Doug Ford and Bonnie Lysyk have grown into a strong tag team with one common opponent: rising welfare costs.
Their common remedy: restricting the right of appeal of those claiming disability payments.
Armed with criticism from the Auditor General, the Prime Minister moves quickly to disarm the Independent Tribunal for Social Benefits. Restricting the right to appeal would reduce the number of applicants on welfare lists and allow Ford’s Tories to cut costs without paying a political price to redesign the program or redefine eligibility.
Now experts in the field are talking about Lysyk’s logical leaps. They fear that their “value for money” audits have imposed Lysyk’s own cost-cutting values on core legal values - music for Ford’s progressive conservative government as it targets spending on social services.
The emerging debate raises important questions about how seemingly esoteric high-level political disputes can dramatically affect people at the street level – especially those with disabilities who are in need of welfare. When the Auditor General’s Office puts its own accounting prism on the judicial process, it is actually examining the jurors.
“This is so terribly wrong that this vulnerable group seeking basic financial assistance – the most vulnerable among us – should basically lose their rights of appeal,” said George Thompson, a former assistant secretary and retired judge involved in state investigations reforms passed on social assistance.
You don’t just hang the judge for finding an injustice, Thompson said, adding, “My difficulty is when (Lysyk) says the solution here is to just reduce the right to appeal.”
While the Auditor’s Office sets the cost of an independent lawsuit for poor people, it does not calculate the human or social cost of denial of much needed benefits to people with disabilities – $ 1,169 per month (up from $ 707 for Ontario Works regular benefits) ). It is not as if the auditor detected fraud committed by unskilled applicants, but quite the opposite – too many people with disabilities were not getting the benefits they were legally entitled to.
Christine Pedias, a spokeswoman for Lysyk in the Auditor General’s office, declined to comment on this column. In her 2020 report, the auditor publicly admitted the PC government’s stated intention to phase out the benefits tribunal that enables people with disabilities to apply for payments for the Ontario Disability Support Program (ODSP).
“The cost-effectiveness could be achieved if the number of ODSP appeals were reduced,” the report states dryly. The government has “initiated a review of the Ontario tribunals, including the Social Benefits Tribunal … (and) possible reforms to the ODSP Appeals Process and Tribunal”.
As documented in a previous column, the Ford government tacitly gutted the Social Benefits Tribunal and reduced its ranks to about half by refusing to reappoint many of its experts. This clandestine war of attrition with judges has resulted in fabricated arrears – a self-fulfilling scenario where justice is delayed and justice is denied, according to the independent monitoring group Tribunal Watch Ontario.
Nicko Vavassis, a spokesman for Attorney General Doug Downey, did not deny the increasing number of vacancies, but countered that the government is trying to make the best use of limited resources: “We are working with Tribunals Ontario to discuss and discuss judicial resources at tribunals ensure that current resources are used efficiently and effectively. “
Yet the problem of a tribunal forced to operate at half strength is only half of it. The government’s bigger goal is to get rid of the pesky welfare tribunal and replace it with more approachable jurors.
A 2019 report by the auditor criticized the fact that the existing tribunal overturned around 60 percent of the ministry’s decisions. Instead of focusing on a problematic decision-making process in the gut of the bureaucracy, Lysyk proposed that the tribunal be gutted.
Ontario needs an “appeals framework that improves the consistency of disability decisions between the department and the appellate body,” its report notes, approvingly, adding that BC’s stricter tribunal model “removes less than five percent of the appeals it has heard on disability decisions,” has canceled. ”
Fords Tories took the notice and readily agreed to “review the appeal frames in other jurisdictions through March 2021,” the auditor’s report said.
Now Ontario is ready to import the model of a toothless tribunal from BC, thanks to legal overreach and excessive suggestions from the auditor, says Mary Marrone, former director of legal at the Income Security Advocacy Center – and like Thompson a member of Tribunal Watch Ontario.
“The government has accepted her recommendation … despite the fact that it goes well beyond its mandate and areas of expertise,” said Marrone. “What she doesn’t understand is that the Social Benefits Tribunal is the regulator. So if there is a disagreement, the government has to obey the rules … not the other way around.”
Rather than correct its own wrong decisions at the source, Ford’s Tories embrace the auditor’s proposal to waive the right of appeal. It’s wrong thinking.
A similarly fateful move met with sharp public criticism last week: the commission examining Ontario’s COVID-19 response strongly suggested that Ford’s Tories had made a mistake by accepting Lysyk’s recommendation that the criteria for to change the inspection of nursing homes.
The government accepted the 2015 auditor’s advice to “prioritize” inspections based on complaints and critical incidents and switched to “risk-based” inspections to clean up their backlog – at the expense of annual comprehensive inspections. This compromise left “an incomplete picture of the state of infection prevention and control as well as emergency preparedness,” argued the commission chaired by Frank Marrocco, adding: “This is an important loophole.”
On Monday, Lysyk dismissed criticism of her 2015 proposal to restructure nursing home inspections as a “misrepresentation of our work”.
But Tribunal Watch’s Marrone says if the chartered accountant exceeds her mandate and acts like an instant expert, it has ramifications: Much like nursing home inspections, court courts are deadly serious.
“The consequences of this could end up being just as dire as the consequences of your ill-informed long-term care recommendation,” says Marrone.
Lately even Ford has questioned Lysyk with this sarcastic comment on a COVID-19 report she released last month: “I’m really glad the Auditor General has a health degree and has become a doctor in the last year or something . “
It goes without saying that you don’t have to be a doctor to be an auditor. However, this is essentially what the examiner said in a 2019 review by the Social Benefits Tribunal:
“We also found that tribunal members do not need to have a medical background,” her report said seriously – albeit wearily.
Ford and Lysyk share a similarly short-sighted vision of controlling the cost of social service at the expense of the independence of the judiciary and the rights of people with disabilities.
Based on the evidence, the auditor continues to exceed her accounting mandate. But it is the Prime Minister who paves the way – and who remains accountable to the electorate.