OMBUDSMAN SPECIAL REPORT ON THE ONTARIO HUMAN RIGHTS COMMISSION
CONTENTS
Wednesday 18 May 1994
Ombudsman special report on the Ontario Human Rights Commission
Ombudsman of Ontario
Roberta Jamieson, Ombudsman
Case of Ms M
Roberta Jamieson, Ombudsman
Victoria Vidal-Ribas, director, family support plan, Ministry of the Attorney General
STANDING COMMITTEE ON THE OMBUDSMAN
*Chair / Président: Rizzo, Tony (Oakwood ND)
Vice-Chair / Vice-Président: Wilson, Gary (Kingston and The Islands/Kingston et Les Îles ND)
*Abel, Donald (Wentworth North/-Nord ND)
*Akande, Zanana L. (St Andrew-St Patrick ND)
*Cooper, Mike (Kitchener-Wilmot ND)
Haslam, Karen (Perth ND)
Henderson, D. James (Etobicoke-Humber L)
*Martin, Tony (Sault Ste Marie ND)
*Miclash, Frank (Kenora L)
Murdoch, Bill (Grey-Owen Sound PC)
*Ramsay, David (Timiskaming L)
Stockwell, Chris (Etobicoke West/-Ouest PC)
*In attendance / présents
Substitutions present/ Membres remplaçants présents:
Wood, Len (Cochrane North/-Nord ND) for Mrs Haslam
Clerk / Greffier: Decker, Todd
Staff / Personnel:
Murray, Paul, committee counsel and research officer, Legislative Research Service
Swift, Susan, research officer, Legislative Research Service
The committee met at 1004 in room 151.
OMBUDSMAN SPECIAL REPORT ON THE ONTARIO HUMAN RIGHTS COMMISSION
The Chair (Mr Tony Rizzo): We're ready to start the meeting. Ms Jamieson, I think you can go ahead and make your statement.
OMBUDSMAN OF ONTARIO
Ms Roberta Jamieson: Good morning. Bonjour. Sago. It's a pleasure once again to be meeting with the committee.
As I understand the allotment of time, the Chair has asked that I spend a few moments at the outset responding to the presentation last day by the Ontario Human Rights Commission, and then we would move on to the consideration of a case I presented to you in the special report last year, the case of Ms M. I'll start, then, with the Ontario Human Rights Commission.
You'll know that it's two weeks ago today that I presented this issue to the committee. I reviewed with great interest the evidence provided to you last week by the chief commissioner and staff of the Human Rights Commission. I appreciate what was said and I appreciate the steps that have been taken, where the commission is planning to address the problems of backlog and delay. Indeed, I am supportive of them, particularly the training and development initiatives for staff at all levels and steps to reinforce the accountability of staff and managers alike for achieving the case load goals.
I will say that there was nothing said last week in the presentation that has caused me to change the views that I put forward to this committee two weeks ago. I shared with you then some of my ongoing concerns, having reviewed the case load at the commission: the middle bulge, the fact that early settlement initiative cases are not counted in the ongoing case load and so on. I won't repeat those today, save only to say that in the evidence I heard last week, the data were not new and they have not caused me to alter my views.
I also would like to say that while the commission is making efforts and rightfully says that time is needed to show results, and they should be given time, I also am convinced that this, and this alone, will not address the problems that are outstanding. My view, having investigated this matter as an officer of this Legislature, is that if we are to provide a framework for the promotion, respect and enforcement of human rights in this province for all of its people, our children and our grandchildren to come, broad reform is required.
Yes, I found problems at the commission over the last four years; and yes, I have seen a number of case management strategies and I have seen a number of promised training and development initiatives and I have seen a number of good ideas put forward; and yes, I did find, in sum, when I put forward my report, that the efforts of the commission at that time were tantamount to a failure to enforce the code effectively in its present form; and yes, there have been efforts to improve, and these efforts are to be commended and supported; and yes, there is commitment to do more, as evidenced in the chief commissioner's evidence last week; and yes, I support that, though I have let it be known to you that I have some lingering concerns.
But will it be enough? No. Is the commission itself looking for something more? I think the answer to that is yes, and I think they made that clear last week, as I have.
What I think is needed is a combination of support for the current initiatives and time for them to work, and support as well for changes to the code which the commission itself outlined last day. It outlined three major changes, and I do support those. Something more, however, is required.
I believe it is time to respond to the many reports and recommendations that are before the Legislature itself as a whole, and that was really what prompted me to raise this issue with you. It's one that legislators are uniquely equipped to review because it calls for the longer view, the broader view. This is not about program tinkering or reorganization or reshuffling or new internal plans alone. While they are to be commended, much more than that is required. I believe the Legislature is the place for that review. I respect that, and that's why I've raised the issue with you.
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In the final analysis, there are those who may say it's a question of whether we should wait and see if what the commission's doing now internally will succeed. Is it a question of that? Should we wait and see if they succeed or should we go for a broader reform of the code, of the whole enforcement framework, now?
I don't think it's a question of either/or. I think it's a question that both are required. I think they complement one another.
The commission is to be supported for its internal efforts. I hope they will be successful. I will be watching, as will you, from a distance, I am certain. I am hopeful that the steps they're taking will bear fruit, but I think together with that, some steps are required for broader reform.
What is required in addition is a commitment to the commission, and to the people of Ontario, that the necessary steps will be taken to ensure an effective framework to enforce human rights in this province, which is, after all, I suggest, the envy of the world in this field.
I ask you today to support the recommendation that government take steps to address the reports before it and to provide support, including legislative support, to ensure effective human rights enforcement in the province of Ontario.
Unless there are further questions, that concludes my remarks on the Human Rights Commission, the file on delay and backlog. I'll look to the Chair if there are further comments or questions to be asked.
The Chair: The members of the committee want to ask questions, and there is some time. We have to stop now and start again at 10:30, when the people from the family support plan are going to be present. I would suggest that your presentation regarding that particular problem has to be postponed until they are here. I think they would want to be here to listen to you.
We have about 15 minutes for questions, if members of the committee have any questions to ask.
Mr Tony Martin (Sault Ste Marie): I appreciate the time and the effort and the energy that have gone into looking at this by yourself and obviously those who work with you. It's important that we come to grips with how we deal with those instances when people's concerns aren't dealt with in a timely fashion.
However, I listened to the presentation by the commission last week, and some of my greatest anxieties were somewhat allayed in that there was a recognition that there was a difficulty, that there was a problem. I sensed a real commitment to come to terms with it and to do some things and that they were, as you have said, working very hard at this, working overtime and coming at it from a rather interesting perspective, making sure that those who are within the system are cognizant of the problems and beginning to work on them themselves.
My questioning to them at the time revolved around the issue of the unique circumstance that we find ourselves in: a time of tremendous economic upheaval and a time when we're bringing on board all kinds of new things, recognizing the rights of individuals and all that this brings to us by way of a need to make resolution of some sort.
Given that this is the circumstance and given that they are working as diligently as they can to come to terms with the backlog -- they gave us some figures that showed they were making some headway, particularly in the longer-term cases -- you don't share with me at least that greater sense of comfort, that when all of that allays and we do finally come out of this very difficult time and begin to move on, this thing could fall into place and we could in fact, without more expenditure of both money and human resource, be able to get a grip on this and do it in a timely and proper fashion?
Ms Jamieson: As we look ahead to the next century, we are seeing an increasing awareness among the people of their rights. We are seeing increasingly that people are insisting that those rights be respected. That demand is certainly growing, and it's for precisely that reason that I think we're obliged to take some steps to make sure we have enforceable human rights in the province within a workable framework.
I agree that some progress has been made at the commission internally and I have commended it for that progress, particularly on the older cases. I have at the same time said I remain concerned about a number of things: the middle bulge, for example. It remains to be seen whether those changes will continue to decrease the backlog and delay problems over time.
For example, they're closing 50 cases each month, I believe; certainly 50 cases each investigator. One would have to look at how those cases are being closed: Are they going off to reconsideration? Are they going off to the board of inquiry? Because those are counted as closed cases. Those aren't off the commission's table, but they're off the case load. So you'd have to examine that over time to see whether the changes, the improvements, will be substantive and lasting. I truly hope they will be.
