Provincial & Territorial Ombudsman Offices in Canada 9781442685901

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Recto Running Head i

PROVINCIAL AND TERRITORIAL OMBUDSMAN OFFICES IN CANADA

Municipalities are responsible for many essential services and have become vital agents for implementing provincial policies, including those dealing with the environment, emergency planning, economic development, and land use. In Foundations of Governance, experts from each of Canada’s provinces come together to assess the extent to which municipal governments have the capacity to act autonomously, purposefully, and collaboratively in the intergovernmental arena. Each chapter follows a common template in order to facilitate comparison and covers essential features such as institutional structures, municipal functions, demography, and municipal finances. Canada’s municipalities function in diverse ways but have similar problems and, in this way, are illustrative of the importance of local democracy. Foundations of Governance shows that municipal governments require the legitimacy granted by a vibrant democracy in order to successfully negotiate and implement important collective choices about the futures of communities. andrew sancton is a professor in the Department of Political Science at the University of Western Ontario. robert young is a professor in the Department of Political Science at the University of Western Ontario and Canada Research Chair in Multilevel Governance.

ii Restructuring Family Policies

The Institute of Public Administration of Canada Series in Public Management and Governance Editor: Patrice Dutil This series is sponsored by the Institute of Public Administration of Canada as part of its commitment to encourage research on issues in Canadian public administration, public sector management, and public policy. It also seeks to foster wider knowledge and understanding among practitioners, academics, and the general public. For a list of books published in the series, see page 308.

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EDITED BY STEWART HYSON

Provincial and Territorial Ombudsman Offices in Canada Municipal Government in Canada’s Provinces

UNIVERSITY OF TORONTO PRESS Toronto Buffalo London

iv Contents © University of Toronto Press Incorporated 2009 Toronto Buffalo London www.utppublishing.com Printed in Canada ISBN 978-1-4426-4067-2

Printed on acid-free, 100% post-consumer recycled paper with vegetable-based inks

Library and Archives Canada Cataloguing in Publication Provincial and Territorial ombudsman offices in Canada / edited by Stewart Hyson. (Institute of Public Administration of Canada series in public management and governance) Includes bibliographical references. ISBN 978-1-4426-4067-2 1. Ombudspersons – Canada – Provinces. I. Hyson, Stewart II. Institute of Public Administration of Canada III. Title. IV. Series: Institute of Public Administration of Canada series in public management and governance JL86.043P76 2009

352.8′82130971

Canada School of Public Service

C2009-905478-7

École de la fonction publique du Canada

Financial support from the Canada School of Public Service for this book is gratefully acknowledged. The views expressed herein are not necessarily those of the Canada School of Public Service or of the Government of Canada. This book has been published with the help of a grant from the Canadian Federation for the Humanities and Social Sciences, through the Aid to Scholarly Publications Program, using funds provided by the Social Sciences and Humanities Research Council of Canada. University of Toronto Press acknowledges the financial assistance to its publishing program of the Canada Council for the Arts and the Ontario Arts Council.

University of Toronto Press acknowledges the financial support for its publishing activities of the Government of Canada through the Book Publishing Industry Development Program (BPIDP).

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Dedicated to Donald C. Rowat

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Contents

Contributors ix Foreword xi Preface xvii 1 Ombudsman Research Project: The Provincial and Territorial OmbudsOffices in Canada 3 stewart hyson 2 Alberta’s Ombudsman: Following Responsibility in an Era of Outsourcing 27 lorna stefanick 3 Fairness Inc.: Administrative Justice in B.C. – The Ombudsman Office at Thirty 53 patrick j. smith 4 Manitoba Ombudsman: Protecting Citizens through Fairness, Equity, and Accountability? 80 kenneth gibbons 5 Institutionalization of the Office of Ombudsman in New Brunswick 102 stewart hyson 6 Expedition Sailors: The Ombudsman in Newfoundland and Labrador 126 bradley moss

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7 Nova Scotia’s Ombudsman: Conciliator, Consultant, and Cooperator 159 lori turnbull 8 Ontario Ombudsman: A Game of Trust 186 stewart hyson and gary munro 9 Quebec Ombudsman’s Evolution: Assessment of Reactive and Proactive Roles in the Context of Administrative Reforms 211 isabelle fortier 10 Saskatchewan’s Ombudsman Office: Reflections on Organizational Mandate and Capacity at the Turn of the Millennium 241 joseph garcea 11 Yukon’s Ombudsman: An Evolutionary Step Forward 272 kirk cameron 12 Recapturing the Spirit, Enhancing the Project: The Ombudsman Plan in Twenty-First-Century Canada 292 gregory j. levine

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Contributors

kirk cameron, Lead Consultant on Governance, AECOM, Whitehorse isabelle fortier, École nationale d’administration publique, Montreal joseph garcea, Department of Political Studies, University of Saskatchewan, Saskatoon kenneth gibbons, Department of Politics, University of Winnipeg stewart hyson, Department of History and Politics, University of New Brunswick (Saint John Campus) gregory j. levine, Barrister and Solicitor, London, Ontario bradley moss, Assistant Citizens’ Representative, Office of the Citizens’ Representative, St John’s gary munro, Department of Political Science, Lakehead University patrick j. smith, Institute of Governance Studies, Simon Fraser University lorna stefanick, Centre for State and Legal Studies, Athabasca University lori turnbull, Department of Political Science, Dalhousie University

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Foreword

Over forty-five years ago I proposed that Canada adopt the Swedish– Finnish office of parliamentary Ombudsman. And it was only six years later, in 1967, that New Brunswick and Alberta became the first Canadian provinces to do so. Indeed, those provinces were leaders in the worldwide adoption of this addition to the institutions of democracy. It seemed as though, as soon as the other provinces and the federal government created similar offices, Canada would be a world leader in ombudsmanship. By 1979 all of Canada’s provinces had created the office except Prince Edward Island (whose population is too small to support a full-time ombudsman). However, the federal government has not yet established a comprehensive ombudsman scheme. So I was pleased when I heard that Stewart Hyson, my former graduate student, had decided that it was high time to make a study of how well this interesting experiment with a new institution of democratic government has worked out in practice within our inherited traditions of the British parliamentary system. And I was delighted when he asked me to write a foreword, because this provided an opportunity not only to show how the provincial systems fitted into the worldwide spread of ombudsman plans but also to urge the adoption of a comprehensive federal system. At the time of the two provincial adoptions in 1967, Canada was at the forefront of the worldwide spread. Until that time, except for Scandinavia, it was only English-speaking countries that had actually adopted the plan. It had spread from its birthplace in Sweden and Finland to Norway in 1962. The same year it was adopted halfway around the world, in New Zealand. This adoption in a country that had inherited the British parliamentary tradition greatly stimulated interest in the rest of the English-speaking world. This was partly

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because during this period the former British Empire was being dismantled and new constitutions were being written to advance the cause of democracy in the newly independent states. Thus in 1967 ombudsman offices were created not only in Britain but also in Guyana and Mauritius. In that same year Hawaii adopted the plan. So by 1967, besides the four Scandinavian countries, the scheme had been adopted in six English-speaking countries, both developed and undeveloped, and it was being proposed in several other democratic countries. This worldwide spread (and the scheme’s obvious advantages) was why I was willing to predict in my book of 1973 that the ombudsman plan would eventually become a standard part of the machinery of government throughout the democratic world. My Worldwide Survey of Ombudsmen (International Ombudsman Institute, Occasional Paper no. 60, 1997) shows that by 1996 this prediction had almost become true. By then, sixty-seven countries had adopted a comprehensive legislative system at the national level of government, including fifteen of the twenty most populous Western democracies. The five missing ones were Belgium, Canada, Italy, Switzerland, and the United States, and even these had generalpurpose ombudsmen at the regional or local levels. The federations on this list still do not have a comprehensive system at the national level, even though Australia and Austria have enjoyed successful systems at both levels for many years. My survey also shows that by 1996, in addition to the sixty-seven democracies with national systems, another thirteen had such a system at either the regional or the local level of government, for a total of eighty countries. Canada’s federal government now enjoys the peculiar distinction of having favoured a comprehensive national system for the new democracies of the 1990s without having such a system itself. Instead of creating a comprehensive scheme, it has appointed ombudsmen for special purposes, such as prisons, the armed services, access to information, the protection of privacy, and the use of language in the public service. Some of these were appointed by law as officers of Parliament, others only by order-in-council as executive ombudsmen. While they have been doing good work at remedying grievances and improving administration, they have covered only a small fraction of the public service. In contrast, a comprehensive scheme would be one created by an act of Parliament and would cover the entire public service. Like an auditor general of rectitude for all financial transactions, it would be a kind of auditor general of fairness for all administrative actions. The time now seems opportune to revive the idea for the federal level.

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Over the years numerous proposals have been made for a comprehensive scheme, but no government has had the courage to formulate and implement a workable one. In recent years Canada has developed a federal multiparty system with frequent minority governments. Recent scandals have given the opposition parties the opportunity to offer their support to minority governments only if they agree to implement accountability reforms. In recent years, too, the federal government has installed reforms to protect personal privacy, to give freer access to government information, to improve accountability for government action, and to protect whistle-blowers in the public service who reveal wrongdoing. These reforms are as important as the earlier inventions to improve the machinery of democratic government: the secret ballot, the election commissioner, the auditor general, the non-partisan public service, and the public corporation. However, what is needed to complete this most recent set of reforms is the creation of a comprehensive Ombudsman system. It is true that other reforms are now being discussed for the federal level, such as a new electoral system and an elected Senate. However, these institutions are working reasonably well, while the pressing need for a comprehensive Ombudsman system has been well demonstrated by the success of the systems at the provincial level. Their success has now been confirmed and reinforced by this project’s detailed studies and by the Ombudsmen’s Annual Reports, which provide many illustrations of the bureaucratic bungling they have been able to remedy for powerless citizens, and of the improvements in administration that their recommendations have been able to bring about. I believe there are two main reasons why a comprehensive system has not been adopted at the federal level. The first is the fear by successive governments that it would reveal their transgressions. The second is that they have usually been supported by large majorities of their party in the House of Commons, which have not insisted that the government take action. History shows that strong democratic reforms are not likely to be adopted by a majority government after it has been in power for over six months, because by then it has too many transgressions to hide. Hence the present situation of federal minority governments provides a golden opportunity for a comprehensive system provided that at least one of the other political parties supports this reform, or for an opposition party to support the government only if it agrees to implement the reform. This is why it is important that before the next election more than one party should

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include in its platform the creation of a comprehensive ombudsman scheme. Other reasons that governments have given for non-adoption are just excuses for no action. It is said either that the existing specialty ombudsmen meet the need or that their prior existence makes the creation of a comprehensive system too complex. It is also said that they could not be fitted into the traditionally favoured pattern of having a single Ombudsman. Yet there are several examples of countries that have plural comprehensive systems. One is Sweden, the inventor of the concept, which has several ombudsmen who work together under a Chief Ombudsman. Other examples are Austria and New Zealand, and populous countries such as the United Kingdom and Nigeria. Hence it should not be beyond the wit of a Canadian Cabinet and its senior advisers to devise a system that would include the existing specialty ombudsmen along with new ones appointed to monitor the remainder of the public service. This book shows its value in several interesting ways that may not appear at first sight. The value of tracing the experience of the provinces with the Ombudsman system over such a long period of time is that it shows definitively that this system has become part of our unwritten constitution. It is so well accepted that there is no longer any perceived need to discuss its merits. After all, in forty years of experience among nine provinces, only once – in Newfoundland – has a provincial government dared to abolish the system, and even there it was restored after a few years. When Yukon set up its government, it was simply assumed that the scheme is now a desirable part of the machinery of democratic government. These studies show another desirable development. Because Canada has no system of administrative courts such as the ones in Western Europe, the provincial laws gave Ombudsmen lists of reasons for judging administrative decisions to be unfair. In recent years those Ombudsmen have pointed to a need to develop those lists into a code of administrative fairness based on actual cases. This development is mentioned in several of the provincial essays and is summarized by Gregory Levine in the concluding essay. Studies such as this one cannot measure precisely in financial or mathematical terms the value or efficiency of Ombudsmen’s work, but they can and do demonstrate how obviously efficient the system is for the government and especially for citizens compared to the elaborate

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and costly court system, to say nothing of the settling of minor complaints where the cost of appeal to the courts would be so great, or where appeal to a partisan member of the legislature would be so suspect, as to be unthinkable. Nor can we measure the obvious improvements in administration resulting from the Ombudsmen’s recommendations. I congratulate Professor Hyson on his initiative in helping coordinate this team project. A perhaps unanticipated result is that it has attracted a new generation of young scholars across Canada to become interested in this new institution of democracy. I hope these studies will go a long way towards persuading a federal Cabinet that it should create a comprehensive Ombudsman system for all of its administrative services, thereby restoring Canada to its place as one of the most advanced democracies. Donald C. Rowat Ottawa 16 June 2008

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Preface

The office of Ombudsman has become a standard component of the administrative state in Canada since its much-touted arrival in the late 1960s. Yet we are at a loss to explain this institution’s actual performance over the past few decades because it has received scant attention in public administration textbooks and journals. Though each Ombudsman provides an annual report that (usually) describes its statutory mandate and its intended role, and that presents some indicators of caseloads and performance, these accounts are often limited in scope and lack critical perspective. The year 2007 was the Ombudsman’s fortieth anniversary of its first introduction in Canada in 1967, and 2009 will be the two hundredth anniversary of its origins (which were in Sweden). So it is highly appropriate at this time to ask the question: How has the Ombudsman idea worked out in Canada? We are faced with an intriguing situation as to the Ombudsman’s institutional role, which is to serve as an intermediary between the public and the administrative state. As an independent officer of the legislature appointed to handle complaints about administrative decisions, the office of Ombudsman may be viewed as a unique mechanism. It is intended to facilitate a direct and personal form of political participation, in the process correcting administrative wrongs and thereby ensuring the democratic accountability of the administrative state. At the same time, the Ombudsman is expected to be a traffic director – that is, to steer complainants towards existing complainthandling mechanisms and to weed out frivolous complaints. The Ombudsman also often takes on a more proactive role by educating the public regarding the intricacies of the administrative process and – except in Yukon – by launching probes of systemic issues. And Ombudsman offices are facing new challenges in the early years of the

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twenty-first century, at a time when governments are adopting privatization and other administrative reforms. In some jurisdictions the Ombudsman is assuming tasks in non-traditional areas – for example, by serving as a child or youth advocate. In addition, modern information technologies such as the Internet are revolutionizing the way in which the public interfaces with government and affecting the Ombudsman’s traditional role. The objective of our eleven-member research team has been to probe and evaluate the performance of Ombudsmen in Canada. The ten parliamentary Ombudsman offices in this country – they are found in all of the provinces, except Prince Edward Island, and in Yukon – have been analysed separately by members of the research team. Among its defining attributes, the parliamentary Ombudsman is an independent officer of the legislature who serves as an appeals mechanism and whose jurisdiction is the entire public service. Other characteristics are discussed in the individual case studies as well as in the introductory and concluding papers that comprise this volume. Because they are different in nature, several specialty Ombudsman offices that are restricted to one government department or sphere of responsibility are not included as case studies in this collection. The introductory paper offers a background perspective of the Ombudsman institution in Canada as well as an integrative overview of the case studies; the final paper highlights major challenges faced by all Ombudsman offices in Canada. This collective endeavour has drawn from the individual insights and research skills of each member of the research team. A ‘one size fits all’ approach or template was not imposed on the team members during the research phase. They shared a common interest in the Ombudsman institution, but they were encouraged to exercise their creative, intellectual talents and to develop their own perspectives. Thus the contributors vary in terms of the relative emphasis they have placed on the origins of the Ombudsman office, its statutory mandate, internal administrative structure, caseload performance, and orientation and leadership skills of its office holders. The resulting volume presents a rich mosaic of views of the Ombudsman institution in Canada. Final drafts of the papers were prepared during the summer (June and July) of 2008. Major funding for this project was a research grant from the Institute of Public Administration of Canada (IPAC) under its Study Team Grant in Public Administration program. Team members also benefited from small but important financial assistance from their own

Preface xix

institutions. Joy Roy, of my home department, was of invaluable service when it came to preparing and collating the collected papers, and I am certain that my colleagues are similarly thankful for the services supplied by their institutions. A sincere thank you goes out to the two anonymous reviewers for their thorough and insightful comments on the first draft of this manuscript. Finally, on behalf of all team members, I would like to thank Canada’s Ombudsman officers and members of their staffs, as well as the various politicians, public servants, and academics who provided valuable interviews and research assistance that allowed this project to come to fruition. In the last few days of preparing the final draft of this manuscript, we were saddened to hear of Donald C. Rowat’s death (2 December 2008). He was our colleague in the Ombudsman Research Project and provided the foreword for this book; more than that, he had been the cornerstone of the Ombudsman idea in Canada. He never ceased to promote the Ombudsman institution in the country. Professor Rowat was the mentor who opened the window and shone the light for the rest of us.

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Ombudsman Research Project 1

PROVINCIAL AND TERRITORIAL OMBUDSMAN OFFICES IN CANADA

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Recto Running Head 3

1 Ombudsman Research Project: The Provincial and Territorial OmbudsOffices in Canada stewart hyson

The year 2007 represented the fortieth anniversary of the Ombudsman’s arrival in Canada, and 2009 is the 200th anniversary of its advent in Sweden. Though the Ombudsman received much attention when it was first introduced to Canada during the late 1960s and continuously into the 1970s, it has since received limited attention in public administration journals and textbooks. This, even though the Ombudsman has managed in its own quiet, functional way to emerge as a cornerstone of the modern administrative state in Canada, in the form of the parliamentary Ombudsman for the entire public service and in a number of other, more specialized OmbudsOffices. As a consequence of this oversight in the literature, we know little about the Ombudsman’s actual performance; instead, its merits have largely been assumed or prescriptively advocated without systematic, comparative, and empirical analysis. Curiously, just as the Ombudsman has become widely accepted as a fixture in the administrative state, there have been recent indications of significant change in the Ombudsman’s role. This change has not been uniform. From time to time, Annual Reports have observed declines in the frequency of complaints made to the OmbudsOffice; at other times, OmbudsOffices have become more proactive in approach or have moved into new fields of activity. We are thus faced with a fascinating research question: Why is an institution that has been so firmly established now experiencing strains of legitimacy and/or searching to redefine its role in the democratic administrative state? To answer this question, we need to build on and move beyond the normative, prescriptive, and legalistic commentary that has usually dominated discourse on the Ombudsman by assessing empirically this

4 Stewart Hyson

institution’s actual performance. There is no better time for this than now. This introductory paper will: • outline the Ombudsman Research Project; • reflect on the introduction of the Ombudsman idea to Canada; • raise methodological and normative questions as to how best to

assess the performance of the Ombudsman; and • offer an integrative overview of the papers that follow.

Background to the Ombudsman Research Project Investigation of this research topic began with a conference paper1 by this writer that was presented at the Atlantic Provinces Political Studies Association (APPSA) annual meeting held at Memorial University in the fall of 2003; this was followed by another paper2 presented at the Canadian Political Science Association (CPSA) annual meeting hosted by the University of Manitoba in 2004. Both papers focused on the case of the New Brunswick Ombudsman (in my home province). By this time, thoughts had begun to stir of expanding coverage to include other Canadian OmbudsOffices for a comparative perspective. Personal involvement with another research team (of the Canadian executive)3 brought direct awareness that the Institute of Public Administration of Canada (IPAC) offered grants to research teams.4 At this stage I contacted two old friends, who expressed an interest in being part of the proposed Ombudsman Research Project team. A research proposal was then prepared, which IPAC accepted in the spring of 2005. With the grant in place, several colleagues in other provinces were contacted either to join the research team or to suggest other possible researchers. Gradually over the summer of 2005, one person from each province and territory that has an OmbudsOffice joined the team. With funding and team members in place, a brainstorming session was held in Toronto in mid-February 2006. Nine of the eleven members of the research team were able to gather there to discuss some of their initial findings and to decide future research direction and themes. It was agreed that a key objective of this project would be to achieve a balance. That is, team members would address some core issues that are common to all ten OmbudsOffices, but additionally, each researcher would pursue matters unique to his or her case study

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or perspective. This orientation was crucial to the Ombudsman Research Project. Instead of imposing a standardized template for all of the case studies, each author would be encouraged to exercise his or her intellectual skills to deliver a unique perspective. Thus, each case study in this book notes the origins of the provincial/territorial Ombudsman, describes its statutory mandate, caseload, and organizational capacity, and discusses the leadership skills of the office holders; however, the relative emphasis on each dimension varies from case to case. The result is an eclectic portrayal of the realities of the Ombudsman in Canada, the aim of which is to stimulate heuristically the reading audience as to the role of this fascinating public institution. Similarly, the last paper (by Greg Levine) is not a ‘summary and conclusion’ type of paper as is found in some collections; rather, it strives to highlight the challenges and new directions of ombudsmanship and to spark future research in this field. Most members of the team presented initial drafts of their papers at a round table that was held as part of the CPSA annual meeting at York University in June 2006. Ken Gibbons presented the first draft of his paper at a session of the IPAC annual meeting held in Charlottetown in August 2006 and then again at a conference of the Canadian Study of Parliament Group in Winnipeg in early December 2006. Lori Turnbull also delivered her paper for a second time at the Winnipeg conference. Isabelle Fortier won the Liz Hoffman essay contest of the Forum of Canadian Ombudsman for a paper that used her findings on Quebec’s Ombudsman (known in that province as the Public Protector). Revised drafts of these early papers were then prepared and submitted collectively to IPAC in the fall of 2007 as stipulated by the conditions of the research grant. In response to the constructive comments made by two assessors during a peer review, the papers were revised in the summer of 2008. The Ombudsman Idea Comes to Canada5 The origins of the Ombudsman concept in Sweden need not be examined in this introduction, nor how the institution spread around the world, including its arrival in Canada; those stories have been covered thoroughly many times by many other scholars.6 Moreover, specific information about the adoption of the Ombudsman in each jurisdiction that has this organization is presented in this book’s separate case studies. Suffice to say that in the early and mid-1960s in Canada, there

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were several private member’s bills and opposition parties’ proposals to adopt the Ombudsman idea, along with supportive academic works by scholars such as Professor Donald C. Rowat. The visit in 1964 of New Zealand’s first Ombudsman, Sir Guy Powles, which included an address to the Canadian Bar Association (CBA), was also instrumental in introducing the Ombudsman idea to a highly influential audience. That speech, and other appearances in Canada by Powles, removed most people’s suspicions that the Ombudsman idea was limited to Scandinavian countries and was unsuited to Westminster-style governments; even so, a few individuals remained unconvinced. Indeed, governing authorities often made the ‘institutional difference’ argument when resisting the Ombudsman idea. As noted separately in the New Brunswick and Ontario case studies, though the AttorneyGeneral from New Brunswick attended Powles’s speech and was duly impressed, his Ontario counterpart was not. Finally, it needs to be noted that the advent of radio open-line shows and the remarkably popular CBC TV public affairs program The Ombudsman, which first aired in 1974, did much to familiarize Canadians with the practice of complaining to an impartial person (albeit in this case a radio or TV host) who would listen to and investigate their grievances.7 In January 1967 the Province of Alberta passed the first legislation in Canada creating an Ombudsman; New Brunswick followed suit in May 1967; both OmbudsOffices started operations in the fall of 1967. Since that year all other provinces except Prince Edward Island have created an OmbudsOffice; as for the territories, Yukon is the only one of the three to have an Ombudsman. These ten OmbudsOffices are thus the focus of this research project. Instead of providing the chronology of the founding of OmbudsOffices in Canada, it is more appropriate at this juncture to reflect back on the essence of the arguments initially made as to why those offices ought to be established, because the logic of those arguments still holds.8 Perhaps as pertinent as any place to begin is with a 1966 article by the aforementioned Sir Guy Powles with respect to administrative law and the role of the Ombudsman.9 This paper ends with a 1644 quotation from John Milton, one that bears repeating (the spelling is Milton’s): ‘For this is not the liberty which wee can hope, that no grievance ever should arise in the Commonwealth, that let no man in this World expect; but when complaints are freely heard, deeply consider’d, and speedily reform’d, then is the utmost of civill liberty attain’d, that wise men looke for.’10

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The right to complain or to seek redress of grievances has in fact had a lengthy history in many societies, though it has not always been fully practised. But as an ideal, it has often been revived at times of difficult political circumstances such as those in England when Milton wrote. Likewise, in Canada in the early 1960s some politicians and academics began to look to the Swedish Ombudsman model as a new mechanism for handling the problems arising from the countless administrative decisions that were being made by public servants in the modern welfare state. A succinct argument in favour of Ombudsmen is to be found in the federal government’s 1977 study of that institution. The study observed that though citizens had ‘gained access to a wide range of government services and support systems’ with the growth of government over the decades following the Great Depression, they had ‘also become increasingly vulnerable to the decisions of civil servants.’11 Indeed, Donald Rowat would observe in 1982 that some victims of administrative errors were resorting to extreme forms of protest in the absence of a more accessible and effective means by which to seek redress for their complaints.12 It was in this context that advocates for the Ombudsman idea emphasized the institution’s strengths. First, because the Ombudsman would be an independent office of the legislature rather than part of the public service (and thus subject to the executive chain of command), it would be able to operate with greater impartiality. As a consequence, it would possess greater legitimacy among the public when it came to investigating allegations of administrative unfairness or wrongdoing. This notion of an officer of the legislature with ‘official independence’ is in fact well established in Canada.13 For example, the Auditor General, the Chief Electoral Officer, and the Commissioner of Official Languages all enjoy this independence.14 A second attribute emphasized back in the 1960s was that the Ombudsman would be able to handle a wider range of complaints, including those about bad manners, rudeness, and discretionary decisions, instead of being limited to issues concerning illegal behaviour or malfeasance, which traditionally had been dealt with through the judicial system. Originally, however, there was worry that the Ombudsman would challenge the legislature’s administrative oversight function; to this, advocates of the Ombudsman idea replied that the Ombudsman would be a complement, not a challenger, because of its broader accessibility, especially to those who were hesitant for partisan reasons to

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approach their local member of the legislature. Furthermore, it was maintained that, through its annual report to the legislature, the OmbudsOffice would be like a parliamentary research arm, alerting lawmakers to key trouble spots that deserved their attention (not unlike the role of the Auditor General). Finally, it was stressed that the OmbudsOffice would not infringe on the constitutional principle of parliamentary sovereignty nor the Crown’s right to govern. After all, if an administrative wrong were found to have occurred, the Ombudsman would not be able to order remedial action but would have to rely on persuasion (and/or, if necessary, the power of publicity through its Annual Report) to obtain corrective action. Perhaps the strongest reasons for adopting the Ombudsman, however, related to how this particular institution investigates complaints. First, the Ombudsman is able to weed out complaints about matters falling outside the government’s jurisdiction. This is of critical importance in a federation like Canada, where people are often confused or uncertain as to which government has jurisdiction over a matter of concern. Second, many complaints arise from simple misunderstandings, and in these cases the Ombudsman can offer clarification and redirection. Third, with respect to legitimate complaints, the OmbudsOffice can investigate quickly. Usually, the OmbudsOffice can within a few days ask the public servant who made the decision for an explanation; this may be followed by an examination of the file documents and possibly even the launching of a more formal investigation. Moreover, the Ombudsman in many jurisdictions possesses the authority to launch an inquiry instead of having to wait for a complaint to be officially lodged. Also, the OmbudsOffice conducts its investigations outside the public spotlight, with access in camera to officials and documents; this not only ensures quickness but also avoids unnecessary embarrassment of officials (as often happens when allegations are made public). Another advantage, often cited in the 1960s, is that the investigation’s cost are borne by the Ombudsman, not by the person lodging the complaint, which allows greater accessibility than would otherwise be the case. Some, however, have argued that when the Ombudsman bears the full cost of investigating complaints, it encourages trivial ones. This was the discourse that led to the adoption of the Ombudsman in Canada. But how has the idea panned out? The Ombudsman Research Project set out to assess the performance of the Ombudsman over the years – not just the statutory law establishing the Ombuds-

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Office, or the legal mandate, or a few select cases, but the grand portrait of the Ombudsman’s place in the administrative state. The next section examines the methodological issues the project team encountered when assessing the Ombudsman’s performance. Before proceeding, it needs to be observed that ‘Ombudsman’ is a contested word in the English language. It had a long history in Sweden even before the parliamentary Ombudsman, justitieombudsman, was adopted in 1809. On its adoption in English-speaking countries, Ombudsman was treated as a gender-neutral term. Since then, having been drawn into the etymological vortex – like other foreign words the English language has borrowed – a number of alternative spellings have come into common use: Ombudsman Officer, OmbudsOffice, Ombudsperson, or Ombuds. Individual preferences to the side (and some people do hold strong positions on this), we need to recognize that English is a living, evolving language. Hence the individual members of this research team will be using the terminology with which they are most comfortable. Pitfalls in Assessing the Office of Ombudsman Members of the Ombudsman Research Project soon encountered a number of practical difficulties in researching the Ombudsman in Canada. For example, some OmbudsOffices report on a fiscal-year basis (e.g., 1 April to 31 March), others on the calendar year; some promptly release their annual reports (such as Ontario, a couple of months after the fiscal year), while others (Yukon) take an inordinate amount of time. Yet another practical difficulty is the variation in the categories used to organize data; indeed, as Isabelle Fortier astutely shows in her case study of Quebec, even individual OmbudsOffices have altered their classification categories, thus framing their information differently over time. This makes spatial and temporal analyses difficult though not impossible. Besides these and other practical difficulties, there are some theoretical matters that need to be addressed. Why the Ombudsman? (Defining the Research Question) All the members of the research team are public administration educators or have some other (i.e., more personal) interest in the OmbudsOffice, or both. Several of them were students of Donald Rowat, who did so much to promote the Ombudsman idea in Canada; thus they

10 Stewart Hyson

were influenced by his teachings and writings with respect to the Ombudsman. The team members’ interest was also piqued by indications that the Ombudsman’s role has been changing. The original impetus behind this project was my own finding that the Ombudsman’s caseloads were declining in New Brunswick. At that time, the New Brunswick Ombudsman, Ellen King, speculated that this was attributable to ‘the [wider] availability of information on government organizations through web-sites; the accessibility to many government programs through Service New Brunswick; the establishment of informal and formal complaint mechanisms within some departments; and the impact of case law.’15 Implicit in this statement were two explanations: (1) improvements in administrative procedure, and (2) the adoption of new information and communication technology (ICT). The former is consistent with the suggestion made by Nathalie Des Rosiers that, by improving the procedures of governance, ‘a good Ombudsman is one who is trying to put himself or herself out of a job.’16 In other words, the Ombudsman has been successful over the years in removing many of the root causes of administrative errors; as a result, fewer complaints are arising. This is clearly a positive interpretation, but is it supported by the evidence? A handful of prominent cases have been highlighted in Ombudsman’s annual reports, but there has been no systematic assessment of whether – and if so, how – the public service has been improved as a direct result of an OmbudsOffice’s work. Improvements in administration could just as easily be attributed to changes in professional education or internal training and standards. At best, the suggestion that the decline in the number of complaints is a direct result of the Ombudsman’s efforts to improve administration is an interesting hypothesis. As it turned out, each team member found that his or her Ombudsman spent a considerable amount of time meeting with senior officials to educate them as to the kinds of concerns the public has regarding public administration. This type of preventive action can reduce the number of complaints. Similarly, Ombudsmen and their staffs meet community groups to inform them of the Ombudsman’s role and of the various alternative complaint-handling mechanisms that are available. So do not be overwhelmed by statistics about the number of complaints reported annually or surprised by how those numbers change from one year to the next. Yes, caseload numbers are informative, but they do not provide the complete story of the

Ombudsman Research Project 11

Ombudsman’s role. This subtheme will reverberate throughout the case studies that follow. King’s second explanation is equally positive: namely, that the Internet has made it easier for citizens to take their complaints directly to administrators rather than to the Ombudsman. A fascinating theory, but is it valid? Optimism about the democratic potential of ICTs has been soaring since the Cyber-Age began. But sober reflection, as well as experience with other political institutions, exposes a ‘digital gap’ in society, as well as limitations in the usefulness of ICTs.17 The notion that people are resorting to their personal computers to click on government websites instead of going through the intermediary of the Ombudsman is no more than an interesting hypothesis. It is true that all Canadian OmbudsOffices have websites, but there is tremendous variation in the sophistication of their contents as well as in their visibility and accessibility. The websites for the New Brunswick and the Newfoundland and Labrador OmbudsOffices, for example, are not stand-alone; rather, they are embedded in their respective provincial-government websites. This is hardly consistent with the ideal of the Ombudsman being seen as independent of government. Second, as reported in the Ontario case study, even though the Ontario OmbudsOffice has one of the better websites and actively uses the Internet, it still receives most of its complaints over the telephone. Soon after the team members started their research, it became evident that this study’s parameters would have to be broadened. Specifically, some team members at the February 2006 meeting noted upswings in the number of complaints; others were finding that their Ombudsman was becoming more proactive. For example, in his Annual Report 2004–2005, New Brunswick’s newly appointed Ombudsman (Bernard Richard) observed that complaints within his jurisdiction had increased by 88 per cent over the previous year, and he was sharply critical of the government’s tardiness in cooperating with his office.18 Also, it was clear that some Ombudsmen and staffs were becoming proactive – for example, they were initiating their own studies of systemic and high-profile problems. The use of Special Ombudsman Response Teams (SORTs) in Ontario is the leading example – not just nationally but internationally – of OmbudsOffices engaging in forensic investigations (see the Ontario case study). As well, some team members at the February 2006 meeting noted that fiscal restraint, privatization, and various neoliberal measures

12 Stewart Hyson

were resulting in new and direct challenges to the Ombudsman’s role. For instance, it is possible that the Ombudsman’s role will become more limited as more public–private partnerships are adopted, since this will place more public services outside the purview of traditional accountability-control mechanisms found in the democratic administrative state. Similar questions can be asked that are specific to each province or territory – for example, who would ever have predicted that Newfoundland and Labrador would find itself with two separate OmbudsOffices and that the first Citizens’ Representative would be fired? Despite the evidence of and prospects for a changing role with respect to provincial and territorial OmbudsOffices, calls are still sometimes heard for the federal government to establish an allpurpose Ombudsman as a means to address the democratic deficit.19 In this vein, in its report to the Gomery Commission, the Forum of Canadian Ombudsman recommended the establishment of a federal Ombudsman.20 Several provincial and territorial Ombudsmen have been pushing the envelope to have their mandates broadened to cover more government activities. And even though the numbers of complaints have often dipped in recent years (for various reasons), OmbudsOffices are more active than ever as educators. They are also acquiring broader jurisdiction, expanding their capacity, increasing their efficiency, establishing administrative codes of decision making, and generally being more proactive. Thus the researcher must have an open and eclectic mind when assessing the modern role of the Ombudsman – it is a fascinating research topic. Ombudsman as an Enigma (Coming to Grips with the Ombudsman’s Complexity) The idea of the Ombudsman is deceptively straightforward and appealing, at least from a populist perspective: the Ombudsman is a citizen’s defender, a public watchdog, somebody to take on the administrative state with all its ‘red tape’ in order to protect the average person. But as so often happens, ‘the devil is in the details.’ It does not clarify matters that the term is now popularly – and in some minds, inaccurately21 – used in other venues. For instance, many public-sector organizations now use ‘Ombudsman’ for their client-complaint desks; and some private-sector corporations, business sectors, and professional associations have adopted Ombudsman-like structures in order to improve their corporate governance.22 Instead of looking into these

Ombudsman Research Project 13

offshoots, this research project focuses on the parliamentary (allpurpose) Ombudsman model as it has been adopted in Canada. For this study’s purposes, the Ombudsman is an independent officer of the legislature appointed to handle, impartially, public complaints with respect to decisions made by public servants. In most jurisdictions the Ombudsman can launch its own investigations. But there the simplicity of the classical (i.e., parliamentary) model ends, and its inherent complexity begins. The reader will notice soon enough that regarding the statutory mandate, or scope of jurisdiction, or organizational capacity, or some other dimension, each of the ten OmbudsOffices in Canada is unique. This chapter’s overview section will highlight some of these differences. Brenda Danet has noted a second challenge when it comes to assessing the performance of the Ombudsman: the institution’s nebulous goals.23 Such goals as making the bureaucracy more humane, or reducing the public’s sense of alienation, or preventing administrative abuse, or making administration more just, are highly subjective and remarkably difficult to operationalize and measure. And there is also the matter of individual perceptions: administrators enjoy a great deal of decision-making discretion, which means that if a decision is negative, one citizen may react by complaining to the Ombudsman while another may simply shrug off the decision as one of life’s experiences. In other words, what constitutes administrative wrongdoing is in part a function of individual perception; as well, the question arises whether the Ombudsman has the resources to effectively challenge an administrator’s decision. Nebulous goals, individual perceptions – a researcher must be cognizant that these factors are in play and that they affect research findings. We also find that OmbudsOffices are faced with two contradictory imperatives. On the one hand, the Ombudsman is expected to be accessible and responsive to the public in terms of responding to complaints. Yet paradoxically, the Ombudsman’s investigations must be conducted in camera in order to ensure confidentiality and privacy. In other words, the OmbudsOffice is tugged in two different directions so that striking the right balance is difficult if not impossible. Also, with respect to the Ombudsman’s more public role, there are at least three types of Ombudsman activities: (1) investigating complaints of administrative wrongdoing; (2) monitoring the administrative state and recommending administrative (and sometimes legislative) reforms; and (3) educating the public as to the availability of the Ombudsman’s

14 Stewart Hyson

services and making those services more accessible to the public (e.g., via the Internet). Yet when it comes to how the Ombudsman conducts investigations, it is tempting to use the term ‘quasi-judicial’: although the Ombudsman lacks the formality and decision-making authority of a judicial court, the office does emphasize fairness and equity in investigative procedures, and it follows codes of administrative law, as noted in the several case studies and emphasized in Gregory Levine’s concluding chapter.24 So an OmbudsOffice must work hard to strike a delicate balance. Too much assertiveness in the public interest and that office risks being drawn into partisan politics, which may lessen the government’s willingness to respond favourably to the Ombudsman’s recommendations. Also, administrators may come to see the Ombudsman as an interfering outsider and as a result become reluctant to cooperate. But by striving to foster a more harmonious working relationship with public servants, the Ombudsman may become too sympathetic to administrators’ rationales; if that happens, people may lose confidence in the Ombudsman as public protector. This dichotomy of organizational imperatives makes it difficult for the researcher to cast judgment on the performance of a particular Ombudsman. We must also recognize the impact of personality, because no two office holders are the same – indeed, personality traits leave their mark on how each OmbudsOffice fulfils its mandate. All Ombudsmen (and their staffs) bring to the office a sense of duty to serve the public, but each also brings a personal style. The Ombudsman’s cast of mind, experience, and interpersonal skills can have a huge impact on performance. Yet another complicating factor is that in some jurisdictions the Ombudsman is responsible for other files, such as personal privacy, child advocacy, and access to information. Personalities and multitasking raise that old chestnut of concern in public administration studies: Who watches the watchdog? What are the lines of accountability to ensure that the Ombudsman serves appropriately? Clearly, the Ombudsman is an intriguingly complex research topic besides being a fascinating one. How to Explain the Role of the Ombudsman (Clarifying the Dimensions of the Subject) Let us now take some initial steps towards clarifying the subject matter. In his study of the Ombudsman, Larry Hill referred to institutionalization as ‘a process that occurs over time in which the organiza-

