Legislative Assembly of Ontario

REPORT OF THE SELECT COMMITTEE ON THE OMBUDSMAN

---

The House resumed at 8 p.m.

House in committee of the whole.

REPORT OF THE SELECT COMMITTEE ON THE OMBUDSMAN

Mr. Chairman: Members, I thought it would not be appropriate to make a comment or two at six o'clock, because I know how anxious everyone was to get away for the dinner hour. At this time, however, I would like to have it stated on the record how pleased I am to have the support of all members of the Legislature. I will do my utmost to carry out my function to facilitate the business of the House, and use my discretion as wisely and as well as possible to continue a full and active debate within these sacred halls.

It goes without saying that I acknowledge and thank the Minister of Intergovernmental Affairs (Mr. Wells), who moved the motion for my placement as Deputy Speaker and Chairman of the whole House, and the member for Brant-Oxford-Norfolk (Mr. Nixon), who seconded the motion.

Before we get into this evening's debate an interesting comment, if I may allude to it, was made about my position as Deputy Speaker and voting during particular aspects of the debate. I might inform the House that I have had the opportunity of doing some research in this matter. I would like to point out that in Ottawa the Deputy Speaker, who I might add is a government member -- and I point that out to our opposition members here this evening -- has indeed the right to vote in a matter in which he sees fit. In some aspects of the latest constitutional debate he has refrained, but the comment I have received is that he has done so only if it is a very delicate situation in terms of debating Canada's constitution.

I might also point out that I have had the opportunity to seek advice from the Legislative Assembly in Saskatchewan. I thought that would be an appropriate province from which to seek some direction. The member for Oshawa (Mr. Breaugh) will be very interested to know that in that province the Deputy Speaker, who is also a member of the government, has a free choice to vote for or against any government motion. As a result, following the true tradition of parliamentary precedent, I will continue on that basis, but of course I will always be willing to take in any debate or consideration at those appropriate times when members would like to bring that to my attention.

An hon. member: Are you going to be fair, as you always are?

Mr. Chairman: I will be fair, as I always am.

Continuing with the debate on the select committee of the Ombudsman, I would like to bring to the attention of the Legislative Assembly that it is my understanding that recommendations from a previous report are scattered throughout this particular report. However, I believe we will be following the recommendations on page 77, some six of them. If I am correct, that is what the members will be giving their attention to, the summary of recommendations scheduled at page 77 of the committee's eighth report.

On recommendation 1:

Hon. Mr. Timbrell: Mr. Chairman, just to make life easy for everybody, let me say the Ministry of Health accepts the recommendation of the committee with respect to recommendation 1 which I want to read into the record:

"The committee therefore recommends that the Ministry of Health give prompt notice to all persons whose claims for benefits under R99O" -- that is an OHIP category -- "are in the future refused, full particulars of the appeal procedures available to them at the same time as the notice of refusal is communicated." We accept that.

For the record, in the 1981 schedule it is code R991, if that point is important to anyone opposite or on this side. But we do accept the recommendation and we will implement it.

Mr. McClellan: Mr. Chairman, I guess we are a little handicapped in having this debate without an incumbent chairman of the select committee to deal with some of the matters that arise in the report. All I want to say, as a member of the select committee on the Ombudsman since 1977, is that I appreciate very much the way in which the Minister of Health has just responded to the recommendation of the select committee. I also appreciate the way in which the government has responded in a general way to recommendations of the select committee ever since the select committee tabled its sixth report.

Members will recall that we ran into a major difficulty following the tabling of the select committee's fifth report where a number of recommendations of the Ombudsman, which had been supported by the select committee, were not being implemented by various governmental organizations and a way was then sought to resolve that impasse for the sake of the Office of the Ombudsman and its continued integrity. That process is what we are addressing here tonight.

All I want to say is this select committee has been the one committee in this place which, in my view, over the past four years has been genuinely nonpartisan. I mean that quite sincerely. In the time I have sat on that committee, it has been free of the kind of interparty wrangling that characterizes every other aspect of business in this Legislature or all other committees.

I think that is a tradition which must be maintained if the Office of the Ombudsman is to survive. I think it is an important point which I want to stress to members opposite and, in particular, to the government House leader as we enter this debate this evening. I don't think the Office of the Ombudsman can withstand a reintroduction of partisan considerations into the Ombudsman's decisions or the work of the select committee.

We will be continuing the debate over the course of the evening. I simply wanted to thank publicly the Minister of Health for his response and to express the wish that his response tonight, which is consistent with all responses since our sixth report was tabled, is going to characterize the responses of the other five recommendations to come.

Mr. Chairman: Any further discussion?

Recommendation 1 agreed to.

On recommendation 2:

Hon. Mr. Bennett: Mr. Chairman, I recognize the feelings of the committee in relationship to some difficulties that were experienced by one of 61 housing authorities in this province.

While I accept recommendation 2 of the committee, I think it would be well if we could look at some of the responsibilities the housing authorities have undertaken with a degree of understanding by the members of this House past and present, and also with the understanding that the housing authorities are made up of individuals appointed or recommended from the municipal, provincial and federal levels to represent the best interests of the people of their community.

They do have the responsibility of trying to resolve a great number of problems. They are responsible for applications made to them on a monthly or daily basis for occupancy in units that are supported by this government and the federal government to provide proper accommodation.

8:10 p.m.

I do recognize the fact that over the last five years or so there have been about 250 complaints relating to the Ontario Housing Corporation or subsidized units and the way applications have been dealt with by the local housing authorities. I would have to think, with some degree of satisfaction, that this is the first case out of 250 where the Ombudsman and the committee felt there was some error on the part of the authority in that particular area.

I would like to read into the record the fact that although the select committee and the Ombudsman did not agree with the housing authority's judgement and handling of this particular application, the committee did say, Mr. Chairman, and I quote, "The committee has no doubt that the members of the housing authority acted in a way which they individually and collectively believed was in the best interests of all concerned."

A little later in the report the committee indicated that they did not want to undermine the importance of the authority. I quote again, "The committee in no way wishes to downgrade the autonomy that housing authorities must enjoy."

I accept the recommendation of the committee. Through the Ontario Housing Corporation chairman, Mr. Moses, we shall be in touch with the chairman of the particular housing authority.

I have to indicate clearly to the House at this time that there is a change in the chairmanship. The present chairman's term of office is expiring and he has served the maximum number of years that we usually allow for an individual on the authority.

I just wanted to indicate clearly that I think basically, to a very large extent, these people give freely of their time. I think members on both side of this House have heard me speak at various openings; this is the one group where people serve entirely at their own expense, there is no honorarium or remuneration for serving on a housing authority. I want to compliment the 61 authorities and the dedication of all the people, regardless of who recommends them for the particular responsibility. I think in this province we can be rather satisfied that they do dedicate their efforts, not without some mistakes obviously.

I will report through from the chairman of the Ontario Housing Corporation to the new chairman of this authority that we wish recommendation 2 to be enacted, or at least the opportunity to be given to the original applicants for a unit suitable for their accommodation.

Mr. Eakins: Mr. Chairman, I want to say I appreciate that the minister has accepted this recommendation. I want also to pay tribute to the work of our housing authorities, because they do have a very difficult job.

I have worked very closely with the Victoria-Haliburton Housing Authority and I know they have many difficult decisions. They have many people waiting for accommodation and I know it goes on a point basis and a need basis.

This particular case was a very difficult one. In the Ombudsman's committee I certainly supported this recommendation. I know from past experience that when some people who have had difficulties have been given opportunities in the way of better housing it has made a big improvement to those families in the future. I have been able to experience that.

I appreciate the work our housing authorities are doing and I think, as the minister has stated, this is an isolated case. We do have people appointed by the three levels of government who are serving very well our housing authorities in this province. I appreciate that the minister has accepted this, and I just want to add a word of appreciation for what the housing authorities are doing in this province. They are doing a good job.

Mr. McClellan: Mr. Chairman, I want to thank the minister for his response to the select committee's recommendation. He rightly points out the committee was very careful in its language, and I quote from page 36, "The committee in no way wishes to downgrade the autonomy that housing authorities must enjoy."

In other sections of the report the committee expresses deep appreciation for the work of the individual members of the housing authority. I may make some additional remarks with respect to the principle involved in this particular case for the third recommendation, but I do express the gratitude of my colleagues that the basic issue, which was the plight of the family without housing in this particular community, has been addressed by the minister.

Mr. Eaton: Mr. Chairman, having been a member of that committee at the time, I had some grave doubts about the position we took in regard to this. I expressed concern because I think the Ombudsman's office is one we must respect and rely on for deep investigation into situations like this.

If I had to sign the report, I question whether I would have signed it without putting in some comments as a minority report on this item. Since I was just a substitute on the committee at that time, I did not have to sign it. However, I do want to make these comments in regard to it.

I believe the investigation in situations like this must be complete and thorough. That was one of the things that concerned me very much at the time, because in this instance the housing authority acted on the basis of a great deal of experience in its own community, on the basis of interaction with the people involved and in consideration with other people who had to live in close proximity in public housing under the housing authority in this situation.

For the life of me, I could not see how a person could go down, do half a day's investigation, come back and draw a conclusion as was drawn here. Surely in an instance like this it is based on something happening in the community in which all the people in the community are involved for a long period of time. I do not see how someone else can go in and pass judgement on half a day's reporting on what came before the committee as differing reports from the same people. I just express that concern.

As we found out in our discussions and deliberations, that was the first situation the person reporting on this incident had been turned out to investigate by the Ombudsman's office. This is of great concern to me. If we must rely on the information that comes from the Ombudsman and on which he makes his decisions those investigations must go much deeper than half a day in an instance like this. I simply express that concern.

I too had feelings for the family involved. I am pleased the minister has accepted the recommendation in the long rim, but I do have grave concerns about that kind of an investigation in such a situation and I hope that goes to the Ombudsman's office so he can look at those situations and make sure his investigations have a little more depth.

Recommendation 2 agreed to.

