Ontario Ombudsman André Marin today released his fifth annual report, emphasizing his office’s critical role in ensuring that even the most difficult government decisions are fair.
“The Ombudsman can serve as a bulwark of democracy in troubled times, protecting citizens and helping government to improve in the face of a tough economy and fiscal constraint,” says Mr. Marin, who was recently appointed to a second five-year term.
Ombudsman's message: A strong foundation for better governance
As Ontarians brace for a new round of belt-tightening initiatives targeted at deficit elimination, the Ombudsman’s role becomes all the more critical. The public, the Legislative Assembly and government administrators need to have confidence that there is an impartial, fair and unbiased overseer available to listen to all sides, investigate thoroughly, and provide balanced advice and guidance. The Ombudsman can serve as a bulwark of democracy in troubled times, protecting citizens and helping government to improve in the face of a tough economy and fiscal constraint.
In fact, ombudsmen have been resolving citizen complaints and fostering good governance for hundreds of years. In 2009, the ombudsman world celebrated the 200th anniversary of the first modern parliamentary ombudsman – created in Sweden in 1809. Across Canada, ombudsmen celebrated this occasion with special activities. In Ontario, the Legislative Assembly recognized the week of October 12-16, 2009 as “Good Governance Week” and representatives from all political parties spoke about the importance of the Ombudsman role and the significant contributions that our Office has made to government accountability.
The year 2010 also marks the 35th anniversary of the Ombudsman’s Office in this province. This landmark serves as a reminder of how far the Office has come since April 1, 2005, when I began my term as Ombudsman. It was my vision upon assuming office to return the Ombudsman institution in Ontario to its Swedish parliamentary roots – focusing on fighting administrative injustice and shaping good, sound public policy.
Over time, the Ombudsman in Ontario had gradually drifted away from its original purpose as an advocate for the public interest in good governance. Instead of addressing the underlying causes of government maladministration, the Office had begun to concentrate its resources on resolving individual grievances through a complex maze of procedures. While the Office had always enjoyed a good reputation as a place to turn to resolve administrative misdemeanors – such as complaints about late birth certificates or rude treatment by the bureaucracy – it was losing broad public relevance and risked becoming obsolete. Proof of this arrived on my first day on the job, when I learned that the Deputy Ministers’ Council had recommended that the Office be eliminated as a cost-cutting measure.
Fortunately, that recommendation was never endorsed by the government, but it galvanized our Office to change. Under the spectre of annihilation and without any new resources, we embarked on an ambitious plan to tackle difficult, controversial problems in Ontario public services head-on, through systemic investigations. In 2005, we restructured our operations to allow us to take on major investigations potentially affecting millions of people - while still resolving thousands of individual complaints. In the years since, we have monitored developments in every one of our two dozen systemic investigations, accepted new responsibilities – becoming the investigator for complaints about closed meetings in municipalities across the province in 2008 – and worked proactively with government organizations to solve recurring problems. We did all this, I should note, under budget.
Five years of progress
This Annual Report is a testament to our progress in reinvigorating the institution of the Ombudsman in this province. I believe that the best measure of the worth of an Ombudsman’s Office lies not in flow charts or statistical charts but in its accomplishments. In our case, the first indicator of success is that our Office is thriving five years after the Deputy Ministers’ Council foresaw its doom. We have demonstrated our value through the results of our investigations: In virtually every case, our recommendations have been accepted and implemented, resulting in substantial policy and program changes that have benefited Ontarians in all walks of life.
I have said it many times, but it bears repeating: The Ombudsman has no authority to require the government to take any particular action. The Ombudsman’s only power to effect change is moral suasion. However, even in the most contentious cases, where the stakes are the highest, government has not only accepted our recommendations, but gone on to praise and champion them. This is a powerful measure of our Office’s performance. For example, at the Ontario Lottery and Gaming Corporation (OLG), the regulatory system for oversight of retailers was overhauled, greater consumer protections were put in place, and more than half of the agency’s senior management was replaced in response to our investigation. In the case of the Municipal Property and Assessment Corporation (MPAC), property assessments were frozen for two years to allow for improvements to be made. And after our investigation of Ontario’s deficient newborn screening practices, a state-of the-art testing facility was established, enabling the province to proclaim that its screening regime had gone from “the worst to the first.”
Our Office’s new approach has become a model for other jurisdictions in Canada and abroad. At the request of the Canadian Conference of Parliamentary Ombudsman and the International Ombudsman Institute, we created a course for administrative investigators, known as “Sharpening Your Teeth,” that has been attended by hundreds of officials from all over the globe; from Canadian agencies to agencies of the United Nations. Our work has also attracted the attention and praise of scholars.