Ombudsman Research Project 15

tion creates authority relationships vis-à-vis the environmental actors.’25 In the context at hand, the Ombudsman is an intermediary between the people and the government bureaucracy when it comes to administrative decisions. Thus there are three key players – the complainant, the Ombudsman, and the administrator – and the operative link is the complaint. Complaints to the Ombudsman and the processing of those complaints represent societal ‘grooves’ that have emerged on the output side of government and that reveal the Ombudsman’s role in the administrative state. To elaborate, let us recall the right to grievance, as was highlighted by Sir Guy Powles when he quoted Milton. The act of complaining to the Ombudsman can be viewed as a form of political participation, albeit quite different from most other forms of political participation such as voting or lobbying, which are oriented mainly towards the input side of government. Instead of trying to shape the development and content of public policy through democratic representatives, a person who resorts to the Ombudsman is reacting to administrative decisions made during the policy implementation stage.26 Complaining is a highly demanding form of participation in terms of time, effort, self-confidence, and determination, in large part because it normally requires the individual to step forward alone to initiate contact with the Ombudsman. By its very nature, complaining to the OmbudsOffice tends to be a more specific, immediate, and personal form of political participation. As noted by Miewald and Comer, unlike voting – which tends to be ‘supportive’ and ‘affirmative’ in nature – resorting to an Ombudsman involves ‘attempting to rectify a situation perceived to be a problem.’27 This is as good a time as any to observe a critically important point: many contacts with an Ombudsman are not ‘formal complaints’; rather, they are inquiries during which a person seeks information or clarification as to the proper complaint-handling mechanism. Quite often, the subject matter of the contact is outside the Ombudsman’s jurisdiction. As a consequence, OmbudsOffices devote much of their time to ‘directing traffic’; put another way, they are ‘clearing houses,’ and only some of their resources are directed towards the handling of complaints. Everyone who studies the Ombudsman inevitably encounters this reality – that there are different types of contact. Furthermore, as was noted earlier, OmbudsOffices classify and report these contacts in different ways, which inhibits comparative research. It must be added, however, that our interest in complaints does not start and end with the making of complaints. We are also interested in

16 Stewart Hyson

how Ombudsmen handle complaints, how administrators respond to Ombudsmen, and what the general results are. More precisely, in order to assess an Ombudsman’s performance, it is fundamental to discern patterns as to the sources of complaints (i.e., who complains?), the target areas (i.e., which government departments or programs?); and the results (i.e., what does the Ombudsman decide and what are the consequences of decisions?). Also, it must be asked whether the Ombudsman is an efficient and effective complaint-handling mechanism. If not, what reforms might be introduced, and what might be learned from other OmbudsOffices? In the following case studies, these questions are addressed: they all note how and why the Ombudsman was established, its mandatory powers and scope of jurisdiction, and its effectiveness in serving the public. Leadership skills and orientation as well as organizational capacity are also brought into the discussion. Though OmbudsOffices have been created primarily to handle individual complaints – and that is still an Ombudsman’s main task – the modern Ombudsman in Canada devotes considerable time and effort to educational, preventive, and proactive work. The following papers will reflect this. This chapter has already outlined the Ombudsman as a form of institution. Now it would be useful to describe its defining characteristics. One very common definition – some team members use it in their chapters – is that of Larry Hill, who has developed a ten-point list of structural and procedural attributes that together exhaustively define the Ombudsman institution: ‘The classical ombudsman is (1) legally established, (2) functionally autonomous, (3) external to the administration, (4) operationally independent of both the legislature and the executive, (5) specialist, (6) expert, (7) nonpartisan, (8) normatively universalistic, (9) client-centered but not anti-administration, and (10) both popularly accessible and visible.’28 With these attributes in place, the parliamentary Ombudsman then carries out a unique role as a complaint-handling mechanism. The Ombudsman must be established and mandated by statutory law in order to have the authority as well as the legitimacy to fulfil its tasks. Points 2, 3, and 4 as listed by Hill ensure the Ombudsman’s independence; point 10 ensures recognition, acceptance, and trust by the public. Ombudsmen and their staffs are specialists in handling complaints, and they work from a non-partisan perspective. To handle effectively a wide variety of complaints, they need to grasp the various situations that give rise to complaints; they must also be well aware of the diverse imperatives and norms that come into play. Finally, point 9

Ombudsman Research Project 17

about not being anti-administration is critically important if only because many public officials are immediately suspicious if not outright defensive about being monitored by a watchdog. The research team members pursued their case studies by drawing from annual and specific reports as well as from statutes, decisions, statistics, interviews, media resources, and academic theses, in addition to the existing literature on Ombudsmen. All of the researchers sought to incorporate basic information and data on core issues; but as noted earlier, each also focused on specific issues and developments particular to the jurisdiction at hand. Greg Levine also drew from his legal background and experience in Ombudsman work, while Bradley Moss benefited from his practical experience. While the core issues were covered in common, each team member also brought his or her ingenuity to the project in terms of the specific issues analysed and interpretations of the Ombudsman’s role. And as will be seen, they brought their own individual ‘voices’ to their accounts. An Overview of the Ombudsman in Canada The discussion in the preceding sections has served mainly to outline the theoretical and practical dimensions of researching and assessing the role of the Ombudsman in Canada. References have been made at times to some of the chapters that follow. Now is a good time to present a more complete overview. Tables 1.1 and 1.2 highlight some of the similarities and differences found among the ten OmbudsOffices.29 A caveat: These tables are snapshots of the situation as found in June and July 2008, and given the ever-changing nature of the Ombudsman, some of the tabular information may soon be dated. Over the years, all OmbudsOffices have encountered legislative amendments and structural changes, and such changes can be expected to continue. A related caveat: With respect to Table 1.2, we had to use the most recent annual reports available at the time of writing, even though they had been released at slightly different times; as well, some OmbudsOffices report on a fiscal-year basis whereas others report on the calendar year. We also had to consider which categories of information to include. Our choices in this regard were somewhat arbitrary, but our general aim has been to provide an informative and up-to-date overview of the situation faced today by Canada’s OmbudsOffices. The following paragraphs elaborate on Tables 1.1. and 1.2. So, of course, do the case studies that follow this chapter. Table 1.1 is interesting for two reasons. First, as the table itself notes, it has been adapted from a table in the Ontario Ombudsman’s most

Jurisdiction Alberta British Columbia Manitoba New Brunswick Newfoundland and Labrador Nova Scotia Ontario Quebec Saskatchewan Yukon

Boards of education

Child protection services

Public hospitals

Nursing homes & long-term care facilities

Municipalities

Police complaints review mechanism

Universities

No Yes No Yes

Yes Yes Yes Yes

Yes Yes Yes Yes

Yes No No No

No Yes Yes Yes

Yes No Yes Yes

No Yes No No

Yes Yes No No No Yes

No Yes No Yes Yes Yes

Yes Yes No Yes Yes Yes

Yes Yes No Yes No Yes

No Yes No No No Yes

Yes Yes No Yes Yes No

Yes No No No No No

*Adapted from Ontario, Office of the Ombudsman, Annual Report, 2007–2008, 10. http://www.Ombudsman.on.ca

18 Stewart Hyson

Table 1.1 Ombudsman mandate: Scope of activity in Canada by jurisdiction*

Table 1.2 Comparative overview of offices of ombudsman in Canada, by jurisdiction*

Jurisdiction

Enactment (year)

First Appointment (year)

General political milieu (controversial or not)

Term of appointment (years)

Initiate/conduct systemic investigations

Alberta British Columbia Manitoba New Brunswick Newfoundland and Labrador Nova Scotia Ontario Quebec Saskatchewan Yukon

1967 1977 1969 1967 (1970) 2001 1971 1975 1968 1972 1995

1967 1979 1970 1967 (1975) 2002 1971 1975 1969 1973 1996

N C N N

5 6 6 10

Yes Yes Yes Yes

2,255,748 3,805,000 2,622,000 1,075,500

24 47 30 14

C N C N C N

6 5 5 5 5 5

Yes Yes Yes Yes Yes No

660,400 2,474,000 9,612,000 11,356,000 1,935,000 509,000

6 16 83 132 24 3

No. of staff

Ombudsman Research Project 19

*This overview is a snapshot compiled in June and July 2008.

Budgetary expenditures ($)

20 Stewart Hyson

recent annual report. The Ontario Ombudsman used it to indicate how tightly leashed its activities are. Apparently this was an attempt to embarrass the provincial government into amending its Ombudsman Act. Whatever the motive, it is clear just how much the ten OmbudsOffices vary. Some provinces – Ontario and the Western provinces – face notable restrictions; Nova Scotia and New Brunswick enjoy very broad mandates. Furthermore – and this is not depicted in the table – some OmbudsOffices have been assigned responsibility for matters that are not considered typical Ombudsman activities. New Brunswick’s Ombudsman, for example, is responsible for the merit system with respect to public-service hiring and promotion. A second example: oversight and implementation of provincial access-to-information laws are sometimes assigned to the Ombudsman (as in New Brunswick, Yukon, and Manitoba). This mixing of Ombudsman work with other tasks can be detrimental to the Ombudsman’s role, as noted by Kirk Cameron (Yukon) and Ken Gibbons (Manitoba). Access-toinformation laws tend to be implemented in terms of established time spans and formal procedures, whereas Ombudsman work is conducted in camera, largely involves persuasion, and has no firm deadlines. One result is that staff and resources are sometimes reassigned from Ombudsman work to meet the more rigid requirements of access-to-information legislation. This raises an important point: when an OmbudsOffice is legally assigned new responsibilities, it should also be assigned enough funding and staff to handle the extra work. Isabelle Fortier notes that when Quebec’s Public Protector in 2006 took on the responsibilities of the former Health and Services Ombudsman, the latter’s thirty-three employees and budget ‘followed’ the responsibility. Such forward, rational thinking is not always to be found when an Ombudsman is assigned added responsibilities. Regarding the dates in the first two columns of Table 1.2, we see that most OmbudsOffices in Canada trace their origins to the late 1960s and early 1970s. By the way, the two sets of dates for Newfoundland and Labrador illustrate (as Bradley Moss describes in his case study) that province’s original OmbudsOffice was in place from 1975 until it was closed down in 1990; for twelve years, the province had no Ombudsman at all; then in 2002, the office was re-established as the Citizens’ Representative. Another elaboration needs to be made with respect to Ontario, where there had been much discussion of the Ombudsman idea going back to the early 1960s, though no action was taken until 1975. This delay was partly attributable to the fact (noted by Hyson

Ombudsman Research Project 21

and Munro) that administrative law in the province was undergoing extensive review by the McRuer Commission (appointed in 1964; reporting from 1968 to 1971). Meanwhile, though this is not revealed by the table’s contents, partisan factors were at play in British Columbia that delayed the Ombudsman’s arrival until the late 1970s. Finally, Yukon was the last jurisdiction to create an Ombudsman because of its status as a territory. As Kirk Cameron notes in his case study, the move to establish an Ombudsman was part of the political maturing process under way in the territory as it became a ‘proto-province.’ The ‘general political milieu’ column attempts to capture the dominant political context at the time the Ombudsman was established in each political jurisdiction: ‘controversial’ or ‘not controversial.’ Joe Garcea describes how in Saskatchewan, the controversy was mainly partisan (NDP versus Liberal). Patrick Smith, discussing B.C., notes that two Social Credit premiers took opposite sides: W.A.C. Bennett opposed the Ombudsman idea, while his son, Bill, later adopted it. Hyson and Munro observe that in Ontario, Premier William Davis was a personal friend and of the same party as the province’s first Ombudsman (Arthur Maloney), but that did not save Maloney from a rough ride from some legislators and media commentators, to the point that he resigned. Then there is the peculiar case of Newfoundland, where in the 1970s Premier Joey Smallwood waited five years after passage of Ombudsman legislation before promulgating the law. Premier Clyde Wells then repealed the legislation in 1990; the first Ombudsman appointed under the second piece of legislation was eventually fired. In the other six jurisdictions, there was little resistance to the Ombudsman idea. Once the lethargy had been ended by public awareness campaigns, the authorities passed laws establishing OmbudsOffices in New Brunswick, Alberta, and Nova Scotia. Often in the noncontroversial locations, an all-party legislative committee studied the matter and, through this learning process, legislators accepted the idea. As noted earlier, Yukon acquired an Ombudsman as part of its transition from territorial to quasi-provincial status. Regardless of how OmbudsOffices were founded, there is the issue of the Ombudsman’s place in the political system. This question cannot be conveniently collapsed for inclusion in Table 1.2, but the following chapters discuss it. As a general rule, Ombudsmen and their staffs have emphasized the need to work closely with public servants while serving the public. Ken Gibbons emphasizes how Manitoba’s

22 Stewart Hyson

Ombudsman works to promote the values of fairness, equity, and administrative accountability. Lori Turnbull notes that the Ombudsman’s role of alerting public servants to major concerns goes a long way to improving fairness in administration. Here, our earlier theoretical discussion of the Ombudsman idea should be recalled. Nevertheless, it has not always been smooth sailing. Governments have sometimes been slow to respond to Ombudsman’s recommendations, and Ombudsmen have at times been publicly critical of the government. Indeed, the latter seems to be increasingly the case now that OmbudsOffices are taking on a more proactive role. Then there is the matter of funding, which politicians must provide and which never seems to be sufficient. All OmbudsOffices were hit hard by the fiscal restraint measures of the 1990s as governments tried to reduce their deficits. Yet another controversial matter is that OmbudsOffices are pressing governments to expand their mandates, especially in such areas as child and youth protection, seniors issues, and long-term health care. A final controversy relates to alternative administrative delivery mechanisms – public–private partnerships or outsourcing and New Public Management; this matter is emphasized in the chapters by Stefanick and Fortier. These are some of the current challenges facing the Ombudsman, as Levine articulates in his concluding chapter. With respect to the length of Ombudsmen’s appointments, it is either five or six years in all provinces except New Brunswick, where it is ten. Also, all jurisdictions except (again) New Brunswick allow reappointment for at least one more term. (Though it is legal, reappointment has never occurred in B.C. – a key observation made by Smith.) At the urging of Ombudsman Richard, New Brunswick’s Legislative Assembly amended its Ombudsman Act in 2007 to prohibit reappointments. Manitoba, Newfoundland, and Saskatchewan allow reappointment for only one further term. The process of making an appointment (or reappointment) varies greatly, as detailed in the case studies: sometimes the majority of provincial legislators must approve; other times, two-thirds must approve; still others, all parties must agree on the appointment. Whichever is the case, the process always involves informal, behind-the-scenes discussion, and occasionally (in some locations) open competition among those seeking the office. The ‘systemic investigations’ column looms as the most important in Table 1.2 because this type of activity is emerging in the early twentyfirst century as perhaps the Ombudsman’s most significant role. It is thus difficult to see how Yukon can remain a laggard in this area. With

Ombudsman Research Project 23

its extensive use of Special Ombudsman Response Teams (SORTs), the Ontario Ombudsman is arguably the leader in the field of forensic investigation of major public issues; that said, other OmbudsOffices have made significant contributions by conducting special studies on select topics. OmbudsOffices continue to devote most of their time and effort to handling individual complaints; but for various reasons, especially where there is an accumulation of similar complaints or where an issue suddenly emerges, the Ombudsman will launch a systemic investigation. Ombudsmen have a reputation for being fair, accessible, and impartial investigators whose responsibility is to protect and promote the public interest; this is encouraging Ombudsmen and their staffs to be more proactive than ever before. This proactive role is evident in OmbudsOffices’ educational work, which benefits both public administrators and community groups. More about this in the case studies. The last two columns of Table 1.2 relate to the organizational resources that have been authorized for each OmbudsOffice. The case studies describe how these resources are utilized in each jurisdiction – for example, whether there are regional offices (as in Alberta and Saskatchewan), or mobile offices (which are relied on heavily in B.C. and Newfoundland). As well, it is quite common for an OmbudsOffice to include casual or part-time employees or to have staff who have been seconded from other departments. Local demographics are an obvious factor – for example, Yukon’s population is 25 per cent aboriginal, and Native groups there have land claim agreements and treaties that limit the Ombudsman’s work. Another observation worth making is that ‘one time only’ events sometimes skew OmbudsOffices’ budgets – for example, a move to new offices, or the assumption of a new responsibility. This last point is why the budget and staffing figures for Quebec in Table 1.2 seem unusually large: the Public Protector acquired the staff, budget, and responsibilities of the former Health and Services Ombudsman. Overall, the analyst must be aware of factors like these and take a long view of the tables. The following case studies will describe each location’s unique situation. The individual case studies will be presenting their own tabulated data on caseloads, the targets of complaints, and so on. But not all information that is relevant can be reduced to tabular form. The case studies are most useful for delivering a rich storehouse of information about the origins, history, mandate, structure, leadership, and performance of the Ombudsman in each jurisdiction. This information

24 Stewart Hyson

will allow readers to comprehend the challenges and new directions for Ombudsmanship in Canada. The present chapter has outlined the Ombudsman idea and its presence in Canada; it has also identified how members of the Ombudsman Research Project assumed the challenge of probing the performance of the ten provincial and territorial OmbudsOffices. The following chapters are intended to inform readers about Ombudsmen’s work and to challenge those readers to engage in the discourse on the Ombudsman in Canada.

NOTES 1 Stewart Hyson, ‘How Did the Ombudsman Idea Pan-out? – the Performance of New Brunswick’s Ombudsman.’ Paper presented at the Annual Meeting of the Atlantic Provinces Political Studies Association, Memorial University, St John’s, 26–28 September 2003. 2 Stewart Hyson, ‘The Institutionalization of the Ombudsman Idea: The Case of New Brunswick’s Ombudsman,’ paper presented at the Annual Meeting of the Canadian Political Science Association, University of Manitoba, Winnipeg, 3 June 2004. 3 Luc Bernier, Keith Brownsey, and Michael Howlett, eds., Executive Styles in Canada: Cabinet Decision-Making Structures and Practices at the Federal and Provincial Levels (Toronto: University of Toronto Press, 2005). 4 For details with respect to grants available to research teams, see the website of the Institute of Public Administration of Canada (IPAC). http://www.ipac.ca 5 Much of the content of this section appeared in the previous APPSA and CPSA papers mentioned above. 6 Donald C. Rowat, ‘The Ombudsmen in Sweden,’ in The Ombudsman Plan: Essays on the Worldwide Spread of an Idea, rev. 2nd ed., edited by Donald C. Rowat (Lanham: University Press of America, 1985), 2. 7 Ibid., 102–8. 8 For more detailed accounts of the ombudsman idea, the interested reader may consult the following: Gerald E. Caiden, ed., International Handbook of the Ombudsman, vol. I: Evolution and Present Function (Westport: Greenwood, 1983); idem, ed., International Handbook of the Ombudsman, vol. II: Country Surveys (Westport: Greenwood, 1983); Canada, Committee on the Concept of the Ombudsman, Report (Ottawa: July 1977); Roy Gregory and Philip Giddings, eds., Righting Wrongs: The Ombudsman in Six Conti-

Ombudsman Research Project 25

9

10 11 12 13 14 15 16

17 18 19 20

nents, International Institute of Administrative Sciences, vol. 13 (Amsterdam: IOS, 2000); Linda C. Reif, The Ombudsman, Good Governance, and the International Human Rights System, International Studies in Human Rights, vol. 79 (Leiden: Martinus Nijhoff, 2002); Linda Reif, Mary Marshall, and Charles Ferris, eds., The Ombudsman: Diversity and Development (Edmonton: International Ombudsman Institute, 1993); Donald C. Rowat, The Ombudsman, 2nd ed. (Toronto: University of Toronto Press, 1968); idem, ‘The Ombudsman,’ in Bureaucracy in Canadian Government, edited by W.D.K. Kernaghan (Toronto: Methuen, 1969), 166–75; idem, ed., The Ombudsman Plan; G.B. Sharma, ‘The Office of the Ombudsman in Nova Scotia Province: A Conceptual Empirical Analysis,’ Indian Journal of Public Administration 24, no. 4 (1978): 1100–29; and Frank Stacey, Ombudsmen Compared (Oxford: Oxford University Press, 1978). Sir Guy Powles, ‘Aspects of the Search for Administrative Justice with Particular Reference to the New Zealand Ombudsman,’ Canadian Public Administration 9, no. 2 (1966): 133–57. John Milton, Areopagitica, edited with introduction and notes by John W. Hales (Oxford: Oxford University Press, 1966 [1644]), 1–2. Canada, Committee on the Concept of the Ombudsman, 5. Donald C. Rowat, ‘A Public Complaints Commission,’ Policy Options 3, no. 2 (1982): 33. Robert MacGregor Dawson, The Principle of Official Independence (London: King and Son, 1922). Paul G. Thomas, ‘The Past, Present, and Future of Officers of Parliament,’ Canadian Public Administration 46, no. 3 (2003): 287–314. New Brunswick, Office of the Ombudsman, Annual Report 2001–2002 (Fredericton: 2003), 6. Nathalie Des Rosiers, ‘Balance and Values – The Many Roles of an Ombudsman,’ address to the Annual Conference of the Forum of Canadian Ombudsman, Ottawa, 1 April 2003, 7. http://www.mbudsmanforum.ca/events/2003_conference/nathalie_desrosiers_speech2_e.asp See especially Darin Barney, Communication Technology (Vancouver: UBC Press, 2005). New Brunswick, Office of the Ombudsman, Annual Report 2004–2005 (Fredericton: 2006), 5, 6. Donald C. Rowat, ‘Federal Ombudsman Would Reduce Democratic Deficit,’ Policy Options 25, no. 5 (2004): 46–7. Letter to Commissioner John H. Gomery, Commission of Inquiry into the Sponsorship Program and Advertising Activities, 28 October 2005. http://www.ombudsmanforum.ca

26 Stewart Hyson 21 Donald C. Rowat, ‘The American Distortion of the Ombudsman Concept and Its Influence on Canada,’ Canadian Public Administration 50, no. 1 (2007): 42–52; idem, ‘The Dilution and Distortion of the Ombudsman Concept,’ in Public Administration in Transition: Essays in Honor of Gerald Caiden, edited by Dimitrios Argyriades, O.P. Dwivedi, and Joseph Jabbra (London: Vallentine Mitchell, 2007), 238–56. 22 Donald C. Rowat, ‘The New Private-Sector Ombudsmen,’ Policy Options 24, no. 10 (2003): 46–8. 23 Brenda Danet, ‘Toward a Method to Evaluate the Ombudsman Role,’ Administration and Society 10, no. 3 (1978): 340–2. 24 See also Gregory J. Levine, ‘Administrative Justice and the Ombudsman – Concepts and Codes in British Columbia and Ontario,’ Canadian Journal of Administrative Law and Practice 17 (November 2004): 239–54. 25 Larry B. Hill, ‘Institutionalization, the Ombudsman, and Bureaucracy,’ American Political Science Review 68, no. 3 (1974): 1075–6. For other sources on the concept of institutionalization, see Keith Archer, Roger Gibbins, Rainer Knopff, Heather MacIvor, and Leslie A. Pal, Parameters of Power: Canada’s Political Institutions, 3rd ed. (Scarborough: Nelson, 2002), 12–19; Michael M. Atkinson, ‘Public Policy and the New Institutionalism,’ in Governing Canada: Institutions and Public Policy, edited by Michael M. Atkinson (Toronto: Harcourt Brace Jovanovich Canada, 1993), 17–45; Samuel P. Huntington, Political Order in Changing Societies (New Haven: Yale University Press, 1968), 12–32; and Nelson W. Polsby, ‘The Institutionalization of the U.S. House of Representatives,’ American Political Science Review 62, no. 1 (1968): 144–68. 26 Larry B. Hill, ‘The Citizen Participation–Representation Roles of American Ombudsmen,’ Administration and Society 13, no. 4 (1982): 405–33. 27 Robert D. Miewald and John C. Comer, ‘Complaining as Participation: The Case of the Ombudsman,’ Administration and Society 17, no. 4 (1986): 486. 28 Hill, ‘Institutionalization, the Ombudsman, and Bureaucracy,’ 1077. 29 It may be noted that an earlier ‘capsule summary’ overview of the Ombudsman in Canada, which is extremely brief in coverage and limited in contents, appears in James Iain Gow, Learning from Others: Administrative Innovations among Canadian Governments, Monographs on Canadian Public Administration no. 16 (Toronto: IPAC, 1994), 161–9.

Recto Running Head 27

2 Alberta’s Ombudsman: Following Responsibility in an Era of Outsourcing lorna stefanick

In 1967, Alberta became the first jurisdiction in North America and the tenth in the world to create an OmbudsOffice.1 As part of the early wave of ‘Ombudsmania,’ Alberta Ombudsmen2 have received visitors from all over the world who are interested in learning about or developing mechanisms for addressing maladministration. In 1976, Alberta hosted the first International Ombudsman Conference at Government House in Edmonton. Shortly afterwards the International Ombudsman Institute (IOI) was established at the University of Alberta. Over the years the IOI has grown to include many newly emerging democracies (some of which have sent personnel to serve internships in Alberta), but its administrative home office remains in Edmonton. With funding from the Alberta Law Foundation, Edmonton hosted one of the world’s first Ombudsman, Sir Guy Powles of New Zealand, as scholar-in-residence. Alberta has helped develop Human Rights Commissions and OmbudsOffices in other jurisdictions, most recently in Yukon, where the Alberta Ombudsman coincidentally served as the territory’s first commissioner. Clearly from all this, the concept and practice of administrative Ombudsman has a long history in Alberta. Over the years, Ombudsmen have made important contributions to democratic processes in Alberta and beyond. As in some other jurisdictions, Alberta has seen a drop in the number of complaints made to its Ombudsman. This can be attributed to a number of factors – perhaps, for example, the Office has been so effective as addressing maladministration over the years that it is ‘doing itself out of a job.’ Or it could be that decreasing complaints are the result of the Ombudsman’s low profile in Alberta. As the first jurisdiction in Canada to establish such an office, the Alberta government

28 Lorna Stefanick

played a leadership role in ensuring administrative fairness. Today it enjoys a good working relationship with the ‘watchdog’ it has created, and as a result the ‘behind the scenes’ activities of the Ombudsman are rarely deemed controversial enough to be newsworthy. Other officers of the Alberta legislature are highly visible to the public because they have issued strong public statements that are highly critical of the government; there has been little appetite within the OmbudsOffice for this approach. Perhaps of more importance in explaining the decrease in complaints is the leadership role that Alberta has taken in initiating major changes to the way governments ‘do business’ – changes that have resulted in considerable administrative ambiguity and confusion as to who is responsible for what. Outsourcing public services in order to downsize departments is a common approach taken by Alberta’s government. Through outsourcing, the government has blurred the lines of accountability that are so vital to ensuring administrative fairness. Forty years after its creation, Alberta’s Ombudsman now faces the challenge of seeking administrative fairness in an era of government restructuring and outsourcing that has produced an increasingly complex administrative environment. Alberta’s Ombudsman: A First for North America That Alberta became a North American leader in the adoption of the Ombudsman concept should not be a huge surprise to those who are familiar with provincial politics. Albertans have a long history of giving huge, back-to-back electoral victories to governing parties, leaving scant opposition.3 In 1953, C.B. Macpherson noted the virtual absence of opposition within Alberta’s Social Credit–dominated legislature. At that time, Social Credit had reigned for eighteen years and held fifty-nine of the province’s sixty-three legislative seats.4 Given the virtual absence of opposition, there was no systematic scrutiny of government activities. By 1963, Alberta Progressive Conservatives, Liberals, New Democrats, and even some Social Credit MLAs had endorsed the idea of an office of the Ombudsman. In 1963 a commentator in the Edmonton Journal contended that an Ombudsman would ‘do some of the chores ordinarily reserved for the House Opposition.’5 Fifty years later, the governing party is different but the number of opposition seats continues to be so low that the government tends to

Alberta’s Ombudsman 29

treat legislative debate as irrelevant. Moreover, opposition members of the Legislative Assembly who criticize government activities are at best accused of being ‘negative’ by the government, and at worst labelled as ‘subversive’ – a characterization that does not seem especially controversial among the public.6 While efficiency is doubtlessly encouraged by the lack of debate in the Legislative Assembly and among the public more generally, serious concerns have been and continue to be raised by many Albertans, who understand that a vigorous democracy needs opposition watchdogs to ensure that government mistakes, corruption, or incompetence are brought to light. Lorne Gunter, a commentator who is not known to be a friend of the provincial opposition, has observed that ‘for there to be effective accountability, the opposition must be able to scrutinize and publicize government actions on an ongoing basis, even if we don’t particularly like what the opposition has in mind.’7 Despite questions surrounding Premier Ralph Klein’s leadership that eventually forced him into retirement in 2006, the ruling Progressive Conservatives continue to completely dominate the legislature; indeed, they have amended provincial access and privacy laws to enable the government to shroud many of its activities in secrecy.8 Given these conditions, the presence of independent officers of the legislature who are not afraid to question government practices is critical in ensuring accountability. An effective OmbudsOffice ensures that, at least with respect to its administrative branch, government is held accountable. There are currently five independent officers of the Alberta legislature that concern themselves with government accountability and fair practices. These officers – the Auditor General, the Chief Electoral Officer, the Ethics Commissioner, the Information and Privacy Commissioner, and the Ombudsman – all provide independent reviews of government activities. While the origins of the Auditor General’s Office date back to 1905, the modern version of that office was established in 1978, which makes the Office of the Ombudsman Alberta’s oldest office of the legislature.9 Cabinet appoints the officers on the recommendation of the Legislative Assembly, but it is the all-party Standing Committee on Legislative Offices that develops the list of candidates. This committee has members who are not part of the ruling party; however, their numbers are very low (as are their numbers in the legislature). Critics complain that this results in a selection process that favours both the status quo and candidates that will not be strong voices of dissent.

30 Lorna Stefanick

So it is clear that it is not just having an established office that is important, but also the effectiveness of the Ombudsman in ensuring administrative accountability. Donald Rowat’s classic book, The Ombudsman Plan, outlines five key requirements for success: the office must be independent from those being investigated; have strong but not binding powers; have broad scope; be well known to the public; and be directly accessible to complainants.10 More recently, in 2003 the U.S. Ombudsman Association passed a set of standards for OmbudsOffices. These include independence, impartiality, confidentiality, and a credible review process. Included under the heading of ‘independence’ is sufficient resources; included under the heading of a ‘credible review process’ is public accountability.11 Using these criteria for determining effectiveness, Alberta’s Ombudsman has a mixed record. On the first and most important point, it scores a high grade: Ombudsmen must be independent from those whom they investigate, and as such they must be shielded from partisan influence and executive interference. As mentioned, this is the case for all officers of the legislature in Alberta. The Ombudsman is appointed for five years by the Lieutenant Governor in Council on the recommendation of the Legislative Assembly and can only be removed from office through disability, neglect of duty, misconduct, or bankruptcy. The Ombudsman reports to the all-party Standing Committee on Legislative Offices for operational matters, and it is this committee that sets his salary. When the legislature is not sitting, this legislative committee can temporarily suspend the Ombudsman for the reasons outlined earlier, but this suspension is only valid until the next session of the legislature. In Alberta, the Ombudsman’s independence was established by the Philipzyk case.12 The details of this complex case are not as important as its significance. It resulted in a government-appointed commission of inquiry, which subpoenaed Alberta’s first Ombudsman, George B. McClellan, to provide testimony. The commission demanded that McClellan provide documents relating to his investigation of Philipzyk’s complaint. The Ombudsman did appear at the hearing, but he refused to produce the documents and was severely criticized by the inquiry’s commissioner. Having made no headway in resolving the dispute through the usual public service channels, McClellan eventually tabled his recommendations in the legislature. Despite heated debate, the government still failed to take action. Eventually, Philipzyk took his complaint to court and won. This contentious case was widely

Alberta’s Ombudsman 31

reported in the media and served to raise awareness of the role of the fledgling OmbudsOffice as a corrective to maladministration. Even more important was the contribution this case made to refining the Ombudsman concept. The Ombudsman’s refusal to provide testimony and documents to the commission reiterated the dual principles that this legislative officer can only be called to account by the legislature and that all information divulged to him as part of a complaint is privileged.13 Karl Friedmann’s 1977 survey of attitudes towards the Alberta OmbudsOffice suggest that refusing to violate these basic principles resulted in an increased profile for the office as well as heightened public respect for the role played by the Ombudsman in promoting administrative fairness.14 Indeed, McClellan’s actions even garnered respect from legislators and public servants. In 1972 the Ombudsman Act was amended to reaffirm the office’s independence. It is also noteworthy that this was the only time in Alberta’s history that the Ombudsman felt it necessary to table recommendations in the legislature in order to rectify maladministration.15 While this case was important for the Ombudsman in Alberta, its reach extended beyond provincial borders. Only a dozen OmbudsOffices had been established worldwide at this point, and the operationalization of this fledgling concept was a matter of keen interest to observers outside the province.16 Even when the U.S. Ombudsman Association’s expanded definition of independence (i.e., sufficient resources) is used to examine effectiveness, Alberta’s OmbudsOffice ranks highly. With a budget of over $2.3 million per annum, the Alberta Ombudsman has enough resources to maintain offices in both of the province’s two largest cities. The office has a staff of twenty-one, including a Deputy Ombudsman, senior legal counsel, nine investigative officers split between the north and south offices, and seven administrative officers and support personnel. Investigators come from a wide range of backgrounds, including political science, journalism, law, public service, immigration, social work, and policing. Because of the broad expanse and fluidity of government administration, and the complexity of the issues, a rookie investigator requires about two years of training to become fully competent in the investigative role.17 An analysis of resources provides interesting insights. The OmbudsOffice consistently finishes each fiscal year with a budget surplus, which suggests that it has sufficient resources to carry out its activities. In 2006–7, 4,812 complaints were received: 4,179 of them orally, 633 in

32 Lorna Stefanick Table 2.1 Complaints received in 2006–7 Oral

Written

#

Type

#

Type

2,178

Non-jurisdictional

435

Declined for investigation (nonjurisdictional or referred to other remedy)

1,282

Referred to other remedy or appeal

156

New investigations

346

Written correspondence requested

196

Other

177

Informal resolution

4,179

42 633

New Alternative Complaint Resolution files Total

Total

writing. However, a closer look at the complaints the office receives every year (see Table 2.1) reveals that the vast majority are declined for investigation or referred somewhere else because they are deemed non-jurisdictional. Unlike other jurisdictions, Alberta has a separate Access to Information and Protection of Privacy Commissioner; this would account for some of the referrals noted in Table 2.1. The small proportion of complaints the OmbudsOffice actually investigates raises an important question: Is the Ombudsman’s mandate too limited? This question will be discussed later in the chapter. The second of Rowat’s requirements for success is that Ombudsmen have strong (but not binding) powers. In the classic model, Ombudsmen do not have order-making power; they rely on the power of ‘moral suasion’ that arises from their investigative powers. This moral suasion is backed by their ‘power to publish’ the conclusions they draw from their investigations.18 Ombudsmen can take vastly different approaches to affect moral suasion. The approach they take has much to do with the environment in which they work – specifically, how others in governing circles perceive the importance of their function. In some respects, Ombudsmen will be criticized no matter what they do. A confrontational approach may bring issues to

Alberta’s Ombudsman 33

the forefront of the public agenda, increasing public awareness of the issue and of the existence of an office through which administrative problems can be resolved. For Ombudsmen who work in a hostile environment, this may be the only method available to them to affect any type of change. Yet this approach also threatens to alienate the subjects of investigations – namely, public servants, who may become uncooperative and obstructionist in resolving administrative issues. Ombudsmen in a more receptive environment may choose to work quietly behind the scenes – that is, with rather than against public servants. Yet non-confrontational Ombudsmen can be accused of being ‘captured’ by those they are supposed to be investigating. This is certainly the perception of an Alberta Opposition MLA who brought forward issues to both the current and the previous Ombudsman. This MLA describes the OmbudsOffice as ‘invisible, ineffective and unhelpful’ in resolving problems of public administration.19 Members of the ruling Progressive Conservative Party have for years dominated the all-party legislative committee that selects legislative officers; clearly, it would not be in the interests of this group to choose candidates who might ‘rock the boat.’ But it also may be that the low-key, non-confrontational style of the Alberta Ombudsman reflects the general tone of politics in Alberta, where the electorate avoids vigorous debate and gives massive back-to-back majorities to the same party year after year. As described by Moss in this book, the enjoyment that Newfoundlanders derive from boisterous political debate provides a striking contrast to the political acquiescence of Albertans. The vast majority of Alberta voters do not support opposition to the status quo – indeed, most eligible voters did not bother to vote in the 2008 provincial election.20 In any event, the Ombudsman can be described as having considerable power, but it should also be noted that having the power and using it are two different things. As noted, the power to publish is an important tool for supporting moral suasion. If it becomes apparent that a deputy minister has no intention of acting on the Ombudsman’s recommendations to address administrative maladministration, the Ombudsman can table a report in the legislature. This was done only once in the early years of the office in Alberta. The right to embarrass the government by taking an issue to the legislature remains important, however, especially when it is not resorted to regularly. Over the years, Ombudsmen have reported good working relations with the public service, and deputy ministers

34 Lorna Stefanick

have accepted the vast majority of recommendations. Indeed, only four times in forty years have Ombudsmen gone over the head of a deputy to speak to the minister.21 Over the years, Ombudsmen have not deemed the ignored recommendations as significant enough to warrant this action. To achieve administrative transparency and to improve public visibility, the office’s activities are publicized through annual reports. Occasionally the OmbudsOffice publishes reports for public consumption on issues deemed to be relevant to the exercise of its functions or to a particular case; these were fairly common in the early years of its existence. The motivation to issue special reports seems to be related to the profile of the issue at hand. The OmbudsOffice issued its last special report in 1984; it concerned complaints made by the Lubicon Indian band.22 At the time Treaty 8 was signed in 1899, this indigenous nation of five hundred people was overlooked. In 1939 it was promised an agreement, which had still not been reached by the 1970s, by which time massive oil and gas development had begun on unceded territory, resulting in severe health and social problems for the Lubicon. The Lubicon were alleging that Crown officials had deliberately set fires on disputed territory; had allowed companies to bulldoze trap lines and scare off game; had misled band members about the Land Tenure Program and their right to occupy lands; and had acted improperly with respect to building a school. In his special report, the Ombudsman found that most of these claims were unsupported; however, he concluded that more strained relations could be expected until the land claim issue was resolved. While many issues have arisen over the past two-and-a-half decades since the release of this report, subsequent Ombudsmen have chosen not to highlight issues through special reports. The earlier point about having the power but choosing not to exercise it is relevant here. With respect to Rowat’s third requirement – broad scope – Alberta’s Office of the Ombudsman scores well; it has the power to investigate any decision made by a provincial government department, agency, board, or commission, and by some professional organizations as well. Over the years, complaints in Alberta have consistently been directed towards the same departments and service providers, despite huge changes to the governance model as a result of government budget cuts and outsourcing. The largest volume of complaints are directed at the Correctional Services Division, the Workers’ Compensation Board, the Appeals Commission for Alberta Workers’ Compensation, the As-

