CONTENTS
Wednesday 28 October 1992
Review of Office of the Ombudsman of Ontario
Robert W. Macaulay
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:
*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, legislative counsel and research officer, Legislative Research Service
The committee met at 1013 in room 151.
REVIEW OF OFFICE OF THE OMBUDSMAN
The Chair (Mr Mark Morrow): Can I call this meeting to order, please? Good morning. I'm Mark Morrow, chairperson of the standing committee on the Ombudsman. We're here this morning again doing a review of the Office of the Ombudsman, and this morning I'm pleased to have before us Robert W. Macaulay, QC, author of Directions: Review of Ontario's Regulatory Agencies. Good morning, sir. You have as much time as you need this morning. Please leave some time at the end for questions and/or comments by the members. Although I have stated your name, would you please officially state your name for the record?
ROBERT W. MACAULAY
Mr Robert W. Macaulay: Thank you, Mr Chairman, ladies and gentleman. My name is Robert Macaulay. I'm a practising barrister in the city of Toronto. I teach at the University of Toronto and I'm the author of a number of books on administrative law. I really don't have a statement to make. I was invited to come here to share with the members of the committee information that I might possess that might be of some use, and I had rather thought that I would prefer to just have a discussion with those who had questions in their minds.
I might just say to you, however -- this will save some time today, I think -- first, I have a two-volume book on administrative law that deals with the agencies, boards and commissions of the province of Ontario, and I have a chapter in it on the Ombudsman and on this committee. In the index of the book, there are a number of references to the word "independence." Rather than going into that today and repeating my views on what "independence" means, I would propose that your secretary might consider going to any law library in the country and getting a copy of that two-volume book out and looking for the chapter on the Ombudsman and the committee, and also in the index under the heading of independence, and you would see my exploration of the meaning of the word "independence."
The second point I would like to make to you, if I may, is that I took part in the original creation of the Ombudsman Act in 1975, or whenever it was enacted; I'm sorry, I've forgotten now the precise date. I wasn't the draftsman, but I was involved in the discussions as to the wisdom of the act and how it would be carried out in relation to the Legislature, so I've developed an interest in this committee and the legislation and I've followed it quite extensively in terms of the Hansard reports.
I've just written a new chapter on the Ombudsman, or an addition to the existing chapter, for my book, which will be out in a few weeks.
So I'm not unfamiliar with the subject, and I would comment, as a compliment to you, that I think from reading Hansard that this committee has a very clear view of what the problem is in terms of the Ombudsman, a clear view that there is chasm between the committee's aspirations, I believe, and the Ombudsman's views as to what her responsibilities are, and I think they revolve around the word "independence."
There is no such thing as an independent Ombudsman. I don't care what anybody says. There cannot be.
First of all, I think it's very interesting for every person who talks about independence to know what they mean; what does the word "independent" mean to you?
If you look at the Oxford dictionary, you'll see that independent means "not depending on any authority or any control." The moment she uses that accepted English definition of the word, surely one comes to the conclusion that that isn't applicable. Secondly, it is self-governing.
What is important about the word "independence" -- and I won't spend any more time on it than this -- is to say that, first of all, the word "independent" or "independence" is like beauty: It's in the eye of the beholder, it's what you want it to be. There is no clear understanding of what "independence" or "independent" mean in terms of an elected, constitutionally responsible official. Obviously they're not independent.
What is intended and what is thought is, as I perceive it, independence of decision-making. You have an independence, you arrive at your decision based on your own best judgement, but even then you're not independent -- surely you realize that -- because you're dependent on the evidence. If you aren't dependent on the evidence, the courts will set aside any decision you've made.
So to say that a person is independent is just wrong, pure wrong, and shows a pathetic lack of understanding of the English word "independent" or "independence," in my respectful opinion.
What I think one seeks in the Ombudsman is independence of decision-making, not independence of action, because quite clearly the Ombudsman is dependent upon the money provided to him or her by this Legislature through a process that's established. The Ombudsman is accountable to the Legislature. If you're accountable, you're not independent.
So obviously the word "independence" is at the bottom of the problem of a chasm between this committee and the Ombudsman.
