Legislative Assembly of Ontario

The House resumed at 8 o’clock, p.m.

OMBUDSMAN ACT

Mr. Speaker: When we rose at 6 o’clock, I believe the hon. member for Riverdale was in the midst of some remarks. You may continue.

Mr. J. A. Renwick (Riverdale): Mr. Speaker, if I may, I’ll continue without résumé. The government ordering of business is so efficient that the estimates of the Ministry of Consumer and Commercial Relations, particularly that part of the estimates with which I am most concerned at this time, have just commenced in the estimates committee. So I only have another couple of hours of remarks on this bill.

Mr. L. C. Henderson (Lambton): Will the hon. member guarantee that?

Mr. Renwick: My colleague, the member for Lakeshore (Mr. Lawlor), who has an incomparable knowledge about the Ministry of Consumer and Commercial Relations, as he has about the Provincial Secretariat for Justice, as he has about the Attorney General, as he has about the Solicitor General’s department, is down in those estimates. I wouldn’t want to leave him there too long so I would think by about 10 o’clock I might have concluded my remarks and been able to join him down there.

May I simply pick up where I left off? I was speaking about the nature of the government, and about the fact that the executive power of the government is vested in the Crown, and is exercised by the ministers of the Crown, and throughout all of the vast proliferation of commissions, agencies, and boards, and all of the other paraphernalia of government which has proliferated to such a great extent in the 20th century.

I was referring to the gut section of the bill, Mr. Speaker, if I may use that phrase after dinner -- section 15: “The function of the Ombudsman is to investigate any decision or recommendation made or any act done or omitted in the course of the administration of a governmental organization and affecting any person or body or persons in his or its personal capacity.” Without going into the technical problems that are involved in the language of that bill, you will find, Mr. Speaker, throughout the bill a repetition of the phraseology “decision or recommendation, act done, or omitted to be done, in the course of the administration of a governmental organization.”

Then you go on to a section that appears to enlarge upon the power of the Ombudsman: “that the Ombudsman may make any such investigation either on a complaint made to him by any person affected, or of his own motion.” What could be more fulsome, what could be more complete, than that expression of what the Ombudsman and his authority is?

But then you immediately run into the restrictions which are placed upon it -- and this is the same clause which provides such a sweeping area for him to operate in:

“Nothing in the Act empowers the Ombudsman to investigate any decision, recommendation, act or omission in respect of which there is under any Act, a right of appeal or objection, or a right to apply for a hearing or review on the merits of the case to any court or to any tribunal constituted by or under any Act, until that right of appeal or objection or application has been exercised in the particular case or until after the time for the exercise of the right is expired.”

That’s one of the exclusions in the power of the Ombudsman. The second one is one which only lawyers could dream up: “ -- of any person acting as legal adviser to the Crown or acting as counsel to the Crown in relation to any proceedings” -- proceedings is not defined and nobody knows what that phraseology may mean in the bill.

Sufficient to say, the ambit of those restrictions upon the power of the Ombudsman in section 15, subsection 4 (a) and (b) is so broad that there is very little of substance left in what the Ombudsman may do.

I suppose the only way I can get at the question of what the power of the Ombudsman really is, and what he can do, is to try to understand what the government has done over the years in relation to the problems created for the government by Bill 99, and their tour de force to accomplish what the crisis was which the government faced at that time. Bill 99 was introduced into the assembly at the beginning of the 1964 Parliament, and before I had the pleasure to be sitting in this Legislature, but I know that the member for Glengarry (Mr. Villeneuve) will recall that, as will the member for York Mills (Mr. Bales), and a number of other members of the assembly.

They appointed the McRuer commission in order to deal with the crisis within which the government then found itself. Mr. Justice McRuer made a voluminous report dealing with this whole question of what one should do. So we have immense statutory provisions guaranteeing something called doe process to people, mainly relating to whether or not their licences granted by the government had been suspended, refused to be issued, revoked, or not renewed.

When you go through the whole of the operation of the implementation by this government of the McRuer commission recommendations, you find it is mainly involved with that whole question of whether or not the licensing function is being carried out properly. I am not denigrating what Mr. Justice McRuer said as he wrote his report. But the government’s sensation of the implementation of his recommendations is of such nature that it leaves very little, if any, ambit for the so-called fulsome provisions of section 15 in subsections 1 and 2 of the operation of the Ombudsman in the province.

Let me get at it another way. The funny thing is that it could only be under the impetus of a false problem that the government of Ontario could have got to the position where its so-called due process procedures are so elaborate and so unnecessarily duplicated in so many statutes of every conceivable sort and kind that every statute we get has this little code of procedure by which people can appeal a decision in which they are involved. We didn’t have to get to it. It was a matter of the law, but only by structuring it into practically every statute of the Province of Ontario of any significance so far as the powers of the province were concerned, was this government able to cope with the problem.

One of the greatest statements of English law, which I am quite certain the Attorney General (Mr. Clement) will recall, was the statement which was made in a case called Board of Education and Rice in 1911 by the then Lord Chancellor, Lord Loreburn, and concurred in by one or two other people of historic note in the history of the English legal system, the Earl of Halsbury -- I believe the minister would perhaps recall Halsbury’s “Laws of England” -- and by Lord Mersey -- whom he may not know so well -- Lord Shaw of Dunfermline -- whom I am sure he does know -- and Lord Atkinson, who concurred in both of the judgements which were delivered by the Earl of Halsbury and Lord Loreburn. It was very interesting that the counsel that were arguing the case were themselves not of insignificant note. It was Sir Rufus Isaacs, the Attorney General, Sir John Simon, the Solicitor General, and Rowlatt with him at that time.

Mr. I. Deans (Wentworth): I remember that.

Mr. Renwick: And for the respondents, Sir Robert Finlay was there, C. A. Russell, A. T. Lawrence and R. P. Hills. They weren’t even called upon in the House of Lords. And the House of Lords overruled Sir Rufus Isaacs and Sir John Simons’ arguments in that --

Mr. M. Cassidy (Ottawa Centre): Albert Finney was playing Hercule Poirot.

Mr. Renwick: -- case and they made one of the finest statements in English law that has ever been made, which puts to rest any suggestion that we need this immense, elaborate, protective code of due process for people, because if people are required to decide anything, all they have to do is read that judgement.

I am going to take a minute to read one paragraph out of that judgement to illustrate what I am talking about and what is at the guts of the problem that we are trying to deal with and we will continue to try to deal with, and we cannot deal with it if we proliferate the creation of all of these bodies to which you can appeal under each and every statute of the Province of Ontario. I quote from the judgement of the Lord Chancellor, with which the Earl of Halsbury concurred and also Lord Shaw of Dunfermline and the other law lords of the time. This is in 1911, and I quote:

“Comparatively recent statutes have extended, if they have not originated, the practice of imposing upon departments or officers of state the duty of deciding or determining questions of various kinds. In the present instance, as in many others, what comes for determination is sometimes a mailer to be settled by discretion, involving no law. It will, I suppose, usually be of an administrative kind; but sometimes it will involve matter of law as well as matter of fact, or even depend upon matter of law alone. In such cases the board of education will have to ascertain the law and also to ascertain the facts. I need not add that in doing either they must act in good faith and fairly listen to both sides, for that is a duty lying upon everyone who decides anything. But I do not think they are bound to treat such a question as though it were a trial. They have no power to administer an oath, and need not examine witnesses. They can obtain information in any way they think best, always giving a fair opportunity to those who are parties in the controversy for correcting or contradicting any relevant statement prejudicial to their view. Provided this is done, there is no appeal from the determination of the board under section 7, subsection 3 [of the Act which was then in question]. The board have, of course, no jurisdiction to decide abstract questions of law, but only to determine actual concrete differences that may arise, and as they arise, between the managers and the local education authority. The board is in the nature of the arbitral tribunal, and a court of law has no jurisdiction to hoar appeals from the determination either upon law or upon fact. But if the court is satisfied either that the board have not acted judicially in the way I have described, or have not determined the question which they are required by the Act to determine then there is a remedy by mandamus and certiorari.”

Of course the significant statement was that:

“In such cases the board of education will have to ascertain the law and also to ascertain the facts. I need not add that in doing either they must act in good faith and fairly listen to both sides for that is a duty lying upon everyone that decides everything.”

I can’t tell you how man statutes of this province we have had to amend simply to provide for boards, commissions, government ministers, government bodies and persons in the executive branch of government to understand what their obligation is. If they perform their obligation, nobody can alter their decision. But if they do not perform it in the way that Lord Loreburn set out, then of course it is subject to appeal to the courts.

What did we do, following the McRuer commission report, in the amendments of all of the various statutes which came before the assembly and in the immense number of amendments which were included in the Civil Rights Statute Law Amendment Act of 1971? What did we do at the same time? We provided for the Statutory Powers Procedure Act, the Public Inquiries Act amendments of 1971 and the Judicial Review Procedure Act of 1971.

If I could just take one of those, the Judicial Review Procedure Act of 1971 provides specifically as to the purpose of the Act. I will quote from the book issued by the office of the Attorney General of the Province of Ontario; it referred to matters which would be subject to judicial review. The matters subject to judicial review are described as being every statutory power.

“A statutory power means a power or right conferred by or under a statute:

“1. To make any regulation rule, bylaw or order; to give any other direction having force of subordinate legislation;

“2. To exercise the statutory power of decision;

“3. To require any person or party to do or to refrain from doing any act or thing that but for such requirement such person or party would not be required by law to do or to refrain from doing;

“4. To do any act or thing that would not for such power or right be a breach of the legal rights of any person or party.”

Then, of course, because they’ve used the term “statutory power of decision,” they define that as follows:

“A power or right conferred by or under a statute to make a decision deciding or prescribing the legal rights, powers, privileges, immunities, duties or liabilities of any person or party or the eligibility of any person or party to receive or to the continuation of a benefit or licence, whether he is legally entitled thereto or not, and includes the powers of an inferior court.”

All I’m saying is that the paraphernalia of the Statutory Powers Procedure Act, the Public Inquiries Act, the Judicial Review Procedures Act, all of 1971, and the statute law amendment Acts of 1971, mean for practical purposes that the ambit of the power of the Ombudsman, as it is curtailed under section 15 (4), is such as to leave little if any room for the activity of the Ombudsman. Because that states -- and I repeat it in order to close off that part of the argument:

“Nothing in this Act empowers the Ombudsman to investigate any decision, recommendation, act or omission.

“(a) in respect of which there is, under any Act, a right of appeal or objection, or a right to apply for a hearing or review, on the merits of the case to any court, or to any tribunal constituted by or under any Act, until that right of appeal or objection or application has been exercised in the particular case, or until after any time for the exercise of that right has expired -- “

I’m suggesting, if my interpretation is right -- and I wouldn’t know whether it is -- but my inclination is that the ambit of operation left for the Ombudsman under the statute, as devised by the government, is further curtailed by what this government has done.

That’s all I have to say on second reading with respect to the function of the Ombudsman. As you can see, not only is the role of this assembly substantially curtailed, the role of the Ombudsman himself within the terms of this statute is curtailed and circumscribed to the point where it is difficult to grasp a situation in which the Ombudsman would have a role to play.

For example, let’s take a woman with dependent children and no spouse, for whatever the reason. That person wants to apply under the Family Benefits Act for a benefit under that Act. A lot of members will recall the evening when we forced the government at least to give notice of the right of appeal to the board of review.

