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Simon Shields, LLB

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4. Eligibility Review Officers

(a) Overview

The above is not to say that ODSP Directors have no general document or evidence-demanding authority. ODSP law has created a specific class of worker, known as "eligibility review officers" ("EROs") [Act s.46], who have additional powers of investigation into 'past and present' eligibility. These include search-warrant-like powers of 'administrative demand' for documentation against both applicant/recipients and third parties (eg. banks, employers, etc) who may possess such materials [Reg s.54].

However NO such broad documentary "demand" or "warrant" powers are allocated to non-ERO workers, who perform the day to day work of ODSP administration. Their authority is limited to requests for information (and as discussed above, 'proof' of identity and date of birth) legally required to determine ongoing eligibility - from claimants and from third parties (via Consents). Regular ODSP workers have no direct legal authority to compel production of documents (ie. evidence) from claimants or third parties. Care should be taken then in such situations to determine the status of the worker who is making the demand: are they a regular worker or an ERO?

The name "eligibility review officer" is misleading. When an ERO gets involved in a file it is almost always because there are serious credibility concerns with respect to eligibility information provided by the claimant. The detailed "demand" authority and powers of EROs - mostly as they relate to investigating PAST eligibility - are addressed in more detail in Ch.14: "Fraud and Prosecutions". ERO involvement is usually a prelude to the consideration of criminal or other prosecution.

Also, as noted in s.3(g) above ("Consents to Disclose and Verify Information"), while regular workers can use written 'consents' signed by the claimant (and members of the benefit unit) to obtain third party "information", usually this is actually executed by an ERO.

That said, ERO involvement can certainly bear on ONGOING eligibility for income support. That is the issue addressed in this section.

(b) EROs and On-going Eligibility

Get one thing clear from the start: satisfying an ERO demand "as such" is NOT a condition of eligibility. While a legitimate information eligibility request MAY be contained WITHIN an ERO demand, by far most ERO demands do not effect eligibility because:
  • they typically relate to PAST eligibility;

  • they typically involve demands for documentation and EVIDENCE [see the discussion at s.3 above: "The Legal Problem: Information versus "Verification of Information" versus "Evidence"] as opposed to legitimate eligibility "information" requirements.
Thus, in terms of on-going welfare assistance eligibility ONLY, the primary concern is to distinguish - and satisfy - ONLY the legitimate information demands contained within any ERO demand.

As to the "other" ERO demands a prudent claimant should seriously consider whether they are into the realm of criminal concerns (see Ch.14 "Fraud and Prosecutions") at this point and - if so - seek competent criminal counsel promptly.

In those (relatively rare) instances were an ERO demand is limited to requests for legitimate s.12 or s.14 eligibility requirements respecting PRESENT and on-going eligibility, where ongoing eligibility is essential, and where any related criminal risk has been considered - it is likely that those proper requests should be complied with. The same can be said for those individual aspects of a multi-faceted ERO demand which themselves are legitimate for on-going eligibility purposes.

Again - failure to comply with an ERO demand with respect to PAST conditions of eligibility, or for evidence in excess of that required to establish eligibility, is not a failure which can properly justify refusal of on-going assistance - though you will likely have to fight it on appeal (see Ch.12 "Appeals and Other Remedies - especially the section on "Interim Assistance").

HOWEVER - life is not so simple. Failure to satisfy legitimate ERO demands which are UNRELATED to on-going eligibility, can still have serious legal consequences unrelated to on-going eligibility. "Obstructing" an ERO officer in the legitimate performance of their duties can ground prosecution of a provincial offence [Act s.59(3)] (see Ch.14 "Fraud and Prosecutions").

5. Home Visits

(a) Overview

Another means available for a ODSP Directors to verify "initial or ongoing" eligibility information is the "home visit" [Reg s.10(1)]. This is an anecdotally notorious technique often thought of in the context of the "spouse-in-the-house" rule and looking for men's shoes in closets. While still legally available it is used much less frequently today - likely because homes selected for "home visits" can only be determined "on a random basis" [Reg s.10(2)].

ODSP may - with or without notice - request home visits of applicants or recipients in order to verify eligibility. Thus a recipient may simply answer a door-knock one day and find themselves faced with a request to enter. Refusing the request is "legal" in terms of trespass law, but not without other legal consequences (see below).

