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Ombudsman’s Message – Championing Value in Hard Times
Ontarians, like everyone else, have been greatly affected by the global recession this past year. Just as individuals and businesses are coping with job losses and financial stress, our governments are grappling with increased demand for services and deficit budgeting. This is a time for tighter belts, not only within families, but for governments too. At times like these, the value of public services comes into sharp focus. That value must be ensured, not just in terms of how much taxpayers get for their money, but in the quality and effectiveness of the services they receive.
That is why I take particular pride in presenting this Annual Report. It demonstrates that we in the Office of the Ombudsman are delivering big value on a small budget. We do this in three ways: 1) Resolving thousands of individual complaints about government services, saving all parties aggravation and even litigation; 2) Employing an inexpensive, efficient process to consistently produce results; and 3) Generating widespread savings by fixing broad systemic problems, making entire government programs better and more efficient.
Even casual readers of my Annual Reports know, however, that the government of Ontario is not taking full advantage of the value we offer. Our jurisdiction is limited. We do not have the authority to root out bureaucratic inefficiency, indolence and bad judgment in some of the areas that matter most to Ontarians – and for which they pay the most. We are excluded from overseeing what we call the MUSH sector: Municipalities, Universities, School boards, Hospitals and long-term care facilities, as well as children’s aid societies and police. These are areas where thrift, sensible government and good judgment are acutely required, yet the government of Ontario declines our help, and it is costing all of us. If we want more efficient and safer government for Ontarians – as the lean times we are now enduring demand – the decision about our role in these sectors should be based on what ombudsmanry in general, and this Office in particular, can offer.
The Value in Return
Even when we are flush with cash, as consumers we expect value in return for what we pay. The taxpayers of Ontario pay for the Office of the Ombudsman to minimize unintended harm and unfair treatment at the hands of the provincial government, in the sectors in which we have jurisdiction. The value we return for the people’s modest investment of just over $10 million a year can be measured not just in money – although we routinely help save or secure thousands of dollars for individuals. It also lies in the unquantifiable moral dividend that is earned when someone who has repeatedly run up against a bureaucratic brick wall finally receives help, or when we assist in improving the quality of governance on a broad systemic scale. Stories of such successes abound in this Annual Report.
The Value in Complaint Resolution
This year marks the 200th anniversary of the first modern parliamentary ombudsman, established in Sweden in 1809 – although Canada did not have its first provincial ombudsman until 1967. In their earliest incarnation, ombudsmen around the world served as officials who could help the “little guy” who was being treated unfairly by big institutions. They would quietly give citizens information about where to go or what to do, or work behind the scenes to get bureaucrats to fix individual problems. More recently, my Office has evolved into a vehicle for achieving better governance, tackling large investigations and resolving problems that literally affect millions of people. But I am proud to say that complaint resolution remains a large part of what we do. In this past fiscal year, we dealt with 16,742 complaints and inquiries and resolved the vast majority.
The value in providing effective complaint resolution cannot be overstated. This is because despite their best intentions, large institutions like the government of Ontario and its 500 or so organizations easily become “locked” in their own systems, burdened by bureaucracy and rigid rules. Individuals can become invisible. They become cases to be completed or files to be processed, instead of people who can be harmed by disregard or delay. Elephantine public institutions can move clumsily, knocking over or even crushing the very people they are there to serve.
As always, the Case Summaries in this report give examples of the concrete results our work has produced in response to complaints. The first one is an all-too- common case of lost paperwork and the failure of public servants to muster the motivation to find it. This might sound mundane, until it is appreciated that the lost paper prevented a couple from completing the adoption of one child and pursuing another. Like so much of our work, this story is not really about misfiled documents. It is about how inept administration was frustrating two parents’ efforts to build a family – and how we helped end their senseless emotional turmoil.
There is a similar account of a woman whose international travel plans were on hold because officials wrongly insisted there was no record of her birth at an Ontario hospital, meaning she could not get a birth certificate or a passport. There is another of a man who was going to lose 2-6 weeks of work because of unnecessary delay in reviewing proof that he was medically fit for his “Class A” driver’s license. We fixed both cases.
But our efforts don’t just nudge or speed bureaucracy – sometimes they even enhance the health of those who live here. This past year, we secured health care coverage for thousands of former foreign students working in Ontario – coverage that had been lost because the province had not adapted its rules to federal changes in work permits. We obtained necessary funding for a non-approved but safe and effective treatment for a diabetic who could not tolerate synthetic insulin. And we persuaded authorities to reconsider funding a kidney transplant at a U.S. hospital for a 70-year-old man – by revealing that their original decision had been partly based on morbidity and mortality data derived from a children’s hospital!
