REVIEW OF OFFICE OF THE OMBUDSMAN
CONTENTS
Wednesday 18 November 1992
Review of Office of the Ombudsman
Law Society of Upper Canada
Allan A. Rock, treasurer
Richard Tinsley, secretary
Ontario Public School Boards' Association
Gail Nyberg, treasurer
Michael Benson, executive director
Ontario New Home Warranty Program
Reginald Ryan, chairman of the board
Barry Rose, president and registrar
Errata
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:
*Abel, Donald (Wentworth North/-Nord ND) for Mr Duignan
*Harrington, Margaret H. (Niagara Falls ND) for Mr Perruzza
*Mammoliti, George (Yorkview ND) for Mr Johnson
*In attendance / présents
Clerk / Greffier: Carrozza, Franco
Staff / Personnel: McNaught, Andrew, committee counsel and research officer, Legislative Research Service
The committee met at 1012 in room 151.
REVIEW OF OFFICE OF THE OMBUDSMAN
The Vice-Chair (Ms Christel Haeck): Ladies and gentlemen, I think we will begin. Thank you, Law Society of Upper Canada, for being very timely on a bad-weather day. I hope that the members of your delegation will introduce themselves so that we will have a record of it for Hansard. I believe you, Mr Rock, are the treasurer or the president, if you would introduce your committee.
LAW SOCIETY OF UPPER CANADA
Mr Allan Rock: I'll be happy to. May I introduce myself. My name is Allan Rock. I'm a lawyer practising here in Toronto. It's my privilege to serve as treasurer of the law society this year. "Treasurer" is the name of the position; it's the president or chief executive officer of the law society. It's an elected position. I'm elected by other benchers, whose role I'll describe in a few moments.
On my left is the undertreasurer, Donald Crosbie. The undertreasurer is a full-time staff position, the chief operating officer of the law society. On my right is Paul Lamek, a lawyer practising here in Toronto, an elected bencher serving this year as chair of the legal education committee of the law society, and on his right is Richard Tinsley, who's the secretary of the law society, again a full-time staff position. Don and Richard are the two senior staff people of the society.
May I say at the outset how grateful we are to you, Madam Chair, and to the committee for this opportunity to speak to this matter which is of significance to the law society. We propose to address primarily, in the time allotted to us this morning, the question put in the letter from the committee this past July with respect to the prospect of extending the jurisdiction of the Ombudsman to include the law society, as, for example, that one might complain to the Ombudsman arising from the disposition of a discipline matter.
I should point out that we have filed this morning with the committee a written submission which develops our position at greater length than time permits in the oral presentation. I respectfully invite the committee's attention to that written submission, which we have prepared in order to express our position in relation to the question the committee's put.
May I begin by providing just an overview of our position before inviting any questions the committee has. If I may ask the committee to look at the last page of our written submission, page 22, we have there set out our conclusions. I'd like to make my brief oral presentation in reference to those conclusions, if I may, and begin by suggesting that the jurisdiction of the Ombudsman should not be expanded to include any decisions of the law society, fundamentally because the law society is not a governmental organization.
Of course, a governmental organization can be defined by a change to the statute to include anything the Legislature wishes to include, but it's fundamental to our position that, as the statute now stands, the Ombudsman was intended as a recourse for those aggrieved by decisions of governmental organizations, including agencies of government, and the Ombudsman's reach ought not to be extended to private organizations or organizations with a public responsibility that are other than government organizations.
May I develop that point by inviting you to consider with me for a few moments the nature of the law society as it has developed over extended periods of time and as it's reflected in the present Law Society Act.
The law society in 1997 will celebrate its 200th anniversary; it was formed in 1797. It was incorporated in 1822 by act of the Legislature that we might acquire the land at Queen and University which is where Osgoode Hall now sits.
The law society is governed by persons elected by the profession called benchers after the old English tradition. The benchers sit in convocation and convocation is presided over by the treasurer, again after the old English tradition from the Inns of Court. But it's not just the 40 elected lawyers who govern the profession. There are important features of the profession's government that are relevant to this morning's discussion.
In the first place, as a result of an initiative taken by the benchers themselves there is lay involvement in the government of the law society. The statute now provides for the appointment by the Lieutenant Governor in Council of four non-lawyers who serve as benchers with full rights in convocation to provide a public participation in the affairs of the law society.
Those lay benchers sit on our committees, decide matters of discipline, participate in setting standards and work with us towards establishing the policies of the law society in the government of the profession in the public interest. Those lay benchers also have an important role in dealing with complaints. I'll deal with that more fully in a few moments.
The other aspect of the law society's government which I wish to emphasize for the purposes of this morning's presentation is the involvement of the Attorney General as a bencher of the law society.
Subsection 13(1) of the Law Society Act provides that the Attorney General is the guardian of the public interest in respect of the legal profession. It provides that the Attorney General is a bencher of the law society with full rights of other benchers; that the Attorney General may, in respect of any decision or step taken by the law society, call for the production of documents and make such investigations as may be required in order to ensure that the public interest is safeguarded.
The role of the Attorney General as an active bencher: The involvement of lay benchers as participants in our government, in my submission, establishes that there is already significant and very effective public involvement and accountability on the part of the law society as it governs the profession in the public interest.
I'm making the point that we're not a governmental organization and therefore it's inappropriate to extend the Ombudsman's jurisdiction to us, but that in the manner of our government of the profession, there's a public involvement. Indeed there's government involvement through the status of the Attorney General to ensure that we're accountable, both to the public and the government, and that our processes are open to that review.
May I point out as well that there is a public aspect to everything we do. Our convocations are held in public, our discipline proceedings are held in public and our reports are available and are given to the press and interested members of the public at all times, so there is clearly an opportunity for those who wish to know about what we're doing to get information.
The regulation-making power conferred upon us by the Law Society Act is subject to the approval of the Lieutenant Governor in Council. We, of course, cannot act alone.
So in structure and in practice there are crucial links between the society, the government and the public, but we are not a governmental organization.
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Let me turn to the next point made in the summary of our conclusions on page 22 of the written report, which is article 6.1.2: "There is no evidence of public need that justifies expanding the jurisdiction of the Ombudsman to include the law society." We respectfully ask you to conclude with us that the system in place at present at the law society is sufficient to meet the public need for accountability and responsiveness when there are complaints about the way that lawyers practise or misdeeds that lawyers may do.
Let me deal first with complaints. In 1986 we worked with Eleanor Meslin, who was then an officer in the Ombudsman's office, to develop a mechanism for dealing with complaints against lawyers from the public in a fashion that would meet the rigorous standards that are appropriate to a self-governing profession.
Working with her, we developed a mechanism by which complaints are received and assessed by the staff, and if they're not going to be acted upon -- that is to say, if the staff decide after investigating the matter that the complaint is unfounded -- the complainant member of the public would have the right to a review of that decision by a lay bencher and the lay bencher, sitting as a complaints commissioner, would have the final decision whether the complaint should indeed be dismissed or whether it should be passed on with a recommendation for further action to the chair of discipline or other officers of the law society. When the lay bencher sits as a complaints commissioner to perform that function, that person has independent counsel and operates independently of elected benchers in performing the function.
May I point out as well that in terms of meeting the public need for accountability we have mandatory liability insurance for errors and omissions. The lawyers have themselves, through their contributions, funded a compensation fund, which now has over $32 million in it, to meet claims from clients who lose money because of dishonesty on the part of lawyers.
We have public information initiatives, such as Dial-A-Law, which is a toll-free number that's available to residents of Ontario throughout the province and by which they may gain access to recorded tapes explaining different areas of law in a very capsulated form, including a tape on how to complain about your lawyer.
