REVIEW OF THE OFFICE OF THE OMBUDSMAN

RON ELLIS

INJURED WORKERS' CONSULTANTS

DAVID WARNER

CONTENTS

Wednesday 12 February 1997

Review of the Office of the Ombudsman

Mr Ron Ellis

Injured Workers' Consultants

Mr Orlando Buonastella

Mr John McKinnon

Mr Domenic Acierno

Mr David Warner

STANDING COMMITTEE ON THE OMBUDSMAN

Chair / Président: Mr John L. Parker (York East / -Est PC)

Vice-Chair / Vice-Président: Mr Tom Froese (St Catharines-Brock PC)

*Mr CarlDeFaria (Mississauga East / -Est PC)

*Mrs BarbaraFisher (Bruce PC)

*Mr TomFroese (St Catharines-Brock PC)

*Mr PatHoy (Essex-Kent L)

*Mr LeoJordan (Lanark-Renfrew PC)

Mr Jean-MarcLalonde (Prescott and Russell / Prescott et Russell L)

Mr RosarioMarchese (Fort York ND)

Mr BillMurdoch (Grey-Owen Sound PC)

*Mr John R. O'Toole (Durham East / -Est PC)

*Mr John L. Parker (York East / -Est PC)

*Mr RichardPatten (Ottawa Centre / -Centre L)

Mr R. GaryStewart (Peterborough PC)

*Mr BillVankoughnet (Frontenac-Addington PC)

*Mr LenWood (Cochrane North / -Nord ND)

*In attendance /présents

Clerk / Greffier: Mr Todd Decker

Staff / Personnel: Mr Philip Kaye, research officer, Legislative Research Service

The committee met at 1008 in committee room 2.

REVIEW OF THE OFFICE OF THE OMBUDSMAN

The Chair (Mr John L. Parker): A quorum now being present, I call this meeting to order. I welcome everyone here this morning.

RON ELLIS

The Chair: We continue with our hearings this morning and our first witness is Mr Ron Ellis, chair of the Workers' Compensation Appeals Tribunal. I welcome him here this morning. Mr Ellis, you have half an hour. You can use that time as you wish. Any time not spent making your presentation will be available for the members to ask questions, and this morning we will begin with the opposition party.

Mr Ron Ellis: Thank you, Mr Chair and the committee, for this opportunity to comment on the 1996 working paper and the 1993 report. I am chair of the Workers' Compensation Appeals Tribunal. I am also past president of the Society of Ontario Adjudicators and Regulators, better known perhaps by its acronym, SOAR. It is important, however, that the record be clear that I am not here to speak on behalf of either the tribunal, my organization, or SOAR. The views that I expressed in my earlier, written submissions to the 1993 review were personal to me and my comments today also reflect only my own personal views.

There are two reasons, I think, for the committee seeing my views on some of the issues here of some particular relevance and interest. In the first place, the tribunal of which I am the chair does a lot of business with the Ombudsman. We are currently releasing about 1,200 to 1,400 decisions a year, and each year I believe about 60 of these become the subject of complaints to the Ombudsman. A few of these become the subject of a tentative adverse conclusion, and in one or two instances each year, these lead to the tribunal's changing a decision that it had made.

Our working relationship with the Ombudsman, which is an excellent one, was described in my earlier submission, which I believe was marked as exhibit number 2/02/043, and it was the subject, I was pleased to see, of some positive comment in the committee's 1993 report. The reference there is to page 46 of that report.

The second reason I think my views may be of some particular interest and relevance is the fact that I've had a number of years' experience in managing a tribunal which, like the Ombudsman, has a mandate for independent decision-making and one that is roughly the same size as the Ombudsman's organization.

I propose to use the Ombudsman's response to the recommendations of the standing committee as the agenda for my comments. I should hasten to add that it's not my intention to offer comments on each of the committee's recommendations. There are only a few of them on which I feel I have something of potential significance to say, but I will come to them in the order in which they appear in the Ombudsman's response.

I will start with recommendation 1 at page 2 of that document. The recommendation is that the committee consider "whether there is a need to formulate rules to govern how the Ombudsman conducts investigations of a systemic nature."

I have two comments on this recommendation: First, for a small tribunal, the intervention of the Ombudsman in the tribunal's policy-making business can be very powerful and intrusive. I attempted to describe that view of the matter in the earlier submission and it appears at page 6 of the 1993 submission.

The Ombudsman has the power, if one doesn't agree with her policy recommendation, to report to the Premier and to the Legislature, both of which have significant control over the tribunal chairs, and the tribunal members' reappointments. She also has the power to decide to embark on a full-scale organizational audit. Both of those options, in the hands of one of the contributors to a policy discussion, make it very difficult for her not to play a dominant role in that kind of discussion if she were to choose to do so. It is my view that circumstance -- the power imbalance, if you will, between the Ombudsman and a tribunal faced with a policy dispute -- calls for careful control of the exercise of that power to engage in systemic investigation. I think a set of rules governing that exercise would be important.

Second, where the systemic investigation is in the nature of a general operational audit or organizational review, as, for example, the Ombudsman conducted concerning the Human Rights Commission a number of years ago, it is essential in my view that the tribunal under investigation have specified and acknowledged rights to participate in the development of the review plan to contribute during the review process and to have the opportunity to respond to the developing report while it is still in the draft stage.

This is an area, therefore, where I believe there is particular need for the formulation of rules. For a set of rules governing the rights of involvement of a subject tribunal in an outside investigative auditor review I would strongly recommend to the committee the rules which the Ministry of Labour has developed governing the sunset reviews of its agencies. That is a document that I believe was established in the spring of 1994, and if the committee were interested, I could provide a copy of that document. I think it might make a contribution to the consideration of what kind of rules might be indicated in this particular area.

Then at page 5, dealing with recommendation 3B, there is reference to the need to make information about the Ombudsman available at public service contact points. WCAT, of which I am the chair, does not offer this information to all parties at our contact points, but where we are dealing with a worker or employer who is particularly unhappy with a tribunal decision, we regard it as a routine matter to suggest to that party that he or she may want to refer the problem to the Ombudsman. This has not seemed to present any particular problems.

I believe, however, that to give all losing parties information concerning the services of the Ombudsman would be seen to constitute an invitation by the tribunal to further litigation of the issues and I think that kind of policy would be viewed with concern by the winning parties. We have a mandate to deliver final decisions and I think it would be somewhat inconsistent for us to deliver a final decision on one hand and a brochure about the Ombudsman's ability to investigate that decision with the other. I think there are some problems that need to be examined in terms of making that information available, when and where and by whom.

At page 14, committee recommendation 12, which deals with the power of agencies to reconsider and the necessity of having that power to deal with the Ombudsman's recommendation for reconsideration, or a criticism of the tribunal's decision, the Ombudsman's response on that page refers to the need for notice of the Ombudsman's recommendation that the tribunal reconsider its decision to be given to the parties to the tribunal's original decision and to give those individuals the opportunity, and I quote from the Ombudsman's response, "to make representations respecting the reconsideration of the decision."

There is a potential ambiguity here that needs to be cleared up. The problem is with the word "reconsider" or "reconsideration," which is inherently ambiguous. In common usage, "to reconsider" means, I think, to change, but it also is a word that describes a process of rethinking or rehearing which may not necessarily lead to a change. Before one embarks on a process of reconsideration or rehearing, one must first decide whether or not to do so, whether or not to reconsider in the sense of whether or not to reopen a final decision and commence the reconsideration process.

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In our situation, after a final decision has been rendered, one party has won and the other party has lost, and the winning party has achieved certain important rights by reason of that final decision. It should not be a matter of inconsequence that that decision be reopened and subject to the uncertainty of further process without there being some consideration of the advisability of reopening and commencing a reconsideration.