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You all know, I'm sure, that there's been this problem with the Ombudsman, the view between this committee and the Ombudsman, since Mr Maloney was the first Ombudsman. I personally think the Ombudsman's office got off to an unfortunate beginning with Mr Maloney that it never really recovered from, but there has been this struggle between this committee and the Ombudsman for 16 years. Until two years ago, or whenever it was that most of you were appointed to it and started to show us your own inclinations in this matter, I really don't think the committee accomplished very much in the 14 years before you got here. I'm hopeful you will continue your drive to reach an understanding as to what you all mean.
I've read a lot of material and I know you have as well. People keep talking about, "I don't want you to do this. I don't want you to interfere with that. I don't want this. I'm independent," and so forth, but I have never really seen on paper a clear list of things which this committee thinks the Ombudsman should do and I've never seen a clear list on paper of what the Ombudsman thinks he or she should do.
It seems to me that in presenting your position to the Legislature and hoping to gain its support it would be important to point out to the Legislature, "This is what we would like to obtain in terms of working with the Ombudsman, numbers 1 to 15, and the Ombudsman will not do 8, 9, 10, 11, 12 or 13." I've watched the debate flow back and forth on matters such as principle and definitions, and especially on the word "independence," but very seldom can I remember seeing clearly set forth the exact things this committee would like the Ombudsman to do and its role in the doing thereof and then put it to her or him and say: "Of those, are you agreeable to them? In what way are you agreeable?" The other way of going about it, instead of putting it on the shoulders of the committee and then putting it on the Ombudsman, is to put it to the Ombudsman and take it back to the committee.
I think you have an important role. I pointed out in the the report that I made to the government a few years ago that the committee is the only forum the Legislature can have. It is too busy, it is too big, it is too occupied with planning ahead to be a reactive organization. Legislatures were reactive. When I was a cabinet minister and a member of the Legislature, the tendency in the 1960s was to react to emergencies, not to plan for them, not to plan how to deal with these matters. I don't think you can use the Legislature as the forum in which the Ombudsman reports. I think it has to be this committee, and I think you have a very important role.
I'm sad that we've gone 16 years and we're still fighting about the same things. As I read the transcript last week or whenever it was, it was just as if Mr Maloney was here; only he walked out of committee meetings. I don't think the spirit has improved. I think you can improve it, because I think you're showing now that, from what I've read, you really feel you have a job to do on behalf of the Legislature as well as the electorate.
I think that's really about all I can say at this stage. Are there some questions anybody would like to ask, or would you like to have a discussion? I think it was planned that I would be here for an hour, so I'm going to stay here for an hour.
The Chair: Thank you very much, Mr Macaulay. Questions and/or comments?
Mr David Ramsay (Timiskaming): Mr Macaulay, I really appreciate you coming here today. I just must tell you that I'm a real fan of your report, Directions: Review of Ontario's Regulatory Agencies. I quote it very often in this committee. I've found it a very good guide to me in my deliberations in this committee and I really agree with your point of view.
I appreciate your comments today that maybe what is needed is a clear list. That, I think, is what we've discovered in this committee, that this original legislation, which was first passed in 1984, really can be quite loosely interpreted. I think you're right. This is why we have decided we want to review the legislation and bring it up to date. As you're aware, as everybody else is, much has changed in law and legislation since the original enactment of the Ombudsman Act, and because various ombudspeople can interpret this the way they see fit, I think you're right; I think we need to revise the act so that the roles and responsibilities of each party are clearly spelled out so that we cannot have differing interpretations. I think that's probably our challenge here. It's certainly why I'm very interested in membership on this committee.
I was wondering in that regard if you have any recommendations as to, when we talk about accountability, whether you believe the ombudsperson should be reporting maybe, say, to just this committee in all aspects, for instance, fiscal responsibility, recommendation-denied cases, other aspects in regard to the office. Would you see that there would not be sort of one-stop shopping, that the ombudsperson would be going to the standing committee on public accounts or the standing committee on estimates for its estimates and that sort of thing, or do you think it should be all brought under the umbrella of this standing committee?
Mr Macaulay: Could I make a comment, Mr Ramsay? It was inadvertent on your part, but I think you indicated that the act was passed in 1984. I think it was 1975.
Mr Ramsay: I'm sorry, that was a revision. That's correct.
Mr Macaulay: No, it's all right.
