Assemblée législative de l'Ontario

ANNUAL REPORTS, OMBUDSMAN, 1989-90 AND 1990-91

CONTENTS

Wednesday 27 November 1991

Annual reports, Ombudsman, 1989-90 and 1990-91

STANDING COMMITTEE ON THE OMBUDSMAN

Chair: Morrow, Mark (Wentworth East NDP)

Vice-Chair: Haeck, Christel (St. Catharines-Brock NDP)

Curling, Alvin (Scarborough North L)

Henderson, D. James (Etobicoke-Humber L)

Kormos, Peter (Welland-Thorold NDP)

Mammoliti, George (Yorkview NDP)

Murdoch, Bill (Grey PC)

Scott, lan G. (St George-St David L)

Ward, Margery (Don Mills NDP)

Wessenger, Paul (Simcoe Centre NDP)

Wilson, Gary (Kingston and The Islands NDP)

Witmer, Elizabeth (Waterloo North PC)

Substitutions:

Akande, Zanana L. (St. Andrew-St. Patrick NDP) for Mr G. Wilson

McLean, Allan K. (Simcoe East PC) for Mrs Witmer

Clerk: Carrozza, Franco

Staff: Murray, Paul, Research Officer, Le~islative Research Service

The committee met at 1010 in room 151.

ANNUAL REPORTS, OMBUDSMAN, 1989-90 AND 1990-91

The Chair: This morning we are dealing with the two Ombudsman's reports, those of 1989-90 and 1990-91. Ms Jamieson, the Ombudsman, is here. I would like to turn the floor over to her for some very brief comments, I hope, and then open the floor to the members to ask some questions. Ms Jamieson, please.

Ms Jamieson: Thank you. I am very happy to be able to meet with you, and I hope we will be having these occasions frequently.

As officers of the parliaments and legislatures which they serve, many ombudsmen all over the world depend on a committee such as this to carry their recommendations forward to implementation.

Your committee is unique in many ways. Unlike committees which maintain legislative oversight of specific departments of government, your committee is among those which assist officers of the Legislature -- the Auditor General, the Speaker and so on -- to fulfil their responsibilities. As you know, the legislative mandate which I exercise gives me strong investigative powers, but no powers to ensure that my recommendations are implemented.

When I am unable to obtain the agreement of the head of a governmental organization to act on my recommendations, I have a variety of steps I can take. I may take the matter to a minister; I may take the matter to the Premier. If the matter is still unresolved at that level, I may table a report with the Speaker for consideration of the Legislature.

I am pleased to report to you that in the last fiscal year, it was not necessary for me to ask the intervention of the Legislature regarding any unimplemented recommendations. None the less, I believe the people of Ontario take comfort in knowing this committee exists to provide them with the Legislature's support. I view this occasion, then, as an opportunity for us to pursue the healthy working relationship which the people of Ontario expect.

This is also an opportunity for me to discuss with you two annual reports, which I think you have received copies of over time. I am going to leave it to you to raise questions regarding the first, if you choose to do so, because I think in many respects it has been superseded by the second report.

This second report was tabled with the Speaker last June, and I understand it was referred to this committee. In it, I commented on the changing relationship between government and governed and the importance of the Ombudsman in serving as an early warning system of new public expectations, as well as an alarm system where there are generic problems which seem to run across government operations.

New definitions of administrative fairness are evolving rapidly. New challenges regarding such matters as openness and consultation are coming forward. New issues are emerging -- environmental land use, health priorities, just to name some examples -- and in these circumstances, the work of the Ombudsman offers great potential to assist in maintaining and improving the quality of democracy enjoyed by the people of Ontario.

In my first year, I determined and set out the particular approaches which I intended to take during my mandate. I decided I would be a full-time, hands-on Ombudsman, and I restructured my staff accordingly. I was concerned about access to my services for all Ontarians, especially those least able to defend their interests vis-à-vis government and those most likely to encounter problems. I wanted to make sure my services were user-friendly.

I commissioned a survey to assist me in this regard. I created a community access and intake directorate so focused attention could be given to meeting high standards of service at the front end. I sought to improve liaison with members of the Legislature, and two senior staff members were assigned special responsibilities in this area. They are here with me today. Some of them are well known to you. With me are LaVerne Monette, who is the director of investigations and legal services, and Fiona Crean, the director of community access and intake. I will also take the opportunity to introduce Allan Mills, who is also one of my senior managers, the financial controller. He has been with the Ombudsman's office for some 15 years, I believe, and I am delighted that he is a senior member of my staff.

The staff here who were designated to deal with the Legislature participated in orientation sessions with the personnel who staff members' offices. I also set out to enhance relationships with governmental organizations so I would have their full co-operation in exercising my mandate. I have made my services available in that regard to organizations of government that wanted to bring their procedures and regulations up to the state-of-the-art standards of administrative fairness.

I might say that as a general rule I have been given tremendous assistance and ample co-operation. There are some pockets, yes, but by and large good co-operation. As you might expect, moving into a hands-on operation which meets the standards of the 21st century has meant a degree of stress, strain and tension, not to mention hard work by every level of my staff. The challenges are formidable for this organization. I have no doubt that many a reverie was devoted to thinking about more comfortable and quiet times.

Some people have left; others are accepting the new opportunities to grow professionally and to offer new dimensions of service. I am providing new training opportunities. I have no doubt that we are continuing to develop a staff which would be the pride of any Ombudsman anywhere in the world.

One thing we have had correspondence about has to do with one of the essential ingredients of ombudsmanship the world over, that of confidentiality. For people to come forward to my office without fear, for officials to be forthcoming in their discussions with me, they must have 100% assurance that their dealings with me are completely confidential. Without this assurance, many members of the public will not come forward with their complaints and government agencies will resist disclosing information to the Ombudsman.

Not only is confidentiality a keystone, but in Ontario it is legislated both for me and my staff in very broad and complete terms. The requirement to maintain confidence is so complete that under section 25 of the Ombudsman Act, neither I nor my staff can be called to give evidence in a court hearing. That kind of privileged relationship is, I believe, essential if the Office of the Ombudsman is to have the highest possible credibility with the people of the province. Confidentiality is particularly important because the Ombudsman has extremely broad powers of investigation coupled with an extremely broad mandate.

While I am bound to keep confidences, however, my clients are not. They may say what they wish, and they sometimes do. If I have not supported their complaint in the manner they might wish, I might be called upon to justify my decision, and I do so to the complainants regularly and in a fulsome fashion.

If I were, however, to respond publicly with particulars, this would require me to breach the confidence I am required to keep. That seems to me to be self-defeating, compromising my office to defend my integrity. It is natural that of the 31,000 or so people who approach my office each year for my assistance, there will be a few who are not satisfied with my findings. It is equally natural, I suppose, that when a few write to you to complain, you are really desirous to be helpful. It is a temptation which we have agreed should not be pursued except in a generic sense, and we have had conversations and exchanges in writing on this.

1020

I am pleased that the foundation which we established through correspondence last spring is that I will be forthcoming with you with respect to the practices and procedures I follow, but that you will understand and respect the requirement for me to maintain confidentiality of individual cases. In fact, I welcome and solicit your assistance in making the operations of the Ombudsman of Ontario positively world-class. There is always room for improvement. We are not perfect, and I am ready to receive your suggestions.

Aside from complaints, sometimes there is public comment. You may have seen the media reports regarding an alleged Ombudsman's report dealing with the Ontario Human Rights Commission, or even that the Minister of Citizenship has said that improvements made with respect to the OHRC followed recommendations made by the Ombudsman. The media and the minister are free to make comments, but again, I am not. I have made no comment, nor will I make any comment, even as to whether such a report exists. The Legislature has prescribed in very clear terms in my act the manner in which I am to make my reports, and I am obliged to follow that process.

There is another spin on confidentiality which I feel I really need to bring to your attention today.

Many of you may be aware that I recently appeared before the legislative committee dealing with amendments to the laws on privacy and access to information. Recently, the Information and Privacy Commissioner was asked to determine whether the Ministry of Government Services should be required to disclose a document in its files which it had received from one of my predecessors, a document which my predecessor had relied upon in arriving at some tentative findings. The document had been provided to give the ministry an opportunity to provide its comments. That is part of the usual process before the Ombudsman finalizes his or her findings, conclusions and recommendations.

