REVIEW OF THE OFFICE OF THE OMBUDSMAN
CONTENTS
Wednesday 28 May 1997
Case of Mr A
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 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)
*In attendance /présents
Substitutions present /Membres remplaçants présents:
Mr R. GaryStewart (Peterborough PC)
Clerk / Greffier: Mr Franco Carrozza
Staff / Personnel: Mr Philip Kaye, research officer, Legislative Research Service
The committee met at 1001 in room 151.
The Vice-Chair (Mr Trevor Pettit): Good morning, everyone. Mr O'Toole is absent today, so I'll be acting as Chair.
CASE OF MR A
The Vice-Chair: The subcommittee in their last meeting brought forward a motion, that the Chair respond to Mr A regarding his request to have the committee review his case. Could someone please move that we do that?
Mr Rosario Marchese (Fort York): I move that, Mr Vice-Chair.
The Vice-Chair: That's moved by Mr Marchese. Any discussion on agenda item 1? Should the motion carry? Carried.
Mr Marchese: Mr Vice-Chair, maybe Mr Carrozza can very briefly explain the content of this motion. Otherwise, most of the members wouldn't have a clue what we're dealing with.
Clerk of the Committee (Mr Franco Carrozza): The subcommittee met on the request from an individual that the subcommittee review a specific case he had investigated by the Ombudsman. It is the policy of the committee that once the Ombudsman investigates a case the Ombudsman has the final decision and we do not investigate. The motion confirms that policy. Therefore, the committee moves this motion that the Chair will write the Ombudsman and the individual a letter specifying that we will not be investigating this case.
Mr Allan K. McLean (Simcoe East): That we will not investigate?
Clerk of the Committee: Not investigate.
Mr Marchese: Part of the content of that is to say that the Ombudsman was -- I'm not sure we had agreed to say that -- set up to review cases of that sort and that once they've done that and have made a conclusion of that kind, we have done our best through that particular office to have dealt with the matter.
Mr McLean: What we're saying here is: The Ombudsman has investigated the case, the Ombudsman has, I presume, deemed there was no basis for the case. That individual has now applied to the committee to have their case brought before this committee to be heard. It used to be, years ago in this committee, that's what we did. We would hear the evidence and determine whether we agreed with the Ombudsman.
What you're saying now -- and this is the first meeting, I understand. If this is going to be a process where we're not going to intervene in any cases, what's the purpose of the committee? I thought that was what we were here for: to answer and deal with the Ombudsman. If the Ombudsman's decision is going to be final, then what's the point in it coming here?
Clerk of the Committee: If I could clarify that, Mr McLean, this particular case is somewhat different from the cases the Ombudsman brings before the committee to be investigated. This is totally separate. You're quite right that in the past the subcommittee did investigate. It was decided not to do that because it would be like a court of last resort; the committee did not wish to do that.
However, on denied cases, which are totally separate from this, we will investigate those cases once the Ombudsman brings them before the committee. That's just a clarification of what we are doing here.
The Vice-Chair: Any further discussion?
Mr Gary L. Leadston (Kitchener-Wilmot): I feel somewhat the same as Mr McLean. As a new member of this committee, other than the information that's in the motion, I'm at a loss to either support or not support that particular motion. I have no difficulty in hearing whatever Mr A has to say with respect to his case, and that's not diminishing the role of the Ombudsman. If that has been the tradition of this committee, to hear these individual situations, then why is that so difficult?
Mr John L. Parker (York East): Mr Chair, if I could just help everybody out here, this matter has been reviewed by the subcommittee, and the subcommittee has come to the conclusion unanimously that this is not a matter that we recommend the full committee deal with further. The motion brought by Mr Marchese comes with the full endorsement of the entire subcommittee.
The Vice-Chair: Is that clear?
Mr Marchese: If I could just add, Mr Chair, I think whenever there are new members we need to give some form of orientation, not in the whole committee, because then those of us who have been around have to suffer through that a little bit, including the researcher and the clerks, who are well aware of this. But I really do believe that for the benefit of the new members some short orientation would be very helpful, because we tend to go through these questions all the time whenever there are new members. This is not to criticize any members but rather it's useful for people to have that.
The Vice-Chair: A very good point. I could probably use that myself. I guess we would refer that to you. Maybe we could arrange a short orientation for all the new members, okay?
Clerk of the Committee: Yes.
The Vice-Chair: Any other comments?
Mr Leadston: Mr Chairman, in view of what Mr Parker said, then that's acceptable to me.
The Vice-Chair: Good. Shall the motion carry? Carried.
REVIEW OF THE OFFICE OF THE OMBUDSMAN
The Vice-Chair: The second item today is to continue with the committee review of the 1993 committee report on the Office of the Ombudsman. I believe Mr Kaye is going to speak to that.
