REMARKS TO

STANDING COMMITTEE

ON THE OMBUDSMAN

November 27, 1996 Roberta Jamieson

Check against delivery Ombudsman

INTRODUCTION

Good morning and thank you for the opportunity to appear as your first witness to these public hearings.

These hearings have been called to review the recommendations of the 1993 Report of the Standing Committee on the Ombudsman along with the revisions to these recommendations contained in the Working Paper recently issued by the Standing Committee.

It is worth noting at the outset that a report prepared three years ago may not accurately reflect current circumstances. This is evident in those areas where practices commented on in the 1993 report have changed. It may also be the case with respect to the changing membership of the Standing Committee and the evolution during the intervening period of the relationship between the Ombudsman and the Legislature.

In my presentation today I will identify the positive aspects of the 1993 report and address those areas where we can work together to strengthen the role of the Ombudsman. But at the outset I would like to put on record my grave concern with proposed changes to the existing relationship between my office and the Legislature.

There are several recommendations which present a direct challenge to the independence and integrity of Ombudsman Ontario as an institution empowered to protect the public's right to fairness in the administration of public services.

Every day my office receives enquiries and complaints from people who feel they have been mistreated by an agency of the provincial government. These are people from all walks of life, and many of them are among the most vulnerable in our society: persons with disabilities, senior citizens, people who are economically disadvantaged, and others who depend on government services.

When these people come to my office with a complaint, they are seeking a court of last resort, one which they can trust to be impartial, fair and completely independent of any outside influence.

The right of complaint to an independent Officer of the Legislature provides a mechanism to hold government accountable to the people. If the public is to perceive this right of complaint as a genuine feature of our democracy, it must be assured that complaints can be made, without fear of reprisal, to an Ombudsman who is independent, not only from those agencies being complained against, but also from government and the political influences of the Legislature.

My ability to conduct investigations thoroughly, and to issue recommendations that provide a remedy for unfairness, are the basic tools which embody the independence of my office and which serve to protect the credibility of the institution.

In my view the effect of a number of the Committee's recommendations would be to dramatically alter the existing arms-length relationship with the Legislature and to replace it with a regime that establishes the Standing Committee as a Board of Directors and the Ombudsman as an employee of this Board.

Given the present structure of the Standing Committee, which comprises a majority of government members, such an arrangement would make it impossible to avoid both the appearance and the reality of a fundamental compromise to the Ombudsman's independence. The door would be opened for government, through the Standing Committee, to exercise direct control over Ombudsman investigations, finances and general operations. In such circumstances the public would quite properly lose confidence in the credibility of the institution.

Twenty-one years ago the Ombudsman was established by an Act of the Legislature which created a clearly defined reporting relationship to the Assembly. The Act holds the Ombudsman accountable through a requirement to report annually, and by discretion to report on any investigation which cannot be successfully resolved through a government Minister or by the Premier.

This legislation has allowed for a relationship to evolve between the Standing Committee and the Ombudsman which has been characterized over time by a more-or-less creative tension. Each of my three predecessors experienced at one time or another a degree of conflict relating to the respective roles of the Legislature and the Ombudsman, and were engaged in ongoing attempts to reconcile the issues of independence and accountability.

This review then is the latest stage of a long and continuing effort to provide certainty and clarity to this relationship. Perhaps we are finally about to achieve a positive resolution. I would certainly like to express my sincere commitment to do everything I can to promote a productive and co-operative working relationship between my office and the Standing Committee.

In particular, I would like to emphasize my desire to make this review process work. I would hope we can agree as a basic point of departure on a common goal of strengthening not only our relationship, but also the basic principles and function of the Ombudsman as an independent institution. If together we are successful in meeting this objective, such an outcome will ultimately serve to provide lasting benefits to the people of Ontario.

