REVIEW OF THE OFFICE OF THE OMBUDSMAN
CONTENTS
Wednesday 18 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)
Clerk / Greffier: Mr Franco Carrozza
Staff / Personnel: Mr Andrew McNaught, research officer, Legislative Research Service
The committee met at 1010 in room 151.
REVIEW OF THE OFFICE OF THE OMBUDSMAN
The Chair (Mr John R. O'Toole): I call the meeting of the Ombudsman committee to order. Our regular researcher, for personal reasons, is unable to attend this morning's meeting, but we have Andrew McNaught, who has some background in this area and is willing to labour with us through the recommendations this morning.
Are there any comments before we start? We're just going to pick up where we left off. I believe we were at recommendation 13, just about to do 14 when we adjourned last time. If that's satisfactory --
Mr Allan K. McLean (Simcoe East): I just have a short question for the clerk. When do we get, or have we already got, the Hansard for last week's meeting? How long does it take to get the Hansard? Is it a week or two weeks?
Clerk of the Committee (Mr Franco Carrozza): It's close to a week, because a number of committees have priority over us: the resources committee. If you wish to have a rough copy --
Mr McLean: I've got that, but I was wondering when the actual --
Clerk of the Committee: The actual is about two to three days at the least, a week at the most.
The Chair: What we have been doing, so everyone is familiar, is that we've been stating the recommendation we are addressing, asking the members to read it and the researcher to give us a bit of a background sketch of the recommendation and how it arrived here. Andrew, if you have a problem with that --
Mr Andrew McNaught: I'm afraid I can't really tell you what the witnesses have said.
Mr John L. Parker (York East): What we were doing was going through the recommendations of the 1993 report in order, and as recommendations arose on which there were comments in the recent round of public consultations, I made the request that the researcher refresh our memory about what submissions had been made during the public consultations. Andrew, I think you've got the summary.
Mr McNaught: I've got the summary. I wasn't present for the hearings.
Mr Parker: If you could just use that as your guide, I think that's as useful as anything.
The Chair: We are on 14, and is one of those where there were comments from other contributors, page 10 of the March 1997 report. Page 9 is actually where recommendation 14 is, but the comments are continued on the next page. "Investigating Decisions of Administrative Tribunals."
Mr Parker: I'm sorry, Mr Chairman. What number is this one?
The Chair: It is number 14.
Mr Gary L. Leadston (Kitchener-Wilmot): Number 13 was deferred.
Mr Rosario Marchese (Fort York): There were a number of comments made by a number of people. Perhaps we can just allow a minute to review.
The Chair: Yes. Andrew is getting up to speed. The Ombudsman made a comment, the public protector made a comment, and seven provincial ombudsmen made a comment, as well as Mr Ellis from WCAT. Page 10 is pretty much dedicated to that, if you want to have a look at it. Any comments?
Mr McLean: I have a comment. With "Seven Provincial Ombudsmen" it says, "The committee should neither be, nor perceived to be, directing the Office of the Ombudsman." Are they saying we shouldn't oversee the office, that we shouldn't have a tour to see what's going on there? Is that saying we should just stay away from the Ombudsman's office and let her run it? What are the seven ombudsmen saying? What's the definition, in your opinion?
The Chair: The clerk of the committee has just referred me to the terms of reference of the standing committee. I suspect we all have this in our materials. In this section it says, "To formulate general rules for the guidance of the Ombudsman in the exercise or his or her function under the act." That's what's in the terms of reference. You're touching on the very essence of why this 1993 all-committee report went forward and is back here. It's the very issue.
Mr McLean: Read that again.
The Chair: Under the terms of reference, subsection 15(1) says, "To formulate general rules for the guidance of the Ombudsman in the exercise of his or her function under the act."
Mr McLean: In order to formulate those rules, we have to know what is going on within the office, and the ombudsmen are recommending that the committee "neither be, nor perceived to be, directing the Office of the Ombudsman."
The Chair: Any further comments on that? That's the subtlety. That's the very language balance we are dealing with in all these recommendations.
Mr Pat Hoy (Essex-Kent): At our last meeting, I believe I mentioned that the Ombudsman currently looks at the process of tribunal decisions but does not get involved in the actual decision itself, whether it was argued that someone didn't like the decision -- she doesn't look into that aspect of it. The current Ombudsman said she does look into whether the tribunal process was handled correctly, but she is not a court of appeal as to how the tribunal ruled. The ruling part of it is something the current Ombudsman doesn't get involved in.
I suppose in general terms, the need for rules is only to solidify that particular point of view that only the process be looked at by the Ombudsman. I'm not certain the committee wants to change that rule to where we would have the Ombudsman look into the actual decision by a tribunal. I don't think that's the intent of this recommendation brought forth in 1993.
The Chair: I tend to concur. Even in the section Mr McLean has made reference to, there's a difference between -- the role of this committee is more of a guidance role on the rules, not specific to cases. But in the comments from the ombudsmen, it says "directing the office." I don't think it's the role of this committee to direct where to spend and allocate resources. I believe it's looking at, as you said, Mr Hoy, a process and whether the process has been followed, without specific reference to cases.
If anyone has a difficulty with that, if you go back to recommendation 14, it says, "That the committee consider, as part of its proposed review of the need for new rules, whether there is a need to formulate rules to govern how the Ombudsman conducts investigations of tribunal decisions." This is very specific about the decision. Any comments?
Mr Leadston: I'm assuming there's a similar process within the Office of the Ombudsman in other jurisdictions. Are we reinventing the wheel here? In another jurisdiction, they already have a set process in place. Are we altering that, adding to that, deleting it?
The Chair: I refer you back to the comments in the March report by the seven provincial ombudsmen responding to exactly your inquiry. They say it's the balance between the principle of accountability versus the principle of directing, meaning the role of this committee.
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Mr Parker: I see recommendation 14 as putting forward a question but I don't see it as purporting to answer that question. I appreciate the cautions that have been raised in respect of the issue that recommendation 14 addresses, but I see no danger in adopting recommendation 14 in its present form. As the question recommendation 14 raises is further pursued, perhaps at another time, the cautions that have been raised in the course of this process might well be kept in mind.
To summarize my comments, I appreciate the cautions that have been raised. I don't see that they need to deter us from passing recommendation 14 in its current form.
Mr Marchese: I'm very conscious of what a number of these people have said and very concerned about what they've said. I was interested in listening to Mr Parker's comments. It is true that 14 raises a question about whether there is a need to formulate it. It doesn't say we will or that we should, but rather, whether we need to formulate those rules. I suppose if we ever make that decision we need to take into account what a number of people have said, which concerns me.
Because of what a number of people have said, I was almost tempted to say I'm in disagreement with the recommendation that was made in 1993, but I suppose I'm comfortable with the idea of leaving it as a recommendation which asks us as a committee to look at whether there is a need to do so. If we look at that in the context of what other people have said, perhaps we may not do anything in the end, that's true, but it leaves it a bit open.
The Chair: It's sort of a circular question. I sense an agreement, because it really just raises the question. Page 47 in the original report touches on all the points that have been made here. I'm going to call the question on recommendation 14. It raises the question, as Mr Parker and Mr Marchese said. It does not direct a new action by the Ombudsman's office. All those in support of recommendation 14? That's carried.
Mr Parker: Mr Chair, I didn't call for a recorded vote on that, but I think it's fair to note that that was passed unanimously.
The Chair: A unanimous vote, yes. I'm recording that as an unanimous vote in favour on 14; there were no dissenting votes.
Number 15: Andrew, could you lead us through this, a less controversial recommendation, I think.
Mr McNaught: I'm reading this for the first time.