Mr Philip Kaye: The committee has been conducting hearings on the 1993 report, a working paper from last year. Those hearings began at the end of November and finished at the beginning of March this year. The Ombudsman was the first witness and appeared on three separate occasions before the committee. Altogether there were 10 witnesses. Ten further submissions were received in writing only. Several of the submissions came from people who were associated with ombudsmanship. There is a list of these submissions at the back of the revised summary, and when it comes to witnesses associated with ombudsmanship, members will notice that the Ombudsman, as I said, appeared; there was a submission from the International Ombudsman Institute, the Public Protector, or Ombudsman, of Quebec and also a letter from seven provincial ombudsmen, and these seven ombudsmen came from the provinces of Alberta, British Columbia, Manitoba, New Brunswick, Nova Scotia, Quebec and Saskatchewan.
I have summarized the recommendations, but, as noted in the introduction to the summary, the briefs themselves and Hansard should be consulted for more detail.
I will be reviewing the recommendations in a general sense and then focusing on specific concerns in seven areas. These seven areas are listed in the memo which has been distributed today. They are (1) the committee's role with respect to monitoring and reviewing the exercise of the Ombudsman's functions; (2) the process for reviewing the Ombudsman's estimates; (3) the exercise of the power to make rules for the guidance of the Ombudsman, including rules governing systemic investigations and the investigation of tribunal decisions; (4) the Ombudsman's authority to comment publicly on an investigation; (5) the method of appointing the Ombudsman; (6) the committee's role with respect to complaints from the public about Ombudsman investigations; and (7) the composition of the Ombudsman committee.
Speaking generally, ombudsmen who provided submissions were concerned about the effect of the committee's recommendations on the independence of the Ombudsman institution.
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For an overview of Ontario's Ombudsman's concerns pertaining to this issue of independence, members might wish to refer to the bottom of page 26 of the summary, where it's noted that the Ombudsman took the position that if the public is to perceive the right of complaint to the Ombudsman as a genuine feature of democracy in Ontario, it had to be assured that complaints could be made to an Ombudsman who was independent, not only from those agencies being complained against but also from government and from the political influences of the Legislature. The Ombudsman continued that a balance had been struck between this independence and various mechanisms for holding the Ombudsman accountable to the Legislature; for instance, the requirement that the office's estimates be reviewed by the Board of Internal Economy, that annual reports be prepared and that annual audits of the Ombudsman's office be conducted by the Provincial Auditor.
The committee's recommendations, in the Ombudsman's view, altered this balance at the cost of independence. The Ombudsman generally supported the recommendations of the committee with respect to public education and outreach, the annual reports and other topics as well, such as authority being given to governmental organizations to make payments to complainants where such a recommendation has been made by the Ombudsman.
There were two organizations in particular, the Ministry of the Solicitor General and Correctional Services and the Union of Injured Workers of Ontario, which were on the whole supportive of the revisions contained in the committee's working paper.
In terms of this committee's mandate, it's set out in the standing orders. Just to quote briefly from the standing orders, they say that the committee is "empowered to review and consider from time to time the reports of the Ombudsman as they become available; and, as the committee deems necessary, pursuant to the Ombudsman Act, section 15(1), to formulate general rules for the guidance of the Ombudsman in the exercise of his or her functions under the act." The standing order then continues that the committee is authorized to report on these matters and make recommendations. That is all there is in the standing orders specifically on the Ombudsman committee. There is no reference to this committee at all in the Ombudsman Act.
As I mentioned earlier, I'm going to review seven issues which were considered contentious in the submissions to the committee, the first issue having to do with the committee's role regarding the monitoring and reviewing of the exercise of the Ombudsman's functions. The key recommendations in this regard are recommendations 16 and 25.
Mr Marchese: Where are you referring to now?
Mr Kaye: The recommendations are in this report.
The Vice-Chair: They'd be on various pages.
Mr Kaye: Yes. There's a consolidation of the recommendations at the back. On page 151 of the 1993 report there's recommendation 16, which says, "That the standing orders of the Legislative Assembly be amended to provide that the committee shall monitor and review the Ombudsman's exercise of his or her functions and report any changes to the Ombudsman Act that the committee considers desirable."
A very similar recommendation is recommendation 25, on page 152, which reads identically at the beginning, "That the standing orders of the Legislative Assembly be amended to provide that the committee shall monitor and review the Ombudsman's exercise of his or her functions, which shall include inquiring into and reporting on any matters which the committee believes should be brought to the attention of the assembly."
In the 1993 report, the committee acknowledged that perhaps the area which had caused the most difficulty between the Ombudsman and the Legislature concerned the role of the Legislature when it received communications from the public or an MPP regarding the management of the Ombudsman's office. On the one hand, the committee in 1993 agreed that the Ombudsman should have a degree of operational independence, yet on the other hand, it felt that decisions and developments concerning the management of the office which might fundamentally affect the manner in which the Ombudsman's services were provided were matters in which the Legislature had a legitimate interest.
