REVIEW OF THE OFFICE OF THE OMBUDSMAN
CONTENTS
Wednesday 4 December 1996
Case of Ms C
Ms Roberta Jamieson, Ombudsman
Ministry of Community and Social Services
Mr Kevin Costante, assistant deputy minister
Mr Allan Kirk, manager, social assistance programs branch
Ms Donna Ingram, manager, information systems branch
Review of the Office of the Ombudsman
STANDING COMMITTEE ON THE OMBUDSMAN
Chair / Président: Mr John L. Parker (York East / -Est PC)
Vice-Chair / Vice-Président: Mr Tom Froese (St Catharines-Brock PC)
*Mrs ElinorCaplan (Oriole L)
*Mr CarlDeFaria (Mississauga East / -Est PC)
*Mrs BarbaraFisher (Bruce PC)
*Mr TomFroese (St Catharines-Brock PC)
*Mr DougGalt (Northumberland PC)
*Mr PatHoy (Essex-Kent L)
*Mr LeoJordan (Lanark-Renfrew PC)
*Mr Jean-MarcLalonde (Prescott and Russell / Prescott et Russell L)
Mr RosarioMarchese (Fort York ND)
Mrs MargaretMarland (Mississauga South / -Sud PC)
*Mr John L. Parker (York East / -Est PC)
*Mr R. GaryStewart (Peterborough PC)
*Mr BillVankoughnet (Frontenac-Addington PC)
Mr LenWood (Cochrane North / -Nord ND)
*In attendance /présents
Clerk / Greffière: Ms Lisa Freedman
Staff / Personnel: Mr Andrew McNaught, research officer, Legislative Research Service
The committee met at 0905 in room 151.
CASE OF MS C
The Chair (Mr John L. Parker): Good morning, everyone. This morning we are here to consider a recommendation-denied case. It is in the matter of Ms C and the Ministry of Community and Social Services. The Ombudsman is here with us this morning to present her recommendation to us.
I propose to proceed as follows, similar to the application we heard last week: We'll begin with a half-hour presentation from the Ombudsman. She can use that time as she wishes, either entirely for presentation or leaving some time for questions within the half-hour period. After the Ombudsman has presented her case, we will invite the ministry to come forward and will give them similarly half an hour to put forward their side of the issue. After that, if there are any new issues that have arisen in the course of the ministry's case, we'll allow the Ombudsman to return to us and respond to those issues. When we are done with that, I then propose to go into closed session and seek the advice of the committee as to how you wish to proceed further.
That having been said, Madam Ombudsman, welcome back. The floor is yours.
Ms Roberta Jamieson: Good morning. Bonjour. Sago. It's nice to see you all this morning. As the Chair has said, we're here to consider a case report in the matter of Ms C, and this involves the Ministry of Community and Social Services. While this report, you will find, reflects my findings which came about from an investigation of an individual case, my conclusion in this case really provides a very clear example of systemic discrimination affecting a large number of people. It's my hope that by examining the details of this case, it will become apparent what I mean by "systemic discrimination." In my presentation, as in the case report, I will of course follow my usual practice of making the names of individuals anonymous in order to maintain their confidentiality.
The case involves Ms C and Mr M, who were in a common-law relationship from the summer of 1989 to the spring of 1992, when the relationship ended. Both qualified within the rules governing the family benefits allowance under the Family Benefits Act for what is called a disability allowance.
After the relationship ended, they were each receiving their disability benefit, and that was calculated on a single adult basis. In the summer of the following year, 1993, they began to live together again. The family benefits allowance policy and procedures provide that when two individuals live together in common law or marriage, their benefit is calculated on a family unit basis. The family unit rate is more than the single rate but less than the total of two single rates. I'm not going to make any findings about this aspect of the policy. There's no doubt that two people can live more cheaply together, especially because expenses like rent can be shared. Adjusting the amount of the benefit to reflect that therefore can be justified in my view.
The policy also provides that once you are deemed to be a common-law couple under the benefit program, you remain as a couple whenever you live together. I'm also not making a finding about this aspect of the policy. In the case of Ms C and Mr M, the ministry determined that they were again living together and therefore the calculation of their benefits had to revert to the family unit rate beginning in September 1993.
The problem in the complaint brought forward by Ms C began when the September cheque for the total of both of their benefits arrived in Mr M's name only. Although Ms C qualified in her own right for a disability benefit, it was being paid to Mr M. Ms C wanted a cheque for her own portion of the benefits in her own name and proceeded to make her case quite vocally to ministry officials.
Ms C had attempted to prevent this situation from arising by requesting that the ministry consider the relationship co-residency rather than common-law. She continued to make that request after the cheques had been combined in Mr M's name. The ministry did not grant this request and instead, using the previously determined basis of their relationship, kept her entitlement in what they called "Mr M's budget." As a result, for Ms C to receive money in her own name, she needed either to convince Mr M to allow the whole benefit to be paid to her or to leave the relationship. Mr M would not agree that the whole benefit should be paid to Ms C.
When we asked a ministry employee interviewed during the course of our investigation why this procedure of making out the cheque in the man's name was the one they followed, they offered this comment, and I quote: "Historically, the cheque has gone in the man's name (I hate to say it). Sometimes a man will ask to have the cheque in his wife's name." This practice, in my view, clearly reflects a time when there was an assumption that the man was the head of the house. I don't think it's unreasonable to suggest that those days are long gone in the province of Ontario in 1996. Under these circumstances, the only way Ms C would get her benefit in her own name would be if the relationship ended. That is exactly what happened 16 months later, in December 1994.
What happened to Ms C reveals not just a discriminatory treatment of one individual, but also a larger problem of systemic discrimination.
By now we're all very familiar with the concept of direct discrimination and we're able to identify differential treatment of individuals based on sex, race, religion or other attributes when it occurs. Systemic discrimination, however, begins from an approach where everyone seems to be treated the same, which makes the existence of a problem more difficult to observe. Unfortunately, the effect of a same-treatment policy may be to create a negative impact for a particular group of people who share a common characteristic. In the case I'm presenting to you this morning, that group is women receiving the family benefits allowance who are married or living in common-law relationships.
To explain, the ministry's policy is to treat all families equally by issuing one cheque per family unit. In practice, however, this means that in 72% of the cases reported by the ministry, the one cheque goes to the man in the relationship. In such cases there is an onus on the woman in the relationship to have this arrangement changed. In other words, unless a woman is able to gain the agreement of her spouse that the total entitlement should come to her, the ministry sends the cheque to the man as a matter of practice.
In my view, this is a particularly unreasonable burden in any relationship where power is not equally shared, and these relationships are all too common today. While this negative impact may be an inadvertent result of the policy, there is no less discrimination present here than if it was intentional. Discrimination is discrimination is discrimination. The issue here is not whether it is tolerable; the issue is how a remedy can be provided to correct this problem.
Even if in a perfect world every relationship had a balance of power between the partners, the question might still be posed as to why either should not receive the benefit to which he or she is entitled in his or her name. Just imagine if you began a marital relationship and as a result your employer asks the name of your spouse in order to make out your paycheque in the other person's name. Imagine further that an assumption is made without consulting you and your cheque is summarily sent to your new spouse. Someone would certainly hear about it. The situation before you is no different. In this case I have heard about it and I have found nothing in my investigation that justifies paying one person's entitlement to another.
I am therefore asking you to support a very straightforward and simple remedy. It is that in the case where both recipients are entitled to receive family benefits in their own right, the ministry should make it a practice to issue separate cheques to each person equal to 50% of the total benefit.
I want to take an opportunity to respond to a number of issues that have been raised by the ministry as a way of explaining how I've come to this recommended solution and as a way of dealing with the objections they have put forward.
First, the ministry has said that my recommendations will require changes to the family benefits allowance regulation and it notes that the legislative framework distinguishes between recipients and beneficiaries of an allowance.
Of course, the Ombudsman Act requires me to investigate complaints, and where I am of the opinion that the practice complained of is "unreasonable, unjust, oppressive, or improperly discriminatory," or was in accordance with a rule which may be described in the same terms, I report and make recommendations on how to rectify the practice.
I have reviewed and we have reviewed the law in this, and there is one area to which I in particular want to draw the committee's attention. The Family Benefits Act is not exempt from the application of the Human Rights Code. The Family Benefits Act must be interpreted and administered in a way that's consistent with that code, because the code has primacy over all statutes unless there's an explicit exemption.
It is also apparent to me that there is room under the provision of the Family Benefits Act for the issuing of two cheques. Otherwise, the "one cheque per spousal couple" rule would mean that as a result of an individual's marital status, the individual is deprived of receiving benefits in his or her own name. That's a violation of the provision of the Human Rights Code that prohibits discrimination on the basis of marital status.
If the ministry takes the view that changes are necessary to clarify either the Family Benefits Act or the regulations, that may be seen as a consequence of my finding. I don't think it's necessary, but if it is, so be it in order to allow the ministry not to be in conflict with the Human Rights Code. I have no argument with that course of action if the ministry feels that's necessary. You and I all know that regulations are changed without great difficulty each and every day.
