1999-2000 Annual
Report, Ontario Ombudsman
Mr Clare Lewis
STANDING COMMITTEE ON
THE LEGISLATIVE ASSEMBLY
Chair /
Président
Mr R. Gary Stewart (Peterborough PC)
Vice-Chair / Vice-Président
Mr Brad Clark (Stoney Creek PC)
Ms Marilyn Churley (Broadview-Greenwood ND)
Mr Brad Clark (Stoney Creek PC)
Ms Caroline Di Cocco (Sarnia-Lambton L)
Mr Jean-Marc Lalonde (Glengarry-Prescott-Russell L)
Mr Jerry J. Ouellette (Oshawa PC)
Mr R. Gary Stewart (Peterborough PC)
Mr Joseph N. Tascona (Barrie-Simcoe-Bradford PC)
Mr Wayne Wettlaufer (Kitchener Centre / -Centre PC)
Substitutions / Membres remplaçants
Mr Joseph Spina (Brampton Centre / -Centre PC)
Clerk pro tem / Greffier par intérim
Mr Douglas Arnott
Staff / Personnel
Mr Andrew McNaught, research officer,
Research and Information Services
The committee met at 1533
in committee room 1.
1999-2000 ANNUAL REPORT, ONTARIO OMBUDSMAN
Consideration of the 1999-2000
Annual Report of the Ontario Ombudsman.
The Chair (Mr R. Gary
Stewart): Ladies and gentlemen, we will call the meeting
to order, now that we do have a quorum. I believe everybody got a
copy of the Ombudsman's report today, albeit some didn't get it
too early in the day so probably have not had the opportunity of
going through it. That's the reason we have the Ombudsman with us
today. I believe this is a precedent. I don't think, certainly in
my time up here, that the Ombudsman has come to the committee to
discuss his report.
Welcome, Mr Lewis. I appreciate
you coming. Please have a seat. We'll turn the floor over to you,
sir.
Mr Clare
Lewis: Thank you, Mr Stewart, and members. I appreciate
your agreeing to see me today. I felt that this was a time when I
ought to come before the committee. You'll find that I speak in
my report today a fair amount about accountability of
government.
The Chair:
Can I get you to introduce your colleague just for the
record.
Mr Lewis: Of
course. Ms Wendy Ray is counsel in the Office of the Ombudsman.
I've asked her to sit with me because sometimes I get lost in the
report and she can point me to the right page. When you ask me
questions, it flusters me, right, Mr Lalonde?
I have made, as I'll discuss
with you, some fairly strong comments about accountability as a
responsibility of government. I think it's a responsibility of
the Ombudsman and I am accountable, and I see you as my
accountability partner, if you will, in reporting back to the
Legislature.
The report was delivered to
the Speaker this morning at I believe 10 o'clock for placing
before the Legislature this afternoon. I was before the press at
10:30 for close to an hour and addressed some issues. There is a
press release which is being distributed to you which will give
you a flavour of the report.
At your leisure, I would
invite you to glance through this report. I'm rather pleased with
it, frankly. It's of course only reporting on two months of my
tenure. I have only been there four months, and it's up to March
31, so my predecessor has the rest of the responsibility and
kudos or whatever. I am particularly interested that you look at
my opening, "Ombudsman Message." I speak there of the need for
the Ombudsman to build bridges with government, with the
Legislature, with the public service and with the public we serve
generally, the communities. I talk about my intent to do that and
to operate an office which is open and transparent and
accountable.
The way in which the report
is structured, it has the opening remarks and it then goes into
issues such as our budget and data on a client survey which we
had done to determine how we're serving the public and what
publics are coming to us. We then go on into the complaint
statistics, which are set out in some detail. Then we have what
we call "Case Stories," and they take almost exactly one half of
the volume, 24 pages. Case stories deal with principal issues
that I have highlighted, called "Case Story Highlights," and with
formal investigations and with informal resolutions of the
complaints.
I want to start off by saying
that this year we tabulated some 22,720 complaints. Of those,
perhaps 14,000 were jurisdictional in the sense that they were
provincial as opposed to federal. Staff has spent a lot of time
dealing with federal, municipal and private complaints, and so
on, and steering people and assisting them as we can. But of the
jurisdictional complaints, I wanted to point out to you, in terms
of our service delivery, that 75% of the over 13,000
jurisdictional complaints are resolved by our office within 20
days; 50% of those 13,000-plus jurisdictional complaints are
disposed of within six days. By "disposed of" I mean resolved.
They are withdrawn sometimes. The problems are solved, as you
will see in the case stories, through inquiries. Information is
given and the person is satisfied with the information provided.
But the cases are able to be closed at that point. It's a much
smaller number that go forward to a more formal appreciation, and
ultimately perhaps to an investigation.
1540
As you know, I came before
you a month or so ago because Ms Jamieson had four reports tabled
with this committee from last April and I had to deal with them.
That was my priority. I reported to you at that time when I came
that in my view I had a positive response on the adoption
disclosure registry in terms of the $2.4 million and the
commitment to clear the backlog within 18 months. Further, I was
able to settle one of the human rights complaints issues that Ms
Jamieson had brought forward
for consideration by this committee by an apology and a payment
to the complainant.