The statute provides for family benefits assistance and provides for an appeal to the board of review which was set up at that time and provides under the Judicial Review Procedure Act that if the hearing is not conducted properly or if there is a question of law which rises in connection with it, it can be dealt with under the Judicial Review Procedure Act, as was done quite recently in a case related to a person with whom the Society for the Mentally Retarded was very much involved. Do you understand that under the Act, that person, that woman without a spouse who wants to establish her right to family benefits assistance, in my reading of the statute, cannot go to the Ombudsman until she has exhausted all of those rights, including, if necessary, an appeal to divisional court of the Supreme Court of the Province of Ontario? Then she might be able to do so.

Of course, in England, when they drafted the bill they recognized that problem because they knew that the kind of people who were really going to benefit from the assistance of the Ombudsman were not people who wanted to get enmeshed in the immense procedural problems which have now been integrated into so many of our statutes, with the very best of intentions but with the most liberal -- if I can use that term -- inclinations. The procedures are so long-drawn out, the time encompassed in them is so unreal that the ultimate decision as to whether or not the Ombudsman would have jurisdiction in itself would have to be decided in the Supreme Court of Ontario. Of course, in England when they wanted to make that provision they had this to say:

“Except as hereinafter provided, the commissioner shall not conduct an investigation under this Act in respect of any of the following matters, that is to say, (a) any action in respect of which the person aggrieved has or had a right to appeal, reference or review, to or before a tribunal constituted by or under any enactment or by virtue of Her Majesty’s prerogative; (b) any action in respect of which the person aggrieved has or bad a remedy by way of proceedings in any court of law.”

That presumably, in somewhat different language, was what this statute was trying to say. Then it went on to say:

“Provided that the commissioner may conduct an investigation, notwithstanding that the person aggrieved has or had such a right or remedy, if satisfied that in the particular circumstances it is not reasonable to expect him to resort or have resorted to it.”

All I can say is I think that proviso to that clause merits the attention of the minister if he really thinks this bill of his is going to circumvent or be of some assistance to those people who want to have the benefit of the Ombudsman in that particular field.

Let me leave for the moment the problems faced by a complainant in dealing with the circumscribed function of the Ombudsman as it is set out in this particular bill. Let us look at the impediments which the bill imposes upon the performance of his functions. The main impediments, of course, are twofold. One is that because it is drafted by lawyers, because it is to be operated by lawyers, there is a lot of legal jargon in the bill which very few people understand and I say that advisedly. Very few people can understand what they are talking about in the bill, and then the other person who is to place the impediments in the way of performance by the Ombudsman of his role is, of all persons, the Attorney General of this province.

How your advisers could possibly have conceived, or you have accepted, the responsibility of placing those impediments in the way of the Ombudsman I cannot understand.

My colleague, the member for Lakeshore referred to one of them. Again, the phraseology is fine at the opening of the paragraph. No one could disagree with subsection 1 of section 26 that for the purposes of this Act the Ombudsman may, at any time, enter upon any premises occupied by any governmental organization and inspect the premises and carry out therein any investigations within his jurisdiction. How fulsome. I would think that’s what an Ombudsman would need.

Then, of course, the members opposite provide, as only members of a Conservative government could provide, the tipoff. Subsection 2 says that before entering any premises under subsection 1 the Ombudsman shall notify the head of the governmental organization occupying the premises of his purpose. So he doesn’t have any free and open right of entry; it is only after he has notified the guy who is in charge of the particular premises. If, of course, you translate that into a correctional institution in the province, or a psychiatric hospital in the province then you begin to understand the kind of problems that the Ombudsman is immediately faced with.

Then, of course, subsection 3 goes on and it is just unbelievable when you read it in the context of what the purpose of an Ombudsman should be. Subsection 3 says the Attorney General may, by notice to the Ombudsman, exclude the application of subsection 1 to any specified premises or class of premises if he is satisfied that the exercise of the powers mentioned in subsection 1 might be prejudicial to the public interest.

The Attorney General knows that clothed as a person with the responsibilities of his office there is no way in which the Ombudsman can go behind such a decision of the Attorney General. The Attorney General is front-running for the executive branch of the government and the Attorney General should not front run for the executive branch of the government. In no way. If it wants to be said, for example, that the Minister of Government Services in whom, as I understand it, is vested the ownership of all of the premises of the government of the Province of Ontario; if he wants to issue that kind of edict that it would be prejudicial to the public interest of the Province of Ontario so be it.

It is not the role of the Attorney General as the principal law officer of the Crown to be placed in the position that he is the one who is supposed to place the impediment in front of the Ombudsman about his right of free entry into the premises of the government throughout the province. There is no question whatsoever that if ever there was a mistake within the bill that is one of the serious mistakes.

Let’s look at the others. The conjunction is interesting in the other provision where the Attorney General takes it upon himself to impede the Ombudsman in the performance of his work. Mind you, I am talking about whether or not the Attorney General is the appropriate minister of the Crown -- the chief law officer of the Crown -- to be the one who is saddled with these responsibilities.

I refer to section 21 of the Act, in subsection 1, where the Attorney General certifies that the giving of any information, or the answering of any question, or the production of any document or thing -- and I think the Chairman of the Management Board (Mr. Winkler) will be interested in the conjunction of the next two clauses:

“(a) Might interfere with or impede investigation or detection of offences;

“(b) Might involve the disclosure of the deliberations of the executive council.”

I hope there is no necessary relationship between (a) and (b) in that particular section of subsection 1 of section 21 of the bill; or:

“(c) Might involve the disclosure of proceedings of the executive council or of any committee of the executive council relating to matters of a secret or confidential nature and would be injurious to the public interest, the Ombudsman shall not require the information or answer to be given, or as the case may be, the document or the thing to be produced.”

All right, I am not suggesting for one single moment a government which is charged with the responsibility of the investigation of crime and the protection of society with respect to crime, there should not be a method by which the Ombudsman will be provided with at least a hurdle before he decides that he would proceed with it, rather than a total barrier to his examination of the question. Of course, the proper way in which that should be done so far as interference with or impeding of investigations or detection of offences is concerned could be to provide for that responsible cabinet minister, officer of the Crown, minister of the Crown, or the Solicitor General, to make that statement.

But then it would be up to the Ombudsman, in discussion with the Solicitor General, to decide whether or not that claim of privilege by the Solicitor General, because of the overriding public interest, was one which should or should not be respected in the particular circumstances. If that question ever came to the point, which I doubt it ever would, in a frank and free discussion between the Ombudsman and the Solicitor General of the Province of Ontario, then the Solicitor General should obviously have the right to take the matter to the Supreme Court of Ontario in order to protect the prerogative of the Crown and the exercise of its responsibilities with respect to criminal law.

Let’s go on to the next one:

“Might involve the disclosure of the deliberations of the executive council or might involve the disclosure of proceedings of the executive council or of any committee of the executive council relating to matters of a secret or confidential nature and would be injurious to the public interest.”

Let me take the first one first. “Might involve the disclosure of the deliberations of the executive council.” I would assume the deliberations of the executive council must touch upon a vast number of areas of responsibility, many of which would not in any way, if disclosed, interfere with the proper functioning of the executive branch of government. But all that the Attorney General has to certify is that they might involve the disclosure of the deliberations of the executive council.

Where should that be decided? There is a secretary of the cabinet. The secretary of the cabinet is the one who is present at the meetings of the cabinet, as I understand it. The secretary of the cabinet is the one who has in his keeping all the records and proceedings of the cabinet. Then surely, as was done in the United Kingdom bill, the secretary of the cabinet with the approval of the Premier should certify as to whether or not this might involve the disclosure of the deliberations of the executive council.

We all believe and conceive and are responsible enough to understand that that may very well be the case. But surely the diffusion of responsibility requires the person who is responsible for it, not the law officer of the Crown, to get involved as the person who is the barrier between the Ombudsman’s functions in accordance with this statute.

Then I go on to the next clause, “Might involve the disclosure of proceedings of the executive council or of any committee of the executive council.” This particular part of it is qualified because that relates to matters of a secret or confidential nature and would be injurious to public interest.

If it is certified to the Ombudsman that this is so, and if the Ombudsman insists under the circumstances that he be entitled to discuss the matter further with the cabinet, the secretary of the cabinet or the Premier, then it should be possible that in his role of investigation -- on the understanding that this is his only role -- he could press to the point where there was some question about it, and the matter could if necessary be referred to the Supreme Court of Ontario. Here, the purpose would be to reach a decision as to whether or not the Ombudsman could require the information which was provided, or whether the certificate relating to the secret or confidential nature of the matters was required, or whether the matter would be injurious to the public interest.

All I am saying is that I think it is misconceived that the Attorney General of this Province of Ontario should be placed in that position in this bill. I would seriously ask that that particular clause be reconsidered as well as the provisions of the clause to which I have referred earlier, namely section 26 of the bill.

Then, Mr. Speaker, I referred a few minutes ago to the fact that the bill appeared to be enmeshed in legal jargon -- and to an extent it is enmeshed in legal jargon, because, subject to what I have just said, it goes on to provide that the rule of law with respect to the refusal to disclose any document or answer any question that would be injurious to the public interest does not apply in respect of an investigation or proceeding by or before the Ombudsman.

With respect to the narrow ambit of the field in which the Ombudsman can presently operate under the strictures which he is placed by this bill, there is little if any room to indicate that there is at the present time in Canada any rule of law with respect to the non-disclosure of documents to the Ombudsman.

I don’t know where that came from. I think it probably existed at the time of the Duncan and Cammell Laird case in 1942 in the House of Lords in England, which is now part of the law of Canada. It was overridden, of course, in the case Conway versus Rimmer, and another in 1968 by the same House of Lords. I am not going to deal at length with those two particular decisions, except to state that they deserve re-reading, because they tried to indicate the area in which the claim of Crown privilege -- if one can use that term -- was justified, and areas within which it was not justified.

Perhaps when we come to that section of the bill in committee, I will have the opportunity of reading into the record at that time the very succinct and brief remarks of Viscount Simon in the Duncan versus Cammell Laird case and the remarks of Lord Reed in Conway versus Rimmer and another case in 1968. Those cases said something very simple. That was that the vast majority of documents of the Crown, and the vast majority of the questions that might be asked of ministers of the Crown, are not involved in the protection of the public interest, but are matters of administration, matters of routine, matters which can be subjected to questions by an Ombudsman as matters of maladministration in the face of a very proper sense of grievance on the part of any citizen.

It made the Further decision that if there were to be a document that was the matter of the claim of Crown privilege, that it had to be produced to the judge in the particular case so that on viewing it he could decide whether or not that was a document on which, exercising his role as a judge, he should require that the claim of Crown privilege should be upheld.

All I am saying is that the Ombudsman must be placed in that position. I think he has got to be placed in that position with the widest possible range of documentation, or the widest possible range of refusal to answer questions -- always reserving to the executive branch of the government the right to take the matter to the Supreme Court if it were necessary to do so.

I do accept a relatively succinct statement as the crucial substance of what we are trying to talk about in limiting the area of the Crown privilege. It was said by Viscount Simon in the Duncan and Cammell Laird case in 1942. “The minister, in deciding whether it is his duty to object, should bear these considerations in mind.” He talked about a number of considerations, which we can deal with in the committee of the whole House. I’ll take the trouble, if I may, just to read this:

“In this connection, I do not think it is but of place to indicate the sort of grounds which would not afford to the minister adequate justification for objection to production.