My point is, even in the face of success in that regard, the commission itself is looking for greater support and assistance. I believe they welcomed the opportunity last week to comment on changes to the code that would assist them in their work. I don't believe that's talking about a massive infusion of resources. I don't believe that will necessarily add up to additional disposition of resources. I do believe a number of those changes are very important. So the commission itself is looking for further support, and support that only legislators can provide. It's a question of taking a broad supportive approach, both of the commission's efforts internally and of creating the environment externally to make it more successful and to make all of us feel more comfortable that our human rights are protected and enforced.
Mr Martin: I appreciate that. They came before us, as I said before, recognizing the great difficulty and challenge they are facing, having looked at all of the reports and referencing all the reports that you have referenced in your critique of the operation, and assured us that they were doing a job that would get them to a place where we would all be relatively comfortable that this thing is moving.
They asked for time. They very clearly said, "Give us time. We've only in the last year or so finally come to grips with this. We've put in place some things, the internal training, and we all know who has offices that deal with that kind of thing and how long that takes, and you have to bring people on board and everything." They were asking very clearly for time, to get that put in place and see the fruition of that eventually roll out.
I guess the question I'm rolling around in my mind is: Do we trust those folks, that what they say to us is the truth and that in time they will have this thing under control and it will evolve and be better for all of us? Do we give them that time? Do we trust what they feel is progress and recognize that?
Ms Jamieson: I don't know if I can add any more in reply than I already have. I don't think it's a question of lack of trust of the commission and its honest commitments at the highest level to remedy the situation. I'm a little sceptical, sure, but that's based on four years of monitoring and watching the situation from afar, but I certainly trust that there is commitment, there is goodwill, there will be and is an honest effort being made by the commission to better its record to deal with the case load, to deal with the delay and to deal with the backlog. I am hopeful that will remedy some of the difficulty.
But beyond that, I think they themselves would appreciate a supportive environment that could be created by changes to the code. They themselves have put forward a number of areas where they would like to see changes made that will enhance their ability to succeed. That of course is your decision, to wait for six months or a year or two years and see again how things are. I would suggest to you that even if the record of dealing with the current cases is improved, even dramatically, we are still dealing with a framework for the enforcement of human rights in this province that countless members of the public and special reports have said needs to be broadly reformed.
The commission has added its voice to that call, at your invitation. What changes would you like to see? They themselves are looking for changes. Does one wait six months, a year and a half, two years, and then see what changes are necessary? I'm not sure what more would be known then, other than perhaps a better track record in the existing case load.
The evidence is there that reform is needed and about the kind of reform that is needed. There are 88 recommendations, or 80-some recommendations, from what's known as the Cornish task force waiting to be addressed. I honestly believe, and I can only share with you my conclusions, having watched and monitored and investigated, that broader reform is necessary. I trust you'll be willing to recommend that the government address its mind to this and take that step.
Mr Frank Miclash (Kenora): Roberta, again, thank you for your presentation. I've learned more about the commission and the Ombudsman in the last two weeks than I've ever known in my entire life. In terms of the time frame, you're talking six months, a year and a half, two years. What will your involvement be procedurally over that six months, year and a half, two years, from this point on?
Ms Jamieson: On the question of delay and backlog, frankly, I think I've done my job. I have exhausted what is available to me to do. In fact, when I put the report forward last year, I reached the conclusion that accepting more and more complaints on delay and backlog, only to find them all -- of the 38 I looked at, every one was supported. It was not a wise use of my resources to keep investigating and reaffirming the same thing when I knew and the commission knew there was a widespread problem.
On the question of delay and backlog, I'm not sure what more I can do. I think I've done everything I could do, and that's why I took the extraordinary measure of tabling this special report in the Legislature, because I have exhausted my mandate on this question. That's why I bring it here to be addressed.
The Chair: No more questions?
Are the people from the family support plan present? We'll take a brief recess and start again at 10:30.
The committee recessed from 1024 to 1034.
CASE OF MS M
The Chair: We'll start the meeting again. We'll go ahead by allowing the Ombudsman to make her presentation regarding the family support plan recommendation, after which we'll allow the members of the committee to ask questions. At the end of the questions to the Ombudsman, the Ombudsman may stay or may go, and the people from the family support plan will be making their presentation. The committee members will be allowed to ask questions. Hopefully, we are going to be able to take a decision regarding the report at the end of today's meeting, if at all possible.
Ms Jamieson: I will again try to limit the presentation so there's ample opportunity for questions and exchange with members on the areas that are not clear to them or that they'd like to discuss further.
First of all, let me review that the family support plan was then called the support and custody enforcement program when this issue occurred, but I'll refer to it as the family support plan for today.
The goal of that program is to make reasonable attempts to take timely and practical enforcement action in every case so that they can, in the words of their own mandate, enforce support orders "in the manner, if any, that appears practical."
In the case I put to the committee last year, this case involved a single parent, Ms M, who was registered with the family support plan regional office in August 1988. At the time she had two children, one aged 13, one aged four.
On March 13, 1989, a request for garnishment of federal funds was sought by the family support plan. That garnishment became effective on April 27, 1989, and was effective for one year.
In January 1990, Ms M informed the regional office that she was advised by her ex-husband that he was due a substantial income tax refund, that it was coming, and Ms M received assurance from the family support plan not to worry, that a federal garnishment was in place.
On May 7, in fact the income tax refund was received by Ms M's ex-husband.
The family support plan's duty is to take practical steps to try to attach whatever funds might be available, to be forwarded to the recipient who's registered with the plan. They do this by wage garnishment; they do this by federal garnishment. In this case, our concern focuses on the federal garnishment and the steps they took.
They decided that it was practical to go after a federal garnishment in this case, and so they did that. They in fact obtained a signed garnishment from the court on March 1, 1990. However, they did not send it to the Department of Justice until March 27, 1990.
They knew from experience that once received by the federal Department of Justice, the garnishment was not effective for 35 days after it got to Justice itself. So, in this case, by the time it became effective, not only was it 12 days after the previous federal garnishment had expired -- because there was one in place -- it was also one day after the income tax refund that Ms M was trying desperately to get had gone to her ex-husband.
As we know, the family support plan has a mandate to enforce support orders. Why? So the recipients will get the money that is due to them. The federal garnishments provide a potential source of income. In Ms M's case, had the federal garnishment renewal been in place, she would have received the income tax refund that instead went to her ex-husband, and that refund represented about a third of the outstanding arrears that were owing to this individual.
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In January 1988, what was owing to her was $9,100. By 1990, it was $6,600. Had the family support plan done its job and taken timely and reasonable steps, she would have had access to one third of the outstanding arrears that were due her. Had they attended to this matter in a forthright manner instead of having the garnishment sit from March 1 to March 27 in their regional office, there would have been no time gap between the expiry of the original garnishment and the subsequent garnishment, and she would have received the tax refund to satisfy a big portion of the arrears.
In fact, the family support plan did not act in a timely and responsible manner, and where one day ultimately would have made the difference, it sat with the family support plan for 27 days.
Did they have a system in place to deal with federal garnishments? Yes, they did. They knew this was a potential source of income. They had a system in place that asked them to pull these files 70 days manually before the garnishment that was in place at the time expired, then to process it, then to forward it on to the Department of Justice. It wasn't the greatest system in the world; it was a manual system; there was no formal backup to this system if someone was away or off duty; things did fall through the cracks. Indeed, this was a system that required review and improvement and I certainly agree with the Attorney General, who also feels that review and improvement was necessary, and in fact steps have been taken to improve this system.
As poor as the system was at that time, however, and as heavy as the workload was, I still believe the family support plan fell well below what was an acceptable standard of service. They had a significant period of time to move on this renewal of the federal garnishment and they did not do so in a timely way.
More than that, they had knowledge that there was money coming from this income tax refund. How did they know that? The recipient, Ms M, had gone physically to the regional office and told them, "Look, this is coming." In fact, Ms M the previous year had missed out on an income tax refund, and so this year coming she was determined that she was going to be vigilant and make sure that they were going to be vigilant in their efforts to get it to her. This, after all, is what the family support plan is there to do, isn't it?
Because she lost out on this opportunity -- and I'll speak more about other things that happened to Ms M -- she lost faith in the family support plan's ability to obtain the funds for her, and in the end she entered into a settlement agreement with her ex-husband which ended up with her receiving substantially less than she was entitled to in arrears.
In this case there's no question, as I've said, that the policy and procedures at the time were in need of review and improvement. There is no question that steps have been taken to improve them, and I believe they're appropriate and adequate steps. It's not those that I'm here to discuss today. That is not the issue today.
