Legislative Assembly of Ontario

The House resumed at 8:30 p.m.

STANDING MEMBERS’ SERVICES COMMITTEE (CONTINUED)

Resumption of the adjourned debate on the motion for adoption of the report of the standing members’ services committee, dated June 18, 1979, re legislative library.

Mr. Acting Speaker: I believe the member for Lakeshore had adjourned the debate.

Hon. Mr. Welch: It was the member for St. George.

Mr. Acting Speaker: It is the member for St. George on the 27th order. Is that correct?

Mr. Lawlor: It’s not the Ombudsman?

Mr. Nixon: We’ll just be a minute; got to fix up the library.

Mrs. Campbell: Mr. Speaker, in introducing the original motion I referred to the problems of the library in obtaining material from commissions of inquiry, and as you are aware, we placed an amendment motion since our first motion created some problems with the archivist.

The motion before you is that simplified procedures be established by the government to ensure the legislative library receive automatically and as soon as possible after publication, two copies of all published research, public briefs and submissions, published backup documentation and published reports from commissions of inquiry related to the government of Ontario.

Mr. Acting Speaker: Mrs. Campbell moved the adoption of the recommendations contained in the report of the standing members’ services committee dated June 18, 1979, re legislative library.

Motion agreed to.

Hon. Mr. Welch: I wonder, now that we have carried the 27th order, if we could have agreement to discharge the 25th order from the Order Paper.

Agreed to.

SELECT COMMITTEE ON THE OMBUDSMAN (CONTINUED)

Resumption of the adjourned debate on the motion for adoption of the recommendations contained in the sixth report of the select committee on the Ombudsman.

Mr. Acting Speaker: Now I think I am where I thought we were some time before.

Mr. Lawlor: That is where I thought I was too.

Hon. Mr. Timbrell: I think we all know where the member for Lakeshore is.

Mr. Lawlor: I see the two basic ministers are here and that is appealing.

Mr. Nixon: I don’t find it appealing.

Hon. Mr. Timbrell: This happens at the end of a long session.

Mr. Lawlor: A former nominee for the presidency of the United States thought that St. Paul was appealing but Norman Vincent Peale was appalling. It is appealing to have the minister here.

Hon. Mr. Welch: If the honourable member will permit --

Mr. Lawlor: Are you here again?

Hon. Mr. Welch: Always here. If the member for Lakeshore came more frequently he would know.

Mr. McClellan: I think you should go out and address the crowd.

Hon. Mr. Welch: Mr. Speaker, the particular report to which the honourable member for Lakeshore wants to address himself as chairman contains a number of recommendations and of course the report itself calls for a detailed discussion of each recommendation and some vote on each recommendation. It was felt that perhaps it would be more convenient to deal with this report if the House resolved itself into committee of the whole. Then the chairman of the committee could call each recommendation, members could feel free to discuss them and they wouldn’t be restricted to that one-time-only rule with respect to debate in the House itself.

Mr. Acting Speaker: Hon. Mr. Welch moves the recommendations of the sixth report of the select committee on the Ombudsman be referred to committee of the whole House for consideration.

Motion agreed to.

House in committee of the whole.

SELECT COMMITTEE ON THE OMBUDSMAN

Consideration of the recommendations contained in the sixth report of the select committee on the Ombudsman.

Mr. Chairman: I believe the orderly fashion in which to deal with this report would be to take it section by section now that we are in committee.

Mr. Lawlor: Now that we are in committee I do not intend to be truncated. I have an initial statement, whether it was one way or another didn’t matter. I wish to proceed briefly, with your indulgence, in order to set up a basic outline as the chairman of that committee, which is not unknown in committee of the whole House, particularly with respect to estimates. So if you would permit me to proceed --

Mr. Chairman: I would certainly ask if the committee would be agreeable to the member for Lakeshore making a few general comments.

Agreed to.

Mr. Lawlor: Others may wish to make succinct general comments too.

The Ombudsman’s office itself and the committee in tandem have until this time in our history been groping their way, trying to find the right dimension, trying to get the right response. By “right” I mean right. There is a certain tenor, there is a certain centrality to the office of the Ombudsman which is not as yet recognized in this province.

Members of the committee are privileged in many ways. They have travelled abroad to see how other Ombudsmen work, what the condition of that office very well might be, and, if it is to be efficacious, must be. We have been frustrated in the past. I would say even bitterly disappointed with respect to the response. On the part of the ministry, there has not been a proper assessment and weighing and giving cognizance to the office of the Ombudsman. Members of the House haven’t responded.

Let’s put it simply and do this quickly. If an Ombudsman in Europe, particularly in Sweden where it all started well over 100 years ago, was rejected by a minister of the crown and he was adamant in his purpose, either one or the other would have to give way. If this persisted on the part of the government, the Ombudsman would resign; he would simply say no. It is a unique, different, sensitive and hyperbolic office, if you will. It is totally different from anything else. When it begins to get through to the members of this assembly what this thing is all about, then we will begin to make an iota of progress in this particular field.

As members of the committee, we have been clued in, we think, in no arrogant way, but simply to try to inform. We have been subjected to a certain education at public expense and we would like to communicate that position. So we have been groping our way, session after session since 1975, when these reports began to be handed down. Last year, as you all know, the minister’s didn’t show up at all. That was the last word. If that happened tonight, you wouldn’t have a committee, let’s be frank about it. We are not prepared to be patsies, to serve purposes in a minatory way from hour to hour. We have a job to do. If you don’t like it, we don’t have to do it. I like reading books and would prefer to take the summer off for that particular purpose. I even like to write on the odd occasion too.

Tonight the real issue before us is, do we want to leave things as they are or do we want the office of the Ombudsman for the province of Ontario to work? It is as simple as that. It is what it has come to as things are at present set up. In order to underline that, we wrote in obituary columns, etched in black. I won’t read it. You have all seen it. It has been read already in the House. It is how we feel. It is our side of it.

We aren’t putting on airs. Members of this House are busy. They haven’t time to read all the reports. None of us can pretend to be able to survey a great deal of stuff that comes across our desk, so we can’t make exorbitant demands upon our fellows in this regard. Nevertheless, the office exists. It is fairly expensive and it serves the fundamental purpose. If you haven’t a fundamental belief in it, let’s get rid of it. That is what it has come to, as far as the committee is concerned.

I won’t take a great deal of time. I would like to inform you a bit as to how we regard our role vis-à-vis the Ombudsman for the purposes of setting this debate in place. As we come up against the seven recommendations, we insist upon a vote on every one to get the feel, the empathy of this House with respect to this. What in blazes we are supposed to be doing is under some scrutiny and some circumspection by numerous members of this House who are ignorant of most purposes. They won’t even take the time, as I see among those members who are not here, thank heaven, to read the report or to give very much attention to what it is that this committee is all about.

[8:45]

The report tonight is the sixth report. In the fifth report we submitted to the House, we said:

“There are some who would urge the committee of the Legislature, when all things are equal in a case, to support the recommendation of the Ombudsman, notwithstanding the appropriateness or adequacy of the government organization’s position. The committee cannot agree with this view. It envisions many occasions where, notwithstanding that the governmental organizations decide not to implement the Ombudsman’s recommendations, that decision is nevertheless adequate and appropriate. It is open for this committee to agree with the decision of the governmental organization, just as it is for the committee to support the Ombudsman’s recommendation in any given case.

“The Ombudsman in this province must recognize that his recommendations will not always win the day. Likewise, government organizations must realize they cannot consistently deny Ombudsman recommendations and not endure appropriate consequences through this committee and the Legislature.”

That is the vein. We do try to stand back objectively. We do not consider ourselves a court of appeal. We will not constitute ourselves as such. Nevertheless, when both parties appear before us, the ministry on one side, and the Ombudsman opposite, and engage in colloquy in order to bring out and make salient the facts in the situation, then we have a certain role to weigh the two. The previous Ombudsman expected to make us an imprimatur. We’re independent human beings. We think we have some competence with respect to the roles people and these offices play and we’re not rubber stamps for anybody. Otherwise, we would lose our dignity.

We try to be impartial and objective. There are many times, I want the members to know, we have said to the Ombudsman, “No, we can’t go along with you.” We’ve set forth the reasons in a fair and objective way and trust he accedes to that. When we do side with him, we side with him purposively. We’ve always sided with him unanimously. We expect the government in that context and condition, unless they can produce very coercive reasoning on the contrary, to stand to go along even if it runs a little bit against the grain, because the Ombudsman’s office is the only office in the whole of this province which is totally unique as being the child of this body. It is not the child of the government qua, but the child of this Legislature, beholding to this Legislature. It is the only body of that particular kind. We want this taken seriously. It hasn’t been up to this date and it’s high time it was.

There were nine complaints of the Ombudsman not implemented by the government organization in the third and fourth reports, of which only three are coming to us tonight. There are not even three, because this morning, Lord bless us, and quite miraculously, one of them got solved.

Mr. McClellan: By emergency mail.

Mr. Grande: All of a sudden, miracles.