RESPONSE TO RECOMMENDATIONS

In the interest of establishing what I believe are the main reference points among the 44 Recommendations, I have identified eight themes and organized the Recommendations into corresponding categories. For this presentation I would like to submit my responses to the Recommendations in the following order:

1. Annual Report and "Ombudsplan" | [2, 4, 26, 31,33, 35, 36, 37]
2. Public Education | [2, 3a, 3b, 4, 5]
3. Changes to the Act | [6, 7, 8, 9, 10, 11, 12, 13, 15, 21, 22, 32]
4. Terms of Reference and Role of the Standing Committee | [18 & 44]
5. a) Rule Making - Process | [27, 28, 34]
b) Rule Making - Content | [1, 14, 29, 30, 33, 35, 44]
6. "Monitor and Review" | [16, 17, 25, 44]
7. Estimates and Directives | [23, 24, 38, 39, 40, 41, 44]
8. Other Issues | [19, 20, 42, 43]

1. ANNUAL REPORT AND "OMBUDSPLAN"

The Annual Report is a key focus point for the Ombudsman's activities every year. It is the main vehicle through which we provide the Legislature and the public with basic information about the fulfillment of the Ombudsman's mandate. It is also an outlet for the Ombudsman to identify any trends or concerns arising from complaints received during the course of the year. The Annual Report also sets the direction and agenda for the year ahead and provides an opportunity to raise issues for the attention of the Legislature and to make recommendations. The requirement to table a Report is an essential accountability check for the Legislature and it is therefore crucial that this Report be thorough and informative, and accessible as a document.

Recommendations 4, 36 and 37 provide suggestions for information that should be included in the Annual Report. Such proposals are welcomed and reflect the value of ongoing dialogue and a positive working relationship between the Committee and my Office. It should be noted that much of the specific information being requested is already provided in our Annual Reports. Recommendations 31, 33 and 35 also address this topic but raise a number of issues which require closer examination. In response, I propose that we establish a consultative process whereby the Committee shares with me its feedback on each Annual Report and raises any issues it feels should be addressed. In turn, I would have the opportunity to advise the Committee of any constraints that may apply in implementing its suggestions.

Recommendation 31 (as revised in the October 1996 Working Paper) can serve as an example of how this process might work. It suggests that all tentative and final reports be described and included in the Report. Generally it would be a good idea to report the outcome of such cases. Much of the success of the Ombudsman results from the cooperation of governmental organizations implementing my findings subsequent to an investigation, without the need to take the matter to the Premier or the Legislature. However, there may be circumstances where reporting is not advisable for reasons of confidentiality. For example, where the facts of a case are widely known to be associated with a particular individual, it may be impossible to report on this without identifying the individual. In addition, it should be noted that the Ombudsman Act does not allow me to publish the actual "tentative report" because by definition, it represents an interim step in the investigation process. I can, however, report the substance of the complaint, along with my findings and any resolution, all of which would be of interest to the Standing Committee. Numerical summaries of these cases can also be reported.

From my experience it is clear that there are good reasons why the Ombudsman Act provides for the Ombudsman's discretion in deciding what to publish in the Annual Report. While I am willing to be as responsive as possible to the Committee's concerns regarding the information it would like to see, I cannot concede final responsibility for deciding what is contained in my Annual Report.

Recommendations 2 and 26 refer to an "Ombudsplan". The idea of sharing my goals and plans for the year ahead with the Standing Committee is a good one. In fact, my office already has a practice of developing plans against which outcomes are measured, and using the results as part of the material for the Annual Report. These plans set the operational objectives for the fiscal year and I have no difficulty in sharing this information with the Committee. Beyond this, I need to seek clarification of what is meant by an Ombudsplan. It would not be possible to present a plan for investigations, if this is what is being sought, because it would be inappropriate for me to disclose in advance my investigative priorities. I should add that any plans that are presented would not be offered for approval, but rather as an exchange of information.

To summarize on this topic, I am very open to receiving input from the Standing Committee about the activities reported annually, and I agree to share my plans as part of an ongoing working relationship. Given that I have not received an invitation to discuss the Annual Report for a number of years, I would welcome the opportunity to increase the frequency of contact between us.

2. PUBLIC EDUCATION

Getting the message out to the Ontario public that the Ombudsman exists, and promoting increased awareness of the public's right of complaint, along with information on how and when this right can be exercised, is a critical part of the Ombudsman's job. We do our best in this regard with limited resources. Certainly the pressure has intensified to find ways of continuing this function in the face of a 20% cut in the allocation to my office this year. But in general I would always agree that more can be done.

For some time my office has focused our public education strategies toward those people who are least likely to know about the Ombudsman's services and often the most likely to need them. Recommendation 3(b) suggests using the established communications channels of governmental organizations as an effective way to reach users of specific government services. This approach has been used successfully in a number of settings but can only work when there is a clear distinction between the Ombudsman and the government service.