We have 41 full-time staff at the law society, at an annual cost of approximately $2.5 million, dealing with discipline and complaints matters.
In all, it's our respectful submission that it cannot be demonstrated that there's a need to add to the systems now in place an additional layer of recourse through the Ombudsman, because complainants, members of the public, who feel aggrieved already have effective ways of taking action.
Let me pass quickly to 6.1.3 in the list of conclusions, which deals with the public policy aspect of this matter. It's our submission to the committee that the overriding consideration in this analysis must be the need ultimately for an independent legal profession. It's the task of the lawyer to stand for the citizen when matters of property or person or rights are at issue, not only in private disputes but particularly and perhaps pre-eminently when there are controversies between the citizen and the state.
It's fundamental to our position on this issue, as in so much else, that lawyers and the law society must have that independence not only in perception but in reality that would permit us, if the case required it, to stand against the state.
The extension of the Ombudsman's jurisdiction to decisions of the law society would mean ultimately that the law society -- lawyers -- on matters of discipline or complaints or standards would be answerable to the government, to the Legislature, a result which, in our respectful view, is fundamentally inconsistent with what should be the paramount principle of the independence of the bar.
I say these things not out of mere form, not merely because they serve my present purpose; I refer to these principles because they are fundamental, enduring. Indeed, in 1980 when the professional organizations committee completed its landmark report on the professions, in passages that are referred to and quoted in our written submission it restates those principles in the strongest possible terms and return to them in making recommendations and prescribing guidelines for the governance of professions in Ontario. I say those principles ought not to be overlooked as this committee considers whether it's appropriate to extend the jurisdiction of the Ombudsman to matters affecting the law society.
Last, may I come to a conclusion by pointing out, as we do in paragraph 6.1.4, that we are on the threshold of changes in the Law Society Act, if the government accedes to requests we will shortly make of it, that will strengthen the position of the law society in three important respects: first, the establishment and enforcement of standards by which lawyers should practise in Ontario; second, dealing with complaints from members of the public about the conduct of lawyers; and third, dealing with the process of disciplining lawyers if we have allegations of misconduct against them.
That package, the proposed legislative reform, arises from years of work that we've done, commencing in about 1987, re-evaluating our standards, our complaints and our discipline processes. It's been a public process. We've involved members of the public as we've prepared the reforms. They are now being drafted in legislative terms by our consultants and we will submit them to the government, as I've mentioned to the Attorney General and the Deputy Attorney General, within the next 12 months.
These changes, which we refer to in more detail in our written submission, contemplate among other things the appointment of a complaints commissioner by government, the Attorney General, the public and the law society, so that the three stakeholders, if I may, are involved in the process of appointing the complaints commissioner, who would then ultimately determine the disposition of complaints against lawyers.
I don't wish to go over time. That's a summary of our position, a summary of the reasons why we suggest that it would be inappropriate, unnecessary and inconsistent with important principle to extend the jurisdiction of the Ombudsman to the law society.
My colleagues and I will be happy to receive your questions. I've invited them, if I may, to offer any answers that occur to them to questions that are put. Once again, I thank you for this opportunity this morning to make these representations.
The Chair (Mr Mark Morrow): Thank you very much. Any comments and/or questions?
Mr Bill Murdoch (Grey): First, I just want to apologize for being late, but I was in another meeting. I guess, Mark, you were looking for me too, trying to find me.
I'm sorry I was late and missed some of your presentation, but I take it that, quite strongly, you don't want us to put you under the jurisdiction of the Ombudsman. I don't think we ever thought we were going to, but it's nice to hear your report, telling us where you fit in. You're trying to look after your own organization through some new laws that may come through the House, so I guess we'll wait until we see them and go from there, but I don't think it was ever our intention to do that. As I say again, it's nice to hear from you, telling us your reasons why. That's all I really have, Mark.
Mr Rock: Lest it be thought that we've answered a question that wasn't put, we did receive a letter in July suggesting that the committee was going to examine the question as to whether the jurisdiction should be extended. It's for that reason we directed our --
Mr Murdoch: Yes, I understand that.
Ms Zanana L. Akande (St Andrew-St Patrick): I too must apologize for being late. This place hums with meetings.
Mr Murdoch: We weren't together, though.
Ms Akande: No.
The Chair: Thank you, Mr Murdoch, for that clarification.
Ms Akande: You get into a lot of trouble for those things.
Mr Murdoch: We only met in the hallway.
Ms Akande: I did want to ask you about the lay representation in your society. It says there are four persons who are members of the law society as lay benchers. I wanted to know what the total number of the group is so that I could have some idea about the percentage of lay representation that exists within that group.
Mr Rock: The total number of elected benchers is 40, that is to say, elected lawyers to serve as benchers, and four are appointed by the Lieutenant Governor in Council. So it's 10% at the moment. The legislative package we propose to deliver to the government within the next year contemplates an increase of lay involvement through the appointment of six additional lay benchers who would have responsibilities in the discipline field. So we do contemplate a broadening of the lay involvement, but at the moment it's 10%, or four of 40.
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We're aware, for example, of the changes in the medical profession that are anticipated when the Regulated Health Professions Act and code are enacted. It will increase lay involvement in that profession. We've been watching that with interest. As I say, we've already decided to ask the government for an increased lay involvement for discipline matters and we're quite happy to discuss whether there should be a level of increased lay involvement generally for matters of policy as well. But at present that's the position we've expressed.
Ms Akande: Let me ask you, then, since it's something your society has already discussed and is prepared to ask for, what has prompted, other than the real concerns about a profession examining itself, your decision to increase the number of lay representation by six and why in fact you have restricted it only to issues of discipline.
Mr Rock: To answer the first question, when we undertook a wholesale re-examination of our discipline procedures, we concluded that there should be a markedly increased involvement by lay persons in the discipline process. For example, on every discipline hearing panel of three, one person should be a lay person. On the authorization committee to decide whether to lay a charge or not, there should be lay involvement. When the matter comes before the group assembled as a whole for ultimate decision, there should be lay involvement. We found we'd allotted more responsibilities to lay persons than we had lay benchers, and so we concluded it was necessary to have a broadened lay involvement.
On the second question, when we made the decision that the involvement of the additional lay benchers should only be for discipline matters, that was 1990. We haven't considered the matter as a broad question of policy since then. At the time, it was felt that we already have a significant lay involvement in the making of policy in general matters and that it should remain predominantly a professional matter, with lawyers making the decision, what policy should govern the law society. I wonder today whether convocation might take a different position and whether there might be a preparedness to welcome an additional lay involvement in all matters involving the law society, but at least at the time, that was the consideration in our minds. My colleagues may have additional recollections.
Ms Akande: Certainly it's not my wish to monopolize, and I don't know if there are any other people who wish to ask questions, but I would certainly agree that additional representation should be a point of discussion for more than just discipline. Since law is whatever it's proven to be at the time and it is a relative thing and reflects the society's values, it would certainly be an advantage to have some of those values reflected by the persons who would sit, but I suppose that's the topic of another discussion for another meeting.
Mr Rock: Perhaps.
The Chair: Ms Haeck, please.
Ms Christel Haeck (St Catharines-Brock): I greet you in my other role as not just a vice-chair but as a sitting member. Following up on some of the comments that Mrs Akande has made, and knowing as someone who sat on boards in her own community that it takes a while to basically become conversant with what is happening on a board or an agency, what kind of orientation do you provide for lay benchers? I assume these are people who really and truly do not have any association with the legal profession other than that they're interested in the law?