Mr. Lawlor: The incredible case of Aladdin’s lamp which made nothing magic. There was a lamp the Workmen’s Compensation Board wasn’t willing to supply which we felt it should supply to an injured workman at a cost of two hundred and some-odd dollars. They were only willing to pay $25. We say: “What nonsense is this?” It was solved this morning, so I won’t dwell upon it.

I got a communication, I’m sure all the members on the committee did, saying the Workmen’s Compensation Board had finally caved in, if you will, or had given credence to what was being said. That lamp has cost $10,000 in terms of our time, in terms of Workmen’s Compensation Board time and ministries’ time. It’s the most expensive lamp, as I say, since the Arabian nights.

We are dealing with two cases tonight under that first series of cases. The second one is in our sixth report referring to the fourth and fifth reports of the Ombudsman. There are seven cases in the New Democratic Party, and we’ve distributed them among ourselves. We want to finish this debate tonight. We want a vote before 10:30. We want to know where we stand in this committee going into the summer and our meetings at that time, because there is another report coming from the Ombudsman’s office, nearing fruition at the present moment. We’re delighted to get ahead with it provided that we have some sense that it’ll be of some value.

I had hoped the Attorney General (Mr. McMurtry) would be here tonight to say a word with respect to his intervention. The Workmen’s Compensation Board asked for his opinion as to why we were interfering in the way we were and what suzerainty we had in this particular regard. The Attorney General replied in a way that was adverse to the work of the committee. We reinterpreted his judgement by saying he didn’t mean what he said; namely, that the way in which the last recommendations were brought into this House last fall didn’t call for adoption. We have changed the wording and say we call for adoption, which obviates it. If this House approves tonight these various things, we think the ministry and the agency over which he has dispository powers, ought to accede.

I would be the last to push another iota. Where does it go beyond that if you don’t? I would ask you to be gracious enough to think that we had the intelligence to be able to arrive unanimously at these decisions and that the Ombudsman himself has the integrity and sense of office that he will have set forth the basic premise which we have affirmed, even if the ministry finds it a little unpalatable to go along gently with these things. Otherwise, there’s no sanction for the office of the Ombudsman as such and that’s what he lacks fundamentally. This House is the area where the final reckoning comes, and it’s through the instrumentality.

One word about the committee before I sit down. I’ve said it before. It’s like Voltaire -- if the committee didn’t exist you’d have to invent it. If this committee feels that it’s ignored, demeaned, abnegated, goes off in a fit of paranoia, which we’re quite likely to do over the whole situation, you’ll have to set up another committee within a few months; because this House, as such, cannot take the reports of the Ombudsman directly and stand and argue the premises.

The government has seen fit to ignore, reject the position that the Ombudsman has taken, having gone through the office of the Premier -- and may I stop there. The Premier of this province (Mr. Davis), in the dozens, literally dozens of cases in which various agencies have rejected the Ombudsman’s position, hasn’t in a single instance acceded to the Ombudsman over and against the agency or the minister. I think he has some kind of responsibility to look at these matters, to set up perhaps a little committee in his own office which may advise him. Carte blanche -- blindly, blankly, mindlessly -- he sends out the same form letter every time: “I don’t give credence to what it is you’re doing and I don’t intend to do a damned thing about it.” If you think that’s giving any weight to the position of the Ombudsman or enhancing the prestige -- which is the central, critical and necessary thing to that office, that form of recognition -- if you think he’s making any contribution in this regard, be befuddled. He ain’t.

That doesn’t help a bit either, does it? I’ve spoken enough. We’re trying to get this debate over with.

Mr. Chairman: I thank the member for Lakeshore for his general comments. As we are in committee I will now call for the nine recommendations in order.

On recommendation 1:

Mr. Lawlor: The first recommendation has to do with what we will call the Macdonald case, Dr. Macdonald. I don’t know if he’s here tonight. I know he had an engagement. In any case, it has a certain notoriety. I would like to give, right off the bat, some credit to Dr. Macdonald. He is one of those few people who, demanding a lever, wants to move the world, just a little bit, almost imperceptibly. And he sticks to it.

In 1968 he was refused permission by a hospital in Toronto to enter that hospital as a physician -- he’s a surgeon -- and to have access for his patients to that hospital. This is a widespread phenomenon. Most of them are too timorous to attempt to meet the powers-that-be, the Frankenstein establishment that stares with baleful glances at you and can place your professional career in some jeopardy. Macdonald doesn’t back down. He sticks to it. One has to give great credit to the odd individual in this society who is not prepared to back up, and who fights it. He has been through the divisional court, courts of appeal, everything he has to in order to get to the Ombudsman.

Just one other point on this: We don’t mention names -- the Macdonald name will be the only name we will hear tonight. We’re very careful to suppress names of institutions -- the hospital in this instance -- but the names of the complainants -- the people who have been to the Ombudsman’s office, it’s neither here nor there. There are principles involved here and human beings who have been bitterly hurt, one way or another. The whole purpose of the office is to rectify these human hurts, and a single hurt brings a whole society into question, or could very easily do so. That is why the office exists.

I think the best thing to do in this case, without spending too much time on it, is simply to read what the recommendation is, what it is we will be voting on.

“Accordingly, the committee recommends that the Minister of Health consider what changes should be made to the Public Hospitals Act, and section 47 in particular, including changes in the quorum provisions and the length of membership respecting the hospital appeal board, to give better effect to the principle of a widely distributed membership of the hospital appeal board.

“Further, that the Ministry of Health cause an inquiry to be made into the provisions of the Public Hospitals Act to identify and correct any acts flowing from sections 44 to 50 of the act which may be improperly discriminatory.”

I think that is worded in a moderate, almost overtly rational, fashion. The Ombudsman is not asking for the moon. He is saying that on the hearing in question all members of the board were involved with hospital boards as members thereof at one time or another. None of them was neutral with respect to having a pre-empted interest in it. They claim there is a certain prejudice involved with all that. The Ombudsman agrees.

By the time the hearing was finished, very much like this House, there were only three people left. The claim is the quorum of three was not representative of the thing. The fear is that in these public hospital boards a certain clique, a certain little cabal, will form, with their preconceived notion, serving the interests of their own friends and cousins, mothers, brothers and aunts -- which is exactly what happened in that hospital. The chief surgeon hired all his friends to fill the positions.

[9:00]

Here numerous doctors are excluded. There is no question of theft competency -- nothing like that. They are excluded from serving on that hospital staff in any capacity, or bringing their patients in. Ipso facto, it excludes them from the same rates -- in other words, they’re second-class doctors. Those beggars, those doctors, who are on the inside, can charge greater fees because of the prestige attached to their being within the narrow establishment. They can mulct, by the way, your whole hospital scheme by being able to do so. You should take that into account when you are trying to save money instead of closing Lakeshore.

This discrimination between the two classes of doctors in this province is a great drain on the Treasury. What is being asked for is a simple change in legislation. You have seen what Grange says of the law society. I won’t read it into the record, it would take too much time. But it should be broader, less discriminatory. It is not even being said that, in fact, -- well maybe it is -- this particular board, or the boards generally are questionable in this particular regard. It’s just that they lay themselves open to that charge. In terms of the justice of the province, that must not be allowed to prevail. So you are being asked to alter or amend your legislation; probably to expand the boards somewhat and to see that people, who have not the in-built, preempted interest, sit on those boards at a fair hearing.

That’s all we are asking you to do. I’d be most interested to hear what you have to say about it.

Hon. Mr. Timbrell: Mr. Chairman, just briefly, I’d like to comment on the matter. This question interestingly enough is one that has, in one way or another, been before me as long as I have been in public life, having been an alderman on North York council. The physician in question came to visit members of council some years ago. I took part, as was pointed out in the House one day a few months ago, in a vote on a motion put to council. In its own way, it contributed to the appointment of the Grange commission and the investigation carried out by that learned gentleman.

I want to offer two proposals tonight with regard to the concerns outlined by the committee. I don’t intend to read into the record some of the contrary arguments to those heard by the committee. Clearly there is a matter of concern here on the part of some, particularly the members of the committee.

If I may, Mr. Chairman, I will speak to the two matters related to Health at once rather than the one. Each of the two recommendations stems from the Ombudsman’s perception that certain provisions of the Public Hospitals Act can or may result in situations which may be characterized as being improperly discriminatory. Those provisions relate to the composition and the quorum of the hospital board and to the system for appointment of physicians to hospital medical staff. I realize that the adjective “improperly” in the term “improperly discriminatory” is the operative word here. Virtually every power of decision obviously carries with it an element of discrimination when you make one choice as opposed to another or others.

It is important I think to note that the Ombudsman did not allege that any member of the hospital appeal board has ever acted improperly, and I have frankly --

Mr. Eakins: It just says maybe.

Hon. Mr. Timbrell: Well, that’s the thing. I think it is important for the people who serve under the chairmanship of Mr. Tobias that there should be no doubt at all about their credentials and honour. The Ombudsman has not alleged that any member of that board has, at any time, ever acted improperly. As the minister responsible for the board, I have no reason to believe that such a case has ever occurred.