In general terms, and with the qualifications I have mentioned, I agree with the intent of Recommendations 2, 3 (a and b), 4 and 5. I should further qualify the approach of Recommendation 5 in amending the Act. As with a number of other topics, an amendment may be worth considering if the Act is being changed for other purposes, but an amendment is not necessary to accomplish the stated goal. Public education is by definition an integral part of public service. If an amendment were to be made, care would have to be taken to ensure that the wording does not have a limiting effect.

3. CHANGES TO THE ACT

There is a significant number of recommendations which call for changes to the Ombudsman Act. I am hopeful that through discussion, we may be able to reach agreement on which areas should go forward in any amendment process. It is of course not my place to speculate whether it is realistic to expect that proposed changes would get on to the Legislative agenda. But because of the uncertainties associated with this process, I suggest we focus in this review first on those changes which can be achieved without legislative amendment.

If, however, amendments are deemed to be necessary, and the Assembly agrees to devote the time to their consideration, there is a need for a process to ensure that the words chosen in proposed statutory language are the right ones. Some of the topics may also require a clarification of intent. As an example, Recommendation 13 refers to a proposed Schedule of governmental organizations within the Ombudsman's jurisdiction. In my view, the current wording of the Act on this subject is sufficiently broad for most purposes. Nevertheless, as I suggested in my recent letter to Minister Sampson concerning privatization and preserving the right of complaint, copies of which were sent to members of the Committee, it might be useful to add to the Ombudsman's jurisdiction any organizations that would otherwise not be covered. So, with further discussion, it may be that a Schedule which adds to, but does not replace the Act's current Section 1 definition, could be useful in this regard.

If the Act were to be opened for amendment, I would also like the opportunity for input about changes that I think would streamline, and otherwise make more efficient and accessible, the Ombudsman process. I would be pleased to bring forward a discussion paper with proposals of this nature if the Legislature pursues the amendment route. Again, there exists a wide area of potential agreement for us with respect to possible improvements to the Act which governs my work. I would welcome the opportunity to examine such changes in detail.

4. TERMS OF REFERENCE AND ROLE OF THE STANDING COMMITTEE

While I am satisfied with the current relationship between the Ombudsman and the Standing Committee which is reflected in the existing terms of reference, I recognize that the Committee sees a need for revision. Recommendations 44 and to a lesser extent 18 summarize the changes to the Standing Orders which would permit the Standing Committee to implement many of the other recommendations. Most of my concerns regarding the specific features of Recommendation 44 are addressed under the category of "Monitor and Review". As a general observation though, I believe it would be useful for both the functioning of the Standing Committee, and to the delivery of my mandate, if we can work at establishing agreement on our respective roles and in defining the appropriate basis for our relationship.

For my part, I want to state clearly that I see no conflict between preserving the independence of the institution and providing for a measure of accountability to the Legislature. The Ombudsman Act is very clear in setting out the framework within which the relationship

between the Ombudsman and the Legislature is defined. There are two points of contact, and both of these involve a reporting procedure by the Ombudsman to the Legislature. One is the Annual Report, and the other allows for the Ombudsman to forward a report concerning an investigation where recommendations for action have been denied by the Minister responsible and the Premier. These case reports place the ultimate authority for the disposition of unresolved investigations in the hands of elected representatives.

In order to achieve clarity in our relationship, I need to understand your present goals and objectives and you need to understand the thinking behind my responses to the proposed Recommendations. If we can accomplish this, I believe we will have bolstered the role of the Ombudsman in Ontario and created a clear basis for the Standing Committee to be an effective liaison between the Ombudsman and the Legislative Assembly.

5(a). RULE MAKING - PROCESS

Rules are generally not helpful because they tend to limit the Ombudsman's role and diminish the degree of flexibility that enables my office to address changing issues and circumstances. If, for example, the content of a proposed rule directs the investigative process, then the public would be rightly concerned to observe a Committee of the Legislature, the majority of which is government members, bringing forward such a proposal. In such a case it would be difficult to defend the integrity and outcome of decisions made under the rule.

With this said, for the purposes of the present discussion, I think we should focus on a process for consultation should the Assembly consider proposals for rule setting. I note from the revision to Recommendation 27 made in the Working Paper, that the Committee is of the view that the Ombudsman should be consulted. This is a good start. But before examining a need for any particular rule or set of rules, there should be a process and guidelines for how the need is identified, what information should be considered and how this information is obtained. Recommendation 34 offers an example where such a process would be necessary. In my view, we should also establish that rules are generally made to assist the Ombudsman in effectively performing the function of the office, as opposed to limiting its role.