The documents that were provided contained some particularly sensitive information and the Ombudsman, as a result, expressly reminded the ministry that the documents provided must be kept confidential. Disclosure of that same documentation was sought nine years later by a person who was not a party to the complaint and who had supplied no information to the Ombudsman on the subject. The commissioner released his decision in September ordering the ministry to disclose to the appellant certain portions of the Ombudsman's documentation.

This precedent is troubling to me because it could mean that third parties can obtain information from files of government organizations, information which I am required to maintain in strict confidence. In other words, information which a court cannot ask me to release, even by court order, can now be released through the Freedom of Information and Protection of Privacy Act.

I am seeking judicial review of this decision and I ask the committee to ensure this problem is corrected. I am certain this loophole is simply the result of an oversight, but until this issue is resolved I am in a spot. On the one hand, I am obliged to ensure that information provided to me is kept confidential; on the other hand, I am obliged by a section in my act to provide governmental organizations with certain information so that they can comment on my tentative findings where I think I am going to support a complaint, information which could now be the subject of an order of disclosure to somebody who is not even a party in the investigation.

I am sure you will agree it is pretty unfortunate that an officer of the Legislature should be placed in this position. As a result, I have stopped providing my tentative findings in writing. Instead, meetings are held with appropriate staff in which the tentative findings are presented verbally so the organization has the opportunity to comment, to give me whatever additional information it may have to correct something I may have misunderstood and to put forward their ideas for recommendations they could easily implement.

This is very much work in progress. These presentations are now lengthy. The material is often voluminous, complex and technical. I am very concerned that this necessary compromise in my procedure does not give the governmental organization opportunity to give careful review to my findings, conclusions and recommendations. It is also causing delays and frustration for members of the public.

Obviously it is my hope that this will soon be resolved, so I can go back to the normal fair process. I have talked to many of my colleagues throughout the country and elsewhere about this, and this occurs nowhere else that I am aware of. It is quite unusual and, I think, quite unintended. I would very much appreciate your assistance in encouraging your colleagues to recommend the changes I have brought to their attention and then to encourage the Legislature to amend the law accordingly.

In addition to the FIPPA committee appearance, I have also appeared before committees dealing with rent review, constitutional change and non-adversarial dispute resolution. My statements there are all a matter of public record. I believe they have all come to the Chair. Certainly, the FIPPA one has quite recently. I would be happy to provide additional copies if you wish.

Although it is not often that I consider it necessary to appear before other legislative committees, I will ask to do so -- often they ask me to come -- when it is appropriate. I also appear, as you know, before the Board of Internal Economy on a regular basis.

On the one hand, because I understand the public's expectation that my operations be conducted with efficiency and economy, I conduct myself accordingly. In this respect, the Board of Internal Economy is no problem. I am delighted to talk to them.

On the other hand, last year I had a 24% increase in case load; this was in the last fiscal year. A survey I conducted indicates that many of the persons most likely to need the services of the Ombudsman do not even know I exist. So I know the time is soon coming when I must ask for an increase which is proportionate to appropriate indices. Yes, I am aware, well aware, of the economic climate.

If there is any aspect of either one of my annual reports, any comment on my remarks or any matter you want to talk to me about, I will be glad to respond as best I can. If we do not have enough time to finish today, or if I am unable to provide the detail you would like, I would be happy to return at another time.

I hope we can meet on a more frequent basis so that a good flow of communication can be maintained and so we will have the kind of working relationship which must be present if any Ombudsman, as an officer of the Legislature, is to serve the public in resolving problems and issues with respect to the administration of their government, as is required by my mandate. Thank you. I will leave it there.

1030

The Chair: Thank you very much, Ms Jamieson. First we are going to deal with the 1989-90 annual report. I would like to remind the members to put their questions through the Chair, as I am keeping a list and I do want to keep things orderly.

Mr Wessenger: I have a very general question. I am looking at the more recent report, the 1991, with respect to the disposition of cases. I notice that almost 80% of your cases were referred -- it is on page 43 -- and you dealt with another approximately 7.4% even though they were not within your jurisdiction. Approximately 87% of the cases that came to you were not really within your jurisdiction. To me, that gives an indication that there is a lack of awareness among the public of what the jurisdiction of the Ombudsman is. I think that lack of awareness even extends probably to the legal community. I would like you to comment on that aspect, because I do think there is a problem with respect to the knowledge of the jurisdiction of the Ombudsman. I think there needs to be some sort of communication program to indicate what you really do. I would like you to comment on that.

Ms Jamieson: Delighted. First let me focus on the statistics, just to let you know that this year the total number of people who came to me with complaints and inquiries was 31,036. Last year, it was 26,357, so it is an increase of about 5,000. Of those, 18,463 were complaints having to do with the provincial government. The rest were municipal and federal -- we do not have a federal Ombudsman, and boy, do we need one -- and had to do with courts and private matters. Those we referred, because it is one of my policies that we turn no one away without a referral of some type. Of those 18,463, 6,843 -- the number on page 44, figure 3 under "Total Complaints" -- had some measure of investigation conducted.

The 11,620 figure is people who were either at my door too early or were dealing with one of the provincial organizations over which I do not have jurisdiction; for example, they were complaining about the actions of a children's aid society. If they were too early, we often told them about their other avenues of appeal, because I am not able to entertain their complaint unless they have exhausted all other avenues of appeal. Those are included in the 11,620. We often tell people: "Here are your next stops to go to get your complaint dealt with. If you are still not satisfied, you can come back to us."

Now of those 6,843 where some measure of investigation was conducted, the vast majority of those were resolved. Quite a number of those were resolved by telephone calls, which means that when you look down at figure 4 and you see the number 940 -- which is probably what you have been using for your calculations, Mr Wessenger -- that is a misleading figure. I will tell you why.

Because of the way our system has been set up historically and the restrictions of the act, I could not record telephone calls, even though they were jurisdictional and even though they were resolved with our assistance. The act says "complaints in writing." It is deceiving, because many of those 6,843 were complaints that were within my jurisdiction and were resolved with the assistance of my staff, but they were not in writing.

I am trying to figure out a way to remedy that situation because I think we should keep track of those things. That is a substantial part of our work. I am also looking at where we can think of creative ways to record the complaint in writing. People will call in. Often we will now take the complaint down and send it to them for signature. We are looking at ways of assisting people to get their complaints forward on the record so I can act on them and frankly so my staff can get the credit for them.

You are right, there is a lack of awareness. You are right, it is in the legal community. I have visited every one of the law schools in this last year because I have asked every dean to give me time on his school's agenda. They have been most obliging. You are right, we need a communications strategy. I hope to be able to say something about that in the not-too-distant future.

Mr Wessenger: As far as communication is concerned, I think it would be useful to have a strategy to go out to the local bar associations with some representatives from your office. I think that would be very helpful.

Ms Jamieson: I have asked the Law Society of Upper Canada if it will give me time on the bar admission course agenda. I am trying to find those opportunities. We are also developing public education strategies for each of the districts and Toronto for the first time. Is that not amazing, for the first time?

Mr Curling: Thank you very much. I too want to welcome the Ombudsman for meeting with the committee. We are a pretty anxious group. We are very anxious to fully understand the Ombudsman's role and also the committee's role.

It is evident that the lack of meetings by this committee has been quite pronounced. Over the last year and a half or so we have not been able to meet for various reasons. Some are legitimate. I feel we could be a bit more aggressive in getting meetings going, because if we do not meet, we are not doing our job properly.

I just want to ask initially for some explanation. Could you elaborate on certain aspects of your report? Two reports now come to us, which somehow makes the job a little more difficult or, you could say, easier to be comparative of what is happening over the last two years, maybe going back the last three years or so.

I address my questions and ask for some of your comments on some of the things I might suggest here, especially with regard to the format itself. I found it extremely difficult to read, having looked at the first format and then taking that over to the second format to have a comparison. I found when I went back that I was lost, because the formats are not consistent. Maybe it could be consistent if I had a legal mind, which I do not think I have, in the pattern of my reading. Somehow I found it extremely difficult. Could you comment on why you changed the format from the 1989-90 to the 1990-91?

Ms Jamieson: It was quite a deliberate act. I was quite critical of my own first report. It is not inviting. I do not think it is as easy to understand. It is not accessible. I was determined to do something about that. This is really a first step towards what I hope will be a series of steps this office will take to make my services truly accessible. Yes, you can tell people you are open from 9 to 5, but there is a difference between that and being truly accessible.

1040

We wanted to design something that would be inviting. Mine is a little tattered. This was supposed to be a door. I do not know if it works, but it at least gets people to open the page. It has some pictures for the first time. We experimented with the type to draw the reader in.

