Assemblée législative de l'Ontario

The House resumed at 8 o’clock, p.m.

Mr. J. Lane (Algoma-Manitoulin): Mr. Chairman, I would like to take this opportunity to introduce to the House 35 grade 7 and 8 students from Spanish Public School in the great riding of Algoma-Manitoulin. This group is in the charge of Mr. Tyler and is in the east gallery. Would you give them a warm welcome, please?

Mr. J. H. Jessiman (Fort William): A great riding.

An hon. member: A great member.

OMBUDSMAN ACT (CONTINUED)

Mr. Chairman: The hon. member for Riverdale. Are we completing section 15?

On section 15:

Mr. J. A. Renwick (Riverdale): Yes, we’re still on section 15. When we rose at 6 o’clock we were considering the main clause in the bill which is before us, An Act to provide for an Ombudsman to investigate Administrative Decisions and Acts of Officials of the Government of Ontario and its Agencies.

We were discussing the clause which provides that:

“The function of the Ombudsman is to investigate any decision or recommendation made or any act done or omitted in the course of the administration of a governmental organization and affecting any person or body of persons in his or its personal capacity.”

I had expressed my concern about the use of the term “affecting,” and was concerned that there would be a transposition from the court or judicial system to the Ombudsman of the rules of standing which have been elaborated in the courts of Great Britain and applied in the Province of Ontario for some considerable period of time.”

I want to put this on the record, because I didn’t mention the particular case in which these matters were discussed, during the course of the discussion which the Attorney General (Mr. Clement) and I had before dinner. It was a rather colourful background of a case, the problems about who had standing to sue, and I was drawing the analogy between who had standing to sue and who had standing to make a complaint. This was the case of Cowan v. Canadian Broadcasting Corp., reported in 1966, volume 2, Ontario Reports, on page 309. Leave to appeal to the Supreme Court of Canada was refused on June 13, 1966.

I was also referring to the recent unanimous decision of the Supreme Court of Canada in the case of the Nova Scotia Board of Censors and Gerrard McNeil, where the court decided that he had standing to sue.

I’m still not satisfied, as a person sitting in opposition, that I have clearly delineated all of the concerns which I have about the question of affecting, of what the word means and what it should be designed to mean. I think it is immensely important that the Ombudsman not only have a role of his own, but to the extent, and the limited extent -- and, of course, that’s been the thrust that we’ve had against the bill in its particulars -- to the extent that the government has given him a role to play, he must have, in addition to that, a role which indicates quite clearly that he has the capacity to advise persons who make complaints about maladministration in the government or in the agencies of government. He must have the capacity to be able to tell people that, no, he doesn’t have the ability to deal with their complaints because there are alternative procedures available to that person.

That poses, in my mind, really very serious problems. I may be completely out of tune with what’s going on in the Province of Ontario, or in Canada, but the more that one thinks about it and the more that one understands what Mr. McNeil had to go through in order to find, not the substance of the discussion or the argument that he wanted to put -- as to whether the Board of Censors in Nova Scotia could deprive him, as a citizen of Nova Scotia, of the right to see “Last Tango in Paris” -- one wonders whether or not a government should put itself in the position that the only alternative is to do what Mr. McNeil had to do; and that was to sue in the court in Nova Scotia, to go to the Court of Appeal in Nova Scotia, to go to the Supreme Court in Nova Scotia, not for the purpose of deciding the question about what was concerning him as a citizen of Nova Scotia, but simply for the purpose of determining the question of whether or not he had standing to bring the suit in the first place.

I guess every lawyer in the assembly and every layman in the assembly must know of the immense personal expense to which Mr. McNeil was placed in taking that matter to the Supreme Court of Canada, to be told, yes, he did have standing and now could the matter be proceeded with at the lower court. This is my understanding of the result of the case.

It’s quite true that there were certain bows made to this proposition that now that he got this far, that if there was standing then perhaps they should deal with the substance of the case. But the fact of the matter was that they didn’t deal with the substance. All they said was, yes, he had standing to bring the case.

I would be very upset, and I’m quite certain that every member of the assembly would be extremely upset, if the only role the Ombudsman could play in the Province of Ontario for a Mr. McNeil in similar or other circumstances which could or could not be foreseen, would be for the Ombudsman to say that no, what he had to do was to sue in the courts on that question and then find that he is a private citizen.

I think the minister will recall that he was, but he wasn’t suing in the capacity as an editor. He was an editor of a weekly newspaper published in Dartmouth, Nova Scotia. Then he had to go through all of this elaborate procedure and assume all of the expense which was involved despite the fact that he won in the first court, he won in the second court and he won in the third court. Costs were awarded in each case against the defendants in the original suit. It’s strange to say that the government of the Province of Ontario was represented on the losing side of that case, but fortunately no costs were awarded against the Province of Ontario.

I think we would feel that somehow or other the Ombudsman was defective in his office if he couldn’t protect a citizen who on every consideration had a reasonable case to make; he had standing; and that there was the matter of substantial public concern for which he was a representative of the public, but not in a class action sense. And, that the only recourse to the Ombudsman was to say to him: “Well, look, I am sorry. I can tell you what to do. You should sue in the courts and carry it through to the Supreme Court of Canada and then await the decision.”

My guess is that if Mr. McNeil has the resources to meet his personal legal expense -- although he had won the case in all three layers of the courts on the question of standing and now reverting as he must on the basis of party to party cost as distinct from solicitor and client costs -- for a most important issue that was being raised by a citizen, we are probably talking not far short of, well let’s be terribly conservative, $20,000 to $40,000 or $50,000 in legal costs. Certainly not less than $10,000 and certainly far out of reach of what any ordinary citizen can afford to bear.

I would be very concerned if a man like Mr. McNeil, whatever the issue, raised the question that resulted in him not having available to him the resources of the Ombudsman in order to determine the question. Therefore, I understand the problem which such a case poses.

I don’t think there is any question that it poses a serious problem for the individual citizen if, as was the case in the McNeil case, he was faced with the Nova Scotia Board of Censors, the Attorney General of the Province of Nova Scotia, the intervention of the Attorney General of the Province of Ontario, the intervention of the Province of Alberta and the intervention of the Province of Saskatchewan. On the other side of it, he was supported in his contention by the Attorney General of Canada and the Canadian Civil Liberties Association.

I don’t think there is any question whatsoever that there are very few citizens who can afford, despite the conviction of their belief about the rightness of the cause they brought to the courts, to take that matter through the courts. So I am saying that as the correlative to this kind of problem -- and this will be shown in the amendment I propose to move to section 15 in a few minutes -- I think it is extremely important that the Attorney General of this province understand very clearly the ambit of the authority which he can exercise through the Lieutenant Governor in Council about those matters under the Constitutional Questions Act, which is Chapter 79 of the revised statutes of Ontario.

I don’t think there is any question whatsoever that the courts don’t like to be asked that kind of a question by the Attorney General. But let me say that we are not talking just about the constitutionality. We’re talking about the very wide ambit of the authority of the government of the Province of Ontario to raise issues of substantial nature themselves on their own initiative. I’m quoting from section 1 of the Constitutional Questions Act:

“The Lieutenant Governor in Council may refer to the court of appeal or to a judge of the supreme court for hearing in consideration of any matter he thinks fit and the court or judge shall thereupon hear and consider the matter so referred.”

Then it goes on to deal with, if it happens to be a constitutional issue involving the Canadian Constitution, he must give notice to the Attorney General of Canada and so on and so forth. But those are matters of legal procedure.

What concerns me is that a citizen of the Province of Ontario in a correlative case might say exactly what Mr. McNeil said. I shudder to think that we in this province would have the office of Ombudsman to tell the Ontario equivalent of Mr. McNeil that his recourse was to take it to the courts, and then go to the Supreme Court of Nova Scotia, then to the Court of Appeal in Nova Scotia, and then to the Supreme Court of Canada. Then find, that he has standing to be heard in the courts and then be referred back to proceed through all of the courts again to determine whether or not he had that kind of a right.

I’m sure the minister has read the unanimous decision of the Supreme Court of Canada in the McNeil case. It’s an absolutely incomprehensible judgement to anybody but a lawyer. A good part of the judgement nobody would understand. It gets down to what it was all about toward the end and agrees that the man did have standing. But I can’t conceive that that’s what we’re about.

I’m not suggesting for one single moment that a bill such as this bill need necessarily, in its initial instance, cover all of these problems. But I think it is most important that there be some authority somewhere by which an ombudsman has some other alternative in a situation like that. When I move the amendment which I propose to move I’m going to have to add it, because I didn’t think of it until I had the opportunity to consider this matter during the dinner adjournment. I think it’s going to be absolutely essential that the Ombudsman be the kind of man who can say to the Attorney General that this is a significant matter. And that he would ask the Attorney General to take on such a case. We all know how many times the Attorney General has stood up and stated that while he is a member of the government, he has a separate and distinct role apart from that of member of the cabinet, a separate and distinct role in the performance of his public obligations for the administration of justice. I think that is extremely important: As I say, that was part of the deliberation which I had over the dinner hour.

I want to return, of course, to the anomaly, which I pointed out just before the adjournment, regarding the provisions of the Executive Council Act of the Province of Ontario. If the provisions of that Act applied by virtue of section 14 of that Act, which we dealt with and passed, the Ombudsman would be strictly out of court in dealing with it. But if provisions similar to those that appear in section 1 of Bill 96, which we will be debating later in this session, were to appear in the Act, it would appear to me on first flush that the Ombudsman could deal with it.

In the kind of situation I’m talking about it’s not as if one can categorize agreements and contracts entered into by the Province of Ontario with respect to their impact on the citizens of the province as to whether or not they’re signed on the authority of an order in council or whether they’re signed under the authority expressly stated in the statutes of the Province of Ontario, such as the provision in section 1 of Bill 96, An Act to amend the Ministry of Health Act.

I just can’t concede that that’s a real distinction that should impede a member of the public from making a complaint and having that complaint examined by the Ombudsman.

The Executive Council Act, as is the case with all Acts which affect the executive of the government of Ontario, is extremely brief; but the Executive Council Act provides for the composition of the executive council and for their remuneration. Then, of course, in the constitutional sense which we in this party consider we’re involved in with the creation of the office of the Ombudsman, it goes on to say:

“No deed or contract in respect of any matter under the control or direction of a minister is binding on Her Majesty or shall be deemed to be the act of such minister unless it is signed by him or is approved by the Lieutenant Governor in Council.”

So you have this strange anomaly. You’ve got three types of contracts. You’ve got contracts signed under the authority of an order in council -- that is, with the approval of the executive council -- and you’ve got contracts signed by the minister, and each of those is equally binding on the Crown. But the only ones that the Ombudsman can investigate, if I read the statutes properly, are those which are signed by the minister because “governmental organization,” as referred to in section 1 of the bill, deals only with a ministry commission, board or other administrative agency.

