Read the report
MESSAGE FROM THE OMBUDSMAN
I am now serving in my final year as Ombudsman of Ontario. Reflecting on the past four and one-half years, I believe that my office has been through a process of positive change both structurally and culturally.
Since assuming office, I have encouraged strategic and efficient use of our resources to ensure maximum effect. One approach I have adopted to this end, is to raise issues directly with the responsible Minister rather than engage in formal investigation, which can be extremely resource and time consuming. I believe this method is particularly appropriate when my concerns are focused primarily on legislative, policy or program content rather than on government administration. In November 2003, I wrote to the Minister of Municipal Affairs (now Municipal Affairs and Housing) noting I had received numerous complaints from and on behalf of tenants about the Tenant Protection Act, 1997 and expressing my concerns about the current legislative scheme governing residential tenancies. I indicated the default eviction process has resulted in large numbers of individuals being evicted without mediation or a hearing on the merits. I am particularly concerned that such evictions may have disproportionate and oppressive consequences for vulnerable tenants: seniors, single parents with small children, individuals with disabilities and those for whom English is a second language.
I noted a number of problems with the current Tenant Protection Act, 1997 including the time frame for disputing eviction applications, which is extraordinarily brief when one considers the severe consequences eviction can have on individuals and families. I suggested there should be greater scope for the exercise of discretion in the context of tenant evictions, cautioning that eviction should not be allowed to become a mechanical exercise devoid of human consideration. While the Tenant Protection Act, 1997 may have effected greater administrative efficiencies than the Landlord and Tenant Act, I am concerned that this may have been at the expense of fair process. I urged the Minister to consider redressing the balance.
I was encouraged to receive a response from the Minister in which he acknowledged shortcomings in the legislation and that the election promise to introduce legislation to repeal the Tenant Protection Act, 1997 and restore “real rent control” would be implemented. He added that my suggestions would be carefully considered in this process. The Ministry of Municipal Affairs and Housing also confirmed that it would be addressing the concern I raised in my last Annual Report regarding the provision in the Tenant Protection Act, 1997 that permits landlords to apply for rent increases based on extraordinary increases in the cost for utilities. The Act currently creates an imbalance, as there is no corresponding right for tenants to apply for rent reduction when extraordinary utility costs no longer exist. The Ministry announced on March 29, 2004, the creation of the Provincial Rent Bank program involving the commitment of $10 million in provincial grants to municipalities that currently operate, or wish to establish, rent banks.
My office received complaints this year from tenants living in social housing units who pay market rental rates. Currently, such tenants have no recourse under the Tenant Protection Act, 1997 to dispute rent increases and there is no provision for rent review under the Social Housing Reform Act, 2000. In response to a letter I wrote supporting the creation of a mechanism that would provide for an independent appeal process for market-rate tenants in social housing units, the Minister of Municipal Affairs and Housing stated a comprehensive review of the Tenant Protection Act, 1997 is underway. He explained that this review would provide an opportunity to consider establishment of an appeals process for market tenants living in social housing and undertook to take my views into consideration. He noted that the Ministry is carrying out a comprehensive review of the regulations contained in the Social Housing Reform Act, 2000 as well and that he has asked Ministry staff to take my concerns into account and consider if there are any possibilities for an appeals process for market tenants facing above guideline increases.
This year, I was alerted to the plight of a number of individuals in the province with both developmental and mental disabilities who were experiencing difficulties obtaining a community placement. The individuals in question currently reside in psychiatric facilities but their health care professionals have advised that a hospital setting is not suitable or in their best interests. Despite the fact that with the proper supports, health professionals believe they would be able to succeed in community based settings, residential placements are not available for these individuals with a “dual diagnosis,” who have substantial health problems. A recent study by the Centre for Addiction and Mental Health estimates there are 416 patients with a dual diagnosis currently residing in provincial psychiatric hospitals. Of that number, only 12 per cent were determined to require the in-patient hospital care they are currently receiving. The author of the study suggested that, if the intensive services required could be made available to them, most in-patients would be able to succeed in community based settings. Funding appears to be the biggest obstacle to finding residential placements for dual diagnosis patients. The Ministry of Community and Social Services advised my office that the added costs associated with the care of individuals with dual diagnosis can be a major drain on agency budgets and limits the ability of service providers to accept new dual diagnosis clients into care. The Ministry does not collect information about the size of waiting lists or the length of time individuals spend waiting for a placement. My office is aware of individuals who have been waiting in excess of three years for placements. Given that the issue of the placement of individuals with dual diagnosis involves community and social services as well as health services, I wrote to the Ministers of Health and Long-Term Care and Community and Social Services and asked how their Ministries propose to deal with the delay experienced by individuals with dual diagnosis awaiting community placement.
