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Ombudsman’s Message: Few Left Untouched
Few people in Ontario have been left untouched by this Office’s work. We have helped thousands of individuals – more than 20,200 in the past fiscal year alone – navigate through government red tape and find solutions to their problems. And millions of others have felt the impact of our more broadly based systemic efforts. For example, in the first year of my mandate, our reports and recommendations were the catalyst for:
• increased funding of residential care for children with special needs;
• improvements in the system for approval of funding of specialized drugs;
• expanded screening of newborn babies for potentially fatal disorders, and
• a new, fairer, more transparent property tax assessment system.
I am pleased to report that this past year our efforts have continued to make a difference. Our systemic investigations have led to dramatic changes, including:
• a support program for the disabled that no longer financially penalizes recipients because of its own bureaucratic delays;
• funding under the Ontario Health Insurance Plan (OHIP) for prosthetic testicles for juveniles, a procedure that was delisted a decade ago;
• a complete review of OHIP’s out-of-country funding program to make it fairer and more transparent, thereby assisting seriously ill Ontarians;
• increased funding for mental health services for children, including those at Canadian Forces Base Petawawa suffering stress-related illness as a result of the war service of their parents;
• improvements in the enforcement and support of child and spousal orders at the Family Responsibility Office;
• an additional $12.75 million committed for compensation for victims of crime as well as a full review of the criminal injuries compensation scheme; and
• better protection for lottery ticket buyers.
These are changes that resonate with Ontarians in their daily lives – when they purchase lottery tickets or pay their property taxes, when they seek health care or funding for drugs, when families need support and when crime victims need help. They are accomplishments that have not gone unnoticed, and the people of this province have let us know they are appreciated.
When I assumed this position in April 2005, I publicly stated that it was my goal to put the Ombudsman’s Office on the map as a model of excellence in effective oversight. These results reflect a promise kept. Our efforts to revitalize the Office and renew its relevance to Ontarians have borne fruit, and we pledge to continue them.
Unfortunately, our work in the past year has revealed that some government departments and agencies have not been so resolute in keeping their promises. They have, at times, attempted to mask unflattering realities with what can only be described as “puffery.”
The Perils of Puffery
When we investigated the Municipal Property Assessment Corporation (MPAC) last year, I was struck by the irony of MPAC’s vision for itself as “the global leader in property assessment.” What we found was that MPAC was in fact a global leader in puffery. It failed to provide sufficient and timely assessment information to property owners, could not ensure that its assessment decisions were accurate, fair or transparent, and placed the onus on ordinary citizens to challenge its conclusions.
Unfortunately in our investigations over the past fiscal year, we have encountered many more cases of idle boasts made by government departments and agencies that are all too reminiscent of MPAC’s slick but hollow self-marketing.
In our May 2006 report, Losing the Waiting Game, we examined the Ontario Disability Support Program. We found that this program, which was touted as having been created “to help those most in need,” i.e., individuals with significant disabilities, was actually penalizing them by depriving them of benefits because it took so long to process their applications. Ministry of Community and Social Services bureaucrats would take eight or 10 months before approving awards, but then would pay only four months of retroactive benefits, stating this was the maximum retroactive payment allowed. The Ministry was effectively penalizing eligible applicants for its own delay – before we became involved and the problem was corrected.
In June 2005, the government announced changes to the legislation governing enforcement of family support payments, headlining its press release with the claim: “New law will mean tougher enforcement, improved fairness and enhanced efficiency at the Family Responsibility Office.” The release raved that “Ontario is set to become a national leader in enforcing family support payments.” This was welcome news to those financially dependent on the Family Responsibility Office (FRO), which since its inception 10 years ago has been subject to repeated criticism by the Ombudsman and the Auditor General. But despite this upbeat marketing, the FRO was failing to live up to its own billing.
A year after the government’s promise of improvements, we investigated a complaint from a parent who was owed substantial child support. We found an organization marked by carelessness and a lackadaisical attitude. Defaulting parents were able to circumvent the system because of the FRO’s wooden view of its own rules. Worse, rather than operating as a “tougher enforcement mechanism” to vigorously enforce child and spousal support, the FRO misconceived of itself as a neutral agency – raising the risk that it would not be a “national leader” in anything but mollycoddling deadbeat parents. Following our August 2006 report, It’s All in the Name, the province responded that it had already pledged $40 million over four years to improve customer service at the FRO. Despite this, the FRO continues to be one of the top five subjects of complaints received by my Office.
