It was also studying whether a basic income would be a simpler and more economic way to deliver social assistance than the current demeaning and rule-bound system.
Although cabinet policy decisions may be supreme, Perry urged the justices to consider the government’s ethical responsibility to human research subjects in the study.
When Social Services Minister Lisa MacLeod pulled the plug July 31, the government left vulnerable participants in the dark for a month before informing them their payments would continue until the end of March this year, as part of a wind-down plan, Perry noted. That was a full year earlier than originally planned.
The government signed a research protocol with an independent ethics board to oversee the study, a move that committed the government to abide by certain ethical behaviour, he said.
But despite the government’s agreement to seek the board’s approval for any changes to the project, no approvals were sought, nor granted when it ended the initiative, Perry said.
Instead, when the ethics board rejected the cancellation and “wind-down plan,” the government “fired” the board, Perry told the court.
Thompson argued cabinet’s policy decisions can’t legally be fettered by research ethics boards or any other unelected entity. Nor can they be questioned based on reason or rationality, he added.
Even if the court were to rule it has jurisdiction, the decision was rational, he argued, because basic income was too expensive for Ontario. And the new government prefers a more employment-focused approach to social assistance.
“The government does not intend to pursue a basic income policy across Ontario,” he said.
But panel chair Justice Julie Thorburn said it was “silly” for the government to argue it was cancelling the experiment because it would cost $17 billion to extend the payments to all low-income Ontarians.
“Wasn’t the whole point of the study to find out if there was data to show whether or not they should?” she asked, during the hearing at Osgoode Hall in Toronto.
“It’s a research experiment. So you get the data and then you make a decision to do it, or not to do anything, based on the data,” she chided. “Nobody is suggesting the government . . . (had to) do anything after the three years.”
But the justices wondered whether the case would be better handled in civil court as a class action.
“To the extent to which participants have a legitimate expectation (of payment,) isn’t the proper forum a class action?” Justice Thorburn asked.
Perry, who is not a practising lawyer and is handling the case pro bono, has also launched a class-action on behalf of the four participants.
But he argued judicial review of the decision was a “pro-active” approach and the “first available remedy.” If successful, there would be no need to pursue the class action.
“We put up a fight, it got covered and the voices got heard,” he said outside court.
The justices have reserved their decision.
Laurie Monsebraaten is a Toronto-based reporter covering social justice. Follow her on Twitter: @lmonseb