The ministry has also advised that there are other options when making cheques payable. They've advised that when the benefit is being mismanaged or the recipient is not capable of managing the funds, it may switch the recipient to the other spouse or pay the benefit to a third-party trustee.
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Of nearly 18,000 couples identified by the ministry as having no children and receiving family benefits allowance, almost 13,000 of the cheques go to the male. To reverse that practice would leave the same problem unresolved. The only difference would then be that it would be mostly men who are not receiving their benefit in their own right, and that would still be discrimination.
To require, as they now do, the non-recipient to request that a joint benefit be switched to her name assumes that this is feasible within a relationship, quite apart from the discriminatory piece. It's not difficult to imagine cases where the request by a woman for this change would be the basis for recrimination from her male partner. The reality of power imbalances within relationships must be considered as a very key factor in finding any solution to the discrimination which I found to exist.
With respect to the suggestion of the trustee receiving funds, that provision has to do with circumstances of incapacity and isn't appropriate where there is no issue of incapacity on the part of either spouse.
The ministry has also suggested that the allowance be made payable into a joint bank account where requested. In the case of Ms C, Mr M refused to open a joint account, which illustrates the problem with this approach. It is an interference as well with the couple's personal banking arrangements and it assumes that the non-recipient would be able to have access to her portion of the funds before they were withdrawn by the other spouse.
Under my recommendation, each person would receive half of the benefit in separate cheques or direct deposits. As a result, they would each retain control over their own benefits for which they personally qualify.
The ministry has also said it's concerned that with separate cheques for 50% of the benefit, the partner liable for a big cost like the rent or mortgage wouldn't have enough money to cover it. It's argued that this might result in more workload for front-line program delivery staff at the ministry.
There's no difference, in my mind, between a situation where each partner receives a separate cheque for one half of the benefit entitlement and that of thousands of couples in the province who have separate sources of income, neither of which is sufficient to cover a single large cost like rent. These couples seem to manage. What makes a couple living on family benefits allowance so different? There is nothing inherent in qualifying for family benefits allowance which makes a couple different in this regard.
The entitlement to benefit is based on individual qualifications. The calculation of the benefit is based on a formula applying to the couple's marital status. Neither provides any guarantees on how the money is spent. If the recipient under the present scheme doesn't pay the rent, the non-recipient has no funds on which to rely to weather the consequences. In the case of Ms C, she was left with no money in December 1994 when Mr M took the joint entitlement and left the province.
Under my recommendation, each person would have access to and autonomy over the money to which he or she is personally entitled. From there they would face the same money management challenges of any other couple in Ontario, and it's not our place, mine or the ministry's, to make further judgement.
The ministry has also pointed out that a change to the one-cheque policy has other implications for its program delivery. For instance, it would have to be extended to cover welfare benefits issued under the General Welfare Assistance Act. Quite simply, if the systemic discrimination extends to other areas of administration, it too needs to be addressed.
The ministry identified in its response to my final report that individual drug and dental cards would also be needed. This would not be unusual. In most workplace drug and dental plans which are based on family coverage, there are a number of approaches to issuing individual cards which then apply to a single-family account. This is done every day.
In the case report, I raise the issue of dividing the entitlement where there are children as beneficiaries in addition to the adults. This is an example of an area the ministry will also have to address in implementing any recommendations in a manner that will be consistent with the Human Rights Code. In any event, the necessary rules and calculations will be no more complex than the multitude of factors already taken into account in determining entitlements.
In the ministry's response to my final report it also says they will incur increased costs largely due to system changes. I understand this to mean computer system changes, but I expect there will also need to be some analysis and policy time spent on implementing the change. They also raise the possibility of having to issue manual cheques, which would involve more work.
During the course of my investigation, I asked the ministry on a number of occasions to quantify these potential administrative costs but I was not given any such accounting. This aspect of the ministry's objections remains entirely vague.
In the absence of specific data, I deliberately kept my recommendation-remedy very simple. My recommendation only requires one additional step to the existing procedure: the division of the entitlement, as calculated, by two. Other than this, the actual cheque processing is not different than if the couple had not entered the relationship and two cheques were still being issued or if the couple had ended the relationship and two cheques were then required for two single recipients.
We know that the program costs less when a couple is deemed to be in a common-law relationship because the total to be paid is less than the sum of two individual entitlements, but this should not be a factor in the administration of the program. Nobody should be put in a situation where they must leave a relationship in order to have the funds to which they are entitled.
There is also the basic question of who is bearing what costs in the present arrangement. When one of the couple lacks immediate access to the portion of the family benefits allowance entitlement that is rightly hers or his, the cost is borne by that individual and is measured in loss of autonomy, dignity and self-respect. These costs might not be easily quantified but they are very, very real.
The ministry states in its response that my recommendation will be seen as intrusive, involving the ministry in determining how and to whom a social assistance allowance will be provided based on personal relations and dynamics. The ministry has this backwards. It is precisely the reverse which is true.
In my view, it is intrusive to perpetuate the outdated assumption that the male is the head of the house in the administration of public programs. It is intrusive when a couple is required to establish a joint bank account to receive individual entitlements. Placing all of a couple's benefit in the hands of one partner and accentuating any imbalance of power as a result, and making the assumption that issuing separate cheques will mean non-payment of rent -- these are intrusive practices.
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Issuing two cheques avoids making assumptions. It puts into each entitled person's hands the benefit for which he or she qualifies.
To summarize, while a change in this practice may not benefit Ms C, it will avoid the same situation occurring for many other Ms Cs in similar circumstances. By bringing her situation forward, Ms C has very courageously lifted the cloth on a practice of systemic discrimination.
As members of this committee of the Legislature, you and I have the opportunity, me by bringing this case forward and you by supporting a remedy, to complete the work Ms C has started some time ago, now that the discrimination has been exposed. You'll be doing exactly that by supporting my recommendation, which reads:
In the case where both recipients are entitled to receive family benefits in their own right, the ministry should make it a practice to issue separate cheques to each person, equal to 50% of the total benefit.
Thank you very much for the opportunity to present this case. I'd be pleased to respond to any questions.
The Chair: We have about two minutes for each caucus, beginning with the government caucus.
Mr Tom Froese (St Catharines-Brock): Good morning. In my former life, I was in banking. I can see arguments on both sides of this case. In the amount of time I was involved in banking, I had specific cases where you had a dispute between partners. You just can't win in that situation. That's my opinion. If you do one thing on the one hand, you get in trouble with one partner or spouse, and if you do another thing, you get in trouble on the other hand.
My question is, when you interviewed Mrs C, did she know what the situation would be if she joined together in a common-law situation with respect to benefits?
Ms Jamieson: Ms C tried to avoid the result by asking the ministry to consider it as co-residency as opposed to common law, and then she asked for the cheque in her own name.
Mr Froese: As I understand the situation, she entered into a common-law situation, then it was broken up, and then she re-entered it. But did she understand how the benefits would have been paid out to her under her situation if she would enter into common law?
Ms Jamieson: I'm not sure what she understood. As I see this case -- the member has talked about a dispute between two partners and what she knew or didn't know. I focused on the unfairness in the ministry's practice. This is not about a dispute between two individuals. This is about the way the ministry administers a public program, and they administer it in a way that perpetuates systemic discrimination. It doesn't matter, in my view, whether Ms C or anyone else knew that they would be on the receiving end of systemic discrimination when they entered a relationship. The systemic discrimination is wrong and should be corrected.
The Chair: I turn now to the opposition caucus.
Mr Pat Hoy (Essex-Kent): In your recommendation, you say "the ministry should make it a practice to issue separate cheques." I'm somewhat curious about the phrasing you use. If both recipients say to the ministry, "We're satisfied with one cheque," are you adamant that every situation receive two cheques, or is there flexibility there that those who want two cheques can receive two and these perhaps 13,000 other recipients could say, "We're pleased with the system the way it is"? By choice, both partners would say, "One cheque is sufficient in this household."
Ms Jamieson: I think, Mr Hoy, that the issue that would still concern me is how they arrived at that representation of an agreement. If you're in a situation, as a woman -- and it is the women who are really on the receiving end of the systemic discrimination in this one -- if you're in an abusive relationship or where there's unequal power, it may end up being presented as something to which you have agreed, but you may be afraid to disagree.
I think the simplest way of keeping the ministry out of deciding where there's power and balance and where there isn't, if they're each entitled, they ought to receive their entitlement. If they then want to put their funds together, that's up to them. I'm saying that it's not appropriate for the ministry to be involved in that. That would allow each person to be empowered, to have the dignity and self-respect to do that with their funds which they wish.
Mr Hoy: I appreciate that clarification of your view on this. We can move to the cost factor then. You're suggesting and stating that there are savings to the ministry in providing single benefits in the first place, and that the issuing of cheques to two people would not necessarily be a cost factor because there are savings within that as opposed to a one-family benefit cheque under the definition.
Ms Jamieson: It's quite true that if the only way out is for people to separate, if the only way for a woman to receive a separate cheque is to leave the relationship, to then pay two separate adult entitlements is more than if you paid with people staying together. That's true.