Thus in our case, the opportunity we give the parties to make representations respecting the reconsideration of the decision, to use the words of the Ombudsman, is a two-stage opportunity. First, we invite representations on whether or not it is advisable to reopen the decision at all and commence a rehearing process. Secondly, and only after the tribunal has decided that yes, it is advisable to reopen the decision and reconsider it, then an opportunity to make representations as to whether or not, after the rehearing process is complete, the original decision should or should not be changed. It will be essential that any rule governing the parties' rights in this respect distinguish carefully between the threshold question, as to whether the reconsideration process should be commenced, and the reconsideration process itself, and the ultimate result of the reconsideration process, which might be a decision not to change the original decision.

This ambiguity has been a vexed problem with the tribunal's handling of its reconsideration process and has been the subject of discussion with the Ombudsman during the development of the protocol that applies between her office and our office today. She had an interest in having her recommendation moved be the occasion for reopening the decision as an automatic thing and having the tribunal embark on a rehearing.

We have always taken the position that we have an obligation to consider whether, in light of the Ombudsman's report, it is advisable, against the criteria that we have established for that purpose, to reopen the decision at all, and we continue to have that two-stage process even when the Ombudsman is recommending a reconsideration.

I'm just concerned than any language and rules that develop pay attention to that often-missed but very important ambiguity in the concept of reconsideration.

Mr Richard Patten (Ottawa Centre): It's good to know that somebody understands what it says.

Mr Ellis: That might be overstating the case a bit.

Then at page 16, recommendation number 14 -- this is whether or not "to formulate rules to govern how the Ombudsman conducts investigations of tribunal decisions" -- I believe the protocol that now governs the Ombudsman's investigation of WCAT decisions, which I described at pages 3 to 5 of my January 1993 submission and which is referred to at page 46 of the 1993 report, would be a reasonable starting point for a set of rules governing the investigation of tribunal adjudicative decisions.

Whether that practice would be appropriate for all tribunal circumstances is doubtful, but it would, I submit, be a good starting point. One problem which the Ombudsman's investigation of a WCAT adjudicative decision presents and which has not received much attention is the fact that the investigation is of a complaint by a losing party, which puts the rights of a winning party in issue. In these cases, therefore, unlike the Ombudsman's traditional role of challenging a government decision and a government interest in support of a private citizen's point of view, in dealing with WCAT decisions the Ombudsman is in the position of challenging the rights of another private citizen on behalf of the complaining private citizen. I believe that changes the dynamics and the policy considerations quite significantly, or should do so. I do not think that peculiar problem involved in the Ombudsman's review of tribunal decisions, where the tribunal is deciding between the rights of competing private citizens, has received sufficient attention in the work that has been done to date.

The rules governing the Ombudsman's involvement with reviewing the tribunal's adjudicative decisions need to address that problem: What are the rights of the other non-complaining party, who is not the government, to participate in the Ombudsman's investigation? I'm not sure. I don't have an answer, but it is a neglected area in this subject.

I've also noticed the 1993 report suggestion that SOAR might play a useful consulting role in a rule formulation process. I think that appears at page 86 of the 1993 report. I'm not in a position to speak for SOAR in any official capacity, but it does seem to me that it is a role that would be most appropriate for SOAR and one which that organization would be likely to look upon with favour.

At page 18 there is reference to the committee's "monitor and review" recommendation. I appreciate that I am probably intruding here on an issue of considerable inherent controversy as between the committee and the Ombudsman. However, I feel I should express the view that I have by reason of the perspective I bring to that question from my position as chair of another independent agency. It is my feeling that if it were proposed that WCAT's exercise of its functions be subject to being monitored and reviewed by either the Ministry of Labour or the WCB, both I and the tribunal's worker and employer constituencies would see that as being entirely incompatible with the tribunal's independence.

The analogy is not, of course, complete, as we are talking here about monitoring and review by a committee of the Legislature. On the other hand, while I understand the non-partisan tradition of this committee, it is none the less a committee whose decisions are subject ultimately to control by its government members, and the perception concerning the impact on the independence of the Ombudsman is not likely, in my respectful submission, to be significantly different.

The final matter I should like to comment on is the recommendation of the term of office of six years at page 23 of the Ombudsman's response. Both the committee and the Ombudsman appear to agree that a six-year term provides a sufficient safeguard of the Ombudsman's independence, extending as it does beyond the term of any sitting government. As you might appreciate, the question of terms of appointments for chairs of independent organizations is one close to my heart and I have a couple of observations about this particular proposal.

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First of all, the protection that six years affords I think is illusory. Here I don't want to be taken as suggesting that there is any current problem in this regard, but from a structural point of view the protection of extending beyond a current government's tenure is illusory. You only have to consider an Ombudsman who has four years left on their term when a new government comes into power. That protection of independence can only exist for a couple of years probably, depending on how the appointment coincides with the change of government and so on. So for that Ombudsman who has four years left when the government changes, the kind of protection that was talked about here just evaporates. In fact, with any fixed term, whether it be three years or five years or 10 years, the protection it provides for independence is, in my view, illusory, because the term erodes. As you get closer to the end of the term, the dependency becomes more and more apparent. In my view, the longer the term, the greater the dependency because the less opportunities that individual has for doing other things, going back to a previous career and so on.

In my view, there is a lot to be said in the Ombudsman's situation for the appointment of people at the end of their careers whose appointment will run through to their retirement. That is what occurred up until the present incumbent, and in my respectful submission that circumstance really creates a true independence in that office. Of course the down side is that you want people appointed who are vigorous and still -- well, I guess "vigorous" is the right word -- and people who would not see it as a retirement arrangement. Mid-career appointments are probably desirable from that point of view.

Where you have a mid-term appointment, you run the danger of having the incumbent being seen to be running for their next career appointment, and the perception of the possibility that decisions will be tailored by his or her perceptions of where those career opportunities might most likely lie. I think for mid-term appointments what is really required to ensure independence is a very substantial separation package at the end of the term. In other words, you need an individual who is comfortable about their financial security at the end of their term for a substantial period of time, which allows them to re-orient their careers without feeling a high degree of dependency on the incumbent government for a further appointment and so on.

In this area I would make three points: (1) A fixed-term appointment, however long, does not provide anything but an illusion of independence; (2) the best arrangement is a vigorous person appointed at a time when the appointment will run through to their time of retirement; (3) the third choice would be a mid-term appointment but with a substantial -- I would suggest for an appointment of this standing and importance a termination package in the order of two years of salary and benefits after the term expires.

Those were the only items in the various recommendations on which I thought I had anything of particular interest to contribute. Thank you for the opportunity. I'd be delighted to take any questions.

Mr Pat Hoy (Essex-Kent): Thank you very much for your presentation this morning. You obviously have given this a great deal of thought since 1993 up to today's date.

You opened by saying that the Ombudsman could appear to be intrusive on the policy matters of the tribunal. The Ombudsman has stated that the role would be to look only at the process of how that tribunal made the decision, not necessarily -- of course by extension, I suppose, the decision itself, but the current Ombudsman has said that they look at the process only. You say that it's intrusive on the policy matters.

Mr Ellis: I was distinguishing between the intervention on policy matters as opposed to the individual adjudicative -- in other words, this distinction between her role with respect to adjudicative decisions of the tribunal and her role with respect to systemic policy issues. Again, I'm speaking here from a structural point of view of principle rather than reflecting any bad experience I've had with this Ombudsman. Our experience with her has been excellent and our working relationship has been first-class; we have no difficulty with that.

As I mentioned in my January 1993 report, when I deal with her, when she addresses me on a policy question, I rather feel like the president of a corporation dealing with the chief executive officer-chairman of the board. She brings to those discussions -- she doesn't brandish it -- this implicit power, if they disagree on a policy matter, of escalating that to the Premier's office, to this committee, and also the power to initiate a broad-ranging organizational review, which, as you know, is quite a daunting and disruptive undertaking for any tribunal to have to contemplate.