(b) Nature of a "Home Visit"

As a legal "search", "home visits" are in the nature of physical observation - NOT informational inquiry - and must be restricted to things within "plain view" in the dwelling unit (ie. they may not open or lift up things) [Reg s.10(3)]. Aggressive "home visitors" may try to use the authority and psychological power that they have during a home visit to obtain consent of the occupant to extend their inspection to closed closets and such - but this can be resisted without legal consequence (practical consequence is another thing).

(c) Verbal Questions During a "Home Visit"

Similarly, workers conducting home visits will likely take the oppourtunity to make further verbal inquiries of the home's occupants during the visit. Recipients and their advocates should be aware that such verbal inquiries are governed by the general information duties discussed elsewhere in this chapter, and there is no general duty to submit oneself to spontaneous interrogation during a home visit. One possible solution might be to request at the outset that any questions be put into writing - although do not expect this suggestion to be taken kindly.

In my view a recipient would be within their rights to refuse to answer inquiries in the course of such visits, even with respect to things seen or present in the home. However, this is not to say that the "visitor" will be happy with this position and that the refusal will be without practical consequences. Like so many other areas of ODSP "information law" where the practice and attitude of the Director exceeds their legal entitlement, applicant/recipients wishing to assert their strict rights must expect to fight these issues on appeal (see Ch.12 "Appeals and Remedies").

(d) Refusal of a "Home Visit"

As noted above, home visits may only be "requested" by the Director or their representative (though without notice). Strictly speaking an occupant of the premises is within their rights - at least in terms of trespass - to refuse entry.

However that is not the end of the issue. If there is "no valid reason for the refusal" - as determined by the administrator - then disentitlement may follow [Reg s.10(4)], and a recipient's only recourse would be appeal to the Social Benefits Tribunal.

Further, the fact of prior refusal may be adopted by the administrator as evidence satisfying the "no valid reason for refusal" criterion [Reg s.10(5)]. However, the regulation wording on this reads: "if the person has previously refused visits [plural] to the home." This opens the argument that ONE prior refusal does not invite the operation of this rule - there must be at least two prior refusals. Note the general statutory interpretation rule applicable to "benefits-conferring" legislation that any ambiguity flows in favour of the benefit claimant: Rizzo v Rizzo Shoes [1998] 1 SCR 27.

I am unaware of any caselaw on the issue of home visits.

6. Practical Issues Related to Providing Information

(a) No On-Going 'Duty to Meet'

It is reasonable for the purposes of taking an initial application (or the intake interview after medical eligibility has been granted) that applicant and ODSP worker sit down together to execute documents.

However, in my opinion the common Director practice of requiring additional meetings with recipients for the purpose of making further inquiries into eligibility it is not legally justified. While a recipient might, as a matter of mutual convenience or good will attend such meeting and co-operate with any legitimate inquiries made in that meeting, they should be ultimately safe from disentitlement as long as they in some fashion comply with any legitimate information requests and duties which are a condition of eligibility. For instance, cautious applicant/recipients may want to require that such requests be put in writing and answered in writing later in order to ensure a solid evidentiary record is created of the requests and answers.

ODSP workers may argue that additional meetings are required in order that "client information update reports" be taken and sworn. While the application forms call for "commissioning" as sworn oaths in my view there is no legal basis for this additional "swearing" requirement in the application or in any further documents and it simply acts to intimidate applicants. While s.14(1) of the Regulation gives the Director to determine the "form and manner" of applications, s.16(1) requires only that they be "signed". The more specific provision overrides the s.14(1) general authority.

As a practical matter however - and once again - a claimant asserting their rights in this respect will precipitate suspicion on the part of ODSP and should expect to have to fight the issue on appeal, as the Director will almost certainly disentitle for "failure to provide information" if a meeting is missed without "good reason" or otherwise does not accord with standard Director expectations. Like so many issues regarding ODSP eligibility information, there is what is legal - and then there is what the Director things they are entitled to. Do not expect the Director to vary from long-standing practice easily.