In spite of this, and acknowledging the concerns of the Ombudsman and the board, I am looking at the legislation which prescribes the composition of the board, and their appointments at the present time are at pleasure, to ensure that all interests, including hospitals, physicians and the general public, are and will be fully represented both on the board itself and in any quorum of the board.

I am also considering the related issue of whether it is appropriate that a minimum number of the hospital appeal board members should not have past experience as a member of a hospital board and, pending final decision as to what legislative changes are appropriate, if any -- and we may be able to do it in the next rearranging of the membership of the board -- I have sought and I have obtained the assurance of the chairman of the hospital appeal board that the full board from now on will sit on all cases, except where the parties otherwise agree, or where a member must disqualify himself by reason of a conflict of interest.

In addition I want to point out as well that the Ombudsman did not allege that there had been improper discrimination on the part of a hospital in connection with an application for appointment to its medical staff. Again, I won’t take the time of committee tonight to read into the record the divisional court decision that looks at --

Mr. Lawlor: They can only follow the law.

Hon. Mr. Timbrell: -- and comments on the structure as it exists in this province and exists in most jurisdictions throughout the world. But he did not allege that there had been improper discrimination on the part of a hospital in connection with an application for appointment to its medical staff. Rather, what the Ombudsman indicated was that the system creates, in his opinion, an opportunity for improper discrimination.

As I see it, the difficulty is that, as was recognized by the Supreme Court -- I’m quoting from the court -- “The selection of a medical staff is an art, the development of which arises out of long study and continuous involvement with the practice of medicine in a hospital.” The practice of an art does not often lend itself to external regulation.

Nevertheless, what I propose to do is to obtain a comprehensive review or information as to what systems of medical staff appointments prevail in other jurisdictions. I intend to get this from the Ontario Council of Health; I will ask them to do the review. I believe that such information will be of great assistance in formulating an appropriate approach to resolving this problem identified by the Ombudsman. It’s a matter which then perhaps in the fall, when we get to my estimates -- I’m not sure whether the material can be pulled together by that time -- we could properly use some of my estimates time in the fall of this year in further discussion.

Mrs. Campbell: Mr. Chairman, I welcome the participation of the Minister of Health in this debate. I think it is important that while we have referred to a specific case we realize we are speaking about a practice which exists at present. The case itself is really there in order to explain the recommendation rather than to take a position vis-à-vis that particular case. The committee has taken some pains to clarify that position, if one looks at page 11 of the report.

I am a little sad to hear that the minister is now going to look further at this matter and that he has not at this point undertaken any real study of specific changes, which is what we have asked, but rather that he is indeed going to be consulting to see what might result by reason of this recommendation.

I suppose the Minister of Health has had a considerable number of other matters before him, and one can understand that this may not have had top priority. But I do express some concern that there isn’t something more forthcoming from the minister with reference to this recommendation at this time.

Hon. Mr. Timbrell: Aside from the individual case here, the question of privileges is a perplexing one and the Supreme Court has gone into it in ruling on a particular case. We have to bear in mind not just the question of the individual physician and the individual hospital, but also the total health needs of an area. It seems to me the board of a hospital carries an onerous weight in ensuring they meet the health needs of the community and at the same time do not overtax -- and this can certainly happen in the privilege-granting procedure -- the facilities they have available to meet those needs.

I gave an example and in essence what I was saying is I want to ask the council of health to canvass the issue and come back to us with some indication of how it is done in other jurisdictions and whether there is perhaps a better way. My physician lives in Don Mills, as I do.

Mr. McClellan: Is that the one who opted out?

Hon. Mr. Timbrell: No, this is the one who opted in.

Mrs. Campbell: Opted in. That is not the same one you talked about the other day.

Hon. Mr. Timbrell: Who did I talk about the other day?

Mr. Chairman: Order. The honourable minister has the floor.

Hon. Mr. Timbrell: That is a problem I had with some person up in the gallery. He lives in Don Mills, I live in Don Mills, and yet he has privileges at Scarborough Centenary Hospital, nine or 10 miles away, I stay with that physician knowing if at any point he has to admit me for elective surgical procedures, I am going to be admitted to Scarborough Centenary, eight, nine or 10 miles away from my home.

There are really two points here. First, I don’t think one can dismiss the fact that the individual has to make some choices; the physician has to make some choices and the patient does as well. Second, the hospital board, on the advice of its medical advisory committee and taking into account the best interests of the community, must balance their resources and the skills available to meet the health needs.

Mr. Lawlor: As I stood here and as I heard the minister, he has under very serious consideration necessary amendments to give some kind of direction and meaning to what the Ombudsman of this province stipulates, and we can anticipate seeing some changes in the legislation in the fall.

Hon. Mr. Timbrell: With regard to the first matter, the full board will sit on all cases.

Mr. Lawlor: The minister has already promised that.

Hon. Mr. Timbrell: The full board will sit on all cases unless there is some reason for a member to declare a conflict of interest. In the meantime, we are looking at the makeup of the board. The members are all appointed at pleasure at the present time, and we will consider whether we need some legislative changes or perhaps a reordering of appointments to give it a broader background.

Mr. Lawlor: This is a typical case. It has damn well gone long enough and far enough. This is not an ordinary debate. The minister can take his stance. He was elected and he is the government. He may exercise quasi-dictatorial powers over all ranges of things and suffer the bloody consequences and I trust he does. But in this instance this is neutral ground. This is where we come together. If he does not want to come together, that is fine.

The Ombudsman’s office is something we find accord with not something we quarrel over. The minister should come here tonight knowing where he stands. This is one of the oldest cases in the books. It is in the fourth report of the Ombudsman where he sets the whole thing. The minister has sent before us his legal representative full of his cavils and hair-splittings, we have had our conversations, et cetera, and the minister comes here tonight saying he is not willing -- as I understand him -- even to go so far as to say tentatively that this legislation will be changed in the fall.

[9:15]

What I think we should hear from the minister, in full responsibility, is that he is prepared to alter that legislation and to bring in something in line with and in accord with what the Ombudsman’s office of this province has requested of him and which the committee unanimously, including his own members, has said is just and fair in the circumstances.

To posture to an inbuilt little group -- the minister quotes the divisional court. Courts are bound by the law; their hands are tied. But the Globe and Mail ain’t; it calls it cronyism. Take a look at the editorial. Please be a little more forthcoming on this particular issue.

Hon. Mr. Timbrell: Do you want to govern by editorial? Is that how you would govern? By editorial?

Mr. McClellan: Don’t be so stupid.

Mr. Eakins: Mr. Speaker, I feel this recommendation should be supported, and I am willing to support its adoption. We are not asking for a finding as to which interpretation is correct. The committee is of the opinion, as stated in the report, that an examination of the issues of staffing procedures of public hospitals and the composition of the hospital appeal board is necessary. I think it is a good recommendation, and I hope it is supported.

Mr. Nixon: Mr. Chairman, I want to speak in favour of the acceptance of the recommendation as well. If you have your report before you, on pages eight, nine and 10 there is a fairly extensive reference to the evidence taken by the committee, based on the complaints brought forward by Dr. Claude Macdonald. Many of us have listened to Dr. Macdonald in the past and know of the problem he has experienced over a good many years in getting the right to perform his professional services in a public hospital in Metropolitan Toronto.

We are not here to argue about the merits of his specific case, but part of it was closely associated with the recommendation that is before us. As was pointed out in the report on page 10, the reference there says: “We can only conclude that the new minister and his advisers either did not like the recommendations or missed the point entirely.” That is a quote taken from information based on the Grange commission report.

It is sort of a nice point as to the composition of the review committee, but the very idea that the people sitting on that committee had almost -- at least it appeared a possibility -- preformed concepts as to what kinds of doctors as well as what numbers of doctors should be admitted, really has brought forward the feeling that an inequity, or an injustice, has been perpetrated for these many years.

It is difficult to know whether anything this Legislature can do would make up for what has happened in the past, not only to Dr. Macdonald, but also to other doctors who have been the subject of questions and debate here for, I would say, seven years and perhaps longer.

The recommendation is a clear one. I do not think it is going to fully answer the problem that has been experienced. The minister this afternoon was talking about our public hospitals being subject to the ruling of boards elected from their membership. He knows, and we all know, just how tenuous that concept of democracy is.

When we look at the people who form the membership of the hospital boards -- perhaps this has changed in some hospitals but, in the ones I am aware of, probably most of them are the wives of doctors or the people who have some very special interest in quality medical and hospital care, but from a very specific point of view.

It is almost like the debate here tonight; you cannot expect all the members of the Legislature to share with many of the other members what they consider to be the great importance of this debate. The same thing happens when we are electing the boards of public hospital based in a very narrow constituency. It concerns me that we have gone these many years flooding public dollars into what we all understand to be outstanding world-class facilities but still governed in a way that in my view is anything but democratic.

Mr. Roy: I want to make some brief comments on this. I have been sitting here listening to the debate and, of course, the name Dr. Claude Macdonald is one that I am personally familiar with from the days when I was Health critic for our party. I just want to say this: Dr. Macdonald’s case is not the only one. I can recall another doctor who fought it all the way --

Mr. Nixon: He went to the States.