Mr Hoy: I'll try to be brief here. We hear on quite a few occasions, actually, the need to educate the public about the role of the Ombudsman. You waded in on that somewhat by saying that someone who is not successful at the appeal stage of your workers' compensation, and then to hand them a brochure to explain the role of the Ombudsman -- we're in a bit of a catch-22, whereby we want to educate the public about the Ombudsman's role, generally speaking, not just limited to your tribunal, but then at the same time we may even be coaching them. You see this as somewhat of a problem.

Mr Ellis: Yes. I think how the education is delivered and by whom becomes important. When you talk about doing it at the contact point, and in our situation the tribunal having the Ombudsman's brochure, or perhaps most directly, enclosing it in the letter in which you send the final decision to the losing party -- I think the employer is assuming that the worker has lost. In a case where the employer has participated and has won the appeal, for us to enclose a brochure from the Ombudsman in the letter to the losing worker would be seen as somewhat incompatible with our neutral role in the matter, would be seen I think by the employer as fomenting further litigation in a setting in which our decisions are said to be final, and the whole point of the appeals tribunal is to finish the litigation. I think it would be awkward and inappropriate for us to do that. Whether there's someone else who should be doing it at that juncture would be another question.

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Mr Len Wood (Cochrane North): Just a couple of brief questions. You're saying the term of office of somebody at retirement -- and I know retirements are all over the place. At my former employment, early retirement was age 55, full retirement was age 58. Members of the Legislative Assembly can get a full pension at age 55 if they have the years of service. I'm just wondering at what age you think it would be ideal to be appointed and at what age they should be out of it.

Mr Ellis: I guess an appointment to an age in which the probability of their being interested in taking on another major assignment would be remote. I don't know. It would vary with the individual, I think, but probably age 65 would be a good rule of thumb.

Mr Len Wood: A number of changes are taking place, and I'm just wondering how much extra work will be involved with the Ombudsman's office with the example of Bill 99 coming forward with changes to compensation the way it is. Is that going to generate a lot more work for the Ombudsman? I know it will generate a lot more work for the MPPs, the constituency staff that are expected to do that.

Mr Ellis: It's obviously hard to project, but the provision in the bill which requires the tribunal to apply board policy and not, as I understand it, to have regard for whether or not the policy complies with the legislation is I think a source of additional business for the Ombudsman potentially. For a complaint about a policy that is seen to be incompatible with the requirements of the act, the Ombudsman will be a place where that can be examined. That's a new item of business for them, and how large a caseload that might generate is very hard to say.

Mr Len Wood: Thank you very much. That's the second time you've come forward with a presentation, and I'm sure the information you've brought to us is going to be useful as we deal with the Ombudsman in the future.

Mr John O'Toole (Durham East): Thank you very much. My question is, whether it's the term of office or the conditions of transition from and into office or the duties of the office, in pretty well everything that I heard you saying basically the bottom line was whether or not there should be a review or a second opinion, even in the operations of the office. In your experience with SOAR and other organizations, have you thought of any other model where a single-point decision-maker -- obviously the WCAT process tends to deal with a decision at a committee level. Would that be an appropriate model -- this would deal with the transition of the office, then -- if you had a board?

Mr Ellis: You mean the Ombudsman reporting to a board?

Mr O'Toole: Let's say it's like WCAT. You're chair of that board but it's a board decision; it isn't your decision.

Mr Ellis: Yes, that's true.

Mr O'Toole: Then it brings in the whole question, and you probably can't answer this -- when it's the final point of appeal, when I've seen the little diagram on the appeals process with WCB, that's the final one.

Mr Ellis: Yes.

Mr O'Toole: That's the problem. We don't have a perfect system. Should there be any review of your decisions?

Mr Ellis: Certainly my colleagues in the administrative justice system would generally feel that there is a problem in principle with the Ombudsman reviewing an adjudicative decision. In my January 1993 submission, on the first page you will see that I attempted to describe the feelings everyone has about the problem of the Ombudsman having a role at all. I had held that view, and I think this argument against involvement is quite strong from an administrative law point of view, from the point of view of administering the administrative justice system. But because the courts took a different view, the Ombudsman's role is challenged, as you know, and the Ombudsman got the support of the Ontario Court of Appeal on that issue. So I for one put that behind us and moved on.

I then discovered, in working with the Ombudsman in accordance with her commitment to looking at the process, as you indicated, and not trying to substitute her judgement for the tribunal's judgement but looking at whether what we're doing is reasonable, once we entered into that relationship, then it became apparent to me from that experience that it has proven to be very useful. It is kind of an ongoing audit from an objective and outside point of view of our process and our performance. That audit, apart from the occasional problem it actually turns up which leads to changes in a decision, the fact that the audit goes on has a positive influence on the quality of the tribunal's work, in my view. Writing a decision, you cannot help having in the back of your mind the awareness that this may eventually be investigated by the Ombudsman and so on.

I think the argument in principle is uphill on the question of whether the Ombudsman should be doing it, but I have concluded that from a practical point of view and in practice, given the limitations the Ombudsman has accepted in her approach to these kinds of decisions, it has proven to be a positive and useful process and one I would be sorry to see disappear.

Mr O'Toole: It begs the question, if I may --

The Chair: No, you may not, Mr O'Toole. That rounds out our time. Thank you very much, Mr Ellis, for assisting in our process.

INJURED WORKERS' CONSULTANTS

The Chair: I will take this opportunity to advise members of the committee that we have a cancellation this morning and our next presentation will be from Orlando Buonastella. Come on up to the table, and as long as you identify yourselves, you're all welcome to participate. While you're getting ready, Mr Buonastella, I'll tell you that you have half an hour for your presentation. The floor is yours.

Mr Orlando Buonastella: Thank you very much.

Mr John McKinnon: Let me begin by introducing ourselves. I am John McKinnon. I work with Injured Workers' Consultants. Domenic Acierno is an injured worker who has had the experience of going through every conceivable phase of the workers' compensation process and he's well known for his work with other injured workers. Orlando Buonastella also works with us at Injured Workers' Consultants. Carol McGregor also works with us at Injured Workers' Consultants. Haroula Theofilaktidis is an injured worker from our community whom we've been representing in her experiences with the workers' compensation appeal system.

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I would begin, also, if I may, by asking the members of the committee to introduce themselves for the benefit of Carol McGregor, who is blind and isn't aware of who is in the room.

The Chair: We have all three parties represented here. We have Mr Jordan, Mrs Fisher, Mr Froese, Mr O'Toole of the government party; we have Mr Wood of the third party; and we have Mr Hoy and Mr Patten of the opposition party.

Mr McKinnon: Thank you.

For those of you who don't know our office, Injured Workers' Consultants is a community legal aid clinic. It was established by injured workers in 1969 to provide free legal advice and representation to injured workers who were having trouble with the Workers' Compensation Board. In addition to helping injured workers with their individual claims, we also take note of systemic problems experienced by injured workers and we raise them with the responsible authorities.

Historically, the Ombudsman has played a significant role in assisting injured workers. I regret that I didn't hear the tribunal chair's comments immediately before us in their entirety, but we would like to thank you for providing us with the opportunity to comment on the recommendations specifically in your 1993 report on the review of the Ombudsman.

Our submission today is relatively specific. It's limited to some issues that are addressed in the sections in that report dealing with the Ombudsman's jurisdiction and the Ombudsman's complaint review process. Essentially, by way of introduction, we'll be urging the committee to make an additional recommendation, first of all, confirming some of the beliefs and concerns expressed by the committee in its 1993 report, but also we'll be asking this committee to study the administrative cost to the Office of the Ombudsman of the proposed changes to the workers' compensation appeals system in Bill 99.

At this point, I'd like to turn the presentation over to Orlando Buonastella.