The ministry has said on a number of occasions, but very vaguely, which I find very troubling, that they're unable to quantify an issue they've raised over time, that this is going to be burdensome to administrate and so on. I'm very sceptical about that. I'm not saying increase the entitlement; I'm saying leave the couple entitlement alone, which is less than two individual entitlements. Leave that entitlement alone, divide by two, and at the end of the calculation, send out two separate cheques. It seems simple to me.
Mr Rosario Marchese (Fort York): That would be my sense too. It would deal with the whole issue of assumptions that we make, and I think you're dealing with some of those. The first assumption is that it is assumed that the man is the head of the household. It is also assumed that this is the practice, and there are no problems between -- or there may be, but if there are problems, they will resolve them on their own, man and woman.
By doing what you're suggesting, we relieve ourselves of those assumptions and rid ourselves of those possible discriminatory practices and/or recriminations which you touched on as well. To do it any differently would put the onus on the individual to then call the ministry and say, "Well, fix this for me, because I don't want it that way." I guess by changing your practice, you remove that onus on an individual and the problems that come as a result by changing the practice.
Yes, there may be some costs possibly in terms of administration in the beginning as they change the system, but I think in the end it would be a better practice. That's my sense.
If I have time, on the issue of co-residency versus common law, if you treat it as common law, the benefits would be reduced, but if you treat it as co-residency the benefits would be the same but divided in two parts. I find that a reasonable presentation this morning. That's all for now.
The Chair: That concludes the case for the Ombudsman. I now invite the ministry to address us. It's the same deal: You have half an hour. Use it as you wish. Might you begin, though, by identifying yourselves for the record?
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Mr Kevin Costante: My name is Kevin Costante. I'm the assistant deputy minister of social assistance and employment opportunities. I have with me today at the table Allan Kirk, who is a manager in our social assistance program branch. I also have several ministry staff who have joined us, whom I'd like to introduce in case there are questions they need to answer later. They include Donna Ingram, who is our manager in our information services branch; Debra Tackaberry, who is a policy analyst; and Marilyn Marshall, who is legal counsel with the ministry.
I'd like to thank the committee for giving us this opportunity to respond to the Ombudsman's report on file number 98875 in the case of Ms C. First of all, I'd like to make it clear right from the start that with all due respect, the ministry fundamentally disagrees with the findings and recommendations of the report. The position is based on our knowledge of the proposed approach, and it would seriously undermine our ability to deliver social assistance in Ontario.
The report recommends that the family benefit allowance amount be determined for the family unit and that the allowance then be split on a 50-50 basis, with separate cheques being issued to the individuals in that family unit. In family units where there are children, the report also recommends that any portion of the allowance for the children be attached to the cheque issued to the custodial parent.
Under the Family Benefits Act, eligibility for an allowance is determined according to financial need in a given category, and whether a person is living by themselves and on their own or living as a member of a family unit. When couples live together as a family unit, they are evaluated as a family for the purposes of social assistance, with the head of that household as the recipient of the social assistance payment.
The approach proposed by the Ombudsman would set a precedent that would leave the way eligibility is calculated in conflict with the way the payments are provided. Ultimately it could lead to a more complex and costly individual-based rather than family-unit-based social assistance program.
Under the Family Benefits Act, a recipient is defined as a person to whom an allowance is paid and the beneficiary to mean a person on whose behalf the benefit is provided. The legislative framework distinguishes between recipients or individuals who receive an allowance and others who are included as beneficiaries of an allowance.
To implement the Ombudsman's recommendations requires regulation amendments that would provide new eligibility rules and new allowance calculations. The ministry also could not restrict the application of this amendment and would have to extend it to other case types in the Family Benefits Act and the general welfare assistance program. Given the current social assistance caseload, there is a potential here for splitting cheques in over 61,000 family-based cases on general welfare and over 39,000 family-based cases in the family benefits program, so in excess of 100,000 cases.
In addition, this could lead to further requests from dependent adults other than spouses who are currently treated as beneficiaries in the family unit for further splitting of allowances. Treating members of families as individuals as opposed to a benefit unit for the purposes of applying for and receiving social assistance would also result in increased costs to the province, as the Ombudsman has noted.
Also, significant and costly systems changes would be needed to implement this approach. The social assistance computer system, which is fairly old and outdated, is now set up to issue family-based allowances. Given the complexity of the changes needed, a preliminary analysis suggested it could take anywhere from 18 months to two years to make the systems modifications required to implement this approach. We've done a rough estimation of the cost of making that systems change and it's about $750,000. In addition there would be added costs for sending out two cheques, for postage, additional cards and other things, in the sense that there would be all the administrative costs of treating these as separate cases. That could easily amount to another half a million dollars, again depending on the number that would be taken up within the 100,000.
Implementing the recommendation would also require, as the Ombudsman has noted, issuing of separate drug and dental cards for each individual.
Without the necessary systems changes, the only means of implementing this recommendation would be to issue social assistance allowance cheques manually on an individual basis at a local level. This would be a tremendous increase in the workload for a system that is already struggling with a very heavy workload.
In summary, there are serious implications in the approach proposed by the Ombudsman on a legislative policy and operational level across the social assistance system. All of these implications could create additional costs for the province, with limited and questionable benefits to the social assistance clients.
The ministry takes the position that when couples continue to live together as a family unit, they will continue to be evaluated as one unit for the purposes of social assistance, with the head of the household as the recipient of the social assistance payment.
I'd like to thank you for giving us an opportunity to respond, and I'd be pleased to take any questions.
The Chair: Maybe 12 minutes per caucus, beginning with the opposition caucus.
Mr Hoy: Good morning. You mentioned that your computers are somewhat aged. Do you anticipate that in the future you're going to have to upgrade them anyway? Can you continually work along with these, regardless of this particular suggestion today?
Mr Costante: We are in the process of structuring a contract to replace those computers. Depending on when that contract is issued, we could likely be in a situation of having a replacement for our CIMS main system; hopefully in late 1988 would be a guess.
Mr Hoy: Do you anticipate that you might spend $750,000 to upgrade them?
Mr Costante: I think if we do get to issue the contract to replace it, it would not be a wise investment to make this change to the current system unless there were some edict that we had to. You would likely try to make the changes as we develop the new system.
Mr Hoy: So it might be a gradual progression?
Mr Costante: I don't think it would be gradual. I think you would either put it into the new system or you would not.
Mr Hoy: The cheque writing that takes place coming out of your ministry, you don't issue the cheques yourself, I assume. Do you have tapes that you send over and the cheques are printed elsewhere?
Mr Costante: The cheques are generally printed at local offices.
Mr Hoy: I don't have any other questions.
Mr Costante: Additionally, there are a lot of individuals on family benefits -- I believe it's about 80% -- who get direct deposit.
Mrs Elinor Caplan (Oriole): It's 80%?
Mr Costante: It's about 82%.
Mrs Caplan: My first question was on the question of direct deposit.
I think what this committee has to deal with and what the government has to deal with is the principle. The Ombudsman is saying that the notion of head of the household is outdated. It is intrusive for the ministry to make that determination and it is discriminatory, because based on the number of cases you have, the determination of head of the household as being male is almost two thirds of your caseload. That notion of relationship today and forcing partners in a relationship to have to leave the relationship to receive the entitlement for which they qualify is systemic discrimination.
The notion is, given all the realities you've brought forward, whether the government agrees in principle that this is systemic discrimination. Do you think the Ombudsman has made the case on the basis of the outdated notion of head of the household and does the ministry believe this is discriminatory, notwithstanding the cost of the remedies and so forth? Let's start on the basis of principle.
Mr Costante: First of all, the ministry doesn't make the determination of who the head of the household is. That is made by the couple in question.
Mrs Caplan: I'm talking about the idea of head of the household, whether that notion is outdated and discriminatory, regardless of who it is. The fact that it more often than not is male -- the Ombudsman has said that's the reality, based on outdated notions and on traditions in society. But the question is whether you agree with the Ombudsman that the whole principle of having to designate a head of the household is discriminatory, placing a couple in the situation of having to do that, given the power imbalance in a relationship.
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Mr Costante: What we're dealing with here, though, is a family unit. Social assistance is a payment of last resort to a family unit. The entitlement is based on family income and on family need, and it just makes sense that we make the payment to a single family unit, and they have to make the decision as to who that payment is made out to.
Mrs Caplan: I'd like you to say yes or no: Do you agree with the Ombudsman that having to designate a head of the household, given that two-thirds are going to be male and she believes this is discriminatory -- do you believe this is an example of systemic discrimination?
Mr Costante: No, we don't.
Mrs Caplan: That's the issue for the debate of this committee. The issue of the principle of whether we have an example here of systemic discrimination is I think the basis of the discussion. I'm very sensitive to an understanding of the difficulties the ministry would have in making changes. Nobody ever likes to make changes, but I think the Ombudsman has made the case for a case of systemic discrimination, based on the evidence that is before us. I understand as well the differing viewpoints about what that would mean and how the rent would get paid and interfering in relationships.
