REVIEW OF THE OFFICE OF THE OMBUDSMAN

CONTENTS

Wednesday 11 June 1997

Review of the Office of the Ombudsman

STANDING COMMITTEE ON THE OMBUDSMAN

Chair / Président: Mr John O'Toole (Durham East / -Est PC)

Vice-Chair / Vice-Président: Mr Trevor Pettit (Hamilton Mountain PC)

Mr DaveBoushy (Sarnia PC)

Mr BruceCrozier (Essex South / -Sud L)

Mr PatHoy (Essex-Kent L)

Mr RonJohnson (Brantford PC)

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

Mr Gary L. Leadston (Kitchener-Wilmot PC)

Mr RosarioMarchese (Fort York ND)

Mr Allan K. McLean (Simcoe East / -Est PC)

Mr BillMurdoch (Grey-Owen Sound PC)

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

Mr Jerry J. Ouellette (Oshawa PC)

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

Mr TrevorPettit (Hamilton Mountain PC)

Mr LenWood (Cochrane North / -Nord ND)

Substitutions present /Membres remplaçants présents:

Mr John R. Baird (Nepean PC)

Mr E.J. DouglasRollins (Quinte PC)

Clerk / Greffier: Mr Franco Carrozza

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

The committee met at 1008 in room 151.

REVIEW OF THE OFFICE OF THE OMBUDSMAN

The Chair (Mr John O'Toole): I call the meeting to order. Everyone has an agenda in front of them. We have an item to discuss today or to come to some resolution on, to continue the committee review of the 1993 report of the Office of the Ombudsman. Are there any comments from the committee?

Our clerk has just pointed out that the subcommittee met this morning, and the members of all three parties agreed that it would be appropriate to review the recommendations in the 1993 report one at a time. Does anybody have any objection to that process? This is the report we're dealing with.

Mr Allan K. McLean (Simcoe East): That would be four years ago, wouldn't it? Why are we dealing with the 1993 report?

The Chair: That's a tough question.

Mr Trevor Pettit (Hamilton Mountain): It's a review of the Office of the Ombudsman as opposed to the annual report.

The Chair: Yes, that's right. It's not an annual report. I'll ask the clerk how we got to where we are.

Clerk of the Committee (Mr Franco Carrozza): The committee is now in the process of reviewing the recommendations made in 1993 with a view to agreeing, if they wish, or bringing in some new recommendations. When the subcommittee met, they agreed you should look at each recommendation and agree to it or discuss how you wish to improve that recommendation.

Mr John L. Parker (York East): That's fairly put.

The Chair: Fairly put, yes. We have 44 recommendations in this report, a minute per recommendation -- no. Any other comments?

Mr Rosario Marchese (Fort York): The other matter of the correspondence, is that to be dealt with subsequent to this or now? I would prefer that we deal with it now; otherwise we won't get to it today.

The Chair: I concur with Mr Marchese. There is another item here called 2, but there was correspondence under the direction of this committee to the Ombudsman. We have subsequently had a response, and the subcommittee discussed that as well this morning. There was some debate between Mr Parker, Mr Marchese and Mr Hoy. If they would like to add comments to what direction to this committee, we are prepared to listen.

Mr Parker: I suggest that you summarize or maybe the clerk can summarize for the committee the nature of that correspondence, and then maybe a discussion will flow naturally from that.

The Chair: I could ask the clerk so that we have it perfectly right sequentially. The committee wrote to the Ombudsman with respect to taping of conversations.

Clerk of the Committee: The subcommittee received a letter from an individual expressing concerns about the Ombudsman's office taping conversations between himself and the investigator. Subsequently the subcommittee met and decided to write to the Ombudsman, requesting from her what the policy was on taping this conversation. The committee received a letter in response from the Ombudsman informing us that yes, there was a policy. The policy was that conversations would be taped once the individual was informed, and the individual must also sign a written form authorizing this taping.

Subsequent to that, the subcommittee has received further correspondence from the same individual stating that the individual had not given permission for the taping of this conversation and expressing great concern about that fact.

The subcommittee met this morning and discussed this issue and wants to bring it to your attention to see in what direction you wish to go on this specific issue.

Mr Jerry J. Ouellette (Oshawa): I'd point out that this is actually a criminal matter, that there is federal legislation that handles the illegal taping of conversations and the use of those conversations in any way, shape or form, and that quite possibly we should be investigating exactly what our obligations are as they relate to the criminal legislation.

The Chair: That's a reasonable point, and I think that point was brought up. I would ask the researcher to indicate -- in his early report on this he told us what the rules of taping and non-taping of conversations were.

Mr Philip Kaye: There is a provision in the Criminal Code which creates a general offence stating that the interception of private communications is an offence punishable by imprisonment for up to five years. There are several exceptions, however, one of which applies to, and I quote from the Criminal Code, "a person who has the consent to intercept, express or implied, of the originator of the private communication or of the person intended by the originator thereof to receive it."

I spoke to a David Littlefield, who is a crown counsel with the federal Department of Justice and the author of an article on the interception of private communications. He confirmed that as a result of this exception in the Criminal Code, a party to a telephone conversation who tapes the conversation without the knowledge of the other party does not commit an offence under the Criminal Code.

I also asked Mr Littlefield about another provision in the Criminal Code which required the approval of the courts to intercept a private communication even if one of the parties had consented to the interception, and he confirmed that this provision applied only in a law enforcement context.

Mr Ouellette: My understanding, after speaking to police officers regarding this, is that it is what takes place with the information afterwards which becomes the offence, whereby if you use the information in any way, shape or form, then it becomes an offence. The taping is okay even though the individual does not have the authority or the agreement or consent to tape. However, when they utilize that information at a later date, that is when it becomes an offence.

Mr Kaye: My understanding of the Criminal Code is that it doesn't make that kind of distinction, that to tape a conversation where one of the parties does so is not an offence and that regardless of how the individual uses that information, it still is not an offence under the Criminal Code. There's a separate issue as to whether or not civil action could be taken against the person who recorded the conversation for invasion of privacy.

There was a case in the early 1980s. It involved a decision in the Niagara region where the court found an invasion of privacy for the use of a secretly recorded conversation which was recorded by one of the parties and then that tape was played at a council meeting, and after it had been played at a council meeting it was printed in the Niagara Falls Review. The court at that point said, in reference to the claim by the plaintiff who felt he was embarrassed and that his confidence had been betrayed, to quote from the judgement in that case, "Be that as it may, it's my opinion that certainly a person must have the right to make such a claim as a result of a taping of a private conversation without his knowledge and also as against the publication of the conversation against his will or without his consent." I emphasize here that the court also referred to "and...against the publication of the conversation against his will or without his consent."

Then the judgement went on:

"Certainly, for want of a better description as to what happened, this is an invasion of privacy and...the plaintiff must be given some right of recovery for what the defendant has in this case done."

I highlight that this was a civil action for invasion of privacy and the court awarded damages of $500, but it did not deal with the issue of an offence under the Criminal Code. So it's my understanding that the use of the tape may lead to some kind of civil action, keeping in mind that this decision was of a lower court back in 1981. As for the reasoning of the judgement, there might be some debate as to the significance of not just the taping itself but also the use. But as the question referred to a distinction between taping per se and then using the tape, I think this case is of relevance, but again it only deals with a civil action.

The Chair: Very good. Are there any other comments on the specific background to the taping of conversations? I think we discussed it before. Thank you for your question.

Mr Marchese: I guess there are two issues that flow from this that we should just comment on. First, in the matter raised by the Ombudsman in her letter to you, one of the points is, "In such cases, audiotaping should only take place with the manager's consent and if prior written consent is obtained from the client or other person to be interviewed." It indicates as if consent may have been sought while that telephone conversation happened, but we gather from the correspondence we received from the person complaining that no such consent had been asked.

The problem for me is -- we regret there is a contradiction here of information -- that I'm not sure how that gets solved. We really don't want to play Ombudsman here in this committee in dealing with this particular problem, but there is a contradiction of information where the individual who was complaining is saying, "No, you didn't ask me," and they're saying, "We did ask him." That's the first point.