On recommendation 3:

Hon. Mr. Bennett: Mr. Chairman, in recommendation 3 we are dealing with the manuals of the Ontario Housing Corporation and the committee indicates that it "conduct a review and study of its manuals and the decision-making functions of housing authorities in particular for the purpose of amending its manuals to give housing authorities more guidance in order that the rules of administrative fairness will be more strictly adhered to."

I would like to report to this House that the manual is one of the documents that is constantly under review as a result of input from housing authorities and others. I trust we are not going to get to the point, as we have said in the earlier statement, that the autonomy of the housing authority is taken over entirely by a provincial operation.

8:20 p.m.

One of the reasons we established the local housing authorities -- and I think it was in the best interest of the delivery of that service -- was to allow for a certain amount of local input to the operation. But in response to recommendation 3 -- and we accept the recommendation obviously, because we are in the process of doing it virtually on a weekly or monthly basis; we try to involve more than just the people at the Ontario Housing Corporation.

There are also those who work in the Ministry of Housing and those -- both in paid positions and nonpaid positions -- who are with the various housing authorities across the province. We will continue to upgrade and improve and we hope, with the understanding of the community housing authorities and the OHC, to find guidelines and rules that are workable and which will allow us to deliver through the housing authorities the best possible program to the people applying for the units.

Mr. McClellan: I would like very briefly to thank the minister for accepting the recommendation and to flesh it out a little bit. On page 36 of the report the committee notes, as I said before, that it "in no way wishes to downgrade the autonomy that housing authorities must enjoy."

We go on to say, however, they are crown corporations established under an order in council. The order in council reads that the housing authority shall "make bylaws, subject to the approval of the Minister of Housing, regulating its proceedings and the conduct of the affairs of the authority."

Second, "...shall be charged with and shall assume responsibility, as defined and determined by Ontario Housing Corporation, for the management, operation and administration of such family and senior citizen housing projects."

So the order in council very clearly sets out the responsibility of the ministry and of the Ontario Housing Corporation to do what has been set out in the recommendation. The reason we wanted to -- in a way -- red flag it was that it became clear during the course of the committee's hearing that some of the practices would appear to violate natural justice. Specifically there was the fact that the local housing authority had basically consulted the grapevine in the local community to get a kind of profile of the family.

I think all of us, particularly members from rural communities, have an understanding about how things are done in small communities. But we have to be very vigilant that there is only one set of administrative procedures and one set of entitlements for public housing right across the province -- from Cornwall to Kenora. That is the only point the select committee is trying to make in this recommendation.

Mr. Eakins: Would it be in order to ask the minister one question? Does he have regular workshops to update the members of the authorities as to some of the new regulations he might be bringing in or points he wants to stress to make sure there is a high degree of administrative fairness in the Ontario Housing Corporation?

Mr. Chairman: Mr. Eakins, as you are well aware it is not in order, but I think in the interest of having a free-flowing debate possibly the minister might oblige.

Hon. Mr. Bennett: It is a pleasure, Mr. Chairman, to answer the member's inquiry.

Yes, we have area meetings with the chairman and members of the Ontario Housing Corporation to which we invite both staff and members of housing authorities from various parts of the province, and usually they are on Fridays and Saturdays. Again I want to compliment the authority members, because they spend Fridays and Saturdays at their own expense trying to improve their knowledge about the delivery of this important program in the province.

We have had a fair amount of success with the Association of Ontario Housing Authorities. This association is made up of members of all the authorities in the province who try to give some guidance and direction through the Ontario Housing Corporation. So we do have that provincial organization which participates with us as well. I think the conferences and seminars we have had for staff and authority members have been very beneficial for all.

Ms. Copps: I wonder if the Minister of Housing might bear in mind in the study of the revision of manuals and procedures that the OHC, at least in terms of the Hamilton-Wentworth Housing Authority, does not at present appear to have a consistent policy regarding appeal procedures.

I would ask the minister that, as is at present carried out in the Ministry of Community and Social Services and in the Ministry of Labour, complainants or applicants, specifically housing and transfer applicants, be granted the right to a verbal hearing before a full board so they might air their case in a democratic and just manner. I think this is a policy that is not currently enforced and it is one that should be given very serious consideration when the manuals are being revised.

Mr. Boudria: Mr. Chairman, I have just one observation. The case we are discussing now is one that occurred in my constituency. One of the things many of the local groups were concerned with was the fact that the manuals are not readily available to local community organizations for perusal to see whether the guidelines are being adhered to. Being from small communities, if the manuals the housing authority has are not made available to the public, the public has almost no other place at hand to get the manuals to verify whether the decisions taken by housing authorities are proper ones.

I am wondering if the minister will keep in mind, when he is revising his manuals, that one of the revisions would be that the manuals themselves be more readily available or always available, or something to that effect, to ensure that the public will always have access to them. That was one of the problems that was occurring in Hawkesbury in this particular case.

Mr. Philip: On that very topic, one of the things the justice committee found in its inquiry into OHC was not only that the manuals are not easily accessible to certain advocacy groups such as legal aid groups and other community groups, but also that the way in which they are updated is inconsistent. Sometimes decisions are being made on regulations or changes of rules that these groups, acting on behalf of tenants or the tenants themselves, are not aware of.

I think that may be one of the things the minister wants to look into, the problem of making sure that the updating is consistent throughout the province and that updates are sent to everyone where a manual is available.

Hon. Mr. Bennett: A very quick response to the member for Hamilton Centre (Ms. Copps): I appreciate the comments she made about the appeal procedure and it is one we are already looking into to try to standardize it across the province.

I trust the member will appreciate that for me, as the minister, to say that an appeal is going to be before the whole board is not quite fair to a group of people who are giving of their time. They usually try to establish a committee of the authority to do a review of a particular application or applications. In some areas this works extremely well, in other areas it does not -- because, I suppose, of the difference of opinions on how appeals should be handled.

We are in the process, through the Ontario Housing Corporation, of establishing a standard appeal procedure regarding applications for subsidized or rent support housing.

To the member for Prescott-Russell (Mr. Boudria) on his remarks in relationship to the manual and the member for Etobicoke (Mr. Philip), I say to them that a year ago or thereabouts we indicated clearly the further availability of the manual for the Ontario Housing Corporation and the operation of housing authorities. We indicated where these manuals would be available.

As the member for Etobicoke will recall, I said at the time that one of the things we could foresee a little difficulty with was trying to make sure the manuals were continually updated properly. Although we might in Toronto, through the Ontario Housing Corporation or the ministry, send out the additional pages, I have the fear often, as with any catalogue situation, that the right pages may never get substituted. But to the best of our ability and through the cooperation of the housing authorities, we hope those manuals will be maintained in a current position, so they are available to whatever group of people wishes to make use of them.

8:30 p.m.

Ms. Copps: Point of information, Mr. Chairman.

Mr. Chairman: All right, let me hear it.

Ms. Copps: When the minister is considering the standardization of the appeal procedure, would that also apply to transfer applicants?

Mr. Chairman: Not knowing what a point of information is, will the minister reply?

Hon. Mr. Bennett: Well, it is a point of policy that was changed by our government on April 1 a year ago. At one time the eligibility factor and transfer policy usually crossed boundaries.

If you recall, Mr. Chairman, back before April 1 a year ago, if an individual happened to live in Hamilton-Wentworth housing district and wanted to move to the Ottawa-Carleton district, that person could not do it because he or she was not resident in that community for one year. We eliminated the one-year rule, save and except that an individual must be a resident of Ontario for one year.

If the member is asking if the transfer policy will be reviewed by the appeals committee, I would think if it is an application that is refused, there would be the right for an appeal the same as there is for an application by anyone wanting first-time use of a public housing facility.

Mr. Chairman: I want to remind the member for Hamilton Centre that this is not a question and answer period. But possibly she would like to make one more point and we will ask if there is any further debate.

Ms. Copps: When I said transfer, just for clarification --

Mr. Chairman: Let me have the member's point of clarification.

Hon. Mr. Bennett: A week from tonight, as you know, the justice committee's report, re the Ontario Housing Corporation's annual report that will be reviewed back prior to a certain day in history, will be here for debate and review. I would think the question the member for Hamilton Centre is asking could likely be more fully entertained at that time.

Ms. Copps: My question regarding the transfer policy was in regard to intramunicipal and not intermunicipal transfer. I am talking about the transfer of someone who is already housed within a certain authority and would like to change apartments.

Recommendation 3 agreed to.

On recommendation 4:

Hon. Mr. Elgie: Mr. Chairman, if I may, by way of a short introduction, I want to take the opportunity of reinforcing the introductory remarks made by the member for Bellwoods (Mr. McClellan). I agree with them.

As a member of that committee in the past, and reviewing its activities since my experiences with it, I confirm it is a committee that has demonstrated an ability to think independently, and not to be perceived by anyone as a rubber stamp. It does not mean it is always right, but it means it has that nonpartisanship that, I hope, along with the member and others, will continue.

Mr. Chairman: I am having difficulty hearing the minister. I am sorry.

Hon. Mr. Elgie: All right.

I am not quite sure why recommendation 4 was included in the list of recommendations. As one turns to pages 44 and 45, one will see, and I quote: "The appeal board, by decision of November 5, 1980, extended the benefit of reasonable doubt in the complainant's favour and concluded that on April 9, 1976, he sustained personal injury in the form of disablement, arising out of and occurring in the course of his employment. The committee has considered the decision in its entirety. It accepts it as full compliance with its recommendation and the recommendation of the Ombudsman as contained in his original report."

So I am not quite sure why that particular recommendation was there, because I am also informed by the board that recommendation was indeed previously accepted.

Mr. McClellan: The minister is quite right. The Workmen's Compensation Board has already implemented the recommendation to the satisfaction of the select committee. To be totally candid, I cannot exactly remember either why it is included there, the events of March 19 having somewhat scrambled my brain. The point, I think --

Mr. Eaton: I thought it happened before that.

Mr. McClellan: It may be true, but they are much more scrambled than they were then.