One of the most grievous cases of government promise-breaking we have ever encountered involved the Criminal Injuries Compensation Board (CICB). For 35 years, successive governments in Ontario have made a generous promise of compensation to victims of violent crime. The statute in which this promise is made, the Compensation for Victims of Crime Act, is administered by the CICB, which touts itself as providing “a fair, caring and sensitive forum for victims to be heard.” In stark contrast, our investigation – chronicled in my February 2007 report, Adding Insult To Injury – revealed a system so cash-starved and a board so moribund that crime victims were waiting an average three years for compensation. The government had failed to provide the CICB with the resources necessary to effectively carry out its mandate and pressured it to delay paying compensation, contrary to law. The board, which had been created to aid victims of crime, was instead serving to increase their pain and suffering by putting them through a gruelling bureaucratic maze.
Puffed-up promises are, of course, the stock in trade of the multi-billion-dollar Ontario Lottery and Gaming Corporation (OLG), which uses slick marketing campaigns to entice Ontarians to buy tickets in pursuit of a dream – winning the big jackpot. In 2006 alone, the Corporation’s lotteries grossed almost $2.4 billion, hundreds of millions of which went into Ontario government coffers. On its website, the OLG boasts, “OLG values your trust and works hard to achieve the highest level of integrity across our lottery products” and promises it is a “leader in lottery security” that offers “one of the safest, most secure and most highly regulated products in the world.” But our March 2007 report, A Game of Trust, told a very different story.
Our investigation into the OLG’s protection of the public from fraud and theft uncovered a hopelessly conflicted agency that had become far too close to its retail partners at the expense of protecting consumers. The OLG was so caught up in its desire to increase its profits that it had forgotten its foremost responsibility was to the public. Instead of strengthening its security measures when it became aware of numerous suspicious “insider” wins and even outright retailer fraud, the OLG followed the “hold your nose” attitude once expressed by its Chief Executive Officer and paid out millions of prize dollars in questionable circumstances. Despite all its spin, the OLG proved wholly inadequate to the task of regulating its own lottery business in a way that protected the best interests of Ontario citizens.
The Ministry of Children and Youth Services also fell short on its public promise to serve as the province’s “champion of children and youth,” as we discovered in our March 2007 investigation of a crisis in mental health services for traumatized military children. As a result of heavy casualties suffered during Canada’s military mission in Afghanistan, demand for counselling had increased tenfold among children of soldiers from Canadian Forces Base Petawawa. They were forced to wait up to six months for treatment of their war-related anxiety and psychological problems. But rather than “champion” these children in crisis, the Ministry was prepared to write them off as a federal military problem. My investigation determined that while the federal government had a moral obligation to support its troops, the provincial government was solely responsible for mental health services for all Ontario children, regardless of the occupation of their parents.
I do not wish to suggest that our Government and its agencies should not set lofty goals for themselves. But when there is a gulf between promise and delivery, when promises are broken, it matters. Public trust, the necessary currency of good government, is squandered. Openness and transparency are the watchwords of mature democracy for a reason: Without accurate knowledge of what governments are doing, citizen participation is meaningless.
Puffery is antithetical to open and transparent government, corrosive of public trust and even harmful to meaningful democracy. It is therefore serious business when government departments and agencies make promises they cannot or will not keep, or attempt to paper over their failings with ostentatious claims.
Puffery can inhibit quality in two ways. First, if organizations fall into the trap of believing their own hype, they can become complacent and lose the urge for self-improvement. Second, as our recent investigations demonstrate, puffery can become a shield for inertia and apathy. If governments and their agencies believe they can hustle the public, they will be tempted to leave their programs under-resourced and flawed, crossing their fingers that no one will pull back their Wizard-of-Oz curtain and expose the real state of affairs.
Fortunately, Ombudsman oversight can mitigate the effects of spin-doctoring. All of these investigations identified serious systemic failings underlying the organizations’ imposing boasts. The effect of exposure has been dramatic. All of our recommendations for improvement have been accepted and the organizations have recommitted to serving the public interest. As the fallout from our public reports demonstrates, good government is achieved not by concealing or denying shortcomings, but by recognizing and dealing with realities.