Mr. Roy: He’s gone to the States now; he really laboured on this and I had all the sympathy in the world with him. The message I want to give to the minister in this is that there are not many professions today that have the respect of the public like the medical profession. More and more public pressure is coming on all professional bodies for accountability to the public -- that they don’t live in a vacuum, in a world of their own where they govern their own affairs; there’s some accountability to the public. But the doctors are in a special situation as compared to all other professions. I compare theirs, for instance, to the profession of law.

If you graduated as a lawyer and then you were told for example, that a limited number of lawyers would have the privilege of practising out of a courthouse, I can imagine how the lawyers would tolerate a situation like that. There’s some similarity. Here we have a situation, an anomaly where a situation where you have a public hospital, publicly funded, taxpayers are paying for it and yet a part of the profession can dictate which doctors can have privileges out of that particular hospital.

I see the minister shaking his head, but that’s what it boils down to.

Hon. Mr. Timbrell: That is why you have the appeal boards.

Mr. Roy: Yes, but I’ll get to that. What I am saying to the minister is that it is an anomaly --

Hon. Mr. Timbrell: An appeal means you might win or you might lose.

Mr. Roy: -- that I have difficulty understanding myself, that a public institution such as a hospital, paid for by taxpayers’ money, should be limited to a limited number of doctors --

Mr. Nixon: Most of them opted out.

Mr. Roy: -- and that limitation, of course, clearly affects their capacity to earn income.

If there is a situation like that, surely the minister must understand that those who decide who shall have privileges and who shall not must not only act, but must be seen to be acting, with the greatest justice and equity possible. This is the basis of these recommendations here. I fail to see how a succession of Health ministers have failed to act on this.

I can recall when Dr. Potter was the Minister of Health. He couldn’t see conflict. I can recall one time in another area in the dealing with the opticians in this province how there was a terrible conflict on a particular board.

The point I want to make to the minister is that surely after the Ombudsman has looked at this and made the recommendation; after an all-party committee has looked at it, based on some of the recommendations of the Grange report; if it’s not clearly obvious to the minister as an elected official in this province in 1979 when he is dealing with public hospitals that those who decide who will have privileges and those who will not must not only act with justice and equity but must be seen to be doing so. That is not now the case and that is the basis of these recommendations.

Hon. Mr. Timbrell: I think in my earlier comments I acknowledged that and in looking at the membership of the board I made the comment that -- or let me put it this way. I certainly don’t believe and I don’t think the Ombudsman alleged that improper discrimination has been applied by the board.

Mr. Roy: You don’t even have to go that far.

Hon. Mr. Timbrell: I acknowledge fully the concern expressed about whether there is a possibility of this occurring and I have indicated that the board’s composition will be reviewed, particularly since the membership of the board is at pleasure, and perhaps we can restructure it.

I want to point out that the physician to whom you refer who has gone to the United States won his appeal at the board.

Mr. Lane: I really hadn’t intended to speak at this particular time, but being a newer member of the committee I probably haven’t experienced the frustrations that some of the other committee members have experienced in having had no response to former reports from this committee. I personally sat and listened to the testimony provided on this particular recommendation and I thought the recommendation was good. I also think the minister is making a commitment in saying it is a concern of his and he’s prepared to see what can be done about it.

I doubt very much if either one of the other parties were in power -- Heaven forbid -- that they would be prepared to make an immediate judgement on something as long-ranging as this particular recommendation is and with the load that the present minister has on his plate. I’m happy that the minister was here to respond to it and to say that he would look at it further and that we could talk about it this fall when he debates his estimates. Personally, the minister has satisfied me.

Recommendation 1 concurred in.

On recommendation 2:

Mr. Lawlor: We’re jumping the next one, which is 76, which has to do with heat lamps.

That’s been settled as I indicated earlier. The next one is number 79 which has to do with a Workmen’s Compensation Board case.

Mr. Deputy Chairman: I understand that number 2 was resolved, so you’re looking at recommendation 3.

Recommendation 2 concurred in.

On recommendation 3:

Mr. Grande: I would like to read the recommendation in the sixth report of the select committee of the Ombudsman. It states: “The committee recommends that the Legislature require the Workmen’s Compensation Board to implement the recommendation of the Ombudsman made to the Workmen’s Compensation Board, pursuant to section 22(3) of the Ombudsman Act, in complaint 79 of this fourth report, by reconsidering its appeal board decision of March 4, 1976, and granting entitlement to the complainant, on the basis of an aggravation of a pre-existing back disability, to temporary total benefits from September 4, 1974, until such time as it is established that the complainant was medically fit to return to employment within the complainant’s capabilities.”

I really don’t think that we need to go into a tremendous amount of detail regarding these cases. The painstaking detail with which we look at each one of these cases on the Ombudsman’s select committee perhaps should be enough to satisfy those members of the government, the members of the Liberal Party, and the members of this party that are on the committee that we don’t make a decision lightly.

As the member for Lakeshore has pointed out, we go through pains to make sure that the Ombudsman and the governmental organization produce as much evidence as we deem fit to have on the table in order for us to come to a particular determination on each one of these cases that will be presented. What has happened is that the committee feels that on this particular decision the Workmen’s Compensation Board happens to be wrong. To put it the other way, the Ombudsman is correct. The Ombudsman has carried out the investigation according to the Ombudsman Act. He has followed all the steps and all the procedures and has found all the evidence and presented it before us. The Workmen’s Compensation Board did the very same thing. However, its presentation was certainly not the one that we decided to adopt because its presentation was frankly not convincing.

[9:30]

I want to point out the reasons I and the members of the select committee on the Ombudsman support the Ombudsman in this case. Let me put it very simply: The workwoman injured herself on the job. She slipped and fell on her hand, wrist, elbows, buttocks and back. She went to a chiropractor and the chiropractor definitely stated she should not go back to work. This woman was in continuous treatment under the chiropractor.

We have evidence on record from a surgeon who has said this woman indeed suffers as a result of the accident she had. In other words, we have evidence from a chiropractor. I know the Workmen’s Compensation Board somehow just does not accept evidence from a chiropractor. I could never understand it, but somehow the chiropractor is at the bottom of the totem pole.

The evidence from the surgeon ought to tell the Workmen’s Compensation Board that this is serious; that somehow it had made a mistake in not granting this person the benefits she ought to receive for the time she was out of work and that she was attempting to rehabilitate herself to return to the work force.

What has happened consistently, though, through the different levels of appeal, is that the Workmen’s Compensation Board went to its surgical consultant, and the surgical consultant said she should not receive any benefits. “The decision you made before is fine.”

I hope the minister does see some of the surgical consultants’ reports and what they say. I was astonished -- as an aside to this case -- to read a paragraph in one of those reports which said, “I have reviewed the evidence on file. This is the position --

Can you give us any reason why you arrived at that decision, or at least can you give us any reasons why the evidence the surgeon brings to you, the evidence that you have from the chiropractor before this board, is not good enough? No, the surgical consultant somehow acts as if he is a god within the Workmen’s Compensation Board.

Let me assure you if you haven’t found that out yet -- and I think you’re finding out pretty quickly what is going on there -- the surgical consultant seems to be the appeal board; and the people on the appeal board don’t seem to be questioning at all what their surgical consultant says to them. They just accept it, and that’s that.

This is the problem in this case. The surgical consultant of the Workmen’s Compensation Board reigned supreme, and any other kind of evidence brought before the board was rejected. Why? Because the board continuously attempted to say that this person because the wrist is okay, is now recovered. They didn’t talk about the low back at all, and the pain the person has in the low back. But because the wrist somehow is okay, is normal, she should have recovered and should have been back on the work force. “So therefore we are not going to give you any benefits since we decided that you should be in the work force.”

If the Workmen’s Compensation Board, for the sake of consistency, is not giving this worker the rights and the benefits she rightfully deserves, I think it is your job, at this particular level, to intervene and to say to the Workmen’s Compensation Board, “Look at the evidence again, take a look at it and make a decision.” The decision obviously has to be a positive one, because this committee, the Ombudsman committee, and the Ombudsman are on the same side on this issue.

Mr. Nixon: I just want to speak very briefly, because I am concerned about these recommendations.

I intend to support them, but with some hesitation because I do so entirely on the basis of the recommendation of the committee. The Minister of Labour knows it’s an all-party committee so I am sure his colleagues will support them as well.

I don’t know whether the minister considers the decision of this House binding on the board. I think under the law it is not binding, and one of the documents in this report is a letter from the board saying they have considered the recommendation of the select committee and have rejected it.

It concerns me that the matter of a heat lamp should go to the Ombudsman, the Ombudsman’s committee and the Legislature of the province of Ontario. With some levity it has been indicated that this heat lamp the gentleman has now is probably a $10,000 heat lamp, and I would suggest to you it is probably more like an $80,000 heat lamp. So I feel that the process is a little bit wacky, to say the least.