“It is not a sufficient ground that the documents are ‘state documents’ or ‘official’ or are marked ‘confidential.’”

“It would not be a good ground that if they were produced, the consequences might involve the department or the government in parliamentary discussion or in public criticism, or might necessitate the attendance at witnesses or otherwise of officials who have pressing duties elsewhere. Neither would it be a good ground that production might tend to expose the want of efficiency in the administration or tend to lay the department open to claims for compensation. In a word, it is not enough that the minister or the department does not want to have the documents produced. The minister, in deciding whether it is his duty to object, should bear these considerations in mind for he ought not to take the responsibility of withholding the production except in cases where the public interest would otherwise be damnified, for example where disclosure would be injurious to national defence [which is not likely to be so in the government of the Province of Ontario] or to good diplomatic relations [which again is not particularly appropriate to the government of Ontario but the last one is] or where the practice of keeping a class of documents secret is necessary for the proper functioning of the public service.”

Surely, if there is ever a succinct statement of the only grounds upon which any documents should be withheld or any answers refused to be given to questions put by the Ombudsman, it is within the last part of that category. As I say, those questions deserve comment.

Mr. Speaker, I know you will be pleased to know I am coming to the end of my remarks on second reading of the bill.

I want to turn very briefly to the overall problem we face as a result of the McRuer decision -- the McRuer decision being all of the recommendations of McRuer. We have implemented them and provided this immense elaborate code of due process in the statutes. We have implemented them by providing the Statutory Powers Procedure Act of 1971; the Public Inquiries Act of 1971; and the Judicial Review Procedure Act of 1971.

That elaborate superstructure of due process, set out in those particular statutes along with the Civil Rights Statute Law Amendment Act of 1971, is stated, as always, to be one of the jewels in the crown of the Conservative government of the Province of Ontario. When the Premier (Mr. Davis) introduced this whole provision for the appointment of an Ombudsman, he rang all of the changes on all that aspect of it. I refer to the statement by the Premier of the province on May 22 in this Legislature in which he referred to all of the statutes to which I have referred.

I may say that when one has done that, one has to look at what was not done and one of the things which was not done was the question of a bill of rights, the question of an Ombudsman, the question of the right to know in the Province of Ontario and, if you are going to have this proliferation of appeal tribunals, an overall body which would have some jurisdiction with respect to assessing the rules and decisions upon which this proliferation of appeal tribunals was acting so that there would be some coherence about the procedures which were being carried out.

That would all become immensely top heavy and I think it’s the rule of the Ombudsman to prevent it becoming top heavy.

My colleague, the member for York South (Mr. MacDonald) who, as I said earlier, is unfortunately unable to be present in the chamber again this evening introduced what strangely enough is a companion bill to Bill 86, Bill 97, An Act to provide for Freedom of Information. Correlative to the performance by the Ombudsman of his function, as a new institution of government which we are creating by this bill, is the absolute essential necessity of the government providing for the right of the citizen to know -- which was the guts of the bill put forward by my colleague, the member for York South, and debated in the private members’ hour yesterday afternoon.

Unless there is a right of the citizen to know, we can never get over the façade of secrecy which cloaks the acts of the executive government of the Province of Ontario within a very lengthy tradition. That’s what all of these matters are about. How is the citizen to participate in, he close to, be knowledgeable about, and be able to know whether or not he is subject to an arbitrary or an improper or an unjust grievance?

That’s what the Ombudsman is about, and unless the citizen has an overriding principle of the right to know, subject to whatever exceptions must be carved out of it, which are the very exceptions I was trying to speck about earlier this evening as being very legitimate exceptions to the right to know, then you cannot possibly have a properly functioning Ombudsman. The Ombudsman in this bill, consistent with the position of the government of the Province of Ontario, must act only in private. What he can ever say publicly, even to members of this assembly, is by its very nature so restricted and so limited that I have come back almost to the point where I began in my opening remarks.

The Ombudsman’s whole purpose of investigation must be conducted in private and then he can only disclose to the limited extent necessary to support his recommendations, with no power of implementing his recommendations because of the vacuum to which I referred earlier. If he has to decide that the decision, recommendation, act or omission which is the subject matter of the investigation (a) appears to be contrary to law; (b) was unreasonable, unjust, oppressive or improperly discriminatory, or was in accordance with a rule of law or a provision of any Act or a practice that is or may be unreasonable, unjust, oppressive or improperly discriminatory; (c) was based wholly or partly on a mistake of law or fact, or (d) was wrong, then that is what he has to decide.

Yet that has to be decided in secret, his ability to report is limited and circumscribed, the freedom of expression is smothered because of the statute.

What is there really left when you come to what the government is about? Why don’t you put it all in place at once. Add a Bill of Rights, add the Ombudsman, add a right to know, look at all of the tribunals that use all of this due process procedure, establish appeals tribunals to override it all, and then appoint another commission to rationalize the immense superstructure that you will have created at that time. All you are trying to do is to say to people who have to decide anything that you have got to decide it fairly.

That’s what it is all about, the elaborate superstructure which the government is erecting for that purpose and the immerse paranoid fear which it has about disclosure, because it knows that after so many years in government there are areas in which they can be inefficient, there are areas of maladministration, there are areas where they will be subject to public criticism, there are documents which need to see the light of day which don’t see the light of day, there are people who are hurt and have no way of asserting their rights against the government, there are people who can’t exhaust all of the remedies which are available to them.

If our purpose in this bill and the purpose of the government was to create an institution of government, then I don’t think the government has done very well in creating that institution. You can’t substitute for the adequate conceptual creation of that invitation of government within our system of government by using the figure of a person who, to all of us, is acceptable as a first Ombudsman, to suggest that somehow, without the proper statutory authority for the creation of that office, without a proper respect for what he can do, that he will be able to fulfil the office to which he will be appointed and of which he will be the first and, I am certain, credible representative to fulfil that office.

You are simply asking too much and you cannot, in the Province of Ontario in this day and age, get away with the failure to provide a satisfactory statutory formulation of his office by appointing a man of the integrity, stature, acumen, ability, skill, wisdom and experience of Arthur Maloney to be a substitute for the defects in the government’s formulation of what it is about and in the presentation of this bill.

Mr. Speaker, it is a difficult bill to deal with. When the bill goes into committee of the whole House I trust we will have an opportunity to deal at some length with the problems which I have raised. They are immense in this bill and I think the ministry has simply, I hope, got the wit and the skill and the intelligence and the ability to think a little bit about what is being said in criticism of the bill to see whether there are not some amendments which, if made, at this point in the bill or during the course of the committee debate on the bill, will give it the kind of vitality and life that we all expected when this bill was to be introduced.

Mr. Speaker: The hon. member for Oxford.

Mr. H. C. Parrott (Oxford): Thank you, Mr. Speaker. I would certainly want to be very brief on this bill but there are some things that I would like to bring forward, mostly in the form of questions. Previously in the budget debate, I indicated that I might have some things to say on this occasion. If I can make it very clear, I am not in opposition to the principle of an ombudsman. But there are some companion features to the concept of an ombudsman that I would certainly like to investigate and have the minister’s reaction about, if I could.

The first thing that I would like to know is whether the Ombudsman would also have his duties extended into the area of municipal government. I have here a Royal Bank of Canada monthly newsletter back in November, 1971, where they were talking about an ombudsman. I think there is a rather interesting quote that perhaps stuns up my thoughts rather well on that issue:

“It is not only in federal and provincial affair’s that there is an opportunity for the exercise of the ombudsman’s function. As Hing Yong Cheng, a Colombo Plan scholarship student at Carleton University and now in the Ministry of Culture and Social Affairs, Singapore, wrote in ‘The Annals’: ‘Faced with a huge and complex body of government instrumentalities an aggrieved citizen may not even know where or to whom to complain. In a big urban centre, citizens may have the opinion that the municipality is remote from them and unapproachable. They doubt their ability to obtain satisfactory consideration of their complaints about many things -- taxes, licences, garbage collection, street repairs, snow cleaning, welfare assistance, zoning, fire safety, transportation, police, pollution, parking, airport noise and a hundred other things in the planning or administration of which something goes wrong.’”

I think I would like to know if indeed the government is contemplating that the role of the Ombudsman could be extended to investigate the actions of a municipal council. I think there is some real justice in this, because here in this Legislature we have the opposition to perform that function and we do not have a formal opposition in the municipalities. Therefore, I think many people would consider it is wise to allow the Ombudsman to perhaps play that formal role in a different forum.

I am also very interested to know the relationship that the Ombudsman would have with the members of this assembly. First of all, I think in the English system, or at least originally, it was only through the member that a complaint could be registered with the ombudsman. I don’t subscribe to that. I think that is a mistake. At the same time, I find it a little difficult to accept that the Ombudsman, who will have sufficient staff and will have sufficient facilities to do the job according to his own considered necessity, will be able to investigate and then report and suggest actions, whereas the member would have very little facility by comparison to do the same job.

I recognize there is truly a constitutional difference between the role of the Ombudsman and ourselves but, nevertheless, I think in the minds of many people -- our constituents -- the role is similar and indeed I think many of us accept that role willingly. We are going to be in a direct comparative position with the Ombudsman. I would therefore like to know if indeed we will have any special status with the Ombudsman; if he will have access to files that we would not have access to; if he could be expected to inquire within the ministry and receive information that the normal back-bencher should not have?

I have in the last two weeks had people suggest to me that indeed, the prime relationship between the Ombudsman and the people of Ontario should be through the member. I think so, for many reasons.

Mr. M. Shulman (High Park): The member wouldn’t get much business.

Mr. Parrott: We might not, but I think there is a possibility that given that opportunity it would be amazing to see the cooperative attitude and spirit that could develop and a great deal of benefit would derive from it.

The main point that I want to bring to the minister’s attention is tile role of the member as it relates to the Ombudsman. I have here a transcript of the debate in the Saskatchewan Legislature when Mr. D. G. Steuart, the Leader of the Opposition, made these remarks, and I would like to read them, as they are rather brief:

“Mr. Speaker, Mr. Attorney General, I don’t agree with an ombudsman for Saskatchewan. I don’t think we need one, but maybe we do. Maybe you would find that if we gave the MLAs the opportunity and backed them up with some assistance and the dignity and the independence of an office and some help that the job couldn’t be done by the MLA. If that is the fact, you can come back in a year or so and say, ‘We have tried that approach and while there have been some improvements, we still have too many citizens, too many groups in our province who have been poorly treated, mistreated or who have not been given justice by the government or by departments and we still need an ombudsman.’

“I am confident that if you took these steps you would do two things: you would upgrade the image, and I think that is important to all MLAs, regardless of which side of the House they sit on because you would allow them to do a much better job for the people that they represent; and, you would upgrade, in the eyes of the public, this institution, the legislative assembly and its members, and I think you would find that in this province at this time the position of the ombudsman was not necessary.”

I am not associating myself with the remarks that the ombudsman is not necessary. But the rest of the points that Mr. Steuart made on that occasion I do associate myself with. That is, if we were given facilities to upgrade our services, we would enhance our own image as members and the effectiveness of this Legislature. I want to make that a very strong point --

Mr. T. P. Reid (Rainy River): Wait until he gets in the opposition to find out how bad it is.

Mr. Parrott: I cannot apologize for the member’s ineptitude.