Alberta’s Ombudsman 35

sured Income for the Severely Handicapped program, the Maintenance Enforcement Program, and the Department of Children’s Services (in particular when it comes to child protection issues). Because of the significant redistribution of programs among departments since 2004, and the amalgamations and realignments of ministries, a comparison of complaints made against departments across years does not reveal meaningful data. With respect to jurisdiction, Alberta once again was first off the blocks with respect to a dispute over what exactly came under the purview of the Ombudsman. In 1970, Chief Justice J.V.H. Milvain of the Alberta Supreme Court Trial Division determined that the Ombudsman had the authority to investigate formal decisions handed down by the Provincial Planning Board. He also affirmed the important role of the office when he noted: ‘These sections seem to make it clear that, as an ultimate objective, the Ombudsman can bring to the legislature his observations on the misworking of administrative legislation. He can also focus the light of publicity on his concern as to injustices and needed change.’23 The OmbudsOffice can respond to confidential individual complaints insofar as the complaint relates to one of the bodies mentioned earlier. The only restrictions as to what can be investigated are that all rights of appeal as outlined in other acts must first be exhausted; solicitors and counsel for the Crown are exempt; and any issue related to the Mental Health Patient Advocate is exempt. The latter exemption has been a contentious point and will be discussed a bit later. The OmbudsOffice can also investigate a matter referred to it by a minister, or by any committee of the legislature. More important, however, it can also investigate on the basis of its own motion – in other words, it can look into an administrative issue even if no complaint has been laid. This is an important power, for it means that the Ombudsman does not have to wait for a reported administrative failure in order to investigate an issue where there is perceived to be a flawed administrative process. Thus, for example, because the Department of Family and Social Services was receiving twice as many administrative complaints as other departments in the early 1990s, the Ombudsman launched a review of the department’s complaint investigation practices for registered day-care centres. The findings of this 1993 investigation resulted in fifty-six recommendations for improvement, fiftytwo of which were accepted.24 That said, the ‘own motion’ power is another that is rarely used, as an in-depth investigation of a particular

36 Lorna Stefanick

complaint (one that goes well beyond what is needed to resolve the complaint) can serve the same purpose. An ongoing source of friction with respect to administrative justice in Alberta relates to the ability of those with mental health issues to have instances of maladministration addressed. The treatment of those with mental illness – in particular, those confined to mental hospitals – has been a contentious issue in Alberta since the passing of the Sexual Sterilization Act in 1928 for the purposes of preventing ‘mental defectives’ from reproducing. Until this act was repealed in 1972, almost three thousand Albertans were sterilized, many without their consent and for reasons that were not based on genetics but rather on social class, ethnicity, or gender.25 A few years before this eugenics policy was abolished, the Ombudsman raised another mental health issue: the practice of indefinitely incarcerating individuals in mental institutions at the pleasure and order of the Lieutenant Governor of Alberta. These inmates had been found ‘not guilty’ of criminal charges by virtue of insanity or had been deemed not fit to stand trial. Some of them had been confined for more than twenty years (one of them for twenty-seven), yet they had never had a review of their mental state. As a result of the Ombudsman’s intervention, inmates in mental institutions now must have their cases reviewed at regular intervals.26 Brian Sawyer, Alberta’s third Ombudsman (1984–7), repeatedly asked for the appointment of a mental health advocate.27 The Ombudsman Act was eventually amended in 1988 and a Mental Health Advocate was established. This person’s actions, however, were removed from the OmbudsOffice’s jurisdiction, as was oversight of psychiatric hospitals. Also, patients who had voluntarily sought help as well as involuntary patients who were under a provision outside the Health Act were not able to seek redress through the Mental Health Advocate. Along with the Alberta Mental Health Association, the next Ombudsman, Aleck Trawick (1987–9), identified this as problematic.28 Not until 2003 was the Ombudsman’s jurisdiction extended to include the complaint resolution processes of the Alberta Mental Health Board. Also in this amendment, jurisdiction was extended to regional health authorities, the Alberta Cancer Board, and some professional associations outside government.29 These now include Chartered Accountants, Certified General Accountants, Certified Management Accountants, Veterinarians, Registered Professional Foresters, and Registered Professional Forest Technologists. The Health Profes-

Alberta’s Ombudsman 37

sions Act also provides for the inclusion of twenty-eight health professions, including chiropractors, dental assistants, nurses, doctors, psychologists, and physical therapists. As of 2007, schedules had been passed for only twenty of the twenty-eight health profession colleges that allow the Ombudsman to provide independent investigations.30 Nonetheless, the inclusion of these professions has vastly increased the jurisdiction of Alberta’s Ombudsman. According to Rowat, a broad scope is necessary for an Ombudsman to be effective; however, a broad scope becomes a liability when resources are insufficient. If the OmbudsOffice has wide-ranging jurisdiction but limited resources, the end result will be many complaints and very slow response times. Alberta’s first Ombudsman, George McClellan, observed in 1973 with respect to response times of government administrators: ‘Probably the greatest single source of public irritation with government administration I have encountered, stems from delays in answering correspondence from the public – or worse yet no reply at all … I can imagine no single decisions which would improve the image of the Government Service more, than a firm insistence on speedy replies to mail received, and prompt attention to complaints. The present situation can only help to justify a fairly common impression, that the Government is inaccessible to the public.’31 Ombudsman Sawyer viewed response times as vital to democratic accountability – in particular, he was concerned about response times for complaints made to his office. Under his watch the Alberta OmbudsOffice’s investigative system was decentralized, allowing investigators to pursue the informal resolution of complaints wherever possible in order to deliver more timely responses.32 This issue was also addressed in the 2005–2008 Strategic Business Plan, which delineated performance standards in order to shorten time frames for investigations;33 and in the adoption of an Alternative Complaint Resolution Process for single-issue, non-systemic complaints.34 So while most Ombudsmen welcome an expansive jurisdictional reach, they must be careful that their jurisdiction is closely related to the funds provided to them to carry out their mandate. The relationship between resources and mandate is best illustrated in Alberta with respect to the OmbudsOffice’s inability to investigate maladministration by municipal governments. Unlike some Canadian provinces, the OmbudsOffice in Alberta has no authority to investigate complaints made about municipal governments. This is an important omission, given that after decades of downloading of services, munic-

38 Lorna Stefanick

ipal governments are being forced to move into some aspects of social service provision – an area that typically sees a high volume of complaints with respect to maladministration. The OmbudsOffice acknowledges this gap in jurisdiction; at the same time, there is concern that additional responsibility would stretch current resources to the breaking point. This point was especially salient in 2006, when the office saw a significant turnover in personnel at the same time that it was grappling with its new oversight responsibility for health professionals and the regional health authorities’ patient concerns resolution process. It is noteworthy that these new responsibilities were instigated by the government and were not the result of lobbying for expanded jurisdiction by the OmbudsOffice.35 Given the aging population and the profile of health care issues in Alberta, the OmbudsOffice will undoubtedly become more involved with issues in this sector. Demand, however, must be met with adequate resources. Rowat’s fourth requirement for effectiveness is that the Ombudsman be well known to the public. Here the Alberta Ombudsman receives a failing grade. As with the institutionalized pressure groups described by A. Paul Pross, the Alberta Ombudsman is rarely in the news, especially compared to other Alberta legislative officers such as the Information and Privacy Commissioner.36 Both these officers have made headlines in Alberta after issuing scathing reports of government practices. According to his own assessment of his working style, the current Ombudsman of Alberta prefers to work behind the scenes using ‘quiet persuasion’ as opposed to publicly embarrassing or pressuring the government.37 Ombudsman Button reports that during his tenure in office, almost all of his recommendations have been accepted by the administration; also, disputes are typically resolved at the level of deputy ministers.38 Unfortunately, while the low-key approach undoubtedly does much to foster a positive and collaborative working relationship with government, it puts the Ombudsman at risk of being accused of timorousness. As stated earlier, this perception is held by at least one opposition member in the legislature, who claims that this Ombudsman, like the Ombudsman before him, has done a very poor job of bringing maladministration problems to the public’s attention. Failing to highlight problems in a public forum misses an important opportunity to educate the public as to what standard can be expected from the public service. This assessment of the Ombudsman’s effectiveness could be dismissed as the opinion of a frustrated politician. Even so, a February 2005 Ipsos Reid survey of eight hundred Albertans supports the assertion that few

Alberta’s Ombudsman 39 Table 2.2 Alberta’s Ombudsmen Name of Ombudsman

Tenure

Professional background

George B. McClellan Dr Randall E. Ivany Brian Sawyer Aleck H. Trawick Harley A. Johnson G.G.S. (Scott) Sutton G.B. (Gord) Button

1967–1974 1974–1984 1984–1987 1987–1989 1990–1997 1998–2003 2003–present

RCMP Electrical engineering, theology RCMP, Calgary Police Service Lawyer Royal Canadian Army, Calgary Police Service RCMP RCMP

Albertans have much awareness of either the Ombudsman or the activities this office undertakes. For example, 65 per cent of those surveyed had heard of the Ombudsman, but only 21 per cent could identify what the Ombudsman did. The survey showed that those who were least likely in need of the Ombudsman’s services (over thirty-four years of age, highly educated, earning over $70,000) were the most likely to be aware of the office. These results are especially unsettling when we consider that the Ombudsman maintains offices in both cities in order to put a ‘face’ on the office and to increase accessibility to all who need assistance, regardless of their location. In addition, the Ombudsman makes trips to smaller communities in an effort to reach those who do not live in the two largest cities. Clearly, this lack of awareness is a concern, for those Albertans who are most likely to depend on government services (indigenous people, immigrants, the poor, the marginalized) are also the least likely to know that an avenue exists to resolve issues that arise in the delivery of those services. The OmbudsOffice recognizes this dilemma: its 2005 Business Plan’s SWOT (strength, weaknesses, opportunities, threats) analysis identified ‘lack of public awareness’ as a threat.39 While personalities may play a role in explaining this difference in style and in profile, it can also be explained by the fact that, unlike the Ombudsman, the Information and Privacy Commissioner issues orders as opposed to making recommendations. Coercion makes a more interesting news story than does persuasion. It could also be that the low profile of the current Ombudsman and those before him is related to professional background. Table 2.2 shows that five of Alberta’s seven Ombudsmen have been policemen. Law enforcement as a profession is characterized by its hierarchical structure and deference to authority.

40 Lorna Stefanick

Rowat’s last requirement for success is that an OmbudsOffice be accessible to complainants. On this, Alberta scores highly. It also scores well on the U.S. Ombudsman Association’s requirement that complaints be confidential. In order to consider an OmbudsOffice accessible, complainants should not face prohibitive service fees, nor should they be required to go through a third party who in effect acts as a gatekeeper. In Alberta, complainants can approach the OmbudsOffice directly, and there is no fee for lodging a complaint. All complaints must be made in writing; however, intake officers refer the illiterate or those for whom this requirement might pose a barrier to a third party who can assist in writing their submission. The Ombudsman Act stipulates that complaints written by prison inmates or by patients in mental institutions must be immediately forwarded unopened to the Ombudsman by the person in charge of the institution. OmbudsOffice staff are not permitted to disclose information to which they are privy through the exercise of their duties. As well, obligations for storage of and access to files are spelled out clearly in Sections 20, 30, and 31 of the act. An important ruling in 1997 by the Information and Privacy Commissioner reaffirmed this confidentiality; he ruled that filed departmental copies of the Ombudsman’s records could not be obtained using access-to-information laws.40 Written complaints create a documented paper trail that conforms to a basic administrative principle of accountability; this, however, is balanced against the privacy rights of the complainant. An additional requirement for success included in the U.S. Ombudsman Association standards is having a credible review process. A critical factor in ensuring that an Ombudsman can conduct a meaningful (and thus credible) investigation is access to files and information considered relevant. With respect to this point, Alberta’s first Ombudsman made another important contribution to the Ombudsman concept. Ombudsman McClellan succeeded in convincing the legislature that a thorough investigation could only occur if the OmbudsOffice had complete access to all necessary departmental and agency documents.41 While the Ombudsman’s power is limited to ‘recommendations’ for improvements to remedy maladministration, he does have the ability to compel anyone to turn over anything he deems to be relevant to the investigation, whether or not that person is a member of the organization being investigated. The only significant restriction on the Alberta Ombudsman’s access to information is that he cannot compel a pre-sentence report, nor can he compel information related to confidential proceedings of the Executive Council or its committees

Alberta’s Ombudsman 41

that could harm the public interest.42 Section 16(1) of the Ombudsman Act requires the Ombudsman to notify the administrative head of an organization that an investigation under the act will be undertaken, but it does not require the Ombudsman to provide a timetable for the investigation. McClellan once made a middle-of-the-night visit to the ‘drunk tank’ at the Calgary Remand Centre and published the details of this visit in a special report. In later years, OmbudsOffice investigators would visit correctional facilities during mealtime to sample institution food, which had been the subject of complaints.43 These unconventional tactics were used to access information that the Ombudsman deemed relevant to his investigation of a complaint – information that otherwise might not have been available using more traditional information-gathering techniques. In summary, the Alberta Office of the Ombudsman on the whole has done much over the past several years to improve administrative fairness in the province. It can also be credited for setting standards that are now referred to by offices in other jurisdictions. It is apparent, however, that some areas could use improvement. And to complicate matters, the governing environment has become far more complex over the past decade. How well the OmbudsOffice will do in responding to this changing environment remains to be seen. These challenges are the subject of the next section. Resources and Responsibilities: The Impact of Outsourcing In the mid-1960s Alberta was leading the country in embracing an office that was designed to improve administrative fairness and, in doing so, improve democratic practice. In the mid-1990s the Alberta government was leading the country once again, this time with respect to implementing administrative and service cutbacks to address a budget deficit. The OmbudsOffice saw a 20 per cent reduction in its budget, which resulted in a staff reduction of 20 per cent during this period.44 Alberta had embraced the tenets of New Public Management45 – specifically, that the government should emulate the private sector with respect to management activities. New ways of delivering services were adopted, such as decentralizing service provision and contracting out, with the goal of gaining efficiencies and saving money. Many functions that had always been performed by departments were transferred to regional authorities or community boards, or contracted to private agencies.

42 Lorna Stefanick

The cuts to the OmbudsOffice were coupled with a reduction in jurisdictional authority. The Ombudsman had no authority to investigate complaints regarding government services that were now being delivered by private contractors. Moreover, people were becoming confused: To whom should they turn in order to resolve issues? Indeed, given the rapid rate of reorganization and changes in the roles of government departments in the mid-1990s (specifically, from providing services to overseeing the provision of services), the OmbudsOffice itself often had trouble figuring out who had responsibility for what. Ombudsman Johnson noted in 1995 that ‘my investigative staff have had some difficulty in pinning down who can deal with issues when they arise. The question must be obvious – if internally, departmental staff do not know how or what to advise and the Ombudsman staff have difficulties chasing down who is responsible, how can the average citizen know or find out how to address any problems they [sic] might have.’46 The erosion of clearly demarcated lines of responsibility meant more complex and time-consuming complaint investigations. To make matters worse, the training of public servants in how to function in this dramatically changed environment did not keep pace with the changes in how things were done. At best this situation was annoying; more worrisome was the effect that the blurring of the lines of responsibility was having on accountability. Johnson concluded that ‘the privatization of government services is occurring without protective measures such as appeal mechanisms and/or ombudsman services. The lack of safeguards in the system erodes accountability.’47 The lack of accountability with respect to privatized services is being felt worldwide. A former New Zealand Ombudsman, Sir John Robertson, has observed that the privatization of service delivery changes both the context and the nature of service providers, making it difficult for them to be profitable and efficient as long as they remain under the jurisdiction of an OmbudsOffice. Specifically, the private-sector provider focuses on making a profit as opposed to providing a service to the public, and the costs of responding to investigations cut into providers’ profit margins.48 One possible approach to the question of jurisdiction over privatized service delivery functions suggests that jurisdiction should ‘follow the dollar’; that is, OmbudsOffices should have jurisdiction over anything that is government funded, even if service decisions are made in the private sector.49

Alberta’s Ombudsman 43

The concern for ensuring accountability for outsourced services remained paramount throughout the 1990s. Some departments addressed this issue by providing special training to encourage public servants to take responsibility for decisions and to foster better service for the public. But in other departments and agencies, the lack of accountability seemed to become institutionalized. In his 2000 Annual Report, Ombudsman Sutton remarked that investigation of complaints revealed a trend towards correspondence being sent that was not signed or that did not identify the author in some other way. He concluded that ‘there are some departments and agencies that appear to have adopted an administrative model where no specific service provider is responsible for a particular file. When this occurs, a member of the public seeking assistance or clarification is more often than not met with a “faceless bureaucracy” that is unable to respond effectively.’50 An additional problem has been the growing trend towards service provision across ministries. Gone are the days when a particular program is clearly identified with and delivered by a single department: programs now typically involve multiple partners. As such, there can be poor communication between departments and nobody takes ownership of the program when a problem arises. Moreover, complaints have evolved from being relatively simple service-delivery issues to increasingly complex systemic issues, with multiple issues of complaint contained in one file. As Ombudsman Button observed, these files contain ‘a thousand shades of grey’ so that a lot of resources are required to resolve the complaints therein. Traditional statistical tracking methods, when an issue of maladministration was discovered, would note that this file was ‘supported’ by the OmbudsOffice. This obscured the fact that with respect to a dozen other issues contained in the file, the Ombudsman may have determined that the administrative body had acted properly.51 While administration has been immeasurably complicated by cross-departmental service delivery, downsizing, outsourcing, and reorganization, the problems that arise from complex administrative arrangements are nothing new. In his 1971 Annual Report, Ombudsman McClellan referred to New Zealand’s first Ombudsman when he quoted ‘Powles’ Law’: ‘The time factor in delays rises in geometric proportion to the number of departments involved. That is, if two departments come into the case, it takes four times as long. And for the purposes of law, a board counts as a department. So if there are two departments and one board, negotia-

44 Lorna Stefanick

tions will take nine times as long.’52 Combining cross-departmental service delivery with unsigned administrative documents immeasurably complicates the job of determining the source of maladministration. In the mid-1990s, concern was not confined to the privatization of programs that had previously been delivered by government. The Ombudsman was requested by the premier to investigate how the Government of Alberta awarded construction contracts. His major finding: there was no overall government corporate philosophy to guide how the government interfaces with the private sector when it enters into construction contracts. Given the government’s commitment to privatization, restructuring, and outsourcing, a corporate philosophy is vital in order to ensure that all contractors are working within a consistent and equitable set of rules. The investigation resulted in four major findings and twenty-four recommendations, all of which were accepted.53 The installation of a new Ombudsman in 1998 saw a continuation of concern over privatization and outsourcing. In his first Annual Report (1998), Scott Sutton wrote: ‘It is difficult to stay abreast of who is doing what function in government, and whether responsibility for the action or decision complained about has been assumed by a different government department or agency, a contracted service provider, a newly created government authority or board or its contracted service or to a private entity outside government altogether.’54 Other issues relating to government reorganization have emerged, such as the severance packages offered to government employees and position classifications in restructured organizations. It is interesting that the mid-1990s saw a new source of complaint emerging: contracted agencies were now complaining about how government departments were tendering and terminating contracts. It became apparent that departmental training in the area of awarding contracts, assessing performance, and terminating contracts was inadequate. As a consequence, department personnel were unfamiliar with how to supervise those whom they had hired on contract. After eight years of concerns being raised over outsourcing, the Ombudsman Act was amended in 2003. The amendments enabled the OmbudsOffice to investigate complaints about government services provided by the private sector under contract – a victory for administrative accountability in Alberta. Section 34 gives the Ombudsman the flexibility to go to Cabinet with an individual request for jurisdiction.

Alberta’s Ombudsman 45

This power has yet to be exercised, but most likely it would be used with respect to entities that the Ombudsoffice has lost jurisdiction over through outsourcing. Another important change was the amendment that resolved any ambiguities regarding OmbudsOffice jurisdiction over a board, tribunal, or any other body whose decision is considered final. Section 21.1(1) ‘allows departments, agencies and professional organizations on a recommendation from the ombudsman to rehear or reconsider a matter or decision and quash, confirm or vary that decision, notwithstanding any provision in any other act that a decision, act or omission is final and binding. The provision allows and encourages departments, agencies and professional organizations to work with this Office to right the wrong when it is appropriate and necessary to ensure citizens are treated fairly.’55 This change prevents organizations from claiming that because their rulings are stipulated as ‘final and binding’ by legislation, they are unable to reconsider decisions that the OmbudsOffice might feel are unfair. In amending the Ombudsman Act to take into account the challenges to accountability posed by outsourcing, Alberta is addressing an administrative issue that is garnering international attention. Outsourcing is proving to be the Trojan Horse of public administration: witness the recent furor over the responsibility for the protection of personal data that is collected by governments but managed by private companies on contract.56 Unlike some other provinces and territories, the Alberta OmbudsOffice does not have responsibility for protecting data; this resides with the Information and Privacy Commissioner. Following B.C.’s lead, Alberta amended its Privacy Act in 2006 to address the issue of outsourcing as it pertains to data protection. And true to the Alberta tradition of leading the charge for both positive and negative change simultaneously, the legislative changes included draconian provisions that decreased government transparency. How well the OmbudsOffice will fare in this complex administrative environment will undoubtedly provide an interesting theme for a paper analysing its next forty years. An interesting development in recent years is the fairly dramatic drop in complaints, especially oral complaints. Since reaching a record high of 10,349 in 1993, the number of complaints to the Ombudsman has decreased steadily. By 2007, complaints were half of what they had been in the ‘banner’ year for complaining fifteen years earlier (see Figure 2.1).57

46 Lorna Stefanick

Figure 2.1: Complaints made to the ombudsman 2007 2004 2001 1998 1995 1992 1989 1986 1983 1980 1977 1974 1971 1968 0

2000

4000 oral

6000

8000

10000

written

Note: Prior to 1977, oral complaints were not recorded.

This trend has been reported in many other jurisdictions, and a variety of reasons have been suggested as to its cause. Some argue this is yet another example of declining social capital.58 As with decreasing rates of participation in elections, the electorate is said to have become more and more disengaged with and apathetic towards not just the electoral process but all things related to government. According to this line of thinking, citizens do not bother to complain because they figure that complaining will accomplish nothing.

Alberta’s Ombudsman 47

But other factors may help explain this trend. After the mid-1990s, Alberta’s economy improved steadily. As a result, fewer Albertans relied on government services. The less government ‘does,’ the fewer opportunities it has to make administrative errors. Also, the decrease in size of government since the 1990s owing to budgetary restraint resulted in less government service provision, as a result of both outsourcing and privatization. But as noted earlier, the complexities of service provision and the ensuing complexities of complaints laid against an authority may obscure the actual volume of work that the OmbudsOffice actually does. One file may contain multiple issues, each requiring its own investigation. The current Ombudsman’s perception of the primary constituency of his office is revealing. According to Ombudsman Button, when he first took office he perceived that his work would be directed primarily at two constituencies: organizations that fall within his jurisdiction, and individual complainants. He now believes that the most important work he does is with the organizations, as changes at this level will have the biggest impact on administrative fairness. As only 35 per cent of complaints are either supported or partially supported, the resolution of individual complaints impacts very few people. In contrast, because of the complexities of program and service delivery, a seemingly small change in a program can have an impact on a large number of people ‘downstream.’ Thus an important component of the current workload of the OmbudsOffice involves identifying systemic issues that result in administrative injustice.59 Technology is another possible reason for the decrease in complaints to the OmbudsOffice. An Environics survey conducted in November 2003 found that 80 per cent of Albertans had access to the Internet – undoubtedly in part due to government initiatives such as the ‘Let’s Get Wired’ and Alberta SuperNet projects.60 A fifteen-year veteran of the OmbudsOffice notes that information technologies have had a strong impact on people’s ability to gather information for themselves to help them pursue less complex complaints on their own. Sophisticated telephone and Web systems offer complainants channels for acquiring administrative information for which they might in the past have turned to the Ombudsman. Moreover, many routine complaints that used to arise from such things as delayed or missing government cheques have been virtually eliminated with the advent of technologies such as direct deposit banking.61 Whatever the causes for the decline in complaints, one thing is clear: the administrative environment is changing. And as was observed

48 Lorna Stefanick

earlier, how well the OmbudsOffice fares (in this case, how citizens respond to it) will provide some interesting fodder for future case studies. Whither Alberta’s Ombudsman? Alberta’s OmbudsOffice celebrated its fortieth anniversary in 2007. Over those four decades the nature of governance has changed dramatically. The postwar growth of the administrative state has been replaced by the ‘lean’ state, one in which government provides services to ‘customers’ as opposed to ‘citizens’ and in which the government, whenever it can, sets policy but contracts out provision. Technological advances have helped create a sophisticated citizenconsumer as government’s customer. The cross-functional nature of most policy issues and the outsourcing of service delivery have not only led to acute administrative complexity but also obscured administrative accountability. This has made the job of the OmbudsOffice infinitely more challenging as it seeks to clarify administrative procedures and assign responsibility for maladministration. But while the issues have changed their nature, the basic premise of the OmbudsOffice has changed little. As Alberta Chief Justice Milvain observed in a statement that has been repeated many times since it was made almost forty years ago: ‘It must, of course, be remembered that the ombudsman is also a fallible human being and not necessarily right. However, he can bring the lamp of scrutiny to otherwise dark places, even over the resistance of those who would draw the blinds. If his scrutiny and observations are well-founded, corrective measures can be taken in due democratic process, if not, no harm can be done in looking at that which is good.’62 Like his counterparts around the world, Alberta’s Ombudsman remains the ‘conscience’ of government; his purpose is to ensure good governance and administrative justice. In Alberta specifically, the lack of opposition voices in the legislature, the complacency of the citizenry, and the administrative complexity that is a result of outsourcing have combined to create conditions that place a weighty responsibility on the Ombudsman as the critical voice that seeks out and suggests remedies for maladministration.

Alberta’s Ombudsman 49 NOTES 1 Other early ombudsmen offices at the national level include Sweden (1809), Finland (1919), Denmark (1955), New Zealand (1962), Norway (1962), Tanzania (1966), Guyana (1966), Mauritius (1970), the United Kingdom (1967), New Brunswick (1967), Hawaii (1969), and Fiji (1970). In Canada, the seven-year period beginning in 1968 saw the establishment of offices in Quebec, Manitoba, Nova Scotia, Saskatchewan, Newfoundland, and Ontario. 2 The use of the term ‘ombudsmen’ in the Alberta context is deliberate: to date only men have held this position. 3 The ruling dynasties in Alberta include United Farmers of Alberta, 1921–35; Social Credit, 1935–71; and Progressive Conservative, 1971–present. 4 C.B. Macpherson, Democracy in Alberta: The Theory and Practice of a QuasiParty System (Toronto: University of Toronto Press, 1953). For other accounts of Alberta’s political history, see Harold and Tamara Palmer, Alberta: A New History (Edmonton: Hurtig, 1981); and Alvin Finkel, The Social Credit Phenomenon in Alberta (Toronto: University of Toronto Press, 1989). 5 Edmonton Journal, 19 June 1963, 1. 6 Jason Markusoff, ‘Stelmach Calls Critic of PR Push ‘Subversive,’’ Calgary Herald, 14 May 2008. http://www.canada.com/calgaryherald/news/story.html?id=06d9a19b6d3d-460c-88f6-42913297b8c2 7 Lorne Gunter, ‘“Arrogance of Klein Tories as Bad as the Liberals”: What Possessed Our Premier to Say Extra Revenues Are None of Our Business?’ Edmonton Journal, 16 November 2005, A19. 8 James Baxter, ‘NDP Leader Sounds Alarm over Privacy Law Changes,’ Edmonton Journal, 9 May 2006, A6. 9 For a general account of the role of independent officers of the legislature in Canada, see Paul Thomas, ‘The Past, Present, and Future of Officers of Parliament,’ Canadian Public Administration 46, no. 3 (2003): 287–314. 10 Donald C. Rowat, The Ombudsman Plan: The Worldwide Spread of an Idea (Lanham: University Press of America, 1985), 183–5. 11 See the U.S. Ombudsman Association, ‘Governmental Ombudsman Standards,’ October 2003, http://usoa.non-profitsites.biz/documents/PDF/ References/USOA_STANDARDS.pdf 12 Philipzyk was a salesman and member of a real estate co-operative who lost income as the result of a penalty imposed by the co-operative’s ethics

50 Lorna Stefanick

13 14

15 16 17 18

19 20

21 22

23 24

committee. While the Ombudsman did not have direct jurisdiction over the co-operative, its incorporation and its by-laws were approved by government and as such fell under the Ombudsman’s jurisdiction. The Ombudsman found that the government had erred in approving both the incorporation and the by-laws; however, his subsequent recommendations for compensation to Philipzyk were ignored. Instead, the government set up a commission of inquiry to investigate the Ombudsman’s recommendation, and the Ombudsman was subpoenaed to appear. See Ulf Lundvik, The Ombudsmen in the Provinces of Canada (Edmonton: International Ombudsman Institute, 1982); and Karl A. Friedmann, ‘Controlling Bureaucracy: Attitudes in the Alberta Public Service towards the Ombudsman,’ Canadian Public Administration 19, no. 1 (1976): 60. Alex B. Weir, ‘The Legislative Ombudsmen,’ Alberta Law Review, 14 (1976): 256–65. Karl A. Friedmann, ‘The Public and the Ombudsman: Perceptions and Attitudes in Britain and Alberta,’ Canadian Journal of Political Science, 10, no. 3 (1977): 497–525. Weir, ‘The Legislative Ombudsmen.’ See, for example, Saskatchewan Office of the Ombudsman, Annual Report 1975 (Regina: 1975), 8. Interview with Pamela McHugh, senior counsel to the Ombudsman, 10 March 2006. Ibid. By this McHugh means that the Ombudsman always has the option of tabling a report in the legislature – an action that could possibly embarrass the government. Interview with an Alberta Opposition MLA, 30 May 2008. As in other jurisdictions, voter turnout is steadily declining in Alberta. The 2008 Alberta provincial election had the lowest voter turnout in the province’s history: 41 per cent. Indeed, that represented the lowest voter turnout in Canadian provincial government election history in the last fifty years. See CBC News, ‘Alberta Votes 2008.’ http://www.cbc.ca/canada/albertavotes2008/story/2008/03/05/edmturnout.html Information provided by McHugh in an e-mail of 17 May 2006. See Ombudsman of Alberta, ‘Special Report of the Ombudsman for Alberta Re: Complaints of the Lubicon Lake Indian Band’ (Edmonton: 1984). Re Ombudsman Act (1970), 72 W.W.R. 176 at 192–3, per Milvain C.J.T.D. Alberta, Office of the Ombudsman, Annual Report 1994 (Edmonton: 1994), 1.

Alberta’s Ombudsman 51 25 See Sexual Sterilization Act, S.A. 1928, c.37; and Jana Grekul, Arrey Krahn, and Dave Odynak, ‘Sterilizing the “Feeble-Minded”: Eugenics in Alberta, Canada, 1929–1972,’ Journal of Historical Sociology 17 (2004): 358–85. Adolf Hitler would later use a similar model of eugenics to sterilize undesirables. B.C. enacted a similar law, but in that province a judge had to be involved in the decision as well as the Eugenics Board. In B.C. between 1933 and 1973, four hundred people were sterilized. The Sterilization of Leilani Muir is a 1996 National Film Board film based on one Alberta woman’s experience. 26 Alberta, Office of the Ombudsman, Annual Report 1971, 20. 27 Ibid., Annual Reports 1984 to 1987. 28 Ibid., Annual Reports 1988 and 1989. 29 Ibid., Annual Report 2003, 6. 30 Ibid., Annual Report 2005, 4. 31 Ibid., Annual Report 1973, 15. 32 Ibid., Annual Reports 1984 to 1987. The average time it takes to resolve an issue is about five months. 33 Ibid., 2005–2008 Strategic Business Plan (Edmonton: 2005). 34 Ibid., ‘Directive 11: Alternative Complaint Resolution and Informal Resolution by Ombudsman Investigators,’ 24 May 2005. 35 Interview with McHugh, 10 March 2006. 36 A. Paul Pross, Group Politics and Public Policy (Toronto: Oxford University Press, 1986). 37 Interview with Ombudsman Gordon Button, 10 March 2006. 38 Ibid. 39 Alberta, Office of the Ombudsman, Strategic Business Plan 2005–2008. 40 Ibid., Annual Report 1997, 6. 41 This was accomplished by amending the act in 1972. Ibid., Annual Report 1972, 3. 42 Wendy Bernt and Stephen Owen, ‘The Ombudsman in Canada,’ in Righting Wrongs: The Ombudsman in Six Continents, edited by Roy Gregory and Philip Giddings (Amsterdam: IOS, 2000), 134. 43 Ombudsman of Alberta, ‘Special Report by the Ombudsman and Investigation Dealing with the Calgary Remand and Detention Centre’ (Edmonton: 1976), 4; telephone conversation with McHugh, 15 May 2006. 44 Alberta, Office of the Ombudsman, Annual Report 1996, 1. 45 ‘New Public Management’ refers to the 1980s public-sector reforms aimed at improving government efficiency by borrowing private-sector market management practices. 46 Alberta, Office of the Ombudsman, Annual Report 1995, 2.

52 Lorna Stefanick 47 Ibid., 1. 48 Roy Gregory and Philip Giddings, ‘Ombudsman and the New Public Management,’ in Righting Wrongs, ed. Gregory and Giddings, 427. 49 Ibid., 428. 50 Alberta, Office of the Ombudsman, Annual Report 2000, 3. 51 Ibid., Annual Report 2005, 2–3. 52 This ‘law’ is named after Sir Guy Powles, the first Chief Ombudsman of New Zealand. See ibid., Annual Report 1970, 12. 53 Ibid., Annual Report 1995, 1. 54 Ibid., Annual Report 1998, 6. 55 Ibid., Annual Report 2004, 4. 56 See Lorna Stefanick, ‘Outsourcing and Transborder Data Flows: The Challenge of Protecting Personal Privacy under the Shadow of the USA Patriot Act,’ International Review of Administrative Sciences 73, no. 4 (2007): 531–48; and Office of the Information and Privacy Commissioner of Alberta, ‘Public-Sector Outsourcing and Risks to Privacy’ (Edmonton: February 2006). http://www.oipc.ab.ca/ims/client/upload/Outsource_Feb_2006_corr.pdf 57 Alberta, Office of the Ombudsman, Annual Report 1996, 5. 58 ‘Social capital’ refers both to connections among individuals and networks of individuals. Robert Putnam argues that social capital is a key ingredient to a healthy democracy; without it, trust in government and civic participation declines. See Robert D. Putnam, Bowling Alone: The Collapse and Revival of American Community (New York: Simon and Schuster, 2000). 59 Interview with Button, 10 March 2006. 60 The goal of the SuperNet project was to connect to the Internet schools, hospitals, libraries, and provincial government buildings. In all, 4,200 connections in 429 communities were made to provide access to highspeed broadband Internet and network services. Rural Albertans were also provided with Internet connections for prices comparable to those paid by their urban counterparts. http://www.albertasupernet.ca 61 Interview with McHugh, 10 March 2006. 62 Re Ombudsman Act (1970), 72 W.W.R. 176 at 192–3, per Milvain C.J.T.D.