It concerns me also, and we are talking here of very specific recommendations, that the category for payment be changed from temporary partial disability for a period from March 2, 1968, to May 22, 1968. That change might mean 10 per cent, perhaps it’s a bit more than that, in the actual payment for that period of time. I am sure the committee must consider that a matter of principle and on that basis it appears in this report. Yet it is only on that basis that we could imagine why a recommendation, now being dealt with by the whole of the Legislature, for a change in status to increase temporary partial disability for really just a few weeks should be subject of debate here. It’s the final lever, the final crunch in the whole Ombudsman’s system to force the ministry to do what the Ombudsman says is right.

What I am saying is I think we as a House are going to have to not only support these recommendations, but then go on to give further consideration as to how the procedure, coming from the Ombudsman’s decision, is going to be dealt with by the committee and by the House, and then by the ministry in the future.

How are we supposed to make a judgement on a recommendation like that, except with the confidence that we have in our committee members --

Mrs. Campbell: Thank you.

Mr. Nixon: -- which of course is unlimited and unending.

I am not sure what my point is, other than that in fact I resent having to even think about whether person A, most worthy, should get a heat lamp or not; person B, most worthy, should be upgraded a matter of 10 per cent from March 2 to May 22. Why was that such a matter of high principle that should use this fantastic and powerful, I suggest to the minister, machinery for its implementation?

I intend to support all these recommendations on the basis that I put to you; my confidence in the members of the committee, no other.

Mr. Deputy Chairman: The honourable member was speaking in part, I know, just by way of example, to recommendation 4. We are still looking at recommendation 3, as I understand it. Any further discussion on recommendation 3? The Minister of Labour.

Hon. Mr. Elgie: Mr. Chairman, I am speaking tonight as the minister through whom the board reports. The very issue that the member for Brant-Oxford-Norfolk has raised is really the crux of why we are here. I remember when I was a member of the Ombudsman’s select committee myself; the dilemma we faced then was just what is the exact and ultimate authority of that committee. We wrestled with it, we tried to determine exactly what 22(4) did mean and what power it gave to the Premier or to the committee. I think tonight is simply the final outcome of all those discussions and resolutions we’ve had, when we’ve been members of that most interesting, most productive and most important committee.

If I could turn to part III of your report, it’s clear in the third paragraph that part of the role of the committee has been agreed upon. That is, it has served as a liaison and catalyst in the establishment, maintenance and improvement of the relationships between the Ombudsman and the many government organizations within its jurisdiction.

It then goes on to outline other relationships which had been clarified for the committee. The one relationship which still remains unclarified is the ultimate authority of that committee. It may vary from ministry to ministry. In this particular ministry, we have the Workmen’s Compensation Board established by legislation which under section 74(1) says: “The board has exclusive jurisdiction to examine into ... ” et cetera, as you all know.

The Attorney General has given the board an opinion that it does have ultimate authority. I don’t need to elaborate on his letter because it’s in the report itself, and I won’t do so. The Attorney General may wish to comment further upon that.

Therefore, the issue before us is what is the final effect and outcome of the recommendations made tonight. I share many of the views the member for Haldimand spoke about.

Mr. Nixon: Brant.

Hon. Mr. Elgie: Brant, Haldimand, Oxford.

Mr. Nixon: Haldimand isn’t in it. Haldimand is somewhere else. Just call it Brant.

Hon. Mr. Elgie: Brant-Oxford-Norfolk. Got it.

I’m in a bit of a dilemma myself, Mr. Chairman, to know what to do in response to the recommendation tonight. True, the board has responded to the first two recommendations. It accepted the first and it rejected the second --

Mr. Martel: For a heat lamp.

Hon. Mr. Elgie: -- over the other six recommendations. The board has rejected the Ombudsman’s recommendation, but I am advised they have not yet, as a corporate board, reviewed the next six recommendations and have not come to determinations on those six. I find myself in an impossible position in terms of voting for or against it. Frankly, I intend to listen to the will of the Legislature.

Members of the board are here tonight to hear this very important debate. I will take great interest in the debate because it’s clear the committee is under great stress and concern about the ultimate authority and power of that committee. Therefore, tonight is a very important occasion and I look forward to the debate, but I do want to stress the problems I personally have about the recommendations.

I don’t think there’s any point in my reviewing case by case. The case the honourable member has raised, recommendation 37, is a matter of the board feeling there’s a conflict in the medical opinions. Which one should it accept? What should be the result of the recommendation of this committee? Those are matters that will all have to be resolved as a result of tonight’s debate, and I look forward to hearing your further comments.

Mr. Eakins: I just want to say briefly that sitting on that committee as I have for some time, I know, and the minister knows, a great deal of thought and time has been spent in arriving at the recommendations that appear in our report. I know they are not arrived at very lightly. We’ve gone through the process of meeting with the Ombudsman’s staff, and the Workmen’s Compensation Board’s staff. The one thing that impressed me when I was visiting other jurisdictions in other countries was the respect and the profile the Ombudsman’s office is given by the people in those countries.

I think the Ombudsman does not arrive lightly at his decisions, and I think if the Ombudsman’s office and the Office of the Ombudsman is going to work and be effective, we’re going to have to support the Ombudsman in his decisions. I fully support these recommendations. Surely, we are a liaison with the assembly, and that is why we’ve brought these forward at this time.

I am a strong supporter of the Office of the Ombudsman and I fully feel he has arrived at his decisions, as has this committee, only after a long deliberation. What is the Office of the Ombudsman going to mean if we’re going to each one think that they are correct? We’ve got to give some full support to the Office of the Ombudsman, and I intend to do that tonight.

[9:45]

Mr. Lawlor: If the minister’s position tonight is that he is fobbing us off, and that is what I hear, that coming here tonight he is not prepared to say categorically yes or no, or that he is prepared to do this or that, that the matter is on the Attorney General’s opinion which we have scouted and questioned as to its interpretation, that the board has autonomy and final determining powers for itself and that all these cases -- and the rest of them are all workmen’s compensation cases -- are under determination by the board but they haven’t placed the final decision before the minister as to which way they are prepared to go and he is left in some kind of limbo with respect to the very reason we are calling this meeting, then I can only say that they are very dilatory indeed in their responsibilities.

They know from direct conversation with us last winter what we want, what we talked about and what we thought was fair. Here, in June, they are saying with a little twiddling of the thumb to the nose, “You can do whatever you please, we will do whatever we want. We are an autonomous board and we are relying upon a particular section.” If that is the way it is to be, then there won’t be any committee, at least as far as I am concerned; I won’t want to sit on one. We have been eviscerated; we have no role to play. If that is what the minister wants, so be it, God bless him.

Hon. Mr. Elgie: I don’t think the member for Lakeshore is really suggesting that I am trying to fob him off. I have tried to do many things to him but not that. But I do ask in all fairness that we recall that the board, when it was talking to that committee earlier in the winter, did mention that it was awaiting an opinion from the Attorney General. Whether there has been undue delay since then in reviewing these six cases is a matter that we can all speculate about. But, in all fairness, they have not yet as a corporate board reviewed those six cases. Who knows what their response will be?

Mr. Lawlor: March 30, they heard from the Attorney General.

Hon. Mr. Elgie: The important issue here tonight is the one that has been raised already and that is, what ultimate authority does this committee’s report have, having been talked about and voted upon in this Legislature tonight? I think it is an important decision and I share the member for Lakeshore’s view that this committee has to be looked upon as a serious committee. I think that is why this evening and this debate are important. So, the honourable member should not suggest that I am trying to fob anything off.

Mr. Lawlor: Then participate in the important debate.

Mrs. Campbell: Mr. Chairman, I don’t want to speak at length. I do want to see us get to a vote tonight and at least get on the record what the Legislature feels about the recommendations. But, I think the minister ought to be very much aware that really it isn’t the matter of what this committee feels about itself in so far as the committee is concerned. I think he has to be aware that our concern is simply this: That if this committee’s recommendations are to be ignored, then what we have done is to eliminate the final sanction of the Ombudsman himself. That is what we are fighting for tonight, not our particular committee per se.

We are not zealous of having to work long hours over this; we can find plenty of other things to do. But what is at stake now, tonight, is whether or not the Ombudsman of this province is to have any sanction or whether, in fact, he may well be relegated to the role of recording complaints. That is what is at stake, not the matter of the committee per se but only the committee report as it reflects the final attempt to give to the Ombudsman of this province the kind of respect, the kind of jurisdiction if you like, that is absolutely essential if that office is to work. I think that has to be understood.

Mr. Deputy Chairman: The member for Bellwoods, if he wishes to speak.

Mr. McClellan: I will forgo in the interest of time and speak on the next case.

Mr. Nixon: I would suggest, in furthering what the member for St. George has said, that in reading the letter from the Attorney General it says that the board doesn’t have to pay any attention to these recommendations. Even if they are passed by the Legislature, they can be implemented only by the board’s decision or by legislation. It may very well be that we are going to have to make an amendment to the workmen’s compensation legislation, indicating that a resolution passed by the House has the force of legislation in directing them in these matters. I don’t see any alternative to that myself, unless the minister in his position -- and the board is to some extent independent of him when it wants to be --

Mr. Lawlor: Is it?