The other two were withdrawn,
if you'll recall, because they were service delivery complaints
of the Human Rights Commission and of the Family Responsibility
Office, on the basis that I determined that the information in
those investigation reports that were laid before you was no
longer current. Since what essentially happens in front of you
when the Ombudsman decides to press is a hearing, with me on the
one side and the deputy on the other disputing the matter, I
didn't feel I could make the cases on the basis of the
information that you had been provided. It might have been right;
I'm sure it was OK for that time, but not now.
I had been assured as well by
both agencies that some significant steps of improvement had been
taken. I will say to you I have not yet had time to verify that,
and you'll note that the complaints against FRO, for instance,
are still high. That's listed in here; they are almost the same
as they were. I think we are familiar that there are still
ongoing issues. I'm not saying that I'm not interested in the
future of FRO and the Human Rights Commission and their backlogs
and other difficulties that they're having, particularly FRO, but
I'm not in a position to report to you on them at this time.
What I have reported on that
seems to be getting a lot of interest from the press, given the
calls I've had back since this morning, are the two stories that
are set out on pages 24 and 25-27. The first has to do with the
Highway 407 collection of tolls. I initiated personally-this is
my own-an own-motion investigation in late February, early March
into the issue of the 407 difficulties that came to light and the
Ministry of Transportation's involvement in the refusal of
renewal of licence plates. My concern on the investigation and
the reason for doing it was an accountability issue. I want to
say to you I closed the investigation within five weeks. It was
opened, dealt with and closed, because the ministry responded
very quickly to that particular problem. You may recall that some
80,000 people had been denied their renewals and 120,000 more
were in the pipe about to be denied their renewals.
Ms Marilyn Churley
(Broadview-Greenwood): I do recall.
Mr Lewis:
Yes. The ministry suspended that program of denial until they
could ensure that there was a proper arbitration process, and the
public was aware of it, to solve those complaints. That was a
good response and I commended them for it. I wrote in my report
and I bring this before you that-I'll do it from my press release
because it's an easier way to do it. I took the position in a
letter to the Deputy Minister of Transportation that "it was
unfortunate that neither the act," that is the 407 act, "nor the
concession and ground lease agreement covering its implementation
contained accountability mechanisms for legislative compliance
regarding toll collection."
The issue was that the
government had reserved to itself the power to act punitively on
behalf of the private partner in the collection of its fees. I'm
not quarrelling with that mechanism but my position was, and is,
that it raised the matter of having the need to provide for
accountability so that those members of the public who are caught
in that have access to a dispute resolution procedure. That is
what is happening now and why I ended the matter, but it wasn't
in the original agreement. My comment, and this may become a
theme, was: "The Ombudsman recommended lessons learned in this
case be shared with other government agencies: `This matter
highlights the need in privatization initiatives for
accountability mechanisms to ensure that the private sector
partner acts fairly with the public.'" That was one of my major
highlights and issues.
The second one had to do with
systemic problems in correctional services. We had over 6,000
complaints last year from inmates of provincial facilities. There
were too many complaints for us to investigate on an individual
basis, although some of them of course were investigated
individually, but the principal thing that occurred was that our
office went on an "own motion" system-wide basis to look at the
policies, procedures and the standing orders of the ministry and
found that they were fine. They had good documentation, good
directions to staff. What was not fine was considerable
inconsistency in the application of the qualities of the ministry
and the standing orders in individual institutions. So the three
areas of greatest concern where we felt there was a real lack of
consistency and lack of enforcement of policy was in use of
force, segregation of inmates and lost property.
We did find some cases in
which there was error or improper conduct. For instance, in one,
a correctional officer used mace on an inmate although he had not
had training in it and the policies require training before the
application of that use of force, and in another one there was a
hygiene issue of some substance in a segregation cell-and it has
been rectified-but really quite severe. But generally speaking
what we discovered is we weren't able, and neither was the
ministry, to determine whether these complaints had validity or
not because the record-keeping was so inadequate.
I'll give you an example. The
policies require that if an injury occurs to an inmate,
photographs must be taken immediately. It's not as if they
weren't necessarily being taken; there was no way of
establishing, by the time a photograph got taken, when the
Ombudsman showed upon on the scene that you could determine
anything. We were very concerned, given the number of
institutions and the number of persons in custody, that there
needed to be improvement here. I must tell you that the ministry
was very co-operative. They responded positively. They've
increased training, done some revisions of their policies and
their standing orders and they've taken several significant
steps, and so we closed the investigation.
But once again, and this is
my position on the matter, I see this as an accountability issue.
The ministry, which is responsible for the operation at this time
of those facilities, was unable to account, by reason of the
inconsistent enforcement of policy, for the treatment of persons
who were incarcerated and in their charge. I commented because this is an issue with
correctional institutions and as privatization initiatives
proceed in this ministry, as we understand they may well, the
issue of accountability and the treatment of inmates will remain
a matter of concern. What I am saying there essentially-and I'm
not speaking to the issue of privatization or not; that's not the
issue which I am attending to, but rather that as they do
proceed, there is a real need for the government and the
ministries to ensure that the private partners are accountable to
those ministries. My position, with respect, is that prisoners
who government has incarcerated are entitled to the protection of
government while they're in custody. By the way, I'm not
suggesting there has been any wrongdoing in this at all, because
the initiatives haven't gone forward, with one exception, but I'm
asking, as I did in the 407, that the accountability issues be
kept foremost in mind so that prisoners can be assured and the
government can be assured that they will be looked after
appropriately-hygiene, use of force and so on. Those were the two
lead items in the report and really represent the theme.
