The House resumed at 8 p.m.
House in committee of the whole.
SELECT COMMITTEE ON THE OMBUDSMAN
Resuming the adjourned debate on the motion for adoption of the recommendations contained in the seventh report of the select committee on the Ombudsman.
Mr. Chairman: There are a great number of recommendations in this report. I have gone through it and I see there are 17 recommendations. I would hope the committee would be agreeable to discuss those in order. If it is agreeable with the committee I will call each recommendation from 1 to 17. I call recommendation 1, which is on page 23.
Recommendation 1 agreed to.
Mr. Chairman: Recommendation 2, on page 29.
Mr. G. I. Miller: Mr. Chairman, may I ask a question? Where are you getting these recommendations from? Are they from the seventh report of the select committee?
Mr. Chairman: That’s right, the seventh report. The second recommendation is on page 29. I could read it for the committee. Some of them are fairly lengthy.
Hon. Mr. Timbrell: Mr. Chairman, on a point of order, since there is some confusion as to where in the report you are starting, I wonder if we might start back on page --
Mr. Renwick: On page 29.
Hon. Mr. Timbrell: I think there was some confusion as to whether we were starting later in the report and some members were a little confused.
Mr. M. N. Davison: We are on the second recommendation.
Hon. Mr. Gregory: Could we start back? We were confused by the numbers. We were going by the back of the book and there seems to be a second summary of these items. Page 23, section B, item 1 is the particular item on which we would like to speak.
Mr. Chairman: That is the item I called for originally. The same recommendation is also on page 23 and it has been carried.
Hon. Mr. Gregory: Mr. Chairman, with respect, you went rather quickly and we have been waiting to speak on that particular item. In all fairness, I think we should be able to speak on it.
Mr. Wildman: It was carried.
Mr. Chairman: I called the order. It would be up to the whole committee whether they would want to revert to recommendation 1.
Mr. M. N. Davison: On a point of order, Mr. Chairman, speaking to the point raised by the member for Mississauga East: you very carefully and very slowly called the first item of business before the committee this evening. There was plenty of time for any member wishing to speak on it, to speak. No member chose to speak; quite properly you called the vote and the recommendation of the committee was carried. We should move on to the second recommendation of the select committee.
Hon. Mr. Gregory: Speaking to that point of order, I recognize what the honourable member says is quite true. I admitted to him earlier that there was some confusion on our part as to which item was actually being talked about. I am asking for the forbearance of the honourable members to give this side of the House some consideration in dealing with these things. Their co-operation is really what I am requesting.
If it is the will of that particular party not to co-operate with us on it, that is up to them.
Mr. Martel: Graciously, we were about to accede to the member’s request --
Mr. Renwick: It is just exactly that type of remark that prevents co-operation in this House, and you know it.
Mr. Chairman: Order.
Mr. Martel: -- but that sort of conclusion leads us to suggest that we should not. If that is the attitude the member wants to take then we can accommodate him quite easily.
Hon. Mr. Gregory: Mr. Chairman, if I may, I asked for the member’s consideration of this particular item. At a House leaders’ meeting at noon today it was indicated to the House leader of the New Democratic Party -- as a matter of fact he asked the question -- that we would be questioning this particular point. As I’m saying I readily admit, and I don’t too often admit it, I was totally confused when we first started dealing with this item. I ask for the consideration of the New Democratic Party.
Mr. Renwick: You didn’t give us a chance to reply before you used the usual tactic. You immediately said, “If that group wants to avoid co-operation, then fine.”
Mr. Martel: You were being antagonistic.
Mr. Chairman: Order.
Hon. Mr. Gregory: Mr. Chairman, do I have the floor? I don’t wish to argue with the honourable member and I don’t wish to be antagonistic. I am merely asking for the forbearance of that party to allow us to consider this particular point.
Mr. Chairman: The request has been made to reconsider recommendation 1. I would have to say if there is unanimous consent of the committee that matter can be reopened; it was carried. Do I get unanimous consent?
Agreed to.
On recommendation 1:
Hon. Mr. Gregory: Thank you, Mr. Chairman; and I thank the honourable gentlemen for their consideration.
We have some concerns with this particular point. It really is one of being able to satisfy what this provision asks for. We certainly don’t have a total objection to this committee’s being allowed to sit while the House sits. We do feel it should be handled, by a vote of this Legislature in the same fashion we are handling sittings of the Hydro committee.
I’m quite sure the members will agree, if they speak to the chairman of the Hydro committee, there hasn’t really been that much difficulty in arranging meetings for the Hydro committee. Because of the minority situation and shortage of people, in all parties really, we on this side of the House would prefer to deal with this item on the same basis as we deal with sittings of the Hydro committee while the House is sitting.
We just didn’t want to leave it open-ended where it could arbitrarily sit at any time. This can cause some difficulties. We’re certainly not of the opinion the Ombudsman committee should not sit at all during the session. Because committees tend to schedule sittings of all types, we do feel the House should have some control over when a particular committee sits. That was really our request.
Mr. Martel: Even if that motion were accepted, with greatest respect, I don’t think it would really alter anything because a committee can only sit, based on the standing rules at the present time, when it’s scheduled. For those extra sittings which occur, such as Hydro affairs, committees have to ask for permission to sit because it’s only then, by resolution of the House, they can get authority to sit.
The Hydro committee at the present, as my friend knows, can only sit when we choose to bring that resolution forward; they might plead they want to, but if there’s so much business going on, as occurs on Wednesdays when there are three major committees sitting, then the opportunity to say, “No, it’s impossible,” should, and does in fact, occur.
We have on occasion, as my friend knows -- it happened just a week ago -- refused the Hydro committee the authority to sit as on last Thursday afternoon. That still remains, whether this were to be carried or not.
Hon. Mr. Gregory: No.
Mr. Martel: Yes, very much so. It says: “The committee recommends that its order of reference be amended to include a provision whereby it is permitted to sit concurrently with the Legislature to consider from time to time interim reports tabled by the Ombudsman in the Legislature.”
That doesn’t say, nor is it anywhere in the rules, that it’s going to be scheduled for any Wednesday, as the standing committees now are. All it recommends is it have the authority to sit concurrently, it doesn’t say it has the authority to come to us and say, “We’re sitting next Wednesday.” Only by a resolution of this House would it get permission, by agreement from the three parties on a resolution, it would have to sit by resolution. I don’t see where this gives them permission to say, “Despite the order of business, we’re going to sit.” It doesn’t give them permission to do that at all, unless I misinterpret badly the recommendation that is before us.
I would concur with my friend. I don’t think a committee which isn’t scheduled to sit can come along and simply say, “Here we are, accept us whether you like it or not.” There are occasions when it is impossible to do that because of the amount of business being considered by the various other committees. We try to use good sense. For example, we know we will move a number of motions to allow a third committee to sit next Wednesday afternoon as there are only two scheduled to sit at that time.
Only committees scheduled to sit can take it upon themselves to sit on a given occasion, as long as it conforms to the schedule we have adopted in this Legislature. If they are not scheduled to sit, they can’t come and say, “Here we are, we’re going to sit.” They don’t have that authority.
I would think my friend’s fears are groundless. In the final analysis, they are going to have to get a motion through the House in order to get permission. That can only come if the various parties agree to allow the motion to be brought forward by the government House leader. We all know the difficulties in this regard. As my friend knows, we have objected on occasion to allowing committees to sit simply because there was too much going on. I wouldn’t think this would alter that one jot.
Maybe my friend has reasons to think otherwise and I am prepared to listen to those reasons, but I don’t see it happening.
Hon. Mr. Gregory: I can only make my judgement and state my opinion in accordance with what I read. My honourable friend is entitled to his opinion when he says my fears are groundless. The relevant section reads, “...its order of reference be amended to include a provision whereby it is permitted to sit concurrently with the Legislature...” Period, that’s it.
That simply means what it says, in my opinion, and I stand to be corrected; it says the committee can sit concurrently with the Legislature. That means the committee and the chairman of that committee have the right to call a meeting of that committee at any time the Legislature is sitting. My friend is shaking his head and saying I’m wrong. I would ask him to explain to me, then, if what I say is not true and the chairman of that committee called a meeting and said, “We’re going to sit on Tuesday afternoon,” how can we prevent that? Can he please explain it to me?