Mr Buonastella: Thank you. We're often told by MPPs or their constituency assistants that requests by injured workers for help with their WCB claims are one of the biggest demands on their offices. Until 10 years ago, it was also one of the biggest demands upon the Office of the Ombudsman. Complaints from injured workers came second only to complaints by those locked up in the province's jails and detention centres. For example, according to the annual report for 1983-84, 754 complaints, or nearly 14%, were about the WCB. It's an unfortunate truth that the level of dissatisfaction among injured workers was comparable to the level among the people we put in jail.

Until 1985, injured workers had no right of appeal to an independent tribunal. The only appeal was to the appeal board, which was simply an extension of the WCB. It generally applied WCB policies, not necessarily the act, and confirmed many of the decisions that had already been made. The Ombudsman's experience demonstrated to the government that something needed to be done. They commissioned Paul Weiler to study the workers' compensation system and make recommendations for improvement. Professor Weiler noted the opportunity to go to the Ombudsman was not a substitute for justice within the system. He wrote:

"Nor is the Ombudsman an acceptable alternative...the Ombudsman is a generalist. He spreads his net over the entire system of public administration in Ontario. He could not possibly master the intricate compromises which are embedded in the structure of workers' compensation. I do not mean to downgrade the role of the Ombudsman.... If too many cases accumulate around a particular program or tribunal, the Ombudsman can signal the government that something must be done about that trouble spot. But the Office of the Ombudsman should not be used as the solution to such a problem.... I have in mind...a new Workers' Compensation Appeals Tribunal. This body would be a specialist in workers' compensation...it would be independent of the Workers' Compensation Board."

The difference between the function of an independent appeals tribunal and the old appeal board was explained by the chair of the appeals tribunal, whom you've just heard from:

"The fact that it was members of the governing body who heard and determined appeals is of particular interest with respect to cases involving issues concerning the meaning of the act itself. In most cases there would exist an established WCB view of the meaning of the act. This view would be found in the board's written directives and guidelines.... The presence in the former appeals system of that unconscious, intrinsic presumption of validity with respect to the board's view of the act...had the practical consequence of allowing the WCB to pursue its own commonsense view of what the act meant, free, to a large extent, from effective challenge.... It carried with it, however, the seeds and the appearance of arbitrariness, the eventual rejection of which, at a political level, was largely responsible for the adoption of the external appeals system.... The creation of the appeals tribunal represented, in effect, a deliberate choice in favour of more law and less discretion."

The independent appeals tribunal took the burden off the Ombudsman. Legislative changes in 1985, with Bill 101, eliminated the old appeal tribunal and established a right to appeal to the Workers' Compensation Appeals Tribunal, WCAT. The tribunal is independent of the WCB. It has the jurisdiction to make any decision that the Workers' Compensation Board could make. It has tripartite decision-making panels and a full hearing process. This was highly successful in improving the quality of justice administered under the Workers' Compensation Act. As noted on page 44 of your 1993 report, in the few cases in which the Ombudsman did intervene after the creation of the appeals tribunal, this intervention was welcomed by the tribunal as an opportunity to review and change decisions with which injured workers were unsatisfied.

By the 1986-87 annual report, the number of complaints about the WCB had been cut by more than half to 352 complaints, or only about 6% of the complaints within the jurisdiction of the Ombudsman. The next year it fell to 92 complaints, or 2%, so injured workers were no longer perceiving themselves as people in jail, if you will. The huge drop in the level of complaints by injured workers represented a huge improvement in the quality of justice administered under the Workers' Compensation Act as a result of legislative changes.

The quality of justice at agencies within and beyond the Ombudsman's jurisdiction: The standing committee on the Ombudsman has always had to deal with the issue of whether or not to expand the jurisdiction of the Ombudsman. The 1993 report, at page 51, refers to the conclusion of the predecessor committee which decided that the Ombudsman's jurisdiction should not be expanded. The committee had noted that expansion of jurisdiction would require significant and costly numbers of additional staff and was also concerned that the increased number of complaints would impair the Ombudsman's ability to respond quickly enough to complaints. The 1993 report of the committee reaches the same conclusion. The report says:

"Before such an expansion should be further considered, we believe greater efforts must be made at the local level and through the organizations concerned to improve the manner in which complaints are addressed. We would strongly encourage these organizations to examine their existing methods for dealing with concerns from the public, and to consider carefully ways in which they could themselves provide Ombudsman-type services."

We encourage the committee to turn those stated beliefs into a formal recommendation, but we believe that you should take this one step further. Your recommendation should speak to the quality of justice at agencies within the Ombudsman's jurisdiction as well as those outside of it. In our view, the Ombudsman has a higher duty to be watchful of the quality of justice of agencies in its own backyard than it does with respect to those outside its jurisdiction.

Bill 99: A hurricane is heading towards the Ombudsman. If you can't afford to expand jurisdiction, consider what will happen if the number of complaints to the Ombudsman by injured workers were to double or triple next year. What would be the impact on the resources and staff of the Ombudsman? How would such a dramatic increase in the most complex and time-consuming types of problems affect the speed with which the Ombudsman can deal with any complaint? When such a dramatic change is about to take place, it would be unwise for this committee to ignore it. A change of that magnitude not only reflects a significant impairment in the quality of justice administered by an agency within the Ombudsman's jurisdiction; it threatens the viability of the office to continue to deal with complaints in the manner and relative speed that it has for the past decade. I add "relative speed" for obvious reasons.

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We expect the Ombudsman to see an increase of 100% to 200% in the number of complaints by injured workers within a year of passage of Bill 99. The reason for this is the proposed changes to the appeals system in Bill 99. They will leave injured workers in a worse predicament than they were before the 1985 legislative changes.

The bill, which has had first reading, proposes a complete rewriting of the Workers' Compensation Act. One of the areas hardest hit in the bill is the right of appeal. It removes the independence of the WCAT and introduces strict time limits for filing appeals, after which injured workers lose the right to appeal.

Mr McKinnon: The point we want you to consider is that a subservient appeals tribunal puts the load back on the Ombudsman.

The Workers' Compensation Appeals Tribunal is going to be an extension of the Workers' Compensation Board. Under subsection 119(5) of the proposed new act, the Workers' Compensation Board will certify the policies that it believes apply to making the decision in an appeal from its decision. Then, pursuant to section 118, "Where a board policy applies with respect to an appeal, the appeals tribunal shall apply the policy when making its decision." That's the end of the story for many injured workers.

In many of the appeals that our office takes to the Workers' Compensation Appeals Tribunal, the issue is whether or not a board policy applies to limit compensation for an injured worker. A major issue for the appeals tribunal has always been deciding whether or not a particular board policy misinterprets the legislation, conflicts with the legislation or unduly restricts the legislation to the facts of a particular case. More often than not, the issue is not some exotic new disability. I can't believe personally the amount of words and the amount of print that has been expended on issues like compensation for chronic occupational stress. Approximately 13 to 14 injured workers in Ontario in the history of workers' compensation have received compensation for chronic occupational stress. It's a complete non-issue. More often than not, we're talking about real life for working people.

Let me give you just an example of this sort of issue. WCB policy on lost-time compensation for hernias says that a hernia is compensable if it results from a single strain or a single lift, so if you got a hernia as a result of a series of heavy lifts, you were denied. The appeals tribunal looked at the legislation, which says if it results from work it's compensable. So the tribunal decided that it is not reasonable to deny a claim which fails to meet the board's policy but does meet the statutory requirements of the act. That's what we're talking about in many of these cases when there's a dispute over the application of a board policy.