1550
I can say briefly that when I
had to read the case stories, 24 pages of them, and decide
whether they were going to be included in the report, back in
April sometime, as I said this morning, I undertook the
chore-I've got a lot of paper here to read; here I go-I found
myself being drawn in and I was frankly quite moved by what was
occurring in these stories. These were cases of people often in
quite serious need where there had often been error, not always,
or misunderstanding in the delivery of a government service, and
by the intercession of our staff many of these people got redress
quite rapidly.
I must say, while I don't
bear any responsibility for it because most of it occurred before
my time, I was quite proud of it. I really think that is a good
thing, and it is an example, first of all, of a core
responsibility of the Ombudsman, but also one of the things which
in my respectful view, as I said in my interview before this
group, is supportive of the operation of democracy, that there is
a means for the citizens to have an answer when government has
failed to do things quite correctly. When I say "government," I'm
speaking about the public service, because that's what I'm
looking at. I thought I'd bring those matters to your attention,
and I'd be more than happy to take any questions.
I should tell you of an issue
that arose this morning that's in the stories and it's important,
and it's the first of the non-major stories. It got a
considerable amount of press attention and may be reported on
tomorrow. It had to do with a radio station application. A
company was seeking transfer from an AM to an FM station. In
order for the CRTC to permit it, a provincial ministry had to
say, yes, they agreed, and did.
Another ministry, one of the
members of the Legislature apparently claimed, went to the
ministry and said, "Look, on behalf of another radio operator
who's objecting, I am saying you should not agree to this." The
minister in the second ministry wrote to the CRTC saying that
this licence should not be granted, and it put the whole thing
off the rails.
In our investigation of the
complaint-and it was a minister who signed the letter of
objection to the CRTC-we determined that that letter was signed
without the proper evidence being before the minister and caused
a harm that ought to be redressed. In time the ministry agreed
and they paid $12,000 to the person for this kerfuffle. Sorry, I
guess that's not good for Hansard.
In any event, the press
picked up on it on a level that I hadn't appreciated, and I just
want you to be aware of it. There was some suggestion that I was
perhaps saying there was ministerial impropriety here, and that's
not what I was saying at all; it was an error. Then there have
been a lot of questions, of course, arising from that as to who
is the minister and so on. I'm afraid I have confidentiality
issues. I can't report on anything to third parties, according to
the regulations, that isn't reported to the Legislature, and in
our practice we don't name those people. I haven't named that
person, but there will be a little flurry about that so I just
wanted to tell you about it.
Those are my remarks and I'd
be happy to answer any questions.
Mr Jean-Marc Lalonde
(Glengarry-Prescott-Russell): I could go for quite a
length of time with questions, but I have to say that we only got
this just prior to noon today and we had to be in the House for a
couple of hours. I didn't get a chance to go through the whole
report, but there are definitely some sections that are of
concern, the 407, for example, that you mentioned. Who becomes
accountable for those charges that were not collected, that
80,000 and 120,000 to be in the mail?
Mr Lewis:
Who becomes responsible for collecting them?
Mr Lalonde:
Yes.
Mr Lewis: I
think a lot of those were collected. The licences weren't
granted, so the money was paid.
Mr Lalonde:
Yes, the 80,000, but the 120,000?
Mr Lewis:
The 120,000 didn't happen, so their licences weren't suspended. I
guess it's quite possible that there could be people who haven't
paid out of that 120,000 to the company, but they will, in time,
face the suspension of licences if they don't pay. As soon as the
arbitration dispute resolution thing is in place, the program is
going back in place. They're not going to get away with it; we've
just had a delay. In the meantime they've got time to appeal, if
they wish, on the charges. A lot of those people aren't going to
appeal, I would suspect, because I would think most of them are
probably owing. But some of them will have challenges.
Mr Lalonde:
What I was really getting at is that if they don't collect that
money, will the government be responsible for it?
Mr Lewis: I
don't believe so.
Mr Lalonde:
You don't believe so?
Mr Lewis:
Well, I don't know that. I hadn't addressed that issue. It's a
private-no, I don't think so. You know, I'm talking out of turn
here. I haven't looked at it from that point of view, but I don't know that the
government is responsible for that.
Mr Lalonde:
Because you really specify that there is no accountability
mechanism in there.
Mr Lewis: I
wasn't addressing it from the point of view of accountability for
the funds from the government to the company but, rather,
accountability mechanisms to permit the public to dispute the
fare. You will recall one of the problems was they couldn't even
get through on the phones. They couldn't raise the issue with the
company; they weren't able to get through. The company was
inadequately staffed and so on. That's what I was saying,
sir.
Mr Lalonde:
On the correctional services, being a former correctional
services critic, through entertaining discussion with some of the
detention centres, I've noticed that it's true that there is an
inconsistency in enforcing a policy that exists, and the reason
for that is we don't have those training requirements in place.
Being a former training and development officer, I definitely
learned through my visits to different places that there are
people who have never received any training. Some areas are very
easy to operate, but in others you have to face different types
of characters in people. If we don't have the proper training in
place, do you foresee-did you notice during your investigation
that this was lacking?
Mr Lewis: In
many cases, yes. I'm not making as strong a statement about it as
you are, with your personal knowledge, but, yes, we noted that
they were lax in training, and the ministry has undertaken to
address that laxity that we've identified.
Mr Lalonde:
They did.
The next point is the Family
Responsibility Office. My colleague Caroline Di Cocco attended
the press conference this morning, and she brought to my
attention that you recommended some changes within the Family
Responsibility Office. That must be because what they have in
place at the present time doesn't work properly.