Mr. Martel: Let me draw the member’s attention to those six words, “whereby it is permitted to sit.” This House will determine when it is permitted to sit. It is not a regularly scheduled sitting day, as my friend knows. He and I worked to draft the schedule of when the various committees are to sit. He knows no other committee is allowed simply to jump in and say, “We’re sitting then.” Only those scheduled committees can do so.
These words are very clear. It says, “whereby it is permitted to sit concurrently.” It has to get permission from this Legislature to sit.
Hon. Mr. Gregory: It doesn’t say that.
Mr. Martel: What they are saying is they want to sit concurrently, provided they can get permission to sit.
Hon. Mr. Gregory: It doesn’t say that.
Mr. Martel: Of course it does. It says, “whereby it is permitted to sit concurrently”--
Hon. Mr. Gregory: It says “to include a provision whereby it is permitted” --
Mr. Chairman: The member for Sudbury East has the floor.
[8:15]
Mr. Martel: Because it is not regularly scheduled it can only get permission to sit concurrently if we, as a Legislature, give it permission. If it is not regularly scheduled, there is no way they can interfere with the standing schedule we devised at the beginning of the session unless we give them that authority.
They can only get that authority when we bring forward a motion whereby the House accepts that it’s going to sit.
I don’t see where they get any authority to infringe on the schedule as it is drafted and adopted by the House; that’s the schedule we’re working by. It doesn’t allow the select committee on Ontario Hydro affairs to sit whenever it wants to. In fact, as my friend knows, even the other committees which are scheduled in certain time slots, if they want an additional time slot have to come back to the Legislature to get that time slot. The standing committee on social development, for example, can’t decide it’s going to sit on Thursday night, but if it needs Thursday night we could give it.
Perhaps my friend recalls the long debate this past spring on rent control. Whenever the standing general government committee which was studying rent control, wanted additional time to sit beyond that which was scheduled, it had to come back and get the agreement of this House to sit, even though it was scheduled to sit on Wednesdays. When it wanted to sit on Thursdays, that committee had to come back to the Legislature to get permission to sit on Thursdays. No chairman can simply take it upon himself to infringe on the schedule which has been adopted by this House.
I think my friend’s fears are ungrounded, not only because of the wording of this, not only because of the schedule, but because of the common sense that prevails around here in scheduling. We know we can only schedule so many things in a given day and we have frequently said no. Conversely, we have frequently said yes when it was requested and could be worked in conveniently. I think that’s all that is asked. I don’t think that gives any committee -- it certainly doesn’t give this committee -- the right to decide, “Yoo-hoo, we’re here and we want to sit, and we’re going to sit.” They’re going to need a motion to sit, because they’re not anywhere in the schedule that was adopted by this House at the beginning of the session.
Mrs. Campbell: Mr. Chairman, we seem to have a misunderstanding. What has happened with the committee on the Ombudsman is that we have reports brought to us, sometimes they are very timely, and we feel there are occasions when we ought to have the right to seek the permission of the House to sit while the House is in session. Thus far, it has been taken for granted that we sit only in the off-period. This, on occasion, leads to our deliberations being very much in a vacuum because of the delay.
It is a fact there are many committees that have the right to sit, and indeed the obligation to sit, while the House is in session. But it does not mean -- and I think the member for Mississauga East, above all others, ought to know this -- that the chairman may call a meeting of that committee in an ad hoc fashion to conduct business. We all know that arrangements have to be made.
What this is seeking is simply the right to not always be blocked from sitting on the basis that we are relegated to sitting only when the House is not in session. To me it would be an absurdity -- and I would hope the member for Mississauga East recognizes we are all responsible people here -- to suggest that in seeking the approval of this recommendation the committee on the Ombudsman wanted to hare off in all directions and sit wherever and whenever it chose. That certainly was not our position.
We just felt there ought to be some provision where we could get into the line of the scheduling so that we might be given consideration with all the other committees entitled to sit when the House was in session and be scheduled in accordance with your normal scheduling practices.
I really believe there is a grave misunderstanding on the part of the government members as to what it is we are seeking. Surely we should have the right to stand in line to be scheduled if there are times available for us to sit when the House is in session. I would have thought it would have a great appeal for the government members, in this time of restraint and constraint, that we would be able to sit when we are not permitted to charge additional fees for sitting on this Committee.
Truly, you have the scheduling in the hands of the House leaders; we would not have any part in that. I would suggest it couldn’t be a disruptive thing to allow us to stand in line.
Mr. M. N. Davison: As a former chairman of that excellent and important committee, I would like to add another element to the discussion. I think what is really at issue is not whether the committee would be sitting on Monday nights when nobody else is around, or whether it would be sitting on Tuesday mornings or that kind of question, what is important is whether or not the committee will be able to sit when the House is in session.
That’s how I read “concurrently.” “Concurrently” in the context of a select committee means when the House is in session, not when there happen to be members sitting about in this chamber debating some point. I think it’s important the government benches understand the context of the word “concurrently.” Without the power being asked by the committee they are generally not allowed, except in very odd and peculiar circumstances, to sit when the House is in session. I think it important they be given that right.
Anybody who has served on the committee of committee chairmen, as I did at that time, would remember there was a very well worked-out arrangement as to when committees would be sitting. In the rules of the House there are time slots for various committees. We can all work that out.
There is another element to this that is fairly important and I would like the government to pay attention to it. There are two committees in this assembly which I view, hopefully traditionally, as opposition committees, committees that are chaired by opposition members regardless of the circumstances. One is the public accounts committee and the other is the select committee on the Ombudsman. Both deal with servants of the Legislature rather than issues or other matters that revolve more around the government. So it is important that we understand it is a committee dealing with the problems and issues that concern the Legislature collectively.
I think it’s a very reasonable recommendation and I don’t know why the government is so up tight about it. These members of the committee aren’t going to want to sit all the time. There is a reason why they have asked for this and I think I can put it to the government fairly simply and fairly clearly. It is this: Up until this time the Ombudsman in Ontario has reported to the Legislative Assembly through the Speaker twice a year. Even though the Ombudsman’s Act only requires an annual report, the Ombudsman was reporting twice a year, which meant there was never more than a six-month time lag involved in a particular case because of a reporting period.
The committee then could deal with issues and cases that came out of that report during the winter break or during the summer break and it worked out very nicely. What happened, though, is that the Ombudsman, with some good reason, has moved to a new reporting system. The Ombudsman will now be reporting on an annual basis. There are benefits in that there is no need for the select committee to review the statistical analysis of the office and a lot of other things that go on at the office on a basis of twice a year, once a year will serve. But the Ombudsman understands that there is a certain urgency involved in some of his recommendations. I will talk about that in a minute.
As well as moving to an annual report, what the Ombudsman is doing is telling the Legislature that he will, from time to time, present the assembly with interim reports, reports that need special and immediate attention.
I can’t read into that what the Ombudsman will do. My guess would be that some of those reports may well be recommendations denied, that the Ombudsman will come to the Legislative Assembly with. I think in those cases it is important that the assembly deal with them as expeditiously as possible. The way you do that is to have a committee like the select committee, or perhaps eventually we will make this a standing committee of the assembly which can sit when the House is in session on that kind of basis to deal with interim reports.
I ask you, please, to look at the recommendation in terms of qualifications. There is a very important qualification in that recommendation, and it is contained in the words “interim reports.” The committee will not be asking, or wanting, to sit during the session to study an annual report of the Ombudsman but rather a special or interim report of the Ombudsman, which I suspect will be dealing with a case in which there is a recommendation denied.