All of this is going to be thrown out the window when the board is put in charge of the appeals tribunal through its policymaking process. In effect, the Workers' Compensation Appeals Tribunal is going to be deprived of the jurisdiction to interpret and apply the law. The tribunal is simply bound to apply the policies of the Workers' Compensation Board, even when those policies may appear to the tribunal to be inconsistent with the legislation itself. The net effect of this will be to transfer much of the load which has been carried by the Workers' Compensation Appeals Tribunal for the past 10 years directly on to the Office of the Ombudsman.

I'm going to talk about the extent of that transfer, but I also wanted to mention the provisions in Bill 99 for time limits for appeals, because that also is going to expand the role for the Ombudsman. Currently, as you know, there are no time limits for appealing a decision by the Workers' Compensation Board. By way of example, a recent decision by the tribunal in a case handled by our office allowed entitlement to compensation for silicosis resulting from working in underground mining. The injured worker had been removed from the mines in 1954 and his mining certificate was revoked because he had excessive shadowing on his lungs. However, the WCB had turned down the claim. The injured worker had tried to fight it on his own for a few years and he gave up. He couldn't do heavy work. He lived in poverty with his family. They suffered, they moved around the province; he never had a regular job. But many years later a doctor encouraged him to appeal that decision, and he did and the claim was allowed.

Delays of that long might be unusual, but delays of two to three years in pursuing an appeal are quite common for injured workers. There are a number of good reasons for this: difficulty with language or literacy, problems getting advice and representation, complications due to being involved in other disputes and other issues with the Workers' Compensation Board, unemployment, poverty and family problems. Often these things result in injured workers putting appeals on the back burner. It was a feature of the historic compromise that established our workers' compensation system that whatever compensation injured workers are entitled to, they are entitled to it, no matter when they pursue an appeal.

If Bill 99 is passed, injured workers will have 30 days to file an appeal in writing regarding return-to-work plans. For all other issues, they'll have six months. Many injured workers are then going to be pressured into appealing everything in sight so they don't get cut off by the time limits. This is going to increase the volume of appeals and, consequently, the number of denials which end up in the Ombudsman's office. As well, we believe many injured workers are just going to miss these deadlines. They too will have no option but to go to the Ombudsman.

There are early warning signs we have seen in our caseload that are evidence of the fact that this has already begun to happen. In our caseload we've seen many recent examples of restrictive policies being developed and implemented by the Workers' Compensation Board in an effort to stay one step ahead of the government's current workers' compensation reform process. For example, in January 1996, Minister Jackson released his first report on proposed changes to the workers' compensation system. In that report, he indicated that the government was considering legislative changes that would allow appeals to be decided without an oral hearing. In effect, the WCB has already responded by saying, "Yes, Premier, we hear you." The board has been involved in a more massive policy revision in the past year and a half than we saw in the five years following a complete change of the legislation in 1989.

By way of example, with the oral appeal hearings, although the Minister of Labour had dropped the proposal to eliminate oral appeal hearings by the time she drafted Bill 99, unfortunately it's already too late for injured workers. The WCB has already drastically reduced oral hearings through policy development in anticipation of legislation that they thought was going to do the same. Injured workers who are now stuck in the appeals process are getting a letter stating that if they would like an oral hearing, they can remain stuck in that backlog, but if they'd like a decision within 90 days, they can have a paper review.

This is a modern-day example of Hobson's choice. There's simply no choice for injured workers who have been living in poverty and waiting for a long time to have their appeal heard. Of course they're going to take the paper review. It's ironic, because less than two years ago the WCB decided to eliminate the paper review level of hearings so that injured workers could go directly to an oral hearing. Now we've done a complete flip-flop and we're going the other way.

Another example of restrictive new policies is one that you may be seeing in your constituency offices dealing with the clothing allowance. As you know, injured workers who are required as a result of their permanent disability to wear a rigid brace or an artificial limb are entitled to a specific amount each year as compensation for the damage caused to their clothing. The new WCB policy reduces the amount that's payable to those injured workers. In addition to that, injured workers are being told by WCB staff that they should not be wearing their brace as much as they do. Now, when an injured worker receives a letter from the WCB saying the WCB is going to pay for a brace, the same letter also tells injured worker to try not to wear it.

We asked at the Office of the Ombudsman, is there any evidence of recent problems showing up in the workload of the Ombudsman's office? We were advised that the most recent statistics show that complaints in workers' compensation matters have shot up to 901 complaints, or nearly 11% of all complaints within the jurisdiction of the Ombudsman. We believe this is only a shadow of what the future has in store for the Ombudsman if the workers' compensation system loses its independent appeals tribunal and introduces arbitrary time limits for appeals.

You have to ask yourself in this committee, what price will the Ombudsman pay as a result of these changes to the appeal system? Reduced appeal rights will significantly reduce the quality of justice under the workers' compensation system. It will also significantly and directly impact on the viability of the Office of the Ombudsman to deal with the volume of complaints within its jurisdiction. In our submission, it would be unwise for this committee to ignore the fact that such a significant change is about to take place.

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We expect that the proportion of complaints to the Ombudsman by injured workers will soon far exceed the 14% figure from 1984 if injured workers not only lose the right of appeal to an independent tribunal but also lose the right of appeal altogether through the imposition of time limits on their appeals. Such a sudden and significant increase in the number of complaints to the Ombudsman is going to have a far greater impact on the viability of the Ombudsman's office than any expansion of jurisdiction that's been considered.

We hope the committee would agree that the right to an independent tribunal is a significant factor in the quality of justice administered by any agency within its control and we ask the committee to put that concern on the record. We also ask the committee to request the Ministry of Labour and the Ombudsman, who know far better than we, to provide a cost estimate of the impact of the proposed workers' compensation changes on the Office of the Ombudsman.

The 1993 report of the committee remarks on the historical efforts of this committee to function in a nonpartisan manner. Just as the committee has stated that agencies beyond its jurisdiction should strive to improve their quality of justice, the committee should also comment on changes to agencies within its jurisdiction.

You'll see the chart on the last page of our submission charting the volume of workers' compensation complaints since 1983. You can see that the number of complaints dwindles down to virtually nothing by 1987-88, and then, using the figures that we were given by the Ombudsman for 1995-96, jumps up to more than 700 complaints. Our projection for 1997-98 and 1998-99 is based on the fact that when the independent tribunal was created, the volume of complaints to the Ombudsman was reduced to less than one third. So we expect it can be conservatively estimated that the elimination of the tribunal's independence and the introduction of time limits for appeals is going to more than triple the present volume of complaints at the Office of the Ombudsman.

We ask the committee to think about how the proposed reduction in appeal rights will affect the quality of justice for injured workers and the ability of the Ombudsman's office to continue to deal with the other matters within its jurisdiction. We hope you will agree there are grounds for concern here, and we ask that you not ignore these concerns. We thank you very much for the opportunity to raise them with the committee.

Mr Len Wood: Thank you very much for coming forward and showing your concern and, it seems, your anxiety and worry about what you think is going to happen with the Ombudsman's office when Bill 99 is rammed through the Legislature if they don't take into consideration not only the amount of extra burden and work they are going to put on to the MPPs' offices and their staff but the work they're going to put on to the Ombudsman's office, for what reason other than just an attack on the injured workers in this province?

I note you are saying that injured workers, as a percentage, at one point in time before 1984 were considered similar to prisoners. That's not the way I look at injured workers from a personal point of view. They were productive workers and they injured themselves and they should be paid compensation until such time as they're fully rehabilitated and put back into the workforce.

If your concerns are what you're saying here, and I have no reason to doubt it, saying that Bill 99 is a disaster for the workers in this province, why would any government want to bring in a bill that is going to make the workers worse off now than they were from 1985 to 1997? Why would they want to attack the workers in this nature?

Mr Buonastella: Bill 99 hasn't been passed yet. What we hope to do is raise a specific concern with respect to appeals. Of course, Bill 99 deals with benefit levels, entitlements and a whole range of issues that we're quite concerned about.

