Justice before the Employment and Assistance Appeal Tribunal and Poverty Reduction

Honourable Shane Simpson
Minister of Social Development and Poverty Reduction
PO Box 9290 Stn Prov Govt
Victoria BC V8W 9J7

Dear Minister Simpson:

RE: Justice before the Employment and Assistance Appeal Tribunal and Poverty Reduction

Congratulations on your appointment as Minister of Social Development and Poverty Reduction. We are thrilled about your strong mandate to improve life for people in need of welfare and to reduce poverty in British Columbia.

We work closely with the anti-poverty community in British Columbia to address systemic issues affecting people with low incomes across the province. Based on our experience, an important concern for people with low incomes is access to administrative justice, as administrative tribunals are tasked with determining matters that go to the heart of their social and economic security, including housing, social assistance, and supports for people with disabilities. As such, ensuring access to administrative justice must be part of any poverty reduction strategy.

The purpose of this letter is to highlight the anti-poverty community’s pressing concerns about the effectiveness and credibility of the Employment and Assistance Appeal Tribunal (“the EAAT”), and offer recommendations about how to restore public confidence in the EAAT. As you know, the EAAT determines appeals of decisions by the Ministry of Social Development and Poverty Reduction (“MSDPR”), including decisions that result in the refusal, discontinuance, or reduction of income assistance, disability assistance, or a supplement to either (collectively, “welfare”). Access to these critical supports – and the decisions the EAAT makes concerning them – has a direct impact on the alleviation (or entrenchment) of poverty for many British Columbians.

Our predominant concern is whether the EAAT is providing appellants with an effective and fair review process, in light of the dramatic decline in the EAAT’s appeal success rate over 10 years, as illustrated in the table and graphs below.1

Fiscal year Appeals heard Decisions rescinded Success rate
2015/2016 614 47 7.6%
2014/2015 564 30 5.3%
2013/2014 690 45 6.5%
2012/2013 747 87 11.6%
2011/2012 841 125 14.9%
2010/2011 945 216 22.9%
2009/2010 955 322 33.7%
2008/2009 830 246 29.6%
2007/2008 581 157 27%
2006/2007 840 292 34.7%
2005/2006 1120 426 38%
EAAT_graph_001 Justice before the Employment and Assistance Appeal Tribunal and Poverty Reduction

The data also shows a decline in the overall number of appeals heard by the EAAT, which corresponds to the declining success rate. In our view, a reasonable reading of the decline in the number of appeals heard is that the low success rate is discouraging people from pursuing their statutory right to appeal. This view is supported by anecdotal evidence from our conversations with anti-poverty advocates and affected individuals. We are alarmed by the common refrain from anti-poverty advocates that assisting their clients with appeals is a “waste of time and resources,” and that many advise their clients not to bother with appeals at all.

An important aspect of the appeal success rate is that, pursuant to the Employment and Assistance Act, the EAAT applies a reasonableness standard of review to decisions under appeal. According to a Freedom of Information request by BCPIAC to the EAAT, the EAAT’s standard of review conforms to the reasonableness standard applied by the courts. EAAT members are told that:

“On a proper application of the ‘reasonableness’ standard, the Ministry’s decision must be confirmed as long as there is a logical basis for it on the law and the evidence. The panel may interpret the legislation and view the evidence somewhat differently but as long as there is a logical and rational basis for the Ministry’s decision, the panel cannot properly rescind it. A reasonableness standard recognizes that there are times when legislation can be rationally interpreted and applied in more than one way.”

We say that the level of deference represented by the reasonableness standard cannot be reconciled with the EAAT’s purpose and the social and economic interests at stake. However, a deferential standard of review does not explain what amounts to a nosedive in EAAT’s appeal success rate, nor an appeal success rate that has sat below 10% since 2013/2014.

We are not aware of any publically available review of the EAAT’s declining appeal success rate. In November 2016, after consulting with anti-poverty advocates, we wrote a letter to the Chair of the EAAT, Marilyn McNamara, to identify the same concerns set out in this letter and to request more information about the EAAT’s practices and procedures. Ms. McNamara did not respond to our letter, which we have attached as Appendix A to this letter for your review.

EAAT_Rates_Final Justice before the Employment and Assistance Appeal Tribunal and Poverty Reduction

The gravity of this issue is underscored by the EAAT’s insulation from effective judicial review. First, pursuant to the Administrative Tribunals Act, courts apply a standard of review of “patent unreasonableness” to decisions by the EAAT, which itself applies a “reasonableness” standard to MSDPR decisions. In our view, the combined effect of these highly deferential standards of review, which anti-poverty advocates commonly refer to as “reasonableness squared,” may be unconstitutional in that it is virtually impossible to overcome. Second, in the absence of poverty law legal aid, most individuals cannot access the judicial review process at all.  These issues heighten the importance of the EAAT providing a meaningful opportunity to appeal MSDPR decisions, and getting those decisions right.

Recommendations

In sum, people in need of welfare have the right to an effective and respectful review of MSDPR decisions. The declining appeal success rate raises important questions about whether the EAAT is providing such access, resulting in a loss of public confidence in the administrative tribunal tasked with deciding the rights of highly vulnerable members of our society. In order to restore public confidence in the EAAT, we offer the recommendations set out below:

  1. Initiate an audit or review of the EAAT’s practices and procedures to determine whether the EAAT is accurately applying its legislation and meeting its procedural fairness obligations, with a mind to the particular barriers EAAT appellants may face in accessing justice (e.g. mental and physical disabilities, mental health issues, language barriers, low literacy and/or limited education).
  2. Consult with anti-poverty organizations and affected individuals about the structure, process, and terms of reference for the audit or review.
  3. Institute performance and accountability measures for the EAAT as recommended by the audit or review.
  4. Amend the Employment and Assistance Act to change the standard of review for the EAAT from reasonableness to correctness and to allow for broadened opportunities to submit new evidence.
  5. Remove the privative clauses from the Employment and Assistance Act (ss. 24(6) & (7)) such that courts are not required to apply a patent unreasonableness standard to EAAT decisions.
  6. Work with the Attorney General to provide legal aid funding for EAAT hearings and judicial reviews of EAAT decisions.

We would welcome the opportunity to discuss this letter with you further.

Sincerely,

Kate Feeney          Erin Pritchard
Staff Lawyer          Staff Lawyer

cc:
Hon. David Eby, Attorney General
Mable Elmore, Parliamentary Secretary for Poverty Reduction &
MLA (Vancouver-Kensington)

1 Data has been taken from the EAAT’s Annual Reports, found at http://www.eaat.ca/the-tribunal/annual-report.

Link to original letter including appendices.

Justice before the Employment and Assistance Appeal Tribunal and Poverty Reduction
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