Read the full report
Ombudsman’s Message: Humanizing government
This has been a remarkable year, rich with accomplishment. We have ferreted out systemic problems that caused frustration – even tragedy – for some, and we have helped many others who had problems of their own in dealing with government. Our experiences have been diverse enough that we were able to identify two key pitfalls that are, in my opinion, primarily responsible for creating the kinds of problems that bring so many people to our doors – more than 24,000 this past year alone.
I will therefore use this message not only to describe our accomplishments, but also to share our insights into why so many problems occur. I am hopeful that, by doing so, this Office can encourage a governing culture that will reduce the need for complaint.
Finally, and by no means last in importance, this past year has also marked our energetic renewal of a quest started by the first Ombudsman, Arthur Maloney, Q.C., to give this Office its natural and sensible mandate: this Office should be the independent watchdog of all government action, whether carried out directly by public servants or by those privatized offices that do the work for the Government of Ontario using taxpayers’ dollars. I am speaking, of course, of municipalities, universities, school boards, hospitals, children’s aid societies and long-term care facilities. I have committed myself to this mission because it is the right thing to do and because, when achieved, it will improve the quality of life of many in this province. It will bring inexpensive, effective, impartial intervention to a range of problems that might otherwise fester or denigrate into litigation or public inquiry.
Before I describe these three things – (1) our accomplishments, (2) the insights we have acquired and (3) the case for a full-service Ombudsman, it is important to set the stage and remove all abstraction. This can best be done by borrowing a simple and poignant phrase from the man who was involved in the appointment of the first Ombudsman, the Honourable Chief Justice R. Roy McMurtry. The phrase I want to borrow was expressed by the Chief Justice during the official opening of our new facilities earlier this year. He commented that, “the Ombudsman in Ontario has proved to be an effective means of humanizing government.” That, to me, is what this Office is really all about – humanizing government when it has become too rigid, too bureaucratic, too wooden or too insensitive to represent the people of Ontario well.
Demonstrating What It Means to Humanize Government
To speak of “humanizing government” is not to use empty rhetoric. To understand the full measure of the concept, all one need do is remember that government decisions affect real people in profound ways. All it takes to make the phrase concrete and inspiring is to realize, for example, that in the past year our efforts resulted in more than 60 families regaining custody of their children, a legal authority they had surrendered to children’s aid societies. These families endured this indignity because they could not afford to pay for the residential care their children required. So they had to give them up. These parents had to sign documents acknowledging that they could not care for their children properly, as if they were somehow neglectful, abusive or incapable. They were put in this position because they are not wealthy and because their government, in the name of fiscal restraint and control, had removed the discretion that had previously existed to help in such situations. For my part, when I want to give life to the phrase “humanizing government,” I simply have to think of what it must have been like for those parents when they were told that they could be true parents again without having to give up the support their children need. It is so much more humanizing to think of that day than of the earlier day when they were told that, if they wanted their children to receive the residential care the children required, they would have to sign over their legal rights as parents.
Or, to pour real content into the phrase “humanizing government,” all one need do is to realize that in the future many more newborn children will thrive and survive instead of failing and even dying. Before our involvement in the newborn screening issue, not even coroners’ recommendations, or interest groups’ advocacy, or the example provided by other governments, or mounds of medical literature or full-blown litigation could squeeze from our province the modest dollars needed to provide basic newborn testing to prevent the preventable. This situation was not only personally tragic for these children and their families; it was obscene false economy, as dozens of these children went on to drain health care costs. When I want to get a picture in my mind of what “humanizing government” is about, all I have to do is imagine parents watching a healthy toddler learn to walk instead of sitting helplessly by her bedside watching her suffer because their government, through inertia and illogic, followed Third World infant screening practices.
Or I can imagine what it was like when the Comeau-D’Orsays opened the letter that contained the government cheque that would buy back the lives and the hope they had mortgaged trying desperately to pay for the miracle drug that was coaxing their son from his psychosis and a palliative-care death bed into a young man with whom they could communicate, who could learn and who could walk again. That image is so much more humane than the one I imagine of that earlier time, when the Comeau-D’Orsays were told by their government: “We are sorry. There is nothing that can be done. Nowhere on this list does it say that the government should be paying for this drug. Ask the pharmaceutical company if they will give it to you for free.”
The pages of this annual report are salted with examples of this Office helping to humanize government by busting bureaucracy, cutting red tape and filling in cracks that people were falling through. In the last year we have done it thousands of times – admittedly, most often with less drama than in the cases I have just recounted. Still, it would be a mistake to treat any of these instances as trivial. People do not turn to this Office lightly. They come here when they are in need and cannot work their way through automated answering services or websites to find responsible civil servants who can give them clear and correct answers. We referred more than 13,000 inquiries this past year alone to the appropriate organization.
