REVIEW OF OFFICE OF THE OMBUDSMAN
CONTENTS
Wednesday 26 August 1992
Review of Office of the Ombudsman
Ontario Separate School Trustees' Association
Mary Hendriks, president
Patrick V. Slack, executive director
Gail Morrison
STANDING COMMITTEE ON THE OMBUDSMAN
*Chair / Président: Morrow, Mark (Wentworth East/-Est ND)
Vice-Chair / Vice-Présidente: Haeck, Christel (St Catharines-Brock ND)
Akande, Zanana L. (St Andrew-St Patrick ND)
Drainville, Dennis (Victoria-Haliburton ND)
Duignan, Noel (Halton North/-Nord ND)
Henderson, D. James (Etobicoke-Humber L)
Johnson, Paul R. (Prince Edward-Lennox-South Hastings/Prince Edward-Lennox-Hastings-Sud ND)
*Miclash, Frank (Kenora L)
*Murdoch, Bill (Grey PC)
*Perruzza, Anthony (Downsview ND)
*Ramsay, David (Timiskaming L)
Witmer, Elizabeth (Waterloo North/-Nord PC)
Substitutions / Membres remplaçants:
*Curling, Alvin (Scarborough North/-Nord L) for Mr Henderson
*Hansen, Ron (Lincoln ND) for Mr Duignan
*Harrington, Margaret H. (Niagara Falls ND) for Mr Johnson
*Klopp, Paul (Huron ND) for Ms Akande
*Mammoliti, George (Yorkview ND) for Mr Drainville
*Owens, Stephen (Scarborough Centre ND) for Ms Haeck
*In attendance / présents
Clerk / Greffier: Carrozza, Franco
Staff / Personnel: Murray, Paul, committee counsel and research officer, Legislative Research Service
The committee met at 1016 in room 151.
REVIEW OF OFFICE OF THE OMBUDSMAN
The Chair (Mr Mark Morrow): I would like to call this committee to order, please. Good morning. I'm Mark Morrow. I'm Chairman of the standing committee on the Ombudsman. We're dealing with the review of the Office of the Ombudsman, as a motion was passed in the House, July 23, 1992, allowing us to do so.
ONTARIO SEPARATE SCHOOL TRUSTEES' ASSOCIATION
The Chair: This morning we have appearing before us the Ontario Separate School Trustees' Association. Good morning and welcome. You have this morning to give us your presentation. I would ask that you, hopefully, leave us some time for questions and comments. Begin when you're ready, when you feel comfortable, and when you begin, could you please read your name into the record for us. Thank you very much.
Ms Mary Hendriks: Good morning. My name is Mary Hendriks. I'm the president of the Ontario Separate School Trustees' Association. In my leisure hours, I think I still live in Grimsby, in the riding of Lincoln.
Mr Patrick Slack: Only a little bit.
Ms Hendriks: Only a little bit. With me this morning is our executive director, Patrick Slack. With your permission, I would first like to give a few opening remarks and then get into our brief, which I believe is in front of you this morning as well.
The Chair: Please do.
Ms Hendriks: The Ontario Separate School Trustees' Association represents 54 Catholic school boards in Ontario which in turn provide separate school educational services to more than 575,000 Ontario students. We appreciate the invitation and opportunity to make this presentation to the committee this morning.
Your letter of invitation indicated that the Ombudsman discussed the possibility that complaints concerning the actions and decisions of school boards should be included within his or her jurisdiction. Our comments this morning therefore will address the issue of school boards as they would relate to the role of the Ombudsman.
Our brief is an examination of the conceptual reasons for the Office of the Ombudsman, an office instituted, at least in part, to permit a review of bureaucratic and similar decisions which are not in a practical or effective manner under the review or control of some authority in either the political or judicial sense.
In contrast, currently there do exist practical and effective contact and influence by the electorate over the activities of the trustees. OSSTA believes that this practical and effective influence over trustees does permit the electorate to exercise control over the bureaucratic decisions of separate school boards. Our brief points out the many areas and ways in which this control is exercised and concludes that an extension of the role of the Ombudsman into the activities of trustees is therefore unnecessary and redundant.
If I may turn to the brief, we begin by pointing out the conceptual reasons for the Office of the Ombudsman.
There is no body having the authority to review the actions of members of the Legislative Assembly except as part of the provincial election process where the electors must choose between candidates for office on the complete range of current issues, not merely the exercise of arbitrary or other unacceptable representational activity.
In part because of employment protection afforded to the provincial civil service, there are practical and statutory limits upon the control that may be exercised by the members of the Legislative Assembly to review the actions of the civil service in its exercise of authority that may be either arbitrary or otherwise unacceptable. The Office of the Ombudsman was constituted, at least in part, to permit a review of bureaucratic and similar decisions that are otherwise incapable of practical and effective review or control in either the political or judicial sense.
In comparison to other levels of government, school boards do have a relatively intimate nature of contact. At the school board level there is significantly more contact and influence by the electorate over the activities of the trustee-politicians than is the case at the provincial level. At the school board level, this greater contact and influence over the activities of the trustee-politicians permits the electorate to have greater control over the exercise of bureaucratic decision-making.
Comparative frequency of contact between politicians and electorate: We try to point out references to the various sections of the Education Act in this particular section.
Under section 208 of the Education Act, school boards are obligated to hold a meeting in December in each year. Under section 208 of the Education Act, school boards are permitted to hold other meetings at such time and place as the boards consider expedient.
In actual practice, school boards hold regular monthly board meetings, and often more, and, in addition, regular monthly committee meetings, again often more than monthly. Each of these meetings, again in actual practice, is advertised to a greater or lesser extent, depending upon the community in which the board operates, either by announcements to the local ratepayer groups by the individual trustees, by statements or paid advertisements in the local media, by notices published through the schools operated by the board and often, in the case of separate school boards, by notices published in local church bulletins.
Having been invited to attend these public meetings, members of the public are generally, almost universally, invited to make representation to the boards, thereby participating in many, if not most, decisions made by boards. Persons who have objected to a decision made by the trustees or by an employee of the board are thus afforded the opportunity to attempt to, and frequently do, reverse decisions made by the trustees or employees of the boards. The most recent example of this would be the recently publicized decision of the East York Board of Education.
Regarding the legal considerations, access rights mandated by the existing statutory provisions, we have broken these down into broad rights and specific rights.
Under section 207 of the Education Act, school boards are obligated to hold their board meetings in public and no one may be excluded except for improper conduct. Under section 207 of the Education Act again, school boards are only permitted to exclude the public from committee meetings, not board meetings, when the subject matter before the meeting falls within the narrow exceptions of security of property, disclosure of personal information, acquisition or disposal of property, labour negotiations and litigation.
Under section 123 of the Education Act and section 52 for public elementary and secondary schools, parents have a legal right to visit schools their children attend.
Under either the Education Act or the Municipal Freedom of Information and Protection of Privacy Act, school boards are obliged to give public access on request to their records that are not records containing personal information.
In the area regarding specific rights, under subsection 8(3) of the Education Act, the Minister of Education is required to, and in practice does, ensure that all exceptional children in Ontario have appropriate special education programs available to them.
Under section 10 of the Education Act, the Minister of Education has extremely broad powers of investigation into any educational matter in Ontario and may refer any matter to the courts for opinion and decision.
Under section 23 of the Education Act, the parent of a pupil or the pupil, if an adult, may appeal the suspension of the pupil by the principal. Under section 23 of the Education Act, a pupil may be expelled by a board only after a hearing held on notice to the parent of the pupil.
Under section 24 of the Education Act, the parent whose belief that his or her child is excused from compulsory attendance from school is challenged has a right to a hearing into the alleged excuse.
Under section 35 of the Education Act, a parent has a right to participate in a hearing, conducted by a special committee composed of educators and a physician, into whether a pupil is unable to profit by instruction by reason of a mental or mental and other handicaps, to make representations to the board which considers the report of such committee and to make representations to the special education tribunal if the parent brings an appeal to that body.
Under the combined effect of Ontario regulation 554/81 and section 37 of the Education Act, the parent of an exceptional pupil, who does or may require a special education program, has four opportunities to appeal the initial decision of the identification, placement and review committee related to the pupil's proposed program.
They may request the IPRC to reconsider its recommendations; appeal to the school board from the IPRC recommendation, which board must then appoint an appeal board that must include a parents' group representative; appear before and make representations to the school board when the recommendation of the appeal board is to be considered, and appeal the decision of the school board to a provincially appointed special education tribunal.
Under section 43 of the Education Act, an applicant for admission to a secondary school who is denied admission by the principal may appeal the denial to the board.
Under section 265 of the Education Act, where the principal refuses to admit to the school or classroom a person whose presence in the school would, in the principal's judgement, be detrimental to the physical or mental wellbeing of the pupils, the person may appeal to the board.
Under section 266 of the Education Act, the parent or the pupil if an adult has the absolute right of access to pupil records.
Under section 266 of the Education Act, the parent, or the pupil if an adult, has the absolute right, even as against the usual court processes, to control who, apart from the educators who require access for educational reasons, may examine pupil records.
Under section 266 of the Education Act, the parent, or pupil if an adult, has the right to require the principal to correct inaccuracies in or alter pupil records that are not conducive to the improvement of instruction of the pupil. In the case of refusal to correct or alter, the parent or pupil has the right of appeal to the appropriate supervisory officer or to a provincial appointee who is required to hold a hearing before making a decision.
Under section 270 of the Education Act, a teacher has a right to a hearing before a board of reference in the event that the board terminates his or her teaching contract.
Hearings governed by the Statutory Powers Procedure Act: Since much of the foregoing decision-making is required to take place at a hearing, the proceedings are governed generally by the Statutory Powers Procedure Act, thus ensuring a minimum standard of procedural fairness.
There is also availability of judicial review in decision-making. Persons who are parties to such proceedings who believe that they have been adversely affected by the decisions of the board have the right to ask the courts to judicially review such decisions.
A recent example of that is a case of parents in the Windsor area requesting that judicial review take place to challenge the decision of the board, the separate school board in this case, which had decided to close some of its schools. The ruling in that particular case was in favour of the parents, who felt that their suggestion of the board not following their procedures was accurate.
In conclusion, in our opinion, under the Education Act, the Statutory Powers Procedure Act and other appropriate acts, there was ample opportunity for control over school boards by the electorate. We would be most willing to attempt to answer any questions that you may have.
The Chair: Thank you very much. Questions and/or comments? Mr Owens, please.
Mr Stephen Owens (Scarborough Centre): Just let me begin, Ms Hendriks and Mr Slack, by thanking you for your presentation this morning. I have the pleasure of working with one of your trustees, Carol Devine, on various issues, especially in the area of developmentally handicapped students who are in attendance at Monsignor Fraser College. She does an excellent job and cares a lot for her people.
In terms of your brief, I guess I'm distilling from your comments that you in fact believe that the Ombudsman has no place in the schools and in the Education Act. Is that the correct opinion that I'm drawing from this?
Ms Hendriks: In our opinion, we feel that there are ample opportunities for the electorate to question the decision-making of the trustees. It's our understanding that the Ombudsman does have jurisdiction or has some authority over the Minister of Education, and our feeling is that our electorate does have the opportunity, through the various sections of the Education Act and the Statutory Powers Procedure Act, to have recourse to challenge the decisions and to question the decisions of the trustees.