Mr. Nixon: This has been an argument forever. It is like the independence of Ontario Hydro. They are independent when the Premier wants them to be and they bow whenever he wants them to bow. It is quite possible for the minister simply to indicate to the board what his wishes are. If the board is so independent that it will simply ignore those, then the Legislature has the recourse to pass a piece of legislation which will make a law such that a heat lamp is provided. Surely there is some other way to do that. Alternatively, perhaps we could have some other piece of legislation which simply changes the responsibility of the board in some way.

It would seem that we are going to listen to the details of the next nine cases.

Mr. Lawlor: No, you are not.

Mr. Nixon: You were going to say that you were saving your remarks. I don’t want to spend a lot of time on it and, frankly, I don’t even want to hear the details. The committee has spent many long hours reviewing the details. The recommendation of an all-party committee to this House is really tantamount to its acceptance. However, if the minister, who is the person really under the gun here, since the Minister of Health has gone and we have dealt with the matters for him, has formed another opinion and feels the Ombudsman is wrong, the applicant is wrong, and the committee is wrong, before the House makes what the minister might think is a mistake, he has every right and responsibility to get up and speak against the recommendation and reject it.

It seems to me that once the recommendation is accepted here, there is no question that it has to be turned into some sort of bill. Surely that is the end of it and the Workmen’s Compensation Board, automatically, accepts the recommendation and may have a minute indicating it is against its own judgement but the Legislature has spoken and that is game over. I don’t think there should be any question about that.

Mr. Lawlor: That’s right. That’s the way it has to be.

Recommendation 3 concurred in.

Mr. Deputy Chairman: Mr. Lane, did you want to speak to this specifically? If we can do it on the next one, will your remarks be the same on the next one?

Mr. Lane: Not necessarily so. I was on my feet, Mr. Chairman.

Mr. Deputy Chairman: I am sorry I missed you, but I would like to go on with the member for Bellwoods. I have actually put the concurrence on this one. Then I will come to you, Mr. Lane, on recommendation 4.

On recommendation 4:

Mr. McClellan: I am sure the member for Algoma-Manitoulin’s remarks will be as relevant on this section as they were on the previous one.

Mr. Lane: Don’t be too damned sure of that.

Mr. McClellan: I mean that kindly.

Hon. Miss Stephenson: You are a snide, nasty person. That is not called for.

Mr. McClellan: I didn’t mean it in a snide way. I am particularly sorry the member took it in a snide way.

Ms. Gigantes: That should be withdrawn.

Mr. McClellan: This is an important debate. It does not have to do with the particular recommendations in front of us with respect to those individual cases. It has to do with the future of the institution of the Ombudsman in this province. If the government wants an institution of the Ombudsman in this province, then it is going to have to understand that in Ontario, as in every other jurisdiction in the world where there is an effective Ombudsman, the Ombudsman is going to have to be accorded an especial respect. The Ombudsman is going to have to have a kind of aura about it that no other institution is granted. If the government cannot accept that, then it cannot accept an Ombudsman.

Those of us who had the opportunity to look at the institution in some other jurisdictions were really amazed at the respect granted the institution. We gave some hypothetical examples to the Ombudsmen in Denmark, Sweden and Israel. We said: “What would you do if, having made a recommendation on a case to your Parliament, it was turned down?” We were greeted with a kind of shocked silence. I am not exaggerating; those who were with us will verify this. We were greeted with a kind of incomprehension. They would have to resign, they said, each and every one of them. But they could not understand that. Why set up the institution in the first place if no attention is going to be paid to it? That is the question.

This is not a partisan committee. This is the one place in this Legislature which is nonpartisan; it really is. Everybody who has served on the Ombudsman committee -- the Minister of Labour has served on it with me; he is nodding his head, and he shares the view that I have -- agrees that this is one place in this Legislature that is nonpolitical and nonpartisan. We are looking at cases on their merits that have been examined and investigated and have been given a recommendation by the Office of the Ombudsman.

It is incumbent on the Legislature and the government to recognize the special status of the Ombudsman. It is incumbent on ministers of the government to instruct and educate their bureaucracies about the special status of the Ombudsman. If they are not prepared to do that, let them tell us and we will stop the charade. Unless the Ombudsman’s recommendations are accorded an unusual and extraordinary respect, there is no point in having it.

There is a particular difficulty for us as legislators in an assembly that is part of the British parliamentary tradition that does not obtain in the European system. European legislators do not do constituency work; they are not mini-Ombudsmen. But those of us who are elected members in a British parliamentary system have as part of our responsibility the redress of grievances. That is part of our job.

I took a little time and consulted some archaic statutes and traced it back to the Act of Settlement of 1688; that is where it originated. The British Parliament in 1688 established the two functions of Parliament. Let me read one of them: “For the redress of all grievances, and for the amending, strengthening and preserving of laws, Parliaments ought to be held frequently.” That is the origin of our tradition; it is part of our job. The media do not seem always to understand that, but it is part of our job that we are available to our constituents for the redress of all grievances, and not just for the passing of laws.

[10:00]

We have a jealousy about our prerogatives. Each and every one of us as a member of the assembly is jealous of that prerogative as a mini-Ombudsman. I think it is fair to say that in both parties on this side of the House we have made that adjustment. Let me say it has been a difficult adjustment, a genuinely difficult adjustment, for those of us who are used to the sacred preserve of constituency office work, to share that with the Office of the Ombudsman.

I say to you that we have made that adjustment and we’re prepared to do it, those of us in the New Democratic Party and those of us in the Liberal Party, we are prepared to do that. We’re prepared to give up a piece of our role that is 300 years old; we’re prepared to share that with the Ombudsman. I say to this minister, and to all the ministers, they too have to give something up.

Mr. Grande: When are they going to do that?

Mr. McClellan: They have to give something up too if the office is to work. If they are not prepared to do that, tell us; tell us and we’ll stop the charade, we’ll stop the pretence, we’ll stop playing the game. I’ll stop sending my constituents to the Ombudsman. I’ll tell my constituents: “Don’t bother to go there because if he makes a recommendation on your behalf it doesn’t mean a goddamn thing, it doesn’t mean a thing.”

Mr. di Santo: It’s a waste of money.

Mr. McClellan: The government can ignore it with impunity. I don’t think that’s what we were about when we set up the office in this province. I think all of us wanted an Ombudsman in a genuine way. I’ve read the debates when the institution was set up; I think all members on all sides wanted an Ombudsman, and they wanted an Ombudsman that worked.

We’ve started to understand what the implications of that are, and I tell you -- and I speak specifically to the Minister of Labour -- that the Office of the Ombudsman and the select committee of this Legislature which was set up to support that office, cannot tolerate the kind of deliberate flouting of the institution that has been characteristic of the Workmen’s Compensation Board, period.

We cannot tolerate it. The institution cannot survive that kind of systematic flouting of the Ombudsman’s authority. There is no other ministry or organization or Crown corporation or branch of government in the province of Ontario that is systematically thumbing its nose at the Office of the Ombudsman except for the Workmen’s Compensation Board.

Look at the cases in front of us: nine cases, one dealing with a very complex matter of policy with the Ministry of Health, and the other eight are recommendations denied from the Workmen’s Compensation Board. This morning the compensation board delivered to us a hand-delivered letter with respect to the heat lamp issue, which was so grotesque and bizarre that I doubt they wanted it debuted here tonight, but the other cases stand; they stand, as I said, as a thumbing of the nose at the institution.

You’re going to have to deal with it; not just you as the Minister of Labour, but the government as a whole. How? By accepting the recommendations of the select committee; by accepting the notion that the Ombudsman in Ontario does have an ultimate sanction; that if he is systematically denied recommendations by officials or bureaucrats or branches of government that he has a recourse, and the recourse is here to the Legislature; and that recourse is consequential in terms of a vote of the assembly.

I want to put on the record the position of the committee with respect to an Ombudsman’s recommendation. We are not a rubber stamp. The committee has not been a rubber stamp in the course of the two and a half years I have sat on it. We have been very tough on the Ombudsman. We have insisted that we be satisfied that the Ombudsman has followed the procedures that are set out in the Ombudsman Act and that his investigations have been thorough and impartial, and have followed not just the spirit but the letter of the act. Once we have satisfied ourselves that he has conducted a legitimate investigation under the terms of the act, then we are prepared to support his recommendation

Let me read from our fifth report: “The committee will review with the Office of the Ombudsman all phases of the Ombudsman’s functions which were exercised in the particular complaint. It will also examine with the governmental organization in question the adequacy and appropriateness of the response. If that response has been less than complete, and if the exchange between the Ombudsman and the governmental organization contemplated by section 22 of the Ombudsman Act has been less than thorough, the committee will inquire into as much detail as it considers necessary in the circumstance. When it appears to the committee that the Ombudsman has complied with the provisions of the legislation, and where the governmental organization’s response is not adequate, appropriate or reasonable to the committee, it will prima facie support the Ombudsman’s recommendation.”