Putting the “Serve” Back in Public Service
As government has grown and its tasks have become more complex, it has undoubtedly become more impersonal than it once was. The ethic of public service has been challenged not only by the systems that have been put in place to control large institutions, but also by cost-cutting pressures and by increasingly complicated work assignments. I have diagnosed three symptoms of this undeniable decline in public service: “Rulitis,” “policy paralysis,” and “customer disservice syndrome.” Each contributes to the kind of “can’t do” ethic that gives bureaucracy a bad name.
“Rulitis” is the rigid, unthinking adherence to pre-established “rules,” even where their application makes little sense. We saw myriad examples of this, several of which are detailed in the “Case Summaries” section of this report. In one heart-wrenching case, a mother suffering from multiple sclerosis had her special diet allowance under the Ontario Disability Support Program slashed from $250 to $20 under new program rules – all because, as our Office determined, the woman’s doctor had failed to check off the right section on a form. Strict adherence to rules turned a minor error into a major health problem for this mother of three, who could no longer afford the high-protein products she needed to maintain her stamina and her medication regime.
Another case of rulitis involved a northern Ontario woman who sought reimbursement from the Ministry of Health and Long-Term Care for travel to Winnipeg to see a medical specialist. She was initially denied because the specialist’s qualifications did not fit the rule, even though the specialist was best able to provide the medical service that the program was meant to support. After we got involved, instead of trying to fit the situation to the rules, the Ministry sensibly changed the rules to fit the situation.
“Policy paralysis” occurs where there is no rule for solving a glaring problem. It manifests itself in indecision or even apathy. For instance, we received a complaint from a Métis family that the Ministry of Natural Resources was refusing to address their claim for reimbursement of fishing royalties. Until our Office intervened, the Ministry had stalled the request for over six years, waiting for a policy to materialize. Similarly, a mother was left in limbo by the Ministry of Children and Youth Services when the school year ended and her autistic son’s access to transportation to a specialized day program ended with it. The Ministry simply didn’t have a policy to cover this situation and appeared unable to act until my Office became involved.
“Customer disservice syndrome” tends to occur in governments and monopolies. In competitive markets the ethic is that the customer is always right, but where the customer becomes dependent on the provider, the tables can be turned. The “service” provider can afford to presume that the customer is wrong, or even make the customer bear the costs of the service provider’s mistakes. The Family Responsibility Office recently demonstrated this attitude in a case of two grandparents who had stepped in to help raise their grandchildren after their daughter’s death. The FRO acknowledged that it had wrongfully garnished thousands of dollars of their retirement funds, yet insisted that it was up to them to try to collect the money from their former son-in-law. Fortunately, my Office was able to work with the FRO and obtain a remedy for these frustrated seniors.
The Office of the Registrar General also engaged in “customer disservice” when challenged by a complainant who was trying to correct the spelling of his middle name in the Office’s official records. For nine months, the Office insisted its records were correct, even though they listed a female name. It wasn’t until we suggested that the Office search its records that it discovered that the customer had been right all along.
I have no doubt that Ontario is blessed with many caring civil servants, but its citizens will have the good government they deserve only when, as institutions, government and its agencies rededicate themselves to public service. Citizens go to their government when they are in need, and often when they are at their most vulnerable. They are human beings and they are best served by people who have both the latitude and good judgment to find a way to do the right thing. I am happy to report that this past year, several organizations moved outside of their comfort zone and actively engaged with my Office to find real solutions for real people.
For example, when senior managers at the Ministry of Health and Long-Term Care were told of the compelling circumstances of a 94-year-old World War II veteran who had been living in the U.S. and broke his hip just a few weeks shy of meeting the Ontario residency requirement for health coverage, they chose to adopt a “can do” approach rather than rely on the strict letter of the law. After our investigation and recommendations to the Ministry, this outbreak of rulitis was quelled and the man’s bills were waived.
When we approached the same Ministry with the story of Suzanne Aucoin, a brave young woman battling end-stage colon cancer who had received singularly abysmal service when applying for out-of-country medical coverage, the Ministry agreed that it had wrongly refused her requests and put her through an unnecessary ordeal. It willingly implemented my recommendations, not only reimbursing Ms. Aucoin for her expenses and drug costs, but initiating a full review of the out-of-country funding program and the way it deals with patients and their doctors.
