Assemblée législative de l'Ontario

REVIEW OF THE OFFICE OF THE OMBUDSMAN

DONALD R. MORAND

CONTENTS

Wednesday 19 August 1992

Review of the Office of the Ombudsman

Donald Morand

STANDING COMMITTEE ON THE OMBUDSMAN

*Chair / Président: Morrow, Mark (Wentworth East/-Est ND)

*Vice-Chair / Vice-Présidente: Haeck, Christel (St Catharines-Brock ND)

Akande, Zanana L. (St Andrew-St Patrick ND)

Drainville, Dennis (Victoria-Haliburton ND)

*Duignan, Noel (Halton North/-Nord ND)

Henderson, D. James (Etobicoke-Humber L)

*Johnson, Paul R. (Prince Edward-Lennox-South Hastings/Prince Edward-Lennox-Hastings-Sud ND)

Miclash, Frank (Kenora L)

Murdoch, Bill (Grey PC)

*Perruzza, Anthony (Downsview ND)

*Ramsay, David (Timiskaming L)

Witmer, Elizabeth (Waterloo North/-Nord PC)

Substitutions / Membres remplaçants:

*Callahan, Robert V. (Brampton South/-Sud L) for Mr Henderson

*Coppen, Shirley, (Niagara South/-Sud ND) for Mr Perruzza

*Jackson, Cameron (Burlington South/-Sud PC) for Mr Murdoch

*Mammoliti, George (Yorkview ND) for Mr Drainville

*Owens, Stephen (Scarborough Centre ND) for Ms Akande

*Wilson, Jim (Simcoe West/-Ouest PC) for Mrs Witmer

*In attendance / présents:

Clerk / Greffier: Carrozza, Franco

Staff / Personnel: Murray, Paul, committee counsel and research officer, Legislative Research Service

The committee met at 1409 in room 151.

REVIEW OF THE OFFICE OF THE OMBUDSMAN

The Chair (Mr Mark Morrow): I'd like to call this committee to order. For the viewing audience, I'm Mark Morrow. I'm the chairman of the standing committee on the Ombudsman.

DONALD R. MORAND

The Chair: We're here this afternoon reviewing the Ombudsman and before us this afternoon we have the Honourable Donald R. Morand. You have an open afternoon to make a presentation, sir. Although I've already read your name, could you please read it into the record and begin when you feel comfortable?

Hon Donald Morand: Thank you very much, Mr Chairman. First of all, my name is Donald Morand. I have had some experience. I was nearly five years as Ombudsman of the province of Ontario. I had some 20 years on the bench before that.

When I first received the invitation to come here, my initial reaction was to refuse. Mr Carrozza called me up and explained to me that this was a hearing as a result of a motion put to the Legislature and granted by the Legislature setting out the different scopes under which the hearing was to be held. In view of that, I felt I had a duty to come and express to the committee my views on the Office of the Ombudsman.

Having spent some approximately five years doing the actual work, I have some firsthand knowledge of the Office of the Ombudsman and some firsthand knowledge of the difficulties of being an Ombudsman, as well as certain rather strong views as to how the office should be run and what the powers of the Ombudsman should be.

If you look back at the history of the population, the citizens of the community, dealing with their government and dealing with the employees of the government, for many, many years, you, the members, acted as ombudsmen. You got complaints from your constituents, saw the different boards, saw the different offices and attempted to arrive at a satisfactory solution to the problem of your constituent. You were handicapped in many ways in doing that because you didn't have sufficient powers.

In Ontario, it was decided that the ancient system of Ombudsman was a way to get around this and to give to that committee certain powers which you, the individual members, didn't have. In order to do that, a very thorough study was made across the world of the office of the Ombudsman. It's interesting to note that the office of the Ombudsman was first started not to inquire into complaints of the people as to their individual cases, but complaints of the citizens as to corruption in the force, the employees, of, at that time, the King, who was an absentee King. He got complaints of corruption among his employees who were working for him and controlling the government. He appointed an Ombudsman to inquire into that corruption.

The system worked and it grew and it eventually came to the western world -- it started in Europe -- particularly in Australia. In Australia, they developed a slightly different version of the office of the Ombudsman. The idea was that there would be an individual investigation of each complaint. Now, that's different from the mainly European system. To do that, certain things necessarily followed. There had to be legislative ability to do the job.

In Ontario, hearings were held and a committee was formed. They actually circled the world looking at different places. They drew up an act which they hoped would solve the problem and give the Ombudsman sufficient powers to do his job and give sufficient protection to the employees of the province -- the boards, the agencies -- so that they could get a fair hearing as to their answer, because it was intended, and is still intended, and the act says so, that the Ombudsman is a last resort. In other words, you only come to the Ombudsman when you've exhausted your other recourses. In other words, you've lost your case, you've been held not to have a good complaint against the government and there's one last hope, this person called the Ombudsman, who may decide that you have been improperly dealt with.

That person was intended originally to be absolutely independent, certainly not to be under the control of the Legislature nor under the control of particular parties. He is responsible to the Legislature, yes, but he applied his brand or her brand of justice to the cases that came before him.

When the act started in Ontario, Arthur Maloney was the first Ombudsman. He was snowed under by complaints. He had three major complaints right off the bat involving Pickering airport and a number of others, and the office got snowed under. He was starting from scratch. He was hiring employees who knew nothing about this.

He asked and received the assistance of the Legislature in the forming of a select committee. The select committee was intended to help the Ombudsman do his job.

In the course of what I'm going to have to say, I don't want anybody to take it wrong, that I'm complaining. I'm telling you what developed and where I think what developed was wrong.

I think, first of all, too much jurisdiction was given to the Ombudsman. The present Ombudsman isn't going to like me for that, and probably many of the employees aren't going to like me, but I think the Ombudsman is spreading itself too thin.

Secondly, I think that as a result of the select committee being appointed -- the members, being who they are, naturally are ombudsmen in their own right and in their own thought. They forgot that they were not the Ombudsman. The select committee helped and intended to help the Ombudsman, but as time grew, there began to be a conflict between the select committee and the Ombudsman, Mr Maloney at the time. It ended up in a fight and Mr Maloney left.

I was appointed and came on the job with insufficient knowledge of the Ombudsman, and I had to learn. It took me a good year to learn the job. Before my term was over, I found myself in conflict with the select committee, which had become a standing committee. I can understand members of the Legislature, because by the very nature of the office to which they were elected and because these people are their constituents, they naturally want to get into the fray. But in my view, the purpose of a standing committee as well as a select committee is to help the Ombudsman when the Ombudsman has asked for help, not to supervise the Ombudsman.

I only had one day to prepare for what I was going to say here today and to read certain material, the material which was sent to me. I also got a copy of the report of the existing Ombudsman and have had an opportunity to read that. But that's the only material I've had and the only opportunity I've had to review this material.

I submit it is vital that the Ombudsman, if there is going to be an Ombudsman at all, must be completely independent. When I was here, there were questions on money matters put to me by the standing committee at that time, and I refused to answer. I notice once again the question is raised of whether this committee should ask about money matters. I don't believe there is a standing committee dealing with the auditor, but I can't imagine anybody telling the auditor, "Go back and do another audit." I can't understand anybody except the Legislature itself, by motion, interfering with an audit, and yet, ladies and gentlemen, that's what you're doing.

I read the report you have. I just opened it to different pages. I was reading it rather quickly and I came to certain things. There were resolutions by this committee that the Ombudsman interview people to consider re-examining a case and so forth.

The Ombudsman must be the final arbitrator or why have an Ombudsman? I submit to you, gentlemen and ladies, that it is not this committee's decision, duty or responsibility to inquire how the Ombudsman does his job or what decisions he comes to. Now, I know you say, and I've read it in the material, "We don't want to tell the Ombudsman how to do his job." But in effect you are I notice, once again, that the question came up of whether you should review the financial affairs of the Ombudsman. The Ombudsman gets his money through -- I've forgotten the name of it now, but it's a committee of all members of the House. He gets his budget, it's gone over, he's audited by the auditor and I believe he still goes before the public accounts committee. Why does the Ombudsman need to have another committee examining his or her expenses?

There is an old saying, "He who pays the piper calls the tune." This committee, if it has the power to control the expenses of the Ombudsman, has the power to call the tune of the Ombudsman. That's directly contrary to what was intended when the legislation was passed.