Mr. Reid: He is just talking about what we don’t have.

Mr. Speaker: Order, please.

Mr. Parrott: Perhaps you might ask, “Why do you feel so strongly on this?” It is for this reason. I think that most of the telephone calls that come to a member’s office are not in the nature of complaints. They are essentially looking for information. I wouldn’t like to venture a guess as to the net percentage of those calls that are related to information, but I get the strong feeling that most of the people who call my office want information.

Given adequate information, they are prepared to deal with their problem and frequently will accept, sometimes reluctantly, the decision that is rendered if they are convinced it is a fair one. In the absence of sufficient information on their particular concern, they go away feeling aggrieved. Therefore, I think it is most essential if the member is going to be compared -- and compared he will be -- to the Ombudsman, that he should have the same facility.

That brings me to section 8 of the Act. It says and I need not read it, but it is a very short one: “Subject to the approval of the Lieutenant Governor in Council the Ombudsman may employ such officers and other employees as the Ombudsman considers necessary for the efficient operation of his office,” and so on.

I think it is just rather amazing that we, in this House, do not have the same privileges that we are giving to one of our servants. That is rather a harsh term, perhaps, for the man we have appointed. Certainly we wouldn’t want to compare his salary to any of ours. But lest that be construed as a complaint about money -- I sort of interjected that -- that is not the point I’m trying to raise with the minister. Rather, it’s entirely that this man or this person rather, shall be able to order his own office, his own services, and we cannot. I don’t expect that we should be able to order our own services, but I would expect a rather equal and similar facility for ourselves.

In conclusion, I would offer one more thing to emphasize the point. I’m sure I need not take the time of this House to make a comparison between the federal members’ services and those of this provincial House. They are all too well known; there is a great difference in riding office expenses to do this very job I’m talking about. I know the members know the comparison and I won’t make it further.

I think, as I look at this bill, that everyone in this House agrees with the principle, as I do. But I’m very concerned that the members of this house will not have the same facilities offered to them to do the job, which I think is primarily one of information the people wish and need. Therefore, I would strongly recommend those changes, perhaps not in this bill, but it seemed like a very fitting vehicle for me to express these thoughts.

The closing remark I would like to make is that it seems to me that the Ombudsman will have all the amenities of his own desires, and he can’t change the rules. But we, who are able to change the rules, have very few of the necessary amenities that pertain to our office. I leave that with the minister.

I concur with one of the things the member for Riverdale said, particularly in section 15(4)(h). This Act in my mind is difficult to read. I accept I am not a lawyer, and I have great difficulty in this regard. But the member for Riverdale also made suggestion that, even as a lawyer, he found it a little difficult. There are two or three sections I find difficult, particularly 15(4)(b). It can be clarified a bit more. I just don’t understand that one at all. Since this is a bill which will be read by people less informed in the political process than myself, perhaps that particular section, which is very important to the duties of the Ombudsman, might be cleared up.

Thank you very much for the opportunity, Mr. Speaker.

Mr. Speaker: The member for Rainy River.

Mr. Reid: Thank you, Mr. Speaker. I would just like to say to my colleague who has just sat down, that when he experiences being in the opposition -- if he is one of those lucky few to return here in three or four months -- he’ll find the facilities provided even worse than they are now. But I can assure him that our Liberal administration will ensure he has the tools to do the job. From the other side we’ll read his comments in Hansard with interest.

Mr. Speaker, it is a pleasure to rise this evening to speak on this bill. I think the debate thus far has been an excellent one. It is most interesting to see the number of members who are interested in speaking and their comments on the bill.

I’ll try not to repeat in detail some of the arguments that have been made for and against, or in particular sections of the bill. As legislators, I suppose the first question we have to ask when confronted with any bill is whether or not the bill is needed -- and, if so, is the bill going to meet the particular need that supposedly it was drafted for?

As no doubt you are aware, Mr. Speaker, the first ombudsman was set up in Sweden in 1809; some time ahead of the Ontario government in this regard. Subsequently, a number of countries, mostly the Scandinavian countries -- Finland, Norway -- and then New Zealand, Ireland and the British Commonwealth all passed similar bills. It would seem, incidentally, Mr. Speaker, that something like six provinces in Canada have ombudsmen and I would think, reading the provisions of this bill that it seems to be modelled primarily on the Alberta bill although it differs in some respects.

You are aware, of course, Mr. Speaker, that many of those bills in Canada, in the provinces, were brought about by Liberal governments either pressing the government of the day if they were not in power or when they did gain power, subsequently passing the bill.

Do you think I could have a little quiet? I am sorry, Mr. Speaker.

Mr. Speaker: The Chair is having a little difficulty hearing the member for Rainy River. Perhaps we could have a little more order.

Mr. F. Laughren (Nickel Belt): Tell him to speak up.

Mr. Deans: Tell him to say something.

Mr. Reid: You are no doubt aware, sir, that the member for Downsview (Mr. Singer) has introduced a private member’s bill for some 10 years running in the Legislature and one really wonders if we could have this bill before us now if an election was not in the offing. I try not to sound too cynical about that but I recall it was the only thing of substance in an otherwise very wishy-washy Throne Speech we were treated to some months ago.

Mr. A. J. Roy (Ottawa East): Nothing personal, mind you, but that’s right.

Mr. Reid: The member for Oxford who just spoke is concerned about whether or not this bill will reflect or affect the individual responsibility of each of us as members of the Legislature. I suppose our responsibilities fall primarily in three main areas -- passing legislation; raising and spending money, and thirdly, acting as ombudsmen for the people we represent. I sympathize with the member for Oxford particularly because he comes from a rural riding, somewhat similar to mine, I would imagine, where, sir, we don’t have all the social services or the government agencies, both federal and provincial, enjoyed by the urban members.

If someone has a problem, there is not a government agency or government agent in a big glossy building either at the municipal level, the provincial level or federal level to whom he can go directly and say, “What’s going on?” As a rural member and a northern member, I don’t have those facilities available to me nor do the people I represent. As a consequence of that, sir, I think members in our particular situation find they have perhaps a greater burden or a greater work load of cases of this sort which they must handle if they are going to serve the people who send us here.

Quite frankly I find, Mr. Speaker -- and I am sure you are aware that in the past few years I have felt this -- this assembly and the role of the individual legislator has been downgraded by the Premier and the present administration. You are no doubt aware of my comments on the appointment of the three-person commission to look into government spending which, again, is a government function -- a direct responsibility of the cabinet, the Premier, the Treasurer (Mr. McKeough), the Chairman of Management Board and, of course, the assembly as a whole. I call that, I say to the member for Oxford, a downgrading of the role of the individual member of this House. I do not conceive the role of the Ombudsman in the same light. I see it as a supplement to the job the members do.

I would like to say that really if the position of Ombudsman operates properly, his position will be a supplement and an adjunct to the job of the member and be will be able to do a better job for the people of the province by serving in that way. He will be able, and will have the time and resources -- in that we come back again to the member for Oxford -- to carry the investigation perhaps one or two steps further, to assure the constituent or the person who comes before the Ombudsman that he has had his day. Perhaps a day in court is the wrong phrase, but that he has had his case thoroughly looked into and in the terms and words of the Ombudsman, who will be an objective person -- particularly in the case of Mr. Maloney, my colleagues inform me -- has had a hearing and is getting an objective answer to his problem.

I say to the member for Oxford in this respect that very often when people come to me with a problem or have come to other members, particularly members of the opposition, they say: “Well, you can’t help me because you’re on the wrong side of the government.” It’s a sad commentary that people should think that because you don’t happen to sit on that side of the chamber that you cannot do anything for them, but that’s the way this government has operated in the past, and in some areas still does.

I’ve heard the other comment that as a member of the government you can’t help them because you’re not going to get up and give the government hell. You just have to do what you are told and keep your mouth shut. So the sword cuts both ways and I say to the minister that I think this office of Ombudsman will resolve that problem for members on all sides.

I would like to quote from an article about the ombudsman, and the article begins, Mr. Speaker, by talking about the experience in other areas and the boards and commissions that have looked into the necessity of having an ombudsman or not having one. The article says:

“While the recommendations that emerge from each study varied somewhat, the reasoning behind the proposals was extremely similar. In each study, it became evident that as a result of the growth of government activities, the existing safeguards of the private citizen were not adequate to protect him in many of the situations in which he was increasingly involved with government administration.

“More discretionary decisions are being made by public servants than ever before, but paradoxically, the development of codes and procedures designed to control these personal decisions has resulted in the creation of hard inflexible rules which make bureaucracy in many instances insensitive to the problems of the individual.

“Even where machinery does exist to help the citizen resolve the problem, it often seems cumbersome, complicated and difficult to approach or to understand. Many people are simply unaware of the avenues of redress available. Also, once ignored or rebuffed, many persons are hesitant to approach any government official with their problems.

“An ombudsman, however, can deal with each complainant on an individual basis, and by reason of his position of overview and continuous exposure to problems, can identify problems that require reform. He can also help to standardize the individual complaint-handling procedures and to make them fairer in the eyes of the public.”

So the corollary of that, Mr. Speaker, is the fact that really what the Ombudsman will do, hopefully, and of course it isn’t spelled out in this bill and that is probably one of the biggest problems with the bill, is that the Ombudsman will suggest remedial action to be taken in cases where he finds maladministration or abuse of discretionary or delegated authority. Again I quote from the article, Mr. Speaker:

“Any remedial action the ombudsman may gain for an individual is a by-product of his continuing struggle to secure sounder government for the people in the future. As a result of the investigations which are undertaken, the ombudsman makes recommendations designed to improve government operations and service.”

I know that is perhaps a statement that would bother the member for Riverdale in view of what he said, but it doesn’t bother me because I think that has got to be one of his functions.

So the need for an Ombudsman is there. It has been said that the longest corridors that anyone could ever walk are the corridors trodden by the citizen seeking redress. Such corridors are said to be endless because he will be sent from one office to another till the day ends and all offices are closed and the corridors are empty. That, Mr. Speaker, not only happens to the individual citizen, but often happens to members of the Legislature.

Hon. J. T. Clement (Provincial Secretary for Justice): Damn right.

Mr. Reid: Mr. Speaker, I think the other more important matter as far as need goes is this -- and Chief Justice McRuer spent some time discussing it in his report. I would hope that I have the Attorney General’s attention on this because it is something that I personally feel very concerned about.

That is, the fact that we in this Legislature pass a bill -- Bill 86, Bill 92 or whatever -- and invariably in each statute there is a comment that under this bill, regulations may be made, etc., etc., the exact phrasing I am not sure of. The bill is given third reading, royal assent, and then is out of our hands. Somewhere, someplace in the myriad of buildings around Queen’s Park, a great number of civil servants sit down and write the regulations for the bill.

Having been a civil servant briefly a number of times in my life, I know how that can work. The civil servants sit down and write the regulations. Then, as I understand the process, the regulations go to the deputy minister or minister for their comments or their review. The regulations then go to cabinet where they are approved formally. The regulations are then promulgated in the Ontario Gazette and then, in effect, become law.

Is that correct? Is there anything wrong with that so far? That is the process. The members of the assembly as such do not see those regulations until they are promulgated in the Ontario Gazette. To be perfectly frank, I must admit it is not one of my pastimes when it comes to reading.

Hon. Mr. Clement: It is not a best seller.