If that sounds a bit dry, consider what it means in more human terms. The majority of recommendations denied when I was on the committee involved the Workmen’s Compensation Board, and I suspect still do. I would ask members to think about their constituents who might be in the position that we are talking about. A constituent has had an industrial accident and, perhaps with the assistance of his or her MPP, has gone through the entire appeal procedure at the Workmen’s Compensation Board. In spite of the fact the constituent was right, the MPP has referred that case, after the rejection by the board to the Ombudsman. We go through another lengthy process there, and we then have an Ombudsman report that says, “Yes, the constituent is right, the constituent deserves and merits compensation,” and the board rejects it. Then it is going to go to the Legislative Assembly and eventually to the select committee.
If we don’t pass this, what you are in fact saying is, “Well, it is okay for that constituent to wait six months or a year, another six months or another year to have his case heard, to have the case brought to the floor of the Legislative Assembly.” That’s wrong; and think about it in terms of one of your constituents.
I feel very strongly about these matters because I represent an industrial riding and I have a lot of compensation cases. I know that the Workmen’s Compensation Board is imperfect and that they make some mistakes. They make them with my constituents. You are asking members to go back to their ridings, to talk to a worker whose livelihood has been lost because of an accident, who has been badly treated by an institution, by the Workmen’s Compensation Board, and to say, “It is okay for you to wait another six months, because we have got this pleasant rule in the assembly that doesn’t permit this special committee, because it is a select committee, to sit and deal with your problem.”
I think the government should understand that became the Ombudsman moved to this new procedure it is important the committee have the flexibility to deal with those cases. I wouldn’t want to vote against this recommendation, then go back and explain to one of my constituents why they are going to have to wait six months for justice. I don’t think members in the government want to do that either.
I think if they look at it in the context of the individual -- and that is what we are talking about when we are talking about Ombudsman cases and Ombudsman recommendations, individual constituents -- when you look at it in that light, I think the members of the government can agree it would be a good idea to provide that kind of flexibility to this committee so that citizens in the province could be better served. I hope the government will reconsider its doubts about this.
It is going to be up to the assembly as to when committees can sit and the timing. That committee is not going to want to be sitting all the time, they are only going to be dealing with these special cases. I think it is a good recommendation; I think the government should join with the Liberal Party and the New Democratic Party in supporting it.
[8:30]
Hon. Mr. Gregory: I would like to thank the members of the opposition parties for enlightening me in explaining their particular viewpoints regarding this clause. I am still having some difficulty with it, in the way it is worded and the explanation of the member for Hamilton Centre that it still requires the permission of the Legislature in order to sit. Perhaps the members of the opposition would consider amending that recommendation so that it reads somewhat in this fashion: “Recommends that its order of reference be amended to include a provision whereby, with the agreement of the Legislature, it is permitted to sit concurrently with the Legislature,” et cetera.
Mr. Martel: Permission of the Legislature?
Hon. Mr. Gregory: I am merely asking if you could consider amending that particular section that way.
Mr. M. N. Davison: If you are asking for a response I would be glad to give you one.
Hon. Mr. Gregory: All right.
Mr. M. N. Davison: I tried to make this point earlier. The Ombudsman select committee is a special committee because we are dealing with a servant of the Legislature, not of the government. It is important that the committee operate in that framework of a group of legislators working together. There is no question of government members, opposition members, there is none of the creative tension that normally goes on in this kind of forum.
What you are asking is that because of the strange ways in which this House works the government House leader is going to have to get up and move a motion. I think it is easier just to leave it as it is worded by the committee.
Obviously the committee, which is composed of members of all three parties, had considered it very carefully over the past few months. I think they have a good recommendation, I think the wording is perfectly workable and I think we should pass it as it is.
Mr. Nixon: I have a feeling that the honourable minister, the government whip, is more concerned about this than is necessary. I think the members of all parties have made it clear that their understanding of this motion is that it would still be at the motion of the Legislature that the meetings of the committee would be scheduled, just as any other committee.
My own feeling is I would hope the Legislature would move to change the status of the Ombudsman’s select committee and make it a standing committee some time, the sooner the better as far as I am concerned.
I agree with the honourable member who spoke a few moments ago, that it has the same importance in the House, and particularly to the opposition, as the public accounts committee; that while they are responsible to the Legislature rather than the government, still the opposition plays a special role in public accounts and to some extent does as well in the Ombudsman’s committee.
I believe the understanding has been expressed, and certainly it suits me, is that what the committee is asking for is the right to sit during the sessions of the Legislature and not be relegated only to the periods between sessions. That would mean they would be slotted in our committee activities the same way other committees are.
For example, as a possibility, the Ombudsman’s committee might expect to have permission from the House to sit regularly every Thursday morning. The honourable minister, the whip of the Tory party might, from his allocation of members, find that inconvenient; and if that is so, certainly some other suitable time could surely be found.
My own experience is that while there are four committees meeting on Thursday morning, the committees are small; the work they are doing may at times be under great pressure and certainly be the centre of much public attention, still on an ordinary Thursday-to-Thursday order of business not many members are involved, the work tends to be routine; and as a matter of fact many of the members of the House -- maybe I am wrong in this -- do not consider Thursday morning a time that commands a good deal of their committee involvement. For a few, of course, the opposite is true; but my own feeling is that another committee could be scheduled there regularly quite readily. The Ombudsman committee would certainly be the one to be so scheduled.
This motion simply wants the Ombudsman committee to be treated like a standing committee and for that reason I hope there is going to be agreement here. As far as I am concerned, since it is a general understanding that the scheduling of all committees is by order of the House, and while it doesn’t depend on agreement of the House leaders the House leaders’ committee is more or less a facilitation through which the various caucuses can express their views -- the House will eventually decide the order of business -- I would have no objection to the inclusion of the amendment that the honourable minister has suggested.
Mr. Isaacs: Mr. Chairman, as a new member of the committee and one who probably doesn’t understand the full import of committee activities on things like North Pickering, I must say that I was impressed on going into the committee that the Ombudsman presented to us some suggestions for cutting down the bureaucracy, for cutting down the amount of paperwork, and for facilitating the flow of business.
We were to have moved from two reports a year to one, and we were to deal with specific recommendations denied whenever the Ombudsman felt that it was appropriate to bring them to the attention of this House. That, as has been explained so well by a couple of my colleagues, is the reason for this amendment. It’s a simple smoothing of the bureaucratic process by which recommendations from the Ombudsman are dealt with.
One does suggest, Mr. Chairman, that the suggestion made by the member for Mississauga East that the consent of the House has to be given every time this committee wishes to sit, is almost a negative to the recommendation before us. The recommendation is that the committee be empowered to sit and the member is suggesting that every time it wishes to sit it has to come here to seek permission. If it has to do that, we don’t need this recommendation because it can do that anyway.
I am sure we all consider the committee chairman and the members of the committee will act in a responsible manner. I don’t understand the fears of the member for Mississauga East. I don’t understand what the committee might attempt to do that would frustrate government business. It seems to me that the committee can only sit when there is an interim report from the Ombudsman. The committee cannot influence the Ombudsman to bring forward an interim report because it wishes to disrupt the business of the House.
We are left with a procedure that smooths the flow of business, that leaves those few recommendations-denied cases that have to be brought before this House into a smoother flow of business, enables us to deal with them, enables us to avoid the situation where members of the public who feel they have been aggrieved are told they will have to wait six or nine months or maybe even more, until the committee gets around to dealing with their particular cases.
It is a smoothing of the work flow and I do not understand why the government is standing in its way. I just don’t see what the issue is.
Mrs. Campbell: Mr. Chairman, on a point of order: I note the suggestion has been made that we amend the recommendation and I would like to be absolutely certain as to the legality of that procedure.
It is true we are going through this report in a clause-by-clause way because the committee has felt for some time that we did not give sufficient attention to the recommendations when they were passed as a general report. But this is a report of a committee; this is a recommendation of a committee none the less, and I would like to have a ruling as to whether we can, in fact, amend the recommendation of the committee as it comes to this House. It would seem to me that we either approve the recommendation or deny it.
Mr. Chairman: I would say to the member for St. George on her point of order, this report is being handled in the same manner as a bill before the Legislature. This House and, particularly in this case, in committee of the whole House, has the right to do as it sees fit. If any member of the committee wishes to make an amendment, I would feel it is the responsibility of the chair to accept the amendment and then the committee can deal with that as they see fit.