The Ministries responded noting that they had jointly supported the development and publication of a book entitled “Dual Diagnosis: An Introduction to the Mental Health Needs of Persons with Developmental Disabilities” and that
regional training sessions were held throughout the province in March 2004 based on this publication. I was advised that the Ministries will work collaboratively to facilitate the placement of individuals in the most appropriate settings and that supportive housing is one component of the range of necessary community services. I was also advised that joint Ministry dual diagnosis committees have been established to assist with access to services for individuals with dual diagnosis. The Minister of Community and Social Services stated that although each community develops its own processes, many of them prioritize individuals currently residing in psychiatric facilities who no longer require a hospital setting for residential or support programs when vacancies or new resources become available such as the New Places to Live initiative recently announced by her Ministry. I will be monitoring the complaints my office receives regarding community placement of individuals with dual diagnosis in the future to evaluate the progress being made with respect to appropriate residential placement of such individuals.
Another method of increasing the investigative efficiency of my office involves increasing strategic use of my ability to investigate complaints on my own motion. One goal in my using this authority, is to assist the more vulnerable in our society. I believe it is incumbent on an Ombudsman to exercise the own motion authority in appropriate circumstances, to investigate issues affecting patients in psychiatric hospitals, seniors, children with disabilities and others who may not be able to voice their concerns or whose voices often go unheard.
Last year, I reported on a case I had investigated on my own motion relating to the former Ministry of Community, Family and Children’s Services. It appeared to me that the Ministry had taken a reactive approach in planning and monitoring changes in the delivery of services for children with special needs and did not demonstrate a clear corporate vision of the scope of the issue. In my investigative summary, I reached the preliminary opinion that the Ministry should obtain necessary data to determine what level of residential services is needed in Ontario for children with special needs and plan accordingly. In response, the Ministry undertook to provide me with updates on its progress in developing a policy and funding framework for residential supports for children with complex special needs, at six-month intervals. Children’s and youth services are now administered by the Ministry of Children and Youth Services. That Ministry has advised me that it has completed a complex data collection exercise capturing detailed service and financial information for hundreds of transfer payment agencies and private operators across the province and that it is conducting a detailed analysis of this information. The Ministry is also obtaining feedback from regional offices to identify best practices for service delivery in Ontario communities. The Ministry has begun to examine sources to assist in forecasting future and emerging needs in the residential system and residential systems in other jurisdictions.
This year, I conducted an investigation on my own motion into waiting lists and services delays in the Intensive Early Intervention Program for Children with Autism. My investigation revealed that from the fall of 2000, when the Program began, to December 31, 2002, 423 children with autism, who had been waiting for service, became ineligible for service because they had reached age six. I believe it is unconscionable that hundreds of autistic children “aged out” of the Program without ever receiving services, many after waiting over 18 months. On March 26, 2004, the Minister of Children and Youth Services announced a plan relating to services for children with autism. I will be considering the Ministry’s announcements with respect to autism and what further steps, if any, I will be taking with respect to this matter in the next fiscal year. In another case involving this Ministry, I investigated delays in obtaining special services available to families with children and adults with developmental disabilities. Since my investigation commenced, the Ministry has undertaken a number of steps to revise its business practices.