My own view is that it is the role and the job of the Ombudsman to bring to this committee findings of fact, issues which the Office of the Ombudsman and the Ombudsman believe are in fact systemic, unintentional discrimination based on changes in society and traditions that have evolved over time, which the government has to address on the basis of compliance with the Human Rights Code, which says you cannot discriminate on the basis of marital status. That's the point she has made, and I think she's made her case: that the ministry, in the way it is distributing family benefits cheques, is discriminating on the basis of marital status and forcing an individual who wants access to their own entitlement to have to leave a relationship to have access to that on an individual basis.
Mr Froese: It this a question or a speech?
Mrs Caplan: It is a speech. In fact, it is during this time that I have the opportunity to tell the ministry both how I feel and what I have heard. I haven't heard anything from the ministry to defend the position that they don't believe it is discriminatory. I've heard that their computers are old and that people know what they're getting into and that they have to designate a head of the household, but I'd like the ministry to let me know, from their perspective, why they feel this is not an example of systemic discrimination.
Mr Costante: I think it goes back to the nature of a social assistance program that is based on a family unit. To our knowledge, this is also the practice in the other nine provinces, which run social assistance programs. They all do it --
Mrs Caplan: So your argument is that because it's systemic discrimination in other provinces, that's okay? I want you to address the issue of why you argue with the Ombudsman's finding that this is systemic discrimination. That's my issue, not that other provinces are doing it. She's identified something that she believes should be changed here because it's not in compliance with our Human Rights Code. I'd like you to tell me why you don't agree with her, not that other provinces are doing it, but based on the --
Mr Costante: Sorry, I didn't get a chance to finish. Social assistance is determined and based on eligibility of a family unit and is treated that way in all the rules and all the ways it is administered by this province and other provinces. We pay it out to the individual who is decided upon by the couple in question; it's meant for the entire uses of that family unit. We think it would be quite difficult to make the changes being proposed. I think it's very unclear from the Ombudsman's report how we would split the cheque for children. I think it's very unclear from the Ombudsman's report -- or maybe it is clear -- that the ministry would also have a fair amount of policy work to do in terms of deciding what happens if one of them is working part-time. If there are overpayments, how is that allocated? There are just a lot of problems with this particular policy.
Mrs Caplan: Why do you think it's going to the male?
The Chair: Mrs Caplan, I'm sorry. I know I said 12 minutes, but I forgot that Rosario represents a third caucus. It's really eight minutes per caucus, so it's time to move on to the third party.
Mr Marchese: Ms Jamieson talked about the fact that she had asked for some of those costs you have provided today and that they didn't get a chance to see those figures. Did they get a chance to see them eventually or finally?
Mr Costante: No, sorry; we have just done this work in the last several days.
Mr Marchese: I always find it useful when people bring a case forward and ask for that information that we try to provide it before they come here, because that's part of their analysis and it's part of their presentation. It's difficult for us to respond to those without the benefit of their analysis of how that might be either correct or incorrect or challenged by them. I just wanted to make the point that for me it would have been useful had they had that information so it could have been part of their case.
Second, you say you think it is of limited benefit to recipients should we change the system. I think the point is that once a case has been brought forward -- and there are probably others of a similar kind but never brought forward -- it begins to tell us that there is a problem with the system. While it may be of limited benefit, it would be important to those people who are undergoing the problem or in it to find some remedy.
The problem I have with your presentation is that you're bringing forward a whole list of possible reasons it would be complicated to do, and while I appreciate that there are some costs and that questions might arise which become complicated for the ministry, possibly the government, have some of you reflected on how we might bring about a remedy to such a problem? In the way it was presented it would be a whole systemic change, but have you reflected on how we might remedy it in a way that may not be systemic but might bring us along towards dealing with the problem?
Mr Costante: In this particular case there were attempts to look at joint bank accounts, to look at trustee options, to look at switching the prime recipient of the cheque. I think our case workers try to deal with these situations as they arise, and the numerous other situations that happen out there.
This is a very large system. The social assistance system in Ontario still deals with a million people. They have a million different individual circumstances that we're trying to cope with on a day-to-day basis, and it's quite hard to have a rule for each and every single individual circumstance. We try to set rules which we think are fair, that are administratively feasible and that we can reasonably administer in this large a system, that has 7,000 workers, that sends out over $5 billion worth in payments each year. We look at each case, and our case workers try the best they can to deal with individual circumstances.
Mr Marchese: I appreciate that, of course.
You say we're dealing with a family unit here and that the payment therefore is to the unit. Ms Jamieson was saying, yes, we have a unit which is recognized, and perhaps rather than treating it as common-law we treat it as co-residency and split the cheque in two.
Mr Costante: If you treat it as co-residency, there is an increased cost to the province. They'd get paid as two individuals and get the full amount, not the reduced amount that comes when two adults are considered a couple because there are assumed economies of scale and therefore a lower entitlement. That would mean quite a substantial increase in costs, if this was to be 100,000 individual cases where we'd have to do that.
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Mr Marchese: The cost factor would be a problem, is what you're saying. Is it more than just a cost factor for you?
Mr Allan Kirk: It's more than just a cost factor. When you talk about co-residents, versus common-law, you're talking about two people who are sharing accommodation and their allowances are calculated accordingly. In the particular instance the Ombudsman is talking about, this is a couple who were together, were common-law, split up and came back together; it was accepted that they were common-law, and the allowance has to be calculated accordingly.
There are a couple of issues here. One is the head of the household issue. Up until about 10 or 11 years ago, the province did accept that there was a head of the household and the head of the household was the man. We stopped doing that 10 years ago. The recipient, the person in whose name the cheque will be made out, is for the most part up to the couple. There are some instances, particularly on the FBA side, where only one of them is categorically eligible and therefore they must be considered the recipient and the cheque must be made out in their name.
The other issue that was brought up by the Ombudsman was that these two people continued to be categorically eligible in their own right when they became a couple. That's not true. They may each have continued to be disabled, but they did not each continue to be categorically eligible, because they were recognized as a couple. Once you become a couple and because we deal with family units, you cease to be eligible in your own right. Once they are apart, they are in fact eligible in their own right. But the fact that they both continue to be disabled does not mean they continue to be recognized as individuals when they become a couple.
Mr Marchese: In the case Ms Jamieson brought here today, are you sympathetic to the problem she presented?
Mr Kirk: I'm sympathetic to the problem that exists among couples. In a question to the Ombudsman, the former banker put it very well, that when you're dealing with couples often there are issues, and often there are issues that are difficult to resolve. The case the Ombudsman brought before you today is an example of that. This is an example where a couple is having problems, financial problems, and the solutions we are able to offer are solutions that were not working for them.
Mr Marchese: Ms Caplan has a question with my minute.
Mrs Caplan: I'd like you to clarify. What I heard you just say is that an individual loses their entitlement on the basis of their marital status. I'd like you to say why that's not discrimination on the basis of marital status.
Mr Kirk: This is a program of last resort. This is a program that is family-based, both on the family benefits side and on the general welfare side. If it were to be otherwise, if we take the example, for instance, of a sole-support parent who is eligible in their own right while they are a sole-support parent, what I hear the Ombudsman saying is that when that sole-support parent enters into a common-law relationship with someone, they ought then to continue to be considered a sole-support parent. They're not.
Mrs Caplan: No.
Mr Kirk: But they're categorically eligible in their own right when they're living in the community on their own. When they become part of a couple, that ceases, and that's --
Mrs Caplan: What the Ombudsman is saying is their entitlement shouldn't be based on their marital status. They shouldn't lose their entitlement based on marital status.
The Chair: Mrs Caplan, thank you. I turn now to the government caucus.
Mr Doug Galt (Northumberland): I know two wrongs don't make a right, but I couldn't help but sit here and think of when our children were at home and we were receiving the so-called baby bonus or family allowance cheques; they were made out to the mother and it appeared as income on my income tax form. I'm not sure if it always went to the male or if it went to the one with the higher income. It probably went to the one with the higher income, but I thought it was an interesting comparison, as you were presenting. I'm not suggesting that was right either, and I do appreciate what the Ombudsman is bringing forth, but there is another circumstance whereby we're recognized differently by gender.
I was curious about what it costs to produce a cheque.
Ms Donna Ingram: Good morning. I'm Donna Ingram, with the information systems branch. Cheque payment costs approximately, off the top of my head, about $4 or $5. The costs are made up of processing, cheque stock, postage, and generally there's also something else that goes with the cheque, like a benefit statement of some description.
Mr Galt: So in this case there would be some economies of scale by dividing by two and sending two cheques. It wouldn't be quite that much for an additional cheque?
Ms Ingram: No, it would be that much because of how it's processed.
Mr Galt: Would there be a problem with writing two cheques and sending them in a common envelope?
Ms Ingram: Yes, there would be.
Mr Galt: This term "head of a household" kind of bothers me and I have great difficulties with that. I did pick up a little later on that there is some flexibility in the system whereby the couple may decide which one receives it. That was something I was going to pursue, but you obviously answered that.