Mr. Reid: It is not really a best seller, as my friend says. I am sure there are very few members, and I’m sure there really are very few ministers who bother to go over those regulations very carefully. I can give you an example under the Employment Standards Act, where there is a sheet of regulations about 2 in. thick; I don’t denigrate the Minister of Labour (Mr. MacBeth) but I am quite sure he hasn’t the time or the energy or the interest to go through those regulations.

Hon. A. Grossman (Provincial Secretary for Resources Development): The member is wrong.

Mr. Reid: All right, I defy any minister to get up in his seat and say all right, these are the regulations as pertain to these hills. It is impossible. None of us can do it. Maybe I am wrong in this; the Attorney General is making notes and he will tell me that the ministers are actively involved in the writing of those regulations themselves. He nods his head yes; I hope that is so. I find it a little difficult to believe.

Hon. Mr. Grossman: The member is away behind.

Mr. Reid: As far as the members of the House itself are concerned, we have no part and parcel in those regulations, and as the Attorney General knows, one can thwart the whole purpose of the bill or distort it by those very same regulations. McRuer spent some time in his report dealing with that and dealing with delegated authority. Really, I think that is what the passage or the action of the regulations is.

Maybe I digress, Mr. Speaker, but the House itself has no machinery to review regulations that flow from the bills we pass here. I hope the Ombudsman would come up with some kind of machinery or recommendations so that those same regulations -- which cause 90 per cent of the problems of the nature that the Ombudsman is going to deal with -- can be reviewed by this Legislature.

I think this is a serious problem and it is a serious deficiency. The government itself should have dealt with this matter a long time ago. But hopefully, maybe through the back door, we’ll have the Ombudsman deal with this matter to ensure that there is some kind of legislative control over the thousands, literally thousands, of regulations that are passed in this province every year.

At this point, I want to ask a question on which I was going to spend some time later. I want to ask the Attorney General, if I may at this point, about section 16, particularly subsection 2. This subsection reads: “All rules made under this section shall be deemed to be regulations within the meaning of the Regulations Act.” And subsection 1 says: “The assembly may make general rules for the guidance of the Ombudsman.” I’d like some clarification if you would, sir, as you make your reply on second reading. Does that mean that the regulations that are going to be necessary for the fulfilment of this Act will be brought into this House and debated by this assembly? If so, I would think that is the first time it has happened; but that is the way I read the bill. Unfortunately -- or fortunately I think more often -- I am not a lawyer, but I would like that explained to me.

If that is not the case, I would like to know how the regulations flowing from this bill are going to evolve. Is it going to be the usual procedure where the members of the assembly do not know about it?

To my mind, that really defeats one of the purposes of the bill, which is to bring some kind of rationale, some kind of responsibility, some kind of legislative authority to the regulations. If we allow the regulations to once again be drawn up by a host of civil servants, no doubt in the Attorney General’s office, who are not subject to any control in this Legislature, it would defeat the purpose. I say this most strongly to the Attorney General, if that is the case then I think it would abnegate one of what I consider the main reasons for this bill being brought forward.

I’d like to get into some other problems, but I would first like to reiterate the comment of the member for Riverdale, who touched on it peripherally. I am sure, because he is a lawyer, that he understands the bill; I think he made that clear. But I would like to reiterate the comments of the member for Oxford also.

I am not a lawyer but I recall from my political science courses and so on that a law, to be good law, must be one that can be understood. We don’t have to get to the lowest common denominator, but merely the people who are going to be served by this bill primarily are the poor people, the more illiterate people, the people who can’t afford a high-class lawyer such as the Attorney General was, or some of my colleagues were. The people mainly affected would ordinarily not go to a lawyer, they could not afford that advice. I think the Attorney General would agree with that. They are the people who wouldn’t know they should contact their principal member of Parliament to see if he could help them. They might be people who once had been rebuffed by some minor official, would be frightened off from pursuing their case, whether it was just or fair or not.

I would ask the Attorney General if he could simplify the language in this bill so that it is amply clear to one and all just what the purposes of the bill are. Not being a lawyer, the ordinary person wouldn’t understand what the devil you are talking about. He simply wouldn’t understand, if he had written a government ministry because he got a decision by way of letter turning him down for something, or revoking a licence or whatever, and you referred him to section 15 of the Act to Provide for an Ombudsman to Investigate Administrative Decisions and Acts of Officials of the Government of Ontario and its Agencies.

I’ll read that section, and perhaps the minister can do something about it. I am sure a private citizen would throw his hands up in despair or incomprehension and say: “I’ll just accept what has happened to me.”

I wonder if it’s not possible for the Attorney General to set out in reasonable, simple language just what the Ombudsman is going to do, because I don’t find this is really clear.

Perhaps the legalese is necessary; but again, if the people who should be served by this bill are going to be served by it, they must understand in the simplest terms what it is all about; and I don’t think they will do that, either flowing from this bill or from the debate, because it is, perhaps, a very involved and sophisticated debate we’re having on this bill.

Somehow the Attorney General has to come to grips, I think, with that particular aspect. Otherwise the very reason for the bill being brought forward will be defeated, if those who should benefit from it do not understand what it’s all about.

I’d like to raise a minor point, Mr. Speaker, and it has to do with section 4 of the bill and the tenure of office of the Ombudsman. The bill provides for the Ombudsman to be appointed for 10 years. I’m not personally acquainted with Mr. Maloney, as I’ve said. My colleagues, who are always very fair and objective, inform me he is probably the best person in the whole Province of Ontario for this particular job.

I might say, by way of aside Mr. Speaker, when my colleagues tell me that Mr. Malone is the best, rather than one of themselves, I can only assume he is held in high regard by his peers in his profession and will be a credit to the job and a credit to the Legislature.

Mr. J. E. Bullbrook (Sarnia): We meant present company excepted.

Mr. Reid: I thought perhaps that was the case, I see.

In any case I raise the fact that I understand the Manitoba legislation provides for an appointment of six years on the basis that perhaps in a term of 10 years an ombudsman might lose his objectivity -- I believe that is the word they used in that report -- and so they thought a shorter term might be better.

I make no comment on that. I just raise it and would perhaps like to hear the Attorney General make some mention, but it really is a minor point.

I’d like to make some comments on section 18, subsection 3. That particular clause provides that the Ombudsman may inform the party why he acted or did not act, and again it’s permissive legislation. It bothers me in this regard, Mr. Speaker, because I very often get from my constituents the fact that they are upset angry and frustrated when they get an answer from the government saying no and no reason is given. There’s no reason given. “Your application is turned down;” “You can’t do this”; “You can’t build a house on that particular lot”; “Your application for employment is turned down”; all without any reason being given.

It would solve a lot of our problems, in the first instance, if government or the various ministries would, in giving a reply, give reasons, because people are usually satisfied if they are given a reason. When they don’t know, that’s what causes the problems and that’s what causes the confusion.

I would say of subsection 3 in section 18 it seems to me that, because we are putting him in that position, because we are saying to him: “Investigate and you find out why this happened,” the Ombudsman should not be able to go back to somebody and say: “I’ve looked into it and you are just out of luck.” But that’s really what it’s going to amount to.

I would like to see that section changed to say he “shall” tell them. Tell them if it’s frivolous; tell them there really isn’t anything in the complaint: tell them they are wrong and the reasons for it. Alternatively, tell them why they are right. Otherwise we are just continuing the existing problem, as I see it.

I would like to ask the Attorney General about section 20, subsection 3, and again I am not trying to repeat what’s gone before it, but subsection 3 subject to subsection 4: “No persons bound by the provisions of any Act other than the Public Service Act to maintain frequent ...,” etc. I wonder how many people come under the purview of that section? Again, it is like subsection 4 of section 15. How many people does that affect? One almost gets the feeling that all the doors are being closed one by one by this Act.

First of all, under subsection 4 of section 15 they are out of it if they don’t go through the whole legal procedure -- the review boards, the review courts and so on -- and now the Ombudsman can’t get the information if they come under the purview of these other matters. One gets the feeling that all the doors are closing down the corridor, and that maybe there isn’t going to be any light shining into the corridor after all. I hope that is not true, but perhaps the Attorney General can answer.

Subsection 22: My colleague the member for Sarnia touched on this, and I won’t go on at length, but it bothers me there is no provision in the bill for the members to debate the report that is laid in front of the assembly by the Speaker. I think it should have, incidentally, the same provisions as the Audit Act, “within 10 days of the session taking place.” But there is no provision for the Ombudsman’s report to be debated. I think there should he, because we have a similar problem, if I may digress, Mr. Speaker, with the public accounts committee.

After we study the Audit Act; after we make our recommendations; once I, as chairman of this particular time, table that report that is the end of it. The government may do with it what they will, and up to this point in time they have done very little with the public accounts report.

It seems to me we should have a mechanism so that we can debate the report of the Ombudsman, because in the final analysis it is going to be public opinion and the glare of publicity that may affect some changes.

I am also concerned, Mr. Speaker, about subsection 4 of section 21. It says that the Ombudsman may report to the Premier and that the Premier may then take action or not take action. There are other provisions earlier in the bill, Mr. Speaker, where the Ombudsman will report to the ministry involved and the officials in that ministry -- I would assume that is the deputy minister and the minister. Therein lies a great problem and I don’t know how we resolve it.

In the case of Nova Scotia, when they set up their ombudsman, one of his first tasks was to investigate the firing of an employee of the Department of Highways in Nova Scotia. The employee contended, Mr. Speaker, that he had been fired because of his political leanings; in other words he was not a supporter of the government in power and, in fact, supported the opposition party. You’ll know, Mr. Speaker, that they have that happy instance in Nova Scotia where they only have two parties.

The ombudsman looked into the matter and found that as far as he was concerned, the employee had been fired for an unjust cause and he recommended to the deputy minister of the Department of Highways that the employee be rehired; he had been unjustly fired. The Deputy Minister of Highways in Nova Scotia made a public announcement saying that indeed the man would be rehired. Then the Minister of Highways came along and said no, the man would not be rehired. He was fired because he was a careless employee or for whatever reason; but the man would not be rehired and he was not rehired.

Mr. Speaker, that particular instance obviously undercut altogether the position and the credibility of the ombudsman, and this is where we are going to have a real problem, because if the government is not prepared to accept the advice and recommendations of their Ombudsman then the whole exercise is meaningless; if that happens his effectiveness is finished. So I bring it to your attention, Mr. Speaker, and I would hope that the kind of situation that obtained in Nova Scotia will not happen in the Province of Ontario.

The member for Oxford was worried about what effect this would have on the role of the individual legislator. I don’t want to get off on a pet peeve of mine, but about 1½ or two years ago -- I can’t tell how long it is -- the government set up something called the citizens inquiry branch, which was under the auspices, at that time, of the Ministry of Government Services. As I understand it, it was set up to employ some of the employees who had been let go from the Toronto Telegram.

Mr. Bullbrook: It was the “Frank Drea Benevolent Fund,” that’s how it was known.

Mr. Reid: That’s right. I often wondered if he got a commission or a percentage for finding them.

In any case, the citizens inquiry branch was set up and it has been trying to operate, Mr. Speaker, as an ombudsman. This is what they tell me they do. We are paying them, I believe, in this year’s budget, now under the Ministry of Culture and Recreation, something like $160,000. I would hope the Attorney General would recommend to his colleague that he save the taxpayers of the province $160,000 and abolish it.