The second point I think I'd like to make is this: My experience from being here, and I observe, with the tremendous pressure on government today -- and by government I mean all of you, the Legislature -- it's a very long, time-consuming process to amend a piece of legislation. I think you have the best, fastest relief to pass some rules and regulations of your own for your own committee, present them to the Legislature and get it to either support or amend them the way it wants. That's the fastest way to the men's washroom.
The second thing, which would take a little longer, would be to have the standing order of the House amended. The third thing, which would take the longest of all, would be to have the act amended.
Frankly, there are some -- I don't know exactly where to start on that. The act is a complicated act, and I think the courts have interpreted it to give the Ombudsman greater power than I think the originators of the act had intended in 1975 as I sat and talked it over with them. On the other hand, in 1987 the Supreme Court of Ontario and the Court of Appeal wagged their fingers at the Ombudsman and said, "You be careful." It didn't say exactly that, but, "You be careful; there's a limit to your powers."
Amendment of the act I think would be hard to accomplish and would take a long time and would create a great fuss. In the meantime, by altering -- no, not altering -- clarifying the standing order of the Legislature -- and I think what it needs is clarification. I saw it reported by your Chairman. If this is the one I'm thinking of, it was reported in one of your recent meetings. He read it to the committee. Well, you know what it is in any event. I wish I had it here in front of me.
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I do have it. It's page 1115. I'm sorry to take up so much of your time. "Standing committee on the Ombudsman which is empowered to review and consider from time to time the reports of the Ombudsman as they become available;" -- I think it's perfectly clear what that is -- "and, as the committee deems necessary, pursuant to the Ombudsman Act, section 16(1), to formulate general rules for the guidance of the Ombudsman in the exercise of his or her functions under the act."
That's never really been done. What has been done is quite inadequate. I don't mean to be offensive, and I hope you'll understand that, but I want to be honest with you. I've spent some time coming here and you've been gracious enough to be here while I was here. There's no point in me fibbing about it: I think the rules that you have provided are inadequate. You could, and that's where I would start.
That is the standing order. I hadn't completed the reading of it. I think it says what it intended to say, and that was to give you a fair amount of responsibility, but it hasn't been interpreted that way by the Ombudsman. I think it could be clarified. I wouldn't say amended; I would clarify what it means. I think the standing order, or whatever you guys call it, could be clarified. Then I think you should have some rules of your own, present them to the House to be passed and approved by the House. Then you'd be in business. If you didn't get the act, that would be unfortunate, but I think one has to be realistic. It takes three to four years to get an amendment to a piece of legislation unless there's a real consensus and real pressure, public pressure.
Mr Ramsay: I think that's excellent advice.
Mr Macaulay: Well, it may not be, but it's what I'd do if I were here.
Mr Ramsay: I think you're right. I think you've injected a sense of realism, in my mind anyway, as to what we're about in this committee right now. Maybe in the interim we could take your advice to establish some rules, as we are allowed to do under the act. I just want to ask you about that. There are three sections in section 16 -- and I'll just read them -- that give us authority to do as you've just suggested.
Subsection 16(1), under "Guidance rules," says, "The assembly may make general rules for the guidance of the Ombudsman in the exercise of his functions under this act."
Subsection 2 reads, "All rules made under this section shall be deemed to be regulations within the meaning of the Regulations Act."
I worry about subsection 3 a little bit. "Subject to this act and any rules made under this section, the Ombudsman may determine his or her procedures." There's a bit of latitude there --
Mr Macaulay: Yes, there is.
Mr Ramsay: -- for the Ombudsman to react to the new rules or regulations that we might pass here in the Legislative Assembly.
Mr Macaulay: Mr Ramsay, can I interrupt and remind you of something that very few people ever seem to think about? We haven't had a minority government in the province since 1975 except that for the one year, or whatever it was, that Mr Peterson led the government. It was a minority government that enacted that legislation in the first place. It was a minority government that enacted the regulations etc. I wasn't here at the time, but I do know that the tendency with legislation, even when you have a majority government, is that the legislation is drafted by a whole flock of people. Often they don't interact together.
I think the recent legislation -- well, all right, I won't get into it. What happens is everybody takes a little nip off it and then, especially when you have a minority government, what happens is that it gets sent back to this and sent back to that, and the government finally gets to the stage of, "Oh, my God, please let's just get the damn thing through so we can get on to something else." Very often they don't even want the amendments that are being proposed, but it's the only way you can get the legislation through.