Hon. Mr. Gregory: Mr. Chairman, may I then move that amendment? I haven’t completed writing it. Perhaps I could read it to you and then deliver it to you.
I move that item 1, section B be amended by adding the words “with the agreement of the Legislature” between “whereby” and “it,” so it reads:
“ ... its order of reference be amended to include a provision whereby, with the agreement of the Legislature, it is permitted to sit concurrently with the Legislature to consider from time to time interim reports tabled by the Ombudsman in the Legislature.”
Mr. Chairman: I hope you will send that in writing to the table.
Hon. Mr. Gregory: I will complete it right now.
Mr. Renwick: With some reluctance and with the hope that I won’t confuse the situation any further I can well understand the concern the chief whip of the government party is expressing about this matter, because of the obvious principle that a select committee can sit both when the House is in session and when the House is not in session. That distinguishes it from a standing committee, even though in our procedure on most occasions the select committee sits only when the House is not in session, but it is of the nature of a select committee that it is not subject to the same impediment as a standing committee.
Therefore, it seems to me the chief government whip’s concern is not an unreasonable concern, that if that is so, why do we have to have this particular clarification and that it could sit on the call of the chairman, subject of course to the usual rules of the House with respect to the ordering of business.
I think it is helpful, however, in view of the actual specific words of this recommendation, that we take it as a step to clarify the procedure as requested by the select committee on the Ombudsman. Therefore I am quite prepared to accept an appropriate amendment. I had hoped to get to my feet a moment or two before the chief government whip moved his amendment, because I don’t want to cavil about it and I think we now want to reach an agreement about what the amendment should say.
My concern about the actual language the government whip has used is that someone could construe it to mean that it required the consent of all the members of the House. When you say it requires the agreement of the House, someone could say in that situation you need the consent of every member. I think what the chief whip of the government is concerned about is that the proposed change in the order of reference in the committee be clearly subject to the usual ordering of business of the House. I think it would be much more appropriate if instead of the rather abrupt wording of the government whip it said in substance that its order of reference be amended to include a provision whereby, subject to the usual procedures for the ordering of the business of the Legislature, “it is permitted to sit concurrently with the Legislature to consider from time to time ...”
I take it that is exactly what you want to be able to accomplish, that the orderly procedures of the House mean the House leaders meet, they work out whatever the ordering of the business is, and if the chairman of the select committee on the Ombudsman comes and says, “We have an interim report of the Ombudsman, and we want to consider it,” the House leaders will take it into consideration and in due course the government House leader will stand and move that the select committee on the Ombudsman be authorized to sit concurrently with the Legislature. That is what I understand the problem is.
I can understand the concern of the government whip. I would hope some language such as I have suggested, rather than the actual language proposed by the government whip, would perhaps more adequately meet the situation.
Mr. Chairman: Hon. Mr. Gregory has moved that item 1 of section II be amended by adding the words “with the agreement of the Legislature” after the word “whereby” in the second line.
[8:45]
Mr. M. N. Davison: Perhaps I can try once more to clarify the difference between standing and select committees, and how and why this proposal is here and why the government whip’s amendment to it is not appropriate.
The essential difference between a standing and a select committee lies in when those committees can sit. A standing committee can sit only when the assembly is in session; a select committee, on the other hand, can sit only when the assembly is not in session. In both cases there’s a procedure determined as to the slotting of committees.
So there are two elements involved; the first is when a committee can sit and the second is the time slot in that period. There are the processes whereby one goes through the committee of select committee chairmen at the beginning of each of those periods when the House isn’t in session and through the House leaders of each of the parties when the House is in session.
With the resolution of the assembly, any select committee can sit when the House is in session but it requires a resolution of the assembly. Under the procedures suggested by the recommendation of the committee it won’t require a resolution of the assembly but will involve only the normal procedures for slotting. So when we give permission to sit concurrently, what it means is we give permission to sit during the session.
As to the slotting, which is the real concern of the government whip, we will have to go through the normal procedures anyway. I just don’t see the necessity of an amendment which says: “ ... with the agreement of the Legislative Assembly.”
Mr. Nixon: I was listening to the comments of the member for Riverdale. For him to suggest the wording of the amendment as it now is suggests somehow that every member of the Legislature would have to approve, doesn’t make sense to my untrained mind. I don’t want to get into an argument with anybody; I just feel it really would be a waste of our time, since we want to deal with all the recommendations in this report tonight, if we couldn’t just get on with the thing.
Frankly, I feel the amendment, abrupt though it may be, simply says the committee will sit at its own behest but with the approval of the Legislature. We know very well that whether it’s in the rules or not the Legislature is really the final authority on which committee sits and when it sits.
I personally don’t want any specific reference that even implies the role of the House leaders in this -- that we’re supposed to attempt to facilitate -- but essentially whatever the House leaders may decide, with the advice they get from their caucuses --
Mr. Renwick: Don’t try to cow me.
Mr. Nixon: Oh, shoot, my intention is not to cow the honourable member. I thought when the rather simple and abrupt amendment came forward, we could simply pass the thing. The only reason I felt I wanted to make a comment was that I thought the member for Riverdale -- and since he says cowed him, I have a great deal more self-respect than I had before because I certainly never cowed him before -- all I’m suggesting is that the amendment, abrupt perhaps and simple though it may be, has a very clear meaning and it simply reinforces what we all understand. Certainly, I hope we can just get on with it and approve it.
Mr. M. N. Davison: Just one final question, Mr. Chairman. How is the agreement of the Legislative Assembly achieved? Is it achieved by way of resolution? If so, that’s exactly the situation the committee is in now and that’s exactly the situation it would like to alter. If that’s the case, if that is how agreement is achieved by way of resolution -- then I’m not supporting the amendment because it frustrates the purpose of the resolution.
Mr. Chairman: Any further comments or questions on the amendment? Is the committee ready for the amendment?
Those in favour will please say “aye.”
Those opposed will please say “nay.”
In my opinion the ayes have it.
Motion agreed to.
Recommendation 1, as amended, agreed to.
Recommendations 2 to 8, inclusive, agreed to.
On recommendation 9:
Hon. Mrs. Birch: On behalf of the Minister of Community and Social Services, we agree with this recommendation in principle. Accommodation has been made to carry out the intent of this particular recommendation.
Recommendation 9 agreed to.
Recommendation 10 agreed to.
On recommendation 11:
Hon. Mr. Timbrell: Mr. Chairman, at the time of the deliberations of the select committee, the concerns of the Ministry of Health with respect to the original recommendation of the Ombudsman and the revised recommendation of the committee were made known. It is written in such a way that it is a recommendation we will certainly keep in mind in those few, very difficult instances where a particular procedure is either not available in Ontario or not permitted in Ontario and not, therefore, listed in the schedule.
The procedure now is to consult the Ontario Medical Association as to what would be an appropriate fee if it were, first, a service that would be provided in the province and would be agreed on as a medically necessary service and, second, what its value would be.
Mr. Nixon: Are there many of those?
Hon. Mr. Timbrell: No, there are not. There are very few but, nevertheless, they are very difficult to appraise. They are very few and far between, particularly when you take into account that in the United States -- and it’s primarily the States we’re talking about -- people who would be going to clinics or facilities in the United States face a schedule of fees in some parts of that country which tends to be two, three or four times what the fees are here.
Mr. Nixon: They don’t have our advantages.
Hon. Mr. Timbrell: That’s right, they don’t. But they soon will, by all accounts.
Mr. Nixon: They say this is the best in the world.
Hon. Mr. Timbrell: We will certainly bear this in mind.
Recommendation 11 agreed to.
On recommendation 12:
Mr. Chairman: Recommendation 12 is also found on page 102, schedule 9.
Hon. Mr. Elgie: I wish to indicate that the Workmen’s Compensation Board has accepted the recommendation and will evaluate the gentleman for permanent disability assistance.
Mr. Nixon: Did you say “evaluate” or “grant”?
Hon. Mr. Elgie: He has been accepted. Prior to this time, he had not been accepted as someone eligible for evaluation. In other words, the board has accepted the recommendation.