Mr. G. A. Kerr (Halton West): Or make it part of the Ombudsman’s office.

Mr. Reid: Or become part of the Ombudsman.

Mr. Kerr: And cost $200,000.

Mr. Reid: In any case, so far it has been worthless; perhaps under the Ombudsman they could actually accomplish something.

I would like to end with one last question of the Attorney General, through you, Mr. Speaker, and that concerns one of the Acts in one of the provinces -- I might be wrong on the detail, but I believe it specifically excludes the Workmen’s Compensation Board on the basis that this is not really a manifestation of government. I would like to ask, if I may, of the Attorney General, is the Workmen’s Compensation Board going to come under the purview, review and investigative powers of the Ombudsman? The minister nods yes, it is.

Well sir, the Ombudsman is going to be a very busy man with that alone. I am glad to hear that, because I think probably there is more discretion there that affects more people individually than anywhere else in government, particularly those who often are not in a position to help themselves. So I am very glad to hear that in fact the Ombudsman will be dealing with Workmen’s Compensation Board decisions.

Mr. Speaker, I will wind up by saying we support the principle of the bill. It is not as strong as we would have hoped, it is not as clear as we would have hoped, it is not as simply stated as we would have hoped, but we hope that in committee we will be able to amend the bill to make it more in line with the bill that our friend and colleague, the member for Downsview has introduced for the last 10 years.

Mr. Speaker: The hon. member for St. George.

Mrs. M. Campbell (St George): Mr. Speaker, first I would like to express my appreciation to the member for Ottawa Centre who has accorded me the opportunity of speaking in his position at this time. Therefore I am going to be as brief as I can to cover some of the concerns I have in point form.

In the first place, of course, it’s apparent to every one of us, and now I think to the Attorney General himself, that to most of us who have looked forward to this legislation for a long time, this Act is a very large disappointment. I don’t understand why this government can’t for once bring in this kind of legislation and make it meaningful. But unfortunately, wherever we have new legislation of this kind, we have it circumscribed in all sorts of very difficult ways.

First of all, of course, it was never intended, and I am sure that it can no longer even in the minds of government be intended, that the Ombudsman is in any way going to make members of this Legislature obsolescent in their duty to their constituents. I think that has to be made abundantly clear by amendment of this bill as we go to third reading.

If one looks at the bill clause by clause, and I am not going into that clause by clause at this point but let me just look at what has been said in section 19, for example, here you have the provision for the Ombudsman first to inform the head of the governmental organization of his intention to make an investigation. It will be conducted in private, then there may or may not be a hearing. The Ombudsman may in his discretion, at any time during the investigation and after, consult any minister.

Then we get to subsection 5 which says: “Where an investigation relates to any recommendation made to a minister, the Ombudsman shall consult.” It is interesting that we have these two paragraphs dealing with what may happen either during or after.

Then in subsection 6:

“If the Ombudsman is of the opinion that there is evidence of a breach of duty or of misconduct on the part of any officer or employee of any governmental organization, he may refer the matter to the appropriate authority.”

I would dearly love to know what was in the minds of the draftsmen as to who that appropriate authority would be, or if in fact we have ongoing consultation with the minister involved. Just where does it get us and what happens as a result of that?

We have had a discussion of section 22, which to me obviously, and I hope now obviously to the Attorney General, is lacking in many respects. It certainly ought to spell out what the power of the assembly is, if in fact there is no way in which, having received a report, the assembly can do anything about it. That’s an obvious oversight and certainly is going to be corrected before we pass this bill.

It concerns me that the report goes to the appropriate governmental organization and then following the report, if there is no action, there are again choices. He may send a copy to the Premier and he may make a report to the assembly; and presumably if he does either of those things, then he will send a copy of any comments made by or on behalf of the governmental organization affected.

One does not know at this point, as I see it, Mr. Speaker, what happens to the poor claimant during all this. When is he informed? Is he informed in accordance with the earlier section, section 18, which states that he shall inform the complainant of that decision? Where does the complainant find out about what has been happening in all these cases where nothing happens as a result of the report of the Ombudsman? At what point does he know; before or after the assembly knows?

There is no question but that this has to be tightened up. I even have deep concerns, Mr. Speaker, with section 21 and the absolute right of the Attorney General in these cases. In the normal course, I agree with my colleague, the member for Sarnia, and his reflections on the matter of the right of the government to do its business as elected representatives. One of the things, however, which I suppose causes me concern, and which ought not to be reflected in an objective perusal of legislation, is the way in which this government has used the guise of executive council deliberations to prevent the Legislature from getting information on reports and other such matters.

Mr. Bullbrook: That is quite a valid comment.

Mrs. Campbell: This causes me concern. If it had not been for that kind of practice, and we saw it under day care, then I wouldn’t have this hesitation and would wholeheartedly support my colleague in his statement. But when this is left, at this point in time at least, for the Attorney General to make that decision, and when there is apparently no way one can even find out about this kind of decision, then I have concern.

The way in which the Ombudsman would report in his annual report in fact bothers me. Again, I have to concur with much of what has been said before, that that particular kind of report should contain something other than bare statistics of numbers of cases heard and numbers of decisions made or not made or whatever. But there isn’t any guidance.

I have to say, Mr. Speaker, that I am very deeply puzzled by the fact that someone as fine as Mr. Maloney unquestionably is, would have accepted this office on the basis of this legislation which is before us. I cannot understand that. If in fact he was aware of it, then it is a puzzle to me. Perhaps I’m misreading it, but I don’t see how it could be deemed that would be the case in view of the very evident warding of the legislation itself.

Mr. Speaker, I am grateful for the opportunity of adding my voice to those who subscribe to the principle. As a matter of fact, I think the member for Downsview would slay us individually if we didn’t, but we do accept it without that threat. Surely this is important enough that the person in this position should be given that quality of objectivity and that opportunity to range very widely in trying to assist the people of this province. I wonder, for example, if one of the propositions this Ombudsman would be involved in right off the bat -- and the NDP has suggested it and I’m wholeheartedly with them and I’ll be there too with all sorts of things if I’m permitted to do so -- is the question of eligibility for GAINS as a disabled person vis-à-vis a permanently unemployable person. Is he going to have the right to go into this type of case; or are we going to find he is precluded from looking at the medical advisory board connected with this? I would assume that that would not be so. But then is there at any point the suggestion that at some place this will be precluded by the deliberations of the executive council and decisions which they may have made on that particular issue?

What is he going to be allowed to do with reference to Ontario Housing Corp., since we have not been able to get any information? Is he going to be precluded here too; or is he going to have a full opportunity to look into those situations? I want the answer to that.

Mr. Bullbrook: He will be absolutely precluded. There is no doubt about it. Under this statute he is absolutely precluded, as we are. He couldn’t look at the minutes of Ontario Housing Corp., nor can we. We must see that he can. I’m sorry, I wanted to --

Mrs. Campbell: I am delighted to have support from so noble a colleague.

Mr. Bullbrook: -- relieve the member’s mind on that; there is no equivocation.

Hon. Mr. Clement: Thank you very much. I am enjoying this speech very much.

Mrs. Campbell: Well, this is a concern of mine. I think I may say it is shared by every one of my colleagues in this caucus.

Mr. Bullbrook: Right.

Mrs. Campbell: I want assurance that this is a matter that he can look into.

Mr. Bullbrook: Very important, really.

Mrs. Campbell: And I have no assurance from this bill. Mr. Speaker, thank you very much.

Mr. Speaker: The hon. member for Ottawa Centre.

Mr. Cassidy: Thank you, Mr. Speaker. I have a number of comments to make. I would start by echoing the comments of the member for St. George. It is a shame that the legislation, now that it has come before us, has a number of deficiencies.

I have been looking at the genealogy of the legislation. I think what has happened -- if one dares to say it -- is that the people in the minister’s department who were told to prepare an ombudsman’s bill perhaps didn’t give it the necessary thought that they might have taken on the bill at this particular time.

The genealogy of this bill is as follows. As far as I can trace it, it goes back to the New Zealand bill. I am hoping to get a copy of that bill when we get into the clause by clause study.

The basic provisions of this bill are those that are in the New Zealand bill, according to descriptions I have been able to find in the literature. It is significant, Mr. Speaker, in terms of the public interest in this legislation, that the literature, the hooks by Donald Rowat and by Martin Gellman, I think it is, were all available in the library at the time the debate began.

It began in New Zealand. The New Zealand legislation was then copied in the Alberta legislation of the mid-1960s. It was subsequently copied in the other provincial hills in the western provinces, and I believe in New Brunswick and Nova Scotia. The Quebec legislation does differ a bit, because of a different tradition of law there.

It is interesting that many of the provisions of the New Zealand, Alberta line of legislation were also followed in the case of the federal ombudsman for languages, the commissioner for official languages in the Official Languages Act of 1969.

Now it is also interesting, I think -- and I’m sorry that the member for St. George has gone --

Hon. Mr. Grossman: That is what the member gets for letting her go ahead of him.

Mr. Cassidy: -- it is also interesting, that in terms, I guess, of our concern in this particular bill, the fact that the bill which was drafted by the member for Downsview for an ombudsman or a parliamentary commissioner was also in the same genealogy. There are one or two changes, but essentially this is the same bill that is now being put forward by the government.

I have to express regret personally on the behalf of all of us in this House, that year after year we applauded as the member for Downsview put forward his bill, but that none of us really sat down and gave the hour or two of work that was needed in order to see the deficiencies of this legislation. It began in a small rural country 10,000 miles away, in New Zealand, whose problems are traditionally a bit different than those of a heavily-urbanized, industrial province such as the Province of Ontario.

In other words, it seems that the time was right for reconsideration of that model; and I will come in a few minutes, Mr. Speaker, to talking about the alternate model which I think should have been given more careful scrutiny, that is the Swedish ombudsman. Although the traditions of administrative law and of government in many cases differ in Sweden from those in Ontario, nevertheless they now have 166 years of experience with the parliamentary commissioner or ombudsman. It’s an effective working device in Sweden and one, I think, that we might have looked at more carefully.

One can’t help deploring the fact that where changes were made from the Alberta legislation or the New Zealand legislation, they appear to have generally been made to weaken the legislation. “Shalls” have become “mays”; certain powers to restrict entry to the ombudsman, which do not exist in the original legislation, or the models from which this legislation was drawn, have been inserted; and in other subtle ways the legislation has been watered down.

It is a pity the government sort of sawed it off. They took a bill which probably should have been toughened up in the first place and then decided they would do a compromise and weakened it in a number of different areas because civil servants were expressing concern about it.

Clearly, from our Canadian experience and from the experience in New Zealand, a bill in something like the present form can work. As a number of members have said, it’s a pity that so much of its workability will depend on the personality and the energy of the person who is appointed to be the Ombudsman. It’s a pity as well that everything in the bill seems to direct the Ombudsman to work towards individual cases and to work strictly within the confines of the cabinet and of the civil service, while assuming a very low profile as far as the public is concerned.

Some of the ombudsman legislation which has been used in the United States and in other jurisdictions specifically directs or encourages the ombudsman to go public. This is not done in the model legislation that we have drawn from the common law countries, and is not done in this particular case.

We are, therefore, in a position of wondering, to begin with, whether Mr. Maloney, when he agreed to take the job, looked at the bill or simply accepted the assurances, which I know he had from the Premier, that he would be independent and would be able to more or less carve the office of Ombudsman in his own mould?