Maybe this doesn't appeal to you, but I know that it was a minority government that was dealing with this at the time. Maybe that made it a good piece of legislation. I'm not criticizing it; I'm just simply saying that's the process. Therefore, please don't look at that legislation, the regulations, the House orders and so on and conclude that this is how you guys would do it today. You have to, in those periods of time, make concessions in order to get any legislation through.
Mr Ramsay: I think you're right. From what you've said today, I'd like to proceed, in a sense as you've suggested, if I can interpret it this way, incrementally. I like your idea of looking at establishing the rules and regulations that we can under the act, and then we could work towards changing our standing orders and work further towards, in the long run, amending the act. But I think maybe we could do all three that you suggest, working towards amending the act so that we can get on with the job this committee wants to do. I'm very pleased with that advice.
Mr Macaulay: You asked me a question which I didn't answer, and that was whether the finances of the Ombudsman should be dealt with by this committee or by the standing committee on estimates. I really can't help you in that respect.
I can observe, as I think you know, that none of the other agencies -- and frankly, I think the Ombudsman is one of 515 agencies in this province. We have many of them. We've got the labour relations board; it's independent. Well, it isn't independent but it's supposed to make its decisions independently. We've got the Environmental Assessment Board, the Ontario Energy Board. We've got all kinds of boards, and 95 of them are adjudicative, make decisions, and none of them -- there is one committee, the legislative committee on agencies, boards and commissions, that looks at all of these committees. It doesn't have enough time to do them, but it looks at them as best it can with the time available.
It doesn't look at their finances, and by analogy, I wouldn't treat the Ombudsman any differently than any other agency. I would leave its financing with the general process that we have for financing agencies. That committee looks at lots of agencies, all of the agencies, and it may not have time to go into any depth. I understand the Ombudsman has not had an in-depth look by that committee in four years, which I think is sort of unfortunate. But I'd be inclined to leave the financing out of this committee and leave it where it's dealt with at the present time.
But, please, you know more about it than I do. In the last three years all I've been is an observer, a teacher and a writer and so on about the Ombudsman, where it fits in the whole overall structure. I don't know anything about the day-to-day routine, but I would be inclined to leave the finances where they are.
Ms Margaret H. Harrington (Niagara Falls): I'm very pleased that you're here. I think having the background that you do is very important for us at this point in time. As you mentioned, most of us have only been here a year or two.
For those who don't know, I would like to put on the record that Mr Macaulay was a member of the Legislature from, I believe, 1951 to 1963, which is a good long time, and also during that period was Minister of Energy, Minister of the Environment and Minister of Industry, Trade and Technology. So you certainly have a perspective to bring to us.
You stated that the very important thing about the Ombudsman was to be independent with regard to decision-making and to be publicly accountable and that this was the balance that has been the difficult part. Do you believe that the word "independent" in our definition should be actually changed to say "independent in decision-making"?
Mr Macaulay: Yes, if anybody didn't understand it, if that isn't clearly understood. I think your Management Board has made it clear and has used that phrase frequently. There are many precedents. But I would just say again to you, ma'am, if you would have your secretary fetch out my large two-volume edition on administrative law, you would find a discussion of the word "independence," and if there's any doubt in your minds about "independent" -- I don't think the word "independent" turns up in the legislation itself, does it? Correct me, please, if you will. Is the word "independent" or "independence" used in the Ombudsman Act?
Ms Harrington: I don't think so. I'll have to ask our --
Mr Macaulay: Well, I don't think it is. If it isn't in there, I don't think you'd have to add the words "of decision-making." But clearly, when you're talking to the Legislature, I think it would be a lot easier for them to understand. They aren't independent: They're governed by the Constitution, they're governed by the Charter of Rights, they're governed by their own legislation.
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This business of "independent" and "independence" is just highly overrated. We're accountable, and the Ombudsman is accountable. A minister, a cabinet -- the Premier isn't independent.
If you would have your secretary fetch and copy those few pages, I hope it might be of use to you. But that's what it means, Margaret Harrington, that's what independence means if you're using it at all: independence of decision-making for those who make decisions.
The Chair: Just for a point of clarification for the members. The word "independent" does not appear at all in the act. Go ahead, Ms Harrington, please.