The point that the committee wanted to make was simply this: It should not be, and is not, necessary for us to get to the stage we are at tonight before the governmental organization takes action, as recommended by the Ombudsman.

Let us not forget what we are dealing with. We are dealing with recommendations of the Ombudsman on behalf of the citizen against a governmental organization in which the governmental organization has refused to accept the Ombudsman's recommendation, and, second, that the select committee, having conducted a full set of public hearings into the case at hand, has decided to support the recommendation of the Ombudsman.

The select committee does not, as the minister knows, rubber stamp the decisions of the Ombudsman. There have been a number of cases, much to the Ombudsman's dismay, in which the select committee has not supported his recommendation. Our committee has developed both a tradition and a skilled practice of evaluating the investigations and the recommendations of the Ombudsman's office. What we are dealing with is, in a sense, a convention which we are trying to establish. I will deal with this, if I have to, with respect to the final recommendation.

In European countries where the Ombudsman has a long history it is not necessary for legislatures to undertake this kind of a procedure because the tradition is very firmly established. The tradition in Denmark, Sweden and Israel, with which I am familiar, is that if an Ombudsman makes a recommendation and the government were to deny that recommendation, the Ombudsman would have no choice but to resign.

That is a tradition that has developed over the course of many years in Denmark and Sweden, but it is also a practice that has been adopted as a convention in the state of Israel. There is simply no question of a governmental organization in those jurisdictions repudiating the recommendation of an Ombudsman.

We do not have that tradition in Ontario, and in the absence of that tradition we have searched for a way of establishing a satisfactory convention of our own, a convention in which the Ombudsman can exercise what we refer to as his ultimate sanction if the governmental organization refuses his recommendations. But we are walking on eggs and I do not think anyone should be under any illusions on that score.

There is nothing more useless than an Ombudsman whose recommendations are ignored by governmental organizations. It simply means that for the citizen, he or she can have no confidence that referral of a problem to the Ombudsman will be consequential.

At any rate, that is one of the points we are trying to make in this case, that it should not be necessary, except in really extreme circumstances -- and this case was not an extreme circumstance -- for recommendations denied to be brought to this Legislature.

Mr. Eaton: Mr. Chairman, just to comment on the remarks of my colleague -- not directly on this particular one, because I think it has worked out, but in regard to what he said about the Ombudsman not having to come here but having to resign if the Legislature were to oppose something that he did.

I look back at one recommendation we had in the book, where, in fact, we did oppose the recommendation of the Ombudsman. It almost reflects on what I said on another one on housing. The report states: "It became apparent that the Ombudsman's investigation raised many unanswered questions. For example, at no time during the Ombudsman's investigation did anyone in his office interview the complainant personally."

8:40 p.m.

This kind of a report, coming before our committee, certainly is not the kind on which you could hang your hat and say that we should not oppose any recommendations that the Ombudsman brings before us. This would be my grave concern. I think it might be a great tradition to develop, but we would need to have much more reliable investigation into the decision-making before I could accept that kind of approach.

We respect the Ombudsman's office and he should have the opportunity to carry out any investigation possible but that investigation should be carried out completely. It should bring about the confidence of the members of the Legislature in any recommendation he makes. I think we have that confidence in most cases. But I am concerned about that particular aspect and refer to it in the one recommendation we did turn down.

In the particular case I refer to, it was pointed out that after his investigation the Ombudsman did say, after a second longer look at it, he would make a different decision. One of the references in that -- and I think the chairman of our committee would have raised it himself had he still been with us here as a member -- was that in formulating the recommendation the Ombudsman, in this complaint, had done the very thing the committee commented on respecting complaint 38 in his sixth report. That is, the opinion formulated by the Ombudsman in this case as to the unreasonableness of the Ministry of Revenue, referred not to the original decision of the ministry in denying a complainant's entitlement to a grant, which decision was the subject matter of the Ombudsman's investigation, but to a decision, recommendation, act or omission made by the Ministry of Revenue during the course of the Ombudsman's investigation.

This is a concern which came up two or three times in the committee. I leave it at that. We have seen a lack of full investigation a couple of times before the committee. It is a concern that I think has to be considered very deeply by the Ombudsman's office.

Mr. Chairman: The comment I have, Mr. Eaton, is maybe you strayed a little far from recommendation 4. However, anything further? Mr. McClellan.

Mr. McClellan: I obviously did not explain very well what I was trying to say. The point I wanted to make was that the select committee does not rubber stamp the recommendations of the Ombudsman. Over the past four years, the select committee has been satisfying itself that the investigation has been thorough and absolutely to the letter of the Ombudsman Act.

There has been a number of recommendations where, in the opinion of the select committee, either the investigation was not sufficiently thorough or the proper procedures were not followed by the Ombudsman's office, in which case we did not support the Ombudsman's recommendations. What I was talking about was recommendations which the committee had investigated and then supported. In other words, the committee had satisfied itself that the investigation had been thorough, competent and according to the required procedures of the act.

In those cases, and in those cases only, I think there is an obligation on the governmental organization to implement the recommendation of the Ombudsman without the necessity -- except in rare circumstances -- of coming before the Legislative Assembly.

Mr. Eakins: Mr. Chairman, I agree with Mr. McClellan. I can assure members of the House that these recommendations and the recommendations of the Ombudsman are certainly not rubber stamped in any way.

I have served on this committee for several years and it is the one committee -- and I might say this of the three parties -- which is nonpartisan, and on which everyone looks very hard at the work before the committee. We question the Ombudsman's staff very closely on many of these recommendations, but having visited Ombudsmen's jurisdictions in other countries, I can assure members that what the honourable member said is quite correct and we do have to take very seriously the Ombudsman's recommendations because they too put a great deal of work into their investigations.

In particular, on recommendation 4, with which we are dealing, I can say to the minister that of all of the problems which come before the Ombudsman committee, perhaps recommendation 4 is symbolic of those which give us a great deal of thought; and those are the back problems. The thing we have to consider here is the existence of reasonable doubt, and I think where this reasonable doubt exists it certainly has to be in favour of the complainant.

Mr. Charlton: Mr. Chairman, I would like to make just a couple of quick comments to the minister in response to what he said at the outset to the effect that he could not understand why this recommendation was here. I have to agree totally with what my colleague from Bellwoods said, but point specifically to where that problem is clearly laid out in this report.

Mr. Minister, you will note that at the bottom of page 44 it says, "In response to the committee's motion, the Workmen's Compensation Board conducted a hearing." I think that is the first point that is made in this recommendation. Perhaps that hearing should have been initiated by the Workmen's Compensation Board upon the recommendation of the Ombudsman, and it should never have had to go to the committee in the first place.

If you refer to the next page, page 45, the third full paragraph, "One of the greatest frustrations felt by this committee is the time lag between the issuance of the Ombudsman's report and the ultimate implementation of this committee's recommendations..."

I think that is the whole point of this recommendation, Mr. Minister. As my colleague from Bellwoods pointed out, at the very least it should be incumbent on any governmental organization, if not automatically to accept recommendations of the Ombudsman -- and I would tend to agree that any governmental organization has to satisfy itself that the Ombudsman's investigation has been thorough and complete, but that should be done by the governmental organization, not necessarily by a committee of this House -- at least to have the responsibility of looking again at the problem in question upon the recommendation of the Ombudsman, as was not done in this case until after the committee had dealt with the whole matter. That, I think, is the frustration that is being expressed here.

Mr. Chairman: Thank you, Mr. Charlton. Any further discussion?

Recommendation 4 agreed to.

On recommendation 5:

Hon. Mr. Elgie: Mr. Chairman, I believe that yesterday the Ombudsman received the following letter from the Workmen's Compensation Board:

"As you know, the select committee in its eighth report to the Legislature agreed with your recommendation in Mr. Herrmann's case. This recommendation was the subject of a discussion at a meeting of the board on May 12, 1981. I am pleased to inform you that the board has agreed to implement your recommendation as endorsed by the select committee."

So recommendation 5 has just in the past week been accepted by the board.

Ms. Copps: I find it incredible that recommendation 5 should have been accepted by the board only this week, just prior to the submission of the report by the select committee. I would like to refresh the committee's memory a little bit, and I am going to quote now from a copy of a letter that was sent to one of my constituents -- a constituent, by the way, who, on the basis of section 42, has lost to date over $200,000 of compensable income that was his due as a result of a work injury.

This is a letter that was written to him by the Ombudsman on February 12, 1981, long after the passage of the report by the select committee. Mr. Morand said:

"On February 11, 1981, I notified Mr. T. D. Warrington, vice-chairman of the appeal to the Workmen's Compensation Board, pursuant to section 19(3) of the Ombudsman Act, of my possible conclusion and recommendations with respect to these cases." These cases, I might point out, number more than 100, not simply the test case that is shown in the document here.

"I advised Mr. Warrington that I was of the tentative opinion that the decisions regarding the cases referred to in appendices A and B were unreasonable, as the board had limited its inquiry to a clinical assessment, and had failed to give consideration to all relevant factors," et cetera, et cetera.

8:50 p.m.

Hon. Mr. Elgie: Mr. Chairman, on a point of order: With respect, I would suggest the member is on the wrong case. We are coming to that one next.

Ms. Copps: We are recommendation 5, which is section 42.

Mr. Chairman: In regard to continuing the discussion, Ms. Copps, if the minister would agree to listen to your comments he could possibly respond under section 6. Possibly you could, if you have extended comments before section 6. Would that be inconvenient for you?

Hon. Mr. Elgie: Mr. Chairman, if I may explain, under item 6 there has been a recommendation from the Ombudsman and the select committee that the board vary its practice. There is some debate as to what the legal interpretation of a section is, but recommendation 5 does not revolve around any dispute with relation to the interpretation of section 42(1).

Mr. McClellan: Mr. Chairman, may I speak to the point of order? I think it might be helpful if we could put over the discussion of section 42 until the next recommendation or to the estimates. I would make a plea, and perhaps it is an uncharacteristic plea, that we not pretend that the report of the select committee is the same as an estimates debate.