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The second point is that the Ombudsman says, "I'm also pleased to provide you with the attached copy of `Ombudsman Ontario Mechanism for Internal Review of Complaints from the Public.'" We are happy that they now have in place a review mechanism of these complaints. We are happy that this came about as a result of the complaint that was brought to our attention.

We indicated in our letter to the Ombudsman that there was such a problem and we asked her how this might be resolved. I guess as a result of that complaint they put in place a mechanism. We are happy they have done that because clearly there was no sense of this mechanism being there before. There was no discussion with us about such a tool or mechanism for such reviews, and we are happy that this came about.

My suggestion would be that we write to the Ombudsman indicating the matter of contradiction between the approval or lack of approval being given or received or refuted, whatever, just to let them know that there's such a problem that still is on and the other, that we are happy that there is a mechanism for internal review of complaints from the public and that in the future, where possible, these matters be discussed with the committee in advance. I think such a letter would be useful for us as a committee to write to her.

The Chair: That's a very good summary of where we've been. There was no policy, then there was a complaint and there was a policy. Any other comments?

Mr McLean: With regard to the recommendations by the subcommittee on committee business relating to the following matters, and that is to do with complaints against the Office of the Ombudsman, "that the committee no longer review complaints from the public with a view to making recommendations with respect to the Ombudsman's handling of a particular case," is that what is happening here?

The Chair: No.

Mr Pat Hoy (Essex-Kent): In answer to that, we are not interfering with the case put before the Ombudsman but rather the application of certain policy. I don't believe the committee is interfering with the investigation of a case. We are simply trying to deal with a complaint in regard to taping, not in regard to the outcome of whatever this person's complaint is with the government or whatever agency it might be.

I would further just say that I'm pleased that we have this authorization, that in the future it will be done by signature, so that people will know exactly what the Ombudsman is going to do and we have signatures of consent for taping, if it's required, and all parties agree. Apparently in the past, as we see now, there's a contradiction as to whether permission was given or not. But I think a signed authorization to audiotape will be beneficial in the future.

I don't think we're interfering in the case. We are dealing with the application of a certain policy in regard to audiotaping.

Mr McLean: But this individual was taped without the knowledge of anyone. Is that correct?

The Chair: We aren't involved in any respect other than the correspondence written. One said they didn't break any rules and the complainant suggested they did break the rules. But we're not involved with that. We're making sure that there is a policy in place and, as the researcher has explained, that it's done appropriately and according to the law and the mandate of the Ombudsman's office, and in full knowledge. Now they have to have a signed form of consent from the person participating in the investigation.

Clerk of the Committee: Mr McLean, the mandate of the committee is, and I'll read it for you, "to formulate general rules for guidance of the Ombudsman in the exercise of his or her functions." By reviewing the case strictly on policy the committee is following its mandate. You are not asked to look at the case and make a judgement on it. You are simply concentrating on the policy of taping of conversations. You are asking the questions: What was the policy? When was it set? In accordance to your rules here you are doing exactly what the Legislature is recommending to you that you do.

The Chair: Mr Marchese has made a recommendation that we have a letter sent. I'm just asking if there are any other comments on that with respect to concluding that inquiry.

Mr Parker: I might add just these comments: First of all, I endorse Mr Marchese's suggestion. This is why: Just bear with me as I review the matter. I'm frankly not so concerned about the taping per se. I'm satisfied, as our researcher has pointed out to us, that all laws were complied with and there's no difficulty on that score; that whatever was done was legal, was proper and there was no impropriety in what was done.

I appreciate that the gentlemen who wrote us about the matter didn't like it and I have some sympathy for that. I'm grateful to him for bringing it to our attention, but the fact that he was taped per se is not what's on my mind right now and is not the concern I have right now.

I find it interesting to review the sequence of events here. This gentlemen was a client of the Ombudsman's office, had a relationship with the Ombudsman's office and at some point along the line discovered that his conversations were being taped. He had not been asked for permission. He had not been told that they were being taped. Somehow or other he found out during the course of his involvement with the Ombudsman's office that he was being taped.

As the correspondence indicates, he raised an objection with the Ombudsman's office at that time and he received a letter in response from the Ombudsman's office which he has forwarded to us, dated February 18. We haven't noted who signed it; it was signed by the Ombudsman herself. In that letter of February 18, 1997, it says: "Please be advised that there is no written policy in place for recording telephone conversations. However, the expected practice is in situations where my investigative staff are aware that extensive verbal information is likely to be provided, they may take the precaution of backing up their written notes by making an audiotape recording for reference purposes." It goes on to say other things, but the letter says, in February 1997, there is no written policy on these matters. There is this practice, however, that under certain circumstances tapings are made.

That letter is forwarded to us by the gentleman who brings the complaint. We received that letter in this committee. We considered the letter, and without referring to it specifically and without referring to the gentleman by name, we instructed you, Mr Chair, to write to the Ombudsman and say, "What is your policy on taping conversations?"

That letter went out May 28, 1997, and it received a response June 3, 1997 -- a pretty quick turnaround, May 28 to June 3 -- and the response on June 3, signed by the Ombudsman, indicates, "Thank you very much for your letter of May 28. I am pleased to share with you a copy of the Ombudsman Ontario's policy on the audiotaping of conversations. As you will note, although it is not the practice of Ombudsman Ontario to audiotape meetings or teleconferences with clients during the course of investigations, there are rare and extenuating circumstances" and so on. "In such cases audiotaping should only take place with a manager's consent and if prior written consent is obtained from the client or other person to be interviewed." Included in that letter is a copy of this document on Ombudsman Ontario stationery entitled "Mechanism for Internal Review of Complaints from the Public." In here is discussed the policy regarding audiotaping of conversations.

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On June 3, 1997, there was a written policy in the Ombudsman's office concerning audiotaping of conversations, and that was conveyed in the letter of June 3, but as of February, just a few months earlier, there was no policy. That's fine, but what disappoints me is that in the letter of June 3 there's no suggestion that this policy is new, there's no suggestion that this policy was not in place indefinitely. The assumption would naturally be, based on the letter of June 3, that there's a policy, there's always been a policy, here's what the policy is.

It's only because we received other correspondence from this other individual that we are aware that there wasn't a policy as recently as February. Granted, we didn't ask for a history of what the policy is and has been over the course of time, but I'm disappointed that information wasn't conveyed to us. I'm disappointed to feel that we have to go digging for it if we're to find out these things, that if you don't ask a specific question, you don't get a complete answer to the inquiry.

Yes, we got a specific answer to the question we asked: "What is your policy?" But I would have been more encouraged if the response had been a little more forthcoming and a little bit more of the background had been shared with us. I'm left with the unhappy feeling that the response we received on June 3 was a little less than forthcoming with the committee. I just have to put those thoughts on the record, because right now that's where my concern lies.

Mr McLean: Who is the correspondence from?

Mr Parker: The correspondence I'm referring to is from the Ombudsman.

The Chair: The complete correspondence and the sequence Mr Parker has outlined get us to exactly where we are. It was more the process. Mr Marchese has suggested that the Chair communicate in writing with the Ombudsman summarizing what Mr Parker has just said. Does anyone have any other comments?

Mr Ouellette: What Mr Parker just laid out being the case, I hope we would include, "Why wasn't the policy followed through with?" If this was the policy in place, obviously the individual did not sign off, according to the individual; until we hear otherwise, that this is a new policy, we have no idea why it was not followed through.

The other aspect is, what other policies are there that we have no idea about unless we start prying?

The Chair: I think your point is well taken, and that's the whole purpose of the 1993 report, the role of this committee and the role of policy review, if you will.

We'll deal with the first thing, whether there are any other comments on the issue of the complaint. We are now considering directing the Chair to write to the Ombudsman. Does anybody have any other concerns about that? Do we need a motion? I think we should. It's moved by Mr Marchese.

Mr Ouellette: Can we get an outline of exactly what's going to take place now?