Then, as I say, we have an equivalent procedure, such as is set out in Bill 96 which we’ve debated and repeated on other occasions. If a citizen happens to lodge a written complaint with the Ombudsman that he’s been aggrieved or “affected,” as our language is -- and I personally would prefer the word “aggrieved” -- by an act of a ministry, then the Ombudsman and the citizen are immediately faced with the proposition that there are three types of contracts.

One is authorized by order in council which, by virtue of section 14 of the Act we’ve discussed, the Ombudsman can’t deal with and can’t look behind because it’s an act of the cabinet.

Secondly, we have an agreement signed by the minister which is binding on the Crown by virtue of the Executive Council Act; he can deal with that because that’s an act of the ministry, and surely an act of the minister is an act of the ministry and covered by the “governmental organization” definition in section 1 of the Act. Then, thirdly, we have what is the prevailing mood of the government to delegate authority to sign agreements to the deputy minister or other officers in the particular ministry. And of course the Ombudsman, on my reading of it, could deal with those matters.

I think anyone would say, if one thought through the proposition, that no such artificial distinction should impede a citizen from making a complaint to the Ombudsman in order to have the benefit of an investigation by the Ombudsman, which is what is set out in section 15 of the bill. I’m quite sure that most of what I am saying may sound like immense gobbledegook to any people other than those of us that are enmeshed in the legal jargon of the game, but that’s what this bill is saying. I think those are very serious problems about what we refer to as the circumscription or the limitations which the government, inadvertently or otherwise, is placing upon the office of the Ombudsman.

I’m not suggesting for one moment that all of these matters can be solved, as I say, when an initial bill is put before the assembly. But my understanding is that those propositions which I have put are correct. The first proposition deals with an analogous situation. I’m not talking about analogous in the sense that some citizen is going to raise the same question, because most of us in the assembly saw “Last Tango in Paris.”

In an analogous situation where a citizen raises a question, surely the Ombudsman’s recourse, and the purpose of the bill are not simply to put a citizen to the expense of going through the court system in order to determine that kind of a question. I’m not going to repeat what I said. The report is available. It’s a unanimous judgement of the Supreme Court of Canada with nine judges sitting, and rendered by the Chief Justice of Canada, the Rt. Hon. Bora Laskin. That’s my first point.

My second point is that to the extent agreements of the Crown affect people, I don’t think there should be arbitrary, irrational points raised with the Ombudsman as to whether or not the complainant has a legitimate complaint, depending on whether or not the agreement is under the authority of an order in council, signed by the minister under the authority of the Executive Council Act of the Province of Ontario; or signed under a power of delegation granted the minister by an Act such as the one we’re considering, the Ministry of Health Amendment Act, 1972.

Perhaps I could stop at that point and ask the minister to comment on those aspects of my concern before I raise some other matters in connection with this section.

Mr. Chairman: The hon. minister.

Hon. J. T. Clement (Provincial Secretary for Justice): Mr. Chairman, when we debated the general principle of the bill, the member for Riverdale posed some hypothetical questions as to residency, if applicable, and perhaps citizenship. I don’t remember that one in particular, but perhaps he mentioned it. What were the limits, if any, going to be and those types of questions?

Those things simply do not apply, because the Ombudsman is not really concerned with the status of the individual. But he must, under the first section of his function, determine if in fact the person has some right which has been infringed upon by a civil servant or by an officer of the executive council. He is not a substitute for the court procedure. We are not going to substitute the court system with the role of the Ombudsman --

Mr. Renwick: I agree with that.

Hon. Mr. Clement: And I am not suggesting that you are suggesting that either. I want to make that perfectly clear because the other night on leaving the House, after we finished this debate, I was met by a member of the media who wondered whether the Ombudsman, on learning of the commission of a crime, would attend at the scene and investigate. I suggested to him, as politely as I could, that he was misconstruing the role of the Ombudsman.

Mr. Renwick: He wasn’t misconstruing it. He had never read it.

Hon. Mr. Clement: Well perhaps that was it, I don’t know.

He thought that this was going to be a statutory superman who could do all things at all times without fear or hesitation, always looking after the rights of the individual.

I think the legislation has come into being in all of the jurisdictions to look after those dictatorial arbitrary decisions, made without feeling which abridge someone’s rights; rights which may not be enshrined in legislation. The person perhaps has no recourse to the courts; it is just a matter of a bias or something of that nature, but really perversely affects the interests of the citizen.

The role of the Ombudsman is not to duplicate the courts or assume their role. His role is not to substitute his policy for that of the government, because the government has to live with its policies and will be tested from time to time, particularly during question period on the floor of this House, in interviews and in terms of general elections. So in the vernacular the Ombudsman is really a person who can cut red tape to assist the individual citizen.

Perhaps I am being naive. Perhaps the member for Riverdale is being much more realistic implying that the Ombudsman is going to say: “Now, you demonstrate to me how you are affected.” But I have absolutely no fear or concern because, as I said before the dinner hour, if an inequity has been practised on someone in this province, even though it comes to the attention of the Ombudsman through someone else, surely he can take advantage of the section and initiate the investigation on his own motion.

As the member for Riverdale put it, the McNeil case was an issue which went through to the Supreme Court of Canada, to determine if Mr. McNeil had standing, did he have status in a legal sense? It was really a matter pursued through the courts on a question of law. Now the matter having gone to the Supreme Court of Canada, the decision having been made, it is now vested in the lower court to be tested on the merits.

I don’t suggest for a minute that someone has to go through the very tortuous route followed by Mr. McNeil to determine if he has status. Surely he doesn’t have to do that to have the Ombudsman look into his problem.

In response I pointed out that there was no qualification as to residency or citizenship or as to time, because if there were those qualifications then indeed we would be starting to get into status. Before the Ombudsman theoretically could talk to someone, I suppose he’d say: “Your residency, where do you live? Your citizenship, let’s see your papers. How old is this complaint? How far back does it go?”

Once being satisfied that the complainant came within those theoretical statutory guidelines, he would say: “Now I can dig in and deal with your complaint because now you really have status.”

I don’t suggest the Ombudsman would say to him: “I can’t really look into this inequity until you have resolved through the courts that you do or do not have status to bring your own type of action.” I think the Ombudsman will not be dealing with the question of the law but with the matter on its merits, more on a fact than on law.

I surmise that if the Ombudsman perceives an inequity in the true legal sense -- not on a factual basis but that the law appears inequitable -- he will make his observations known to us. There may be little he can do about it. He may make observations about the Bail Reform Act or the Criminal Code, but there is nothing he can do even if everyone in this House unanimously supported it. But I am sure he will make his observations known to us.

Basically he is the champion. As we took common law, perhaps in our first lectures, we heard about the hiring of champions back in the Middle Ages, the mercenaries that would fight your battles for you. The Ombudsman here is that type of individual. He is the champion of the individual who finds himself confronted with the large wall of government and cannot seem to pierce it. But he is not here to carry law suits through the courts. The citizen can explore the possibilities of doing it individually or of obtaining legal aid or any other programme which is available to him; or he can take it up with the Ombudsman. If the Ombudsman perceives there is going to be a long legal battle, then I surmise he will say that it is beyond his jurisdiction.

I have a regret to express here this evening. Two or three months ago while in Ottawa, I had an opportunity of meeting Mr. McNeil, but in another type of situation where he interviewed me. I was not aware that this was “the” Mr. McNeil, if I may use that description, until some weeks had passed by and I saw his picture in the paper. I wished that at that time he interviewed me I had known the role that he was then cast in, because I would have interviewed him.

I would have liked to have known what type of an individual he was to be so prompted. I’m not critical, I say that in a very charitable and positive sense about a person who took up the cudgels and who has gone through very tortuous and I’m sure expensive proceedings to have a matter determined. Of course it’s conjecture at this point as to what the outcome will be, on the merits.

But in any event, I anticipate from the remarks of the member for Riverdale that he proposes to put forward an amendment to section 15. I don’t know the form of the amendment or where it will fit in the scheme of things. Perhaps he might advise me as to what he anticipates doing with section 15.

Mr. Renwick: Mr. Chairman, perhaps I’m taking some risk, but I want to deal a little more with the McNeil case. I know that the Attorney General is being real and was not in any sense putting down Mr. McNeil. I think “the” Mr. McNeils -- and I don’t know him or anything about him -- of this world are very important to our system of government. There are very few people who will take the trouble to put to the test some principle which is involved in a question relating to a provincial statute which had gone on for some considerable period of time.

This identical question could have arisen under the Theatres Act of the Province of Ontario. All I can really say is that my reading of the bill in front of us does not permit the Attorney General or the Ombudsman to take any course of action on behalf of that citizen. The bill is so drafted that it, in fact, prohibits exactly what I said is to be of an essential nature to the office of the Ombudsman.

I want for a moment to refer to subclause 4 of clause 15 of the bill. It says:

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

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

Now, I think that the blanket provision of the Act, which I have just quoted, for practical purposes says to the Mr. McNeils of the Province of Ontario: “There is nothing that I, the Ombudsman, can do about your case until you have gone to the trial court and the Supreme Court of Ontario, to the Court of Appeal of the Province of Ontario, to the Supreme Court of Canada, until you have found that you have got standing. And then you come back and you go through the trial court of the Supreme Court of Ontario, the high Court of Justice, the Court of Appeal of Ontario and the Supreme Court of Canada, in order to decide the case. Or until the collective Attorneys General of the Provinces of Ontario, Nova Scotia, Saskatchewan and Alberta give up on the case, because they intervened.”

Now, let’s not fool around; that’s what was involved in this particular case. And I cannot read item (a) of subsection 4 of section 15 that I have just quoted, in any other way.

So I think that part of the amendment -- and I, again, make the usual caveat that I am not the legislative counsel. I am trying to convey the idea which I think has got to be adopted in the bills. We can’t allow that to take place, because it only points out in extremis -- if I could use an old Chinese term -- the problem with which we are faced in this kind of a bill.

There has got to be an opportunity for the Ombudsman to say to the Attorney General: “Look, a Mr. McNeil of the Province of Ontario, or the Mr. and Mrs. McNeils of the Province of Ontario, or the Mr. and Ms. McNeils of the Province of Ontario, want to raise significant questions. Either I can raise them in my name as Ombudsman on their behalf, or you, Mr. Attorney General, must raise them under the Constitutional Questions Act.”

I quoted the Act a few moments ago, which is a misnomer for the statute -- that you can raise any question you want with the court if you want to make the effort to do it.

Now, I think that is a significant problem. So my amendment relates to two aspects of the problem. That is, who can bring the complaint before the Ombudsman, which relates to subsection 2 of section 15 of the bill and an out clause for subsection 4 which, by way of a proviso, would permit the Ombudsman to take action, even though the citizen had not exhausted all his legal rights.