By way of example, the committee referred to any decisions concerning policies to ensure the political impartiality of staff or to provide French-language services, as well as any developments regarding staff turnover or the closure of offices. The committee added that with respect to decisions and developments of this nature, the Legislature's role was primarily one of requiring answerability on the Ombudsman's part, as opposed to control over the Ombudsman.
The committee expressly states in the 1993 report that particular decisions, such as those to retain a particular consultant or to hire or fire a particular individual, were management decisions into which the Legislature should not inquire. It also distinguished between decisions related to the investigation of complaints by the Ombudsman and decisions related to the administration or management of the office. In the committee's view, the requirement of autonomy applied with greater force in the first area. In the summary, the submissions on this issue appear on pages 12, 13 and 17.
Mr McLean: Do we have a copy of that?
Mr Marchese: In the revised summary?
Mr Kaye: The revised summary. Members should have that.
Mr McLean: This is what we have got here.
Mr Kaye: Not the working paper.
The Vice-Chair: No, that's the working paper. You should also have the revised summary of recommendations.
Mr Marchese: Page 16 or 17?
Mr Kaye: Pages 12, 13 and 17.
The Ombudsman submitted that this proposed amendment to the standing orders, that the committee monitor and review the Ombudsman's exercise of his or her functions, was not acceptable. The phrase "monitor and review" represented a direct challenge to the independence of the Ombudsman institution and was one of two themes where the Ombudsman had a fundamental disagreement with the approach of the committee's recommendations, the other theme or category of fundamental disagreement being the committee's role in the estimates process, which I'll be discussing next.
According to the Ombudsman, the phrase "monitor and review" provided an open-ended mandate which might be interpreted to include wide-ranging powers of control.
Mr Marchese: Sorry, what page is that again?
Mr Kaye: Page 12, recommendation 16.
The Ombudsman continued that independence was a basic tenet of the role of an Ombudsman. By changing the relationship between the Ombudsman and the committee in the way contemplated, the committee would become a board of directors and the Ombudsman, in effect, its employee. In such circumstances the Ombudsman felt that the public would lose confidence in the credibility of the institution.
Concerns about independence were also raised in the submission from the seven provincial ombudsmen. David Warner, the Speaker during the last Parliament, said that recommendation 16, and this would apply to 25 as well, represented the most serious of intrusions into the daily operation of the Ombudsman's office. If adopted, at a minimum, there would be an appearance of political interference with an office which was supposed to be impartial; at worst, the credibility of the office would be destroyed. He later said it cannot be stated strongly enough how much danger lay in this recommendation. The recommendation ran the serious risk of destroying public confidence in the office and ultimately its practical functioning. The conclusion was that the recommendation had to be rejected.
Concerns were also raised by the chair of the Workers' Compensation Appeals Tribunal, who remarked that if there was a proposal that his tribunal's exercise of its functions be subject to being monitored and reviewed by either the Ministry of Labour or the Workers' Compensation Board, such a proposal would be seen as being entirely incompatible with WCAT's independence by the chair and by the tribunal's worker and employer constituencies. Mr Ellis continued, "The perception concerning the impact of recommendation 16 on the independence of the Ombudsman was not likely to be significantly different."
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The Union of Injured Workers in the context of supporting recommendation 44, which laid out a consolidated set of terms of reference for the committee, supported recommendation 16.
The second issue of concern that I will be reviewing has to do with the process for reviewing the Ombudsman's estimates. The key --
Mr Marchese: Sorry, Philip. The Union of Injured Workers says the committee's recommendation is supported?
Mr Kaye: Yes. They didn't go into detail on recommendation 16, they made a comment that recommendation 44 provides consolidated terms of reference for the Ombudsman committee. It takes previous recommendations and incorporates them. Recommendation 44 is reproduced on pages 155 and 156 of the 1993 report.
As I mentioned, it provides for consolidated terms of reference for the committee to go into the standing orders. One of those terms at the top of 156 is, "to monitor and review the Ombudsman's exercise of his or her functions, and in particular: to enquire into and report on any matter which the committee believes should be brought to the attention of the Assembly; and to recommend any changes the committee considers desirable to the Ombudsman Act." The Union of Injured Workers expressed support for recommendation 44 and, by doing so, they were expressing support for recommendations 16 and 25.
With respect to the process for reviewing the estimates for the Ombudsman's office, there's nothing in the Ombudsman Act on how those estimates are to be reviewed. What happens in practice is that the Board of Internal Economy reviews the estimates and then sends them to the Minister of Finance for inclusion in the government estimates tabled in the Legislature.
