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Welfare (Ontario Works) Law
(01 January 2016)

Chapter 5 - Information Eligibility


  1. Overview
    (a) General
    (b) Comment
    . Overview
    . The Administration Attitude towards Eligibility Information
    . Advocacy
    . Criminal Fraud and Information Reporting
  2. Initial and On-going Eligibility Information Required
  3. The Legal Problem: Information versus "Verification of Information" versus "Evidence"
    (a) Overview
    (b) s.7 Act
    (c) s.17 Regulation
    (d) s.14 Regulation
    (e) Reg s.20(3)
    (f) Consents to Disclose and Verify Information
    (g) Municipal Freedom of Information and Protection of Personal Privacy Act (MFIPPA)
    (h) Summary
  4. Eligibility Review Officers
    (a) Overview
    (b) EROs and On-going Eligibility
  5. Home Visits
    (a) Overview
    (b) Nature of a "Home Visit"
    (c) Verbal Questions During a "Home Visit"
    (d) Refusal of a "Home Visit"
  6. Practical Issues Related to Providing Information
    (a) 'Duty to Meet' is Limited
    (b) Cheque-'Holds'
    (c) Unclear Requests for Information
    (d) Substitute Forms and Sources of Information and "Proof"
    (e) Where Disclosure to Ontario Works is also Disclosure to ODSP
  7. Summary

________________________________________


1. Overview

(a) General

Many of the other chapters in this Legal Guide deal with the primary "conditions of eligibility" that applicants and recipients must satisfy to get and maintain eligibility for welfare asistance, including: income and asset eligibility, categorical eligibility, Ontario residence, workfare compliance, etc. No one is eligible for assistance unless they satisfy "all conditions of eligibility under this Act and the regulations" [Act s.7(1)].

Effectively however another free-standing and separate "condition of eligibility" exists which relates to - and over-arches - all primary conditions of eligibility. This is what I call "information eligibility": the providing [by the applicant/recipient and (most) members of their benefit unit] to the administrator of the information and "verification of information" required to establish these primary "conditions of eligibility":
Act s.7(3)
No person is eligible for income assistance unless,

.....

(c) the person and the prescribed dependants provide the information and the verification of information required to determine eligibility including,

(i) personal identification information, as prescribed,

(ii) financial information, as prescribed, and

(iii) any other prescribed information; ...
Fact situations involving this issue are identified whenever an applicant receives a so-common "failure to provide information" disentitlement Notice of Decision. While these cases are often closely intertwined with allegations that the applicant has 'failed to prove' or 'does not meet' the primary conditions of eligibility it is important to know that the legal ground of disentitlement is quite distinct.

A recent court case Rea v Simcoe County has focussed on this distinction and also made the specific consequences of non-compliance with information duties more onerous than for other types of non-compliance [see Ch.9, s.2(c): "Administrator Decisions: Cancellation, Suspension and Reduction Decisions: Consequences of Non-Compliance: Non-Compliance with Information Duties"]. Essentially, non-compliance by any member of the benefit unit results in complete benefit unit disentitlement - not the normal 'splitting-off' of the 'bad' member that is applicable in other instances of single-member non-compliance with conditions of eligibility.

This chapter discusses the nature of these information requirements and (extensively) their legitimacy. This topic is closely and delicately intertwined with the issue of welfare prosecutions (see Ch.12 "Fraud and Prosecutions") - which almost invariably involves allegations of concealment or misrepresentation of the "information" required to establish eligibility. As will be seen in that chapter, a key theme on these prosecution issues is the tension between "information", "verification of information" and self-incrimination rights that arise in the criminal situation.

Anyone involved in these more serious prosecution concerns should review both this chapter and Ch.12 carefully, and seek the advice of a competent criminal lawyer.

(b) Comment

. Overview

In my view, the duty to provide information (and especially "verification of information") is the most misapplied and misunderstood area of welfare administration, and it is the one where claimants most frequently get themselves into trouble - both in terms of eligibility and in terms of fraud prosecution.