I think the Ombudsman has a point here that I hear. At the same time, I'm not so sure her solution is going to improve -- we may have as much trouble with the solution as we presently have. We may need some flexibility here if there are difficulties within the couple and they want separate cheques. Maybe we should be prepared to recognize that, but to demand separate cheques in all instances is sort of trying to kill a fly with a sledgehammer and I'm not so sure it's the proper answer. But I do recognize some difficulties.
Mr R. Gary Stewart (Peterborough): A couple of questions, and I don't mean this to sound the way it's going to sound, but I could tell you this: The difference of writing a cheque between $4 and $5, if I was your ministry, that would be the first thing I'd work on today, to find out how much it costs you to write a cheque, because if you're writing a few hundred thousand cheques, the difference between $4 and $5 represents a hell of a lot of money. If that's criticism, then so be it.
A couple of things: It appears to me that we're trying to redefine what the family unit is. Do I understand that if you were to send a separate cheque to the male and the female, the mother and the father, whatever we seem to want to call them these days, you're going to have to do the same thing to the children as well? If this was set as a precedent, is what I'm trying to say.
Mr Costante: I think that's what we're worried about, the precedent-setting nature of this, that you could see a dependent child who's 17 or 18 then wanting their separate piece of the allowance as well.
In addition, while the Ombudsman said the intention is not that there would be an individualized base funding amount or an individualized entitlement as a result of this, I think it does lead eventually down that road where you would do an individual entitlement on people, which would be extremely expensive, in the hundreds of millions of dollars, as opposed to considering the benefit unit being the whole family unit. That's another very major concern that we have, that it's precedent setting in the direction that it heads.
Mr Stewart: Do you feel this would add to the possibility of fraudulent activity?
Mr Costante: I think it further complicates our system with additional complications in trying to administer now two benefits and two separate cheques. I think, yes, there could be more fraudulent activity. There could be more errors as well. It's just natural.
Mr Stewart: I guess the reason I'm asking about the cheque situation and the cost of it is that in this particular case here where the people were together, they were getting separate cheques. Then they became a family unit and they got one cheque. Then the person left and they go back to a single cheque; then you go back to the other. In this particular case, there could have been three or four or five different assessments and four or five different cheques being written, as I understand it, with what happened in this particular case. I guess what I'm saying is that if you write one and the family gets together and they're there forever, that is absolutely fine, but if they keep going back and forth all the time, which in this particular case it is, it becomes really costly.
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Mr Kirk: It becomes complex because, yes, you're setting up different files because you're dealing with two individuals who each have a file and who each are entitled to an allowance, and when they get together you're dealing with a family unit and you have to deal with them as a family unit. And yes, if that family unit splits up again, you are in fact dealing with two individuals again.
Mr Stewart: So there's no control there. How many cases would you have a year, requests to have a change in the way you issue a cheque? Are there a lot?
Mr Kirk: It's difficult, but I think we process around 50,000 changes to allowances in any given month, something around that, so it's a bit high but --
Mr Stewart: I'm not talking about circumstances. I'm saying --
Mr Kirk: This type of case? It would be difficult to determine, but it's not uncommon that people move apart, move back together again. We don't keep track of how often that happens in any particular month or year.
Mr Stewart: Every hour you don't get somebody saying, "I want an extra cheque."
Mr Kirk: No.
The Chair: We have one minute left for the government side.
Mr W. Leo Jordan (Lanark-Renfrew): I have a question that I guess really goes to the Ombudsman. How many complaints or inquiries are you getting through your ministry on this issue? Is it a large number?
Mr Kirk: No. There are certainly issues that arise, as I said earlier, where family units, couples, have problems and the issue has to be dealt with and resolved. Often it is dealt with by talking to the couple about which one of them ought to be the recipient and making a change in who the recipient is. Often it's dealt with by talking with the couple and agreeing that perhaps for some period of time a trustee ought to be put in place so that the allowance is then payable to a third party until some of the issues are resolved. But to my knowledge, and I've been in the business for a long time, we don't get any large number of requests to divide a cheque. As I say at the outset, when an application is taken and it's possible for one or the other to be the recipient, that discussion is held with the couple and it's decided on whose behalf the application is going to be taken. It can be either one in a lot of instances.
The Chair: Thank you very much. With that, we conclude the case for the ministry. We invite the Ombudsman to return and respond to any issues that arose during the ministry's case. If there are any questions, we will begin with the third party this time.
Mr Galt: What is the total time frame, Mr Chair?
The Chair: We'll sort of see how much material arises during the Ombudsman's remarks, but I would expect to keep it short.
Ms Jamieson: There are a couple of things that were raised by the ministry's presentation that I think should be commented on. First of all, I can't help but say that I think it is very close to unconscionable for the ministry at this stage of the game to arrive at the hearing and to present what amounts to unsubstantiated figures, large figures, talking about millions, which they were not able to compute or share over the last period of some considerable time.
I for one remain quite sceptical about the figures. I know that each and every day programming changes are made to computers to update. I know as government changes priorities, brings into place new programs, decides that benefits will be adjusted in some way, these all require programming changes. I would think that to comply with the Human Rights Code would be probably the most compelling reason to incur some cost to make the programming changes.
There was some discussion about the recipient for the most part being chosen by a couple. The fact is that in the absence of an agreed election, the cheque is given to the male. The fact is that when people enter a relationship which is considered common law by the ministry, because of the "one cheque per spousal couple" rule, they lose their entitlement as an individual, and that is systemic discrimination on the basis of marital status. One would argue that in this case it is also discrimination on the basis of sex because the disadvantage is for the most part borne by the woman in these relationships. This case has not been met by the ministry and this is something that really concerns me because it's a very serious matter.
The question was also raised, what about other provinces? I think the fact that systemic discrimination hasn't been addressed in other places where it may occur doesn't make our perpetuation of systemic discrimination okay. On the contrary, I think Ontario is a leader and would want to continue to be seen as a leader in this field.
I would suggest the committee might want to consider the old age security, which is a very good example where two individuals qualify in their own right. If they are together in a unit, the calculation is on the basis of the unit, which is less than what they would have gotten individually. I'm not arguing that they continue to receive what they would have gotten individually. I am saying the lesser family unit amount is perfectly justified. Just split it in two, which is what happens with old age security. If you want to look at an organization that deals with many people and many, many cheques, there's a good one.
There was also a question raised about children and other complications. I'm not proposing a change to how one deals with dependent children. I think that again the ministry is raising the spectre of floodgates: If we go down this road, we'll be in a real mess; individual entitlement etc. I think it's no more difficult to figure out where the money goes for a child than many other factors that are taken into account each and every day by the ministry when it arrives at what's an appropriate calculation.
I am also not suggesting that there be a rule for each and every circumstance. My recommendation would have one rule for all couples, and that is one entitlement divided by two. I'm not suggesting a change to co-residency. I am not suggesting anything other than one entitlement divided by two, calculated on a family unit basis.
Those are some of the things that I felt it was important to address in responding to some of the issues the ministry has raised. This is not about difficulties between couples. I'm not asking the ministry to become marriage counsellors; on the contrary. This is not about disagreement between two individuals living together. This is about systemic discrimination practised and perpetuated, unintentional though it may be, by a ministry of the provincial government, and it needs to be remedied.
The Chair: Thank you. I propose to allow three minutes per caucus, if that's acceptable, beginning with Mr Marchese.
Mr Marchese: Thank you for that summary again. I share your frustration about the calculations. I really believe those figures should have been provided to you before. Even yesterday might have been useful. I presume they had those figures then.
As a former minister of culture, I found it frustrating
often to deal with some of those problems, and it did happen that sometimes civil servants would bring me something at the last moment and say, "Urgent, Minister, and you've got to sign here." I remember clearly saying to one deputy minister, "If you do that again I will not sign them," because I wanted time to reflect on what I was signing. I share that frustration with you.
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We're looking at, what is the problem we're trying to solve and what is the principle we're trying to deal with? I lean towards the principle of how we bring about equity to people and avoid problems as a result, rather than assuming that this is a family unit and they will solve it between themselves.
That brings its own problem, and while it carries some initial cost administratively, I believe that those questions can be solved. I think you clarified that what you're talking about is one entitlement divided by two, and it may mean less to those individuals, I think you were saying, but that's fine, that you consider it as a family unit but you divide that entitlement by two, and it's just an administrative thing to deal with.
If there are other consequences in terms of how that might affect other people in the future, they should be dealt with as they arrive, I'm assuming you're saying as well. Is that correct?
Ms Jamieson: Yes.
Mr Marchese: That's all.
Mr Jordan: I note that you go back to 1993 on this case. Have you been investigating it since that time?
Ms Jamieson: We've been investigating it since 1994.
Mr Jordan: I had a problem with some of the remarks of my colleague across the way relative to the fact that his government was involved in this prior to our government. However, we're talking about figures and not coming here prepared with information. How much has it cost out of your budget, during this period of time, to investigate this case?
Ms Jamieson: I haven't made that assessment. This is what we do each and every day on many cases.
Mr Marchese: That's her job.
Mr Jordan: You still have to make it relative to how important it is to other measures that your budget is there for.