The standing orders say that after tabling in the House, the estimates of all ministries and offices are deemed to be referred to the estimates committee. That committee, however, doesn't have the authority to examine all the estimates. It must consider at least six, but not more than 12. The estimates it doesn't consider are deemed to be passed by the committee.
The Ombudsman's estimates have never been selected by the estimates committee. This procedure for the review of estimates began in 1989. There were amendments to the standing orders. Between 1983 and 1989 the Ombudsman committee reviewed the Ombudsman's estimates.
In the 1993 report the committee made two recommendations regarding estimates. They are recommendations 23 and 24. They appear on page 152 of the 1993 report. Recommendation 23 basically says that the Ombudsman's estimates should no longer be referred to the estimates committee but instead should be referred to the Ombudsman committee. Recommendation 24 provides that the Ombudsman should present the estimates directly to the Ombudsman committee, in which case the role of the Board of Internal Economy would be removed.
Mr McLean: What is the recommendation on that report?
Mr Kaye: That's the recommendation in the 1993 report. Just in terms of explaining the committee's rationale back in 1993, it observed that in practice government dominance of the Board of Internal Economy did not appear to interfere with the independence with which the Ombudsman's budget was approved. However, it thought this non-interference was achieved at some cost. In particular, the committee felt the board was in a difficult position with respect to effectively analysing the Ombudsman's estimates because of the composition of the board, consisting of the Speaker, three members of cabinet and one member from each caucus, and also, the potential for any detailed estimates review to be perceived as an attempt to direct the Ombudsman's activities.
The committee felt that a procedure whereby the estimates would be referred to the Ombudsman committee would ensure that the estimates were regularly considered. As I mentioned, the standing committee on estimates has never looked at the Ombudsman's estimates.
The committee, back in 1993, also thought that having the estimates referred to this committee would address the need to have a review mechanism which was visibly separate from government. As I mentioned, the committee also recommended that consideration should be given to referring the estimates directly to this committee and to bypass the Board of Internal Economy entirely. The committee concluded that direct referral of the estimates to the Ombudsman committee would remove any government overtones associated with the board's review and the possibility for conflict between the Ombudsman and the board. As well, it would allow the Ombudsman to answer for his or her estimates to just one body: the Ombudsman committee.
Submissions on this issue are reviewed on page 16 of the revised summary. The Ombudsman's comments appear at the top of the page. She felt that this area represented the second category or theme in which she had a basic disagreement with the committee's approach. The Ombudsman contended that the separation of her office's funding from the standing committee's consideration of cases was critical to the independent operation of the office. She highlighted section 10 of the Ombudsman Act, which requires an annual audit by the Provincial Auditor, and said that it was entirely appropriate that the Ombudsman be held accountable for funds received. But it was also necessary to structure this accountability in a way that demonstrated the Ombudsman was not a civil servant and was not a part of the government bureaucracy that reported to cabinet. The relationship which her office had with the Board of Internal Economy achieved this, she said, and treated the Ombudsman in the same way and for the same reasons as the other officers of the Legislature.
The Ombudsman referred to a remark by former Ombudsman Donald Morand who said that if the Ombudsman committee had the power to control the expenses of the Ombudsman, it had the power to call the tune of the Ombudsman. This was contrary, she continues, to what was intended when the act was passed.
The seven provincial ombudsmen, which would include the public protector for Quebec, also raised concerns about the committee's recommendation regarding the change to the estimates process. The Union of Injured Workers in the context of supporting recommendation 44, the consolidated terms of reference for this committee, felt that the standing orders should be amended to provide that the Ombudsman committee should review the Ombudsman's estimates.
Mr Marchese: Philip, there's a question. Would not the Board of Internal Economy play that same role as well?
Mr Kaye: It depends which recommendation of the committee is adopted.
Mr Marchese: The one we're just dealing with, where the Ombudsman says the committee should neither be nor perceive to be directing the office of the Ombudsman. But if the Board of Internal Economy were to play this role in obviously reviewing the estimates, would it not be doing the same thing as the committee would be doing?
Mr Kaye: The Ombudsman's view, though, is that the board, because it's chaired by the Speaker, has an impartiality which this committee does not have and that because the board reviews the estimates for the other officers of the assembly, it's logical that her estimates be --
Mr Marchese: And the fact that we have three political parties in this committee, does that not make it a bit more neutral as well, rather than government -- the Speaker controls that in terms of a neutral body, yes, but the government members control that committee.
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Mr Kaye: I can only say the Ombudsman focuses on the fact that the Speaker is the chair of the board in terms of distinguishing between the makeup of the board and --
The Vice-Chair: I'd like to suggest that we might wait till the end of each section. Are there seven?
Mr Kaye: Yes.
The Vice-Chair: And at the end of each section we'll have a little Q and A.
Mr Kaye: The next section, in terms of a contentious issue, involves the rule-making process. The key recommendations are recommendations 27 and 28; 27 was revised in the working paper and the revision appears on page 3. It says the Ombudsman Act should 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.