(b) Cheque-'Holds'

Another administrative practice that will be frequently encountered - and one perhaps not to be discouraged in uncontentious cases - is that of 'holding the cheque' when information is alleged to be missing. Typically a worker will be updating eligibility information, notify a recipient by phone of the information sought. Then if the request is not complied with by a set time, the worker will call back and advise that the 'cheque is being held' until compliance is forthcoming. In practice the cheque is still printed in the cheque-run, it is just 'held' by the worker or at the front desk until the information is provided, at which point the cheque is released. In this fashion the worker saves both parties the administrative burden of issuing a Notice of Decision and the commencement of the whole appeal process. In most cases, where the recipient is able and willing to comply with a reasonable and legitimate request, the practice is sensible. Strict compliance should only be insisted on by the claimant if they view the requests as unreasonable or illegitimate, or if they foresee problems with compliance which they wish to appeal.

If a cheque-hold situation deteriorates into an effective refusal and EVEN IF no formal notice is issued, this may be treated like a formal refusal for appeal purposes (see the discussion of this situation in Ch.11 "Director Decisions: Notice of Decision".

(c) Unclear Requests for Information

Outside of meeting demands and 'cheque-holds'(discussed above) it is common administrative practice to make informational requests by telephone - or less often - in a letter. Non-compliance is then met with the ubiquitous 'failure to provide information' disentitlement notice.

This problem can be compounded when the claimant, as is often the case, is not the best-equipped to understand and engage in the style of communication which is used in welfare administrative culture. The problems with this include a host of problems such as illiteracy, cognitive incapacity, mental illness - and of course poor facility with the English language amongst recent immigrants and sometimes with the disabled. These problems make clear communication of these requests by welfare workers all the more important.

One would hope that a written notice would achieve this clarity but unfortunately the computer-generated refusal notices issued rely on a limited computer "menu" of brief reasons (typically: "failure to provide information") which give the claimant little or no guidance on what welfare is seeking. These "Notices of Disentitlement" (which must by law be in writing) rarely satisfy the legal requirement of providing "reasons for the decision" [Reg s.56(2)] as the law requires (see generally Ch.11 "Director Decisions"). It is well-established law that the purpose of a notice which affects legal rights must contain sufficient 'reasons' to allow the recipient of the notice - or their counsel - to assess and respond to the allegation (see Ch.11 again: the "Gray v Director (ODSP)" casenote). Particulars of the allegation in such a case are imperative, and the typical phrasing of "failure to provide information", or "excess income", simply fails to meet this standard.

From a legal point of view, failure to provide reasons adequate to inform a recipient of particulars of the case against them provides the first appeal argument. While the claimant should make early and reasonable written (and thus documented) efforts to ascertain and clarify the details of the allegation against them, ultimate non-compliance by the ODSP Director may render the notice null and void. Needless to say, in such a case copies of the original notices and resulting correspondence should be placed as evidence before the Tribunal to support the argument. However, I have seen Tribunals uphold inadequate notices as long as the claimant is later advised of the detailed reasons for the refusal (as for example in the administrator's "written submissions" on appeal). I do not believe such late notice (ie. in the appeal process) would survive appellate court review.

The key issue should be: was the claimant prevented by the inadequate notice -despite reasonable efforts on their part - from understanding the case they have to meet at the time they had to meet it. The legal term for this is "prejudice": ie. was the claimant put in a worse situation by the failure of the Director to provide reasons for the decision which were adequate to enable the claimant to meet the case against them?

(d) Substitute Forms and Sources of Information and "Proof"

As discussed above, in some cases either information or a document (setting aside the legitimacy of document requests for the time being) sought by the Director may be missing. This is often the case when dealing with homeless claimants. Here I set out substitution strategies for dealing with this situation.

Common situations in which alternatives should be prepared would include situations of loss or theft of documentation and where barriers exist to obtaining a new "certified" copies (ie. lack of acceptable guarantor on the request for a birth certificate, or lack of money to pay the government fee) or (commonly) simple administrative delay in obtaining it. As well, sometime a person may simply 'lose track' of their SIN number.

A rarer situation where more extensive alternative documentation (even to the point of effectively "creating" a new identity) can be required is that of medically-verified amnesia or schizophrenia - where persons must recreate 'new' identities (ie. names) after the "loss" of their initial identity. In such a case, it is important to note that, legally, a person's name is not necessarily that which they were given at birth - nor does a name change have to be obtained through provincial 'change of name' legislation. The common law holds that a person's 'name' - legally - is what the person is known as in their community Longlade v Moxam 20 RFL (3d) 32 (Ont Fam Court). In such cases third party affidavits citing the claimant's known ("new") name within their community may assist.