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Mr Owens: The one concern that I have is with respect to placing matters of education before the courts in terms of students who have gone through the IPRC program or students whom the board wants to declare hard to serve. First of all, it's a very expensive proposition for both the board and especially for the parents, and I suggest that in many cases it would be out of reach. In your view, would the Ombudsman not be both a cost-effective and a fair way of appealing decisions that the parents and/or students may be at variance with, rather than resorting to the courts?
Ms Hendriks: In my opinion, it would be except that if the jurisdiction of the Ombudsman were to be expanded, there would be a necessary expansion of services that would be required to effect that. I understand that there is a budget of $9 million at present and a staff of 125. In comparison to that avenue and from our understanding of what is now available through the Education Act and through the various acts, it would appear that this might be even a more expensive way and an unnecessary, redundant way to expand the opportunities for the electorate. I think that we have at least attempted to point out that there are avenues now available that don't seem to be stumbling blocks. I don't know if our executive director, Pat, would like to expand on that.
We see it as an unnecessary and redundant decision to expand those areas of jurisdiction when in fact there already are opportunities that have been proven to be effective for the use of the electorate in challenging the decisions, and we tried to cite some of the most recent examples of that.
Mr Owens: I appreciate your thoughts, and I've certainly not made up my mind on this issue. You've provided some interesting food for thought. I'd like to pursue those with your association at a later date.
Mr George Mammoliti (Yorkview): Thank you very much for coming out. I appreciate it. For the viewing audience, could you please tell us in a nutshell exactly what your mandate is as an association?
Ms Hendriks: In a nutshell? We have a board of directors that is composed of 26 trustees from all across the province. We attempt to provide services to them, liaison for them and with them to the Minister of Education. We attempt to address concerns that they may have. We make representation to the minister, we sit on various ministry committees and attempt to provide a focus at the provincial level for the concerns of our member boards, in particular as they concern Catholic education across the province.
Mr Mammoliti: I assume that there's a fee attached to all of this for the trustees?
Ms Hendriks: That is correct.
Mr Mammoliti: What is that fee?
Ms Hendriks: It is based on the pupil population of each of the boards. There is a formula that we have used that attempts to provide a fair membership fee for the boards to our association, and that helps to fund the services that we try to provide on their behalf.
Mr Mammoliti: I tend to agree with you in terms of trustees being a little more accountable to the public. I know that first hand because I go to quite a few of the meetings, and they certainly have to answer a lot of questions and make sure that they do the right thing. On that point I do agree with you.
But I find that in most areas, parent-teacher associations do exist and that's where they're usually more accountable, in my opinion. What about areas where parent-teacher associations aren't active and it's in the discretion of the trustees and the superintendents? What about those particular areas? How do you feel about the Ombudsman looking into those types of areas?
Ms Hendriks: I think in any jurisdiction the activity of the parent-teacher association will depend on the community, the parents, the teachers, the willingness and the interest of that particular community to make it an active community. Often what we have found is that it takes a particular concern or interest that would pique the interest and activity of a particular school community. In some cases a community is vibrant and very active regardless of whether there's a particular interest.
I don't think that even the involvement of the Ombudsman could make a community alive and active if that community is not willing and receptive to that. There are certainly areas where we feel there could be improvement in terms of the communication with parents. All of us are aware of that and we try to address that. I think we're dealing in an era, compared to many years ago, where the small school community and the focus of the community in that school is not necessarily the same as it once was. Parents, in many homes, are both working outside the home. They're not quite as able, timewise even, to become as active in their school community unless it's a particular area of interest.
Mr Mammoliti: Just for the record, I do agree with you on this. The reason I'm asking these questions is because I've certainly been asked these questions. And those are the responses that of course I've given.
But there is one area that I'm concerned about -- just leave the trustees aside for one second, if you don't mind -- because the decision-making that superintendents would have sometimes doesn't necessarily reflect the views of the trustees. How do you feel about the Ombudsman getting involved with that level, the superintendent level?
Am I making sense or not? Would you like me to rephrase that?
Ms Hendriks: Are you suggesting that the superintendents perhaps should be accountable to the Ombudsman as opposed to the board?
Mr Mammoliti: I'm just asking how you feel about that.
Ms Hendriks: I think it could prove quite difficult for there to be an agency that might be perceived as interfering in the relationship between the supervisory officers and the trustees. I know what you're saying. The public is saying that the trustees should be accountable for the decisions of the board, and that in their perception, supervisory officers sometimes are making decisions that are not necessarily the decisions of the board.
I'm not so sure that's always the case. I think the board needs to be sure that its policies are established and the supervisory staff are following the guidelines of those policies. Communication is probably one of the critical factors in all of that -- communication and relations between the supervisory staff and the trustees and the board and the community.
Mr Mammoliti: For the record, in terms of expanding the role of the Ombudsman, I'm still not convinced there isn't a problem within the office, and I think that expanding it would probably make it worse. So I thought I'd just say that because I'm very frustrated with what's been happening, and I'd like a lot of questions answered.
We'll just leave at that, Mr Chair, for now. I've got other comments to make later.
The Chair: Thank you very much, Mr Mammoliti, for your insight.
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Mr Alvin Curling (Scarborough North): Thank you for your presentation. I should declare immediately that I believe in the Ombudsman's role. I think it's important that we have an Ombudsman in the province. I think our problem now is that we don't have really defined legislation showing how it should be properly operated, where it should be operated, who's accountable, rather clear about it, and we are in for a wrangle of interpretation of laws and who has the powers around here.
Your presentation focuses really on, more or less, the school trustees. As you know, the Ombudsman at least has jurisdiction over the Ministry of Municipal Affairs and the office also has jurisdiction over the Ontario Municipal Board, but the concern is it has no jurisdiction over the municipalities. Therefore, if there are investigations to be done, there's only so much they can do.
It's rather contradictory in a way that the Ombudsman has jurisdiction in the big Ministry of Municipal Affairs, but the other factor that falls within Municipal Affairs is that individual, the Ombudsman, has no jurisdiction in the school trustees. I just want to put that in place.
The other part, which I slightly disagree with you on -- I know you draw a lot of reference to the fact that they are already being quite well looked after and controlled under different acts, within the Education Act, but we politicians through the Parliament are accountable in a number of ways. Lest you forget, and of course you know, we have the government accountable each day in question period by making it accountable for every act, not only itself but also through the ministry. That is one of the very effective ways. Often, as you see, the government tries to scatter away from question period as soon as the heat comes, but it is there and it answers the questions to the best of its ability, not only in that question period time but there are also written questions that are submitted.
We also have the conflict of interest, which everyone has, as an accountability session too. We also have the Commission on Election Finances, how we behave, each individual, so there is accountability for those provincial and federal politicians.
This committee itself has an accountability too for any act. I just want to say to you that there are balances. I see there are a lot of reasons why the Ombudsman could be looking inside the schools themselves, and I have many cases of students who have had a very difficult time with -- maybe if I say it in this way, in a simple and practical way -- grades or absenteeism that they are trying to challenge. By the time they appeal it through the process, what happens is that each one just confirms what the others say and the parent or the child ends up with the same type of decision. I'm just saying that from experience.
The parent or the student who feels that they are not being treated properly, if they take it through, for instance, the human rights -- they have to file a case and justify it to the human rights -- and fail, I think they should take their case to the Ombudsman. This is to say: "The system itself is not working in my favour. Could you investigate?" So I would be one who would support that the Ombudsman look at those things.
Now you're specifically saying the trustees, and I can't see a role that the Ombudsman -- the trustee is an elected individual -- should then start to investigate trustees, and I think that's how I got the drift here because there are two ways.
Maybe I should ask then to explain to me, are you then focusing that the Ombudsman should not have jurisdiction to investigate trustees or not have jurisdiction to investigate some of the procedures I just talked about, some of the problems a student or parent will have? Could you clarify that for me? I hope you get my drift.
Ms Hendriks: I think what we were trying to provide in our brief was an indication of avenues available for parents, for the electorate, to challenge the decisions of the trustees, the actions of the trustees. The trustees are making decisions that directly affect the students, particularly in the area we had suggested here, where decisions are made about students who have special needs. There is an avenue through the appeal process, the tribunal etc, whereby the parent who has concerns about his particular child does have an avenue, several steps to go through. It may begin at the school, continue on through the board level and so on at the provincial level.
We were attempting to address both the accountability of the trustees and the concerns of the parent over his particular child. Perhaps the area of improvement in that process might be one of communication and insurance that the parents do know what avenues are available to them. That certainly is something I believe a lot of parents aren't necessarily familiar with. Whether it's at the local level or at the provincial level or at the federal level, I'm not so sure the general electorate is always aware of the avenues that are available to them.
Mr Curling: I'm finding, though, as I said, that even if that parent or student knows the process, still all they're getting is just a copy of the same decision of the level. In other words, they go to the teacher, the teacher goes to the principal, you appeal it to the principal and the principal will say, "Yes, I agree with what the faculty has stated here." The individual will take it to his trustee or the superintendent: "Yes, I agree. I think it is fine." It's all each one investigating each one, like the police investigating police.
Therefore, I feel that if someone has taken that through the process and is not feeling rather comfortable that justice has been done -- it may seem to be done, and sometimes that cliché never really grabs me anyhow, because the emphasis is more that it seems to be done. But it's not done, and like I said, I want to take it somewhere else.
If I go to the Human Rights Commission and I don't feel satisfied about that, where do I go? I think the Ombudsman is a good place to take it. I don't believe the Ombudsman should be investigating trustees and superintendents. I think it's interfering with the process in there, but through that process it shows we would be able to investigate that decision.
Ms Hendriks: I'm afraid I'm not familiar with what would happen after the Human Rights Commission. I do know that many of our parents who do not get satisfaction or feel they have satisfaction at the local board level have in fact contacted the provincial Ministry of Education and pursued their concerns through that avenue. Whether it's always a decision that has supported the decision at the local level, I'm not aware. Just from personal experience, I do know that there has been that avenue available to them.
Mr Slack: Just as a quick response to that as well, I worked in the educational system and I was a teacher and a principal and a superintendent, and through that process have sat in all of those different places. I was a student too. I do know there are problems and there are indeed difficulties that you've just mentioned that are hard to resolve in any of those settings.
I can recall with clarity, and I know it happens often, that teachers are counselled to change their views on things, particularly marks of students. It is the jurisdiction of the principal to change that, and my own experience is that we did many times.
If the failure rate in the class was unacceptable to the view or the philosophy that the principal held, the challenge was addressed and changes were made. In my own case, I made many of them in the interests of students. I'm not sure that's every principal, but I think it's the responsibility of that role.
Then, as superintendent, you're often required to review the decision of a principal in the view of perhaps a wider problem within a community, and my experience there again is that it is reviewed rather critically and often -- not often -- there are changes made, there are influences made that help to change.
I guess sometimes when a mistake is there, it's made and you can't back up from it. You have to then correct it in the future. You can't go back to yesterday and do the right thing, because you've already injured the student or the teacher, or harm has been done. But I've come away from that experience of being an educator for 35 years believing that we did as best we could, and I know we failed on some of them.
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Mr Curling: Mr Slack, you have expressed it exactly the way I've seen it at times. Most of the cases are resolved in the way you've said, with extreme cooperation by superintendents and principals, but one or two go through. We say we can't change the law for that, but I tell you, one destruction of a life --
Mr Slack: Yes, I agree.