Mr Rock: Let me respond by using an example, if I may. We were delighted earlier this year when the Lieutenant Governor in Council appointed Hope Sealey as our newest lay bencher. She joined us in August or September, I believe. In advance of her joining committees and convocation, we invited Ms Sealey to spend time with the law society -- secretary Richard Tinsley can provide greater details if his memory serves -- and to meet with lay benchers who have been serving for an extended period, that she might learn about the procedures in convocation and on our committees, ask any questions she might have, review and ask about material being provided to her and develop a feeling of comfort with what her new responsibilities entail.
Since that time, by coming to our committee meetings and participating in our processes, she has obviously learned a great deal. But in terms of formal orientation, I believe it consisted of meeting with the other lay benchers and spending at least a day, and perhaps longer, with the law society. Richard, can you provide further detail?
Mr Richard Tinsley: Yes. In addition to meeting with staff at the law society, we also provide them with copies of the last annual report, which sets out the major committees of the law society, the ongoing initiatives. We also have an orientation booklet which contains photographs of the senior staff, organization charts, and again a description of the standing committees of the law society and the current initiatives that each committee is going on.
We then sit down with the lay benchers, either by way of a telephone conversation or with them actually in the building, describe to them again, filling in whatever gaps may occur from their reading of the material, what committees they'd like to be on, saying what their area of expertise is. In the case of Ms Sealey, did she want to sit on communications committee? In most instances, they like to serve on committees they don't have the expertise in because that's what they do for a living and would rather work in compensation fund or some of the other committees.
Ms Haeck: The length of appointment, is it sort of typically three years, or is there a staggered appointment of lay benchers?
Mr Rock: I believe it's four years. The elected term of benchers is four years and I believe --
Mr Tinsley: The term of lay benchers runs concurrent with the election of the benchers so that they hold office following the election at which the benchers are elected until the next election of benchers. Some of them do apply for reappointment or are reappointed. Some of them decide that one term is all they wish to take and are not reappointed.
Ms Haeck: If I can make sort of an off-the-wall comment at this point, the public perception of groups like yours, as well as, say, the College of Physicians and Surgeons is one that it's a bit of a bastion that is very hard for average members of the public not only to really understand, but if they have a concern they're not always sure they are going to be fairly treated.
That's the kind of thing I hear in my office and I understand from the dialogue program -- I was a librarian in my other life, and having worked in the reference department for the better part of 16 years, I have an idea of what kinds of services you do provide. I do commend you for the fact that you are trying to be responsive to the public, but the perception is still there that it's not necessarily an average member of the public against the legal community; that it isn't necessarily a fair battle if there is a serious concern. How does one really level that playing field, to use the current jargon, so that people really do feel they're going to get a fair shake if they have a concern?
Mr Rock: If I may say so, that's the very concern that prompted the intensive investigation and assessment of our complaints process that June Callwood headed up in 1989 and 1990. We were delighted to have June Callwood as one of our lay benchers for four years, perhaps longer. One of her principal contributions to the public in that role was to chair a special committee looking into complaints procedures.
I referred earlier to a reform package for bringing forward to the government in the next 12 months. That package includes proposals to change our complaints procedures in a way that June Callwood and her committee proposed and convocation approved. Let me, with that background, respond to your question.
It was June's thesis that a law society dealing with complaints shouldn't act in so much a legal frame of mind -- that is, to say, "Has this complaint been made out, should it go forward to a formal hearing and is there sufficient evidence to take action?" -- but rather should approach it from a remedial point of view. Nine out of 10 complaints are problems with communication between the lawyer and the client. Eight out of 10 complaints can be readily resolved with staff working proactively with the client and the lawyer saying: "Come on, let's get to the root of this issue. What really is the problem here? Can't you do something about it to satisfy this client's concerns?"
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It was her thesis that if we took that approach to complaints instead of the more legalistic approach that we are used to, there would be a higher level of satisfaction and we'd tackle some of that feeling to which the Vice-Chair has referred, namely, the feeling that, "Osgoode Hall's a very large grey building and I don't want to go near it because it's a club." For example, she suggested telephone resolution of complaints. Many of her proposals we've implemented, the ones that don't require legislative change.
Instead of being lost in a sea of paperwork, where you have to write out your complaint and then have the lawyer respond in writing, when the client walked through the law society's door with a complaint, the staff member would get on the phone and say, "What is the real story here? I have someone in front of me who's very unhappy. What's your response?" and then put that to the client and engage in a dialogue trying to come to grips with the problem and resolve it quickly and effectively.
The legislative changes we propose would include empowering staff and ultimately the complaints commissioner to decide whether the complaint should be resolved on the spot, requiring the lawyer to refund the fee, or part of it, or turn over the file, or take other concrete, immediate action that produces results.
That's a long answer to your question, but I think the response ultimately will be that kind of approach: responsiveness, a practical, pragmatic dealing with complaints to see how they can be resolved, rather than whether they can be proven legalistically. That's the thrust of June's report which we've adopted, much of which we've implemented, and some of which requires legislative change. If the message gets out to the public, as we're trying to get it out, that we're committed to that kind of response when concerns or complaints arise, I think we'll go a long way towards meeting the appearance we have and to which you've referred.
Ms Haeck: If I can make a small suggestion to you, our offices as MPPs tend to be used as advocates in a small way and I would love to have some of this material so that when people come in -- and they do -- to make a complaint or basically say, "Look, I'm not getting heard. What channels do I have available?" we have the information pamphlet to hand to someone and say, "They are really trying to meet your need and this is a good route that I can recommend." There are 130 of us who definitely service all parts of the province, and I think we would all be doing our jobs to see that our constituents and your clients are being better served.
Mr Rock: I am delighted at the suggestion. I think it's a very good one and we'll act on it.
The Chair: I want to thank you for taking the time to appear before us this morning. I know you had a very busy schedule. Thank you all for appearing.
Mr Rock: It's we who thank you for the opportunity.
ONTARIO PUBLIC SCHOOL BOARDS' ASSOCIATION
The Chair: The next group appearing is the Ontario Public School Boards' Association, please. Thank you and welcome. I'll just wait a moment till the noise quiets down.
I want to thank you for appearing before us. You have one half-hour for your presentation. I hope you leave time at the end so the members can ask questions and/or comments. I will try and get them all in if I can. When you start, can you please read your names into the record and begin when you're ready?
Ms Gail Nyberg: Yes. The very first thing I would like to do is introduce myself because I am not, as your agenda says, Paula Dunning. I am Gail Nyberg, the treasurer of OPSBA. Due to some weather conditions, Paula did not want to risk the trek from Sault Ste Marie because she may not be able to get back. I'd like to introduce Mike Benson. Mike Benson is the executive director of OPSBA.
I'll give you a little bit of background on OPSBA before I begin. OPSBA is the Ontario Public School Boards' Association and we represent over 90 public boards in Ontario, of all sizes and from all regions. OPSBA's mission is to promote and enhance public education by assisting member boards in fulfilling their mandates by developing effective partnerships with other groups interested in public education, and providing a strong and effective voice speaking on behalf of public education in Ontario.
It's our belief that the role of public education is to provide every individual with equal access to education opportunities, regardless of gender, race, religion, ethnic origin, disability and place of residence in Ontario, in English or in French, consistent with the provisions of the Charter of Rights and Freedoms.
Locally elected school boards play a key role in ensuring that schools remain responsive to both the program requirements and resource limitations of the communities they serve.