Recommendation 12 agreed to.
On recommendations 13 to 17 inclusive:
Mr. Chairman: Recommendation 13 is found on page 106, schedule 9, part B, number 13.
Mr. Martel: Mr. Chairman, with your permission I would like to ramble a little on two or three of these because they all deal with the same thing basically, the psychiatric assessments involving compensation cases -- whether it’s recommendation 13, or the following one as well. They deal basically with the same sort of problems.
Mr. Chairman: Under those circumstances, I’m sure the committee will allow you to ramble.
Mr. Rotenberg: Since when did you get permission to ramble?
Mr. Martel: I always respect the chair, my friend.
I want to indicate to the minister some displeasure with respect to the manner in which the Workmen’s Compensation Board deals with psychiatric assessments and the problems affecting workers who, first, have been injured physically and who subsequently develop some sort of psychiatric problem.
As a member who, in a five-month period this year, dealt with 290 claims I have come across a substantial number of men who have been injured, back injuries particularly. These men who work in the mines, as my friend knows, develop a lot of back problems. Frequently there is a delay in assessment, there is the length of time doctors allow to try -- if I can use the word -- conservative treatments, and then ultimately there is the decision to perform surgery. Finally, with the time that elapses before we start rehabilitation, it’s been my experience that worker after worker who has developed that sort of back problem, with all of the delays that go with it also develops psychiatric problems -- in fact, many, many of them do.
I’ve encouraged the board over the years to try to deal with these men much more quickly. As I’ve said, even if they were just playing around with widgets to get their minds off the injury, it’s my opinion we might not see the psychiatric problem developing as seriously as it does. When that problem develops we’re really into it.
[9:00]
The Workmen’s Compensation Board in their wisdom -- or lack of wisdom -- do a number of things. After the physical disablement has reached the point where it’s not going to get any better, the board says the worker is capable of resuming some form of modified work in conjunction with the attending physician, frequently without the concurrence of the attending physician, and you have that psychiatric problem that develops.
When that psychiatric problem develops and at this stage the board determines it is going to give the worker a pension, occasionally it will give a supplement but usually it bases the pension solely on the physical disability. It might give him a 20 per cent disability because it’s one vertebra or two vertebrae, but invariably it gives 20 or 25 per cent. That worker who is psychologically impaired is supposed to try to support a family on 25 per cent and go to work.
I have men in a number of cases I have dealt with. I think of one in particular who walked with two canes. The doctors say he is only 20 per cent disabled physically, but psychologically he is completely disabled, and then you try to relate it to the physical impairment.
I wish I could get the minister’s attention. Maybe if I could get the minister’s attention, it would help.
Mr. Bounsall: I’m translating for him, Elie.
Mr. Martel: He might need some help. Let me pick it up again.
When the worker is given a 20 per cent disability pension, when the worker is assessed a physical impairment of 20 per cent and he walks with two canes and he can’t work, you then go up to the compensation board and say, “But psychiatrically he can’t return to work; nobody is going to hire him.” He himself is convinced he is totally disabled. He might well not need the two canes to walk with if he were functioning properly, mentally. We can’t get through to the Workmen’s Compensation Board that as far as earning and returning to work is concerned he is totally disabled. They say, “He is only 20 per cent disabled and we will give him 20 per cent for his psychological impairment.”
Well, he has now got 40 per cent. I ask the minister, because I don’t know, surely when a person reaches that stage of psychiatric disorder he is totally disabled. He can’t perform any meaningful work. It might be fear that prevents him from returning.
I have a case now of a man who is fearful of returning to work. When I sit and chat with him by the hour he keeps telling me he is prepared to try; then you suggest something to him and he says, “But I’m totally disabled.” The board says, “He is only 20 per cent disabled but we’ll give him a supplement,” and so he is in the process of losing his home.
But isn’t he totally disabled? If he did not have that problem before he was injured and it came along as a result of depression or something after that physical disability and he was capable of carrying on before that surely there’s a responsibility to treat him psychiatrically. It’s very difficult to get the board to agree to it, although they will say yes, it’s very difficult. They still always want to pay the 20 per cent; they’ll give you a supplement, but the worker for all intents and purposes is totally disabled, although only 20 per cent physically maybe.
Somebody has to answer for me, if he could perform before he was injured, what it is that triggers him to become so psychiatrically disabled. What is it that triggers that? Is it the accident, the depression from the accident? He was normal before and if he is not after, then surely it led from that accident -- as a result of that accident. It wasn’t the accident that did it all, I am the first one to agree, but something disabled him psychiatrically that wasn’t there prior to his injury.
I don’t know how we get that across to the Workmen’s Compensation Board because there are literally hundreds of men who are in that position as are the cases before us. I don’t know how to deal with it, because if one talks to the Injured Workmen’s Consultants, if one talks to the Union of Injured Workers, in my opinion -- and I’m no doctor -- most of those men are suffering from that sort of condition.
Sooner or later in this province we have to grapple with that problem because, you see, they then go on the welfare roll to survive. But they should not be the responsibility of the Minister of Community and Social Services (Mr. Norton), because it would appear to me as a layman -- and if I am wrong, tell me -- that all of their problems started from the day he or she got injured and progressed from there. Physically they got better to a point where there was a permanent disability, but at the same time or some months later the psychiatric problem developed.
I just think it is time that the minister said to the Workmen’s Compensation Board, in his capacity as the one to whom they report, that they have to grapple with that problem seriously. Maybe they are doing some work on it; in my opinion they aren’t. If one looks at the Ombudsman’s report about a year ago, similar cases were there. If one looks at it now, similar cases are there. If one were to talk to the Union of Injured Workers or to colleagues in this House, my friend’s colleague -- his friend to his right has a full series of problems of the same nature. I suspect rather strongly that if we could sort out the clean breaks -- the broken arm, the broken leg -- from that type of injury, we would find that of the group made up of those workers whom we find in the Union of Injured Workers and so on, most of the four per cent of the cases where we have difficulty are in that category.
I well recall a constituent of mine a number of years ago. He was the highest-paid bonus miner at the Falconbridge Nickel Mine and after his back injury he became a virtual vegetable. His pension, I believe, was $100 a month.
A man doesn’t go from being the highest-paid bonus worker at Falconbridge -- because that is hard work underground -- to trying to survive on $100. This man would fall on the floor and they would have to pick him up; he couldn’t get up off the floor.
I can show the minister dozens of files. As I say, in the first five months of this year my office handled 290 compensation claims alone. Invariably I could tell those who had this type of problem when they walked into my office. You reach a point where you don’t even have to ask them. You just listen to the rambling in the first three or four minutes after they sit down and you can almost say to them, “You have a low back problem,” the answer would be yes.
It just repeats itself over and over. The cases keep showing up here, but we never grapple with the problem. What bothers me is we will resolve these few problems but we never deal with the large number that are out there -- people who have had tremendous work histories, great earning capacities, good supporters of their families who ultimately end up on the welfare rolls and who are just totally destroyed as people.
This is the problem that is before us; this history is there. You look at it quickly, as I did over the dinner hour. It started in 1971 and continued to now. If you were to talk to that man I presume he would give you a litany of the doctors he has seen and who have shafted him in the process; it is just so repetitive and so obvious. We can never get it resolved.
I guess my frustration in dealing with the compensation cases I have is not so much that you can’t get decisions ultimately that are favourable if you have time to go to half a dozen doctors who have looked at him. The 0HIP costs for those people have got to be astronomical. Once the board says, “You are no longer our responsibility,” then they start making the rounds charging it to OHIP. It is just endless. The number of specialists you can write to on any one of these cases is stupendous. No matter how often we plead for this type of case, nothing ever changes.
Surely it is time we started to deal with these problems, if need be having psychiatrists deal with them, sooner than we are doing -- before they have reached a point beyond hope.
Recently I received a letter from the psychiatrist on a case who said, “It is too late. There is nothing I can do for him any more.” The man is only about 38. If we started to deal with those cases quicker, get to whether he is going to have to have surgery, get it done, get him back on his feet with rehab quicker, make sure he has an adequate income while he is being rehabilitated and do the things that would prevent that psychological problem. If it then developed we were not going to be able to help him, then we would have to assess whether the injury, followed by the psychiatric disorder, is making him totally incapacitated.