Recto Running Head 53

3 Fairness Inc.: Administrative Justice in B.C. – The Ombudsman Office at Thirty patrick j. smith

The British Columbia Legislative Assembly in 1977 passed its Ombudsman Act, creating Canada’s ninth provincial Office of Ombudsman. In doing so, B.C. was well aware that the notion of an independent officer ‘to investigate complaints from individuals who feel aggrieved by the administrative process of government’ was both long-standing and worldwide.1 Even though B.C. had a long and unique political history,2 it shared the Westminster model of parliamentary government in common with the other provinces – a model that had proven to work well with the Ombudsman institution. B.C. was a relative latecomer to the Ombudsman scene in Canada. Even so, the idea had been advocated there since the early 1960s by opposition members in the legislature. Social Credit premier W.A.C. Bennett, however, had ‘steadfastly refused to consider the idea.’3 So it is curious that it was a later Social Credit government, led by William Bennett – the son of W.A.C. Bennett – that brought forward the legislation to establish the Ombudsman. Since then, despite its late start (the first Ombudsman was not appointed until 1979), the B.C. OmbudsOffice has firmly established itself in the province. The first office holder, Dr Karl Friedmann, and his successors have contributed in their respective ways to the office’s development. Growth, however, has not been steady in terms of the size of the office or the scope of its activities. For instance, the government’s fiscal restraint measures in the early 2000s led to declines in the OmbudsOffice budget and staff and contributed to declines in the volume of complaints and overall visibility.4 Coverage in some areas of jurisdiction such as complaints with respect to municipal authorities had to be omitted, and several senior positions, such as General Counsel and Deputy Ombudsman,

54 Patrick J. Smith

had to be abolished; as a consequence, the current incumbent has had to ‘re-task’ the office in order to improve its visibility.5 This chapter considers the structural and procedural aspects of the B.C. OmbudsOffice as well as its performance over the years under the direction of its several office holders. Special attention will be paid to its contributions to the Ombudsman idea in Canada and worldwide. Powers and Jurisdiction of the B.C. Ombudsman Many scholars have described the origins of the Ombudsman idea and how it came to Canada.6 That background was provided in this book’s introductory chapter. It is pertinent, though, to recall Larry Hill’s comments. Hill maintained that the Ombudsman’s mission is multifaceted: to generate and respond to complaints against government administration; to use the office’s broad investigatory powers to conduct post-decision administrative audits; to form judgments that criticize or vindicate administrators; to seek solutions that conform with notions of administrative justice; and to report publicly its findings and recommendations – though it lacks the power to force changes to administrative decisions.7 Hill also provided a comprehensive description of an Ombudsman office: it is legally established, functionally autonomous, external to the administration, and operationally independent of the executive and legislature; it is also specialist, expert, non-partisan, normatively universalistic, client-centred (but not anti-administration), and accessible and visible to the public. Hill’s list is sweeping, so it is useful to apply it when studying the activities of the B.C. Ombudsman. It is worth noting that a 1977 report for the B.C. legislature that proposed an Ombudsman8 used many of the same criteria, though it posed them in slightly different terms. That report described the Ombudsman as (1) an officer of the legislature who would be appointed by that legislature, to which he or she would report, and who might be removed by the legislature;9 (2) appointed through a non-partisan procedure, and maintaining independence and impartiality in the conduct of the office; (3) having the authority to investigate complaints from individuals or on its own initiative (and as we will see, the B.C. Ombudsman has launched a number of important investigations);10 (4) having access to government premises and records, other than records relating to Cabinet proceedings; (5) able to complete an investigation without intervention by the legislature; (6)

Administrative Justice in B.C. 55

reporting annually to the legislature, and with the authority to issue more specialized reports;11 (7) having no power to enforce its recommendations, and instead relying on publication of instances of executive non-response; and (8) relying on its objectivity, competence, specialized knowledge, and prestige to influence government.12 Also, a few key sections of B.C.’s Ombudsman law deserve highlighting. Section 10 sets out, in extensive terms, the powers and duties of the Ombudsman over ‘matters of administration,’ including review of ‘a decision or recommendation made; an act done or omitted; or a procedure used.’13 Section 15 specifies the power to obtain information, including the authority to access virtually all records, including those listed as confidential. If the information is not provided, the documents may be subpoenaed, with persons summoned and placed under oath (subject to a five-year perjury sentence). So far, one person has been so charged; after a three-week trial, that person was acquitted.14 Section 16 includes provisions that protect individuals from retribution. This would be the situation, for example, where a contractor is denied work after making a complaint to the Ombudsman. Also, the provision prohibits the penalizing of anyone who gives evidence or assistance to an Ombudsman investigation. Section 23 outlines the procedures after an investigation and finding. The latter can include that a matter is ‘contrary to law,’ ‘unjust, oppressive or improperly discriminatory,’ ‘based in whole or part on a mistake in law or irrelevant grounds,’ ‘[was] related to the application of arbitrary, unreasonable or unfair procedures,’ or ‘[was] otherwise wrong.’ In these circumstances the B.C. Ombudsman can recommend that various ‘steps be taken’; thus, as in most other jurisdictions, B.C. does not allow the Ombudsman to order remedial action. A Code of Administrative Justice’ (see Appendix 3B) has been developed (mainly through the efforts of former Ombudsmen Friedmann and Kushner) that summarizes the Ombudsman’s procedure for handling complaints. Other sections of the act emphasize the confidentiality of the Ombudsman’s investigations (s. 9), notice to an authority in an attempt to reach a settlement (s. 14), and the opportunity for an authority to make representation (s. 17). As Kim Carter has noted, all of these provisions are intended to facilitate dispute resolution processes.15

56 Patrick J. Smith Table 3.1 British Columbia’s Ombudsman office holders Ombudsman

Position

Appointed

Term ended

Karl Friedmann Peter Bazowski Stephen Owen Brent Parfitt Dulcie McCallum Brent Parfitt Howard Kushner Kim Carter

Ombudsman Acting Ombudsman Ombudsman Acting Ombudsman Ombudsman Acting Ombudsman Ombudsman Ombudsman

2 July 1979 2 July 1985 1 September 1986 11 February 1992 4 August 1992 1 May 1999 2 June 1999 15 May 2006

30 June 1985 31 August 1986 10 February 1992 3 August 1992 30 April 1999 1 June 1999 14 May 2006 Present

Leadership and Performance A central feature of any OmbudsOffice is that it must be accessible and visible. In B.C., this feature – against the wishes of the government of the day – meant establishing offices in both Vancouver and Victoria.16 Other requirements included ground-level and wheelchair accessibility, toll-free telephone lines, sight- and hearing-assisted provisions, and connections by e-mail and fax as well as via government agents’ offices in more remote communities. More recently, the imperative of accessibility has also meant the deployment of ‘mobile offices.’17 The actual operations of the B.C. OmbudsOffice have been affected by what might be termed ‘collateral events’ in the province – both budgetary and political. As the following tables indicate, the number of complaints, the size of the staff to deal with complaints, and the budget to support administrative justice in the province have all fluctuated considerably, presenting a series of challenges for the OmbudsOffice over the years. Despite these challenges, the B.C. OmbudsOffice has shown a strong capacity to adapt. The various incumbents and their staffs have added considerably to the institutionalization of the Ombudsman ideal in B.C. Though the province was relatively late in establishing its OmbudsOffice, it got off to a fine start with the appointment of its first office holder. Prior to his appointment, Dr Karl Friedmann had established his reputation as a political science scholar specializing in the study of Ombudsmen.18 Over the years, five individuals have served as Ombudsman and two others as Acting Ombudsman (one of these, Brent Parfitt, served twice in that capacity) (see Table 3.1). Ombudsman is a demanding position that requires a multi-talented person (see

Administrative Justice in B.C. 57 Table 3.2 Number of complaints received by the B.C. Ombudsman annually, 1980–2006

Year

Open at beginning of year

Total complaints received

Total closed at intake

Total closed by officers

Total closed

Open at end of year

2007* 2006 2005 2004 2003 2002 2001 2000 1999 1998 1997 1996 1995 1994 1993 1992 1991 1990 1989 1988 1987 1986 1985 1984 1983 1982 1981 1980

452 387 405 278 361 605 964 1,191 1,779 1,755 1,509 1,791 2,491 4,087 2,339 1,881 – 1,572 1,451 986 949 1,098 1,428 1,187 1,333 1,133 963 –

6,870 6,438 7,662 8,563 9,855 10,281 11,048 10,905 11,865 13,269 15,195 16,596 19,213 23,390 24,462 16,496 15,924 14,580 12,936 14,184 12,712 11,012 11,308 11,462 9,534 8,179 4,935 3,840

4,317 5,799 6,772 7,821 7,794 8,516 8,341 8,841 9,095 9,622 10,290 5,373 – – – – – – – – – – – – – – –

2,000+ 2,143 1,855 1,619 2,127 2,751 2,916 2,816 3,634 4,161 5,350 6,478 5,712 – – – – – – – – – – – – – – –

6,460 7,654 8,391 9,948 10,545 11,432 11,157 12,475 13,256 14,972 16,768 11,085 11,667 – 16,019 15,494 14,451 12,815 13,704 12,406 11,185 12,018 11,343 9,762 7,979 4,765 3,941

452 387 405 278 361 605 964 1,191 1,779 1,755 1,509 4,087 2,491 – 2,339 1,881 – 1,572 1,466 1,255 949 1,098 1,428 1,187 1,333 1,133 963

*The data for 2007 were provided by Kim Carter, B.C. Ombudsman, on 7 July 2008. The full figures for 2007 will be in the 2007 Annual Report (expected release December 2008).

Appendix 3A). Each of B.C.’s Ombudsmen has brought his or her talents and orientation to the position, contributing to the institutionalization of the idea of administrative justice – and the Ombudsman – in the province. As shown in Table 3.2, there was strong and steady growth in the number of complaints made to the OmbudsOffice during its early years, from fewer than 4,000 to well over 11,000 by 1984. This reflected

58 Patrick J. Smith

the efforts of the first office holder (Friedmann) and his staff as much as it did the obstreperousness of British Columbians. Of these early complaints, 98.97 per cent had been ‘closed’ by the final full year of Friedmann’s term. During Stephen Owen’s term the total number of complaints received grew from 12,712 in 1987 to 15,924 in 1991 (his last full year); 68,870 of the total of 70,341 received complaints (97.91 per cent) were ‘resolved.’ Technically, the B.C. OmbudsOffice considers a matter ‘resolved’ when there is an offer or agreement by an authority to take action that the OmbudsOffice views as reasonable and as addressing fairly the issue being investigated. This usually occurs before the OmbudsOffice has made a formal finding or recommendation.19 As indicated in Table 3.3, the increased caseload was handled with only a very modest increase in staff, from an initial 30 to 35 FTEs (full-time equivalents) under Friedmann to never more than 38 FTEs during Owen’s term. One of Owen’s contributions was to further institutionalize the office so that it was more than just a notion in the public mind. To that end, though he produced no special reports (Friedmann produced fifteen), he did issue several public reports (nos. 5 to 30)20 on diverse issues such as the following: ‘Criminal Records Checks’ (no. 5), ‘Skytrain’ (no. 8), ‘Aquaculture and the Administration of Coastal Resources’ (no. 15), ‘Septic System Permit Processes’ (no. 18), ‘Administrative Favouritism in the Ministry of Forests’ (no. 20), ‘Administration of the Residential Tenancy Act’ (no. 27), and ‘Court Reporting and Court Transcription Services’ (no. 30). Each public report represented a significant contribution to consolidating the Ombudsman idea in B.C. This was especially evident in 1991 in Public Report no. 28, ‘The Sale of Promissory Notes in British Columbia by Principal Group Ltd.’ Certain activities under the purview of the B.C. Securities Commission had placed individual investors at risk. This public report led to legislative amendments – the Securities Amendment Act, 1995, and the Vancouver Stock Exchange Amendment Act, 1995 – that changed and clarified provisions so as to protect individuals investing in short-term promissory notes and commercial paper in the province. Under Dulcie McCallum’s tenure (1992–9), complaints grew to a peak of 24,462 in 1993 and 23,390 in 1994, then dropped back to a ‘more normal’ B.C. average of 13,269 in her final full year (1998). During her tenure the Ombudsman staff grew from 43 in 1992 to a high of 53 FTEs in 1996 before settling back to 50 towards the end of her term (see

Administrative Justice in B.C. 59 Table 3.3 Number of employees and full-time equivalents – (FTEs) Year

# of employees

FTEs

2007 2006 2005 2004 2003 2002 2001 2000 1999 1998 1997 1996 1995 1994 1993 1992 1991 1990 1989 1988 1987 1986 1985 1984 1983 1982 1981 1980

45 47 40 48 53 64 64 64 62 – – 50 53 50 49 43 38 40 40 43 40 40 40 – – – – 35

33 34 30 38 50 50 50 50 50 50 50 53 50 50 43 38 38 38 38 38 38 32 32 37 43 35 25 35

Table 3.3). Despite the increase in staff and having the highest number of complaints during 1993 and 1994, of the 87,663 complaints investigated between 1994 and 1998, only 67,748 – that is 77.3 per cent – were ‘solved’ during the year. McCallum’s public reports focused on people in institutional care. In this regard she made a significant contribution to administrative fairness and redress: ‘Abuse of Deaf Students at Jericho Hill School’ (1993, no. 32), ‘Riverview Hospital for the Mentally Ill’ (1994, no. 33), ‘Youth Custody Centres’ (no. 34); ‘Fair Schools’ (1995, no. 35), ‘Child Protection’ (1998, no. 36), and ‘Confinement of the Sons of Freedom Doukho-

60 Patrick J. Smith

bor Children’ (1999, no. 38). In addition, she covered other hot-button issues of the day, including ‘Administrative Fairness of the Process Leading to the Clayoquot Sound Land Use Decision’ (1993, no. 31) and ‘Unfair Public Hearing Processes’ (1996, Special Report no. 18). The term of B.C.’s fourth Ombudsman, Howard Kushner, which came after a decade of leftist New Democratic governments (1991–2001) was mostly under the more rightist Liberal administration of Premier Gordon Campbell. One of the priorities of the Campbell government’s New Era Document (NED) was a budgetary exercise that included significant cuts to provincial budgets, including those of the Independent Officers of the Legislative Assembly (except for the relatively limited budget of the B.C. Conflict of Interest Commissioner).21 The cuts to the B.C. OmbudsOffice were 35 per cent in each of three years, which led to significant challenges for the incumbent and his staff, including restrictions on areas covered by the office, longer wait times to even begin looking at complaints, and the closing of the Vancouver office and its replacement by a series of ‘mobile clinics.’ From an initial staff complement of 50 FTEs and an annual budget of $4,663,000 in 1999–2000 (Table 3.5), there were only 30 FTEs (a 40 per cent drop in staff) and a budget of $3,097,000 in 2005. Since then there have been minor increases in budgets and FTEs.22 As it turned out, the impact of the government’s fiscal restraint measures was most noticeable in the decreased visibility of the B.C. OmbudsOffice. Complaints dropped from a high of 24,500 during McCallum’s term to something closer to 8,000 to 10,000 near the end of Kushner’s. Even so, during the latter’s term, the office published several significant special reports: ‘Broken Glass, Broken Trust’ (no. 25, 2004, on the need for trust between the City of Surrey and its citizens), ‘Self-Governance in the Health Professions’ (no. 24, 2003), ‘Income Assistance’ (no. 28, 2006) and ‘The Power of an Apology: Removing the Legal Barriers’ (no. 27, 2006). Like Friedmann and McCallum, Kushner expressed some interest in a second term. However, there was no legislative consensus on this option, and Kim Carter was chosen to replace him. Indeed, no B.C. Ombudsman has ever been reappointed even though Section 3(1) of the act allows for a second six-year term. As Tables 3.4 and 3.5 show, the costs of the B.C. OmbudsOffice have fluctuated from an initial figure of just under $2.4 million in 1980–1 to a low of $1.62 million in the middle of Karl Friedmann’s term, and down further to just over $1 million for Acting Ombudsman Peter

Administrative Justice in B.C. 61 Table 3.4 Budget estimates Year

Salaries

Operating expenses

Total

1986–87 1985–86 1984–85 1983–84 1982–83 1981–82 1980–81

$631,203 955,405 1,251,497 1,110,744 1,144,295 1,263,259 1,531,555

$387,000 504,720 508,843 508,000 793,725 767,897 864,529

$1,018,203 1,460,125 1,760,350 1,618,744 1,938,020 2,031,156 2,396,084

Table 3.5 Budget details, 1993–2007 ($000)

Year 2006–07 2005–06 2004–05 2003–04 2002–03 2001–02 2000–01 1999–00 1998–99 1997–98 1996–97 1995–96 1994–95 1993–94

Actual capital expenditure

Capital budget

Actual operating expenditure

Operating budget

63 35.5 30.5 27 58 59 52 48 None prior to 2000

65 65 65 62 59 59 54 54

3,761 3,326 3,093 4,086 4,516 4,750.6 4,530 4,663 4,680 4,680 4,806 4,996.5 4,586 4,266.4

3,805 3,388 3,118 4,086 4,548 4,765 4,610 4,663 4,829 4,807 4,819 5,020 4,641 4,448

Bazowski. Staff levels and complaints grew during the term of Stephen Owen, so that by the first full year of B.C.’s third Ombudsman, Dulcie McCallum, the budget for the office had been set at $4.448 million. Financial support for the B.C. Ombudsman peaked in 1995–6, when it enjoyed 53 FTEs and a budget just over $5 million. By the mid–2000s, as noted earlier, cutbacks had left the office back at just over $3.1 million, with 30 FTEs – similar to the staffing and funding when the office began full operations in 1980.

62 Patrick J. Smith

Most staff employees have a Master’s degree in public administration, political science, social work, or law; several others have a clerical or policing background. Ombudsman office holders have included academics, lawyers, and a judge. The current B.C. Ombudsman, Kim Carter, served as Chief Military Judge for Canada. The intake stage, when complaints are first dealt with, seeks to prevent ‘buck passing,’ preferring instead to locate other avenues for resolution even when the provincial Ombudsman has no jurisdiction (see Table 3.6). As there is no federal Ombudsman, a good deal of intake work tends to involve federal matters. Indeed, during the latter half of the 1980s and the early 1990s, of the approximately 15,000-plus complaints annually, between 5,000 and 6,000 (about one-third) were ‘non-jurisdictional,’ with the vast majority of these being ‘federal.’ That remains the case, even with the drop in the total number of complaints during the middle of the first decade of the twenty-first century. Given that the federal government is the largest generator of non-jurisdictional complaints at the provincial level, the need for a federal Ombudsman is clear – a point that provincial Ombudsmen make to Ottawa on a regular basis. If the complaint is within its jurisdiction and is not considered frivolous or vexatious, the B.C. OmbudsOffice notifies the organization that is the target of the complaint. Given that one of the primary motives of OmbudsOffices is to ensure ‘better administration,’ one of the first tasks is to determine the facts for the purpose of seeking a resolution. This often involves changing administrators’ attitudes and bargaining for an acceptable and just resolution. The original administrative decision is often found to be fair and just; when it is not, recommendations for change are provided to the government authority; when the response to this is not acceptable, the recommendations are sent on to the legislature. It is important to remember that the OmbudsOffice can only ‘make recommendations’; it cannot not order remedial administrative action. At times, the Ombudsman must rely on the power of publicity to change attitudes. This can occur through special or public reports, through annual reports, or through more informal ‘stories’ that find coverage in the media. The current B.C. Ombudsman, Kim Carter, has described the powers of the office as ‘sound and light.’23 Most complaints relate to the province’s ministries – from a high of 75 per cent of all complaints in 1994 to a low of 40 per cent in 2006–7 (see Table 3.7). Complaints about provincial commissions, boards, and

Administrative Justice in B.C. 63 Table 3.6 Complaints/inquiries closed by type Year

Total closed

Jurisdictional

Non-jurisdictional

Unproclaimed*

1992 1991 1990 1989 1988 1987 1986 1985 1984 1983 1982 1981 1980

16,019 15,494 14,451 12,815 13,704 12,406 11,185 12,018 11,343 9,762 7,979 4,765 3,941

9,440 9,361 7,862 7,318 7,143 6,279 5,439 5,834 5,707 – 4,128 2,757 1,888

6,085 5,760 6,197 5,265 6,035 5,853 5,432 5,872 5,282 – 3,458 1,724 1,969

475 373 392 232 526 274 314 312 354 – 393 284 340

* ‘Unproclaimed’ refers to authorities over whom the B.C. Ombudsman’s jurisdiction was not established until 1993 (including hospitals and school boards).

Crown corporations have grown over the past decade to 17 per cent of all complaints in 2007; similarly, complaints with respect to health authorities have grown during the early 2000s. The percentage of complaints about municipalities, local school boards, and professional associations has remained fairly constant – collectively at under 10 per cent. The ‘contracting out’ of a range of traditional governmental activities has complicated the work of independent officers of the B.C. legislature. This poses a major challenge for the Ombudsman in the new century. The B.C. Ombudsman has the power to investigate actions taken by the government before the passage of the B.C. Ombudsman Act. The most notable of these cases involved a 1954 Workers Compensation Board decision that denied compensation for the spouse of an individual who drowned in the Strait of Georgia. The denial involved a woman (Mrs Splett) who had to raise her three daughters on her own without assistance. Sensing a continuing ‘little injustice,’ the first B.C. Ombudsman took up her case and found that the company her husband had worked for was no longer operating, though some of its former directors were still alive; he also found evidence that he had indeed been working at the time of his accident. This latter point had

Year

Total received

Total closed*

Ministries

Commissions & boards

Crown corps

Municipalities

Professional Schools & Health associations school boards authorities Other

2006 2005 2004 2003 2002 2001 2000 1999 1998 1997 1996 1995 1994 1993

6,438 7,662 8,563 9,855 10,281 11,048 10,905 11,865 13,269 15,195 16,596 19,213 23,390 24,462

6,460 7,654 8,391 9,948 10,545 11,432 11,157 12,475 13,256 14,972 16,768 11,085 11,667 –-

57 59 61 60 58 56 57 60 – 70.9 69.8 74.2 76.7 –

16 17 15 16 15 15 16 18 – 10 13 11.3 .2 –

10 9 11 9 10 11 9 8 – 6.8 5.8 5.5 6.8 –

4 3 3 4 5 5 5 4.8 – 3.5 3.1 1.2 .1 –

4 2 2 3 4 3 3 3 – 3 3.3 2.1 1.2 –

2 2 2 2 2 2 2 3 3 – 2.8 2.7 3.8 3.1

5 6 4 4 4 5 3 3 – 1.9 1 1.3 11.8 –

2 2 2 3 2 3 4 0.2 – 1.1 1.3 0.6 .1 .01

* Since July 2003 the B.C. Ombudsman office ‘closings’ may include several for any particular ‘intake.’ As a matter is dealt with, it is ‘closed’ even while other aspects of an investigation may continue. That may mean there may be more closings than intakes in any given year since 2003–4.

64 Patrick J. Smith

Table 3.7 Complaints closed by the Ombudsman, 1993–2006 (Columns 4–11, in %)

Administrative Justice in B.C. 65

been rejected in the 1954 WCB ruling. Thus the Ombudsman recommended that the pension be paid for thirty years with compounded interest. While she was glad of the compensation, Mrs Splett was happiest that an injustice had been redressed by the Ombudsman’s action.24 B.C. Ombudsman’s Contributions to the Ombudsman Idea Annual Reports Almost all OmbudsOffices issue annual reports. The B.C. Ombudsman’s contribution here has been to put these reports out in ‘plain English’ and (for most years) in a form that is readily accessible. The initial Ombudsman included cartoons by a local political cartoonist in his reports, which were published in a format that invited their use. In later years, Dulcie McCallum released her reports in newspaper format and issued around 10,000 copies per year. B.C.’s fourth Ombudsman reversed this particular initiative. The current OmbudsOffice makes much more use of an open website (http://www.ombudsman.bc.ca). Today, B.C. Ombudsman’s various reports from past years are readily accessible online. In addition, a secured online complaint form is available for members of the public to articulate their complaints. Initiate Own Investigations Many Ombudsman statutes permit the Ombudsman to undertake its own investigations, though not all office holders make use of this power. In B.C., since the days of the first Ombudsman, this provision of the act has often been utilized. For example, an Ombudsman who reads or hears in the media about abuse in Youth Corrections (or another problem) need not wait for an official complaint; he or she can launch an investigation proactively. As a result of several proactive reports over the years, Youth Corrections administrative practices have been changed. Similarly, complaints reported in the media about sheriff’s practices and the beating of prisoners in transit led the Ombudsman to act without waiting for a specific complaint; administrative practices were altered as a result. A more recent example, from 26 June 2008, involved a press release in which Ombudsman Carter invited those with complaints about long-term care facilities to contact her office.25 By taking the initiative, the B.C. Ombudsman can ensure a more complete bureaucratic audit.

66 Patrick J. Smith

Systemic Reforms versus Complaint-Driven Reform B.C.’s first Ombudsman, Karl Friedmann, recognized that during the early history of such offices there is often initial ambivalence – even bureaucratic hostility – towards the Ombudsman’s oversight function. So he sought to clarify the Ombudsman’s role by preparing and distributing ‘Running Things Is Sometimes Hard: A Manual of Ombudsman Investigation Procedures for Public Officials in B.C.’ (1983). This manual explained to potentially sceptical public servants how the office would be carrying out its oversight tasks and the tests it would be applying in its findings. The second Ombudsman, Stephen Owen, went a step further by emphasizing administrative behaviour that was ‘good’ rather than listing the ministries that had created the most problems for the office and the public. The idea was that positive ‘best practice’ models would be a better way to entice appropriate administrative interactions with the B.C. public. It was also thought that this measure might lead to a decline in Ombudsman caseloads. While not initially true – complaints grew from 15,000-plus in 1991 to a peak of just under 24,500 in 1994 – there has been a steady decline since that year, at least partly a by-product of Owen’s initiation of ‘systemic’ investigations. Of course, this dip in complaints could be partly attributed to other factors, especially the budgetary and staff cuts of the past decade. Supreme Court of Canada Case The powers of the B.C. Ombudsman were challenged by the B.C. government in BCDC v. Friedmann, when a New Westminster restaurant owner requested assistance from the Ombudsman in his dealings with the B.C. Development Corporation (BCDC), a Crown corporation. The owner had understood that his restaurant, King Neptune, would be part of a Fraser River beautification program jointly sponsored by the City of New Westminster and BCDC. When he found out that he was not included and that his thirty-five-year-old business employing seventy-five people was at risk, he requested information from BCDC but was refused it. The same result occurred when the B.C. Ombudsman asked on the owner’s behalf: BCDC refused access on grounds that the Ombudsman had no jurisdiction because the matter was of a ‘purely commercial nature,’ not ‘administrative.’ Another argument for denial was the need to protect corporate secrecy; to this, the

Administrative Justice in B.C. 67

Ombudsman noted that about 40 per cent of government business is ‘commercial.’ The B.C. Court of Appeal, in a 2–1 decision, agreed with the B.C. Ombudsman and ordered BCDC to release its documents to the OmbudsOffice. BCDC appealed this decision to the Supreme Court of Canada (SCC). The B.C. government sought other provincial interveners to support its appeal, without success. Meanwhile, Friedmann had three other provincial Ombudsmen seek leave to intervene – three were able to do so. Central to the case was this question: ‘What are “matters of administration”?’ The SCC, in a unanimous decision, determined in favour of the B.C. Ombudsman, which meant that the Ombudsman could investigate virtually ‘anything that governments do’ except Cabinet deliberations/decisions and legislative acts. Even more important, the B.C. government’s challenge to its own Ombudsman Act set a precedent that clarified the powers of the Ombudsman not just in the province but across most of Canada, as well as in other Commonwealth and common law settings. This decision continues to help define the Ombudsman’s duties; for example, the New Brunswick Ombudsman referred to the BCDC decision to justify his authority in 2008 to investigate his government’s intent to change French immersion in anglophone schools26 (see New Brunswick chapter). While the decision was significant for all OmbudsOffices in Canada, the victory had costs for Karl Friedmann. More than any other, this case probably settled the question of his reappointment. Friedmann wanted to be an ‘activist’ Ombudsman and to be reappointed.27 He had to settle for the former; political backlash played a role in the government letting his appointment lapse. The premier filled the vacant office with an Acting Ombudsman (Peter Bazowski), who served for just over a year. When it became clear that Bazowski would not receive all-party approval, a second full Ombudsman selection process was undertaken and Stephen Owen was selected with all-party support. Code of Administrative Justice One of the major contributions to the Ombudsman idea globally has been the B.C. Ombudsman’s work on a Code of Administrative Justice. Originally an initiative of Friedmann, the code was extensively developed by his successors, especially by Howard Kushner and his senior staff. Friedmann’s Code of Administrative Justice – originally contained in his 1982 Annual Report, and revised subsequently in 1984 and

68 Patrick J. Smith

particularly in 2003 – provides a clear basis for understanding how the OmbudsOffice works. More important, it sets out the principles according to which such an office should function. Friedmann felt that if the Ombudsman is to act as ‘a conscience of the state,’ everyone must understand what constitutes fair and just bureaucratic action and, conversely, what is arbitrary and contrary to law. It is also essential that administrators find the actions of the OmbudsOffice to be fair and just. This more ‘systemic approach’ was designed to ensure a broad review of administrative practices that were found wanting. The actual work on such systemic reforms was central to Owen’s term and has continued to be a major feature of the OmbudsOffice. If the Ombudsman requires rationality (as opposed to arbitrary action) in bureaucratic decision making, then a rational scrutiny test should be provided for any actions taken by the Ombudsman. This means establishing a rational dialogue with administrators and the public. Doing so also ensures greater accountability to the legislature to which the Ombudsman reports. What does it mean when the Ombudsman says that something is oppressive? What are ‘irrelevant grounds’ and ‘unfair procedures’? The basic elements of this code are presented in Appendix 3B as it was originally spelled out in the early 1980s with its emphasis on the actual complaints process. In 2000 and 2003 there was a substantial reworking of the underlying principles by Howard Kushner, with considerable support from the B.C. OmbudsOffice staff, especially the General Counsel at the time, Greg Levine. This initially was reflected in the 2000 Annual Report, which included an extensive discussion on ‘how [the office] interprets [its] discretion to investigate.’ In 2003, in Public Report no. 42, ‘Code of Administrative Justice,’28 the B.C. Ombudsman outlined – through a restatement of the key terms and principles involved under each provision of Section 23(1) (Ombudsman Act, RSBC 1996, c. 340), illustrated with hypothetical examples – what was meant by each provision for a finding of maladministration. The Political Environment of the B.C. Ombudsman Alongside the day-to-day operations, the B.C. OmbudsOffice exists in a broader political environment. Friedmann once suggested that there are always four ‘publics’ with which the Ombudsman must deal: 1 Complainants. These are the people who present their concerns about administrative wrongs and who are seeking justice, fairness,

Administrative Justice in B.C. 69

and redress. In B.C., as we have seen, complaints began in 1980 at about 4,000 annually, then ramped up to almost 25,000 in 1994 before falling back to current levels of around 8,000. This is roughly double the number of complaints during the initial years, and with the same basic level of staffing as the office initially had. Complainants have a high level of confidence in the OmbudsOffice, even when that office finds insufficient grounds for changed administrative action. The mere existence of a trusted and independent authority – one that takes individual concerns of maladministration seriously and investigates them – represents a sufficient degree of justice for many complainants. 2 Public relations. It is essential for any new OmbudsOffice to ensure that the public knows about it. The significant drop in the level of complaints to the B.C. OmbudsOffice suggests that more is at play than simply a less disgruntled provincial populace. A 2006 survey found that the visibility of the B.C. OmbudsOffice – after twentyeight years – as a recognized ‘go to’ place for public complaints about governmental decisions was quite low: fewer than one-third of those surveyed identified it as such. This is interesting, given the high satisfaction among those who do use the Ombudsman’s services. In any case, the current Ombudsman has made reversal of this low visibility one of her key goals.29 As discussed earlier, greater reliance on modern electronic technology – the Internet, the Ombudsman’s website, and online complaint forms – is part of a strong effort to be better known. 3 Bureaucratic relations. It is not unusual for studies to find some anxiety among public servants – at times bordering on resistance – with respect to the Ombudsman’s innovative role. In general, over time, as the OmbudsOffice works with bureaucrats to ensure administrative fairness and justice, and as many of the actions taken by civil servants are found to be fair, the initial scepticism changes to acceptance and support. The most successful OmbudsOffices, such as in B.C., have sought broader systemic solutions to prevent ongoing complaints about bureaucratic action. For the most part, the B.C.’s bureaucratic ‘public’ has developed a positive working relationship with the OmbudsOffice. Much of the dialogue between the Ombudsman and B.C. civil servants is rooted in the manual ‘Running Things Is Sometimes Hard,’ mentioned earlier. Also relevant here have been various iterations of the Code of Administrative Justice, especially the ‘dialogue’ (with bureau-

70 Patrick J. Smith

crats as with interested publics) undertaken in the 2000 Annual Report, as well as Public Report no. 42, ‘2003 Code of Administrative Justice.’ 4 Political relations. This ‘public’ is important because the OmbudsOffice is an Office of the Legislative Assembly, one that seeks to assist the legislature in its executive oversight function. B.C. has had a chequered history in this regard. The largest challenges have been budgetary cutbacks, which have clearly hampered the OmbudsOffice in its assigned tasks – though these have generally been across-the-board cuts and have equally affected other independent officers and government authorities. A second problem area has been reappointment: in B.C., no Ombudsman who has wanted a second term has ever been granted one, though the act allows it. Friedmann’s success at the Supreme Court of Canada came at a personal cost, which the government of the day extracted. This suggests that relations between the Ombudsman and politicians remain a point of tension. One might argue that while most of the work of any Ombudsman offers support for better administration and is done quietly, in any given term an effective Ombudsman will need to ‘get up the nose’ of the government of the day on some issues when there is too little response to queries and complaints. B.C.’s Auditor General, John Doyle, has recently marked out his territory in a way that will cement his visibility in the public’s mind: in his first annual report he took on the Campbell government for its removal of three significant parcels of land from a tree farm licence, allowing those parcels to be sold privately for recreational/development use.30 Doyle called the decision ‘ill informed.’ In response, the Forestry Minister criticized the Auditor General, calling his report ‘offensive’ and accusing him of being ‘unprofessional’ and ‘lacking in integrity.’ 31 The ‘political brawl’ clearly has established in the public’s mind that John Doyle and his office’s relationship to government will be one of independence. Editorials across the province made this point,32 underscoring the ‘cordial but not cozy’33 relationship that independent officers need to represent. One solution to the reappointment issue – which generally seems tied to embarrassing findings or to past political disagreements – might be a single term of longer than six years. The role of opposition parties in such matters is limited. The opposition can, as it did in the

Administrative Justice in B.C. 71

1990s, block an appointment that it considers too favourable to the government of the day. Beyond that, its capacity to influence is more of a ‘watching brief.’ Clearly, for the B.C. Ombudsman, the ‘political public’ remains important, even after three decades. Conclusions Samuel P. Huntington has argued that new organizations and their procedures need to become institutionalized in order to succeed.34 It is possible to measure the ‘degree’ of such institutionalization by examining both internal and external/environmental criteria. The internal criteria are structural and include complexity and coherence; the external criteria – autonomy and adaptability – represent the capacity of an organization to defend itself. After almost thirty years, it is possible to conclude that the B.C. Ombudsman has become firmly fixed in the province, has developed a high degree of public trust, has developed a good working relationship with public bureaucracies, and is largely perceived by politicians as vital to holding the executive to account. In short, the Ombudsman idea has become ‘institutionalized,’ as has generally happened throughout Canada. The ongoing institutional health of the B.C. OmbudsOffice is a tribute not only to the contributions of the early incumbents and their staffs, but also to the later Ombudsmen who have had to trade on some of that heritage to uphold the office under some duress. Budgetary and staff cutbacks have undermined the B.C. OmbudsOffice’s efforts to be better known and to serve the public; and the reappointment issue has weakened its institutional memory and organizational capacity. Nevertheless, the experience of B.C. OmbudsOffice highlights the contributions to administrative justice that this institution can make.

NOTES 1 See Donald C. Rowat, ‘An Ombudsman Scheme for Canada,’ Canadian Journal of Economics and Political Science 28, no. 4 (1962): 543–56 for an early Canadian proposal for consideration of an ombudsman office. By early 2007 the International Ombudsman Institute, located at the University of Alberta, had recorded 125 National/Territorial OmbudsOffices as

72 Patrick J. Smith

2

3 4 5 6

7

8 9

10 11

12

members. http://www.law.ualberta.ca/centres/ioi/Links/WorldwideOffices.php For overviews of government and politics in B.C., see R. Kenneth Carty, ed., Politics, Policy, and Government in British Columbia (Vancouver: UBC Press, 1996); and Rand Dyck, Provincial Politics in Canada, 3rd ed. (Toronto: Prentice Hall Canada, 1996), 569–643. Ulf Lundvik, The Ombudsmen in the Provinces of Canada (Edmonton: International Ombudsman Institute, 1981), 22. I am grateful to Greg Levine for reminding me of this point. B.C. Ombudsman, Kim Carter, at Simon Fraser University, 13 March 2007. See such sources on the Ombudsman as the following: Gerald E. Caiden, ed., International Handbook of the Ombudsman, vol. 1, Evolution and Present Function (Westport: Greenwood, 1983); idem, ed., International Handbook of the Ombudsman, vol. 2, Country Surveys (Westport: Greenwood, 1983); Roy Gregory and Philip Giddings, eds., Righting Wrongs: The Ombudsman in Six Continents, International Institute of Administrative Sciences, vol. 13 (Amsterdam: IOS, 2000); Donald C. Rowat, The Ombudsman, 2nd ed. (Toronto: University of Toronto Press, 1968); and idem, ed., The Ombudsman Plan: Essays on the Worldwide Spread of an Idea, rev. 2nd ed. (Lanham: University Press of America, 1985). See, for example, Larry B. Hill, The Model Ombudsman: Institutionalizing New Zealand’s Democratic Experiment (Princeton: Princeton University Press, 1976). Wes Black, ‘An Ombudsman for B.C.,’ Report for the B.C. Legislative Assembly (Victoria: 1977). If the legislature is not sitting, or when an office falls vacant because of no appointment decision by a legislature, the premier may fill the position on an acting basis subject to subsequent legislative approval. On this matter, see several of the B.C. Ombudsman’s Special Reports to the Legislative Assembly. http://www.ombudsman.bc.ca/reports There have been twenty-nine special reports on subjects, ranging from Statutory Officers of the Legislature (#21) and Self-Government in the Health Professions (#24) to Public Apologies (#27) and Income Assistance Complaints (#28). There have also been forty-four Public Reports on numerous topics, including Traffic Camera Fines (#44), a B.C. Code of Administrative Justice (#42), and Abuse of Deaf Children at a B.C. school for the deaf (#32). The setting of the Ombudsman’s salary to the level of the Chief Provincial Judge helps establish the independence and prestige/standing of the

Administrative Justice in B.C. 73

13 14 15 16 17 18

19 20 21

22 23 24

25

office. Office of the Chief Provincial Judge, Vancouver, 22 February 2007. The Chief Provincial Judge’s salary is set at the rate of all provincial judges (198,000 in 2007), with a 12 per cent differential for the additional responsibilities of the office. With thanks to Dan DeBou, Chief Provincial Judge, who also serves as the Manager of Finance and Administration of the B.C. Provincial Court. See B.C. Ombudsman Act, RSBC 1996, c.340 – 23 August 2004. As noted by Brent Parfitt, Deputy Ombudsman, B.C., in discussion with author at Simon Fraser University, March 2002. Kim Carter, B.C. Ombudsman, presentation at Simon Fraser University, 7 July 2008. Dr Karl Friedmann, B.C.’s first Ombudsman, in reflections on the office with author at Simon Fraser University, February 1990. Presentations by B.C. Ombudsman Kim Carter at Simon Fraser University, 13 March 2007 and 7 July 2008. See, for example, Karl A. Friedmann, Complaining: Comparative Aspects of Complaint Behavior and Attitudes toward Complaining in Canada and Britain (Beverly Hills: Sage, 1974); idem, ‘Controlling Bureaucracy: Attitudes in the Alberta Public Service Towards the Ombudsman,’ Canadian Public Administration 19, no. 1 (1976): 51–87; and idem, ‘The Public and the Ombudsman: Perceptions and Attitudes in Britain and in Alberta,’ Canadian Journal of Political Science 10, no. 3 (1977): 497–525. With thanks to Kim Carter, B.C. Ombudsman, 29 November 2008. These several reports are available online. See the B.C. Ombudsman’s website: http://www.ombudsman.bc.ca The budget of B.C.’s Conflict of Interest Commissioner, the Honourable H.A.D. (Bert) Oliver, QC, was essentially ‘left alone,’ as the commission consisted of the commissioner (as a ‘part-time’ legislative officer) and three part-time staff totaling 1.6 FTEs.). Hon. Bert Oliver, in conversation with author at Simon Fraser University, 27 February 2007. See Province of British Columbia, Budget, 2007 (Victoria: B.C. Ministry of Finance, 20 February 2007). Noted by Kim Carter, B.C. Ombudsman, at Simon Fraser University, 7 July 2008. As described by B.C. Deputy Ombudsman, Brent Parfitt, at Pol. Sci. 151 – Administration of Justice class, Simon Fraser University, Spring 2001. See also B.C. Ombudsman, Annual Report 1982 (Victoria: May 1983), 143. http://www.ombudsman.bc.ca/resources/reports/Annual_Reports See ‘Ombudsman’s Office Can Help Resolve Long-Term Care Complaints,’ press release, B.C. Ombudsman, 26 June 2008.

74 Patrick J. Smith 26 New Brunswick, Ombudsman and Child and Youth Advocate, ‘Report of the Ombudsman into the Minister of Education’s Decision to Modify the French Second Language Curriculum’ (Fredericton: June 2008), 3. http://www.gnb.ca/0073/index-e.asp 27 Dr Karl Friedmann, conversation with the author, Victoria, Spring 1985. 28 B.C. Ombudsman Office, ‘Code of Administrative Justice,’ Public Report no. 42, to the B.C. Legislative Assembly (Victoria: March 2003), 23 pp. 29 2006 Annual Report, B.C. Ombudsman. 30 See B.C. Auditor General, ‘Report on Removing Public Land from Tree Farm Licences 6, 19, and 25: Protecting the Public Interest?’ (Victoria: 16 July 2008). http://www.bcauditor.com 31 See Canadian Press/CTV, ‘B.C. Government “Offended” by Auditor General’s Report,’ 17 July 2008. 32 See, for example, ‘Editorial,’ Victoria Times Colonist, 17 July 2008; and Mike Smyth, ‘When You Can’t Attack the Message, Attack the Messenger,’ The Province, 17 July 2008. 33 On this, see, Sonja Sinclair, Cordial But Not Cozy: A History of the Office of Auditor General (Toronto: McClelland and Stewart, 1979). 34 Samuel P. Huntington, Political Order in Changing Societies (New Haven: Yale University Press, 1968), 12–24.