Mr Lewis:
They've had a lot of problems, yes.
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Mr Lalonde:
Because I remember when they closed the regional office, it
started all sorts of problems. People have lost their homes, got
their power cut off, because the Family Responsibility Office was
not prepared to accept all the transfers that occurred from the
regional office.
I was able to visit the
Downsview office and one thing that I noticed: Rarely do we have
the same person answering to our constituency office more than
two weeks. Apparently, we have a person right now with whom we
have direct contact once a week, but I recognize the fact that
for those who are affected, who are not getting their money, it's
a real headache, especially if you have to call and wait for over
an hour on the phone. That apparently hasn't been corrected. This
is why they have to come through the MPP's office, so that we can
get through to them, and we are having the contact once a week
only. A week's delay in receiving the cheques could make a big
difference for a family. If you are coming up with some
recommendations, something has to be done with the Family
Responsibility Office.
Mr Lewis: As
was pointed out this morning, there is still a very high number
of complaints regarding FRO. I can assure the committee that we
will be monitoring this issue very closely. Outside of
corrections, FRO constitutes the largest percentage of our
complaints. Some 19% of our non-correctional complaints come from
FRO. When they solve it, that's going to be a good thing for a
lot of people.
Mr Lalonde:
If they solve it.
Mr Lewis:
Well, yes.
Mr Lalonde:
I'm going to leave a chance for my colleague from the NDP, but
just before I do, I notice that the second highest area that the
complaints come from is WSIB.
Mr Lewis.
Yes, sir.
Mr Lalonde:
I could tell you that at the present time I'm having all sorts of
problems with the WSIB. As of this morning, again, I've told the
manager in there that they have-I went as far as saying, "The
people you have in there are incompetent."
I would say today that it
seems to me that some of the people who are handling the calls
over there don't care about the public. I have a case right here
at the present time that I've been after. I received a call about
a month ago from the manager that the problem was going to be
resolved in a week, on May 5. Today is June 15. No call back, and
I call them and they don't return the call.
That person had an accident
working for WSIB two years ago and hasn't received a penny since
then. She lodged an appeal on June 28, after receiving a letter
from WSIB if she wants to appeal on June 21, 1999. It's going to
be a year soon: no call, not a single call yet. That's why I went
to the minister. I spoke to the minister right that afternoon
that the acting manager returned the call, on May 5. Since then,
nothing has been resolved from that call. Today again, that same
person who was supposed to write a letter of apology hasn't. I
haven't received a letter, but he doesn't return the call yet. No
wonder we get a lot of complaints that go to the WSIB, if this is
the way we are running that department.
The Chair:
Ms Churley.
Ms Churley:
Thank you very much. I'm sorry I've been a little bit late here.
It's a busy day.
I just wanted to start with
the adoption disclosure. I brought that up. I will be introducing
my bill, by the way, which is of no interest to you, but I just
wanted to put it on the record, so this whole process, hopefully,
will soon change.
Mr Lewis: I
understand your position, Ms Churley, and of course it's of
interest to me, but it's not my responsibility.
Ms Churley:
Exactly. Let me clarify that: It should be of interest to
everybody.
I wanted to ask you a little
bit about this. When we met with you when you were first
appointed we talked about this, and there was $2.4 million
allocated. They said that they could eliminate the backlog in 18
months. What I'm trying to
figure out here is, when would that date have started so that we
know the end date, the 18 months when, in theory, we're going to
have-
Mr Lewis:
That's a good question. I'll speak to the deputy minister, if you
like, and I'll get you what he perceives to be the start date,
and I'll get back to you.
Ms Churley:
Yes. When you investigate these complaints and the ministry comes
back with a positive response, are you given any kind of work
plan? Are you simply told, "We're allocating the money," and
that's it, or do you have a work plan?
Mr Lewis: We
certainly expect one, but we haven't got one yet.
Ms Churley:
You haven't got one yet.
Mr Lewis: I
could tell you what did happen in my review of these four
matters. I just didn't know what to do with the adoption
disclosure registry. It was 7.3 years, right?
Ms Churley:
That's the official word, but some of us would say our experience
was 10.
Mr Lewis: It
was high enough for me. I asked to see the deputy, and when I met
with the deputy, he at that point presented me with a letter
which we have on file setting out the commitment of the ministry.
That's within the last two months. We will monitor, and I will
make particular note to get back to Mr Costante.
Ms Churley:
Great. I would really appreciate that follow-up so I can keep
track of it.
I want to come back to
Highway 407. I was one of the ones who was getting bills that
didn't seem belong to me since I hadn't-anyway, you don't need to
hear my history, but I share the frustration with many, many
people on that one and appreciate the work that you did to help
clear that up.
One of the things, though,
that interests me about it is-you talk about it in your press
release and in your report-no accountability mechanisms for
legislative compliance. I want to ask you a question about
accountability for privatization. I understand that you probably,
in your capacity, can't answer this, but perhaps you can. I want
to tell you about a situation that is being debated in this House
at this very moment: technical standards.
Mr Lewis:
Yes, I know about that.
Ms Churley:
I expect that you will be getting, eventually, some complaints
about that. Right now, it has not passed, and I'm objecting, but,
if passed, it will be operating in a complete accountability
vacuum. It won't be answerable to you, the auditor, the privacy
commissioner-FRO, I mean-anybody. "Freedom of information" is
what I'm trying to say here. I'm getting FRO and FOI mixed up
here. I'm not going to get into with you the philosophy around
whether we should privatize these services or not, and it's not
your role to get involved in that debate.