The Chair: No problem. Everyone, I encourage you to read recommendation 15, the thrust being that the act be amended to provide that the Ombudsman does not have the jurisdiction to review cabinet decisions. Any questions, comments? I'll call the question. All those in support? That's carried unanimously.
Number 16.
Mr McLean: Mr Chair, with regard to the expansion of jurisdiction, which is on page 11 -- I believe that's recommendation 13 -- did we deal with that?
The Chair: No, we didn't. Recommendation 13 was set aside.
We're dealing with 16. As you're reading there, the recommendation should be turned into a formal recommendation; at this point it isn't, I gather. Any questions or comments on 16? Seeing none, I'll call the question. All those in support? That's unanimous.
Moving right along to number 17.
Mr Parker: Mr Chair, to make it simple, can I just put forward a standing request that all votes be recorded votes? Then we can just go through them very cleanly.
The Chair: Does that mean we have to name every member here?
Mr Marchese: Yes, we do.
The Chair: Is that looking for unanimous consent?
Mr Hoy: We have a number of these to go through. Rather than record each vote, would it be acceptable to say whether it was unanimous or not?
The Chair: And list the names of the members who are in attendance --
Mr Hoy: Rather than naming each member here through some 40 --
Mr Marchese: I don't mind naming them each time.
The Chair: Mr Hoy has recommended that the names of the members in attendance are recorded and that each vote will be considered a recorded vote, noting any abstentions, so we don't have to read it every time. Okay?
Mr McLean: Why is it so important on these recommendations that we have a recorded vote?
The Chair: I think the intention is that we do want a unanimous report. We want a report to go forward from this committee to the Legislature that respects the input from all three parties.
Mr Trevor Pettit (Hamilton Mountain): Mr Chair, I don't think Mr Hoy was suggested a recorded vote, just the fact that it was unanimous, so we don't have to do it each time.
Mr Marchese: Mr Parker wants it to be on the record so that in the future he can say, "Mr Marchese also said, on a recorded vote, that he agreed with this," so that in the event something happened he would have that on the record. I think that's what he wants.
Mr Parker: Rosario, I appreciate the help, but no, it's not so much that. I think it's important that the public be confident that the decisions being made by this committee have the full support of all three caucuses present.
Mr Marchese: I agree with that. The point is that if I vote for something, whether it's on the record or not, you would not find me backing away from something I agreed to. That's just for the record, so that he knows and the other members know.
Mr Parker: I would never want to suggest otherwise. If there's anything I will say about Mr Marchese, it's that he's a man of integrity. I wouldn't expect him to back away from any vote he made.
The Chair: I believe all honourable members here are men of integrity.
Interjections.
The Chair: I'd like to bring the meeting back to order.
Mr Parker: Mr Chair, I just want to make this point clear. I wouldn't want the suggestion to be left out there that I was trying to get anyone on the hook so that they couldn't wiggle off. It's simply to give the public the confidence of knowing who supported these recommendations and who didn't. So far, the recommendations have had the support of all three parties, and I think that's important for the public to know.
The Chair: Thank you for those comments. We're looking now at recommendation 17, that the Ombudsman Act be amended to -- you can read that. All those in support? That's carried unanimously.
Number 18.
Mr Marchese: Just give us a second, Mr Chair, so we can refer to --
The Chair: Yes, because it does make reference to another recommendation.
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Mr Marchese: This is where there's some considerable controversy, I suspect, right?
The Chair: That could be the impression.
Mr Marchese: In recommendation 44, there are comments about "monitoring and reviewing the Ombudsman's exercise of his or her functions," and when we get to recommendation 44, there was probably some disagreement with that. Could we stand that down for a moment?
Mr Parker: Actually, I think consideration of number 18 is premature until we've reviewed 44, and there will be some discussion around 44.
The Chair: Postpone number 18? Is that unanimous? Agreed unanimously.
We're on number 19. It's just clarifying the role of this committee. All those in support of recommendation 19? That's unanimous.
Number 20, the appointment process.
Mr Parker: Mr Chair, this committee has recommended a revision to the recommendation contained in the 1993 report. It's important that the members look at it. I'm going to ask that we review the recommended revision, which is in the working paper.
The Chair: Yes, we're looking at this paper now, the working paper, at the revision. I would ask our researcher to read this into the record so we're clear.
Mr McNaught: The revised recommendation reads: "That section 3 of the Ombudsman Act be amended to provide that the Ombudsman shall be appointed by the Lieutenant Governor in Council on the address of the assembly only after a recommendation by a majority of the members of the standing committee on the Ombudsman. Such majority shall include at least one member from each official party in the assembly."
The Chair: So each party would have to participate and support the Ombudsman's appointment.
Mr McLean: That's what happens in most cases, with the people who are appointed as commissioners around here. As a matter of fact, it's being done right now with regard to the commissioner on privacy. A member from each party and the Speaker are dealing with that recommendation, and that's what I see is happening here. It's going to have to be a member from each party plus the Speaker who will make a recommendation. There are about six or seven commissioners in the province who are under the Office of the Speaker.
The Chair: As long as a member from each party and the Speaker agree, that's how the appointment is formalized.
Mr Parker: But this doesn't say anything about the Speaker.
The Chair: No. It is the committee, though, in this case here.
Clerk of the Committee: If I might assist the committee, when the Provincial Auditor was retained for the job, the public accounts committee conducted all the interviews in camera and made their decision. The committee did all the work and then, when they were in agreement, they made their recommendation. I think this revision is following in those footsteps.
Mr Parker: I think that's the understanding we all have.
The Chair: Do we have unanimous agreement on that?
Mr Pettit: I just want to clarify, Mr Chair. If they're voting on this and there is a majority, there must be one vote from each party.
The Chair: Right.
Mr Pettit: Now, if you have a majority vote and there's not, then what?
The Chair: According to this definition, that would not be acceptable.
All those in support? I'll call the question. Carried unanimously. That's recommendation 20 in its revised form.
Recommendation 21, term of office: This is changing it from 10 to six.
Mr Hoy: You're quite right, Chair, that it does change the term of office from 10 years to six. However, I think it's important to note that the six years, as pointed out by the Ombudsman, would exceed the length of any given government. Even though we've reduced it from 10 to six, it is not five years. Traditionally, many governments have chosen to have elections in four years. Notwithstanding that, this does exceed the five-year term of any particular government of the day, and it's important to note that as we look at this recommendation.
The Chair: I think that's well explained.
Mr Parker: I appreciate that. I think it's also important to note that in a survey of the practice in other provinces it was found that of the seven other provinces which have ombudsmen, six have a term of office of either five or six years. Only one other province, that being New Brunswick, has a term of 10 years. If Ontario were to adopt a six-year term, we would be at the upper end of most of the provinces. As Mr Hoy points out, that six-year term would extend beyond the term of any one government. I think that's critical.
Mr Marchese: Six years provides a great deal of continuity in the office, and it is important that it be beyond the term of any one government, absolutely. In most of the appointments we make of people to government agencies, it's three years and then they are renewed for another three. Six years, in my view, is quite appropriate. I think there's agreement.
The Chair: It's good to hear unanimous agreement. I'll call the question. All those in support?
Mr McLean: Can I have a clarification before you call the question? Ellis commented about "a substantial separation at the end of the term (in the order of two years of salary and benefits) to ensure independence." We're not looking at that at all? That's just an observation of what Ellis has made?
The Chair: Yes, that's not the tenor today.
All those in support? That's unanimous.
Recommendation 22, that 4(2) of the act be removed: Does anyone have the act with them? It talked about removing --
Mr Parker: Mandatory retirement at age 65, Mr Chairman. The proposal is to remove that requirement.
Mr Marchese: That the person retire at age 65. The recommendation is that that be removed.