That is what we have done in the cases in front of you. We have satisfied ourselves that the Ombudsman has satisfied the conditions of the Ombudsman Act with respect to each of those complaints, that his recommendations are legitimate, and that they deserve to be upheld by the assembly.

I want to say in conclusion a word about the Workmen’s Compensation Board, which is represented on our little potpourri of cases, eight out of nine. I ask through you, Mr. Chairman, to the Minister of Labour, what does the benefit of the doubt mean in Ontario? What does the benefit of doubt mean as far as the compensation board is concerned? If the Office of the Ombudsman, with his marvellously competent staff, and with an eminent jurist as the present incumbent is, can look at a compensation case, look at all of the evidence and decide on the basis of that evidence that the benefit of the doubt supports the injured worker, but the compensation board continues to deny entitlement, where then is benefit of the doubt? What does it mean?

I suggest to you, sir, through the chair, that it doesn’t mean a damned thing -- that it means whatever the compensation board chooses it to mean. But it certainly does not mean that when reasonable men or women examine the evidence with a degree of impartiality and the balance of probability weighs in favour of the injured worker, that means anything unless it is the compensation board itself which is making the verdict. There is no room for any other reasonable judgement to be exercised.

Others wish to speak on this debate, I am advised, and I am not going to deal with the merits of the case because, as the member for Brant-Oxford-Norfolk has previously stated, the committee has examined each of the cases, and has satisfied itself the Ombudsman’s investigation was legitimate with reference to the act and that his recommendations were in the main valid.

So I hope the assembly will pass the balance of the compensation recommendations. It is vitally important that these cases get passed. It is important for the compensation board; it’s fundamentally important for the Office of the Ombudsman. If there is not an effective resolution of this problem of the ultimate sanction, if the government is unwilling to accept the notion of ultimate sanction, if the government is unwilling to accept a special status with respect to the Ombudsman, then you might as well just tell us that. Tell us that tonight so that we don’t waste any more time playing the game.

Mr. Lupusella: Show some leadership.

Mr. McClellan: Give us your views precisely and with detail, because I’m not prepared to waste any more time on it. I’m simply not prepared to waste any more time and neither are my colleagues in this party. I know from conversation in the Liberal Party that if you want the institution in the province you have a clear choice. The crunch is here tonight. After all the debate and discussion leading up to the establishment of the office and its implementation in the initial stages, the crunch is here tonight. So either bite the bullet or tell us you don’t want it, but let’s not continue this charade.

Mr. Martel: Mr. Chairman, two things bother me. About two weeks ago, as the result of a vote in this Legislature I raised in this Legislature the action the government undertakes. Sometimes, even though this Legislature passes a motion or resolution, the government deems it doesn’t have to act on that resolution.

You will recall, Mr. Chairman, that we passed a resolution, moved by the member for Timiskaming (Mr. Havrot), with respect to crown land and the lease of crown land. Even though this Legislature voted in its entirety to support that resolution, the government, in its lack of wisdom, deemed that it would not follow the instructions of this Legislature. It chose to go on to remove the lease policy for recreational land, despite a vote of the Legislature, and then started to sell crown land.

My fear tonight, as we debate this and as the government accedes to one motion after another, is what are their intentions? They can sit here tonight and nod their heads affirmatively that they are going to do something about it, but once this debate is done are they going to take the same sort of action they did on the private member’s resolution of the member for Timiskaming? And that was to ignore it in totality. It’s unfortunate that my colleagues, and I have talked to a number of them, indicate they would probably resign because this government fails to respond.

The other thing I want to speak to the minister about briefly is the Workmen’s Compensation Board. These cases, Mr. Minister -- and I am not going to speak about cases -- I see day in and day out. We in this party have been complaining about the conduct of the Workmen’s Compensation Board for years. You have colleagues, Mr. Minister, on your own side of the House who are speaking to you privately because of the frustrations they experience dealing with the Workmen’s Compensation Board. Some of the decisions that come out of that board and how they affect people’s lives are absolutely ludicrous. I fought a case this week --

Mr. Haggerty: They call that functional overlay.

Mr. Martel: Yes -- where a man, 22 years in industry, was exposed to noise and suffers industrial deafness. His exposure was 89 decibels; at 90 decibels you start to lose your hearing. They did one test in 22 years and said the man had no entitlement -- on one test. Is that the benefit of the doubt?

I have just reached the point with the Workmen’s Compensation Board, Mr. Minister, that you have to do something. You have got to shake it up badly, because while many workers are served well in the province, for those who are in the bind, there is no way out except months, in fact years, of battling with the board to try and get some assistance for workers. While they read you the nice statistics about 90 per cent of the claims being handled right away, you wouldn’t have this if the other four per cent were adequately handled.

I just say, in the limited time, that something has to be done to shake up that organization, to deal with those difficult cases. I won’t mention names or areas in the board that need to be shaken up a bit. But I watched your colleague from Cochrane South (Mr. Pope) come in -- and he and I have discussed this many times. There is something wrong up there; there is something wrong that would see a decision over a lamp come in today.

Mr. Mackenzie: The problem is the bottom line.

Mr. Martel: Yes, but that is the absolute in stupidity -- that they would concede a lamp, heaven forbid! But the other case where it’s several years of compensation, no.

[10:15]

You know, Mr. Chairman, that is just so much immaturity on their part. It’s like holding out a sucker. They give you a sucker and they take the other one back after you’ve had one out of the whole package. They give you the easy ones. Hooray! But the ones where there’s probably a function that will overlay the whole business and all of the problems that go with this -- and those of us who represent the types of communities where there’s heavy industry have seen the back problems, and nearly everyone in here, as I read it over quickly, is involved in that -- for those they’ve had no solution.

We’ve been raising it for years. It’s time there was some action taken by the Minister of Labour to clean up that place so that those problems can be handled.

Finally, I want to repeat I don’t know what the government’s position is going to be, but if they act on this vote the way they did on the member for Timiskaming’s resolution, which was endorsed unanimously in this House, and then go in the opposite direction, I suggest by tomorrow afternoon they won’t have a select committee on the Ombudsman.

Mr. Haggerty: I would like to address myself to the committee’s report dealing with the Ombudsman’s fifth report, which particularly deals with the Workmen’s Compensation Board.

In the directory each member gets -- and I guess a number of personnel here working for the government get it -- it says under the Workmen’s Compensation Board: “Ombudsman’s administration, J. F. O’Brien.” Often I wonder why that is put in there. To me it looks like a cosmetic approach by the Workmen’s Compensation Board or even by the Minister of Labour to say that we do have an avenue open here for those persons who are making appeals to the Workmen’s Compensation Board.

I know that that hasn’t been very successful. I suppose the function the Ombudsman could provide to the injured workers in Ontario is under section 75 of the Workmen’s Compensation Act, 1975: “The board may at any time, if it considers it advisable to do so, reconsider any decision or order, declaration or ruling made by it and vary, amend or revoke such a decision, order or declaration of ruling.” There are not too many persons who are aware of that particular section, unless you’re dealing with the act day by day or week by week. I suggest to the Minister of Labour that perhaps the only body that can use this particular section to the greatest advantage for the injured worker is the Ombudsman because that’s the last resort.

With the sufficient staff that they have there, they can do the research and make proper representation to the board for the reconsideration of a previous decision.

I, like the members for Nickel Belt (Mr. Laughren) and Sudbury East, spend a great amount of time down at the Workmen’s Compensation Board and I can tell you this much, I’m not too happy with the present functions of the board. I’m not too happy with some of the decisions of the appeals that are handed down, in particular where, in the past, the benefit of the doubt has always been given on behalf of the claimant.

The normal procedure now is that for persons writing to the board, they come up with a new phrase, “pre-existing condition” to the accident -- whether or not it aggravated the injury. I’m sure the minister, being in the medical profession, knows of studies carried out in the United States -- and I think it’s worthwhile putting it on the record.

This is from one of the studies that was carried out in the United States as it relates to injured workers. “Medical information needed may be as much in the realm of opinion as fact. Medical evidence is often conflicting in the issue over the cause of the disability and the degree of physical impairment. There is no medical method which can measure precisely the degree or the present physical disability or even predict the future course of the events.”

I suggest that is an area that the board should be looking at more seriously than anything. They have to take that into consideration. I think the recommendations of this report -- there are five or six of them -- suggest that some direction and consideration be given to specific cases here in the report. I suggest that all members should support this particular report tonight. It is time the board showed some heart in matters relating to injured workers in Ontario because it is definitely not making that effort at the present time.

Mr. Chairman: Before recognizing the next speaker, I must remind the committee that when the committee first met this evening it was agreed that the chairman of the select committee could speak generally and then the committee would deal with each recommendation. I would remind the honourable members that we are on recommendation 4. I would hope that any further speakers would contain their remarks within that recommendation.

Mrs. Campbell: Put the question.