The Chair: The letter will draw to the attention of the Ombudsman the three particular pieces of correspondence which Mr Parker has outlined: the February one where there was no policy being brought to our attention, our May letter to the Ombudsman and the June letter from the Ombudsman back, as well as the fourth piece of correspondence, which is the June 4 letter from the complainant disagreeing. Those will be summarized, saying, "We're pleased that you do have a policy now dealing with taped conversations."

Mr Ouellette: Will we also ask why it wasn't followed through with in this particular case?

The Chair: I think the case was already solved. I think it was done before there was a policy.

Mr Ouellette: We should make sure that the Ombudsman makes that decision rather than us.

The Chair: Yes, that's a good suggestion. We could maybe include that, clarify it. Any other comments?

Mr Marchese: You might want to pass through to the opposition parties and one of your members a review of that letter before it gets sent off.

The Chair: Sounds good. I'll review it with the subcommittee. How's that? All those in support? That's carried unanimously. Very good. We'll be hearing more about that, I suppose, as we move closer to the end.

Back to the main item of the day. I'm open to suggestions. We're just going to review these. This is a very large report, but there is a summary in the back of the report. I'm wondering if that would be appropriate, or do we need the details?

Clerk of the Committee: Perhaps it would be easier if I Xeroxed them and passed them out.

The Chair: Okay. There's a list of all the recommendations and then there's the comprehensive report.

Mr McLean: Mr Chair, while he's getting copies of that for all the members, there were a couple of issues that were raised in the first meeting which I attended. Unfortunately, I missed last week's meeting. I'd like to raise a couple of issues that the Ombudsman had raised. She indicated that with regard to the estimates, she wanted them to go to the Board of Internal Economy. I sat on this committee for many years some years ago, and the committee always looked at the Ombudsman's report. We usually had the Ombudsman in, we asked questions, and we got answers. I hope they're not indicating that if it goes to the Board of Internal Economy for approval, nobody has a chance to ask questions any more. That seems to me to be the route the Ombudsman would like to go.

There's another recommendation in here that says, "That the committee no longer review complaints from the public with a view to making recommendations with respect to the Ombudsman's handling of a particular case."

The Chair: Do you have the reference, Mr McLean?

Mr McLean: Recommendation 32. Many years ago, a company had a case against the Ministry of the Environment, and this company was involved with the Ombudsman's office for some 10 years. We had a great rapport with the previous Ombudsman. I remember that Ed Philip and I -- the Ombudsman had sent a letter stating that the case was closed, that there would be no further investigation. The committee reopened that case and that company was paid by the Ministry of the Environment. The lawyers came together and dealt with that.

I hope we're still going to be able to do those types of things. I know this case went on for 10 years, but it was still dealt with. I know of other cases the committee dealt with, based on a report from the Ombudsman. I hope those things are going to happen.

When I read recommendation 32, "That the committee no longer review complaints from the public with a view to making recommendations with respect to the Ombudsman's handling of a particular case," is the committee still going to be in power or is the Ombudsman going to have all the power? Those are some of the concerns I have. I know the present Ombudsman indicated that the case was closed, and the committee brought it back and resolved it. There's a concern here.

The Chair: As I said, the committee did meet with the Ombudsman in camera to review this report, and you're right, those very duties were clearly central to the whole discussion: who's in control. I think we're trying to deal with it at a policy level, not at a case level. Even in the case of this particular complaint on taping, the argument Mr Parker is making is that the particular complaint, whether it was or wasn't -- there should be a policy in place to make it clear what is appropriate to happen. That's the role of this committee, as far as I'm hearing.

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As we go through each recommendation, arguments have been made for a couple of years -- the history is that this report, as you well know, Mr McLean, was presented to the House, and the House simply sent it back to this committee. Really it underscores that the whole question is, what is the role of this committee? If at the end of the day there isn't a role for this committee, then I suspect the favourite question is, where do we go from here?

Mr McLean: If we're not going to review the estimates, if the committee is not going to review the Office of the Ombudsman, then what is the function of the committee? I always thought that was the opportunity, and we always worked well as a non-partisan committee; it was always non-partisan and we dealt with the Ombudsman straight up front, and there was never any problem. I see now that the Ombudsman does not want the committee dealing with certain things which I believe it has the right to do.

Mr Hoy: I think there is a certain flow to the recommendations, some 44 or so of them, that will help new members on the committee understand what has taken place over the last year or so. If we go through them individually, we'll see the flow and the ideas that came through the 1993 report and new information and opinions that came through just recently, and I think in total, new members of the committee will understand the proposed role of this committee as it pertains to the Ombudsman.

If we could move to going through these recommendations one by one, it will become clear what this committee will be doing in the future, subsequent to whether we approve all these recommendations or what action we do actually take.

Mr Parker: Mr Chairman, that's exactly what I propose. I think some of the concerns that have been raised will be addressed in that process.

Mr Marchese: I would just suggest in terms of the process that we review each recommendation one by one. There may be some questions on some of these; some of these can flow very quickly because they may be quite clear and not conflict with anything we might have said or anything the various people who came to make deputations said. So review each one, take some time to review briefly in our own minds what the deputations said -- or have Philip do this for us, because there may be some conflict of opinion, and with those we might need a few more moments. But I suspect on most of these there won't be too much discussion.

The Chair: Very good. We'll learn; we'll get better as we do it here. We can start with recommendation 1. I'll just read it into the record.

"Scope of the Ombudsman's Function: Systemic reviews:

"1. That the committee consider, as part of its proposed review of the need -- "

Mr Parker: Mr Chairman, I propose that we dispense with the reading. We've all got copies in front of us. Unless we want to focus on one for some period of time, I'm not sure any purpose is served.

The Chair: That would be easier. We'll just take a minute, then, to reflect quietly and read --

Mr Parker: I think you could just ask if there's any comment on number 1.

The Chair: Mr Hoy?

Mr Hoy: At our last meeting, Mr Parker, you and I discussed number 1 briefly. I referred back to a March document that was given to all parties.

The Chair: Yes, a March 19 document.

Mr Hoy: I'm speaking of approximately March of last year, 1996. I think you concurred with me at our last meeting of this committee that we had some opposition to recommendation 1. We were talking about my discussions with Mr Galt some time ago.

You seemed to recall that at the last meeting indeed we did have opposition to recommendation 1. The meeting did not continue beyond that, for other reasons. I will just restate our opposition to recommendation 1. It was an undertaking that Mr Galt understood at the time, and I wonder if your memory is now refreshed that, yes indeed, it was an undertaking that perhaps from your side you also would disagree with recommendation 1.

Mr Parker: As a shortcut, can you just lead me to the conclusion you were going to recommend: that we delete recommendation 1?

Mr Hoy: That's right.

Mr Parker: I'm comfortable with that.

Mr Marchese: This is one of the recommendations that, if it had gone through, we would not have agreed as a party to have allowed this report to be dealt with by the whole House. For the NDP, the matter of systemic review is critical. We felt that the Ombudsman should have the ability and the power to do that in the way that office might see fit. Systemic reviews are critical in her ability to deal with individual matters; the two are very much interconnected and the one sometimes flows from the other, and we needed to leave her that discretion. The deletion of this is important to us.

The Chair: For recommendation 1, are there any other comments? The recommendation at the moment is to delete recommendation 1. Agreed? It's carried.

Read number 2, please: "Awareness and Accessibility."

Mr McLean: I found over the years that the Ombudsman would advertise across the province advising people, if there's a complaint against any government agency, how to get in touch with the Ombudsman's office. I don't know whether that's an ongoing procedure that's used every year. I know it's very costly and I'm just wondering if there's a need that there have to be ads put out to invite people to complain to the Ombudsman's office.

Mr Parker: If I might suggest, I'm not aware of any disagreement with provisions 2 through 5. When the Ombudsman appeared before the committee she indicated her support for these recommendations. I don't think anybody else raised any objection to these recommendations and I think the members of the committee have all been supportive of these recommendations. I see the researcher is signalling me. Maybe he can bring our attention to any discussion that has occurred on these, and that might give us the basis of a discussion now. But if my recollection is correct, I think we can dispense with these fairly quickly.