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One of the things that always bothered me as Ombudsman was the question of justice. Justice is what we all say we want. I found most people didn't want justice; they wanted mercy -- myself included. Most of the people who come to the Ombudsman want mercy. They don't want justice.

The Ombudsman has to administer justice as he or she sees it. Ombudsmen come in all kinds, shapes and descriptions and from all over the world. There are Muslims, there are blacks, there are whites, there are all kinds of them, but basically the justice that is administered by the Ombudsman is the commonsense, ordinary, everyday justice. But he must or she must give the justice that he or she thinks is right. That's why they were appointed.

Since the person who comes to the Ombudsman has already lost his case, he is functus, there's nowhere he can go. They're finished. They now go to the Ombudsman and, as I submit to you, the Ombudsman's job then is to look and say: "Did this person get a fair deal, as I see it? Not as anybody else sees it, but as I see it." He then or she then decides yes or no.

If she says or he says no, it's my submission that's the end of the case. The case was already lost before it came to the Ombudsman. The Ombudsman has looked at it, investigated it and said: "No, I don't think you got a bad deal. I don't think there's anything that should be done for this." Finished, end.

Because of the way society has grown today and because of the views of the people, they always say, "There's another level that I can complain to." Let me give you an example. A man didn't get a job that he felt he should get; somebody else got the promotion. He went to his boss and the boss said, "No, he is entitled to it." He then went to his boss's boss who said, "No, the right man got it." He then grieved to his union and the union said, "No, the right man got the promotion." He raised so much Cain that he got a hearing at the international level and he lost that. He then complained to the Human Rights Commission that he didn't get a fair deal because he wasn't white and the person who got the promotion was white.

After a two-and-a-half year hearing, it was decided, no, the right man got the promotion. He didn't have any legitimate complaint. Race didn't enter into it. He then came to me and complained that he didn't get a fair hearing before the Human Rights Commission. I examined it and found that, in my view, he got a perfectly good hearing. He got a far longer and better hearing than he was entitled to. He wasn't happy with that so he complained to the select committee that I didn't do my job properly. The select committee found, yes, I had done my job properly. So then he started writing letters to the media, to the Premier, to the Prime Minister and to everybody else.

I tell that story to point out that people get the fixed feeling in many cases, "I've been badly done to." It doesn't matter who tells them differently, they're never going to change their minds and they're always going to feel they were badly done to. That is why it is my submission to you, as members of the select committee, a standing committee now, that you should not be interested in complaints about how the Ombudsman does his job. I submit it's not your place.

The Ombudsman is supposed to be the court of last resort. If you listen to complaints and call the Ombudsman in and say, "Why didn't you do this or do that or reinvestigate or something," then why have an Ombudsman? Why not just hire an employee of this committee and have that employee do what it wants him to?

I could go on, gentlemen, for hours. I don't want to outstay my time. I'm certainly available for any kinds of questions you want to give me. I'll do my best to answer them.

The Chair: Thank you very much, Mr Morand.

Hon Mr Morand: Don't hesitate. You can't hurt my feelings. They've been hurt by experts.

The Chair: Comments or questions? Mr Owens, please.

Mr Stephen Owens (Scarborough Centre): I'd like to begin, sir, by thanking you for appearing today. Your sage counsel is always welcome at this place. I would also request, if you have the time and are so moved to put more thought into some of the questions that have been asked of you in this process, if you could send us a letter on some of the things you may not have had time to take up.

Hon Mr Morand: I can run over them right now if you wish.

Has the need for an Ombudsman changed since its creation in Ontario? Yes, of course it has. The need for an Ombudsman for every office always changes. You have far fewer meaty complaints today than there were when I first came in. When I took the office, there were 2,800 open files plus three major investigations going on. Some of them hadn't been looked at for two or three years. They would come to the office and they were sitting in a file.

It took me nearly five years and I got that down to 800 files, and I understand it has remained pretty much at 800 files ever since. But we got rid of practically all the old files. I must say that the people in my office worked many long hours of overtime getting these done. We got rid of the big files.

But there will be changes. Today there are jobs being done by the Ombudsman which I think are redundant. The Legislature, over a period of time, has instituted review processes. In just about every area there is now a review process which persons who are aggrieved can go to and have a hearing, a review, to see whether they are entitled to some relief. If they've been turned down, then they go to the Ombudsman.

Because of that, I think the citizens should not automatically have a right to go to the Ombudsman. There's a right of appeal for the quasi-judicial boards. You hire experts to run the quasi-judicial boards. You can't expect an Ombudsman employee to be an expert in every field that comes along. I had experts in pensions. I had different experts with expertise, but you can't have expertise in everything that goes on.

The Legislature hires boards with people with specific expertise. We would not overturn a board's decision because we didn't like the decision. I think that's very important with the Ombudsman: It doesn't matter whether you agree with a quasi-judicial board or not because, again, whose justice are you administering, the board's justice or your justice? Is the Ombudsman substituting his opinion for every other expert's in the whole province?

But I think there must still be a power to go, because in every case people can fall through the cracks. There is in every administrative procedure an opportunity for people to get caught between two conflicting regulations and it happens. It happened when I was there and I'm sure it's happening today. I'm sure the Ombudsman today is running into these things and correcting them.

It's an unfortunate fact that only those people who aren't happy with your decision do anything further. They complain. Those people who are happy with your decision never stop -- well, I shouldn't say "never" -- but you might get 10 letters of thanks over the course of the year if you've ruled in favour of two or three hundred; 10 might take the time to thank you.

But, yes, there is a change, and as the administration of government changes you'll keep on changing. So there is a necessity to review, in my opinion, the powers of the Ombudsman from time to time. For that reason, I think this review is a worthwhile thing.

Again I differ a little bit. I think we've spent too much time investigating primary complaints by people who are aggrieved. I think a greater position can be played by the Ombudsman if he or she has time -- since I've known the office, they've never had time; they've been trying to catch up on the backlog -- to investigate faults in the system and report to the Legislature so that the Legislature can take a look at these, not to correct individual complaints but something that's going wrong in the whole system.

I think more time of the Ombudsman should be spent on that. As far as I know, practically none of it has been. I can remember a couple when I was there. We had one problem at one of the jails that was rather bad. We cleaned that up. But more time of the Ombudsman should be spent on that and less on individual complaints.

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I don't know what it's like today, but when I was there, we had big boxes, each with an institution's name on it, and any time a complaint from an institution came in, it went in that institution's box. We had men or women going around to the different institutions on a regular basis. They would go to the box, take out the complaints and go and see what they were all about.

I don't want to be ridiculous, but we got such complaints as: "We didn't have toast for breakfast today. Why?" and all those kinds of complaints. Mixed with them were some legitimate complaints, some complaints that we had to look at. Somebody must sort those out, and it's my view that the Ombudsman must have an unfettered discretion to say what she will investigate or what she will not investigate on her own motion; she has that absolute discretion.

That's not going to be -- there are people who will go to the Ombudsman and say, "Hey, why don't you investigate mine?" I was sued many times because I said, "That's a frivolous and vexatious complaint, and I'm not going to investigate it." So they'd sue me. I'd turn it over to the government's lawyers, and they'd quash the motion. I never lost one, but if you didn't, you had in every person with a fixed complaint in mind wanting you to review.

I had people who came back at least once a year asking me to review the same complaint. I had one man who did nothing but deal with these people. Unfortunately when he retired, I could never replace him. He was a past master at them. They all thought he was wonderful, and he was, but they'd come back year after year making the same complaint all over again. They'd forgotten that they'd complained. They'd forgotten they'd been in our office. But every now and again one of them had a legitimate complaint and you had to look at it.

Another unfortunate thing is the most miserable people usually are the ones who have the complaints. The most difficult, miserable people to deal with are the ones of whom somebody in the civil service says, "I'll show you, you so-and-so," and they're the ones who have a legitimate complaint. The Ombudsman can't just run them off. He has to look at them and say, "Has this person got a legitimate complaint?"

To speed along a little bit, independence: I don't think you have to be independent. I think I've perhaps dealt with that.