Mr Curling: -- is just horrendous, and I will be very blunt, especially with the minorities. I have a lot of black students who are coming to me who have genuine concerns.
Mr Slack: Oh, sure.
Mr Curling: Just one shattering of hope, of vision -- and we're speaking about one or two. I want to be on record that the majority of the principals and superintendents and teachers are very good, but that one or two just destroy a lot of life. Do you feel the Ombudsman could play a role here, if that process, as I have described, as we go through all that, go through the Human Rights Commission --
Mr Slack: My experience has been that the Human Rights Commission has been able to deal with those one or two, and I can think of the two cases --
Mr Curling: With that backlog there, I'm not quite sure they can deal with it.
Mr Slack: That might be a problem I don't understand.
Mr Curling: As I said, this is justice denied by not being there. The courts are packed up, the Human Rights Commission is packed, the Workers' Compensation Board has a big lineup, and I'm not blaming, because people are more conscious about exploitation in a rather covert way; therefore they are aware of this, just like sexual harassment and all that. People are coming forward, but I'm not quite sure if it's being handled, if they can wait that long.
Mr Slack: If I may, Mr Chair, just one quick response. I think it's more recent that it seems to have been in our educational field. Perhaps they were always there, but people didn't know they should challenge a bad decision or an unfair decision.
My own experience in the last 10 years would be that two cases went to the Human Rights Commission and resolution in a favourable way to the person injured was achieved through the discussion with the representative in the city I worked in from the commission office, and that recourse resolved those two rather I think wrong decisions and injurious decisions to a teacher in one case and to a black student in another case. Both were bad decisions by the authorities in the school system, but they were challenged and they were reversed, so I have more confidence that we can do it, but maybe we fail still in some of those places.
Ms Hendriks: I think the point we are trying to make in our brief is to recognize that there may be needs. Certainly this committee is looking at whether or not the Office of the Ombudsman should be the one to address those needs. Our suggestion is that in our opinion there are avenues that are already available for the education system. If there are some pitfalls, shortfalls, perhaps a review of some of those areas would be in order, as opposed to providing what we perceive to be a system that might be redundant and a duplication of services. I think we're all aware of the concern about that kind of duplication potential.
Mr David Ramsay (Timiskaming): Thank you very much for your brief today. I found it very informative because it has come to us from a very different point of view and a very different angle, primarily targeted at whether we should be expanding the powers of this particular office. I really agree with your points, and I agree with you for two reasons.
We would have to be very cautious in this committee to recommend expansion of powers to any sort of local board or agency, because if we do that for one, we really would be obligated to do it for all. It would seem to me we would be creating either a brand-new bureaucracy, which is the way I think one would have to go if one went that way, and quite frankly today in society we can't afford that and we don't need it.
My second point is, I think it's an obligation on us as citizens -- not just a right but an obligation -- to defend democracy. We should be at local board meetings and council meetings with our ratepayer groups or as individuals and hammering away if we don't care for a decision, getting involved politically, and throw out a council or school board if we don't like its direction, rather than sort of taking a lazy route of saying: "Oh, well, we don't like that. We can call this Ombudsperson and we'll try to get it fixed."
I can just see the cases coming in. I'm sure we would have a service that could be handling double the cases that we have today in dealing with the provincial government. It's so much easier, at the local level, to be proactive in democratic action than it is with the provincial government. That's why I see that there certainly is a need to have a provincial Ombudsman. Absolutely.
But if we start having somebody looking over the shoulder of every board and agency now -- and we're talking children's aid and the hospital board -- I mean, there are hundreds of these boards. There are 760-odd municipalities across Ontario. We may even double the bureaucracy of what we have today because of all this, and people will just say -- it's so easy -- "Just call the Ombudsman."
I think we'd have a real mess on our hands. It's much more difficult for people to deal with the bureaucracy at Queen's Park, being such a large province and such a large bureaucracy, and we need a very strong Ombudsperson as the watchdog, for sure. But if we open that up to looking at every local board and agency, I think it would be wrong. So I just want to say this morning that I agree with you.
Ms Hendriks: Thank you.
Mr Bill Murdoch (Grey): I just want to echo what Mr Ramsay just said. I also agree with your brief. I can see where maybe Mr Curling has had some experiences, and there are some problems in some areas, but I don't think we can have everybody running off to the Ombudsman. I think the office was set up to govern ministries here at Queen's Park. They do their jobs and they'll look after affairs of trustees.
I'm a past councillor and reeve of a township and I certainly wouldn't want to have the Ombudsman chasing after municipalities all the time. We have enough trouble as it is now trying to do our job. I don't think we'd want to have another one over our heads. I don't need to go on and on, because David wrapped up pretty well and Alvin is sitting right here beside me. But I just want to tell you I agree with your brief. I thank you for bringing it to us.
Mr Curling: Mr Chairman, I don't know if you want a rebuttal to that.
The Chair: No, I don't need a rebuttal, Mr Curling.
Ms Margaret H. Harrington (Niagara Falls): What we're talking about here is adequate checks and balances, and you're saying the system that is in place now is adequate. I did have a couple of questions with regard to that system you have in place now that arise directly from your brief.
First of all, your premise at the beginning that elected officials are certainly answerable at an election, I think we all understand that part of it. Of course the situation I think we are talking about is between elections, particular decisions, individual items which may not be reflected at election time that have to be dealt with in between.
One such mechanism for dealing with these reviews of decisions that you mention on the last page is what you call a board of reference. It says, "A teacher has a right to a hearing before a board of reference in the event that the board terminates his or her teaching contract." Can you tell me what that is?
Mr Slack: What a board of reference is? I can give you the exact definition. When a teacher is in jeopardy in terms of some decision made by the board that has employed that teacher, has dismissed the teacher, and the teacher believes it's an unjust or unfair decision, he or she may appeal to the minister to have a board of reference hearing to challenge the board's decision, explain the position of the teacher and reverse, if possible, the decision on that teacher's employment. It's usually employment, I think, that they are dealing with.
Ms Harrington: So what I'm gathering is that the person will have to appeal to the Minister of Education.
Mr Slack: There's a section in the act which directs you how to do this. It's not a difficult process, because it's really looked after by the representative for the teacher, which could be his or her federation that would in fact challenge the decision of the board for the teacher and carry that forward as an association would perhaps for a member of its association.
Ms Harrington: So these would be people who are appointed by the minister.
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Mr Slack: There is someone appointed to hear that. I don't know the status of that person in terms of background, but there is an appointment made to hear the case of the teacher's complaint against the decision and to judge that decision.
Ms Harrington: And that's called a board of reference.
Mr Slack: That's a board of reference.
Ms Harrington: I wasn't aware of that before, and I was a teacher.
On page 3 you talked about the exceptions to a school board meeting being open to the public and/or parents etc. You mentioned five items which are the exceptions. My question is, what about staffing matters, personnel matters? Are they closed meetings? We're talking about hiring, firing, this type of thing, because I am aware that the public has been told that it was not to be there at such a type of meeting.
Ms Hendriks: That is included under the section "disclosure of personal information."
Ms Harrington: So "personal" would also mean "personnel"?
Ms Hendriks: Personnel.
Ms Harrington: Thank you very much.
Mr Owens: Just in terms of some of my friends opposite, I'm not sure that I agree totally with some of their comments. In my view, a person going to the Ombudsman -- and I stated earlier that I haven't made my mind up in this situation; I would not see every Tom, Dick, Harry and Jane coming to the board -- would be going for more esoteric reasons than simply: "The child was told to stand in the corner. We don't think that was an appropriate type of punishment," and blah, blah, blah.
When I look at some of the comments you've made in your brief, the thing that troubles me is again if, in the view of the child or the parents, they disagree with a decision -- for instance, on page 4 of your brief, section 43 of the act, "an applicant for admission to a secondary school," blah, blah, blah, "by the principal may appeal the denial to the board." What happens if, in the view of the parents -- it's the third-from-the-bottom comment -- they disagree or the child disagrees with that decision, so they go to the board and the board turns them down?
Mr Slack: My response to you would be that they still have recourse. They cannot be denied admission to a secondary school, and anyone who presumes they can do that would be challenged by the superintendent, then by the parent going directly to the board. If the board didn't understand its responsibilities, they could go beyond that again to the ministry through the regional office, or a letter to the minister directly is always answered. I think those things are challenged rather effectively by parents and by students. Principals, in my experience, are quite wary of that inability that they may want to exercise at times.
There are reasons later, when a student is in your school and becomes, in effect, a detriment, as it says, to the wellbeing of the students, a clear decision can be made about his or her not being in the school for a period of time, the suspension, and if in fact that does not influence the change that's needed on the behaviour, an exclusion or an expulsion from the school, again a decision by the board itself, can limit that student's ability to go to school in that jurisdiction.
Mr Owens: Sure. Would your group not perhaps, if in fact you were covered, use decisions by the Ombudsman to lobby the government for additional funding, especially for the children with special needs, if the Ombudsman declares that the child is not being served properly, blah, blah, blah? Would you take the decision to the Ministry of Education and say: "Look, the decision has come out. We need the money to put this particular program into place for that child, or children of a similar nature"?
Ms Hendriks: Is that not an area where the local member of provincial Parliament would be the direct contact for the parent?
Mr Owens: Absolutely, but sometimes we need help as well, no matter which side of the House we sit on.
Ms Hendriks: I'm sure in those instances there have been occasions when the local trustees or municipal councillors have met with the local MPPs, as I'm sure all of you are aware, and attempted perhaps to go together to whomever to lobby.
Mr Owens: Absolutely, and as I mentioned, I've been working quite closely with Carol Devine on Monsignor Fraser College, and the separate school funding issue as well. So yes, that interdigitation has taken place, but again, in terms of just that extra push, perhaps while politically we may be on side, the bureaucrats may need that little extra demonstration of need.
Ms Hendriks: I guess that's an area where this committee would have to determine whether there's extra assistance that's required of the Ombudsman. I think the point we're trying to make is that we think, in our opinion, there are --
Mr Owens: I'm trying to help you out here.
Ms Hendriks: I'll take the help.
Mr Owens: Just a question to counsel: On page 4 of the brief, the third point from the top, "Under section 35 of the Education Act," I wonder if we could check to see if, under the consequential amendments to various pieces of legislation as a result of the Advocacy Act, substitute decision-making and consent to treatment, whether in fact this is going to have an impact on this section of the act with respect to advocates in the schools.
Mr Paul Murray: Yes, I can examine that question and get back to the committee.
Mr Owens: We'd certainly appreciate meeting with you at some point as well.
Mr Paul Klopp (Huron): Good morning. I find this very interesting. I take out of my experience that the Ombudsman is there for the last resort. As a farmer and whatever, I know there were people even at the Ministry of Agriculture and Food who felt that they had gone through all the hoops. They want an avenue and it's there.
I think earlier you answered part of this first question that I have, but I'd like a little more clarification. There are always cases, no matter what, where I've gone every avenue and I still don't agree with the decision. I'm also a big enough person to recognize that if 12 people have told me I'm wrong, maybe I'm wrong. But it's a democratic right that I can keep asking if there's another avenue. That's a personal opinion here.
Roughly how many cases -- and I don't expect you to know there were 142 in the last 10 years or anything -- have you had where the client, no matter who it is, has really gone through all the hoops that you have shown here and still not been satisfied or understood the answer maybe? Do you have that number at all?