Recommendation 28 was not revised. It is reproduced at the top of page 153 in the 1993 report and reads, "That the committee undertake an examination of areas in which rules should be formulated, and that this review be commenced at the earliest possible time."
The Ombudsman Act empowers the assembly to make, "general rules for the guidance of the Ombudsman in the exercise of his or her functions." In the standing orders, the assembly has delegated to the Ombudsman committee the responsibility for formulating these rules. Procedurally, rules are proposed by the Ombudsman committee and then presented to the assembly for adoption.
Back in November 1979, general rules were adopted by the assembly, but since that date no further rules have been made. Among other matters, the rules set a time frame for the tabling of the Ombudsman's annual report, explain the term "adverse report" and clarify the procedure for the reporting of what are known as recommendation-denied cases by the Ombudsman to the Legislature; that the matter would be referred first to the Premier and thereafter, if necessary, to the Legislature and then to the committee.
The 1993 report spent a fair bit of time on the rule-making process. In that report, the committee acknowledged that no rules had been made since 1979. However, the committee considered the situation to be more a reflection of the expectation that amendments to the Ombudsman Act would be forthcoming than any belief on the committee's part that no more rules were needed.
The committee remarked that rules could help to clarify areas of apparent conflict between the Ombudsman and governmental organizations. They could also foster consistency in the office's procedures as new Ombudsmen were appointed.
As I mentioned, the committee, in the working paper from last year, proposed a revision to recommendation 27 regarding the making of rules. As noted on page 3 of the working paper, the committee simply changed the word "permit" to "invite," so that the end of recommendation 27 made reference to inviting the Ombudsman to make representations. The committee explained that the word "invite" denoted more accurately than "permit" that the committee wished to actively seek the Ombudsman's participation in the rule-making process.
In the summary, comments on recommendations 27 and 28 appear on pages 18 and 19. The Ombudsman said that rules were generally not helpful because they tended to limit the Ombudsman's role and diminish the degree of flexibility to address issues in changing circumstances. Also, rules made by a standing committee with a government majority could make it very difficult for the Ombudsman to defend the integrity of the office's decisions. If the Legislature found that restrictions on the Ombudsman's exercise of his or her functions were necessary, then amendments could be made to the Ombudsman Act.
She continued that if rules were to be considered, a process and guideline should be established about how the need for a rule would be identified, what information should be considered and how this information should be obtained. It should also be established, she said, that rules are generally made to empower the Ombudsman to effectively perform the functions of the office, not to limit the office's role.
The Union of Injured Workers supported the revision made by the committee in the working paper, saying that the word "permit" in the original recommendation was condescending and should be replaced with the word "invite," as suggested in the revision. The revision was also supported by the Ministry of the Solicitor General and Correctional Services.
A subcategory of the topic of the making of rules deals with rules pertaining to systemic investigations. The key recommendation is recommendation 1, which appears at the back of the 1993 report on page 148, and 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 a systemic nature."
In the 1993 report, the committee believed that the Ombudsman had an important role to play in identifying systemic problems. However, it felt that the primary function of the Ombudsman should continue to be the investigation of individual complaints. According to the committee, care had to be taken to ensure that the conduct of systemic investigations did not detract from this primary function. The committee, in 1993, noted that to a large extent the procedures set out in the Ombudsman Act were designed to facilitate the investigation of individual complaints. Accordingly, the committee made recommendation 1.
Comments received during the committee's hearings on recommendation 1 appear in the summary on pages 1 and 2. The Ombudsman opposed the recommendation, claiming that there was no need for a rule to govern the conduct of systemic investigations. An unnecessary rule might fail to anticipate future circumstances which could limit the scope of the Ombudsman's response to complaints. The Ombudsman, however, welcomed the opportunity to discuss with the committee her current approach to systemic investigations and to entertain any suggestions for improvement.
Mr Marchese: I'm sorry, Philip, I need some clarification here. The issue was whether there should be systemic reviews?
Mr Kaye: The issue was whether there should be rules to govern systemic reviews; not whether there should be systemic reviews, but just whether there was a need to have rules. The Ombudsman, as I said, felt there was no need for any rule.
Ron Ellis, the chair of the Workers' Compensation Appeals Tribunal, took a different approach before the committee. His views are summarized on page 2 of the summary. He submitted that for a small tribunal, the intervention of the Ombudsman's office in the tribunal's policymaking process could be very powerful and intrusive. The Ombudsman had the power to report to the Premier and to the Legislature as well as the power to initiate a full-scale organizational review. This power imbalance between the Ombudsman and the tribunal called for careful control of the power to engage in systemic investigations.