We have tried relatively diligently to separate our political concerns about the Workmen's Compensation Board from the work of the select committee and to deal with the merits of cases and the principles the cases illustrate. Each and every one of us can bring as many workmen's compensation cases into the House as we have filing cabinets for and be tough, vicious, nasty, brutish and long in dealing with them.

I simply want to say we have tried not to do that with respect to recommendations and issues before this particular committee and I think that is a practice which has stood us in good stead.

Mr. Chairman: Mr. McClellan, I will take your comments under advisement. Ms. Copps, I think we will continue in regard to further general debate on recommendation 5. The minister has indicated your comments relate to the principle of recommendation 6. Possibly we will listen to your comments at that time.

Mr. McClellan: Mr. Chairman, just one point: One of the things I want to draw attention to in this case is the use of the medical referee. I want to highlight it because it relates to the suggestion the Minister of Labour made some time ago around the use of medical referees to arbitrate in a sense, or at least adjudicate disputes.

The problem in this case was that the Workmen's Compensation Board appointed a medical referee after the Ombudsman had made his recommendation. I want to stress that is a totally inappropriate way to use a medical referee. In essence, the board is trying to set up a second opinion against the recommendation of the Ombudsman which is totally inappropriate in the view of the select committee as set out in this report.

Recommendation 5 agreed to.

On recommendation 6:

Hon. Mr. Elgie: Mr. Chairman, as I guess we have intimated in some of the earlier remarks various members have made, there is certainly disagreement and dispute about recommendation 6. It revolves around the proper interpretation of section 42(1). Both the board and my own ministry have obtained legal opinions. It is with a degree of regret that I have to inform members there is disagreement, not only with the opinion of the Ombudsman but with the opinion of the select committee in this regard. We believe and the board believes that point of view has been well substantiated by legal opinion.

It revolves around the interpretation of section 42(1) and whether that section relates only to a permanent pension on the basis of a clinical assessment or whether such a determination regarding a permanent pension should also take into account the earning capacity.

I may read into the record a three-page report -- and I ask the members' forgiveness for having to -- and if members wish I will be pleased to table both legal reports, but I do think it is important to read --

Mr. McClellan: On a point of order, Mr. Chairman: I am not trying to be disruptive, but I wonder if it is possible to make a copy of the legal opinion available now so we could read it as the minister reads.

Hon. Mr. Elgie: Mr. Chairman, I can do that if we want to delay proceedings for a moment. It is up to you.

Mr. Chairman: No, Mr. McClellan has indicated we can continue and it is not necessary to delay proceedings. Will you continue then, Mr. Minister?

Hon. Mr. Elgie: I have no objection to doing that. That is the point I am trying to make, Mr. Chairman.

Mr. McClellan: Why do you not read and have a copy made while you are reading?

Hon. Mr. Elgie: That is an interesting way to approach it.

Mr. McClellan: Do you not have more than one copy?

Hon. Mr. Elgie: I do not have more than one copy.

Mr. Chairman: Let the minister continue and possibly as we are carrying on the debate a copy could be made at that time.

Hon. Mr. Elgie: Mr. Chairman, I will have copies made of this immediately upon completion of the reading. This will be one of the copies I will table in the Legislature and give to members. The board's opinion was obtained from John J. Robinette, of the firm of McCarthy and McCarthy, and the opinion that my own ministry obtained was from the Deputy Attorney General, H. Allan Leal. If I may read it:

"We conclude, for the reasons stated below, that the clinical assessment interpretation placed by the board on subsection 1 of section 42 is correct. Firstly, we note from the materials that possibly both the Ombudsman and the select committee are attributing the board's interpretation of subsection 1 of section 42 to section 42 in its entirety. However, such is not the board's practice.

"The board's interpretation of subsection 1 as being referable only to clinical evaluation does not mean that the board will not consider other factors in arriving at compensation for the purposes of arriving at a supplemental under subsection 5 of section 42.

"The materials you sent us indicate that a wage test is used. Indeed, those materials clearly indicate that the board views assessment of compensation under subsection 5 as an assessment supplemental to compensation assessed on the clinical evaluation basis under subsection 1 and as well as compensation calculated upon a wages or earnings principle. Thus the board calculates the totality of compensation under section 42 on the basis, firstly, of the clinical evaluation principle under subsection 1, and secondly, in appropriate cases, additional supplementary compensation by application of a wages or earnings test under subsection 5.

"Notwithstanding that, the Ombudsman and the select committee seem to be of the view that the board, for the purposes of section 42, is assessing compensation only on the clinical evaluation basis and asserts that this interpretation is wrong and that the board should assess compensation thereunder on the basis of all relevant factors, for example, wages. Perhaps then some discussion of this apparent misunderstanding among the board, the ministry and the Ombudsman office and the select committee might assist in resolving the matter.

"Secondly, on the face of section 42(1), calculation of the impairment is referable solely and exclusively to the nature and degree of the injury -- that is, the clinical assessment -- taken in conjunction with the rating schedule mentioned in subsection 3. There is no express mention of any other factor in subsection 1.

"Thirdly, one must look to the history of the permanent disability workmen's compensation provisions in this province. That history gives us our conclusion. Prior to the Workmen's Compensation Act, 1914, workmen's compensation in Ontario was based on a right of action adversarial concept. The 1914 statute established a nonadversarial scheme and a compensation fund was the genesis of the present act.

9 p.m.

"Section 38 of that original 1914 act clearly and expressly placed compensation for permanent disability upon the wage test only. Section 38(1) of that act provided: 'Where permanent partial disability results from the injury, the compensation shall be a weekly payment of 55 per cent of the difference between the average weekly earnings of the workman before the accident and the average amount which he is earning or is able to earn in some suitable employment or business after the accident, and the compensation shall be payable during the lifetime of the workman."

That scheme of a wage test only for permanent disability was carried through successive Workmen's Compensation Acts until 1942. Section 2 of the Workmen's Compensation Act, 1942, repealed and replaced the permanent disability provision. Section 40(4), as enacted by section 2 of the 1942 act, retained the wage concept and was the forerunner of the present section 42(5). Subsection 4 provided as follows:

"Where the board deems it more equitable, the board may award compensation for permanent disability having regard to the difference between the average weekly earnings of the workman before the accident, and the average amount which he is earning or is able to earn in some suitable occupation after the accident, and the compensation may be a weekly or other periodical payment of 66 and two thirds per cent of such difference, and regard shall be had to the workman's fitness to continue in the employment in which he was injured, or to adapt himself to some other suitable occupation."

So it was clearly the forerunner of the present section 42(5). For the very first time, however, in calculating compensation for permanent disability, we have the forerunner of the present section 42(1). This forerunner was section 40(1) as enacted by section 2 of the 1942 act. It provided:

"Where permanent disability results from the injury, the impairment of earning capacity of the workman shall be estimated from the nature and degree of the injury, and the compensation shall be a weekly or other periodical payment during the lifetime of the workman or such other period as the board may fix, of a sum proportionate to such impairment, not exceeding in any case the like proportion of 66 and two thirds of his average weekly earnings ascertained in the manner provided by section 38, and shall be payable notwithstanding section 2(1)(a)."

It is our submission that if the Legislature had intended in the 1942 act to retain the wage principle as the exclusive test for calculating permanent disability, section 40(1) would not have been required and enacted. The Legislature must have intended something by the enactment of section 40(1) and that something is, we submit, a test different from the wage test contained in section 40(4).

It is submitted that the Legislature, in section 40(1), was not simply restating a wage concept already set out in subsection 4 but was setting out as a primary basis of calculation of compensation for permanent disability a concept new and different from that of the wage test. This is the test of the nature and degree of the injury. As wages are already mentioned in section 40(4) -- the forerunner of 42(5) -- it is submitted that the nature and degree of the injury is not referable to wages but rather is referable only to the clinical assessment approach.

Fourth, it appears that since 1942, at least until the present conclusion of the Ombudsman, the permanent disability provisions have remained unchallenged and have been interpreted in Ontario as a clinical rating award primarily. Also, if applicable, it was an award based under some other criterion such as wage loss applied through the old section 40(4) and the present section 42(5).

For all of these reasons, therefore, we conclude that the board's interpretation is correct. If I also may read selectively and briefly --

Mr. Chairman: Would that be the letter of which copies are required?

Hon. Mr. Elgie: Mr. Chairman, if I may read selectively from the report of April 14 from J. J. Robinette, on page one:

"I regret that I cannot agree with the Ombudsman's opinion or the subsequent report of the select committee with reference to the proper interpretation of section 42(1) of the act. In my view, section 42(1) requires the board, in accordance with its present practice, to make a clinical or medical evaluation of the nature and degree of the injury and nothing else. The present practice of the board is to arrive at a decision by a consideration solely of the nature and degree of the injury expressed in percentage terms in relation to an unimpaired body. In my view, the present practice of the board is required by the language of section 42(1)."

I gain comfort for this opinion from the language of Chief Justice Sloan who made a report on the workmen's compensation system in British Columbia in 1952. Chief Justice Sloan said, quoting Mr. Robinette:

"The Ontario board is empowered to evaluate compensation on loss of physical capacity solely, without any reference to the actual or potential future earnings of an individual claimant. The board has power under section 42(5) to make supplementary awards within the limits of the language of section 42(5). However, as far as taking action under section 42(1) is concerned, the mandatory language of the section, in my view, makes it very plain that any impairment of earning capacity of the employee is to be estimated from the nature and degree of the injury only and, in my opinion, the board cannot accept the views of the Ombudsman or the select committee. It is unnecessary for me to point out that a committee of the Legislative Assembly cannot alter the laws expressed in section 42(1) of this act."

Mr. Chairman, I therefore regret I have to advise the House that the government and the Workmen's Compensation Board cannot accept the recommendation noted as recommendation 6 in the select committee report.

Mr. Smith: I rise with some trepidation to take on the legal opinions of both Mr. Leal and Mr. Robinette. It is only because I have the privilege of not being a lawyer that I feel I can perhaps add a word on such a matter. I imagine most lawyers would feel even greater trepidation before taking on these two learned people --

Mr. Breaugh: They would want a higher fee.