The main reasons for this are:
  • The adminstration of welfare in Ontario has developed a culture of information intrusiveness which far exceeds their legal entitlements (explained below);

  • Practically any information given to welfare can be used both to determine eligibility and in prosecution of the claimant for fraud (see Ch.12 "Fraud and Prosecutions");

  • Welfare claimants as a class are amongst the most unsophisticated and vulnerable persons in our society, and loss of assistance has a drastic impact on such things as housing, custody of children (the ability to support children is relevant to apprehension), health (drug coverage can be lost and psychiatric health often suffers), and nutrition;

  • Welfare is the program of last-resort for the poor. It is the most harshly means-tested and most other sources of income must be exhausted before eligibility is reached, so failure to satisfy a "condition of eligibility" can result total loss of income for the claimant - effectively coercing them into compliance with administrator's excessive information and evidence demands.
. The Administration Attitude towards Eligibility Information

While the law requires the claimant to "provide the information and verification of information required to determine eligibility" [Act s.7(3)(c)], this phrase taken in isolation (as it is in welfare administrative policy) is quite misleading. The legal duty to "verify" is much lighter than welfare policy would have claimants believe (see s.3 below: "The Legal Problem: Information versus "Verification of Information").

Further, welfare has an independent duty (not a discretion) to inquire into the circumstances of a claimant [Reg s.22], and effective means to do so through the use of the "Consent to Disclose and Verify Information" (from third parties) forms which are a mandatory part of the application process (see Ch.8 "Applications and Procedures"). While these forms exist and are used in all welfare applications - there is nothing to say that they should be used (as they are) only to seek information against claimants. There are many instances - birth certificates and Health Card numbers are classic examples - where they could be used as the basis to establish functional information exchange relationships between government departments to relieve unsophisticated - and sometimes illiterate - applicants of the difficulty of wending their way through bureaucracies to prove something held by one government agency TO another.

The significant - sometimes overwhelming - pressure that is placed on applicants for them to provide eligibility information and evidence far beyond their legal duties has developed out of a combination of fraud paranoia, imbalance of power and administrative convenience. It's practice is supported and perpetuated by a range of factors, including:
  • the use of assistance cut-off as coercion to provide more information and evidence;

  • applicant ignorance as to their true information duties;

  • an administrative culture that has institutionalized its excess information "entitlements" (ie. in its Policies and Procedures);

  • the insertion of excessive information demands into the Director-designed forms used in welfare applications.
. Advocacy

So institutionalized is the mindset that a claimant is entirely responsibility for providing the information and evidence required to establish eligibility that - ironically - many "failure to provide information" eligibility refusals can be 'solved' by obtaining a copy of the claimant's prior file from welfare (see Appendix 1: "Getting a Copy of Your Welfare File") and then returning to them information or copies of documents that the file contains.

Further, while many or most claimants may be content to comply with the excessive demands of welfare policy to avoid dispute, this compliance may not always be possible or advisable - particularly if investigation is afoot (see Ch.12 "Fraud and Prosecution"). For such cases, it is essential for claimants and advocates to understand the limits of welfare's right to information.

. Criminal Fraud and Information Reporting

Closely related to any information-reporting situation is the ever-present risk of criminal fraud investigation and prosecution. Several cases on this issue, particularly the key Supreme Court of Canada case of R v Parise (SCC, 1996), and the more recent case of R v Rodney (Ont Superior Court, 2007) which has interpreted Parise, have established that non-declaration of information can only support a criminal fraud conviction if the information not reported would have resulted in a reduction of the defendant's income assistance. These cases, and others, are discussed in greater detail in Ch.12, s.2(b) ["Fraud and Prosecutions: Fraud: Elements of Criminal Fraud"].

2. Initial and On-going Eligibility Information Required

Despite broad assertions in the Policy Directives of wide-ranging 'verification' entitlement, the information [and in one instance, "proof"] which the administrator may require from a claimant (and most members of the benefit unit) on initial application, includes the following [see Chapter 2 and Reg s.17]:
  1. The person's social insurance number.

  2. The person's health number under the Health Insurance Act.

  3. proof of the person's identity and of his or her birth date.

  4. Information with respect to the person's income and assets.

  5. A report of an approved health professional relevant to a determination respecting assistance.

  6. Information with respect to the benefit unit's budgetary requirements.

  7. Information with respect to the person's attendance and progress in an education or training program.

  8. Information with respect to the person's employment and proposed employment assistance activities.

  9. Information with respect to the person's status in Canada.
In addition to the information taken on initial application (above), the applicant may also be required to provide on-going information as follows:
  • any new or changed personal circumstances regarding earlier information given;

  • workfare participation,

  • receipt and disposition of assets,

  • receipt and expected receipt of income or other financial resources.
Monthly reports, in a form established by the province, may be required from any benefit unit member to the administrator regarding business or employment income and assets, workfare participation, and "any other conditions relevant to determining the person's eligibility". Failure to provided these reports may result in ineligibility. These monthly reports are normally only required where a benefit unit member has regular employment or business income or other regularly changing circumstances [Reg s.14].