Such situations must be handled with great care when the amnesia is traumatically-induced and it is medically dangerous to "confront" the applicant with their prior identity. Needless to say, such unusual tactics do not sit well with policy-bound Directors, and advocates should not expect smooth sailing.

In any event, in most cases of missing information two practical strategies present themselves:
  • track down the information or a document copy;

  • prepare an affidavit attesting to the information or document contents.
As noted earlier, often (TOO often) information and document copies are located(unbeknowst to the worker) in the ODSP or welfare file itself, if the person has been on assistance before (see Appendices #2 in both the ODSP and the welfare program for access procedures). Similar sources of identity documentation include doctor's files, other government offices, parents and old school records.

Failing this, I have used an 'identity' affidavit, sworn by the applicant and/or acquaintances, to give to the administrator. An affidavit, while not the policy-preferred form of proof for this purpose is nonetheless a form of legal proof in common use in courts throughout the land. Such affidavits should state the name, facts of birth, location and date to the best of knowledge of the applicant - or (for best effect) reasons why such other documentation is not available, along with any other required information. If this does not persuade the administrator, then a good chance of persuasion exists before the Tribunal - which is typically more open to acknowledging unusual circumstances (see Ch.12 "Appeals and Other Remedies").

(e) Where Disclosure to Ontario Works is also Disclosure to ODSP
Case Note:
In the ODSP case of Jennings v. Minister of Social Services of Ontario (Div Ct, 2015) the court held (as it rarely does) that the SBT's misapprehension of evidence was so substantial that it constituted a 'question of law' (thus triggering the court's appeal jurisdiction). The legal error was twofold in that the Tribunal considered real estate assets and income of a partnership (in which the appellant had an interest) to be his personal financial resources which were chargeable against him for ODSP purposes, and also that it failed to consider financial disclosure provided by the appellant to Ontario Works during the unified intake process (the applicant's initial financial information was taken by OW) as being effective disclosure to ODSP:
The Tribunal found that Mr Jennings’ position that “there was no need for him to inform the Director separately when he had already informed Ontario Works borders on the ridiculous.”[61] It was not ridiculous. It was correct, at least until the time at which there was a change of circumstances, upon sale of the property in July 2011.
The court also held that it was only on the sale of the partnership interest (and the receipt of sale proceeds) by the appellant that such funds could be chargeable against him, since prior to that time the partnership interest was not available to him as a liquid asset. The court cited Reg 28(1)17 as exempting (from asset chargeability) real estate interests as long as "the person with the interest in the real property is making reasonable efforts to sell his or her interest."

The court took the unusual step of ordering that re-assessment of the appellant's eligibility in light of it's findings be conducted by an ODSP worker who had no earlier involvement with the file, and that - should a new SBT appeal arise from the circumstances - that it not be put before the same member who issued the Order under appeal.

7. Summary

To summarize, the failure to clearly distinguish between eligibility 'information' on the one hand, and eligibility 'verification' or 'evidence' on the other hand, lies at the heart of much misinterpretation and misapplication of law against the interests of ODSP claimants. The problems are embodied both in the policy set down by the province's Director of ODSP - which local offices follow faithfully - and in the culture in which ODSP administration resides. That it is a serious and widespread problem is testified to by the heavy reliance by administrators on disentitlement for "failure to provide information" [Reg s.12] whenever they are not satisfied that the eligibility criteria are satisfactorily "proven" by the applicant or recipient.

Advocacy in this area should be governed by the practicalities of the situation. When no serious prosecution risks (see Ch.14 "Fraud and Prosecutions") or principles of privacy are present, then the goal is to get assistance in a timely fashion and compliance with the excessive verification demands may be the best route.

However, when 'push comes to shove' a detailed examination of a claimant's legal situation must be conducted, and pros and cons weighed. Appeal to the Social Benefits Tribunal can be facilitated without loss of present assistance by the obtaining of "interim assistance" to keep the assistance flowing while the appeal is being decided (see Chapter 12: "Appeals and Other Remedies").
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