Mr. M. N. Davison: If I may have a quick 30 seconds, Mr. Chairman, as the former chairman of the committee, I would like to say a few words. If I stray in my 30 seconds, please forgive me. The issue before the House tonight is not these particular recommendations and it is not whether or not we accept the report of this select committee. The issue before the House tonight is whether we continue to have an Ombudsman institution in this province, an institution that many members of the assembly have fought long and hard to obtain and have tried to develop in the most appropriate fashion.

Mr. Chairman: Order. The honourable member is straying. Would he contain his remarks to recommendation 4?

Mr. Warner: He is at the heart of the matter.

Mr. M. N. Davison: If I may put it in the context of this particular recommendation, the important matter is not how the members of the assembly vote this evening on this recommendation concerning the Workmen’s Compensation Board, but whether or not the Minister of Labour and the government he represents act on that recommendation in the way in which the committee votes.

I would suggest to you, Mr. Chairman, in conclusion, on this recommendation and on the others before us tonight, if the government fails to act we will no longer have a select committee on the Ombudsman. If we no longer have a select committee on the Ombudsman, the Ombudsman will no longer have access to this assembly and the Ombudsman institution in this province will have become irrelevant and not at all what the people of this province deserve. I submit to you, Mr. Chairman, to the government and to the members of the assembly, that would be a tragedy.

Recommendation 4 concurred in.

Recommendations 5 to 9, inclusive, concurred in.

On motion by Hon. Mr. Welch, the committee of the whole House reported concurrence in recommendations 1 to 9, inclusive, of the report of the select committee on the Ombudsman.

Report adopted.

Mr. Speaker: Under standing order 28, a motion to adjourn is deemed to have been made and I will listen to the member for Port Arthur for up to five minutes.

USE OF MATACIL

Mr. Foulds: Government members may not consider this an important matter, but we on this side of the House, do.

First of all, I want to thank Ted Schrecker of the research department of the NDP for doing as much work as he has with me, on the issue of Matacil spraying in northern Ontario.

The stonewalling by the Minister of Natural Resources (Mr. Auld) can no longer be tolerated. He has deliberately tried to keep himself, the Legislature and the public of Ontario, ignorant of the scope and the impact of the Matacil spraying program for the spruce budworm in northern Ontario. It is a policy of deliberate secrecy and controlling and limiting information made available to the public by this government. If not, it is a case of sheer incompetence.

It is obvious two portfolios are too much for him and he should resign one, if not the other.

Mr. Warner: One is too much. He’s not even here. He doesn’t care.

Mr. Foulds: The matter of spraying for spruce budworm should be a policy decision made by the minister in the cabinet, not a decision made by a low-level civil servant with automatic approval by the minister. The consequences are too serious to do otherwise.

Mr. Bolan: Is this the NDP horror movie?

Mr. Foulds: Why am I dissatisfied with the minister’s answers? He has given no comprehensive statement to this House on the scope and extent and, more importantly, on the reasons for spraying with Matacil for spruce budworm. He has given us no economic reasons, no ecological reasons and no social reasons.

He has not indicated whether or not the ministry plans to extend the spraying until next year. He has been secretive about what spraying has taken place in past years, although he has told the press such spraying has indeed occurred. Nor has the minister clearly said whether the ministry is going to spray parks and tree nurseries, areas in which there are high concentrations of human activity.

He has failed to table the documents he said he would on June 12. According to the minister, they outline the results of testing done by the Ministry of the Environment and the federal agencies that have in this government’s opinion made Matacil acceptable to use. That is a very sad record, Mr. Speaker. I have raised the matter four times and, frankly, none of the answers to any of those questions have been satisfactory.

We assume, from the research we have been able to do, that Ontario’s Matacil spray is made up of amino carbs as the active ingredient, nonylphenol as the solvent, and 585, the emulsifier or diluent. Interestingly enough, Agriculture Canada considers that confidential information to protect corporate responsibility and that is just nonsense. We have reports, but not confirmation, that red dye, which itself may be carcinogenic, has been added to the Ontario spray.

Three basic points need to be made. One, we have no evidence that Matacil effectively kills spruce budworm. Spraying simply cannot be 100 per cent effective. The minister said he hopes for an 80 per cent kill. Unfortunately, the New Brunswick experience, including DDT when they had a 99 per cent effective kill, indicates the remaining bud- worm simply survive as a healthier species and it therefore prolonged the epidemic and the problem.

Two, we know that Matacil is very harmful to bees, certain fish, marine life and some ground hens.

Three, Matacil potentially has severe toxic effects on humans. This is especially worth considering because of the drift factor in any aerial spraying, no matter how carefully done.

I would have sent a copy of Dr. William Thurlow’s research report to the minister, but the other day he said he wouldn’t be bothered to read it, or gave that impression. Dr. Thurlow’s latest research shows that at subtoxic concentration -- and I emphasize subtoxic concentration -- Matacil and its solvent, nonylphenol, have definite viral enhancement effects: two times in the case of Matacil, and 2.3 times in the case of the solvent, nonylphenol.

[10:30]

Remember that viral enhancement is the mechanism that is at work in Reyes syndrome. This is the often-fatal children’s ailment that has been traced in New Brunswick to the effects of the emulsifiers in the solvents -- not the active ingredient but the emulsifiers in the solvents used in fenitrothion, and the emulsifiers in the solvents are the same in Matacil.

Although Dr. Thurlow’s most recent experiments do not -- and I emphasize that -- establish a conclusive link between Matacil and Reyes syndrome, they do demonstrate the significant viral enhancement effect. Why take chances when the so-called benefits of Matacil spray are dubious at least?

Mr. Speaker: The honourable member’s time has expired.

Mr. Foulds: According to Dr. Thurlow, Maine and Newfoundland have cancelled their spray programs for 1979 at least partly because of his evidence. Why does Ontario not do the same? He must be absolutely certain he is doing no harm to the people of Ontario. He cannot avoid the responsibility; he is the minister.

Hon. Mr. Auld: Mr. Speaker, the honourable member in his request for his time tonight based it on three points. The first one was the adverse effects of Matacil spraying. Matacil has been used to control spruce budworm in Canada since 1971. In that period the effectiveness, the toxicology, the effects on nontarget organisms and the persistence of Matacil have been investigated by scientists in government agencies, universities and private consulting firms. More than 200 published scientific reports document the results of these investigations. In fact, there are 233, and I will table a list of them in a moment.

Furthermore, a three-day conference in Moncton, New Brunswick, was held last August specifically to review the environmental impact of Matacil. The proceedings of that conference, as well as the latest evidence in the published reports, clearly indicate that the use of Matacil for control of spruce bud- worm in forestry does not pose a significant hazard to human health or the environment.

Countering this considerable body of evidence is that publication, the second copy of which the honourable member has sent me, entitled The Matacil Spray Report, William Pigelow, editor and chief author. Mr. Thurlow is a medical doctor, not a toxicologist or a research scientist. He is chairman of an organization called GAG and is said to be an avowed anti-spraying lobbyist. The book was published by GAG apparently without any review or comment by the scientific community, and it does not contain any original research. Those factors cast considerable doubt on the credibility or conclusions drawn from this book.

Scientists in the two lead agencies responsible for pesticide regulation in Canada, the Department of National Health and Welfare and the Department of Agriculture, have informed our ministry that their ongoing review of research has provided no indication that forestry spraying of Matacil presents a human health hazard.

The second point that the honourable member mentioned was the necessity of spruce budworm spray programs. Our ministry has guaranteed to provide 70,000 cunits of wood annually for 10 years to the new Normic Mill in Kirkland Lake. A major portion of this wood will come from Lamplugh and Elliott townships, where budworm spraying is now taking place. In these townships, balsam -- which is the species most readily killed by budworm -- represents almost 50 per cent of the cut for the next 10 years. There is no alternative wood supply available for this mill, and thus it is imperative to preserve this wood in a merchantable state until it can be harvested. This particular forest has already suffered four years of heavy damage because of budworm, and another year of heavy damage will result in mortality, decay and loss of commercial value. A similar situation prevails in the Geraldton district, where we are preserving a unique stand of white spruce for veneer production.

The third point that the honourable member mentioned was the so-called Reyes syndrome. In 1976 Dr. John Cocker in Halifax hypothesized that recent cases of the childhood disease Reyes syndrome in New Brunswick could be linked with the chemical used in budworm spraying.

Mr. M. Davidson: They’re not using it any more, are they?

Mr. Warner: That’s right. You’re in trouble.

Hon. Mr. Auld: That is fenitrothion and the emulsifier Atlox. There is no evidence that Matacil is a factor in the occurrence of this disease and those two emulsifiers are not used in Ontario’s program.

Mr. M. Davidson: They’re not using Matacil, are they?

Hon. Mr. Auld: I would like to table a list of those 233 references on the subject of Matacil which have been studied by government staff in reaching the conclusions that I’ve outlined tonight and in previous statements.

Mr. M. Davidson: Are they using Matacil in New Brunswick today?

Hon. Mr. Auld: Perhaps after reading this material the honourable member may wish to comment as to whether Matacil is safe and useful. Just to give a little idea of what is involved, we are talking about --

Mr. Speaker: The honourable minister’s time has expired.

The House adjourned at 10:36 p.m.