Ms Harrington: I felt it was very helpful that you had some concrete suggestions to give us direction in this committee. What you suggested was a list of things we could both look at, the Ombudsman and this committee, and see which ones we agreed to.
Mr Macaulay: I'd start with you, if I were you, okay? I'd start with you and I'd say, "These are the things that I think" -- and I don't mean just you, ma'am; I mean your committee. "These are the things we think this committee should do in relation to the Ombudsman."
Then, after I had listed those in fair detail -- and I don't mean just some big ambiguous pigeon flying over; some real detail -- in those breakdowns, then have the Ombudsman in and say: "Now let's sit down and go over this list. We're all grown-ups, civil people and let's go over the list. If you don't like the way we've phrased number 6, let me have your phrasing," and you give her some time in advance to consider that. I think you then start to have a concrete plan for the Legislature to look at.
If you come in with a lot of generalizations about independence etc, the Legislature's just going to put the back of its wrist to its forehead and say, "Oh my God, here we go again."
But if you can show them: "These are the things we think we ought to do. These are the things the Ombudsman thinks we ought not to do. Now make up your mind. Are you going to support us or are you going to" -- how you handle yourselves will be very important in how you sell it.
Ms Harrington: Just one further question about that. You would see that as lying under section 16 of the act, with regard to our right to lay down rules, which you say has not been done.
Mr Macaulay: I don't think it's been done effectively, forcefully enough. Yes, I think you can. I've always been a great believer in, if you want to do something, do it; let somebody else stop you. If you think you should have rules -- and I think the order of the House clearly gives you the right to make rules; I think it does -- make the rules and let somebody else have it declared that your rules are ultra vires. If you believe there should be sort of a constitution between you and the Ombudsman, then create it and let somebody else say, "You're out of line there."
Ms Harrington: But I just want to make clear, from your reading of section 16 of the act, it is perfectly appropriate that this committee look at the notion of rules.
Mr Macaulay: I think so.
Ms Harrington: Thank you very much.
Mr Bill Murdoch (Grey): I just want to also thank you for coming, and just continue on that same line.
Mr Macaulay: You aren't Bill's son, are you, from --
Mr Murdoch: No, no, different. I sometimes show people his picture and say, "That was me before I grew the beard." No, no relation.
Mr Macaulay: He was the first fellow who taught me -- he was Speaker when I was here -- the phrase which I think is wonderful, that beauty is in the eye of the beholder.
Mr Murdoch: No, I never met him.
Mr Macaulay: Well, he's a great guy. I'm sorry to interrupt.
Mr Murdoch: That's fine. I can show people I have my picture already painted on the wall. Even though it doesn't look like me, it's got my name. He even spells his name with an "h". We do have another Murdock in the House and she has a "k."
I just want to continue. Our committee has been struggling for two years to try to find our place in the whole situation with the Ombudsman, because there seems to be this conflict of whether we should be here or not. I liked what you had to say about setting the rules or setting some guidelines that we should then work out with the Ombudsman, and I think that's what we should be doing. I guess that's why we're having this review, because we just couldn't seem to find our place; we seem to have conflict with the Ombudsman. So this is one of the reasons we decided to do this review.
We've been criticized by different people and by the Ombudsman for even having this review. As you probably know, she's refused actually to visit us if it's something to do with the review. We do have this problem. I think what you're saying is that once we're done is to go over everything and then sit down and say, "This is what we think the direction should be," and then get her comments. That's one of the best suggestions we've had.
Mr Macaulay: If she won't give you her comments, then she has acted in a way that I would expect she would not do. I would expect that she would realize that you are an agent of the Legislature and you have initiated a study which you think is in the public interest. You will produce whatever you produce, and she will then have her opportunity before the Legislature, if she wants to occasion it, to have you turned down by the Legislature. It has the final, ultimate authority. But I know the Legislature has said, "Look, we are just too busy to do everything, and we are picking a committee." I think even Mr Maloney acknowledged that in a very lengthy paper he prepared.
Mr Murdoch: I am thankful for the comments.
Mr Macaulay: I'll bet she'll help you. I'll bet she will.
Mr Murdoch: I'm hoping she will.
Mr Macaulay: I think it would be unfortunate if she didn't, but if she won't, go ahead anyhow.