Mr Lewis:
No, it's not.
Ms Churley:
But there's a real concern, I believe, in terms of
accountability, so that the public have that, not only in terms
of what you're responding to here, for compliance, but
accountability. We're talking about safety, health and safety of
Ontarians, because it's mostly safety acts. I don't know if you
have a comment at this point in that general situation. I'm very,
very concerned about it.
Mr Lewis: I
would prefer not to address the technical standards matter, which
is before the House at this time. OK?
However, there is something I
can tell you which arose at the press conference this morning and
that I perhaps should have alerted you to when I talked about
that one about the minister. It was not a surprise to me that
this morning I was asked about Walkerton. I had wrestled with
what to say, if anything, about Walkerton. As you know, my act
has considerably severe confidentiality provisions, so we won't
talk about a lot of stuff that we haven't reported. But I thought
about this one, and let me tell you how I responded, and maybe
it'll help you in what you're questioning to some extent.
Ms Churley:
Let me say I appreciate your position, but any help you can give
me would be useful.
Mr Lewis:
What I said this morning publicly was that Walkerton is a matter
of enormous concern to us all, that it is a matter of concern to
the Legislature, to the media, to the public at large. Obviously,
in my position, both personally and as Ombudsman, I have an
interest in what's happening there.
1610
I considered in that case-and
I believe I'm not breaching anything here-the possibility of
launching an own-motion investigation but, as you know, matters
evolved very, very quickly in the government House on Walkerton
and I did no more than consider. I will say to you that I am not
investigating Walkerton at this time, because there are four
investigations underway: the Ontario Provincial Police, the
ministry, the coroner's office and, perhaps most importantly of
all, the judicial inquiry, led by a very competent Court of
Appeal judge. I have discretion whether or not to investigate
certain things if there's room for me in terms of jurisdiction,
but I have to exercise that discretion responsibly. I think this
would not have been an appropriate time for me to say, "Me too,"
so I haven't said, "Me too" in Walkerton and I don't think that's
a breach of confidentiality since I'm not doing it, I'm not
functioning.
I did say that if I felt
there was a gap occurring somewhere-because I'm going to watch it
closely; this is something that matters to us all-I might
consider whether I could add value at some point along the
process. That's all I can say. What would those issues be at that
point? I suppose they'd be accountability issues, if they arise,
that aren't being covered. I have no doubt that-well, we all know
the issue of accountability is going to arise in the Walkerton
inquiry. I see that as a principal issue for government at any
time, much less the tragedy case. Is that of any help to you?
Ms Churley:
It is, and I appreciate your position on this.
I just want to say in all
sincerity that the issue around accountability is critical as we
move more towards the privatization of public services. There are great
fears, with the privatization of our safety laws, that without
really good accountability we're going to have big problems down
the road. I just raise it because I'm raising it every chance I
can with anybody who will listen, because I'm very concerned
about it.
Mr Lewis: Ms
Churley, could I just comment that this report was written and
off to the printers before Walkerton occurred and before I had
thought in terms of technical standards. This report was written
on its own issues.
Ms Churley:
I understand that.
OK, the Family Responsibility
Office I will leave to my able colleague Shelley Martel, who is
continuing to keep a close watch on that. I would have questions
on it today but I'm sure she will be following up in various
ways.
I thank you very much for
this opportunity.
The Chair:
Because of the fact that we just got the report and we haven't
had the opportunity to discuss it with colleagues or whatever, I
think what the committee will do is keep it on the agenda and
possibly, Mr Lewis, invite you back if there are concerns in the
next short while.
Mr Lewis:
I'm available any time you'd like to speak to me.
Mr Joseph N.
Tascona (Barrie-Simcoe-Bradford): Thanks very much for
attending this afternoon.
Mr Lewis:
It's a pleasure.
Mr
Tascona: I just have a couple of questions to deal
with.
Page 19 of your annual
report deals with written complaints and inquiries by provincial
ridings. I take it these are both written complaints and written
inquiries?
Mr Lewis:
Those are written complaints and written inquiries.
Mr
Tascona: Just looking at the breakdown for each riding,
written complaints and inquiries-I take it there's no breakdown.
You don't provide any breakdown that I can find for each riding,
the particular ministry or the particular type of complaint that
has been received. Do you keep that type of information?
Mr Lewis:
Yes, I think we could probably pull it. I can tell you one thing,
though. The ridings which have an apparently high number of
complaints more often than not include a correctional facility,
because we have a very high number of correctional
complaints.
Mr
Tascona: I'm just curious, because I have a correctional
facility within my riding, Barrie-Simcoe-Bradford.
Mr Lewis:
I know you do. I looked at your numbers.
Mr
Tascona: I'm not sure what the basis is. I think it
would be helpful for a member to know what kind of issues would
be facing them within a particular riding, whether it was one
particular ministry-
Mr Lewis:
You'd like to see a breakdown.
Mr
Tascona: Yes, it would be helpful, because this
information is nice to know, but it's better to know if there's a
particular administrative issue that we may be facing when we're
trying to deal with our riding-obviously subject to whatever
issues are being dealt with. I don't know how you categorize
them.
Mr Lewis:
They're broken down pretty clearly in other parts of the
report-
Mr
Tascona: Pretty well by ministry.