Before I move the amendment, because I don’t want to be restricted to talking only about that particular amendment, may I put that to one side for a moment and turn to another question and ask the Attorney General whether or not my understanding is correct.

Subsection 3 of section 15 refers to the paramount power of the Ombudsman. This becomes extremely technical but very important in a legal sense, to my mind, and very important to the Ombudsman and very important to persons who are concerned about such boards as the Workmen’s Compensation Board and the Ontario Labour Relations Board. Subsection 3 purports to override the privative clauses of statutes such as the Workmen’s Compensation Board or the Ontario Labour Relations Board. My understanding of a privative clause is one which simply excludes review by the courts of any decision of a tribunal that has the benefit of such a privative clause. I think the two most notorious ones in the Province of Ontario are the Workmen’s Compensation Board and the Ontario Labour Relations Board. Subsection 3 states:

“The powers conferred on the Ombudsman by this Act may be exercised notwithstanding any provision in any Act to the effect that any such decision, recommendation, act or omission is final, or that no appeal lies in respect thereof, or that no proceeding or decision of the person or organization whose decision, recommendation, act or omission it is shall be challenged, reviewed, quashed or called in question.”

In other words, that gives to the Ombudsman in those statutes which confer that privative privilege on certain boards and commissions a power which the court doesn’t have, if my reading of it is correct.

The problem that concerns me is not so much about whether my interpretation is correct but that I can’t foresee what the result is going to be. That is all I am really asking the Attorney General, because one of the most invaluable little booklets from my point of view that was ever put out by the minister’s ministry was the one issued in February, 1972, prepared by David Mundell, QC, who, if my knowledge is correct, was an assistant deputy Attorney General of Canada. He is an extremely knowledgeable man. I don’t know whether he is still with the ministry or not.

He put out a manual of practice on administrative law and procedure in Ontario after we had passed the Statutory Powers Procedure Act, 1971, the Judicial Review Procedure Act, 1971, and the related statutes, mainly that great long statute in 1971 called the Civil Rights Statute Law Amendment Act, which amended some 91 statutes of the Province of Ontario to give effect to the McRuer commission decisions.

I don’t want anyone to underestimate what the government of the Province of Ontario, by posing in the Throne Speech and now under the aegis of the minister on introducing the bill to create the office of Ombudsman, believes itself to be doing or wants the people of the Province of Ontario to believe what it is doing. The Premier (Mr. Davis) introduced this bill on May 22. He made a statement about it at that time and introduced from the gallery the Ombudsman-designate. I want to, in direct reference to this particular manual of this ministry, prepared by David Mundell, refer to what the Premier said about the importance of those statutes and how this is a logical progression from those statutes in the development of the protection of the citizen in the province as an ongoing part of the McRuer recommendations. I quote in part from what the Premier said:

“In 1971 this Legislature enacted the Statutory Powers Procedure Act, the Judicial Review Procedure Act and the Civil Rights Statute Law Amendment Act [He omitted one of them, of course -- no, he didn’t omit one. He didn’t omit one. I apologize] which gave the people of this province the most comprehensive programme for the protection of individual rights within our society that has been enacted by any jurisdiction in our country. When these statutes were proclaimed, they brought into force a code of administrative law procedure which was designed to reinforce the rights of the individual in relation to the many administrative processes of modern day government within provincial jurisdiction.”

He goes on to talk about the complexity and the reason for the appointment of the Ombudsman.

I say that to emphasize what you are about in introducing this particular bill at this particular time, and I want to say to you that I want to understand, and our caucus wants to understand, what the relationship of the paramount power clause in subsection 3 of section 15 may be to statutes which have private clauses in them.

If I may, Mr. Chairman, I would like to interrupt my remarks for my colleague, the member for Stormont.

Mr. G. Samis (Stormont): May I rise on a point of privilege, Mr. Chairman? I thank the member for Riverdale for giving me this minute. I am very pleased to introduce a very special guest here in the gallery, my predecessor as representative for the riding of Stormont, the former Minister of Labour, the man who has just got out of hospital -- and I think it is his first visit back here to the Legislature -- I would hope you would all give a warm welcome to Fern Guindon.

Mr. Chairman: The hon. member for Riverdale will continue.

Mr. Samis: Some of them don’t change, Fern.

Mr. H. Worton (Wellington South): Who is he referring to?

Mr. Renwick: Mr. Chairman, I refer to the Judicial Review Procedure Act of 1971, which was one of those important statutes, and I refer to the booklet which I have spoken about. I am going to have to come back to this at some particular length, because the Statutory Powers Procedures Act creates a substantial number of tribunals under various statutes by which people have due process procedures that they can go through if they were refused a licence or it’s not renewed. That’s part of the due process and that’s excluded by the part of the statute to which I referred earlier, but this particular one, the Judicial Review Procedure Act, which applies to any statutory power -- and that includes a large number of matters which are defined in that Act -- particularly a statutory power of decision and certainly most of the boards and commissions.

So it really means, so far as I can understand it, that subject to certain limitations, subsection 4 of section 15 applies and the citizen must go through the various procedures set out in the statutes to which the Premier referred. But if you come back to the privative clauses, then you find that the privative clause, such as that which appears in the Labour Relations Act, and I know there is a substantially similar one in the Workmen’s Compensation Act, provides in substance as follows:

“No decision, order, direction, declaration or ruling of the board shall be questioned or reviewed in any court and no order shall be made or process entered or proceedings taken in any court whether by way of injunction, declaratory judgement, certiorari, mandamus prohibition, quo warranto, or otherwise to question, review, prohibit or restrain the board or any of its proceedings.”

That is a privative clause. So my question to the Attorney General is this. Does the paramountcy of subsection 3 of section 15 overrule the privative clause in the Labour Relations Act, the Workmen’s Compensation Board Act, or other Acts of the Province of Ontario in such a way as to confer on the Ombudsman powers which are not conferred upon the courts because of the exclusions of the courts’ jurisdiction under those privative clauses?

Now, I think that is a very significant problem, if my reading is correct. Because all of us in the assembly know that if we take a case for a constituent or another person to the Workmen’s Compensation Board through the various stages of the appeal procedure, and we come to the end of the road and the board itself or the appeal section of the board makes its final decision then, under the statute as we knew it up to the time of this bill, that was the end of it. You couldn’t go to the court unless you could show a denial of natural justice, which is extremely difficult, or on a technical legal problem.

Now, does subsection 3 of section 15 of this bill confer on the Ombudsman the equivalent power of a court with respect to those boards which have privative clauses? Or what is he then enabled to do after a final decision is made by the Workmen’s Compensation Board?

I know I have overstated it. I know exactly that he doesn’t have the power of the court, but he certainly has a power with respect to final decisions of the Ontario Labour Relations Board and with respect to final decisions of the Workmen’s Compensation Board and other statutes which have privative clauses. I would appreciate very much if he would enunciate to me and to this committee the extent of that power and what he can do when Mr. or Mrs. or Ms. so-and-so is turned down by the Workmen’s Compensation Board on a final adjudication of the claim on the grounds it didn’t arise out of or during the course of employment: What can he then do?

Hon. Mr. Clement: Mr. Chairman, section 15(3), as I understand it, is placed in there to preclude anyone from saying that the Ombudsman does not have jurisdiction under whatever investigation he has initiated -- let’s say the Workmen’s Compensation Board since that’s the one the member has touched on. It has been anticipated that after the final review, when everything is completed, should a matter come to the attention of the Ombudsman, someone then would take the position and say that he is functus because the final reviews have been completed and therefore the whole matter disappears forever.

Section 15, subsection 3, allows him to have jurisdiction to do certain things. He has not got the equivalent powers of the court and he hasn’t got greater power than the court, so what can he do? The last day of appeal has gone by, or the appeal has, in fact, been heard and there is no other level of appeal, what can he do? He can turn his mind to section 15(1) and make a decision in his own mind as to whether he can investigate.

Should he investigate? Is the complaint which comes to his attention something which merits his investigation? Is it one that is without foundation? He has to make a decision at that point: Should he investigate?

Assuming that he concludes that he should, what happens as a result of that investigation? He cannot alter on his own initiative the Workmen’s Compensation Board appeal process. He cannot vary it and he cannot reverse it.

As I understand it, Mr. Chairman, he must then turn to section 22. Subsection 3 of that shows what he can do if he has that opinion. If he determines after his investigation that the decision of that particular tribunal or appeal body, or the recommendation or act or omission of that body seems to be contrary to law, was unreasonably unjust, was a precedent, was wrong, was based wholly or partly on a mistake of law or fact -- once he comes to that conclusion then he can make certain observations under subsection 3.

“If in any case to which this section applies the Ombudsman is of the opinion” -- and I won’t read it because we have it before us -- that the omission, if that was the complaint, should be rectified or that it should be cancelled or varied or any one or more of those seven different subsections, then he shall “report his opinion and his reasons therefor to the proper governmental organization ...” He can make the recommendations he sees fit, and so on.

All that he can do from the time it first comes to his attention is to decide on the basis of the information put before him to cause an investigation to be made. The member is not suggesting, and I am not suggesting that he is, that the Ombudsman can on his own initiative vary the order, alter it, or send it, or allow it, or disallow it. He can take it under investigation and then make his observations at the conclusion.

I am sure some of the members here have looked, for example, at the schedule of complaints set out in the McRuer commission report on the Ombudsman that came to the attention of the parliamentary commissioner in New Zealand. I am not being facetious when I say this, but I don’t notice any applications to the courts being refused.

I was thinking of the McNeil case which we discussed earlier. This sort of thing is really quite important, I am sure, to the average citizen. He looked into a question of whether an efficiency decoration should be awarded or not. This sort of thing is very important, I suppose, to the individual involved.

Time taken to respond to a complaint; employment of an over-aged officer; gratuity and re-engagement bonus; something to do with the importation of a motor car; duty on reconditioned engines -- these are the sort of things that really affect, I suppose, 999 out of every 1,000 of us. Once in while an individual of the drive and motivation and tenacity of Mr. McNeil comes along and as a result what would properly be described as a very important legal issue will go forward.

I suggest that subsection 3 of section 15 is there so that the Ombudsman is not robbed of any jurisdiction because of the wording of a statute. It is there to remove that concern and he does have jurisdiction to investigate and that is as far as it goes.

I think that is all I can offer at this time, Mr. Chairman.

Mr. Renwick: Mr. Chairman, the minister is, if I may say so, coy on occasion. The creation of the office of Ombudsman isn’t to provide a little honey on the rough edges of governmental decisions; it’s to provide an institution of government in a constitutional sense, which will be with us for a long long time.

I agree that the great number of complaints will be matters on which a citizen feels aggrieved and upon which judgemental values can differ as to whether or not he should feel aggrieved, or whether it’s just a matter of annoyance. But the measure of the statute and the measure of the office is the extent to which the statute will provide the ambit under which he can operate.