Mr. Smith: They would want a higher fee indeed.

I take some comfort from the fact that Mr. Morand himself was a justice of the Supreme Court and has some ability in the interpretation of the law.

I would say the issue is not so much whether section 42(1) was intended to be a wage test, because I agree section 42(5) lends itself much more clearly to being a wage test, but I would say section 42(1) speaks of estimating the degree of disability by the nature of the injury. Here we come to a question -- and the minister being a doctor himself would understand this well -- as to whether there is such a thing as an injury of itself that does not relate to the impact that injury has on the functioning of the entire organism.

I would submit there is no such thing as an injury. There is an injured organism, an injured person. To speak of an injury in and of itself is almost the way it is sometimes when things get a bit busy at a hospital and two doctors are talking and one will say to the other, "The most beautiful broken leg walked into my office the other day," or, "This fabulous kidney problem walked into the office." No kidney problem walks into an office. A person walks into an office and that kidney problem will have a different impact on one person to what it might have on another.

Therefore, it seems to me it is well within the possibility, in interpreting section 42(1) and in estimating the degree of disability by the nature of an injury, if the board wished to think in these terms, not to apply a wage test necessarily -- a wage test can come under section 42(5) -- but to apply an interpretation and an estimate of not only the injury as though it existed in a vacuum, but as it exists in the person at the time.

I would point out, irrespective of what this means in terms of wages, that for a concert pianist to lose the use of the right thumb is a heck of a lot worse than five per cent, not only in his earning capacity but in the impact that has on the person's ability to function in society, to function in a working role, to be a breadwinner, to be a father or mother or whatever the situation is.

9:10 p.m.

To speak of the injury to the thumb as though that injury exists in a vacuum somewhere is meaningless. An injury to the right thumb in a Minister of Labour is a hindrance and an inconvenience, but is in other ways absolutely unlikely to be part of a destruction of his entire personality, a total change in his lifestyle, or a complete alteration in his relationship to his family. But that injury in a concert pianist who has devoted his or her entire life to becoming a concert pianist is a far different matter, apart from the test of wages.

I wish people could understand that we are not just talking of applying the test of wages in section 42(1). Mr. Robinette may be right that wages should be confined to section 42(5). We are talking of the impact of an injury on the entire person.

For example, we are speaking of the impact on an Italian immigrant who has been here for 15 or 20 years, has perhaps a grade three education from a little village in Italy, has been working in construction all his life, and who then throws out his back while carrying some heavy materials on a construction site and is totally unable to work.

I am not simply saying to apply the wage test in section 42(1) that might be applied in section 42(5). I am saying, consider the impact on that person who is now no longer a breadwinner; who cannot hold his head up in the family any more as a person supporting a family; who is no longer in a position to gain respect in the traditional manner from his children, his relatives and his neighbours; who becomes deeply distraught and depressed and might even take to drink as a consequence of this; whose general ability to function in the home becomes almost negligible; who is underfoot most of the time until his wife is tired of him; and whose family breaks down totally.

Think of situations of this kind. To say that his estimate of injury should be based on the injury as though the disc in his back could be removed from the person and regarded in comparison with a disc in the back of the Leader of the Opposition or the Premier of Ontario (Mr. Davis) is absolute nonsense. It is convention, it is custom, there is no question that is how the board has been operating. But Mr. Morand, the Ombudsman, says the board does not have to be so narrow in its outlook, and I say Mr. Morand is correct in this view.

I do not necessarily say that section 42(1) can be strictly in and of itself a wage test. That is not the question I put to you, Mr. Minister. I put to you that the entire effect on the persona, on the personality, on the personal role of the individual, on his whole life, is what has to be taken into account.

To say that a disc is a disc is a disc, no matter in what back the disc happens to have been displaced, or that a thumb is a thumb is a thumb, no matter in what arm that thumb has been injured or in what person, in what family or in what circumstance, is the narrowest kind of meat chart approach and is totally wrong. Not only is it wrong -- and therefore new legislation should be brought in to change it -- it is not even necessary under the present legislation.

Mr. Robinette may be right, and God knows I am not going to argue with him on legal matters. He may be right that section 42(1) cannot be a wage test, but it can be a test of the extent of the injury without narrowly defining injury to the geographic part of the body and its precise anatomical place in the body. It should be taken to be the injury to the whole person in his work, in his personality and in his family.

That is the argument and I hope the minister can understand it. I hope that being a surgeon he has not forgotten that you do not operate on organs, you operate on people. The injury is not an injury, it is only part of an injured person.

That is the distinction I think the Ombudsman is trying to draw to the attention of the Workmen's Compensation Board when he says you do not call a thumb a thumb and it is five per cent in everybody. It can be a heck of a lot more than five per cent in some people and not just based on wages and how many dollars might or might not have been earned. That can be added. I believe that is the fundamental point.

It is easy for the minister to just sit back and say Robinette said section 42(1) is different from section 42(5), or Leal said this or that. That is all very well. But the minister happens to be a man for whom I have a certain amount of personal respect. He is one of the few people in this cabinet who has the capacity to think for himself. If the minister does think for himself, he must surely recognize the validity of what I am saying, that there is a third point.

It is not just a question of the injury versus a wage test, an estimate of the injury versus an estimate of the wage loss. There is the third point; that is, to define the injury as broader than just the precise organ and the number of centimetres that happen to be affected, to define the injury in terms of the injury to the whole personality, to the whole person, to the whole being. And that is not being done now.

What happens now is that the guy is given 25 per cent for his back, and yet his whole life is destroyed. So the board says: "Well, just a minute. Maybe he's sad; maybe he's depressed." And the guy says: "Yeah, I'm depressed." The board says: "Aha! Good. We'll give him another 10 per cent for psychiatric disability." They take a guy and make him into a psychiatric case because then, if he is called a psychiatric case in addition to a lumbar spine case, he qualifies for two anatomical disabilities and it gets a little closer to what he really ought to have.

But you cannot start dividing people up and saying this much of their problem is the back, this much is the fact that the back has driven them crazy, this much is the fact that maybe they were a little crazy before the back hurt them, and this much is the fact that their back is hurting more because they are a bit crazy. Maybe the back is hurting more because they are a bit crazy, and they are a bit crazy because the back is hurting more. This is the kind of ridiculous argument you get into at the Workmen's Compensation Board today. The minister knows that. He must surely understand that as a physician. I simply say to the minister that, as a physician and a politician, he does not have to do that.

What the Ombudsman, Mr. Morand, is saying is that under section 42(1), without applying a wage test necessarily, the minister can define the injury in broader terms than just a narrow geographic area of where the injury has occurred. It seems to me that rather than expanding it only by calling people psychiatric cases, if the minister could expand it by actually allowing the application of a broader definition of an injured organism or an injured person, he would be in the spirit of what the Ombudsman is suggesting.

The minister would also do himself a great deal of credit, as well as the various people who are referred to in the Ombudsman's submission. I think, therefore, the minister is wrong to rely so narrowly on Mr. Robinette and Mr. Leal, who may be correct as far as they go. But the minister is missing the main point, which, as a physician, he should understand, that you cannot continue to rate people when you are speaking of the extent of the injury by speaking of the geographic extent of the injury; you have to understand the functional extent of the injury, the impact on the person.

There is nothing in section 42(1) that rules out the functional extent of the injury being the guide, rather than the anatomical extent of the injury. That is the difference. I would think that would not be beyond the comprehension of the minister, and I would hope the minister would reconsider his position, and go back and think about it again, before opposing this recommendation of the committee.

Mr. McClellan: Mr. Chairman, I should say, first of all, I have advised the House that this is a case that I, myself, referred to the Ombudsman. I referred it four years ago, in 1977, and it has taken that long for it to get back out of the hopper and before us today.

We are not dealing with an abstraction. We are dealing with a man who is 60 years of age. He is an Italian immigrant. He has worked in construction ever since he came to this country. He had two accidents on the job involving his back. He has a herniated disc. He cannot work in construction any more.

He receives a disability pension under the Canada pension plan; that is to say, in the view of the Canada pension plan, this man is totally unemployable. He cannot work. But the Workmen's Compensation Board, using the clinical rating schedule -- the minister does not like the use of the term "meat chart," but that is what my folks call it -- has given this man a permanent partial disability pension of 20 percent, which at last look was something like $130 a month. It is probably higher now.

9:20 p.m.

There is something very wrong here, and this case goes to the very heart of our quarrel with the administration of the Workmen's Compensation Act in this province. That is why I made the referral to the Ombudsman four years ago to ask him to make a determination on this precise point: Is the board bound by law to award pensions solely on the basis of the clinical rating schedule, or has the act given the board some degree of flexibility with respect to folding in an impairment of earning capacity factor?

The Ombudsman has made his ruling and the select committee has supported it. I want to deal with the way that the Workmen's Compensation Board responded to the select committee before I talk to the minister about his response here tonight. I hope his mind is not completely made up on the issue. I hope we are engaged in a debate and not in a futile exercise. I believe we are engaged in a debate.

When the recommendation of the Ombudsman was turned down by the Workmen's Compensation Board, he so reported to the committee and we had hearings. We called officials of the WCB before our committee. We reviewed the Ombudsman's investigation, and we reviewed the response of the WCB. The WCB representative justified the board's interpretation of section 42(1) by showing to us a document dated January 29, 1980, directive number five that had to do with the administration of the board's policy for the administration of section 42(1).

Unfortunately, the WCB's representative thought that directive applied only to section 42(5), despite the fact that it was entitled "Section 42(1)."

We then looked at this directive and at section 11 of directive five. It is clear from section 11 of directive five, established by the board itself as its policy for the administration of section 42(1), that the board does have the capacity to make its decisions with respect to section 42(1) awards on factors other than the clinical rating schedule. They are set out in this section 11 of the policy directive of January 29, 1980.