People come to this Office when responsible civil servants give them answers that are “clear and correct,”... instead of thinking about the impact the answers will have on real people.
People come to this Office when responsible civil servants give them answers that are “clear and correct,” but only if one is going by the book, instead of thinking about the impact the answers will have on real people. You will read in these pages, for example, of an autistic child who, because information was missing on her birth certificate application, went without a pediatrician for three years while her parents tried to get a health card for her. You will also read of a woman who was pursued by a collection agency 13 years after she was overpaid $1,700 under the Ontario Student Assistance Program. She was told that, in accordance with the rules, she would have to prove her claim that she had repaid the money more than a decade before, even though it was fanciful to think that she would have kept her records for that long and even though the delay in following up was the province’s own.
Often people come to this Office not because they have been given “clear and correct” but unreasonable answers, but simply because mistakes have been made. Like the Family Responsibility Office filing a writ in the wrong location in an attempt to collect child support back payments owed to a mother. This was done despite three attempts by the woman to alert the office that her former spouse was trying to sell a property in a different location to the one they had filed a writ.
Or, like the disabled man who was being pursued for $2,000 in back spousal support, even though a proper review of his file disclosed that he had in fact overpaid $8,500. The contribution we made to “humanizing government” in that case was brought home to one of my investigators when the relieved man, after receiving repayment, commented that he could now buy proper food, get his teeth fixed and pay his outstanding bills. These bread-and-butter cases may not all be life transforming, but they make the point that this Office helps to humanize government by making it accessible and by focusing on what really happens to people when mistakes are made.
It was just over one year ago, on April 1, 2005, that I accepted the position of Ombudsman of Ontario. I observed a serious “disconnect” at the time: the provision of government services had become increasingly complex and depersonalized, what with automation, privatization and the continuing growth of government, while the cachet of this Office was low. The prospect of abolishing the Office to save money had even been mooted. We immediately set out to modernize the Office and to demonstrate its worth. There are now new trappings, like a new logo and a motto, “Ontario’s Watchdog,” and we have moved into a more efficient office space, but these are small things. What we have done of moment is to improve the way the Office does business. As I describe in this report, we established new communications and outreach programs, streamlined our intake procedures, set up a new early resolution team, developed new investigative strategies and became more disciplined in identifying trends. We have pounded the bushes to ensure that the public knows we are here by revising our materials and our website and by developing a new media relations focus.
Among the initiatives I am most proud of is the development of the Special Ombudsman Response Team (SORT). SORT has the expert investigative experience and the capacity to blitz large investigations of complex and systemic problems. It uses disciplined evidence- gathering protocols and follows carefully planned timelines with identified milestones. It conducts initial reviews to ensure that its efforts are warranted. It was SORT that produced the evidence needed to show that the government had erred in making competent and caring parents give up their children so that those children could get residential care, and it was SORT that came to grips with the Comeau- D’Orsay saga and, in doing so, discovered the shameful state of newborn screening in Ontario.
Most famously, it was SORT that undertook the massive review of the Municipal Property Assessment Corporation (MPAC), and it was SORT that produced work of such high quality that MPAC and the province agreed immediately to adopt 18 of our 22 recommendations and undertook to study the remaining ones. I highlight those recommendations in this report to show their impact. Many of them address problems that betray an organization so infatuated with its own products and policies that it often failed to consider the implications of its decisions on affected citizens. I understand that the MPAC report is about money rather than losing children or regaining health. Still, it was unprecedented for an Ombudsman’s report, in terms of the number of people it affected, there being more than four million property taxpayers in this province. Literally hundreds of them have expressed their support, and even relief, in letters to editors and in notes to us.
As I say, between our SORT investigations and the thousands of lives we have touched in the individual complaint cases we have processed, this has been a remarkable year. I am intensely proud of the work my Office has done in brokering solutions and in helping to establish the systems needed to help humanize government.
Our Observations: “Rule Slavery” and Depersonalization
There are two trends that cripple the ability of provincial service providers to do the right thing – a slavish adherence to rules and the failure to consider fully the personal, immediate human dimension of the decisions that get made. In making this last observation, I do not intend to suggest that government administrators are callous or uncaring. We know otherwise from the tremendous success we have achieved when we have intervened and explained situations fully – a point I will return to later. It is more a case of distraction and a depersonalization that is understandable in a heavily burdened civil service, but that nonetheless is unacceptable and preventable. But first I want to address the question of “rule slavery,” for it is the source of many of the most egregious problems we see.