The question of whether the Ombudsman be called Ombudsman or Ombudsperson or Ombudswoman leaves me cold, quite frankly. I'm not a woman, so I see no concern. If the women want to be called Ombudswoman, I've no complaint. Again, I guess because of my age, because of the world I grew up in, I am perhaps not as enlightened as some people are as to the subtle nuances of the growth of women, although certainly had times been better when I was a young man, I'm sure my wife would have ended up a brain surgeon, but she couldn't afford it. Certainly I practised law with many lawyers when I was a young man, darned good lawyers, who were women. I'll take from women the fact that they were discriminated against and are discriminated against, because I'm not a woman and I can't tell. If they tell me they are, I'll believe it, but that's getting off into another field.

Appointment term of office: I think 10 years is a good term. Five years is not enough; you're just getting into the job. A lifetime tenure is too much; you don't want to tie yourself up. I left the bench after 20 years because I had made speeches for years saying that it took a very unusual man to be a good judge for more than 20 years. When 20 years arrived and Mr McMurtry offered me this job, I took it and put my actions where my mouth had been all these years, because it is difficult to remain doing any one job and be fresh for any particular lengthy period of time. I think 10 years is ample. I don't think it should be a lifetime appointment.

I think the jurisdiction does require clarification. There was a big fight on when I was there about whether it would be better to have the jurisdiction defined by boards etc. Generally speaking, ombudsmen like to leave it open. Personally, and I'm not going to be liked by the Ombudsman, I think it should be defined clearly once and for all just what the jurisdiction of the Ombudsman is.

I don't think the Ombudsman should have the power to review decisions of cabinet. Members of the Legislature are elected by the public. They are the prime people who are responsible to the people of the community. They've been elected. From that group of members the cabinet has been chosen. The cabinet makes its decisions. Why should one person who is not elected have the power to review those decisions? I don't think he should. I don't think she should, if it's a woman.

Statutory powers of decision: In my view, no, they have other procedures to take, although I leave it open and I would want to give some more consideration to that, because there are some risks in just putting them off. Generally speaking, I don't think the Ombudsman should have jurisdiction over quasi-judicial jurisdictions.

Extending the jurisdiction to municipalities: Right now, I think perhaps there's some merit in it, but under the fiscal restraints the government is in today, I don't think there's any possibility of getting that done. You're talking about taking an office which now runs with, I think, some 120-odd employees to be an office which would be 500 or 600 employees or more if you got into municipalities. You get an unwieldy situation. If the Legislature elects to go that way, I would prefer to see an Ombudsman dealing solely with municipal matters and having two ombudsmen. Again, as a realist, I don't think there's any hope of a government spending the money on municipalities at this time.

We must remember, in my view, gentlemen, the Office of the Ombudsman is a luxury. It's a luxury which we in this province have had the money, the time and the ability to provide to our citizens, an extra above and beyond the normal rights that a citizen has to go to boards, to go to other people, to go to members.

Many people go to the member and the member straightens it out. I had one member when I was Ombudsman who was a long-term member -- I shouldn't say one of the better members, because all members are good, but certainly one who I thought was a good member -- who never sent anybody to the Ombudsman. He did all his work himself and felt that only if he was unable to do anything for the person would he send him to the Ombudsman, and he had never run into a case he wasn't able to settle himself.

But it's a luxury we supply, and as a result I think the taxpayers have an interest in seeing that the money isn't wasted and that we don't grow too large.

As to an ideal size for an Ombudsman's office for the size of Ontario -- and again the present Ombudsman won't like me for saying this, I'm sure -- I think beyond 80 people is too large. I think the proper size for a province the size of Ontario is no more than 60 people. When I was active, France covered the whole country with some 40-odd employees. Now, they had some part-time employees around throughout the whole area.

I'm not going to comment on boards of education, because I have some personal views about boards of education which they won't like.

Mr Cameron Jackson (Burlington South): They all agree on it, though.

Hon Mr Morand: I don't know.

I think a comprehensive survey should be taken over what areas the Ombudsman should have jurisdiction over, and I'm not prepared at this time to say this or that. I'd have to look into it far more seriously than I have at the present time. Quite frankly, gentlemen, believe it or not, I'm nearly 75, but I'm still busy every day.

Any other questions?

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Mr George Mammoliti (Yorkview): I have three or four questions. I'd like to ask them all at once, if you don't mind, sir. Maybe you'll want to jot them down so that you can respond.

The first question, of course, is the jurisdiction. I think you've answered that nicely. I think, actually, you've answered my question around jurisdiction in what you said in terms of changing the jurisdiction. I think I'm pretty happy with what you've expressed.

I'd like to talk a little bit about accountability for a minute. I agree it should be hands off. Of course, constituents feel the same way, that it should be the last resort. But frankly, somebody has to be accountable to somebody. Who should this person be accountable to?

Hon Mr Morand: Do you want me to wait?

Mr Mammoliti: Yes; then you can answer it.

Hon Mr Morand: Carry on.

Mr Mammoliti: One of the biggest complaints I've been getting is the turnaround time. How do you feel about the current turnaround time? I'm not sure what the average is, but I know there are a lot of complaints.

Hon Mr Morand: Hopefully about -- okay, I'll get into that after you get to your the last one.

Mr Mammoliti: I'd like to know a little bit about how you feel in terms of the turnaround time that exists now as opposed to when you were there.

The other thing is of course the process within the office, the internal structure of the office. More specifically, sir, I know you had some problems in the office, as everybody does. As a manager, you had to contend with staff problems as well as the public. Did you set up a process to deal with internal staff problems, and was it successful? Would you recommend a particular method or way of dealing with internal staff problems within the Ombudsman's office? More specifically, in terms of morale, how did you deal with the morale problems when they arose? Were they successful?

Those are the questions.

Hon Mr Morand: Dealing first with jurisdiction, you've suggested that I partially dealt with that. I think there should be a review, perhaps by this committee, perhaps by your counsel, perhaps by other hearings, as to the jurisdiction because I think the jurisdiction can be changed. I think it can be tightened up so that there are fewer fights as to whether you have jurisdiction or not.

For instance, when I was Ombudsman I had an arrangement with the Attorney General that he wouldn't agree that I had jurisdiction and I wouldn't agree that I didn't have jurisdiction. We would inquire into complaints about him, and if we found something we couldn't solve, then we would fight jurisdiction afterwards. It worked, so we never did decide whether we had jurisdiction in so far as certain aspects of the Attorney General's department were concerned. We worked around it, in other words.

But I think jurisdiction can be tied down. It would certainly be helpful to me, if I were Ombudsman, to know that yes, I have jurisdiction in that, but no, I don't have jurisdiction in that. I think it would save a lot of time.

To digress slightly, when a complaint came into the office -- this is when I was there anyway -- that complaint was put in writing. If people couldn't put it in writing themselves, we had a person who helped them put it in writing.

The first question was, is it jurisdictional or not? We had a person whose job it was to say, "Yes, it's jurisdictional," or, "No, it's not jurisdictional." With 98% of the people's cases, we could tell right off the bat whether it was jurisdictional or not.

If it was not jurisdictional, we kept up a book. We would tell the people: "Here is where you go. We have no jurisdiction. You go here." That was over, above and beyond what we were entitled to do, but we felt that in the long run it saved time and was a service to the community.

If there was a question whether it was jurisdictional, it then went to the head of that branch. He was very good. If he couldn't determine whether it was jurisdictional or not, we had several lawyers on staff. It went to them and they decided whether it was jurisdictional or not.

If we alleged we had jurisdiction and the ministry, board, agency or branch of the government said, "No, you don't have jurisdiction," we would see if we could work around the question of jurisdiction. We would only fight about jurisdiction if we had to.

When this group in the office was sorting these things out, many of these complaints could be solved without opening a file and many of them were. It's surprising how many people come to the Ombudsman because they don't understand what happened.

I think one of the biggest weaknesses of the administrators of our system is that they don't explain to people why the result they got was the result they got. An astounding number of people would come in and say, "Why didn't somebody tell me that?" and they'd walk out perfectly happy, so you didn't have to go through a whole long investigation. I felt this group was of vital importance in sorting these out.

That's a bit of an aside on the question of jurisdiction, but I think jurisdiction is very important to the Ombudsman and entailed, in my particular case, two people who did nothing else but work on whether we had jurisdiction or not, with input from the head of that division plus the lawyers, if necessary.

Getting to the question of accountability, I think we're getting into a problem of what "accountability" means. Everybody, of course, must be and is accountable in some way, shape or form. You are accountable to the citizens who elect you. A civil servant is accountable to his boss.