From the point of view of your committee, the concern you must naturally have is that injured workers feel they don't deal with a kangaroo court. Injured workers work hard before their injury. They are honest citizens. They must have a sense that an injury will not lead to poverty and deprivation and, most of all, that somebody will hear them, somebody with compassion will treat them like human beings. This is a very important perception that the injured worker community must have.

The lack of this perception when injured workers were coming and were feeling like prisoners prior to the WCAT is what brought about an independent tribunal, because Professor Weiler and the Conservative government and the opposition of the day understood that this perception is important for the functioning of this province. So they said: "What we're going to do is make sure that when you, injured worker, go in front of a tribunal to hear your case, you will not think it's the same people who turned you down in the first place. There's going to be a separation. You will feel confident."

That has brought about a certain level of acceptance of these decisions. You go home after your decision, and whether it's in favour or against, at least you have a feeling that you were given a fair hearing and that you have some respect for that decision. Therefore, less recourse to the Ombudsman. I think if this is turned back, we're going back to the very same time, the very same bad situation that gave rise to the changes in 1985, and I think we should stay away from it.

Mr O'Toole: Thank you very much for your presentation. You're right: There will be public hearings on Bill 99. I suspect some of these points will be discussed then.

I had asked Mr Ellis from the WCAT for his views on the right to appeal, and I guess the Ontario courts made that decision some years ago, allowing people to appeal from WCAT to the Ombudsman. My question to you is, if the Workers' Compensation Appeals Tribunal remains in place, autonomous and independent, do you think that once those decisions are made, the person would have another level of appeal, or should have? Let's say it's proven to be independent and thoroughly qualified to rule and make independent decisions. Do you still think there should be another level of appeal beyond that, like the Ombudsman's office?

Mr McKinnon: The number of occasions to even consider that question has been almost nil in the past 10 years in our office. Maybe 10 or a dozen times has there been any consideration of whether there should be some further appeal after the decision of the appeals tribunal, whether it's by way of judicial review or going to the Ombudsman. So it's not a point that would make much of a strain on the Ombudsman.

I can tell you just by way of an example, in a case that we were involved in -- it involved the interpretation of the injured worker's medical condition -- the case went to the appeals tribunal and entitlement was denied. It had to do with the weighing of the evidence and the various medical reports of the injured worker on file. We agreed and felt that the decision didn't fairly interpret the evidence. We asked the appeals tribunal to reconsider and they said no. We went through the reconsideration process and that was the end.

At that point we went to the Office of the Ombudsman and they spent a considerable amount of time looking into it, analysing it and getting some, I think, medical interpretation of the medical reports, and they decided there was something to what we were saying. The Ombudsman referred the matter to the appeals tribunal and the appeals tribunal accepted the recommendation of the Ombudsman, reopened the case, reheard the case, looked at the evidence again, more carefully, and allowed the claim. So it has worked out to the advantage of injured workers to have an opportunity to go there, but it's certainly not something that exists in our mind as if it were a further level of appeal.

There is an extremely high sense of finality to the decisions by the appeals tribunal. Whether it's a request coming from us to reconsider it or from the Ombudsman to look at it again, I understand it's not all that common that the decisions are reopened.

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Mr O'Toole: It's just that the appeals process, in my view, always has an end point. The process itself I agree should be totally autonomous and not subjected to any kind of influences. But with respect to time limits in that bill, isn't that to bring the case to point so the evidence and relevance of it is current, and don't you think that's the way it should be ideally?

Mr McKinnon: In our experience, it's simply not feasible for injured workers to file an appeal in writing within, say, 30 days of an adverse decision. So it simply can't be done.

Mr Patten: I really appreciate this presentation. By the way, this will be very useful when we have the debate on Bill 99 because I think you've pointed out a couple of things with some examples that will be useful. I take it your thesis, and why you're here, is that it will have an impact on the Ombudsman's position in that the Ombudsman can respond to legislation that may not be working because it was flawed in the first instance.

I think what you're doing is alerting this committee to say: "Listen, this is a backwards step. This is a flawed process." You cannot put a time limit on medical problems related to work when they take years to show up as serious symptoms, as one example.

In terms of your question to ask for -- and maybe they've been done. I don't know if they've been done, but the Ministry of Labour and the Ombudsman's office should look at the economic impact. I would add that the auditor perhaps should do that as well. But I'd be happy to put that question before the committee on your behalf. I appreciate your coming here today.

The Chair: Thank you very much for assisting with our process this morning. Mr Acierno, may I say it's a pleasure to see you again, sir.

Mr Domenic Acierno: Excuse me. Maybe you don't like the people on the Workers' Compensation Board. Justice --

The Chair: You want justice.

Mr Acierno: Justice. [Remarks in Italian]

The Chair: Thank you, Mr Acierno.

Mr Acierno: Workers' Compensation Board no good.

The Chair: Mr Acierno, I have to ask that if you want to pursue the conversation, you find another forum. Our time for your presentation --

Mr Acierno: [Remarks in Italian]

The Chair: Thank you, Mr Acierno.

DAVID WARNER

The Chair: Our next presenter is Mr David Warner. Welcome home, Mr Speaker.

Mr David Warner: Thank you. You've very kind.

The Chair: I feel somewhat akin to a flight attendant going through the takeoff safety protocols in an airplane full of seasoned travellers when I say, Mr Warner, you have half an hour before this committee. You may use that time as you wish. Any time not used for your presentation will be available for the members to ask questions, beginning with the government party in this case.

Mr Warner: I don't know how enjoyable a flight this will be, but I appreciate the introduction from the captain.

Honourable Chair and honourable members of the committee, first of all, it's a great privilege to have the opportunity to appear before you. I have prepared a presentation which I hope has been duplicated and sent around. May I preface the remarks by saying that I had the honour and privilege in the role of Speaker to work with the officers of the assembly. At the time, there were seven, including the Ombudsman. It was in that close working relationship that I had an opportunity to gain an appreciation of the importance of the various offices, including that of the Ombudsman. It's in that context that I am before you this morning.

In 1975, Ontario accepted a concept which was flourishing in many jurisdictions around the world, namely, an independent arbiter for citizen complaints against their government. Ordinary citizens can, without the expense of a court process, lodge complaints and have those complaints investigated by someone who is independent of government, whose impartiality, honesty and integrity are above question.

Ontario has been very well served by each of its ombudspersons over the past 21 years. The quality and calibre of the individual has sustained public confidence in the complaint procedure. It seems to me that what is fundamental to the success of the Office of the Ombudsman is public trust that the office will function independently.

Being fair, impartial and objective brings its own set of problems, some of which I can relate to. Every time the Ombudsman makes a finding, someone is likely going to be unhappy. But such is the nature of making rulings, and someone has to have the last word. From my days as a member of the opposition, I know that I felt that I was right in the decisions I made, the opinions I formed. I have no doubt that had I been a member of the government, I would have felt a certain sense of infallibility. The government is always right, isn't it?

The truth is that loyal, hardworking, honest public servants will sometimes make mistakes. The truth is that honest, hardworking, sincere ministers of the crown will sometimes make an error in judgement. Admitting imperfection is probably a healthy way to help build the necessary avenue of redress for the wronged citizen.

I think that the experience here, as in other provinces, states and countries, has been an extremely successful one. Nothing is perfect and there will always be some who, for a variety of reasons, will not be fully satisfied with the decisions made by Ombudspeople around the world, but all the more reason to stay a steady course.

Second-guessing the decisions of an independent officer of the assembly, even by well-intentioned and well-informed MPPs, is not in the best interests of maintaining public confidence in an extremely important institution. Most of the recommendations are laudable and will likely enhance the general operating of the Office of the Ombudsman. There are a couple of recommendations which I find quite alarming and a source of great cause for concern.