Ms Hendriks: I'm afraid I don't. Do you have any numbers?
Mr Slack: I can't give you a number, but I can give you an impression of that.
Mr Klopp: Yes, maybe that's the way I should do it.
Mr Slack: It seems to me that a number of people are like you. They aren't satisfied, but they will accept the judgement that is placed on them by a number of judgements. Repeatedly finding that they are in agreement sometimes convinces them: "Maybe I am misunderstanding," or "Nobody else understands me." I don't know particularly if that's it, but I often feel that the decision is a compromise to meet both needs, of institution and of individual.
Mr Klopp: I guess my question is a feel of, even after all that's been done, how many have gone on and still tried to beat as many drums as possible, no matter what.
Mr Slack: In my own experience, my response before was that there are two particular cases that I can recall -- three, I had better say, because a board of reference as well -- that have gone right to that limit, and two of them went to the Human Rights Commission. The individual was addressed and the needs were readdressed there. So they saw it differently than had all the people preceding that.
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Mr Klopp: That leads into my second question. I get a feeling from this that what you're saying today is -- and maybe it comes out of other questions and answers that you've given -- that the Ombudsman is not the place to fix human rights issues, that one is too many. It's like dying: Once is enough; it's pretty permanent. It's too bad.
But your feeling is that the Ombudsman's job is here, continuing with the Human Rights Commission and making sure it's doing a good job. You're satisfied that if you're putting money into this, it's the way to go for the one case and one too many that is there that shouldn't be backlogged; also the employment equity, the Advocacy Act. Where I come from, it seems we have a pretty open mind on a lot of issues, but there are people who have biases and there should be avenues where they should go to have their day. It might even be me they're taking and hauling in front of -- I'm big enough to understand that too.
Is that what you're saying, to continue and get those routes going? The Ombudsman is not the avenue to take for human rights, all those cases?
Ms Hendriks: I think what we're basically attempting to say is that in our opinion there are ample opportunities and avenues available, through existing acts, for the accountability and control over the decisions and actions of school boards, and that if in fact there is a need to address any particular concerns, rather than expanding the role of the Ombudsman or any other level of bureaucracy, perhaps the review of those existing acts would be in order.
Mr Klopp: The Human Rights Commission was one thing that was backed up. In one of my first jobs I had four or five people, not on education but on other issues in their lives. I know the minister has been working hard and this government has been working hard to get it on track.
Employment equity: One says, "Why do we need to gently shove people to realize that there are many people to hire?" One of the things I've come to realize is that if all groups of the world are kind of working in the neighbourhood, one doesn't have where it has to go as far as human rights; it gets resolved earlier because people are meeting in other groups long before and recognizing the problems and reaching a settlement. I think we are working on those things, and I agree a lot more with where you're coming from, personally. I see where you're coming from.
Ms Hendriks: I think if I may, Mr Chairman, in our examples that we tried to cite of recent decisions or changes in decisions, we tried to point out that in our opinion, school boards are very much in the forefront of the accountability process because they are in the local community.
In the recent decisions that provided a reversal of decisions -- and I believe at least one of those perhaps led the Ombudsman to make a statement that there should be an expansion of powers -- we tried to point out that there was in fact a reversal of a decision in both of those cases, which presumably will be in the best interests of the electorate, be they the parents, the ratepayers or the children in the system. We are simply trying to suggest that, in our opinion, those avenues are already in existence, and we would caution against a duplication or a redundancy of powers.
The Chair: Mr Hansen, do you have a comment or question?
Mr Ron Hansen (Lincoln): Yes. Ms Hendriks, welcome to Queen's Park. You've done a good job representing Lincoln as a trustee.
Ms Hendriks: Thank you.
Mr Hansen: I receive very few calls. I represent about four independent school boards and two private schools, so I have enough boards to meet with and I have to share my time.
The biggest problem I've found with parents and the education system is communication. Instead of talking to the principal, they would come to my office because they've got a problem with the teacher. I don't interfere at that point, but I say, "Let's get a hold of the trustee." The trustee gets involved at that particular time, which saves a lot of problems.
I believe one of my colleagues on the other side said that maybe the Ombudsman should come in at the point of looking at the superintendent. That is the wrong position in which to come in if you're going to use the Ombudsman. That would make the trustees not accountable to the people who elected them to carry on their job of keeping the superintendent in place, so I disagree completely.
I have some concerns at the very end. There wasn't an answer on how many get to the judicial decision; I think there can be a lot of work done before that, compromises and everything else. If it comes down to a judicial review, I think that would be the only spot where there would be a choice: There would be the avenue to go to the Ombudsman or go to the judicial. It could be that it would be cheaper to go to see the Ombudsman than it is to get into a court case, so I think that, if any area, that should be the area that would be open. Would you like to comment on my remarks?
Ms Hendriks: I guess it would have to be the role of this committee to compare the role of the Ombudsman in that particular situation as compared to the existing avenue of the judicial inquiry; compare the cost, compare the effectiveness, compare the availability. I really don't have the experience and knowledge to know just what those comparisons might be, and I guess that's where we were suggesting that perhaps a review at that level of the existing avenues of recourse might help this committee determine whether that is still the best avenue to consider. We are suggesting that it is, but we are not privy to the kinds of information you may have to actually compare the role of the Ombudsman in that particular situation with the judicial avenue. We're simply stating that we wouldn't want to suggest anything that would be a duplication or a redundancy of an existing recourse for the electorate.
The Chair: Mr Perruzza, I understand you have a brief comment or question.
Mr Anthony Perruzza (Downsview): I understand that time is short, Mr Chairman. I've read quickly through this brief and I notice a pet peeve of mine, which you addressed rather substantively. It has to do with pupil expulsions from school. It's something I grappled with long and hard when I sat on a school board. It's something I didn't agree with then, and agree with even less now. I've never believed that the solution for a problem student is a three-day, five-day, 10-day -- I believe at that time the maximum was a 15-day suspension; to just send them home and have them wandering around the streets for 10 or 15 days while their classmates are continuing in their education. Lord knows, we expend billions of dollars every year to educate our students, and that denies them the education. We don't do a service either to them or to society at large by simply refusing their admittance in schools.
I agree that at times you need some disciplinary measures to be able to discipline students, but I've never believed that expulsion is the way to do it. I remember the long lists of expulsions at the school board, that we approved on a monthly basis, for five and 10 days. In my last year there, the rather lengthy expulsions probably dominated the list, rather than the short two or three days.
The way it happens is that you get expelled and then two or three weeks later that expulsion is reported to the board. You're sent home; you're not admitted back in school, even if you appeal it. Then what can happen is that the board can review the decision made by the local principal, and I suspect in some cases the superintendent, and remove that red flag from a student's file or from a student's history. But those three days or five days or 10 days they missed educationally will never be given back, even if it's the decision at the board or at the tribunal that the expulsion was in fact wrongfully administered.
I guess it's more of a question. What would be your suggestion to us that would allay some of the concerns I've just outlined?
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Ms Hendriks: Thank you for sharing that concern. As a parent and a trustee, I share your concern as well. I would agree that removal of a student or exclusion of a student from the school is not necessarily the best alternative in the interests of education of that student.
I would like to think that expulsions and suspensions are not handed out easily and that there has been much thought given in most cases before that particular avenue is taken. I can recall, as a trustee, sitting on several committees where the alternative learning process has been used to determine what is the best alternative for some students. There is that avenue available to the schools to look at the particular needs of that student. I can recall that my personal involvement in that kind of session, whereby the parents and the students and the staff are involved, has almost been at the judicial level. It has been a moving experience for me as a trustee and for the parents and students involved, and often a solution is found for those students that meets their particular needs.
In terms of the expulsion and suspension program, there has to be, I believe, that avenue open in extreme cases. It's been my experience as a parent that staff has been open to discussion about the particular needs of my children in terms of dealing with discipline, and I think in the majority of cases those kinds of situations are addressed by communication and consultation.
I think you are pointing out extreme cases, and those are more difficult to handle. I'm not so sure I understand: Are you saying that perhaps the Ombudsman should have a role to play in that particular situation, or is it simply a question about whether the suspension or expulsion is an appropriate punishment?
Mr Perruzza: A little of both: One in hundreds, maybe even thousands, at the board level in terms of an appeal, and that's simply to remove a notice from a file. That's not to recoup three or five or 10 days' worth of education and instruction.
In the way expulsions are handed out, the decision is made unilaterally by the principal locally. I know of a case where two students were expelled simply because they were hanging around the hallway after a soccer practice late at night, and someone else made a wisecrack about breaking into lockers. I know the kids who were involved and they were two good kids, but apparently there had been a break-in in one of the lockers the night before or several nights before. The vice-principal, being within earshot of those comments, immediately moved out into the hallway and expelled the individuals who were in the hallway -- no hearing, no reasons required.
I understand that in some cases you need to make an example of some students in order to set straight the others. Those students basically had no recourse: "Stay home. Yes, you can appeal it to the board three weeks from now," but all that'll do is remove the suspension from their file. That isn't going to replace the instruction they missed, the three or five days or whatever that they missed of school. Boards have been very reluctant to deal with this issue in terms of their appeal.
Ms Hendriks: I would like to ask Mr Slack to speak of his personal experience in this regard.
Mr Klopp: Getting kicked out?
Interjections.
The Chair: Can we have order here, please?
Mr Slack: We tend to use two words there, "suspension" and "expulsion," and they're quite different actions by an authority in a school system. One of my comments would be that I think we have moved forward in that area of social adjustment or personal adjustment for students. Some need to be helped to meet some expectations of schools, and they're usually fair expectations.
There's a code of conduct which has been developed in all Catholic schools. I believe it's a provincial regulation that there be a code of conduct which outlines the behaviour, to allow learning to occur for others as well and the consequences of not doing that.
Usually, there's a series of developmental steps towards a suspension. I don't like ever hearing about them being arbitrary and instantaneous, because that in my view is a totally inappropriate use of authority or power. That isn't a learning experience, of any positive consequence at least. I would say from experience that it's the last resort. Sometimes it's the only way to create the crisis that will begin the change, to send the boy or girl home and say, "Bring your mom back with you," if there is a mom or dad, and sometimes that's what you find out. You don't know anything about this.
You'll say, "Well, we should know." It's difficult sometimes for one principal and two vice-principals and 50 teachers to know all of the events of 1,000 or 1,200 students. They are the most active and the most growing part of our society, ages 13 to 18. It's a challenge to run a school, and often I think mistakes occur. But this code of conduct has offered staff a way of seeing the steps towards solution, and sometimes the final step is that we've got to send this boy or girl out of the school. To do it because they're in the wrong place for one moment I think is just silliness, and I can't imagine that being a very common event.
The Chair: Thank you very much, Mr Perruzza.
Mr Perruzza: But when school boards -- and this leads into my question, Mr Chairman.
The Chair: If you make it brief, please, Mr Perruzza.
Mr Perruzza: When school boards refuse, or do not deal fairly with appeals that are made to the board eventually, basically students have no recourse to seek fairness.
Mr Slack: I hope that's based on the board having preplanned consequences for actions and having approved codes of conduct in its schools. A suspension is a legal responsibility, I would want to call it, or legal right of the board to exclude a student from something that is injurious to the rest of the school. That's usually what I believe is the basis for having to draw the student out of a social context.