Mr Murdoch: That's what we'll have to do, but I'm hoping she will also.
Mr Macaulay: I am, too.
Mr Murdoch: But to this date we've had problems.
Mr Macaulay: She's a very nice person, personally, and I would hope she would do that.
The Chair: Any further questions and/or comments?
Mr George Mammoliti (Yorkview): What if she doesn't?
Mr Macaulay: I'd go ahead, and I would advise the Legislature in your report -- I'd make your own rules. I'd offer them to her for comment, and if she doesn't do anything, then I would say, "These are the rules." If you think they require approbation by the Legislature, then I would put them to the Legislature and ask for its approval.
Frankly, I wouldn't put on Hansard the likelihood that she won't. I would leave it that you think she will. If she doesn't, I think you should make your rules, and then you'd report, obviously, "We didn't have the benefit of the Ombudsman's position on this." I would think at that stage, if the Legislature felt that the Ombudsman should report, it would have the authority to order her to come in here and report. She surely doesn't want to face that.
We have a concept that we operate under in this country. It's called the supremacy of Parliament, and none of us is independent of that. By "Parliament," that means the Legislature, within your jurisdiction.
Mr Mammoliti: I agree with you. Thank you.
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The Chair: Thank you very much, Mr Mammoliti. Any further questions or comments? Seeing none, I want to thank you, sir, for taking the time to appear before us this morning. I know your schedule is very busy, and we all do appreciate it very much. Do you have any final comments, sir?
Mr Macaulay: No, I don't think so. Let me just offer this: If, when you decide to make up your list -- sorry, I didn't mean to be that presumptuous. If you decide to make up your list of the things you think this committee should do, then I would certainly be very happy to come back and go over them with your secretary, or whatever might be useful.
Secondly, when you come down to preparing some rules, if you want to do that, if that commends itself to you, I again would be very happy to -- I've invested a lot of my life, and my father before me and my brother and others in my family, my grandfather; we've all been in the political life of this country for a great many years, as teachers and whatever. I would like to make a contribution to this and if, by being here -- I don't ask you to accept my views as being uncontested. Get the views of as many people as you want, but I'm certainly more than willing to help you put together your list and help you with your draftsmanship, although I think there are plenty of really competent people around to help you.
The Chair: Thank you very much. I understand Ms Harrington has a final comment to make.
Ms Harrington: I just realized that there's one area we haven't discussed that I would like your comments on while you're here; we have to take advantage of it. It is whether or not tribunals should be reviewed by the Ombudsman. Do you feel there is any problem with tribunals?
Mr Macaulay: In the report I prepared for the government and in my book, in the chapter on the Ombudsman, I talk about the problems of the Ombudsman and administrative -- shall we call them tribunals? Is that the point you're directing me to, ma'am?
Ms Harrington: Yes.
Mr Macaulay: There are a lot of problems. Let me tell you, if I may, what really put the hair on the back of your heads straight up in the air, as a person who has served on one of these agencies. I was chairman of the Ontario Energy Board for a few years.
I started the board in the late 1950s, wrote the legislation for it, and then in the 1980s Mr Davis, I guess it was, asked me if I would leave my practice and come back and go to the board. It needed some restructuring. I went back on a five-year contract, but I only stayed for three because we got things moved around quite quickly.
Oh my God. I'm 71. What was I going to tell you?
Mr Ramsay: Tribunals.
Mr Macaulay: Oh, yes; all right. My experience, in working on the tribunals, is that I got really upset when the Ombudsman started giving speeches through some of his -- at that time -- representatives that they were going to subpoena the private notes of an adjudicator and look at the decisions in light of the notes the adjudicators had made at the time.
Let me just tell you that while you're sitting in a hearing, a witness may come forward and you might write down, "I can't believe a God-damned thing this guy says," and then a day later you conclude you're wrong, that you can believe him. Now, you get those notes subpoenaed and it just makes an ass of the whole process. They were not only going to subpoena -- an attorney general in or about that time, without nailing it down to anybody, said to me, "Macaulay, take your notes home and burn them." My God, what a senseless way of dealing with a thing like that.