You have, in Ontario, some six employees of the Legislature. I think each and every one of those should be as independent as they possibly can be: the chairman of the elections committee, the auditor -- I've forgotten who they all are now; I think the Ombudsman should fit into that category and does, as a matter of fact, fit into that category -- and should completely retain his or her independence.

Accountability is to the Legislature. If they're not doing their job properly, the Legislature should take some action. I know the standing committee is representing the Legislature, and this is one of the places where I have some problem -- in the standing committee and in the select committee -- and I'll get around to that.

My view is that the standing committee is to assist the Ombudsman. When I was there I worked with two speakers -- Jack Stokes, who I found was very helpful to me, and Mr Turner. I felt this standing committee could help me by taking cases I was unable to solve, and I reported them to this committee.

This committee would look at them only from this point of view: "Do we think we should go to the Legislature with this complaint of the Ombudsman? There's a legitimate complaint here and the ministry won't do anything about it. Should we go to the Legislature with it and support it in the Legislature?" Not rehear the case; only decide whether you, as members of the standing committee, should take that case to the floor of the Legislature and make a motion that the Ombudsman's recommendation be carried out. That is where I think this committee can assist the Ombudsman.

Accountability, in my view, does not mean somebody reviews their day-to-day operation. You don't review the day-to-day operation of a judge. If he doesn't do his job properly, he can be fired. I think the Ombudsman should have as much independence as a judge has. If the Ombudsman doesn't do his job, he should be fired, but I don't think he should have to defend himself against complaints by people who say, "He didn't agree with me." That's mainly what you're getting: "I had a complaint. I went to the Ombudsman. He didn't agree with me and I want you to find out why he didn't agree with me." I don't think that's accountability, quite frankly.

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Turnaround time: It all depends. We had cases we'd do in a matter of days, and I'm sure the present Ombudsman does too. We had cases that took years.

Because of the very layout of the act -- again, I've forgotten the number of days -- if somebody resists the Ombudsman all the way through, the minimum length of time that case and the final report will get to the Premier is something like between 280 to 300 days, so you're shooting the better part of a year. And when somebody's resisting you, come the last day and they haven't replied to your letter, you get in touch with them, but before you can get something out of them, another two or three weeks have gone by. If they're fully resisting all the way through, it's going to be a year before you get that case completed.

That's very frustrating to an Ombudsman, but because of our Charter of Rights, because of the fact that the Supreme Court has decided that Ombudsmen must comply with all the rules and regulations of fairness, he has to give the ministry, the board or the agency the time to make the replies.

There's occasionally a case where you walk in, see the Ombudsman and the Ombudsman looks at it quickly and says, "Yes, there's an obvious fault," and calls up the ministry and it's corrected. That does happen. But if a ministry says, as many times happens, "We'll look into that" and the clock starts running, there isn't a darned thing the Ombudsman can do about it.

He or she may be mad, but there are certain powers the Ombudsman has which experience -- I wouldn't say this for general purposes, but you can get into more time-wasting by exercising certain powers of subpoena and compelling of witnesses and so forth than it's worth, because then you get somebody fighting it. You use cajolery as an Ombudsman and you use negotiating skills as an Ombudsman to try and see that the citizen gets a fair deal. You use the big stick only as a last resort.

The big stick, in my view, always was this committee. This was a committee I relied on. When I couldn't get anywhere, I would report to this committee. This committee would then either take it to the Legislature or not take it to the Legislature. If they agreed with me and took it to the Legislature, then a motion was made in the Legislature, and there is no department, no ministry, that is going to go against a motion of the Legislature.

Complaints about the office: Okay, you're always going to have employee complaints. When the office was originally started, Mr Maloney attempted to have employees from all political stripes and colours, as broad-based a group as he could by way of employees. They were hired very quickly. In the main, when I took over, I thought it was a surprisingly good group of employees. They were not a happy group of employees when I got there. They were not a happy group of employees when I left there.

I had a rule that my office was open to any employee who wished to come in to see me at any time. I had an office on the second floor. I only asked one thing, that you speak to your superior before you come to me, and if you aren't happy with what you get from your superior, come to see me direct. Some did; some wouldn't.

I know there were unhappy people. You hear these rumblings and you know it. I tried everything under the sun I could do to have a happy workforce under me, and I think in the main they were, but I know there was an underground of people who were unhappy. I was never able to find out why; I honestly couldn't find out why. If there are complaints over there now, I don't know whether it's different now than it was. I've left it. I have no contact with the Ombudsman's office any more. Whether they're the same people who are unhappy today as when I was there or not I don't know.

But I'd always run my own office, a small office -- I was a judge -- and I wasn't used to having a large group of employees underneath me. When I got to the Ombudsman's office, I think I had 148 when I first arrived. I cut that down to 111 when I left. I don't know what it is at the present time. I know some of the employees enjoyed themselves immensely; I know others didn't. I don't know the answer. I'll be honest with you.

Mr David Ramsay (Timiskaming): Mr Morand, thank you very much for coming before us today. It's been very illuminating for all of us to have somebody with your experience give the benefit of that experience to us. We thank you for that.

I really want to come back to the principles of independence versus accountability, which I think is the crux of the matter, and have a little more discussion on that, because it's what we as a committee are grappling with. I know that all of us in this committee, all of us in the Legislature, understand the importance of the independence of decision-making and respect that principle and will protect it and maybe should enshrine it more so in potentially revised legislation. There's no argument about that.

The question it boils down to is the independence of action for the Ombudsman and how much independence of action there must be, because if there is total independence of action, then there is no accountability. The act sets out some limits in that there's got to be an annual audit and of course the Ombudsman is required to submit an annual report. But following the questions that were just asked, it's a $9.3-million or $9.4-million operation today.

As legislators, we are accountable to the people of Ontario for all our agencies, boards and commissions. The Ombudsman is such an agency, and when we start hearing complaints and we don't know if they're true or not, that there's tremendous turnover of staff, this may be resulting in lawsuits, this could cost a lot of money. I believe it's got to be our responsibility, members of the Legislature of Ontario, to ensure that the agency works, to the best of its ability, on behalf of the people of Ontario. How do we ensure that this happens while respecting the independence of decision-making of the Ombudsman?

Hon Mr Morand: Let me see if I can help you on that. First of all, the money aspect: The committee that decides what money the Ombudsman gets deals with many other branches of government. It's very experienced, usually the heads of the various parties. I went before -- I've forgotten now who; different people at different times, but Elie Martel was on it, Bob Nixon was on it, a number of really experienced people. We went over the budget.

I'm happy to say that every year I was Ombudsman we turned back over $250,000 at the end of the year that we were able to save. We did cut the number of employees down and we got rid of the backlog. That board is an experienced board, that board reviews their budget and decides whether they're entitled to get that much money, and if it doesn't think they should, it says, "Go back and sharpen your pencil again."

There is a habit in government which I deplore and which, when I was there, I said I wasn't going to be the one. I've heard it said by people who are getting money from the government, "Spend all you can get and try and get more." That's pervasive through a lot of government agencies, I'll tell you that. There doesn't seem to be an understanding that the taxpayers are paying this money and that the money may be better used in other ways.

In any event, that board, if it's doing its job, will take any of the water out of the budget.

Second, the auditor reviews the expenditures. The auditor, if there are some expenditures that shouldn't have been made, is certainly going to let you know. The dollar-for-value audit is a very good tool that the auditor has, and certainly I think it's one that should be welcomed by any government agency to see whether it's doing its job properly, whether the taxpayer is getting proper return for the money you're spending.

Then they go before the public accounts committee, if I remember correctly. So you've got three bodies already dealing with the Ombudsman's spending of money.

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When I was Ombudsman, three or four times the select and standing committee -- because it changed while I was there -- reported to the Legislature and wanted to have the handling of money, and on no occasion did the Legislature elect to change and give this body the power to scrutinize the expenditures of the office. Members of this committee used to go to the public accounts committee so they could ask me questions on the expenditures in the office. I think that's sufficient. I don't think the Ombudsman should be reporting to committees all the time. I think she has more important work to do. That's accountability moneywise.

Accountability jobwise, I don't think she should be accountable to anybody for that except that she should be fired if she's not doing her job, and I think the Legislature should do that. If there are specific complaints that the Ombudsman is not doing her job, then I think the select committee, or the standing committee as it is, should have the right to investigate whether or not the person is doing her job. Not what they're doing in the sense of what the result is or anything like that, but are they there, for instance, do they show up at the office, are they working, that sort of thing, but not as to the individual cases.