Mr Kaye: There was one objection raised to the second part of recommendation 3, that government departments and agencies provide information on the Ombudsman's office. That concern was expressed by Ron Ellis. In the summary of the submissions Mr Ellis's concern appears at the top of page 4. He felt that if a tribunal had to give information concerning the Ombudsman's ability to investigate the tribunal's decisions to all losing parties, that would be seen as an invitation by the tribunal to further litigation. He continued that there were problems which had to be examined in terms of when, where and by whom such information should be given.

Mr Marchese: This recommendation, "That government departments and agencies be required to make information on the Ombudsman's services available at all public service contact points," seems reasonable. This individual says that would be a problem because --

Mr Kaye: He was concerned that when that recommendation was applied to tribunals, it would mean that the tribunal would have to give information to all losing parties that they could go to the Ombudsman office. He felt that would be seen as inviting more litigation.

Mr Hoy: In regard to tribunals, I believe the Ombudsman stated that she does not investigate the outcome of a tribunal's decision but, rather, investigates whether the proper process took place. There's quite a difference in her role, the current Ombudsman, as to how she would deal in the future with tribunals. I think had Mr Ellis perhaps heard the Ombudsman state that she only looks at the process of the tribunal and not the decision, he may have had more comfort knowing that. I have no problem with this particular recommendation in light of the fact that the Ombudsman has stated this is her sole role when it comes to tribunal decisions. She doesn't make a judgement about it in that regard but only looks at the process.

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The Chair: Any further comments? I remember Mr Ellis. He was from the WCB and he did suggest that they would be -- but I agree, if she's not going to look at the decision so much as the process, then I don't have a problem with it. Everything should have a process, which means perhaps the Ombudsman has to have a process too.

Mr Parker: My only reservation about point 3 is the absolute nature of the wording of it, but I support the intent that it's driving at and I'm comfortable that this committee can proceed with this wording, and if the Legislature in its wisdom wants to revise it, leave it to them to consider that. That's the only reservation I have concerning this provision, and I'm happy with provisions 2 through 5 as they stand.

The Chair: Provisions 2, 3, 4 and 5 have been moved to be adopted. Any other comments?

Mr Marchese: Just a quick question. I know the Ombudsman says under recommendation 2 that she would "welcome the opportunity to share these plans with the committee...but it would not be appropriate to submit them for approval of the committee. Such approval would undermine the public's trust in the independence of the Ombudsman's office." I wasn't entirely sure that was the case. That was her objection.

Our proposal 2 says, "That the Ombudsman present, as part an annual ombudsplan, proposed public education initiatives...." It simply says, "Do it. We'd like to see it." It doesn't say, "We will approve it or disapprove it," but it's to be submitted and we would look at it. We may want to comment on it, but it doesn't give us the power to necessarily say yea or nay, except that we'd like to see it. I don't think it's a problem, by the way. I think we can vote on all these.

The Chair: All those in support? That's 2 to 5 inclusive.

Mr McLean: I thought it was 2 to 4.

The Chair: It's 2 to 5.

Mr Parker: Recommendations 2, 3, 4 and 5.

Mr McLean: I oppose number 5.

The Chair: Let's deal with 2 to 4 first. All those in support? That's unanimous. Good.

The Chair: Number 5. Mr McLean, you had some --

Mr McLean: It says the act is to "be amended to provide that the Ombudsman may engage in public education...." Don't 2 to 4 cover that? What part of the act are you wanting to amend? Numbers 2 to 4 talk about the public education, to inform members of the public. Why do you have to amend the act in number 5?

The Chair: I would ask if Philip, the researcher, would tell us why that is. Is that a redundant recommendation? Is there some provision in the Ombudsman Act today to allow the education of outreach?

Mr Kaye: There's no specific provision in the Ombudsman Act currently authorizing the Ombudsman to engage in public education, so such an amendment would confirm existing practice.

The Chair: The annual report yesterday was somewhat educational.

Mr Parker: I would just like to draw to the attention of the committee the rationale that was included in the 1993 report itself. It boils down to this: "It is important that the act reflect actual practice. It is clear that all ombudsmen have and should promote the public's awareness of the services that they provide." With that in mind, this recommendation was put forward. I think that rationale is sound. I see no harm in proceeding with it. I understand Mr McLean's point as well, but I see no harm in proceeding.

Mr Pettit: I'm going back to the Revised Summary of Recommendations. It seems to me that Ombudsman herself said an amendment to the act accordingly is not necessary. She does go on to say, however, that it would "underline the importance of this work, but care would have to be taken to ensure that the wording did not have a limiting effect." I think that's what Mr McLean has illustrated, and if the Ombudsman herself feels an amendment is not necessary, then neither do I.

Mr Marchese: "Authority to engage in public education." She says, "An amendment, however, would underline the importance of this work, but care would have to be taken to ensure that the wording did not have any limiting effect." This wording does not have any limiting effect and including it in the act simply underlines the importance of this work that is already being undertaken. We are simply putting in the act what is already being practised, and I think that's a fair thing to do, as Mr O'Toole was indicating. It isn't a big deal, but I think it's best to put it in the act rather than simply leave it to practice.

Mr Kaye: I should add that in 1989 extensive amendments to the Ombudsman Act were introduced in a bill known as Bill 80. One of the amendments specifically would authorize the Ombudsman to engage in public education. So this was an amendment that was recognized in a government bill back in 1989.

The Chair: Did it pass?

Mr Kaye: An election was called.

The Chair: So it never got passed. We're going to amend it right here and now almost, if we can get this report done. I'm calling the question again on recommendation 5. All those in support? Opposed? There you go, it's carried.

Number 6, complaints in writing.

Mr Parker: I want to thank the two opposition parties for supporting that recommendation.

Mr Marchese: We're all friends.

The Chair: This is a non-partisan committee and we'll keep it that way, Mr Parker, please. You should know better.

"6. That the act be amended to provide" the following.

Mr Pettit: Mr Chair, just if you might enlighten me: My question is, not having been here before when this was done, how did the recommendations come to be in the previous committee? Second, are they then voted on, that okay, we're going to put number 2 through 5 forward? Are they voted on as recommendations that we want to put forward? Is that how they happen?

Mr Parker: That's my recommendation.

Clerk of the Committee: If I can clarify that, what the committee did in 1993, we had 10 years of information gathered by the committee on specific issues that had arisen during those years. When we conducted our hearings, many people specifically pointed out where the concerns were and the committee debated these issues. Every specific issue brought before it was accumulated and debated and then they specifically gave direction how that recommendation should be written, the exact words. Having reviewed the exact words, on each recommendation they did exactly like you're doing now. They wanted a consensus of all three parties and unanimous consent if it was agreed to; if not, then they went with the majority.

Mr Pettit: Each recommendation was unanimous?

Clerk of the Committee: No. Some of them were, but not all of them.

Mr Pettit: But they were voted on?

Clerk of the Committee: Yes. All of them were voted upon and the majority ruled on them. I must say that very few of the recommendations were voted on. The committee took its time and reviewed everything and there was agreement.

The Chair: We're dealing with item 6. Any questions or comments? If not, I'll call the question.

Mr Parker: I'd just like the researcher to remind us of what discussion has already occurred on this, if any.

Mr Kaye: During the committee's recent hearings, the only submission that dealt with recommendation 6 was by the Ombudsman. The recommendation gets at section 16 of the Ombudsman Act, which requires all complaints to the Ombudsman to be made in writing. As I mentioned, the Ombudsman was the only person to comment on it and said that while the recommendation, if implemented, would be helpful, practices were currently in place to ensure that the requirement of a complaint being filed in writing did not pose a barrier and that the Ombudsman's office did have means of assisting people to put the complaint into writing.

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Mr Parker: I see no reason not to proceed with accepting recommendation 6.

The Chair: All those in support of recommendation 6? Opposed? It's carried unanimously.

Number 7, public comment on investigations.

Mr Parker: I think number 7 has been reviewed by this committee and amended, so I think we should draw the attention of the members of the committee to the revised recommendation 7 in the working paper.

The Chair: That's the working paper here.

Mr Parker: I'd like to invite the researcher again to remind us of the discussion that has taken place so far on that but with specific reference to the submissions that were made during our hearings.