Administrative Justice in B.C. 75

Appendix 3A Job Application Province of British Columbia

Ombudsman Canadians who have earned respect and recognition in their chosen field and the community at large are invited to apply for position of Ombudsman for the Province of British Columbia. The Ombudsman is charged with the responsibility under the Ombudsman Act to investigate the complaint of any person who believes they have suffered an injustice through the actions or decisions of Ministries, Agencies, Corporations or Officials of the Government of British Columbia. Copies of the Ombudsman Act are available on request. The Ombudsman carries out his/her duties through the management of a 30+ person professional and support staff and reports to the Legislative Assembly on the activities of the Ombudsman Office. The demands of this position require attributes that go beyond a specific discipline or academic achievement. It is desirable that the Ombudsman possess: • A general knowledge and appreciation of the workings of the par-

liamentary system. Knowledge of British Columbia and its people. Common sense, maturity, fairness, integrity and sound judgment. Independence, perseverance, tact, patience and tolerance. An understanding of the distinction between natural and legal justice and the ability to assimilate legal advice. • Ability to communicate with individuals from all walks of life as well as with various levels of Provincial Government. • • • •

76 Patrick J. Smith • Ability to respond to administrative problems and a knowledge of

sound administrative and management practice. • A high energy level and dedication to the Ombudsman role.

The Ombudsman is appointed to a six-year term and may be reappointed. The compensation package reflects the senior nature and responsibility of the position. Replies will be treated in confidence. Resumes and inquiries should be forwarded to: Joanne Q. Public, M.L.A.: Chair of the Special Committee to Choose an Ombudsman, Room 204, Parliament Buildings, Victoria, B.C. V8V 1X4

Administrative Justice in B.C. 77

Appendix 3B Code of Administrative Justice (1982) – The Complaints Process

As Ombudsman I believe that: • Every person is entitled to fair, just and reasonable treatment from

provincial officials. • Officials entrusted with power must respect the rights and per-

sonal dignity of individuals they deal with. • Public servants draw their authority from law and act under law.

Official requests to individuals must be authorized by law. • Officials should make decisions without unreasonable delay and

•

• • •

•

take into account only relevant considerations. When a decision involves two or more officials, they should coordinate their activities to minimize inconvenience and cost to the public. Administrative fairness requires that people affected by government action be adequately notified and informed of relevant facts and law. Officials must give affected individuals an opportunity to be heard. When affected by official action a person is entitled to a clear statement of reasons and information about appeal rights. All communications, requests and notices should be in plain language. All citizens are equal before the law and individuals cannot expect preferential treatment from officials though often personal circumstances can, by law, be taken into account in official decisions. Citizens are entitled to assert their rights, although with the same courtesy they expect for themselves from officials.

If you feel unfairly treated, the Ombudsman may be able to help.

78 Patrick J. Smith

THE OMBUDSMAN HAS TWO MAIN OBJECTIVES: To investigate and resolve complaints against provincial government authorities; and To identify the causes of complaints and to recommend general improvements. WHAT CAN THE OMBUDSMAN INVESTIGATE? The Ombudsman has broad powers to investigate decisions, procedures and practices of All ministries of the provincial government; Boards, Commissions and Crown Corporations; and Any other person or body appointed by or responsible to the provincial government. IF YOU ARE NOT SURE WHETHER THE OMBUDSMAN CAN INVESTIGATE YOUR COMPLAINT, CALL THE OMBUDSMAN’S OFFICE AND ASK. If the Ombudsman cannot help you, he or his staff will refer you to someone who can. HOW DO YOU COMPLAIN TO THE OMBUDSMAN? You may complain to the Ombudsman by letter, phone or personal visit at the Victoria or Vancouver office of the Ombudsman (for phone numbers and addresses see back page). If you are an inmate or patient in a provincial institution, the law states that your letters to and from the Ombudsman must not be opened by the authorities. THE OMBUDSMAN WILL CONSIDER ANY COMPLAINT If there are better ways to deal with your problem, the Ombudsman may suggest that you: Complain directly to the authority concerned; Use existing appeal procedure; Contact your M.L.A.; or Take legal action. If you are unsure about what other sources of help are available, the Ombudsman’s staff will inform you.

Administrative Justice in B.C. 79

HOW DOES THE OMBUDSMAN RESOLVE COMPLAINTS? Authorities often correct errors and omissions that are brought to their attention. The Ombudsman has a staff of professional investigators who assemble all relevant facts, consider appropriate laws and regulations and prepare a report for the Ombudsman’s consideration. The Ombudsman may then recommend that the authority change a decision, procedure, regulation or practice. It is up to the authority to make the recommended change. If an authority refuses to follow a recommendation, the Ombudsman may refer the matter to the Cabinet and the Legislative Assembly for action. If the Ombudsman concludes that you were treated fairly and correctly, he will explain the reasons for his opinion to you.

Recto Running Head 80

4 Manitoba Ombudsman: Protecting Citizens through Fairness, Equity, and Accountability? kenneth gibbons

The doyen of Canada’s Ombudsman literature, Donald Rowat, wrote not long ago of the federal government’s ‘golden opportunity to reduce the democratic deficit’ by instituting democratic reforms through the mechanism of a federal Ombudsman’s Office.1 His argument for such reform was based in part on ‘the fact that the provinces have been operating successful ombudsman plans for many years.’2 In that context, the Manitoba Ombudsman’s Office is, and long has been, one of those successful plans. The Manitoba office was established in 1970, making it the fourth provincial Ombudsman in Canada after Alberta, New Brunswick, and Quebec. It attempts to address the democratic deficit that Rowat referred to through, in the office’s own words, its promotion of ‘fairness, equity, and administrative accountability.’3 One could argue that the three concepts are central to understanding the role of the Ombudsman concept in modern democracy, in Manitoba and elsewhere. The centrality of these three concepts requires a brief digression, one that is reflected in Carolyn Steiber’s succinct analysis of Ombudsman offices: ‘Common threads run through the conceptual fabric of every ombudsman’s office – all aim to humanize administration, to support fairness, accountability, and equity … Although the process in achieving objectives of fairness may differ, the product is the same: a chance for ordinary people, those without power or prestige, to be heard and to get fair treatment.’4 The use of these three specific terms as part of the organizational mission or purpose is not limited to the Manitoba office; they are found in some form or another elsewhere, at least in close approximation, and not only in Canada. Indeed, by coincidence, the Office of the

Manitoba Ombudsman: Protecting Citizens 81

Ombudsman for the City of Jacksonville, Florida, also indicates that its purpose, like that of the Manitoba office, is ‘to promote fairness, equity and administrative accountability.’5 The fairness notion is repeated often in the literature and practice of OmbudsOffices. For example, it constitutes one of the measures identified by Brenda Danet in her methodology for evaluating OmbudsOffice’s performance.6 Similarly, on the practical side of the matter, the B.C. Ombudsman publicizes a ‘fairness checklist.’7 The Alberta Ombudsman describes eight elements in its guidelines; among the most notable of these are the duty of fairness, participation rights, and adequate reasons. The duty of fairness, for example, requires that ‘there must be procedural fairness in decision-making.’8 The notion of equity is also vital to an Ombudsman’s work, as reflected in a special report, ‘Equitable Intervention,’ issued by the Quebec Ombudsman (Le Protecteur du Citoyen) in 2004. It leads off with this compelling quotation from Aristotle’s Nicomachean Ethics: ‘And this is the nature of the equitable, a correction of law where it is defective owing to its universality.’9 An earlier commentary from the Quebec Ombudsman reflected on equity in this way: ‘We must, in special cases, adapt or even override certain rules to ensure that justice and equity prevail.’10 Finally, administrative accountability is at the very core of the Ombudsman concept. This was summarized rather eloquently by Kevin Murphy, the Irish Ombudsman at the time, in a 2001 speech: I define administrative accountability as the process of ensuring that public service activities and, in particular, the exercise of decision-making powers, whether discretionary or otherwise, are carried out not only in a proper legal manner but in a manner consistent with fairness and good administrative practice. In short, I am there to decide whether or not public bodies are guilty of maladministration. Just as financial auditors examine the activities of the public service against certain financial principles and criteria, I examine their activities against the background of what are commonly referred to as the principles of good administration.11

The point was made more succinctly, if less descriptively, by André Marin when he was appointed Ontario’s Ombudsman in April 2005: ‘We’re going to bring accountability to the provincial government.’12 So it seems appropriate, when examining the Manitoba Ombudsman’s Office, to use a lens whose elements are fairness, equity, and

82 Kenneth Gibbons

accountability. As will be seen later, three measures will be used when assessing these notions: workload, judicialization, and commitment. Returning to the Manitoba case, note that like many (though not all) such offices, the Manitoba Ombudsman has the power to ‘investigate, recommend, and report publicly.’ But it does not have the authority to order administrators to change their decisions, and its recommendations generally are made to the legislature, not to Cabinet. This matches the classical formulation of the Ombudsman concept advanced by Donald Rowat.13 Also as in other jurisdictions, the Ombudsman’s independence is maintained by assorted provisions. First, the Ombudsman is appointed for up to two six-year terms by an all-party committee of the legislature and can be removed only by a two-thirds vote of the legislature. Second, the Ombudsman’s salary can only be reduced by a two-thirds vote of the legislature. The Ombudsman’s salary is negotiated with the Treasury Board at the time of first appointment. Normally, the salary is consistent with that of a middle-range deputy minister, with no built-in increments or increases based on the consumer price index (CPI). Unlike in New Brunswick or B.C., the salary is not ‘tied’ to the salary of provincial judges or to that of any other office holder.14 Manitoba has appointed four Ombudsmen in thirty-seven years. The first was George Maltby, who had been the police chief of what was then the Winnipeg suburb of St James.15 Maltby, who served from 1970 to 1982, was noted for his non-adversarial style, as reflected in one of his favourite expressions: ‘You can catch more flies with honey than with vinegar.’16 This style became a tradition that all three of his successors have continued. On Maltby’s retirement, the government reached outside the province to recruit Gordon Earle, who at the time of his appointment was Assistant Ombudsman of Nova Scotia and who had also served as that province’s Chief Human Rights Officer. Earle served from 1982 to 1994.17 Barry Tuckett, Manitoba’s third Ombudsman (1994–2005), ‘worked his way up’ to the office, first as an investigator, then as Assistant Ombudsman. Before joining the OmbudsOffice he had been a civil servant in Manitoba’s Department of the Environment. The current Ombudsman is Irene Hamilton, appointed on 31 March 2005 following Tuckett’s retirement. She is the first lawyer to hold the post, having served in the past as Manitoba’s Assistant Deputy Minister of Justice (Courts Division) and as the province’s Public Trustee.

Manitoba Ombudsman: Protecting Citizens 83

Organizational Mandate and Structure The Manitoba Ombudsman carries out the standard range of accountability reviews that we come to expect of provincial Ombudsmen. What makes it unusual compared to other provinces is that it has two other mandates that are not commonly part of other provincial offices. First, it reviews matters arising under the Freedom of Information and Personal Privacy Act of 1998 (FIPPA) and the Personal Health Information Act of 1997 (PHIA). From 1988 to 1997 it was also responsible for the Freedom of Information Act (FOIA). Second, it also reviews municipal governments, including that of the province’s largest city, Winnipeg. This expansive mandate has had consequences for the office’s structure over the years. Manitoba’s Public Interest Disclosure (Whistleblower Protection) Act came into effect only recently, in April 2007, so it is too early to say how that act has affected the office’s workload. One can say that a result of that act, the OmbudsOffice has a ‘new and expanded scope and mandate.’ The same act has increased the number of institutions for which the office has responsibility. Yet extra staff have not been provided.18 Basically, the OmbudsOffice is now made responsible for bodies ‘where at least 50% of the funding of the organization is provided by the government. This includes universities, child-care centres, agencies that provide support services to adults and children, social housing services, family violence crisis shelters and licensed or approved residential-care facilities.’19 Organizational Structure Having been given the added responsibility for freedom-of-information inquiries, and later for privacy inquiries, under the FOIA and FIPPA, the Ombudsman’s Office has been divided into two distinct divisions. The traditional accountability-review process is still housed within the Ombudsman Division, which is headed by the Ombudsman. Until very recently, the Access and Privacy Division (hereafter the A&P Division) was headed by an Executive Director who reported to the Ombudsman. Traditionally, each division published its own annual report, though the Ombudsman was ultimately responsible for both. In a recent reorganization of the office, the position of A&P Executive Director has been eliminated; the Ombudsman is now responsible for both divisions, though there is a manager who heads the A&P division’s administrative activities.20

84 Kenneth Gibbons

Winnipeg is the provincial capital and home to about three-fifths of Manitobans. Reflecting this dominance, it was also home to the province’s only OmbudsOffice until June 1998, when a regional office was opened in Brandon, the province’s second-largest city. Growth in the Ombudsman’s Office: Staff, Budget, and Caseloads In the 2007 Annual Report we find that in that year, staffing for the two divisions was roughly equal: eight in the A&P Division, eleven in the Ombudsman Division. There were also eight ‘general staff,’ including the Ombudsman. The office has grown over time, in large part because of its expanded mandate. As noted earlier, in 1988 it was assigned responsibility for the FOI Act; in 1997, for the PHIA; and in 1998, for the FIPPA. Also, while all other municipalities were covered by the Ombudman as of 1997, Winnipeg was not, at least until 2002. FIPPA requests increased 40 per cent that year as a result. In response to that addition, the office was granted an additional two staff years. It is noteworthy that this addition was far smaller than the six staff employed by the city’s own Ombudsman before it was closed and its responsibilities were absorbed by the provincial office.21 Overall, from the 1995–6 fiscal year to the 2007–8 fiscal year, the office’s staff complement has more than doubled (see Table 4.1). While the staff complement has more than doubled over the period covered (1995–2007), the budget has increased even more dramatically, nearly tripling over that time from roughly $850,000 to more than $2,600,000. The expansion of responsibilities (FIPPA, PHIA, and municipalities) the office encountered during this period is largely responsible for this significant budget increase (see Table 4.2). Caseloads The Ombudsman’s caseload has increased over the years, at least when one tallies the combined work of the two divisions. This is hardly surprising, given the office’s enlarged responsibilities during the period under review. In 2005 the caseload of the Ombudsman Division had, in fact, settled back to 1995 levels. However, the 2005 caseload for the A&P Division has increased significantly since 1995. And this quantitative increase does not reflect the qualitative differences that have occurred over the years. Two aspects of this are note-

Manitoba Ombudsman: Protecting Citizens 85 Table 4.1 Staff data, 1995–200822 1995–96 1996–97 1997–98* 1998–99 1999–2000 2000–01 2001–02 2002–03 2003–04 2004–05 2005–06 2006–07 2007–08

14.10 14.10 *14/22.1 22.19 24 25 25 27 29 27 28.5 30 30

*FIPPA and PHIA become part of mandate, municipalities were added (except Winnipeg, which was added in 2002), and Brandon office opened.

Table 4.2 Office of Ombudsman budget data, 1995–200823 Year

Total

% change

1995–96 1996–97 1997–98 1998–99 1999–2000 2000–01 2001–02 2002–03 2003–04 2004–05 2005–06 2006–07 2007–08

$852,600 $837,100 $1,702,200 $1,747,300 $1,791,200 $2,008,300 $2,069,200 $2,069,200 $2,296,100 $2,424,500 $2,476,900 $2,513,900 $2,622,000

– –01.8 103.3 2.6 2.5 12.1 1.5 0 11.0 3.1 2.2 3.7 4.3

worthy. First, privacy cases are generally more complicated than cases of the sort traditionally handled by the Ombudsman Division.24 Second, appeals to the A&P Division are generally more complex now than in earlier years because the office has worked with information

86 Kenneth Gibbons

and privacy officers in government agencies to increase the latters’ understanding of citizens’ rights. This has reduced the number of ‘simpler’ cases that might be appealed to the Ombudsman.25 So perhaps it would be better to refer to the Ombudsman’s ‘workload’ rather than caseload. Growing caseloads have led to concerns about understaffing, which are expressed by the office itself. For example, Barry Tuckett wrote in his 2000 Annual Report: ‘Our staff complement does not allow our office to complete investigations in as timely a manner as we would like, given the complaint backlog in combination with the new complaints received every year.’26 It has been reported that in 2004, after the office’s mandate was expanded to include the City of Winnipeg, Tuckett ‘publicly balked at the extra workload and asked the Province for more people to help him sift through the appeals. Tuckett asked for four new employees – noting that the city had 6 staff members to administer their workload – but was only given 2 assistants.’27 In response to complaints from Paul Nielson, spokesman for the Manitoba Access to Information Network, Tuckett was quoted in the same article: ‘[The government] never gave us enough … My concern is that we aren’t dealing with the issues we have to deal with in a timely manner. We just don’t have the staff to do that.’28 The Ombudsmen before and after Tuckett’s term have taken less critical positions on the resource issue. Gordon Earle maintained that ‘while there were times I felt that we should have had more resources, particularly as caseloads rose and additional responsibilities (FOI) were given, overall I was pleased with the resources allocated to our office.’29 Similarly, Irene Hamilton’s view is that resources are not currently an issue for her office as far as caseloads are concerned, because ‘we’re making headway on the backlogs [and are] moving cases through our own processes more quickly.’ Rather, her concern is directed at what the office cannot do ‘because of the lack of resources.’ Specifically, it cannot address ‘the most significant demand on the horizon … [which is] participating in national discussions of issues that cross provincial boundaries.’30 An example of such issues is the handling of complaints relating to interprovincial lotteries.31 As well, there is potential for another impact on the capacity of the office, should there be many individuals who wish to make use of the NDP government’s new Bill 34, ‘The Public Interest Disclosure (Whistleblower Protection) Act.’ Hamilton predicts that such cases are likely to be ‘very complicated [and] resource intensive,’ though it is much too

Manitoba Ombudsman: Protecting Citizens 87 Table 4.3 Annual caseloads – new cases only32

1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 Average* 2006** 2007**

Ombudsman Division

Access & Privacy Division

Formal (written) Telephone

Total

FOI/ FIPPA

PHIA

Other33

718 710 905 940 885 777 719 792 909 809 718 807.4 314 175

49 50 70 118 159 224 260 243 194 369 242 179.8 255 401

49 50 70 108 118 181 213 179 144 270 209 144.6 225 355

na na na 10 28 38 27 34 22 78 17 31.8 11 16

na na na na 13 5 20 30 28 21 16 19.0 19 30

3,423 3,582 3,620 3,045 4,403 3,529 3,108 3,296 3,818 3,713 na 3,554.7 na na

Notes: *Average is for the period 1995–2005 only and does not include years for which data are not available, indicated by na. **Data for 2006 and 2007 are not included in the averages because they are not comparable to earlier years, as cases indicated here do not include those resolved by Intake Services and thus not referred to the Ombudsman Division or the Access and Privacy Division. These totalled 112 cases in 2006 and 141 cases in 2007. Also, the 2007 totals do not include the newest category of data – 107 ‘contacts’ under the Public Interest Disclosure (Whistleblower Protection) Act discussed briefly below.

early to tell whether the number of eventual cases will warrant additional staff.34 The resource issue will likely never be resolved to everyone’s satisfaction. Past evidence suggests that resources have been an ongoing concern, though the issue was a more pressing concern for Tuckett than it was for Earle or is for Hamilton currently. That said, there is potential for the Manitoba OmbudsOffice to be restricted in its ability to deal with transboundary issues or future whistle-blowing issues because the resources now available only allow the Ombudsman to handle the caseload as currently understood. Data from the annual reports for 1995 to 2008 (see Table 4.3) indicate

88 Kenneth Gibbons

that the Ombudsman Division has handled an average of 807 formal complaints per year, and an average of 3,465 telephone inquiries per year (not including 2005). Formal cases ranged from a low of 710 in 1996 to a high of 940 in 1998. Telephone inquiries ranged from a low of 3,045 in 1998 to a high of 4,403 in 1999 (average: 3,554 per year). The A&P Division averaged 145 new FIPPA/FOI complaints per year between 1995 and 2005. The busiest year was 2004, with 270 complaints; 1995 was the division’s slowest, with 49 cases. The changeover from FOI to FIPPA occurred in the 1997–8 fiscal year, resulting in 70 cases being handled in 1997 (the last ‘full’ FOI year) and 118 cases in 1999, the first ‘full’ FIPPA year. The data for 1998 cover both FOI and FIPPA cases. From 1998 to 2005 the A&P Division dealt with an average of 28 new PHIA complaints per year. The low was 1998 (the first year of responsibility for PHIA), with only 10 complaints; the high was 2004, with 78. Complaints for both 2004 and 2005 more than doubled the previous high of 38 in 2000. The A&P Division handles about 22 ‘other cases’ per year that do not fit neatly under the FIPPA or PHIA headings in the annual reports. Note the significant decline in cases after 2005. Even when the change in reporting statistics is taken into account, the totals for 2006 and 2007 are well below the average for the 1995–2005 period. The long-term average for both divisions combined has been 987.2 new cases per year. But when we combine all new cases, and add those cases resolved by the Intake Service, and also the whistle-blowing cases (for 2007 only), we find that new cases totalled only 681 in 2006 and 717 in 2007. Hamilton believes that part of the difference can be accounted for by the increasing use of outreach programs, especially those directed at correctional facilities (under the Department of Justice), where anecdotal evidence suggests a greater propensity by inmates to use internal channels, which obviates the need to forward some complaints the OmbudsOffice.35 Statistics from the annual reports seem to support this view: the number of new cases originating from the Justice Department (largely from correctional facilities) dropped from 260 in 2005 to 114 in 2006 and 65 in 2007. Finally, the recent (2007) expansion of the office’s responsibility to handle whistle-blower protection cases has had a modest impact on workloads. Most of the OmbudsOffice’s contacts in this regard have related to requests from smaller bodies, on grounds of impracticality, to be exempted from the requirement to have a ‘designated officer’ to

Manitoba Ombudsman: Protecting Citizens 89

handle disclosure processes. Of the 107 contacts made, 99 related to this issue. The requests were approved in 39 of the 99 cases. The other eight contacts included five ‘inquiries received,’ two disclosures received and not investigated, and one disclosure received and opened for investigation.36 Generally speaking, it is too early to conjecture how the whisltle-blower protection role will affect the office, or vice versa. However, Hamilton notes that the one case investigated to date suggests that whistle-blower protection investigations will be more formal than the cases the office normally handles under FIPPA or PHIA.37 Patterns of Citizen Complaints Patterns of citizen complaints in Manitoba are influenced – like almost everything else in the ‘Keystone Province’ – by Winnipeg’s dominance over the ‘hinterland.’ Let’s look first at the data from the Ombudsman Division, which averaged of 816 formal complaints per year between 1995 and 2004. Of these, over half (417) arose in Winnipeg, which is home to about 60 per cent of Manitobans. Over 70 per year came from Brandon (population about 40,000) and from the suburban community of Headingley (the location of a provincial jail). More than 40 others came from Portage la Prairie, the site of two correctional institutions (one for women, one for youth). No other towns generated more than 15 complaints per year. Note that the data for geographical origins of complaints were not included in the 2005 Annual Report. Besides geographic patterns, there are available data on the agencies that are targeted by complaints. The biggest target is the Justice Department, which averages more than 300 complaints per year (about 37 per cent of them). The second biggest is Crown corporations, which average more than 100 per year (over 13 per cent), though this number has declined with the privatization of the Manitoba Telephone System (MTS). Most complaints in this category are directed at the Manitoba Public Insurance Corporation (MPIC), the province’s auto insurance firm. The only others to exceed 5 per cent of the annual average are Family Services (over 70 per year) and Health (well over 40, not counting PHIA complaints). As noted, the A&P Division handled an average of nearly 145 complaints per year between 1995 and 2005. The leading targets during this period were the City of Winnipeg (about 21 per year), Justice (about 15), Conservation (about 15), Workmen’s Compensation (about

90 Kenneth Gibbons

14), and the major Crown corporations (about 13). Major Crown corporation targets included MPIC, Hydro, and (prior to its privatization) MTS. With PHIA complaints averaging just over 30 per year, it is not especially useful to speak of patterns among targets, so those observations are not included here. For the ten years prior to 2005, when such data are available, the only notable geographic pattern is that about two-thirds of all complaints originated in Winnipeg. Patterns in the Disposition of Cases The case-handling style of the Manitoba OmbudsOffice has always been non-adversarial – an approach that originated with the first Ombudsman, George Maltby, and that his three successors have continued. Indeed, the style of each Ombudsman has been marked by varying degrees of formality. This is less noticeable with regard to the dependence on formal written complaints to initiate inquiries, but somewhat more noticeable in terms of the use of formal reports. With respect to formal complaints, the office has always helped citizens prepare a formal complaint, especially – though not only – if the complainant is illiterate. When it comes to formal reports, though, it was Barry Tuckett who identified his practices as the least formal in this sense. Tuckett’s formal recommendations averaged less than one per year. In this he distinguished himself from his predecessor, Gordon Earle, who was inclined to issue formal reports. It is too early to discern a pattern with the current ombudsman, Irene Hamilton, in this area. A brief digression would be useful here regarding a concept that some might view as a matter of ‘style.’ This is the notion of the ‘judicialization’ of the office, which – as we will soon see – may have been affected by the expansion of the Ombudsman’s mandate to include FIPPA and PHIA. This factor, however, does not have a direct impact on the disposition question, so it will be addressed later in the section on prominent issues. Summary data for the disposition of cases by the Ombudsman Division are shown in Table 4.4, and by the A&P Division in Table 4.5. Both use averages only, rather than year-by-year tallies. Prominent Issues: Workload As noted earlier, workloads have been an issue for the OmbudsOffice. In June 1997 that issue became the subject of several days of debate in

Manitoba Ombudsman: Protecting Citizens 91 Table 4.4 Ombudsman Division data: Case disposition averages (1995–2005)38 Assistance rendered Declined Discontinued by client Discontinued by Ombudsman Information supplied Not supported Partially resolved/supported Resolved/supported Formal recommendation Pending (carried over to next year)

31.3 20.4 50.7 26.7 183.7 161.8 24.6 125.9 0.4 192.3

Annual average all cases

807.4

Note: Data are not included for 2006 and 2007 because of the comparability problem that was discussed earlier in regard to Table 4.3.

Table 4.5 Access and Privacy Division data: Case disposition averages (1996–2005)39 Annual averages

FIPPA/FOI

PHIA

Declined Discontinued by client Discontinued by Ombudsman Not supported Resolved or partially resolved Formal recommendation Pending Total

13.1 9.1 6.0 49.5 30.1 1.7 61.7 171.2

10 2 2 5 5 0.1 16 38

Notes: (1) FIPPA/FOI data cover 1996–2005. However, 1997 was the last year to operate solely under FOI, while 1999 was the first full year under FIPPA. Both FIPPA and FOI were used in 1998, which was the transnational year. (2) PHIA data cover 1998–2005. (3) Data are not included for 2006 and 2007 because of the comparability problem that was discussed earlier in regard to Table 4.3.

the provincial legislature, when the NDP opposition raised specific concerns about the workload of the Ombudsman at a time when it was taking on responsibility for FOI and privacy issues. One MP asked ‘how the overworked and understaffed Ombudsman’s Office will provide expertise in health care records management and computer security.’40 The NDP argued at that time for a separate Information

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Commissioner. Since it regained power, though, the party has kept that role within the OmbudsOffice. Of the three recent Ombudsmen, Tuckett was the most animated on this particular point; he made comparisons with other provinces when making his case to the public. For example, in January 2002, when discussing the fact that the 2000 Annual Report was six months late in being released, Mia Rabson reported him saying that ‘there aren’t enough staff to investigate the complaints and put the report together.’ He was also reported as saying that Saskatchewan’s Ombudsman had nineteen investigators compared to nine in Manitoba’s Ombudsman Division – that is, about half the staff for comparable responsibilities.41 Added to this concern was the addition in 2002 of the responsibility for the City of Winnipeg (see above), as well as the workload demands now being generated by FIPPA and PHIA. Over the period reviewed, the average annual backlog of cases ‘carried over’ (i.e., pending) has been about 25 per cent in the Ombudsman Division, 36 per cent for FIPPA cases, and nearly 42 per cent for PHIA cases. The current Ombudsman, Hamilton, has said that there has been progress on the backlog, and the data from the 2005 Annual Report confirm this. Even so (again, see above), Hamilton is concerned that workloads could rise sharply now that whistle-blowing legislation and transboundary issues have been assigned to her office, especially if she isn’t assigned more staff. And these concerns do not take account (nor could they) of changes to how the public actually uses the OmbudsOffice. For instance, who could have predicted that one single citizen, animated by concern about the environmental impact of Manitoba’s hog industry, would submit 1,355 separate requests for information to the Department of Conservation (and another 195 to the Water Stewardship Department) in a single two-day period? The Department of Conservation received only sixty-two requests for all of 2006. The department calculated that it would take 13.5 years to complete all the requests. A sense of the scale of the requests was offered by Assistant Deputy Minister Bruce Gray: ‘They came by the fax machine for two days straight … We were not able to use the fax machine.’42 While no one is predicting that this kind of use will become commonplace, the spectre of complex appeal cases being sent the Ombudsman’s way in the future because of the province’s new whistle-blowing legislation cannot be easily pushed aside, and staffing limitations could thus become a problem.

Manitoba Ombudsman: Protecting Citizens 93

Prominent Issues: Judicialization A second area of concern for the Manitoba OmbudsOffice has to do with the basic nature of the Ombudsman concept. It has long been understood that a key advantage of the Ombudsman idea – indeed, one of its defining characteristics – has been that it is an alternative to the court system. This is especially relevant given the reality of the court system, which can be variously described as imbued with formalism, as fraught with procedural and rule-based rigidity, as expensive and time consuming, and as intimidating to most citizens.43 Thus the court system is not always perceived as an appropriate appeal mechanism for those who have complaints about the administration of government policies and programs.44 In this context, the Ombudsman is conceptualized as an ‘alternative’ to the ‘adversarial’ judicial system. More than thirty years ago, Paul Verkuil wrote that there were ‘limits on the role of the adversary mode. If these limits are recognized, the ombudsman model should become increasingly viable as an alternate mode of decision-making.’45 Furthermore, that the Ombudsman is a distinctive ‘alternative’ is essential to its nature. Des Rosiers and Boctor quote Marten Oosting as arguing that ‘it is precisely from the fact that it is not a court that the institution derives its identity.’46 The challenge for Manitoba’s OmbudsOffice in this regard is that there is a risk, perhaps only slight, that it will become increasingly judicialized. According to Barry Tuckett, that risk arises from the legalistic approach that many government agencies seem to take when confronted with appeals in FIPPA and PHIA cases. In his view, the advent of FIPPA and PHIA, especially owing to the potential of significant fines, has led the A&P Division to develop more formalistic and legalistic relations with senior public servants and ministers. Both acts allow for fines of up to $50,000, and Tuckett believes that this is encouraging agencies and their senior staffs to think in terms of the need for legal counsel. This more legalistic approach has yet to cross over to the Ombudsman Division. Indeed, the office has long been committed to avoiding the judicialized (some might say juridical) approach that has become an issue for some other quasi-independent agencies, especially tribunals. For example, it was reported that at the 2002 annual conference of the Canadian Council of Administrative Tribunals (CCAT), ‘among the criticisms … was the judicialization of tribunals. Administrative tribunals were initiated in large part as a cheaper alternative to the

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court system. And, the ability to conduct investigations and hearings in a more relaxed manner with fewer procedural formalities and rules was attractive.’47 In part, the pressure to judicialize was arising from issues connected to the Canadian Charter of Rights and Freedoms.48 Gordon Earle noted that there was ‘a tendency in some of the larger jurisdictions … to put (in my opinion) a greater than necessary emphasis on legal opinions and legal analysis of issues … I believe such a move is a negative development.’49 Tuckett echoed this sentiment, pointing out that judicialization is inconsistent with the office’s past practice. He summarized his view publicly in the introduction to his 2000 Annual Report: ‘My goal is to continue a thirty-one year tradition of resolving disputes in an informal, non-adversarial and non-legalistic manner.’50 The present ombudsman, Hamilton (the first lawyer to be appointed Manitoba Ombudsman), echoes this perspective, arguing that judicialization would be ‘a bad thing to do.’ She also maintains that it is unnecessary, since the office neither issues orders nor sets precedents. However, her legal training included administrative law, which has been useful to her in that it has trained her in ‘what the principles of fairness are in a very strict … way.’51 That said, the office now employs five staff with law degrees (including Hamilton herself), though none were ‘hired as lawyers.’ These staff also use the informal process that is the tradition of the Manitoba office, though as previously noted, the process is becoming more formalized as it applies to the Whistleblower Protection Act.52 Prominent Issues: Commitment It is apparent that the provincial government, under both its most recent governing parties, has been committed to the principles pursued by both divisions of the Ombudsman’s office, which – as mentioned earlier – the office has described as ‘fairness, equity, and administrative accountability.’ There appears to be a consensus among the most recent three office holders on that score. In practical terms, however, the provincial government’s support for both divisions of the OmbudsOffice, not only by providing resources but also by cooperating with it, seems to have varied over time; at least, this is the perception of the three most recent Ombudsmen. Gordon Earle’s view was quite positive: ‘While on a few occasions there were some administrative arms of government that resisted the intervention and recommendations of the Ombudsman, overall we

Manitoba Ombudsman: Protecting Citizens 95

received excellent cooperation and had a good working relationship with administration.’53 Similarly, in an interview, Irene Hamilton described her relationship with government as ‘pretty good.’54 In print, she has maintained that ‘the expansion of the jurisdiction of the Ombudsman over time reflects that the government has seen the continuing need for the office as an impartial reviewer of allegations about wrongdoing about government.’55 The one Ombudsman to have questioned the government’s commitment in public was Tuckett, whose concerns about understaffing were noted earlier. On the matter of commitment, Tuckett spoke to or wrote for the public on a number of occasions. His views found their way into various print and broadcast media, especially on the occasion of his retirement in 2005. Two stories are exemplary. First, in a newsletter of the National Council of Women of Canada, Tuckett was ‘highly critical of the government for wasting time and taxpayers’ money to fight his advice with lawyers instead of just admitting its mistakes. He urged the government to make a written commitment to abide by the ombudsman’s advice.’56 Second, the Official Opposition posted the following comment from Tuckett’s news release of 8 February 2005: ‘In Manitoba, there does not appear to be a culture of openness ... A clear statement or declaration should be issued from the highest level of government to send a strong message that the present government expects its public servants to respect both the letter and spirit of the legislation and will hold them accountable for doing so.’57 More directly, Tuckett devoted nearly four full pages of his last annual report to ‘the obstacles’ his office had encountered during his tenure as Ombudsman and to the ‘need for a visible commitment’ from public agencies. In his view, the key obstacles were these: agencies were ‘looking to legalize rather than looking for fairness,’ ‘worrying about precedents,’ ‘[showing] reluctance to acknowledge mistakes,’ and ‘overreacting to financial implications.’ And he followed up the discussion of those obstacles with a section titled ‘The Need for Visible Commitment.’58 For Tuckett, the government’s commitment was crucial. On 9 June 2004 he wrote two letters expressing his concerns about FIPPA and PHIA, addressing them to the Minister of Culture, Heritage, and Tourism (responsible for FIPPA) and the Minister for Healthy Living (responsible for PHIA). In those letters he told the two ministers how he perceived the government’s commitment to the principles of access

96 Kenneth Gibbons

and privacy. Specifically, he mentioned ‘negative indicators of a lack of commitment’ to FIPPA, which included the following: • Government looks first for a way to deny access rather than for

ways to provide access. • Government exercises discretion to refuse access without provid-

ing appropriate explanations and valid reasons. • Government refuses access based on irrelevant considerations not

supported by the legislation. • Government routinely takes the maximum time permitted under

the legislation to respond to applications for access.59 The way Tuckett saw it, the issue of government commitment related to FIPPA in particular; it was not a central issue in his letter regarding PHIA. Rather, the commitment issue that bedeviled PHIA during his tenure related as much to ‘front line’ public servants and health practitioners as it did to officials at the executive or political level. He referred to the problem as ‘PHIAnoia … [a practice] wherein it seems the legislation is not adequately understood or it is applied very legalistically sometimes to the detriment of common sense and reasonableness.’60 Conclusion The research literature, the Manitoba Ombudsman’s annual reports, and the interviews with current and past Ombudsmen may not provide definitive conclusions, but they suggest some questions worth asking as the office moves deeper into the twenty-first century. The analysis began with three concepts that are central to understanding the idea of the Ombudsman in general, and the Manitoba office in particular: fairness, equity, and administrative accountability. It was also maintained that three issues could be considered when addressing whether these three concepts have been effective in protecting Manitobans: workloads (or caseloads), judicialization, and commitment. At a general level, the above-mentioned issues do seem to affect the Manitoba Ombudsman. They make life more difficult for that office, though in the end they do not prevent it from being effective. The fact that its mandate has been broadened in recent years, and its workload increased, suggests that its role is appreciated – with varying enthusiasm – by citizens and governments alike. That being so, the overarch-

Manitoba Ombudsman: Protecting Citizens 97

ing question is: could these issues affect the office’s capacity to achieve fairness, equity, and accountability? Concerns over workloads (or caseloads) seem to have fluctuated over time. During the Tuckett years, workloads were a major problem, but in the years since, the issue seems to have faded. That said, Irene Hamilton sees the potential for workload problems related to the new whistle-blower legislation and transboundary issues. Workload issues could affect perceptions of fairness by causing long delays in bringing cases to a close; this in turn could discourage the public from asking the Ombudsman to address their complaints. Rightly or wrongly, it could also feed a perception that citizens are not being treated fairly if such delays make it difficult to hold anyone accountable, if delays are seen as privileging government officials, or if delays suggest that citizens’ concerns are insignificant. The last two points seem to link fairness with equity and accountability. If judicialization does become more evident in the future because of the legalistic influences of FIPPA, PHIA, and the Whistleblower Protection Act, or for other reasons, then problems with fairness, equity, and accountability may develop. Judicialization could be seen as creating access barriers by making the process intimidating and expensive, and/or more time consuming for the average citizen. If this happens, the public may come to feel that the system is tilted towards those who are more comfortable in a juridical setting. And they may feel that the office is discouraging them from pursuing complaints by privileging ‘acting legally’ over ‘acting properly.’ Finally, there is the issue of commitment. That the government is continuing to expand the Ombudsman’s mandate reflects its commitment to that office. Even so, there is evidence that that commitment is more strongly held ‘in principle’ than ‘in practice.’ Barry Tuckett certainly thought so (though his predecessor and successor did not). That said, if the government displays a pattern of ‘resistance’ (as Tuckett put it) in the future, the commitment issue will again raise its head. In this vein, all three of the most recent Ombudsmen have argued for increasing contact with civil servants through training programs to make both groups aware of the role and procedures of the Manitoba Ombudsman. This could strengthen civil servants’ commitment to fairness, equity and accountability.61 Over the years, Manitoba’s government has shown varying levels of commitment to the Ombudsman’s role. This suggests the following concluding questions. Is the provincial government truly committed to

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pursuing fairness, equity, and accountability through an independent Ombudsman, or is it willing to do only the legal minimum? If the government is committed at the top, will it ‘spread the word’ by supporting forums and other mechanisms to strengthen the existing values of fairness, equity, and accountability throughout the various levels of the civil service? One can only hope, in an era concerned with the ‘democratic deficit,’ that the government’s answer to both questions is yes.