Recommendation 16: "That the standing orders of the Legislative Assembly be amended to provide that the committee shall monitor and review the Ombudsman's exercise of his or her functions and report any changes to the Ombudsman Act that the committee considers desirable." This recommendation undermines the authority of the Ombudsman and destroys the independence of the office, an independence which is crucial to the functioning of the office. I urge the committee to reject this recommendation.

Recommendation 18: "That the proposed terms of reference of the standing committee on the Ombudsman, as set out in recommendation 44 of this report, be included in the Ombudsman Act." This recommendation is obviously connected to recommendation 44 and, as such, impinges on the independence of the Office of the Ombudsman. I urge the committee to reject this recommendation.

Recommendation 44C: "To monitor and review the Ombudsman's exercise of his or her functions, and in particular: to inquire into and report on any matter which the committee believes should be brought to the attention of the assembly; and to recommend any change the committee considers desirable to the Ombudsman Act."

This is the most serious of intrusions into the daily operation of the Office of the Ombudsman. If this recommendation is adopted, there will be, at the very least, an appearance of political interference with an office which is supposed to be impartial. At worst, the credibility of the office would be destroyed. Why complain about mistakes or mistreatment by government officials if your case can be second-guessed by a committee of MPPs, a committee which is dominated by government members?

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I cannot state strongly enough how dangerous this recommendation is. The hallmarks of the Office of the Ombudsman, from its inception in 1975, have been integrity and honesty, qualities which have never been tainted by political interference or influence. The office has served the people of Ontario with distinction and has earned the confidence of the public. This recommendation runs the serious risk of destroying that confidence and ultimately the practical functioning of the office.

Accountability: No office could be more accountable than that of the Ombudsman. Subject to scrutiny by the public auditor, the Board of Internal Economy, the laws of freedom of information and privacy, and ultimately the Legislature itself, the office has always had to be above reproach, and it has.

Committee system: I add this as something, I realize, that is not absolutely germane to the report you're doing, but in a wider context it is something that perhaps this committee would consider.

During my term as Speaker, I felt very strongly that significant reform was needed to our committee system. It seemed to me that generally speaking committees were not given the appropriate independent status or power needed to be effective. Significant changes in the operation of committees took place in Ottawa and Westminster a number of years ago, and in both situations the functioning of committees was strengthened.

There are many dimensions to reform of the committee system. I briefly mention one, which I firmly believe is appropriate for the committee on the Ombudsman. In keeping with the independent and impartial nature of the office, I recommend that the committee on the Ombudsman comprise two members from each of the three political parties in the House and that those six members elect a seventh from the House to be their Chair. The general theme of the committee should be to develop a consensus on all issues, but where a vote is necessary, there must be at least one person from each party who votes in favour of the item under discussion. In other words, every conceivable effort must be made to make the committee as fair and impartial as the office with which it wishes to work so closely.

Summary: There are some very useful, fine-tuning types of recommendations in the report. However, there are a few recommendations which, if implemented, have the potential of seriously undermining an office which has served the people of Ontario exceedingly well for more than two decades. Please do not allow good intentions to be the catalyst for the demise of the Office of Ombudsman.

I tried to make my comments brief and succinct. Naturally, I would welcome any questions or comments.

Mr O'Toole: Thank you, Mr Speaker Warner, if that's the appropriate title. I don't have the experience, certainly, that you bring to this building. You started off your presentation by saying something like, "Someone has to have the last word." We use that term "Ombudsman." We heard earlier "WCAT," some objective body. I know that I had occasions to refer issues to the Ombudsperson, and those people were still unhappy.

That being said, you made another comment. You said we shouldn't be second-guessing the office. It reflects public confidence and the more we drag it through all of the earthly qualities that the MPPs have, wrangling, the more we demean the office itself. I suspect that's what you're implying.

My question to you then is, have you ever thought of another format for the role of the Ombudsman? WCAT is like a board. Do you think we should rest all our trust in one person, whether they're politically or otherwise corrupted? I would hate to think that would ever happen. You tried to flush that down to this committee being six members with an elected Chair, each party having to vote one for and one against, and ultimately the decision would be made by the Chair, which means the Chair replaces the Ombudsman, which means, why have we got an Ombudsman? Who do we appeal the Ombudsman's decisions to? Really, it's the question. How about a multiparty Ombudsman? Has that ever been tried?

Mr Warner: I appreciate your question. Part of it rests in a saying some of you may be familiar with -- they certainly are in Mr Jordan's part of the world -- if it ain't broke, don't try and fix it. The office has served this province very well, as indeed it has served various jurisdictions around the world very well.

Under certain circumstances the complainant still has the opportunity to go to court if he or she wishes to do so. I can't overstate it that whether you are the Speaker of the House, a referee or the Ombudsman, the moment you make a decision someone will be unhappy. It's not reasonable to expect that the Ombudsman is going to find in favour of every single complainant who comes before her or him.

Some people are going to make complaints, they will be investigated and at the end of the day they will still be unhappy that the Ombudsman has found not in their favour. That's the nature of life. As unhappy as it may be, that's the way it is. To then try and find another avenue around that only begs the question and ultimately, whatever avenue you find, there's a good likelihood that individual is still going to be unhappy. If you allow appeals here people will come here, and guess what? I bet some of those people will go away unhappy. Then where do they go? Do they go to court and do they take you with them?

I really come back to the central part, that basically the office works well, enjoys the confidence of the vast majority of the people of this province and has ever since 1975. I don't think it's a wise idea to be trying to change the basic structure. If you want to look at some of the intricacies of it, some of the nuances, that's fine, and your report does that. I think the Ombudsman herself has commented that there are lot of parts in that report that would be gratefully received and be most helpful in the running of the office, but the basic structure I maintain should be left intact.

Mr Hoy: Good morning, sir. I appreciate your comments. In regard to recommendations 16, 18 and 44(c), most clearly you've asked that these just be rejected. It is also the view of the Ombudsman; in these three instances the present Ombudsperson concurs with you. The independence of the office is one that maybe the government is having some problems with. I believe they are looking for some accountability, but grappling along with that the independence this office requires to do its job well. It's also interesting that the report of 1993 has sat dormant until now and it will be nearly four years since its first printing, delivered to you in the House, I see here.

Mr Tom Froese (St Catharines-Brock): On a point of order, Mr Chairman: Reference was made that the government has a problem with the Ombudsman's office. This report was done by this committee. We all agreed on the recommendations here. Obviously, I'm going to take exception to that reference because this was a report that was done in 1993 by an all-party, non-partisan committee. It came up with the recommendations. It was discussed again with this committee and we made changes to the recommendations and we've come forward with recommendations. This is an all-party, non-partisan committee report, and making references to the government having a problem with the Ombudsman office, I don't understand where that comment's coming from.

The Chair: That's not a point of order. That may be a point for debate down the road but, Mr Hoy, you've just had a shot across your bow. Continue.

Mr Hoy: Yes, I heard it.

Grappling with the independence of the Ombudsman and some form of accountability, how do you grapple with that?

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Mr Warner: A number of things: First of all, in a democratic society, you always make an effort to have certain institutions which will be above reproach and be above political whims, above political influence. In our society that includes the courts, and successive governments for 200 years have always respected the independence of the courts. It's essential in a democratic society. The Ombudsman is placed in a similar category.

As far as a principle is concerned, I would liken it to the principle that I hold very strongly, that Parliament is more important than any government. Governments come and go; Parliament stays. Parliament reflects the will of all the people. Governments are elected by the people from time to time to make decisions in the direction in which the public wishes to go. Parliament, on the other hand, makes decisions that last far beyond the life of a government. The Ombudsman's office should have, and does have, a similar kind of principle. Its functioning in the society is one that people can genuinely feel safe in approaching, that the decisions that will be made by the Ombudsman's office will be made without favour, will be made without political consideration.