Mr Kaye: This was one of the issues where the submissions were not in agreement. The revision to the recommendation in the working paper added the words "by means of a special report to the assembly" to denote the way the Ombudsman would make her public comments.

The Ombudsman had concerns about the drafting of recommendation 7 but not the principle of the recommendation. She said that she wished the recommendation had gone further, and her comments are outlined on page 5 of the summary. The revision adding the words "by means of a special report" was opposed by the Union of Injured Workers of Ontario and by the Ministry of the Solicitor General and Correctional Services as well as by the Ombudsman known as the Public Protector of Quebec.

The Union of Injured Workers said, for instance, that comments should be made publicly and not be restricted by means of a special report to the assembly.

The Public Protector favoured a power of public comment similar to what was in the Public Protector Act of Quebec, and the relevant provision of the legislation in Quebec is reproduced at the bottom of page 6 of the summary.

The Ministry of the Solicitor General and Correctional Services felt that the requirement to comment publicly by means of a special report to the assembly would limit the Ombudsman's ability to make public comments and considered this limitation incompatible with the need for the Ombudsman to maintain the principles and perception of independence and impartiality.

My understanding is that of all the revisions by the committee, this is the one that received the most opposition.

Mr Marchese: If I can, Mr Kaye, the objections aren't just to the first part. There are two parts to this recommendation. The objections are as well to "by means of a special report to the assembly" because it's too restrictive -- at least the comments made by one, and there's objection to the second part as well "That the amendment should further provide that no such comments may be made during the course of an investigation."

Mr Kaye: I'm not sure if the objection is to the second part.

Mr Marchese: The UIW said, "When it is in the public's interest, the Ombudsman should be able to comment publicly after an investigation in order to bring to light a government agency's refusal." That's during, so I guess he's not speaking --

Mr Kaye: Yes.

Mr Marchese: Okay. That's fine. I am persuaded by most of these folks that we should just drop "by means of a special report to the assembly" and, in so doing, the other recommendation would become the original.

The Chair: Recommendation 7 is being revised in the first part by adding the words "by means of a special report," which is highlighted in the --

Mr Marchese: I'm recommending that we delete that.

The Chair: Delete it?

Mr Marchese: That's right. It was revised, and I'm suggesting, based on the comments made by the various deputants, that that is a problem. That would revert us back to the original motion.

The Chair: To the original motion; so we're not revising it. Any further comments? We're now voting on the original motion, unamended. All those in support?

Mr Marchese: Is that correct, Mr Carrozza, in terms of process?

Clerk of the Committee: That's fine.

The Chair: Yes, because it was never formally amended. We're still dealing with recommendation 7.

Mr Marchese: Very good. I'm in favour.

Mr Parker: I'm going to ask that we stand this one down, and I'll tell you why, to be quite candid. I wasn't here when the committee discussed inserting those words. Before I vote on the matter I'd like to review the issue with those who were here and just be comfortable that we've fully considered what we're doing here. I'd be happy if we stand this down and come back to it another time.

The Chair: We're going to set aside number 7 to clarify that. We'll ask Mr Parker to bring that back to the committee for next week. Any other comments on that before we move along?

Moving on to 8: "That the act be amended to provide that the Ombudsman...." Does everyone agree with 8, special reports?

Mr Parker: Can I just make a standing request that each time we raise a point, the researcher be invited to report on what the comments were in the hearings?

Mr Marchese: That would be helpful.

The Chair: Sounds good.

Mr McLean: Chair, this reads "the act to be amended to provide that the Ombudsman may make special reports...." But on page 6, under "Special Reports on Performance of Duties," it says: "The Ombudsman is not precluded now from making such special reports. The proposed amendment to the Ombudsman Act, however, may provide additional clarity." She says they don't need it now for special reports. Then why are we amending it?

Mr Pettit: If the Ombudsman sees how clear it is now, that he/she can in fact do this, I don't see where any additional clarity could be made.

The Chair: It's very clear. This whole idea of where the Ombudsman reports and under what situation is what is trying to be clarified here. Am I not correct? Calling a press conference is not one of them. The ombudsperson would believe that's their mandate to release a special report.

Mr Parker: Chair, we don't have to speculate about this. The rationale is included in the 1993 report. This is a recommendation that was in Bill 80, which was mentioned earlier. For an understanding of the rationale all the members of the committee have to do is take a look at page 30 of the 1993 report; there's the rationale.

I return to my initial request that in each case when a matter is brought in front of us, in this case number 8, we turn immediately to the researcher and have him report to us on what the comments were during the public hearings. If there were no comments, Phil, just tell us there were no comments. I think that'll help focus the discussion and consideration.

The Chair: If I may, there were comments on every one, so we'll start that way.

Mr Kaye: Regarding recommendation 8, the only comment was made by the Ombudsman. As has been mentioned, the Ombudsman submitted that she was not precluded now from making such special reports. That conclusion is subject to some debate. As was just pointed out, Bill 80, which was introduced in 1989, did make provision to amend the Ombudsman Act to authorize the Ombudsman to make special reports.

I believe the Ombudsman, in saying she currently has such authority, relies on section 11 of the Ombudsman Act, which says, "The Ombudsman shall report annually upon the affairs of the Ombudsman's office to the Speaker of the assembly...." There's no reference to special reports as such. One interpretation of section 11 of the Ombudsman Act in saying that "The Ombudsman shall report annually," is that it's authority for the Ombudsman's annual report only and not for special reports. But I believe the Ombudsman interprets section 11 as authority for special reports as well.

What the committee was saying in 1993 was identical to what was in Bill 80, in that the committee was proposing that the Ombudsman Act come right out, be explicit and say that the Ombudsman has authority to issue special reports.

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The Chair: Any other questions or comments on 8? All those in support of 8? It's carried.

Moving right along to number 9.

Mr Kaye: Recommendation 9 was another that did not receive extensive comment. The Ombudsman was the only person to refer to it. The recommendation deals with problems which had arisen regarding the Freedom of Information and Protection of Privacy Act.

A problem had arisen with respect to the disclosure of certain documents provided by the Ombudsman in confidence to a governmental organization, in terms of the background of this recommendation. In particular, the Information and Privacy Commissioner had decided that the freedom of information act could apply to information which originated in the Ombudsman's office and which was now in the custody or control of an institution covered by the freedom of information act. Under an access request, the institution would have to disclose the records unless they fell within one of the exemptions under the act.

As a result of a decision by the Information and Privacy Commissioner in this matter, the Ombudsman had adjusted her investigative practices, and instead of providing tentative findings in writing to a governmental organization, she did so verbally.

The comment by the Ombudsman in regard to recommendation 9 was that a provision might be added to the Ombudsman Act to deal with this difficulty in preserving the confidentiality of tentative reports. She also said it would be helpful if other issues relating to the relationship between the Ombudsman Act and the freedom of information act were addressed, such as clarifying investigative powers, but the recommendation of the committee in the 1993 report simply calls for consultation on this issue.

Mr Hoy: That was precisely what I was going to point out, that the standing committee on the Ombudsman consult with various bodies to determine confidential information etc within this. It's a consultative approach in this recommendation, and we could support 9.

The Chair: All those in support? Carried unanimously.

Number 10, Philip.

Mr Kaye: Recommendation 10 deals with the authority of the Ombudsman to make certain applications to Divisional Court. Currently, the Ombudsman is empowered to make a court application to determine his or her jurisdiction to investigate particular cases. That power is reproduced in paragraph (a) of recommendation 10, so that does not involve a change.

The change is the second part of recommendation 10, the reference to going to court for an interpretation of any provision of the Ombudsman Act. This kind of amendment to the Ombudsman Act had been included in Bill 80. The committee in 1993 felt that such an amendment would be useful.

Recommendation 10 was only commented upon by the Ombudsman, who remarked that she had never had any occasion in the past to consider making an application with respect to paragraph (b); that is, concerning the interpretation of any provision of the Ombudsman Act. However, she still felt that such an amendment would be of assistance in the future.