For me, the issue today has more to do with the responsibility of the family support plan in this case, where it clearly failed to take appropriate and adequate steps to secure this federal garnishment in place, and as a result, Ms M lost out. There is no question that the family support plan was unsuccessful in attaching these federal funds. So none of those things are issues before the committee.
What is at issue for me is squarely the family support plan's willingness to accept responsibility for its failure to fulfil its very raison d'être, its enforcement responsibilities, by taking adequate, timely enforcement action in the case of Ms M. As a result, they denied her a reasonable opportunity to satisfy the arrears owing to her.
What is at issue is the family support plan's willingness to compensate Ms M for the money that she lost when she settled with her ex-husband for basically 50 cents on the dollar of what was owing to her, having lost all faith in the family support plan's ability to gain access to the arrears owing to her.
I've talked about what was in place at the time. I've talked about, very simply, what happened and why Ms M was deprived of these funds. If this is the case, why then is the family support plan, is the Ministry of the Attorney General, unwilling to compensate Ms M? What seems to be the problem here?
I'd like to briefly go through for the committee's information what the views are that have been put forward to me by the family support plan as to why they don't feel they should compensate. One of the first arguments they've put forward is that this individual, Ms M, had no reason to lose faith in their ability to obtain arrears. They will argue that they've obtained money from wage garnishments all along, not the federal garnishment but from wage garnishments, and if she had only waited and put her trust in them, they would have been successful ultimately in getting that money for her too in the arrears.
The facts are that Ms M had substantial arrears: From 1989, they were $9,100; from 1990, they were $6,600; at June 1991, when she entered into the settlement agreement itself, they stood at $9,977. So the arrears were substantial from the beginning, and on the rise. Furthermore, at the time she signed the settlement agreement, she was receiving nothing by way of arrears from the payor, nothing, and in fact had suffered several interruptions over the past year or so in even getting anything from wage garnishment.
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There follows a story or two about what she experienced on the wage garnishment front. I'll tell you one.
The payor, the ex-husband, for a period of time was on sick leave from work. The wage garnishment was then transferred from the employer to an insurance company. The insurance company forwarded the wage garnishment, which was ultimately forwarded to the recipient. A further court order was registered, but it didn't get through for about a month, at which point in time the insurance company decided that it had sent too much money to Ms M and required the money to come back and be sent over to the payor.
What happened in this case is, there was again a month gap, where knowledge of the court order came to the attention of the family support plan. There was also a miscommunication between the insurance company and the employer, and this resulted in Ms M having to give back some funds. They went over to the payor. Now, this is a very frustrating situation for a payee. You would think if there had been a bit of an overpayment, even in this case through miscommunication, that it might be applied to the substantial arrears. Well, it was not.
So we're dealing here with a situation of someone who was rightly quite frustrated not receiving consistently money from the wage garnishments, and at the time of the settlement agreement not receiving any money to apply against the arrears.
She continued to rely on the family support plan throughout. I said before that she missed the income tax refund in 1989. She then had interruptions in the wage garnishment through the next year. She made what some have described to me as a herculean effort to ensure that the regional office was aware that this year income tax money was available and coming, and to please make sure that it came through to her as the recipient. She physically attended the office to do so and, more than that, received assurance from the family support plan that she had "nothing to worry about," that there was a garnishment in place.
I believe that in the end the family support plan failed. They failed Ms M and I believe they failed all of us when they did not follow through. Even when you look at the system, as poor as it was at the time -- and it has dramatically improved -- taking that into account, workload and so on, I still do not think there is an excuse for the failure that occurred here.
Having looked at it and investigated it from an independent and objective point of view, I believe that Ms M had every reason to lose faith in the family support plan. I believe that it was reasonable for her to conclude that despite her efforts and in the face of the assurance given by the family support plan and the fact that one day before the garnishment was effective her ex-husband again received the income tax refund and she had nothing -- no arrears and two children to support. What was her alternative when we come to 1991, when she signed the settlement agreement?
I suppose her alternative was that she could once again have faith and hope and a prayer in the ability of the family support plan to gain access to the arrears for her. I think not. I don't think that was a reasonable alternative at the time. She decided instead, and I believe it was a reasonable choice, to accept what she could get because it was real, and having received nothing in arrears, nothing in the promise and no reason to expect anything otherwise, she accepted what was offered to her by the payor, her ex-husband.
The ministry has also argued that it is not its responsibility. They're not the guarantor for the payor; it's the payor, the ex-husband's, responsibility to pay the support. The court order even spoke to an income tax refund being available and the court order even said to the payor: "You've got to provide that. You've got to forward that to the recipient." The ministry will say that it is not its responsibility to pay; it is the payor's responsibility.
What concerns me about that argument is that the reasoning behind it seems to ignore the fact that the whole reason the family support plan was created, the reason it was born, is because payors were not fulfilling their support obligations and as a result were leaving many, especially single parents and children, in very precarious circumstances.
Having created the family support plan to enforce support orders, I think Ms M and indeed every member of the public is entitled to expect that it will do the job it was set up to do in a reasonable and timely fashion. We are indeed devoting substantial resources to this office and sustaining that service, and if they're not providing that service, I'm not sure why they would hold themselves out as doing so. I believe when they do not provide that service, they are obliged to accept responsibility for their failure.
The ministry will also say, and has said to me, that Ms M entered into the settlement agreement of her own free will, and more than that, she had the benefit of legal counsel, so she knew what she was doing. I don't think there's anyone who questions whether she knew what she was doing. The fact is, with the alternatives that were available to her because of the failure of the family support plan, she did accept that settlement; she did lose faith. It should also be recognized that at the time, it was widely acknowledged, certainly in family practice in legal circles, that you could not put your faith in the family support plan to gain those funds for you. So I think the fact that she had access to legal counsel does not absolve the ministry of its responsibility in this case.
There is also an unstated concern about floodgates. I hear more than I care to admit about floodgates in all the cases I deal with as the Ombudsman for the province. When I want government to accept responsibility for something, I often find myself dealing with the issue of, "If we do it here, will we have to do it everywhere, and is that a reason not to do it here?" So I'm not sure, but certainly it should be considered in the back of your mind, this floodgates argument about which I hear.
I think the real issue here is, if government accepts responsibility and compensates Ms M in this case, will it be setting a precedent? I think that we're entitled to expect government to accept responsibility for its failures on a day-to-day basis. I have also heard that the ministry feels we are holding the government up to a level of accountability it is unable to accept.
What is it that they are willing to accept? On the one hand, it is argued it's not their responsibility, that it's the payor who is obliged to pay; on the other hand, it's argued it's not their responsibility, it's Ms M with her legal counsel who settled this. I think there is some responsibility here to be borne by the family support plan. I think there's no question in this case that they have failed her, and as a result failed all of us, in their duties.
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If that's the case, what's the penalty for that? Is it an apology? Is it: "Trust us. We'll do better next time"? Is it: "Give us another chance. We've improved"? The reality in this case is that Ms M has lost a substantial amount of money, arrears that she will not be able to obtain at this stage because of the position she was put in. I believe, in the final analysis, that government is in the business not only of creating standards in our society, of setting them, but also ought to be in the business of maintaining them. When they fail, they ought to be willing to take reasonable steps to repair the situation.
This case really comes down to a very simple question of responsibility: Is government obliged to accept responsibility for its failures? I believe the answer to that question is yes, and where someone has irrevocably suffered loss as a result, part of taking responsibility for the failure includes making whole those people who have lost as a result.
This really comes down to an issue of fairness, justice. This is not a court of law. The standards that the Ombudsman is able to look at are broad in scope and really do take into account broader concepts of fairness and justice. That's one of the reasons the Legislature created it: justice in its fullest sense. I believe the Ministry of the Attorney General knows something about that concept. Surely it's fundamental to our system of government that there be accountability and responsibility.
When you have someone with the courage of Ms M, who has suffered loss, willing to come forward, willing to take the step of registering her concern, first we must commend her for her courage; second, we must commend her for caring enough about the rest of us to raise these issues with us so that we have an opportunity to improve the system.
As an officer of the Legislature, I've investigated this case. I've satisfied myself that the concerns of Ms M were well founded. I've satisfied myself that the family support plan failed in its duty to take timely and reasonable steps to ensure the federal garnishment was in place.
The recommendation I have come up with in this case, to put Ms M in a reasonable position, is found in the report and asks you to support my recommendation that she be provided with compensation.
As I've said, this is not a question of improving policy and procedure; I believe those things have been done. What remains is, is there a willingness to compensate this individual for the funds she has lost?
