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Simon Shields, LLB

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4. Eligibility Review Officers

(a) Overview

The discussion in s.3 above is not to say that welfare authorities have no general document or evidence-demanding authority. Welfare law has created a specific class of welfare worker, known as "eligibility review officers" ("EROs") [Act s.58], who have additional powers of investigation into past and present eligibility. These include powers of inquiry and document demand, warrant-like entry powers into non-dwelling places, and the power to apply for search warrants under the Provincial Offences Act (POA) for dwelling places. These police-like powers are held over both recipients and third parties who are thought to hold relevant evidence such as banks, employers, etc [Reg s.65].

However, no such broad investigative powers are held by non-ERO (ie. regular) workers, who perform the day-to-day work of welfare administration. Their authority is limited to requests for information (and as discussed in s.3 above: 'proof' of identity and date of birth) relevant to determine current eligibility from claimants and from third parties (via Consents to Disclose and Verify Information). Regular welfare 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: ie. are they a regular worker or an ERO? Transfer of your file, even temporarily, to another welfare office location (not all offices have EROs on location) or to a supervisor is a strong sign that you are under ERO investigation. As well, you can just ask the worker (or anyone you are dealing with) what the status of the new worker is.

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 past eligibility information provided by the claimant. ERO involvement is usually a prelude to overpayment and/or fraud investigation.

The investigative authority and powers of EROs are addressed in more detail in Ch.12: "Fraud and Prosecutions". Also, while the "Consents to Disclose and Verify Information" discussed in s.3(g) above can be used by regular workers to obtain third party information, they are most often used by EROs during investigations.

That said, past and current eligibility issues can easily be intertwined (eg. a steady income stream still in pay) so ERO involvement can certainly bear on current eligibility for assistance. That issue is addressed next.

(b) EROs and On-going Eligibility

Get one thing clear from the start: satisfying an ERO demand is not a condition of eligibility. While an ERO demand may incidentally seek information or documents relating to current and ongoing eligibility, there is no legal authority to cut someone off for non-compliance with an ERO request 'as such'.

That said, recipients under ERO investigation will commonly find themselves either disentitled or at least under tacit threat of disentitlement if they do not fully expose themselves in an ERO investigation. The means used to do this is the common, and rarely particularized, notice of disentitlement for "failure to provide information".

So, in order to preserve ongoing welfare assistance during an ERO investigation, the primary concern is to distinguish (and if legitimate, satisfy) information requirements which are truly related to current and ongoing eligibility. Sometimes this is not difficult to do as ongoing eligibility matters remain in the hands of a regular worker, while investigation matters are clearly hived off to the ERO. Other times, particularly where the issues of concern are common to both past and present eligibility, this division will not be easy.

The tension here is easy to see. Complete acquiescence to an ERO investigation, given it's dual overpayment/fraud focus, is tantamount to waiving all rights against self-incrimination. These are rights studiously guarded with respect to burglary, rape and murder suspects, but ones habitually over-ridden for welfare recipients under the disingenuous argument that until the matter is referred to the police the government's interest is purely administrative, and not criminal. This is a legal absurdity. An openly stated role of eligibility review officers, is to be the investigative arm of the government for the purpose of fraud enforcement. Anyone who suspects that they are in the realm of criminal concerns (see Ch.12 "Fraud and Prosecutions") at this point should, if at all possible, seek competent criminal counsel promptly. Sadly, Legal Aid does not provide coverage for pre-arrest or investigation assessment and advice.

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 may have to fight it on appeal (see Ch.10 "Appeals and Other Remedies - especially the section on "Interim Assistance").

That said, technically failure to comply with an ERO investigation may be used to ground a regulatory POA charge of "obstructing" an ERO officer in the legitimate performance of their duties [Act s.79] (see Ch.12 "Fraud and Prosecutions"). However, I have never in 20 plus years of practice in this field seen such a charge laid, possibly due to its Charter vulnerability as a violation against the privacy interest contained in the s.8 "unreasonable search and seizure" provision of the Charter. Charter law in this area - which is not encouraging - is discussed further in Ch.12: "Fraud and Prosecutions".

5. Home Visits

(a) Overview

Another means available for a welfare administrator to verify "initial or ongoing" eligibility information is the "home visit" [Reg s.12(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.12(2)].

Welfare 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 and no forced entry can be made (without a search warrant, but then that would not be a 'home visit' situation), but it is not without welfare consequences (see below).