Ms Jamieson: Were that the case, this is an extremely important issue, because it does not only affect one individual. Even though this case comes out of one individual case, and this was first raised with us in 1993, though we began the investigation in 1994, I can say --
Mr Jordan: Do you have an estimate of cost?
Ms Jamieson: This being a systemic issue, these are the issues which, if raised and addressed, will remedy the process of government and ministries throughout and prevent thousands of other people dealing with the same circumstance. I think if you want to do a cost-benefit analysis, I would ask you to put that kind of a frame around it.
Mr Jordan: Do you have any estimate of what time and costs you have related to this particular case?
Ms Jamieson: No.
Mr Jordan: Should we not have that information?
Ms Jamieson: I don't know that it is appropriate to the consideration of this case.
Mr Jordan: The point that the couple has the right to decide whom the cheque goes to tells me there is no problem. It's in their hands. I deal with I don't know how many of these through the constituency office, and I really and truly don't recall one couple leaving that didn't go away satisfied. First of all they were getting the taxpayers' money, they were getting the benefits, they were satisfied with the amount, and when it came down to an issue like whose name shall it come in, they went away quite satisfied as long as it got to their household. So I'm a little concerned that we're concentrating on this aspect of it, that there's an unfairness here.
The Chair: Thank you, Mr Jordan. I'll give you quick chance to respond, but then we're into the Liberals' time.
Ms Jamieson: I suggest to you that you consider that the nature of relationships involving couples is such that often the woman is not going to feel empowered to disagree with her spouse in your presence, in my presence, in anyone's presence.
Mr Jordan: I've met some pretty powerful women.
Ms Jamieson: Yes, as have I. I'm saying that the nature of this issue, in that it perpetuates systemic discrimination, is such that it removes the power from an individual when they become married and that the ministry decides on their behalf that the cheque will go to the man.
Mrs Caplan: I just want to make a statement to say that systemic discrimination is usually unintentional. The reason you have an Ombudsman to bring forward issues of systemic discrimination is to give you an opportunity to take a look at something that is unintentional and deal with the principle and say: "That was never our intention, and we will change our policy as we can. Now that we know we're doing it, we won't do it any more." That is the whole notion of systemic discrimination.
I'm very sympathetic to the coping aspects of the ministry's case, but that doesn't have to do with the principle. When you have a problem and you agree you've got a problem in principle, you then have to find a way to work your way out of it that is practical and reasonable, based on what the costs and considerations are and how you're going to do it. But the question is, do you believe it is okay to continue discriminating when it's brought to your attention?
Here's the issue based on the principle. We've been told that individuals lose their individual entitlement based on their marital status. We've heard that from the ministry. Once you enter into a common-law relationship or get married, under the Family Law Reform Act the Ministry of Community and Social Services says to that person, "You are no longer entitled as an individual." That is clearly discrimination on the basis of marital status.
Because in the overwhelming majority of cases it is the woman who loses that status, I think it could be argued that there is gender discrimination as well. The reason you have that gender discrimination is that traditionally there is a power imbalance. I don't think there's another issue that is more divisive in a relationship than control of the resources of the family. That's a reality. It has always been a reality, and it's important that government not exacerbate that reality by interfering, and that's the case that the Ombudsman is making.
By policy you shouldn't interfere. You should let them work it out themselves. You should not interfere by saying, "The cheque must go to one and you must choose." It should be the policy that both are equally entitled. What impressed me as well was that in 82% of the cases no cheque is issued, it's direct deposit, and individuals could choose direct deposit into an individual account or a joint account and in that way make the determination in their relationship.
This is not a partisan issue. The fact that this has been going on always, through all governments, is not that it is partisan in nature or that anybody deliberately set this up to do it. It was a reflection of the times. It has now been brought to our attention, and the issue is, what is the attitude of the government towards an issue of systemic discrimination when it is brought before them?
I hope this committee will decide to listen to the Ombudsman -- we've identified an issue of systemic discrimination -- and direct the ministry to bring forward a fiscally responsible plan to achieve the goal of eliminating discrimination and ensure that the ministry's practices are in compliance with the Human Rights Code. That's our obligation and responsibility.
I'd also say that if the members of the government don't feel that the ministry should be in compliance with the Human Rights Code, they should say that on the record, because I suspect that there will be those who will take this case through the courts. If you don't deal with it here, appropriately, if you think it has cost you a lot of money to this point, having the Ombudsman do the investigation, it's going to cost you a whole lot more with government lawyers fighting this case in the courts, and you're going to lose.
This is clearly systemic discrimination, and you can fix it here by making the appropriate recommendation.
The Chair: Thank you, Mrs Caplan. We will now go into closed session and consider our next course.
Mrs Barbara Fisher (Bruce): On a point of order, Mr Chair: Why would we need a closed session?
The Chair: That's been the tradition of this committee. That's the practice we followed last week and that's what I proposed off the top. I didn't hear any objection at that time.
The committee continued in closed session from 1030 to 1118.
The Chair: Welcome back. The committee, in closed session, has decided to reserve its decision on this morning's case. The committee will reconvene to consider this morning's case at the call of the subcommittee, and notices will go out to the usual parties.
Mrs Caplan: I think you should add as well, Mr Chair, for the information of the Ombudsman, that we requested that the ministry provide all the information she had requested in detail, so when we deliberate this case we'll have all the facts on what the costs would be from the ministry's perspective. We've asked that they be made available to the committee and to you so that we can have that discussion here as well.
Mr Jordan: On the costs of the Ombudsman on this case?
Mrs Caplan: No, this is the cost from the ministry.
Mr Jordan: Well, I'm sorry, we asked for those.
Mrs Caplan: No, we did not. That was not what we discussed. That is not related to the case.
REVIEW OF THE OFFICE OF THE OMBUDSMAN
The Chair: We are now moving to consideration of the 1993 report. We have heard from the Ombudsman in her initial comments, but she now has further comments to make in accordance with the submissions she gave us in writing, and I invite her to take us through that material now.
Ms Jamieson: The last day, you will remember, I went through and grouped each of the 44 recommendations under eight themes and tried to be as helpful as possible in responding to those theme by theme to let the committee understand better what my response was.
I'm really in your hands. I mentioned a number of the 44 recommendations in those opening remarks. I'm happy now to go through each of the 44 or to respond to questions or however you would like me to proceed, whatever would be most helpful.
The Chair: The committee indicated to me in closed session that they're happy to have you take us through your points.
Ms Jamieson: Each point. Okay. I'll try not to be too repetitive today.
The first recommendation deals with the committee considering rules to govern how I conduct investigations of a systemic nature. I made some general comments last week on rule-making and on how, generally, rules are usually so vague as to be unhelpful or very, very limiting.
I also made the comment that it has been extremely important for the public to know that I, as their independent investigator, do so without being directed by government and without being influenced by the political influences of the Legislature.
The making of rules to determine how I would investigate systemic issues, if they're made by a committee the majority of which are government members, I believe would cause the public quite rightly to question the credibility of the Ombudsman institution as an independent one.
That being said generally on rule-making, I am going to turn now to the issue of "systemic," and we had a case on that this morning. It is a very important part of our work, for several reasons. To do reviews and to look at cases and see their systemic implications and system-wide implications really makes optimum use of resources; it helps prevent similar complaints from arising in the future, if you fix it once; and it helps us to address policies and practices that look neutral, like the case we did this morning, but in fact have a negative impact on groups of people.
It's often been argued that systemic reviews are done at the expense of individual cases and investigations. That simply is not the case. Most of them arise out of individual cases. I believe there is no need for a rule to govern how systemic investigations are to be conducted. I welcome the opportunity to talk with the committee further about how we conduct those investigations and to entertain suggestions for improvement, but writing a rule, I feel, may limit the scope of my ability to do my work and then may handicap our office in not being able to adjust to new circumstances, new twists that new complaints might present.
On the second recommendation -- that is, that I present as part of an annual ombudsplan "public education initiatives for each fiscal year" -- I wanted to draw the committee's attention to the fact that we do report on public education initiatives every year in the annual report. We also set priorities, objectives and work plans according to our budget, and as part of that exercise we develop public education plans by geographic region. I welcome the opportunity to share those plans with the committee and to discuss suggestions for improvement. I don't, however, think it's appropriate to have them submitted for the approval of the committee because I think that is a matter for myself, as Ombudsman, to determine. That is 3(a).
I do agree with the intent behind recommendations 2, 3 -- 3(a) and 3(b) -- 4 and certainly 5. On the specifics:
Recommendation 3(a): We do target those groups least likely to be aware. It is accepted practice. It is a high priority in my office. Again I welcome the opportunity to talk some more about that and to hear from many of you who may have some views on where we should spend time. We do our best with what we have to work with.
Recommendation 3(b): "That government departments and agencies be required to make information on the Ombudsman's services available at all public service contact points." I think this is a terrific idea and it would really supplement our public education efforts. It's going to be important to do it in a way that government organizations will support and that will ensure the public understands that the Ombudsman is separate from government. If, for example, you put up a pamphlet counter at each government service point, that's a terrific idea, provided it's done in such a way that people understand that that pamphlet suggesting they might want to take complaints to the Ombudsman -- that the Ombudsman isn't then seen as part of a government department. The way it's done I would very much like to talk about, but in principle I think it's a great idea.