“Though it could be argued that Ontario has often been a laggard in the field of ombudsmanship in Canada, it is now in many ways a beacon for the rest of the country… Marin has brought a pro-active style to the office that has reinvigorated the Ombudsman idea in Ontario – a style that has set a standard for the rest of the country.”
- Provincial and Territorial Ombudsman Offices in Canada, 2009, University of Toronto Press (ed. Stewart Hyson)
In his 2009 book, Provincial and Territorial Ombudsman Offices in Canada, Professor Stewart Hyson concludes that our style has “reinvigorated the Ombudsman idea in Ontario” and “set a standard for the rest of the country.” The renowned public administration expert, Professor Gilles Paquet, has also praised our Office for modernizing the traditional ombudsman role – adding us to his list of “social architects” who “scheme virtuously” to ensure repair of flawed organizations and institutions. (I invited Prof. Paquet, whom I met for the first time in 2009 at a Canadian ombudsman conference in Montréal, to elaborate on his unique and inspiring vision at a recent “Sharpening Your Teeth” session and in this year’s report. His contribution appears after this Message.)
Truth in advertising – the numbers and the human story
This year’s report illustrates how we have built on our reinforced foundation. It details our continued achievements in our systemic investigations, our individual case resolutions and our proactive work with ministries and agencies. It also includes statistical charts that show the volume of complaints and inquiries we dealt with – 12,444 this year – and provide various breakdowns according to where these complaints came from and how they were dispatched.
But there is a story behind the story told in those charts and figures, and it is another chapter in our ongoing work toward reform and transparency: Over the past few years, we have continuously refined our complaints management system to track public concerns as accurately as possible. All public calls are triaged, so the most urgent matters are dealt with immediately, and complex complaints are distinguished from, for example, expressions of opinion, requests for information or other basic inquiries. This allows us to identify systemic issues at the earliest opportunity, and it also provides for more accurate statistics than simply reporting bulk numbers of calls. For instance, when a number of inmates at a correctional facility complain to us about the same problem, or submit a petition, this is now counted as one group complaint, as opposed to several dozen individual complaints.
Our close monitoring of past investigations and related complaint trends also allows us to gauge the impact of those investigations, another story we see behind the numbers. One dramatic example is our investigation and report on MPAC in 2006. We received almost 4,000 complaints about MPAC alone in relation to that investigation, but the reforms implemented by the government in response to our recommendations have resulted in a substantial ad progressive decline in complaints in subsequent years – to just 178 in 2009-2010.
Ultimately, the story told in this report is a human one. The stories throughout this report emphasize how our work – individual cases, systemic investigations and proactive efforts – has helped people. Another measure of that performance lies in the wide range of supportive comments included in the Feedback section.
Training in a tough economy
In the wake of the severe economic downturn that left thousands of Ontarians looking for work and retraining, a number of systemic problems and serious complaints involving the Ministry of Training, Colleges and Universities (MTCU) came to our attention in 2009-2010. Two of these were assigned to our Special Ombudsman Response Team, or SORT (details follow in the SORT section of this report). After our report Too Cool for School revealed its lax approach towards illegal private career college operators, the Ministry accepted our criticism and committed to redirecting its efforts to becoming an effective regulator. In December 2009, the Ministry began to levy fines against illegal operators for the first time. And in April 2010, the Minister introduced legislation increasing the maximum available penalties for violations of the Private Career Colleges Act. After the release of our “sequel” report, Too Cool for School Too – in which we outlined the plight of Cambrian College graduates who complained they were misled by the college’s promotional material – the same Ministry issued a binding policy directive to all public colleges of applied arts and technology, aimed at ensuring that advertising and promotion of college programs is accurate.
We also helped several students and would-be students with their individual battles with the bureaucracy, enabling them to get on with retraining and careers. These cases, among others, are detailed in the Case Summaries section of this report. We received several complaints about MTCU’s Second Career and Ontario Skills Development as well as the Ontario Student Assistance Program (OSAP). In one case, we helped speed up a mother’s application for funding – so it arrived on the day she was to start college. In another, the Ministry acknowledged it had wrongly cut a student’s living allowance in half after the college she was attending closed and she was forced to attend another one. We also convinced the Ministry to pay more than $2,000 in tuition reimbursements that it wrongly denied to an unemployed apprentice worker, and to scrap an antiquated OSAP policy that discriminated against hairstyling students. In dealing with complaints against colleges, we persuaded one to reimburse a part-time student who had been improperly charged a full-time rate.