Mr Lewis:
-but you wouldn't be able to tell what was yours.
Mr
Tascona: I like that set-up. If that's something you can
consider providing to the committee or even considering in your
future annual reports-
Mr Lewis:
Would you like that on this year's statistics?
Mr
Tascona: I'd like to have them.
Mr Lewis:
All right, I'll tell you what I'll undertake to do. If they're
pullable, they'll be pulled. I don't know whether it's possible,
but it might well be, because I know they're all there. If you
look at other pages you'll see they're very much broken down by
ministry and even by program.
Mr
Tascona: That would be helpful.
Mr Lewis:
Sure.
Mr
Tascona: The second question I have really deals with
your jurisdiction. We've heard comments with respect to
accountability, in terms of how ministries implement statutes or
a policy with respect to the statutes, and comments regarding
concerns with respect to private operations that are implementing
or providing services that would be within provincial
jurisdiction. I note your comments with respect to Highway
407.
I just want to know how far
that goes with respect to a municipality where they have taken on
providing a service which is within their jurisdiction and
they've decided they're going to deliver that service, for
example, be it water, waste management or other areas that
they're known to deal with the planning and development of. Where
do you get involved if you get a written complaint or inquiry
from a concerned citizen who thinks a municipality is not
implementing something in a particular area in accordance with
what they may believe is the provincial law?
Mr Lewis:
I don't have jurisdiction over them. Some ombudsmen do-British
Columbia does, Manitoba does. I do not, although we frequently
are in the position to alert people coming to us about where they
might go. For instance, the municipalities are creatures of the
provincial government and there are certainly areas where, if
there was a default, the ministries might well be interested in
knowing that. But I don't have a direct ability to deal with it.
I simply don't. They could tell me to go away.
Mr
Tascona: Maybe I could ask research to provide me with
the legislative provisions for-you said Manitoba and British
Columbia?
Mr Lewis:
Manitoba and British Columbia, to my certain knowledge. Manitoba
had Brandon, and Winnipeg was separate. They either had the right
to contract the municipality for an Ombudsman by provincial law
or to use the provincial Ombudsman. The first time out they went
with a private Ombudsman and they apparently had a falling out or
whatever, and they're now in negotiations to go with the provincial Ombudsman. I think
the issue is, as usual, money-you know, "What are my resources to
look after Winnipeg?" But those I know for sure. I can't tell
you. I'm sorry, I don't know.
1620
Mr
Tascona: I'll ask our legislative research to provide us
that information. I'd like to see it. Maybe we could share it
with the committee.
I don't have any further
questions. Thanks for your input.
Mr Brad Clark
(Stoney Creek): Own-motion-as the Ombudsman, you have
the authority to call upon an own-motion and set an investigation
in place.
Mr Lewis:
Yes, sir.
Mr Clark:
One of the issues where you would set an own-motion in place is
if you had concerns about accountability on a particular matter
that's within provincial jurisdiction?
Mr Lewis:
Yes, I might. They would normally arise-not always, but
normally-if I had a lot of complaints. I don't have the resources
to go after the individual complaints as such, but they reveal a
system-wide issue. But I don't have to have complaints to do
it.
Mr Clark:
Would there be an instance where there may not be a number of
complaints but it could be something that is of compelling public
interest in terms of accountability, as was mentioned earlier,
Walkerton, for example? Clearly it could be argued right now that
it's compelling public interest, therefore an issue of
accountability, therefore the Ombudsman could issue an own-motion
for an investigation.
Mr Lewis:
Speaking of course theoretically, I might well take the position,
if I felt that there wasn't other stuff happening, that the
public interest in that case was so great that there was a need,
and I would set off to do it. I'm not given free rein. The
province might say, "No, you're not," and take me to court,
because there's provision in the act for dispute in the
Divisional Court as to whether I do have jurisdiction over
issues. Up until now I think that's operated about three times to
expand the jurisdiction of the Ombudsman, but it could work the
other way. As long as there's somebody personally affected, that
gives me the basis for moving it on my own.
Mr Clark:
So in this case, since there's a compelling public interest and
clearly some people have been affected, if you were of the
opinion that the investigations that were under way were not
going to be addressing the issue of accountability, you would
have had opportunity to issue an own-motion yourself. Is it fair
to state that you're comfortable at the present time with the
inquiries that are underway with Walkerton and that they'll be
addressing accountability based on the terms of reference?
Mr Lewis:
I've read the terms of reference of the judicial inquiry. I have
some confidence in the capacity of that inquiry to attend to the
issues, yes. I'm not able to give an imprimatur. Time will tell.
But it's what caused me, along with the others, to pull up my
reins and not do it.
Mr Clark:
So at the present time you're satisfied that they're going to be
addressing the issue of accountability and if at some time-
Mr Lewis:
I surely hope so.
Mr Clark:
And that's why you didn't issue an own-motion yourself.
Mr Lewis:
I think that's fair.
Mr Joseph Spina
(Brampton Centre): Thank you, Mr Lewis and Ms Ray, for
joining us.
I had a couple of
questions, one of which really springboards from Mr Tascona's
first question on your breakdown by riding. I found a little
ironic your answer that perhaps if you have a correctional
institute, that might inflate the numbers. There's no question
when you break it down by ministry, the correctional institutions
soar far and away.
Mr Lewis:
Right.
Mr Spina:
The first question, really-while I'm on the corrections, let me
ask you this: Do the majority of inquiries, complaints, come from
inmates? Is that generally the source?