This positive attitude was demonstrated yet again by the Ministry of Health and Long-Term Care in response to my investigation into the delisting of testicular prostheses for boys under the age of 18. Rather than waiting for my Office to issue a formal report, the Ministry decided to do the right thing and agreed to fund the procedure.
These cases illustrate that a shift can take place in an organizational mindset. The challenge is for the “can do” attitude to filter down all the way to the front lines and for the positive response to occur at the outset rather than after harm has been done. For this to happen, public servants must feel empowered to help citizens find solutions – exemplifying the “serve” in “public service.” Of course, change begins at the top. Government leaders must therefore be prepared to champion a public service culture by encouraging constructive flexibility and by modifying or changing rules when they get in the way. Based on the co-operation I have received this year, I am optimistic that this can happen.
A Year of Co-operation
We did not achieve the progress cited here on our own. Since my Office cannot force anyone within government to do anything, we depend on co-operation. The results we have generated, both in individual cases and in our major systemic investigations, came about only because the Government of Ontario was receptive. It has been astute enough to know when our criticisms are right, humble enough to admit when it has been wrong, and generous enough in spirit to help us forge solutions to the problems we have identified. It is a testament to the government and its commitment to our democratic tradition that it has given such stalwart support to an Office that can, at times, be stridently critical of its work.
One of the reasons why a sitting government can afford to be this receptive is that when I offer recommendations or make findings or observations, it is not as a partisan opponent. If I am performing my job correctly, my advice will be offered in the public interest – and as such, it should be received with an open mind and evaluated on its merits, not greeted with the kind of suspicion the business of politics reserves for opposition submissions. Regrettably, my recent experiences with legislative committees have not been encouraging. When I have offered the experience and expertise of my Office regarding proposed legislation, some committee members have engaged in excessive partisanship, rather than recognizing the opportunity to better inform themselves on issues through the resources of an independent Officer of the Legislature who represents the people of Ontario.
That said, I have been encouraged by what I recognize to be a growing trend on the part of government in working with my Office to resolve problems quickly. This pattern of co-operation and endorsement of our work makes it all the more surprising when the same government chooses to keep us from scrutinizing publicly-funded agencies that are responsible for many of its most critical services.
At times we in the Office of the Ombudsman have to say “no” – and not only to complaints that do not have merit. We are forced to say “no” thousands of times a year to citizens with serious problems because of a discreditable technicality: We do not have jurisdiction. We have been shut out of what I like to call the MUSH sector, which stands for municipalities, universities, school boards, hospitals and long-term care facilities, and other organizations such as police and children’s aid societies. These areas consume the bulk of provincial budgets, and more importantly, they represent the most serious contacts that Ontarians can have with their government. Yet they are immune from our scrutiny.
Over the last year, I have continued the quest to offer oversight in these critically important areas, but to no avail. It is not a mission I initiated. Ever since the great Arthur Maloney, the first Ombudsman of Ontario, filed his 600-page post-retirement report in 1979, my predecessors have been calling for the modernization of this Office’s mandate. It has not happened in Ontario, even though most other provincial ombudsmen have jurisdiction over most of these critically sensitive sectors.
The failure of Ontario to permit its citizens to seek shelter in my Office when things go wrong within these zones of immunity is not due to lack of demand. As the next section of this report – “Oversight Denied” – documents, we have had to decline nearly 2,400 pleas for help involving the MUSH sector this past year alone. Thousands of Ontarians are seeking our help in areas that our statute and our website make clear are outside our purview. How many more complaints would we have if we could act on them? And support of Ombudsman oversight in these areas is not limited to those who are desperately seeking help – an online poll conducted by the Toronto Star in May 2007 indicated that of more than 1,800 respondents, some 94% were in favour of ombudsman oversight of Ontario hospitals.
It is not as if our Office is not up to overseeing these areas. As this report chronicles, our systemic investigations have been done professionally, efficiently and inexpensively and have produced a perfect track record of improvement. Our work has saved tax dollars, improved the quality of life of those who have sought our aid, and without the pain, uncertainty, expense and delay of litigation.
Nor can it be said that the MUSH sector is not in need of independent oversight. As the next section of this report explains, while there are bodies with jurisdiction over some of these areas, deeply disturbing gaps remain. Moreover, none of the empowered agencies has the same combination of independence, investigative experience and investigative powers as the Ombudsman’s Office.