3. The Legal Problem: Information versus "Verification of Information" versus "Evidence"

(a) Overview

Welfare policy assumes that the claimant must not only provide the "information" that the law requires, but also that they must verify it - in practice almost always a demand for some sort of third-party documentary "evidence" substantiating the information (ie. government-issued cards, leases, rent receipts, cheque stubs, bank statements, etc). A simple example of the contrast is the giving of a Social Insurance Number (SIN) (information) versus the providing of an original SIN card (verification of information, or evidence) - welfare wants the card (and to keep a copy) as well as the information.

The reality is that (as shown in s.2 above, and elaborated on below) - when the eligibility information laws are examined in detail - they overwhelmingly require a claimant to provide 'information', not 'verification of information'.

Only in one very specific and narrow situation (identity and birth date) do these laws mention 'proof' - and even then 'proof' is not defined any further - leaving it open to applicants to provide 'proof' other than in the form of government-issued birth certificates, should that form of proof not be immediately unavailable to them, as it often is not. Remember, in these very common demands to verify government information (eg. birth/death/marriage certificates, SIN numbers, Health Card numbers, EI/WSIB/CPP income, civil and family court orders, immigration documentation, school records and so on ad infinitum) - this is all about compelling the impoverished, usually unemployed and commonly sole-parent applicant to pursue one branch of government for a document held by another branch of government (if it isn't already buried in the existing welfare file), for re-delivery to the first branch! Kafka would smirk in his grave if he could.

The reasons for the excessive 'verification' entitlement felt by welfare administration, being in the realm of human motivation, are necessarily the subject of speculation. A benign version of this speculation is that the cultural tendency of bureaucracies everywhere is to justify themselves and their activities with 'paper', and that this is just the manifestation of that impulse in the particular realm of welfare administration. A less benign version is that the middle-class (or higher-class) people who determine welfare administrative policy do not believe that welfare applicants will generally tell the truth - or, to put it in legal terms - that welfare applicants and recipients commonly commit criminal fraud in the pursuit of financial assistance.

Regardless of the motivation one attributes to welfare administration, in my opinion their legal 'verification' demands are, in all but very few instances, quite illegal. Further, in making such demands welfare administration has unilaterally (and again quite illegally) re-allocated their own express statutory duty to "make or cause to be made an enquiry into the living conditions and the financial, employment or other circumstances of the members of the benefit unit" [Reg.22] onto applicants. In short, there is in law a duty to 'verify' the information given by applicants - but it lies on the welfare administrator, not on the applicant.

And - just as a matter of efficiency - who is better positioned to establish and maintain high-volume and on-going document exchange arrangements with other branches of government, with banks, with employers, and so on: welfare administrators? or the impoverished, sometimes-illiterate, commonly single-parent, frequently-homeless and undeniably-stressed welfare applicant?

Ok, enough ranting (though that was one of my favourites). Let's have some more legal analysis.

(b) s.7 Act

So let's have another look at that whole passage that was quoted in s.1 ("Overview") above (emphasis added):
Act s.7(3)
No person is eligible for income assistance unless,

.........

(c) the person and the prescribed dependants provide the information and the verification of information required to determine eligibility including,

(i) personal identification information, as prescribed,

(ii) financial information, as prescribed, and

(iii) any other prescribed information; ...
As mentioned, it is to this passage that welfare policy and administrators point to when justifying their demands for 'verification' - ie. third-party documentary "evidence" that conditions of eligibility have been met.

Note however that each of the sub-paras (i,ii and iii) of 7(3)(c) is conditioned by the phrase "as prescribed". This is legal terminology meaning that the specifics of the thing referred to are spelled out in the regulations, to which one should refer (remember the difference between Act and Regulations explained in Chapter 1). So it is to the wording of these regulations that we must have regard.

The key regulation sections are s.14 and s.17. They were referred to in section s.2 ("Initial and On-going Eligibility Information Required") above.

(c) s.17 Regulation

I repeat the passage relevant to our present discussion here (emphases added):
s.17(2) Reg
The administrator may require an applicant to provide information necessary to determine and verify the applicant's eligibility for basic financial assistance, including the following information with respect to any member of the benefit unit:

1. The person's social insurance number.

2. The person's health number under the Health Insurance Act.

3. Proof of the person's identity and of his or her birth date.

4. Information with respect to the person's income and assets.

5. A report of an approved health professional relevant to a determination respecting assistance.

6. Information with respect to the benefit unit's budgetary requirements.

7. Information with respect to the person's attendance and progress in an education or training program.

8. Information with respect to the person's employment and proposed employment assistance activities.

9. Information with respect to the person's status in Canada.
First notice that the language in s.17 is permissive: that the "administrator may ...require". This means that the requirement is not a mandatory one on the part of the administrator - but discretionary. Legally, any discretionary duty must be exercised reasonably in all the circumstances of the situation - and as well the exercise of this discretion may be reviewed before the Social Benefits Tribunal (see Ch.8: "Procedures and Appeals"). If there is a reasonable excuse why the information cannot be provided by the applicant, the administrator must consider whether they should insist on the optional requirement being complied with. It is a necessary conclusion from the legal fact that this discretion has been granted, that in some instances it must be exercised so as to waive the applicant's information burden.