Mr Parker: That's right. The current act requires that the Ombudsman retire upon reaching age 65. The proposal before us is to remove that requirement.
The Chair: I would ask the clerk to give us his impressions.
Clerk of the Committee: The original discussion in 1993 was that there was a body of knowledge there, that former judges who retire after 68 were not considered for the job because of this particular section of the act. Their thinking was, why exclude this knowledge accumulated over the years, which could be used? That was the idea.
Mr Marchese: That's an interesting argument. That can apply to any group of people, like teachers, for example, who are required by the Education Act, or at least by the boards, to retire at age 65. You would think they have acquired such a great body of knowledge and experience that we should allow teachers to stay as long as they want or as long as they're able to. If we applied that logic it could extend to every human being in every job. It's a bit of a problem, right? Maybe Mr Parker has another view on this.
Mr Parker: I think the comments of Mr Ellis that Mr McLean just referred to are also instructive on this point. He made the point, "A fixed-term appointment, however long, does not provide anything but an illusion of independence." He goes on to say that if you have a young Ombudsman, towards the end of the Ombudsman's term, the concern about future employment begins to loom inevitably on one's mind. He raised the question whether that might distract the Ombudsman from the responsibilities of carrying out the office. He posed the question of what effect that might have on the independence of the Ombudsman and the full concentration of the Ombudsman on the job at hand.
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But if you were to have as Ombudsman a retired judge, for example, you wouldn't necessarily have a concern about what happens next, because the judge might very naturally step into retirement at the end of the Ombudsman's term and would therefore be more inclined to give full concentration to the Office of the Ombudsman during the term. That was the point that was made by Mr Ellis, and I think that's one that's worth keeping in mind as we look at recommendation 22.
Mr Marchese: His comments were in relation to the duration, that was the six-year term, but you're applying that to retirement as well. Is that what you're doing?
Mr Parker: I'm taking his point, wherever it was made. He linked it to recommendation 21, but I think it's a point that is instructive to us as we consider recommendation 22.
Mr Marchese: My point is that this leads to a lot of other problems of a general policy nature in terms of how one deals with these things. If it applies here, it should apply in so many other areas. How does this contradict anything else we have in place with other agencies or commissions or anything we have with respect to people who work for us in government offices? This may set a precedent and lead to a problem elsewhere. Have people thought of that?
I'm concerned we haven't spent too much time reflecting on this. We're dealing with this issue in isolation, saying, "If someone is 65, a very able man or woman, why would we have them retire, given that they have such a great deal of historical experience on the topic?" It does lead to other questions which I think are a bit complicated.
The Chair: We're getting in a circuit here. I'm going to accept two or three more questions. Mr Hoy, would you like to make a comment? Mr Johnson, do you wish to comment?
Mr Ron Johnson (Brantford): No, I'm fine.
The Chair: Anyone else?
Mr Ron Johnson: In fact I will. Maybe I need some clarification on this. With the mandatory retirement at 65, how would you appoint an individual at, say, the age of 62, to six years?
The Chair: I think that would be discussed by the committee and the applicant.
Mr Ron Johnson: My point is that that would seem to be logical justification for dropping the mandatory 65. The example Mr Marchese is using, ie, a teacher, isn't appointed for a mandatory term. You can't appoint one to a mandatory term of six years if you have an age restriction that would limit that.
The Chair: Mr Johnson, I'm going to allow the researcher, who is in possession of the act, to clarify. It's a good point but it is addressed within the act.
Mr McNaught: Subsection 4(2) currently provides that the Ombudsman must retire at 65, but where the Ombudsman attains the age of 65 before having served the five years in office, he or she can retire upon serving the full five years. You're allowed to sit beyond 65.
Mr Ron Johnson: If you're allowed to sit beyond the age of 65, why the need for this recommendation?
Mr McNaught: That's only where you reach the age of 65 before your term is completed.
Mr Marchese: This recommendation removes the age duration altogether.
Mr Jerry J. Ouellette (Oshawa): I agree that we should remove the age restriction, but in no way feel that the submission by Mr Ellis is the one reason. At what age did the Integrity Commissioner recently retire?
Interjection.
The Chair: Justice Evans is quite senior in age.
Mr Ouellette: That's a perfect example of a function within government that is somewhat similar.
Mr Parker: On the Integrity Commissioner, don't the rules say he is not allowed to retire?
Mr Pettit: If we don't remove it, it opens the door for someone to be appointed at 64 years and six months.
The Chair: But it goes right back to the same point Mr Marchese has been making.
Mr Leadston: It should apply to politicians too.
The Chair: That's the very point Mr Marchese is making: Why restrict it to this office?
Mr Parker: I think we're all agreeing, maybe for different reasons. I hear everyone saying the same thing at the end of the day, which is that we want the restriction removed.
Mr Marchese: I didn't say that. I'm very concerned. I will support it, but that's for the record. Maybe when we have the debate in the House on some these things, others might have concerns around this too.
The present act, in my view, isn't so bad. If a person is 62 or 63, and is now in the future going to have a six-year term and ends up being 68 by the end of it, for that kind of qualification it isn't so bad, because that kind of condition seems to fit and it makes sense.
But others will argue that different circumstances can make sense for different people in other areas as well. Although we build in the condition as to why this makes sense, others can argue, "Here's my case and I need to go beyond age 65 for a couple of months." People have argued: "The rules say you can't. We know it's important for you to continue for another five months, for whatever reason, but you can't." I'm very concerned about this.
The present act seems to cover it for me, whereas what we're doing is a problem in terms of a policy direction. I think we all need to be reminded of what it opens up. I don't mind supporting it to move this along for the debate in the assembly, but I have serious concerns about the implications.
The Chair: We've had a full discussion. I'm going to ask everyone to vote at this point. We're looking at recommendation 22. All those in support? That's carried unanimously.
Mr Parker: Mr Chairman, could I move at this point that Mr Johnson having spoken, the Hansard from today's proceedings be copied and made available to the office of the government whip?
The Chair: I'm not going to respect that comment. I think it's nice and humorous. The Chair reserves the right to editorialize here.
Mr Marchese: It's an important motion. Are you moving it seriously, Mr Parker? I just want to know.
Mr Parker: I'm happy to defer that motion to another day.
The Chair: It's not within the context of this particular agenda.
Mr Ron Johnson: I'll sit idly by and take it. I'm bigger than that.
The Chair: Recommendation 23: We have before us another important recommendation. It's regarding the funding. This is quite an important recommendation for the functioning of this committee.
Mr McLean: The public accounts committee reviews the auditor and reviews other government agencies involved with the assembly. Is that correct?
The Chair: No, that's not exactly correct.
Mr McLean: Maybe the researcher would brief me on that.
The Chair: The clerk has sat through this deliberation.
Clerk of the Committee: At present, all the estimates of all the ministries are placed before the standing committee on estimates. The standing committee on estimates makes a decision on whom they choose to hear. If they do not choose the Provincial Auditor or the Ombudsman or the Legislative Assembly, all those remaining estimates are reported back to the Legislature. There are priorities set by all three parties on whom they wish to review. For the last few years, the Ombudsman's or the Provincial Auditor's estimates have not been called before that committee.
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Mr McLean: That's correct, but my question was, does the public accounts committee not deal with certain agencies in public accounts to review the functioning of that agency? Does the auditor not go before the public accounts?
Clerk of the Committee: The Provincial Auditor is a part of the public accounts committee. He's present there every meeting to give advice on all the issues brought before the committee. Yes, he is present there.
Mr McLean: So he does audit the Ombudsman, the privacy commissioner, all those? Does he not take those before the public accounts committee so they have input into that?
Clerk of the Committee: No. As I stated, Mr McLean, all the estimates go before the standing committee on estimates. To my knowledge, the public accounts committee does not review the public accounts of the Ombudsman.