I am no doctor, but having dealt with many of these cases I happen to believe they become disabled psychiatrically stemming from the original injury. That has to be grappled with and grappling with it one case at a time is no good.
I would like to hear the minister’s comments because as a doctor he has dealt with this field. He understands the problem.
We simply have to deal with it now. To put it off any longer would be irresponsible. All of us over here would support the minister if he said we were going to deal with this problem and get to the bottom of it once and for all. I think everyone would be absolutely delighted to hear that from the minister tonight.
Hon. Mr. Elgie: Mr. Chairman, the member and I have had the privilege on many occasions of discussing this and other problems related to injured workmen. I venture to say there aren’t many areas about which we disagree. He touched on one. He alluded to it because I told him earlier, that recommendations 13, 14 and 15 have been accepted by the board. So I might say that with regard to this select committee’s report, each and every recommendation has been accepted in toto. In the case of the benefit-of-doubt recommendation, it has been sent to committee for review, which is quite in keeping with the wishes of the committee and the Ombudsman.
The matter the honourable member has referred to is a matter which is not new to him, not new to this Legislature and not new to any physician in the province. As a neurosurgeon I suppose it would be unusual for me to attend any medical meeting and not have one of the presenters give a paper on the untreatable back or the ultimate minority of back patients that end up in the untreatable category. They have gone through all the rehabilitation, all of the surgery, all the psychiatric treatment that is available to modern medicine, yet there still remains this hard core of people who, for some unexplained reason, don’t seem to respond to the treatment.
[9:15]
Perhaps we don’t understand enough. One day we may understand more. We are better than we were 10 years ago and far many times better than we were in 1930, when we didn’t even understand there was a disc that could pop out. Things change, and perhaps this is an area that will change.
I don’t know what the answer is, but I like to think for every case the member and others see where this is the problem, the psychological overlay to an underlying organic problem is in the minority. Certainly, in my own experience in practice that’s true. If one gets into the rehabilitation process at an early phase with the reassurance of an individual’s future and his relationships with his fellow man in society in my experience rehabilitation is usually possible.
The member is quite right. The key to it is early rehabilitation and early encouragement of an individual that his life isn’t through because he has had such an injury to his back. I don’t know really whether the cases we are seeing are just that core that can’t be helped or not. Each individual who has a back injury will have a reaction to it that is a function of what he was before the accident and a function of what happens to him after the accident. Both of those two components are always there. They form the basis of our individual reactions to our individual problems.
The member well knows, as he hobbled around this building four, months ago and as he pitied me a month ago as I hobbled around with a back problem, we all try to handle it in our own way. There does remain this hard core, and I don’t know what the answer is. I like to think the majority of them are being handled in a very adequate way by the board and the few we are talking about now, if they are true cases, as the member suggests, have slipped through the system.
In any event, I would agree with him if there are people who are not being treated adequately by the board in terms of compensation, rehabilitation and vocational assistance, we should make every human endeavour possible to reassess on a regular and periodic basis the criteria which we use for psychological evaluation and compensation on the basis of a psychological aspect.
I will do everything in my power to make sure the board, if it is not already doing so, which I must find out first, does have this regular review of the criteria it uses so that sort of sensitivity which is so important to that particular type of problem is always present and always available for the board in its dealings with injured workers.
Mr. Martel: I am trying to defer it for a moment because there is still something that is disturbing me. Suppose a worker suffers a physical disability and, let us say, the board assesses him as 20 per cent disabled because, as my friend knows, the board goes for some time and waits until the worker reaches a level where it feels there will be no more improvement and then it assesses a pension rating.
Let’s say they give him 20 per cent, but he becomes psychologically impaired. In other words to cite a case, the man is now using two canes but the doctors tell me he doesn’t need them. The psychiatrist I wrote to said, “He’s reached a point where we really can’t do much for him.” The board then gives 20 per cent more.
The question is how disabled is he? Is he 20 per cent physically disabled and only eligible for a 20 per cent supplement, adding another 20 per cent to his disability? Or is he, in fact, totally disabled from the accident -- not totally physically disabled, but psychologically disabled as well? That’s how the problem lies in trying to get recognition of that. Can we get recognition, let me put it that way, of the fact that he has become 100 per cent disabled of which maybe 80 per cent is psychological, but he simply can’t work?
That’s where my difference lies with the board, which comes along and gives him 20 per cent more. The question is, is he totally disabled? That’s what we can never grapple with. I am anything but an expert, but when I see these people and when I talk to them and listen to them, I know there is no way of getting them back to work. The man gets another 20 per cent. But is he 100 per cent disabled medically when you combine the physical and the psychological impairment?
Or the silly 40 per cent figure that comes up. How do you determine the guy is 40 per cent disabled if psychologically he is not capable of working again? I am sure my friend has seen them. To what do we attribute that extra amount that makes him totally disabled? How do we arrive at a 40 per cent pension? I am not sure. I guess what I am saying is, is he 100 per cent disabled?
I don’t know the answer. All I know is he is not going back to work and we see all kinds of people who end up on Canada pension. Thank goodness Canada pension is a little more receptive to the problem the man has in dealing with the board. Maybe the minister can tell me: can we blame the psychiatric problem on the physical problem and, if so, how do we determine he is only an additional 20 per cent disabled? Or is he 100 per cent disabled? Maybe the minister could tell me.
Mrs. Campbell: I would like to address my remarks to the minister in a somewhat different vein. As the minister knows, we at the Ombudsman committee have been wrestling with the whole doctrine of reasonable doubt. It seemed to me that following along the lines of the argument of the member for Sudbury East, we were getting to the point of a philosophical overview of many of these cases which up until now have fallen because the Workmen’s Compensation Board was not really addressing itself to the question of reasonable doubt.
I have welcomed the minister’s very sympathetic review of the recommendations of the Ombudsman and, in turn, of the committee. If the minister would only look at these cases, having in mind at least the doctrine of reasonable doubt, it might be another approach to dealing with the group rather than resolving, in a rather inefficient fashion, one case at a time.
I think what the member for Sudbury East is saying is, can we not get to the root of this basic problem? I have to tell you, Mr. Chairman, that while I don’t handle anything like the number of cases he does, I do have cases which fall into this same category and I recognize there are problems. It isn’t an easy thing because we do have to prove at least in a prima facie way that there is a psychological or psychiatric overtone to the problem. It seems to me that having accepted the position of the Ombudsman on the matter of reasonable doubt to a large degree, the Workmen’s Compensation Board seems to have put aside this one section to be dealt with in a different fashion.
I would hope the minister would try to review with the board the positions they see with reference to these very real cases. To me they’re tragic in that we know it’s possible that something may be done. To lose that chance through a lack of any real effort is troublesome to me.
Perhaps from that point of view, apart from any other point of view, we might take a fresh look. There isn’t any doubt on the part of any member in this House dealing with workmen’s compensation cases, including the minister, I’m sure, that this is one of the surviving in-depth problems of the Workmen’s Compensation Board.
I have felt this board has come a long way with the efforts of the Ombudsmen and the select committee. I don’t like to see us moving so haltingly, case by case, as we are doing with this group. I do recognize that the cases must stand on their own merit but there must be some guidelines that can be referred to in order to try to assist those with the psychological and psychiatric problems. In these days of all our experts it really isn’t too difficult for us to ascertain those with the real problems in this area and those who perhaps don’t have a problem. The work record prior to the accident surely should be one of the very real criteria for examining these cases.
I just add my voice to that of the member for Sudbury East because I too have experienced it. I don’t think one has to look very far anywhere in this House not to see others who would corroborate what both of us have said.
Thank you, Mr. Chairman.
Mr. Lane: Mr. Chairman, I think we all appreciate the volume of business the compensation board handles. I think it has come a long way in the eight years I’ve been around here, compared with what it used to be.