The Workmen's Compensation Board representative was a little bit confused, because he had not thought this directive applied to section 42(1) until it was pointed out to him that indeed it did; he conceded it did, and he was a little bit at a loss to explain the situation. The committee gave him an opportunity, by adjourning its proceedings, to seek a clarification with respect to the meaning of that directive.

Lo and behold, when we resumed hearings, the WCB not only had obtained a clarification of directive five but also had rewritten the whole directive. The new directive with respect to section 42(1) is dated August 5, 1980. Between the time that we had our first hearings on this case and the time that the WCB reported back, they rewrote the directive.

Some of the members of the committee interpreted that as an attempt to close the doors to what appeared to be an inadvertent loophole. I want to say to the minister that I do not think an after-the-fact rewriting of the rules in response to an Ombudsman's recommendation is any way for any governmental organization to respond. It is just totally inappropriate, yet that is what the Workmen's Compensation Board did.

Nevertheless -- and I hope the minister is listening -- the new directive, dated August 5, 1980, entitled "Directive 1: Guidelines for the Rating of Permanent Disability" -- it is attached as schedule E of this committee's eighth report -- sets out all the criteria and procedures for establishing permanent disability ratings under section 42(1).

I refer the minister's attention and that of all honourable members to page 76 of the report. It is the final paragraph of this directive and reads as follows:

"Cases Not Meeting General Criteria: Permanent disability cases which do not meet the general criteria should be individually judged and dealt with equitably and fairly having regard to all the circumstances." Now what could be clearer than that?

The board, in its own policy directive interpreting the application of section 42(1), has given itself a discretionary flexibility to judge cases individually and to deal with them equitably and fairly having regard to all the circumstances. So the board has clearly established in its own directive that it is not limited in awarding permanent partial disability awards to a rigid application of the clinical rating schedule. It is as clear as day. All of the obfuscation in the world, of all the lawyers in the world do not take that fact away. They cannot take it away, because it is right here, and the minister cannot deny it.

I look at Mr. Leal's report and he gives a learned explanation as to why the wage test cannot be the exclusive test. I quote again: "It is our submission that if the Legislature had intended in the 1942 act to retain the wage principle as the exclusive test for calculating permanent disability, subsection 1 of section 40 would not have been required and enacted."

Nobody is saying that. Nobody is saying that a wage test is supposed to be an exclusive test. We understand the language of the act, thank you. We understand that the act establishes a clinical rating schedule and that virtually all cases will be adjudicated in accordance with a clinical rating schedule. We understand the problems with that; Weiler addressed them, and we are awaiting legislation that will deal with that problem. But in the meantime the Ombudsman has ruled, the select committee has supported him, and the board's own directive says it as plainly as the nose on my face, that the board has the flexibility to deviate from the clinical rating schedule where circumstances warrant.

Again, the board's directive refers to "cases which do not meet the general criteria." That is all we are saying to the minister and to the government, that the compensation board has a discretionary flexibility under the act. It will not be exercised in all cases. In fact, it will only be exercised in a very small minority of cases. I believe this case typifies the kind of situation in which this flexibility must be exercised. Justice demands it.

I point out to the minister that the Ombudsman has indicated to me and to a number of my constituents, by letter, that he has on file approximately 100 cases that are exactly the same as the case before us tonight. That is not an insignificant consideration. We are talking about individuals who have experienced a very deep suffering, and we have the means of redress available to us and at hand in this committee report. We can adopt this recommendation and we can bring a measure of relief of that suffering to many people.

I do not think we need to get hung up on whether a wage test is an exclusive test. That is not the issue. We are not talking about a fundamental deviation from the established practices of the board; we are talking about a discretionary flexibility.

9:30 p.m.

Finally, I think this case has enormous implications for the work of both the Ombudsman and the select committee. I do not appreciate the way the Workmen's Compensation Board responded to the Ombudsman's recommendation by rewriting its directive after our first hearing. I do not appreciate the way the Workmen's Compensation Board turned down the Ombudsman's recommendation before it had obtained the opinion from J. J. Robinette and from Mr. Leal. I stand to be corrected but, as I understand it, that is the sequence.

I think the board's own directive, the reputation of the Ombudsman as a jurist and the integrity of the select committee are what is at issue in this case. Now that it has a majority, the government has a responsibility to signal, not to members of the committee but to the people of the province, that the office of the Ombudsman is unchanged as a result of what happened on March 19. Just because the majority is not controlled by the two opposition parties but by the government party should not make a whit of difference.

Mr. Smith: Quite the opposite.

Mr. McClellan: The Leader of the Opposition is correct. The government has an opportunity for a kind of magnanimity and generosity of spirit that it must not repudiate on this vote here tonight, and not on this issue. I almost beg the government not to repudiate this recommendation which, after so much bitterness and turmoil in the community that I represent, for example, after all the struggles about the Workmen's Compensation Board, was acknowledged by the government to have a validity as reflected in the appointment of Weiler.

We have a case before us that deals with the nitty-gritty issue, impairment of earning capacity. It does not impose anything with rigidity on the Workmen's Compensation Board. It says, if you want, you can be generous in individual instances. If you want, you can have the flexibility to say to an injured worker: "Your circumstances are special. Your suffering is unique. You do not fit into the mould. You are not a square peg that we can force into a round hole. We are going to look at your individual situation and in our wisdom and in our generosity make a provision that takes the whole man into account."

I very much hope, Mr. Chairman, that we are engaged in a debate here tonight and that what I have said will have some impact on members opposite.

Mr. Haggerty: Mr. Chairman, I want to address myself to the Ombudsman's report. In particular, I am not too pleased that the minister is not accepting the recommendation of the committee which reads: "Accordingly, the committee recommends that the Workmen's Compensation Board revoke its decision dated July 27 1977, and grant the complainant an increase in his permanent partial disability award of 20 per cent pursuant to section 42 of the Workmen's Compensation Act."

The minister does not want to address himself to the problems the injured worker faces when making a claim or an appeal to the Workmen's Compensation Board. The Paul C. Weiler report, The Reshaping of Workmen's Compensation for Ontario, says on page 53: "The basic criterion for permanent partial disability benefits currently ignores the diverse ways in which a specific physical trauma can impinge on the real-life situation of different workers. The act directs the board to estimate the extent of earnings impairment from the nature and degree of the injury. It goes on to invite the board to develop a rating schedule of percentages of impairment of earnings capacity for specific injuries.

"The system contemplates a clinical judgement about the immediate condition of the worker's body in which it is natural that the board's doctors play a dominant role. But then it uses this estimate of the degree of physical impairment to determine a percentage of occupational disability and earning loss, a percentage which is applied to the worker's previous income to generate the relevant pension benefit."

The report goes on to say: "The notorious meat chart is the logical result, dictating that the loss of an arm will produce a pension benefit of 70 per cent of previous earnings, loss of a leg of 50 per cent, and so on. It is child's play to sketch examples which show the anomalous, even absurd, results. A staff lawyer who loses his left hand, perhaps in a car accident while driving to court, would receive a lifetime pension much higher in amount than would a labourer because of the difference in their previous earnings to which the percentage rating is applied. This is so, even though the lawyer would suffer no long-term income loss at all, while the labourer, who might be theoretically capable of performing a different job, might be unable to find suitable and available work because of his personal characteristics -- age, literacy or skills -- environmental factors, geographic location or economic conditions.

"The clinical rating system is not unique to Ontario's legislation. Its origins have long since receded into the mists of time. Presumably, it was founded on the premise that within the relatively narrow spectrum of occupations then covered by the program there was a rough correlation between the degree of physical impairment and extent of earnings lost, although this has never been documented and recent studies show the claim to be spurious.

"Be that as it may, this central ingredient of workers' compensation has now totally lost any legitimacy which it might have ever had. People no longer tolerate the inequities in individual cases which are produced by a system of average rough justice. Using the earlier example, it is obvious that the labourer and his family cannot survive on a pension of a fraction of his previous income. The same act which offers only the facade of adequate compensation for his real-life economic losses also denies him the right of access to the courts to try to recover the difference."

If one looks at some of the injuries that occur to the injured workers in the province -- and the minister is not a lawyer -- I am sure if one took the case to the courts it would be different. I do not know who judges the clinical ratings of an injured worker at five per cent, 10 per cent or 15 per cent. Sometimes I question their ability in this particular area. Are they approaching it as a human being?

If they go to the court, for example, in many cases for an automobile accident, some persons may not be as severely injured as a worker and yet their settlements in the court can range up to $150,000; they can even get $100,000 for an injured leg. What the worker gets when he is injured in that particular category from the Workmen's Compensation Board may be a pension of $60 a month for a partial disability pension. Look at what he gets in total income. Look at the amount of money that is set aside by the actuaries who set aside a certain amount of funding for that, say, $16,000 or $20,000. I think it only works out about 10 per cent interest on that money. That is all that the injured worker gets.

If the clinical rating were at $100,000, as in many cases it should be, then I am sure at 10 per cent that person would have some better income through his disability.

I was interested in Bill 7, An Act to revise and extend the Protection of Human Rights in Ontario. In section 4, if I can quote this: "Every person has a right to equal treatment in employment without discrimination because of race, place of origin, colour, ethnic origin, citizenship, creed, sex and record of offences." I will stop there. It goes on to say further, "or family or handicap." But I am looking at "record of offences." A person today in Ontario who receives an injury is treated as though he has a record of offences, because he is blacklisted in many cases so that he cannot gain suitable employment.

9:40 p.m.

That is the point I want to bring to the minister's attention. The minister should be accepting this particular recommendation by the Ombudsman, that his earning capacity has been lost. Section 42 may give it back to him for a period of three months, but then it is withdrawn again. I suggest to the minister that a person who is injured today is considered, in a sense, to be a criminal. He has a record such that he cannot be gainfully employed.

There is an industry in my area that, because a person has had a back injury -- a problem with a vertebra or a dislocated hip -- will not hire him back into the plant. They refuse to take him back, and they say, "We fulfilled our responsibility, our share of damages at 10 or 20 per cent, $80 to $100 a month pension," without any consideration that they have denied this person the right of full employment again.