We're very pleased and appreciate the opportunity to come and respond to this committee in the review of the Office of the Ombudsman. OPSBA, representing over 90 public boards from across the province, has an interest in any proposals that expand the jurisdiction of the Office of the Ombudsman to include the investigation of complaints regarding school board services.
The Ombudsman -- I have trouble with this word. Maybe our first recommendation is that we change the name.
Mr Murdoch: We don't have trouble here with that.
Ms Nyberg: The Ombudsman, in her recent report to the standing committee, stated, "While school boards are funded by a municipal tax base, an individual has very little recourse if there is dissatisfaction with actions or omissions of elected trustees and superintendents."
However, in our experience of school boards in Ontario, there currently exists practical and effective contact and influence by the electorate over the activities of their school boards. School trustees across the province are in regular contact with parents and ratepayers. Citizen delegations regularly appear at school board meetings.
As others have noted in the submission to the standing committee, most notably the Metropolitan Toronto School Board and the Ontario Separate School Trustees' Association, the Education Act provides a wide variety of provisions which ensure accountability and due process for individual parents and ratepayers. The following are just some of the key provisions the Education Act provides:
School boards are obliged to hold their board meetings in public and no one may be excluded except for improper conduct. School boards are only permitted to exclude the public from committee meetings, not board meetings, when the subject matter before the meeting falls within the narrow exceptions of security of property, disclosure of personal information, acquisition or disposal of property, labour negotiations and litigation.
Parents have the legal right to visit the schools their children attend.
School boards are obliged to give public access on request to records not containing personal information.
The Minister of Education is required to, and in practice does, ensure that all exceptional children in Ontario have appropriate special programs available to them.
Under the Education Act, the Minister of Education has very broad powers of investigation into any educational matter in Ontario and may refer any matter to the court for opinion and decision.
A parent of a pupil or a pupil, if that pupil is an adult, may appeal a suspension by the principal.
A pupil may be expelled by the board only after a hearing held on notice to the parent of the pupil.
The parent whose belief that his or her child is excused from compulsory attendance from school is challenged has the right to a hearing into the alleged excuse.
A parent has a right to participation in a hearing, conducted by a special committee composed of educators and a physician, into whether a pupil is unable to profit by instruction by reason of mental or other handicaps, to make representations to the board which considers the report of such a committee and to make representations to the special education tribunal if the parent brings an appeal to that body.
The parent of an exceptional pupil who does or may require a special education program has four opportunities to appeal the initial decision of the identification, placement and review committee related to the pupil's proposed program.
An applicant for admission to a secondary school who is denied admission by the principal may appeal the denial to the board.
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The parent, or pupil if an adult, has the absolute right to access to pupil records.
The parent, or the pupil if an adult, has the absolute right, even as against the usual court process, to control who, apart from educators who require access for educational reasons, may examine pupil records.
In addition the parent, or the pupil if an adult, has a right to require the principal to correct inaccuracies in or alter pupil records that are not conducive to the improvement of instruction of that pupil. In the case of refusal to correct or alter, a parent or a pupil has the right to appeal to the appropriate supervisory officer or to the provincial appointee who is required to hold a hearing before making a decision.
A teacher has a right to a hearing before a board of reference in the event of the board terminating his or her teaching contract.
These provisions in the Education Act, in addition to the provisions in the Statutory Powers Procedure Act which govern decision-making hearings, provide standards of procedural fairness. In addition, there is availability of judicial review in decision-making.
There are also additional accountability mechanisms which exist through the Municipal Freedom of Information and Protection of Privacy Act. School boards must report to the office of the municipal information and privacy commissioner each year on the activities that have occurred under this act.
In addition, changes are currently being considered by the provincial government with respect to the Municipal Conflict of Interest Act which may include revised and strengthened procedures for declaration by school trustees of assets and sources of income.
The Ontario Public School Boards' Association, in consultation with its member school boards, has responded to the three questions proposed in the statement of jurisdiction section of the standing committee report.
The first question is, should the jurisdiction of the Office of the Ombudsman be expanded to include locally elected school boards?
After consulting with all 90 member boards, the responding boards did not support the expansion of the jurisdiction of the Ombudsman to include school boards.
OPSBA and its members are always interested in improving service and accountability. Indeed, public school boards across this province emphasize the active involvement of parents and ratepayers. However, it is felt the expansion of the Office of the Ombudsman to include school boards would be redundant in light of the existing legislation and procedural safeguards which currently exist. The cost of expanding the role of the Ombudsman would therefore be a poor use of scarce resources which would be better used to further enhance the delivery of quality education.
Also, it must be recognized that locally elected school boards are local governments funded from the local property tax base. As local governments, school boards must reflect community needs and values, and therefore uniformity and standardization that is characteristic of provincial public services may not necessarily apply.
If the investigative activities of the Office of the Ombudsman were to be extended to school boards, the fundamental principles of local diversity and decision-making in the delivery of education must be recognized.
As well, OPSBA believes the power of the Ombudsman office should remain as in the current legislation, that of investigation and recommendations to, first, the responsible administration, then to the minister, and then to the Premier. OPSBA would not support any suggestions that the Ombudsman be given additional powers to mediate disputes or direct changes, as noted below.
The second question was, should the Ombudsman's power to make reports be altered in any way? Should the Ombudsman have the power to assist parties by acting as an impartial third party or arbitrator?
OPSBA would not support the suggestion that additional powers for resolution of disputes be provided to the Ombudsman. The Ombudsman should make recommendations only. The resolution of the problem should remain the jurisdiction of the local government accountable for that service; that is, the provincial or local levels of government. The present process of drawing issues to the attention of, first, the authority in question, then to the minister responsible, and lastly to the Premier, is the preferred process.
Are any amendments necessary to give greater effect to the recommendations of the Ombudsman? Should government organizations be authorized to make payments to complainants or to reconsider decisions in response to Ombudsman recommendations?
OPSBA would not support any changes in legislation which would result in payments to complainants. It is our understanding that the Ombudsman's office provides all citizens with a relatively accessible avenue to launch complaints about public services. The investigation process is a confidential one. It is not a legal process and therefore does not require payment-of-costs provisions.
The Ontario Public School Boards' Association appreciates this opportunity to present to you and we welcome your questions.
The Vice-Chair: Thank you very much for your presentation. I would ask Mrs Akande to pose her question.
Ms Akande: Thank you very much. In my previous life I was a school principal, something that I miss --
Ms Nyberg: More these days?
Ms Akande: -- so I'm quite aware of and respectful of the locally elected school boards' responsibilities. However, the fact that school boards are intended to reflect the communities in which they're elected sometimes puts them at odds with the ministry's directions, or at least with the emphasis expected within the ministry's directions, and that conflict causes some people within those boards, some students, to be served, let us say, differently from what is acceptable. How would you recommend that this conflict be solved? I recognize there is a process, but it is not fast.
Ms Nyberg: I think I understand the question, and maybe if I can phrase it so I'm sure that I understand what you're saying, and if I use an example, it may help me, and that is around the whole issue of special education.
We know that Bill 82 is very specific in the needs of a child, and there are all those levels of appeal, but sometimes boards, in order to save money, do not follow the legislation quite the way, possibly, you and I would like.
The reason I believe that the way the process exists now is the best is that they do have their local trustee and then the board, and they are usually much more powerful in that community than any other government agencies in terms of their electability being on the line with the parents.
I also believe it's only upon some investigation by the minister that the Ministry of Education could determine that this board is not following the recommendations. That's why I believe, as they exist now, those procedures are better to address the problem that you've brought up.