I’d like to pay tribute to the member for Sudbury East for his contribution. I think he’s made not only a contribution to this House, but also a substantial contribution to the board in resolving some of the very sad situations they’re faced with on a daily basis.
I don’t pretend to handle the number of claims my friend from Sudbury East does but I certainly have my share of the claims because of the industrial activities in both Espanola and Elliot Lake. We talk to the board on a daily basis, I would think, and visit it less frequently. However, my friend is right: it’s a sad situation that we have to resolve these situations one at a time, when there are many that never would be brought to the attention of anybody and never will be resolved.
Many of these people are very proud and hardworking. Even though, through various avenues of income, they may eventually get enough to keep the family together and supply their livelihood, we’ve taken away that pride they had in providing home and livelihood for their family.
The one thing I would like to contribute, if there’s something I could contribute, would be to say that the greater the speed these claims can be handled, the less likelihood of this mental state my friend from Sudbury East talks about will develop. So if there’s any way the board can, with the volume of business that it does, act more rapidly and give that person the peace of mind he deserves at an earlier date, so that he realizes he’s going to be looked after reasonably well and he’s not going to have to depend on welfare, move into a cheaper neighbourhood, or not let his son go to college, whatever the case may be, if he is getting only half the money he earned when he was out working hard for a living, then I think we can avoid the mental state often found in people who have not only suffered injury but also the frustration of not knowing when, if ever, their claims are going to be resolved.
[9:30]
I like to think the Workmen’s Compensation Board might in some way speed up its processing of claims, especially those kinds of cases my friend from Sudbury East has mentioned, I know a back injury is very hard to define. Thinking back to the days when I was in the insurance business, I recall we were paying compensation under an insurance policy to a man injured in an automobile accident. The company would ask me, “How much longer were we going to pay this guy?” I would tell the doctor, “We have been paying the man for six months and he seems to be all right.” The doctor would say, “It is pretty hard to tell. It’s his back, not mine and he says he has pain.” So we continued to pay him for a further period of time.
I know it is very difficult in the medical profession to zero in and say, “Yes, this is one that deserves attention and this one is a make-believe situation.” I know that is what the board is faced with. But if we can speed up the processing of claims to prevent the frustration and worry that so often occurs, I think we will have gone a long way towards resolving the problems my friend has brought to the attention of the House.
Mr. Charlton: I would like to add a couple of brief comments to what has been said and respond in a way to what the minister said in his initial response to the member for Sudbury East. The minister mentioned that these kinds of situations had to be dealt with sensitively and if we found they were not being dealt with in that way, perhaps the criteria by which they are judged should be reviewed.
I would suggest that at least in a fair number of cases people at the board are extremely reluctant to make a judgement on psychological problems. I am not sure what the reasoning behind that is. I attended an appeal hearing today at one o’clock. The situation in this case was one where almost everybody involved, all of the attending physicians and almost all the board doctors, had said in a number of reports over the years that there was a psychological component to the claimant’s disability.
At one point a claims adjudicator even recommended that because of the psychological component the claimant be awarded compensation for the psychological component in the form of a supplement for two years and that it be reviewed thereafter. There were all kinds of evidence in the woman’s file about the psychological component of her disability yet at no point was the award granted. Possibly after a decision on the hearing today is made she will be granted entitlement on those grounds.
However, I want to make the point to the minister that perhaps his “perhaps” should be carried out. Perhaps we should be having a very careful look at how and why. And perhaps the problem with the employees at the board is a lack of effective ways of judging, effective guidelines. I am not sure exactly what the problem is but there seems to be a serious reluctance there. It is something that should be looked at.
Mr. Mancini: I really welcome the opportunity on any occasion to express my concerns about the Workmen’s Compensation Board. Having had firsthand contact with the board after I was elected in 1975 I understand just how very real and very large many of the problems at the board are.
It certainly is good for the injured workers of Ontario to have someone like the Ontario Ombudsman review the procedures of the Workmen’s Compensation Board, and it certainly is good to have his recommendations in front of the Legislature.
There are two points I would like to touch on in the few moments I have to comment. One is the area of reasonable doubt; the second is the area of adequate pensions.
When an injured worker files a claim, and the claim goes through the review process, is turned down at different levels and finally gets to the appeal board, the worker may or may not have the workmen’s adviser there, he may or may not have representation there and he may or may not have enough facts to win his case. The area of reasonable doubt, in my view, is too vague and the area of reasonable doubt, in my view, is not used often enough.
I draw this to the attention of the minister, solely because I believe many injured workers in this province are not receiving a penny, not a single penny, from the Workmen’s Compensation Board because the area of allowing them reasonable doubt for their injuries is too vague. I’m sure the appeal board people who sit behind a desk and listen to the worker are sympathetic, but their guidelines in this area of reasonable doubt are not strict enough.
I have a blatant case in my own riding -- where a seriously injured worker --
Mr. Laughren: You are a blatant case.
Mr. Mancini: I know the member of Nickel Belt is as concerned about this worker as I am, and that’s why he’s listening very attentively.
Mr. Laughren: What about the minimum wage? What are your views on the minimum wage?
Mr. Mancini: We can talk about the minimum wage after, as far as the member for Nickel Belt is concerned. The area of reasonable doubt: What does the worker do? What does the injured worker do? I know the member for Nickel Belt is listening. What does the injured worker do when he feels this has not been used, when the tool of reasonable doubt has not been used? What alternative is left to the injured worker, I ask the minister? Nothing. There’s nothing at all left.
What is the only thing an injured worker can do after he’s gone through the system from top to bottom, taking a whole year to go through the process, and has found that his case has been denied, and has found that the tool of reasonable doubt has not been used? What tools are at his disposal for him to seek recourse? He has to go to the Ombudsman, and we have to start all over again. That is another long procedure. That procedure is not good enough. That procedure has to be dealt with all over again, if need be. When I see legitimate injured workers who have families to support, who have worked for many years and who go through a process from one review to another and come up with nil, I think we have to have something better for them at the end of the road.
Take, for example, an injured worker who may be between 45 and 50 years old, who has worked for 20 or 25 years and who has proved that there is a reasonable doubt that his injury is compensable. What does a worker have to do to prove to the board that there is reasonable doubt?
I have a worker who was injured on the job. He was injured on a construction job and he could no longer do that work. What he did was take employment at less pay, in a lighter working atmosphere where he didn’t have to lift up blocks, et cetera. I have an injured worker who has taken pay cuts two and three times because he wasn’t able to do heavy-duty work.
We placed this evidence before the Workmen’s Compensation Board at the final appeal hearing. They said that was not enough evidence to give the worker the benefit of the doubt. When an injured worker takes a less well-paying job and lowers his standard of living, that should be enough to give him the benefit of the doubt. That’s why I say there is too much vagueness in that phrase. We’re going to have to change, if need be, whatever guidelines the minister gives to the board because, frankly, I haven’t seen any guidelines he has sent to the board concerning this very important issue of giving the worker the reasonable doubt in case of an injury.
I consider the treatment of these injured workmen extremely unfair. They are too young to collect from anywhere. Where are they supposed to obtain funds to maintain their families? To what agency are they to apply, after having been refused by the board a single penny for compensation and after having taken almost a whole year, if not a little longer, to go through the whole process? That’s very unjust.
I would hope the Minister of Labour, who has been in his position now for about a year, would look into that area, would issue some specific instructions and would possibly have them tabled in the House to indicate what he intends to do with this problem, because the injured worker who is not given the reasonable doubt for his injury is far worse off than the worker who at least gets something.
Members can well recall all the debates we have had in the Workmen’s Compensation Board estimates. We’re probably just repeating again all of the things we said there. The reason we do so is that when a person’s livelihood is taken away from him, it’s the most serious thing, I believe, that can happen to a person in his life.
I personally believe most people want to be productive, want to go to work, want to receive their pay cheque, want to pay their bills and want to improve their living environment. However, this all falls apart when a person becomes an injured worker.
We have heard the story from one Minister of Labour, previous to the present minister’s appointment, that they are given something, et cetera, but that’s not the point. We also have heard this is possibly the best workmen’s compensation system. I don’t know where; they usually say North America. That is still not a good enough answer. I have heard that comment many, times from the previous minister. I have sat in committee after committee and have heard that.
