Wednesday 24 November 1993
STANDING COMMITTEE ON THE OMBUDSMAN
*Chair / Président: Rizzo, Tony (Oakwood ND)
*Vice-Chair / Vice-Président: Wilson, Gary (Kingston and The Islands/Kingston et Les Îles ND)
*Abel, Donald (Wentworth North/-Nord ND)
*Akande, Zanana L. (St Andrew-St Patrick ND)
*Cooper, Mike (Kitchener-Wilmot ND)
*Haslam, Karen (Perth ND)
Henderson, D. James (Etobicoke-Humber L)
*Martin, Tony (Sault Ste Marie ND)
*Miclash, Frank (Kenora L)
*Murdoch, Bill (Grey-Owen Sound PC)
Ramsay, David (Timiskaming L)
*Stockwell, Chris (Etobicoke West/-Ouest PC)
*In attendance / présents
Clerk / Greffier: Decker, Todd
Staff / Personnel: Murray, Paul, committee counsel and research officer, Legislative Research Service
The committee met at 1020 in room 151.
The Chair (Mr Tony Rizzo): Good morning, gentlemen. I'm calling the meeting to order.
The Chair: The first item on the agenda is the briefing by legislative research. Counsel?
Mr Paul Murray: This shouldn't be too long; it should be a fairly short briefing. It has to do with the Ombudsman having tabled in the House two special reports concerning specific investigations. One was tabled in July 1993, and one was tabled yesterday and is dated November 1993.
The first report is a special report into three specific cases.
The first one concerns the problem of systemic delay in the Ontario Human Rights Commission in processing complaints of discrimination.
The second deals with the specific complaint of a Ms R, and this also concerned the Ontario Human Rights Commission. The complaint concerned the fact that the Human Rights Commission had acted unreasonably with respect to settlement negotiations concerning Ms R's complaint of discrimination against her former employer.
The third investigation covered by that report is the complaint of Ms M, and this concerned the family support plan and the complaint that it had acted unreasonably with respect to the renewal of Ms M's garnishment order against her former husband.
Then yesterday we received a second report. Just briefly, I've reviewed the report, and there are two complaints in this one. These are two specific investigations again.
The first is the case of Mr SM. That concerned the vocational rehabilitation services branch of the Ministry of Community and Social Services and the complaint that it had failed to properly process Mr M's application for vocational rehabilitation services, as a result of which he lost a job.
The second complaint is the complaint of Mr EF. This again concerns the vocational rehabilitation services branch. The complaint was that it had failed to notify Mr EF of his right to appeal the denial of vocational rehabilitation services, which that branch is required to do.
So these are the two reports that the Ombudsman has tabled and generally what those complaints concern.
The purpose of this briefing is just to provide the committee with an understanding of what its role is in relation to these reports and to brief you on the process that's been followed by the committee in the past in dealing with these reports. In relation to that second part of it, though, the committee should consider whether or not it wants to follow the same process. If so, we can then proceed to set a date to consider these reports and to gather the information that's necessary for briefing the committee in a more detailed way and then conducting a review of these cases.
Each of these two reports concerns cases in which the Ombudsman concluded that the governmental organization had not adequately and appropriately responded to her recommendations in terms of the action to be taken. The Ombudsman Act provides that in such cases, the Ombudsman may send a copy of her report to the Premier and thereafter make a report to the assembly.
The assembly has created the process whereby these reports are automatically referred to this committee, which is then required to review and consider the reports and then report back to the Legislature any recommendations it considers appropriate. The committee began performing this function back in 1976. Between 1976 and 1989, the committee examined in excess of 75 cases. It's been a regular part of the committee's business over that period of time.
The committee, in the past, has taken this responsibility to require it to fully investigate, examine and report on all relevant issues brought before it concerning the particular case, and in particular to "review with the...Ombudsman all phases of the Ombudsman's functions which were exercised in the particular complaint" and to "examine with the governmental organization in question the adequacy and appropriateness of its response."
Through examining the cases over the period of time I mentioned, the committee built up considerable experience and developed a process which was directed towards ensuring that these cases were examined in an effective way. That's generally the committee's role in this.