The recommendation is found on page 2 of the synopsis that you have. I am asking that Ms M be compensated in an amount of $1,147.05, plus interest on the amount of money there, $2,299.16, which was the amount of the income tax refund she would have received had the garnishment been in place, and interest on $1,147.05 after the date of September 6, 1991, until the date that compensation is paid.
How did I arrive at that amount of money? I've said that she may well have received the income tax refund of $2,299.16 had the garnishment been in place. What I have done is said yes, Ms M did make an agreement to settle for 50 cents on the dollar. Consistent with that agreement and her willingness to mitigate her losses, I too have taken that and made it 50 cents on the dollar and asked for compensation in the amount of $1,147.05.
It is open to the committee, of course. I hope the committee sincerely will support my recommendation for compensation. It is open to the committee to recommend a higher figure. I leave that in the committee's hands.
I'll stop there now and respond to questions, if I may.
The Chair: Thank you, Ms Jamieson. Any questions, especially on the opposition side?
Mr David Ramsay (Timiskaming): Ms Jamieson, thank you very much for your presentation. I must say it's extremely thorough and really answers all the areas that I would have questions on. You've really covered the area of reasonable attempt: Did the plan make reasonable attempts to recover the arrears, and did they do that in a timely manner? I think you've answered that.
One of the things we have to determine is, was there any loss suffered by Ms M? For that, probably we'll all have to reach to our own personal experience and experience of other people of what it's like to be a single mom out there trying to raise a family, what it was like before there were government mechanisms to support people, the faith now that single parents would put in our support plan to help them with that, and if that faith had in a way been betrayed by the lack of action, and the lack of action in a timely manner.
In a sense, when I look over the synopsis, I think that maybe there were even two delays. Maybe the first delay was not getting the initial action up and running: If Ms M came in January 1990, it wasn't till February 28 that the plan initiated the renewal of the garnishment. The second delay is when, once received on March 1, 1990, it basically sat on a desk in the regional office for the whole month of March, till March 27. Nobody disputes those facts, that there is a substantive delay there.
Obviously I'll have some more questions for the plan when it presents its side, but you make the point that the plan is probably going to make, that it's not the responsibility of the plan to pay. But it seems to me why we set the plan up in the first place is that it's the responsibility of the plan to collect when there's default. That's what it's there for. It failed to do that.
The next question in my mind is, was it reasonable on Ms M's part to conclude, after the failure of the plan to collect the tax rebate -- was this money ever going to be collectible? We have to consider that and also try to consider her circumstances at this time.
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This is not something, the situation of a single mom with two young children, where one can conclude, "Well, as long as I get the money some day, it's okay." I guess we could all argue, and I'd probably agree with the plan, that she probably could have gotten the money some day, maybe. But the point is you need it today, because the kids need running shoes and they need clothes. You need it in a timely manner because you've got growing kids. Now is when you need it. You don't need it maybe when the kids stop growing etc. So I think that needs to be addressed also.
Basically, I've just made these comments based on your presentation and I can reserve most of my questions for the plan when they make their presentation.
Ms Zanana L. Akande (St Andrew-St Patrick): Thank you very much for that presentation. Though we're focusing on one issue and one case, this particular case, it seems to me that what we're really discussing is the accountability of government offices for their actions, if we generalize it -- certainly that addresses the floodgate argument -- and saying, how accountable should government offices, whatever they be, be for their actions? Then we come down to the question of judgement of the appropriateness of those offices' actions. Obviously in this case that's your role, and you have done it and done it well.
I think there is a need to look at it even more widely. That's not to dispel this and say we don't have to talk about this, but to look at it as an example. Would you see the appropriate person for judging the appropriateness of government offices always to be the ombudsperson?
Ms Jamieson: Certainly not. There are many people who are in that business beyond the Office of the Ombudsman, not the least of which is every member of the public and so on. My task is purely to look at a case that comes before me, a complaint, to see if it's well founded, and if it is well founded, to come up with a recommendation that would put the situation right for the individual involved.
Ms Akande: Then if there are others in similar situations and they do not come to the Ombudsman, they of course would do without or their case would be brought to the same kind of situation that this one is.
Ms Jamieson: Perhaps I should say that whenever we look at a case, we try to look beyond the individual case to the implications for others. That's why we focus so much on recommending improvements to the system, so that other people don't have the same difficulty.
If you're asking me if there are other Ms M's out there, there may well be. My investigator went through, at the regional office, 41 files to see whether Ms M was an isolated case or not. What we found as we looked randomly at those files was that out of the 41, there were about 20 where there were interruptions in the federal garnishment, and out of those, 15 occurred pre-1990 and five occurred in 1991. What I don't know is whether in that interruption there are other people out there who took steps to settle for less than what was due to them because of the failure of the family support plan to act.
Ms Akande: Or who received no settlement at all.
Ms Jamieson: Or who received no settlement at all. Now, should those people come forward to me, say after tuning in this morning, I would look at each case on its merits and see what were the factors, what was to be considered, and would reach fresh conclusions.
Ms Akande: That being the case, and looking at it from the floodgate argument -- not that I'm posing it, mind you -- if in fact there were people who found this channel so exciting that they were informed by it -- there may be; stranger things have happened -- and they did begin to come forth not only in terms of the family support plan but in terms of other ministry business that was analogous to this situation, you may experience much more demand for your services if there are no other -- and I'm adding the term -- "official" people who should or would be doing what you do for the government.
Ms Jamieson: Of course, there are lots of options available to the public. They can sue; they can go to members. One of the options is to come to me.
It is not unusual for us to investigate a case, to find that government failed and to ask government to compensate. It is not unusual for government to accept that responsibility and to compensate. This case is clearly an exception, where it's very clear to me that compensation is due. What's extraordinary to me is that there's an unwillingness to provide it.
Mr Len Wood (Cochrane North): Thank you for your excellent presentation. You've brought forward a lot of details.
I have a brief question concerning the two refunds that she was supposed to have received from income tax that you said failed to get into her hands, but from that time until September 6, 1991, when she reached an agreement with her lawyer and with her ex-husband, there should have been another income tax refund during that period of time prior to September 6, 1991, or even after that.
I'm just curious whether she received at least one income tax refund cheque if there was a refund available, or if she received another one from that point until now. There should have been at least one prior to September 6, 1991. If her ex-husband is still working and income tax money is being refunded to him and in turn turned over to her, what transpired with that amount of money, if it did happen? I'm wondering if this had anything to do with her reaching a settlement on September 6, 1991.
Ms Jamieson: It is in fact the case that the 1990 refund formed part of the settlement agreement that was signed in 1991. So that was part of the agreement subsequently signed.
There were two refunds that I spoke to. One she did not receive because the garnishment wasn't in place in the first case in enough time to get it. The second time she did not receive it because the support plan did not take timely and appropriate steps.
Following that, there was a refund considered as part of the settlement agreement, and I can't give you an exhaustive look from then until today because my findings are as at that point in time.
I can tell you that up until November 1991, and this speaks also to an earlier point raised by Mr Ramsay, what the plan was able to get for her by the federal garnishment. They got $72.50 on March 12, 1991. They got $132 on September 20, 1991, and on November 4, 1991, they got a further $132. This individual had, at the time she reached the settlement agreement, almost $10,000 outstanding in arrears.
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Did she have a hope of ever receiving that based on the experience that she'd had with the plan? I'd say it's a very tough argument to put forward. Having started the plan with $9,000 owing in arrears, and three years later actually still greater arrears owing and no arrears coming in when she signed the agreement, what do you think the level of her confidence was that she'd ever get it? I'd say on the negative scale.
Mr Martin: I wanted to take a little different tack. To me anyway, it seems we've somehow forgotten the real culprit in this, which is the payor who, in my mind, has achieved some relief of his responsibility through this whole process. There's no reference in here, although I suppose that's not your mandate, in terms of how we get retribution.
Certainly you've made a case for the plan not being diligent in doing its job, and I accept that and recognize it and sympathize. But in this situation this payor obviously was paying attention to what was going on, what was available to him. He obviously had a lawyer if she had a lawyer. There was an insurance company somehow involved here, it seems to me, and there was a window of opportunity re the garnishment coming off and going on again where he got in and got that money. He knew what he was doing.
In this case we have a person who again has been able to manipulate the system. He has been manipulating it all the way along, it seems. This woman was not getting her rightful due, according to the court order that was put in place. There was a backlog of moneys owed, and he found a way through this with the payee -- I guess that's the word you use -- to lessen the contribution he has to make.