I don’t believe Mr. McNeil is a nut. I don’t believe that a Mr. McNeil doesn’t exist in the Province of Ontario; I hope there are a lot of them.

But my understanding of subsection 3 of section 15, as confirmed by the minister, is that the decisions of the Workmen’s Compensation Board and the decisions of the Ontario Labour Relations Board, which have formerly been excluded for consideration of review by anyone, will be now open to investigation by the Ombudsman; not for the purpose of reversing, altering, amending or confirming the decision of those boards, but for the purpose of reporting under the provisions of subsection 4 of section 22. I just wanted to make certain that that was so.

I don’t know -- perhaps the minister knows -- in how many statutes of the Province of Ontario there are privative clauses; those are the two notorious ones. There may be a substantial number of other ones which exclude the jurisdiction of the courts. But I think it’s interesting to note that the government of the Province of Ontario isn’t reinstituting the jurisdiction of the courts, but it’s substituting the investigation and report procedure of the Ombudsman after those decisions have been made. Does the minister know how many boards or commissions have those privative clauses?

Hon. Mr. Clement: I’m advised by legislative counsel that there are very, very few -- perhaps three or four; that’s all. I am not personally aware; I don’t personally have that information.

Mr. Renwick: Certainly those two are the ones which are generally known.

Mr. J. E. Stokes (Thunder Bay): Get some Tories in here, eh? There’re only three. We don’t want to call a quorum to get the members in.

Mr. J. R. Smith (Hamilton Mountain): Some under the gallery.

Mr. Renwick: Mr. Chairman, I’ve dealt now with subsection 3. I have spoken about -- oh, sorry.

Mr. A. J. Roy (Ottawa East): Mr. Chairman, may I ask a question on section 15, subsection 3, a point raised by my colleague?

Mr. Chairman: The member for Riverdale is still on 3.

Mr. Roy: Yes, that is why I want to talk about it, while we are on this subject. I thought the point he raised was an excellent one, and it was something worthwhile to get on the record. And that was the fact that the powers of the Ombudsman to investigate are not impeded or stopped by these types of privative clauses in other statutes.

Would the minister go further and say, for instance, that in the course of the investigation the Ombudsman can call upon officials of a ministry to co-operate and to give him information, and so on? This is in a later section -- I think in section 19 and section 20 -- when he can ask individuals. I don’t know if it means to compel an individual, but it states here: “... may from time to time require any officer, employee or member of any governmental organization who in his opinion is able to give any information ...” I won’t read it all.

Could the minister advise whether, for instance, individuals within these ministries could use the privative clauses of their Acts -- whether it’s Workmen’s Compensation, Labour Relations, or otherwise -- to say, “Fine, you’re not stopped from investigating, but we have a statute with a privative clause which states that our decision is final. Therefore, there is no compulsion for us to cooperate with you”? In fact they can rely on the privative clause.

You see what I mean. In one statute it says the decision is final and cannot be reviewed. In another statute, in section 15, subsection 3, it states “notwithstanding any provision of any other Act,” and he can go on and review and investigate in a limited sense. As you pointed out, he is not a court and he can’t overturn a decision, but I think you will all agree that if he makes a recommendation chances are, by legislation or otherwise, his recommendations could be important.

My point to the minister is, are you satisfied that it is clear enough under the legislation that no civil servant or officer can say, “Look, I don’t think I have to co-operate because our decision was final. It is clear under our statute,” and so on? I think it would be important, Mr. Chairman, that we get that clearly on the record. My point is, he has the power to investigate but perhaps can’t, because very often he is going to have to rely on evidence that he gets from these departments and these officers. So I would like the minister, Mr. Chairman, to state clearly -- it’s a follow-through from what the member for Riverdale has raised -- first of all, that he is not stopped from investigating and, secondly, that officers cannot rely on the privative clauses in other statutes to refuse to co-operate or refuse to release any information.

Hon. Mr. Clement: Well, without going through all of them, I turn the member’s attention to section 14 of the Venereal Diseases Prevention Act. It says:

“Every person engaged in the administration of this Act shall preserve secrecy with regard to all matters that may come to his knowledge in the course of such employment and shall not communicate any such matter to any other person except in the performance of his duties under this Act or when instructed to do so by a medical officer of health or the minister and in default he shall in addition to any other penalty forfeit his office or be dismissed from his employment.”

Now I suppose we could explore those Acts, to which that sort of thing applies -- the Revenue Act and so on -- but I would think that most of them, and I am no expert in them, use words to the effect, “except in the course of his employment,” and that being in the course of his employment he is not being asked a question by the Ombudsman as to what he did to his home or some activity he participated in outside of government. He would say, “With reference to the decision involving John Doe, citizen, and so on, what happened? What can you tell me? Do you have any correspondence? What did he say to you? Were there documents put into your possession? Did you have medical reports?” or whatever they might be. In the course of his employment he would respond to the Ombudsman or suffer certain sanctions for failure to co-operate with the Ombudsman.

So I don’t think we really have to concern ourselves. I really can’t see a great career carved out for a civil servant who says: “You are not catching me on that. I am not answering anything.” Can you imagine a civil servant being called into the minister’s office and the minister says, “Say, did you check into the medical file of John Doe under this Act?” and he says, “I am not telling you anything. I can’t discuss it”? That to me isn’t even realistic, so I don’t really think it will be a burning concern.

In what little literature I have had available in dealing with the office of Ombudsman in other jurisdictions, I have never really perceived any -- I can’t even recall any -- problem being resolved into the written word, as to problems that jurisdictions have run into with this sort of thing that we are discussing here now under section 15(3).

Mr. Roy: It is interesting, as an aside, I suppose, that you picked up that section of the Act so quickly. I am not presupposing --

Hon. Mr. Clement: I worked for the ministry 25 years ago.

Mr. Roy: When -- 25 years ago?

Mr. T. P. Reid (Rainy River): I thought that was your favourite Act.

Hon. Mr. Clement: If it wasn’t for me he wouldn’t have had silver nitrate in his eyes, probably.

Mr. Roy: Who has got silver nitrate in his eyes?

Mr. Reid: That is the one you are most familiar with anyway.

Mr. Roy: You are the one wearing sunglasses around here. I see your point that no civil servant would suffer the wrath of his minister on any sort of directive from the Ombudsman, and I suppose we are talking about a very small percentage. With legislation, we are always looking for the exception which causes chaos at some time. You know, when legislation has worked well for a period of 10 years, all at once you run into an exception.

Having drafted section 15, subsection 3, would you not think it wise to follow through in that section and state -- I don’t have the wording right here -- all government departments or officials and so on must co-operate under section such-and-such, notwithstanding privative sections or notwithstanding any provisions of any other Act? Just to make it clear within the legislation?

I can see a situation in which all you need is one guy who is going to challenge it through the courts and you get these two conflicting views. He says, “I’m relying on this privative clause”; and the Ombudsman is saying “I’m replying on section 15(3)” and they are at loggerheads. I would have thought, when we are drafting legislation and examples and problems are raised, such as those the member for Riverdale has raised, we not only make it clear in Hansard what our intention is -- unfortunately that has often happened and the courts are apparently prohibited from looking at Hansard to interpret certain legislation.

Mrs. M. Campbell (St. George): Certainly they are.

Mr. Roy: It has always seemed weird to me that we have that provision and that is why we have to make our decisions or our intentions very clear.

Mr. Reid: We are not sure where the minister has been for dinner, I guess.

Mr. Roy: We have to make our intentions very clear in the legislation. Mr. Chairman, I would encourage the minister if that is the intent -- and I’m sure it is -- to make it clear in the legislation.

Mr. Chairman: The member for Windsor West.

Mr. E. J. Bounsall (Windsor West): On this same point, Mr. Chairman, about what decisions can be looked into and what can be reviewed by the Ombudsman, does this apply to the decisions of the Public Service Grievance Board? What power, according to this section, does the Ombudsman have or not have with respect to the decisions of that board? Let us say someone feels they are aggrieved and the proper steps are not followed by the ministry, which would follow from the decision of that Public Service Grievance Board. Or perhaps a subsequent court is very critical of the way in which the procedures of the ministry took place in getting that employee before the board. As far as I can determine some rather anomalous situations have occurred before the board, such as their not having a transcript of the hearings before that board; I gather they have now moved to correct that. What role will the Ombudsman be able to play with respect to the Public Service Grievance Board?

Hon. Mr. Clement: The Public Service Grievance Board being a creature of this government, the Act would apply and the Ombudsman would have jurisdiction. The Ombudsman would take a look at section 15 if he had a complaint which related to that particular board. He would determine, after he heard the complaint, whether he should or should not make an investigation. If he decides he should not, on the merits of the complaint, that is the end of the matter. If he decides he should make an investigation he would carry one out.

Having carried it out, he has to do something at the end of that investigation. He could find the complaint ill-founded, but assuming he found it had some kind of merits he would turn his mind and his paper to section 22 of the Act which sets out the procedure after the investigation. Subsequently he would make his recommendation that the matter be rectified -- if that was the conclusion he came to; or that the matter should be referred to the appropriate authority for further consideration, if that could be done. Or he could recommend -- I say recommend, not order -- that the decision should be cancelled or varied and so on.

There are seven situations available to him there and the same thing would apply to his looking into the Workmen’s Compensation Board or the Commercial Registration Appeal Tribunal or the decision of the Superintendent of Insurance; any one of these things. As a matter of fact I will just send this over to him if he will undertake to give it back to me. Would he just take a look at the nature of some of the complaints the equivalent of the Ombudsman in New Zealand handled, and the results of them. Many of them were not justified, and many of them were rectified. One can see the great variety of things that particular individual had to look into for that year.

Mr. Chairman: The hon. member for Riverdale.

Mr. Renwick: Mr. Chairman, I wanted to clarify the meaning of subsection 3 of section 15. I believe I now understand what the intention of the ministry is. I would like to think the ministry understood what they were doing at that time.

I would like now to move the amendment to section 15.

Hon. Mr. Clement: Have you got a copy?

Mr. Renwick moves that section 15, subsection 2 be amended as follows:

“The Ombudsman may make any such investigation either on a complaint made to him by any person affected or by any member of the Legislature upon a complaint made to the member by any person affected or referred to him by the Attorney General or of his own motion.”

And further that subsection 4 be amended to add thereto the following proviso:

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

Mr. Chairman: Would the member for Riverdale like to speak to the amendment?

Mr. Renwick: I may just speak to the motion. I think it will be clear what the intention of the amendment is. What I would intend by it.

Subsection 2 of section 15 simply states that the Ombudsman may make any investigation of the type provided in subsection 1 -- which is the guts of the bill -- either on a complaint made to him by any person affected or his own motion. All I have done is add to it, in the light of the remarks which I made before, two additional persons who can make or refer a complaint to the Ombudsman. One group is any member of the Legislature upon a complaint made to the member by any persons affected or referred to him by the Attorney General.