Ms Akande: Would you accept, though, in the hypothetical situation that you've used, that a parent continuing to be dissatisfied with the ministry's involvement would then have appropriate recourse to the Ombudsman in order to effect some more speedy decision by the ministry?
Ms Nyberg: I know where you're going and I sympathize with where you're going, but I believe that after a parent has gone to the local board, the local MPP -- because the province has responsibility for education -- the Minister of Education and subsequently the Premier's office, if that parent has not got satisfaction, that satisfaction is not going to happen.
Ms Akande: I'm not as willing to give up on that, but thank you.
The Vice-Chair: Are there any other questions? Mr Murdoch.
Mr Murdoch: I don't really have a question, just a statement. I just want to thank you for bringing this to us, and I certainly believe what you said here is right. I believe in the local autonomy and I think that's the way it should be run. I just appreciate your giving this to us so that when we make our recommendations, we have this with us. But I am in agreement with what you have to say.
Ms Nyberg: Thank you.
The Vice-Chair: Are there any other questions? Mrs Harrington.
Ms Margaret H. Harrington (Niagara Falls): I wanted to ask you if you would be willing to comment on the broader aspect of the idea of the Ombudsman's office in Ontario. We've been looking at it and comparing it with other jurisdictions. I know you probably are very busy just within your own scope, but perhaps I could pose this question to you and see if you feel comfortable answering.
I think the basic question that we're trying to get at is the definition of independence from government. The Ombudsman's office is to be responsive to the people of Ontario as an independent arbitrator, yet in some sense it is accountable to the Legislature. So that's what we're trying to get at, this definition of what "independence" in this case really means.
The fact that we have a standing committee on the Ombudsman of the Legislature in some ways gives the Ombudsman more backing so that if her recommendations are not carried out, this committee can then look at that.
But what I really want to ask you is if you have any comments you would feel comfortable making with regard to how you see the Office of the Ombudsman connecting, as being independent yet being accountable to the Legislature.
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Ms Nyberg: I would like to try then, and I'm sure Mr Benson would. I want to make something clear before I do: It will be my comment and not the comment of OPSBA at this time.
I appreciate the job the Office of the Ombudsman does. As an individual citizen, I have never accessed it, but I'm very happy it's there. I have a little difficulty in understanding how you're independent when the people who are responsible for whether you sit there are the government. When the government doesn't like the kinds of things you're doing, you're not there, so maybe I question a little bit their real independence from a personal level. I do accept and am happy that they're there, but I have some questions about whether they really are independent.
Mr Michael Benson: If I might, I think most reasonable people would believe that there is an important role for an Ombudsman, particularly at a provincial level, where perhaps the activities and the decisions at the provincial level of government are just a bit more distant from the communities as compared to, let's say, school boards, which are very closely tied to communities. If people have a disagreement, their accessibility is, I guess, that much closer; for example, Mrs Akande's comments with respect to a concern about the Ministry of Education as separate from school boards. That likely is a role for an Ombudsman to intervene if there's not satisfaction at the provincial level with respect to a decision that's been made at the ministry.
Its independence: There is a role for someone such as the Ombudsman to be independent of government, but of course any body needs to be accountable in some fashion and it would make sense that, over government services, the accountability be to the Legislature, which is the present practice of the Ombudsman. I think by and large that's something most people would find acceptable, in that last recourse kind of process; that people who have had frustrated attempts at the various processes that are in place, that's their last recourse place they go to.
With respect to the school board level, though, the Legislature has so many procedures and processes in place already to account for almost any eventuality you can imagine, whether it be student concerns, parent concerns, the taxpayer, teachers. If they have certain concerns with the board, the solution there is through mechanisms which have been legislated. The need at that level seems a little more redundant, and in very tight fiscal times, one questions the benefit of that.
Ms Harrington: Just to briefly follow up, do you see any problem with the way the accountability is now, the independence?
Mr Benson: I don't. Certainly at a personal level, I do not see a problem with the accountability being to the Legislature, that there be a function like that within the broader context of the government activity.
Ms Harrington: Thank you.
Ms Haeck: I have to say that while I understand a number of your points, I'm going to reflect some of the concerns from within my community, so they're not necessarily going to be what you have put forward.
People, my way -- and that happens to be St Catharines-Brock, so St Catharines and the town of Niagara-on-the-Lake -- have some concerns relating to accountability. They also feel in some respects, and it's not just strictly a monetary one, that they would like to feel there is some sort of appeal mechanism if they see that a decision has been made which puts them at a disadvantage.
I'll give you a local instance relating to a transportation committee recommendation to change how students are bused and what kind of subsidy is available for student busing. A number of parents who are low-income or on assistance felt that they were put at very serious disadvantage as a result of that decision, because they see school boards as being taxpayer supported and they should be listening to them if they are in a disadvantaged situation. Despite having appealed to the transportation committee and then the board as a whole, they still have not felt that they have had an impartial hearing.
Further, the Ombudsman looks at issues like timeliness, whether procedures are in place, a range of issues like that, to make sure that there has been sort of a fair hearing of that individual or that group. I would be interested in hearing your remarks as to the responsiveness of the boards to issues like giving timely answers, dealing with the disadvantaged, as well as having the appropriate procedures giving a sense of fairness to the constituent.
Ms Nyberg: I'll let Mr Benson go first.
Mr Benson: I don't know the specifics of the situation you're describing, but in general it would be wonderful if we could pick up every child and take them to school. That's a given that would be a tremendous service to be able to deliver. The challenge for a board of education is one of ensuring that there's proper accessibility for all -- that's what public education's about -- on the one hand, and the costs of providing that, on the other, so there's a constant tension between trying to meet the needs and provide the service that's been requested, and the cost involved in doing that.
Without knowing the details of this, that's one of the roles of a school board, and it has to make decisions. Whenever that's the case, there are going to be times when people are going to be less happy with the decision than if it went their way.
Having said that, if there is real concern with respect to the impartiality of the hearing, then that's something a little bit different. Within the education system, typically the appeals then would be through the ministry on those kinds of things. You deal with the board first. If it's a question of impartiality of the board, the Minister of Education, I'm sure, would have many letters. The minister has very broad powers under the act that she's responsible for to look into that kind of thing to see if there's any merit in taking it further. So there are mechanisms there to deal with those kinds of things right now.
Ms Nyberg: What I would add is that when you don't know the details, it's hard to make some kind of decision, but I think the role of that school board is to listen to all the details, like Mike said, and there's always going to be somebody not happy with the decision. To give you a local example, recently the board that I sit on overturned a suspension that a school had issued. We had some very happy parents, we had what I consider very responsible trustees, but we had some very unhappy school administrators.
Very rarely, as the decisions that you also make in government, does the decision make everybody happy. It's hard to comment on your specific case because I don't have all the facts, but they certainly do have the avenue of the Ministry of Education when they believe that it was not a fair decision.
Ms Haeck: Just a quick comment as well: On page 4 of your brief, the second-last bullet point, you mention that your mechanisms for accountability also include "alter pupil records that are not conducive to the improvement of instruction of the pupil." Could you explain that?
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Ms Nyberg: Every student in Ontario has a record called an Ontario student record, what we know as OSR, and there is very tight regulation of what could be in there and I'll give you an example.
If there was a letter on file, say, from grade 2 that said the student was a behaviour problem and it's now grade 5 and little Johnny is no longer a behaviour problem and that has been corrected, it may be not conducive to his education to have that in his OSR so that his next teacher looks at it. A parent can request that that kind of material be removed.
Ms Haeck: Okay. I've had representation from a parent who felt that since her son -- and this was the comment she made -- was violent and that he had not only assaulted students but had intimidated a number of teachers, somehow the school wasn't supporting her in her efforts to get some sort of care for him --
Ms Nyberg: You want to put it in.