By way of background, the committee back in 1992 did make a recommendation that the Ombudsman make a court application to determine the scope of her oath of secrecy under the Ombudsman Act, so there was an occasion in the past where the Ombudsman was asked to make such an application.

She issued a special report in 1992 in response to this committee report in 1992, and in response to the recommendation that she go to court for an interpretation of the scope of her oath of secrecy, she answered that such an application was ill advised, for two reasons: first of all, that applications under subsection 14(5) of the Ombudsman Act applied only to questions of the Ombudsman's jurisdiction to investigate cases; her second reason said that if the Legislature wished the Ombudsman to provide it with documents which had led to the committee's request, it had the option of changing the legislation.

But the key part of her response was that when she was asked to go to court to get an interpretation, she responded that the Ombudsman Act did not provide that authority.

The Chair: Good. On recommendation 10, two parts dealing with the court applications. Any other comments?

Mr McLean: We're dealing with number 6?

The Chair: Number 10. Any other comments? All those in support? It's unanimous.

Mr McLean: It isn't unanimous. You'd better ask who votes no.

The Chair: Oh, pardon me, Al. Opposed? It's carried.

Recommendation 11.

Mr Kaye: Recommendation 11 deals with cases where the Ombudsman recommends that payments be made to complainants. A problem had occurred whereby a governmental organization might feel that it did not have the authority to make a payment to a complainant on the Ombudsman's recommendation.

This recommendation was commented upon in two submissions, by the Ombudsman and by the Ministry of the Solicitor General and Correctional Services. The Ombudsman in her submission said that some governmental organizations were unclear as to what extent they had the legal authority to pay compensation on the recommendation of the Ombudsman. Accordingly, she felt the amendment provided for in recommendation 11 might provide clarity.

The Ministry of the Solicitor General and Correctional Services proposed an amendment to recommendation 11 that would indicate that the consolidated revenue fund would be the source of the payments. The ministry commented that governmental organizations would not likely include these payments in their annual budgets.

So one submission was in favour and the other proposed an amendment.

Mr Marchese: But my suspicion is that the Ombudsman would not object to the money coming from the consolidated revenue fund. I suspect they're both in agreement. The other is in agreement too, except they're proposing where it should come from; because people may not be budgeting for such a thing in their own budgets, it's good that it come from the general fund instead of a specific ministry. It's all part of one fund in the end anyway, but it does protect the ministry to some extent if it comes from the consolidated revenue fund. I have no objections to that, necessarily.

The Chair: There are a number of arguments that could be made on that.

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Mr Hoy: I concur with Mr Marchese on this issue in terms of where the money comes from, the fact that ministries may not have budgeted for the money. The suggestion of an amendment here seems logical to me. I propose that the clerk include an amendment to number 11 that deals with the recommendation that the moneys come from the consolidated revenue fund. Then when we discuss recommendation 7, which we must revisit at another time, we could deal with that amendment included in number 11 and number 7 at the same time.

The Chair: Would you like to wait on that amendment until Mr Parker and others have spoken?

Mr Hoy: I would.

The Chair: Unless there's concurrence to come back to it.

Mr Parker: No, there won't be. With all respect, I don't see that an amendment to item 11 is necessary. I'm going to suggest that it's none of our business on this committee where the money comes from. The comment that was made by the ministry is a fair comment, but that's a matter to be decided in another forum in another process, not by this committee.

We don't care whether the money comes from the ministry budget, the consolidated revenue fund or some other fund. What we are addressing in item 11 is the narrow point that if the Ombudsman recommends that a payment be made, that recommendation in itself be recognized as authority to make a payment; not a requirement that a payment be made, but it gives authority for a payment to be made. Someone else will decide if a payment is to be made, and someone else will decide where that payment, if it is to be made, is to be made from.

All we are saying in item 11 is that if the Ombudsman makes a recommendation, that recommendation creates a certain authority on the part of a governmental organization. I'm happy leaving it at that. Frankly, I'm uncomfortable trying to do more than that in section 11.

Mr McLean: The Ombudsman does direct who makes the payments. Dealing with cases we've had before, that has been done. I don't know why we even need section 11 to change it. As to whether it's the ministry that's going to pay or the consolidated revenue fund, if it's the ministry the complaint is against, that ministry would logically be the one trying to defend the complaint and therefore that ministry should be the one that does the paying, as has taken place in the past.

If it's going to be the general revenue fund, those ministry people would say, "Well, if it's not coming out of our budget, we make no defence against this claim." I think they have to defend their claim, and I think it would have to come out of the ministry budget. That would be the recommendation the Ombudsman has made in the past, and I presume she has the alternative if she wants to do otherwise. But I don't think it's a necessity to have section 11 in there.

Mr Marchese: The reason for its necessity appears to be made clear by the Ombudsman, where she says, "From time to time, some governmental organizations are unclear as to what extent they have legal authority to pay compensation." Recommendation 11 makes it clear that someone has to pay. If we leave it without making the recommendation that the consolidated revenue fund pay it, in my mind it's clear that once they're directed to pay, it would be the ministry. I really have no quarrel about who pays, the ministry or the consolidated revenue fund, because at the end of the day it's the same money. Some ministries might be affected by it somewhat, but I'm not sure a great deal; I'm not sure of the amount of money we're talking about at the end of the day.

Directing who should pay, and the suggestion was that we have the consolidated revenue fund do it, is in my view not a bad thing to do. I understand what Mr Parker is saying, that we don't need to worry about who pays, that it shouldn't concern us; somebody else will figure that out. That somebody else automatically will be the ministry that is directly connected to the issue. Unless we direct the whole House to support another recommendation, nobody really will look at it, so quite clearly it will be the ministry that will be paying, whatever ministry is affected. We're simply making the recommendation that the money come out of the consolidated revenue fund.

I'm going to support that suggestion. At the end of the day, it may not matter a whole lot, but if it comes out of a general fund, I think it's not a bad thing to do and directing the assembly with such a recommendation is not a hurtful suggestion to be making.

The Chair: I think Mr Hoy put forward a proposal. If that's the case, we have an amendment. Do we?

Mr Marchese: Mr Hoy recommended an amendment. We could just vote on that.

The Chair: You were going to support it, so that's on the record. We're voting on an amendment, which was also proposed by the ministry in the original hearings, that it would come from the consolidated revenue fund.

Mr McLean: Is that his amendment, that it would ?

The Chair: It would be all of number 11, in addition to directing it to come from the consolidated revenue fund.

Mr Marchese: That's the addition.

The Chair: We're voting on the amendment. The amendment would be added to recommendation 11.

Clerk of the Committee: The question for me is where? Do you want to put it at the end? Is that what you're saying?

Mr Marchese: It could be (a) and (b) or (1) and (2).

Mr Hoy: "From the consolidated revenue fund" at the end.

Mr McLean: And not from a ministry. What you're saying now is that all payments will be made --

Clerk of the Committee: No, no, that's this amendment.

Mr McLean: I know, but what he's saying now is that all the payments would be made from the consolidated revenue fund.

Mr Pettit: Is that what you're saying, Pat?

Mr Hoy: That's the implication.

The Chair: The argument made is that the unbudgeted expenditure would not be in the budget for the ministry, and the only way they could get it is to go to the consolidated revenue fund.

Mr McLean: But you've got to make somebody responsible.

The Chair: I agree. That would be clearly my reason for not amending it, but I'm just here counting the votes.

Mr Marchese: Let's go to the vote.

The Chair: We're on the amendment. The amendment will just be recommendation 11 with the directions coming at the end of those words. All those in support of the amendment? Opposed? That's lost.

We're now going to vote on the original recommendation 11. All those in support? All those opposed? That's carried.

On to number 12.

Mr Kaye: Recommendation 12 addresses the situation where the Ombudsman may have recommended that a governmental organization should reconsider a decision and the organization in question felt it didn't have the power to do so.

The recommendation was made in 1993, and in 1994 the Statutory Powers Procedure Act was amended, and the amendment is at the bottom of page 8 of the summary. It provides that "a tribunal which exercises a statutory power of decision and which conducts hearings may, if it considers it advisable, review...its own decision."