What I'll do now is go through the process that's generally been followed, and you can consider that process. I'll describe what's been done in the past and you can consider whether that's how you want to continue to proceed.
Generally, the first step that's taken when these reports are obtained is to schedule a time for the hearing and to notify the Ombudsman and the governmental organization of the date and also of the process that's going to be followed by the committee in reviewing the report.
Normally, a block of a few days or a week is set aside to consider the total number of cases that are before the committee, so they're not generally considered sort of one a week. It's usually done as a block of time during one of the recesses.
The first step then, having done that, is to direct counsel to review the cases and to collect relevant documentation. Usually, counsel in the past has met with the Ombudsman's office to go over the cases prior to the hearing, and in some instances with the representatives of the governmental organization. This is with the review so that counsel can then assist the committee in its review of the cases.
An important part of the preparation that the committee developed was the preparation of a synopsis. The committee would request that the Ombudsman and the governmental organization prepare a synopsis of the case, and preferably that the two agree on a synopsis. The synopsis would include a statement of the facts and issues which are relevant, and a statement of the relative positions of the Ombudsman and the governmental organization and the reasons for their positions. Hopefully, this can be reached by agreement. If not, separate synopses are provided.
This process has proved to be valuable in clarifying the issues for the committee and making the hearing more effective, and it also helps in terms of settling these complaints, often in advance of the committee's actual hearing of the matter.
Documents typically obtained include key correspondence between the Ombudsman and the governmental organization. An important point to note on documentation is that the committee hears these complaints in a confidential manner. The privacy of the complainants is respected. As you can see, these reports refer to just the initials of the complainants. All documents provided to the committee are anonymized before they're provided. These documents are organized, put in a binder and then presented to the members to refer to.
When all that information is organized, committee members have on occasion been briefed by counsel prior to the committee's hearing, although the normal practice has been for counsel to go through the documents at the hearing itself. Just on this particular point, the committee may want to consider making greater use of this briefing process. You may want to consider having a detailed briefing whereby I would, having reviewed the cases, take the committee through each of them, helping the committee identify the key issues and questions in advance of the meeting with the Ombudsman and the governmental organizations. I think that would be a valuable process in terms of the committee becoming familiar with these cases in advance of the hearings.
The committee hearing itself is generally held in public. It begins with the Chair or counsel explaining the purpose of the hearing and the process which is to be followed. Counsel then explains some of the key issues to be decided and takes the committee through the binder of materials, highlighting documents that are likely to be of particular importance. Then the Chair calls on the Ombudsman and her staff to explain their position. The same is done after the Ombudsman has completed her presentation: The governmental organization presents its position. In both cases, generally members wait until the Ombudsman or governmental organization have completed their presentation before asking questions, though questions can be asked where it's necessary to clarify things. Generally, though, you wait until the end. Following the presentation of each of the positions and the questioning by the members, counsel can follow members' questioning where it might be necessary to draw out more information important to the committee's deliberations.
Then the committee meets in camera following the hearing to discuss and vote on its conclusions and recommendations. A process that was developed in recent years was for the committee to meet immediately after the hearing to try to come to a quick decision where that was possible and then inform the Ombudsman and governmental organization right after the meeting. Where that's not possible, the committee considers it and then reports subsequently. After the committee has reached a decision, it then reports to the assembly with its recommendations.
That's the overall process. What needs to be decided is whether that's the process the committee wants to follow. Also, we need to set a date for the hearings and the briefing if that's the approach to be taken.
If there are any other questions on the process, I've tried to go through it in a brief manner, but I can address any questions.
Mr Bill Murdoch (Grey-Owen Sound): I think we should do it because, remember, we've done this for three years, and finally we've got something to do. I think we should go ahead and try this. I was on this committee for over three years, and it's the first time we ever got anything from the Ombudsman to try to help her out that I can recall. We did do some cases, but most of them were done in subcommittee and just passed out here. We never have gone through this process that I can recall in the last three years, and there's been trouble. Maybe this would be a new era. I'm certainly willing to try it and see what happens, so I think we should go ahead. The cases have come from the Ombudsman, right?
Mr Murray: Yes.
Mr Murdoch: Yes, and that's the first time we've ever had this happen. Anyway, I think we should go ahead and set up some dates and things like that.