NOTES 1 Donald C. Rowat, ‘Federal Ombudsman Would Reduce Democratic Deficit,’ Policy Options 25, no. 5 (2004): 46. 2 Ibid. 3 Manitoba Ombudsman homepage: http://www.ombudsman.mb.ca 4 Steiber, quoted in Nathalie Des Rosiers and Audrey Boctor, ‘The Functions of an Ombudsman: Annotated Bibliography,’ Forum of Canadian Ombudsmen, April 2003, 2. http://www.ombudsmanforum.ca/events/ 2003_conference/nathalie_desrosiers_speech_e.asp 5 City of Jacksonville, Office of the Ombudsman. http://www.coj.net/ Departments/Procurement/Ombudsman/default.htm. 6 Brenda Danet, ‘Toward a Methodology to Evaluate the Ombudsman Role,’ Administration and Society 10, no. 3 (1978): 353–4. 7 The B.C. website checklist is at http://www.ombudsman.bc.ca/about/fairness-checklist.htm 8 These Alberta guidelines are discussed in a website section titled ‘What Is Natural Justice?’ at http://www.ombudsman.ab.ca/natural-justiceprint.php 9 Le Protecteur du citoyen, Quebec, ‘Ethical Intervention: Illegal or Unreasonable Acts,’ Guides and Issue Papers (2004), n.p. in original, page 3 in online version. http://www.protecteurducitoyen.qc.ca/en/publications/guides/guides.asp 10 ‘Thought and Comments and Reflections of the Quebec Ombudsman’ (2003), 13. http://www.protecteurducitoyen.qc.ca/en/publications/ ra_annuel/rapp2003/pdf/section_1.pdf 11 Kevin Murphy was Ireland’s Ombudsman from 1994 to 2003. The speech titled ‘Conflict and Accountability: The Citizen and the Ombudsman’ is at http://ombudsman.gov.ie/en/Speeches/Name,2185,en.htm 12 ‘André Marin – 2005,’ in Ombudsman Ontario, Annual Report 2004–2005, at http://www.ombudsman.on.ca/medoa/14967/2004_2005_ar_pdf

Manitoba Ombudsman: Protecting Citizens 99 13 Donald C. Rowat, The Ombudsman Plan: The Worldwide Spread of an Idea, rev. 2nd ed. (Lanham: University Press of America, 1985), 183. 14 Irene Hamilton, current Ombudsman, personal interview, 11 July 2006. 15 St James, like a number of other suburbs, was incorporated into the City of Winnipeg in the early 1970s, into what was locally called ‘Unicity.’ 16 This observation was made to a class of graduate students in public administration in the early 1980s. Barry Tuckett, who was Assistant Ombudsman for much of the time that Maltby was in office, confirmed this as a ‘typically Maltby’ view. Personal interview, 19 July 2006. 17 Gordon Earle, past Ombudsman, written correspondence, 3 September 2006. 18 Hamilton, telephone communication, 25 November 2008. 19 Manitoba, Ombudsman, 2007 Annual Report (Winnipeg: 2007), 20. 20 Hamilton, personal communication, 31 January 2007. 21 The City of Winnipeg office had six staff at the time it was closed down. See Alex Reid, ‘Access Denied: Information and Privacy Act to Be Reviewed,’ NewWinnipeg, 15 April 2004. Tuckett had staffing concerns even before taking on the Winnipeg caseload. See, for example, ‘Provincial Ombudsman Swamped with Work,’ CBC Winnipeg, 29 February 2000. http://www.cbc.ca/news/story/2000/02/29/29022000_ombudsman.html 22 These data are collected and compiled from the Manitoba Ombudsman’s annual reports for each of the years listed in the table. 23 Ibid. 24 Tuckett, past Ombudsman, personal interview, 19 July 2006. 25 Hamilton, personal interview, 11 July 2006. 26 Manitoba Ombudsman, Annual Report 2000 (Winnipeg: 2000), 7. 27 Alex Reid. See note 21. 28 Ibid. 29 Gordon Earle, written correspondence, 3 September 2006. 30 Hamilton, personal interview, 11 July 2006. 31 Hamilton, telephone communication, 25 November 2008. Lotteries in Atlantic Canada and in much of Western Canada (other than B.C.) are interprovincially organized. Some complaints have received significant media attention in recent years, as well as calls for Ombudsman’s investigations. For example, see ‘N.B. Ombudsman Considers Atlantic Lotto Probe’, CBC News, 20 March 2007. http://www.cbc.ca/canada/newbrunswick/story/2007/03/20/nb-ombudsmanlotto.html 32 Data were collected and assembled from the respective annual reports for each of the two divisions, covering the period 1995 to 2005. The data

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33

34 35 36 37 38 39 40 41 42 43

44

45 46 47

refer to new cases only and do not include cases carried over from the previous year. ‘Other’ includes cases relevant to the Ombudsman Act but handled by the A&P Division, as well as cases that were relevant to Part 4 of FIPPA and PHIA but were not distinguished in the original tables. Hamilton, telephone communication, 25 November 2008. Bill 34 received Royal Assent on 7 December 2006. Hamilton, telephone communication, 24 July 2008. Manitoba, Ombudsman, Annual Report 2007, 21. Hamilton, telephone communication, 25 November 2008. As with previous tables, data have been collected and assembled from the office’s annual reports, 1995 to 2005 inclusive. See note 38. Diane McGifford, NDP MLA for Osborne, Manitoba Hansard, 3rd–36th, Vol. 57, 9 June 1997. Mia Rabson, ‘Ombudsman Cites Lack of Staff, Funding,’ Winnipeg Free Press, 25 January 2002, A9. Idem, ‘It’ll Take 13 years, but She’ll Have Info,’ Winnipeg Free Press, 23 January 2007, A5. Even the Supreme Court recognizes some aspects of this problem. In referring to the ‘factors which have led to the rise of the institution of Ombudsman,’ it argued the following point: ‘The limitations of courts are also well known. Litigation can be costly and slow.’ From B.C. Development Corp. v. Friedmann [1984] 2 S.C.R. 447, cited in Des Rosiers and Boctor, ‘The Functions of an Ombudsman,’ 2. Daniel Jacoby, former Protecteur du Citoyen in Quebec, wrote on this point: ‘The ombudsman offers easy access because, in general, it avoids the formalities typical of judicial or administrative procedures. Many complaints are made verbally without a requirement for submissions in writing or attendance at formal meetings. The fact that recourse to the ombudsman is almost always free of charge is also a determining factor. Lastly, the informal, non-bureaucratic nature of the procedure makes it more personalized and human when compared to other procedures.’ Quoted in ibid., 4. Paul R. Verkuil, ‘The Ombudsman and the Limits of the Adversary System,’ Columbia Law Review 74, no. 4 (1975): 861. Des Rosiers and Boctor, ‘The Functions of an Ombudsman,’ 5. Jo-Ann E.C. Green, Department of Indian Affairs and Northern Development, ‘Towards Resolving the Division of On-Reserve Matrimonial Real Property Following Relationship Breakdown: A Review of Tribunal, Ombuds, and Alternative Dispute Resolution Mechanisms’ (Ottawa: May 2003), 14.

Manitoba Ombudsman: Protecting Citizens 101 48 49 50 51 52 53 54 55 56 57 58 59

60 61

A.M Wallace and J.T. Casey, quoted in ibid. Earle, written correspondence, 3 September 2006. ‘A Message from the Ombudsman,’ Annual Report 2000, 4. Hamilton, personal interview, 11 July 2006. Hamilton, telephone communication, 24 July 2008. Earle, written correspondence, 3 September 2006. Hamilton, personal interview, 11 July 2006. Hamilton, ‘The Ombudsman in Manitoba,’ Canadian Parliamentary Review 30, no. 1 (2007): 2–3. Elizabeth Fleming, ‘Access to Government Information,’ NCWC (National Council of Women of Canada) Newsletter 4, no. 2 (2005): 14. Manitoba PC Caucus, 31 March 2005, news release. Tuckett, ‘A Message from the Ombudsman,’ Annual Report 2003, 6–9. Tuckett, letter to Eric Robinson, Minister of Culture, Heritage, and Tourism, 9 June 2004, 3. http://www.ombudsman.mb.ca/pdf/FIPPA %20—%20A1%20Cover%20Letter%20to%20Minister%202004-06-09.pdf Tuckett, personal interview, 19 July 2006. Ibid.

Recto Running Head 102

5 Institutionalization of the Office of Ombudsman in New Brunswick* stewart hyson

New Brunswick was the second province in Canada, after Alberta, to establish an Ombudsman by statute.1 Both provinces opened OmbudsOffices in the fall of 1967.2 The New Brunswick office, however, got off to a stuttering start: each of its first three Ombudmen had to leave office early for health reasons. Nevertheless, under the leadership of later office holders, the New Brunswick Ombudsman has become firmly embedded as a handler of complaints in the province. How this happened is a lesson in how OmbudsOffices are capable of adjusting to various political situations. Joseph E. Bérubé and Ellen King, the fourth and fifth Ombudsmen respectively, tried to strengthen the office’s credibility mainly through internal reforms; the current office holder, Bernard Richard, has taken an externally oriented proactive role. This has included venturing into what is perhaps the province’s most sensitive political issue, which is language policy. The following discussion reviews the origins, mandate, organization, and complaint-handling procedures of the New Brunswick Ombudsman, which shares with Canada’s other offices most of the features of the classical, parliamentary Ombudsman but also has many unique attributes. Most significantly, the New Brunswick Ombudsman has a constitutional obligation to serve the public in two languages (English and French), as New Brunswick is Canada’s only officially bilingual province.3 At the same time, its mandate is among the broadest in the country: it has been assigned responsibility for a number of other, non-Ombudsman tasks. This multitasking may be seen as a sign of high regard for the institution; however, by spreading resources and commitment too thinly, it may also be undermining the Ombudsman’s capacity to fulfil its primary role. This chapter then

The Office of Ombudsman in New Brunswick 103

presents empirical data to describe and assess the Ombudsman’s caseload performance. Throughout, discussion will be tied to the concept of institutionalization and the individual contributions of those who have served as Ombudsman. The chapter closes with a brief look at the French immersion issue in New Brunswick – specifically, how the Ombudsman assumed a proactive role on that difficult file. New Brunswick’s Ombudsman: Origins, Mandate, and Structure Origins The establishment of the Ombudsman office in New Brunswick was non-controversial: both parties in the legislature (Liberal and Progressive Conservative) supported the idea. Partisan differences at that time (late 1960s) were directed instead at an Equal Opportunity (EO) program that was engineering a massive overhaul of the province’s administrative structures. We need to examine the non-confrontational, non-partisan origins of the New Brunswick Ombudsman, for they left a lasting imprint on the institution and its role in the province. In some ways the establishment of the New Brunswick Ombudsman is closely tied to the story of how that institution first came to Canada. It was serendipitous that the Canadian Bar Association (CBA) held its 1965 annual meeting in New Brunswick. That was one year after New Zealand’s first Ombudsman, Sir Guy Powles, addressed the association, which meant that at the time, the Ombudsman idea was being heavily discussed in Canada. At the New Brunswick meeting, an opposition PC MLA who was to become one of the province’s most successful political leaders – Richard Hatfield – was introduced to the Ombudsman idea when he was included on the CBA’s panel discussion of New Brunswick administrative law.4 In 1967, Hatfield became a firm supporter of the provincial Liberal government’s Ombudsman legislation; later, when he began his seventeen-year tenure as premier (1970–87), he became an equally strong supporter of the province’s Ombudsman office. This period included the difficult early years when for health reasons each the first three office holders was unable to complete his term (see Table 5.1). However, this is only the tip of the iceberg with respect to the New Brunswick story: in his dissertation on the New Brunswick Ombudsman, Henry Llambias has detailed how the decision to establish an Ombudsman was closely tied to the EO program.5

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As noted above, the EO program involved a massive overhaul of government services. It was launched in the late 1960s by Louis Robichaud’s Liberal government.6 Decision-making power for education, health care, welfare, and justice was centralized when responsibility for these matters was shifted from local or county governments to the provincial capital in Fredericton. It is important to realize that there were similar developments – such as Quebec’s Quiet Revolution – in other provinces at about the same time. Despite their separate and unique features, these ‘province building’ endeavours had much in common; in a way, they opened the door for OmbudsOffices. The centralization of power and growth of provincial administrative services made the need for citizen protection more apparent. People like Donald C. Rowat (see this book’s introduction) were arguing in favour of such offices; at the same time, spokespersons were echoing the same thoughts in specific provinces. For example, in New Brunswick, Liberal MLA Raymond Doucette commented during a legislative debate in 1966: ‘With a program of equal opportunity there should be a program of equal protection. This would be of assistance when legal recourse may be either unavailable or out of reach of the ordinary citizen.’7 The rise of the modern administrative state was spurring the acceptance of the Ombudsman concept around the world;8 in that climate, political leaders in New Brunswick recognized the utility of the institution for their province. When the Robichaud government indicated in its 1967 Speech from the Throne that it would be introducing legislation to establish an Ombudsman office, there was general agreement in principle from both sides of the legislature. This should have come as no surprise to keen observers of the New Brunswick political scene. After all, Justice Minister W.W. Meldrum had attended the CBA’s 1964 annual meeting and had been impressed by Powles’s address, and Richard Hatfield as the leading PC MLA was also on side.9 Since MLAs from both parties supported the Ombudsman bill in principle, the 1967 legislative debate occurred mainly in the Committee of the Whole in terms of how to clarify and strengthen the act’s provisions.10 Still, it is worth quoting from Meldrum’s speech to the legislature in support of his Ombudsman bill, for it reflected the government’s argument for an Ombudsman: ‘In every government mistakes occur. They are unavoidable, as the public demands more and more services, and as more and more people are involved in the decisions and the providing of these services, more and more the chance of error creeps in. The people will

The Office of Ombudsman in New Brunswick 105

be better served because of the appointment of an Ombudsman, and we are particularly concerned that the public should be served, not just by more people, but better served by the people involved.’11 With the support of both parties, the Ombudsman bill passed quickly, receiving Royal Assent on 19 May 1967, and Dr Ross Flemington was sworn into office on 11 October 1967 as the first New Brunswick Ombudsman.12 Mandate and Structure New Brunswick’s Office of the Ombudsman is rather typical of other Canadian offices in terms of its basic structure and mandate. Yet it also has some unique aspects that need to be mentioned. Below, I draw from several sources13 to sketch the New Brunswick Ombudsman’s main organizational attributes. First, the Ombudsman is appointed to serve a ten-year term by the Lieutenant Governor in Council based on the legislature’s recommendation. As an unwritten rule, all parties in the New Brunswick legislature must approve the Ombudsman nominee. Initially the Ombudsman was eligible for reappointment; but on the recommendation of Ombudsman Bernard Richard, the act was amended in 2007 to limit the office holder to a single ten-year term.14 As happened with Ellen King, an incumbent may have his or her appointment extended a few months until a replacement is found (after a seven-month extension, Ms King was replaced by Richard on 3 January 2004). There are no formal ‘job requirements’ for the New Brunswick Ombudsman; indeed, the holders of that office have come from a variety of backgrounds. Flemington had been an educator at Mount Allison University and later its president; Léger had been a lawyer and former president of the New Brunswick Bar Association; McAllister had spent most of his career at the University of New Brunswick, including a term as Dean of Law; Bérubé had served as a judge on the Supreme Court of New Brunswick; King had an extensive career in the public service, especially in the areas of adult education and family issues, rising to the position of Deputy Minister of the Women’s Directorate in 1987; and Richard, with a background in law and social work, had been a long-serving Liberal MLA (including stints as a cabinet minister, and later as interim party leader).15 The Ombudsman is an independent officer of the legislature. That means a number of things: (1) He or she is sworn into office by, and

106 Stewart Hyson

reports directly to, the Speaker of the Legislative Assembly. (2) The Ombudsman can be removed, whether or not the legislature is in session or not, but only for cause or as a result of incapacity. (3) The Ombudsman’s remuneration is the same as that of provincial court judges; this removes remuneration from the political executive’s discretion (and possible manipulation). (4) The Ombudsman has the authority to appoint and swear in assistants. Finally, (5) the Ombudsman’s powers of investigation are, by statute, the same as those of any other commissioner under the province’s Inquiries Act. All of these statutory provisions are intended to ensure the Ombudsman’s independence, effectiveness, and integrity. New Brunswick’s Ombudsman, like others in Canada, does not have jurisdiction over the Executive Council (i.e., Cabinet) and its committees, or over the province’s courts and judges. That office does have jurisdiction over government departments, corporations, commissions, and other provincial agencies, as well as their employees. Also, the New Brunswick Ombudsman’s jurisdiction extends over several provincial institutions besides government departments and agencies, including municipalities, school districts, provincial correctional institutions, and hospital corporations. Thus, at least in a legal sense, the New Brunswick Ombudsman has an extremely broad mandate. Over the years, other tasks have been assigned to the New Brunswick Ombudsman. Essentially, they are those that require the exercise of impartial authority. For example, in 1994 the duties of the Civil Service Commission were assigned to the Ombudsman, who thus has responsibility for protecting the merit principle in the civil service by hearing appeals from employees with respect to appointment decisions and by investigating complaints from non-employees in open job competitions.16 Another example: the New Brunswick Ombudsman investigates refusals by government departments and agencies to release information to citizens under the Right to Information Act, and similar complaints under the Archives Act. A third additional responsibility is to investigate complaints with respect to the protection of personal information under the Protection of Personal Information Act, which came into effect on 1 April 2001. Fourth, the New Brunswick Ombudsman used to hear complaints with respect to the delivery of administrative services in both official languages (English and French); however, this task was ended with the passage of legislation (taking effect on 1 April 2003) that created a Commissioner of Official Languages, who is now a specialized Ombudsman

The Office of Ombudsman in New Brunswick 107

for language complaints. Finally, and most recently, in November 2006 the Ombudsman was designated New Brunswick’s Child and Youth Advocate. This last role seems to be very important personally to Ombudsman Richard. No doubt this reflects his background in social work and his years as a politician at a time when child abuse cases were high on the provincial policy agenda. In any case, it is interesting how the Child and Youth Advocate role was assigned particularly to Ombudsman Richard. He had been highly critical of the Bernard Lord government for its long delay, after passage of the legislation, in appointing a Child and Youth Advocate. In effect, the Lord government was assigning the duties of this office to its loudest critic. Richard has taken on the task with great gusto. Indeed, the Ombudsman’s 2006–2007 Annual Report gave equal billing on the title page to the Ombudsman and to the Child and Youth Advocate. The New Brunswick Ombudsman has been assigned multiple tasks in part because the province is so small. The provincial government faces a limited talent pool as well as limited resources from which to draw. In larger provinces, the tasks carried out by the New Brunswick Ombudsman would most likely have been assigned to separate, specialized offices. One has to wonder about the limits of multitasking. Even when an office is allocated more staff, multitasking places strain on the office holder’s ability to fulfil his or her primary tasks. One also has to wonder about the compatibility of some of the tasks; for example, the skills an Ombudsman requires to oversee a merit system would seem to be quite distinct from those required for handling complaints from the public regarding administrative decisions. Grouping tasks that require an impartial office holder and staff may seem efficient from a fiscal perspective, but it may not be the most effective service delivery model. Yet another interesting feature of New Brunswick’s Ombudsman is the unwritten rule of alternating between an anglophone and a francophone, symbolically reflecting the fact that New Brunswick is the country’s only officially bilingual province. (Depending on how it is measured – mother tongue, language used at home – roughly twothirds of New Brunswickers are anglophone and one-third are francophone.) The names of the office holders in Table 5.1 reflect this convention. Whatever the Ombudsman’s first language, the office’s staff serve both language communities by communicating with each complainant in the latter’s choice of language (English or French).17 A

108 Stewart Hyson Table 5.1 New Brunswick Ombudsman office holders and their terms of office W.T. Ross Flemington 11 October 1967–1971 (Left the position because of illness and died 10 July 1971) Charles E. Leger (Died 29 September 1973)

1 June 1971–1973

George A McAllister (Died 1 August 1975)

7 February 1974–1975

Joseph E. Bérubé

9 June 1976–June 1993 (retired)

Ellen King

June 1993–3 January 2004 (retired)

Bernard Richard

3 January 2004–present

Source: New Brunswick Ombudsman Office, e-mail exchange with author, 26 June 2007.

qualifying note: the first Ombudsman, Ross Flemington, was a unilingual English speaker with very little profile in French-speaking New Brunswick. In his 1969 MA thesis on the first few months of the New Brunswick Ombudsman, Gregg Calkin noted that most complaints came from English-speakers and that Flemington had to rely on his bilingual secretary for help in processing French speakers’ complaints.18 The fourth Ombudsman, Joseph Bérubé, made this observation about Flemington: ‘His speaking engagements were … restricted of necessity to the English speaking groups and media. If a unilingual francophone complained to him, his secretary had to double as interpreter. Likewise the secretary had to translate all correspondence in French and the English answers from the Ombudsman.’19 Over time, New Brunswick had adopted an Official Languages statute (1969) and the country as a whole had adopted the Charter of Rights and Freedoms (1982). Along the way, the Ombudsman of New Brunswick has evolved into a fully bilingual office.20 The New Brunswick Ombudsman is highly accessible to the public by surface mail, telephone, e-mail, fax, and direct personal contact. Complaints can be expressed orally or in writing. Letters from inmates in correctional and psychiatric facilities must be delivered unopened to the Ombudsman. In the Cyber-Age, the New Brunswick Ombudsman office can now be accessed through the government’s website. However, this particular arrangement has its repercussions. The Ombudsman must be seen as independent of the government and so

The Office of Ombudsman in New Brunswick 109

ought to have a stand-alone website rather than one that is only accessible through a keyword search on the New Brunswick government website. Indeed, most provincial and territorial Ombudsman offices do have a stand-alone website that the public can access easily. Note that by law, a legislative committee can direct a particular matter to the Ombudsman for investigation, although this is not common. In addition, the Ombudsman may initiate his or her own investigation of an administrative matter – an option that is being used more and more often, especially under Richard (see below). The Ombudsman’s procedure for handling complaints is straightforward and is usually described in each annual report, which is available for all to see.21 Only a brief outline of this procedure is required here. On receipt of a complaint, the OmbudsOffice determines whether the matter falls within its jurisdiction. If it does not, the Ombudsman explains the situation to the complainant and (perhaps) redirects that person to the appropriate jurisdiction. If the matter does fall within the Ombudsman’s jurisdiction, the next step is to determine whether other administrative appeal mechanisms exist, and if so, whether they have been used by the complainant. Only when a matter is within the Ombudsman’s jurisdiction and there is no other appeal route will the Ombudsman launch an investigation. The Ombudsman (or an investigator from the OmbudsOffice) contacts the administrative head (or senior official) as well as the complainant in order to gather more details about the decision in dispute. If there is no administrative flaw, the complainant is advised accordingly in writing. If there is a flaw, the Ombudsman either attempts to negotiate a resolution or makes a recommendation for corrective action to be taken by the administrative unit. The OmbudsOffice then notifies the complainant in writing of the decision and its results. The Ombudsman’s investigation is conducted in camera; the information obtained is treated confidentially. With this descriptive portrait of the New Brunswick Ombudsman’s origins, mandate, structure, and procedures in place, let us now analyse its actual performance. Performance Assessment As Table 5.1 indicates, the New Brunswick Ombudsman had a tumultuous first decade; none of its first three office holders were able to serve a full term. It was Joseph Bérubé, the fourth office holder, who

110 Stewart Hyson

finally stabilized the Ombudsman’s presence by serving seventeen years. During those years he worked to gain a greater profile for the office.22 His successor, Ellen King, brought a quiet, non-confrontational style to the office and introduced internal, managerial reforms to improve its efficiency. During her tenure she observed a noticeable decline in the number of complaints.23 The current incumbent, Bernard Richard, has a most unusual background for an Ombudsman – he came to office directly from the opposition front bench and before that had been a cabinet minister in Frank McKenna’s Liberal government (1987–97). His appointment was not a partisan one, however; as noted earlier, it was the Lord government (PC) that appointed him. In any case, Richard has taken a more aggressive style than any of his predecessors by launching systemic studies. In his annual reports he has often criticized the government for failing to accept his recommendations. In fact, he has directed sharp criticisms on specific matters at both the Lord government and the current Liberal government of Shawn Graham. For example, he openly criticized the Lord government for its unexplained long delay in appointing a Youth and Child Advocate. Likewise, after the Graham government announced in March 2008 its intent to change the French-language curriculum for anglophone schools starting later that year, Richard responded to more than 350 contacts by launching an investigation of the issue; eventually he recommended that any changes be delayed by a year to allow for public consultation.24 Though leadership style is important – a subject to which we will return – we can establish a more complete understanding of performance by examining the Ombudsman’s handling of individual complaints. We might first identify the Ombudsman’s caseload. Unfortunately, it is difficult to conduct an analysis that spans the entire time span of the New Brunswick Ombudsman office; as other chapters in this book observe, Ombudsmen’s templates for presenting information in their annual reports have varied over the years. Table 5.2 does present comparable data for ‘contacts’ with the New Brunswick Ombudsman in recent years. Since ‘contact’ is an all-embracing term, we must be aware of the specific purpose of a contact. Brenda Danet, for instance, has distinguished between an actual complaint made to an Ombudsman with respect to an administrative decision, and other contacts such as when a person is requesting information or making suggestions.25 In Table 5.2, for the year 1996–7, we see the kind of misinformation that can arise when all contacts are lumped together without

The Office of Ombudsman in New Brunswick 111 Table 5.2 Complaints, inquiries, and requests for information received by the New Brunswick Ombudsman, by fiscal year

Year

Complaints received & investigated

Complaints outside jurisdiction

Inquiries & requests for information

1996–97 1997–98 1998–99 2000–01 2001–02 2002–03 2003–04 2004–05 2005–06 2006–07

2,552 1,783 1,530 1,072 809 795 936 1,761 1,517 1,499

1,364 869 759 673 727 638 93 741 825 729

Not ascertained 1,093 788 307 450 515 444 431 483 348

Note that the figures in this table are new contacts from the public received during the reporting period. In addition, there are always a few files every year that have not been closed. These cases are carried over to the next year; they have only been counted for the year they were received (so as to avoid double counting). Source: New Brunswick, Office of the Ombudsman, Annual Reports for respective years.

differentiation as to purpose. The figure of 2,552 in the first cell is wildly out of line with the data in the first column for subsequent years. This is presumably because the first cell contains ‘Complaints received & investigated’ as well as ‘Inquiries & requests for information.’ For later years these two categories are separated. Looking closer at Table 5.2, we find that there was a steady decline in the late 1990s and into the early 2000s in the number of ‘Complaints received & investigated’ that were within the Ombudsman’s jurisdiction; but since 2003–4 there has been a noticeable increase. This reversal coincided with the change of office holder from King to Richard in January 2004 (see Table 5.1). This reversal no doubt reflected a change in leadership styles; however, we must be careful not to jump to conclusions. Other members of this Ombudsman Research Team have noted with respect to their own case studies that increases and decreases in caseloads at different times can be attributed to a variety of factors. In the case of New Brunswick, for instance, Ellen King offered a pertinent explanation for the decline experienced in the latter

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part of her mandate: in her view it was attributable to ‘the [wider] availability of information on government organizations through websites; the accessibility to many government programs through Service New Brunswick; the establishment of informal and formal complaint mechanisms within some departments; and the impact of case law.’26 Implicit in this comment are two core explanations: improvements in administrative procedures, and the adoption of new information and communication technology (ICT). The former explanation is consistent with the argument made by Nathalie Des Rosiers that the decline in complaints lodged with Ombudsman offices in Canada (as of 2003, when she wrote) was due to the fact that Ombudsmen had succeeded in improving the quality of public service.27 There is a lesson to be drawn here: the Ombudsman’s role is not reducible to the handling of individual complaints; strong attention must also be paid to more proactive investigations of systemic issues, as well as to training and education sessions with various administrators and social groups. In fact, Des Rosiers’s point of view hearkens back to the hopes and expectations of the first advocates for Ombudsman offices – that is, to the idea that long-term reforms of administrative practices are achievable. No doubt, some administrators have learned from their mistakes as corrected by Ombudsmen and do not repeat them; alternatively, it is possible that through training sessions or administrative codes launched by Ombudsmen, administrators are being educated to make fair or proper decisions and to avoid errors. All of that said, in the first decade of the twenty-first century there has been a notable upswing in the number of complaints made to the New Brunswick Ombudsman (see Table 5.2). The second explanation in King’s comment, regarding the impact of ICT on the Ombudsman’s role, is equally fascinating. Admittedly, optimistic comments about the democratic potential of ICT were the rage with the advent of the Cyber-Age and are still being voiced. The logic of the argument is that, instead of going to the Ombudsman, people are using their personal computers to click on government websites in order to handle their own complaints. More sober reflection based on empirical studies, however, has exposed digital gaps in society as well as other limitations in the use of ICTs.28 Again, this is an interesting hypothesis in need of testing.29 Whatever the explanation, we are still faced with the sudden reversal indicated for the most recent three years as depicted in Table 5.2. Note that the controversy over French

The Office of Ombudsman in New Brunswick 113

education in English schools during the winter and spring of 2008 generated an unprecedented number of complaints, which will be registered in the next two annual reports (2007–8 and 2008–9). Turning to another dimension of performance, it is difficult to deny the efficiency of the OmbudsOffice in New Brunswick. We see evidence of this efficiency in terms of ‘turnaround time’ – that is, how quickly it takes the Ombudsman to process individual complaints. The New Brunswick Ombudsman uses its own turnaround figures and reports them in its annual reports. For example, in 2002–3, 67 per cent of its complaint files were closed within thirty calendar days of receipt and 93 per cent within ninety calendar days, with only 2 per cent of its investigations lasting more than a year. Meanwhile, with regard to non-complaint items (inquiries, requests for information, complaints about matters outside the Ombudsman’s jurisdiction, and so on), 81 per cent were processed within seven calendar days. Again according to the Ombudsman’s own figures, these numbers reflect a significant improvement over past years:30 86 per cent of complaints in 2004–5 were processed within thirty days despite the 88 per cent increase in valid ‘Complaints received & investigated’ (Table 5.2).31 The 86 per cent turnaround figure has continued to be met in subsequent years – 2005–6 and 2006–7 – for which data are available.32 It would be easy for some to argue at this juncture that the Ombudsman staff may have lost sight of rendering justice through a preoccupation with closing cases. On the other hand, ‘justice delayed, justice denied’; and this takes us back to the defining attributes of the Ombudsman institution and why it was adopted in New Brunswick and elsewhere in Canada. An efficient mechanism for handling complaints goes a long way towards ensuring administrative justice. And there is little evidence that the New Brunswick Ombudsman has ever lost sight of its mandate. Another measurement of efficiency is cost effectiveness (see Table 5.3). When consulting Table 5.3, the caseload data from Table 5.2 should be kept in mind. Advocates of the Ombudsman concept, including Llambias in his doctoral dissertation, have generally predicted cost effectiveness.33 Tables 5.2 and 5.3, when considered together, tell us that hundreds of complaints are handled each year at a relatively small cost. For instance, during the 2005–6 fiscal year the Ombudsman office spent $697,600. During that period it received 1,517 complaints within its jurisdiction; the office looked at 825 other complaints before deciding that they were outside its jurisdiction; and

114 Stewart Hyson Table 5.3 Actual expenditure to operate the New Brunswick Office of Ombudsman, by fiscal year Year

Actual expenditure

1996–97 1997–98 1999–00 2000–01 2001–02 2002–03 2003–04 2004–05 2005–06 2006–07

$627,700 $592,900 $582,300 $585,000 $594,200 $616,100 $666,800 $604,100 $697,600 $1,075,500

Source: New Brunswick, Office of the Ombudsman, Annual Reports for respective years.

it processed an additional 483 inquiries and requests for information. Staff costs (wages and benefits) in recent years have usually amounted to 80 to 88 per cent of the Ombudsman’s actual expenditures. According to its annual reports, the Ombudsman usually ends the fiscal year under budget; for example, of the budget of $711,500 allocated for 2005–6, only $697,600 was spent, in part because a staff member was on leave. This low figure is especially impressive when one considers that the New Brunswick Ombudsman handles complaints in both official languages. Finally, the figure for the last reported year – $1,075,500 – seems to represent a hefty increase over past years, but this can be explained by the assignment of the Child and Youth Advocate services and accompanying new staff to the Ombudsman. A picture thus emerges of a highly efficient complaint-handling mechanism. Indeed, it is impossible to imagine what the costs or the situation for the general public would be if the Ombudsman did not exist and the only alternative was the court system. As well, whatever efficiency measure we employ, it must be remembered that the New Brunswick Ombudsman is one of the smallest such offices in the country. Even after adding social workers to its staff on being assigned the role of Child and Youth Advocate, it had only fourteen positions in the 2006–7 fiscal year.34 So that too rosy picture did not emerge from the preceding cost-effi-

The Office of Ombudsman in New Brunswick 115

ciency data, Richard emphasized in the opening paragraph of his Annual Report 2005–2006 how seriously underfunded his office is: As I have stated in the past, the office continues to lack the resources it needs to provide adequate services to the people of New Brunswick. We have the broadest mandate of any Ombudsman office in Canada, combining responsibility for general complaints against all government departments, agencies, crown corporations and municipalities (and now since November 2006 child and youth advocacy) with right to information, privacy and civil service appeals.35

Indeed, when we recall how broad the mandate of the New Brunswick Ombudsman is and how the office has been assigned other tasks, the cost-efficiency figures discussed above take on a whole new meaning. At the same time, it is interesting that Richard complained in the preceding quotation about the lack of resources when the office usually does not spend its entire budget. The OmbudsOffice is in a dilemma – it wants a larger annual budget, which ultimately is part of the government’s budget, but at the same time, it needs to show the government that it is a responsible, efficient body that can operate frugally.36 At this juncture it would be useful to know who complains in terms of gender, age, income, education, and other independent variables commonly used in studies of political participation. This is true for all OmbudsOffices, not just New Brunswick’s. But because the confidentiality of those who complain is protected, we cannot know definitively which groups complain the most. At one time the New Brunswick Ombudsman did sometimes offer descriptive data. Thus we know that between 1995 and 1997, 57 to 58 per cent of complaints came from men, 40 to 41 per cent from women, and about 2 per cent from groups; and we know that English was the language of communication of 61 to 63 per cent of complainants, with 37 to 39 per cent choosing French.37 In recent years (though not in the last two reported years of 2005–6 and 2006–7) the OmbudsOffice has provided a county-by-country breakdown of contacts. Table 5.4 shows that people from Gloucester and Madawaska counties resort to the Ombudsman in far greater percentages than their respective shares of the provincial population would have us expect, whereas residents of Restigouche, Victoria, and York counties complain slightly more than their population shares.

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There are some apparent reasons for these patterns. York includes Fredericton, the provincial capital, where the OmbudsOffice is located, so the office is more visible there as well as easier for residents to access. At the same time, geographic distance between the provincial capital and the province’s economic growth centres on the one hand, and the more remote counties (Gloucester, Madawaska, Victoria, Restigouche) on the other, no doubt contributes to a greater sense of regional alienation in the latter and thus reason to complain. Indeed, a gulf is evident between the province’s urban regions in the south, which have relatively strong economies, and the more rural regions in the north. Generally, the southern counties make fewer complaints to the Ombudsman. A contributing factor here may be the province’s cultural-linguistic divide between francophones and anglophones: the former tend to live in those parts of the north that register higher percentages of complaints. Regardless, it is essential for the Ombudsman to be aware of the data in Table 5.4 and to make efforts to be equally visible and accessible to all parts of the province, whether this involves travel to the regions or the use of regional or mobile intake offices. While the Ombudsman office does not provide much information as to the identity of those who complain of administrative wrongdoings, it does not hesitate to reveal the targets of complaints. The two government departments that attract by far the most complaints are Family and Community Services, which covers income assistance and public housing; and Public Safety, which includes correctional institutions. These departments exercise considerable discretion in the delivery of government programs that directly affect people’s lives, so it is not surprising that their decisions have spawned the most complaints over the years. Conversely, some government administrative units have attracted very few complaints, including the Finance Department, which has little direct contact with the public; and the Liquor Corporation, which exercises little discretion in serving the public. Complaints tend to be so specific that it is not worth tabulating them by categories. Suffice to say that the complaints often involve the denial of services, assistance, grants, and licences or permits. Leadership and Institutionalization The defining attributes of the Ombudsman institution as presented by Larry Hill were noted in this book’s introduction. Hill’s ten attributes distinguish OmbudsOffices from other organizations. But an Ombuds-

The Office of Ombudsman in New Brunswick 117 Table 5.4 Percentages of complaints from each county, for selected fiscal years, along with each county’s percentage share of the provincial population Percentage of population

Percentage of complaints per fiscal year

County

(2001 Census)

2004–5

2003–4

2002–3

2001–2

2000–1

Albert Carleton Charlotte Gloucester Kent Kings Madawaska Northumberland Queens Restigouche Saint John Sunbury Victoria Westmorland York

3.7 3.7 3.8 11.4 4.3 8.8 4.9 7.0 1.6 5.0 10.5 3.5 2.9 17.1 12.0

1.5 3.6 2.2 17.0 3.0 2.1 7.4 5.6 0.3 4.6 8.6 2.3 3.7 16.5 14.1

0.7 2.4 1.6 13.3 2.6 2.2 13.1 4.7 1.0 5.7 13.3 2.0 3.7 13.5 14.4

1.7 2.5 1.7 19.2 2.7 4.2 10.5 4.6 1.7 7.8 8.4 2.9 5.5 11.8 13.3

1.3 2.5 3.1 17.1 2.0 3.8 11.3 5.9 1.3 8.1 9.4 3.2 4.3 9.2 15.6

1.8 2.1 2.6 19.7 3.2 4.5 10.7 5.5 0.4 9.5 6.7 3.3 4.4 10.7 13.4

Note: A very small percentage of complaints each year originate from outside the province; complaints from correctional institutions are not included. Source: New Brunswick, Office of the Ombudsman, Annual Reports for respective years.

