Need Legal Aid? Get Stuffed!


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“Brenner said they were wrong and told them to get stuffed.”
Ian Mulgrew, Vancouver Sun [see below]

Aside from the perverse standards of journalism at the Vancouver Sun, the above indicates that the BC Court of Appeals is not willing to contribute to a humane notion of legal aid for the resource-deprived embroiled in civil cases.

While legal aid for criminal cases was not the issue, after deep cuts across the country to legal aid for victims in civil cases, the Canadian Bar Association wanted the courts to establish a standard of justice that offends the neoliberal budget cutters that are particularly harsh in BC.

People deserving legal aid include those facing unjust eviction, mothers reeling from deadbeat dads ignoring court-ordered financial support and scores of others find themselves unable to afford effective representation in civil matters.

Of course, the rich do quite well since they can afford counsel to pursue their legal issues. Civil legal aid, however, is becoming far less civil than it deserves to be.

And in one sense, it all comes down to freedom. Political philosophers talk about negative and positive freedoms. Negative freedom refers to a way of defining freedom where individuals are free from “needless” meddling by the state, where we are not regulated and impeded in our pursuit of our liberty. Hyper-capitalists, libertarians and neoliberal governments look for ways to keep society from interfering with our god-given right to go about our business, regardless of how many people or watersheds we abuse.

Positive freedom defines freedom as a way of enabling those who are socially disempowered to have access to opportunity to function as well as those who are socially gifted: often groups like white, upper or middle class, English speaking males. Positive freedom efforts include things like affirmative action, or using tax dollars to fund legal aid for those not wealthy enough to pursue civil legal justice.

Obviously these two conceptions of freedom are mutually exclusive in their pure form. They also form a core conflict in our society: deregulate to the point where we have no society or gather together social and financial resources to empower those who are structurally vulnerable, thereby undermining the power of the economic, social and political elites.

The Court of Appeals has chosen to reject this effort to pursue positive freedom. It is not an isolated incident and it allows a neoliberal regime in our province and country to continue gutting social programs that allow people who aren’t white men to have a better shot at success or even meaningful survival.

Legal aid not a right, court rules
B.C. Appeal Court judges quash lawyers’ bid to force government to pay civil legal costs of poor people
Ian Mulgrew
Vancouver Sun

The B.C. Court of Appeal has backed B.C. Supreme Court Chief Justice Don Brenner’s decision to kill the Canadian Bar Association’s landmark attempt to force governments to provide adequate civil legal aid to poor people.

In a majority ruling Monday, the court agreed with the province’s senior trial court judge and said he was also quite right to assess costs against the CBA.

Susan McGrath, past president of the bar association, said she was saddened because the decision means access to justice will continue being denied to those least able to help themselves.

“We’re disappointed we continue to confront procedural hurdles trying to bring this case,” the Ontario lawyer said in an interview. “We’re going to have to study the ruling and consider our options. We had hoped the courts would have been more responsive to this novel approach. We’re not giving up the fight.”

The Appeal Court said the association failed to meet even the minimum threshold for launching such an action — a reasonable claim.

“Although the action is intended to assist low-income members of the pubic and its spirit is commendable, I do not consider that the altruistic nature of the action should be afforded much weight until at least the [bar association] has established it can meet the minimal test of disclosing a reasonable claim,” Justice Mary Saunders wrote.

Supported by Justice Peter Lowry, she quoted the Supreme Court of Canada saying there is no fundamental right to access to legal services:

“Access to legal services is fundamentally important in any free and democratic society. In some cases, it has been found essential to due process and a fair trial. But a review of the constitutional text, the jurisprudence and the history of the concept does not support the respondent’s contention that there is a broad general right to legal counsel as an aspect of, or precondition to, the rule of law.”

(Justice Allan Thackray, the third member of the appeal panel, heard arguments in the case but retired in October before the decision and did not participate in the ruling.)

In a clear and well-reasoned judgment, Justice Brenner said the bar association was the wrong group to launch such a lawsuit, and the remedy it sought was far too sweeping. (The Appeal Court didn’t rule on whether the bar association was the proper body to bring such a lawsuit because it found its arguments had been so unpersuasive that that question didn’t need to be answered.)

“Instead of considering a specific statute or a specific administrative act or expenditure for constitutional compliance, this case would ultimately require the court to define a constitutionally valid civil legal aid scheme and order its provision by the [federal and provincial governments],” Justice Brenner wrote.