I don't need to tell any of you that in political life appearance is often as important as substance, that the appearance of interference is sufficient to muddy the water, is sufficient to weaken the confidence the general public would have in an office. It's as if at the same time you decided that the justice committee here should have some ability to take a look at decisions that have been made by the Court of Appeal. It takes little imagination to figure out what would happen in terms of a response from the general public.

Governments quite naturally, and I understand this -- I was never part of a government but it seems to me it's very natural to expect that a government becomes a bit nervous about someone, an individual who has independence and will make independent decisions, that somehow those decisions will reflect badly on the government of the day.

I think those concerns are overblown, I think they're overstated because I think it's very reasonable to expect that people are human and they make mistakes. No matter how talented or how dedicated or how honest either public servants or ministers of the crown are, mistakes will be made, and every government, as long as we've had a democratic Parliament, has made mistakes. People understand that. That's why you have a body to turn to. That's why you have a complaint procedure, always with some appeal, as there is in the case of the Office of the Ombudsman.

Finally, your question about accountability: I can't imagine any public body that has more accountability built into the system than the Office of the Ombudsman. The public auditor does an audit and can do the value-for-money audit as well as the forensic audit. They have that ability, that privilege. The office is subject to all the laws of privacy and freedom of information and has to respond to a request from the privacy commissioner.

Ultimately, of course, the Office of the Ombudsman is created by the Legislature and is answerable to the Legislature. So in terms of accountability, all the checks and balances are already there and there's no need to reinvent anything. If ministers of the crown are a bit nervous about having an independent body, I think that's a common nervousness that is shared by successive governments. I don't think it will ever go away, but I don't think it's a bad thing either. Instead, one should feel comforted with the fact that we have an Office of the Ombudsman that enjoys such a high level of appreciation and confidence as is shown in this province.

Mr Patten: It's good to have you come before the committee with your experience and your thoughtfulness. I appreciate that. By the way, I agree with your contention that in providing the best kind of consideration for whichever government, the tendency is you get defensive and you begin to look for ways of closing down criticism. It's a natural reaction. It happens and that's why I think your point is well taken, that it's important to remember you're only here for a while. No matter how long you may be there, it's a while and it's the institution of the Legislature and the Parliament that's the most important thing.

I want to ask you if there are any other precedents. You've made some comparisons obliquely to other jurisdictions. Are there any that in your opinion have the kind of apparent intrusiveness of a parliamentary committee in terms of an Ombudsman's office?

Mr Warner: I'm not aware of any, but then again I would never suggest that I'm an authority on the subject. It may be worthwhile for the committee to take a look at that question and perhaps with a very able clerk and the legislative library a bit of research could be done to determine that. Personally, I'm not aware of any but there are a lot of jurisdictions in the world when you take into account that there are states and provinces, as well as countries, which have an Ombudsman, many of whom have had the Ombudsman's office for a much longer time than we have enjoyed in Ontario.

As you may know, on a regular basis, the ombudsmen from around the world meet and share information and it's through that process that they come forward with suggestions on their own as to how to improve the delivery, how to improve the accountability and so on.

On my last comment about the accountability, if you turn it around, I can't imagine that any public figure would want as high-profile a job as the Ombudsman has without some built-in accountability. That's security for the individual. You don't want to leave yourself open to public attack or to libel or lawsuits or to anything else. You want accountability if you are in a position of authority, such as the Ombudsman is, or a member of the court or anybody else.

Mr Len Wood: Thank you very much, David, for coming forward. Good to see you again. On the second page you're saying that second-guessing the decisions of an independent officer of the assembly, even well-intentioned or well-informed MPPs, is not in the best interest of maintaining the public interest, the public confidence. This is a report that, as you're aware, has been sitting here since 1993. A new government was formed in 1995. We got the committee back together and made some changes and recommendations in 1996, and we're here now in 1997.

If there were to be changes made to the responsibilities of the Ombudsman, how should that approach be taken? I know you're saying that the committee probably should be changed because the government is always right and the opposition is always wrong. If you're the third party, you're considered to be third-time wrong. But how would you make changes? I know it's very difficult if you've got an Ombudsperson who's been in there for four or five years looking at the committee and saying: "What are they trying to do? Are they trying to muzzle me or what I can do?" How would you make changes? What would be the best time to do it?

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Mr Warner: They are fair questions, Mr Wood, which I appreciate. There are a couple of things. Number one, my comments to the committee stem from a very deep and abiding concern that regardless of who wins the election, what the public often sees is their elected officials fighting among themselves instead of doing their utmost to collectively find answers to serious problems.

It was my experience as Speaker to see committees that I often didn't think were as effective as they could have been and should have been because of partisan divides that in a lot of cases were overblown. I always feel that we should be concentrating on the things we have in common more than the things which divide us. I think it's especially true of the Ombudsman's committee because of the very nature of the Office of the Ombudsman.

Second, to answer your question about changes, as I mentioned, the recommendations in the report, with the exception of the ones I have highlighted, are for the most part very positive and helpful.

In terms of the future, it would be extremely useful to sit down in private meeting with the Ombudsman to talk about the functioning of the office and to share suggestions and ideas as to what the future should be. I have no doubt that as she approaches the end of her term she will put together some ideas on the future of the office -- I think other ombudsmen have done that -- to see what the direction should be from there. Every office is looking towards the future as to how they can best meet the needs of the people in the province. That's the standard way to function.

For starters, if this committee could meet with the Ombudsman on a fairly regular basis, I think it would be helpful. I know that during my term one of the things I was very interested in doing was making sure that all the members of the assembly got to meet all of the officers. We had a couple of information sessions here at the House, where the officers came and presented, explained to the members what their office was all about and invited suggestions and opened up a dialogue. I always felt that was really useful. I think more of that would be most helpful in perhaps closing the gap between the members and the office.

Mr Len Wood: We had a presentation, and you weren't here at the beginning. On appointment of a new Ombudsman, it was suggested that we should be looking at somebody who's 65 years old, retired and appoint them for a short period of time and give them a two-year severance after that, whether it be three years, four years or five years; that we shouldn't be picking somebody in the middle of their career. I asked the question, "What do you consider a retirement age?" In the paper mill, it's 55 or 58. He suggested age 65. I'm just wondering if you had any ideas on that.

Mr Warner: If you ask me today what I think, I think retirement age should be the age I'm at now. Although some people decided I should retire from one occupation.

It's a difficult question, but I approach it from this point of view: If you believe the office is important, if you believe the office should always be independent and above reproach, then don't you want the very best person possible to fill that position? You have to decide what is an appropriate length of term. In many instances, parliaments see that it is a good idea to have a term that is slightly longer than the normal life of a government to try to take away any suggestion that there's some kind of partisan selection afoot here. That's why sometimes the terms are either five years or 10, with an idea to put it beyond the life of one Parliament.

I personally prefer that kind of approach, but I underscore that I think the most important thing is to get the right person for the job. Maybe that person is 65; maybe that person is 35. The largest, most powerful university in the country has as its president the youngest person ever appointed as president of a university in this country. I don't think anyone -- well, probably students who are having to pay more tuition would argue, but no one else would believe that Mr Prichard was doing anything other than a superb job. I think he was about age 40 when he was appointed.

Mr Len Wood: Age shouldn't be a factor.

Mr Warner: No.

The Chair: Mr Warner, thank you very much for assisting in our process this morning.

Mr Warner: Thank you, and I wish the committee well in its deliberations. I hope I have an opportunity to meet you on other occasions, perhaps social if not more formal, as this.

In my parting comment, I would truly and sincerely invite the members to take a very close look at committee structure and perhaps chat with their colleagues in all parties and see if we can end up with a committee structure which would better serve the needs of the assembly and of the people of this beautiful province.

The Chair: Thank you very much. This committee will not be meeting next week. We stand adjourned until Wednesday, February 26.

The committee adjourned at 1156.