(b) Nature of a "Home Visit"

As a form of warrantless legal search, home visits are in the nature of physical observation and must be restricted to things within "plain view" in the dwelling unit (ie. 'visitors' may not open things to look in them or lift up things to look under them) [Reg s.12(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 consent can be denied by the recipient without legal consequence.

(c) Verbal Questions or Demands During a "Home Visit"

Welfare workers conducting home visits may try to use 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.

The psychological environment created by having an authority figure in one's home is one conducive to abuse by welfare workers, and the intimidation it creates in the occupants may manifest itself in over-talkativeness and a desire to please. Further, an aggressive worker faced with an occupant's refusal to answer questions 'on the spot' may point out that the members of the benefit unit have a duty to provide information of "changed circumstances" and, generally, information necessary to establish and maintain eligibility, both of which are technically true. However the law says nothing about the manner in which that duty must be fulfilled, and - as long as delay is not excessive - its timing [see also "Duty to Meet is Limited" at s.6(a) below].

So the response of someone subject of a home visit, but who wishes to avoid the coercive effects of the intimidating situation, could be to refuse to answer questions posed to them spontaneously, either under the guise of conversation or that of legal duty, but instead to offer to consider answering them later, after the visit is over, if they are presented in writing. If that offer is taken up (which is probably won't be, and the questions will have been successfully resisted) then the recipient can consider the questions in a less anxious situation, in light of their limited legal duties to provide information (as discussed in this chapter), and perhaps even consult with counsel. Another good idea is for the recipient to record the questions as asked in writing, without answering them at that time, for similar later consideration.

In fact, while welfare administration is typically quite reticent to disclose its own legal concerns, close attention to the nature of the questions posed may provide the recipient with useful insight into their concerns.

Home visits situations can be more legally complicated if any of the welfare staff presenting themselves for the 'visit' are 'eligibility review officers' (EROs, discussed in s.4 above). For that purpose the first question to ask of any (and all) workers who present themselves for a home visit should be: "Are you an eligibility review officer?" and "what is your name?"

EROs are given specific legal powers of 'inquiry and demand' which, arguably, can be the subject of a provincial, non-criminal obstruction charge if refused. However, in my view few courts would fault a recipient, or any member of the benefit unit, who sought to diffuse the inherently intimidating event of a home visit by use of the 'give it to me in writing', or 'let me take notes and get back to you' tactics set out above. For that purpose the first question to ask of any (and all) workers who present themselves for a home visit should be: "Are you an eligibility review officer?" and "what is your name?"

When not dealing with an ERO, the informational duties placed on a recipient and members of their benefit unit are limited to those set out in this chapter. So clearly investigative questions from a non-ERO worker such as: "who do these belong to?", or "do you have a boyfriend" may be safely refused.

This is not to say that the "visitor" will be happy with the recipient's position and that the deferral of questions will be without practical consequences. Like so many other areas of welfare "information law", where the practice and attitude of the administrator exceeds their legal entitlement, applicant/recipients wishing to assert their strict rights should be prepared to fight these issues on appeal (see Ch.10 "Appeals and Remedies").

(d) Refusal of a "Home Visit"

As noted above, home visits may only be "requested" by the administrator or their representative (though without notice), and - as a matter of trespass law alone - entry may be refused. Even EROs may not enter a dwelling place without a search warranted warrant.

That of course 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.12(4)], and a recipient's only recourse would be to re-apply for assistance or appeal to the Social Benefits Tribunal.

"Valid reason" is of course, an inherently vague standard, and - given the disentitlement sanction that can be applied on a refusal - places the recipient at high risk if their reason for refusal is judged (by the administrator) to be not valid. Further, the fact that there were prior home visit refusals - whether 'validly' refused or not at those times - is adequate grounds for the administrator to reach the conclusion that a present refusal is not valid, and disentitlement can ensue [Reg s.12(5)].

Note on this point that the regulation wording on this reads: "if the person has previously refused visits to the home" [ie. plural, or more than one prior visit refusal]. This opens the argument that one prior refusal alone does not invite the operation of this rule, and that there must be at least two prior refusals. Note as well the general statutory interpretation rule applicable to "benefits-conferring" legislation that any ambiguity in legislation flows in favour of the benefits claimant: Rizzo v Rizzo Shoes [1998] 1 SCR 27.