Mr. Roy: Why don’t you just take the word “affected” out?

Mr. Renwick: I don’t want to. We discussed that earlier and if the member for Ottawa East wants to amend it that way that is fine. My point now is the question of who can make the complaints. I think it is most important that not only can any citizen be able to make the complaints but because of the nature of the office I think that a member of the assembly should be able to make a complaint to the Ombudsman if a complaint is made to him by a person who is affected. I think in the light of the McNeil decision and in the light of the number of complaints that the Attorney General must of necessity himself receive -- because in a funny sense I think the Ministry of the Attorney General probably is the receptacle of any number of complaints about various matters -- that the Attorney General should be able to refer a matter to the Ombudsman as well. And of course the Ombudsman should be able, of his own motion, to make an investigation. Whatever variation on that theme is necessary, I would be quite happy with.

The Act in the United Kingdom, of course, provides the alternative route, which is simply that the complaints can only originate with members of the House of Commons. We’re not asking or suggesting that that should be the provision, but I am quite certain that any number of the members of the Legislature know very well that if their constituents have a legitimate problem, they are of themselves anxious to proceed with but are reluctant to proceed with it on their own, they would be quite happy to have the matter referred under the auspices of the member of the assembly.

I think there are very substantial reasons to believe that one of the roles of a member of the assembly that all of us know about is the fact that we act in that particular capacity to protect people who are our constituents from aspects of aggrievement or concern of irritation about the acts of government.

It would also appear to me that the Attorney General, in proper cases which come to his attention, should be able to say to the Ombudsman: “Look, I, as Attorney General, not as a member of the executive council, but as Attorney General of the province, even though I know this is not a matter where the person has a problem in the courts, I want to be able to say I think this is something which would be useful for you, the Ombudsman, to deal with.” I think it is an opening, a widening and an understanding.

I would think that my colleagues, the member for Nickel Belt (Mr. Laughren) or the member for Sudbury (Mr. Germa), might very well run across situations where people are fairly reluctant to raise problems. It’s all very well to say, “Oh, well, if the person is really concerned, he should want to raise it himself”; but it’s not all that easy. People are very concerned about what they’re going to get themselves into or what they’re going to be involved in about these matters, and yet they feel strongly about them. It’s in the interest of government that people should not harbour a sense of dissatisfaction, irritation and frustration because only they can raise the question.

Now I understand that the Ombudsman is designed to relieve a part of that concern, and I don’t think for a moment that my amendment would swamp the Ombudsman. I don’t think for one moment that every member of the assembly is suddenly going to try to dump on the Ombudsman all of the problems which he himself as a member knows he can try to deal with. But I do think it is a most important avenue, because I think we would be unrealistic in those situations if we didn’t realize that the private member of the assembly, be he on the Conservative backbenches, in the Liberal loyal opposition or in the New Democratic Party opposition --

Mr. Stokes: Even the independent from Rainy River.

Mr. Renwick: -- doesn’t have some leverage in a very correct and proper way with respect to acting as intermediaries in problems which arise with our constituents.

So far as the second part of my amendment is concerned, I noted the extreme instance of the McNeil case in order to point out what we’re about. It shouldn’t be every situation where everybody has to exhaust all of their remedies, either under the statutes or in the courts, before the Ombudsman can say enough is enough. That’s why I introduced the amendment to subsection 4 that provided the Ombudsman may conduct an investigation, notwithstanding that the person aggrieved has or had such a right or remedy, if satisfied in the particular circumstance that it is not reasonable to expect the person aggrieved to resort or to have resorted to it. So that citizen is not forced into this interminable and endless problem as to whether or not he can outwait the whole of the institutionalized system before a legitimate problem can be dealt with.

There is good precedent for that. As usual, I don’t claim there is any originality in anything I ever do.

Mr. Reid: How about your speeches? Some of your speeches are highly original!

Mr. Renwick: It simply is the same provision which is in the Parliamentary Commissioner Act of 1967, section 5, of the British Parliament. It has almost exactly the same qualification, but it did add the proviso that the commissioner may conduct an investigation, notwithstanding that the person aggrieved has or had such a right or remedy, if satisfied that in the particular circumstances it is not reasonable to expect him to resort or have resorted to it. What a coincidence of language.

Mr. Reid: Purely coincidence.

Hon. Mr. Clement: What legislation was that in?

Mr. Renwick: The Parliament of the United Kingdom; The Parliamentary Commissioner Act of 1967. It’s an out clause, a remedial clause. I think it should be a perfectly acceptable clause; the Ombudsman is not going to use it except in the sense in which it would appear in the statute. Yet there must be many cases where he says it’s unreasonable to expect this particular citizen to pursue that particular remedy.

Let me give you an example. There was a court decision quite recently dealing with an interdepartmental decision originating in the Ministry of Community and Social Services. It involved a person who was mentally retarded or disabled and concerned whether or not in a particular situation he was or was not entitled to a particular allowance. It was extremely technical and the court overturned the decision. I think it was a divisional court and the case was under the Judicial Review Procedure Act.

I think that’s an unusual course for a person to have to follow. I think, similarly, there would be other examples in connection with the Board of Review, say, of the Ministry of Community and Social Services. I’m not putting the Board of Review down. I’m simply saying that they have difficult questions to determine, involving whether or not a person is or is not disabled and there is a Medical Review Board to determine that question.

There are also the questions which have come up recently as to whether or not a person is employable or unemployable, and the determination as to whether he gets general welfare assistance or is to be covered under the GAINS programme. There are any number of those kinds of decisions which many of us run into as members.

I don’t think it should be suggested that in specific difficult cases the only recourse the Ombudsman has is to say, since that’s the exercise of a statutory power of decision, you must take the matter to the divisional court under the Judicial Review Procedure Act. That’s my reading of what the statute requires.

There must be any number of cases like that where the Ombudsman can do the kind of takeout which is necessary if equity is to prevail, rather than the strict rigours of the court procedures which must be exhausted if the statute is to stand the way it is before any other determination can be made.

I am sure all of us can multiply any number of such decisions. I am quite certain that at some point in time someone is going to raise in the courts the question of whether or not a particular person should be refused Ontario Housing, or whether or not a particular person should be in this scale of acceptance within Ontario Housing; rather than the way in which we all presently operate, which is a sort of leverage, kind of Tammany Hall operation against the system; about which we know very little, including the criteria on which the decisions are made about the allocation of public housing.

It seems to me there are any number of those areas, and I am not suggesting the amendments which I have proposed either to subsection 2 or for the additional proviso in subsection 4 will solve all of them. But it will give a little area within which the equity of the situation can be dealt with by the Ombudsman. In a very real sense, I think that equity is very important to that office. I am sure any number of members could multiply the kinds of examples that I am talking about. I think it’s extremely important that you consider seriously the acceptance of amendments along these lines to this particular provision of the bill.

Mr. Chairman: The member for Rainy River.

Mr. Reid: Thank you, Mr. Chairman. I rise to support the amendments as put by the member for Riverdale. It seems to me we are back to the fundamentals of the bill, which is primarily one of accessibility to the Ombudsman for the people he is supposed to be dealing with.

I think it should be an obvious fact that members of the House should be able to refer matters to the Ombudsman and that he, with that reference, should be able to deal with them. We talk often about what our responsibilities are here. Obviously, it is to pass laws, to raise and spend money, to service our constituents by way of information and to act within the purview of our ridings and the province as mini-ombudsmen, I would suppose, for want of a better term.

I would think the principle of accessibility to the Ombudsman is one that should be enshrined much better than it is in the bill. We have had the debate earlier on this matter. I don’t think it probably bears repeating at this time, except to say that the Ombudsman’s time and discretion are protected under section 18 of the Act where he decides under subsections 2 (a), (b) and (c) if the complaint, whether it comes from the individual that’s involved or directly affected or whether it is referred to him by a member, is frivolous, justified, vexatious or whatever. The Ombudsman has that discretion, but at least the members of the House themselves have the opportunity to refer this matter directly to the Ombudsman. My colleague from Ottawa East is going to propose an amendment that will give the accessibility to the Ombudsman even wider latitude than the amendment proposed by the member for Riverdale.

As regards the amendment to subsection 4, it seems to us there is great merit to the amendment, as put again by the member for Riverdale. I come from a riding that is not well served, I say to the Attorney General, the Solicitor General and the Provincial Secretary for Justice --

Mr. Stokes: We will change that.

Hon. E. A. Winkler (Chairman, Management Board of Cabinet): We had nothing to do with that.

Mr. R. G. Eaton (Middlesex South): That is what your constituency says, it is not served well.

Mr. Reid: Well, you know, it may be it is not served well by me, but when people consider the alternatives they think it is well served indeed.

Mr. Roy: He has no problems at all.

Mr. Reid: But in any case, what I was about to say was that we are not particularly well served by the judicial system, for a number of reasons, some of which I won’t go into, but primarily perhaps because of the distances involved and the fact that we are underserviced by the number of lawyers that we have in the area, by the accessibility to those people and the accessibility to the courts; and perhaps the way the courts are run in that area.

In many cases, the people do not have the obvious accessibility to the courts to receive or to apply the remedies that are set out in section 4 of the bill. Not only the courts; my friend and colleague from Riverdale, mentioned the Board of Review of the Ministry of Community and Social Services, and one can go through almost every ministry where they have these review boards. Well these review boards sit very infrequently in the northern part of the province, and I can assure you in the northwestern part of the province, and particularly in the Rainy River district, the Kenora district -- and I can’t speak for my colleague from Thunder Bay, but in his area, too -- because the people are not available; they will not travel from Toronto, where most of them are positioned.

So not only can the average citizen in our community not avail himself of the remedies that may be available through the institutional structure, but in fact those institutional structures are not available in most parts of the province, and in my part of the province particularly.

The other argument that the member for Riverdale put forward is a completely valid one, to my mind. I have a lot of people in my riding who are immigrants, a number of people whose English is not of the best, a number of people who do not understand either our legal system or our quasi-judicial system through the number of appeal boards and review boards that we have under Workmen’s Compensation, Social and Community Services, and all the other government departments.

They do not understand the system, they do not understand the quasi-judicial apparatus that they have to go through and they are intimidated by what is available. I could give you chapter and verse of people who come to me and say, “What do I do?” I say, “You should do this”; and they say, “I don’t want to do that. I don’t understand it, I am afraid of it,” and so on.

I say to the Attorney General, this is a very real problem, not only in my part of the province, but also for many people who live in Metro Toronto. They are intimidated by the system and they don’t understand it, but if they are able to approach the Ombudsman -- either through the member or directly -- and say, “I am sorry, I don’t understand this system. I can’t wait that long for relief and redress,” they should have that opportunity.