For almost two decades, legal aid across Canada has been a growing concern because of government cutbacks.

Provinces have curtailed legal aid services, narrowing the types of cases they cover, raising the eligibility criteria, making it harder to qualify.

At the same time, the federal government assumes little responsibility, with the primary exception of serious criminal matters.

People often have no legal assistance even when critical issues are at stake and no government is accountable.

The legal community fears we are creating a system for the rich and stacking the deck against those without resources, yet extensive lobbying has proved useless.

In 2002, the bar association launched this lawsuit. It chose B.C. for the unique test case because of the deep, deep cuts to legal services by the Liberal government when it first took office.

“Our concern has always been access to justice,” McGrath said.

The association filed a statement of claim in June 2005, alleging the provision of civil legal aid in B.C. is inadequate and those inadequacies amount to breaches of the Constitution and international human rights conventions.

It maintained that coverage was limited, that financial eligibility guidelines excluded many poor people, and that the services provided are too restrictive.

As the voice of some 36,000 members of the country’s legal profession, the association said it was the most appropriate party to bring such a suit.

It maintained it was unreasonable to insist that poor individuals — denied legal aid in cases where they are unjustly evicted or when they are threatened about the custody of their children — be required to mount constitutional challenges themselves on a case-by-case basis.

The association wanted court-mandated civil legal aid across Canada with judges deciding what was necessary while taxpayers footed the bill.

Brenner said they were wrong and told them to get stuffed.

He said there are other ways to tackle the problem facing the poor, and like the Supreme Court of Canada, suggested individual litigants could raise their need on a case-by-case basis.

The Appeal Court agreed that this lawsuit as put forward by the association was the wrong way to proceed.

“We knew there would be setbacks,” McGrath said. “But I don’t think people without the financial resources and often without the emotional resources should be expected to mount this type of challenge and argue this case before the court. We’re not giving up.”

imulgrew@png.canwest.com

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Stephen Elliott-Buckley

Post-partisan eco-socialist. at Politics, Re-Spun
Stephen Elliott-Buckley is a husband, father, professor, speaker, consultant, former suburban Vancouver high school English and Social Studies teacher who changed careers because the BC Liberal Party has been working hard to ruin public education. He has various English and Political Science degrees and has been writing political, social and economic editorials since November 2002. Stephen is in Twitter, Miro and iTunes, and the email thing, and at his website, dgiVista.org.

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3 thoughts on “Need Legal Aid? Get Stuffed!”

  1. This was sent to the Premier of Ontario Dalton McGuinty, the Minister of Community and Social Services Madeleine Meilleur, Hamilton Mayor Fred Eisenberger and Hamilton city councilor Bernie Morelli, via e-mail on Feb 24 08.

    My question to you and to myself is how do they get away with the callous and unjust manner that workers approach their clients with, at Ontario Works, ODSP and even the Social Benefits Tribunal?

    The answer is very simple. BECAUSE THEY CAN

    For the record I would like to state, I have seen many improvements to the SBT since a change of it’s Chair and I expect to see many more. I can’t say the same for Ontario Works and ODSP.

    The research shows when clients have contact with workers the response is not always the same. You could ask three different workers the same question and receive three different answers.

    If the worker doesn’t especially like you, they will simply ignore you. This means things like no return phone calls, ignoring verbal requests for benefits, requesting more than usual documents be brought in to prove eligibility and so on.

    If the worker really doesn’t like you, they will often do everything in their power to harass, intimidate and frustrate you into giving up and going away. This means things like ignoring written requests for benefits, telling you that the benefit doesn’t exist, denying benefits when you are entitled and no decision letters and so on.

    If the worker does like you, they will give you any of the benefits that you ask for if you entitled. This is only if the worker is aware of the benefits requested. Here is an interesting problem. The vast majority of the workers are not aware of benefits that are available. This even includes some of the excellent workers. Another problem is that the fast majority of clients don’t even know what the benefits are.

    ****All clients must document, tape record and video record everything, every time when dealing with any OW or ODSP staff.****

    The governments must, as a gesture of good will, give all Ontario Works and ODSP clients a written copy of the benefits that they say clients are entitled.

    This would be a first concrete step taken to start the process in eliminating poverty.

