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Cara Zwibel, Canadian Civil Liberties Association (CCLA)

Ontario Court of Appeal gives new life to class action on cancellation of basic income program

Monday, June 27, 2022 @ 11:54 AM | By Ian Burns

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A class action filed on behalf of Ontarians who found themselves in difficult circumstances as a result of the cancellation of a program providing them a basic income has been given a second chance after the province’s top court ruled a judge was wrong when he did not certify the lawsuit’s claim on breach of contract.

The three-year basic income (BI) pilot program was launched in April 2017 by then-Premier Kathleen Wynne in three urban areas to study the value of implementing a universal basic income for residents of Ontario. Following the 2018 election of the Progressive Conservative (PC) party under Premier Doug Ford, the province announced that it planned to terminate the BI program before the three years had elapsed, with final payments being made in March 2019. The class action was launched shortly afterwards, but was dismissed (in Bowman v. Ontario 2020 ONSC 7374) for failing to disclose a reasonable cause of action under the Class Proceedings Act (CPA).

But now the Ontario Court of Appeal has set aside part of the dismissal order concerning a claim for breach of contract (Bowman v. Ontario 2022 ONCA 477). Justice David Brown noted when a breach of contract claim is asserted, the analysis under the CPA must remain faithful to the governing policy that certification does not involve a decision on the merits of the action.

“Accordingly, the task of the certification judge is not to determine whether the contract pleaded by the plaintiff was, in fact, formed and, if it was, the proper interpretation of the contract,” he wrote. “Instead, the task of the certification judge usually is to ascertain whether it is plain and obvious that the facts pleaded by the plaintiff (which must be taken to be true) cannot support, at law, a cause of action for breach of contract. If that is not plain and obvious, then the plaintiff has satisfied the criterion and the ultimate determination of the merits — was a contract formed and, if it was, what does it mean — is a matter for another time.”

Justice Brown wrote the certification judge “lost sight of this distinction” and examined whether the plaintiffs had established that a contract had been formed between class members and Ontario, which overstepped the proper boundaries of CPA analysis.

“I do not read the certification judge’s reasons as identifying any reason why the appellants’ pleaded contract claim could not be supportable at law,” he wrote. “What led him to refuse to certify the appellants’ contract claim was his determination that in fact no contract had been concluded between the class members and Ontario. That constituted a determination of the appellants’ contractual claim on the merits, a determination which exceeded the proper ambit of the … inquiry he was tasked to conduct.”

Justice Brown also sent the issues of commonality and preferable procedure in the class action back to the lower court for determination, but upheld the dismissal of other claims the plaintiffs had brought on breaches of undertaking, negligence, breach of a public law duty and breach of s. 7 of the Charter. He was joined by Justices Sarah Pepall and Steve Coroza in his decision, which was issued June 16.

Kaley Duff of Cavalluzzo LLP, who represented the class plaintiffs, said she was very pleased with the outcome, but there is still a long road ahead on the commonality and preferable procedure issues.

“They continue to be contested, but we remain very optimistic about getting this class action certified. We always felt we had a strong claim for breach of contract, and of course in terms of the class proceeding we only need one cause of action to proceed, so the class action continues to live, and we can continue fighting on behalf of class members,” she said. “Something that was really important about the study aspect of this was three years of payments were guaranteed, because if you are studying someone’s behaviour you’ve got to promise that for a period of time.”

Cara Zwibel, Canadian Civil Liberties Association

Cara Zwibel, Canadian Civil Liberties Association

Cara Zwibel of the Canadian Civil Liberties Association (CCLA), who intervened on behalf of the plaintiffs, said the decision is a “bit of a double-edged sword” in that it keeps the claim alive, but only on one ground.

“And obviously the fewer opportunities there are to make an argument, the fewer chances there are of succeeding,” she said. “But I do hope they will be able to get a remedy because this was a situation where people did suffer damages as a result of something the government initially promised and then took away.”

The class action is seeking to obtain what the 4,000 participants would have otherwise received had the program played itself out. Duff said a lot of people characterized it as a social benefit program akin to Ontario Works (OW) or the Ontario Disability Support Program (ODSP) but “it really wasn’t.”

“This was a study and participants had to give up something in order to participate in this study — they were tasked with filling out surveys, giving out a lot of personal information on their physical health, mental health and their financial info,” she said. “And also, many of them were on programs like OW and ODSP in the first place, and they had to give up those benefits and the security of them to participate in the pilot.”

Zwibel agreed, noting that people who took part in the pilot signed up for educational programs and signed leases based on the assumption they would have a steady stream of income for three years.

“We know that government policy changes, but there was a closer individual relationship for the people which were involved in the pilot,” she said. “The people that were involved and then had the experiment cut short found themselves in really difficult circumstances.”

A representative of the Ontario Ministry of the Attorney General said the government could not comment on the decision because the matter still remains before the courts.

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