I would change the act to this extent, that the Ombudsman has the right to refuse to investigate any complaint that comes in before her or him, as the case may be, that she or he is there as a court of last resort and she or he reviews the cases that she or he thinks may result in an injustice, not every case that comes in the door. Otherwise, you're going to continue to have a very large Ombudsman's office that is wasting time investigating complaints, and the same complaint over and over again.

You may go back to reinvestigating complaints. This is a matter that has come up before. It came up when I was there.

Mr Ramsay: That's okay. That doesn't really concern me too much. I want to maybe start summarizing what you've said. Did you feel it would be the authority of the Legislature of Ontario to basically examine the operations of the office?

Hon Mr Morand: I want to walk a very fine line on this, because the closest I can get to it is a judicial office or the auditor's office. The only thing I can see is misfeasance or malfeasance in office; not how they do their job from day to day, but misfeasance or malfeasance in the administration of their duty.

That is the independence I think the Ombudsman should have, not whether day-to-day jobs -- everybody makes mistakes, I don't care who you are. It may be that the Ombudsman makes a mistake. Too bad; that's the name of the game. But nobody should have the right to review that mistake the Ombudsman made, because the Ombudsman is a court of last resort. The person has lost when he gets there. It's only if the Ombudsman decides out of the goodness of the Ombudsman's heart, or a sense of justice or fair play, that it will be changed.

Mr Ramsay: But I'm not talking about even an error in decision-making which, as a human being, the person is entitled to make from time to time. I'm talking about the total overall management of the operation, which is substantial and funded by the public; that there needs to be a mechanism to oversee that this is well spent.

Hon Mr Morand: Well, it's being done now by three different groups as far as expenditure of money is concerned.

Mr Ramsay: But you will notice in the special report that the Ombudsman put out that she feels a value-for-money audit at this time would be inappropriate and should be done at the normal audit period. Also, she goes on to say that because of the very special nature of her operation, she questions whether the Provincial Auditor is the correct person to be actually doing this fiscal overseeing.

Hon Mr Morand: That's the only person I know of who knows how to do it or has the authority to do it.

Mr Ramsay: Same for me.

Hon Mr Morand: I see nothing wrong with that type of audit. As a matter of fact, if I were Ombudsman I would look forward to having it done, because if I'm not giving the citizens value for the dollar they're giving me to spend, then I want to know it.

I know it's a very difficult thing to get across and I still don't think I've got it across quite yet, but I think the Ombudsman should not be investigated by this committee. On any case that the Ombudsman dealt with, her decision or his decision is final. That's the end. If somebody comes in and says, "I don't like what the Ombudsman did," and she did something wrong -- misfeasance, malfeasance -- fine, then that's fair game for this committee. "We don't like what she did. We think she gave the wrong decision." I don't think this committee should see it. "Unfortunate; too bad."

Mr Jackson: Your Honour, you've been extremely direct with your responses and have covered a lot of the areas that are of great interest to this committee, and I want to thank you. But I want to probe deeper and in more detail the concept of the accountability of the chief officer, the Ombudsman. When I look at organizations that act above the law in its positive context -- police, judges and the Ombudsman, quite frankly, in that context -- each has within it a mechanism to review decisions.

Hon Mr Morand: Appeal.

Mr Jackson: No, they have an opportunity to review a judge's questionable decision. That can be an internal review or, based on the conduct of the judge, it can be done through the Supreme Court. But also it can be done internally on the conduct of the judge and enacted by the Attorney General's office.

What I'm trying to probe further is this notion that if there are concerns about patterns of case decisions that in some instances do result in financial compensation -- they're rare but they do occur -- this would be of concern, and that somehow, some organization representing the taxpayers, and we can only believe it's us, should be responsible for initiating that.

What I want to ask you specifically is, on what basis should we be initiating a review of decisions, if you agree that where patterns are emerging, where the Ombudsman's office is causing decisions that carry similar weight to a Supreme Court decision, where it becomes extremely expensive and starts changing substantive protocols in this province, the office can act with incredible impact on society?

Having said that, somehow there has to be some method by which we don't just say, "We're really not supposed to be reviewing their judgements; they are independent," but in fact we are responsible. We could decide that, as you put it, it is a luxury, a privilege for a society that through its evolution can afford an Ombudsman's office. We may decide that with two million people in this province unemployed, we can't afford it and it has to go.

Hon Mr Morand: Quite possible.

Mr Jackson: I want to probe further at what point and on what basis one initiates an examination of decisions. I'm going to come into the issue of the management of an office in a moment, but there are two separate areas here you've explored for us.

Hon Mr Morand: First of all, a complaint goes to the Ombudsman. The Ombudsman says to himself or herself: "Legitimate complaint. Recommendation." They make a recommendation. The recommendation is sent out. My memory is -- it's 10 years ago, but I think that's in subsection 19(3). The ministry then has a choice to say: "That's interesting. We don't agree with you. Goodbye."

What choice has the Ombudsman got there? Nothing except to report to you. He reports to you and says: "I tried to exceed this. I think they did a bad job. I think they should have given this person more money." You say: "That's interesting. Thank you very much. Goodbye," and that's the end of it. Nothing happens. The Ombudsman hasn't got any power. He's only got the power of persuasion, so he's not spending a nickel.

He may recommend that he spend a nickel, but unless you, the select committee -- in my view, before the money should be spent, unless the ministry agrees with him, it should come to the select committee. The select committee should say, "Yes, we agree with you," or, "No, we don't agree with you." If you don't agree with him, end of it. File it. It's gone. The Ombudsman gave his view, but you gave your view and nothing happens. Or you say: "Yes, we agree. This fellow did get badly done to and there should be some money paid," and you, the committee, makes the resolution in the House that something be done about this case.

To me, that's complete control over the office. If you don't like what he recommends, nothing happens. I read somewhere in this material too about carrying over. I instituted, when I was Ombudsman, a carryover from year to year of things that had been recommended which weren't done. I had a three-year limit. I used to remove them at the end of three years. If at that time nothing had happened, I felt: "Okay, they're not going to do it. The select committee hasn't elected to force it in the Legislature, so end of it," and I would take it out of my report.

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I gather, from what I've read, that the present Ombudsman doesn't feel it's necessary to carry that on. That's her decision, as far as I'm concerned. Does that answer your complaint?

Mr Jackson: Yes, thank you. In regard to the other aspect of the Ombudsman's responsibility, which is the management of the office and to ensure that -- I guess the only word that comes to mind is the "performance" of the Ombudsman, in his or her daily activities, is sufficient to suit the importance of the office and the requirements of the legislation, and if that were the case, on what basis? I mean, you've said we have the right to investigate, that she should be fired if she's not doing her job, to roughly quote you, not in context.

Every citizen in this province has the right to be approached on the subject where there's just cause, and that would include the Ombudsman. On what basis could a legislative committee go in and examine -- do you understand my concern now?

Hon Mr Morand: From a judicial point of view?

Mr Jackson: Yes.

Hon Mr Morand: When I was on the bench, we did have judges who got a little too old for the job, and it posed a real problem. We used to try and slot those judges into jobs that didn't involve a great deal of finesse, shall we say. But it still happened.

Because the independence of the judiciary is such an important necessity for the proper running of society, we looked long and far for a system that would allow us to deal with this situation fairly and equitably, and lo and behold we found that California had a very good system.

What happened is that we brought in a system whereby a person who was on the bench for 10 years and was 70 years of age, or 15 years and 65 years of age, could go what we called "supernumerary," and we urged everybody to go supernumerary. If you went supernumerary, you had certain attributes. You got your full salary but you were only required to work two thirds of the year. When called upon by the Chief Justice --

The Chair: Excuse me for one second, please. Could you please speak into the microphone.

Hon Mr Morand: Oh, I'm sorry; I'll get a little closer.

What it meant was that the encouragement was to go supernumerary because you got full salary and only had to work two thirds of the time. If you went on pension, your pension was two thirds of your salary and you didn't have to work at all. We developed a pattern so that everybody, when they reached that period of time, went supernumerary. If the person wasn't able to do the job properly, somehow or other the Chief Justice never got around to calling him or her and consequently the person didn't work. It would cost the taxpayers a little extra money, but at least we preserved the independence of the judiciary. That was partial compliance with taking care of the problem.