Not only that, but the Ombudsman's spokesman was making public statements to the effect that members of adjudicative agencies were going to be called and put on oath and cross-examined to see if there had been a split in opinions. I can tell you, just as you're going to write reports here, you don't all agree, in the beginning, on the report. One fellow may draft it and then other people may have observations and adjustments and so on with it. That's inevitable. It's called the iterative process of arriving at a decision. One person drafts and other people say: "I can't accept that. I'm going to dissent."
Dissents are the worst possible things you can get, because the public, which is dependent upon the pronouncement, doesn't really know -- "If I brought it back again and I just got that guy, maybe I'd get what I want." So you try to avoid dissents and you iterate and you work it out.
Now, if you can subpoena people who are adjudicators -- imagine if you could subpoena the three members of the Court of Appeal. You put them under subpoena; you want to see their private notes. I don't want to carry on about this but, yes, I think there are real problems in the Ombudsman being involved in the decision-making of another independent organization. Why? Because (1) most of the acts provide for an appeal to the courts; (2) we have what is called judicial review and we have a Judicial Review Procedure Act whereby you can take a decision of an adjudicator of that nature to the court for a review; (3) under a tremendous number of acts -- there used to be nearly all the acts, but I think there are only seven at the moment -- you can petition to the cabinet to reverse the decision. And (4) most boards, or many boards, in any event, have the capacity to review their own decision.
So you've got four ways of looking at them. I'm not talking about reporting agencies; I'm talking about agencies that make decisions that are binding on people. To my mind, the Ombudsman ought not to be involved in that.
Interestingly enough, the Ombudsman was going to take these extreme measures, which are unknown almost anywhere in the world, and at the same time the Ombudsman's last report showed that he had not had one single complaint about one of the 515 boards in Ontario. Why go out making those loudmouth statements when you can be disrupting the whole credibility of the adjudicative process which has been established in this province? I just think the Ombudsman shouldn't be involved in the adjudicative process because, as I say, there are four methods of relief.
On the other hand, the chairman and the board members themselves would be perfectly willing to work with, and I think have in recent years worked with, the Ombudsman without having any confrontational process.
I don't think I've helped you at all, have I? You're going to say when I leave, "Don't have him back."
Ms Harrington: You certainly make it clear that you don't see a role for the Ombudsman with regard to the adjudicative agencies.
Mr Macaulay: No, I don't, ma'am.
Ms Harrington: When you, in your last statement, said there was a working-with relationship --
Mr Macaulay: Yes, there is.
Ms Harrington: What do you mean by that? What kind of relationship?
Mr Macaulay: Let me put it this way. Some years ago I encouraged the agencies to set up an organization in Canada called the council of administrative -- I'm sorry, I don't remember the name, but I was deeply involved in its creation -- whereby there is now a council in Canada to which most agencies belong. They're teaching their courses, there's an exchange of process and so on.
One of the things we were very anxious to do was to have the Ombudsman in Ontario, for example, where I happened to be, realize that instead of sending in a summer student to lay down the law to us, "We want this and we want that, and we want it by 3 o'clock today" -- that's how I was talked to on occasion, and I don't think that has to be the case. In any event, what we did, and by "we" I mean me and others, made it very clear: "Look, if you want anything, let's talk about it, and if you think we've made a decision that is incorrect, let's talk about it. Let's not send in people with missiles" --
Mr Mammoliti: That office was set up to stop arrogance, wasn't it?
Mr Macaulay: Well, listen. Just take it from me --
Ms Harrington: Can I just try to clarify? Are you saying that the Ombudsman's office could ask an agency with regard to how it's functioning or a particular case?
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Mr Macaulay: As to how they're functioning, I can't tell you whether they have or not, but if you look at the Ombudsman's report from several years ago, you will see that they had complaints about how some persons had been treated by a decision of a particular board or commission or agency. You see, my problem is that I haven't kept up to date in the last few years. I'm talking about when I was writing my report in 1988, and that's four years ago. certainly the Ombudsman reports at that time disclosed that they were addressing various agencies about decisions they had made. Then the next year there weren't any at all, but they were still making speeches about what they would do if they had a problem.
I think there is a more civilized way of going about it than turning out the light and going in and bludgeoning people to death. I believe that if they can show that an agency decision is incorrect, like a decision of a single civil servant, likely they have the authority under the act, as it stands, to do it. Frankly, my concern isn't whether they can do it, but how they do it.
Ms Harrington: How they would find that the decision was incorrect?