The Ombudsman Act gives me the authority to conduct investigations relating to a broad range of provincial governmental organizations, many of which routinely have in their possession personal health information. It is often necessary, particularly in the context of systemic investigations, to obtain relevant personal health information in the course of my investigations. Obtaining individual consent in these circumstances may be impractical and, at times, impossible. In these circumstances, it is critical that I have full access to relevant personal health information without the need to obtain individual consent. In some contexts, for instance, within the correctional system, systemic investigations relating to access to health care cannot effectively be conducted if it is necessary to obtain individual consent. Since the Ombudsman Act requires investigations to be conducted in private, imposes strict requirements upon me to maintain confidentiality and my records are not accessible under the provisions of the Freedom of Information and Protection of Privacy Act, third party personal health information in my possession is secure.
Bill 31, which included the Personal Health Information Protection Act, 2004, recently proposed additional safeguards for personal health information, which I generally support. I believe it was clearly intended by Bill 31 that my office would continue to have access to personal health information during the course of our investigations. However, I was concerned given the language of the Bill, that it might have the unintended effect of impairing my ability to conduct investigations of provincial governmental organizations in certain circumstances. Consequently, I attended before the Standing Committee on General Government reviewing the Bill and suggested that an amendment be considered to clarify my right to obtain personal health information during the course of my investigations. While in our complex and changing society, it is important to have clear rules respecting the privacy of personal health information, it is also important to ensure that government administration is held accountable both for its use of such information and for its conduct generally. When Bill 31 was reported back to the Legislative Assembly by the Standing Committee for second reading, it contained a consequential amendment to the Ombudsman Act confirming that a person who is subject to the Freedom of Information and Protection of Privacy Act or the Personal Health Information Protection Act, 2004 is not prevented by any of the provisions in those acts from providing personal information to the Ombudsman in the course of an investigation. The Bill has now received Royal Assent.
The role of an Ombudsman is unique and carries with it broad and independent powers of oversight, investigation and recommendation. However, in today’s society, there are an increasing number of complaint services personnel in the private and broader public sector using the term “Ombudsman” to describe their function. I believe this trend, particularly if it were to prevail in provincial government, would result in confusion to the public and a dilution of the significance of the Ombudsman role. It should be clear to the public that there is one provincial Ombudsman dedicated to consideration of their complaints. In some jurisdictions internationally, the use of the term Ombudsman is restricted by law. In the province of Saskatchewan the government has taken steps to ensure that the word Ombudsman is not appropriated by public offices that do not carry the prerequisites of an Ombudsman. It is the Saskatchewan Government’s policy that no governmental body will use the word “Ombudsman” to designate any position unless the position is designated as such by legislation with the agreement of that Province’s incumbent Ombudsman. I encourage the Province of Ontario to adopt a similar policy.
The world has irrevocably changed since the events of September 11, 2001, and its after-effects continue both internationally and at home. In a speech I delivered this year at the Annual Conference of the United States Ombudsman Association, I noted that the events of September 11, 2001, drove a stake through the security, confidence and vigilant commitment to fairness of North American society. Exigent, diffuse and uncertain threats to our very sense of security make possible dangerous, far-reaching responses by our governments, which are capable of undermining our basic concepts and values of democratic good governance and its fundamental fairness.
I believe individual rights and fairness in government administration must not be lost or forgotten in the face of increased concerns over security. It is critical that Ombudsman organizations in their services to the public in these difficult times continue to be advocates for measured and fair response by government.
One concrete example of the continuing effect of 9/11 on government administration is the addition of rigorous requirements for obtaining personal identification documents. While the need for such requirements is generally not disputed, their implementation has had an adverse impact on the delivery of provincial government services to the public. The Registrar General Branch of the Ministry of Consumer and Business Services registers and provides certificates relating to various events including births, deaths, marriages, adoptions and changes of name. For the first time since 1996, the Registrar General Branch of the Ministry is on the list of the top 10 government organizations complained about to my office. The number of complaints received by my office doubled from 2001-2002 to 2002-2003 and has quadrupled since 2002-2003. Service delays at the Registrar General Branch are now legion and have caused considerable inconvenience to the public. I have reported on an investigation I conducted on my own motion into the situation at the Registrar General Branch as well as a number of case stories that illustrate typical situations involving significant delays with the Registrar General Branch, which have necessitated intervention by my office. The Ministry has responded to the need and deployed significant additional staff and resources in an effort to resolve this serious service disruption. I will monitor the results.
