having regard for the Appellant's arguments and the Ontario Human Rights Code the Tribunal determines that it does not have the jurisdiction to make a determination.

The Tribunal is precluded under the provisions of subsection 67(1) of the Act from making a decision in an appeal under the Act that the Administrator does not have the authority to make. The Tribunal therefore determines that it does not have jurisdiction or discretion to decide whether a provision of the Act or Regulation discriminates against an individual for reasons set out in Section 1 of the Ontario Human Rights Code. The Tribunal similarly does not have jurisdiction or discretion to provide the remedy requested by the Appellant, which is an exemption from the Regulation.

The Tribunal notes that discretion is not absolute or unfettered and Tribunal Members are not free simply to decide as they please. Tribunal decisions must be made within certain basic parameters, including that set out in its enabling statutes and regulations.

The Tribunal's determination is consistent with the decision of the Federal Court of Appeal in MacNeill v. Canada (Attorney-General). [Footnote omitted] The Court upheld the decision of the appeal board after considering the issue of whether an appeal board established under the Public Service Employment Act had the jurisdiction to apply the Canadian Human Rights Act ("the CHRA") in adjudicating an appeal under the Public Service Employment Act. The appeal board had held that it had no jurisdiction to determine whether the employer's decision to release a disabled employee violated the CHRA. The Court upheld the decision of the appeal board. Robertson J.A. writing for the majority found that the Board lacked jurisdiction to apply the CHRA because both human rights issues and human rights remedies were beyond its statutory jurisdiction. An application for leave to appeal to the Supreme Court of Canada was dismissed without reasons.

It is open to the Appellant to make application to the Ontario Human Rights Commission for a ruling on his allegations.

ORDER

The Tribunal affirms the administrator's decision. The Appellant has not satisfied the Tribunal that the Administrator's decision to refuse him income assistance under the Ontario Works Act for his failure to complete and sign an Application For Assistance is wrong. The Tribunal further determines that it does not have the jurisdiction to decide whether the provisions of the Ontario Works Act and Regulation with respect to the requirement that the Appellant sign the Participation Agreement, Application For Assistance: Part 2 discriminates against the Appellant for reasons set out in Section 1 of the Ontario Human Rights Code, and does not have the jurisdiction to provide the Appellant with the remedy requested.

[signed]
John Morrison
Presiding Member

Sneaky... and legally incoherent. John Morrison managed to concoct what is in effect a circular exercise in legal sophistry. Along the way, he simply adjusted his finding of fact to suit his predetermined Decision, cherry picked (devoid of legal context) seemingly supporting legal case cites while simply ignoring more recent or pertinent cites within my Submission. He acknowledged that he had actually considered the Ontario Human Rights Code but conveniently failed to note that the Respondent did not offer the required physical proof to the Tribunal that requiring a signature on Part 2 of the OW application is "reasonable and bona fide" [remember, the signature is already on Part 1 confirming eligibility], then promptly ruled that the Tribunal had no jurisdiction to invoke the Code. Uh huh...

Planet Earth to the SBT: Morrison's attempt to argue that the "even application" of a requirement that is offensive to the creed based beliefs of a member of a group protected under the Code is thus not discriminatory would get you laughed out of an high school debating class... at least when I went to school. If the requirement meets the threshold of offensive to this Christian (and perhaps millions more around the world) then an "even application" of that offensive requirement to everyone does not make it less offensive under the Code.

Interestingly enough, this is the exact same position that the current Respondent's case rests upon in Round 2 of this unbelievable tale. In all fairness, perhaps that Respondent also missed the real point: human rights legislation does not exist to protect or justify the will of the majority or the powerful. It exists to protect the minority from the tyranny of the majority. The Code does not require that the Respondent agree with the Appellant or vice versa. The Appellant does not have to be liked or even seen as particularly co-operative. The Code and its supporting jurispudence related to accomodation is quite clear. Either cough up the required actual evidence in support of an exemption to the requirement in law to accomodate or accomodation of the applicant's Creed based beliefs is required by law. Failure to do so today can get you a criminal charge under Canada's infamous hate laws. It is that simple. Class dismissed.

As I noted in the hastily drafted Request for Reconsideration, "the Tribunal Decision is nothing more than a common variation on the so-called Nuremberg Defence ("I was only following orders."). It was unacceptable in post-WWII Germany and it is equally unacceptable in Ontario today." Here is the Request for Reconsideration (rejected, of course):

REQUEST FOR RECONSIDERATION

The Appellant has a serious case to present that is not frivolous and vexatious that the Regulation requiring The Appellant's signature on a portion of an application that offends The Appellant's creed based beliefs is ultra vires under principles of common and administrative law and the Ontario Human Rights Act.