Office’s value and legitimacy also depend on the office holder’s leadership style. The importance of leadership has been mentioned a few times already with respect to the New Brunswick Ombudsman, especially with regard to the current Ombudsman, Bernard Richard, since his appointment in January 2004, and especially when it comes to systemic investigations. Before considering Richard’s approach, some observations about his five predecessors are worth making. As noted earlier, New Brunswick was the second province to enact an Ombudsman statute but that the institution got off to a slow start because of the unexpected deaths of its first three Ombudsmen. None of these three office holders had much opportunity to consolidate the Ombudsman’s presence in the province or to promote public awareness of the new office. Both Flemington (the first Ombudsman) and McAllister (the third) were unilingual anglophones, which impeded

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their ability to serve the francophone population. The second Ombudsman, Leger, was bilingual but never moved to Fredericton, where the OmbudsOffice is located, instead travelling to the provincial capital two days a week.38 Thus when Joseph Bérubé assumed office as the fourth Ombudsman in 1976, he found that ‘the New Brunswick Office had no policy for strategy with respect to increasing public awareness in the role and jurisdiction of the Ombudsman.’39 Nevertheless, there had been increases in the number of complaints over the years leading up to the mid-1970s, both in New Brunswick and in other provinces. Bérubé attributed these increases to the high visibility of the Ombudsman idea in Canada as a result of the popularity of the CBC television program The Ombudsman.40 This was also the time when the Ombudsman institution was being adopted in many jurisdictions and was very much in the news. In any case, Bérubé on being appointed pursued a policy of increasing the profile of the OmbudsOffice. He did this by visiting numerous localities across the province – which, compared to other provinces, is relatively easy to do because travel to most places from Fredericton can be done by car in less than five hours. New Brunswick was fortunate that Bérubé was able to serve for seventeen years; then his successor, Ellen King, served for just over ten. It was mainly during these twenty-seven years that the OmbudsOffice consolidated its presence in the province. Most years experienced growth in the number of complaints, though as noted earlier, King began to witness declines during her last few years in office. Also during this period, the OmbudsOffice was assigned most of its other tasks, including responsibility for civil service appointments, right to information, protection of personal information, and (for a brief time) complaints with regard to the Official Languages law. Both Bérubé and King took a quiet, non-confrontational, yet conscientious approach to the Ombudsman’s role; in her final annual report as Ombudsman, King offered this description of her approach: ‘My personal approach in conducting investigations and in resolving disputes has been to establish a non-adversarial environment and to embody informality, common sense and persuasion in my dealings with others.’41 Other achievements noted by King were of a technical nature – essential albeit not flashy or spectacular. They included the updating of hardware and software for information handling, the adoption of performance indicators, and the development of a website.42 Bérubé and King, through their non-adversarial approach, together gave the New

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Brunswick Ombudsman the stability and continuity it needed at a critical time in its history after the interrupted tenures of the first three Ombudsmen. During their years the Ombudsman became embedded in the modern administrative state in New Brunswick. However, the decline in complaints at the turn of this century points to a waning of recognition and legitimacy and an apparent need for a new leadership approach. Bernard Richard has certainly brought a different approach to the office. His appointment was highly unusual in that he came directly from a seat in the legislature that he had held since 1991, having been active in partisan politics since 1974.43 His approach has been more proactive than that of his predecessors and can sometimes be described as adversarial. This difference in approach has been evident in his annual reports. Ombudsmen’s reports had for years been short and descriptive and at times formulaic, with the same paragraphs and sections appearing year after year; by contrast, Richard’s reports have been sharply opinionated. He has brought to the office an incredible knowledge of New Brunswick’s situation, coupled with a strong sense of integrity and gravitas. And his attributes have been recognized outside the province. In May 2005, for instance, Richard was elected president of the Forum of Canadian Ombudsman; since November 2005 he has been vice-president of the Association des Ombudsmans et Médiateurs de la Francophonie; and in May 2007 he was elected president of the Canadian Council of Parliamentary Ombudsman.44 But what does it really mean to say that Richard is more proactive? After all, the essence of the Ombudsman idea – Hill’s ten attributes – has remained the same in New Brunswick since 1967. While recognizing that his predecessors in New Brunswick seldom used the Ombudsman’s power to launch investigations (under Section 12 of the Ombudsman Act), Richard has embraced the broad interpretation of ‘a matter of administration’ provided by the SCC’s 1984 decision British Columbia Development Corp. v. British Columbia (Ombudsman).45 Accordingly, he has gone on to offer this interpretation of his role: ‘Although it is not possible to investigate all matters brought to our attention, I have decided to ask our staff, in the several matters that are of concern to many New Brunswickers and addressed in the following pages, to look beyond the individual issues raised by complainants and inquire also into the approaches taken by government offices and the systemic problems that may lie at the root of those complaints.’46

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It needs to be stressed, however, that by looking beyond individual complaints, Richard is not ignoring them; indeed, the handling of individual complaints is still his main priority.47 But at the same time, he has ventured into areas where there have been many complaints and/or a core underlying issue; and after investigation he has made important recommendations for change. He made fifteen such systemic recommendations in his first two reports; then in his third report he chastised those government departments that had ignored those recommendations.48 The downside of being so proactive is that, though it has a populist appeal with the general public and in the media, it can slip from administrative into policy matters and thereby raise objections from politicians, senior bureaucrats, and some members of the public. When asked about this possibility, Richard was not too concerned, noting that his systemic recommendations were based on solid, impartial investigations and were within his mandate.49 The issue of policy versus administration has been most evident in the matter of French-language curriculum for anglophone schools.50 The issue of French immersion education is still unfolding at the time of writing (July 2008) and will remain controversial for the next few years, given that bilingualism has been the dominant political issue in New Brunswick for decades. That said, Richard’s involvement in June 2008 is very illuminating, for it demonstrates how Ombudsmen are assuming a more proactive role in Canada. Certainly, as the majority government of New Brunswick, the Graham government had the right to announce (as it did on 14 March) its intention to alter the French immersion program starting in September. But when this announcement sparked more than 350 contacts from the general public – the vast majority disapproving – the Ombudsman decided to investigate systemically the government’s policy announcement. (Richard pointed out around that time that the number of complaints was far more than he had ever received on a single issue.)51 It is important to note what Richard decided to investigate and the focus of his report. Though he no doubt had his own opinion about the purpose and contents of the policy proposal, he chose to focus on how the policy decision had been made – specifically, on matters such as ‘unfairness stemming from a lack of consultation’; ‘unfairness due to insufficient notice prior to implementation’; and ‘bias arising from an alleged pre-determination of the consultation outcomes.’ In other words, his orientation was to investigate issues of process – how the

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policy decision had been adopted and formulated. To top it off, he noted the government’s commitment to ‘citizen engagement’ in response to the major recommendations that had been made earlier in the decade by the Commission on Legislative Democracy. He chose to investigate process issues; furthermore, the contents of the resulting report and his main recommendations were also about process, especially administrative fairness, which is the essence of the Ombudsman role.52 Given that the Ombudsman cannot issue remedial decisions, the government was under no legal obligation to accept Richard’s recommendation that there be more consultation and that implementation of any policy changes be delayed for one year. However, since coincidentally Mr Justice McLellan of the New Brunswick Court of Queen’s Bench, in response to a court challenge by concerned parents, had arrived at a similar decision about a week earlier, the government was legally required to cancel its policy and conduct full public consultations during the summer of 2008.53 Here the judicial decision carried the greater legal impact, but this does not lessen the logic of the argument found in the Ombudsman’s report, nor does it dampen the Ombudsman’s proactive role when it comes to investigating highprofile systemic problems. As we see from this particular case, administrative issues often have broad political implications that undermine the old ‘politics/administration dichotomy,’ and by taking a proactive role an Ombudsman can expect to be drawn more into the vortex of public controversy. Conclusion The New Brunswick Ombudsman has come a long way since 1967. Though it had an early start, it was held back by the short tenures of its first three office holders. But since the mid-1970s, the last three office holders have established a strong office. Scholars such as Samuel Huntington54 and Larry Hill55 have discussed institutionalization in terms of an organization’s internal capacity to fulfil its mandate and its external relations with other actors within its sphere of activity. Bérubé and King set out to solidify and bring continuity to the OmbudsOffice; together, they firmly established the office as a fixture of impartiality, so much so that it was assigned additional tasks. Richard, who came along at a time when the office was becoming somewhat moribund, has given the office a new direction. While not reducing the office’s tra-

122 Stewart Hyson

ditional role of reacting to and handling individual complaints, he has added a more proactive dimension by launching investigations of systemic issues and by publicly criticizing the government in a manner never entertained by his predecessors. The New Brunswick Ombudsman has gradually become a fixture in the province’s administration.

NOTES * Earlier versions of this paper were presented as conference papers: ‘How Did the Ombudsman Idea Pan Out? The Performance of New Brunswick’s Ombudsman,’ paper presented at the Annual Meeting of the Atlantic Provinces Political Studies Association, Memorial University, St John’s, 26–28 September 2003; and ‘The Institutionalization of the Ombudsman Idea: The Case of New Brunswick’s Ombudsman,’ paper presented at the Annual Meeting of the Canadian Political Science Association, University of Manitoba, 3 June 2004. 1 Alberta’s legislation was enacted in January 1967, and New Brunswick passed its law in May 1967. For a good overview of the origins of the Ombudsman in the different provinces, see Ulf Lundvik, The Ombudsman in the Provinces of Canada (Edmonton: International Ombudsman Institute, 1981). 2 The Alberta Ombudsman assumed office on 1 September 1967, and the New Brunswick Ombudsman on 11 October 1967. Ibid., 17–18. 3 Though New Brunswick’s bilingualism is constitutionally based, several other Ombudsman offices in Canada deliver their services in a variety of languages. For examples, visit the websites of the B.C. and Ontario Ombudsman offices. http://www.ombudsman.bc.ca and http://www.ombudsman.on.ca 4 Henry J. Llambias, The New Brunswick Ombudsman, PhD diss., Carleton University, 1979, 51–5. 5 Ibid., 54–5. 6 For informative accounts of the Equal Opportunity program, see ‘Robichaud Era, 1960–70: Colloquium Proceedings’; Della M.M. Stanley, Louis Robichaud: A Decade of Power (Halifax: Nimbus, 1984), 123–62; and Robert A. Young, ‘Remembering Equal Opportunity: Clearing the Undergrowth in New Brunswick,’ Canadian Public Administration 30, no. 1 (1987): 88–102. 7 Quoted in Llambias, The New Brunswick Ombudsman, 54.

The Office of Ombudsman in New Brunswick 123 8 Lundvik, The Ombudsman in the Provinces of Canada, 1–5. 9 Llambias, The New Brunswick Ombudsman, 51; Stanley, Louis Robichaud, 166–7. 10 Llambias, The New Brunswick Ombudsman, 53–67. 11 Quoted in Gregg A. Calkin, ‘The New Brunswick Ombudsman,’ MA thesis, Department of Political Science, University of New Brunswick, 1969, 41. 12 Llambias, The New Brunswick Ombudsman, 48. 13 Wendy Bernt and Stephen Owen, ‘The Ombudsmen in Canada,’ in Righting Wrongs: The Ombudsman in Six Continents, edited by Roy Gregory and Philip Giddings, International Institute of Administrative Sciences, vol. 13 (Amsterdam: IOS, 2000), 127–41; Llambias, The New Brunswick Ombudsman, 76–86; Lundvik, The Ombudsman in the Provinces of Canada; Gregory Moon-Wan, ‘Provincial Ombudsmen as Supervisors of Administration,’ in Aspects of Provincial Policy-Making and Administration, edited by Donald C. Rowat (Ottawa: Department of Political Science, Carleton University, 1991), 77–103; and New Brunswick, Department of Justice, Acts and Regulations, Ombudsman Act, http://www.gnb.ca/0062/PDF-acts 14 Bernard Richard, Class Lecture to Politics 4211 (‘The Ombudsman Idea in Canada’), Department of History and Politics, University of New Brunswick, Saint John campus, 21 February 2008. 15 Biographical information comes from diverse sources, including Llambias, The New Brunswick Ombudsman, 68–75; and the New Brunswick Ombudsman’s website, htpp://www.gnb.ca/0073/bio-e.asp. 16 It would be too peripheral for this study to look at the Ombudsman’s decisions with regard to merit in the public service. But the interested reader may like to examine John McEvoy, ‘The New Brunswick ‘Civil Service Act,’ Annotated, 1994-2003.’ http://www.gnb.ca/0073/PDF/CivilServiceAct-e.pdf 17 Acute observers will recognize that the Equal Opportunity legislation, the Ombudsman Act, and the Official Languages Act were all adopted at the same time in the late 1960s because they were so closely interrelated. 18 Calkin, ‘The New Brunswick Ombudsman,’ 92. 19 Joseph Bérubé, ‘The New Brunswick Office of the Ombudsman,’ Occasional Paper no. 11 (Edmonton: International Ombudsman Institute, June 1981), 3. 20 For an account of language policy in New Brunswick, see C. Michael MacMillan, The Practice of Language Rights in Canada (Toronto: University of Toronto Press, 1998), 139–62.

124 Stewart Hyson 21 See, for example, New Brunswick Ombudsman, Annual Report 2005–2006 (Fredericton: 2006), 6. 22 Llambias, The New Brunswick Ombudsman, 75. 23 See, for example, New Brunswick Ombudsman, Annual Report 2002–2003, (Fredericton: 2003), 22. 24 New Brunswick, Ombudsman and Child and Youth Advocate, ‘Report of the Ombudsman into the Minister of Education’s Decision to Modify the French Second Language Curriculum,’ June 2008. http://www.gnb.ca/0073/index-e.asp 25 Brenda Danet, ‘Toward a Method to Evaluate the Ombudsman Role,’ Administration and Society 10, no. 3 (1978): 347. 26 New Brunswick Ombudsman, Annual Report 2001–2002 (Fredericton: 2002), 6. 27 Nathalie Des Rosiers, ‘Balance and Values – the Many Roles of an Ombudsman,’ speech at the Annual Conference of the Forum of Canadian Ombudsman, Ottawa, 1 April 2003, 7. 28 See Darin Barney, Communication Technology (Vancouver: UBC Press, 2005). 29 For an initial paper in this area, see Stewart Hyson, ‘Adapting the Ombudsman Idea to the 21st Century: Fighting Puffery, E-Government, and Forensic Investigations,’ paper presented at the Annual Meeting of the Canadian Political Science Association, University of British Columbia, 6 June 2008. 30 New Brunswick Ombudsman, Annual Report 2002–2003 (Fredericton: 2003), 26–8. 31 New Brunswick Ombudsman, Annual Report 2004–2005 (Fredericton: 2005), 5. 32 New Brunswick Ombudsman, Annual Report 2005–2006 (Fredericton: 2006), 24; idem, Annual Report 2006–2007 (Fredericton: 2007), 19. 33 Llambias, The New Brunswick Ombudsman, ii. 34 New Brunswick Ombudsman, Annual Report 2006–2007 (Fredericton: 2007), 21. 35 New Brunswick Ombudsman, Annual Report 2005–2006 (Fredericton: 2006), 5. 36 Richard, Class Lecture. 37 New Brunswick Ombudsman, Annual Report 1995 (Fredericton: 1995), 15; idem, Annual Report 1996–1997 (Fredericton: 2007), 17. 38 Bérubé, ‘The New Brunswick Office of the Ombudsman,’ 3. 39 Ibid., 3–4. 40 Ibid., 7.

The Office of Ombudsman in New Brunswick 125 41 New Brunswick Ombudsman, Annual Report 2002–2003 (Fredericton: 2003), 5. 42 Ibid., 6–9. 43 Richard’s biography is available at http://www.gnb.ca/0073/bio-e.asp. 44 Ibid. 45 New Brunswick Ombudsman, Annual Report 2004–2005 (Fredericton: 2005), 21. 46 Ibid. 47 New Brunswick Ombudsman, Annual Report 2005–2006 (Fredericton: 2006), 6. 48 Ibid., 8–13. 49 Personal interview with Ombudsman Bernard Richard, 22 March 2007. 50 New Brunswick, ‘Report of the Ombudsman into the Minister of Education’s Decision to Modify the French Second Language Curriculum.’ http://www.gnb.ca/0073/index-e.asp 51 Ibid., 2. 52 Ibid., 2–3. 53 Ibid., 4. 54 Samuel P. Huntington, Political Order in Changing Societies (New Haven: Yale University Press, 1968). 55 Larry B. Hill, ‘Institutionalization, the Ombudsman, and Bureaucracy,’ American Political Science Review 68, no. 3 (1974): 1075–85.

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6 Expedition Sailors: The Ombudsman in Newfoundland and Labrador bradley moss*

This chapter aims to provide a qualitative study of the Ombudsman institution in the Province of Newfoundland and Labrador (hereafter ‘Newfoundland’). Using details of the province’s past experience with the Ombudsman project, and the insights of practitioners, we will attempt to determine the overall quality of the institution as it has evolved since its introduction in 1975. It is important to note at this juncture that there have been two separate incarnations of the Ombudsman in the Newfoundland – something that distinguishes it from other Canadian offices. The Office of the Parliamentary Commissioner (the ‘Commissioner’) existed between 1975 and 1990; the current Office of the Citizens’ Representative (the ‘Citizens’ Representative’ or ‘CitRep’) was opened in 2002. As the Citizens’ Representative is only in the sixth year of its mandate, this chapter discusses both offices. This chapter is divided into a series of topics, which commence with the history of the institution in the province, as well as its mandate and functions. After that we examine the pattern of complaints to the Ombudsman in terms of whether there has been a democratic deficit in Newfoundland. As well, consideration will be directed at whether the Ombudsman’s procedures are too formal or legalistic, whether its decisions are perceived as too sympathetic to the ‘establishment,’ and whether there is adequate public access to the institution. The results of staff interviews on a variety of topics will be noted, and commentary will be offered as to the Ombudsman’s overall performance record. Results show that whenever the Newfoundland Ombudsman has tried to avoid being drawn into the vortex of the province’s political

The Ombudsman in Newfoundland and Labrador 127

culture, it has provided yeoman service in helping citizens with their individual and collective complaints. The reader will note that in the cases of the Commissioner and the first Citizens’ Representative, the incumbent found himself at odds with the administration for different reasons. Details of the closing of the Commissioner’s office and the dismissal of the first Citizens’ Representative will follow; however, let it be noted here that the Ombudsman institution in Newfoundland has provided a valuable service as an administrative oversight mechanism for the general public. The Ombudsman has contributed to the democratic process as a whole by serving as a parallel conflict-resolution mechanism to the courts, a protector of individual rights, an unbiased commentator, and a vehicle of social change in the province. Background1 The genesis of the Ombudsman idea for Newfoundland is found in the Throne Speech of 1966. In it, the government of Joseph R. Smallwood announced that it was ‘concerned that the ever-increasing size of the Civil Service may lead to a feeling on the part of individual citizens that they are not invariably treated with the utmost impartiality.’ The government outlined its intention to form a Select Committee of the House of Assembly to review the Ombudsman concept and give it a ‘thorough examination in the Newfoundland context.’2 Chaired by the Honourable John Nolan (a cabinet minister who had campaigned in part on the value of the Ombudsman concept3), the committee delivered its approval for the formation of an office in April 1969, stating that ‘the Ombudsman office, regardless of its effectiveness, can only be of public value, and in no way a detriment.’4 The Parliamentary Commissioner (Ombudsman) Act5 was given Third Reading on 19 May 1970. Then, for reasons unknown, it sat on the shelf unproclaimed until 1975, when the Progressive Conservative (PC) government of Premier Frank Moores formally introduced an Ombudsman service in the form of the Commissioner. Doubtless the delay can be attributed to the two provincial elections in 1971 and 1972, the PC government’s preoccupations with wrestling pre-existing Liberal megaprojects, and the overall shedding of the Smallwood style of government. The first and only Commissioner, Ambrose Peddle, began work in June 1975. Peddle was a former PC MHA and single-term PC MP prior to his appointment, and for the incipient years of his tenure he was viewed – mostly in opposition circles – as a patronage appointee.

128 Bradley Moss

Peddle weathered these storms of publicity admirably, generally earning the respect of parliamentarians and members of the public while operating a small office out of the provincial capital, St John’s. He was appointed to a second ten-year term in 1985, and had served five years of it when the Liberal government of Clyde Wells in the 1990 provincial budget unceremoniously punted both him and the province’s commitment to an Ombudsman Act. A statement in the House of Assembly by Finance Minister Winston Baker indicates that that government had tried unsuccessfully to communicate the decision in advance to Peddle, who was en route from a vacation in Florida. Instead, Baker’s department contacted the ‘second in command, whoever that happens to be, to inform the Office of the situation.’6 Peddle returned home to a ‘lame duck’ office that was slated to close at the end of December 1990. The closing was based on the government’s belief that Ministers of the Crown and MHAs could, and would, deal with complaints about departmental actions.7 A review of the debate on the repeal is intriguing. Among Premier Wells’s opinions at the time: I have no doubt that in some countries in the world an ombudsman can perform a very useful function. In this province we have had a tremendous tradition of Members of the House of Assembly performing that particular role. And they are still performing that particular role. And if anybody were to go back and look over the reports filed by the ombudsman over the last five to ten years, one would see that it is a total waste of the four hundred-odd thousand dollars that it costs each year. [Note: the annual budget was $236,000.] In our present financial circumstances we are ill advised to spend that kind of money on that function when the function can be equally effectively, or perhaps even more effectively performed by Members on both sides of this House.8

Also during the legislative debate, Wells added: The variety of appeal procedures that have been implemented providing for appeals against virtually all Government decisions, the role played by honourable members … the variety of access to the news media and to a variety of others, including the open line radio shows … provide ample opportunity for members of the public to ensure that their views are put forward, far, far more effectively than the Ombudsman has ever performed, and we are going to save the Province some money.9

The Ombudsman in Newfoundland and Labrador 129

As a prominent Newfoundland lawyer, Wells knew or ought to have known that the Ombudsman Act contained all of the disclosure powers found in traditional Ombudsman legislation, in addition to a right of entry and the power to compel testimony under oath. These are powers that singular MHAs and political staffers have never possessed in the province. The closing was, in fact, an about-face for a premier who, when sitting as an Independent MHA when the Smallwood administration first proposed the bill in 1970, had said: Any ombudsman appointed to be effective, in the very least to be effective, must be appointed by this House – must be answerable directly to this House, not through the Government, and must have a tenure of office that will ensure the security of his position, irrespective of whose toes he treads on.10

The official opposition had a field day when the closing was announced. The Leader of the Opposition, Len Simms, called it ‘an absolutely stupid decision.’11 One opposition MHA, Robert Aylward, asked what would be done with the savings from the austerity measure: What are we going to do with it [the savings]? We are going to multiply it by two and get it up to $535,000 Mr. Speaker, and spend it on caribou management. Well … if there is a priority in this province between caribou and people who have complaints, we certainly have a very, very backward Government.12

The media also were critical of Wells. The Sunday Express deemed the move ‘truly regressive’ and the concept of ministers performing as Ombudsmen as ‘patently ridiculous.’13 The Evening Telegram had ‘grave doubts about this decision’14 and asked the government to reconsider it. Academics were also critical. Peter Boswell of Memorial University and Donald Rowat of Carleton University – as well as the president (at the time) of the International Ombudsman Institute, Stephen Owen – publicly chided the decision as a step back from democracy in the province. In a series of his weekly ‘Politics’ columns in the Evening Telegram, Boswell served up fresh salads of words, including ‘appalling,’ ‘misguided,’ ‘patently ridiculous,’ ‘odious,’ ‘repugnant,’ and ‘shameful and reprehensible,’ to describe the closing. In a column titled ‘Killing the Watchdog,’ Boswell wrote:

130 Bradley Moss And now Newfoundland is about to become the laughing-stock of the Western world by being first to abolish the office. Way to go Clyde. I used to wonder what possible folly could surpass the Sprung (hydroponic greenhouse) debacle as evidence of Newfoundland government stupidity. Well, now I know.15

Wells was not spooked, and the Ombudsman operations ceased on 31 December 1990. The office of the provincial Ombudsman disappeared for eleven years until Roger Grimes gained control of the Liberal Party (and the premiership) from Brian Tobin in February 2001. Grimes made the re-embodiment of the Ombudsman and the formation of a separate Child and Youth Advocate key planks in his openness and accountability agenda. The House of Assembly went on to pass the Citizens’ Representative Act16 in December 2001, and the Office of the Citizens’ Representative opened in St John’s early in February 2002. At the time of his unanimous appointment by the House of Assembly as Citizens’ Representative, Fraser March was a well-known figure in the province not only as a teacher but also as an NDP candidate, consultant, labour organizer, and former president of the Newfoundland Association of Public Employees (NAPE). Grimes’s choice was lauded by the general public, who believed, if nothing else, that March would hold the administration accountable when circumstances permitted him to do so. March worked hard and with zest to get the office off the ground. He re-established his public persona, but in doing so he quickly developed a tempestuous relationship over budgetary and staffing issues with the Internal Economy Commission – the bipartisan committee chaired by the Speaker that runs the internal affairs of the House of Assembly. On 31 August 2005 the Cabinet, following a review of management practices and expense claims by the auditor general, suspended March from duty. True to form, March went down swinging, and the entire affair heaped additional publicity on the young office during 2005. Rudderless after the suspension, the office remained open for eight weeks to receive complaints and continue with files in the investigative stage. On 25 October 2005 an Acting Citizens’ Representative was appointed in the person of Robert J. Jenkins, a former Clerk of the Executive Council, Chief Electoral Officer, and Conflict of Interest Commissioner. March was formally dismissed on 12 December 2005 by a vote of 26 to 12 in the House of Assembly. He sued for wrongful dismissal; however, in April 2007 the Supreme Court of

The Ombudsman in Newfoundland and Labrador 131

Newfoundland (Trial Division) ruled that parliamentary privilege prevented the court from intervening in the matter. Meanwhile, following a public competition in 2006, the House of Assembly unanimously approved the appointment of Barry Fleming, a solicitor and former Executive Director of the province’s Human Rights Commission, to be the new Citizens’ Representative. By any standard the Ombudsman institution has had a raucous history in Newfoundland and Labrador. Mandate and Functions The Parliamentary Commissioner (Ombudsman) Act and the Citizens’ Representative Act are fairly consistent with each other and with other Canadian Ombudsman statutes. There are enabling provisions that set out the powers of the Ombudsman to audit administrative decisions and address issues of secrecy and confidentiality. Other sections relate to reporting, provisions for compulsion, immunity from testimony or judicial review of decisions, right of entry, discretionary refusal to investigate, and the paramountcy of the act relative to other rules of law requiring confidentiality or the withholding of information by office holders. There are two key differences between the respective mandates of the offices, however. Besides regular investigations of departments and agencies, the Commissioner was tasked with Freedom of Information Act complaints and with civilian oversight of the Royal Newfoundland Constabulary (RNC). As a sidebar, two years after Peddle was relieved of his duties as Ombudsman for budgetary reasons on 31 December 1990, the government passed legislation that created and funded a separate RNC Public Complaints Commission.17 Other differences between the two offices included a ten-year term of office for the Commissioner18 (versus six years for the Citizens’ Representative),19 a section prohibiting the Commissioner from serving after he reached age seventy,20and two restrictions on jurisdiction for the Commissioner21 (versus six for the Citizens’ Representative).22 Also, there is an enhanced role for the Minister of Justice in the more recent legislation. Under the former Ombudsman Act, that minister could have restricted disclosure to the Commissioner if the disclosure involved the deliberations of Executive Council or secret information injurious to the public interest.23 Under the Citizens’ Representative Act, the minister may require the investigation to be discontinued or prohibited from commencing outright with the delivery of a Certificate to that effect24 (this power has yet to be employed). The Commis-

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sioner was obliged to report the receipt of the Certificate to the House of Assembly; today, the Citizens’ Representative is so obliged. Also noteworthy is the reduction of penalties contained in the Citizens’ Representative Act for obstruction, falsehood, or other wilful noncompliance with lawful instruction: $500 or three months’ imprisonment,25 versus $1,000 or six months’ imprisonment under the Ombudsman Act.26 Amendments and Evolution of Mandate The Ombudsman Act was first amended in 1975, shortly after its passage, in order to tie the Commissioner’s salary to that of the Chief Magistrate of the Provincial Court of Newfoundland.27 The original Section 9 of the statute had specified an annual salary of $20,000 in 1975. The current salary is fixed by Cabinet and follows the Executive Pay Plan on the Deputy Minister’s scale. The Commissioner requested a minor reform of the Ombudsman Act in 1978 after a jurisdictional challenge from the Waterford Hospital Board that had succeeded in preventing the Commissioner from accepting complaints from patients of the psychiatric hospital based on the argument that the board was not an agency of the government. This challenge stemmed from the Commissioner’s special report on the matter issued on 11 May 1976.28 In 1982 the House of Assembly passed an amendment that included the term ‘the Waterford Hospital’ and that clarified the term ‘hospital’ to include ‘any other hospital or part of a hospital designated by the Minister of Health with the consent of the authority operating the hospital, as a treatment facility.’29 In addition, the Commissioner was provided with the aforementioned jurisdiction to investigate complaints against the RNC.30 The Citizens’ Representative Act has not been substantially amended despite calls by the former Citizens’ Representative to: • repeal Section 20, dealing with intervention by the Minister of

Justice; • amend Section 6 regarding dismissal of the Citizens’ Representa-

tive, to allow for a ‘super majority’ as opposed to a simple majority of voting MHAs; • amend Section 10 to allow the Citizens’ Representative to hire his or her own staff, or schedule staff to the Public Service Commis-

The Ombudsman in Newfoundland and Labrador 133

sion Act31 (note: the second option was taken in 2005, and staff are now scheduled to the Public Service Commission Act);32 • adopt language contained in Section 4 of the General Rules made pursuant to the Ontario Ombudsman Act, regarding preliminary investigations and informal inquiries33 ‘either to confirm a complaint or wherein immediate assistance of a complaint is required and the circumstances of the complaint make the immediate implementation of the procedural requirements of the Act impossible’;34 and • ensure privacy of communication into penal institutions and hospitals by making provision in Section 23 of the Citizens’ Representative Act for mail entering institutions to be prohibited from opening by correctional or hospital officials.35 The original Commissioner’s reporting style was characterized by case studies in which individual situations were assessed against policy and/or administrative responses. In each case study, findings were written with outcomes described as ‘rectified,’ ‘not justified,’ ‘information supplied,’ or ‘withdrawn.’ There is little evidence that the Commissioner investigated class complaints (affecting more than one complainant). The Commissioner issued three special reports: on the procedure for filling a specific position in the Department of Fisheries;36 on the general procedure for the government’s handling of vehicle damage claims;37 and on his own right to investigate complaints from patients of the Waterford (Psychiatric) Hospital.38 To date, the Citizens’ Representative’s mandate has been split between procedural and substantive justice. Larger classes of complainants have been invited to bring systemic issues forward. These are subject to individual processing with a view to providing opinions not only on individual circumstances, but also on the processes and policies applicable to the complaints at a larger scale, with possible recommendations for rectification or improvement. Class complaints have been accepted by the Citizens’ Representative in areas such as Public Service Pension integration; the Newfoundland and Labrador Emergency Measures Organization’s response to flooding at St John’s (2001) and Badger (2003); the provision of Home Care; the issuance of Newfoundland Hydro Rebates for residents of Labrador West; and provincial school-tax issues, which together brought in hundreds of complaints and inquiries.

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Staffing and Funding The Commissioner employed an investigator and a secretary, who remained with the office in St John’s until its dissolution in 1990. The initial staff contingent for the Office of the Citizens’ Representative (2002) was a secretary, an investigator/researcher specialist, a manager of administration/operations, and the Citizens’ Representative. In the 2008–9 fiscal year the office employed six people, all of whom work out of St John’s: • The Citizens’ Representative (permanent position), who is respon-

sible for all operations and is the organization’s head; • One secretary/office manager (permanent position), who is

responsible for, among other things, intake of telephone inquiries, shipping/receiving, human resource issues, statistics, and document retention; • One senior investigator (permanent position), who is responsible for, among other things, conducting investigations, providing direction and strategic advice in other investigations taken by the office, education, dealings with external bodies on jurisdictional, institutional, and disclosure issues, advising the Citizens’ Representative, drafting reports, and monitoring recommendations; and • Three investigators (permanent positions), who are responsible for, among other things, conducting investigations, intake, liaison, drafting reports, and providing investigative and group support as needed. Funding comes from appropriations by government to the House of Assembly. Currently all significant expenditures and purchase orders and all employee expenses are processed by the office of the Clerk of the House of Assembly. The Citizens’ Representative’s 2002 budget was $405,000; the 2008 budget is $660,400. Democratic Deficit? In his first report to the House of Assembly, the Commissioner’s initial reflections foreshadowed the Newfoundland public’s response to the passing of Ombudsman legislation: During the period under review (August 1 to December 31, 1975) 209 written complaints were received.

The Ombudsman in Newfoundland and Labrador 135 As a matter of interest, the Alberta Ombudsman for the first four months of operation (1967) reported total cases of 216. The New Brunswick Ombudsman’s initial report for a six-month period (1967) showed a total of 157 complaints. Considering the larger populations of these two Provinces, these figures could be interpreted as suggesting that Newfoundlanders are more given to complaining or that they have more to complain about. I feel that such interpretations would be erroneous. It is my opinion that this fairly substantial volume of complaints can be attributed to the following factors: (1) the Provinces of Alberta and New Brunswick were the pioneers of the Ombudsman institution in Canada, and in the intervening eight years since its inception the functions of the institution have become better known across Canada; (2) the prominence given to this office and its incumbent for the period leading up to his appointment had a very salutary effect from a promotional point of view. While the other Ombudsmen, whose appointments enjoyed less visibility, were obliged to embark on a slow and costly publicity program, this office received a great deal of pre-opening publicity at no cost, at least in a monetary sense. It will be obvious to the reader that I am a firm believer in the power of positive thinking.39

Peddle’s reference to enjoying ‘less visibility’ is a clear indication of the partisan fracas that erupted when he was selected for the position by the Moores government. Twenty-seven years later, let us note how the Citizens’ Representative in his First Annual Report referred to his first day on the job: ‘This day in the sunshine of congratulations soon came to an end as complaints rained onto the Citizens’ Representative. Parties to this ombudsman creation process completely underestimated the demand for this citizen grievance service.’ On the first working day of the new office of the Citizens’ Representative, the CitRep had 103 complaints. He didn’t have a desk, or a fax machine, or a computer, or a chair. He had a clean carpet on which to sit, one hundred–plus complaints, and a telephone. During the next twelve months the office received the following: • 3500 phone calls, and • 65 telephone complaints that required action but were settled prior

to the investigation stage, and

136 Bradley Moss • 922 written complaints, and • 200 home care industry complaints, which were considered one

complaint because of similarities in complaints and solutions, and • 150 pension integration complaints, which were considered one

complaint, because of similarities in complaints and solutions.40 Worthy of note was the two-month lag between proclamation of the legislation in December 2001 and the opening of the office in February 2002. March indicated that during the intervening period he was constantly being telephoned at his home and was being approached when in public by individuals who ‘had cases for him.’ In addition, an operational decision was made to waive the provisions of Section 24(1)(a) of the Citizens’ Representative Act so that some cases falling within the eleven-year hiatus were accepted and considered for possible retroactive investigation, given the prolonged absence of the institution. This decision would have major implications for successive reporting years. In short, neither the Commissioner nor the Citizens’ Representative found a need to troll for cases to promote or justify his existence. There are specific reasons why this is the case, most notably the notoriety of the candidates and a small but activist population. First, in terms of notoriety, with a population smaller than the municipality of Quebec City, most Newfoundlanders and Labradorians could immediately identify with the Commissioner given his previous political life. In the case of the former Citizens’ Representative, partly because of his previous professional life, and partly due to his assigned moniker (‘Representative’ in the French and Spanish linguistic veins41), experience has shown that Newfoundlanders and Labradorians tend to regard the Ombudsman as approachable, at least to a higher degree than someone moving about in a province of eight million people with 100,000-plus people in the public service. Staff reported a large number of initial intake conversations where complainants wished to speak directly with Fraser March, either because they knew him or knew of him. Staff members also reported having to separate themselves from investigations stemming from complaints from their small hometowns, as well as instances of complainants who were relations or ‘friends of the family’ or even somehow knew or worked with their parents. The ‘Chinese wall’ system, familiar in legal environs, was adopted to deal with such instances of real or perceived conflict so that persons who might be in a real or perceived conflict

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were segregated from certain investigations or discussions regarding certain investigations. Newfoundlanders and Labradorians generally enjoy – some would say revel in – boisterous political issues and public affairs and are unafraid to wax about government on cue. As in many other provinces and American states, open-line radio or ‘talk radio’ is gigantic as ‘infotainment,’ with shows running from 9 to 11:30 a.m., 2 to 4 p.m., and 8 to 11 p.m. provincewide, five days per week on a local AM radio station. Public figures and municipal, provincial, and federal politicians of all political stripes telephone the shows on a daily basis. Election turnouts are not dazzling but tend to be healthy, at 72.5 per cent for the 2003 provincial election and as high as 83.6 per cent for the 1989 election.42 One might say that the famously inclement weather forces citizens inside to watch more supper-hour news programming, but regardless of why, the general population tends to be acutely aware of provincial (especially legislative) affairs. Furthermore, experience in the Office of the Citizens’ Representative has shown that many voters in the province have not been averse to calling politicians, public servants, or the Citizens’ Representative at home or marching up to them in public to discuss issues they may have with departments, agencies, or the bureaucracy in general. Is this enhanced activism an ‘island dynamic’? It is indeed unfortunate that Prince Edward Island does not have an Ombudsman and is unable to contribute to this collection, as one would expect to hear myriad similarities. A recent opportunity by this writer to network with colleagues from the civil service in Bermuda indicated a number of similarities in island culture, including the familiarity associated with small populations (people knowing where you live or meeting complainants on the street), tightly knit civil services, frequent allegations of nepotism and patronage, and the close attention to local affairs that comes with historic isolation and insularity.43 As we have seen, in the Newfoundland model we have a democratic institution that was established and accepted, then disbanded, revamped, and reintroduced. One thing remains clear. The Commissioner and the Citizens’ Representative embarked on similar uncharted voyages (thus the title of this essay): Peddle had to establish an Ombudsman service where previously there had been none (not unlike his counterparts in other provinces during the 1960s and 1970s Ombudsman sprawl), while March had the arguably more difficult task of re-establishing the institution and attempting to deal with an

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eleven-year hiatus while developing a new local adaptation of the Ombudsman concept in an age of connectivity. While accessibility and related empirical data will be dealt with later, it is evident that neither institution experienced a disconnection from the public. Despite a decrease in complaint numbers in the past two years reported on (2004 and 2005), the Newfoundland model of the Ombudsman does not appear to be experiencing a democratic deficit. The decrease in complaints is attributed to tighter internal controls on what qualifies to be recorded as a complaint (more effective screening, etc.), as well as the office’s attempts to deal with three large classes of complainants and a case backlog prior to the re-exertion of its public intake initiatives. These factors, combined with the internal development of protocols and procedures, and the efforts of the former Citizens’ Representative to deal with an auditor general’s investigation (and subsequent suspension and dismissal process) during 2005, did not give rise to aggressive marketing of the office or to extensive regional intake. As reflected historically in statistics, however, the population’s willingness to explore the possibilities of Ombudsman oversight in relation to administrative actions is evident. Sources of Complaints and Respondent Entities Neither the Commissioner nor (to date) the Citizens’ Representative has performed a formal in-depth study of who exactly is doing the complaining, except to say that most complaints emanate from outside of the St John’s area. Percentages for the Commissioner are listed in Table 6.1 and for the Citizens’ Representative in Table 6.2. Both tables point to a higher number of complaints from rural areas. The Commissioner’s average percentage was 71.1 per cent. The Citizens’ Representative’s average is higher: 77.9 per cent of all complaints emanate from the 42.3 per cent of Newfoundlanders who lived in ‘rural’ areas according to the 2001 Census of Canada.44 The disproportionate numbers are at least partly attributable to the struggling rural economy and the traditional higher reliance on government services among those in rural areas of the province. Departments and agencies that conduct more direct transactions with the public obviously become the targets of choice for the complaining public. For that reason the ‘compassionate 4’ – health, social assistance, social housing, and worker’s compensation – lead the respondent pack. The Department of Finance, given its role in administering taxation and pensions, is also a frequent respondent.