Consider, for example, children’s aid societies (CASs). While spending irregularities at CASs are now subject to the review of the province’s Auditor General, their child protection policies and practices – which if flawed can literally be a matter of life and death for a child – are still not subject to investigative review or a rigorous complaints system.
The legacy of Jeffrey Baldwin, whose terrible death in 2002 highlighted failings in Ontario’s ability to safeguard our children, should have been the establishment of a powerful, independent mechanism to oversee and investigate CASs. Instead, when the Child and Family Services Statute Law Amendment Act, 2006 was proclaimed in force in November 2006, it simply provided for the limited expansion of the Child and Family Services Review Board’s mandate. The board may well be an effective adjudicative tribunal, but it has neither the power to conduct investigations in response to complaints nor the ability to address systemic problems.
In response to my advice that these new provisions fell far short of what was required, the government touted the review board – which remains an agency of the Ministry of Children and Youth Services – as “an independent, arm’s-length third party.” It described the new complaints process as “smoother, stronger and more objective” and even suggested that my Office would play a “key role” as a “critical check and balance,” because ultimately we would have jurisdiction to consider complaints about the Child and Family Services Review Board. What this fails to acknowledge is that my role in such cases would be restricted to investigating only the conduct of the Board itself. I continue to be blocked from effectively investigating the complaints it receives against CASs.
To compound this situation, instead of being empowered to tackle significant issues regarding child welfare protection policies and practices, the board’s authority is largely focused on procedural defects relating to the administration of CASs. Substantive complaints regarding the services sought or received from children’s aid societies remain subject only to internal review. The promise of a system of external, transparent, and accountable oversight of the complaints process was never kept. While the government has also put forward Bill 165, the Provincial Advocate for Children and Youth Act, 2007, which proposes the creation of a new legislative officer to advocate on behalf of Ontario’s children and youth, this positive step is only a very small part of what is needed to ensure an effective system of protection for Ontario’s children. A strong, independent investigative oversight mechanism for complaints is still glaringly absent in Ontario.
Zones of Immunity
As these recent inadequate legislative changes relating to the child protection area illustrate, the government has clearly chosen to keep this zone immune from Ombudsman oversight. As well, it has introduced legislation touching on oversight of the police (Bill 103, the Independent Police Review Act, 2007) and dealing with municipalities (Bill 130, the Municipal Statute Law Amendment Act, 2006), and largely shut us out of both. It has also refused to endorse opposition bills that would give my Office jurisdiction over children’s aid societies, school boards, hospitals and long-term care facilities.
All of this leaves unanswered the question of why government policy-makers have resisted strengthening oversight of the MUSH sector. I have heard rationalizations that range from standard excuses to the truly bizarre and unacceptable. For instance, it has been proposed that individuals can always launch a lawsuit if they are unhappy – an expensive, time-consuming and acrimonious process that would be out of the question for many Ontarians. In the case of children’s aid societies, it has even been suggested that the coroner’s pediatric death review committee was somehow an adequate stand-in for the Ombudsman – even though, unlike that committee, we would not have to await the death of a child to intercede. Then there’s the “we have always done it this way” excuse, which was used to explain the illogical exclusion of the Ombudsman from police oversight. The most incredible explanation might be the “it’s premature” evasion offered by the Ontario Hospital Association, advising that we should wait and see how the province’s praiseworthy but irrelevant “adverse events reporting” initiative works out.
I am reluctant to appear cynical, but it seems the real reason for all this is self-interest. Why would a government resist bringing this Office’s scrutiny into areas costing the provincial purse tens of billions of dollars? The short answer is because it can. If you and those who report to you have been permitted to do your work without someone looking over your shoulder, why would you want to change that? This, however, is not about politics but an important public principle. Institutions that receive funds from the province to perform a public duty should be subject to the full panoply of checks and balances, not some watered-down or incomplete version that allows them to operate in a zone of immunity. Until the Ombudsman’s mandate is modernized, thousands of Ontarians will have no recourse to an independent investigative oversight body in critically important areas of their life, and the Office will remain powerless to help them.
A Parting Promise
Since I have pursued the theme of promises here, let me end by making a few more on behalf of my team. We pledge to continue to work hard to hold the government to the promises that it has made and to put the “serve” back in public service. As well, we will continue to work to roll back the zone of immunity and extend the remarkable tool of ombudsmanry to those Ontario citizens who experience problems in their dealings with their cities and towns, their schools, their hospitals, their police, and the child protection system.