Recommendation 4: That we report annually on the activities undertaken, with a statement of objectives and so on. We do this through the annual report and I'm happy to do more of it.
Mrs Caplan: On that one, I think what the committee had in mind was what we discussed previously, and that was an opportunity for the Ombudsman to come to the committee to discuss the annual report and answer questions, such as the specifics we've just been debating: What's the appropriate forum to ask about, what cost per case, that kind of thing.
That's all part of the annual report process, and I think part of the frustration for the committee has been that there hasn't been enough contact to be able to discuss those kinds of issues. I'm just wondering whether you feel that would be appropriate, for the Ombudsman to come to the committee with the annual report and have a full discussion on any issues members wanted to raise in conjunction with the operation of the office.
Ms Jamieson: I'm happy to come and talk about the annual report. We haven't had that chance for a couple of years running, and I would look forward to that and then answer questions on public education efforts and so on. I would welcome that opportunity. There are some areas, of course, where we wouldn't have discussions, like budget estimates and so on. Those are done elsewhere, as the member is aware.
Recommendation 5: Yes. I don't think an amendment is necessary -- it's an integral part of our work -- but if the act will be opened to have amendments to confirm what we already do in public education, terrific.
Recommendation 6: That a complaint be made orally or in writing, orally and then in writing as soon as practicable, and us providing assistance to members of the public to formulate complaints.
Again, while this amendment would be helpful, we do this already in practice. We take complaints in person and by telephone and, where assistance is required, we provide it so that the complaint is in writing. I see, however, that there is a service equity element to this, and I certainly think it would be helpful, though not required.
Recommendation 7: That the act be amended, and this talks about a special report to the assembly; also, there is some provision that no comments be made during the course of an investigation or concerning the merits of a complaint or for the purpose of achieving implementation of my recommendations.
While I don't agree with the recommendation as it's worded, it is an area where I would welcome discussion because I think it should be addressed, and I would go further, in fact, than the committee suggests.
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I have probably the most restricted act in the country when it comes to the ability to make public comment. Although I should be able to comment on ongoing investigations only in extraordinary circumstances, the fact that the act is so restrictive is almost oppressive at this stage. It would be helpful to extend the powers to comment, make more reports to the Legislature and comment publicly on matters of public importance as the need arose.
It would also be useful to be able to make special reports on any issues that relate generally to the performance of our work. Let me give you an example: the issue of privatization and the right of complaint. We've spoken out publicly on this. There may well be other issues that will arise during the course of an investigation that are broader topics that would be useful to the Legislature. The Ombudsman has the experience, and I would want to share that and speak out on the issues.
I would want that to be broad enough so we could also speak out on issues raised by cases whether or not they've been the subject of a report to the Legislature, because not every case we look at ends up in the annual report or the appendix; it's impossible. At the moment unless a case in the annual report I can't talk about it at all, and that's really restrictive.
I also would not want to be prohibited from speaking, as I have this morning, on a case and on the need to adopt recommendations. I fear that is what the current recommendation would prohibit me from doing, so I have concerns about the drafting but not the issue.
Recommendation 8: I'm now not precluded from making special reports. This amendment may provide clarity, and that would be fine.
Recommendation 9: This has to do with the interplay between the Ombudsman Act and the Freedom of Information and Protection of Privacy Act. I have raised this issue at least three or four times in my annual reports. I believe it should be addressed. I've put forward suggestions on how it might be addressed. It would be very helpful to me if the standing committee would move further than the recommendation implies and come to terms with some recommended amendments that would make it clear that third parties would not be able to access my reports.
The problem arose when an individual who was going on a court case, who was not a complainant, a government ministry or a witness in an investigation, applied for access to a draft report that I had done to a ministry. The current understanding of the FIPPA legislation allowed third-party access to that draft report. I think that's contrary to the thinking behind the confidentiality provisions of the Ombudsman Act and it should be addressed.
Recommendation 10: "That section 14(5) of the act be amended to provide that the Ombudsman may apply to the Divisional Court for a declaratory order, (a) concerning...jurisdiction" -- I should let you know that there already is that provision; (a) is not necessary, it exists -- "or (b) concerning the interpretation of any provision of this act."
I've not had an occasion to make such an application, but an amendment like that may be of some assistance in the future.
Recommendation 11: This speaks to amending the act "to enable governmental organizations to make payments to complainants" when I suggest that payment be made when there was an act of unfairness and compensation is due.
I can and do recommend that compensation be paid. Most governmental organizations comply without great difficulty. From time to time government organizations are unclear as to their legal authority, and it takes us longer to convince them that they have it. As a result, again I don't think the amendment is necessary, but it may provide additional clarity for some governmental organizations so that they feel comfortable in providing the compensation.
Recommendation 12: This has to do with organizations that don't already have the power to reconsider to be given that power and that proper fairness proceedings occur.
Since the report was done in 1993 there have been changes to the Statutory Powers Procedure Act, that the committee will want to take notice of, that already have broadened the opportunity that governmental organizations, tribunals, have for reconsideration, but this would be a welcome addition.
Mr Marchese: Which governmental organizations are we talking about, as examples here?
Ms Jamieson: At the moment, for example, there are cases like those complaints about the Workers' Compensation Appeals Tribunal. They have the power to reconsider already. If I find something wrong, they can correct the problem themselves. Under the Ontario Human Rights Commission they don't have the power. Their decisions are ultimately final after they've rendered a decision. While I might recommend changes to the process, I can't recommend that they reconsider. The Statutory Powers Procedure Act hasn't helped them but it has helped some tribunals, some boards and commissions, to reconsider. I run up against the case where I've found something wrong and the organization itself would love to correct it and can't because they don't have the power to reconsider. In those cases I think it would be useful.
Notice provisions and so on, absolutely, are very much in line with the fairness standards that I think would be appropriate.
Recommendation 13: This has to do with the setting out of jurisdiction in a schedule. Last week I mentioned that this is a good example of a recommendation where I think the issue needs to be addressed. I again would suggest some changes to the committee's recommendation.
I think if we were to remove the broad definition in the act at the moment, and then list all governmental organizations by name, this would not be helpful because if names changed tomorrow -- we've just changed the name of the Workers' Compensation Board. You'd have to amend the schedule every time. I think it would be a wise idea to keep the general definition and make provision to add organizations by schedule. The organizations I would think of to add by schedule would be things that are not currently covered: maybe new agencies that government will create to deliver public services privately, for example. I've spoken to this in the materials I sent to Minister Sampson and copied to the committee members.
This also may be a way to add areas that are not covered at the moment where the public does not have the right to complain. Children's aid societies: People currently cannot complain about children's aid societies to an Ombudsman. Municipalities: As municipalities take on more and more it may well be, I would suggest, that the right to complain should be extended to the public about the decisions of municipal governmental organizations. Hospitals might be another area, and so on. That would provide two ways of testing whether something was within the Ombudsman's jurisdiction. I would suggest some amendment to that recommendation.
Recommendation 14: This again has to do with rules and governing how I would conduct the investigations of tribunal decisions. Last day I went through how I investigate tribunal decisions both for those that have the power to reconsider and for those that do not. Basically the difference is that if they have the power to reconsider, they have an opportunity to correct the decision, so there would be more opportunity for me to investigate that and put the issue back in front of the tribunal. If they don't, the only thing I can suggest change to may well be the process, notice, the way hearings are conducted, whether they provide interpretive services and so on.
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I don't think a rule is needed to set this out. I'd be happy to talk further with the committee about how we do this currently, because we've not had that opportunity in the past. I already have made comments on rule-making in general and I won't repeat myself there, but that is one area where I have fundamental disagreement, I think, with the committee.
Recommendation 15: This is a proposal to amend the act to make it clear "that the Ombudsman does not have the jurisdiction to review cabinet decisions."
I want to be clear. At the moment I do not investigate complaints having to do with the deliberations or proceedings of cabinet. That is clear under the current act. I do, however, review the actions of public officials in implementing cabinet decisions on a day-to-day basis. That's a key feature of public administration, and I don't think any change to the act is necessary. If a change were made to include the word "decision," I would be very concerned that public officials might hold that up as a shield to prevent me from investigating their day-to-day actions in implementing cabinet decisions.
I don't think that's what the committee was after in this recommendation, but I wanted to raise that word of caution.
Recommendation 16: This has to do with changing the standing orders "to provide that the committee shall monitor and review" my exercise of my function.
This proposal is not an acceptable one. I think the right of complaint to an independent officer of the Legislature, which is what I am, provides a way for people to hold the government accountable. If the public is to see that right of complaint as a genuine part of our democracy, they've got to be assured they can make the complaint without fear of reprisal to an Ombudsman who is independent not only from the agencies complained about but from government and from the political influences of the Legislature.
Independence is a very basic tenet of the role of the Ombudsman all over the world. If this is changed so that the committee would become the board of directors and I would become its employee, those circumstances would cause the public, quite rightly, to lose confidence in the credibility of the Ombudsman institution.