Instead of listing departments and numbers as we did in the first report, saying for example, "The Ministry of the Attorney General had X number of complaints," which I thought was punitive and not terribly informative, we instead said, "Gee, I think we should do some analysis of what people are worried about." So this time we list the top 12 areas in which we are getting complaints, from the most common to the least common. The most common one -- they start on page 14 -- is wrong or unreasonable interpretation of information and evidence. The second one is delay, and so on. The last is failure to keep a proper record.

This, I thought, would be more informative, both to government organizations and to the public. It would reflect their areas of concern. We would be doing something I think we are obliged to do and not only resolve complaints and count them, but analyze, do some trend work. It is my intention to continue this.

The statistics also reflect the new approach. We tried to be a little more simplified in our presentation. We can still improve it, but it was all part of an effort to make information about the office informative, useful and accessible.

Again, it is a first step. I would be delighted to hear your reaction. I can tell you that we ordered 7,500 copies and they are gone. I have had to reorder. This was not the case last year. So I take that as a positive sign.

Mr Curling: I gave you my reaction: first, to say it was troubling, I would almost call it confusing, and hard to follow from one to the other.

Ms Jamieson: The second one?

Mr Curling: I was using comparatives. That is what we do with annual reports, to find out what happened when I look at the first one and then look at the second. I find it extremely difficult, quite possibly because of change.

I notice too that you have separated the French version in the 1989-1990 report. You did not mention that at all. There is French and English, or English and French, whatever you say, in the previous one. Now you have done two separate ones. If you want French, you have to ask for it. I thought the trend is that services are offered in this province both in English and in French. Did you find it more economical to separate them?

Ms Jamieson: Copies are readily available in French and English. Yes, we bound them separately for economic reasons. But they are readily available in both languages and indeed, for the first time this year, my report is available on audiotape as well so that others can have access.

Yes, it is probably difficult to do a comparison. If there is a particular area that you are interested in, I can do a comparison. I can give you the comparative results if there is a particular question. But, yes, I am sure it is difficult to compare, because the second report reflects the style of this Ombudsman. It is very different.

Mr Curling: You said it cost much less in the sense that you have separated the English copy and the French copy rather than having the English and the French together. That is the question I was asking. Is it more economical?

Ms Jamieson: Yes. It is my understanding that it is more economical to separate the two. That is why we did it.

Mr Curling: Is it possible that you could at some time give us the cost on that, to say what it would have cost to bind them together rather than having them separate?

Ms Jamieson: Sure.

Mr Curling: I have quite a few questions. I think we will not be able to finish our complete work today, and I know some members want to get on the record some cases they would like to discuss. So what I am going to do is pass now, later on coming back. I gather Mr McLean would like to speak on some matters.

Mr McLean: I am pleased to see you here this morning, Ms Jamieson, and you probably will be aware of the case that I would like to discuss with you. In Ombudsman's report number 11, it says, with respect to a dispute between the Ministry of the Environment --

Ms Jamieson: Which report?

Mr McLean: Number 11, on page 26 of the 1989-90 report. It has to do with the environment and a complaint over a claim of interest. The Ombudsman reports, "The complainant's counsel and counsel for the Ministry of the Environment are presently discussing the former's draft submission to arbitration with a view to reaching agreement on the terms."

I would like an opportunity to review this case, which has been in the works for about 14 years. It is a case that has been before this committee in the past and has been brought to the attention of three ombudsmen. The case involves Simcoe Equipment and Supplies Ltd, which entered into an adjudication under the Public Works Creditors Payment Act to determine what, if any, amount should be paid by the Ministry of the Environment arising out of Simcoe Equipment and Supplies Ltd's claim as an equipment supplier to Aarvi Construction Co Ltd on a construction project.

This project involved Aarvi as a general contractor, the Ministry of the Environment as owner, and Simcoe Equipment as a subcontractor renting equipment to Aarvi. In 1979 and 1982, Mr Morand, the Ombudsman at that time, recommended compensation with interest, and the ministry eventually paid the compensation but was not willing to pay the interest.

The matter of interest was brought before the standing committee on the Ombmudsman, who in 1986 recommended that the parties appoint an independent adjudicator to assist in the matter of whether interest is owed the complainant. The Ombudsman at that time, Dr Hill, believed the parties involved were getting close to the end of the tunnel and that a fair and final determination of this matter was close at hand.

I was extremely concerned about a letter dated March 27, 1991, from you to the solicitor for the complainant. In your letter you state, "given the inordinate amount of time which the parties have allowed to pass since the 1979 recommendation and the fact that the responsibilities within the Ombudsman's legal mandate have been fulfilled, I see no further role to be played by me or my staff in this matter."

I certainly agree that an inordinate amount of time has passed, but it is my understanding that this lengthy delay is clearly the result of stalling tactics employed by the Ministry of the Environment in the hope that all parties would tire of this whole matter and lose interest in seeing this claim resolved.

Mr Jack Alexander, who is here today, has lost both time and money in his pursuit of a fair and equitable settlement of his claim. The Ombudsman washed her hands of this matter just when a resolution of this claim appeared to be in sight. The apparent mismanagement of the Simcoe Equipment and Supplies claim is a sad commentary on a private citizen's uphill climb in attempting to obtain fair and equitable treatment when dealing with government bureaucracy in the province of Ontario.

It is my understanding that one of the responsibilities of the Ombudsman is to investigate administrative decisions and acts of officials of the government of Ontario, including any provincial ministries, boards, commissions or agencies.

The Ombudsman, in other words, is supposed to look out for the interests of the little guy in the province of Ontario. The Ombudsman is not supposed to wash her hands of a matter when we appear to be on the verge of having it satisfactorily resolved. There is too much time, money and effort that has already been expended only to have the Ombudsman, so to speak, walk away from Simcoe Equipment and Supplies in its time of need.

It is my hope that this committee will urge the Ombudsman to reconsider the withdrawal of her office from this matter and get on with the appointment of an independent arbitrator or adjudicator to determine what interest, if any, is owed to Simcoe Equipment and Supplies.

This case, as I say, has gone on for many years. We remember in committee, when Dr Hill was the Ombudsman and Michael Zacks was the legal counsel acting on behalf of Simcoe Equipment, that the Ombudsman recommended very strongly that an adjudicator be appointed and that three were recommended by the legal counsel of the claimant and three by the ministry. I cannot understand why one of those people was not chosen as an arbitrator to settle this claim.

It is not that great an amount of money, but the claimant has spent thousands of dollars on legal fees trying to get this to the proper authority. Now you indicate, in your letter of March 27, 1991, that the responsibilities within the Ombudsman's legal mandate have been fulfilled and that you see no further role for you or your staff in this matter.

Here we have an individual left out to dry who thought the committee recommended, and the Ombudsman recommended, that an arbitrator be appointed to help this individual, who as a result went bankrupt because of it. I just cannot understand why you have washed your hands of it. You indicated in your opening remarks that you give full details of your reasons for not wanting to proceed with a case. I would like to hear them.

1050

Ms Jamieson: You are quite right. I recall the letter, although I do not have it in front of me, and I recall the issue.

You are also quite right in your description of the Ombudsman's mandate: to investigate and to present findings and recommendations. That was done some years ago on this file. I understand there was some settlement forthcoming. I also understand that there is continuing dispute over the matter of interest. Let me be clear that we are not talking about principal. We are talking about interest in this case, and that some years have gone by.

The Ombudsman is fulfilling his or her mandate by presenting a report and recommendations. I have no ability to enforce recommendations. I try to follow up and ask people what is happening when there are undertakings. But I do not have the ability to enforce anything further and there are very good reasons as to why there is that limitation on the Ombudsman's mandate. I happen to support it. I think recommendations are sufficient.

In this case, as I understand it, there were lawyers representing both sides. It was the matter of interest that remained in dispute.

I sense some level of frustration, Mr McLean, and I share it. Why is it taking years to agree on the appointment of an arbitrator? And why is the Ombudsman looked to, to pick an arbitrator? That is not part of my job. Arbitrators are appointed every day. Parties exchange lists and someone mutually acceptable on the lists is selected and charged with the responsibility of rendering a decision. I will sometimes recommend arbitration and have done so in the last year or two on a couple of files, but as for arranging it, appointing it and so on, that is a very different role.