I appreciate the importance of rules, policies and guidelines. I know the dangers that untrammeled discretion poses. If there is one thing I learned in my prior incarnation as a lawyer, it is that rules, policies and guidelines exist for a reason. They are meant to prevent arbitrary treatment and to enable correct and sound decisions to be made. But they are not foolproof. They are, by their nature, general, and they therefore fail to account intelligently for every situation. No rule is intended to be self-defeating, to be applied even when it will produce perverse results. Rules have to be understood and applied according to their underlying purposes, which invariably include the best interests of the people of Ontario.
Yet few public servants seem prepared to take the initiative or to make an effort to get the necessary approval when rules appear to pose an obstacle, rather than reveal a path, to a sound choice. There are too many times, in my opinion, when government agents choose the simple and safe route of mechanically and reflexively following rules, rather than finding ways within a system of rules to solve problems. I fear that this culture is becoming endemic, what with the increased development of guidelines and policy directives in the post-Gomery era. The tendency to err on the side of adherence to rules, however, is not just making governments leaner and more disciplined. It is also making them meaner and rigid, even in cases that call for discretion, accommodation and a can-do attitude.
Often it is because of rule slavery that cases fall through the cracks. It was the rigid application of approved drug funding lists that saw the Comeau-D’Orsays almost become bankrupt trying to get their dying son effective treatment with the same drug that was approved for funding to treat another condition. It is because of rule slavery and over-systemization that it became necessary for parents to sign away custody of their children to get them residential care. Our caseload is packed with examples of rule slavery, such as the terminally ill man described in this report who was denied legal aid to consult with a lawyer about the garnishment of his sick benefits to pay support, while his ex-wife received legal aid. Rule slavery is also exemplified by the case of the northern Ontario heart patient who was told that he would have to travel to three different cities to see three different doctors if he wanted a Northern Health Travel Grant, even though he could get all of his medical care at one place that was easily accessible by train. These problems were all solvable, even in a world of rules. I know this because they were all solved when we got involved. The discretion to do so came from somewhere. Solutions can almost always be found when robust efforts are made to find them.
This brings me to the second problematic trend we have observed – the failure to consider fully, or to react to, the human costs of decisions. When the human consequences are considered, rule tyranny can be appropriately avoided and discretionary decisions made wisely. As I said, I know that those who serve this province are caring. They would not have chosen their professions were they not. But over time people can become “cases,” and when the job becomes one of processing “cases” instead of helping citizens, humane government gets lost. Among caring people, taking the time to see the human implications of a decision can inspire the kind of can-do attitude that can save grief and even money. Too often we have seen that problems emerged because initiative was not shown.
The first case summary in this report involves the family of an autistic boy who, after 14 years in a treatment program, was going to be discharged from the program because of his age. In spite of requests for help, no one at his treatment centre took the initiative to help his family develop a plan or negotiate waiting-list procedures. I do not think this would have happened if those who were asked had stopped to imagine the family picking the boy up on the last day, having nowhere to take him, and his mother possibly having to give up her job to care for him.
In another case I describe, a senior citizen who needed a birth certificate to get a health card had to wait for five months because given her birth date, a manual record search had to be conducted. The problem was solved in a week when the case was highlighted for personal attention because of the intercession of our Office.
At first no one from the Ontario Disability Support Program helped a wheelchair-dependent woman arrange for the repair of her wheelchair after she was struck by a car. She was told to call for parts herself. It was only when we spoke to a disability income support manager that her problem was solved. Had anyone stopped to think about what it would be like to be rendered immobile for the sake of a phone call, I am sure that call would have been made much earlier.
A crime victim waited for months for a hearing date to be fixed before the Criminal Injuries Compensation Board, because no one followed up when the court office failed to transfer court records that had been requested. When the request was followed up, after we got involved, the records were obtained by facsimile on a priority basis. The delay may have seemed tolerable when the case was thought of as a file in a pile, but not when thought of as a crime victim waiting for closure.
As I say, we have found it inspiring to think of our role in humanizing government. To the extent that administrators share that vision, rule tyranny and faceless decision-making can be avoided, and the quality of life for Ontario residents can be improved. What we have found this past year will likely surprise few, but it is important: good government comes from an ethic of caring and from seeing the human dimension of problems, not from a slavish commitment to rules. And if there is good government, then no one has to suffer because they do not know enough to call our Office.
Quest for a Complete Mandate
It is no secret that I have spent tremendous energy in the past year trying to convince the Government of Ontario to rationalize the mandate of the Office of the Ombudsman. It is no secret because I have been trumpeting it on every occasion. I use the word rationalize advisedly. At present, our Office’s jurisdiction is confined to “government organizations,” even though much of what government does and pays for is carried out by non-government organizations acting as government agents. This limitation on our jurisdiction makes no sense. Our ability to improve the delivery of government services should turn on substance rather than form. There is simply no merit to arbitrarily limiting access to our inexpensive, informal, unobtrusive methods of problem solving in this way.