    Ontario Works Directive # 31.0 found at http://www.mcss.gov.on.ca/mcss/english/pillars/social/ow-directives/ow_policy_directives.htm or the:

    Ontario Disability Support Program Directives #s 9.1 to 9.19 Found at http://www.mcss.gov.on.ca/mcss/english/pillars/social/odsp-is-directives/ODSP_incomesupport.htm

    The only real remedy to this problem is for clients to sue their respective governments. For Ontario Works it would be their local municipal government and the Province of Ontario and for ODSP it would be the Province of Ontario.

    In the Ontario Works Act it states No personal liability

    77.(1)No action or other proceeding in damages shall be instituted against the Ministry, the Director, a delivery agent, an officer or employee of any of them or anyone acting under their authority for any act done in good faith in the execution or intended execution of a duty or authority under this Act or for any alleged neglect or default in the execution in good faith of any duty or authority under this Act.

    In the Ontario Disability Support Program it states No personal liability

    58. (1) No action or other proceeding in damages shall be instituted against the Ministry, the Director or a delivery agent, an officer, employee of any of them or anyone acting under their authority for any act done in good faith in the execution or intended execution of a duty or authority under this Act or for any alleged neglect or default in the execution in good faith of any duty or authority under this Act. 1997, c. 25, Sched. B, s. 58 (1).

    This means that a client could sue for damages if bad faith could be proven.

    It is called bad faith; a person who intentionally tries to deceive or mislead another in order to gain some advantage.

    It is called willful blindness or willful deceit.

    The government must get rid of the discretionary powers it allows workers in the OW and OSSP, Act, Regulations and Directives.

    You’re either entitled to benefits or your not. It is extremely simple but the government will not do it until it gets sued for Bad Faith.

    It’s so simple; all the government has to do is to look at how the federal government implements its Employment Insurance application process, and they are saving millions.

    To receive benefits you must go online to apply, with exceptions for some disabled clients. You fill out a simple template and the next thing you experience is a cheque in the mail. If the federal government trusts us why can’t you?

    Ron Payne
    Welfare Legal
    Hamilton, Ontario.
    E-mail welfarelegal2004@hotmail.com

  2. WHO IS REALLY COMMITTING THE FRAUD AROUND HERE

    The general public has no idea what the system is really like. They think fraud is ramped in Ontario Works and ODSP. Here is something to think about and it is just the tip of the iceberg according to our research.
    The provincial government says welfare fraud is around 2%.
    Who is really committing the fraud around here?
    The federal government says income tax fraud is 13%

    Ontario Works staff charged in $1.3million Fraud
    By Sarah Elizabeth Brown Tuesday March 4,2008
    Chronicle Journal http://tbay.ok.bc.ca/stories.php?id=95704

    Government ODSP worker charged in $585,000 fraud case.
    By SooToday.com Staff Wednesday, November 14, 2007
    SooToday
    http://www.sootoday.com/content/news/full_story.asp?StoryNumber=28485
    http://odsp.blogspot.com/2007/11/former-government-worker-charged-in.html

    93.7 million dollars in corporate welfare
    Linda Leatherdale March 7,2008
    http://money.canoe.ca/Columnists/Leatherdale/2008/03/07/4938021-sun.html
    http://theoldcraftsman.com/blog/?p=387#comment-174
    Premier Dalton McGuity is handing over a 9.7 million dollar corporate welfare cheque to Kellogg. Kellogg’s profit was $1 billion. Also Ford got a $55 million cheque and is now cutting shifts, while GM got $29million and is also cutting shifts.

    $150 million called corporate welfare for a profitable industry.
    Rob Ferguson January 10, 2008
    Queens Park Bureau http://www.thestar.com/Business/article/292631
    The Ontario Government has earmarked $150 million to encourage pharmaceutical companies to do more drug research and manufacturing in the province.

    Ron Payne
    Welfare Legal
    Hamilton, Ontario
    E-mail welfarelegal2004@hotmail.com

  3. Media Release

    The Evidence Is In

    Poverty’s Smoke and Mirrors, Part 2

    To see part 1 http://www.special-need-child-canada.com/povertys-smoke-and-mirrors.html

    The article above went out to the main media and approximately 65 other print news media starting September 21 2008. It was also put on the World Wide Web.

    To my knowledge it was only printed in 3 Ontario news papers in the Letters to the Editor section.
    1) Hamilton’s, Mountain News
    2) Hamilton’s, Stoney Creek News
    3) London’s, The London Free Press

    Thank you to these three papers for caring enough about people that live in poverty to print this article.