Mrs Karen Haslam (Perth): I've not been on this committee before, and I have questions in clarification. I apologize for not doing my research. I usually do my research and know exactly what the committee's about, but I just haven't had the time to do it on this particular committee because I was informed, as Mr Murdoch said, that it didn't meet very often. I would like clarifications.
Mr Murdoch: We did meet; don't get it wrong. We did meet.
Mrs Haslam: No, no, I understand that.
Mr Murdoch: We didn't meet and do anything. That was the problem.
Mrs Haslam: Bill, I understand that. That was my understanding, exactly what you said: that it didn't have that much business go through the committee.
Mr Murdoch: We tried. We did try.
Mrs Haslam: I'm not saying you didn't work, Bill.
Mr Murdoch: Better get that on the record.
Mrs Haslam: The Ombudsman reviews complaints. Does every complaint come in this form to this committee?
Mr Murray: No; a very, very small number.
Mrs Haslam: Okay. The only ones that come to this committee are where the ministry and the Ombudsman disagree?
Mr Murray: Yes, and not all of those necessarily come. The Ombudsman has discretion as to whether or not to report them.
Mrs Haslam: So she says: "You're wrong. I'm right. Absolutely no argument. This is my case. I'm sending it to the committee." Am I correct so far?
Mr Murray: Yes. The language of the act is a bit different, but it's that the response is not "adequate and appropriate." That's the Ombudsman's judgement, as to whether or not the response is adequate and appropriate.
Mrs Haslam: That's fine. So the letters say, "Mr Premier, I wish to speak to you," but it's put before us because obviously the Premier will not have time to meet with her on a more regular basis like we will, and it is our mandate in this committee -- that's what I'm trying to get clear -- to review the Ombudsman in these cases and to report to the Legislature. Is that correct?
Mr Murray: The second part of it is correct in terms of what our role is, but it's not because the Premier doesn't necessarily have time. We're quite a different body than the Premier. The Premier receives the report as part of the government.
Mrs Haslam: Fine. I understand that, then. In this case, she writes to him, and we are the body that reviews this.
More clarification: So then we redo the job. That's really what this committee will be doing in this process. We re-evaluate, looking at the ombudsperson on one side and the ministry on the other, this case here?
Mr Murray: To some extent. I think what the committee is doing, as I've tried to indicate, is going over the Ombudsman's review of the complaint to ensure that it was done in compliance with the Ombudsman Act, and generally assessing whether or not the recommendation should be supported. In doing that, it necessarily involves some examination of the reasoning and the support for that position. Similarly, we have to delve into some of those issues to be able to determine whether or not the ministry's response is adequate and appropriate. But before these cases come to us, the Ombudsman's investigation is quite detailed, and I think the committee tries not to second-guess the factual determinations.
Mrs Haslam: That was the clarification, because you were talking about, and it's my understanding in this document, how you call people and they make a presentation. So the people we call are the ombudsperson and the ministry person, not any other witnesses.
Mr Murray: Yes, that's right.
Mrs Haslam: They both present their cases and then, as my colleague here has said, we are kind of the means of last resort; we are the last step in this decision-making process?
Mr Murray: We're the last step in the process.
Mrs Haslam: So if we say, "Yes, Ombudsperson, you are correct," we uphold the Ombudsman's report. If we say, "Sorry, but we as a body do not agree with your presentation, and therefore we feel that the ministry decision was adequate," that is our decision and we make that recommendation to the Legislature.
Mr Murray: In some cases in the past there was room in between those two on the spectrum. That's where the committee decides that, for instance, there's general agreement that the ministry has acted inappropriately, but the committee doesn't fully support the specific recommendation and makes its own recommendation. The committee has done that in the past. Those sorts of things become clearer when you have a specific fact situation and the different possibilities emerge.
Mrs Haslam: In the past, as Mr Murdoch has said, we haven't had too many of these, is that correct? We haven't had too many of these cases like this presentation right here?
Mr Murray: There haven't been any cases referred to this committee since 1990. Before that time, from 1976 to 1989-90, there were 75 cases that previous committees have considered. So there have been a lot of cases considered in the past. There's just been a bit of a lull.
Mrs Haslam: In this process?