I continue to encourage governmental organizations to create internal complaints mechanisms. Such mechanisms provide an opportunity to resolve complaints without resort to the external intervention of the courts or my office. They enable an organization to address complaints before they escalate and to find resolutions tailored to their own mandate and resources.When an organization deals effectively internally with complaints, it serves to enhance its credibility and reputation. Having an effective internal complaints process, enables an organization to reflect upon and assess its operations and their effects. Effective internal complaints mechanisms can lead to service improvements and prevent future complaints.
My office often acts as a resource to organizations establishing internal complaints systems. This year my office provided advice to the Victim Services Division of the Ministry of the Attorney General as well as to the new Fair Practices Commission of the Workplace Safety and Insurance Board regarding internal complaints resolution. My office also made a presentation to a multi-ministry committee at the Corporate Policy Branch of the Management Board Secretariat regarding the essential components of a complaint handling system. In this Annual Report, I have included a document entitled “Creating Internal Complaints Processes,” which contains a checklist of points I suggest organizations consider when developing complaints mechanisms. My office has had a Complaints About Us program since 1996 and I report annually on the results. In my own office, complaints have led to improvements in how we conduct our business. I recognize that no organization, including my office, is perfect and believe that organizations
should be prompt and forthright in correcting and redressing their errors. In a case in point, this year my office resolved a complaint of regrettably long standing involving a complicated matter that had extended over many years. The service provided by this office, in this case, had been well below standard. A written apology was provided. In addition, consistent with my practice of recommending that governmental organizations compensate individuals for the frustration they have experienced as a result of maladministration, compensation was paid to the complainant.
When I became Ombudsman in January 2000, by necessity I became quickly familiar with the Family Responsibility Office (the FRO), which is responsible for enforcing spousal and child support orders in this province. Throughout my term, the FRO has yielded the second largest number of complaints and enquiries to my office. In my first Annual Report I reported that my office received 1,451 complaints and enquiries about the FRO. Not much has changed since then. This year my office received 1,467 complaints and enquiries about the FRO. In my second year in office, I conducted an own motion investigation to examine the FRO’s computer system. It was my view then that the FRO’s computer system needed to be replaced if the FRO were to meet its mandate effectively. My view remains unchanged three years later. While some temporary administrative initiatives have recently been introduced to deal with routine calls, updating addresses, registration and notification about credit bureau reporting, the FRO is still operating with inadequate crucial technological resources. The case stories highlighted in this report demonstrate grave continued inefficiency, which is simply unjustified, particularly for those in need.
I have been advised that the FRO is continuing to request approval of a new integrated service delivery model, which would combine new software with a new case management system. However, even if funding is approved for this necessary project it will undoubtedly require significant time to implement. In the interim, families dependent on the FRO’s effective enforcement and prompt and appropriate disbursement of collected funds for their income will continue to suffer. My Annual Report contains a selection of case stories highlighting the problems individuals encounter when dealing with the FRO. The FRO’s phones are constantly busy and huge numbers of individuals never get through. Human error is cited repeatedly to explain accounting and other administrative errors, which result in frustration and financial loss to recipients and payors alike. As of February 2004, there were $1,319.2 million in arrears owing to recipients, including $209.8 million owing to the provincial treasurer as a result of assignments for social assistance. Without the necessary further resources, the FRO will not be able adequately to meet the needs for which it was created and properly serve the public of Ontario.
Correctional Services at the Ministry of Community Safety and Correctional Services continues to generate the largest number of complaints and enquiries to my office, totalling 7,640 this year. This high number of complaints received is not surprising, considering that inmates in provincial correctional facilities are dependent on the Ministry for such basic needs as their food, clothing, shelter and medical care. Despite the prevalence of correctional complaints, I do wish to express my understanding of the difficult issues the Ministry faces. In particular, I recognize the efforts of senior management in Corrections towards achieving a humane environment for inmates of provincial correctional institutions consistent with the obligations of a civil society. This year, I conducted a number of own motion investigations into the Ministry’s operations. I considered a “lock down” at a privately run correctional centre that restricted inmates to their cells for months at a time and which was prolonged because of a dispute over the responsibility for repairing walls damaged in a riot. I also investigated the Ministry’s monitoring of compliance with health care and food services contractual requirements at the same centre. In addition, I was very concerned to learn that emergency and routine health care of federal immigration detainees in a provincial facility was being delayed because of decisions taken by Federal government officials. I consequently launched an investigation, which resulted in the Ministry taking action to ensure those under provincial care received timely medical treatment. I also investigated a situation involving an administrative error that led to a group of women inmates being denied their legal right to vote. In addition, I investigated the planning surrounding the opening of the Toronto Youth Assessment Centre, which has been mired in criticism for the conditions of youth confinement and which is finally scheduled to close its doors. This Annual Report contains numerous case stories about inmates who have relied on our office for assistance over the past year and a separate section, Focusing on Corrections, discussing some of the issues faced this year in the correctional area.