Ms Haeck: Yes, and she felt that it wasn't there. Would that be something that, despite the fact of her request, should be there?
Ms Nyberg: I don't have the act with me but even if I did, I believe that if you can get something out, there must be a way to get something in. To try to answer that -- I really don't know the answer. I've never had a parent want to get something in, but I have had a number want to get something out.
Ms Haeck: Okay. Thank you very much.
Ms Akande: One other thing, and very quickly. You have pointed out well in your presentation, and I thank you for that, the process by which complaints or issues are dealt with. However, there seems, at the end of the day, only a process for soliciting support. There doesn't seem any real basis for the resolution of the conflict. May I suggest to you that it may well be a role for the Ombudsman -- and not necessarily -- to act as a mediator, let us say in your previous suggestion or situation, between the board and the ministry in situations of conflict.
Ms Nyberg: It's one I haven't given any thought to, but it's one I certainly would be interested in listening to more on.
The Chair: Thank you very much, Ms Akande. Any further questions and/or comments? Seeing none, I want to thank you for taking time out of your busy schedule to appear before us this morning.
ONTARIO NEW HOME WARRANTY PROGRAM
The Chair: The next group appearing is the New Home Warranty Program. Good morning, ladies and gentlemen. I want to thank you for taking the time this morning. You have a half-hour for your presentation. I hope you would leave some time at the end for questions and/or comments from the members. As you begin, I ask that you read your names into the record for us. Take your time, feel relaxed, and begin when you're ready.
Mr Reginald Ryan: Fine. Thank you very much, Mr Chairman. Good morning, ladies and gentlemen. I'd like to introduce Ms Joan Huzar, who's a representative of consumers on our board of directors; Jan Mowat, the manager of communications in the warranty program; Steve Martin, our corporate solicitor; Aubrey LeBlanc, our chief operating officer and Mr Barry Rose, president, registrar and chief executive officer of the organization.
I'd like to thank you very much for inviting us here this morning to make this presentation before your committee. Time has not stopped for the warranty program since we last appeared before the committee in 1988. Today I would like to briefly review for you what we've been doing and where we're at. To set the stage for the discussion, I'd like to begin by giving a quick overview of the warranty program.
The Ontario New Home Warranty Program, which is the name of the corporation that administers the program, was established in 1976 to protect consumers by administering and enforcing the Ontario New Home Warranties Plan Act. Our goals are three-pronged: consumer protection, builder regulation and builder education. We want to ensure that every new home purchaser in Ontario receives a high-quality product.
The Ontario New Home Warranty Program is the only mandatory warranty program in Canada. As you probably know, every province in Canada has warranty, but in the other provinces the program is voluntary, and to the extent that some builders do not belong to the programs, there are quite a number of home buyers in other provinces who do not have the benefit of the warranty program that we have in Ontario.
We are an independent, non-profit corporation, one of the few corporations that I'm aware of that is separate and apart from the government of Ontario but administers a provincial statute. We are funded solely by builder registration, renewal and enrolment fees. Both our operating budget and our guarantee fund are derived from these fees. We do not receive one cent of government funding.
Currently there are approximately 5,500 builders registered with the program. Since 1976 the registrar has refused or revoked the registration of almost 2,000 builders who did not meet the program's standards or requirements.
The warranty program has provided protection to the buyers of more than 600,000 new homes in Ontario since its inception. Currently there are over 300,000 units covered.
The composition of our board of directors guarantees representation from our key stakeholders. The board includes representatives from the builders, consumers, the Ministry of Consumer and Commercial Relations, municipalities, mortgage lenders and mortgage insurers.
As evidence of our continuing commitment to improve warranty protection for new home buyers, we have undertaken initiatives to enhance our warranty coverage.
In 1989 we increased the maximum total warranty coverage for each single-family home or condominium unit from $50,000 to $100,000.
For new homes enrolled after December 31, 1990, the builder's warranty obligations were extended to two years on the building envelope as well as two years for defects in materials and workmanship in the electrical, plumbing, heating and distribution systems and for violations against the health and safety provisions of the Ontario Building Code. Basement leaks have been covered for two years since 1987.
Protection against major structural defects has been increased from five years to seven years.
Delayed closing coverage for freehold homes was provided in 1988, and in 1991 a similar enhancement was introduced to protect condominium unit buyers against delayed occupancy.
The Ontario New Home Warranty Program offers new home buyers substantial warranty protection. As I mentioned earlier, the total maximum warranty coverage on each home or condominium unit enrolled in the program is $100,000. The common elements of condominium projects are covered up to a maximum of $2.5 million.
In addition to a head office which is located in North York, the Ontario New Home Warranty Program has eight regional offices across Ontario to serve new home buyers. We took steps to streamline the claims process in our organization earlier this year. Now, once we receive a complaint, a warranty specialist from the local regional office is assigned to manage it through to a successful conclusion. We believe that having one central contact will enable us to handle these problems more efficiently as well as create a smoother process for the home buyer.
Once we receive a complaint from a home owner we advise the builder immediately. While our negotiations are informal at this point, clearly we want the builder and the owner to resolve the dispute. If the problem cannot be settled, we send a trained conciliator to inspect the home and to meet the home owner and the builder together.
Both the home owner and the builder receive a copy of the conciliator's written conciliation report. If either does not agree with the findings, he or she may discuss it or their problem with the program's regional manager, who will use his best efforts to produce a solution.
Home owners who take issue with any decision arising out of a formal conciliation have an absolute right of appeal to the Commercial Registration Appeal Tribunal.
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Once we are advised that the home owner wishes to pursue the appeal process, a further review is carried out at head office by a senior management team and a strong effort is made to negotiate a settlement. The warranty program views the tribunal as an avenue of last resort and works very hard and successfully to negotiate a settlement beforehand.
If the review by senior management is not successful, then the matter is heard and ruled on by the Commercial Registration Appeal Tribunal. Home owners who are not satisfied with the decision of the tribunal have a last avenue of appeal through the Divisional Court to the Supreme Court of Ontario.
Throughout the process, of course, home owners may appeal, and some do, to their civic politicians, to their MPP or the Minister of Consumer and Commercial Relations with a request that they look into the problem on their behalf. This committee is aware, of course, that both the tribunal's decisions and requests brought to the attention of the minister's office can be fully reviewed by the Office of the Ombudsman.
Since the warranty program's last presentation to this committee in 1988 we are not aware of the Ombudsman's office being directly involved in either a review of a CRAT decision or a warranty problem in which the ministry was involved.
I believe the Ontario New Home Warranty Program's track record in dealing with home owner complaints has been quite successful. Over the past five years, an average of only six out of every 10,000 new home buyers have actually appeared before the Commercial Registration Appeal Tribunal. That's six in 10,000 new homes that have been built and sold.
Looking at the picture on a global basis, over the past five years we have provided warranty coverage for 273,375 homes and participated in only 162 appeals before the tribunal.
To date, the warranty program has paid out over $100 million in single-family and condominium claims. We see preventing construction defects as a good business strategy to effectively control and reduce our claims costs. How is our prevention strategy relevant to consumers? We believe that it reinforces to new home buyers our cornerstone message, which is "Choose a reputable builder."
To help consumers effectively research builders in their area, we produce each year a booklet that we call the Home Buyer's Guide to After Sales Service. I believe you have that in the material that was provided to you. This booklet's been published since 1988, and the book rates the consumer service track records of all builders registered with the program on a named basis.