Mr Murray: Yes.
Mrs Haslam: Those are all the clarification questions I had, Mr Chair.
Mr Tony Martin (Sault Ste Marie): Being as this sounds like the court of last appeal in this thing, what if an individual has difficulty with a decision that the Ombudsman has brought down? Would they have the right to come in front of us and appeal that decision?
Mr Murray: No. You're here to review the Ombudsman's report. The authority comes specifically from the Ombudsman's power under the act to make a report to the assembly in a situation where the governmental organization's response isn't adequate and appropriate. That's how the report comes to you, in those circumstances. There's no similar process for the circumstances you described.
Mr Murdoch: We've had people send their problems to us, though.
Mr Murray: That's a different process that the committee established over the years.
Mr Murdoch: I know it's a different process.
Mr Murray: I should refer to that. A different role the committee has performed is that from its creation it received complaints of the nature you're describing, where an individual wasn't satisfied with the Ombudsman, as opposed to the Ombudsman not being satisfied with the government, and would write to this committee. Because the committee existed, it seemed like a natural body to receive these complaints.
The committee developed a process for reviewing those complaints and meeting with the Ombudsman to discuss them, not for the purpose of questioning the Ombudsman's substantive decision but to review the process and to possibly comment to the Ombudsman in terms of how things could be improved in the future or to take some steps in the particular case. But that's a different role the committee has performed, and that raises other issues. In recent years that role has changed, but we could get more into that. That's a different process.
Mr Martin: Would it be fair to say that this sort of is the nub of the kerfuffle that's been happening over the last couple of years, our role in light of the role of the Ombudsman or who she responds to or who that office responds to?
Mr Murray: That specific aspect of the committee's role -- there are different parts of it -- has been one part of it, yes. But what we're doing here today and what I'm briefing you on, that process, really hasn't been.
Mr Murdoch: I made it quite clear to you that this committee has never, ever tried to change the Ombudsman's decision. We have had people write to us and we've felt they had maybe a right to at least an answer back from us, so we did try to look into it as to the procedure that was taken to look at their case, but not the decision. We've never, ever said that we had that right to change the decision, because we haven't felt we did have. But you're right: That started causing some of the problems. The Ombudsman didn't feel that we should be even helping these people out.
Ms Zanana L. Akande (St Andrew-St Patrick): Let me first apologize for not being here. I was at the legislative committee presenting something for the city of Toronto.
Has our previous process at least resulted -- and I know it hasn't been resolved -- in our having clearer terms of reference for ourselves that in fact can be advertised, if that's the correct word, put out there somewhere so that people understand the limitations of this group and wouldn't be writing to us with expectations that are unreasonable?
Mr Murray: Is that directed towards me?
Ms Akande: That's directed to anybody who can answer.
Mr Murray: Sure, I can answer that.
Mrs Haslam: I'm sorry; he's in the hall.
Ms Akande: Well, get him, Karen.
Mr Murray: The Chair might want to address this as well, but I think the answer is that if you're referring to our report of April of this year following our review of the Office of the Ombudsman, that report made a number of recommendations, one of them concerning this specific area. It specifically recommended that the committee discontinue its review of the specific complaints but that the Ombudsman create an internal process for examining them. That report has not yet been debated in the House, and no other steps have been taken at this time towards its implementation.
Ms Akande: If I can pursue this further, we're still existing under the old terms of reference, about which most people were quite vague, really; not everyone understood what they were and how we were supposed to operate. So one of the things that's important, I think, is that people should know, especially since they do continue to refer to us, the limitations under which we're currently operating.
Then my second question would be -- I'm sorry.
Mr Murray: I'm sorry. I should have added, though, on the letters we have been getting dealing with those complaints, that we have been responding to them and indicating what we have decided in the report, to let them know that we're not dealing with these complaints at the moment and that we've in fact recommended that in the future we would only be dealing with them for a very limited purpose, which is just to draw out general information in terms of making recommendations on the Ombudsman's process.
Ms Akande: Is it possible to extrapolate that part of the recommendations from the report if in fact we're not prepared to debate the entire report, to debate those and at least get some discussion around what the new terms of reference of this committee should be so that we're still not operating in this circular fashion?