Mr McLean: I do not think you or your office were asked to appoint an arbitrator. I think the Ministry of the Environment and its legal counsel, Mr Jackson, and Mr Koughan, legal counsel for the claimant, were to get together to appoint the arbitrator. I thought that was coming to a close and that they were going to agree on one, and all of a sudden we get a letter from your office saying the case is closed.

Ms Jamieson: That does not mean the parties cannot appoint an arbitrator and proceed. Indeed, they can do it, and I do not know why they have not. I, too, think it is incredible that this period of time is passing and now the dispute becomes interest on interest, because every year that goes by is a dispute on interest.

Mr McLean: Is it not the duty of the Ombudsman, once those two lawyers have been there, to appoint an arbitrator to say: "Let's get on with this. You people, appoint the arbitrator. This case has been on for a long time. I want to proceed"?

Ms Jamieson: That is precisely what I was attempting to do with the letter, saying: "This has gone on long enough. Why not proceed to arbitration?" Frankly, I am very reluctant that my office be looked to when I do not have the power to carry this out. I am willing to take the lumps for what we do and do not do within my mandate; I have a rough time when it is outside my mandate.

Mr McLean: I would have thought legal counsel within your office would have been able to phone those counsels for the other two parties and say: "Have you picked an arbitrator? I want to get on with this case." You have indicated in your letter, "I see no further role to be played by me."

Ms Jamieson: That is right, I did not.

Mr McLean: I do. I do see a role to be played by the Ombudsman to try to make sure this case comes to a conclusion by asking the counsel to make a recommendation of an arbitrator.

Ms Jamieson: Would you then have the Ombudsman see them through drafting terms of reference? Would you then have the Ombudsman follow up with the decision? Would you then have the Ombudsman see to enforcement? The problem I have is that the only thing I have to look at to define the restrictions of my mandate is the act, and believe me, that letter was written after a great deal of discussion, thought and search of every section of that act.

I do want to say one other thing on this. The Ombudsman is able at any time to review complaints about delay. At any time the Ombudsman can entertain a complaint from an individual about delay in government action.

Mr McLean: I would like to get it concluded. Would you look favourably upon a request for the legal counsel of your office to contact the legal counsel of the two parties involved to try to get them to come to a conclusion over an arbitrator?

Ms Jamieson: I do not know what more I can say. I think I have answered that in the letter. If both counsel agree to go to arbitration, they have lawyers representing them and they are both willing, why has it not proceeded? If they are unwilling, I cannot give them the willingness. I do not have the power to enforce going to arbitration. If there is an agreement to go to arbitration and there are counsel involved, why not proceed?

Mr McLean: That is right. But somebody has to ascertain the importance of it and try to ascertain if the procedures that are being followed by the legal counsel are appropriate, because they can go on and on for ever; they have, and that is the unfortunate part. Nobody has said, "Get together and appoint an arbitrator." I do not know who else would do it.

Ms Jamieson: Are you saying the willingness that was there is gone?

Mr McLean: It is pretty hard when you have a lawyer for the Ministry of the Environment who has instructed they do not want to have any part of it. He is only acting in a legal opinion from the MOE. They do not want to pay interest, so he is not going to negotiate. If you have a person who is not willing to negotiate, you cannot come to an agreement.

Ms Jamieson: By the same token, I fail to see how a phone call from my office outside my mandate asking them to get on with it is going to get it dealt with if the willingness is not there.

1100

Mr McLean: I thought the Office of the Ombudsman was to look into any complaint that has been lodged against any board, agency, commission or ministry, and one has. I would have thought it would have been incumbent upon your office to make sure that ministry is fulfilling its mandate by treating this individual who has suffered for many years unduly.

Ms Jamieson: Let me just say this as my last little comment on this file. It is the Ombudsman's job to investigate, present findings and a report. My predecessor did that and presented it to this committee, and the committee supported it. I am not sure if there is something further a committee might consider on this file. At some stage in the job, the Ombudsman's responsibilities are completed, unless it is a different type of complaint.

What I was asked to do last spring was to pick an arbitrator after years of parties doing what looks to me like not a whole lot: nothing. If there was no agreement between them then, how is a call from me going to create an agreement?

Mr McLean: I am not asking for an agreement. What we are looking for is to appoint an arbitrator and let him make the decision.

Ms Jamieson: Then I go back to my letter. It is not something that the Legislature has given me authority to do.

Mr B. Murdoch: The thing I am having a problem with here is that you have closed the case but the case is not closed. That means in all your cases you could be halfway through and if you felt you had done what you can you close out and the people who are involved are sort of left hanging, like in this case. Where do they go from there? What they should do, as I see it, is make another complaint to the Ombudsman that they have not been served properly. Is that what you are telling us?

Ms Jamieson: I am saying, Mr Murdoch, that at any time the Ombudsman can review a complaint on the issue of delay. I am also saying I do not discontinue my involvement in a case lightly.

In this case, my predecessor discharged his responsibilities. He saw it through to the end. This is where the Ombudsman's power is recommendatory only. The Ombudsman says, "I think this is what should happen." If they cannot get agreement from the ministry, they come to this committee and say, "I think that's what should happen; support me," and the committee then supports. At some stage the Ombudsman's responsibilities end and committee and other processes take it up, unless it in some way comes back to the Ombudsman. We often get complaints on a different aspect of an issue. That I am available to do. But after my predecessor has brought it to this committee and the committee has spoken on it, to then take it up again and see it as a personal responsibility to finalize through is not a mandate you have given me.

Mr McLean: The committee has recommended that an arbitrator be appointed, that there be three recommended by each party and that one be picked.

Ms Jamieson: I mean it is not a mandate I have in the act. The committee, I understand, is wholly supportive of arbitration in this case. I understand that. That is quite different from what I am able to do within the confines of my mandate. I would be delighted to follow a lot of these cases up and through. I do not have the power to do it.

The Vice-Chair: As we do have a number of other questions, could we come back to that?

Mr B. Murdoch: I would just like to say that probably most of the reason we are here today is to find out what our role is and what the Ombudsman's role is. This is a good, clear case for us to get into so we find out what our roles are. We are not trying to say you did not do your job; it is just that we do not know. It seems somebody has been left out there hanging. We are trying to find out where we go from here. I do not think anybody is trying to put you on the spot, but where do we go with this thing? If you want to come back to that, it is fine, but I think part of the reason we are here today is to find out what our role is and what your role is and if we can help people like this. This happens to be a good case.

The Vice-Chair: We have other people who are wanting to ask some questions: Mr Morrow, Ms Ward, Mr Curling and Ms Akande.

Mr McLean: Are they on the same issue? I would like to wrap up in a minute.

Ms Akande: My question is not on the specific issue but on the process that relates to the specific issue.

The Vice-Chair: Would you be in agreement to continue, or would you like to have a chance at a question?

Ms Akande: I would like to have a chance at the question that relates to this.

Mr McLean: I will just wrap up then. I would like to know what I should say to this individual now that his case is closed, so to speak, from your point of view. What would be his course of action now to try to claim thousands of dollars he spent, as I have said, to have his legal counsel get this to an arbitrator? The Ministry of the Environment is not seeing fit to co-operate. What does this individual do now? Is the case closed?

Ms Jamieson: The case that was brought to my predecessor, that complaint about the whole issue of the principal and the interest, has been investigated and a report has been prepared. As far as that complaint is concerned, the responsibility has been discharged. As far as any other complaint is concerned, I would have to look at that afresh. What you are seeing is an Ombudsman in an awkward position. I do not go around soliciting complaints. However, I am able to review complaints of delay at any time, but the role that was asked of me last spring I am not able to perform.

Mr Morrow: There are not a lot of times I will congratulate or even agree with a Tory, but Mr McLean, congratulations. You have brought an issue up that I think we should be addressing here about the mandate. In the last round of questioning it came up over and over again.

Referring to the 1989-90 report, as far as the mandate is concerned, you had two challenges to your jurisdiction and they were decided in the Ombudsman's favour. I think the obvious question there -- I could be wrong -- is what is the anticipated impact of these decisions on your workload, and do these decisions confirm your jurisdiction as far as you dealing with cases, and if not, will they change how you deal with cases in the future?

Ms Jamieson: I think both cases were decided within four months of my appointment. The floodgates have not opened in those areas. I think it was a matter of clarifying what the Ombudsman always felt was his jurisdiction and a ministry raising the issue. It has confirmed the ability of my office to do its work.

Mr Morrow: I gather that is a really easy way to answer that. I want to thank you for answering.