My quest for rationalized authority took its most public face in the aftermath of the death of five-year-old Jeffrey Baldwin. That case should serve as a bellwether. Jeffrey Baldwin died in the care of his grandparents, both convicted child abusers. Jeffrey was with them because the local children’s aid society did not have procedures in place to deal with the placement of a child with family members. No background checks were conducted. No files were reviewed. It was assumed that because they were “family,” that was protection enough.
The failings that led to Jeffrey’s death are exactly the kinds of practices the Office of the Ombudsman is equipped to address. Ontario stands alone in Canada on its sole reliance on the use of non-government agents to fulfill the public responsibility of protecting our children. It is not rational that, as a result of that accident of history, this Office does not have the authority to oversee children’s aid societies. And it is not rational to keep this Office from using its tools and expertise to oversee other delegated government agents, like municipalities, universities, school boards, hospitals and long-term care facilities. Proof that it makes no sense is found in the fact that, on more than 1,850 occasions in the past year, we had to tell complainants that we had no jurisdiction over such agents. I have therefore made a commitment to work to change the situation.
I wish I could take full credit for this initiative, but I cannot. It was the idea of Arthur Maloney, the first Ombudsman, and it has been championed by a number of my other predecessors as well. What I have done is given it renewed priority. I have done so because I see what this Office has done for the 60-plus families who regained custody of their children after our intervention, and for those newborns whose illnesses will be screened properly, giving them a better quality of life or, in some cases, even a chance at life. I see what we managed for the Comeau-D’Orsays and for those who were frustrated and angry because of the dealings and decisions of MPAC.
I want more power for this Office so that the people of Ontario can have the benefits of an effective government watchdog when they have their most frequent and, often, most important contacts with government – when they are being educated or lodged in hospitals and long-term care facilities, when the government is interceding in their families and when they are being governed by municipalities in the myriad ways municipalities govern. In none of these cases, do the people of Ontario now have access to the kind of effective, independent oversight and investigative power and expertise that this Office offers. They make do with law suits, in-house complaint processes, part-time boards without powers or expertise in evidence gathering, and inquests and commissions that come along after things have tragically failed. The failure to give the Office of the Ombudsman of Ontario jurisdiction in these vital areas, where the need for humane government is omnipresent, is irrational. It is a case of lost opportunity and lost economy. It is also a case of lost vision – the failure of government to change the face of oversight to match the changing face of government itself.
The Office of the Ombudsman of Ontario was established over 30 years ago in a wave of similar initiatives being undertaken nationally and internationally to cope with the growth of governments. Governments were taking on increasing roles in the lives of their citizens by regulating diverse areas of activity, by supporting families and the welfare of its people. Ironically, the bureaucracy required to accomplish all of this work made governments larger and institutions more complex and impersonal, requiring an Ombudsman who could navigate the shoals of bureaucracy and speak for those who were not being heard. The burgeoning of government has not abated in the past 30 years; it has intensified. We now have a service economy, and the robust government to match. Only the form of government has changed. We cope by automating, privatizing and entering responsibility-sharing agreements. These changes have all made the provision of government services more complicated and less personal. Most importantly, they have made the provision of government services more diffuse. Close to 80 per cent of provincial tax dollars are now spent in those “zones of relative impunity” that fall outside the mandate of this Office. I would venture to guess that more than 80 per cent of the contact between the people of this province and their government now occurs in these zones. When we move responsibilities from government organizations to non-government agents without moving oversight as well, that is what we create – zones of relative impunity, where humane government is less likely to be secured and where problems are less likely to be addressed.
To date, my campaign has not produced the results it should have. Whether it is the natural fear by governments of oversight, or lack of imagination or an irrational commitment to a “public/privatized” dichotomy, I have yet to see real movement. The Child and Family Services Statute Law Amendment Act, 2006, did not contain the simple amendment I proposed that would have given access to this Office to those dealing with non-government service providers that make decisions about the protection of children, the welfare of families and the rights of parents. The Independent Police Review Act, 2006, before the Legislature at the time this report was finalized, is a shadow of what it should be. Its drafters have reflexively continued a provision dating from the 1990 statute that overtly excludes our jurisdiction. I will do what I can to remedy this apparent blunder, and I will continue throughout my mandate to push to remedy the jurisdictional failings of this Office. I have no choice, because this is the best way to ensure that, with the complicated service-delivery models we use, the people of Ontario get what they deserve and what they pay for – namely, humane government. It is not discreditable that I am fighting so hard for more authority for this Office; it would be discreditable if I weren’t.
But I do not want to let battles not yet won put a damper on things. As I said, this has been a remarkable year. Given all that the dedicated staff in the Office of the Ombudsman has accomplished in the interests of humane government in the past year, I am intensely proud to submit this, my first, annual report.