We have also assisted in putting food on the tables of single parents. There are stories in this report of the Family Responsibility Office (FRO) writing off support payment cases as “unenforceable” – leaving the unpaid ex-spouses no recourse but to collect considerable sums in social assistance – until we helped get them enforced. The government was even able to recoup thousands of dollars in welfare payments. We also stepped in when the FRO mistakenly wiped away thousands of dollars in support arrears because of a misread court order, and in another case where it allowed one-month grace periods to a “deadbeat dad” who was routinely late in his payments.
And then there is the usual cast of bizarre decisions we had to make right, such as the refusal to give Northern Health Travel Grant money to a new mother whose baby was airlifted to a southern Ontario hospital because she didn’t initially accompany the child, even though the reason was because she herself was hospitalized for several days; or to deny a similar grant to the family of a disabled youth because he had not signed his form, even though he was incapable of signing his own name. There are even stories of the province attempting to collect money from people to whom it in fact owed thousands of dollars!
These are but a sampling of the thousands of cases we shepherd through the Alice-in-Wonderland sojourn that government bureaucracy can become. The value this offers is not only in the immediate solutions we are able to procure for so many people, but in the benefits it brings to government at large. The province cannot afford to embitter and alienate its own; a healthy democracy depends on fidelity and support. Our Office gives value by demonstrating to citizens, through our very existence, that their government cares.
The Value in Systemic Investigations
As important and indispensable as it is to the interests of Ontarians and to the health of government, the traditional “complaint resolution” model of ombudsmanry is no longer adequate, if ever it was. It is not enough to wait passively for complaints to be made after the damage has been done, or while it is occurring. Moreover, as our experience confirms, problems tend to cluster. Where patterns show themselves, it is likely because of systemic problems. Addressing those complaints on a case-by- case basis may solve the problem for each complainant, but it is inefficient, because the root conditions remain – meaning others will continue to suffer. In April 2009, in a keynote address to a conference marking the aforementioned 200th anniversary of ombudsmanry as we know it, University of Ottawa professor Gilles Paquet urged ombudsmen across Canada and elsewhere to modernize their approach. His address, entitled “Failure to Confront,” and a related paper called Ombuds as Producers of Governance,* contended that: “...the only way out of this quandary is greater depth in the inquiry process; accepting the need to tackle the issues revealed by the cases head-on, with an explicit intention to unearth and expose the source of the problem, and to become the architect of better governance arrangements capable of eradicating the cause of the difficulties.”
This, in Prof. Paquet’s words, is “value-added ombudsmanry,” since it elevates the ombudsman from a mere complaints department to an “architect of better governance.” This latter role is not only one in which we in the Office of the Ombudsman of Ontario have excelled, but one we helped to pioneer.
One of the first steps I took upon assuming this position in 2005 was to create the Special Ombudsman Response Team (SORT) to tackle high-profile systemic investigations, with expertise and dispatch. Since SORT’s creation, its investigations have had an enormous impact on government policy. The property tax assessment system has been overhauled, as has the security of the lottery system. Medical screening for newborn infants has been revolutionized, and it is no exaggeration to say that lives have been saved. Compensation for victims of crime, once mired in delay and operating in a culture of bureaucratic obstruction, has been improved. SORT has exposed deficiencies in the Special Investigations Unit that investigates serious civilian casualties involving police, and helped instigate a more rational process for reviewing the legal accounts of state-funded criminal counsel. More recently, SORT has looked into problems with regulation and oversight of colleges and is nearing completion of an investigation into the enforcement of quality standards for long-term care homes.
Part of SORT’s value is that it is not a “hit-and-run” squad. We follow up on every SORT investigation. We demand and receive agreement from government organizations to report back to my Office on their progress in implementing my recommendations. We re-investigate to confirm the progress that is claimed, and we keep the pressure on.
The systemic work we have done has brought credit not only to this Office (as the Feedback section of this report attests) but to the province as a whole. Our reports have made waves internationally, and ombudsmen and other administrative investigators from across Canada and around the world have sought to learn the techniques we have developed for systemic investigations. We have trained more than 100 of them – on a complete cost-recovery basis – at our annual “Sharpening Your Teeth” training conference, conducted by SORT, and I have also been invited with executive staff to conduct training in countries from South Africa to Hong Kong to Trinidad and Tobago. Again, all costs were paid by the host countries, because they recognize that our training program is unique in the world, and they appreciate the value that the Ontario brand of systemic investigations will bring to their citizens. Already, our work has been emulated. Jurisdictions across North America have used our lottery report, for example, to inspire their own investigations, which have in turn uncovered “insider win” problems on a massive scale – sparking security reforms to protect millions of lottery players.
The Inexpensive Process
Without question, our systemic SORT investigations have inspired dramatic improvement in the quality of governance that Ontarians are receiving. Adding even more value to these results is the fact that the bang is bought with relatively few bucks. The ombudsman model is the least expensive dispute settlement method yet devised. It calls for speed and informality, without rigid procedures.