The Chair: This is the most important issue that we have to face in the near future.
Ms Akande: I know.
The Chair: What I was suggesting is to try to get rid of the small problems that we have where we may have an agreement with the Ombudsman and solve them now. By the time we're finished, I think the relationship between this committee and the Ombudsman would be a little bit different, a little bit more positive, and then at that time we will be able to deal with the more important issue with a report prepared by this committee.
Ms Akande: You can bet on it.
Mr Murdoch: Zanana, you're right. You were here before for part of it and you know the problems we had. Since we have a new Chair, Tony has said that he would like to try to deal with the Ombudsman in the way he would like to do it.
Ms Akande: I understand that.
Mr Murdoch: We had a bit of a subcommittee meeting before and I was prepared to say, "Sure, if he's the new Chairman, let's see what he can do."
I think, though, and I just want to put it on the record, and he agreed, that until the Ombudsman decides to come in and sit down and go over with us that report we presented about where we think our role should go, then we won't get anywhere. But I'm certainly willing. This is a first, to say we have some cases that have been given to us now. We've never had that since this committee was formed -- for every one of us here, because we're all new, are we not? Yes, since 1990. So we've never had anything to do as far as the reports that we thought we were to help out. I think we'll try this; at least I'm willing to try this.
The Ombudsman has to come, though, and sit down with us and go over that report. She doesn't have to agree with it. Then we compromise or whatever we decide. But until that's done, I think we're still going to have that circle. We're still going to be circling around wondering what we're really doing here.
So I'm leaving it in Tony's hands, as Chairman, to see what he can do, and we'll go from there.
Ms Akande: I agree, except that -- not to cast any doubt on your abilities to dance, Tony.
Mr Murdoch: Well, I've already said that too, that he may have trouble. I've warned him.
The Chair: Especially when it comes to tango.
Ms Akande: The thing that bothers me is that it's a little bit of the tail wagging the dog. I think that at least as far as this committee is concerned and the way it operates, it may be possible for us to debate that, to state how we operate in relation to the Ombudsman and to direct exactly how we feel the Ombudsman should operate, at least as part of the recommendations, and that would be debated. I think then it would be a matter of either her objection or her compliance, which would make it necessary either to discuss it or not to discuss it, but certainly to comply with it or leave.
Mr Murdoch: And we did. We, as a committee, wanted that report discussed in the assembly because we felt that if we're whistling in the wind here as a committee and spending all our energies and having our staff spend all their energies writing a report, if the assembly doesn't agree with us, we should know. That's why we wanted it debated on the floor. Obviously, House leaders couldn't come to some agreement or give us the time. I think that was the biggest problem, just to find the time for it.
Again, that's on Tony's shoulders, so he's going to have to learn how to do a lot of dances. I wish him luck.
Mrs Haslam: We can sit late tonight and do it.
Mr Murdoch: Well, that would be fine with me. I was all ready last night to go. Karen, you have to learn. This is the first -- the only -- committee I've sat on that has really been non-partisan, pretty good for three years, and we've tried.
Ms Akande: Then why are you sitting over there?
Mrs Haslam: With all due respect, I understand that, but I've gone into a lot of committees with that same feeling and had my eyes opened. So when you say, "Gee, Karen, let me instruct you," please don't instruct me, Mr Murdoch. I've seen what's happened in other committees. I'm pleased to see this one is a non-partisan committee, because that's the kind that works best.
Mr Murdoch: Sometimes it isn't. I just want you to know. The odd time -- but it has been very rarely in this committee -- the odd person will come in and go real fast and cause a bit of trouble.
Mrs Haslam: We saw him; he's gone out.
Mr Murdoch: Well, I don't know. I haven't been here with Chris. It's the first time I've been with him. But we have tried to do something because we were having trouble with the way things were working. As I say, we seemed to be running around in circles. We did our report, and now, as I say, we have a new Chair.
Mrs Haslam: It's time to debate it.
Mr Murdoch: Well, I think it's only reasonable to let Tony try to see if he can solve our problem. Good luck. If he does, fine, all the better for us as representing our people. But if not, then I guess we have to go back and we're going to have to get down to the crunch. So we'll see what happens. But I know what Zanana is getting at, because we sure have been around. We have got some cases sent to us, the first ones in three years.