Mr Lewis:
Yes, sir.
Mr Spina:
What would be the context-medical treatment, that sort of
thing?
Mr Lewis:
I can tell you that the majority of those complaints, 20% of the
6,636-is that about right?
Interjection: Yes.
Mr Lewis:
Some 20% of the complaints from corrections last year had to do
with access to medical services. That's the number one complaint.
That goes across issues like segregation, where there's an
obligation in policy for an inmate to be seen before being put in
by a medical expert, be it a nurse or a doctor, before entry and
after release.
There are issues of
transfer from one institution to another, and a lot of that that
goes on, especially because there's been a lot of development and
so on, so they're moving prisoners. A person may have been on
medication in one institution but the records haven't gone with
that inmate so he's not getting the medications in the new place.
They can be quite serious. They can be antidepressant
medications; they can be any number of things. They could be
methadone as well. A whole range of things are possible. There
are issues of allegations of people simply not being able to get
access to a doctor or a psychiatrist-that's one of the big
issues-for psychiatric assessment or treatment. I might say that
I understand the medical officer for corrections-the principal
officer, not the local officers-is quite alive to these issues,
quite aware of our concern.
Mr Spina:
I'm presuming there you have communicated back to him or her and
they are now in the process of trying to rectify that
situation.
Mr Lewis:
Yes. I want to be clear and I think I should fairly say this: The
ministry has been quite co-operative with us on this. I'm not
saying every institution, every facility, is. That's not
necessarily the case.
Mr Spina:
You're trying to address it from the top down, essentially.
Mr Lewis: Yes, because they have
the authority to do anything. I don't have any authority.
Mr Spina:
Hopefully, perhaps next year, we might see a reduction in those
numbers.
Mr Lewis:
I don't know. There is probably going to be a reduction in the
facilities. You know that a number of facilities are slated for
closure. I think some 30 are closing. A lot of them are really
ancient.
Mr Spina:
With some of that centralization there will be less movement of
prisoners; who knows?
Mr Lewis:
Yes.
Mr Spina:
We're not asking you to be clairvoyant here.
Mr Lewis:
Yes, but I have some views. I'll wait to see what happens. Why
should I speculate, right?
Mr Spina:
Getting back to the other issue, I would be very interested also
in getting a breakdown of the number of inquiries by riding,
broken down by ministry, in order to determine which are the most
difficult within my riding. I draw the specific example-it's
perhaps easy for Mr Tascona to say, "Well, there's a correctional
institute in Barrie and you've got Barrie-Bradford-
Mr Clark:
Simcoe.
Mr Spina:
Yes, whatever it is. But I look at Brampton, and OCI and Vanier
are over on McLaughlin Road on the west side of town, yet in
Brampton West-Mississauga, exactly where that institution is,
there are 54 complaints. On the east side of town,
Bramalea-Gore-Malton-Springdale, there are 41 complaints. Yet in
Brampton Centre I have 222, by comparison. So you see my point,
sir.
Mr Lewis:
I can see why you're interested.
Mr Spina:
Yes. The inmates are complaining and they're not in my riding.
This is why I'm trying to figure out what the heck is going on
here.
Mr Lewis:
I think that's good. If I were in your position, I'd ask that
question.
Mr Spina:
Anyway, that's why I would appreciate it. There may be other
mitigating factors.
Mr Lewis:
I don't know, sir.
Mr Spina:
No, and I'm not asking-
Mr Lewis:
Maybe they don't like the way you're doing your job.
Mr Spina:
That's why I would appreciate as well a breakdown by
ministry-
Mr Lewis:
I'll really try to do that for you.
Mr Spina:
-because there are some other things that perhaps could be
influencing it. As an example, I know there is a lobby group
called FAD-Families Against Deadbeats-and that group of course is
tied in with speeding up and cleaning up the process through FRO.
Those people were created partly at my instigation and are based
in my riding. So if I knew that some of those complaints had to
do with the family court, FRO, I could understand that-
Mr Lewis:
It would give you some comfort.
Mr Spina:
Yes. Then I know that's understandable. But on the other hand of
course if it's something else-so we would appreciate that. If we
wrote to the Ombudsman's office and requested that, and you were
able to access that-
Mr Lewis:
You've already asked. That's good enough for me. If I can
possibly do it, I'll do it.
Mr Spina:
We appreciate it.
Mr Lewis:
You're very welcome. And if I can't do it immediately, I'll try
to have the system converted so that in future it can be done.
I've probably committed a lot more money than I've got.
1630
The Chair:
It appears, Mr Spina, you haven't been reacting to your
constituents. Should we pursue that point?
Mr Clark:
Can we touch on the Ministry of Health for a moment?
Mr Lewis:
Yes.
Mr Clark:
I just went through a long process of consultations for Brian's
Law, amendments to the Mental Health Act and the Health Care
Consent Act. Through the consultations it was raised that the
Ombudsman doesn't investigate issues regarding mental health, yet
I notice in your report mental health centres, psychiatric
hospitals, psychiatric patient advocates, psychiatric review
boards, and there may be some mixed in, in other areas in
health.
Mr Lewis:
It's quite irregular. I'll give you an example. We used to deal
with the Queen Street Mental Health Centre, because of its
structure and its provincial oversight. We did not do so with the
Clarke Institute. They merged. We lost jurisdiction. It took on
the model of the one that was outside our jurisdiction.