Then we formed a judicial council. The judicial council sits in Ottawa. The Chief Justice of Canada and other chief justices of the various provinces sit on it. If for some reason there are complaints about the judge, this committee sits in camera and decides whether or not this person should remain a judge. In cases -- these are all public cases, so I don't hesitate to mention them -- certain judges become alcoholics, that's possible.

A very good judge out west, an exceptionally good judge, became alcoholic. The third time he was caught drunk driving, the judicial council decided that was it, and he elected to resign because the alternative is that the judicial council presents to the federal Parliament a recommendation that this judge be fired. Of course, if they're fired for cause, it affects their pensions. I don't think yet that they've had to actually go to a firing.

But what do you do if you have a situation? I think the Legislature should deal with that and I think that a standing committee, as this is, would have a right to inquire into that type of action. I recommend that it be done in camera, because of the importance of the office of the Ombudsman, and if you agree and if such a situation exists, that it then be dealt with by the Legislature itself.

I have no idea what you're referring to, quite frankly; I've heard nothing, so I don't know of anything in the operation of the Ombudsman's office myself that would bring about such an investigation, but if this committee feels there is something, then to me it would be appropriate for this committee to inquire in camera and decide whether there's any merit to the complaint or not.

Mr Jackson: When you were the Ombudsman, when you had employees who felt that they were mistreated or harmed, done wrong by while in the employ of the Ombudsman's office, assuming they'd gone through the appropriate channels of either litigation or a grievance and exhausted all appeals, where would a citizen of Ontario employed in the Ombudsman's office go?

Hon Mr Morand: I was the final arbiter.

Mr Jackson: No, you were the cause. In my scenario, when you were the Ombudsman, I'm suggesting that you were the instigator. Where do individuals now go as their court of final appeal if in fact their complaint is about the person of the Ombudsman?

Hon Mr Morand: To the Legislature. When the office was set up, it was considered of such importance that the Ombudsman be independent that the employees of the Ombudsman could not belong to the public service union or organization. As far as I know, to this day that still prevails.

When I was there, we entered into an agreement with the Civil Service Commission to attempt to give our employees as much protection as the civil servants had. If they left our office, they would have priority in hiring by the civil service, and we would give priority to people who were let out of the civil service if we were doing hiring.

But it was felt that it would be inappropriate for people who were members of the same union to be investigating the actions of their brother members of the Public Service Alliance of Canada. It was specifically decided that they would not be entitled. To the best of my ability, when I was there, I saw that all of the privileges, their pension rights and everything they had, were exactly the same as the civil service.

Mr Ramsay: Bill 40 doesn't apply to the Ombudsman's office.

Hon Mr Morand: Pardon?

Mr Ramsay: There's some current legislation before the House, I was just saying. Whether it's going to the Ombudsman's office, I don't know.

Mr Jackson: He's referring to Bill 40. I was in Windsor yesterday, and in a retail store, for example, regarding the people responsible for protecting the owner catching employees who are stealing from him, the government has a proposal that says that these people investigating their fellow union members can be in the same union. The law currently says they should be separate. That was Mr Ramsay's reference. Although we agree with your judicial opinion, the government at the moment does not, but you'll forgive that sidebar comment.

Hon Mr Morand: Absolutely. I'm here to be of whatever assistance I can. I don't expect that you're all going to agree with everything that I recommend to you.

Mr Jackson: You've been extremely candid and forthcoming, and I want to say thank you very much.

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Mr Jim Wilson (Simcoe West): Your Honour, I too want to thank you for taking the time to appear before us this afternoon. I'm going to keep my comments and questions short because you have been in the hot seat, as it were, for about an hour and a half.

I guess one thing I really haven't made my mind up on, and I'd appreciate really your opinion on it, is whether or not we're encouraging people to rely too much on the Ombudsman, or to contact the Ombudsman's office -- perhaps that is a better way of phrasing it -- more frequently without having exhausted other avenues. It bothers me to some extent when I drive down University Avenue and see a big banner encouraging the citizens of Ontario and when I see newspaper media advertising encouraging people to phone the Ombudsman's office.

On one hand, I can see the current Ombudsman's point is that obviously people have to know the office exists and have to know they have the right to contact that office, but on the other hand -- I mentioned this to the current Ombudsman, and as I say, I really haven't made my mind up on it -- it does bother me to some extent that maybe my constituents are being encouraged to contact that office directly without -- you did say in your remarks, and I appreciate it, that an MPP's office is an ombudsman's office and that people should be encouraged to do that. I'm just wondering what your comment is on the role of the MPP's office and the Ombudsman's office.

Hon Mr Morand: Let me deal first with advertising. When I was the Ombudsman, the select committee, I think it was at that time, before it became a standing committee, was angry at me that I didn't advertise enough, so I put on a $30,000 advertising campaign. You can see that the position's changed. I must admit I very seldom come downtown now, so I didn't see any billboards.

Certainly, in my view and as I see the operation of government, I think each member is an ombudsman in his own right and I think his constituency office certainly should be utilized by the citizens. That's why the taxpayers are paying for that office, so that it should be utilized and so that the member -- I have no hesitation: Mr Martel was the man I was talking about earlier. Elie never referred anything to the Ombudsman's office. He did it himself. I know when I was there, a great many of the members I was dealing with did everything they could themselves, and only when they came to the end and could do no more, then they referred it to the Office of the Ombudsman.

Indeed, in England I think it is, and probably it's still the same, you couldn't go to the Ombudsman unless you were referred by a member. You had to be referred by a member; otherwise, the Ombudsman couldn't act for you.

Mr Jim Wilson: I think, to be fair to the Ombudsman, currently they do try and encourage people when they call to ensure that they contacted the MPP, when I think about it.

Hon Mr Morand: There's also a feeling in the world, bigger and better. I don't agree with bigger and better. I don't agree that the more complaints you get, the better the office is doing. That seemed to be a trend that -- well, the select committee I was dealing with was very worried that the number of complaints I got might go down. That's why they thought I should advertise more.

My view is that the number of complaints should go down, because surely to goodness when we catch up on the backlog of complaints, we can't be generating more complaints every day about the work of the different boards and agencies.

I attribute the growth in complaints, quite frankly, to the fact that there has grown in the province of Ontario a belief that there is an unlimited right of appeal and that at every level of appeal you have a chance, whether it only be 3% or 5%, of changing the previous appeal's decision, so get as many appeals as you can and you've got a chance you might get a change.

I know that when I was on the bench -- again digressing, I suppose, but I'll do it briefly -- if you went to an examination for discovery, which is prior to a trial, you could ask a question and the other lawyer could say, "Don't answer that." This was preparing for a trial. You could appeal that to a local master. The master could say whether or not that question should be answered. If you didn't like what the master said, you could go to a single judge who would say, "Yes, you have to answer that," or, "No, you don't have to answer that."

Then, if you didn't like that, you could go to the Court of Appeal and it would answer yes or no. Then, if you didn't like that, you could apply for leave to the Supreme Court of Canada. Now this has been changed from my day. Then eventually maybe even go to the Supreme Court of Canada. Probably, whether the question was answered or not didn't have any effect on the case whatsoever, but it was one way of stalling the process.

I very early developed the view that everybody should have at least one appeal from any decision, but anything beyond one appeal is a luxury and that depends whether the taxpayers can afford that luxury.

Mr Jim Wilson: During your five years in the Office of the Ombudsman, as Ontario's Ombudsman, did you ever have a situation where the then select committee wanted to review decisions you might have made?

Hon Mr Morand: I wanted them to review them, quite frankly. I did have them speak to me about letters that they got complaining, but we dealt with those very informally. One year I was going on a vacation so I took along a briefcase full of decisions to do on my vacation, and I read them and signed a bunch of them while I was away and the fellow complained that I gave my decision while I was out of the country and therefore he should have a rehearing.

Mr Jim Wilson: You just can't win sometimes.

Hon Mr Morand: I think it's important that the Ombudsman not have to come before some body and justify her decisions. I think the important point on that, and I'll repeat it again, is that this is a luxury, because it's an appeal beyond an appeal; in other words, a person who is making the complaint has lost, he's finished, he's dead. Now they get one special last crack at this one person who maybe will decide they got badly done to. But where does the appeal process end? In other words, it's got to end somewhere. I think it should end with the Ombudsman.