In her submission during the hearings, the Ombudsman commented that although this amendment to the Statutory Powers Procedure Act had already broadened the opportunities for a governmental organization to reconsider its decision, the proposed amendment to the Ombudsman Act found in recommendation 12 would be a welcome addition.

It seems to me that the Ombudsman's comments were the only comments directly made during the hearings on recommendation 12.

Ron Ellis's submission, which is also summarized on page 8, appears to deal more with rules that might come out of this recommendation. He was concerned about the use of the word "reconsideration," saying it was inherently ambiguous. He felt that any rule governing reconsideration of tribunal decisions should recognize that when you spoke of a reconsideration, there were two stages, the first stage being whether it was advisable to reopen a decision at all and to commence a rehearing process; the second stage, if the answer was yes to reopening a decision, was the reconsideration process itself and whether or not the original decision should be changed. It seems to me his submission was focusing more on rules that might be made dealing with reconsideration rather than recommendation 12.

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Mr Marchese: Does any lawyer have a comment on that?

Mr McLean: This just brings me back to some of the discussion I had, when the clerk was making copies, about a case that was before the committee many years ago. The Ombudsman had ruled that there would be no further investigation into the case. As I said, Ed Philip and I were on the committee and had the case reopened; the complainant did receive funding from the Ministry of the Environment, which the complaint was against. There has to be something in there that it can be reconsidered or can be looked at if deemed there is further evidence to open it.

Unfortunately, that claim went on for about 10 years; it was finally resolved. The previous Ombudsman was very open to the discussion. We had lawyers before the committee giving evidence, and it was a major job for the Ombudsman's committee to deal with that. After the case was deemed to have been closed, we had it reopened and the claimant did get paid. I think it's important that there's something in there that this would take place.

The Chair: So you're supportive of the recommendation.

Mr Marchese: I didn't really want to belabour it very much because I support the recommendation. I was just trying to understand Mr Ellis's points. Presumably, reconsideration would deal with the threshold question, as to whether it's advisable to reopen the decision at all. I'm assuming that governmental organizations that do not have the power now to reconsider would deal with his number 1. I'm not sure who defines the threshold, but I suspect there would be a process that every governmental organization would engage in to determine whether there's sufficient evidence to reopen a decision. Right? So I'm not quite sure what Mr Ellis is saying with respect to 1.

If the answer is yes to reopening, he says there's a stage 2, meaning the reconsideration process itself and the decision whether or not to change the original decision. I'm assuming reconsideration deals with that as well. Isn't that the case, Philip? Am I missing something?

Mr Kaye: I think his concern was just the use of the word "reconsideration."

Mr Marchese: Why is it ambiguous? I don't get it. It seems clear to me. He says it's inherently ambiguous.

The Chair: In a tribunal setting perhaps it has been considered -- unless, as Mr McLean says, further evidence comes forward. Really, in that context a reconsideration would be logical if there's some new information, I think.

Mr Marchese: Anyway, I support the recommendation.

The Chair: Do you understand what I'm saying? That's how I see it. I'm asking Philip the same question.

Mr Kaye: As I mentioned, I'm a little confused about to what extent Mr Ellis's comments are directed at the recommendation itself as opposed to its implementation. It could be argued that as the recommendation is currently worded, "reconsider" has the two components, whether to reopen the decision at all and then the actual reconsideration.

Mr McLean: I believe the committee should have the say about whether it is reconsidered. Once the Ombudsman has made the decision, if there is further evidence and the complainant wants it to be heard further, the committee should make the recommendation whether they're going to hear it.

The Chair: That's a different twist entirely.

Mr McLean: It takes the onus off the Ombudsman.

Mr Parker: I'm going to suggest that we not get too hung up on semantics at this stage. This is a report we're considering, not legislation. If the fine-tuning of the wording becomes important when it becomes time to draft legislation, this will be a useful discussion at that time.

I think the principle we're driving at here is supported, regardless of the reservations as to how it might be implemented. That's another issue for another day, and I'm grateful to Mr Ellis for flagging it for us, but I don't think it's one that we need to get bogged down in right now.

The Chair: I'm going to call the question.

Mr Parker: I want to come back to Philip and just ask -- you mentioned amendments to the Statutory Powers Procedure Act. Were you suggesting that because of those amendments item 12 is redundant?

Mr Kaye: Part of item 12 would be redundant. Recommendation 12 is phrased very generally; it just refers to governmental organizations. The provision in the Statutory Powers Procedure Act that gives a power of reconsideration applies to tribunals which exercise a statutory power of decision and which conduct hearings. You might say that the amendment to the Statutory Powers Procedure Act is a subcategory of what's in 12. Part of 12 would be covered by the Statutory Powers Procedure Act but not all of 12, because 12 is phrased very generally. That may help to explain the Ombudsman's comments that although these legislative changes have already taken place, the amendment provided for in recommendation 12 would be welcome.

Mr Parker: Well, I'll make the same point, that what we're talking about here is a report, not legislation, and we're dealing in matters of principle. I support the principle in item 12. We may have to look at it more precisely when it comes time to draft legislation, but I'm happy with 12 as it stands and I'm grateful for the comments that have been made on it.

Mr McLean: There is some consideration here that the wording is not appropriate, and we are amending the act and the wording. Why don't we stand it aside and get further information on how it should be worded, whether those words should be left in or left out?

Mr Marchese: I think Mr Parker's right. The principle is a good one. As to whether "reconsideration" means, as Mr Ellis is saying, 1 or 2 and has different implications, we might leave it to a later day for people who draft legislation to deal with the nuance of reconsideration as it relates to what Mr Ellis was getting at. We can deal with that another day.

The Chair: I'm going to respond in a general way before I call the question, if I may. The Ombudsman saw the wording as it is now in respect of the Statutory Powers Procedure Act -- this was a welcome clarification. I gather she works with some of the nuances.

Anyway, I'm going to call the question on number 12. All those in support? That's carried.

Number 13.

Mr Kaye: Recommendation 13 deals with the kind of organizations the Ombudsman would have the authority to investigate. Currently under the Ombudsman Act, the Ombudsman may investigate the decisions or actions of any "governmental organization," which is defined very generally under the Ombudsman Act to mean "a ministry, commission or other administrative unit of the government of Ontario," including any agency.

The committee felt that the lack of clarity in defining "governmental organization" -- this is in the 1993 report -- led to time-consuming and costly disagreements with government bodies over whether the Ombudsman had authority to investigate them. The committee accordingly felt that the Ombudsman's jurisdiction should be more clearly defined, and it recommended that a schedule of governmental organizations be added to the act. That is found in recommendation 13.

The Ombudsman was the only person or group to comment on recommendation 13. She felt that the current definition of "governmental organization" should be retained, but she also felt there should be provision for adding areas to the Ombudsman's jurisdiction by means of a schedule. She gave examples of the kinds of services or programs which could be added by means of a schedule -- for example, if a service or program was identified for some form of private delivery -- and felt that agencies delivering these services might be listed in the schedule. She gave some other examples to cover areas where the public currently doesn't have the right to complain to the Ombudsman; for example, complaints against children's aid societies, municipalities or hospitals.

Recommendation 13 does not go as far as listing specific services or agencies that should be added by means of a schedule. It simply provides that there would be a schedule for listing governmental organizations.

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Mr Hoy: To recommendation 13: My notes from when the Ombudsman appeared before the committee had the concerns that you raised in terms of agencies. In particular, she mentioned jails, the privatization perhaps of some government agencies and perhaps a move to more self-regulation in the future. That was one issue she raised which has already been mentioned.

The other one was that if you're going to make a list, she was fearful that the list might omit something; that in evolving governments and ministries etc, government organizations, a list might be somewhat dangerous, I suppose, in that it might miss someone, some organization. I think there are two concerns there: The changing to private agencies delivering what traditionally might have been government organizations; and making a list that might omit the opportunity for the Ombudsman and more importantly those that are seeking recourse to approach the Ombudsman in her or his work in the future.

I'd be interested to hear what the committee has in mind on those two issues. I think they need to be addressed maybe a little more finely than what recommendation 13 now contains.