I'm wondering what we would be saying in this by doing what you're recommending that we do here re that whole question of who is ultimately responsible. Who is it we're trying to get after re this plan? In my mind, the question I have is how doing what you're recommending here gets us any closer to actually making this thing work, which is, in my mind, making those people who are responsible really be responsible and pay what they owe.
Ms Jamieson: I think there are two things I would say to that. One is that I said earlier I'm looking at the relationship between this individual member of the public and the government department she was dealing with. I am asking the family support plan to compensate her for their failure. I don't think it's an excuse for them to then say, "Oh, but it's the payor who was supposed to be paying."
The whole reason why you created the family support plan, why it was created, is because we know full well payors were not fulfilling their responsibilities, their support obligations. The family support plan is created to make sure that they do, and they're asked to take practical steps to make sure that they attach whatever funds are available to get those obligations paid out of a sense of justice, out of a sense of providing some support for single parents and children.
Having said that, I think they do bear a responsibility to do that job up to a reasonable standard. I have found in this case that they did not do that and I am asking them to compensate Ms M because of their failure. It's their failure in this case that I'm focusing on. I don't think it's a legitimate excuse for them to argue that ultimately it's the payor's responsibility.
If that's the case, why do we have a family support plan and what faith should we put in them? What standard can we expect them to uphold if they are an administrative office that forwards payments when they come in? I think there's a higher standard of service that we are entitled to expect of them, at least a reasonable one, and that was not met in this case. It's for their failure I'm asking that.
In trying to figure out what their failure is worth in terms of compensation, I have to look to what Ms M lost. I've looked at what she lost and I have even discounted that by 50 cents on $1, using the same thinking she used in entering into the settlement agreement with the payor.
Mr Martin: Could I just --
The Chair: We haven't got any time. We have to allow the other deputation to make their presentation and then we have to allow you to ask questions.
Mr Martin: Yes. I just want to follow up --
The Chair: Again, there isn't much time left. Mr Ramsay asked for a brief question again, if you really want to do it.
Mr Ramsay: Just a statement about Mr Martin's comment that it really is a total abdication of any responsibility of government. This is why we have government agencies. We should not harm people. We should not rob people or murder people, but this happens in society and we entrust agencies of government to enforce law. It's the same thing here. There should be accountability to those enforcement mechanisms, or why have them in the first place? That's part of our job as legislators.
The Chair: A very brief question.
Mr Martin: A brief response and question, yes. I understand what you're saying. However, it seems to me that, if a society's going to function properly, people have to be encouraged to live up to their responsibilities and not have to turn to government to deal with those.
You have a situation here where yes, government set up an instrument to have justice done, but our job, I think, is to make sure that in fact justice be done as much as we can without the intervention of government and, in my mind, doing things that let the real culprits off the hook, which is what we're doing here in this case by putting the blame on government.
I don't disagree that government carries some of the blame, but the precedent you're setting which says to people out there, "Be diligent," which is what they've always done, the payors in these situations. We have a history of people trying to find ways not to have to live up to their responsibilities. Now we've found another way, which is to blame it on the shortcomings of government agencies.
I'm asking where the balance is. I understand the Ombudsman's job, which is to focus on whether government did its job or not, and in this case you've pointed out that in fact it didn't. We as legislators, however, have to look at a bigger picture and the picture is, is justice better served by following the recommendation you've made here or by somehow making sure that the real culprit, the payor, is made to live up to his responsibility?
In this case, if we set a precedent here, which is the floodgate argument, then what are we doing? Are we saying to people out there that you take these other routes and, in the end, the people who pay are the people of Ontario as opposed to the person who owes the money in the first place?
Ms Jamieson: Just to conclude, I would say once again it really comes down to a question of responsibility. Is government obliged to accept responsibility when it fails to meet a reasonable standard of service to the public? I think so, yes, and I think part of that responsibility includes making whole people who've lost irrevocably as a result.
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If we cannot rely upon government to set the model, to set the standard in doing that, it seems to me to be a very difficult thing to look out to the public and expect that standard of behaviour. I believe government has to set the standards and be held to them.
Is there something to be done here to hold the payor accountable? Yes, and I believe that's why the family support plan was created. Having done that, is there something else to be done when government itself fails? I think the answer to that is similarly yes, when its failure has resulted in a loss to an individual.
These circumstances are particularly compelling to me, given the personal circumstance of the people involved. I think that makes it even more acute that government be aware, that government be diligent, that government do diligence and do its job, particularly when it's dealing with this clientele. If we cannot expect government to be acutely aware in these cases, I think it's a very difficult standard to uphold generally.
I would urge the committee to accept and support the recommendation I've put forward and urge the government department involved to compensate Ms M in the amount I've suggested.
I understand that, after I leave, you may be hearing from the ministry. I would hope that next day when we meet, if there are issues that are raised by the ministry, as with today I would similarly have an opportunity to respond before you might reach your ultimate conclusion. I'll look to the Chair to hear some further word on that.
Thank you for your patience and your attention.
The Chair: Thank you, Ms Jamieson. We will proceed with the director of the family support plan, Ms Vidal-Ribas. You can proceed.
Ms Victoria Vidal-Ribas: Members of the committee, I'm Victoria Vidal-Ribas. I'm the director of the family support plan and I am here to answer some of the issues that have been raised by the Ombudsman in her presentation today and to put before you the ministry's position in the matter of Ms M, which is the matter before the committee this morning.
The Ombudsman has spent a considerable period of time this morning talking about accountability and responsibility of government and the need for government to be accountable and responsible for its actions.
I can say to you on behalf of the plan that on the philosophical level that the Ombudsman is advancing, a need for government to be accountable and responsible, the plan is in a position to agree with the Ombudsman. Where we must part company with the Ombudsman is in the level of responsibility and accountability that's applicable in this particular matter.
In her report the Ombudsman identified concerns in two areas: the case-specific concerns that were discussed at length with you this morning and, in addition, some systemic issues. The Ombudsman in her remarks was good enough to acknowledge that the plan has addressed the systemic issues. I can tell the committee what specific steps have been taken.
Since the issue of Ms M was brought to the plan's attention, the province has worked with the federal government, and federal garnishments are now in place for a five-year period rather than a one-year period, and that is to minimize the opportunity for matters to slip between the cracks of the system and to allow for a more effective and efficient support collection system.
In addition, the Ombudsman in her remarks identified certain concerns about the practices of the plan's regional offices, the support and custody orders enforcement plan, as it was at the time. I can also advise the committee that steps have been taken to ensure that federal garnishments and other enforcement proceedings are dealt with in a timely and reasonable fashion. Some of the administrative issues that were identified by the Ombudsman in her report have been addressed.
In addition, the plan has looked at making sure that the necessary backup is available to maximize the opportunities for smooth enforcement with no breakage in the time from activity to activity.
I wish to bring this to the committee's attention, because I think it's important, as we discuss the reasonableness of the ministry's actions in the case of Ms M, to look at at what point we are assessing the reasonableness of the actions.
At the time the Ms M matter came to a head, in January 1990 and in the months following, the program was three years old. It is important that we not measure the program as it existed then by the standards that we would impose today in a program that is now seven years old, much more fully mature and having learned from the experience of those early years.
It is regrettable that the garnishment in question missed the income tax return. It is unfortunate. There was a difficulty in the dates, and it is regrettable that one day was the difference between the securing of the tax return and not. However, the plan must depart from Ms M's view that she was entitled to lose faith in its ability to collect the moneys for her.
The reason for that is there was a wage garnishment in place, as the Ombudsman has indicated in her remarks. That was remitting on a reasonably regular basis. The plan, as you know, has no control over the income levels of the payors. The change in the income level being received by the recipient, Ms M, reflects the change in the income level that the payor was enjoying as a result of various changes in the payor's employment situation.
The plan assessed how long it would have taken Ms M, based on the payments that were being received for her, to fully realize the amount of the arrears. Our calculations indicate that she would have been fully paid up on the arrears by June 1992 had she not settled with the payor, as she did in September 1991.
It is true that, in the case of all recipients, having the money today is better than having the money tomorrow or the tomorrow after that. However, the plan is in the business of collecting payments from the payors, and it is not -- unfortunately or fortunately, depending on how you look at it -- in a position to be guaranteeing a certain income level. The responsibility for payment is the responsibility of the payors.