The Tribunal has failed to properly weigh and consider the factual evidence submitted both in writing and orally by the Appellant.

The Tribunal admits "that it is settled law that administrative tribunals in Canada are required to interpret legislation in a manner that is consistent with human rights legislation." In fact, s.47 of the Human Rights Code obliges the Administrator to proceed as if the offending provision were not in the regulation.

The Tribunal argument that "it can find no provisions in the Act or Regulation providing the Administrator with the authority to provide assistance to an applicant in the absence of an application completed and signed in the prescribed manner" is irrelevant. It is the Ontario Human Rights Code that has primacy and not the OWA and Regulations.

The Appellant repeatedly asked the Respondent to offer proof to the Tribunal that requiring a signature on Part 2 of the OW application is "reasonable and bona fide". An assertion is not enough. Legislative authority is not enough. An opinion offered by the Tribunal is not enough. The legal tests for "reasonable" and "bona fide" are quite stringent. The Ontario Human Rights Code places the onus on the Respondent to provide verifiable proof 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." The Appellant in his summation statement clearly pointed out that there was no such verifiable evidence before the Tribunal.

The Tribunal has also erred in law in its determination that the Tribunal "...does not have the jurisdiction or discretion to decide whether a provision of the Act or Regulation discriminates against an individual...". In fact the Ontario Human Rights Code demands it. [NOTE: This assertion was later confirmed by the Supreme Court of Canada in Tranchemontagne, April 2006.]

The Ontario Board of Inquiry in the matter of O'Neill and Coles v Ministry of Transportation (1994) 27 CHRR D/405 found at 13:

"By virtue of s. 47(2) of the Code, it is no defence that the Ministry... action was authorized or even required by s. 2 of Regulation 744/82."

The Board agreed that it did not have the jurisdiction to make a general declaration that a law conflicts with either the ... Code or the Charter and then ordered the Ministry to cease applying the impugned regulation to same-sex couples under the Code's general award power (s. 41(1))

The basic authority for the statutory arguments that the Appellant is prepared to argue at Reconsideration are unambiguously presented in CRO Standard Memo STA-001. As the Tribunal notes in a slightly different context, "it is settled law". The Tribunal Decision has ignored the volumes of jurisprudence and in effect invited the Appellant to seek redress from the Ontario Human Rights Commission. This abrogation of established tribunal responsibilities is unacceptable.

There is no guarantee of a timely access to justice from the OHRC. Indeed, a related Complaint has been filed with the OHRC for more than a year. The OHRC has yet to assign an investigator. The courts have upheld recent complaints related to abuse of process filed against the OHRC. The Appellant will provide these case cites if required. There are calls for a Judicial Review of the OHRC and its alleged misuse of s. 34 provisions of the Code. Again, the supporting documentation is available upon request. This Tribunal has the legal authority and the moral obligation to act in this matter. In light of the immediate and dire consequences to the Appellant, a failure to act denies the Appellant natural justice. Justice delayed in this case is not merely justice denied. It is a de facto sentence of death.

The Appellant notes on page 3 of the Decision that the Appellant has been "adhering to those [Participation Agreement] requirements". In fact the Appellant repeatedly testified that he had exceeded those requirements.

Counsel has advised the Appellant to respectfully advise the Tribunal that these errors in law and in the finding of fact are not exhaustive but are more than sufficient to support an appeal to the courts. In fact, it may be argued with all due respect that the Tribunal Decision is nothing more than a common variation on the so-called Nuremberg Defence ("I was only following orders."). It was unacceptable in post-WWII Germany and it is equally unacceptable in Ontario today. With all due respect, the Appellant notes that the Tribunal decision in this case may be summed up this way: a circular exercise in legal sophistry.

The Appellant respectfully asks that this request for a Reconsideration Hearing be granted. The Appellant will provide additional evidence and argument in support of the case should the Social Benefits Tribunal grant this request.

The Appellant also requests that the Tribunal consider the consequences to the Appellant of the Decision in making a decision regarding this Reconsideration request. The Appellant was forced to use all but $50.00 of his remaining cash to make a partial payment on an outstanding utilities bill. An application for an Order granting Interim Benefits is included with this request for Reconsideration. With no current source of income the Appellant will be made homeless in short order. The Appellant has given evidence that he is not equipped, either psychologically or physically, to survive for more than a few days on the winter streets of Kingston. There is no shame in a Christian accepting martyrdom for his beliefs, however the Appellant respectfully submits that there is no compelling legal or ideological reason for that to happen in this case.

Next time the saga continues as we turn the microscope on Round 2 of this outrageous abrogation of both justice and YOUR human rights. Stay tuned, folks.

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Table of Contents

The SBT - the fix is in

ISSUE

REASONS

ORDER

REQUEST FOR RECONSIDERATION