5(b). RULE MAKING - CONTENT

Recommendations 1, 14, 29 and 30, 33, 34, and 35 all address potential rules which the Committee may recommend to the Legislative Assembly. I would like to review these briefly:

- [#1] How the Ombudsman conducts investigations of a systemic nature.

Systemic investigations (and system-wide investigations) are a crucial part of our present operations for several reasons:

- they prevent complaints of a similar nature arising in the future
- they make optimum use of financial and human resources
- they address policies and practices that, while neutral on the surface, have a negative impact on particular groups of people

There appears to be no disagreement these investigations are necessary. The relevant question here is what will a rule do that is not already being accomplished? In the past, it has been argued that systemic investigations are conducted to the detriment of pursuing individual complaints. This is simply not the case. Most systemic and system-wide issues arise out of individual cases. Where I exercise my "Own Motion" initiative, systemic investigations have the effect of avoiding future individual cases.

To be clear, my concern about creating an unnecessary rule is with the possibility of a failure in the drafting to anticipate a future set of circumstances and thereby to have limited the scope of the Ombudsman response. This is not to say that I don't welcome any opportunity to discuss with the Committee how we conduct systemic and system-wide investigations.

- [#14] How the Ombudsman conducts investigations of tribunal decisions.

We have a well established approach to dealing with complaints about tribunal decisions, both decisions that are final and those for which there is the possibility for rehearing. I do not see my role as one that would substitute my opinion for that of the decision-makers, as if my office were a court of appeal. Rather, we investigate to examine whether the procedures followed by the tribunal meet the test of administrative fairness.

When a person brings forward a complaint relating to a decision of an administrative tribunal, we must first determine whether the tribunal has the statutory authority to rehear, or rules permitting a review. If the tribunal does not have such authority, the decision and nature of the complaint will be considered. We will generally only investigate if it appears that the circumstances raise an issue which might lead to the decision having no force or effect. In that case we can ask the tribunal to rehear the matter. I have also made recommendations in cases where it appears there might be a broader issue involving a need for improvement to the tribunal's policies and practices. Again, there is no need for a rule to set this out. It is working well without one.

- [#29 & 30] The role of the Standing Committee when a section 21(4) Case Report is

  tabled with the Assembly.

These Recommendations point to the a need for a thorough discussion of our respective roles in the instance of my forwarding a Section 21(4) Case Report. Under the Act, I have exhausted my role once I place a Report before the Legislature. I will have raised the matter with the Head of the agency concerned, the Minister and the Premier. By tabling a report with the Speaker, I am then seeking the support of the Legislature to call the governmental organization to account for its rejection of my recommendations. From that point forward, it is up to the Legislature, assisted by the Standing Committee, to take whatever further action it deems appropriate.

In this way, the influence of the Legislature is brought to bear, attended by the public scrutiny this implies, before a governmental organization is compelled to act on my findings and recommendations. Quite rightly, the Ombudsman has not been given powers to compel, only to recommend. As experience under the Act has shown, the model works well and this power is usually all that is necessary to achieve a remedy, save for the exceptional cases that I bring forward on occasion to the Legislature.

- [#33] Procedure to address complaints from the public about the service provided by the Ombudsman.

The Committee has recommended in number 32 that it no longer review complaints from the public about the outcome of investigations. I welcome the Committee's support for the Ombudsman as a place of last resort. We have instituted a policy for handling complaints against our office which appears to be working well. While I would be happy to share the details of this process with the Committee and to report on this subject in my Annual Report, I do not see that there is anything accomplished by making the process into a rule.

- [#35] The information to be provided in the Ombudsman's Annual Reports.

I have earlier referred to a process of discussion with the Committee about the contents of the Annual Report. Making a rule of this kind would limit my discretion to determine what should properly be reported and would make it difficult to adjust the nature of the report to accommodate a development that was not anticipated in the drafting of the rule.