This particular recipient had a remedy available to her. Had she stuck with the remedy of working through the wage garnishment, she would have had the payment in full by June 1992. In fact the plan continues to take enforcement action on behalf of this particular recipient.
To require the plan to compensate this recipient, as suggested by the Ombudsman, would have the effect of putting the plan and the ministry in the position of becoming a guarantor when payors do not pay. That is not the intent of the family support plan; that was not its design; that was not the design of its predecessor program. I would urge the committee to consider what the implications of recommending a payment would be for this program in the circumstances, because it would put the program in the position of being the guarantor.
There were changes in the order that were applicable to the individuals in this case, and that accounts in part for some of the variances in the payments that were being received. The Ombudsman, in her remarks, has alluded to the floodgates argument. That is a very tempting argument to engage in. I think I will simply address a few comments to the floodgates argument.
In this case we have an individual who drew her own conclusion about the participation in the plan. That is something that a recipient or a payor is entitled to do. The recipient drew the conclusion that what would benefit her situation the most would be to reach an agreement with the payor that the arrears ought to be fixed at a certain amount and that she would take a lesser amount than the full amount that was owed to her. That is the right of the recipient; she is entitled to make that decision. She had the benefit of legal counsel, as the Ombudsman indicated in her earlier remarks. So we have here a fully informed recipient.
It's the plan's position that, having made that decision, the recipient is responsible and accountable for her own actions in having made the decision to take a lesser amount of arrears and that it is not the plan that should be held responsible and accountable for the recipient having made that decision. That would be an unreasonable standard to hold the family support plan to and to hold the ministry to.
The legislation that governs the family support plan is a bit unusual in some of its language. It provides a fairly significant degree of discretion to the director about proceeding in a manner that is practical to enforce. There are a couple of sections in the statute that speak to the discretion of the director to assess what is practical as an enforcement remedy.
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In this case, this recipient was one of the luckier recipients, in a way, because the payment of the arrears would have been made; she was an unlucky recipient in that it wouldn't have been made in a timely fashion because the obligations weren't being met by the payor, as set out in the court order.
In looking at the actions of the plan, it is important to look at the actions taken in 1990 against what was practical and reasonable for the program to be doing at that time. It is the submission of the plan and of the ministry that to hold the plan responsible for compensating this recipient for the arrangement regarding the arrears that was made is not a reasonable action because the plan did what was practical in the circumstances.
It is unfortunate about the income tax refund. In answer to why it took so long, my response to this committee is that the plan was in its infancy and it was doing what it could with the resources available to it. It has learned from this experience and from others and has improved its processes and continues to improve them. As a result of this case and other matters that the plan was looking at at the time, it has also instituted a three-and-30 policy, which is action within three days on hot tips, which is what this would have been classified as, and action within 30 days on other matters.
The Ombudsman has indicated that when the government falls short in its actions, the government should be held accountable and the government should compensate individuals in appropriate cases. I can advise this committee that in fact the plan has paid compensation in cases where the plan has felt that there has been a justified claim for compensation.
This is not a situation of a government program simply refusing to acknowledge its responsibility or its accountability for errors. The position of the plan and of the ministry is that this is not an appropriate case in which compensation ought to be paid. In cases where it has been paid, there has been a clear error on the part of the plan, and that error has been acknowledged and the payment has been thought to be the appropriate remedy.
The Ombudsman, in her remarks, talked about this as a simple question of responsibility. There is responsibility on a number of fronts here. As the committee indicated earlier in its remarks, there is the responsibility of the payors to make the payments to which they are obligated by a court order or by domestic contracts or any other arrangements that are made. It's the responsibility of the plan to take whatever steps are practical to enforce the support that is owed, and it's the responsibility of the recipient to be a participant in the plan. In fact, this plan is successful in part because of the participation of the recipients and the information that the plan is in a position to receive because of the participation.
This is a fact situation with responsibility on a number of fronts. It's important to be aware that the responsibility is not simply on the part of the ministry here, but there is responsibility elsewhere in this fact situation. I reiterate again, Ms M is certainly at liberty to have made the arrangement that she made with the payor in this particular case. However, it is the plan's position that it is not the plan's responsibility to compensate for the difference in the payments as a result of the arrangement made by the recipient in this case.
It is in fact the responsibility of the plan to create, set and maintain standards, and that is something that the plan has been working at vigilantly over the past few years as the program grows and develops and comes out of its infancy. In fact, I think it is fair to say that the plan has made quite remarkable strides in improving its service, and over the past two years, with the recent set of legislative amendments, there has been a remarkable increase in the amount of support that is collected for individuals. The submission of the ministry is that the plan is meeting its responsibility to create and maintain standards and it is working to those standards.
In taking the enforcement action that the plan took in this particular case, the ministry, through the family support plan, or the support and custody orders enforcement plan at the time, took adequate steps, and in fact, as I indicated earlier, this recipient was realizing funds as a result of a wage garnishment. So in answer to the Ombudsman's concerns that adequate and appropriate steps were not taken in this case, the plan must differ from the Ombudsman in that position because there were appropriate steps taken.
We had here a payor who was resistant to making the payments. There was execution in place. There was execution available that would have realized other funds. There was in fact some exchange with the federal government the following year about income tax refunds and so on. This is not a case in which the plan failed to take any adequate enforcement action for this particular recipient.
It is unfortunate that recipients find themselves in the position of facing significant arrears that are owing to them. However, that is a reality of this kind of business, of the support business. It is the plan's responsibility to take reasonable steps, practical steps, to realize on those arrears, and it is the position of the ministry and of the plan that those steps were taken.
The Ombudsman is right: There were substantial arrears here and the income tax refund would have gone some way towards collapsing the arrears earlier than they were going to be paid out through the wage garnishment. But again, I must stress to this committee that the arrears, according to our indications, would have been paid in the end, and so it is a question of a recipient who would have received her funds. So it is not reasonable for the plan to be held to the standard that the Ombudsman is seeking to hold the plan to.
In terms of what the plan is able to do, the Ombudsman in her remarks alluded to some overpayments that were returned to the payor and were not applied to funds for the recipient. I would remind this committee that the plan is only in a position to enforce what is available for enforcement under the court order. So if the plan is not able, by the terms of the court order, to apply any overpayments to the arrears, and at the relevant time the court order was fixed at a payment of $50 towards the arrears on a monthly basis, then the plan is required to return the funds to the payor.
It would be a happy situation in many cases if the plan were in a position to say, "There has been an overpayment and therefore we will apply it in this fashion." However, that is not always possible, and I would urge the committee to remember that we in the plan are bound by the provisions of the court order and so are limited by the parameters of that order.
The Ombudsman very thoroughly, I think, canvassed the fact situation for the committee, and I don't propose to spend a great deal of time reviewing this fact situation other than to say that we have here a recipient who was receiving funds and continued to receive funds and to this day continues to receive funds as a result of the actions of the family support plan. So the responsibility for the decisions made by the recipient here are the recipient's and not the family support plan's.
Those conclude, I think, my formal remarks, and I'm happy to answer any questions the committee might have.
Mr Ramsay: Thank you very much for your presentation. I was wondering, at the time this took place -- and I know your policy has changed -- what policy did you have in place in regard to the reception of hot tips?
Ms Vidal-Ribas: The policy at the time was, to put it in a colloquial term, a first-in, first-out policy. When a matter was brought to the attention of the program at the time, things were acted on on a chronological kind of basis. That was assessed, and it was thought that it was more effective to separate regular matters that could be acted on on a chronological basis as opposed to hot tips, and that's why the change in the hot tips policy was implemented later in the year.
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Mr Ramsay: When I look at the synopsis, I guess it was some time in January 1990 that Ms M informed the plan's regional office that she had been advised by her ex-husband that he was potentially in receipt of a substantial income tax refund. At that time she was given assurances that the plan had a federal garnishment in place. Do we know in detail what happened there? Was it at first the thinking of the plan that, because there was one in place at that time but it was to expire in the spring of that year, that would probably cover it?
There seemed to be some inaction there, as I outlined for the Ombudsman. There seemed to be two delays there. It wasn't till the end of February that a renewal of federal garnishment was initiated by the plan. Then of course there's the second delay where, upon receipt of the court, from March 1 to March 27, the renewal document remained at the regional office. This process didn't really seem to proceed in a timely manner. I think that's really the crux of the argument here.