Mr McLean: No, but do they review other agencies, such as the privacy commissioner? Who reviews the Integrity Commissioner's budget? Nobody?
The Chair: We need a clarification of what goes to the estimates and how they select, and also what goes to public accounts and how that is determined. I am going to ask the researcher, who is looking at the 1993 report, to make some reference to that process.
Mr McNaught: I just note in the discussion of this issue in the 1993 report, it states that the Ombudsman and other officers of the Legislature present their estimates to the assembly's Board of Internal Economy, whose responsibility it is to review and approve those estimates and then to lay them before the assembly. These estimates, like government estimates, are then referred to the estimates committee for further review. I don't know to what extent the Provincial Auditor gets involved beyond that.
The Chair: Let's go back to the recommendation at hand. The recommendation we're looking at, number 23, clearly determines that the standing committee of the Ombudsman would review the estimates.
Mr Marchese: I support this recommendation. I really believe it's important for this committee, which has the function of dealing with all aspects of the Ombudsman's office, that this be one area we review. I can't understand why we wouldn't be doing that.
The Chair: Excellent point.
Mr Marchese: I heard the Ombudsman's remarks and I read her remarks here, but it is our function as a committee to do this. To take that responsibility away from us or for us not to have it is to reduce the importance this committee should have. If we can't do that, one often questions what it is we can do. I've never had any problems with this recommendation.
Mr Pettit: I appreciate what Mr Marchese just said. If the Ombudsman's office determines, let's say, that they need a 10% hike in their budget, to whom do they take that to get that approval at this point in time?
The Chair: The Board of Internal Economy.
Mr Pettit: The estimates is really just a Q and A session. They don't have any power to give her office more money or take money away or anything. Is that not correct too?
The Chair: My experience, if I may answer, is that the estimates committee goes through program spending. It gives the members of the committee an opportunity to understand the allocation of resources by the ministry and the business plan, if you will, where they're putting their --
Mr Pettit: But they don't come out and say, "We think you should chop 15% from this or 12% from that." They could say that, but it's not likely to happen through the estimates committee.
On the other hand, getting back to Mr Marchese's point, are we informed enough as committee members that we would be able to sit down -- are we going to be asked to set the budget for that office? Are we well informed enough to be able to do that?
The Chair: That's not what's happening here.
Mr Pettit: It's not?
The Chair: No. The budget would be set and we would be going through that process. I'm going to let Mr Parker, who's got quite a bit of experience with some of these recommendations, comment. I also draw your attention, while we're talking, to recommendation 24, which expands on 23. Recommendation 24 is related.
Mr Parker: I'll keep my remarks brief. I respect the concern that the Ombudsman has raised in respect of this recommendation. It's an important concern and one that must be on our minds at all times, and that is the need to preserve the independence of the Ombudsman's office. There is another concern that must also be on our minds, and that is public accountability. There's a balance that must be struck respecting those two concerns.
This issue was canvassed very effectively in the body of the 1993 report, and I take some direction from its observations. It makes the point that if we are to rely on the Board of Internal Economy to provide accountability, we are giving an unusual degree of authority to the governing party, because the governing party dominates the Board of Internal Economy.
The point seems to be made in the 1993 report that that isn't a real concern as far as independence is concerned, because the Board of Internal Economy doesn't get too deeply involved in the Ombudsman's finances and therefore there isn't the degree of government interference that could theoretically arise. If that is the case, however, then there is some lack of accountability.
The report then looks at the estimates committee and says, "The estimates committee has the authority to review the Ombudsman's estimates." The report then makes the observation that while the estimates committee has the authority to look at whatever it wants to look at, in fact it zeroes in on three areas each year, and as a practical matter it's not going to get around to looking in great depth at the Ombudsman's budget. Although the mechanism is there, it's one that isn't used.
The concern then left for us to consider is, who is looking out for the issue of accountability? The recommendation that the 1993 report came forward with is that this committee is the best body to provide that mechanism of accountability.
I recognize that there is a concern regarding independence. I don't know that independence is necessarily compromised as a result of accountability or that it's compromised by accountability through the mechanism of this committee. I think that's a concern that should be on the minds of the members of this committee as it exercises its duties. But after reviewing all the arguments on all sides of this, I am satisfied that the recommendation that was made in the 1993 report was a good one, that this committee provide the mechanism by which accountability is achieved on matters regarding the Ombudsman's budget. We should keep in mind the concern about independence, but that is not a reason why this committee cannot be used to provide accountability as well.
Mr Marchese: On the two issues of independence and accountability, in my mind, the issue of independence is no less compromised were the Ombudsman to go in front of the Board of Internal Economy versus coming in front of this committee. Presumably, the issue of independence is equally compromised by them, the Board of Internal Economy, or us.
It doesn't matter who does it in that respect, because we both perform the same functions in a way, it seems to me. The government controls the Board of Internal Economy, the Speaker being present, of course, but the government controls this committee as well. One could argue that it doesn't matter where you go in terms of who is in charge, because the government is in charge everywhere in this respect.
The point is, should accountability be to this committee or to the Board of Internal Economy? That's where I think we have agreement. That is, we are the ones charged with the responsibility, in many ways, to be helpful to the Ombudsman and to be critical when we need to be. This is the committee that should be doing it.
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The Chair: You make a very good point. I just want to summarize, before I recognize two other speakers, that most of what you say, Mr Marchese, in my view is exactly right. It's the whole idea of independence which is inherent in the whole definition of the Ombudsman's role; accountability. But I draw to your attention as well that this committee -- and all the committees are represented by all parties. In that respect they're public. In fact, this session and this debate is public record.
So the points you make -- it is government in the public sense, meaning we happen to form the majority, but in that respect we're still accountable to some public observation of the process, as should be the Ombudsman. I think we agree.
I'm going to recognize Mr Pettit and then Mr Ouellette.
Mr Pettit: I just want to clarify. On 24, the second paragraph says that, "The act be amended to provide that the committee shall review and, as it considers proper, alter the estimates presented by the Ombudsman and cause the estimates, as altered, to be laid before the assembly."
You can correct me if I'm wrong, but that means to me that if he or she brings their budget in here, we can up it or down it as we see fit. You indicated before you didn't think so, but I think that's quite clear. If she comes in and says she needs $1 million this year and we determine she only needs $800,000, we can do that. We control her budget under 24 or at least have the --
The Chair: There are two points. We're dealing with recommendation 23 --
Mr Pettit: Right. But in 24, paragraph --
The Chair: On its own, we're saying there should be a review: by whom?
Interjection: Real control.
The Chair: Now, 24 is another issue. It's an extension of that. Your point suggests that the committee has the power to alter --
Mr Pettit: That's what it says.
The Chair: We're going to deal with that particular word in a minute. We're trying to get a conclusion on 23, which is dealing with: Should this committee, in its definition and terms, review the estimates? That's where we are. Mr Ouellette would like to make a point. Then I'm going to call the vote on this.
Mr Ouellette: Go ahead and call the vote.
The Chair: I would call the vote on 23. There will be more discussion on 24.
Mr Parker: Just one further point that I think bears being made at this point: Currently the review of the Ombudsman's budget is through the Board of Internal Economy. I failed to make the point, and I think it's important to make the point, that the Board of Internal Economy has three cabinet ministers on it, whereas this committee is strictly backbenchers. I think that's an important element. Right now there are cabinet ministers who stand in a position to review the Ombudsman's estimates. If we proceed with recommendation 23, we take that authority away from the cabinet ministers and put it in the hands of this committee which is composed strictly of backbenchers.
The Chair: I would ask for clarification on that, if this would pre-empt the Board of Internal Economy's role. It's trying to say rather than going from the Board of Internal Economy to the estimates or public accounts committee, it would go to this committee. If I could ask the clerk for clarification.