Again, I would think that under at least section 17, and particularly section 18 of the Act, the Ombudsman has the opportunity in his discretion to say: “All right, this is how we are going to proceed.” But without the amendments as proposed by the member for Riverdale, they don’t have the opportunity to bypass many of these quasi-judicial bodies and, in some cases, because of the length of time involved and the impediments that are put in their way, they are not going to have the accessibility to justice that I think is essentially what we are striving for under the Act.

I would recommend to the Attorney General the amendments as put forward by the member for Riverdale. I would remind him once again that I think it is essential that what we are aiming at is for the accessibility of the Ontario resident to justice under this system, and that these amendments will go some way to providing that justice.

Mr. Chairman: The member for Sudbury.

Mr. M. C. Germa (Sudbury): Mr. Chairman, I would like to say a few words on the amendments proposed by the member of this caucus. I believe it is unrealistic to have the legislation drawn so tightly that you have to follow such a narrow and precise pattern in order to approach the Ombudsman.

When I take section 15 into consideration with section 17, which says that every complaint to the Ombudsman must be in writing, I wonder if the minister realizes just how inhibiting even section 17 would be. Maybe he doesn’t really realize or understand just exactly what that means. For this constituent to have to lay down his complaint in a written form and submit it on his own to the Ombudsman would just be a formidable task. It would appear to be just as formidable as approaching the government, or any other government agency.

What I see here is a repetition of another institution which, while not an arm of this government, is a quasi-judicial body which controls the medical profession. I had the unfortunate experience of not checking the legislation after having received a complaint from a constituent who lived in the city of Sudbury and who had recently arrived from Algeria. He was not too knowledgeable about the English language, even though he and I could converse in a fashion and I did get the message from him after trial and error.

He asked me to lodge a complaint on his behalf following the death of his child as the result of malpractice. I knew enough about the system that I had to go to the Royal College of Physicians and Surgeons. So, I did, in fact, lay down, in chapter and verse, after spending several hours with this immigrant, detailing to the Royal College of Physicians and Surgeons what the complaint was that he was trying to get them to inquire into; which happened to be the death of an unborn child.

Lo and behold, I get a letter back from the Royal College of Physicians and Surgeons which says that this complaint must be lodged by the individual himself; that they cannot, through an intermediary such as me, cause an inquiry to take place.

Upon informing my constituent that he himself would have to sit down, write a letter and shin it himself, he threw up his hands and said, “It is impossible for me to do that.” First of all, he is an immigrant, newly come to this country, he hasn’t got that much command of the English language, and also he didn’t understand the procedure that he was going into. Even though I, as a layman, was quite innocent as well, at least I knew a little bit about the responsibilities and jurisdictions of the Royal College of Physicians and Surgeons. So we had to fake the letter, and apparently this is going to have to be done as far as the Ombudsman is concerned too.

In this instance, the one I am talking about, I wrote a letter to the Royal College of Physicians and Surgeons in a different tense and asked the man to sign the letter. It was I who addressed the envelope and supplied the stamp, and to all intents and purposes it was still I who had lodged the complaint, even though this constituent had signed the letter. It was I who wrote the letter, it was I who knew where to go, and all he did was affix his name to the letter.

So you are, in fact, not really being honest when you demand that the complaint must come from the individual himself. I think you must allow an MPP to be an intermediary and I think you must also consider allowing a complaint to be lodged verbally as well, because there are certain illiterates in this province and there are those people who come from another country who do not have command of the language.

I would also hope that the other section of the amendment would allow the Ombudsman to participate in appearing before these quasi-judicial boards, because even approaching these boards is a fearsome prospect for some constituents to think about. Not only should the Ombudsman review the case after the constituent has been to the board, I think he should also participate in the hearing before the board. While it is not as onerous as appearing in the courts, there is certain work and certain evidence that has to be sorted out in order to prepare a case so that the constituent can, in fact, receive a fair hearing from these boards. The two most notorious ones, of course, are the Workmen’s Compensation Board and the provincial Board of Review. There is certain preparation that has to be done. The average constituent, who doesn’t understand exactly what the law provides for, does certainly need assistance. I think the avenue of access to the Ombudsman has to be much more relaxed if this legislation is ever going to serve the purpose as a public defender. The way it is now, Mr. Chairman, I can very well see myself receiving complaints as the result of frustration of a constituent going to see the Ombudsman. The same frustration he is getting now at bureaucratic governmental departments is the same frustration he is going to get when he faces or approaches the door of the Ombudsman’s office. I think that we are really not in business to create more frustration for the constituent. The Ombudsman is the public defender and should make it easier for the citizen of Ontario to get justice before governmental bodies. Any tightening up of approaches that demand it be in writing and that it be by the person himself, I think is inhibiting and detracting from what the principle of a public defender is.

Mr. Chairman: The hon. member for Ottawa East.

Mr. Roy: Yes, Mr. Chairman, my colleague from Rainy River has mentioned that we would support this amendment, or both amendments as far as that goes. He talked about accessibility to the Ombudsman and I fully agree with what he is saying. In fact, I would move even further. I will be moving an amendment, Mr. Chairman, which very simply moves that we just take out of that subsection 2 the word “affected” regarding the Ombudsman making any investigation either on a complaint made to him by any person or on his own motion. I can’t really see why you wouldn’t accept this amendment that I will be moving; in fact, maybe I should give it to you now.

Mr. Chairman: Maybe there are some other speakers who wish to speak on the amendment before you put a sub-amendment in. Are there any other speakers --

Mr. Roy: No, but I want to continue speaking on this, if I might, because either way I would like to see some widening of that section.

I have not been able to detect the minister’s reaction as to why he would not allow this amendment or my amendment.

It seems to me, Mr. Chairman, that the Ombudsman is in a position to have some flexibility in dealing with these complaints. In other words, if they are trivial, if they are not made in good faith or if the complainant has not a sufficient personal interest, the Ombudsman has all sorts of flexibility to accept, reject or do whatever he pleases with the complaint.

Why would you restrict -- I would like the minister to address himself to this -- the legislation to just the person affected or on his own motion? As one of the previous members mentioned, I suppose we are going to go into a little charade, because if I was to call the Ombudsman and tell him about a particular case, he might move on it and say really I didn’t receive a complaint from anybody else. I am going on my own motion. I suppose we could start playing that sort of a charade. But it seems to me, Mr. Chairman, to the minister, that the amendment as proposed to subsection 2, is very sensible.

As I said to the minister, I would go even further -- why don’t you just take the word “affected” out of there? Then you have total, complete flexibility that the complaint can be made by an individual, by his member of the Legislature, by a federal member or whatever. And then the Ombudsman can at that point deal with good faith, and can deal with the substance of the complaint.

It seems so logical when we are dealing with the Ombudsman. It’s so consistent with the approach of setting up this office that we should in no way restrict people in having access to the Ombudsman. I am saying to you that section, as phrased, is not that restrictive. We are going to have to start playing games to get the Ombudsman to investigate, and I say let’s open it up completely and then have full accessibility to the Ombudsman.

In relation to the second amendment I’d like the minister to answer this question. I take it that even though one individual had a right of appeal or other rights in the courts or whatever, once that right has expired, or once he’s missed a right, the Ombudsman can step in anyway. I take it that’s what that section is supposed to mean.

Secondly, what the section means, basically, is that the Ombudsman is not empowered to act at a point where an individual has an alternative remedy.

It reminds me of the old cases we used to read about. There were special rights of certiorari, habeas corpus and the others, where it said, that if you had a right of appeal, you couldn’t resort to these extraordinary remedies. The courts used to talk about this, and it seems to be this approach here.

But I think the amendment as proposed by the member for Riverdale may well have some merit in talking about flexibility in legislation. It’s an escape clause, it gives them more flexibility. I would think that in a general case where someone had made a complaint and the Ombudsman investigated he would say: “Hey, you have the right of appeal or you have a right of review, why don’t you try to exhaust that right before I start getting involved in this?” I think he would generally say that.

Other members have mentioned situations where certain individuals in their riding might feel constrained by proceeding through the ordinary course of appeal reviews and so on.

I don’t see why you would not accept this second amendment as well. I would encourage this minister to show some flexibility on this. I’m looking forward to your answer because I can’t see why you would not accept at least the first amendment. In fact my amendment, as well, to section 15, subsection 2.

Mr. Chairman: The hon. member for Nickel Belt.

Mr. F. Laughren (Nickel Belt): Thank you Mr. Chairman, I rise in support of my colleague’s amendments, not surprisingly; I hope it’s not a surprise anyway.

I won’t apologize for being parochial, but I find in representing a large, scattered, rural -- French-Canadian riding, much of it -- that the people in those remote communities have virtually no one to turn to when it comes to resolving problems with government. Time and time again when I send out questionnaires I get no response or very little response at all, but when I visit the communities in person and hold public meetings, I get a substantial turn-out where people come to me with fairly significant personal problems, often with the government.

When I say to them on some occasions: “Look, is there any way you can detail that for me in writing with some of the receipts or whatever that you’ve got at home?” they throw up their hands, and say; “I couldn’t.” In some cases they couldn’t even read the mail they did get. Many times I’ve had constituents come to me with letters from the Compensation Board for example, and say; “Can you tell me what this means?”

Mr. Chairman, it’s not because the people in Nickel Belt are any less astute than the people anywhere else in the province, but merely that there is a different socio-economic, cultural mix in that riding than there is in a lot of Ontario.

I feel very strongly that if the legislation is left the way it is, it will indeed be intimidating for a large number of people in the Province of Ontario. I see no reason whatsoever why it cannot be amended as suggested by my colleague to make the Ombudsman and his services much, much more accessible to these people in Ontario. Thank you, Mr. Chairman.

Mr. Chairman: The member for Windsor West.

Mr. Bounsall: Yes, I just want to, quite briefly Mr. Chairman, add my support for the amendment before us.

I just cannot see why we have to go through a charade such as writing a letter on behalf of our constituent, seeing that it’s typed and having that constituent sign it in order to get the complaint before the Ombudsman.

I can assure the minister through you Mr. Chairman, that I come from a completely urban riding that doesn’t have the problem that the previous speaker from Nickel Belt has mentioned -- those of language problems and those whose schooling, education and cultural background do not lend themselves easily to letter-writing. I come from a riding, a large portion of which is upper middle-class, very well educated and professional; the rest by and large, are associated with the auto industry, and most of whom have completed high school. Still, I run into the same problems. Many of my constituents are just not oriented to writing or reading letters.

It seems strange to those of us -- all of us, I suppose -- who get a foot and a half of mail per day, that there are some people who may get a letter once a week or once every two weeks. They are simply not oriented to communicating via the printed word. It is really beyond them to sit down and write a letter that outlines something with which they have quite an emotional involvement -- an involvement that has caused a lot of problems and an involvement that causes them to have a problem sufficient to take to the Ombudsperson. I could think of many people I have talked to over the last three and a half years, since being elected, to whom that would be a problem which really would be beyond them.