This report contains many stories of successful resolution which would not have been possible without the cooperation of dedicated and conscientious public servants. I presented five members of the Ontario public service with Ombudsman Ontario Public Service Recognition Awards, recognizing those individuals as public servants who consistently try to find ways to solve problems and provide better service to the public in response to complaints brought forward by my staff. This year, awards were received by individuals from the Integrated Services for Children Unit, Management Support Branch (Ministry of Children and Youth Services), the Family Responsibility Office (Ministry of Community and Social Services), the Driver Improvement Office (Ministry of Transportation), the Central East Correctional Centre and the Operations Compliance Unit, Central North Correctional Centre (Ministry of Community Safety and Correctional Services).
I continued to promote the role of Ombudsman nationally as well as internationally. This year, my office was involved in developing and presenting training for members of the Forum of Canadian Ombudsman. I also engaged with my provincial and territorial colleagues as a member of the Canadian Council of Parliamentary Ombudsman. I continued in my role as President of the International Ombudsman Institute, participating in such activities as an International Round Table for Ombudsman of the former Soviet Republics in support of their role in enhancing their nations’ transition to democracy. That Round Table was hosted by the United Nations Development Program (UNDP) in Baku, Azerbaijan and my attendance was at the invitation and expense of the UNDP. I was pleased to arrange Visiting Scholar status for a staff member of the Office of the Ombudsman of Korea to study at the Institute headquarters at the Faculty of Law of the University of Alberta. The Institute will be holding its VIIIth World Conference in September in Quebec City based on the general theme of “Balancing the Obligations of Citizenship with the Recognition of Individual Rights and Responsibilities – The Role of the Ombudsman.”
Looking forward, I believe we are well on our way to achieving our corporate vision by 2005, which includes successful community outreach and government information sharing, effective use of resources, becoming a leader in the international ombudsman community, effective strategic and technical human resource practices and establishment of a leadership philosophy amongst staff that promotes participation, innovation and creativity. Our vision document, Looking Forward, is available to the public from our communications department or on our website.
I have enjoyed an almost four-decade career in criminal, regulatory and administrative justice roles, including that of Provincial Court Judge and Police Complaints Commissioner for Ontario, a specialized executive ombudsman position. I remember well the creation of the Ontario Ombudsman’s office in 1975, have known each of my four predecessors and closely followed their Ombudsman careers. When the position of Ombudsman of Ontario became available in late 1999 I competed for the position believing that being the Ombudsman of Ontario would represent an honourable and fitting public service conclusion to my professional life.
My term as Ombudsman will end on January 29, 2005 and I will retire secure in the knowledge that I have latterly worked with men and women committed to the principles of the Ombudsman role in support of the best in our democratic values. This is my last Annual Report as Ombudsman of Ontario and I would like to take this opportunity to say good-bye to and thank the public of Ontario for bringing their complaints and concerns to my attention, the Government of Ontario for cooperating with my investigations and implementing improvements in response to my suggestions and recommendations and the Legislative Assembly for granting me the privilege of being Ombudsman and for their consideration of my reports and recommendations. In January I will bid farewell to my staff, who have shown dedication to the Ombudsman goals of fairness and accountability in the provision of government service to the public. I also wish to thank and recognize my family publicly as I retire from my full-time professional career for their support and encouragement over the many years I have served as Ombudsman and in several other public service roles.
Clare Lewis, Q.C.