Mr Parker: That's a fair point.
The Chair: Wouldn't you say that it would still go to the -- because you make a very good point.
Clerk of the Committee: I think you're talking here about the estimates, the complete estimates. The Ombudsman presents the estimates. It doesn't specifically say -- my understanding is that we would replace the Board of Internal Economy, together with 23 and 24. That's my understanding of this.
The Chair: No, I don't have that understanding.
Mr Parker: To be fair, recommendation 23 only refers to the estimates committee being replaced by the Ombudsman committee for this purpose. My point, as a practical matter, is that it's at this level that the budget would be reviewed. Currently, the Board of Internal Economy does not get deeply involved in the Ombudsman's --
Mr Marchese: That's a separate point. The point that Mr Pettit was making and the clerk was making is that in recommendation 24, we have the power with that to alter the estimates presented by the Ombudsman and cause the estimates, as altered, to be laid before the assembly. Then it's debated in the assembly. So we would be controlling the budget, as you suggested, but the debate would happen --
Mr Pettit: They want to debate 23 first. I thought we were kind of doing it together, but we're not.
The Chair: It gets a little complicated when you talk about process here. Are you finished, Mr Marchese?
Mr Marchese: I am. The only point I wanted to make was that once we pass 24, then we control the estimates. It doesn't end there, of course. It gets debated by the assembly.
The Chair: Of course.
Mr Pettit: But as you stated earlier, being a majority government --
Mr Marchese: Either way.
Mr Pettit: Either way, we in effect will control it. But I thought we were doing the two together. But if you want to deal with 23, then we can jump to 24.
The Chair: I'd like not to bundle them. I'm going to call the question on 23; we'll still have further debate on 24, I'm sure. On 23, all those in support? That's unanimous.
Mr Pettit has the floor on 24.
Mr Pettit: Now that we've dealt with 23, I just want to clarify that to me the second paragraph of 24 means that we will have at least control, up until it gets to the assembly, over the budget of the Ombudsman's office. That's how it reads. Is that correct?
The Chair: Oh, yes, very clear.
Mr Pettit: In other words, he/she comes in and says that they've got a $2-billion budget and we say $1.5 billion is enough. We send that to the House and the House determines, more than likely, in the case of a majority government, that $1.5 billion's enough.
Interjection.
Mr Pettit: That's correct.
The Chair: Yes. We're going to have to put a bit of time. I think there are a couple of good points made already.
Mr Marchese: I don't mind that debate. This committee decides its budget. We would have a discussion here, obviously. There may be agreement or disagreement. If the disagreement is reflected here, we'll have the debate in the assembly. It doesn't really matter where the debate happens, in my view, except this would become a public process and it would be debated. It would be viewed by the public. There would be people watching what we do when it gets debated again in the assembly. I think it's a good process.
Mr McLean: That's the way it used to be done back 10 or 12 years ago. The Ombudsman came before the committee. We dealt with the budget. We looked at the budget. Normally there wasn't much change. We made some observations. The Ombudsman took it back and probably made some reviews on her own. But at least we were kind of the overseers. We never, ever really interfered. We just kind of looked at it to find out that she or he was being accountable. It worked well.
I think that's exactly the way the situation should be here. It shouldn't be any different now than it was 10 years ago. I know there have been some problems. I think we should go back where we were doing the review. When it goes to the Board of Internal Economy, they simply look at it. There are about six or seven that deal with the Legislature. They all come to the Board of Internal Economy. Last round they wanted to reduce budgets overall by a percentage point. They all came in with their budgets reduced to what was requested. We had no idea really what was in each category other than an observation, but there was never a question asked about any category, hardly, of their budget. They were just all passed within five minutes, more or less, although we did call them in. We had the auditor in and you'd have the Ombudsman in and there's a very short meeting and it was approved.
I think the process here as it was is the right one. I don't think the Ombudsman should be unhappy with coming here and talking to us and showing us where she's spending her money. How many offices do they have? I think the public should know. Now, I don't know whether the public knows unless they get a copy of a report. But do they have an office in Hearst? Do they have an office in Thunder Bay? I know there are offices all over the province. It's nice to be able to review that and help her. I think what we're wanting to be is helpful, in my opinion.
The Chair: I appreciate the experience you bring to this debate, Mr McLean.
Mr Ouellette: Now that we've unanimously passed number 23, the second paragraph opens that, "The process followed for the review of other estimates under the standing orders apply." Being that we're now debating 24, should it pass, would that require changes in legislation for the estimates?
Clerk of the Committee: There is a section of the standing orders specifically outlining the briefing material to be given and also the time that the committee has. It begins on 68, I believe. But it specifically sets down what should be provided by the ministries and when it should be provided. Each ministry provides briefing books of all their expenditures, headlines "Capital" or "Services." Those are provided beforehand to all the members of the standing committee.
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Mr Ouellette: Is that a requirement in legislation?
Clerk of the Committee: No, by the standing orders.
Mr Ouellette: Are we having a contradiction of what we're asking for here if in 23 we're asking for the "estimates under the standing orders apply" and then we're asking for a direction on the standing committee on how it's to be handled?
The Chair: If I could respond, that's a good point; in fact, I missed it as well. It's been pointed out by the researcher that in the 1993 report there is on the bottom of page 73 a statement that says, "If this recommendation," meaning recommendation 24, "is adopted, then recommendation 23 will become unnecessary." Then it becomes clear what Mr Parker said, that 24 would circumvent the Board of Internal Economy and the estimates and public accounts and put it right to this committee. But as Mr McLean has explained, that's the way it was done and, after all, the purpose of this committee is to make sure it both allocates enough resources and understands what in fact the resources are. So I think 24 is clear. It must have been debated with respect to whether or not it's in breach of the standing orders, but I don't think it is.
Mr Hoy: I also had a comment in my notes that if 24 was adopted, 23 would be unnecessary. But I think the process that we just went through was good because whoever drafted the original report may have thought that 24 wouldn't get into the report, so at least they had a review of the estimates should 24 have failed. I agree that 23 would become redundant if 24 were accepted.
I want to point out that at the Board of Internal Economy, according to the Ombudsman, her budget was cut, as my notes show, 20% last year. If this committee were to have this authority that we're talking about under recommendation 24, the public interest may be enhanced. There may be situations over time where budgets will rise and budgets will fall, but as Mr McLean pointed out, and he has been in this House longer than I have, sometimes estimates and budgets don't get exact scrutiny, except for the fact that the budget has either risen or fallen. I think this committee could be the protector of the public with this recommendation accepted.
The Chair: Yes, I think that's the whole intent, ultimately, to legitimize the role. Any further questions on recommendation 24?
Mr Len Wood (Cochrane North): Along the lines of the comments that Mr McLean has made, going back to the original recommendations that have been dealt with and discussed over the last four years, the feeling was that this committee could lend support to the ombudsperson and it would assist in the role. Unless we all visit her office and ask questions -- she's invited each one of us to visit her office and ask questions, and we could find exactly where all the offices are. I'm sure the information on how much is spent on each office, how much is spent on travelling, is all available if we take the time to tour her office and visit with her. That was the intention, that this committee would lend support to her.
With various pieces of legislation that are being brought in, we don't know what the workload is going to be of the Ombudsman and the offices. We know that with the changes that are being made to the WCB, the workload of the MPPs and the Ombudsman's office is probably going to be a lot larger until people are aware of all the major changes that are being made in their lifestyle.
I would support 24 in saying that this committee is there to support her.
The Chair: Thank you, Mr Wood. I appreciate the comments. I will call the question on item 24. Those in support? That's carried unanimously. Very good. That means, for the record, that 23 is not required. Is that clear in everybody's mind now?