Ms M. Ward: My question is more operational, I guess. It is about operations. I want to clarify something first. Figure 3 on page 44, the total inquiries, those are the ones that were not written complaints, so you could only provide information? Is that the correct interpretation of this?

Ms Jamieson: The 11,620 were inquiries that were either not within my jurisdiction -- they might have been about the children's aid society; they were provincial in nature but not under my bailiwick -- or were too early. Maybe it was a call complaining about a decision by the Workers' Compensation Board and we would have said to that individual: "You still have an appeal available to you to the Workers' Compensation Appeals Tribunal. After you've been there, if you still have a complaint come back to us." That is what that category includes, those two types.

Ms M. Ward: You had made a comment, when you were answering Mr Wessenger's questions, I think, about telephone inquiries or complaints. I realize you have to have them in writing. That is what confused me there. Those inquiries would be in there, but they are not split out?

1110

Ms Jamieson: In the complaints column there are 6,843; there was some measure of investigation undertaken on those. The vast majority of those were resolved and many of those were telephone calls. If they are telephone calls and settled by phone, historically we have not counted them.

Ms M. Ward: That is what I was not sure about, what you were saying.

Ms Jamieson: I am looking for a way to count them.

Ms M. Ward: So those would not be included there?

Ms Jamieson: Oh, yes, they are in there. It is when you get to the next figure that you say, "Holy smoke, why does it drop to 940?" That is why.

Ms M. Ward: This is where my main question was. The 940 are the complaints that you did some fair degree of investigation work on.

Ms Jamieson: Well, the 6,843 had some measure as well. The 940 got into the formalized process and had some considerable measure of investigation. The thing I was struck by there is that this Ombudsman puts a lot of emphasis on early resolution. Of all the cases I got, investigated through to the end and made final recommendations on only 1% got to the final end and were resolved. Even those were resolved after the final report. I did not have one file at the end of the year where my recommendations were not implemented, where the government did not agree to implement them.

Ms M. Ward: Do you have an idea what percentage of your effort and resources -- costs, staff and so on -- were expended on those 940 and what percentage would be expended on the almost 30,000 others, if you included everything?

Ms Jamieson: No, I do not. I can tell you that a vast amount of my resources is on salaries and benefits. I can tell you that I am placing increasing emphasis on enhancing the role at the front end. I can tell you that for me the 940 figure is not the test.

Ms M. Ward: Is that a substantial volume of your work?

Ms Jamieson: Oh, yes. They are time-consuming, because when you get into the formal process, you are writing reports, you are meeting. Now we are doing verbal reports and so on, as I mentioned earlier. I am placing, and this Ombudsman is placing, a lot of emphasis on early resolution, even by telephone or otherwise. I am placing less emphasis on formalized -- waiting until things get to the point where you have to do final reports. If we can settle them early with the co-operation of governmental organization, let's do it. I am also putting more emphasis on systemic reviews, on looking at individual complaints, doing some analysis, and where there seems to be a systemic problem, going after that.

I am also looking at ways to use my own motion capability. I can launch an investigation without receiving a complaint from the public or through a member. I can launch my own motion. That has to be done very judiciously, because we are talking about resource implications. There is a lot of potential there. I can see across all departments over 500 agencies, boards and commissions. I can see when something is isolated or widespread. If it is widespread or I think it is, to do an investigation and correct that does a terrific job of preventing the problem for the public, and I am looking at that as well.

Ms M. Ward: Probably what I was getting at is that people may have heard in a lot of fields either the 80-20 rule or the 90-10 rule, where 10% of your cases or whatever you might choose to call them take up 90% of your resources, and an average cost of those, but I think you have given me what you could on that.

Ms Jamieson: I do not have that analysis in my head. I am sorry I cannot be more specific.

Mr Curling: I wanted to go over an overall strategy of our role and I am going to do that, and I want to talk about something specific, but Mr McLean had a case which he brought to your attention. I will focus on that now instead of the two for the time being.

It seems to me you could have a case that reached a stage, you said, as and long as you said to the parties involved, "You should get together and speak or you should have arbitration," and then leave it there to dry, the people who complain to you feel that this case will be followed through, to a point where you then report and say, "I've asked these two to come to arbitration and there's a certain time in which I will watch and see if that arbitration takes place." If it does not, there must be a process where you report and say, "In the last six months, a year, two years, I have asked the arbitration to be set up, and it has not been done." The standing committee would hear that.

We are not speaking about an organization or an association outside the jurisdiction of this Legislature. We are talking about the Ministry of the Environment, which is part of the Legislature, which is part of Parliament, which is part of the standing committee. If you look at it in its sequence, we are the Parliament, we are the supreme power, if you want to put it that way. Then the individual who did appeal to you says, "My case should be redressed," and then is told, "No, I've told these two parties to speak, to get somebody who is neutral to do the job; my hands are washed." On the other hand I just heard you say, "What a challenge I have, to see discrepancies in the system and to investigate them." I feel that is rattling the cages and when the animals start fighting you run away and say, "Well, I just want to tell you that there are discrepancies here, and if you want to fight among yourselves, if you do not want to resolve them" -- the people would say, "Why raise the issue then?"

There are two scenarios I am throwing out. Those who see the injustice come to you because you are the Ombudsman and then expect something to be followed through, and feel that if you are not getting the response you should get that there is a process, because the process is there. It is there for the standing committee to say, "I have done this." I hear you say, "Sometimes I need support, I need you to support my recommendations," but I did not hear that coming through from that case here saying: "I have done this and the standing committee is neglectful. We can call this minister and the ministry. We want the minister to be accountable."

Ms Jamieson: Perhaps I should go at it this way. In many ways, my office is a non-binding arbitrator with investigative powers. I get a complaint. I take a hard look. I am independent. I look at both sides. I come up with a conclusion. That was done by my predecessor in 1980 or whatever it was on this case. The report was put forward to this committee. It is there that the Ombudsman says, "Committee, I need your support because I haven't been able to get these people to listen to me." The committee makes a resolution. It becomes the committee's recommendation as well.

Now in this case, am I being asked to enforce the committee's recommendation? I have a question. What is the committee's role once I have discharged my responsibility and I have said my predecessor says, "Look, I've done the best I can; now I need the political forum to come to bear," and bring it to standing committee? The committee passes a resolution and then what happens? Then we look back at the Ombudsman, who has discharged the responsibility, to enforce the committee recommendation? I do not have that power. I do not have that relationship with this committee.

My predecessor did the job he was asked to do. It is not a matter of washing my hands of it as though it were a deliberate attempt to get out of it, or coming to the committee when I want support, or rattling cages and running away when I get the attention.

One thing you know about me, Mr Curling, is that I am not somebody who runs away when the times get tough. I can get tough too, but I want to make sure I am on firm ground in my mandate.

1120

Mr Curling: I fully appreciate that and you said it very well. You have described yourself very well, how I understand you to be, and I think this Legislature understands you to be that way.

You then say -- and I understand that and I think the committee must take that very seriously -- that your powers are limited in certain respects. It may be necessary for us to change that maybe, to get, if you want to call it that, additional powers in order to advance the cause or to get the matter resolved. That is one aspect of it. Then you may say too, "Even if you even give me the power, we need the funds or resources to go with that." I am hearing that first you do not have that power.

Ms Jamieson: Right.

Mr Curling: If you are given that power, do you have the resources?

Ms Jamieson: At the expense of other -- looking at complaints coming in the door. You said something earlier, Mr Curling, that if I were to come back and complain about a ministry not implementing something after it has been through committee, then I could call the ministry. Does the committee not have the ability to do that on its own initiative once it has passed a resolution? Maybe the Chair can answer. Can you not, at this stage, call back a ministry and enforce your resolution?

The Chair: I will put that to the clerk.

Clerk of the Committee: If I may, it would depend on the resolution set, if the committee had recommended that both the ministry and the individual have arbitrators and proceed to a conclusion. In this case my understanding is that the Ombudsman was asked to provide for an arbitrator if that particular part was not carried.

Ms Jamieson: I do not think so. I beg to differ, but maybe we have a record of it; have we?

I am told the parties were asked to go to arbitration in the resolution, and there was some informal understanding that the Ombudsman may be available to pick, once the parties had a list, and if they could not pick. My understanding is that the parties do not even have an agreed-upon list. I also emphasize that was an informal undertaking and, as I understand, that was not part of the resolution.

So I return to my question. Can you not call the ministry? I do not know how the committee follows up on its recommendations, its resolutions. Maybe you can enlighten me. How do you do that? I know where my limit is but once it gets to you, then what happens? Maybe you can help me on that.