I have had the minister's field workers in the area down there going out to try to find jobs in other industries. As soon as another industry finds that a person has a compensation record claim -- and they can find it out -- they refuse to hire that person, and if he goes before them and lies on the application they will find it out and he will be dismissed.

I suggest to the minister that there should be an amendment to the Ontario Human Rights Code in section 4, that injured workers are being discriminated against and this minister is permitting it to take place under the sections of the Workmen's Compensation Act, because it is taking place every day and the minister knows that. The report indicates that there have to be improvements in this area so that when a person loses his income, regardless of what degree of injury there is, his family should not have to suffer for it.

I have made a number of appearances down at the board. Sometimes when there is a rating for a permanent partial disability it bothers me most when I sit there with a claimant, and particularly when the person looks down the questionnaire and sees the question, "Does your spouse work?" If he says yes, that means he is going to lose another 10 or 20 per cent, because that is the way they rate permanent partial disabilities down at the board. I do not think that is the intent of workmen's compensation in Ontario. If a person is injured and cannot be gainfully employed with that injury, then compensation should be paid to the maximum.

Often they will tell you right down at the board that the person should apply for a pension under the Canada pension plan. As I interpret the Canada Pension Act, that person has to be permanently unemployable or disabled. When the board takes that attitude and says this, then I think it has a bigger obligation to make sure when that person is placed on a permanent partial disability that there is sufficient income there to maintain that family the same as if he were fully and gainfully employed.

It is regrettable. I do not think the minister is aware of the delays that go on down at that board for some unknown reason. It is worse now under the new chairman than under Starr. I had far greater respect for Mr. Starr when he was chairman of the board. He would listen to the claimant at an appeal hearing. He was very helpful in this area. Today you never see the chairman down there. There is a backlog of delays in bringing forward claims for the workers.

If the minister is not aware of it, he should take a trip down there some time, because it is present every day. He can talk to some of the employees and they will tell him the same thing. They do not know the reasons for it. To get an appeal now to the third stage takes you almost a year and a half. I do not know what it is that brings about the delays; is it poor management down there? There has to be a change in the head down there, because that man is not doing his job. There is no direction given to anyone. I spend enough time there to know this, and I am sure other members on this side do too.

There is a problem, particularly with section 41 of the act and there has to be a change.

Hon. Mr. Elgie: We are on section 42, not 41.

Mr. Haggerty: Sections 41 and 42 are two areas that should be changed, permanent partial disability and the other. Where a person cannot gain employment because of his injury, then section 42(5) should apply, and he should have continual benefits so he does not have to run to welfare to carry his family. He would not get too much from welfare anyway.

The minister should move in this direction and do something to improve workmen's compensation. He should not wait for the second Weiler report to come forth before acting upon it. He should act upon it now and bring some decency to the Workmen's Compensation Board.

Mr. Di Santo: Mr. Chairman, I must express my disappointment in the position taken by the minister, because I would have expected he would concur with the recommendation of the Ombudsman and with the recommendation of the select committee. In fact, he took a step two years ago when the Workmen's Compensation Board refused to go along with the recommendation of the Ombudsman, and he wrote a letter to the then chairman, Michael Starr, telling him he should not disregard the recommendations of the Ombudsman, especially when they were endorsed by the Legislature.

I really do not understand why, in this case, the minister is taking a legalistic stand that the Leader of the Opposition said may be sustained on a legal basis but does not reflect the reality of the cases we are talking about.

My colleague the member for Bellwoods (Mr. McClellan) said that the Ombudsman dealt with one other case. I have five other cases. We are not saying on this side of the House that we should revamp the act completely. We are not saying that we should change the assessment system based, as it is now, on clinical findings. We are saying, and I think the Ombudsman says this, that in cases that are not usual cases, in particular cases, the Workmen's Compensation Board should take into consideration factors that are relevant to the functioning of the injured worker.

The Leader of the Opposition put it very well when he said one cannot consider an injury per se, one has to consider the injured worker. He is right, because the people we are talking about are people who are functionally disabled and cannot work, not only for clinical reasons but also for many other functional reasons, such as skill, language, and education. By taking this approach, which is cynical, the Workmen's Compensation Board and the minister are treating these people as a commodity. They were used while they were able to work; and now that they are not able to function, they are thrown out of the system.

That is really cruel. These are the people who cannot be re-employed to begin with, because this province does not offer a mechanism that can help people who are disabled to be reemployed as many other jurisdictions do. For those people who have an injury of this nature that on the basis of the schedule can be rated 10 or 20 per cent, it means actually that they can no longer work, cannot function in our society and cannot function in their families.

9:50 p.m.

I want also to tell the minister that the way the rating itself is done now is wrong. He knows that. We know the Workmen's Compensation Board does not take into account the opinions of the family doctors who, since they have been taking care of them for many years, are closest to the injured workers. They rarely take the opinion of specialists into consideration. The final word always comes from the board's consultant.

The minister is well aware of an example I want to mention because it is sad, it is tragic in a way. An injured worker, one of my constituents, was assessed at four per cent disability last year. After long dealings with the minister, on his suggestion she was referred to Dr. R. G. Vanderlinden, who said her physical disability and functional disability could not be separated. They are inextricably linked, and this lady is disabled 100 per cent.

I expected the opinion of Dr. Vanderlinden would be binding. The Workmen's Compensation Board still decided the physical disability was four per cent and it would grant a functional disability for one year. What happens after one year? I wrote a letter to the minister asking that the case be reviewed as the board had promised one year ago. Yesterday she received a letter from the Workmen's Compensation Board referring her to a psychiatrist.

I ask the minister, what kind of logic is that? Is that the way injured workers should be assessed? Is it for the reason the leader of the Opposition mentioned before, that it wants to try to separate a physical disability from a psychological disability so that in the final analysis it can discharge the injured worker with the least possible pension?

Time is running out. I think, as my other colleagues have said, we are dealing with a restricted number of cases. Yet these are the saddest cases and I ask the minister, I beg him, not to oppose the recommendations of the Ombudsman. They are not intended to revolutionize the Workmen's Compensation Act. They want to deal with some specific cases, and we expect him to show some compassion for those injured workers.

Ms. Copps: Mr. Chairman, since I am new to the House, I may not understand the machinations and the workings of the Ombudsman vis-a-vis the Workmen's Compensation Board, but it does seem to me there is a question of credibility here. There is a question of the credibility and responsiveness of the Workmen's Compensation Board, first, to the Ombudsman and, second, to the select committee on the Ombudsman.

I find it somewhat difficult to understand why the Workmen's Compensation Board did not attempt to get an outside legal opinion by such an expert as J. J. Robinette prior to the decision by the Ombudsman vis-a-vis section 42(1).

Since we are dealing with a case that reflects the problem of section 42(1), I ask the minister why it is that Mr. Donald Morand wrote to the vice-chairman of appeals of the Workmen's Compensation Board on the subject of section 42(1) early this year and was advised on February 12 that the board was not in a position at that time to comment on his conclusions and recommendations and was content with his making a final decision without further representation.

That was in February of this year. Now, when recommendation 6 is to be accepted by this House, we have a last-ditch attempt at a legal opinion by J. J. Robinette.

I ask the minister to put himself in the position of these 130 people, by the Ombudsman's count -- and probably many more than that -- who believe the Ombudsman is the final arbiter in questions of government competence, who believed that they went through the right process of appeal and had a ruling in their favour by the Ombudsman, who believed in the justice of this government and in the fact that they would receive recompense.

Instead, the WCB, without even deeming to go through the select committee or without even deeming to advise the Ombudsman, goes to an outside source, gets a second legal opinion and then, on the night the report is to be accepted, we receive the suggestion that item six should be withdrawn.

I respectfully submit that if we are to maintain the credibility of the office of the Ombudsman, and if we as legislators are to rule on case studies in the select committee on the Ombudsman, the dismissal of item 6 will undermine the credibility of the office. We might as well do away with the Ombudsman.

I cannot go back to my constituent, who has lost $200,000 in wages over the last 12 years -- and his case goes back to 1969 -- and say, "The Ombudsman accepted your case but J. J. Robinette argued against you and therefore this Legislature has turned you down."

I want to go back to him and say: "You have gone through due process. Your opinion has been accepted by the Ombudsman; it has been accepted in a unanimous opinion by the select committee of this Legislature and no lawyer, no matter how well respected, is then at that final step in the process going to be able to submit an alternative opinion that is going to throw it all out the window."

I ask the minister to consider this and to consider the implications for the credibility of the office and the impartiality of the Ombudsman if item 6 is withdrawn or defeated.

Mr. Mackenzie: Mr. Chairman, can you tell me how much time there is?

Mr. Chairman: I understand we have until 10:15 p.m.

Mr. Mackenzie: There are two or three things I want to cover in this brief debate. On page 72 of the report of the select committee on the Ombudsman, 1980, we have set out guidelines for the rating of permanent disability. It simply says:

"The medical services division is responsible for the estimation of clinical impairment in injured employees. The claims adjudication branch, claims services division, is responsible for estimating the impairment of earnings capacity and establishing the level of post-accident permanent disability. When estimating the impairment of earnings capacity from the nature and degree of the injury and establishing the level of post-accident disability, consideration is to be given to section 42 of the act as a whole and determination made if any of the various subsections apply."

There is one more paragraph I want to read:

"The permanent disability medical staff shall estimate the degree of clinical impairment from the nature and degree of the injury and recommend an appropriate clinical rating in all cases except those where the rating can be established from medical reports on file; for example, finger amputations. The ratings should be expressed in terms of a percentage in accordance with the provisions of the approved permanent disability rating schedule."

The directive of the board itself indicates that consideration of permanent disability shall be directed towards loss of earning capacity or, more correctly, as stated in the Workmen's Compensation Act. section 42:

"Where permanent disability results from the injury, the impairment of earning capacity of the employee shall be estimated from the nature and degree of the injury and a sum proportionate to such impairment not exceeding in any case the like proportion of 75 per cent of his average weekly earnings during the 12-month period immediately preceding the accident or such lesser period as he had been employed."