That freedom to mould the office and to shape the office exists, as I’m sure was promised by the Premier. What doesn’t exist is any particular encouragement in the legislation. In fact, the legislation will be frustrating and a positive hindrance to Mr. Maloney to the point that he will be faced with a choice, either he succumbs to the clubbiness that is encouraged at the senior level of the civil service -- and I hope that doesn’t occur -- or he will be coming before this Legislature in a year or two, Mr. Speaker, with recommendations to permit more openness and more public access in the legislation.

The basic provisions, and I’m drawing from Donald Rowat in this, for ombudsman legislation are that the ombudsman be an independent officer of the Legislature. On this our bill agrees he is an officer of the Legislature, but does it in rather grudging terms. It is also basic that he deal with specific complaints, either from the public or matters which he looks into on his own initiative. That is certainly provided for in the bill. He must also have the power -- and I quote from Rowat “to investigate, criticize and publicize, but not to reverse administrative action.”

The emphasis in the writing on the questions of ombudsman is on the power of publicity. If the ombudsman’s prestige and independence are not sufficient to persuade the executive or the civil servants to undo unjust or wrong administrative actions, then the ombudsman has got to use the vehicle of publicity either to report to the Legislature or report in some other form. But that is discouraged in our legislation, and it’s a very grievous lack in this particular bill. One would have to agree with Rowat’s criticisms, I think.

I wonder in fact, and the minister might say, whether Prof. Rowat, who is an acknowledged international expert in the field of ombudsmen, was consulted in the formulation of this bill. One would have to agree with a number of his criticisms about the model we have before us today.

In the first place, as he points out, provincial administrations are small enough to permit a very close contact between the ombudsman and senior officials of the government. That’s a bit less time in Ontario than it is in the smaller provinces. Nevertheless, there is a danger there; therefore, the legislation should lean over backwards in order to ensure the independence from the executive of the ombudsman, and that is not done in this particular bill.

For example, although I can’t remember whether the salary is laid out in the bill here or not, certainly changes in the salary are to be decided by the Lieutenant Governor in Council. As I recall, I think the salary will also be fixed by the Lieutenant Governor in Council. Therefore, fearing that we may have a rapid rate of inflation over the coming years, a government that decided they didn’t like the way the new Ombudsman was doing his job could be sticky about granting pay increases in order to keep the position of the Ombudsman relatively low in the salary scale. I presume the contract or agreement that was reached with Mr. Maloney was not for $60,000 a year flat with no changes over the period of 10 years.

Next, as was pointed out by the member for Oxford, there were many instances where municipal officials were responsible for administering provincial legislation. We have local health inspectors, local boards of health and local VD clinics that administer provincial law. We have general welfare assistance, a provincial statute which is administered at the municipal level. We have local applications on matters of planning and zoning where there is such a jumble of municipal and provincial jurisdictions that it is almost impossible to know who is doing what to whom.

I think there is a very real problem there about the jurisdiction of the Ombudsman over matters which may be administered by municipal officials. The definitions here insist that it is only an administrative unit of the government of Ontario or any agency thereof. I would suggest that a municipality, although it’s a creature of the province, would not really fit into the category of being an agency of the province, or at least not yet. I think that this matter, if it can’t be resolved during the course of this particular debate, should probably he put on the agenda of the Provincial-Municipal Liaison Committee, and the municipalities should be asked to work out means by which the Ombudsman may exercise a certain amount of administrative oversight on things that they do as well.

In Denmark there was a good deal of resentment and resistance by the municipal officials to the ombudsman looking into what they did; under a legislative framework which is similar to ours, where the municipalities also are creatures of the one senior level government. But they were eventually brought in.

I recognize, Mr. Speaker, that there will be some evolution in the application of the ombudsman law here in Ontario. When I talk about the Swedish experience, it is not to suggest that every aspect of that law has to apply as of tomorrow here in Ontario. I do suggest that a certain reforming instinct and a certain instinct for innovation might have been useful, both because of the needs of this jurisdiction and also because within our federal system we do have the opportunity to benefit from the experience of the four or five other jurisdictions that now have functioning ombudsmen; and that opportunity does not appear to have been accepted.

Next is the question of the courts. Court actions are completely excluded under the terms of this particular bill as far as the ombudsman is concerned. As far as the superior courts are concerned, there is no question that there is an elaborate structure of rights and of lawyers to enforce them. There are law journals and appeals and appeals, and there’s the Supreme Court of Canada. It’s an area where one questions whether the Ombudsman should tread.

Most of the citizen’s exposure to the justice system, however Mr. Speaker, is at the lower level in the provincial courts. And in those provincial courts, despite the availability of legal aid, it’s difficult for the average citizen to use the appeal process. It’s expensive, it’s time consuming, it’s difficult to understand, there may be language difficulties, there are all sorts of problems which surround access to the appeal process. In addition, the appeal process is very formal, and in some things it may be that the particular abuse about which the citizen is complaining is very slight.

One of the articles mentions a case, in Alberta I believe it was, where a man had been assaulted and robbed of $50, and the Crown took $50 from his assailant and entered it as evidence in the particular case. The attacker was convicted and was duly sentenced, but the $50 was not returned to the man who had originally been attacked. The Ombudsman was asked to look into it. He thought that was pretty dirty pool, that this poor guy who had already suffered the indignity of being attacked, had also had $50 taken and held by the Crown for him for a while and should now have to pay $50 for the dubious pleasure of seeing his assailant convicted. The $50 was returned.

Now I don’t know whether that particular matter is a judicial matter or an administrative matter. The question is probably moot. But nevertheless that --

Hon. Mr. Clement: It is judicial.

Mr. Cassidy: That is judicial? In that case it probably is excluded from the purview of the Ombudsman in Ontario.

Hon. Mr. Clement: No; until the time for appeal runs out.

Mr. Cassidy: Until the time for appeal runs out. But what is the time for appeal, I don’t know whether it’s a year or two years.

Hon. Mr. Clement: Oh come on, 30 days.

Mr. Cassidy: It is 30 days. But the point is that because it is judicial it may be that he can’t get into it at all because matters before the courts are strictly excluded.

The next thing is that the courts are, in theory, excluded from considering matters on their merits, where administrative decision-making discretionary powers are involved. But in fact there are, I am sure, a number of occasions -- and the minister, being a lawyer, will be more expert in this than I am -- there are a number of occasions where the courts, in fact, really decide matters on their merits and not just on points of law.

And there again, there should be cause for the Ombudsman to get involved. Where the courts are an extension of administrative procedures, as happens in a number of cases, it would seem that the case should come under the purview of the Ombudsman and not be excluded.

The legislation, almost in its entirety -- this New Zealand-Alberta line of legislation -- mentions that the ombudsman should have the power to review recommendations that are made to a minister, and it’s an example of the way in which the government has weakened a bill which probably already was ton weak, that that specific reference was excluded in this particular bill.

The next thing, Mr. Speaker, is that I wanted us to compare the member for Downsview’s bill with what has been put forward here. There were two or three things in that bill which I think should have been accepted by the government and which were not.

The member for Downsview provided for a referral of petitions which were submitted to the Legislature to go on to the ombudsman, and no such procedure was provided for. He didn’t provide for it directly, but a number of members talked about the need for members of this Legislature to be able to forward complaints to the ombudsman directly.

Now I have an office, Mr. Speaker, which handles maybe 240 complaints or problems with red tape every week, thousands every year. A number of these might eventually end up in the lap of an ombudsman, were there to be one in Ontario, because we also fill an ombudsman function. What is liable to happen where there is a well-developed office, as I have operating, or what is liable to happen if the request of the member for Oxford for funding for riding offices is acceded to by this or some future government, is that the MPP’s office will help a constituent to prepare a complaint to the Ombudsman, but will still not have standing right to be informed about what happens, and that seems to be ridiculous. It seems to me that those routes ought to be open; the citizen should certainly be free to lodge a complaint and have a direct relationship with the Ombudsman.

Where the citizen needs a friend in court, or where the citizen is uncertain about the procedure, it should be possible for the MPP to develop the expertise and competence to put matters before the Ombudsman, the same way that many of our members in the New Democratic caucus, for example, have become expert in the area of the Workmen’s Compensation Board activities.

Mr. Parrott: I wasn’t suggesting anything to the contrary.

Mr. Cassidy: I am agreeing with the member for Oxford, and the member for Riverdale and the member for Lakeshore, who have also made that same point.

Mr. Speaker, the question which concerns me most, however, and this was touched upon in the bill of the member for Downsview, is the question of how the Ombudsman is going to publicize those abuses he finds. You read about the Swedish system, and it is really quite extraordinary, compared with what I fear we might get here in Ontario. I am sure that Mr. Maloney will be reading this debate in due time, if he is not in the gallery now, and that he will be perhaps drawing some of his guidelines from this debate.

So I would say to him: “Mr. Maloney, please look at what is done in the Scandinavian countries where publicity is seen as a major tool on the part of the ombudsman.” The annual report of the ombudsman in Sweden is 400 or 500 pages long. It is equivalent to the Auditor General’s report in the federal government, and perhaps to what may be developing here in this jurisdiction for the Provincial Auditor in relation to government spending and financial matters.

In Sweden the report is very large, it deals with quite a number of administrative matters, mailers of administrative procedure. It’s a bible, if you will, about right administrative procedure; and it is treated as such, so that each particular case which is investigated by the ombudsman, from that particular case he is able to draw general conclusions and consequences in order to ensure that similar abuses don’t occur in the future.

Now this is where this legislation threatens to be nothing but a Band-Aid or a safety valve for people with a particular grievance. That in itself is valuable, but is a limited accomplishment that would come from the legislation. If a welfare recipient is being abused in Thunder Bay or in Gogama and the Ombudsman is able to sort it out and find out how that abuse took place and recommend changes to help that particular individual --

Hon. Mr. Grossman: When they get bad weather in Gogama they’ll be the first to complain to the Ombudsman.

Mr. Cassidy: -- the welfare officials should be aware of that in Ottawa-Carleton and in the town of Simcoe and down in Tecumseh county. But that won’t happen or that may not happen with the provisions the minister is considering.

I would agree entirely with comments that have been made that in addition to the annual report of the Ombudsman, he be encouraged to report to the Speaker, I think, rather than the Premier; although that is not vital, it may be important to protect his independence. But he should be encouraged to report where there is a matter of a particular problem and a particular abuse that is not being resolved, and where he knows it may take 12 to 18 months before that matter can be reported on fully in his annual report.

I would also like to see the standing committee on justice or some other legislative committee consider those reports. This is done in Sweden. In Sweden, the equivalent of our justice committee spends about three weeks, roughly the same timetable as we have here, let’s say three weeks of half-day sittings, considering the report of the ombudsman every year. They cannot deal with an entire 400-page report, so they have the staff pick out the most salient matters, in conjunction I suppose with the chairman of the committee, and then those particular matters are raised, discussed with the ombudsman; and maybe they do a bit of checking around with the officials involved and so on and so forth.

We should do that too, because this is the highest court in the province; and we have an involvement too. We should know what the Ombudsman is saying and should be lending our weight to the recommendations that are made by the Ombudsman.

The questions of secrecy worry me, even though the rules that are provided in this bill are similar to the rules that were provided in the member for Downsview’s legislation; and in all of the other bills as well, back to the original New Zealand Act.