A healthy dose of oversight
As all governments have acknowledged in recent years, health care and its ever-ballooning costs are the administrative challenge of our time. As public officials balance budget pressures with the needs of vulnerable patients, the Ombudsman can play a very important role – both by investigating the complaints of the people and by assisting government to make sure that when it makes tough decisions, they are still fair, compassionate and reasonable.
We dealt with several difficult issues involving the administration of health-care programs and funding in 2009-2010. Through our urging – after an investigation by SORT – the Ministry of Health and Long-Term care ended nearly eight years of study and indecision over Positron Emission Tomography (familiarly known as PET scans) and announced it would cover PET for certain cancer and cardiac indications through the Ontario Health Insurance Plan (OHIP).
The Ministry also revisited significant drug funding decisions as a result of our investigations. Our report, A Vast Injustice, documented how the Ministry had arbitrarily cut off funding for Avastin, a drug used to treat metastatic colorectal cancer, without consideration of patient outcomes. We explained that it was wrong and against all recommended medical practice to cut patients off at 16 cycles of treatment when they were still doing well on Avastin – and to the desperate patients’ great relief, the government agreed to lift the cap in December 2009. It now covers treatment to 24 cycles and beyond, if recommended by a physician.
In another case, the Ministry revised its Exceptional Access Program reimbursement criteria for pulmonary arterial hypertension therapy using the drug Flolan, to allow funding to be considered in certain cases where the therapy is used in combination with other treatment. This matter was resolved informally by SORT investigators in consultation with the Ministry.
These cases were complemented by those where we assisted individuals with health-related concerns. For example, we helped a mother and her six children get their OHIP coverage restored – just in time for baby No. 7 – when it was wrongly denied. In response to our alert, the Ministry also ensured that a pair of twins who were born in the U.S. because a bed shortage in Ontario would still have OHIP while their Canadian citizenship paperwork was finalized.
Proactive solutions – the untold story
Our systemic investigations and many of our case resolutions have helped the government fix recurring problems and thus avert future complaints. Our experience and constant monitoring have also allowed us to identify programs that are persistent or perennial sources of complaints, and to flag areas of concern before they fester and grow. This type of proactive work – involving regular, behind-the-scenes meetings with senior government officials – is the great untold story of our Office in the past five years. By warning senior bureaucrats about trends and clusters of complaints in problem areas as we receive them, we are able to find solutions faster and assist the government in improving its services – without, in most cases, resorting to a full-scale investigation.
We routinely receive high volumes of complaints about Ontario correctional facilities, the Family Responsibility Office (FRO) and the Ontario Disability Support Program (ODSP), to name the top three. We therefore meet with senior managers of all these programs on a regular basis. In the jails, we zero in on cases where the health and welfare of inmates is at issue, assisting those who are most in need of our help – while referring complaints back to the institutions for quick resolution where appropriate. We also helped inmates with record-keeping mistakes that kept them in jail longer than necessary – as detailed in two of our case summaries. Constant communication and co-operation with the Ministry of Community Safety and Correctional Services has also allowed us to address broad systemic service issues.
Complaints about the Family Responsibility Office come from all sides – we hear from hundreds of unhappy support recipients and payors alike. At our meetings with senior FRO officials, we have been able to address many problems with its practices and policies, resulting in more effective enforcement. In one case highlighted in the Operations section of this report, a woman who was owed $150,000 in support had seen no enforcement from FRO for years. Three months after we became involved in the case, her support payor had been made to pay almost $35,000. We have also helped many people by identifying FRO’s errors – such as one that prevented it from collecting more than $30,000 in support arrears – and spurring it to action (in one case, getting it to release $7,000 to a recipient that it had been holding unnecessarily).
Our regular meetings with ODSP administrators helped identify systemic problems, while our inquiries in individual cases helped some of Ontario’s must vulnerable people obtain redress. We helped restore $1,700 to a disabled father whose benefits for home-schooling his disabled son were wrongly denied by the Ministry of Community and Social Services. We also helped an ODSP recipient who was facing imminent eviction and unable to pay for transportation to visit her terminally ill mother in hospital.