Next note that the phrasing: "information necessary to determine and verify", easily encompasses the claimant giving (1) eligibility information (eg. income information) and (2) giving further information that would enable the eligibility information to be verified by the administrator (eg. giving the name and contact information of an employer who has paid them wages). Recall the discussion of the burden on the administrator to investigate eligibility (see s.1 above).

Next - all of the listed items in 17(2) - except items 3 and 5 - require only "information" or "numbers", and item 5 only requires a medical report in some circumstances (usually for medical workfare participation waiver). Only item 3 requires anything like 'verification': ie. "proof of the person's identity and of his or her birth date."
Note:
Legal authority given to welfare to obtain "biometric" (eg. fingerprints, DNA) identity information [Act s.75] and to use electronic signatures [Act s.76] is not yet implemented.
It is a principle of statutory interpretation that where otherwise similar provisions differ in an important respect (here the requirement for "proof") that the term should not be implied in the provisions where it is absent. Therefore Reg s.17(2)3 is the only 'verification' requirement in Reg s.17, if we are to understand that term as meaning "evidence" (which is the only plausible interpretation).

It is also a principle of statutory interpretation that any uncertainty in the interpretation of benefits-conferring legislation flows in favour of the benefits-claimant: Rizzo v Rizzo Shoes [1998] 1 SCR 27. In short, if there is any doubt in the interpretation of the law on this issue, the benefit of the doubt goes to the claimant.

Further, and as has been noted above, even in the one instance where "proof" is required - (ie. "of the person's identity and of his or her birth date") the law does not specify that the only acceptable proof is a birth certificate. If a birth certificate is not readily available (remember, the financial need that drives a welfare application is almost always urgent), what about an affidavit? a letter from a parent? or another reliable document that contains the information? Why not?: it's all evidence.

Note as well that all welfare applications are taken in the form of sworn affidavits [though legal authority for this is dubious, as only "signing" is required: Reg s.20(3)]. The practice is for the worker to ask the questions (including name and date of birth), for the worker to physically complete (ie. fill-out) the form, and then to present it to the claimant for review (if of course they can read). The claimant is expected to verbally confirm the information as true and then sign and swear to it before the worker, who is an approved "Commissioner for the Taking of Affidavits" under s.69 of the Act of that name. The worker then 'commissions' the application, turning it into a sworn declaration or affidavit. This heightens the criminal effect of false statements, which are now not only criminally fraudulent but perjurous as well. I ask readers to identify any other instances in which an application for public benefits must be taken in the form of a sworn statement.

Ironically, and setting aside the discrimination inherent in requiring welfare applications to be taken in the form of sworn statements, once they are so taken they are a form of 'verification' acceptable in courts throughout the country, but yet - as they emanate from the ever-suspect applicant - they are still insufficient verification in the administration's view, and only third-parties(through their documents) will really be believed.

(d) s.14 Regulation

This passage deals with on-going reporting duties. It reads in full (emphasis added)):
s.14(1)
The administrator shall determine that a person is not eligible for income assistance if the person fails to provide the information the administrator requires to determine initial or ongoing eligibility for income assistance, including information with respect to,

(a) new or changed circumstances;

(b) participation in employment assistance activities;

(c) the receipt or disposition of assets; and

(d) the receipt or expected receipt of income or some other financial resource.

14(2)
The Director may require that a member of a benefit unit provide monthly reports to the administrator respecting,

(a) the income and assets of members of the benefit unit;

(b) attendance at employment assistance activities; and

(c) any other conditions relevant to determining the person's eligibility.

14(3)
A monthly report under subsection (2) shall be prepared in a form and manner approved by the Director.

14(4)
If a person is required to complete and return a monthly report under subsection (2) and fails to do so, the administrator may determine that the person is ineligible for income assistance.
Subsection (1) here only requires "information", so the intricacies discussed above do not even arise in the case of ongoing reporting duties. Any argument that the term "information" somehow justifies verification, proof or evidence of any sort is soundly defeated by the fact that term "proof" is included (once)

Subsections (2) through (4) relate to claimant-completed monthly reports which are required in this form for information-gathering convenience only. There is no further requirement for independent or documentary 'verification' contained in s.14 Reg.