One of our most important initiatives -- indeed, I know of no other warranty program which has embarked on so ambitious an undertaking -- the book has proven to be not only an excellent way of helping new home buyers to choose a builder but also is an excellent tool in encouraging builders to improve their after-sales service. Approximately 90% of the ratings in the 1992 guide were above average or excellent, compared with approximately 80% in the 1990 edition. So there has been improvement over the past two years to where we've now achieved a very high level, from our standpoint.
The warranty program places great importance on making consumers aware of the program and helping them understand their warranty coverage. In addition to the series of booklets and brochures included in your briefing book, we also produce a newspaper column which appears weekly in many high-circulation newspapers across the province. Warranty program staff are also regular speakers at new home buyer seminars held in numerous cities.
Prevention is also an important strategy in our builder regulation activities. Realizing that we, on our own, cannot accomplish our goal of having all new homes in Ontario built free of defects, the warranty program has undertaken a leadership role in developing a number of prevention programs in partnership with various segments of the residential housing industry.
For example, we have recently initiated an experimental project in Hamilton to explore the feasibility of having a municipal building department carry out inspections on behalf of the warranty program when building inspectors are on the site. Similarly, we are reaching out to manufacturers of building materials. We are accumulating a claims database which will be second to none in terms of tracking defects in building materials. In many cases, the warranty program is probably aware of problems before the manufacturer is. We are establishing communication links to share this information with them.
We are also working to make architects and engineers accountable for technical audit findings and conclusions. These reports are important documents in identifying and correcting defects in design, materials and workmanship early in the game and lead to fewer complaints and claims, especially in condominium projects. We also hope that they will use this knowledge in future projects.
The Ontario New Home Warranty Program has worked closely with the Ministry of Housing in developing proposed amendments to the Ontario Building Code. I am proud of the lead role the program has taken in developing a partnership with the Ministry of Housing, the Ontario Building Officials Association, Ontario Hydro and the Ontario Home Builders' Association to produce a series of one-day workshops across Ontario to train members of the residential building industry on the proposed amendments to the Ontario Building Code. The series will be held in the spring of 1993, to coincide with the implementation of the new code.
In addition, we've undertaken an initiative to ensure that the residential building industry can deliver on the proposed changes to the code. For example, information gathered from a ventilation field demonstration is being sent to the Ministry of Housing for analysis and will prove important in influencing the specifications of the new ventilation provisions in the new code.
In September, the warranty program also appeared before the standing committee on social development in support of Bill 112, An Act to revise the Building Code Act. Three years ago, the warranty program created the Ernest Assaly award, named after our first chairman, to recognize excellence in after-sales service and quality of construction. The selection process is rigorous and has been carefully developed to be fair to small and large builders. It is no overstatement to say that the award is coveted by the residential building industry. Again, home buyers benefit from the builder's pursuit of excellence and pursuit of this award.
Based on performance, we believe that the Ontario New Home Warranty Program is fulfilling its warranty obligations efficiently and effectively and that our processes are just and fair. We believe that the warranty program demonstrates a real concern for new home buyers in Ontario and that substantial safeguards are in place to ensure their fair treatment.
That concludes our presentation, Mr Chairman. I and my colleagues will be pleased to answer any questions your group may wish to put to us.
Ms Haeck: Thank you very much. It's been an illuminating presentation and I appreciate your comments. I have to say that my office so far has had only one or maybe two complaints regarding the building of a home, so I guess that speaks for the industry, and yet again I guess we do have some questions, since not all of the builders are registered.
My question really relates to, how is this particular handy volume distributed? I have been working in libraries a good part of my adult life and I have never seen this before. I think it's something that should get wider distribution, so I'd be anxious to know how you get it around.
Mr Barry Rose: We hope it is getting to libraries. I'm glad you've brought that up, because we do make it a point to try to get it into all the libraries we can as a reference book.
Ms Haeck: Could I ask you to check with your communications, your customer service people?
Mr Rose: We will indeed.
Ms Haeck: I think it's something people really should have an opportunity to consult and determine if the builder they have chosen is somebody who is a reputable builder.
Mr Rose: Thank you very much. The other ways people get it is that we advertise and they can phone in; there's a 1-800 number. We also distribute it at home shows throughout the province.
Ms Haeck: As far as getting out some of the other information about the program is concerned, are any registered builders required to hand out information about the program? When people are signing on the contract, say, do they have any idea of what the program's about in advance of actually signing on with the builder?
Mr Rose: It's not a requirement of their registration with the program, but what the builders should do is that we provide them with our brochures and they should hand that brochure to a potential home buyer. I couldn't guarantee that every builder in Ontario, though, did that.
The other thing they do have to provide by statute is a certificate of completion and possession by the warranty program when the home owner closes on the purchase. That guarantees that the home owner receives his warranty certificate.
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Ms Haeck: Does that also then require the builder to walk the property with the new owner so they are satisfied that if there are deficiencies, they will be corrected?
Mr Rose: Absolutely. It's very important that they both note the deficiencies on that certificate at the time of closing and that anything that has been noted on that claim has been accepted by the Commercial Registration Appeal Tribunal as a complaint or statement for claim.
Ms Akande: I too appreciate the material and the information. I must say I've never bought a new home, but I have been in touch with people who have and I have heard the succession of horror stories sometimes around things that are less than adequately completed, and the long harangues they've had with builders. I've heard your answer to Ms Haeck that you can't guarantee that every builder gives everyone the information, nor can you guarantee that every home owner reads it, but at the same time, I am wondering to what extent you monitor or even spot-check to see how widely known, how widely communicated, the information about your services is.
Mr Ryan: Actually, we've been conducting what you might call consumer surveys of people who have bought homes on that very issue, and I guess we're finding that we're not as successful as we'd like to be in having material put in their hands. It's an ongoing effort and one that's receiving more attention over the last few years.
It's not easy, because as you realize -- you've never bought a home -- it's not like buying toothpaste. A person maybe buys a home once every five or six years or maybe it's once every 10 years. You can spend a lot of money advertising in the paper and waste it. The point is to try to get the information available at some point of sale or point in their journey from the decision they make that they want to buy until they actually make it, so they get their hands on this information.
We still have a pretty big job to do with builders. I really feel that the builder should have that material in his sales office, which his potential customers can pick up. That's the best place. We are spending money with pamphlets, we go to home shows, we have a newspaper article and our people appear on the stage for new home buyer seminars that take place throughout the province, but still you don't get everybody. It's an ongoing thing.
Ms Akande: Might I suggest that since it's mandatory that they belong to the association, it might also be made mandatory that at the time the agreement is signed, the lawyer --
Mr Ryan: It's something we should consider.
Mr Rose: I'm sorry; I missed that.
Ms Akande: I might suggest that at the time the agreement is being signed, if it's mandatory that these builders belong to the association, it should also be mandatory that they give that material to the buyer. Also, it might be an opportunity to do that when they are in interaction with their lawyer, because there's usually a great load of paper around that issue and that might well be emphasized. The program is extremely good but it's only good if people are aware of it, use it and take advantage of it.
Did you want to respond to what I was saying, because I do have one other question?
Mr Rose: I was just going to add that in the survey the chairman referred to, 72% of the home buyers canvassed on that survey had actually seen the guide but only a quarter of them used it as a decision tool. So that shows you. There are other things. Of course the sales people are bringing a perspective as well from the builder.