Mr Jordan: How are revisions to the act accomplished at the present time?
Ms Jamieson: How are revisions to the act --
Mr Jordan: Yes. The recommendation of the committee "that the standing orders of the Legislative Assembly be amended to provide that the committee shall monitor and review...and report any changes to the Ombudsman's Act that the committee considers desirable." I think it's very important that we be able to suggest amendments to the act.
Ms Jamieson: I see. You're speaking to the second part of the recommendation. I'm sorry, I haven't gotten there, but I think it's open to the committee now to recommend changes to the Ombudsman Act. It's the "monitor and review" portion that I was responding to. I think the committee can now recommend changes to the act as can, I would suspect, other members, the Attorney General and so on.
Mr Jordan: But the changes to the act -- I read it as being based on monitoring and reviewing the Ombudsman's exercise of his or her functions, and after reviewing that, then it might appear necessary to make some changes to the act. To me, they go together.
Ms Jamieson: Yes, I see that they go together in your mind. I think they do not in mine. I think there is a danger there. If you have a committee where the public sees that the majority are government members and, whether intentionally or not, they see that committee directing the Ombudsman's investigations by rule-making or monitoring and reviewing the day-to-day activities, they will see it as an open door to government interfering in the work. I think they would call into question their own confidence in the institution, and quite rightly.
I think there's a role to be played for a dialogue between myself and the committee that would inform the committee so it can consider what amendments it wants to put forward. I think that's different, but that relationship is one that I would see as more in tune with the balance of independence being respected.
Mr Hoy: I can see that this would be of concern to the Ombudsman. I guess it's one's idea of what "monitor and review" is. I think it would be helpful perhaps if maybe there were other words that could be used. "Monitor" does for some seem to indicate that you'd be watching all of the time the actions of someone or some operation or some business. I'm a little more comfortable with the word "review" than maybe you are, Ombudsman, but the word "monitor" -- I guess it's in one's mind what that means. I share your concern, your viewpoint, and perhaps there's a time when we can decide on the wording here.
I don't think the intention is to get into the operational aspects of the Ombudsman on a day-to-day or month to month basis. I think you and I seem to have some understanding, or at least I share the view you have to some degree on this.
Ms Jamieson: I welcome that reassurance, because I had to put together this recommendation with some of the others. As I said, I did it in themes. If you put it together with some of the other areas, it is very clear that it is a board of directors relationship that's envisaged, and that's what's not acceptable. The dialogue, working cooperatively, the sounding board, the opportunity to discuss and to review together issues that are in the public administration that cause unfairness -- absolutely. That relationship is one I look forward to enhancing. I just want to be clear with that.
Recommendation 17: This has to do with amending the act to require my attendance at meetings of the committee. I think this is a good example of a recommendation that maybe has to do with another time, another day. In fact, I welcome the chance to meet with this committee. I've sought opportunities to do so. It's only in the most extraordinary of circumstances where any Ombudsman would be unwilling or unavailable to meet with the committee, and it's very difficult for me to see what would be the point of an amendment that gave the committee the power to compel me to come. That really alters the relationship we have, and I would not support that.
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Mr Jordan: On that point, over the last five years we did experience difficulty in finding a time that was suitable, that you would come before this committee. This committee threatened to dissolve because of that.
Ms Jamieson: If I can review for the member the history --
Mr Jordan: I was here. I know that the report we got back was that the Ombudsman was not available to come before this committee. I'm sure there are other people here who are aware of that. There is a reason behind this number 17. It wasn't just written out for -- there was a good reason at the time.
Ms Jamieson: As I've said, I think this has to do with another time and another circumstance. I think you will have seen me seek and be willing to appear at committee recently, and very willingly. It would be extraordinary. If I'm unavailable, it depends -- I would not make myself unavailable, but if I were engaged in other things, just as members are, it may not always be possible. The only experience in the past where I was unwilling had to do with the change in agenda. I'm happy to review that in detail, but I don't think it would benefit us.
Recommendation 18: that the terms of reference be included in the Ombudsman Act. That has to do with pulling up the terms of reference that are in your recommendation 44 and putting them into the act. I think to accomplish that, given the nature of what's in recommendation 24, would alter the act fundamentally. It would change, because recommendation 44 does envisage a board of directors relationship. It does envisage "to inquire into and report on any matter which the committee believes should be..." It does use the words "to monitor and review the Ombudsman's exercise of his or her functions." It does include reviewing and altering the estimates. It does include reviewing and considering the audits.
It includes some good things as well. The good things are the legislative link and the sounding board, which I welcome. I think that exists already. So there are some good parts.
But I will say that there are parts in 44 which make it unacceptable to me and thus I would not support an amendment to the act to bring it forward. It would fundamentally alter the act. To return to the board of directors analysis, that is exactly what it would do. The Ombudsman institution would no longer be independent or able to do its work with confidence from the public, and that I cannot support.
Mr Jordan: Mr Chair, do we want discuss this as we go along?
Ms Jamieson: I'm happy to stop any time and entertain questions.
The Chair: I'm in the committee's hands. I'm just mindful of the clock. If you have discussion, proceed. Go ahead. I haven't stopped anyone yet.
Mr Jordan: You're adjourning at 12, you said?
The Chair: Oh, yes.
Mr Jordan: I'm concerned that the reasoning behind recommendation 44 is being broad-brushed here to the extent that I'm not clear why you feel that if recommendation 44 and the different parts were to be implemented, it would take away from your -- wouldn't you feel more comfortable with this, that there was a certain amount of monitoring in a democratic manner taking place and being reported to the Legislature, rather than your digging yourself, which is possible, into a circumstance that would be detrimental? We're only individuals, so at some time, somewhere, we're monitored.
I can have my constituent come back into my office and tell me they've dealt with you and they're not very happy with the result, or they can tell me they're very happy with it. So the confidentiality of your decision is open to the person who received it.
I'm just saying that when we drew up these recommendations, a lot of thought went into it.
Ms Jamieson: You're asking me for some more clarification on why I've said it's unacceptable. For me it's very simple. I have a responsibility to be accountable -- and I am fully accountable -- and the act is very clear how.
Mr Jordan: To whom?
Ms Jamieson: There are two points of contact that I have with this committee. One is the annual report, where there's ample opportunity to discuss its contents. The other is on the cases, the recommendation-denied case that came forward to you today. On the financial aspect, I am accountable for my estimates and so on to the Board of Internal Economy.
I am also accountable to the public, and that accountability to the public requires me to defend the independence of this office. It is that independence that is being compromised and eroded if recommendation 44 were to be put into place. It would open the door. I'm not saying the member is looking to do this; I am saying, though, that the public would see, and I think rightly, that the door would be open for a committee, the majority of which are government members, to control the investigations, the finances, the day-to-day workings of my office, and they would --
Mr Jordan: If you're taking that view, maybe I --
Ms Jamieson: -- if I could just finish -- lose faith in the credibility of my findings. They need to have faith in the credibility of my findings to believe that I have truly, independently investigated and arrived at those findings without being directed by government.
Donald Morand, one of my predecessors, said, "He who controls this, he who pays the piper calls the tune." The more the committee were to become involved in the day-to-day actions of my office, the more people would be drawn to reach that conclusion. That's the fundamental difference.
Mr Jordan: Your assessment of this committee and my assessment are widely divided.
Ms Jamieson: I have not made an assessment of the committee, I've made an assessment of the recommendations.
Mr Jordan: You're making an assessment of the committee in my view, when you see a problem with 44, that you don't have the confidence to report, as requested here, to the committee. We've gone through this now for three years that I'm aware of, over this conflict of: "How much should I communicate with the committee? Should I communicate with them at all? I report my budget to the Board of Internal Economy. I will talk to the Premier." But where does my monitoring come in if you're not going to allow this democratic committee -- we're all elected the same way here by a vote and we have to be responsible to our constituents. So I have trouble with your not accepting 44.
The Chair: It's noon. I will allow the Ombudsman a chance to get the last word on this point, then we'll close the discussion for the day and adjourn it to another day. There's one motion that we must entertain before we break, though.
Ms Jamieson: I just want to make it clear that there are lots of opportunities in the recommendations and the discussion for both of us to work together to enhance the role of the Ombudsman on behalf of the people. There are some areas where I've mentioned that I disagree. I look forward to working with the committee on the areas where we can move forward, but I will say, as I have said before, I remain firm on my obligation to defend the independence of the office. I make no conclusions about the motivation behind any committee. I'm simply raising the cautionary flag that the public expects me to raise when the independence, which is the key to the public's investigator, is put possibly in jeopardy. It's that spirit that I've brought to these discussions. They are a dialogue, and I welcome that.
The Chair: Thank you very much. This process is adjourned until a future time at the call of the Chair.
I now draw the committee's attention to the draft report arising from last week's proceedings and I am prepared to entertain any motions.
Mr Froese: I move that the Chair be authorized to report to the House with respect to the CAP program.
The Chair: All in favour? Opposed? Motion carried.
Thank you very much. This meeting is adjourned.
The committee adjourned at 1201.