Ombudsmen are not governors, either by law or democratic convention. We cannot tell those who govern what to do. We must achieve results without powers of compulsion, acting as the “conscience” of an institution by sharing our judgment about whether it is acting fairly or reasonably. If we want to make a difference, we have to be right, and we have to persuade.
Our inability to compel actually increases our efficiency, for whenever powers of compulsion exist, traditional “due process” – with all of its delays and complications – follows. The tools of the ombudsman are not legal pleadings, or adjudication and binding judgments worked out in panelled rooms filled with paid-by-the-hour lawyers and per diem adjudicators. The tools of the ombudsman are fact-finding and reason, communicated by phone and in face-to-face meetings. Our cases do not sit long, like legal briefs, in filing cabinets. We need to turn them over efficiently, and keep forms and formalities to a minimum. The very role of the ombudsman is to broker the efficient, timely and low-cost resolution of complaints – be it on an individual or a systemic scale. This is what we do, and we do it well.
Again, borrowing from Professor Paquet: “The independence, accessibility, informality, cheapness, and speed of the ombudsing process, together with the powers of investigation ... all these features make ombudsing better suited to appreciate the new fluid realities, and better prepared to deal with governance failures than the more traditional legal (more rigid) and political (less reliable) processes.”
If anyone doubts that, compare a SORT investigation to a public inquiry. We can achieve so much more for so much less, and with so much more precision. We know exactly where to go because the pattern of complaints we receive shows us the way.
The Savings We Generate
I am mindful that some would choose to downplay the value we offer by pointing to the costs of the recommendations we make. To be sure, our recommendations sometimes do require the outlay of government funds. Every time we facilitate or negotiate a benefit payment to a complainant, it comes from the treasury. Our systemic investigations have prompted the government to make many sweeping reforms. Some of those have saved a great deal of money, some have been revenue- neutral, and a few have come with significant price tags. But in every case, the government has had the last word. Our recommendations cost only what the government is persuaded to spend – and then it chooses to do so because it is persuaded that there is value in what we say.
This report includes updates on several of our highest-profile investigations, and they bear this out. For example, in Getting It Right, our 2006 investigation of the Municipal Property Assessment Corporation (MPAC), we resisted calls from many stakeholders to recommend abandoning the market-value approach to property assessment, because this is a fiscal matter requiring political judgment. The result, however, as assessments finally resumed this past year, has been a more transparent operation that is far more fair to property taxpayers.
Similarly, in our recent investigation into the administration of the Positron Emission Tomography (PET) scan program and patient access to PET technology, we have been mindful of the fact that health care dollars are premium dollars. As for our ongoing investigation into the Hamilton Niagara Haldimand Brant Local Health Integration Network, it is not about health care spending, but about the decision-making and consultation processes followed in restructuring health services.
In some cases, money has been spent on crucial reforms after we revealed it was otherwise going wasted or unused. Since our 2007 report on the long-ignored and grossly underfunded Criminal Injuries Compensation Board (CICB), Adding Insult to Injury, the CICB has been allocated more than $100 million to improve services and clear its enormous case backlog. As our report noted, money to help fix the CICB’s problems had always been there, languishing in the Victims’ Justice Fund (money raised through surcharges on fines). We simply recommended it be used as intended.
Since our much-publicized investigation of the Ontario Lottery and Gaming Corporation (OLG), and our 2007 report, A Game of Trust, the corporation has spent hundreds of millions of dollars to improve security and better protect the public from “insider” fraud. This year, the OLG released an audit that estimated “insiders” had taken home nearly $200 million in prizes in the past 13 years, nearly double its original estimate. While the amount of actual fraud may still never be known, the OLG’s renewed commitment to protecting the public is paying dividends – it has curbed most of the fraudulent behaviour it identified, safeguarding dollars not just for deserving winners, but for the public projects funded by its revenues. And lottery revenues are rising – a clear sign that the public trust is rebounding.
In our 2005 report Between a Rock and a Hard Place, we revealed the abhorrent situation where parents of severely disabled children who could not get funds to have them cared for in a residential facility were forced to surrender them to children’s aid societies so that the state would provide the required care. The children were getting the care they needed, but at the considerable moral price of their parents having to pose as unfit. The solution we offered – finding the money outside of the child protection system and ending this practice – cost no more than what was already being spent, while sparing untold emotional trauma for the families. Moreover, the cost of pointless child protection applications was saved. The value of this investigation is still being demonstrated, as we have resolved several new complaints about this practice again this year, by diligently following up on our previous work.