I don't know that it's injurious; it's embarrassing and it's frustrating and it angers a person. I do feel, though, from a long list of recalls in my mind right now, that it helps sometimes to bring the student to a point of decision. I hope it's not done angrily. As a principal and a parent too, I went through it with my son being suspended from school; I was the principal of another high school, and it's quite an event for a principal to have to address another principal as a parent. I think I understood what he was trying to do; I didn't feel very good about it, but I think feelings and thoughts are different in this case.
I'm not trying to support suspension, but I believe that the authority of the school to protect the right of other people there to learn is important, and sometimes creating crisis can help to change a boy or girl from more destruction to a more positive behaviour, and suspension helps in that case, once in a while. It shouldn't happen to a person five times in a week or five times in a year. Something hasn't been solved.
Ms Hendriks: Might I suggest that in those particular instances a parent would probably be most welcomed at a meeting of the board to discuss the perceived inappropriate use of a line of authority. I think that has happened in some cases and has been addressed. I don't think we need the Ombudsman to address those situations.
Mr Perruzza: What my concern is --
The Chair: Thank you very much, Mr Perruzza.
Mr Perruzza: My last comment, Mr Chairman. My concern is that they haven't received that kind of fairness at the board. Trustees don't have the time or often there are too many of them to really familiarize themselves with a particular case, and they're basically at the mercy of the reports that are generated by the staff and by the principals and superintendents. The hearing, in my experience, hasn't been fair. I think there should be, in those particular instances, some other level of appeal, of recourse for those students.
The Chair: Thank you very much, Mr Perruzza. Ms Hendriks and Mr Slack, I want to thank you for taking the time out of what I know is your very busy schedule this morning to come and see us. Your presentation was very thoughtful and very insightful.
Ms Hendriks: Thank you for the opportunity to have appeared on behalf of our association.
The Chair: This committee stands adjourned until 2 pm this afternoon.
The committee recessed at 1131.
AFTERNOON SITTING
The committee resumed at 1410.
GAIL MORRISON
The Chair: Can I call this committee to order, please. Good afternoon. I'm Mark Morrow, chairman of the standing committee on the Ombudsman. We're here reviewing the operations of the Office of the Ombudsman. This afternoon we have appearing before us Gail Morrison, former director of the investigations office of the Ombudsman.
You have approximately an hour for your presentation. If you would, please leave some time so that the members can ask you questions and/or make comments. Begin when you feel comfortable, and although I've stated your name into the record, could you please also do so.
Ms Gail Morrison: Good afternoon, committee members. My name is Gail Morrison.
It's in some ways very nice to be back in this room. I spent quite a number of hours in this room before the Ombudsman committee a number of years ago in my capacity as director of investigations at the Office of the Ombudsman.
I am no longer with the Ombudsman's office, and before I begin I would like to make a few comments to stress to you that I'm here absolutely for my own purposes and to express my own views. Nothing I say really is related to anything that's specifically going on at the Ombudsman's office, because I'm not informed about that. I have no particular views on that. But I felt, as a citizen, that it was important that this committee have as much information as it could have about the operation of the Ombudsman's office and the way this committee has in the past related to the Ombudsman. I thought it was an important opportunity for me to express my views, which many people don't agree with but which in fact I hold strongly, about the importance of the office and about the way in which I think the Ombudsman and the committee could best work together.
As I say, I'm a very strong supporter of the Ombudsman concept. I think with the very large bureaucracy that we now have and the problems people have in understanding the way in which they relate to government, the Ombudsman's office can provide a very valuable link for the government, for the bureaucracy, for the regulating agencies, to the citizens of the province.
I have not had the opportunity to see the other presentations which have been made to your committee, so I apologize in advance if I make comments which are repetitious of things other people have said. I did see some of Professor White's presentation. That's the only one I had an opportunity to see, and many of the things he said are things with which I agree strongly. There are very few things he said that I didn't agree with, and those will perhaps come out in our discussion.
I understand you had the former counsel for the Ombudsman committee, Mr John Bell, here, I think yesterday. Mr Bell of course is a very experienced person with the Ombudsman committee and, I'm sure, gave you all kinds of valuable insight into the way the committee has operated in the past. Since we coincided in time in our dealings with the former committee, there may be many things that I say which are repetitious, so I ask for your indulgence in that respect.
I think the usefulness of the committee is the first thing I would like to approach. I have said I found the Ombudsman institution a very useful one. I want now to address the views I have about the usefulness of the committee.
I provided to the clerk a copy of an article I wrote on the relationship between the Ombudsman and the standing committee. This was an article I did in an academic setting, so it's a little dry and not particularly exciting reading; no pictures. In some ways, my views are not all exactly the way they were when that article was written, which was a couple of years ago, but I think some of the examples in that article do suggest the way in which the Ombudsman has in the past been very much helped by this committee, and I would just like to run through a few specific points about the way in which I think this committee can assist the Ombudsman.
The first are the recommendation-denied cases. I think the committee has, in the past, been able to assist the Ombudsman in correcting matters which could not otherwise have been corrected by agreeing with the Ombudsman's recommendation and making a recommendation to the governmental organization that the Ombudsman's recommendation be implemented. That has often been a struggle in the sense that it has taken several days, perhaps, of presentation of the Ombudsman's view and the ministry's view to this committee, and the committee members have struggled with the rights and wrongs of the recommendation and in the end have made their own recommendation about how the matter should be settled, whether it should be implemented or not. In many cases it has been an immediate effect; that is, once this committee has accepted the Ombudsman's recommendation, the governmental organization has been very quick to implement it.
Those are the rare cases in the Ombudsman's office. They are very few and far between, but they are the ones in which the Ombudsman feels strongly enough about the governmental organization's wrongdoing or failure to act reasonably that he or she feels the matter should be taken for the full distance and that something should be done about it.
Sometimes the Ombudsman's recommendations involve policy which should in fact be subject to the political process. I think that in a democratic state such as ours, it's not acceptable to have an appointed official deciding broad policy issues which we expect to be decided through our political process. I think in those cases the governmental organization may resist the Ombudsman's recommendations because it feels that the recommendations involve a policy change which is not within its mandate to make or that is not in line with the policies under which it operates.
Here the committee's review provides the first step in bringing this into the political arena, and I think its referral of the matter to the Legislature may result in a more thoroughgoing political review if that turns out to be necessary. It's difficult to give good examples that don't seem trivial without actually going back to facts of cases that I remember. But there are often broad policy implications to complaints brought to the Ombudsman such as, say, coverage under an insurance scheme or some kind of decision of that sort.
As you're aware, of course, the committee is made up of members of different parties. If, for example, those parties had been elected on very diametrically opposed slates on a particular policy, then it seems to me when a question arose at this committee about that policy, it would be necessary for those members of this committee to be faithful to their party's position on that particular policy. In that case, the Ombudsman, having brought the matter here, provides a forum for the political process to take over and decide what might be an important policy matter either right here or, if that's not possible, by referral to the House.
That particular role of the committee is one I see as being important but one with which many of my colleagues disagree, so I should say it's a very personal view of mine that there is a place for politics in this committee. I think you read a lot about the apolitical nature of this committee and what a wonderful thing that is. Indeed, in many of the cases it's very sensible that this committee doesn't divide on party lines, because what it's looking at is not a political question; it's a question of whether bureaucrats acted properly or whether there was a mistake of fact of some kind in the original decision. In those cases, I quite agree with all those people who say that the apolitical nature of this committee is a very good thing, because it means these matters can be settled and thought about in a cooperative and, I think, in a very useful way. But I do think that there is a place for political decision-making in the committee on some kinds of questions which involve government policy.
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Another way in which the committee is very useful is that ministries or government officials on boards, whoever's making decisions affecting the public, knowing that a particular act or decision they have made has been found by the Ombudsman to be unjust or unreasonable or wrong and that they may receive specific public scrutiny at the committee, may give the matter some serious thought. I think the committee, as a kind of last resort for the Ombudsman, lends weight to the recommendations he or she makes and makes the governmental organization give very serious thought to her recommendations. Without some last resort, there may not be very much that presses the governmental organization into fixing the problem. There is a report, a written report of the Ombudsman, and the written report of the Ombudsman is a very valuable tool to the Ombudsman's office, but in my experience in the Ombudsman's office, it was often the idea that the committee would actually look at the recommendation and discuss it and ask questions about it and be interested in it that was just the thing that was needed to make the governmental organization go back and say, "Maybe that wasn't just what we wanted to do." I think the committee has a role to play, just by existing, for those types of cases.
In another way, even further back, I think bureaucrats who become experienced with the Ombudsman's process and know the consequences of a careful review by the Ombudsman -- that that review could lead to a possible public airing of their decisions -- may make their decisions more carefully in the first place, which I think is one of the major advantages of having an Ombudsman.
There has been some discussion about the committee, what the committee really is. In my view, the committee is a representative of the Legislature. The Ombudsman is appointed by the Legislature. In my view, she is the servant of the Legislature and the committee is the representative of that Legislature. That's my own view of the relationship between the Legislature, this committee and the Ombudsman.
I believe, however, that there are things this committee should not ask of the Ombudsman. I believe they should be very, very cautious in going behind her decisions on cases in which she does not support the complainant. I believe that this Ombudsman is a last resort and that there can only be so many last resorts. Especially, I think, in a period of fiscal restraint, we ought to be trying to put our resources to the best possible use and we have to be careful that we don't give the squeaky wheels all of the grease.
I think the Ombudsman acts as the last resort for complaints. Most of these people will have had access to a number of other appeal mechanisms. In fact there's some question about the extent to which the Ombudsman should exercise her discretion perhaps not to investigate cases in which people have had a dozen different review processes. But certainly when he or she comes to a conclusion that a complaint is not supportable, I think this committee can review the process the Ombudsman uses to look at complaints, but I think it should be very, very careful about going behind the decision the Ombudsman has made.
I'm sure that all of you as members have had the experience of dealing with complaints from your constituents which you just cannot fix, not because you don't feel very, very badly for your constituents' position but because there isn't a right answer that they will accept. I think it's to your advantage, as legislators and as MPPs who have a constituency to serve, to have a place you can send those people and say, "This person will look fairly at your complaint, but when they're finished with it, that's it."
You'll see that in my view that's a very different thing than assisting the Ombudsman with recommendation-denied cases, which I think is a quite different role, a role in which she's bringing forth a concern she has about the way the bureaucracy has dealt with your constituents and in which you might be able to assist her.
If you reviewed her process and were concerned that there was some flaw in the process, I think at that point it would be a matter of discussion with the Ombudsman about the process. It's possible that the Ombudsman, becoming aware of the flaw, might say: "I think I want to go back and have another look at that problem. That's a problem I didn't see myself." That's not to say that you're saying the decision was wrong. I think you're saying perhaps that there was some kind of procedural mistake in the process. But I don't think you should ask that the Ombudsman change the result of a complaint which has been found not to be supported.
I think it's also very easy to underestimate the value to the bureaucracy of having an Ombudsman there to review decisions that are right decisions. In my experience with the Ombudsman's office, the bureaucrats were often very grateful for guidance in compliance with various mazes of reasonableness and new ideas about equity and that sort of thing. Our ideas about these things change as we go, and sometimes the bureaucrats feel they are assisted by the Ombudsman's office in knowing what the standard of fairness and justice and reasonableness might be.