The Chair: I will ask our legal research to answer that. Paul Murray, if you will.

Mr Murray: We do follow up the recommendations we have made. In fact, in this case we did follow this up to find out what the current status was of the arbitration. Our responsibilities are to report eventually on our review of your reports and our other activities. In doing that, we got some of the information in terms of what had gone on in the history of this.

Our understanding of it, in terms of what you have just said, in terms of what the parties agreed to and what the role of the previous Ombudsman had been, is that in January of 1989 the then counsel for the Ombudsman --

Ms Jamieson: Before my time, yes.

Mr Murray: Yes, just before your time, though.

Ms Jamieson: I was appointed in October.

Mr Murray: Of that year. But just in terms of the way we have been discussing this particular case, we have been talking about numbers of years. It is about seven or eight months before you arrived.

In January of 1989, that counsel wrote to the solicitor for the complainant in this case and indicated at that time that the Ombudsman was prepared to play this role in selecting an arbitrator in the event that the parties were not able to agree on an arbitrator. It was on that to which the parties agreed or relied in proceeding. I just wanted to clarify that point. I do not know if you want to respond.

Ms Jamieson: I am sorry, I cannot respond to something that happened before my time and was done on a discretionary basis. As I said, I looked long and hard for the mandate within my act and I do not have it, but I ask again. What I did not hear was the -- perhaps I was not listening as closely as I should. Does committee then have the ability to call ministries before it to see to implementation of their recommendations?

The Chair: I can give you a really short, quick answer. Yes, we do.

Ms Jamieson: I see.

Mr Curling: It is my understanding that is the case. As a matter of fact, it is just like asking a minister in the House questions and if it is not resolved you can keep asking the question. I think the committee has that because we are the Legislature, if you want to call it that. We are the Legislature.

Maybe this is opening up something that may be of help to you in regard to the other ministries. Would you say you get favourable response and co-operation from the ministries? Could you tell me which ministry you would regard as an extremely co-operative ministry? In that sense, if you are struggling to find any one, or maybe you find them all, which one would you consider not co-operative? We see the Minister of the Environment stopping in the middle of things here. We are not quite sure if it is co-operation, stalemate or whatever the case would be, but I wondered if you could tell me which ministry gives you the most difficult time?

Ms Jamieson: Let me answer it this way. When we were writing this report, I thought it would be a dynamite idea to give gold stars to the best and words of encouragement to those who needed words of encouragement. I got into quite a dilemma about the criteria you use. When I ended the year there was not one case that I could not get recommendations agreed upon. By and large I got co-operation from most everyone, at different levels perhaps. In some cases I had to go higher to get co-operation but, nevertheless, I think my office enjoys the co-operation of virtually all ministries.

There are some notable exceptions but here again it depends on what the issue is and on what level you are dealing. Ultimately, I have co-operative relationships so I ended up not doing gold stars because we thought: "Okay, how will we do gold stars; the one we have the least complaints about? The ones who take the least time to resolve? The ones who are more forthcoming, or the ones who come to us before there are problems and ask for our expertise in a particular area? How do you judge? What are the criteria? I am still struggling with that.

Mr Curling: Maybe I can help you here. Let me identify a ministry or an agency: the Ontario Human Rights Commission. You had written to them with regard to some concerns you have. From the committee's point of view it is understood that they did not respond in time. Having not responded in time, you then had to write to the Premier and say: "I have written to this agency or this ministry and have not gotten a response within a certain time. Could you get a response from them?" This is a real case I am sure you are quite aware of.

Would you say this ministry or this agency did co-operate although it was late? Why were they late? Why would you say they took so long to respond to a case? Of course, you said earlier that a report exists. I do not have to deny or accept the fact that it exists, but that is okay. We know it exists because if it did not exist you would not then ask the Premier for some response or process they should follow to clean up some of that really bad backlog there and some of the administrative process they should deal with. Would you regard that agency as a co-operative agency?

1130

Ms Jamieson: I am going to answer this question with the caveat that I have outlined in my opening remarks. I have probably the strictest confidentiality rules out there. I think they are terrific, I am quite comfortable operating within them and they are important. I am therefore not going to respond on the particular that you put, but I will respond in the general sense.

If a ministry or governmental organization is not co-operating, I call it for what it is and I call it to the attention of a deputy. I would call it to the attention of a minister and I would call it to the attention, beyond that, perhaps all the way to this committee if I was not getting co-operation. I do not hesitate to do it where there is a good case to be made. I try every which way to get co-operation and where I do not get it I call it, and I am pretty frank about it.

Mr Curling: But then you ask us to support you.

Ms Jamieson: On what?

Mr Curling: On recommendations or a resolution that you made before.

Ms Jamieson: On the cases I will bring before committee, yes.

Mr Curling: Yes. The best way this committee can support you -- and of course we are quite mindful of the fact of confidentiality. I get that every day, every time I ask for some information for my office. You know the deal where they tell me I should go through the freedom of information. I have a difficult time with some ministries, let me tell you, in getting the information. Sometimes, of course, I would then say, "I will ask the minister in the House," and I get a little quicker response in this.

As you come to us as an agent or officer of the Legislature, and the supreme power of the standing committee, I would tell you that you have my full support to assist you to carry out some of your duties. It is a difficult role. Therefore I would ask of you -- I do not want to say level with us as far as possible, but to give us as much information as possible so we can carry this through.

Of course, I understand the frustration of my colleague Mr McLean about this and I understand your frustration. It seems to me there is a bit of -- not confusion, but somehow that the whole process is not known, that we hear you recommend an arbitration should be done. If we know precisely what is to be done and we are not getting it that way, then this committee can go to the minister and maybe call the minister before the committee and say: "This is what is happening. We want to know why it is not being responded to."

Ms Jamieson: You have asked me to give you as much information as possible. I will endeavour to do that and as I also said in my opening remarks, there is a process I have to follow to do that. I have to do it by report through the Speaker. I am really determined to report as many cases as we can, and my staff behind me will grow weak, but I am looking for ways of doing even more frequent reports. I do not think it is right to save it all up till one report at the end of a year. I would like to do something more frequently and we are looking at how that can be done. I will give you as much information as possible, but I also make this pledge: I respect this committee, and when I come to you with a case I want to be able to say to you, "I have tried; I have hit all the benchmarks trying and I need your help." I want to be able to say that.

Mr Curling: What is the average length of time for a response from the ministry? If you do not have that statistic, maybe it could be brought to us at the next sitting. I would like to know because we get a lot of complaints. When I say "we," members of Parliament would say they feel frustrated with the system.

My real concern with this process is that we have laws that are supposed to serve us all but somehow, in some way, these agencies and ministries do not seem to be able to facilitate that service in a way people feel good about.

We have backlogs everywhere: at the Workers' Compensation Board, the Ontario Municipal Board, the Ontario Human Rights Commission and the courts. As a matter of fact, you know they are throwing cases out. I feel that justice is not being served, it is just completely denied to people who have waited years. You said you have no backlog.

Ms Jamieson: As a matter of fact, I confirm that on a regular basis.

The Chair: Mr Curling, if you would not mind, Ms Akande has a question she would like to place.

Mr Curling: I will step down for Ms Akande.

Ms Jamieson: Do you want me to respond to the question he put about how long it takes for ministries to respond?

The Chair: Please, if you would not mind.

Ms Jamieson: We request responses usually in three weeks for ministries. I cannot tell you what the percentage success rate is, but it is substantial. I will have a look at that, Mr Curling. Where I do not get it, I have signed off letters to ministers and deputies complaining that I have not got it.

Ms Akande: I am sorry to have to leave. First of all, I want to commend you on the new report, because it certainly is much more readable and attractive to those people who need to know most about the services you provide. While the other report is efficient, it certainly would not attract the regular reader and that is what we are trying to do.

There were certainly interesting questions raised by the case there, but I am more interested in the general than the specific. If I can carry Mr Curling's analogy a bit further, I might say to him and to you that we are suffering somewhat by an absence of the distinction of tense in that it was the previous lion tamer who rattled the cage and left it to the current one to respond to the cry of the animals. There is a problem about link and the assumption of responsibility.

There also seems to be some kind of problem about the mandate of this committee and its feelings of comfort in assuming the responsibilities of that mandate. I trust a request to review that mandate and also review the mandate as stated by the Ombudsman would be helpful in recognizing where the responsibilities of the Ombudsman end and ours begin. Within that, I want to refer to this review, this question.