Mr Pettit: We have to do something official to delete it, don't we?
The Chair: I would suggest that would be the proper thing.
Mr Pettit: I would move then that --
Interjection.
Mr Pettit: No? You just let it go?
The Chair: It clearly is ambiguous now, looked at individually. Mr Parker, would you like to comment on this?
Mr Parker: I'm just going to suggest that this process doesn't end with this committee; the report goes forward. The note is already in the 1993 report that if 24 is adopted, ultimately 23 is redundant. But that's a decision for somebody else to make down the line. I'm quite happy with both recommendations to be on the record.
The Chair: Excellent. We've got a choice then at the final day.
Recommendation 25 is before us dealing with the operation and management of the office. Any questions or comments?
Mr Leadston: I'd just like to know your or the committee's definition of "monitor." Are we talking every time the committee meets? Are we talking monthly, semiannually, annually? This puts a tremendous strain on the Ombudsman's office if we're monitoring the Ombudsman and the office monthly, weekly, semimonthly, biweekly. What is meant? Is there a definition of "monitor"? What is the expectation of the committee in terms of monitoring the Ombudsman's office? Perhaps that's a better question to put to the committee.
The Chair: The Chair reserves the right to gather as much input as possible here. Mr Parker I'm sure will have a comment.
Mr Leadston: I'm sure Mr Parker would have an answer, and Mr Marchese.
The Chair: And the answer perhaps.
Mr Parker: I think we can take some instruction from the commentary that's in the 1993 report and I would just refer the members to that. I'm just reviewing it now myself.
The Chair: As well, in the March report there are some extremely valid observations.
Mr Marchese: I support the recommendation. It's a very difficult one, because as soon as you add words such as "monitoring and reviewing the exercise of his or her function," automatically an Ombudsman becomes very nervous and worried about what that means. But I think in the course of our work here as a committee if there are things that come up that we feel need to be mentioned, then they're brought to the attention of the assembly. I don't think it's a problem. It could be something that may support her office or what she does, or it could be something that may alter the function of her office and that can be construed by the Ombudsman to be interference. But I really believe that as a committee we should have this role.
It is not my intention personally to interfere with her office at all or with the work she does, so it's difficult to even think of what it is that we're looking at, other than giving ourselves this power to monitor and review the functions. That could be again of a positive nature to enhance her work or it could be some other problem that will just enhance her work generally or our work generally. I don't see it as a diminishment of her office. I don't see this as something that we are going to be doing anything more regularly than what we're doing now. I don't see this as a daily review or weekly review or monthly review, other than what we do as a committee: reviewing these recommendations, for example, reviewing her annual report, and in the course of that something may or may not come about.
It could be that something happens in the course of her employment or her work, something comes up that we should be talking about. But I don't see it as digging for information to monitor specifically every inch of her work. I don't see that as the function of this. It's a general power that we give to ourselves as a committee, and I'm not sure that its intent is to diminish or interfere with her work.
The Chair: I agree. It can't be seen as threatening.
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Mr Hoy: I agree with what Mr Marchese said. Also, I'd point out that the committee is also, for example, asking for an ombudsplan. We may want to review that. After all, if we're asking for a plan we would certainly want to sit down and discuss it at some point and at some time. That's one example of reviewing, to go over the ombudsplan the Ombudsman will provide to this committee. That's just one area.
We had a circumstance at our last meeting, where certain policy matters occurred and changes were made at the Ombudsman. I see that as another example of where we might want to monitor and review certain aspects of the Ombudsman's office as it pertains to policy. Last week was an example, I think, that we would like to see discussed, should we determine that we want to take the time to do it. I don't see it as an intrusive recommendation and I don't see it as a makework project for the committee here.
Mr McLean: Could I ask for a clarification? Did we pass recommendation 16?
The Chair: Sixteen is passed.
Mr McLean: Isn't this much the same as 16? What's the big difference?
The Chair: The clerk has pointed out that it's specific to the act, the one we're dealing with. The previous one, number 16, refer directly to "changes to the Ombudsman Act that the committee considers" desirable. The other one doesn't; it's more the ongoing policy of the operation of this committee.
Mr McLean: There's very little difference, in my opinion.
The Chair: I guess you're right, and that point could be made. Much of this is much more detailed, but it's connected. Every one of the recommendations -- whether it's the budget, the policy, the monitoring, the reviewing; that could be budget monitoring -- are connected.
Mr Leadston: I just wanted to have some clarification, Mr Chairman. In your previous professional life, monitoring a line in the automotive industry means something different from monitoring a classroom, different from monitoring an individual in a work setting, different from an executive who's running a major agency for the province, with this committee responsible for monitoring his or her activity. I am seeking clarification specifically on that one word.
The Chair: That's a very good point. I think monitoring is specific to the organization, but the exercise, the process itself, is pretty much common: What are the expected outcomes? How did we do?
Mr Leadston: I was wondering about the expectation of the committee. Are we expecting that the Ombudsman be monitored weekly, monthly or whatever? I'm rather surprised, as a member of this committee, that the Ombudsman would not be here to clarify these very points.
Mr Marchese: She's monitoring them.
The Chair: Yes, we're probably being monitored.
Mr Leadston: I just thought to offer a resource, an interpretation, particularly to myself and I'm sure to others who are new members of this committee.
The Chair: There are suggestions throughout this report that we would be working much more closely with the Ombudsman's office. The clerk has referred me to recommendation 17, which I believe has been passed. Just generally, it says "be amended to provide that the Ombudsman shall, at the request of the standing committee on the Ombudsman, attend at the meetings of the committee to assist in the fulfilment of its mandate." This is much like the Provincial Auditor, Mr Peters, does.
It's a very good point. We do want to work in partnership and I think many of the comments here are of a positive nature.
Mr Parker: I think it is important that we take some direction from the commentary in the 1993 report. It makes it clear that in the use of the term "monitor" they're making a distinction between monitoring and controlling. It's important that we keep that in mind and that it be understood that that's the concept that's being addressed here.
I appreciate that the Ombudsman has raised a concern that this recommendation might lead to a sense of control. The Ombudsman I think quite appropriately cautions us on that point, again stressing the need for independence. I don't think independence is at risk if there's a proper understanding of the term "monitor," as it appears in this recommendation.
I refer the members to the commentary in the 1993 report for that context. They make the distinction between answerability and control. Throughout the commentary the point is implicit, and it's made explicit in a few areas, that it's not intended in this recommendation that anyone go in on a day-to-day basis and question everything that's done or question individual decisions, much less have an influence on those decisions. But it is anticipated that the general policy thrust of the office be monitored by this committee and that questions that logically arise be raised and discussed in this committee. There's no suggestion that a specific instruction flow from that.
If the members were to review the commentary in the 1993 report, I think the issues that have arisen in this discussion are adequately addressed in that commentary.
The Chair: Most of what Mr Parker is referring to is on page 77. We benefit from his experience and wisdom.
Mr Pettit: It frightens me somewhat, but for about the second or third time this morning I agree with Mr Marchese. This troubles me; it sets off alarm bells in my mind. But I do agree with him on this.
Mr Len Wood: There is some hope.
Mr Pettit: Indeed. I think Mr Parker made a good point and so did Mr Marchese. This wouldn't become a witchhunt. It just opens the door for us if we see something we want to question, to call her/him in and get some response to areas of concern. I certainly don't perceive it as any form of witchhunt. If they can't be accountable to or answer questions from us, then who is he/she accountable to?
The Chair: Exactly the whole thrust.