In short, it appears that a third refusal is sound grounds for disentitlement. However, care must be taken not to read that point meaning that the recipient has one or more 'free refusals', as that is not the case. Any refusal, even a first time one, may still be found to be 'invalid', and to justify disentitlement, if the administrator is unhappy with the reasons for it.

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

6. Practical Issues Related to Providing Information

(a) 'Duty to Meet' is Limited

It is also a common, and in my opinion, not legally justified practice of the administrator to require periodic meetings with recipients for the purpose of making further inquiries into eligibility. While failure to comply with meeting requests (usually presented as 'demands') will likely be met with a notice of disentitlement for "failure to provide information", demands that a recipient attend a meeting 'as such' are not legally justifiable. The fundamental duty of recipients is to supply the information as set out in this chapter, and the manner in which they do that is of their choice. That said, meetings are often a useful method of exchanging information and recipients should consider whether the purpose of the meeting is harmless or investigative.

There is only one meeting that may be legally required of a recipient. This is where, within one month after benefits are granted, the administrator is mandatorily required to meet with the applicant to enquire into the living conditions and financial and employment circumstances of the members of the benefit unit [Reg s.23].

Further, while it is a safe legal inference that the recipient is expected to facilitate and co-operate with this meeting in terms of attending - if it is arranged at a reasonable time - nowhere does it state that co-operation with the meeting is a "condition of eligibility" (ie. which, in the event of non-compliance, might justify refusal of assistance). While a recipient is well-advised to attend such a properly-arranged meeting and to co-operate with any legitimate inquiries made in that meeting, a recipient should be ultimately safe from disentitlement as long as they in some fashion comply with the legitimate information requests and duties which are a condition of eligibility. For instance, as with home visits (s.5 above), cautious applicant/recipients may want to record inquiries in writing and answer them in writing later in order to ensure a solid evidentiary record is created of the requests and answers.

As a practical matter however, a claimant asserting their strict rights in this respect should expect to have to fight the issue on appeal, as welfare will almost certainly disentitle for "failure to provide information" if a meeting is missed without good reason or otherwise does not accord with standard administrator expectations.

(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 'internal review'/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 with the law - which does not allow cheque-holds, should only be insisted on by the claimant if they view the requests as unreasonable or illegitimate, or if they foresee problems with their compliance which they wish to appeal.

If a cheque-hold situation deteriorates into an effective refusal and even if no formal Notice of Decision is issued, the cheque-hold may be treated as a formal refusal of assistance for appeal purposes (see the discussion of this situation in Ch.9 "Administrator Decisions: Notice of Decision"), and the 'internal review'/appeal process should becommenced.

(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. These include a host of problems such as illiteracy, cognitive incapacity and cultural unfamiliarity. 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 in this case: "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.67(2)] as the law requires (see generally Ch.9 "Administrator 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.9 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 appellate 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 welfare administrator 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). This is not only wrong in law, but is a short-sighted practice likely grounded in sympathy for administrator workloads. Of course, strict complinace with the legal duty would reduce work for recipients, administrators and the Tribunal alike through early resolution of problematic situations.
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?

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

As discussed above, in some cases either information or (setting aside the legitimacy of most document requests for the time being) a document sought by the administrator may not be within the recipient's possession or control. Here I set out substitution strategies for dealing with this problem.

Situations where this problem may arise include loss or theft of documentation where barriers exist to obtaining new "certified" copies (eg. lack of acceptable guarantor for a birth certificate replacement, or lack of money to pay the government fee) or (commonly) simple administrative delay in obtaining it. As well, sometimes people just forget things (eg. Social Insurance Numbers).

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 may a name change only 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 may be medically dangerous to "confront" the applicant with their prior identity. Needless to say, such unusual tactics do not sit well with policy-bound welfare administrators and claimants, 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 welfare file itself, if the person has been on assistance in that municipality before. If the worker cannot be persuaded to dig it out, a formal freedom of information application may be necessary to get it:

Getting a Copy of Your Welfare File

Similar sources of identity documentation include doctor's files, federal government offices (eg. employment insurance), 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 (which is ironic given that applications are illegally taken as sworn affidavits) 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 - and (for best effect) reasons why other 'regular' 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.10 "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 by administrators against the interests of welfare claimants. The problems are embodied both in the policy set down by the province's Director of OWA - which the local administrators generally follow faithfully [Act s.48] - and in the culture in which welfare 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.14] 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.12 "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 8: "Appeals and Other Remedies").
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