One of the statistics pulled out of your report is: "that in all 35 cases in which the Ombudsman made a formal recommendation to a governmental organization the organization agreed to implement the recommendation. This compares with the previous year when 19 formal recommendations were made and six were denied."

You are saying the statistics are considerably better in terms of governmental organizations responding appropriately to your requests. Would you define for me in a very general way what you would include as governmental organizations?

Ms Jamieson: Yes. In the record last year I did not have one case to list as what we call recommendations denied. They were all accepted and agreed upon for implementation.

Let me also say that if it is a recommendation I have not had to bring to committee, and if government agrees to implement it -- say there is a difficulty with a procedure and I suggest they review it and amend it and they undertake to do that. I do not leave it there. I say, "Okay, terrific, now I want to see it when it is done." I BF it, bring it forward. I follow them and I dog them at that stage. I follow up on those recommendations. That is when I have had a success and the government has agreed it is going to do something. That is a case I have not had to bring to committee.

You asked me about governmental organization. There is a legal case that sets out the test that has to be met by an organization to be a governmental organization. It has to have been appointed principally by order in council. There are three parts to the test. I would be happy to provide that to you. It comprises all ministries, and at last count, 532 agencies, boards, commissions and tribunals in this province, from the Ontario Human Rights Commission to the Ontario Police Commission, the Ontario Labour Relations Board, the Workers' Compensation Appeals Tribunal and the Social Assistance Review Board. I am sure there are many names; there are 532 of them. I am not ashamed to say I continue to discover the breadth of the 532 and to learn a lot about this province as I do. If you would like the specific test that has to be met, I am delighted to provide that to you, but I would like the case in front of me. I would not want to just give you that off the top.

1140

Ms Akande: I would request, through this committee, that I have that specific test.

The other thing that interests me, and this too is pulled out of your report, is the Ombudsman mandate clarification, the second case, where a divisional court decided that the Ombudsman has the authority to investigate the actions of public servants carrying out their duties under the authority of an order in council. In that, the minister is the person responsible for the conduct of the ministry. How is that separated? How are the minister's actions in relation to that public servant separated, given that the public servant could be a deputy minister? Or are they?

Ms Jamieson: I can review the actions or inactions of government administration at all levels up to the cabinet door. What goes on in the cabinet I am expressly prohibited from reviewing. When the cabinet door opens again and a decision comes out, I then can review the implementation. So up to the cabinet door and coming out of the door, yes, but in the room, no. As for ministers, in terms of inappropriate decision-making, the inadequacy or alleged inadequacy of advice presented, for example, by a deputy to a minister, allegations of bias, I can look at those kinds of things. We are talking hypothetically. It goes right up to the cabinet door.

Ms Akande: Who assumes the responsibility in the event that you find the actions are in error?

Ms Jamieson: Hypothetically speaking, if a deputy or a minister were involved, whom would I make the report to?

Ms Akande: Yes.

Ms Jamieson: If it is a deputy, it is easy. If it is the minister, I guess there is only one place to go.

The Chair: Just before we move on to the next questioner, I have a clarification on something Mr Curling was dealing with. The previous Ombudsman supported the notion of electing one of the six nominees as the arbitrator, and you have chosen not to do that. I guess what I am asking is, is continuity from one Ombudsman to the other not of vital importance?

Ms Jamieson: Absolutely. Appropriate discharge of the mandate, consistent action within the terms of the act is a hallmark of this office.

The Chair: Okay, so now where the previous Ombudsman voices concerns to elect one of the six nominees to help in this case, you have overturned that. I guess that is a problem I am having, because the continuity is important, then all of a sudden it is not happening.

Ms Jamieson: What you are referring to -- with respect -- is what I gather was an informal offer delivered on a discretionary basis. I am not in a position to criticize; indeed I have never exercised any of my predecessor's discretion. It is for me to exercise my discretion when I am sitting in the chair, and I look to the four corners of the act. The resolution itself, if I can remind you, does not refer to my office specifically. As I understand it, there was an informal offer.

Mr Curling: A point of procedure: I just wondered if the staff could come and sit with the Ombudsman. If that could be done, there is no problem with that.

The Chair: That is up to the Ombudsman.

Mr Curling: I just thought maybe the recommendation or the suggestion should be made.

The Chair: The offer is open.

Mr McLean: I have a supplementary, Mr Chairman, on the very question you have asked.

There is a paragraph in a letter from the Ombudsman to Mr Khougan, who is the solicitor for Simcoe Equipment and Supplies Ltd: "This is to confirm my recent telephone conversations with your secretary regarding the above."

Ms Jamieson: What is the date of this, Mr McLean?

Mr McLean: December 17, 1990.

Mr McLean: "The purpose of my call was to acknowledge receipt of your letter of November 1" -- which was sent to your office -- "to ask for clarification as to the name of your client (our material having been filed under a different name), and most importantly to inquire about the 60-day time limit contained in paragraph 4 of the submission for arbitration attached to your letter. The paragraph states that the Ombudsman may select an arbitrator within 60 days of being required to do so.

"Mr J. Jackson, solicitor for the the Ministry of the Environment, has advised me that this time limitation is not rigid."

The correspondence from you that I have reviewed here indicates that six people were chosen, three by each side, and the Ombudsman was to make a recommendation.

Ms Jamieson: I do not have the letter that you are referring to. Is that signed by me?

Mr McLean: No, it is signed by counsel Barbara Casson-Robin.

Ms Jamieson: I do not have that letter in front of me; it seems to refer to an agreement that was made between the parties, which I am not a party to.

Mr McLean: I have a letter here, Mr Chairman, from Mr Khoorshed, legal counsel for the MOE.

"Susan Ficek of our ministry has written to you on September 4, 1990, in particular, suggesting that you advise the Ombudsman arrange to have an arbitrator appointed."

Ms Jamieson: I understand that the parties were anxious for the Ombudsman to be involved. I do not think that is in dispute. The problem is, where is the responsibility? It is my view that the responsibility of my office in this matter was discharged when the report was provided to this committee, your predecessors, by my predecessor.

I come back to the fact that the parties can go to arbitration tomorrow if they so wish. There is no magic in the Ombudsman and there is no power in the Ombudsman to affect the arbitration. I come back to my question of the committee's role in seeing to the implementation of its recommendation and its resolution.

The Chair: Thank you very much, Mr McLean. Mr Mammoliti.

1150

Mr Mammoliti: First of all, I would like to apologize for walking in a little late. I was tied up in my riding. Something came up, and I kicked myself because I wanted to be here for 10 o'clock.

There are only a couple of questions I wish to ask you. The first one is, I understand that you had initiated some changes in your office. Were the changes for the better in terms of efficiency? Is the staff happy? I mean all staff, from the bottom up. Before I ask anything else, maybe you could just answer those two.

Ms Jamieson: I am delighted to have the question and I too am sorry you missed the first few minutes, because I did speak about the changes. I might ask you when you have a moment in your busy schedule to have a look at my comments.

Yes, there were some changes made. Yes, there is a different approach in the office. Yes, this office is, as I am sure all of you are, under significant positive pressure by the changes that are going on out there around us.

There is a big gap these days between the public expectation and what they feel is being delivered. I have had a hard look at my organization and what we need to do to lessen that gap in so far as my office is concerned.

Yes, there have been some changes. Yes, there has been some reorganization. One of the things I did is a wholesale review of all the salary levels. We had a job evaluation done throughout the office. I have done some of those tests which involve the entire office.

Are staff happy? I think it would be an overstatement to say that staff are delighted. I think that would be true of anywhere. Do we have our growing pains? Absolutely. Do I have ways of dealing with staff unhappiness? Absolutely.

One of the things my predecessor left me with, which I am very grateful for, is a formalized grievance process so that staff can raise their concerns and have them dealt with.

Mr Mammoliti: Is that grievance process working?

Ms Jamieson: As far as I am aware, it is working, yes. Is there something specific you are concerned about?

Mr Mammoliti: No, I am just asking you some questions. If there was something specific, I would tell you. I am just asking you some questions.

In terms of consultation, was there any consultation with staff before you did these changes?

Ms Jamieson: One of the things I did when I first came in was to sit down and meet every manager in my organization for an hour to an hour and half and ask them what they thought needed to be done, what were their ideas.