If anyone will check the records, I am sure with no trouble at all he will find we were told what a great system we have. Maybe it’s true, but we’re pointing out to the minister the inequities in the system. Just because it’s better than someone else’s system doesn’t mean it is treating the injured workers properly. This vague idea about giving someone the benefit of the doubt is not working well enough, in my view. I hope the minister will address many hours of his time to this particular problem. I hope some time in the near future he will be able to report to the House exactly what actions are going to be taken to alleviate some of these problems.
It is shameful the way some of these people are treated. Basically, their lives are completely ruined. We, as members, see this unfolding before us time and time again. Frankly, we have a feeling of helplessness when the injured worker has gone through the system while we have assisted them along, taking a whole year to do it, yet he ends up with nil when he is legitimately injured. The benefit of the doubt, that vague idea the minister and his predecessor before him has espoused, is not working.
That is the first area I want to touch on, Mr. Chairman. The second area is the idea of pension, and some type of reward for the amount of disability, and that is what it comes down to. You reward people for the amount of disability.
[9:45]
I address these comments to the minister’s predecessor. If you have a bus driver who has injured his back and can’t turn the wheel, and you assess the man at 35 per cent disability, where and how is he supposed to pick up the rest? If he can’t do the job he was doing, why and how could he be classified as 35 per cent disabled?
These are questions that we have asked before; the answers are not forthcoming; the injured workers are still treated like lepers. We give them just enough to carry on some type of existence, hopefully just enough money that they won’t create any kind of disruption; and the system carries on.
Frankly, it is getting a little tiresome on this side of the House to address these concerns to the Minister of Labour, and when we have the opportunity, to the chairman of the Workmen’s Compensation Board.
We don’t believe that the minister doesn’t care; don’t believe the minister and the chairman want to be cruel people and want to withhold benefits. But we start to become curious after a great deal of time passes and changes are not implemented; we start to become very concerned when injured workers do not receive yearly increases in their pensions and yearly increases in their benefits. We do not understand how the minister would expect them to be able to maintain some semblance of family life when he denies them yearly increases, when he classifies them as 35 per cent disabled and when, if appeals come through, he will probably throw in another 10 per cent for some kind of psychological disorder.
Frankly, no, I don’t have all the answers. I am sure the minister and the chairman of the Workmen’s Compensation Board have the money and authority and prestige at their disposal that they could hire sufficient people to help them solve many of these problems.
By ignoring the problem it is not going to go away. By giving a person a 35 per cent pension, when he is totally disabled, is not going to solve the problem. By letting the injured worker go through a slew of appeals only to be given an answer that is really unsatisfactory when all facts are considered, is not going to make the problem go away.
So I leave these thoughts with the minister. Sometimes I get a little emotional when I speak of this matter concerning injured workers, but the reason I do is because it is very difficult to witness people in your own community who have worked hard and, through no fault of their own, have suffered injury and see their whole life fall down around them.
I can well understand, after having been here in the Legislature for a little over four and a half years, having watched up close some of these injured workmen. I can well understand why psychological disorders occur, because if I had to go through the system that they had to go through, and go for months at a time without pay and not know where to turn, I think that would affect all of us.
I just wish the minister would give further consideration to these problems that have been outlined by many members of the House, and whatever --
Mr. Deputy Chairman: I might remind the member he is being very repetitive. I don’t wish to detract from what he is saying, but I think he has said the same thing over and over again.
Mr. Mancini: I just wanted to make my point with the minister, Mr. Chairman. I didn’t realize I was so repetitive. The minister was looking so intently I thought it was all new stuff. I would just hope the minister would think of somehow streamlining the process.
With those few comments, I will take my seat.
Mr. Renwick: Mr. Chairman, I have just two points I want to make. My experience in recent months with the Workmen’s Compensation Board, limited as it is, tells me the time has come when a commissioner should look at the board. There are some serious problems there. We have been talking forever about what the minister refers to as hard core cases. The way they are dealt with is inequitable. I think the commissioner has to be a man of the equivalent calibre of Stephen Lewis, the former leader of this party, or Stephen Lewis himself, if he were available, to look into what is happening at that board.
The second thing I want to say is that I am going to take the minister at his word; it is going to occupy a bit of his time but I know he will give it that time. I had occasion this year to try to deal with about half a dozen cases dealing with psychiatric disability as a component of the overall disability of the cases -- a range of situations involved in it. I was shocked at the files at the board. I spent an immense amount of time going through the files to try to sort out what had happened to these men’s claims. Each of them is at various stages of appeal. Some of them are concluded in most unhappy circumstances. On a couple I wait forever for reports to come in.
I am not complaining about delay as such. That is not my point. I am going to send him, if he will take the time, a transcript of one of the cases wherein the hearing took, for practical purposes, all day. It represented the equivalent, I suppose, of about four or five days’ time in preparation for that case. I tried to put before the board what happened from the time this man was injured, and we are still fighting the case.
There is something seriously wrong in the procedure. When you take it to the appeal process it is almost as if that is another step in the quagmire, not a step in the resolution of the problem. Now we have the Ombudsman and we have added another step in the quagmire for these difficult cases; they take an interminable amount of time. One doesn’t have to be Sigmund Freud to understand that psychiatric disabilities become more and more entrenched as time goes on, in many instances.
I know the minister understands it and is well aware of it. I don’t think I can add to his sense of the dimension of the problem. But I think somehow or other someone is going to have to take a look at that board -- someone who is not one of Her Majesty’s judges. It should be some person with the skill and ability to take a number of these cases as sample cases, take the time to go through them and work out what is wrong. There are any number of cases that are duplicated.
That doesn’t take away from the fact that statistically there are a tremendous number of claims that the board settles quite expeditiously over a period of time. We are talking about the cases that come to the members of this assembly because they have nowhere else to go. They have been through the mill, usually before we as members get them. Then we are constantly fighting the same battles. There must be some better way of dealing with them than this constant head-on collision about what can be done.
When I have the transcript of that one case I will send it over to you and ask if you will be good enough to pore through it and ruminate on it and perhaps then we could discuss it.
Mr. Martel: Is the minister not going to respond?
Hon. Mr. Elgie: I appreciate many of the remarks made. I don’t think anybody is under the illusion we all aren’t seeing the same sort of difficult parts of our problems.
I do have some reservations about the remarks of the member for Essex South when he suggests he hasn’t seen any guidelines that I have forwarded to the board. I tell the member in all sincerity, that is not my job, nor does the act allow me to do that, nor do I hope he thinks the act would allow me to do that. That is one of the functions of the board and the corporate board under the act. It’s not my job to prepare guidelines, nor would it be proper for me to do so.
I think the member for St. George and other members have referred to the doctrine of reasonable doubt. As has already been mentioned, a changing concept of reasonable doubt is under consideration by a committee of the board. I hope out of that and out of the efforts that led to that, mainly prompted by the select committee and the Ombudsman, that we will achieve a concept of reasonable doubt that will alleviate some of the problems that confront us and confront injured workers.
The member for Sudbury East put a question to me regarding what is the answer. I don’t know the answer. I think he knows that and he knows that nobody really has that answer. He knows the case that’s presented as well as I do. It’s a person who has had an injury, who makes some sort of recovery from the injury but has a psychological overlay. The decision then is, as the member for Riverdale said, is this an unremitting, permanent, psychological overlay with absolutely no hope of rehabilitation and the longer the situation goes on, the more likely that is so; or is this someone who by all objective tests still has the capacity to return to work but this psychological problem interferes with him, and is there still some hope that he can be encouraged to do so? Where the dividing line is I don’t know. That is one of the problems the board faces.
But certainly I think the comments tonight have been helpful and if I could answer it more directly and more exactly, I would.
Recommendations 13 to 17, inclusive, agreed to.
Report, as amended, agreed to.
On motion by Hon. Mr. Gregory, the committee of the whole House recommended the adoption of the amended seventh report of the select committee on the Ombudsman.
Motion agreed to.
The House adjourned at 10:01 p.m.