    As of today November 06 2008 the Ontario government has only posted old outdated directives dated Sept 2001.
    http://www.mcss.gov.on.ca/mcss/english/pillars/social/directives/ow_policy_directives.html

    Obviously these directives are of no use to anyone simply because of the fact they are outdated and the ministry is now using the July 2008 up to date directives but has not shared them with the public.

    You may remember Welfare Legal was so offended by this abuse we offered $100.00 to anyone that could produce a copy of the latest Ontario Works directive 7.4.

    As of this date no one has collected the $100.00. Welfare Legal now has a copy of the new directives that the government has not shared.

    We take the position that this is the most serious kind of abuse by our government to implement new policies but not allow those most in need to have access to them. The only reason the government has given for this abuse is that the Ontario Government has not prepared a French version of these directives.

    This is a Human Rights violation, among others, to implement a secrete version of the directives and not share them with the public and not to have a French version available.

    As we have stated before the Ontario government has in fact been cutting the benefits of Ontario Works, (OW) and the Ontario Disability Support Program, (ODSP) recipients without letting the general public aware of these cuts.

    The latest cuts that have become public are the cuts to benefits to grandparents that are caring for their own grandchildren, who many had, have been apprehended by the Children’s Aid Society (CAS). The grand parent’s complaints were heard loud and clear the government seems to have withdrawn these policy changes.

    The new directive 7.4 and others shows more cuts that the public is not aware of yet.

    One of these cuts shows that the Ontario government no longer supports volunteering here in Ontario. In the old outdated directives dated September 2001, the government used to give a small benefit to those recipients that had to do volunteer work as a condition of eligibility for OW. These cuts also affect those who wish to do volunteer work and are disabled on ODSP as well.
    Are volunteers no longer needed here in Ontario?

    These cuts which are ongoing, have been made to help pay for the meager increases to OW and ODSP of 2%. They are also part of the government’s bigger plan, to upload the cost of OW and ODSP from the municipality to the province and to pay for its poverty reduction strategy.

    At the end of the day the government will save millions of dollars in benefits that the former Mike Harris Tories said people on OW and ODSP were entitled to. Does this make sense to anyone?

    This story gets much, much worse. It turns out that the aboriginal community in Ontario had the foresight not to allow its members to be subjected to the policies and procedures put in place by the Mike Harris government, when they bought the draconian computer program from Anderson Consulting now Accenture. The cost of that program was $400 million and rising. This program was designed to cut people off of benefits automatically, with no human contact. There seems to be 2 classes of people being governed differently here, and what are the costs?

    It would seem they were allowed to have their own computer program made up by a private company called AD Morrison.
    http://www.admorrison.com/

    A private professional researcher contacted Welfare Legal in an attempt to collect the $100.00 offered for the latest Ontario Works directive 7.4 and alerted us to a Pandora’s Box. You will see on the home page of AD Morrison’s site there is a link to “Latest Directives”. This link contained a third set of OW directives that was not available to the general public.

    After Welfare Legal contacted the ministry to see if this in fact was the latest and new directive 7.4, the ministry contacted us with a reply that had nothing to do with our request. Then out of the blue this link was taken of the site.

    After gathering all the evidence we soon learned that the Ontario government had not been keeping these new directive from the public since July 2008, they had in fact been hiding them starting in December 2005 and no one new about it. At least no one that has come forward so far.

    There has been no response from any legal clinic or private paralegal in Ontario showing that they new about this breach of the Human Rights Code by our provincial government. If anyone was aware of this why didn’t they take it to the media? Does nobody care about this abuse? Does nobody care about eliminating poverty?

    It is interesting to note that the government has even changed the directive numbers to confuse us even more once we were allowed to become aware of them.

    September 2001 shows directive 31.0, the out dated benefits that we all are aware of.

    December 2005 shows
    7.3 is EMPLOYMENT AND PARTICIPATION BENEFITS
    7.4 is COMMUNITY START UP AND MAINTENANCE BENEFIT

    July 2008 shows
    7.4 is EMPLOYMENT AND PARTICIPATION BENEFITS
    7.5 is COMMUNITY START UP AND MAINTENANCE BENEFIT

    For a copy of these directives
    http://owcorruption.blogspot.com/

    How can the Ontario government say it is attempting to alleviate poverty when it is secretly cutting the benefits of those most in need? (Reverse Robin Hood)

    Ron Payne
    Welfare Legal
    Hamilton, Ontario
    Phone 905-253-0205
    E-mail welfarelegal2004@hotmail.com
    Blog http://welfarelegal.blogspot.com/

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