Again, from my contacts with some constituents and from the experience I have had, I can see that the problem they have is one that can only be reasonably solved by an Ombudsman. I know, from my own experience, that the solution to their problem is one which they would have great difficulty getting any justice done in any other way.

I can see myself in a position of saying to those persons that this is what they must do. I can see some of those persons saying: “What is an Ombudsman?” I can explain it to them very briefly, and they will say: “That’s fine. What must I do?” I can tell them, “You now must sit down, put all your complaints in writing and send that letter on.” I can see them being quite reluctant to do that. No matter what I would explain to them or how I would explain it to them, they would view it as simply another arm of the very government that has caused them the emotional problem they have, the financial problem they have, or whatever the problem is at that particular moment. So they are not likely to be too trustworthy.

On the other hand, they would be willing to take my advice as to what they should do with the case, but on the other hand they would be completely unwilling to take what to them would be a rather difficult and very frightening step in the initial instance.

If, in this legislation, one simply allows cases to be brought forward by members of this provincial Legislature, directly to the Ombudsman on behalf of a constituent, I can see in many cases the whole idea behind the office of the Ombudsman being advanced and being what one has envisaged it to be -- a post where a person rights the wrongs which have been done to the people of Ontario by an arm of government. One of those ways is going to be through members of this provincial Legislature. If that avenue is completely blocked off, then there are going to be groups of people in this province, for a whole variety of reasons mentioned by myself and by speakers prior to me here tonight -- and no doubt after me as well -- who will be completely cut off and not receiving that justice.

I urge the minister to accept this amendment from the member for Riverdale -- or to come up with his own wording if there is a hang-up on that point -- to ensure, by whatever means he wants to do it at this point, that the amendments which would allow members of this House to assist their constituents in bringing a problem to the Ombudsman can be part of this bill.

Mr. Chairman: The hon. member for Cochrane South.

Mr. W. Ferrier (Cochrane South): I would like to --

Mr. Renwick: I wouldn’t bother speaking until the minister was paying attention.

Mr. Ferrier: Well, the minister and the member for Ottawa East are having a little confab --

Mr. Renwick: I think it is extremely rude, if I may say so.

Mr. Roy: What’s your problem?

Mr. Renwick: I said I think you are extremely rude.

Mr. Roy: We were just talking about you.

Mr. Renwick: That’s right -- and the members are speaking.

Mr. B. Gilbertson (Algoma): Don’t interrupt the minister.

Mr. Ferrier: Mr. Chairman, I would like to support the amendment of my colleague.

Mr. Roy: You are never wrong in the House, are you?

Mr. Renwick: My time in the House was broken for the minister.

Mr. Roy: Oh, come on.

Mr. Chairman: The member for Cochrane South has the floor. Order.

Mr. Renwick: I’ve never seen anybody so chauvinistic.

Mr. Roy: Chauvinistic?

Mr. Chairman: Order, please. The hon. member for Cochrane South has the floor.

Mr. Renwick: Yes, that is exactly what you were doing. You just walk across there and pre-empt the minister.

Mr. Chairman: Order, please.

Mr. Roy: We were discussing your amendment.

Mr. Chairman: Order.

Mr. Renwick: I don’t care what you were discussing. This is a public forum.

Mr. Roy: You’ve got your nerve. Do you figure the House is only for you?

Mr. Chairman: Order, please. The hon. member for Cochrane South will continue.

Mr. Ferrier: Mr. Chairman, I would like to make a few comments about my colleague’s amendment. This Ombudsman bill is supposed to help the people of this province who feel that things are wrong with the kind of decisions they’ve been getting from government agencies. Some of them are real; perhaps some of them may not be as big as they think. The bill would get these brought to the Ombudsman and get him to go to work on them and resolve them in one way or another.

A number of the older people of this province who have not had the opportunities to go to school and to get the sophisticated education that increasingly is being made available to young people today find it extremely difficult to sit down and write a letter and to put into words in some kind of logical way the particular thing that is bothering them. There are many who have worked in the lumber industry, or who have worked in the mines or this kind of thing, particularly in northern Ontario, who would find this very difficult.

Over the years, some of these people have established a very good personal relationship with their member of Parliament and have come to trust him and to feel that he is concerned about them as people and about their problems. They would feel, I think, that they could go to him and discuss something quite personal and, perhaps, intimate in a relationship with government --

Mr. Gilbertson: You are their Ombudsman.

Mr. Ferrier: -- and he would be in a position to channel that complaint or concern of theirs to the Ombudsman.

I would think that we should accept this amendment by my colleague. It would enable the Ombudsman to do the job for as many of the people of the province as possible. You’ll probably say a lot of people can write a letter but there are many, many others who can’t.

The member for Algoma says, “You’re their Ombudsman.” The Ombudsman will be in a position in some instances, to do something that we in the Legislature have not been able to do -- to see some of the documents and to interview people in a fashion that we can’t. He could resolve things that we’re not in a position to do. If we have not been able to do it, and have bumped our head against what seems like a brick wall, but we feel that the Ombudsman should be able to do it, then I feel that we should be able to refer these people to him.

Some of the problems are of a fairly technical legal nature which takes all kinds of research. Some of us do not have access to that research or we’re getting out of our depth. I think in these kinds of things, we should be able to refer through to the Ombudsman on behalf of our constituents. I would hope that the minister, to make this Act serve the people as widely and as effectively as possible, will see the validity of the amendment put forward here and will be prepared to make this concession to us.

Mr. Chairman: The member for St. George.

Mrs. Campbell: Thank you, Mr. Chairman. In the course of my remarks on this bill earlier, I pointed out I thought it was a grave mistake to cut the member of this Legislature out of this function. I don’t see any reason we should not provide for the member to be able to present the complaints. There are so many reasons -- and I am not going to cover all of them -- why the member ought to be able to pass the complaint along to the Ombudsman, if we really want the Ombudsman to be able to function in a wide variety of cases.

I would also like to say, Mr. Chairman, that I would think if one reviews the situation as it may develop -- and as the minister knows only too well from his experience -- it might be very useful, perhaps in cutting down the work of the Ombudsman, if this kind of relationship could take place. Certainly as one builds experience in the types of cases, the member of this assembly could be, it would seem to me, a very useful assistant, in a sense, to the Ombudsman in cutting down on cases which possibly didn’t have any merit. I would think the Ombudsman could be enabled to function much more readily.

I make this appeal to you on the basis of all that has been said before and with that added note on the effectiveness of this office. There are many people who certainly will not proceed to any officer of government at least until this role has been functioning for quite some time. I find it’s interesting that when older people or disabled people have a grievance they don’t themselves actually come forward in many cases, even to the member. The only way you find out about it is by calling upon them and then you find they really didn’t know how to go about it. Sometimes, even with the member, they think you are too busy for this kind of thing.

It should be something made available through whatever means -- the member or the person or the Ombudsman. Once he gets going, perhaps on his motion, he certainly will be able to take up those cases like Workmen’s Compensation Board cases and certainly those matters covering the review function. And there are those areas where, for example, if we left it the way it is now, we might have a reversion to that cynical practice of this government before, of forcing parents to proceed before the courts to remove from the court trust funds there on behalf of a child who has been permanently damaged.

Under the legislation as it is now, the Ombudsman might say very readily, “But you have your recourse to the court.” If you go to court, the court may not determine that money should be released. I don’t think that’s the kind of case which should be forced upon someone or that one should have to proceed through the courts to try to work out something.

The same thing would function in the case of those pernicious orders of OHC, where we find them getting restraining orders ordering children not to enter their own homes on the pain of eviction by the parents because the child is out of hand. These kinds of cases should have the power and the authority of an Ombudsman long before it gets into any kind of court issue.

Mr. Chairman, I don’t need to cover all of the ground which has been covered so ably before. If we really mean this bill, we should make it as open as it can be to the citizens of this province either on their own or through their elected representatives in this assembly.

Mr. Chairman: The hon. member for Riverdale.

Mr. Renwick: Mr. Chairman, I want to address myself to a couple of matters. I’ll try not to be in any sense repetitious.

I don’t want the minister or the committee to think for one moment that somehow or other this is going to open up some kind of a sluicegate. I happen to have a document which is not all that up to date but was published in January, 1973, by the Central Office of Information, London, England, about the role of the parliamentary commissioner for administration in the United Kingdom, including Northern Ireland, during the period from 1967 to 1971.

By the end of 1971, the parliamentary commissioner had dealt with 3,987 complaints referred to him under the 1967 Act by members of Parliament. Those falling outside his jurisdiction numbered 2,390, which I’d like to come back to as a point to discuss; 292 were discontinued after partial investigation; and the remaining 1,305 were fully investigated and the results reported to the members concerned. Elements of maladministration were found in 231 cases. About half of the cases where maladministration was found involved the Inland Revenue.

I’m not going to go on with that. The figures are sufficient to indicate that, while the role is a very significant and important one, nevertheless the attempts by ourselves to enlarge the ambit or the scope of the work of the Ombudsman are not in any sense to make the role an inoperative one in the sense that the person will be submerged by the work which has to be done.

I’m indebted to my colleague, the member for Rainy River, for drawing to my attention the problem related to subsection 1 of section 15, which is not included in the amendment. I was raising the question of standing in the sense that that term “affecting” might mean whether the person had standing, because the provision of the clause requires that a person be affected in his personal capacity. It was the member for Rainy River who drew to my attention the provisions of subsection 2 of section 18, which permit the Ombudsman to rule out any complaint if the complainant has not a sufficient personal interest in the subject matter of the complaint. I refer to that again because of the concern, which I expressed earlier in the debate on section 15, because of the limitation which it may very well impose in those situations where the person is simply a member of the public who feels aggrieved by a decision of a government organization, but cannot himself through the Ombudsman distinguish his personal interest as being a sufficient one in the subject matter to distinguish him from all of the other members of the public who may not have the same sense of grievance or concern which he feels about the decision.

That’s simply an addendum to the remarks which were made earlier and I hope that the question of jurisdiction will not be one which inhibits the Ombudsman from carrying out his function. I think it was significant in those statistics which I quoted from the United Kingdom’s operation for the four-year period ending 1971 that of the roughly 4,000 complaints, about 2,400 were decided to be outside the jurisdiction of the Ombudsman by the Ombudsman himself.

So, I think the question of standing -- the question of whether a person is a person affected in his personal capacity by the decision -- is one which is of extreme significance in the role which the Ombudsman is going to play. I think it is interesting that in Stroud’s judicial dictionary the definition of the word “affected” -- I made the reference earlier this afternoon without attributing it to that law dictionary -- was that it is not a term of art but is a word of ordinary English usage. It was adopted in local government Acts early in the 19th century for the purpose of giving it the broadest possible scope and it was not to be constrained within narrow limitations. I do hope that the Ombudsman will not take the words of subsection 1 of section 15, and the power which he has to disallow a complaint under subsection 2 of section 18, to in any way be a constricting influence on his role.