Mr Ouellette: I see the definition of monitoring as being undefined so the committee can define the requirements as the committee and the requirements of the jobs change. In the same fashion that we debated number 23 and then referred to 24, if we had looked at 26 prior to dealing with 25, the ombudsplan should have given us some monitoring direction. Under that, we as a committee can approve a plan, and if further monitoring is required, the committee could do that at a later date. I would suggest that we call the vote on 25 and include the discussions of looking at 26 as well.
The Chair: The advice of Mr Ouellette is to call the vote, and I'm going to do just exactly that. I'm going to call the vote on number 25. All those in support? That's unanimous.
I'm going to draw your attention to number 26 in the revised copy. Recommendation 26 was revised in the working paper. paper I'm going to ask the clerk of the committee to read into the record the revised recommendation 26.
Clerk of the Committee: Recommendation 26 reads: "That the standing orders of the Legislative Assembly be amended to provide that the Ombudsman shall discuss with the committee his or her annual ombudsplan, which shall set out major projects for the forthcoming year."
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The Chair: Any comments on that? It's pretty straightforward. It ties in, as Mr Ouellette said, very nicely. All those in support? That's carried unanimously.
Recommendation 27 also has a revision. I'd again ask the clerk to read 27 from the working paper into the record.
Clerk of the Committee: "That the act be amended to provide that the assembly's rule-making power shall be exercised through the standing committee on the Ombudsman, which shall give the Ombudsman reasonable notice of its intention to make rules and shall invite the Ombudsman, and other interested parties, to make representations concerning any proposed rules."
The Chair: Any further questions on that with respect to working with the Ombudsman's office? I'm going to call the question. All those in support of revised recommendation 27? That's carried unanimously.
Recommendation 28: Take a moment to read that. This one is dealing with the investigation of complaints. Any questions or comments?
Mr Hoy: I've got a comment on 28 which could also apply to 27. I didn't speak up quickly enough to do it under 27, so I'll do it here. This one says we should examine areas in which rules should be formulated. I think the Ombudsman made the comment that if rules are to be initiated, certain guidelines should be put in place. She felt there was a necessity for that.
This recommendation says the committee should undertake an examination of areas in which rules would be formulated. To me, that almost seems as though we would have some kind of plan into the rule-making process and may formulate the need for the guidelines, should recommendation 28 pass. I think that kind of action would accommodate the Ombudsman. She appeared here and said we may need some guidelines prior to a rule-making process; I think 28 rather states that when we undertake an examination of areas in which rules should be formulated.
The Chair: That's the plan.
Mr McLean: There has been some discussion for a long period of time with regard to the Ombudsman's expansion of her responsibilities; that would be into the hospital and the municipal jurisdiction. Would the revision work plan and changes to establish rules -- would this be what this is about, to make rules so that if she wants to expand her jurisdiction there would be a process in place whereby that would happen and we would then review that? Is this allowing it to be set up to allow it to happen?
The Chair: It says "existing areas" in the particular wording.
Mr McLean: But the term "invite" is peripheral to the permit as denoting the committee's intention to actively seek the Ombudsman's participation in the rule-making process.
Mr Hoy: I suspect that Mr McLean's question would be answered through the process itself of examining areas where the committee thinks we should go. I would concur that recommendation 28 allows us to discuss new areas of endeavour, but we have to determine whether we actually want to do that. That discussion will take place some other time as it pertains to some of the areas you've brought up just now.
The Chair: We've talked about the ombudsplan, we've talked about a lot of this involvement, and I think they're all very much linked. If you look in the March report, under recommendation 28 it refers you to 27, which Mr Hoy pointed out he didn't comment on. It's talking about dialogue and making plans into guiding the process, the partnership.
Mr McLean: Recommendation 13 was deferred, and that was defining governmental organizations. That has to do with: "Other possibilities for inclusion in the schedule are areas where the public does not currently have the right to complain to the Ombudsman," such as children's aid societies, municipalities and public hospitals.
The Chair: You're right. That is more proactive in terms of saying yes, we are going to look into those areas. We deferred that, as you've pointed out. I think we're pretty much in agreement.
Mr Marchese: I just want to make a point. I'm not sure the rules refer to expansion of power so much as other areas.
I want to support what the Ombudsman said. She generally says rules are not helpful because they'd limit the Ombudsman's role or would tend to limit. I'm not sure about that. What I do support in her comments is that in the second paragraph she says, "It should also be established that rules are generally made to empower the Ombudsman to effectively perform the functions of the office, not to limit the office's role."
I support that, and I think we would as well. I don't think it's our intention to limit her role in any way, but rather to make it more effective and efficient, not just for us but particularly for her office. If we were to set up rules to limit her office, it would be contrary to our purpose and hers, it seems to me. I support this motion in the context of making her office more efficient and more effective and to allow her to perform her functions as I think she would like. I think we should put it in that context.
The Chair: I agree. It's been framed in a positive light. I'm going to call the question with that comment. All those in support of recommendation 28? That's carried unanimously.
Recommendation 29.
Mr Parker: For the record, Mr Chair, can I make a point in the context of rules? Looking at the commentary in the 1993 report, the power to make rules exists at present in Sweden and Finland and similar powers exist in six of the other seven provinces in Canada which have ombudsmen. In putting forward this recommendation, this committee is doing nothing novel. It's in line with established practice elsewhere.
Mr Marchese: I still haven't had a chance to read this recommendation. We're looking at 29, correct?
The Chair: We're looking 29. In the 1993 report it's extensively documented; page 93 to 100 is the background.
Mr McLean: Mr Chair, I'd like to relate to you once again what I did in the last meeting, which is with regard to when the Ombudsman has exhausted her role and has reported and the investigation is closed as far as she is concerned. What we're saying here is that from that point forward it's up to the Legislature, assisted by the standing committee, to take whatever further action is deemed appropriate.
I think there's got to be place there where it should come to the committee if there is a special case, and there are a few special cases. I refer back to Simcoe Mechanical Ltd, which was on the books for 10 years before it was resolved. She had a report -- I haven't got it from the library yet, but I'll get it; I've been searching for the letter -- whereby she felt they had exhausted her role. I indicated that with the help of Mr Philip, we had further information and it was further investigated; the lawyers for both the company and the Ministry of the Environment came to a conclusion and there was a payment made.
The point of what I'm making is, is there some point where the Ombudsman deems to have exhausted her role where the committee can say, "We need further investigation," or only on the proof of further evidence? How would that be part of this?
The Chair: Again I defer to those with a little greater experience in this area. What were the access denied cases? They're the ones that to me -- what do they call those cases?
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Mr Parker: Recommendation denied.
The Chair: "Recommendation denied" cases I found to be important reporting points, both to say, "Numerically we're solving most of the cases," and also specifically, "What is the final resolve of denied cases?" It isn't the decision; it's to ensure process and all information has been -- is that the point you're making? You must have brought further additional information to the attention of the Ombudsman's office.
Mr McLean: At the time I felt the office did not go far enough in dealing with the issue. I felt they wanted to get rid of it; it had been there for eight or 10 years and they had come to the conclusion that with the lawyers arguing back and forth nothing was going to be resolved, and thought they had done the best they could and wanted to get rid of it.
You're not getting many cases like the one I'm referring to. There was another one with a farmer at one time who had problems and it went on for quite a few years. I don't know really what the resolve of that was. It was resolved, but I'm not sure. So it's really special circumstances. I wonder if the committee would be the one she would bring that to, to define a final solution to it.
The Chair: That's the balance between interference and broader policy direction.
Mr McLean: I don't want to interfere with what she's doing.
The Chair: I hear you. But no one is perfect: not a judge, not an Ombudsman. Information is a fragile thing. If all the pieces aren't there, sometimes the decision is a very difficult judgement. I wouldn't want to be into the details. That's my own opinion.