Ms Akande: The other thing I wanted to mention was the fact that a lot of your program deals with prevention, making sure that things are done properly in the first place and changing the standards to make sure that builders adhere to them. That's a tremendous job. Prevention is wonderful, but nevertheless things do sometimes go wrong, and when they do, and when it cannot be settled, even in spite of the guidelines that are laid down, do you not see that there is a role for someone outside the group to make decisions or to help mediate -- arbitrate perhaps -- or to help bring this to some effective conclusion that is inexpensive as well as effective?
Mr Ryan: I guess the CRAT is looked upon as outside, certainly by our organization, and is, I would feel, an independent body that will make objective decisions on the problems before it. I would say also that we have been doing a bit of experimentation ourselves in this whole area of mediation, and have given consideration to whether or not bringing in an outside arbitrator at some stage might be a worthwhile exercise.
We haven't done it yet, but we have introduced additional steps in the process that are in-house; for instance, the senior management group at head office. Sometimes it happens, when you're too close to the situation, that there's a benefit from having somebody more detached look at the problem, and I think the results of the senior management group getting involved have been very positive and quite effective. They've been able to bring to a satisfactory conclusion a number of cases that were scheduled to go to CRAT, but that this not quite independent, but at least more detached group has been able to resolve.
Ms Akande: I think that's commendable, but as a final analysis, sometimes there's always the one or two, and I'm just wondering about the effectiveness of an independent arbitrator or mediator when all other resources have been exhausted, whether that role might not assumed by the Ombudsman.
Mr Ryan: The Ombudsman of course does have the power to examine what CRAT comes out with with respect to a decision. You're suggesting before?
Ms Akande: I'm suggesting that with the agreement of both parties --
Mr Ryan: Oh, I see.
Ms Akande: -- when an impasse has been reached and has been recognized, it might be cheaper and more efficient to involve such a person.
Mr Rose: Perhaps I could add to that. The present tribunal process is such that it does not cost the home owner or the builder any money unless they decide to have counsel, so it is a free process. I think in some ways our people who are trying to negotiate a settlement between a builder and a home owner are almost doing a conciliatory role that might be not unlike that which the Ombudsman or somebody else might come in to do.
Our job is to try to conciliate. Our act is quite clear that this is our job, to try to facilitate a conciliation or agreement, and that the appeal process is there to protect either party that may not like the decision. If I revoke a builder or propose to revoke a builder, he has a right, because I'm proposing to take his livelihood away. With respect to home owners, if they feel they have not had their warranty lived up to by the builder, we're there to mediate and conciliate. It's very much part of our process.
Mr Ryan: If I could just make one comment, you know that I mentioned that six in 10,000 cases were going to CRAT. If that number were 200 or 300, then I'd be much more responsive to your suggestion, but it seems to me that a number that low is very strong evidence that the process works.
Often these issues are not clear-cut either. We have a responsibility to the home owner, and in some respects to the builder, because we are not in a position to impose obligations on him where he shouldn't have them.
Ms Akande: It's because I recognize that the process does work so well and that there are so few cases that I would recommend perhaps the other, because I know it would be so seldom.
Mr Ryan: Yes, right.
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Ms Harrington: Mr Ryan, thank you very much for coming. I also want to note, because I'm with the Ministry of Housing, the help that both Mr Rose and Mr LeBlanc were at the beginning of September on our hearings for Bill 112. We appreciate your input and we also look forward to next spring when you're going to be working with various agencies plus the ministry with regard to the new building code. That is a good relationship, I believe.
This has been a good opportunity to promote how successful your organization is. I hope some people will be watching and looking for the information that Ms Haeck has held up here that is out there. You've also promoted very well the idea that it's not one cent of taxpayers' money. This is a program that is working for people.
I'd like to come to the question of the role of the Ombudsman. My colleague has asked whether or not there is any role that you can see for the Ombudsman. I think you've answered clearly that you feel there is the CRAT committee, which is a judicial-type body, so I guess the answer to that question is that you don't see a role. Is that correct?
Mr Rose: Not until after the tribunal. Once the tribunal's decision is given, as I understand it, there is a right of appeal to the Ombudsman, or with any matter that is dealt with by the minister's office. But we feel that in fact we're almost forming a quasi-Ombudsman role in our present work and that the Ombudsman would be -- if the builder or the home owner felt there was an injustice at the tribunal level, they have the route of going to the Ombudsman or they have the route of going through the court system.
Ms Harrington: You've made that clear. I would like to just go a step further and ask if you have any comments you'd like to make on your view of the Ombudsman's office of Ontario and whether or not it is working efficiently and effectively. Would you like to make any comment on that?
Mr Rose: Since we've really had nothing to do with it as a program, we couldn't really comment one way or the other. We've not had, as the chairman mentioned in his remarks, that we're aware of, any involvement by the Ombudsman in one of our two client groups, either builders or home owners. We have to be neutral on that, unless perhaps --
Mr Ryan: No, I'm afraid I would not like to make a comment without knowing the facts.
Mr Murdoch: I just want to thank you for bringing your submission to us today. Not all builders belong, though, do they?
Mr Ryan: Well, the law requires that every builder register. Some do not. Even with those who do not register, though, the people who buy a home from them are covered under the warranty act and the warranty program. We pay claims with respect to builders who don't register. We try to catch them. We have a staff of three who move around and try to find homes going up that are not being put up by registered builders, and that's reasonably successful. We take them to court. Sometimes they get fined and sometimes it's a good amount that acts as a deterrent.
I guess what would really help us the most would be if all municipalities would not issue a building permit until they had evidence that the builder was registered and in good standing with the program. Unfortunately, that's not the case. We're trying to improve our linkages with municipalities to get them on side in that way. Hopefully, we'll be more and more successful as time goes on.
Mr Murdoch: What happens, though, if the person wants to build his own home?
Mr Ryan: No problem. I mean, if you build your own, you're not covered by the warranty.
Mr Murdoch: Okay, but that's the way they get around it, isn't it? There's no warranty. Where we run into a problem is somebody -- I think Ms Akande said some of the horror stories you hear. If you build your home to get around that and then someone comes along and buys the home, then we're in a bit of trouble, aren't we? That's just where it is. I just wondered if you had any ideas what we can do there.
Mr Rose: Perhaps I could just comment a little bit further. There are some people who make it a practice to build a new home ever year and sell it.
Mr Murdoch: I realize that.
Mr Rose: What we try and do is if we can determine there is a trail, if in fact they are acting as builder-vendors, we will take them to court.
Mr Murdoch: Okay, I know that happens. Thank you. That's all I have, Mr Chair. Mr Ryan: We were hoping you might have a suggestion that we could use.
Mr Murdoch: I think your suggestion is that we work with the municipalities. The municipalities know a lot of the builders who build their own, as I just said, maybe every year. The building inspectors know who they are and they could soon sort that out.
Mr Ryan: Yes, that will help.
Mr Murdoch: It's good to hear that you're working with the different building inspectors in the municipalities, because I think that's the only way you're going to be able to solve that problem.
The Chair: Any further questions and/or comments?
Ms Akande: Just one. I live in an older area of the city, Forest Hill, where some of the homes are refurbished. What would happen, for example, when we built our extension? I know there were inspectors etc, but that would not fall under this at all. This is simply new homes?
Mr Ryan: Yes, completely new.
Ms Akande: Some of them are really completely new. I think they take everything but the cellar. Okay, thank you very much.
Mr Ryan: You've got to be even more careful there than with a new home, when you're deciding who's going to do the work for you.
Ms Akande: Certainly.
The Chair: Thank you very much. I want to thank you for taking the time to appear before us this morning. I can imagine your schedule is rather busy.
This committee will now stand in recess upon the call of the Chair.
The committee continued in camera at 1147.