Civil Litigation

Rogers v. Sudbury (Administrator of Ontario Works)

On April 25, 2001, Kimberly Rogers pled guilty to welfare fraud after she failed to report student loans she had received to attend college while she was also collecting welfare benefits. Described as an "outstanding student" who graduated near the top of her class, she had been on the brink of turning her life around. Her conviction changed everything.

In true Dickensian tradition, she was ordered to repay $62,000 (the student loan and her welfare overpayment) and was sentenced to six months of house arrest. This meant that she could not leave her apartment at any time, except for three hours per week each Wednesday. In addition, Ms Rogers' welfare benefits were automatically cancelled for three months under the government's welfare regulations.
Nobody apparently considered - or cared - how Ms Rogers was supposed to continue to pay her rent and feed herself (much less pay back the money she owed) after being cut off welfare and confined to her apartment so she could not work.

Ms Rogers, who was pregnant, challenged the cancellation of her welfare benefits under the Canadian Charter of Rights and Freedoms. She also brought a motion for an injunction to prevent the cancellation of her benefits until the constitutional challenge was determined by the courts.

On May 31, 2001, the Superior Court of Justice held that Ms Rogers had met all of the tests for the granting of an injunction. It held that Ms Roger's constitutional challenge raised serious issues and was not frivolous or vexatious. The Court also held that Ms Rogers would suffer irreparable harm if the injunction was not granted. In this regard, the Court stated:

Ms. Rogers has no reliable alternative source of income. She is at the brink of being homeless. She is at this moment unable to feed herself adequately. The medical evidence in the record is clear that as a pregnant woman in the last trimester of her pregnancy the applicant is exposed to serious and perhaps permanent health problems unless, at the very least, she has access to proper nutrition if not shelter. The irreparable harm is clear and obvious.

In considering the balance of convenience, the Court agreed that the integrity of social assistance programs must be respected and maintained. However, the Court concluded that the "inconvenience" of a pregnant woman living on the street is far greater than the "inconvenience" of any real or perceived threat that an injunction may jeopardize the integrity of the welfare program. The Court stated:

In the unique circumstances of this case, if the applicant is exposed to the full three month suspension of her benefits, a member of our community carrying an unborn child may well be homeless and deprived of basic sustenance. Such a situation would jeopardize the health of Ms. Rogers and the fetus thereby adversely affecting not only the mother and child but also the public - its dignity, its human rights commitments and its health care resources. For many reasons, there is overwhelming public interest in protecting a pregnant woman in our community from being destitute.

Therefore, the Court granted the injunction, declaring that Ms Rogers was to be exempted from the application of the regulations pending the outcome of the constitutional challenge and ordering the government to reinstate her benefits.

In a subsequent decision, the Court ordered the government to pay Ms Rogers' legal costs for the injunction application. The Court held that the immediate payment of such costs would increase the ability of ordinary citizens to seek justice in the courts and increase the number of law firms that are able to accept the financial burden of pro bono cases.

However, there was to be no justice for Kimberly Rogers. In August, 2001, the case came to a sad end when Ms Rogers was found dead in her sweltering apartment during the summer's record setting heat wave. Approximately eight months pregnant, Ms Rogers was still confined to her apartment and had been trying to survive on $18 dollars month (as a single adult, she was entitled to $520 from welfare per month. However, the government clawed back $52 from each cheque to repay what she owed, leaving her with $468. Her rent was $450).

Ms Rogers' death meant that her constitutional challenge did not proceed. However, in April 2000, the Harris Government amended the regulations under the Ontario Works Act to provide that anyone convicted of welfare fraud would be permanently ineligible for social assistance (the reason Ms Rogers was subject to a three month suspension rather than permanent ineligibility was because her offence was committed prior to the April 2000 amendments). Following Ms Rogers' death, another legal action was commenced challenging the lifetime welfare ban. Just before the case was to be heard by the Superior Court of Justice, the newly elected Liberal government amended the legislation to do away with the ban.

Ms Rogers was represented by Sean Dewart and Charlene Wiseman.

Click here for the Court's injunction decision

Click here for the Court's decision on costs