The Chair: Philip, do you have any insight? There were a couple of examples used in the Ombudsman's comments. One was children's aid societies, municipalities and public hospitals, which are apparently exempt now. Are there any other suggestions on the schedule? I understand. If we out-sourced road clearance and there was some kind of negligence or whatever, and the Ombudsman was sought, how would that be defined? Are those really the questions that I'm hearing?

Mr Hoy: Yes. I raised this issue before. We called it privatization and a change in the role of governments. I mentioned jails as one that the Ombudsman pointed out in her submission. Are we comfortable that with this recommendation 13 we're not leaving people out?

The Chair: Could we stand that down and ask the members of the committee or the researcher to come up with what was considered to be a list or a schedule?

Mr Parker: I'm not sure that's necessary, Mr Chairman. In terms of a list presenting the risk that something might be omitted, I think that's something that can be addressed in the drafting of any legislation that arises from this. I think what item 13 is getting at is that there be a general description and then, for greater clarity, the option of including specific items in a list, but it wouldn't necessarily mean that the category is restricted to the agencies included in the list. The list is just a means of adding greater particularity to a general category. I think that concern can be addressed in the drafting of any legislation that arises. I appreciate the point that's made but I'm not sure it's anything that needs to concern us at this stage.

On the other point, about private agencies that might carry out government policy, I think that is a much larger issue and falls outside the scope of the exercise we're in now. I recommend we leave that for another day.

Mr Marchese: Philip, I thought the Ombudsman was agreeing to a schedule. Is that not correct?

Mr Kaye: Yes, she's agreeing to the current definition in the Ombudsman Act plus a schedule.

Mr Marchese: Right. The other disagreement she has is that the way we word it in the first paragraph is limiting and that she would prefer, as I read her remarks, that we keep the generality of the current language. If we include the first paragraph in recommendation 13 it's limiting, in her opinion. Is that correct?

Mr Kaye: That may be what she's saying. I think part of the confusion may come from the wording of recommendation 13. Is recommendation 13 saying to eliminate the current definition of "governmental organization" and only have the schedule, or is recommendation 13 saying there should be the schedule plus the general definition of governmental organization which currently exists?

Mr Marchese: If you don't mind, Mr Parker and Mr Chair, I wouldn't mind standing this down, because I think it's useful to look at this again.

Mr Parker: I'm happy to stand it down.

The Chair: All those who support that we stand it down? Is the direction to the researcher here? Mr McLean, did you want to speak first?

Mr McLean: Yes, I did. I feel that the jurisdiction that she has now and the area that she covers with regard to the governmental organizations -- if you talk to any municipality, they would not be happy to have their name added to any list. I know that, as others would. She's asking to broaden the right of complaint and I'm not so sure I agree with that. I think the terms of reference she's dealing with now have been sufficient and I don't agree with adding any more to them. The other possibilities for inclusion in the schedule are the areas that she wants to include in a schedule. I don't agree that these others should be included in that schedule.

Mr Marchese: Just briefly in terms of the scope of the schedule, we always have a concern around whether once you have a schedule that's the end of it or whether it's an evolving schedule, and the difficulty of that schedule being revised over time or how easy it is to revise over time. It is I think within our jurisdiction to worry about that as opposed to leaving it to some point down the line. We need to talk about it here as a way of directing the Assembly with our concerns, rather than saying somebody else may or may not look at it and we have to bring it back for reconsideration. The scope of it and how we deal with that is a matter I would like to discuss.

In terms of Mr McLean's comments, it's possible that many municipalities may not want to be included. I probably understand that. I may not agree, but I'm concerned about the fact that some of these municipalities do not have a mechanism in place to deal with a particular problem somebody's having. Where do they go, and wouldn't it be nice to have an Ombudsman's office? It is costly if you expand its jurisdictional power, but I would love to be able to extend the powers of the Ombudsman to municipalities as well. It's a difficult issue.

Mr Kaye: When the committee made recommendation 13 it really wasn't looking at the question of expanding the office's jurisdiction to include such bodies as municipalities, children's aid societies or public hospitals. In fact the committee, in the 1993 report, dealt separately with such an expansion of jurisdiction of the Ombudsman, except the committee did not make any formal recommendation in that regard. So none of the 44 recommendations addressed that particular issue.

The Chair: Did Bill 80 mention anything on this section with respect to schedule? It seems to me that there must be language that would be sure to include -- once you get into a list, you've got the potential of keeping that list up to date and then arguing whether it's on or off the list. There must be some other kind of language way of saying anyone accessing some government service by whatever means.

Mr Parker: There's no reference to Bill 80 in the 1993 report.

The Chair: I didn't see any of that.

Mr Hoy: Just briefly, I wasn't in my prior comments suggesting that municipalities and hospitals be included on a list or not included on a list. My point was that as the government's delivery, we'll say, of certain traditional governmental organizations' work changes, the Ombudsman raised a question as to whether they would be included, traditional governmental organizations as we know them today. I wasn't suggesting that we add or delete municipalities and public hospitals. I was thinking of what is now known to be the current list.

The Chair: I think we've got general consensus that we're going to stand this down with some direction to the researcher to clarify what would be intended by a list. Would it be to expand the mandate or to clarify the mandate? Do you understand what we're asking, Philip?

Mr Parker: I don't think it's appropriate to give that task to the researcher. The question is, what does this committee want to do? I still think it's a good idea to stand the matter down, but I don't think there's any homework for the researcher out of this. I think there's homework on the part of each member on this so that we can come back and discuss it more fully at another date.

The Chair: My direction there would be not to do anything more than help us to move the next time, otherwise we'll stay on this topic if you think there's something specific you can offer now, Mr Parker, to clarification. I don't think we're very far from resolving making this recommendation to the committee. I agree the language can be finessed by the legislators who draft the real amendments to the Ombudsman Act, but I kind of hear subtly here that maybe we would include children's aids, maybe we would include municipalities and hospitals. Or what is the excluded list today? I don't know what it is.

Mr Parker: My point to you, Mr Chairman, is that the determination of that issue isn't a matter it is fair to ask the researcher to guide us on. That's a matter each member of the committee has to put some thought into and then come prepared to discuss. But I don't see how the researcher can usefully guide us and I don't see that it's fair to ask him to pursue that question. I think it's right that we set the matter down and that we discuss it another day, but I don't see any homework on the part of the researcher arising out of this.

The Chair: The researcher has no duties at all here. We each have some duties.

Mr Parker: The researcher has enough to do without --

Mr Jean-Marc Lalonde (Prescott and Russell): I don't think she ever meant that she should be taking a look at municipal complaints. I think what she referred to when she mentioned municipalities is the fact that probably municipalities should have their own Ombudsman similar to the insurance companies, which have their own Ombudsman at the present time.

I thought she was clear when she said she will only handle complaints that have some reference to the provincial government. Even though they get some grants from the provincial government, she would not handle any complaint that reflects municipal affairs.

Mr McLean: On that point, many years ago the Ombudsman, and I believe I'm correct in saying this, wanted these jurisdictions under their wing. The committee at that time was not in favour of it, and that's why she is saying there are possibilities for these to be included, which I don't agree with.

Mr Parker: I want to move that we stand the matter down and proceed with the next item.

The Chair: Yes, and I guess for consideration for the next time, for expeditious reasons, give it some thought. I don't know exactly what that means, but I think we could solve it now. You can stand it down. It's one minute to 12 and I suspect that I'm looking for someone to --

Mr McLean: I move adjournment.

The Chair: I have a motion to adjourn.

Mr Parker: Why don't we just see if there's any discussion on 14 and 15, because maybe we can --

The Chair: Is that nice round number for somebody? It's fine with me. Let's see if we can, quickly. Number 13 is stood down. Number 14: Philip, is there any great -- plus there are all kinds of comments.

Mr Kaye: Number 14 was considered to be a very significant recommendation by the Ombudsman and there were extensive comments made.

The Chair: I think we'll adjourn now because 14 is like the dividing point. We will reconvene next week and you'll all be duly notified.

The committee adjourned at 1155.