Ms Akande: Yes, but it still is the circle, and after we discuss them and decide what to do, we still have to wonder about whether in fact the Ombudsman is going to want to comply with our discussions, is going to recognize them, is going to feel that they're an imposition. The question is still begged. I think the solution by the chairperson, though God knows I support you, is in itself a recognition of the problem that she feels she has to be, or someone feels that they have to be, persuaded towards compliance, rather than it being worked upon as a matter of instruction from this committee.
I think there's a whole of grey matter around what this committee is, and then how it works with the ombudsperson.
The Chair: I always believe that unless you try something, you're never going to learn the trade. I think this is going to be a test, for us and for her.
Do you want to proceed?
Mr Murray: That was the end. If the committee is satisfied with the process I've outlined, then we'll proceed on that basis.
Specifically, the one thing I noted that I think there will be more emphasis on now, if the committee wants to do this, is a more detailed briefing of the committee in advance of the committee's hearings. I think that will enable you to participate in the fullest manner in examining these cases.
The Chair: In order for us to do this job, we have to set up some time, ask the House leaders to give us some time to discuss this in the winter months. How are we going to do that? Do you need a motion of the committee to ask the House leaders, or what?
The Chair: Do you want then to ask the House leaders to give us a couple of weeks to go through this? When would you want to meet? In January? In February? When?
Mr Mike Cooper (Kitchener-Wilmot): That would be up to the House leaders.
The Chair: For the House leaders to decide. So we just ask for the two weeks and then --
Mr Murdoch: We ask for time.
Mr Cooper: Yes. We just ask for the time, and the House leaders determine when.
Mr Murdoch: We can suggest.
The Chair: That's right: We can suggest, maybe. Is there any preference by the members of the committee?
Ms Akande: Let's get it done while we still remember what the Ombudsman is.
The Chair: That's my position. I would say let's ask for some time, two weeks, in January if it's possible. Otherwise, they'll tell us February or whatever.
We are going to deal with her annual report also. This is the 1992-93 report. Everyone has a copy of this, the annual report, 1992-93, from the Ombudsman? We can make copies available.
Mrs Haslam: Some of us weren't on the committee, and the problem is that when it came to the office, not being on the committee, I don't believe I kept it in a special place.
The Chair: What we are going to deal with is the annual report, 1992-93, and the two special reports, one for July 1993 and one for November 1993.
Mr Murray: I'll provide a briefing on all three of them. I think what we might do is organize the two weeks where we'll start off with the briefing at the beginning.
The Chair: Okay. When we are deal with this, do we have to invite the Ombudsman to be present? What is usual?
Mr Murray: Part of the process is now to inform the Ombudsman, the governmental organizations concerned, about our examining these cases. We won't have specific dates right now, but we'll inform them as soon as we do of the specific dates. Maybe we'll just give them an indication now of when it might be, and do it in that way.
The Chair: Okay. Any other business?
Mr Murdoch: I just want to answer to Zanana, when she asked what I have been doing over here. I have in the past suggested that we should all sit differently, but it never, ever happens.
Mr Cooper: Come on over, Bill.
Mr Murdoch: It's awfully lonely over here.
Mrs Haslam: Zanana and I will come and sit beside you.
Mr Murdoch: That's fine. But in the past I've said I think we should all sit around together. This committee did work well together.
The Chair: Do we have more information coming from the counsel?
Mr Murray: I just want to let you know -- some of you will recall this particular case. There is a case concerning the Ministry of the Environment that we dealt with in our 19th report. It goes way back to 1979, and it concerned a claim of interest that a complainant had made to the Ombudsman. The ministry hadn't responded to the Ombudsman's recommendation. It was one of these cases that we're going to be examining. We supported the Ombudsman in this case and suggested that they go to arbitration to decide the claim of interest.
That case has finally settled. It was settled in the last month, so that's --
Ms Akande: Are the complainants still alive?
Mr Murray: Yes. That matter has been settled. It doesn't usually take that long, but that's a case in which the committee and the Ombudsman played a role together.
The Chair: Okay. The meeting is adjourned.
The committee adjourned at 1056.