Mr Paul R. Johnson (Prince Edward-Lennox-South Hastings): Your Honour, Mr Morand, it is certainly a pleasure to have you here today. I must say that I'm a new member of this committee and many of your comments and answers have been very enlightening, and I think very valuable to me especially.

I had a great list of questions, most of which you've already answered, but I do have one small question that I would just like to pose to you. You mentioned that a value-for-money audit should be welcomed by the Ombudsman. Is there any reason you might know of why the Ombudsman would not choose to have that value-for-money audit placed upon --

Hon Mr Morand: That would be asking me to guess. I don't know.

Mr Johnson: Well, in your own experiences, is there any reason why?

Hon Mr Morand: Reading the little bit of material that I've read, I came to the conclusion that right now this committee and the Ombudsman aren't getting along very well together. I gather, from what I've read, that the Ombudsman feels that you're attempting to interfere in her field and that you have no right to be there. I understand from reading this material that she doesn't intend to appear before this committee. It may well be that she's feeling the question of independence is so vital to her, and I think it is vital, that she is not going to cooperate with the committee at this time.

Certainly, and I don't mean to be offensive, on some of the recommendations of this committee made in the 19th report, I would have said, "Not with me you don't, gentlemen." Quite frankly, I would have taken the same attitude, "My independence is of such importance that I'm not even going to talk about this with you."

On the other hand, you are now holding a hearing which has nothing to do, in a sense, with the 19th report. It has to do with a motion before the Legislature in which you are authorized to make a review, so that's a whole new ball game as far as I'm concerned. Does that help?

Mr Johnson: That's great; thanks very much.

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Ms Christel Haeck (St Catharines-Brock): I echo the comments of my colleagues and appreciate the fact that you've taken some time out of your busy day to join us and enlighten us as to what it means to be the Ombudsman and your opinions on that office in total.

I'm going to follow up on some comments Mr Ramsay started off with. Specifically, in the last couple of years, we've obviously been hearing different things either from complainants who have a concern about their case -- we don't get involved in the decision, as you rightly point out. We may make some comment that there seems to be a delay which the person has indicated to us and make some inquiries about that. For the most part, we haven't got a lot of information back, even, say, from the point of view of the complainant. They have said, "I will give you all information." That's not a problem for me, but I'd like you to at least look at the issue, say, of the time factor of coming to some solution or resolution of this problem, on either side of the fence.

In that process, we've also heard from some employees who've had some concerns.

You've raised the issue that if an Ombudsperson, male or female, is possibly not doing the job, he or she should be relieved of that office. What would be the guideposts for making some of these decisions? You have the complainants who bring issues before you. You have past employees and current employees who bring issues before you. We don't get involved in the office in any way, shape or form, so we have information systems, some of which we tend to ignore, but as the volume increases, we also have to ask ourselves, at what point do we say, "We really have to look at what this Ombudsperson is doing"? From your experience in looking at Ombudsman offices throughout the world, what would be the guideposts we as a committee should follow?

Hon Mr Morand: I don't know of an Ombudsman who has been replaced anywhere in the world. The attempt worldwide is to appoint people whose integrity is beyond reproach. In many countries -- I don't know now, but half a dozen at least when I was there -- the Ombudsman was a Supreme Court judge on leave of absence. I retired from the bench when I took the job, because our judicial committee felt that a judge should either be a judge or retire. I made a deal in so far as my pension was concerned -- it wasn't a very good deal, I might say; it cost me a lot of money -- and I retired so that I could do the job.

I think firing is capital punishment. I hesitate even to talk about this, but the question of the misfeasance or malfeasance requiring such a move, in my mind, has to be pretty bad.

To my mind, it can't be simply that some of the employees don't like what their boss is doing or how the boss is handling them or something of that nature. You always have disgruntled employees. I would say that when I was Ombudsman, 90% of my employees were what I call good, valued employees; 10% of them, if I'd found a good reason, I'd have fired them, but nowadays to fire somebody you've got to have such a good reason that I wasn't able to find sufficient reason.

You're always going to have disgruntled employees, and that holds true every place. I've been around for 75 years now. You're always going to have disgruntled employees. You're always going to have disgruntled people. This is not a perfect world and everybody doesn't get perfect justice. We do our best, but, digressing again, what can the taxpayer afford?

We're trying to give every citizen -- and this is my own view, and I shouldn't even get into this -- perfect health care. The cost is getting pretty heavy for perfect health care, as you people know better than anybody else. We're trying to give everybody perfect justice. I think we do better than anywhere else in the world, but what can we afford?

I have no idea what the committee is talking about. I am concerned that the talk has gone to this stage, because I think it can destroy the effectiveness of the Ombudsman. Even in the conversation that we've had here today, which I presume is public and so forth, we may be doing a very grave disservice to the Ombudsman. I don't know, because I don't know what you're talking about of course.

Ms Haeck: It falls into the whole question of accountability. For those of us who are basically uninitiated into the mysteries of that office, again for most of us, we'd look at it from some distance, and we have no way of judging adequately if it is or it is not doing the job.

Obviously, we hear in our offices from constituents, not necessarily about this office but the whole range of government services, about the good and the bad. Usually, if someone is coming to our offices, nine times out of 10 it's something bad as opposed to something good. In our position of looking at a review, how do we make these judgements? It's not sort of reading the entrails of a chicken.

Hon Mr Morand: It's very difficult. When I was there, I had a meeting once a week, and every case that we were going to make a decision on came before the committee that we had, which complained that I was wasting too many man-hours having this meeting. The investigator had to come before this group, which included five department heads, myself and my assistant. About 12 of us sat around, and they had to come and justify the fact that they found something that needed correction.

Your employees come from all spectrums, and they have different social outlooks on life. Some people's attitude is: "Why didn't they take care of themselves? What the hell are they doing here?" To put it bluntly, "If they can't take care of themselves, what are we doing wasting our time?" All the way security from the cradle to the grave; society owes everybody two cars in the garage and so forth.

You have employees who fit into that whole category, and the Ombudsman is sitting there making decisions, trying to render justice, and people there may not agree with her brand of justice. But the Ombudsman is the Ombudsman. I don't know whether that's the basis for the complaints. I'm just saying it's a possible basis for the complaints.

Promotions are a possible basis for complaints. Always when you give a promotion to somebody, there's somebody else who feels he should have had that promotion. Raises in pay is another. I introduced, in my mind, a semi-merit pay, which didn't go down very well.

Mr Mammoliti: Semi-merit what?

Hon Mr Morand: Semi-merit pay. I didn't call it that, but people who were good employees and did more work got more money than the others, and that didn't go down very well. There were people who weren't very happy about that.

To give you an example, I had one employee who was working in the workers' compensation branch who did one case a month; that was her average, year in and year out. I had another girl working in the office who averaged 16 a month. The average office-wide was nine cases a month. Eventually, this one case a month, I guess she felt we were putting too much pressure on her, she resigned and complained vociferously that I wasn't administering justice, that I was forcing her to go fast and not to give a thorough investigation and so on and so forth. That was her view, but on the other hand, I didn't think the taxpayer was getting value from that employee who was only doing one case a month, year in and year out, and was generally getting the easy cases because she was so slow.

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She was a very disgruntled employee. I don't know what the situation is, but you're always going to have disgruntled employees. I was surprised, because I had had a small law office; I had never had a big office. When I came on, I had to learn a whole new modus operandi in how to run an office with 130 employees in it. It's not easy. I don't know whether that's any help or not, but --

Mr Alvin Curling (Scarborough North): It's a great opportunity for me to just put a very simple question to you, really, and it's about accountability. As a matter of fact, you were the Ombudsman before but in an era which is quite different than now.

Mr Jackson: They were great days, though.

Mr Curling: I presume they were. The society itself -- I'm sure they were great days -- but it was rather simple. As a matter of fact, the composition of the society was quite different. Today the complexity is quite as diverse as even around this table today.

The approach to resolutions and to problems is completely different too. The accountability for politicians is different. As a matter of fact, even today, if we talk about areas, if someone has some concerns, they can go to human rights or they can go to the workers' compensation. It all depends on what it is. Now we have a commission of employment equity because the human rights are not doing their job properly, so there we expanded the bureaucracy.