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Another comment he made held that where the systemic investigation was in the nature of a general operational audit or organizational review, it was essential that the tribunal being investigated have specified rights to participate in the development of the review plan. It should also have the right to contribute during the review process itself and the opportunity to respond to the developing report. He concluded that there was a particular need to formulate rules to govern these rights of involvement.
Another issue of contention pertaining to rules deals with the investigation of tribunal decisions. The recommendation here is recommendation 14, which appears in the 1993 report on page 150. Recommendation 14 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."
In the 1993 report, in terms of explaining the rationale for this recommendation, the committee referred to what was known as the Macaulay report. In 1988 Robert Macaulay, the former chair of the Ontario Energy Board, was appointed by Management Board of Cabinet to carry out an extensive review of all regulatory agencies, boards and commissions of the government of Ontario. He reported back to Management Board the following year. In his report he referred to an unhealthy and considerable tension which had developed between the Ombudsman's office and some agencies.
To quote from his report, "In my conversations with a few of the agencies and with staff of the Office of the Ombudsman I discovered unhealthy tension between the two which in the interests of the province should be understood and eased." Later on he said: "As I advanced my work, it became apparent that some agencies have had an ongoing relationship with the Office of the Ombudsman but some more than others were concerned about the investigations and the demands put upon some of them by the Office of the Ombudsman. These demands have created considerable tension. This matter should be reviewed." Macaulay recommended that the Ombudsman committee should establish rules of procedure which would govern how the Ombudsman's powers are carried out with respect to agencies.
In the summary, the submissions on the committee's recommendation in this area are summarized on pages 9 and 11. In the middle of page 9: The Ombudsman said that this proposal was one area where the Ombudsman had a fundamental disagreement with the committee. The Ombudsman's office had a well-established approach to dealing with complaints about tribunal decisions. The primary purpose was to see that the process followed by a tribunal was administratively fair. The purpose was not to sit as a court of appeal where the Ombudsman's findings would be substituted for that of the tribunal. She continued, that where procedural or administrative unfairness were found, the Ombudsman might recommend reconsideration of a decision if the tribunal had such authority, or a change to the tribunal's procedures governing the decision-making process; for example, where the issue of delay had arisen. She concluded that there was no need for a rule to set this out.
Ron Ellis, from the Workers' Compensation Appeals Tribunal -- I should emphasize that when Mr Ellis testified, and this is noted at the back of the summary, he said that he was speaking personally and not on behalf of the tribunal -- felt that the experience of his tribunal with the Ombudsman had been excellent and that the working relationship had been first-class. The Ombudsman did not try to substitute her judgement for that of the tribunal, but rather looked at whether the tribunal had acted reasonably. From a practical point of view, given the limitations that the Ombudsman had accepted, the Ombudsman's process had proven to be positive and useful. It served as a kind of ongoing audit from an objective and outside point of view.
Further comments by Mr Ellis appear at the top of page 11 of the summary, where I have summarized his view that the Ombudsman's traditional role is to investigate a governmental decision upon the complaint of a private citizen where private citizens are not competing against each other. However, in its investigation of tribunal decisions, the Ombudsman was dealing with decisions involving the rights of competing private citizens. This peculiar problem had not received sufficient attention. In particular, there was the issue of the rights of the non-complaining party, who is not the government, to participate in the Ombudsman's investigation.
The fourth issue to review has to do with the making of public comments by the Ombudsman. This issue is addressed in recommendation 7, which was revised in the working paper. Recommendation 7 appears at the bottom of page 1 and authorizes the Ombudsman to comment publicly, where it is considered to be in the public interest or in the interests of any person or governmental organization, in order to make known the existence of an investigation or the outcome of a particular case.
Back in 1993, the committee concluded that the Ombudsman should have the power to comment publicly in certain situations. For instance, in explaining why this power would be desirable, the committee commented that it would be useful to exonerate individuals or governmental organizations which had been the subject of public allegations later found to be without basis. Although the Ombudsman's reports would eventually clarify concerns, a more timely public statement would in some instances be more effective.
The working paper, as I mentioned, revised the recommendation and added the words "by means of a special report to the assembly" to explain how the Ombudsman would have to comment publicly. The rationale for this change is explained at the top of page 2. The committee was concerned that the original recommendation permitted the Ombudsman to resort to the media to make such comments. The potential emotional overtones of media involvement can make it difficult for the Ombudsman to maintain the principles as well as the perception of being independent and impartial.
Submissions to the committee on this issue appear on pages 5 and 6 of the summary. The Ombudsman had concerns about the drafting of the recommendation, but not the principle, and wished the recommendation to go further. Her comments are reproduced on the middle of the page. But the revision the committee made in the working paper, adding the words "by means of a special report to the assembly," was specifically opposed by the Union of Injured Workers, the public protector and the Ministry of the Solicitor General and Correctional Services.