I'm interested in deferring to other members with much more experience. Mr McLean has given us an example where in the past "recommendation denied" cases have been reopened and pursued and resolved with the assistance of the committee.
Mr McLean: That's right.
The Chair: I would like to make sure, and I'm sure the Ombudsman would too, that every applicant gets every consideration possible, that due process had occurred, period -- nonpolitical, not interfering, but making sure every possible question had been answered.
Mr Marchese: Mr Chair, did I miss something? The Ombudsman makes a recommendation with respect to administering and a particular problem she has uncovered. Then the ministry responds and denies it. Then it comes to our committee because we review those recommendations that are denied. In that particular instance we would agree with either the Ombudsman or the ministry, so we have a role to play in that regard. At that time we have the opportunity to support or not to support. I guess Mr McLean is getting at whether or not at some future point we can reopen it somehow.
The Chair: If more information came forward.
Mr Marchese: I suppose we could do that. I'm not sure what question is being raised here, but we could do that.
The Chair: I fully agree. It's a positive interpretation I take from it. It's no different from the audio recordings. We would be completely oblivious to that event had some individual not brought it to our attention. In fact, there would be no policy today. So the committee has a role to assist in resolving, not creating --
Mr Marchese: Yes, if it ever came up again.
The Chair: Exactly.
Mr Marchese: Mr McLean, I think we can do that. But with respect to this recommendation, obviously the Ombudsman says, "I've done my job here; now it's over," and our recommendation says, "You continue to monitor it as well." As I see it, this recommendation is fine, because if the Ombudsman in the first place did a review of a particular problem in a ministry, it stands to reason there's a concern, and even though it might be denied, she should still continue to monitor, as we should. Once something has been studied because of a particular problem, it alerts us that the problem probably is not going to go away even though it has been denied.
The Chair: I think the Ombudsman, in her March report, agrees pretty much with what Mr Marchese said.
I'm going to call the question on recommendation 29. All those in support? That's carried unanimously.
Recommendation 30 is pretty much connected to 29, which we've just discussed at length. Mr McLean, did you have a comment? No. I'm going to call the question on 30: All those in support? Carried unanimously.
There is a revision on 31. I draw your attention to the working document. I'll ask the clerk to read the revised edition of 31, which is dealing with denied cases.
Clerk of the Committee: "31. That the act be amended to provide that the Ombudsman shall include in each annual report a description of each case in which a formal recommendation has been presented by the Ombudsman to a governmental organization, that is, cases in which a tentative or final report is presented to a governmental organization. The description of each case should include the corrective measure taken by the organization involved."
The Chair: That revision is pretty clear, by adding those few words. Any further comments on recommendation 31?
Mr Hoy: The Ombudsman pointed out that currently she's not allowed to publish the actual tentative report, because by definition it represents an interim step in an investigation. However, she went on to say that she could report the substance of a complaint, "along with my findings and any resolution," and went on further to say that numerical summaries of cases could be reported on without names, without, I would assume, even the ministry or organization involved.
There's probably an understanding by the committee that we know we can't ask for all those details of who is involved, what ministry, but certainly a broader view, as she pointed out in her response, could be attained. I assume that is all we could ask for under recommendation 31.
Mr Marchese: You're suggesting we could also ask her to include numerical summaries of other cases which are not either tentative or final?
Mr Hoy: It was the Ombudsman's suggestion that she could do that. I think we should be ready to accept that.
Mr Marchese: It's not in the motion, obviously.
Mr Hoy: No, it isn't.
Mr Marchese: I don't mind supporting that by way of extension to our motion. Mr Parker, I don't know if you have a comment in that regard.
Mr Parker: Thank you for drawing me in.
Mr Marchese: You were the Chair. You've been active in this committee.
Mr Parker: As I heard the Ombudsman's comments, she was generally supportive of recommendation 31. She raised the caution that there may be occasions where confidentiality is an issue. I respect that and I think that should be borne in mind in the exercise of recommendation 31, but I don't know that it leads us to change the wording of recommendation 31.
Mr Marchese: An addition, not changing it.
Mr Trevor Pettit (Hamilton Mountain): It was a revision.
Mr Parker: I'm looking at the revised recommendation 31 now and I'm proposing that we proceed with that recommendation. I am grateful to the Ombudsman for raising the caution that there may be times when confidentiality is an issue. I see that as a matter to be addressed in implementing recommendation 31. I don't see that as a concern that it would lead us to amend 31 or make an addition to it.
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The Chair: We are dealing with revised recommendation 31. Any further debate? I'm going to call the question: All those in support of the revised recommendation 31? That's carried unanimously.
Recommendation 32, a complaint about the Ombudsman. All those in support of 32? That's carried unanimously.
Recommendation 33.
Mr Dave Boushy (Sarnia): Could we just go back to 32? What's the reason for this recommendation? What was the background?
The Chair: That we're not to be the court of last resort.
Mr Marchese: I think the point is that once the Ombudsman has done a review, by and large it's quite thorough, to my knowledge. For us to then engage in having to deal with that issue again would in some ways be interfering with the job of the Ombudsman or interfering with the sense of neutrality she carries in her job. If we were to handle each complaint, it would be another problem. We would be the final court of any decision-making and I think that complicates our role and the role of the Ombudsman.
The Chair: As Mr Marchese has suggested, we've discontinued the role. The committee is no longer the final Court of Appeal. The decisions by the Ombudsman are indeed final unless there's other relevant information brought forward, as Mr McLean and previous recommendations have allowed us to bring forward. Are you satisfied, Mr Boushy?
Mr Boushy: As I understand it, if there is a particular case where the committee feels the Ombudsman made a mistake, the committee can still review it. Am I correct?
The Chair: Yes, with additional information being brought forward.
We're dealing with 33. Any questions or comments on 33?
Mr Marchese: If I could just have a look at that.
The Chair: Sure. It's on page 20.
Mr Marchese: She says it's not necessary, obviously, because she has a policy.
The Chair: Checks and balances, that's exactly right, where the committee feels a responsibility to ensure a procedural protocol. Any further questions? I'm going to call the question on 33: All those in support? That's carried unanimously.
Recommendation 34. There's a revision to that as well. Is it the wish of the committee that we deal with 34 and at that time we can adjourn? It's 12 o'clock. Okay. We'll deal with 34. I'll ask the clerk to read into the record the revised recommendation 34.
Clerk of the Committee: "Complaints about Ombudsman investigations:
"34. That the Ombudsman Act be amended to provide that for the purpose solely of assisting the committee in the formulation of rules for the guidance of the Ombudsman, the Ombudsman may disclose information which concerns his or her handling of an investigation, where the Ombudsman has received the authorization of the complainant concerned to discuss the matter with the committee. The amendment should also provide that the committee shall not disclose or publish the information without the consent of those concerned."
The Chair: That's something near and dear to our hearts with the recent complaint. Is that clear to everyone, the investigation process itself? All those in support of recommendation 34? That's carried unanimously.
I adjourn this committee until next week. The intent of the committee, by the way, and I want to make two points: First, we would like to complete the review of the 1993 report by next week. In the interests of that goal,
would anyone have any objection to meeting earlier to ensure that we complete it?
Mr Pettit: How many have we got left?
The Chair: There are 10 left.
Mr Pettit: We can get through it.
The Chair: I'll leave that with the committee.
The second thing I wanted to mention is that last meeting the committee had directed the Chair, with the assistance of the subcommittee, to draft a letter to the Ombudsperson and that has been done. The subcommittee has reviewed that report, and it's my understanding that Mr Parker had a small revision in the last paragraph, which was to strike a certain line. I would ask that the letter be forwarded over my signature to the Ombudsman. The members will also receive a copy of that letter.
Until next week at the regular time this committee stands adjourned.
The committee adjourned at 1156.