The inner-workings of the administrative state can seem hazy at best, even to those who take it upon themselves to study it. That’s not entirely a criticism—I understand that the varied aspirations and tensions of the administrative state often result in complex systems and procedures, and to expect otherwise is both unrealistic and reductionist.
That being said, these systems and procedures require some degree of transparency to the public, especially when they deal with day-to-day life.
I haven’t had any major encounters with the administrative state. None of my experiences thus far have required much more than a phone call or a visit to a Service Ontario location to rectify. However, the three I raise below have all resulted in some degree of anxiety, as I wasn’t sure how the dominoes would, or were even supposed to, fall.
The Descent
In 2018, I got into a workplace accident in Whistler, BC. It was pretty bad: The insides of my left knee had turned more or less to mush. I had to sleep in a full leg brace for six weeks because the joint was so unstable that my surgeon was worried I would further damage what was left of my knee during my sleep. And just like that, I found myself descending into the bowels of WorkSafeBC.
This led me to being put on hold, filling out endless forms, and sitting on a bus for hours to go to and from Vancouver to get an MRI performed. If I wanted to find some kind of remedy to my workplace incident, I would have to advocate for myself, while trying to manage a tremendous amount of pain and a newfound inability to walk. Sure, a system existed to take care of situations just like mine, but WorkSafeBC is constantly being flooded with claims. There’s no guarantee that employers will navigate their path within the system without complaint or pushback.
A case manager was assigned to me quickly, and she worked hard to make sure that I never slipped through the cracks of the WCB system, and that my employer never shirked their legal responsibilities to both me and WorkSafeBC. But I was extremely lucky. I had other injured colleagues who were assigned to caseworkers who were less-than-willing or less-than-able to provide their charges with the resources necessary to recover in an efficient and effective manner.
I want to make it clear that I do not pretend to fully comprehend the varied demands upon WorkSafeBC caseworkers. Instead, I raise this experience to point out that the experience within this administrative agency varies greatly based upon the discretion that individual actors are capable of exercising. This is, as a nascent member of the legal community, not much of a surprise. However, at the time, I was struck by how vastly different the return-to-work process can be depending on whose desk your file landed on.
The Betrayal
COVID-19 soon hit and I was planning my move to Toronto in July 2020. My BC driver’s license was expiring on 25 June 2021, and I could only renew my license in person at ICBC up to 180 days prior to the expiration date. This caused a problem: In the midst of a pandemic, I would have to get back to BC sometime between Christmas and half-Christmas to renew a piece of identification.
Although the idea of putting an Ontario driver’s license in my wallet made my orca-loving, cornice-dropping heart crack a little bit, to save myself from what I saw as a risky and pricey flight to Vancouver, I decided to simply swap my BC license out for an Ontario one. However, the ICBC and Government of Ontario websites did not make it particularly clear whether the swap would be as easy as 1-2-3. While there were clear rules governing driver’s licensing for international students, those pertaining to cross-provincial students were buried deep—so deep that I couldn’t find them. The Government of Ontario website stated, “When you move to Ontario, you can use a valid license from another province, state or country for 60 days. After 60 days, you need to switch to an Ontario driver’s license.” I had been here for more than 60 days, but I was also a BC resident. Where was the bolded, italicized, and highlighted passage just for me on the website?
I was digging through and noting up the Highway Traffic Act the night before I went into Service Ontario just in case I needed to whip out some kind of authority in front of the front-line decision maker I was going to speak to. I had just finished my 1L year and, armed with a statute and a bright red Osgoode hoodie, I was ready to take on the administrative state.
When I got to Service Ontario, I was called to the counter, and a very nice gentleman helped me convert my license. No bells started ringing, and I wasn’t swarmed by law enforcement officers and taken to the Ontario-Manitoba border and summarily kicked back in a Western direction. On face value, it would appear that I had been worried for nothing. But a couple of things still weigh on my mind about this interaction.