The fifth issue has to do with the appointment of the Ombudsman. The key recommendation is recommendation 20. It is revised in the working paper and appears on page 2 of the working paper. In terms of the appointment of the Ombudsman, this recommendation says the Ombudsman Act should "be amended to provide that the Ombudsman shall be appointed by the Lieutenant Governor in Council on the address of the assembly" --
Mr Parker: Excuse me. That part we've got in front of us. I wonder if you could go straight to a summary of the submissions that were made, just a brief summary of the points, pro and con, in each case.
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Mr Kaye: Sure. The summary deals with the comments on this issue on pages 14 and 15. The Ombudsman favoured an appointment process which involved representation of all parties. The kind of committee she envisioned would be chaired by the Speaker with equal representation from all parties and any appointment could require the support of at least one member from each party recognized in the House who sat on the committee.
The Union of Injured Workers supported the committee's revision to the appointment process. The Ministry of the Solicitor General and Correctional Services supported the committee's revision. The Public Protector from Quebec made reference to unanimity being the best way for the assembly to express its confidence in an appointee but that, as a general rule, it might be unrealistic to expect unanimity and that a majority vote of two thirds would be adequate.
The next issue of the seven -- this is issue number 6 -- has to do with complaints from the public regarding investigations by the Ombudsman. I will just highlight what was said during the hearings on that issue. The recommendation in this area is recommendation 34. It was revised in the working paper and members can refer to it on page 4 of the working paper. The committee added the words, "for the purpose solely of assisting the committee in the formulation of rules for the guidance of the Ombudsman."
Comments received during the hearings appear on pages 20 and 21 of the summary. Here witnesses differed about this recommendation. The Ombudsman said that, if implemented, recommendation 34 would reduce the cooperation which the Ombudsman received from governmental organizations and other parties relying on the Ombudsman's duty to maintain confidentiality. The Union of Injured Workers and the Ministry of the Solicitor General and Correctional Services supported the committee's revision.
The final issue I wish to review deals with the composition of this committee. The key recommendation is recommendation 42. It was revised quite extensively in the working paper, as the committee recommended that recommendation 42 should be deleted. Recommendation 42 had contained a provision to change the membership of this committee so that it would consist of an equal number of government members and opposition members combined, with the chair being a government member.
The rationale for the committee rejecting this recommendation in the working paper appears at the bottom of page 4 and at the top of page 5. Comments on this issue are summarized on pages 23 and 24 of the revised summary. The Ombudsman here referred as well to the concept of a committee at the Legislature made up of the Speaker and an equal number of representatives from each party that could play a useful role in Ombudsman matters.
She also said it might be worth considering a return to the situation where the Legislature would deal with Ombudsman issues on an as-needed basis through a select committee rather than through a standing committee. A select committee would be convened to deal with Ombudsman reports and other matters as appropriate.
Other suggestions made to the committee in terms of its composition also appear on page 24 from David Warner, Speaker during the last Parliament, and again, references to the views of the Ministry of the Solicitor General and the Union of Injured Workers.
Mr Bruce Crozier (Essex South): Would it be reasonable to assume that the Ombudsman, in referring to a select committee, would think that select committee should take the same form as her previous comments? There was nothing said about the makeup of the select committee, so I assume she then would still agree that it should be made up of a Speaker and an equal number of representatives.
Mr Kaye: I don't think she was explicit on that, but you could argue it's implied.
Mr Crozier: I just wanted to get it on the record that's what I feel would be implied.
Mr Kaye: That completes my review of seven areas of contention. There are other areas which members may wish to look at which are contained in the summary, but just to recap: The two issues which the Ombudsman here and other ombudsmen opposed the most vigorously were the recommendation that this committee's mandate be amended to give it the explicit authority to monitor and review the exercise of her office's functions; and second, that her estimates come to this committee.
As I said, there were two recommendations in this regard: one being that the estimates would still go to the Board of Internal Economy, as they do now, but instead of being referred to the estimates committee, where they've never been looked at, be referred to this committee; and then the second recommendation being that the estimates, instead of going to the Board of Internal Economy before this committee, not go to the Board of Internal Economy at all, but come directly to this committee.
The committee said that if you adopt that recommendation, then you don't need the first one, where there's a role for the board. But those were the two issues in particular where the Ombudsman here and other ombudsmen expressed fundamental disagreement with what this committee was proposing.
I guess the third area of fundamental disagreement would have to do with the making of rules regarding the investigation of tribunal decisions.
The Vice-Chair: Thank you, Philip. Any questions or comments?
Mr Parker: My friend Mr Leadston wants Philip to review the recommendations from the top once again, all the way through, just to make sure he didn't miss any of the essential details.
Mr Kaye: Let's just say there are 44 recommendations in the 1993 report and I highlighted a select number, but they tend to be fairly technical and that may explain why it takes the time it does to review them.