They also like to be told when they've done a good job, as most of us do, and the Ombudsman, in many cases, finds that in fact the organization has done a good job. I think it's an important thing for people to have that said to them when it is true.
I think also it's easy to underestimate the value to complainants whose complaints are not supported. I had many complainants when I was an investigator, who would, having received a non-support report, call me up and say: "Thank you very much for explaining that so clearly. I now understand why the decision was made the way it was. I don't like it, it's not what I wanted, but I now understand the process this goes through, and I appreciate your having taken the time to look at my case." Again, I think that is a very valuable service.
I think the Ombudsman has another role, and that's the role of an employer. That's another area that causes some difficulties. The difficulties arise for a number of reasons.
One, every institution has disgruntled employees. I don't think anyone can think of a place he has worked where everyone was happy all the time. There are bound to be people who are not happy with their work in the Ombudsman's office, and those people may see this committee as something to turn to if they're not happy. In my view, that's not an appropriate role for the committee. I believe the Ombudsman to be the employer, the manager in the office. It's very difficult to manage in those circumstances, I'm sure some of you would recognize.
There is -- at least there was, and I believe it's still in place -- a grievance in place in the Ombudsman's office, and it's a very thorough grievance procedure. I think it's the place for employees who have employee-related problems with the office. I also think that staff turnover in itself is not necessarily a symptom of problems in the office. The Ombudsman's office attracts a very interesting group of employees, people who are committed, people who want to do good, people who are willing to work hard to do the kind of work which is very idealistic, if you like. The staff was always a matter of great pride to the office when I was there, and I think still is. It's a very difficult kind of work because you're dealing with complaints which can get very tiresome, dealing day in and day out with people who are unhappy about something. But the staff does an excellent job, and I think they are the kind of people you would expect to be interested, lively and therefore likely to move on to something else after they've done it for a while. They get tired of dealing with complaints, perhaps, but, more than that, they're intelligent, interested, exciting people, and I think there's nothing sinister, necessarily, in seeing that there's turnover in the staff. If everybody up and left or there were vast numbers of people leaving, that might be a token of something different, but I think it's a mistake to think that a high turnover is in itself evidence of difficulties.
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The employees of the Ombudsman may have very high standards with respect to labour relations because they investigate employment complaints, they know what the rules are. They're going to be pretty demanding employees. In fact, they are pretty demanding employees, in my experience, and therefore they require a very specific type of what I would consider to be careful management. But this committee shouldn't try to replace that management by trying to make those decisions for the Ombudsman.
There's another kind of complaint you might get that I think might be different. If you had a large number of complaints about the office's role from employees, who are, after all, on the inside track about the office in general, that they felt there were problems with the office, and you couldn't see behind these the disgruntled employee -- I mean, I think you can tell the difference between someone who's criticizing because he's an unhappy employee and someone who is worried about the way in which the office is operating as a whole.
If you got a lot of those complaints, I think you might want to talk to the Ombudsman about them. I don't think that means you want to call her on the carpet and say: "What's going on here? This is causing us all kinds of concerns." But the employees, after all, are in a very good position to know how the office is operating. While I would caution you against getting at all involved in managing the employment situation at the office, I think you'd have to be sensitive to a large number of concerns about process. I'd say very strongly that it would be an unusual situation where that would occur and one which should be dealt with very gingerly. Again, not being there, you ought to give the Ombudsman the benefit of the doubt and try to find out what's going on without assuming that there is a problem.
I think the other area of decision-making or area of responsibility of the Ombudsman which causes some people concern is the question of budget and budget reporting. I believe the Ombudsman really does require the independence to do the job that's given to him or her. They need to be seen as a separate organization with independent ability to make decisions. They have to get paid and they get paid out of the public money. I think you have to, to some extent, trust the Ombudsman's judgement on the whole in money matters. That doesn't mean you would put up with gross negligence or some abuses of spending, but there are mechanisms already in place, in my view, to review the Ombudsman's expenditures. I believe if this committee is to do its job in helping with the complaints process, then it ought to stay away from the money process, because there's too much possibility of conflict, in my view.
This is not to say that the Ombudsman doesn't ultimately report to the Legislature. The term of office is set by the Legislature. There is a provision for dismissal of the Ombudsman for cause, but that is intended, in my view, to be an open and honest process; if, in an honest assessment, the Legislature felt it was necessary to do such a drastic thing -- which I think would be practically unthinkable, but if that were the case -- it would be done in an open and honest way, not behind closed doors, not through coercion through the control of the purse-strings and not through trying to review the way in which particular complaints were handled.
This brings me to my last point, which is the point about the appointment of the Ombudsman. This is not to say anything about past incumbents or the present incumbent in the job, but I think the process for appointing the Ombudsman could be improved. I think it should be improved for a number of reasons. One is that we are now, in this society, more critical of under-the-table or back-door appointments. We like to know that appointments are being made openly and honestly in general.
An open and competitive process would ensure that the person who is appointed has the skills necessary for the job and could then be trusted to do the job. I think you would be more confident to sit back and trust the Ombudsman's judgement and process if in fact you had witnessed an open and careful process in which the Ombudsman was chosen. That's not to say that the present Ombudsman or ones previously have not had all the skills necessary for the job. It's just hard to know that in advance, and I think an open, competitive process might assist with that.
In the same way, complainants might be much more satisfied with the answer they were given if they were assured, through their knowledge of the way the Ombudsman is appointed, that the person was not just a party hack but that this person had skills for the job and had the background to do the work and was good at it. It's a very important job. It has a high public profile and needs someone who's very good at appearing in public and being able to answer questions and who is generally quick-witted, knowledgeable and fairminded. Of course that would give you as a committee a better idea, reviewing any complaints you had, about whether the complaints were justified. If the person has been chosen through a fair and open process and you have a great deal of confidence in his or her integrity, then you can quite often say out of hand that complaints that come to you just could not be true. You would just have confidence that this person would not do petty things.
Those, in general, are my comments. I'd be happy to answer any questions you have, with the proviso that, as I said, I really don't know anything about the current situation in the office. I'm not prepared to provide any opinions on that, because they would be ill-informed opinions. But I'd be happy to answer or try to answer any questions you have about what I've said.
The Chair: Thank you very much for that presentation. Comments or questions?
Mr Ramsay: Ms Morrison, thank you very much for coming before us today. It was very informative. Your description on our committee agenda states "former director of investigations, Office of the Ombudsman." Could you give me a brief history of your time there, how you started and when, and then subsequent jobs you had, if any, leading up to the chief investigator?
Ms Morrison: Sure. I was called to the bar in 1982 and went directly to the Office of the Ombudsman as an investigator. I was an investigator -- I don't have my CV with me, so I'll have to make some guesses at this -- for about a year, I think, and then I was made counsel to the Ombudsman. There was a group of people who provided legal counsel to the Ombudsman at that time. I was in that position for maybe eight or nine months, and an opening for assistant director of one of the teams of investigators came up. I applied for that job and held that position until 1985, when the former director of investigations left and I was asked to be the director of investigations. I was the director for four years. The very last position I held there was the combination of director of investigations and legal services.
Mr Ramsay: When did you leave?
Ms Morrison: I left two years ago now.
Mr Ramsay: From that tremendous grounding in that office and your experience, you could really offer us a very unique perspective as to the different styles of how the office operated under the various tenures. Do you have any observations of that, without even naming people, but just giving a sense of how the styles maybe have changed, how the operation changed, in regard to investigations?
Ms Morrison: I think each Ombudsman brings his or her own special skills and special interests to the job. I think the first Ombudsman who was there when I began at the office was Mr Morand, who I think spoke to this committee.
Mr Ramsay: Yes, he did.
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Ms Morrison: As a judge he had a sort of judgelike way of approaching the job, perhaps a little more inclined to the legal end of things than otherwise, but there's a lot of legal work to do in that office, so that's not to say that's not an appropriate way of dealing with it. Of course I think with all the ombudsmen, with Mr Morand and with subsequent ones, they tend to get staff to kind of balance out their own point of view, so while he might have taken a more legal view of matters as the Ombudsman, I think the staff was balanced in a way that brought forward the other aspects in the complaint process.
Dr Hill was very interested in ensuring that complaints were resolved, if possible, without a long, complicated process. He was interested in taking a systemic approach to complaints, which was kind of the way in which ombudsmen's offices were evolving in many areas at that time. He was very interested in making sure that the Ombudsman's presence in other parts of the province was felt. As the Ombudsman's office kind of grew in its confidence in its process and procedures here in Toronto, I think the opportunity for having it spread across the province, for it being more present in smaller areas, was appropriate at that time, and that was put into place.
I worked very briefly with the present Ombudsman and I guess I don't have a very clear sense of any specific style that she brings, although she's a very good public communicator. From the few times I saw her communicating in public, I think she presents a very strong and interesting view to the public of the Ombudsman's office and I think is very committed to that approach.
Mr Ramsay: Your observation about Dr Hill's style being one who wanted to resolve systemic deficiencies in the system I think is interesting, and it relates to my next question.
You made an observation that one way this committee could be most helpful to the Ombudsman would be on assisting, in this case her, on the recommendation-denied cases, and I agree with you. One of the difficulties this committee's had is that we haven't had any of those referred to us in the last two years. Obviously from that I would take that this Ombudsman doesn't work in that sort of style of trying to resolve systemic problems, because I think that's really what the office needs to do too. I don't see it as an office that just continually works case by case. Obviously, as you start to accumulate cases, you start to see patterns, you start to see deficiencies.
I'd like to fix the problem at the root. I think that's the way to proceed. Would you have any recommendation for us how maybe we could encourage the Ombudsman to act like that, to bring forward those deficiencies she has observed so that we could help her in resolving those so that also we can fix the system and reduce the case load?
Ms Morrison: I should maybe clarify a couple of things. My use of the word "systemic" might be a bit confusing. The recommendation-denied cases are often individual cases and not cases which involve a lot of people, although they may indirectly involve a lot of people because they may make a recommendation which ultimately changes the law for a number of people, but they're often individual complaints as well. Systemic investigations may never result in a recommendation-denied case, because having found a systemic problem, the Ombudsman is quite likely to find the governmental organization anxious to fix it, especially if the Ombudsman can suggest ways in which that might be reasonably done. So you wouldn't necessarily get systemic cases brought as recommendation-denied cases.
The other thing I should clarify is that the number of recommendation-denied cases that come forward is a very chancy kind of thing. In the years I was there we sometimes had 10 and we sometimes had two or one. I don't think we ever had none. But it depends on a number of things. It depends on whether the governmental organization resists the recommendation, and that's not a predictable thing. Sometimes they will do what is recommended and then the case doesn't have to come forward.
I don't know why there haven't been any recommendation-denied cases. Maybe the government's working so beautifully, the bureaucracy is just doing everything so well, and when they're not doing things so well, maybe they're fixing them as soon as anyone tells them they're not doing it well, which would result in no recommendation-denied cases.
I think the resolution of complaints by the Ombudsman sometimes can be problematic in the sense that if a person has a legitimate claim, I'm hesitant to see it compromised too much for the sake of settling the case; that is, I don't necessarily believe that you should go all the way to the committee for $10. On the other hand, I think if it's pointing up a deficiency in the way things are done, it's important to get the deficiency fixed, not just pay off the complainant, so to speak. So I guess I'd be concerned if I thought compromise was too heavy a factor in the lack of recommendation-denied cases, but of course I have absolutely no information on that.