One of the things that came out of that was they felt very strongly that there was a need for a mission, a goal, a statement to be articulated. I then set about meeting with every member of the staff in groups. The product of it is in this report. It is a mission statement which sets out the agenda for this organization. It is an ideal. We are not there yet. It is going to take some more work to get there. All staff had ample opportunity to have input.

One of the things I am very conscious of is that you cannot go about criticizing others if you do not look in your own backyard. We are not a perfect organization. I look in my backyard every day and I am not always happy with what I see, but we are trying.

Mr Mammoliti: The other question, very quickly because I do not have much time, is something frankly that I am a little concerned about. I sit on the subcommittee which sits periodically, along with the Chair. Recently we had asked the Chair to write you a letter and asking you to explain some specifics of particular cases to us. You may remember that letter.

Ms Jamieson: I do.

Mr Mammoliti: When we got the letter back, I was a little disappointed in seeing that it was somewhat general. It did not get to the specifics. Why was it not specific?

Ms Jamieson: I tried to deal with some of these issues in a brief opening statement I made. Last spring, some of you will recall, we had a very useful discussion on the relationship between committee and Ombudsman, specific to particular cases. We established an understanding, which is in writing. I am well aware of and welcome the committee's role as set out in the act in setting guidelines and making rules, as it sees fit, to guide the Ombudsman's discharge of the responsibilities.

Where complaints that come to you from people who are obviously dissatisfied with my activities will assist you in that role, that is terrific. I am delighted to discuss with you my processes, how I handle complaints, how I investigate. I have been doing that in responding to the letters. But when it comes to the specific case, I am not able, because of the provisions of the act, to discuss the particulars. The rules of confidentiality are very stringent. If I were to do so I would be breaching the act to justify the credibility of my office, which does not quite make sense.

That is why I said yes, here are my processes. On the particular areas or questions you are concerned about, I will be more than forthcoming, but when it crosses into the area of a particular case, the committee has been very clear over the years in saying it will not be a court of appeal on the Ombudsman. I respect that.

Mr Mammoliti: I am not too sure I agree with that.

The Chair: Mr Mammoliti, can I ask for a clarification from the Ombudsman just for a second. You referred to a written letter of understanding we have. Can you please clarify that?

Ms Jamieson: There were two exchanges that were in writing which I can get; I did not bring with me. I gave a written statement of my understanding, the committee also responded in writing and I responded again in writing. I cannot give you the dates off the top of my head, but those are on all our records. Then we had an excellent discussion where the committee was kind enough to come to my office and we met in the boardroom.

Mr Curling: Mr Chairman, it is 12 o'clock.

The Chair: It is getting very close to 12 o'clock. Mr Mammoliti, could you please wrap up very quickly.

Mr Mammoliti: I think most of the committee members would agree to extend it perhaps five minutes. These questions are important to me and I do not know when I am going to get the opportunity to ask the Ombudsman any more questions.

The Chair: I can probably solve that at this point by asking the Ombudsman to come back next Wednesday morning at the same time. There are a lot of questions we would like to continue asking you. As Mr Mammoliti pointed out, he has some very important questions, and we feel it is very important that you appear here before us.

Ms Jamieson: As do I. I am delighted to come back and I think that is not a problem for next Wednesday. I have looked behind me and it looks like whatever we have we can deal with, and I would be delighted to be here next Wednesday morning.

Mr Mammoliti: I am not sure I agree with that wholeheartedly. I came into this job fresh. I came into this job trying to relay the concerns of the public, and I am not sure that the public does not want this committee to have a bigger role. It is important to me to know where you stand as the Ombudsman and where you think our role stops. You have been pretty clear. I think you will agree that you are not prepared to give us specifics on cases; you can answer them generally, but it is not your role to be specific with this committee. Am I right?

1200

Ms Jamieson: If I bring to you a case that we have not been able to solve, then absolutely I will give every specific because you will require it to decide on the measure of support.

Mr Mammoliti: But in terms of the ones you have resolved and made a decision on, and if we are asking you questions?

Ms Jamieson: About on what basis I made my decision?

Mr Mammoliti: On any basis. You said earlier you wanted our support on your decisions. This is important to me. If I am to give somebody some support, I am going to need the specifics of the case and not a generalization.

Ms Jamieson: I am not sure whether next Wednesday is the time, but this might be helpful. One of the things we did when we were in the boardroom is we went through the process from beginning to end, what happens when there is a case not supported by the Ombudsman and what happens when there is a case supported by the Ombudsman, and how does the committee relate to that process. We went through that. That might be helpful, because that is what I would go through to explain it.

Mr Mammoliti: I want to go one step further. If we are going to work together in the future hand in hand, I would suggest that maybe next Wednesday we can talk about the role and we can talk a little bit about our own opinions as well as to where we want to see the committee going and whether the Ombudsman agrees. If she does not, then we are going to have to talk about the process and where we want it to go in the future perhaps. That is something I would suggest.

The Chair: That is very fine, Mr Mammoliti. Is that the end of your questioning?

Mr Mammoliti: Yes, providing you agree.

The Chair: I do not have a problem with that. That is up to the members.

Mr Curling: I want to tell the Ombudsman that next week I will be asking her about staffing and resources, the French-language services and also the native programs and other extended programs. I wanted to say that so we are all prepared.

Ms Jamieson: I appreciate that.

Mr Curling: We can then address my questions and your responses.

Mr McLean: On just a short point of order, Mr Chair: I have copies of some of the Hansards and correspondence I have been referring to today. I would like to give you copies of it and perhaps next week you may be able to have your staff review it and give me a short résumé of what your opinion is.

Ms Jamieson: I am delighted for the notice, Mr Curling. I will be as prepared as I can on those subjects. I recall our discussion on relationships and roles last spring. If you want to have another frank discussion about it, I am delighted to do that again. I see some new faces on committee, and if that is the wish of the Chair I am delighted.

The Chair: Before we close, Ms Jamieson, there are two things I would ask. Mr Mammoliti talked about a grievance procedure. Could we possibly see your grievance procedure? Also, you talked about a letter of understanding between this committee and yourself. Could you possibly bring that next week?

Ms Jamieson: I talked about an exchange of correspondence and my own statement. Does the clerk not have that?

Clerk of the Committee: Yes, we have that, but you mentioned a letter of understanding. We have the correspondence.

The Chair: You mentioned a written letter of understanding. We do have the correspondence, but we do not have that letter.

Ms Jamieson: Is there some concern that it does not exist?

The Chair: No, not at all.

Ms Jamieson: I am sure it is in the record.

The Chair: Can I ask legal counsel to speak on that?

Mr Murray: Our question is not that we do not have the documentation -- I am sure we do -- but that since you were not able to refer to the dates in the specific correspondence you were referring to, if you could specifically refer to those dates we can look through our correspondence and obtain them and take a look at them. We just were not clear in terms of what you were referring to.

Mr Mammoliti: In terms of the grievance procedure -- it is an excellent recommendation, by the way -- I would like, if possible, for the Ombudsman to be as specific as possible. I realize it is probably confidential, but it would be nice to know the statistics in terms of the grievance procedure perhaps over the last year, how many grievances have been settled and how so.

Ms Jamieson: I am a little confused. I am a pretty frank person. I am interested in talking to the committee and so on, but I would like to understand the areas of concern so that I am best able to respond to them. You are right, there are many things in my office that are confidential, and it would be at my discretion to make a decision on the sharing of such information. In order to exercise that discretion, I need to understand why.

Mr Mammoliti: I have always been an advocate of a grievance procedure. Perhaps you know I come from the labour movement. I believe, personally, there should be as many grievance procedures as -- I see my colleague laughing across the room. I believe there should be a mechanism in place whereby staff could get their differences resolved, and this is an excellent way of doing it. If it is working in your particular area, it would certainly make for a project for the rest of the ministries or agencies that do not have one in place.

In terms of understanding how it is working, I would like to know how efficient and how effective it is. We are not asking for names, we are not asking for dates; we are not asking for any of that stuff. We are just asking for the particulars, not specifics, in terms of the statistics: how many, how effective it has been, how many have been resolved, the decision itself, if possible, in terms of a negative or a positive one and that sort of thing. That is something I would like next week as well, if possible.

Ms Jamieson: I will certainly take that into consideration when I come back next week. I will be prepared to speak to your request at that stage. I would like to have a really good look at it. I appreciate your comments.

The Chair: Thank you very much, Ms Jamieson. Seeing that it is past 12 o'clock, I will adjourn and ask that we reconvene next Wednesday morning at 10 o'clock in the same room.

The meeting adjourned at 1207.