First, in the midst of a global pandemic and before vaccines were widely available to all age groups, it is downright staggering to me that ICBC expected out-of-province students from BC to make a pilgrimage back to our home province to renew our licenses. Flights were not likely to be safe forms of transportation yet, and not all of us could afford the time off to drive cross-country, if we even had cars (which I did not). To push that further, it’s bizarre that students studying outside of BC are assumed to have the funds to sally to and from the closest ICBC office for a driver’s license renewal, especially when many, if not most, of us are in debt to the Government of British Columbia via StudentAid BC.
Second, my situation could not have been all that unique. I’m hardly the only BC student at Osgoode, let alone Ontario. Rules governing the driver’s licensing process for cross-provincial border students ought to be clearly displayed on all provincial licensing websites. I was (mildly) prepared to go down swinging if the Service Ontario agent didn’t want to acquiesce to my licensing request, but not every out-of-province student is. Driver’s licensing should be a straightforward and easy process.
The Resolution
Along with my driver’s license, my BC Service Card, which operates as a health card, was expiring earlier this year. I decided not to try to have it converted into an OHIP card at the same time as my driver’s license as I was worried about triggering various residency rules and did not want to risk my luck. But my BC Service Card expired, and while I still had access to my electronic card, I needed something in my hand if I needed to go to the hospital (I tend to be chronically injured, to various degrees).
Again, I was concerned about triggering various residency rules that would affect my student loan status. I later emailed StudentAid BC and was told that “Changing addresses to a different province does not exempt you from being a BC resident. If BC was your last province of residency for 12 consecutive months prior to the start of your study period, you are eligible to apply for StudentAid BC.”
This was comforting to a degree, but I still had concerns about which province would cover my healthcare. I put out a call to the Osgoode Class of 2023 Facebook page and asked my fellow British Columbians how they maneuvered this situation. The replies I received confirmed that I could make the switch to OHIP, but the three qualifications to do so still caused some pause:
“To meet the minimum qualifications you must:
- Be physically in Ontario for 153 days in any 12-month period
- Be physically living in Ontario for at least 153 days of the first 183 days immediately after you began living in the province
- Make Ontario your primary residence.”
I met the first and third qualifications, but the second was potentially problematic. The Registration for Ontario Health Insurance Coverage form asks, “When did you take up permanent residence in Ontario?” That was not entirely clear for me. It was a fluid transition from moving to Toronto for law school to realizing that I wanted to stay. When I went to Service Ontario, the agent (who I have to say was very helpful) asked for a specific date when I took up permanent residence and I struggled to give a single date. If I gave the date that I was submitting my form I would fail the second qualification, and would have to stay in Ontario for 153 out of the first 183 days since that date onward. I ended up choosing a date within that fluid period during which my loyalty to the British Columbian flag had begun to fracture, and that seemed to satisfy the powers that be, but not before the agent spoke with someone higher up the food chain in hushed tones. Presumably, my lack of confidence gave the agent some small reason to pause.
All’s well that ends well, as the saying goes, but these three ordinary and unremarkable experiences made me think: We spend a lot of time at law school talking about the importance of access to justice, but even now, having some knowledge of civil procedure and administrative law, if I was denied a driver’s license at Service Ontario, my recourse would likely be to get on the phone and ask in a slightly shrill and annoyed tone to speak to the manager.
Our administrative state bears an unfathomable load, and, for the most part, it does so in an efficient and effective manner. That being said, many of the daily situations that require resolution by a front-line administrative decision maker demand a concerning amount of discretion. If my case manager at WorkSafeBC was less involved or less empathetic, my recovery would have been much more unpleasant than it already was. Or, if the agent at Service Ontario gave me a hard time about the timing of my decision to make Ontario my primary residence, getting my OHIP card could have become an extended ordeal.
I don’t intend to pontificate as to the merits or detriments of discretion within the administrative state, or the law in general. Instead, this article is meant to be a simple reminder that it is worth considering the role that discretion can and does play in our everyday lives.