Ms Vidal-Ribas: The federal garnishment that was in place in January 1990 did not expire until almost the end of April, April 26 or 27. So at the time that Ms M contacted the office and indicated that there was an income tax refund owing, there was every expectation on the part of the plan that the federal garnishment would stay in place until its expiry date and that at an appropriate time there would be a renewal of the federal garnishment.
If we do the calculation, on February 28 the program sought to have the federal garnishment renewed. That occurred. The order was available on March 1. There is then a little bit more than a three-week lag until the federal garnishment is sent out, and then it is almost exactly 30 days from the date that the federal garnishment leaves the program's office until the expiry date. So it leaves on March 27, 1990, from regional office; the expiry of the 1990 federal garnishment order, if you will, is April 26, so we have a 30-day period.
The delay in processing the renewal in the February 28-March 1 time frame is entirely consistent with what the appropriate process would have been. The difficulty we find with this fact situation comes in the March 1 to March 27 period during which the garnishment was in the regional office.
As I indicated earlier in my remarks, the plan was in a state of transition and in a state of growth at the time and did not have the processes in place that it currently does. So it is an unhappy coincidence of timing. Had the timing been a little different, in fact the federal garnishment would have been in place and the funds would have been caught. We're only talking the difference of in essence a day with the renewal of the federal garnishment.
Mr Ramsay: I know we're always looking at improving government processes. We're always in renewal, and that should happen constantly. We should always be trying to do a better job for the public. Many times when we're in those processes of renewal, things do get disrupted. That's an unfortunate part, but maybe that's a normal part of trying to improve the system. During those periods, is it really acceptable that there is a loss of service or that people suffer or that a loss occurs that maybe people feel they're not going to ever recoup? Don't we have some responsibility, even as we're trying to improve the system, that we at least try to keep a minimum level of service in place?
Ms Vidal-Ribas: I would agree with you that it is important to keep a minimum level of service in place. I think the issue here though is whether or not the actions of the program were reasonable given all of the fact situation at the time. Certainly the program would not take the position that it is appropriate for there to be significant lapses in the level of service, but you must look at it against the overall reasonableness standard against which the plan is to be measured.
Mr Ramsay: How would you compare this time frame that it took, I guess through March and into May, to May 8, in this particular garnishment to how it would go today? What would the time frame be today if Ms M were to walk into the office today under similar circumstances?
Ms Vidal-Ribas: Effective February of this year, federal garnishments are in place for five years, so it is a much less labour-intensive exercise than renewing federal garnishments on an annual basis.
To give you an idea of the numbers, the plan currently has a case load of 126,000-plus cases. If you have federal garnishments in only half of those cases and they need to be renewed on an annual basis, you can imagine what the workload would be. So that is one of the reasons. Multiply this by the 10 provinces and the two territories for the federal system. So you can imagine what the volume is of federal garnishments.
The process now is in place so that there is a bring-forward system that is clearly developed and we have necessary backup. So if the enforcement officer who is responsible for the file is away or ill or not around for some reason, matters proceed in a more timely fashion. It still takes 35 days to get the things registered.
Mr Ramsay: You said, in regard to the arrears, that the plan had the remedy in place and that the garnishee was in place and that moneys were coming from the wages of the payor. But you also alluded to the fact that -- for different reasons, different employment opportunities, because of the sick leave of the payor -- there was quite a bit of inconsistency in the amount of money coming in from the payor.
So, yes, the remedy was in place, but it seems to me that Ms M, looking at the situation and looking at the arrears really not diminishing in any way, in fact increasing somewhat over this time period, and then seeing this big chunk of money slip through the crack, the rebate -- one could sense why Ms M had the feeling of hopelessness. You say by June 1992 she would have recouped all this, but she had the sense of hopelessness that she wasn't going to get caught up, that in a sense she was falling further behind. It seemed to me it would be a fair and reasonable assumption that she would assume she'd better cut a deal on this thing to try to get caught up, because she just wasn't going to get caught up.
Ms Vidal-Ribas: I think the plan must differ with you there about whether it can agree that it was a fair and reasonable assumption. The plan's position is that it was not a fair and reasonable assumption. Ms M is certainly entitled to her own view of it, and she's entitled to act based on her own view. The plan is not in a position to agree necessarily with Ms M's view or to say that because Ms M makes certain decisions the plan ought to be held responsible for the consequences of those decisions or to compensate for the ramifications of having made those decisions.
Ms Akande: It's often that problems or errors in the system initiate change, and for that I must commend you, that these changes are in place and that in fact you're doing things so that this won't happen again. It doesn't, however, erase that it has happened.
If I can draw an analogy between the plan that was in place for three years, relative infancy, and a new lawyer and an experienced one, would you indulge me? If I hire a newly called lawyer and he or she misrepresents me, would I somehow be called to consider in my decision to sue him or her the fact that he or she was newly called to the bar? It's a rhetorical question. I think not.
In many ways, the plan operates like a lawyer in that it's an intercession between the payor and the person who is receiving those funds, and, like lawyers, those people who work in those offices are paid for the services they are expected to give. I think they're paid because the service is certainly important, and one of those services includes the timeliness of the services they give.
What we're talking about is 27 days somewhere in the system after a person had gone to the office and said: "This is coming. Please don't let this happen to me so that I miss it." What we're talking about is, to me, a consideration of the need of the person who made that request. I think we would be prepared to say that perhaps that person had worked or operated, let's say, early, if in fact it were a different situation and the money may not have been as necessary.
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But if we look at this without thinking in terms of a single parent in need, suffering arrears already, albeit that your service of the plan was making sure that she did receive some support, we can't ignore the circumstances of the individual in cutting the deal. I always loved that expression, "cutting a deal." It makes it sound so crisp, when in this case it's really the last resort of a person who needs the money.
Now, you make the point that the plan cannot be a guarantor of payment. It cannot be expected to guarantee payment. But it can be expected to guarantee efficiency in providing the services that they do. Though I acknowledge, and I do acknowledge, that every service has growing pains and that in fact your service was in the midst of those growing pains, I find it difficult as a person who pays the salary of those who run the plan, in terms of my taxes, to accept that one of us should suffer adversely when those people who are paid have not operated efficiently.
Ms Vidal-Ribas: If I might just develop your junior lawyer and senior lawyer analogy a bit, I would say to you that the standard to which we hold members of the legal profession is a different standard than the standard to which the plan is held under its statute. So there is an obligation certainly on members of the legal profession to say to you as a client, "I cannot do that piece of work for you because I don't have the expertise," or "It's too senior," or "It's too complex," or whatever the issue is.
Having said to you, "Yes, I can represent you," then you are, I think, entitled to hold me as a lawyer to the same standard that you would hold another lawyer, and the law does not differentiate between junior and senior lawyers in the way that you were alluding to in your remarks. I think that's an accepted principle of legal tradition and the legal profession.
If what we are doing is looking to hold the plan to that standard, then we are changing the standard under which the plan is established, has operated and currently operates. To follow through on that analogy a bit further, the plan has the responsibility under its statute to do what is practical in the circumstances. So we are talking, I think, about a different standard for junior and senior lawyers against which we measure their activities, from the standard against which we would measure the activities of the plan. That is sort of the broader comment.
In answer to your specific question, the plan cannot accept fully the position that there was a complete lack of efficiency here. Steps were taken to renew the garnishment; steps were taken in a timely fashion to renew the garnishment. The garnishment was sent to the federal government and it could have been processed in good time. As it happened, it was not. It was sent to the federal government fully a month before the previous garnishment was to expire. So we do not have here the situation of a program that allowed April 26, 1990, which was the expiry date of the original order, to come and go before any action was taken at all, let alone sending the renewal of the garnishment to the federal government.
With respect, I think I cannot agree on behalf of the plan with your assertion that there was a lack of efficient action here. This is a case in which the plan did act, and it acted within the time frames that were necessary to renew the garnishment. It simply was not renewed within the time frame necessary to secure this income tax payment.
Mr Martin: I just wanted to lay out the scenario as I see it, so that you might respond to it and tell me if I've got it right. The new information that you bring to the table is the fact that there was a plan in place by court order that would have seen this lady, the payee, get what is her due, including arrears, by 1992. There was a plan in place that every month -- and that was being followed through. You were successful in garnisheeing the money and it was coming, it was happening, it was unfolding as laid out by the courts. Is that correct?
Ms Vidal-Ribas: Yes, sir.
Mr Martin: There was this opportunity to make that happen quicker --
Mr Ramsay: Can I say that's probably not --
Mr Martin: Excuse me, you had your chance.