If I may speak now to the second portion of the amendment -- that is the proviso which permits the Ombudsman to conduct an investigation even though a person has not exhausted all of his remedies at law. I want again, if I may, to refer to the pamphlet put out by the Ministry of the Attorney General dealing with these various Acts which we have passed as consequence of the McRuer report -- including particularly the Judicial Review Procedure Act. Apart from those exceptions to which I referred earlier concerning the boards that are protected by private clauses, it was the purpose of the Judicial Review Procedure Act, as I read it, to eliminate all of those distinctions between judicial, quasi-judicial and administrative decisions which so bedevilled the whole study of administrative law, as you and I knew that topic.

I want to quote in the commentary by Mr. Mundell on that bill as follows: “The distinction between ‘judicial’ or ‘quasi-judicial’ powers and ‘purely administrative’ ...” I simply say as a law student we can all understand how long we spent trying to figure out just what that distinction was between those three particular modes of decision of administrative tribunals. I carry on:

“Power of decision is no longer a relevant consideration when commencing proceedings seeking judicial review. The application is in the same form by an originating notice no matter what the nature of the power may be, meaning that the applicant need only allege a ground that would have entitled him to relief under any of the former proceedings or coming within the enlarged grounds provided under the Act.”

They are immensely large, not only in the definition of statutory power, which has four headings, one of which itself is statutory power of decision, and which is subject to a separate definition in itself, which is extremely large, to indicate to the minister that for practical purposes in almost every decision of a government organization which would be within the ambit of the Ombudsman under this Act he would be precluded -- with those minor exceptions of those boards and commissions which are protected by a privative clause -- from taking any step of any kind until the person had exhausted all of his rights of appeal, including, in its very broad language, the Judicial Review Procedure Act.

I would therefore urge that that particular subsection 4 be amended in the manner which has been set out in the proposed amendment to provide a wider ambit for it, in order to enable the Ombudsman in a justified situation to intervene, without requiring a citizen to exhaust all of his legal remedies.

Mr. Chairman: The hon. minister.

Hon. Mr. Clement: Mr. Chairman, in view of the hour, I don’t wish to get started, if I can possibly avoid it, because there have been a good number of questions raised here tonight. I would rather start fresh when we next debate this matter and go through it in the chronology in which I listened to it here this evening.

Hon. Mr. Winkler moves that the committee rise and report.

Motion agreed to.

The House resumed; Mr. Speaker in the chair.

Mr. Chairman: Mr. Speaker, the committee of the whole House begs to report progress and asks for leave to sit again.

Report agreed to.

REPORTING OF COMMITTEE

Hon. E. A. Winkler (Chairman, Management Board of Cabinet): Mr. Speaker, in regard to the question that was placed before us before the orders of the day today, the consideration of the standing procedural affairs committee report in the votes and proceedings No. 27 of April 29, I would like to recommend this evening to the House that the standing committee hearing of Bill 100 on Thursday be granted permission to make their own determination whether or not the proceedings will be recorded.

And when one reads the recommendations, it might well save some time on Thursday in that the committee would not then have to return and petition the House for such permission. And I have discussed it with my colleagues on the other side of the House, who seem to agree with that particular recommendation.

Mr. I. Deans (Wentworth): If I may, just before you move the motion, I want for clarification purposes to make it clear that that would dispense with the need for the committee to return to the House to receive unanimous consent; that in essence the members present are in effect giving unanimous consent to the committee, if it is the committee’s wish to have the hearings recorded.

Hon. Mr. Winkler: Yes. I don’t see any difference in the recommendation that I put forward that they be given that particular power, that authority.

Mr. J. R. Breithaupt (Kitchener): I think that, perhaps, this being an opportunity for us to enter into a new, particular responsibility within the dealings of the Legislature, we should record as well the view of the official opposition that we are in agreement.

We have come to a conclusion, as the three House leaders of the parties, to follow this procedure in order to save time; otherwise the committee could not return to the House and ask that consent until perhaps 3 o’clock or so Thursday afternoon.

If the committee is to otherwise meet at 10 o’clock, and if facilities are available and the committee then decides that it will record, as some of us hope will happen, it can be proceeded with forthwith. Hopefully, this will be a way of developing this procedure where the matter of special interest is considered by the House.

Hon. Mr. Winkler: Mr. Speaker, I appreciate that degree of co-operation that we have experienced as well. I would also like to say that I would recommend particularly in this case that the committee be empowered to sit concurrently with the House. I think that that would be acceptable.

Mr. J. A. Renwick (Riverdale): Mr. Speaker, if I may address myself to the question. I don’t pretend to understand all of the intricacies of the procedural affairs committee. I refer to the votes and proceedings of the assembly on Tuesday, April 29, in which it was reported:

“Mr. Morrow from the standing procedural affairs committee presented the committee’s report which was read as follows:

“‘Your committee recommends:

“‘That the sittings of the standing committees, with the exception of standing committees considering estimates, be not recorded.

“‘If a matter or bill referred to a standing committee is deemed to be of ‘special interest,’ the consent of the House must be given to have the deliberations of the committee recorded.’”

This was then placed on the order paper and on May 6 it was debated in the assembly. The report was accepted by the assembly.

My point of order, Mr. Speaker, is that if that is the report which was adopted, then the consent must be given by this House and it must be given now. If that has been given then there’s no further determination to be made by the committee, as I understand the problem. There is no jurisdiction in that committee to make its own ruling, because we don’t have authority to now go in the face of the report which has been accepted by the whole House on a recorded vote on May 6.

What I’m asking is why do we always get entrapped in this game of referring something back? If that’s the report and if that’s the decision of the House after a whole debate and a recorded vote on May 6, why isn’t the question simply put? Why don’t we simply say: “Look, are we giving consent or not?” This is the House. It’s still in session and it’s quite entitled to make that decision. I think it’s improper for the matter to go to that committee.

Mr. Speaker: As I understand it, the suggestion is that the House give permission for the committee to record the discussions, if it wishes on this occasion. I believe that’s correct. I would ask the permission of the House --

Mr. Renwick: What’s the point?

Mr. Speaker: -- because of the difficulties coming back to the House and preventing the committee from sitting.

Mr. Renwick: But the House is right here now.

Mr. Speaker: As I understand it, the House is giving the committee permission to record, if it so wishes. Is this agreed to by the House?

Mr. J. F. Foulds (Port Arthur): Mr. Speaker, I think the point that my colleague from Riverdale is trying to make is that it is lip to the House to deem a bill to be of “special interest” and up to the House to give that consent. That is certainly how I interpret the committee’s report. Therefore, the consent must be given at this time if the committee is to proceed on Thursday. My understanding is the House is now giving that consent.

Mrs. M. Campbell (St. George): Mr. Speaker, if I could be of assistance, as a member of the procedural affairs committee, one of the problems which was pointed out to us was that there had to be some kind of notice given if any proceedings were to be recorded, particularly if they were to be concurrent with the sittings in the House, so that Hansard could make its proper provisions. For that reason, it seems to me that that strengthens what is being said by the member for Riverdale. The committee, even with consent, might still not be able to get ready the material, the mechanics to record. The procedural affairs committee would, I am sure, simply say to you -- and I don’t see the chairman here -- that this was a way to obviate the necessity of some last-minute arrangements which might not be able to be made. Therefore, it seems to me, Mr. Speaker, that the consent of the House is available right now on this matter and this is the time and the place for that consent to be given.

Mr. Bounsall: Mr. Speaker, speaking to the same point of order. As a member of the procedural affairs committee, this was definitely my understanding. The whole intent of the motion that came forward from that committee and which was subsequently debated in this House was to have this House determine whether or not the bill was of special interest, and to make that determination before that committee met to ensure that proper hardware would be there so recording could take place. In presenting the motion, the procedural affairs committee did not in any way envisage the House referring that motion back to them to make that decision at the beginning of the committee. And if the decision was to go forward with the recording, adjourn in order to have the equipment installed, and operators provided and so on.

The intent was to have the House decide in time for the equipment to be set up in the committee -- if that would be required. There are committee rooms that have recording equipment. But should a second committee meet equipment may be required in that second committee room. This was the reason for the wording which came to this House from the procedural affairs committee, and which we debated.

Hon. Mr. Winkler: Mr. Speaker, in answer to that particular point, I think that impasse can be overcome very easily. If a decision to proceed on that basis is made by the committee, this particular committee could be heard in the committee room at present equipped with sound equipment. The estimates committee could either adjourn for that morning, or carry on in another committee room until the second committee room is established. I think we agreed to that. I don’t think that’s a problem.

Mr. Deans: Let me just make one other comment on it. Since I raised it first this afternoon, I took what we were doing this evening to mean that we were indicating to the committee that it was the wish of the House that they would record the hearings.

I am not at all sure of the legal meaning of the word “consent.” That’s what I was asking my colleague from Riverdale -- whether consent means direct or not. But I think we are all agreed that this is a bill of special importance, and that the particular phraseology contained in that particular edition of the proceedings was intended to be used on just such an occasion. What we are doing is obviating the necessity of the committee coming back to the House. Rather we are saying to them in advance that it would be our wish that they record the hearings, and that there is a way it can be done. And that you don’t have to come back and ask for permission; it is already given to you. Is that right?

Hon. Mr. Winkler: Exactly. Correct. As we discussed it, Mr. Speaker, the committee will be informed of our consent. As I have said time and time again without wanting to get into any debate over this -- because I don’t intend to -- I have never taken any position that interfered with the function of any committee.

They have the powers of the House, and I recommend that we advise them that they have the consent to proceed. The arrangements to have them heard is not a very difficult one under the circumstances, and I --

Mrs. Campbell: You should hear the Hansard people on that subject.

Hon. Mr. Winkler: -- would think that they should have the power of making their own decision. That’s all I am saying.

Mrs. Campbell: That is not what they say.

Mr. Speaker: I think we understand each other. The House tonight is giving consent to the committee to record the proceedings. Do we have that agreement?

Agreed.

Mr. Renwick: It is a special interest bill and we have consented to the recording.

Mr. Speaker: The House is giving permission as I understand it to record the proceedings of consideration of Bill 100.

Hon. Mr. Winkler: Right. Before I move the adjournment of the House, Mr. Speaker, if the members would care to take down these numbers, this is the way we will proceed for the next few days -- I would assume. The first item will be item 17 on the order paper, Bill 106; then item 21, Bill 111; and then, third, item 18, Bill 107; No. 4, item 6, Bill 75; No. 5, item 8, Bill 95; and then item No. 6, Bill 9. Then we will return to --

Mr. Deans: No, item No. 9, surely.

Hon. Mr. Winkler: Item 6 is item 9 on the order paper, Bill 96. Then, following that, the seventh item I am calling is item 2, Bill 45.

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

Motion agreed to.

The House adjourned at 10:45 o’clock, p.m.