Mr Ramsay: Just one last question. You talked about accountability, you talked about staff management and how there's a staff grievance procedure there and you went so far as to say that we could be of assistance in helping the Ombudsman resolve cases, but as far as the day-to-day management and money matters, you said we should not be interfering.
We're having a little problem here of how, without stepping on the Ombudsman's toes, we can make sure that through our committee for the Legislature there is some public, fiscal accountability. Being such a massive operation, costing $9.4 million, how can we assure there is good management? If you start to hear that not only is there staff turnover because they're very bright and interested people but that there are a lot of wrongful dismissal cases and there are extra lawyers being hired on to handle that sort of case load and therefore focus is starting to move towards internal management rather than case load resolution -- there's got to be, we would feel, some sort of mechanism for us to ensure that things are working well, that the money is well spent and that $9.4 million primarily is being geared towards resolving problems for the public.
Ms Morrison: The Ombudsman is subject to audit, and an audit is a valuable tool. I think the explanation of the Ombudsman's requests for budgetary allocations must go through the usual budgetary process and there they have to say in advance what they need for various types of expenditure. I think there are mechanisms in place that keep people honest.
Certainly in my experience at the Ombudsman's office we were very careful about the budget for the reason that we felt publicly accountable through those processes and for the reason that the Ombudsman has to be like Caesar's wife. We did criticize other governments for decisions they made about expenditures, as in other things, and for that reason you're very careful that you're not doing something that you would tell someone else not to do.
The same is true with employment generally. The Ombudsman, as I say, investigates other people's employment practices and therefore has to be pretty square.
If you're going to help the Ombudsman, as I think you can, with the complaint process, with the recommendation-denied cases or in general provide the link between the Legislature and the Ombudsman, I think having fiscal control is too much, because I think people have to see her as able to criticize, and there's nothing like purse-strings to make people think that someone has not supported their complaint because, "They didn't dare support my complaint because they would have cut her off; she wouldn't get any more money from them." It's important to you, I think, that the citizens out there believe in the process. They won't believe in the process if they think there's any possibility that supporting their complaint or not supporting their complaint is going to be a matter of next year's budget. So that's my view.
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Mr Murdoch: I just want to thank you for coming. It's interesting talking to somebody who has already been there. We need to know these things.
I had a couple of questions, but David asked one of the ones on fiscal responsibility. I was going to ask you where, then, fiscal responsibility would lie. I'm not saying we should scrutinize the budget, but what if during the year, as it's been raised in the House, there's been maybe money spent frivolously on something that wasn't that important? Where's the mechanism for somebody to check that? It comes to this committee. Could we not have at least the authority to ask to find out, if there's a question raised, why this money was spent on a certain thing? Could this committee not at least have that authority to ask why this has been done? There's got to be some accountability somewhere.
Ms Morrison: That's a very hard question, because the way I see it, if you have the authority to ask, you have the authority to get the answer. That's not to say that I don't think there should be much closer communication between this committee and the Ombudsman. In the past I often had members of this committee who would call me up as director of investigations and say: "I have someone here who is complaining about such-and-such. I don't know whether your office can help them. Can you tell me whether that's something you do?" We were on enough of a basis that they felt comfortable coming to the office.
On a number of occasions we had seminars for members of this committee where they came to the office, we went through our whole investigative procedure, showed them what we did, showed them our referral manuals and how we dealt with complaints of various kinds, introduced them to the staff and so on. I think there should be a relationship between the Ombudsman and this committee which is one in which you know what she's doing and she, or he, has given you information about things. But if I say, "Well, yes, you should be able to ask," I see that in the sort of context of she might be wanting to tell you these things and not that you would have the authority to require it. I think that's where it becomes kind of controlling. I know that's a hard line to draw.
For example, I think the expansion of the office into the regional areas was a matter of great pride at the time it was getting done, and it got some criticism. There were people who said, "We don't need to spend money on putting an office in" -- I don't where. But nobody had to go and ask the Ombudsman about that.
Mr Murdoch: I'm sure that was probably in the budget. I mean if money is spent that wasn't in the budget. Maybe it was, say, under advertising; it would say it's under advertising. So advertising had X number of dollars but didn't really say where it was going to go. All of a sudden there is a big advertising campaign. Questions may come to this committee because people feel, "Well, you're the Ombudsman committee; you should know." We would all of a sudden have this question, and we wouldn't have the answer because we wouldn't know why it was there.
The crux of the whole thing is that we've got to have a better relationship with the Ombudsman's office. That seems to have been lacking in the last two years. I don't know whose fault it is. So we can't answer now because we don't have a chance to. I think we should have the right to sit down and talk about it so that we can, then, defend the Ombudsman and the Legislature, because that's where the questions come up. They look at us as a committee, and we don't have the answers. So there's got to be some more interaction, and that's maybe what's been lacking.
That goes to my second question. You mentioned how we should work with the Ombudsman to help cases where, say, she's not getting anywhere with a ministry or something, so we support her and help her get that through. On the other hand, it could be a case that's been denied, which is fine; that's the decision of the Ombudsman. But that same person may come again to this committee and have a complaint, like saying, "Why did it take two years to get that decision?" Or there's a decision that's pending, and it's been three years, so this committee would send a letter to the Ombudsman's office saying: "Here's a case. Why is it taking two years? Why is it taking three years?" In the same respect that we're going to help over there, they should help us with some information so that we can get back to these people. That hasn't been coming, so don't you think there's a big problem?
Ms Morrison: Yes. Delay in responding to complaints has always been a problem, in the sense that people have not always understood how long it takes to go through the formal processes of an Ombudsman's complaint. I think there hasn't been a year in the history of the Ombudsman's office that someone hasn't said it's too slow, and this with all kinds of case management and computers and all kinds of things. I think you will get those kinds of complaints.
Mr Murdoch: I can understand that, but it's nice for this committee to be able to answer the people who come to us and ask, "Why is it taking so long?" We can't answer for something we don't know, so we need to have that interaction.
Ms Morrison: That's right. That's why the interaction is so important, because I think, on the whole, you would find your role would be one of supporting the Ombudsman if you had the information upon which to do that.
Mr Murdoch: I would hope so. That's why I'm saying the same with the budget. If we're more involved in it somewhere along the line, then we can support, when it comes in the Legislature, why so much money is being spent. We sit there and look at each other, and we don't have any idea and we can't even find out.
Ms Morrison: Well, in the first instance, when the Ombudsman puts the estimates forward, there are questions about the appropriateness of spending money on this, this and this.
Mr Murdoch: I realize that.
Ms Morrison: Once that's done, I think to some extent you should back off. But yes, there will be questions. People used to ask questions like, "Why are there cars that the Ombudsman's staff use on investigations?" We did a very thorough study of whether we should rent cars or own cars -- not own, but have cars through the government way of doing it, so to speak -- and what was the best all-around thing for availability, for cost, for all this kind of thing. People come and say, "We want to know about that particular thing." Those kinds of decisions have got to be operational decisions of the office.
Mr Murdoch: I agree, but you did a study to prove that, and we should be able to say that. Politicians change from time to time, and in this committee a lot of us are new, so we don't know anything about that study and that's a question that could easily come to this committee. I know it may sound frivolous, but if we could at least send the question over to the Ombudsman's office, hopefully we'd get a reply back that a study was done and it proved most cost-effective that they rent cars or whatever, and then we'd have that knowledge. If we send a letter over and get back, "This is our business and not yours," then we have a problem.
Ms Morrison: That's a very difficult area. In the best of all possible worlds, I think information would be shared and there'd be no threat to anyone, but it's like anyone asking anyone else questions to which they feel they have to give the answer; then they feel they lose some of the control they have over their own process.
If you have confidence in the person who is in the job because the process of choosing has been open and your experiences with that person have been good, and you are aware of the way the office works and all of that kind of thing, then on the whole I think my answer would be to trust them.
Mr Murdoch: That's right and I agree with that, but there has to be a process built up. As I say, there's a lot of new people who have never worked with any Ombudsman, so there has to be some cooperation somewhere along the line for us to build up the confidence. If we always get an negative answer, it's hard to build confidence.
Ms Morrison: There may be some areas in which the committee can get to know the Ombudsman that are relatively neutral ground and non-threatening. I haven't really thought about it.
Mr Murdoch: This committee has been labelled in the media that it's trying to somehow change your decisions. I have never seen anyone here mention that at all, and I don't think we're here for that. We just want to know how it operates and, as you say, work with the Ombudsman to make the job that much better.
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The Chair: Mr Mammoliti, you're up.
Mr Mammoliti: Ms Morrison, thank you very much for coming. I appreciate it. I'm glad you've decided to come and talk to us because, in my opinion, being an ex-employee of the Ombudsman, it certainly clears up some of my questions. You said, if I'm not mistaken, that you left in 1985.
Ms Morrison: No, I left two years ago.
Mr Mammoliti: So that's 1990?
Ms Morrison: Yes.
Mr Mammoliti: And you've had the opportunity to work with the previous Ombudsman as well as the Ombudsman who exists at this point?
Ms Morrison: Yes, I was there about eight months, perhaps, with the present Ombudsman.
Mr Mammoliti: You talked a little about the role of the committee, in terms of grievances from staff and turnover and how you felt that the committee shouldn't intervene or look at the situation, and you talked about the effective grievance procedure that exists within the office. I'd like to ask you a couple of questions in light of that: While you were there, were you involved with the grievance procedure at all?
Ms Morrison: Yes, I was.
Mr Mammoliti: In what capacity?
Ms Morrison: The grievance procedure was developed during the years in which I was in management in the Ombudsman's office, and it was developed through a committee of employees and management. I was involved on that committee.
Mr Mammoliti: It's my understanding that at that time, employees would have a say even when it came to policy and they'd have the ability to talk about the problems that exist within the office and talk to the Ombudsman himself or herself when this would happen. That open-door concept was there, was it not?
Ms Morrison: I think the whole office operated on a kind of open-door concept, but when I was there the office had a hierarchy: Investigative teams reported to an assistant director, the assistant directors reported to me as director of investigations. I in turn reported to the executive director for management matters and of course to the Ombudsman for complaint-related matters.
Mr Mammoliti: And you had -- I'm not too sure what it was called -- an employee assistance committee of some sort?
Ms Morrison: The employee relations committee.
Mr Mammoliti: Employee relations committee. That would deal with the problems and any complaints the employees would have?
Ms Morrison: That was one of the committee's jobs, yes.
Mr Mammoliti: And one of their particular jobs was not only to deal with grievances but to have input on policy and some of the more responsible decisions that were made in the office. Am I right?
Ms Morrison: Yes, related to employment. The employee relations committee was related to employment, not related to complaint-handling in the sense of the decisions on complaints. Those were made through team meetings and so on.
Mr Mammoliti: What about decisions that were made in the office itself?
Ms Morrison: For example?
Mr Mammoliti: Where a garbage can would go or how you would deal with, say, replacement workers or that sort of thing. Would they have input at that time with decisions such as these?
Ms Morrison: A lot of those questions were dealt with as part of the grievance procedure discussions in terms of surplus policy and that kind of thing and were part of the discussions that led to the grievance policy, which was a joint committee of management and employees. Decisions about who got what office and that kind of thing would often be --
Mr Mammoliti: I'm not talking about actually making the decisions; I'm talking about input on those decisions.
