Basic income judicial review: A view from the gallery

Jamie Morris

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).

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 judgment. 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.