Then we have the courts and we look at all those -- they said we were backlogged, and when we have a few -- maybe you are saying that some people felt there were not enough cases with the Ombudsman. But funny enough, we have more and we have more backlogs. In the members' offices there are of course many cases where people feel justice is not being done.

We have a responsibility -- if we have agencies or whatever definition the Ombudsman comes under -- and it's a fact that we have a standing committee and that we have to be accountable also to the Legislature. Don't you feel somehow that, as parliamentarians, we have that responsibility in the sense that there's an Ombudsman and that not only must we report to the Legislature -- because I don't think this is as important as the people out there -- to say that we are getting value for money and that we can easily and comfortably say to those people who come before us, "Yes, if you have exhausted all those avenues that we have continually taken from you, as taxpayers, to expand these areas so that justice will not only be done but be seen to be done," if an Ombudsman is coming for us and we can't -- you said to enhance and improve the effectiveness of the Ombudsman -- sure, I think we are here for that. But that individual is also there so that we can have it more effective and maybe give some directions of such.

Don't you feel that the standing committee itself is a very effective way in which we can have direction and that it's important? If that's not the case, do you feel we should disband the standing committee?

Hon Mr Morand: I will repeat it again, because I think I've answered that before: No, I think we have to go back to this position that the persons have had their reviews. This Legislature does many things: You pay people to review jails, you pay people to review institutions of all kinds -- constant checking, checking. Mental institutions: You've hired, at the taxpayers' expense, patients' advocates. Patients are entitled to free legal aid.

Yet when these people have gone through all the internal processes which are available to just about everybody today and they've been turned down, they were fairly dealt with. The court of last resort is the Ombudsman, and I think the Ombudsman should have the right to say, "You lost, you came to me, and you show me why you've been badly done to."

The person comes and makes an allegation and the Ombudsman has a duty, as I see it, to inquire whether or not that person was badly done to. If she decides no, as far as I'm concerned that's the end of it, because that client has already exhausted all the recourses open to him. That client could go to you and maybe did go to you. Then the client can go to the Ombudsman as a last resort.

Everybody else has turned it down. The Ombudsman says no. I say that's the end of it, because they've already been turned down. The Ombudsman was just that last net to say, "Let's be doubly sure nobody was badly done to." If then they can come and they can appeal to you, the committee, and then you sit in judgement over the Ombudsman, what's the point of having an Ombudsman?

Mr Curling: Your Honour, look at the Police Services Act, for instance. That came about because of persistent individuals who say that they have not been treated well by the police. They've been called all types of names. They've even said, "Who elects them?" and all these things happened. If they had believed in that process and felt the process would really deal with them, and they've gone through most of that -- they've been to court and they feel it has not been done properly and they've been to the Ombudsmen and they feel it has not been done properly -- they will demonstrate. Sometimes they get in conflict with the court and then come the police and what have you.

Therefore, sometimes the system is so rigid itself, and the Ombudsman can be so rigid, the courts can be so rigid, and it seems the only avenue is elected individuals because we will then speak to those individuals, and if they don't respond, we will change them.

You saw it with the Liberals and the great popularity they had. People change, and they change government to ask, "Will someone listen?" These are signals, not only because people, they feel, are not listening in a certain sense, but they feel that as the society changes, individuals are, if you'll pardon the expression, so conservative in their thinking that they are not able to listen.

Therefore, if we ourselves are hearing that at this standing committee, and saying to the Ombudsman, "We want to speak to you," and they say, "We refuse because I have the ultimate power," then we feel rather that there is no effectiveness to us. I know you were repeating yourself, but I just wanted to make the point.

Hon Mr Morand: You say "conservative" thinking. I happen to be a conservative thinker and I think that's great. There's nothing wrong with being a conservative thinker.

Mr Curling: I should say "rigid" thinking.

Hon Mr Morand: You were talking about the police complaints board. I spent two years heading a royal commission on the Metropolitan Toronto Police Force and excessive use of force by the Metropolitan Toronto Police Force. I know what you're talking about. I recommended that that board be set up and I worked with Syd Linden, so I know what you're talking about.

But that still gets into another field in that you're dealing with a situation there where you're not a "court of last resort" Ombudsman. You're dealing with a process that needed another level of supervision and you provided that other level of supervision. That's not the Ombudsman's job. The Ombudsman's job is a court of last resort.

The Chair: Thank you, Mr Curling. Mr Wilson, you wanted one more question, very briefly?

Mr Jim Wilson: Yes, just a quick one, and it's appropriate because I think Mr Curling asked a very good question.

I would agree with you, Your Honour, that you either have faith in the Ombudsman to do her or his job or you don't. I've had the opportunity to observe this committee at a distance because I'm not a permanent member of the committee, and if this committee is just simply going to meddle in the affairs and day-to-day operations of the Ombudsman's office and question the person of the Ombudsman without recommending a firing or perhaps without any real cause other than just grumblings that we hear from constituents and that sort of thing, would we be better off just getting rid of this committee? I mean, maybe we're the ones wasting taxpayers' money, because it seems to me that the Legislature, through this committee, has spent a great deal of time dealing with this issue.

Hon Mr Morand: Well, as far as I know, it's the only jurisdiction in the world that has a standing committee or even a select committee dealing with the Ombudsman. It may be that you are superfluous. I found that I could use the committee when I was here. I didn't always agree with the committee, and I had fights with my standing committee too. I felt they wanted to interfere with my jurisdiction.

I could never get across to my standing committee the very item which I've been trying to get across to you today, that independence is of vital importance. Not only is it important but it must be obvious to the public that this person is independent, that this person is the last resort. You ain't got nowhere else to go, to use the vernacular, when you're through. You appoint an Ombudsman and you say, "That is the type of person we're going to be happy with to make the decisions," and if he doesn't make the right decisions, that's too bad; you appointed him.

Mr Mammoliti: One quick question again, in terms of internal staff problems. On one hand, you say the Ombudsman is the last resort, and it should be. What I'm saying to myself is this. If a staff person has a problem, and it's a legitimate problem in terms of process or in terms of internal goings-on in the office, and it's something that he can't complain to the Ombudsman about directly, who does he come to? What avenue do they have, other than perhaps the courts, to deal with that? And if they go to the courts, who's to say they should have to hire a lawyer to deal with a problem at work?

Mr Jim Wilson: Go to your MPP.

Mr Mammoliti: Okay. We get a comment to call the MPP, yet when the MPPs deal with it, you have the Ombudsman saying, "You're out of step, you're putting your nose where it shouldn't belong."

Hon Mr Morand: You're not coming to see the Ombudsman in that case as a select committee or a standing committee. You're coming there as an MPP who has a constituent who is complaining. What right and what opportunity does an employee of, say, the Ministry of Labour have if he has a complaint? There's a grievance procedure. I believe there's a grievance procedure in the Ombudsman's office.

Mr Mammoliti: That she says is very capable, yet there are staff members who are saying it's ineffective. Where do you go to resolve these things? If it isn't this committee that looks into it --

Hon Mr Morand: Where does the employee of the Ministry of Labour go?

Mr Mammoliti: Who would look into it? That's all.

Hon Mr Morand: Where would the Ministry of Labour employee go? Through the grievance procedure.

Mr Mammoliti: They certainly go the political route as well.

Hon Mr Morand: That's the same way the employee at the Ombudsman's office should go, the political route.

Mr Mammoliti: Then you would agree that politicians would have a hand in it, to a degree?

Hon Mr Morand: I would agree that they would have the same hand in it that they would have with any employee who came to them and said, "Hey, I didn't get a fair deal from the office that I work in." I would say that the member should have a right to go over to the Ombudsman's office and say: "I'm not here to talk about what you did. I'm here to talk about this employee." Indeed when I was Ombudsman, I had an open house for all the members of the Legislature. Generally speaking, I got along pretty well with the members.

Mr Mammoliti: You're easy to get along with.

Hon Mr Morand: There was one member who didn't like me at all because he had a complaint and I said his complaint wasn't justified. He never had a good word to say for me after that. I don't know whether he's still a member of the Legislature or not.

Mr Mammoliti: Thank you, Your Honour. I appreciate it.

The Chair: Your Honour, I want to thank you for taking the time this afternoon for that thoughtful and insightful presentation. Thank you very much.

Hon Mr Morand: Thank you.

The Chair: This committee stands adjourned until 10 am tomorrow morning.

The committee adjourned at 1554.