Ms Morrison: Input on those kinds of things came in a number of ways. It came through team meetings where people could express to their assistant director or, through that person, to me -- I often went to team meetings as well -- their concern about a particular thing that was happening or about communications in the office. In a big office like that, keeping everybody informed of everything is a really high priority. The team meetings, the employee relations committee, just informal communication, I think were important.
Mr Mammoliti: There was a time in that office when communication was good, and perhaps it could have been as early as two years ago.
Ms Morrison: In my experience, the employees at the Ombudsman's office have never been shy about coming forward with their concerns. I think they tend to communicate pretty well; they're pretty effective communicators.
Mr Mammoliti: With the new Ombudsman now, in your brief experience in working with her, did she change any of those communication patterns, perhaps, that existed within that office, and, if and when she changed them, did some of the employees come out and talk about the effect it would have on the office?
Ms Morrison: I can't say I know what you're referring to. There were changes in the office in the sense that, for example, my position became one in which I was a supervisor of both the legal services area and the investigative area. Obviously, a change of management of that kind changes the access people have. In the end, that would work out in a different way, but I don't think it was any worse. Certainly there were no "Thou shalt nots" that I know of, not at all.
Mr Mammoliti: No memos circulated saying: "In previous years, we've been accustomed to such and such in this office. As of such and such a date, this will no longer be the case"? There were no memos issued in that regard?
Ms Morrison: Not that I can recall.
Mr Mammoliti: Not to your knowledge. Are you aware of the fact that the assistance committee that exists right now for the employees -- it seems from what I can gather in talking to some of the employees that a lot of them want to resign from that committee because it's not effective.
Ms Morrison: I'm really not aware of what's going on there.
Mr Mammoliti: You're not aware of that, so there's no point commenting if you're not aware of it.
The turnaround time isn't the only reason this committee is looking at the internal goings-on, perhaps, in the Office of the Ombudsman. A number of complaints have come out of that office, and some of them very consistent. For that reason, some of us have decided to ask some questions. I think that's the role of the committee, so we're going to disagree on that. You said it wasn't and I think it is.
One allegation is that 80% of the employees who exist there now, out of the 129, are looking to leave as quickly as possible, and that's because of the low morale. I think that reason and that reason alone would warrant this committee asking some questions. I'm not too sure whether you've heard the statistic, but as soon as I heard it, of course my eyebrows rose and I wanted some questions asked. That's the reason behind us looking into it. Whether or not you change your judgement on us in this particular case is up to you. Are you aware of any employees being harassed on site by the managerial staff or the Ombudsman to the point where they're having to resign?
Ms Morrison: Not at all. I have no personal knowledge of how the office is operating at the moment. I just have no information at all about that.
Mr Mammoliti: So realistically, you can't tell us whether or not the grievance procedure at this point is working?
Ms Morrison: Not at all.
Mr Mammoliti: Were you involved at all with the London office?
Ms Morrison: Not particularly. My area of responsibility was really investigations, case management and legal services. I of course cooperated with the people whose job it was to make sure that the regional presence was working. I often spoke to the regional conference and I would contact the people in the regions when necessary, visited them in some cases, but I wasn't specifically responsible for that area.
Mr Mammoliti: Were you aware of any employees who were off on stress-related illnesses or perhaps a high rate of absenteeism?
Ms Morrison: No, I'm not.
Mr Mammoliti: You weren't aware at that time of any?
Ms Morrison: No.
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Mr Mammoliti: Was it a problem at that time?
Ms Morrison: Not that I recall. I don't recall anything of that sort at all.
Mr Mammoliti: So at that time the turnover rate, in your opinion, wasn't due to the stress or the low morale, perhaps, that we're hearing about at this particular time?
Ms Morrison: I think we had a quite normal turnover rate while I was there that you would expect and that of course you would be sorry for, because always your very best people find jobs elsewhere. Not always. Lots of them are quite happy with the work they do and are content there.
Mr Mammoliti: How long did you work with the current Ombudsman?
Ms Morrison: About eight months, I think. I don't remember the exact date of her appointment.
Mr Mammoliti: And before she came on board, it seemed to be an okay office to work for? There wasn't a problem with morale?
Ms Morrison: I always loved my work at the Ombudsman's office. I never found it a bad place to work.
Mr Mammoliti: When you were there, there didn't seem to be a problem with morale and the staff were pretty happy?
Ms Morrison: Yes.
Mr Perruzza: Thank you for coming today, Ms Morrison. I'm a new member of this committee, and just to get a little background and a better understanding of what the Ombudsman actually does, you said you started working for the Ombudsman in 1982?
Ms Morrison: Yes.
Mr Perruzza: As an investigator.
Ms Morrison: That's right.
Mr Perruzza: In your experience, what types of cases has the Ombudsman -- I guess what I'm trying to get at is if there's been sort of some evolution in the office and in the kinds of work the office has done over the years. In your opinion, what types of cases does the office deal with? I know that's a very general question.
Ms Morrison: Over the years I was there, there was some evolution in the types of cases the Ombudsman had, for a couple of reasons. One was that there was a great change from the early days, when a vast number of the cases were workers' compensation cases. The Workers' Compensation Appeals Tribunal was put into place. That made a difference in the type of case the Ombudsman had. I think there was a large reduction in the number of workers' compensation cases we dealt with and probably more emphasis put on some other kinds of cases as they came up.
There were new ministries. For example, there didn't used to be a Ministry of the Environment, so obviously you didn't get any complaints against it. Once you have one, somebody will find something wrong with it.
The office used to handle complaints from inmates of the correctional institutions in a different way at one time and that process evolved. I'm not sure what the process is now, but we went through a number of different ways of dealing with corrections complaints, trying to make sure that they got the right amount of attention but didn't overwhelm the office. There's such a difference in that kind of complaint from all other kinds of complaints that the office gets. People who are deprived of their liberty find that small things are very important to them. I think we agonized about how important they were and how much of the Ombudsman's time should be occupied with complaints from the correctional institutions. What was the best way to deal with them? Should we have people out on the sites all the time, ready to take complaints, or should we make them write complaints in like everyone else? That's been an area of the office which has evolved under different ombudsmen. Different techniques have been tried, more to try to get the right balance between the attention given to those complaints, which are multitudinous, and other kinds of complaints.
I think over the years we got a number of huge investigations, which always cause a kind of perturbation in the office, if you like. You have to put a certain number of people on to a case which involves a lot of complainants, like the Argosy case, for example, which was reported to this committee at one time.
Mr Perruzza: The which case?
Ms Morrison: Argosy. The financial collapse in which a lot of people lost money. Those kinds of complaints tended to have to be dealt with by a specific team put on to doing it so that it could be done in a reasonable time, and that will change the whole rest of your arrangements because you have to get those people from somewhere.
You probably noticed that the number of staff in the Ombudsman's office has not really changed over the years, although the bureaucracy has grown and the number of complaints has gone up. A lot of adjustment always had to be done to make sure you could do the work with the people you had, and I'm sure they're still doing that.
It has changed. It changes with new governmental organizations, it changes with new kinds of complaints. Those are the kinds of changes I've seen.
Mr Perruzza: You just mentioned that the number of cases has actually gone up. In your estimation, when you started in 1982, how many complaints and how many cases would the office actually take on, and in 1988, what would be the number?
Ms Morrison: I don't have those statistics at my fingertips, but it's my recollection that the complaint numbers went up steadily for a few years and then increased less quickly over the later years. But there's a bit of mystification there because the Ombudsman gets a lot of complaints which are non-jurisdictional, as we used to call them, which are really things that were not necessarily supposed to be dealt with by the Ombudsman's office. How you count those changes the total you report.
It's a very difficult question, because in some ways you should not discount them because you often help people a great deal in those areas, even though it's not your business to do that. So you would like to count them in the way that you say, "We helped this many people this year." On the other hand, they were complaints outside the Ombudsman's jurisdiction. There might have been people who needed to know where to go for something to do with the Metropolitan services or they needed to have some referral for a federal matter, and you helped them find the right place to go. You maybe even called the person up and said: "I'm referring this person to you. Can you make sure you find out what the problem is for them?" You end up doing a lot of good for those people, so you want to report those cases because they reflect the work you do, but where should they go in your statistics? So the statistics are very difficult to analyse and get the right picture of how much work goes on there, I think.
Mr Perruzza: To understand this, I always thought that "complaints" meant the number of complaints that are simply received, but what you're saying is the complaints are actually written submissions or phone calls that are received by the office that are dealt with in some way by the office. Just to be a little clearer, you get a complaint from a school board or a municipality which is not within the jurisdiction of the office. Is that registered as a complaint received, even though you write back a note saying, "No, we can't deal with this because it doesn't fall within our mandate"?
Ms Morrison: It is, but it's reported differently from a complaint that is within the Ombudsman's mandate -- at least it used to be. I haven't seen the way they're reporting complaints these days, but we used to divide them between what we called jurisdictional complaints, ones that were within the Ombudsman's jurisdiction, and non-jurisdictional complaints.
That didn't mean we didn't help the non-jurisdictional people. We tried to do what we could to get them into the right stream, if you like, but they weren't matters that the Ombudsman could investigate. So the jurisdictional complaints were really complaints which could be investigated or dealt with within the Ombudsman's mandate.
Mr Ramsay: I just have another question to ask you and it's with regard to cases that have been brought to our attention by the public. When I look over the past history of the working relationship between the Ombudsman's office and this committee, there seems to be a fairly good relationship in trying to resolve those complaints that come before us.
What we're finding now is that we are getting responses back from the Ombudsman saying that because of the confidentiality of the cases she cannot give us any sort of information, even to the point of answering a question of why it's taken two or two and a half years to deal with a case. I certainly find that an extremely strict interpretation of the act, when somebody from the public who has had a case dealt with by the Ombudsman's office is actually asking for some assistance, asking us to investigate this particular handling of that case, and therefore has given permission basically to look at any information that involves him with regard to that case. How would you suggest that we get that relationship back on track with the Ombudsman, that we can be seen as a team working well together on behalf of the people and fulfilling our role just to make sure that the job is being done?
Ms Morrison: I'm not sure what I'd suggest, although I think something I said a little bit earlier in response to a question, just was the thought that there may be some fairly non-threatening area in which you could learn about the Ombudsman's office or about the processes and which you could use to establish some kind of ongoing relationship.
I think the question of complainants' files is a difficult one. They are confidential and the office is very careful about confidentiality, for good reason I think. But if a complainant is coming here with the letter that he or she wrote to the Ombudsman, he or she is giving you the information; and, in my view, that's open to them to do that.
I'm not sure what to suggest. I am of the view that this committee could be of assistance to the Ombudsman, so I personally would like to see the relationship between this committee and the Ombudsman be a constructive one. But, as I say, I'm not in possession of the information about the present situation which would allow me to make any comments about the rights and wrongs of it, except to say that I really wish it were better.
Mr Ramsay: We do too, and in the workings of this committee, in the next few days and into the new year as we work through this fall, I hope that can be made to happen.
The Chair: Ms Morrison, thank you very much for taking the time out this afternoon to come in and give us that fine presentation.
Ms Morrison: Thank you.
The Chair: Seeing no further business before us, this committee stands adjourned until 10 am tomorrow morning.
The committee adjourned at 1522.