It's like the colleges and
the universities-I think I'm answering this correctly, but you
can help me, Wendy. We have no jurisdiction over universities. We
do over community colleges because of the structure of the
government's role in the appointment of its board. You'll see a
report in here on a hiring process at a community college where
we intervened, and they've made some improvements as a result.
But I couldn't do that at U of T. So there are spotty
areas where I can and cannot intervene. I don't have any
jurisdiction over hospitals, although a lawyer tried to tell me I
did because of a Supreme Court of Canada decision.
Mr Clark:
If there were concerns with regard to systemic difficulties in
mental health for psychiatrists, you could investigate?
Mr Lewis:
For psychiatrists?
Mr Clark:
For psychiatrists, if someone were saying there was inappropriate
use of restraints, as an example.
Mr Lewis:
In a particular institution?
Mr Clark:
In a particular institution or with a particular doctor. How do
you deal with those issues?
Mr Lewis:
Could I have a moment?
The doctors would be
disciplined by the College of Physicians and Surgeons. There is
the Health Professions Board, and we would have jurisdiction over
their stuff, if appeals went to them. But the psychiatric
institutions, where we would normally have had, and still do to
some extent, some jurisdiction, are becoming fewer, so we lose
jurisdiction; it's
eroding. That's really what is happening. Brian's Law is going to
be a matter of interest.
Mr Clark:
With Brian's Law, the treatment will be moved more to the
community, and that seems to be the way it's going in all
jurisdictions. There seems to be divestment from psychiatric
facilities to more community treatment. What role does the
Ombudsman have in that situation?
Mr Lewis:
Very likely none. I used to be a judge in the Criminal Division
from 1979 to 1985.
Mr Clark:
I'd heard that.
Mr Lewis:
That's when the whole idea of starting to move psychiatric
patients out into the community really got rolling, while I was a
judge. I used to sit in bail court from time to time and it was
really something to see, because the police were the ones who
were dealing with those people who had been dealt with
previously, and they were being dealt with now in the criminal
justice system, not necessarily because of severe crimes, but
there they were. There was a divesting. We don't have
jurisdiction in a lot of that stuff.
Mr Clark:
I'm not sure if you know this: When is the last time the
Ombudsman Act itself was reviewed?
Mr Lewis:
Do you mean when it was last amended or looked at?
Mr Clark:
Amended, reviewed, whatever.
Mr Lewis:
There was a review about five years ago. There was an amendment
just recently. I just mentioned that. That's when you reduced the
term from 10 to five years. But a general review took place in
about 1997 or 1996.
The Chair:
It was about four years ago, I believe. I think it was in the
second year of our term. We spent a fair bit of time on it.
Mr Lewis:
I think there was a lot going on at that time, Mr Stewart, and I
don't want to go into it particularly. I wouldn't want to have to
see that review again, but it's up to you, of course.
Mr Clark:
Do you find yourself in a position at any time where you're
commenting as the Ombudsman on the act or the jurisdictions that
are within your-
Mr Lewis:
I commented on it this morning in a way that I probably shouldn't
have. I was talking about the confidentiality provisions, where I
couldn't tell people some things. I might have said, "I'm not
always comfortable with this." My staff, the lawyers, keep
telling me, "You've got to be really careful, Lewis, because you
talk a lot." I understand that the Ontario act has the strongest,
most stringent confidentiality provisions across Canada. There
are things that I said I'd really like to talk about. I don't
want to give away people's names. There's privileged information.
That's why I felt I ought to say something about Walkerton. I
don't want to look as though I don't know about it, for heaven's
sake; of course I do, institutionally. But I also said, "I'm not
asking for the act to be amended," even though I haven't got
entirely comfortable with the strictures within which I work yet.
It's only been four months.
Mr Clark:
You're doing fine so far. Is it possible to get for me, or maybe
even the committee, some references in terms of ombudsmen across
Canada and the jurisdictions that fall under the provincial
Ombudsman, like a chart showing which provinces have
different-
Mr Lewis:
Do you mean the general jurisdiction of each provincial
Ombudsman?
Mr Clark:
Yes.
Mr Lewis:
The question was asked of the research officer, I believe-
Mr Clark:
OK.
Mr Lewis:
-but if I can assist in that in any way, I would be happy to, or
staff would. For some reason I have to be out of here at 4:45. I
think it's the press; I'm not sure.
The Chair:
I'm going to ask you one question which is very short, I'm quite
sure. On the ministry responsible for women's issues you had one
complaint. Because that ministry is now involved with colleges
and universities, if there are additional women's issues,
complaints etc, would they now be included in that? I'm surprised
there has only been one complaint.
Mr Lewis:
These are program areas rather than complaint categories.
The Chair:
Sorry, I shouldn't have used that word.
Mr Lewis:
The program doesn't exist, that's really the problem.
The Chair:
In native affairs, where there were three, do you deal with them
if they relate to Ontario, to the province, and any other ones
you then refer to the federal government?
Mr Lewis:
The federal government, it could well be.
The Chair:
That's how you would do it?
Mr Lewis:
Yes, sir.
The Chair:
Are there any other questions? As I said, we'll keep it on the
agenda because it will give us more time to have a look through
it. Mr Lewis, we may get you back. I do appreciate it. As we had
said before, I hope we can get together again in the fall.
Mr Lewis:
I look forward to it.
The Chair:
Each term, I think it would be very advantageous. Again, we
appreciate you coming. Ms Ray, thank you very much for coming
along as well.