Mr Parker: I think we've now reviewed the 1993 report. We have considered it and made a number of revisions to some of the recommendations. Those revisions have now been the subject of some public consultation. That consultation took place last winter. Philip has now reviewed with us the results of that consultative process. I think it now falls to this committee to move ahead on the matter and decide what it intends to do.
We can discuss that now or we can put that matter over to another day. Frankly, looking at the clock, I'm inclined to recommend that we put it over to another day, but I think we're at the stage where that's the next step for us to take.
Mr McLean: I guess it gives us some time to review the last three key recommendations that he's made. They need to be reviewed because I certainly have some serious considerations with regard to some of the comments. I think putting it over to another day will give us the opportunity to review that.
Mr Marchese: I agree with Mr Parker's comments. I think it is also useful to put these recommendations to be dealt with on another day in order to give some of the members some time to talk to each other as a caucus, I presume, about them so that if they have concerns, then we don't have to have a great deal of debate on some of them, so they can be sorted out.
There has been largely a great deal of agreement with our caucuses on most of these recommendations, but I think it is worthwhile having another week to review these recommendations and then come and deal with each one of them, with each recommendation, approve or make other amendments if we need to.
The Vice-Chair: Do we have agreement on that?
Interjections: Agreed.
The Vice-Chair: Would anyone like to propose a date, next week or two weeks?
Mr Marchese: Next week would be fine.
Mr Parker: I suggest we reconvene at the call of the Chair and aim for next week, but leave it to the Chair to confirm that.
Mr Crozier: Mr Chair, only to point out that when it's at the call of the Chair it's a little difficult to schedule meetings and so forth here. If it's on my schedule, it's there, is I guess what I'm saying.
Mr Parker: I reserve every Wednesday morning for the Ombudsman, Bruce.
Mr Crozier: Do you?
The Vice-Chair: I'm not sure when the Chair himself will be available, but I would propose now that we do it for the 11th. How's that? That's two weeks. Is that okay?
Mr Marchese: I have a recommendation. I actually believe that the further we put this matter off, the more the opportunity for people not to read this report, so I would recommend that we meet in fact next week to deal with it to give people a fresh sense of these issues that were dealt with today and force the members to review them for next Wednesday. If we put it off, I suspect we'll not be prepared adequately to deal with it.
The Vice-Chair: A very good point, but is it the consensus of the committee that we try and have the orientation meeting before that also, or does it matter? There was a move to have an orientation for the rookie members, if you will.
Mr Marchese: I think it should be organized before the next meeting, because a lot of the questions that arise tend to affect the decisions we make here. I'm not sure you need two weeks to do that, necessarily, but rather a quick three quarters of an hour.
The Vice-Chair: But if we're going to meet next Wednesday, we're going to be restricted in terms of having the orientation prior to that.
Mr Marchese: I appreciate that.
Mr Parker: I wouldn't recommend letting that get in our way. If there's a strong sense that we should get on with things, then I'll support that.
The Vice-Chair: Do we have agreement, then, that we can proceed next Wednesday? Agreed? Good.
Mr Crozier: Since I'm a rookie, what the devil is an orientation meeting? I thought we learned these things on the job.
The Vice-Chair: It was mentioned earlier, I'm not sure by whom -- someone suggested that --
Interjection.
The Vice-Chair: Yes. You don't have to go, but the option will be there.
Mr Crozier: What do you do?
The Vice-Chair: I guess the clerk is just going to try and explain the who does what, if you will, of this committee.
Mr Crozier: Oh no, we've already had one of those. We don't want that.
The Vice-Chair: Something along those lines. Attendance will not be mandatory, how's that?
Mr R. Gary Stewart (Peterborough): You'll learn how little accountability this committee has in the Ombudsman's department.
The Vice-Chair: We had a subcommittee meeting this morning and I think Mr Parker would like to speak to the issue that came up.
Mr Parker: We're into other business, are we?
The Vice-Chair: Yes.
Mr Parker: A letter has been received by the members of the committee. I certainly got a copy of it. I believe all members of the committee were copied on the letter. It says certain things. One comment in the letter suggests that the writer of the letter was a citizen who called upon the services of the Ombudsman and dealt with the Ombudsman's office over some period of time, including telephone conversations. At some point along the way, this person came to believe that his telephone conversations were being recorded by the Ombudsman's office. This apparently had been going on without his knowledge and he was concerned upon coming to the belief that this had been going on and that it had been going on without his consent or permission. This was the thrust of the letter that came before us. I frankly take no view on the matter but I think it raises a question that is fair for us to pursue. In view of that allegation, I would like to move that the Chair of this committee be instructed to address a letter to the Ombudsman asking her to comment on that allegation.
The Vice-Chair: Questions or comments? No. All in favour? Carried.
There being no further business, we will adjourn until 10 o'clock on June 4.
The committee adjourned at 1105.