(e) Reg s.20(3)

A further provision that might be pointed to by an administrator on this issue is Reg s.20. This section deals with the execution of a welfare application and the documentation that is required with it:
s.20(3)
The application is not complete until the application and all accompanying forms, agreements and consents have been completed and signed and have been provided, together with any required verification of information, to the administrator.
The key phrase here is "required verification". Legally the administrator does not have authority to require anything unless it is required elsewhere by law, so this phrase can only drawn it's meaning from otherwise expressly stated legal authority. As such it can only refer to the very limited authority established in s.17 (discussed above) and it does not extend that authority in any respect.

(f) Consents to Disclose and Verify Information

Another practical mechanism available to administrators to obtain eligibility information is the "Consent to Disclose and Verify Information" [Form 0985], which is a mandatory element of any Application for welfare assistance. These Consents can be used to exercise the administrators' authority - and indeed duty [see the comments regarding Reg 22 in s.1(a) above] - to engage in its own verification of eligibility information with third parties. However it must be noted that such "Consent" authority is limited to gathering information from third parties [Reg s.19].

Surprisingly, the Form used for this purpose [Form 0985] (drafted by the Director of OW) is not particularly over-reaching on its face, referring consistently to "information" and not to documents. However it is universally expected by the administrator, and acquiesced to by third parties, that these "Consents" legally authorize the provision by the third party to the administrator of copies of documents, ostensibly as a reasonable manner of conveying the requested "information". As any lawyer will tell you, there is a huge legal and evidentiary difference between 'information' and information embodied in a pre-existing documents (ie. evidence). As practically all third parties who receive such requests are under a fiduciary duty to protect the privacy of the applicant, any third party exceeding the narrow "information"-only authority granted by these Consents is potentially liable for damages under the tort of breach of fiduciary duty.

(g) Municipal Freedom of Information and Protection of Personal Privacy Act (MFIPPA)

Additional Ontario law respecting the collection [MFIPPA s.28(2)], use [MFIPPA s.31] and disclosure [MFIPPA s.32] of "personal information" is set out in the Municipal Freedom of Information and Protection of Personal Privacy Act (MFIPPA). As municipalities are "institutions" within the meaning of MFIPPA, welfare administrators - as their agents - are thereby subject to it as well.

While the definition of "personal information" extends beyond 'pure' information to include "recorded information" [MFIPPA s.2(1), 28(1)] (ie. documents, computer-stored information, etc), these provisions only justify the right of government institutions to collect and accumulate information by means of their own efforts, and then only from existing public sources. To read it in any other fashion would be to disregard the constitutionally-enshrined right of privacy located in the Charter s.8 protections against "unreasonable search and seizure", and make a mockery of the search warrant laws that have been a feature of the Canadian common law system for over a hundred years.

MFIPPA law generally does not compel disclosure by either the subject of the information or third-party holders of it, and it does nothing to assist the administrator in 'compelling' applicants, recipients or third parties to disclose information or documents to them.

(h) Summary

With one exception ["proof" of identity and birth date: Reg 17(2)3], the law does not specify the form in which an applicant or recipient must provide eligibility information to a welfare administrator. It could be verbal, or - if convenient to the applicant or recipient - documentary. "Proof", generally but not necessarily understood to mean some form of documentation, may only be required of identity and date of birth.

Otherwise than as noted, the providing of "proof", "verification" and sworn affidavits (in other words, documentary evidence) is not required under welfare law. To be specific, there is no legal authority to demand, as a condition of eligibility, any of the following typically-demanded documents:

  • sworn Applications for Assistance (requiring an unsworn signature alone is quite legitimate)
  • Social Insurance Number (SIN) cards
  • Health (OHIP) Cards
  • income cheque stubs
  • bank, RRSP, GIC etc statements
  • copies of leases or rent receipts
  • immigration documentation
  • just about any other document.
Of course, it may be more expedient for the claimant to provide these documents, and they can do so if they choose.

That said, the unjust reality of welfare administration is that welfare authorities will refuse eligibility unless they are provided with the form of documentary evidence that they view as appropriate. On these issues, welfare administrators have, with the aid of provincially-mandated policies, misapplied the law to the gross detriment of thousands upon thousands of unsophisticated claimants who cannot meet these excessive and illegal demands, and at the cost of illegal infringement of the privacy rights of hundreds of thousands of others.


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