Somewhere along the line the impairment of earning capacity got lost in the shuffle. The present practice of the board has been that where any -- and I literally mean any -- permanent residual disability is accepted by the board then it is awarded a percentage rating either on a temporary basis or for the duration of the disability or for life.

10 p.m.

Obviously, the system already has a built-in penalty to the worker who gets only 75 per cent of the pre-accident earnings for the 12 months prior to the accident, and not even net disposable income. I would argue that this should be based on gross income so that the employee can maintain all the benefits he is losing by not being on payroll with the accident employer. But, as with all things in this society of ours, geared to the private enterprise system, God forbid that we make the employer responsible for anything more than the basic minimum of protection for the worker who is creating the profits of that particular plant.

So, aside from my argument that any kind of rating system should be based on something more realistic than 75 per cent of pre-accident earnings, I feel strongly that loss of earning capacity or impairment of earning capacity has been set aside and a system of a more blanket allotment of pensions has been instituted which in many cases totally ignores the principle of loss of earning capacity.

I want to use three examples, if I may. The first example is that of a labourer who has known only hard, physical work all of his life, either on a construction site or inside a plant operation, doing a lot of heavy lifting and bending, who injures his back. His family doctor says he can return to work in a job that requires no heavy lifting or bending. The board doctor says he should do no heavy lifting or bending. If you look at step one of the board's approach to the man on a rating of permanent disability, this man should qualify for a permanent total disability under the terminology of impairment of earning capacity.

I agree this impairment of earning capacity is not necessarily permanent or for a lifetime. The terminology "for the duration of the disability" applies more often than not in these types of situations.

In situation two, an office worker, generally a female who has a regular load of typing during the job performance, has an accident to her right hand, and there is an amputation of the thumb and part of the second finger. Most of the members in this House have probably never thought of it, but that worker's job as a typist would literally go out the window. The right hand does the majority of the work on a typewriter.

According to the famous meat chart -- and that is exactly what it is -- as used by the board, if I am reading it correctly, this means that this person would receive a seven per cent permanent pension award. Subsequently, the seven per cent probably would be computed to a lump sum payment. Under the present terms of section 42, this should qualify for a permanent pension under impairment of earning capacity, as this individual cannot return to pre-accident employment.

In the third case, a worker who is a truck driver injures his back and cannot return to driving as a living, in the opinion of his own attending physician and as agreed to by the Workmen's Compensation Board medical staff. The individual is rated as 25 per cent permanent disability for life. Subsequent to the physical disability and getting to the point where it is healing up, the worker develops what is referred to as "functional overlay," which is a polite term for saying that he has no physiological or mental problem.

There is a very prolonged fight with the board to get the functional problem recognized under the board's criteria. I think all of us have been involved in cases like that. His own attending psychologist appears at the hearing in person and testifies that the man cannot and will not ever return to work, that he is beyond obtaining helpful assistance through counselling and is not employable.

The original award from the board is 25 per cent temporary for the functional problem. After appeal, the board changes the award to 25 per cent permanent for the functional problem. This means a total of a 50 per cent permanent disability award rating from the board. I have had cases like that, and I am sure other members have as well. Everyone agrees that this man will never return to work. The Canada pension plan is paying him a total disability pension as he is permanently disabled from employment.

There is not much doubt in my mind, nor in the opinion of the attending medical physician or the attending psychologist, that the impairment of earning capacity of the employee is total and permanent. But does the board apply this logic? No. It has set up its meat chart; so the injured worker must and is made to fit into one of the appropriate categories. They can give their percentage of rating and feel somehow or other that justice has been done.

In all of these cases, I am simply saying it only seems that justice has been done. Yes, the workers have been compensated for the accident; but have they been compensated appropriately? That is the question. I am not going to go into all of the details of Weiler's suggestions, but I think there are some good ones.

Mr. Chairman: Excuse me, Mr. Mackenzie. I do not mean to bring you to order, but I have taken Mr. McClellan's comments to heart in terms of selecting specialized cases on a continuing basis. If you could refer to them more in regard to recommendation 6, I am sure the committee would be appreciative.

Mr. Mackenzie: Let me just wind up by referring to the famous meat chart, to Weiler's referral to it. Weiler also refers to a system whereby lump sums should be awarded in situations where there is no impairment of earning capacity -- when you take into consideration the occupation of the injured employee but there remains some disability because of the employment situation.

There are a number of other points that I would have liked to have made in this debate, but basically I am saying that we simply have to relate the awards much more to the job and to the earnings of the employee and less to this kind of percentage or meat-chart approach, which is hurting and damning a hell of a lot of injured workers.

Hon. Mr. Elgie: Mr. Chairman, as a final remark, I do not think anyone -- certainly not the Leader of the Opposition -- is suggesting that I, as a physician who has had a great deal of involvement in the problems of injured workers, do not understand or appreciate the problems of injured workers. I do not think he really was saying that, because I think he and I actually have many views in common about the problems of injured workers.

But tonight we are not debating what is or is not right. He knows, and this Legislature knows, it was at my initiative that Professor Weiler was appointed to review the Workmen's Compensation Board with a view to reforming certain aspects of it, some of which the member for Hamilton East (Mr. Mackenzie) has referred to. But the facts of life, whether we like them or not, are very clearly expressed in the final paragraph of Mr. Robinette's letter, and that is a reality.

I think it is unnecessary for me to point out that a committee of the Legislative Assembly cannot alter the laws expressed in section 42(1) of the act. We cannot, on the report of a committee --

Mr. Smith: The Supreme Court says differently.

Hon. Mr. Elgie: My friend, that is not the way of the world. It is not possible, on a recommendation contained in a select committee, to alter the substantive truth and reality of the law.

Mr. Smith: You do not have to alter it; you interpret it differently.

Hon. Mr. Elgie: When that interpretation has been clearly outlined in two reports -- and the member for Hamilton Centre (Ms. Copps) was surprised that the board had not got a report from Mr. Robinette until April -- obviously they acted on their internal legal opinion. If she refers to the letter from the Deputy Attorney General, she will note that as soon as my office became aware of the decision of the Workmen's Compensation Board we did seek a legal opinion from the office of the Attorney General (Mr. McMurtry).

I have no way of knowing why the board delayed for some time to get the outside opinion. But nevertheless they did get an outside opinion to support their internal opinion and, as soon as I became aware of the decision not to accept the Ombudsman's report, I had a legal opinion prepared from the Attorney General.

I do not think, as the member for Hamilton Centre suggests, and as the member for Bellwoods (Mr. McClellan) has suggested, that we are involved here in criticizing the role of the Ombudsman or that select committee because -- the member for Bellwoods can giggle all he wants; I know he sometimes does that.

Mr. McClellan: I am not giggling; I am disgusted.

Hon. Mr. Elgie: But if he reviews the history and the effectiveness of this committee he will see that the number of cases brought before the committee has been reducing every year, and the number of cases coming to this Legislature has been reduced every year, to the point that tonight we are down to one. If that is not accepting responsibility and responding to representation both from the Ombudsman and from the select committee then I do not know what is responsible.

This Legislature cannot overrule the interpretation of the statute. We cannot operate on the basis of what we think something else should be, because we are now in the midst of reviewing recommendations to reform the Workmen's Compensation Act. The speech from the throne clearly indicated the government's intention to proceed on those.

Mr. Chairman, I have no alternative but to oppose recommendation 6.

10:10 p.m.

Mr. Breaugh: Mr. Chairman, I want to know on what basis a legal opinion brought before this Legislature, just before the debate begins, is taken in any quarters as a fair hearing of this recommendation. I could say that I have in my pocket a legal opinion from that guy Twaddle, who beat Robinette. If I put that one on the table, does it then overrule Robinette's version?

Is the minister saying he has gone to a court and got a legal decision there where both parties were allowed to be represented by lawyers? Is he saying that after the legislative committee and the Ombudsman and the Workmen's Compensation Board and everybody else have had their kick at the cat, all he has to do is to get some lawyer to give him an opinion, put it on paper, stick it in his pocket and, when it comes in here, that opinion overrules this House?

Hon. Mr. Elgie: On a point of order, Mr. Chairman: It is the opinion of the Attorney General (Mr. McMurtry), and I ask the member to withdraw that comment.

Mr. Breaugh: I want to remind the minister, the Attorney General is another lawyer -- not a court, but a lawyer. I want to pursue the point of order that has just been raised by the Minister of Labour. I want a ruling from the chair on whether you are prepared to accept the legal opinion that has been presented here tonight as firm and binding on this Legislature. Who writes the laws in this province, this Legislature or J. J. Robinette? Maybe the rules have changed a hell of a lot since March 19, but I do not really think they have changed that much.

Mr. Chairman: Any further debate? I see no further debate on recommendation --

Mr. Breaugh: Mr. Chairman, I asked you for a ruling on whether you are prepared to accept the legal opinion that has been tabled in some manner during the course of this debate. I understood -- I may be mistaken -- but I always thought that when this House was in session and one wanted to have a ruling on something, one turned to the chair and the chair would give a ruling. I realize the chair is a little closer to that side these days.

Interjections.

Mr. Breaugh: I did ask the chair for a ruling, and I think any member standing in this place is entitled to at least get a ruling from the chair.

Mr. Chairman: Here is the ruling: In my learned opinion, I am not making a ruling on this so-called point of order, and we are looking further to see if there is any discussion on recommendation 6. I see there is no further discussion.

10:25 p.m.

The committee divided on recommendation 6 of the report of the select committee on the Ombudsman, which was rejected and struck from the report on the following vote:

Ayes 25; nays 57.

On motion by Hon. Mr. Wells, the committee of the whole House reported a certain resolution.

On motion by Hon. Mr. Wells, the committee of the whole House reported concurrence in the recommendations of the eighth report of the select committee on the Ombudsman, as amended.

Motion agreed to.

The House adjourned at 10:30 p.m.