Mr Macaulay: Yes. I pointed out about subpoenaing notes and subpoenaing members of the -- but I don't think it's necessary. You asked me really two questions: Can they do it legally? I think legally they can do it. Should they do it? No, I don't think they should do it. Thirdly, if you find out legally they can do it and you come to the conclusion that they should be able to do it, then have some rules. If she's going to drag the Worker's Compensation Board in front of the House -- she or he or he or whoever it may be -- there should be some basic rules of how you go through the thing in front of this committee to start with, because you're dealing with a structure of some major consequence, and I don't think it should be attacked just to show how independent somebody is.
Ms Harrington: I think we'll have to look into that further.
Mr Macaulay: In the report that I made, I recommended to this committee that you should establish some rules that if the Ombudsman feels there is an appropriate case for reviewing a decision of an adjudicative agency, board or commission, it should be done through some rules you've established as to how it should be done, and not just send in a summer student with a shotgun.
The Chair: Thank you very much, Mrs Harrington.
Mr Macaulay: You want to go and do something else; I can see that.
The Chair: Mr Ramsay, you had a question or comment?
Mr Ramsay: Mr Macaulay, since you're still here, there's something else I wouldn't mind your advice on. When you speak of setting out some rules and regulations, which I agree with, one of the areas that is only permissive in the legislation is that the Ombudsman can bring to this committee these recommendation-denied cases to us. In that, this committee is a very strong ally of the Ombudsman in that then we can look at the case that has been denied by whatever ministry, and bring it forward and bring it to the Legislature and actually get something done, and that's happened on occasion. Since the appointment of this Ombudsman, we have not received any of these cases. When we ask the Ombudsman about that, she will say that many have been resolved, others can still be resolved and, I guess, in her mind, there are some that have not been resolved: The recommendation has been denied, but as far as she's concerned, it's over and she does not want to pursue it any further.
I was wondering if we should put some sort of mandatory language in the rules and regulations, or if we get to the point of legislation, that would compel the Ombudsman, because she has no powers other than recommendations, to bring these cases forward so that we could alleviate some of these outstanding problems.
Mr Macaulay: I don't know. I'm positive she would object to that, and I think the former Ombudsman, as I read the transcript, when he was here a few months ago, without saying it very openly -- maybe he did say it openly; that's not appended as a criticism -- wasn't sympathetic to that either. I don't know exactly. I haven't really thought very much about it. I haven't spent a lot of time thinking about it.
It does seem to me that another way of going about it, rather than requiring the Ombudsman to report to you cases that are unresolved, is to make some machinery available whereby the persons who have unresolved cases can come to you. You see, that's a different way of going about it, treating you as the representative of the Legislature. The person didn't get what he'd hoped to get from the ministry, didn't get it from the Ombudsman, for a number of potential reasons. That person could then come to you rather than you forcing the Ombudsman to bring incomplete cases to you. I don't know whether that would commend itself to you, but it's certainly another way of dealing with it.
It'll be hard to draw the line, once you get into a case that she hasn't finished dealing with, to say, really, that you're leaving with her the independent decision-making capacity. That's what I would worry about. Whereas if the person comes to you, then you have a duty, I would think, on behalf of the public, to make a decision; you're not really making a decision on her.
I'd want to think it out, but that's another way of doing it. But I think there are risks, from her point of view, of you upsetting the independence of the decision-making concept by you getting into a decision before she's made a decision, if you know what I mean.
Mr Ramsay: Yes. I appreciate your advice. Thank you. Mr Macaulay: You're obviously being very sympathetic and understanding, and I'm encouraged to be here, to see the nature of the questions and the tones you people use. I wish you well in what you're doing; it's a very important job. I don't think anybody really realizes how important it is until it's given to them to do. And you have it to do. I think for 14 years not enough was done. I hope you'll hang on to the ball now and run with it until somebody trips you up.
Mr Ramsay: Thank you very much.
Mr Macaulay: Thank you, Mr Morrow, for inviting me here, and Franco -- I never could pronounce your last name, but I'll remember you in my will.
The Chair: Thank you very much, sir, for appearing before us this morning.
On November 4 we have appearing before us the Ontario Public Service Employees Union and the Ontario Hospital Association.
We stand adjourned until 10 am, November 4. Thank you very much.
The committee adjourned at 1108.