Most of this work has been accomplished outside of the public spotlight, but our proactive efforts in one area did make news, and deservedly so – when we identified a disturbing increase in complaints reminiscent of our 2005 report, Between a Rock and a Hard Place. At that time, many parents of severely disabled children were facing the drastic prospect of having to turn them over to children’s aid societies in order to get them the residential care they needed. This crisis had arisen as a result of the Ministry of Children and Youth Services’ decision not to fund special-needs agreements outside of the child protection system. We began meeting regularly with Ministry officials last year when we received 24 complaints relating to inadequate services and treatment of children with special needs, and in 2009-2010, we received 39 more. In every case, by working closely with senior Ministry officials and related service providers, we have been able to ensure that these desperate parents got the attention they deserved and the help they needed. We will continue this important work to make sure no one has to surrender custody of a child because of a lack of services.
Holding agencies accountable
Perhaps the most prominent public debate of 2009-2010 involved the oversight of Ontario’s ABCs – the Agencies, Boards and Commissions that operate at arm’s length from the government. Spending scandals and controversy over consultant contracts engulfed the Ontario Lottery and Gaming Corporation, the Workplace Safety and Insurance Board, Cancer Care Ontario and of course eHealth, prompting the government to institute new measures to bring greater accountability to this sector. In October 2009, in a speech I gave to the Economic Club of Canada, I discussed the rise of ABCs in Ontario and encouraged the government to look for creative ways to ensure this sector is not only accountable but truly reflects public service values.
“ABCs are creatures of government. To keep them from overpowering and defeating the aims and obligations of the governments who create them, … ABCs should be as open as government, as accountable to the people as government, and as imbued with the same spirit of public service that government is meant to reflect.”
- Ombudsman André Marin, speech to Economic Club of Canada, Toronto, October 15, 2009
My Office has authority over hundreds of ABCs, and complaints about these bodies represent a large segment of our overall complaints. We continue to monitor developments with MPAC, the OLG and the Criminal Injuries Compensation Board in the wake of our earlier systemic investigations. This year, we helped a property owner get hearing at the Assessment Review Board after it forgot about her appeal for three years. And in addition to dealing with complaints about Legal Aid Ontario’s decisions in granting aid certificates, we also helped two complainants whom the agency wrongly pursued for payment.
In a similar vein, we were able to help a host of other government ministries and agencies improve their customer service – often putting much-needed money back in the pockets of people who had become ensnared in red tape. We prompted the Ministry of Transportation to send out a forgotten reimbursement cheque for car damage caused by its construction work, and identified a computer system inadequacy in the same Ministry that undermined protection for used-car buyers. We helped several people in their battles with Hydro One, keeping the electricity turned on for a bedridden woman’s oxygen machine, and identifying errors that led to one person being charged commercial rates for a residential property, and another being charged for power in two residences instead of one.
“Like you, my colleagues and I believe in the crucial importance of safeguarding the public trust… I look forward to working with you to ensure the openness, transparency and accountability of government. Thank you for your public commentary on the accountability of our agencies.”
-Premier Dalton McGuinty, letter to Ombudsman, November 2, 2009
Impenetrable MUSH, but an effective OMLET
Unfortunately, a vast area of public services remains outside of our purview after five years of discussion – indeed, Ombudsmen of Ontario have lamented this gap in their jurisdiction since 1975. This is the so-called “MUSH” sector – Municipalities, Universities, School boards, Hospitals and long-term care facilities, as well as children’s aid societies and police. Our Office is unable to investigate complaints about any of these institutions. As in previous years, we have documented the hundreds of MUSH-sector complaints we received and were forced to turn away in 2009-2010 – this information follows in the next section of this report. We also continue to monitor developments in other provinces, all of which grant their Ombudsmen more oversight of these important areas than does Ontario. I remain hopeful that one day these crucial services, which account for such an enormous chunk of public spending, will one day be subject to the same scrutiny as all other aspects of the Ontario government.
We were, however, given the new responsibility of investigating complaints about closed meetings in municipalities in 2008, something we were able to assume without any increase in our resources. While our Open Meeting Law Enforcement Team (OMLET) conducts formal investigations in appropriate cases, we have had considerable success in resolving cases informally with municipalities, encouraging them to adopt best practices for their closed meetings. Our focus remains on educating municipal officials about their obligations to ensure their business is conducted openly and transparently.
As this Annual Report illustrates, the Office of the Ombudsman has reinforced its roots and resurged as a robust and energetic leader in the Ombudsman community. With the continued support of the public it represents, the government organizations it oversees and the Legislative Assembly to which it reports, it has established a strong foundation, built to serve Ontario’s citizens well into the future. As I embark upon my second five-year term – an appointment I was honoured to receive through unanimous consent of the Legislative Assembly on June 1, 2010 – my staff and I look forward to doing just that.