In 2008, our report A Test of Wills dealt head-on with government waste by reviewing how the province wound up spending $1.1 million to pay the runaway legal bills of a murderer and self-proclaimed millionaire who had given away his assets in order to get legal aid. Not only did that report inspire the development of systems and practices that will reduce the risk that this will ever happen again, it also led to unprecedented efforts by the government to potentially recoup the money from both the killer and any lawyers who may have over-billed.
Often, the money spent in response to our reports saves money in the long run. That is unequivocally so in the case of infant screening. While there are costs associated with implementing the kind of screening we recommended in our 2005 report The Right to be Impatient, in the long term that screening will reduce health costs. Under the previous, antiquated program, 50 children a year were dying or becoming severely disabled, requiring exceptional medical measures. Those expenses will be saved. In an investigation we reported in last year’s Annual Report, oxygen saturation monitors for children with severe respiratory problems were provided for home use. The cost of providing the machines was far outweighed by the savings realized by not keeping these children in hospital. Similarly, the cost of providing meaningful and timely mental health services for the traumatized children of soldiers from Canadian Forces Base Petawawa, as we recommended in 2007, will mean social and health care savings in future.
Beyond all this, there are indirect savings – such as the litigation costs that we save by resolving disputes informally, and by identifying systemic areas of potential conflict and helping to fix them before they create more casualties. Every case that enters the court or administrative tribunal system costs the province significant money. How many of the complaints we resolved would have ended up in litigation had we not gotten involved? One case summary in this report describes how the Family Responsibility Office told a mother she would have to go to court to collect money owed to her. Had she done so, legal aid and courtroom costs could have cut deeply into the $66,921 that was at stake.
A MUSH Neglected Sector
This past year, on 2,336 occasions, residents of Ontario asked us to help them cope with the MUSH sector. The number of complaints and inquiries we received about hospitals and long-term care facilities doubled. Yet we have had to turn most of these people away because we do not have the authority. We in Ontario can do better. We can follow the example of other provinces, and bring the value of ombudsman scrutiny to the MUSH sector. All we need is for the government of Ontario to extend this Office’s limited mandate.
As this Annual Report explains, in cases where we have managed peripheral involvement in addressing unfairness or inefficiencies in the areas of health and long- term care, or policing or child protection, we have done so by dancing on the edge of our jurisdiction – by overseeing the work done by those who oversee these fenced- off areas. To achieve our full potential, we need to be able to go past the barriers to where the real work needs to be done.
Our only foray into the municipal sector is in the enforcement of open meetings – a jurisdiction that began in 2008 under failed amendments to the Municipal Act, 2001. I say “failed” because the legislation is incoherent. Some citizens can call on our Office’s expertise, resources and extensive powers of inquiry to investigate their complaints about closed municipal meetings – but only if their municipality has chosen to let us in. Any municipal government can opt out by appointing another investigator of its own choosing. Who else gets to choose those who will police them?
Not surprisingly, about half of Ontario’s municipalities have taken that route, while the other half have either chosen or defaulted to my Office’s investigations, which are conducted by our Open Meeting Law Enforcement Team (OMLET). We have developed considerable experience in this area, and we are getting results. Yet municipalities who dislike the rigour we bring to this important task can, in place of a real watchdog, choose a lapdog and still be in compliance with the law. Even when appointed with the best of intentions, this patchwork of investigators cannot hope to be uniformly effective in enforcing transparency at the municipal level. It is hard to imagine how any internally appointed investigator could have stood up, for example, to the obstruction and legal game-playing I experienced from Oshawa’s mayor and legal counsel during an investigation there. The result, after just one year of this new “Sunshine Law” regime, is that the “open meeting” obligations do not have the same intensity or mean the same thing in all municipalities. There is no sense in this.
As for the rest of the MUSH sector, think of what we could do in the hospital sector at a time when health care dollars are scarce and where inefficiencies can cause death or abject suffering, or in the child welfare area, where administrators and workers struggle with limited resources to help vulnerable children. And think of long-term care and the imperative of making the system as good and fiscally efficient as it can be at a time when our population is aging. We are poised to help and remain hopeful that we will one day be able to do so.
Our Office demonstrates year in and year out that we have, on a shoestring, built a world-class oversight mechanism that employs the most cost-effective methods to achieve fairness and to improve the quality of government. In the areas where we have jurisdiction, we have demonstrated our value. We have helped make systems not only fairer and more effective, but leaner and cheaper by targeting waste, poor performance, duplication, delay and inefficiency.
This report tells a promising story in grim times. It shows the great value of ombudsman scrutiny, but also the critical importance of a strong, committed public service. It relates the experiences of real people who turned to their government for help, were frustrated, but ultimately had their faith restored when sensible solutions were found.
The value of that public trust is immeasurable, but it is the best measure of what all of us strive for in the service of the people of Ontario. We are proud and privileged to have achieved so much this year, and we look forward to sharing many more such stories as we continue our work.