As I understand it, the original provision was put in because New Zealand is a sovereign country which, as a member of SEATO -- the Southeast Asia Treaty Organization -- trades military secrets with countries 100 times its size, the United States for instance, and also has international relations and international alliances. There were a few things at least that they wanted to keep secret in New Zealand, and therefore it was stated that where an official is bound by some Act -- this is in the New Zealand legislation -- to preserve an official secret, he will not be required to reveal that matter to the ombudsman just because the ombudsman expresses an interest.

We don’t need that in Ontario. Ontario is not a member of NORAD or NATO, or anything else. As far as I know, I don’t think there are any official secrets that threaten state security or international relations as far as Ontario is concerned. It would seem to me much more reasonable --

Mr. Laughren: We don’t believe in the conspiracy theory.

Mr. Cassidy: It is much more reasonable that in the unlikely circumstance there be such secrets, that the Ombudsman be enjoined to respect that secrecy when he gets the information, and that he not be allowed to reveal the details of any such secrets in any report that he may make on the matter.

Apart from Sweden, nowhere in any jurisdiction, as far as I can see it, is the ombudsman required to report on every case.

Again, except in Sweden, it is the tradition almost everywhere that an ombudsman, when he reports on a case, tries to protect both the complainant and also the officials that were involved -- unless there is a matter of gross dereliction or unless it is a matter where personalities can’t fail to be involved.

There was a case in Denmark where the rector of the university was standing in as the adjudicator on a doctoral thesis that was submitted by a son-in-law, and there was a suggestion of a certain amount of abuse in the state university. In that case the names couldn’t fail to come out.

In general, though, confidentiality is protected. If that is the case -- and I don’t suggest it should be otherwise in this province -- then surely matters of state secrets, if there are any in the province, can also be protected by the Ombudsman. After all, he has an oath of office and is certainly capable. If he has the independence and the stature that we know he has, then he is certainly capable of respecting that.

I would suggest that the same rule apply on this very dangerous set of exemptions that are put in as regards the deliberations and proceedings of the executive council, or any committee thereof.

All the Attorney General has to do in order to turn off the Ombudsman in getting into a matter is to say this is going to interfere with investigation and detection of offences; or it is going to involve the disclosure of the deliberations of the executive council; or might involve the disclosure of proceedings of the executive council; or of any committee of the executive council -- all of which it could be said would be injurious to the public interest.

That is a very wide set of exclusions. If you trust the guy or the woman who holds the office of Ombudsman, Mr. Speaker, than you don’t need exclusions like that. It can be stated explicitly that the Ombudsman does not have the right to report publicly on any such matter, and that if he becomes privy to any proceedings of the executive council or even, God forbid, learns of material entering into the deliberation of the executive council, that it stops with him there. He has got to work out ways to communicate problems of an abuse of administrative authority if they are somehow intermixed with the deliberations of the executive council.

He might, in certain cases, even have to say: “Look, in effect, I know the answer, and it was Allan Grossman who blew it”; or some other minister of the Crown.

Hon. Mr. Grossman: What did I do?

Mr. Cassidy: That woke him up.

Mr. Speaker: Order, please; you should refer to the members by their ridings.

Mr. Cassidy: “It was the hon. super-minister for natural resources who blew it, but I can’t say it, and therefore in my report I will simply say that while there was an undeniable abuse in this particular case, it was as a result of -- ”

Hon. Mr. Grossman: The Ombudsman isn’t going to read the member’s speeches.

Mr. Cassidy: Well okay, I’m sorry about that.

Mr. Deans: Why isn’t he here to listen?

Mr. Cassidy: Here I gave you credit and you want me to stop.

Mr. Deans: Why isn’t he here to hear this?

Hon. Mr. Grossman: He really didn’t know the member was going to speak.

Mr. Cassidy: Mr. Speaker, there is nowhere else provided a restriction on access to premises, which lies in the hands of the Attorney General and which is provided for in this bill. I can’t find it in the Alberta bill; and I don’t believe it exists in the New Zealand bill or anywhere else. That is very curious, because in the countries where the ombudsman tradition began, in Scandinavia, one of the very important functions they have played is that not only do they engage in administrative oversight by reading documents, calling for files and sifting on the telephone, but they also go in person. In Sweden, the ombudsman goes in person, in particular to the prisons and other correctional institutions and institutions for psychiatric patients and people like that.

That has also been the case with a Mr. McClelland, who managed to get a couple of psychiatric patients who were unjustly incarcerated in the mental hospital out of detention in that province. Yet here the minister will be able to block that kind of inspection. Once again, as the government has confidence in the independence and the ability of the Ombudsman, that section should be removed.

I want to talk briefly before I sit down about the way in which the ombudsman’s office works in Sweden, Mr. Speaker. I wanted to compare the distinctions between their system and what is proposed here.

I grant that the Swedish tradition in administration is different from ours. They have had access to information in that country for 150 years. Their ombudsman, in effect, is exercising much the same rights as are available to any Swedish citizen, because virtually every document in the Swedish government is accessible to the public.

It goes so far that in the case of the Swedish ombudsman, as I understand it from literature, his letters out and the complaints coming in are laid out on a table every day, and the representative of the Swedish news agency, like the Canadian Press, comes in every day and looks them over, finds the most newsworthy and files a report to the newspapers. The newspapers customarily protect identities, but they are not obliged to do so.

The Swedes know, understand and like that system, and I would commend it to the minister and to the government. However, as we saw yesterday in the bill of the member for York South, there is not a great deal of sympathy for that point of view in this government, because of the tradition of parliamentary privilege. Nevertheless, the Swedes work under a system of access to documents which is much broader than is available here. That is one difference.

The ombudsman in Sweden also has the right to ask for assistance from the police as well as from other officials. The concept of using government officials to help him in his investigations, in addition to requiring an official to testify or to provide information, is one that might be usefully copied here in this province, particularly because it is such a big province.

How does the Ombudsman sitting in Toronto find out about something that happened in the riding of the member for Rainy River, unless he has somebody on the spot? Does he fly somebody out to spend a day and a half looking into the matter up there; or would it not be possible for him to get the information by requiring an official up there to spend an hour or two talking to the person who has lodged the complaint, or talking to the officials who handled the matter which is being complained of? This is something the minister might consider as a useful reform.

The next thing is this: Although nowhere in the world does an ombudsman have the right to reverse an administrative decision, he does in Sweden and in Denmark have the right to prosecute an official who has been derelict in his or her duty. That is not provided for in the Ontario law. It dates in Sweden back to an historical tradition, I believe, where originally the Crown wanted ombudsmen to stop embezzlers and people like that from defrauding the public purse.

The power to prosecute was used much more heavily in olden times than it is today. Today it is the reprimand and the reminder which is the basic tool of the ombudsman to get things changed. Nevertheless, that little extra clout in the power to prosecute where an abuse exists, it seems to me, would be a useful strengthening of the power of the Ombudsman in Ontario.

I’ve mentioned the report of the Swedish ombudsman, which is very detailed and in which a number of cases, all of the major cases, are laid out for the guidance of the press in order to maintain public confidence in the integrity of the system, in order to substantiate the kinds of things the ombudsman is there to do. There’s been no hint from the government that this is the kind of thing it would expect from an ombudsman in Ontario.

I wish the minister would at least say: “Yes, we want the Ombudsman to be quite open in what he publishes.” If he says that I wish he would also take section 20 -- or 21 I think it is -- which seems to restrict very much the material the Ombudsman can publish, and open it up.

As I understand that subsection it says the Ombudsman may only publish material when he needs to do so in order to give grounds for a conclusion he may have reached. A lot depends on the interpretation involved there. It’s a provision which has appeared in other ombudsman statutes and which the ombudsman in those jurisdictions have found possible to work with; but I wonder whether it isn’t time to rewrite that in order to make it clear that the Ombudsman in Ontario may publish the information he believes is desirable in order to carry out his duties as an administrative overseer in the Province of Ontario.

Mr. Speaker, those are the major points I wanted to make about the Swedish system. There is one other point which is also not provided for here, and that is the question of compensation. In the first place, it seems to us that the Ombudsman’s power to recommend compensation should be very clearly spelled out in the law.

The second point, which we will come to in clause by clause discussion, is it would be useful, I think, for us to discuss in this chamber whether the Ombudsman shouldn’t have powers to order compensation, or at least, say, to fix an amount of compensation which he recommends publicly for action by the government; or possibly give the government power to award compensation without having to find the particular legal route to do it. That is, where the Ombudsman recommends that compensation be given for a particular administrative oversight or mistake, that recommendation would then stand as sufficient authority for the cabinet or the government to act and to implement the recommendation of the Ombudsman. He would not himself be able to redress the matter by awarding compensation, but the cabinet would have the authority to award the compensation if he recommended it.

Another point I wanted to make -- which is about the last because I haven’t got time to make any more, Mr. Speaker -- is that the Ombudsman in Ontario should be seen, I believe, as an overseer of the system of administrative tribunals which has been set up with the McRuer report. That has not really been thought through by the government, which simply took the legislation off the shelf. If it had, once again, the powers of publicity would have been looked at more closely. Right now, this Legislature is an inadequate body to oversee the work of the administrative tribunals and nowhere else is that overseeing taking place. It seems to me the Ombudsman might be specifically charged with the review, with going in and sitting down and looking at them from time to time, in addition to handling complaints which may come out of the administrative tribunals.

Those are the major points I wanted to raise, Mr. Speaker. To conclude: The openness and publicity which ought to be an essential concomitant of an ombudsman are neither guaranteed nor encouraged by this Act, and that is its major failing.

Secondly, the Act is a redraft of a redraft, which basically was drawn from legislation that was originally designed for conditions in New Zealand back in 1962. It seems to us the government might have started from scratch rather than simply taking it and adding only very few changes.

Thirdly, there should be access for MPPs who should be allowed to have standing and should also be able to bring matters directly before the Ombudsman, rather than only indirectly in helping their constituents; although people should also be able to go by means of complaint.

Finally, the Ombudsman should be encouraged to report fully to the Legislature, and there should be a provision in the bill that the standing committee on justice or a similar body would regularly consider the reports of the Ombudsman in the same way that the public accounts committee considers matters of the reports of the Provincial Auditor.

With those few changes, Mr. Speaker, it is clear that we can support the principle of the bill. I am simply sorry that so little was done to improve on a good idea, on which time was long overdue but which is being inadequately implemented by the government.

Mr. Speaker: Are there other hon. members who wish to speak to this bill?

Mr. Laughren: Yes, Mr. Speaker.

Mr. Speaker: All right. Would the hon. member for Nickel Belt care to move the adjournment of the debate then?

Mr. Laughren moves the adjournment of the debate.

Motion agreed to.

Hon. E. A. Winkler (Chairman, Management Board of Cabinet): Mr. Speaker, on Thursday we will proceed with the consideration of this particular bill, No. 86. Then we will proceed with item 7, Bill 77; item 12, Bill 95; item 13, Bill 96; item 17, Bill 101. If we were to achieve that, we would proceed with government notice of motion No. 5.

Mrs. Campbell: Mr. Speaker, just before the adjournment motion, do I understand that we are to move into committee on this bill on Thursday immediately following the conclusion of the debate on second reading?

Hon. Mr. Winkler: That is correct, Mr. Speaker.

Hon. Mr. Winkler moves the adjournment of the House.

Motion agreed to.

The House adjourned at 10:30 o’clock, p.m.