6. "MONITOR AND REVIEW"

I have titled this category "Monitor and Review" as this is the operative phrase in recommendations 16, 17, 25 and 44. This phrase represents what I believe is a direct challenge to the independence of the Ombudsman institution and is one of two themes where I have fundamental disagreement with the approach of the Standing Committee recommendations. The phrase provides an open ended mandate which may be interpreted to include wide ranging powers of control. The proposed changes to the Committee's Standing Orders would provide enabling authority for direct and continuous interference in the Ombudsman's operations. This cannot be acceptable if we are to preserve the credibility of the institution.

I will not re-state the concerns I outlined in my introductory remarks, except to say that independence from the political influence of the Legislature and from governmental organizations that may be the subject of investigations is really the raison d'etre of an Ombudsman. As my colleague Sir John Robertson, former New Zealand Ombudsman and past President of the International Ombudsman Institute has said: "The real test in the end is how independent [the Ombudsman] is to criticize executive government processes, to hold government accountable for its mistakes and to achieve credibility and trust with both the government and the governed."

Suffice to say, I have no choice but to interpret my mandate as calling on me to resist any measures that in my view may have the effect, unintended or otherwise, of violating the first principle of Ombudsmanship, namely protecting the independence of the institution.

I have included Recommendation 17 (that the Ombudsman will attend the Committee at its request) in this category as well, since it refers to the issue of control. As I have mentioned with respect to other topics, I welcome the chance to meet with the Committee and discuss matters of mutual concern and importance. It would only be in the most extraordinary of circumstances that I would be unwilling to meet and so it is difficult to see the value of a rule to cover such a circumstance.

7. Estimates and Directives

The second category in which there is a basic disagreement is set out in Recommendations 23 and 24, which propose that the Ombudsman Estimates be brought forward to this Committee. The separation of the Ombudsman's funding from the Standing Committee's consideration of cases is critical to the independent operation of my office. Indeed, to quote the Honourable Donald Morand, a former Ontario Ombudsman, from hearings conducted in August, 1992: "This Committee, if it has the power to control the expenses of the Ombudsman, has the power to call the tune of the Ombudsman. That's directly contrary to what was intended when the Legislation was passed."

The importance of preserving independence has I think been clearly stated. I would like to note from my experience as the North American vice-president of the International Ombudsman Institute, that the basic tenet of independence in appointment, funding, operation and accountability is a common one throughout the Ombudsman world. Indeed, in those countries which are creating new offices, particularly at the national level, it is becoming common practice to enshrine this independence through constitutional protection.

Section 10 of the Ombudsman Act requires an annual audit by the Provincial Auditor, one which we publish in the Annual Report. It is entirely appropriate that the Ombudsman be held accountable for funds received. But it is also necessary to structure this accountability in a way that demonstrates the Ombudsman is not a civil servant and is not a part of the government bureaucracy that reports to Cabinet. The relationship which my office has with the Legislature's Board of Internal Economy achieves this, and treats the Ombudsman in the same way and for the same reasons, as the other Officers of the Legislature.

Similarly, Recommendation 40, that the Ombudsman adhere to Management Board of Cabinet's Directives and Guidelines, would create the impression that the Ombudsman is subject to government control. This is compounded by the fact that we are regularly called upon to investigate the application of these Directives and Guidelines. To require their adoption by the Ombudsman may create a perception of bias if they are the subject of an investigation. This does not mean that I disagree with the need for policies governing the administration of my office. Indeed, I am proud of our management policies and procedures, which have been shaped to reflect what I think are very progressive models designed to accommodate the day-to-day work of a staff group of eighty four people. We also, as you know, operate with a collective agreement.

With respect to the Provincial Auditor conducting value for money audits (Recommendations 38, 39 and 41), it should be noted that I invited the Auditor to conduct such an audit and this was done in 1993. In keeping with my other comments in this category, it is my view that the existing provisions of the Ombudsman Act provide sufficient checks and balances for financial accountability to the Board of Internal Economy.

8. OTHER ISSUES

A number of Recommendations address other issues raised by the Committee. These include: Recommendations 19 (amendment power), 20 (appointment of Ombudsman), 42 (Standing Committee membership), and 43 (automatic adoption of Committee reports). Based on my experience I have some views on these Recommendations which I would be pleased to share with you. For example, in changing the Ombudsman's appointment process, it would be important to reinforce the concept of independence by ensuring that the process for appointment was not conducted in a forum subject to government majority.

My response to the rest of these Recommendations, along with a written response to all the Recommendations in numerical order, is contained in a separate document which I would like to table with the Committee. Thank you for your co-operation.