The Chair: Let Mr Martin finish.
Mr Martin: There was this opportunity that came up that the payee recognized. There was an income tax repayment that was coming that she felt she had a right to access and she asked for a garnishment of that. But it was not part of the original plan; it was a new occurrence. But this money that would have come to the payee would not have increased in any way what she was due in the end, what she would have gotten by the time 1992 arrived and the plan would have played itself out. Is that correct?
Ms Vidal-Ribas: If I understand your question correctly, if the federal income tax payment had been secured, it would have accelerated the date at which the arrears were brought up to date.
Mr Martin: Okay, but it would not have gotten her any more money.
Ms Vidal-Ribas: No.
Mr Martin: The opportunity was missed. We can probably argue back and forth about who was responsible for that. You suggest that you had it in a full month before the garnisheeing was up, and I guess that happens. I know of the stress that was on the system at that particular point in time, being that we had a new plan in place and people were trying to get up to speed and put it together.
In fact, the stress on the system was put on by the fact that we hadn't up to that point in Ontario come to terms with the very difficult circumstances that we were putting people under by not moving to do something of this sort until that time. There was a big backlog of things that needed to be taken care of.
There was stress on the system. There certainly was some stress put on the payee in this circumstance by the fact that she didn't get this chunk of money that she thought she might be able to get her hands on. She then, under advisement by a lawyer, in partnership with the payor, who also probably had a lawyer -- and it seems to me there was an insurance company involved here of some sort. I'm not sure how that plays here, but there was the presence of an insurance company.
In the end, the payor ended up paying half of what he would have paid had the plan worked itself out to 1992 and the payee ended up only getting half of what she would have got had she stuck with the plan that was put in place by the courts. Now she's coming back to the government to get the other half.
Ms Vidal-Ribas: Yes, sir.
Mr Martin: The winner in this, in my mind, if there are winners in these circumstances, certainly is the payor, who was the reason this circumstance was set up in the first place. We're now being asked to make up for that and set in place, by precedent, a process that many others could simply take advantage of and, in the end, allow for another loophole in this system that we, by setting up the family support plan in the first place as it is now, are trying to get rid of.
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Ms Vidal-Ribas: That is certainly a possibility. In this particular case, the payor found himself not required to pay the full amount of the arrears that were owing to the recipient. I think it's fair to say that there are other payors and recipients who participate in the program who, for their own reasons, come to some accommodation about the amount of the outstanding arrears in order to perhaps realize the moneys today as opposed to tomorrow or some time after that. The result was, yes, this payor in the end paid less than he would have had to pay had the process worked itself through to the finish.
Mr Mike Cooper (Kitchener-Wilmot): Let's get back to the legislation here that sets up the family support plan. Is there a five-year review built into the legislation?
Ms Vidal-Ribas: A five-year for garnishments?
Mr Cooper: No, when the legislation was passed, right in --
Ms Vidal-Ribas: You mean a sunset provision in the legislation?
Mr Cooper: Right, for a review.
Ms Vidal-Ribas: No.
Mr Cooper: I know in a lot of legislation we're doing now, the opposition has really been pushing for there always being either a three- or a five-year review. I think that's an admittance that when we set up a new thing, it's not going to be exactly right. You said there have been legislative changes made after four years?
Ms Vidal-Ribas: Yes. In fact, on March 1, 1992, the Family Support Plan Act replaced the Support and Custody Orders Enforcement Act. That act introduced a number of enhancements to the program, including automatic wage deductions and support deduction orders to allow for regular remittance by income sources such as employers and so on to avoid the necessity for active enforcement action. There were a number of enhancements after the program had been in place for five years.
Mr Cooper: Contrary to what Ms Akande has been saying about something being set up and we expect it to be exactly right, a lot of the legislation we're doing now will have a five-year review plan in it so that after five years of any plan or service being provided, it will be reviewed to see where the problems are. So I don't see that we have to take ownership of this, that from day one it should be set up, as you stated, that it would be perfect.
Ms Vidal-Ribas: From an administrative standpoint, the plan is always looking at how it can do things in a more efficient manner without the need for legislative change. It is an ongoing way of doing business that the plan tries to look at improving.
Mr Cooper: Back to the original, as the Ombudsman said, they pull 41 files and for 20 of them there were breaks in the federal garnishment at that time, but it had gotten better. After 1990, there were only five, but there were 15 before that. What's the difference? Was there a higher case load?
Ms Vidal-Ribas: The difference is that there were systems put in place in the regional offices to make sure that federal garnishment renewals were identified on as timely a basis as possible and that they were processed on as timely a basis as possible, including making sure there was necessary staff backup so that if the individual responsible for the renewal was away for some reason, the thing didn't sit until the individual came back from wherever they were.
In large part the change is an administrative improvement on how the plan does its business; very recently, as I indicated. We now have a five-year renewal which gives an opportunity for a longer time period and it's not quite so labour-intensive. That's what's changed.
Mr Ramsay: I'd like to ask a question based on my interjection when Mr Martin was speaking. Mr Martin was accepting as fact the statement you made that your projection of the moneys you were receiving, that Ms M. was entitled to, would be complete and caught up by June 1992.
That's obviously a projection, but you had said, based on the employment opportunities and the income the payor enjoyed, that of course it would vary. Of course, we had a sickness. We had one garnishee just slip through the system. On what assumption did you make the projection that everything would be caught up by June 1992?
Ms Vidal-Ribas: You're right that it is a projection based on the history of the file. The basis for the calculation was an analysis of the history of the file -- the payment records, the payment amounts and so on -- and then a projection into the future of, if the world continued as it had been in the last while, when the payments would be brought up to date, as with any support payment.
Mr Ramsay: I wanted to get that on the record because I felt that Mr Martin accepted that as fact, and we really don't know that for sure. I mean, that's a projection.
Mr Martin: It was the plan that was put in place by the courts.
Ms Vidal-Ribas: There was a court order stipulating how much the arrears were to be paid down at the time, so the analysis included looking at the court order and the payment history.
Mr Ramsay: It assumes also full employment, of course.
Ms Vidal-Ribas: It assumes a certain income. It assumes an income level, yes.
The Chair: Does the court order detail the timing and payments; a breakdown, in other words?
Ms Vidal-Ribas: If you will bear with me for a moment, there was a Supreme Court order dated August 1, 1990, which stayed enforcement on the arrears except for a payment of $50 per week to be applied towards paying down the outstanding arrears. So until September 1991, which was the date at which the variation of the arrears was reached between the parties, that was the court order that was in place having to do with the payment of the arrears.
Mr Martin: Was it being honoured?
Ms Vidal-Ribas: Yes. My records indicate that it was being honoured.
Mr Ramsay: I'd like to ask you to submit the calculation that you made to come up with that projection.
Ms Vidal-Ribas: I don't have it with me, but I can certainly make it available to the committee.
The Chair: Thank you very much.
We had a request before by a member of the committee to meet in caucus for a few minutes. If this is the will of the committee, we can do that, and they may wait outside for a few minutes until we reach a decision.
The committee recessed from 1217 to 1222.
The Chair: We'll resume the meeting now. There is a decision by the members of the committee that apparently we have enough information for them to decide today without postponing it to another, further meeting. Mr Cooper wants to say something about it.
Mr Cooper: I'd like to move that we don't support the Ombudsman's recommendation.
Mr Ramsay: I would request that there be a recorded vote.
Mr Martin: Could I just make a brief statement in terms of how I'm going to vote?
The reason the change was made to the Family Support Plan Act was to make sure that people who had responsibilities and had been, through a court order, called to contribute so much to the upkeep and maintenance of a family continue to be held responsible for that. In my mind, to do other than what my colleague has suggested would be to get us back into a situation where the people of Ontario are going to be responsible for something that I don't think anybody would disagree they are not responsible for: the sustenance of families of those who were responsible for forming them in the first place. I think to vote other than in support of the decision made by the ministry in this case would take us back to where we were before we changed this system.
The Chair: Can I have a motion, then?
Mr Cooper: I've moved it.
The Chair: The committee is ready for a vote on the motion? What's the motion? I want to hear the motion.
Mr Cooper: A motion not to accept the recommendations of the Ombudsman.
The Chair: Okay. All in favour of the motion?
Ayes
Cooper, Martin, Wood.
The Chair: Against?
Nays
Ramsay.
The Chair: Thank you very much. The motion wins and the meeting is adjourned.
The committee adjourned at 1224.