The Ombudsman in Newfoundland and Labrador 139 Table 6.1 Percentage of complaints originating outside St John’s (Commissioner)45 1975 (August 1, December 31) 1976 1977 1978 1979 1980 1981 1982 1983 1984 1985 1986 1987 1988 1989

79.4% Communities not reported 77.5 71.5 84.1 66.6 65.7 67.5 60.6 64.7 63.8 66.7 74.1 77.3 75.4

Table 6.2 Percentage of complaints originating outside St John’s (Citizens’ Representative)46 2002 2003 2004 2005

79.8% 80.6 72.1 79.0

Additional and significant sources of complaints are the penal institutions, most notably Her Majesty’s Penitentiary in St John’s. Correctional investigations, common in other jurisdictions, are becoming more frequent as the office matures. Ombudsman offices in all provinces, as well as the federal Office of the Correctional Investigator, have provided the wisdom of their insight from time to time in this regard. There are several reasons for the trend towards correctional investigations, among them: • The vulnerability and complex needs of the complainants. • The idle time inherent in custody. • The fact that the Citizens’ Representative is available to investigate

complaints at no charge.

140 Bradley Moss • The unique relationship between the incarcerated and their jailers,

who are tasked with maintaining a balance between inmate, staff, and institutional safety and therefore must make decisions that affect many in the interest of protecting the few. Labrador A review was conducted of all Commissioner reports with respect to complaints originating in Labrador, the mainland portion of the province. The review found that this area of the province contributed anywhere from 0.48 (1987) to 6.3 (1976) per cent of all complaints received. Total complaint numbers for any given year ran between four and twenty-eight. Labrador, with its 2001 population of 27,86447 (5.4 percent of the provincial population), has forwarded a total of fifty-three complaints in the four annual reports filed by the Citizens’ Representative. Staff members believe that this number is low for four reasons: • Public education about the role and mandate of the office is

lacking in Labrador. • Areas such as Labrador West, Churchill Falls, and Lake Melville

(with a combined 16,359 residents) have higher employment rates and a higher ratio of self-reliance.48 • Speculation is that the lack of First Nations complaints points to the First Nations’ preference to utilize their Band Councils, MHAs, and MPs to deal directly with various levels of government. • The urban/rural dichotomy is compounded with respect to Labrador, which has always seen itself as an exploited, resourcerich holding of the island portion of the province. This has historically spawned cries for independence and self-determination, which could partly explain the disinterest in the distant, St John’s–based Ombudsman institution. Accessibility More on the Urban/Rural Dichotomy – and Intake Clinics With 42.3 per cent of Newfoundlanders living in ‘rural’ areas,49 the urban/rural dichotomy is a challenge, given the province’s small population and large geographic area. This statistic is accentuated by a

The Ombudsman in Newfoundland and Labrador 141

local notion identified as the ‘overpass syndrome,’ referring to the overpass that separates the City of St John’s from what is perceived in St John’s as ‘the rest of the province.’ There is a historic and wellfounded feeling of alienation in rural Newfoundland – including all of Labrador – that dates back to the days of the ‘fishocracy,’ when rich St John’s merchants lived exquisite lifestyles on the backs of impoverished fishers and landsmen. St John’s has thus been viewed by generations of rural Newfoundlanders and Labradorians with a hearty seasoning of love and scorn. Mirroring the Irish phenomenon of ‘jackeens and culchies,’50 in Newfoundland and Labrador it is the great ‘townie–bayman’ debate and it is literally hundreds of years old.51 Recognizing this dichotomy, the Citizens’ Representative (like the Commissioner before him) has publicly expressed his philosophy of accessibility (though there is no evidence that the Commissioner travelled as extensively as the Citizens’ Representative). It is recognized internationally that adaptability as well as responsiveness to regional demographics are key characteristics of successful Ombudsmanship. In a presentation to the Quadrennial IOI Congress at Quebec City in 2004, the New South Wales Ombudsman, Bruce Barbour, encapsulated the demographic challenge he faced in his Australian state: vast uninhabited regions and an urbanizing society. Mr Barbour told his audience that ‘the demographics of the society we serve guide the work that we do … Although our central goal is to keep the departments and agencies we scrutinize accountable, this service was ultimately installed by Government for the benefit of the public we serve.’52 In the Newfoundland model, to offer a credible, thorough investigative process without regional offices, complete with site visits, interviews, and community intake clinics, for an area three times the size of Nova Scotia, New Brunswick, and Prince Edward Island combined, it is vital for Citizens’ Representative officials to travel. According to the province’s 2006 budget estimates, for the total CitRep office complement of six, there was a budget of $60,000 for transportation and communications.53 That was roughly 12 per cent of the office’s budget during its first four years of existence. The Citizens’ Representative’s 2003 Report affirmed this philosophy: A decision of the CitRep to utilize available human resources to provide equal service, in as far as possible, to our province’s citizens living outside the greater St. John’s area. The Citrep and present staff could work full time without leaving St. John’s eliminating the inefficiencies

142 Bradley Moss and cost of travel time but the result of such practice would see one level of service for St. John’s and vicinity, a somewhat lesser level of service for other urban centers, and a substantially lesser service for rural Newfoundland and Labrador. The decision to provide an equal service to all citizens did not affect the quality of service but did see a process retardation vis-à-vis timelines of complaint/inquiry investigation completion and conclusion development.54

By comparison, the Commissioner’s budget for transportation and communications never exceeded 7.69 per cent of the total budget (1988–9). Interest continues to be shown at a community level whenever intake clinics are conducted. These clinics allow members of the public or groups to speak privately and candidly with the Citizens’ Representative or his staff in the communities where they live. They also raise awareness of the office while simultaneously giving the Citizens’ Representative an opportunity to gauge the quality of services being provided in the regions so that systems, delivery models, and programs can be better understood and evaluated as a whole. The feedback from rural citizens on these initiatives has been most positive. Home Visits Home visits are arranged at the discretion of the Citizens’ Representative and according to a documented security protocol. Singular investigations often require travel to collect photographic evidence, to conduct interviews in the community, or to meet with government employees and review active files in the field. In 2003 officials spent time in 185 communities conducting home or public intake, file reviews, or site visits.55 Telephone/Internet Access A toll-free number is available, and collect calls are accepted. Contact information and various reports have been available since 2002 through this website: http://www.citizenship.nl.ca. Other Modes of Access Postage costs to the citizen can be deferred in cases where voluminous amounts of material must travel across the province, or the country;

The Ombudsman in Newfoundland and Labrador 143

this includes assuming courier costs. For more remote areas, the complainant has the option of sealing the documents to their satisfaction and dropping them at pre-arranged government offices for pick-up by courier. Alternatively, staff criss-crossing the island on other business may pick up documentation in connection with investigations. Complainants’ reasonable taxi costs to meet at the office or at a neutral site have been absorbed. Drawing on best practices from the Province of Ontario, the Citizens’ Representative committed himself in his First Annual Report to: • make adjustments in work hours to accommodate groups that

cannot easily access service; • recognize and offer options for service to meet the needs of groups

that may require assistance in order to access service; and • select locations that are barrier free and centrally accessible for

people.56 Language Barriers Even though 97.5 per cent of Newfoundlanders list English as their first language, mother tongue, or language spoken at home,57 the Citizens’ Representative has retained individuals in the community who can be sworn in to provide translation services in French and Inuktitut. The Newfoundland model exhibits ‘visibility and user awareness’ in line with its national counterparts (as described by Bernt and Owen) by ‘traveling through their jurisdiction in order to speak to groups of potential users’ and also ‘through participation in domestic and international conferences on a variety of subjects.’58 Both offices were/are associated with other Ombudsman offices through groups like the Canadian Council of Parliamentary Ombudsman (CCPO), the Forum of Canadian Ombudsman (FCO), and the IOI. Likewise, the Citizens’ Representative has trained staff through the Office of the Manitoba Ombudsman, Ombudsman Ontario, the CCPO, and the FCO. Procedures: Too Formal or Legalistic? The only formal legislative requirement that might pose difficulty to any citizen is that the complaint must be in writing. When the individual who wishes to make a complaint cannot read or write, a representative from the Office of the Citizens’ Representative will attend to

144 Bradley Moss

that person. He or she will provide a statement and will be required to sign it only after it is read back. Audio recordings are employed in hearings conducted under Section 28 of the Citizens’ Representative Act. Staff will respond to telephone, e-mail, walk-in visits to the office, and requests for updates and appointments, including those requested outside regular working hours, subject to internal safety protocols. Where there is a legal component to investigations, staff have been able to communicate such legalities to the complainant, with special attention given to avoiding confusing terminologies and not providing legal advice. Reports are also written in an understandable format for the recipient. Decisions: Too Sympathetic to the Establishment? This is a subjective question but one that is asked frequently. In each individual case the Ombudsman must weigh the evidence against the law as well as against the requirements of administrative fairness that are commonplace in Canadian Ombudsman offices (the Citizens’ Representative has adopted the ‘Ombudsman Fairness Standards’ from Ontario as its best practice). As with many Ombudsman offices, the number of cases in which the government’s position in the matter is upheld exceeds the number in which the complaint is substantiated. That is, a smaller percentage of cases truly show that an aggrieved individual is right and that government is failing the fairness test. For a beleaguered government official, a statement from the Citizens’ Representative upholding his or her activities could be construed as a successful outcome (admittedly not in the eyes of the complainant). Chief Justice Brian Dickson, writing for the majority in British Columbia Development Corporation v. Karl A. Friedmann, Ombudsman,59 had this to say: ‘On the other hand he (the ombudsman) may find the complaint groundless, not a rare occurrence, in which event his impartial and independent report, absolving the public authority, may well serve to enhance the morale and restore the self-confidence of the public employees impugned.’ The feeling among practitioners is that regardless of the outcome, the citizen has always had the benefit of a neutral third-party investigation at no specific cost.

The Ombudsman in Newfoundland and Labrador 145

Performance Record In what would be his final report to the House of Assembly in 1989, Commissioner Peddle wrote: We are often asked by the news media and others ‘In what percentage of cases is your Office successful?’ Our answer … 100%. The people who ask this question obviously view the Office of the Ombudsman as performing a strict advocacy role, as does a lawyer, where the objective is to win the case for the client. This view is not an accurate one. The role of the Office … is more of a judgmental and arbitration one in that having reviewed the facts of a given case and rendering an opinion, whether that opinion favours the complainant or the Department or Agency concerned, we are satisfied that we have done the job for which the Office was created.60

Former B.C. Ombudsman Howard Kushner posed a straightforward yet intricate question in his 2003 Annual Report to the B.C. legislature: ‘What is meant by effective?’61 Scholars admit that definition is a problem in any conceptual discourse, and opinions on the concept of ‘effectiveness’ vary. If one accepts the Concise Oxford Dictionary as at least a yardstick, ‘effective’ means ‘having a definite or desired effect.’ As the casual viewer will notice from any Commissioner’s or Citizens’ Representative’s report, the Newfoundland Ombudsman has rendered a full spectrum of assistance to complainants over the years: becoming not only an investigatory and reporting body but also an intervener, mediator, and at times (in the words of former Ontario Ombudsman and IOI President Clare Lewis) ‘a hectoring parent.’62 It has experienced little in the way of sensational case reporting but many instances of what Caiden and colleagues have referred to as the ‘unintentional impacts of otherwise well-intentioned procedure.’63 While getting recommendations accepted is a significant part of the work, it is too simplistic to measure success simply by counting the number of investigations completed with recommendations tendered and accepted. Despite our wealth as a nation, every province has individuals dealing with poverty, disease, hopelessness, mental illness, addiction, and vulnerability. Consider that another facet of the Ombudsman’s performance relates to issues that do not make it to the formal investigative stage, to situations that arise suddenly in prisons

146 Bradley Moss

or with single mothers or the elderly that require immediate attention or intervention based on a complex allegation. If the Ombudsman is considered the person of last resort, then part of the Ombudsman’s work is always non-jurisdictional by virtue of inquiries that result in referral for existing statutory rights of appeal or referral for action by other organizations. Which calls up this question: When someone is advised of appeal, and provided with contact information and an informal rundown of the appeal process, can such an encounter be considered ‘ineffective’? If the Citizens’ Representative is truly the ‘last resort,’ should it stray from serving the public in this manner? If the Ombudsman receives a grave and weighty allegation, and in the interest of gathering more information (to determine jurisdiction, exhaustion of appeal, or the validity of the claim) makes an informal inquiry that leads to direct action being taken to benefit the citizen and remedy the problem that same day, can this be considered ineffective if the person complaining achieves his lawful entitlement? C.C. Aikman commented in a 1964 edition of the Canadian Bar Review: ‘The fact that he can “call for the file” does impose on departments a salutary encouragement to see that their administrative procedures are both efficient and flexible. If this is achieved, whether it be as the result of an anxiety to avoid the probe of the Ombudsman or as a result of that probe, the Ombudsman will have justified his existence.’64 In a similar vein, Thynne and Goldring have suggested: ‘There seems to be a general feeling among officials that the possibility of review does lead to the exercise of greater care in decision making. Many departments have established positions for officers whose functions include liaison with the Ombudsman’s office, and this has led to informal procedures whereby review can take place with a minimum of disruption to administrative work, while at the same time ensuring a proper review of the decision.’65 Some may wish to tag this scenario as a ‘day in the life of a political assistant’; however, the more critical investigative component has still not been considered. Let us go back to our ‘grave and weighty allegation.’ On telephoning the administrator, the political assistant suspects that an arbitrary value judgment has been inserted into the decision-making process by the respondent and that full disclosure in the case will not be made available to him. This is where past provincial Liberal heavyweights, including Wells and John Efford – who accused the Tory opposition of being ‘frivolous’ and ‘bored’ when a private member’s bill was intro-

The Ombudsman in Newfoundland and Labrador 147

duced to re-instate the institution in 199966 – clearly missed the point. MHA Tom Lush (who went on to be Speaker of the House) at one point seemed to lampoon the concerns of citizens by citing excerpts from annual reports regarding requests that a bureaucrat’s decision be clarified, or regarding the Ombudsman upholding a respondent’s position. His contention was that such matters could have been directed to any MHA or bureaucrat. Efford’s response to the private member’s bill: ‘The other thing I think is that as Members of this House of Assembly, representing the electorate, representing our constituents, we get paid very well to look after our constituents. If they have a complaint they would make a phone call to my office, to my home. My number is in the phone book. My house is always ready to receive constituents. I meet with constituents periodically. Why do I need an Ombudsman to take care of my constituency calls? Why do we waste the taxpayers’ money in just taking the time to debate it? There is absolutely no reason for an Ombudsman’s office in this Province.’67 In contrast, Peter Boswell has observed that ‘the mere suggestion that MHAs can perform the task of the ombudsman demonstrates a deplorable ignorance of what the office is all about.’ 68 And Donald Rowat once stated that ‘it’s absolutely absurd to suggest members of a legislature can handle complaints like an ombudsman would … That’s an ancient argument that’s no longer relevant. There is always the chance that (government members) might not be impartial.’69 For Ombudsman purists, statements such as Efford’s demonstrate not only a fundamental unawareness but also a failure to understand the importance that the institution holds in the eyes of the complaining public, who realize fully that in the modern era of caucus discipline even the most experienced and well-meaning elected official can become a fading advocate. And for complainants, ‘going public’ is not always an option due to the involvement of heightened personal information or a simple unwillingness to disclose one’s personal problem with government. In terms of the Newfoundland Ombudsman, ‘effective’ tends to be measured by the number of complaints received in which any action is taken (1) to benefit or abet the citizens of the province, or (2) to bring finality to the complaint in a non-litigious format for the government, and, additionally, (3) to effect positive societal change by helping prevent the reccurrence of circumstances germane to the complaint. The simplest example of effectiveness in the present model would be the Citizens’ Representative’s report stemming from the investigation

148 Bradley Moss

of the Newfoundland and Labrador Emergency Measures Organization’s handling of the compensation regime administered after Hurricane Gabrielle in 2001.70 After Gabrielle dumped 119 millimetres of rain on St John’s in September of that year, several citizens complained about the amount of financial assistance provided. The complainants had varying degrees of quantifiable property damage, and each case was considered on its merits, applying the federal Disaster Financial Assistance Arrangements and the fairness test prescribed in Section 37 of the Citizens’ Representative Act. Legislative definitions and fairness standards were also employed. In the end, ten specific recommendations were tendered, seven of which have been assured of acceptance by the government to date. Along the way, improvements have been evident in the government’s responses to similar cases of flooding: Badger in 2003, Stephenville during 2005, and the run-up to Tropical Storm Florence in 2006. The data in Table 6.3 have been drawn from the Commissioner’s annual reports. It is evident that after 1977 the Commissioner began reporting complaints only and moved away from reporting telephone inquiries. The reader will notice that the number of actual complaints received dipped slightly between 1977 and 1978, indicating that he was most likely not blending the numbers. The data show that demand on the Commissioner was actually at its highest at the time the office was eradicated. Also worthy of note in the statistics is a reference in the 1986 Annual Report to a 20 per cent increase in complaint volume, which was attributed to the installation of a toll-free number.71 The statistics for the Citizens’ Representative are contained in Table 6.4, drawn from the respective annual reports. The Citizens’ Representative was open for ten months in 2002, and its first annual report covered the period 1 February 2002 to 28 February 2003. It then switched from a fiscal year reporting method to a calendar year reporting method in 2003, so that January and February of 2003 were included in the 2003 report, thus making the 2003 report the definitive source for statistics on 2002. The Citizens’ Representative freely admitted that the change would end up ‘causing some confusion for those who are reading both the first and second reports of the Citrep;’72 however, this temporary confusion would be cleared in subsequent reporting years. Also worthy of note is that in 2004 and 2005 the office ceased to report total telephone calls received, electing to report only the telephone calls that became formal inquiries or complaints.

The Ombudsman in Newfoundland and Labrador 149 Table 6.3 Commissioner’s statistics (by year) 1975 1 August/3 December 1976 1977 1978 1979 1980 1981 1982 1983 1984 1985 1986 1987 1988 1989

209 363 550 479 547 489 473 424 392 436 520 706 829 908 900

complaints, 224 phone inquiries complaints, 478 phone inquiries complaints, 300 phone inquiries complaints complaints complaints complaints complaints complaints complaints complaints complaints complaints complaints complaints

Table 6.4 Citizens’ Representative statistics (by year) 2002 (1 February 2002–28 February 2003) 2003 (1 January 1–31 December) 2004 2005 2006 (to March 2007)

1006 complaints*, 3565 telephone calls73 748 complaints, 2,181 telephone calls74 413 complaints, 145 telephone inquiries75 386 complaints, 173 telephone inquiries76 257 complaints and inquiries77

*Included one class of 200 home care complaints registered as a single systemic [complaint] and one group of 150 pension-integration complaints registered as a single systemic ‘complaint.’

Based on the foregoing, the Office of the Citizens’ Representative has experienced a steady decrease in the number of complaints received. Initial statistics showed 77 per month; over the years 2004 and 2005, the number fell to 33 per month; then for 2006, it was 17 per month. The 33 complaints and inquiries per month currently reported by the Citizens’ Representative compare to an average of 47.5 complaints received per month by the Commissioner during his tenure, and 33 per month in the Commissioner’s lowest reported year (1983). Reasons for the decline may include more effective screening of complaints on intake, the 2005 auditor general’s probe, and the investigation–suspension–dismissal process, which, while heaping publicity on

150 Bradley Moss

the office, also forced a decline in the solicitation and collection of complaints. Staff members have indicated that since early 2005 the office has not placed significant public emphasis on intake of new matters and has only had one new class complaint. The Acting Citizens’ Representative, Robert Jenkins, indicated that significant efforts were being made to deal with the backlog created by the first two years of steady intake and to resolve some extremely dated complaints (many from the eleven-year hiatus): I submit that the discretionary and legal allowance for cases older than one year accepted by my predecessor affected numbers for 2002 and 2003. Some cases were upwards of ten to twenty years old, and in the absence of an Ombudsman’s Office from 1991–2002, a large number from the 1990s were accepted for review and possible retroactive investigation in the interest of providing citizens with a platform to put their long standing complaints with government to rest … This led to an inevitable backlog. 2004 and 2005 were triage years where constant prioritization of files from previous years amidst new complaints was necessary … By the close of 2006 we anticipate our investigations will be primarily currentyear complaints.78

Newfoundlanders have readily embraced the services offered by the Commissioner and the Citizens’ Representative, notwithstanding the recent decline in the number of complaints. This decline has been due to the exceptional circumstances that have recently arisen with respect to the Citizens’ Representative. The numbers have also been affected by demographics – specifically, the province’s population has fallen by more than 63,000 (about 10 per cent) since the Commissioner left office in 1990.79 Workload Ombudsman offices worldwide tend to employ people with adaptable personal styles. They are forced to deal with all manner of personal situations, including people in emotional, financial, or mental difficulty. Ombudsman employees, and Ombudsman office holders, tend to have stressful jobs due to the scope, volume, secrecy, and sensitivity of the work. As a catch basin organization, employees are required to deal with some dreadful cases. Also, government is a frequent target of blame. As such, Ombudsman employees sometimes listen to stories of alleged abuse, mistreat-

The Ombudsman in Newfoundland and Labrador 151

ment, maladministration, and cover-up, as well as conspiracy theories, and they may receive personal threats. Through some correctional investigations, or various other contacts with the public, they deal with notorious criminals, drug addicts, curmudgeons, and bullies (many of whom have very legitimate complaints). Likewise, every day Ombudsman staff deal with law-abiding, balanced, rational, and financially secured citizens who also present legitimate complaints. For career sociologists, criminologists, psychologists, and political scientists, it is a truly fascinating study. For practitioners there is an added complication: investigators report that they must constantly be aware of the workplace dynamic, one that Greg Levine has described as the interesting and subtle interplay between disclosure and confidentiality in Ombudswork.’80 Informal contact with Ombudsman investigators across Canada and around the world has shown that one of the challenges an employee faces is managing the knowledge obtained from classified documents and interviews, and knowing from a personal and professional standpoint when such disclosure is appropriate. Interviews conducted with staff in the St John’s office81 indicate that staff at times lament they have ‘no one to talk to’ besides their immediate colleagues. As they cannot discuss their workday with their spouses in anything but general terms (‘good’ or ‘not good’), they must constantly exercise suppression whenever they are outside the office – most notably, whenever they hear media reports involving the Office of the Citizens’ Representative, or other topics of interest to the office. This is not an anomaly in public service; such feelings are especially common among other professions, including social work and policing. In Newfoundland as in other small provinces, it often happens that a citizen and a bureaucrat or a social worker shop in the same grocery store, or sit on the minor hockey committee together, or live within minutes of each other. Indeed, the urban/rural dichotomy plays into each day’s work, with this added ‘island dynamic’ – many complainants want to know what part of the province the investigator is from. Investigators and the former Citizens’ Representative reported that calls sometimes came to their house or that of a relative. With respect to physical files, the Senior Investigator and the three investigators have handled stables of up to 150 matters as well as internal projects of varying complexity (from inquiries to referrals to formal investigations to policy formulation and corporate services). There is no designated intake officer; by convention such work is shared based on availability and any specialty the staff member may

152 Bradley Moss

have carved out within the office. Claims for overtime are low but can fluctuate when files of a time-sensitive nature are on someone’s desk. Travel commitments may compound the need to work overtime or return to headquarters. Relationship with Public Servants and General Public With few exceptions, the office enjoys an excellent relationship with the public service. In the first days and months of operation, significant effort was placed on explaining to public servants the new role, mandate, and mechanics of what Guillermo O’Donnell would refer to as a ‘horizontal accountability’ structure.82 This education component continues today as the office attempts to let the various publics it serves know of its existence. A pilot project was conducted during 2005, continuing into 2006, to educate departmental officials in rural areas of the office’s role and mandate. This project will be continued and expanded across higher-volume departments. Staff members have stated that their relationship with both the public and the public service is predominantly positive.83 As the office is still in its relative infancy, an educational component is sometimes required to temper expectations of the complainant or to counter apprehension or defensiveness on the part of public servants who are unfamiliar with procedures, especially with respect to access to information of the sort they are bound to keep secret by their own governing legislation or the Access to Information and Protection of Privacy Act. Such disagreements sometimes manifest themselves in exchanges of correspondence; a preferred method of resolving disputes is to meet directly with the party at odds so as to avoid volleys of vague or incendiary correspondence (which also introduce inertia to the investigative process). The goal in this is to arrive at a mutual, more immediate understanding of how to best deal with the problem at hand. Staff suspect that some public servants – especially those who are involved in larger files – may be the subject of scrutiny themselves under the Breach of Duty or Misconduct clause in Section 30(2) of the Citizens’ Representative Act. These people may view Ombudsman oversight as an aggravation. Despite prolonged exposure to a predominantly negative and at times pessimistic complaining public, staff report that there is nectar in Ombudsman work, which comes from two sources: the investigator’s dream of finding the slice of evidence on which an entire case turns,

The Ombudsman in Newfoundland and Labrador 153

and receiving thanks from a citizen who has found success when there was nowhere else to turn. Employees also report significant satisfaction in producing accomplished and ironclad investigative reporting that stands up to scrutiny from all sides. Unlike courts, Ombudsman decisions cannot be appealed unless the allegation is of bad faith. Also unlike courts, Ombudsman offices are not insulated from verbal contact with the parties to a dispute. There are always parties who do not dispute facts but who do dispute outcomes. Likewise, some public servants sometimes misinterpret their own power or the power of the Citizens’ Representative. While no formal surveys have been conducted by the Citizens’ Representative, staff report that by and large, the members of the public and the public service they deal with have faith in the institution and believe in its larger goals. Conclusion For twenty-one of the past thirty-two years, Newfoundland has had an Ombudsman office. This experience has been marred in two instances by controversy: the outright closure of one office, and the dismissal of the first Ombudsman in the reincarnated office. Lost in this noise have been the Ombudsman’s successes in bringing the ‘lamp of scrutiny’84 to such a small, politically charged jurisdiction dominated by majority governments and the overt control of premiers. At the height of their intake, the Commissioner and the Citizens’ Representative have accepted more than nine hundred complaints in a calendar year. While daunting from an investigative standpoint (given the small staff contingent), the data indicate that there is a demonstrable demand for such an administrative oversight device, and that Newfoundlanders have not been shy in employing it. What is critical, but remains to be seen, is the institutionalization of the Office of the Citizens’ Representative over time. While the day-today frustrations experienced by the Ombudsman in larger, more established jurisdictions plague Newfoundland as well, the Citizens’ Representative will have to bear the additional burdens of shedding its unwanted and unsolicited baggage, and nurturing its credibility in a small bureaucratic culture while maintaining its independence and its effectiveness. With respect to the minutiae of complaint handling, the Commissioner was, and the Office of the Citizens’ Representative has become, an efficient and effective complaint-handling mechanism for the province of Newfoundland and Labrador.

154 Bradley Moss NOTES * The author acknowledges the valuable assistance provided by Mrs. Kim Terrio, Secretary/Office Manager of the Office of the Citizens’ Representative. The views and opinions described herein are strictly those of the author and do not necessarily reflect those of the Office of the Citizens’ Representative. 1 For general accounts of the evolution of the government and politics of Newfoundland and Labrador, see The Encyclopedia of Newfoundland and Labrador, I:679 (Elections) and II:580 (Government), edited by Joseph R. Smallwood (St John’s: Harry Cuff, 1993). See also Valerie Summers, ‘Between a Rock and a Hard Place: Regime Change in Newfoundland,’ in The Provincial State in Canada, edited by Keith Brownsey and Michael Howlett (Peterborough: Broadview, 2001). The CRB Foundation and the J.R. Smallwood Centre for Newfoundland Studies at Memorial University of Newfoundland provided sponsorship and financial support to the formation of the Newfoundland and Labrador Heritage website, http://www.heritage.nf.ca, which provides good outlines of pre- and post-Confederation political issues and actors. 2 Newfoundland, House of Assembly, Hansard, 30 November 1966, 4 (Lt. Gov. Fabian O’Dea). 3 Editorial, ‘Approval for an Ombudsman,’ Evening Telegram, 13 May 1969, 8. 4 Newfoundland, House of Assembly, Report of the Select Committee on the Appointment of an Ombudsman (April 1969), 10. 5 Parliamentary Commission (Ombudsman) Act, R.S.N. 1970 c. 285 6 Hansard, XLI, 6, R5, L6 (Winston Baker). 7 Government of Newfoundland and Labrador, Budget 1990 (St John’s: 1990), 11. 8 Hansard, vol. XLI, no. 82, 22 November 1990, L9 (Clyde Wells). 9 Hansard, XLI, 82, 27 November 1990, R10 (Clyde Wells). 10 Hansard, l, 3, 23 February 1970, L26 (Clyde Wells). 11 Hansard, XLI, 30, 9 May 1990, R23 (Len Simms). 12 Hansard, XLI, 30, 9 May 1990, L40 (Robert Aylward). 13 Philip Lee, ‘Now Who’s Watching?’ Sunday Express, 18 March 1990, 6. 14 Editorial, ‘The Necessity of Dissent,’ Evening Telegram, 14 April 1990, 4. 15 Peter Boswell, ‘Killing the Watchdog,’ Evening Telegram, 19 May 1990, 5. 16 Citizens’ Representative Act, S.N.L. (2001) c. C-14.1 17 Royal Newfoundland Constabulary Act (1992), S.N.L. c. R-17, s. 18.

The Ombudsman in Newfoundland and Labrador 155 18 19 20 21 22 23 24 25 26 27 28

29 30 31 32 33 34 35 36 37 38 39 40 41

42

Parliamentary Commissioner (Ombudsman) Act, s. 6(1). Citizens’ Representative Act, s. 5(1). Parliamentary Commissioner (Ombudsman) Act, s. 6(3). Ibid., s. 15(1). Citizens’ Representative Act, s. 19. Parliamentary Commissioner (Ombudsman) Act, s. 21. Citizens’ Representative Act, s. 20. Ibid., s. 45. Parliamentary Commissioner (Ombudsman) Act, s. 31(1). Parliamentary Commissioner (Ombudsman)(Amendment) Act, 1975, no. 32. Special Report of the Parliamentary Commissioner (Ombudsman) re: ‘Jurisdiction of the Parliamentary Commissioner to Investigate Complaints of Patients at the Waterford Hospital,’ St John’s, 11 May 1976. An Act to Amend the Parliamentary Commissioner (Ombudsman) Act (1982), no. 30, s. 3. Ibid., s. 2. Citizens’ Representative Annual Report (2002), 33–5. Public Service Commission (Amendment) Act (2005), SNL c-C. 47 s. 1(2)(k)(iii). Citizens’ Representative Annual Report (2003), 46, 47. Regulation made under the Ombudsman Act (Ontario), R.R.O. 1990, Reg. 865, s. 4. Citizens’ Representative Annual Report (2003), 47, 48. Special Report no. 3 to the House of Assembly by the Parliamentary Commissioner, 20 February 1982. Special Report no. 2 to the House of Assembly by the Parliamentary Commissioner, 21 February 1980. Special Report no. 1 to the House of Assembly by the Parliamentary Commissioner, 11 May 1976. Report of the Parliamentary Commissioner (Ombudsman) for the Period 1August– 31 December 1975, 2–3. Citizens’ Representative Annual Report (2002), 22–3. Quebec’s Ombudsman is known as the ‘Protecteur,’ and Spain, Peru, and Argentina have employed the term ‘Defensor del Pueblo.’ ‘Representative’ contains an element of ‘protection and defence’ through connotations or at least public perceptions of managing someone’s legal or business affairs or taking the place of the individual in formal proceedings. Total votes cast versus total registered voters calculated as a percentage. NL Chief Electoral Officer, ‘Report on the October 21, 2003 General Elec-

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43

44

45

46

47 48

49 50

51

tion,’ 110, 116. http://www.elections.gov.nl.ca/elections/pdf/GE report2003.pdf For more on the politics, processes, and effects of island insularity, see Stephen A. Royle, A Geography of Islands (London and New York: Routledge, 2001), chs. 3 and 7. Statistics Canada, 2001 Census, ‘Population Counts, for Canada, Provinces, and Territories, and Census Divisions by Urban and Rural.’ http://www12.statcan.ca/english/census01/products/standard/popdw ell/Table-UR-D.cfm Calculated through Reports of the Parliamentary Commissioner (various years). The commissioner did not report by electoral district, but rather by individual community. ‘Outside St John’s’ in Table 6.1 refers to all communities reported besides St John’s, Mount Pearl, including Kilbride (which amalgamated with St John’s) from 1986 forward. Calculations exclude complaints received from the rest of Canada and the United States, of which there were no more than twelve in a single year (1977). Percentages compiled using total complaints from electoral districts excluding St John’s Centre, St John’s East, St John’s West, St John’s North, St John’s South, Mount Pearl, Signal Hill–Quidi Vidi, Virginia Waters, Waterford-Kenmount and Kilbride, but including districts such as Topsail, Conception Bay South, Conception Bay East and Bell Island, and Cape St Francis, which form part of the ‘Northeast Avalon Region.’ Statistics Canada, 2001 Census, ‘Populations Counts.’ The Newfoundland and Labrador Community Accounts (a demographical and statistical study spearheaded by the Government of Newfoundland and Labrador) indicate 2001 self-reliance ratios for Labrador City, Churchill Falls, and Labrador City were 94, 96 and 88 per cent respectively. This is a measure of the community’s dependency on government transfers such as Canada Pension, Old Age Security, Employment Insurance, social assistance, and so on. The higher the percentage of income that comes from transfers, the lower the self-reliance ratio. The provincial self-reliance ratio for 2001 was 77 per cent. http://www.communityaccounts.ca/communityaccounts/onlinedata/default.asp Statistics Canada, 2001 Census, ‘Populations Counts.’ In Ireland, residents of Dublin are often referred to as ‘jackeens,’ who express some cultural superiority over ‘culchies,’ or residents outside the city. See Royle, A Geography of Islands, 46. For definitions of ‘fishocracy,’ ‘townie,’ and ‘bayman’ along with thousands of other Newfoundland words and expressions, see Dictionary of Newfoundland English (Toronto: University of Toronto Press, 1982).

The Ombudsman in Newfoundland and Labrador 157 52 Bruce Barbour, ‘The Ombudsman and Today’s Demographic Realities,’ paper presented to the Eighth Congress of the International Ombudsman Institute, Quebec City, 8 September 2004. 53 Newfoundland and Labrador Budget Estimates 2006, 64. 54 Citizens’ Representative Annual Report (2003), 49. 55 Ibid., 51. 56 Citizens’ Representative Annual Report (2002), 66. 57 Statistics Canada Census of 2001, ‘Population with English as First Official Language Spoken, Mother Tongue, or Language Spoken Most Often at Home, Canada, Provinces, Territories and Canada less Quebec, 2006.’ http://www12.statcan.ca 58 Wendy Bernt and Stephen Owen, ‘The Ombudsman in Canada,’ in Righting Wrongs, edited by Roy Gregory and Philip Giddings (Amsterdam: IOS, 2000), 128. 59 (1984) 2 S.C.R. 447 at 461 60 Fifteenth Annual Report of the Parliamentary Commissioner (Ombudsman) for the Calendar Year 1989. 61 British Columbia Office of the Ombudsman Annual Report (2003), 6. 62 Clare Lewis, QC, ‘The View from the Ombudsman’s Chair,’ speech to the Society of Ontario Adjudicators and Regulators, 4 April 2001, Toronto. 63 Gerald E. Caiden ‘The Institution of Ombudsman,’ in International Handbook of the Ombudsman: Evolution and Present Function, ed. Gerald E. Caiden (Westport: Greenwood, 1983), 3. 64 Colin Campbell Aikman, ‘The New Zealand Ombudsman,’ Canadian Bar Review 42, no. 3 (September 1964): 420. 65 Ian Thynne and John Goldring, Accountability and Control: Government Officials and the Exercise of Power (North Ryde, NSW: Law Book Company, 1987), 152. 66 Hansard, 24 November 1999, vol. XLIV, no. 38. 67 Ibid. 68 Peter Boswell, ‘Killing the Watchdog,’ Evening Telegram, 19 May 1990, 5. 69 Mark Bastien, ‘Ombudsman Eliminated,’ Canadian Press, 14 August 1990. 70 Office of the Citizens’ Representative, Report on Investigation of Complaints Re: Hurricane Gabrielle (2003). 71 Report of the Parliamentary Commissioner (Ombudsman) (1986), 4. 72 Citizens’ Representative Annual Report (2003), 20. 73 Ibid., 21. 74 Ibid., 3. 75 Citizens’ Representative Annual Reports (2004 and 2005), 8.

158 Bradley Moss 76 77 78 79

80

81 82

83 84

Ibid. Citizens’ Representative Annual Report (2006), 18–20. Citizens’ Representative Annual Reports (2004 and 2005), 3–4. Economics and Statistics Branch, Newfoundland and Labrador Statistics Agency, ‘Population by Age Group, Newfoundland and Labrador, 1 July 1971 to 2005. Both Sexes.’ http://www.stats.gov.nl.ca/Statistics/ Population/PDF/PopAgeSex_BS.PDF Gregory J. Levine, ‘The Ombudsman and Fair Administrative Practice: A Unique Form of Government Ethics Law,’ paper presented to Green College, University of British Columbia, Vancouver, 26 January 1999. Employee interviews, 21 December 2005. Guillermo O’Donnell, ‘Horizontal Accountability,’ in The Self-Restraining State: Power and Accountability in New Democracies, edited by Andreas Schedler, Larry Diamond, and Marc F. Plattner (Boulder: Lynne Rienner, 1999), 38. Staff interviews, 21 December 2005. Re: Alberta Ombudsman Act (1970), 10 D.L.R. (3d) 47 at p. 61, 72 W.W.R. 176 at pp. 192–3 (Alta. S.C.), per Milvain C.J.T.D.

Recto Running Head 159

7 Nova Scotia’s Ombudsman: Conciliator, Consultant, and Cooperator lori turnbull

The Nova Scotia Office of the Ombudsman has received approximately 2,000 calls per year for the past decade. It has not experienced a significant decline in public contacts as some OmbudsOffices in Canada have. Nova Scotia’s data can be interpreted in a positive light as an indication of the office’s visibility and accessibility. However, statistical reports of incoming calls are an insufficient measure of the Ombudsman’s impact overall. This is especially true in Nova Scotia, where the office’s role is multifaceted. Ombudsman staff do important work when responding to individuals’ complaints and resolving disputes, but the office makes its most substantial contributions through its consultative work with legislative committees, government departments, and federal entities such as the RCMP. Responding to complaints provides a role for an OmbudsOffice only at the policy ‘output’ stage, when citizens give feedback on policies that have been implemented. However, through participation in policy discussions with committees and public officials, OmbudsOffice personnel can use their experience and expertise to influence policy formation. The Ombudsman’s consultative work with government officials is an example of the non-adversarial approach that Nova Scotia’s Ombudsmen have taken in their interactions with the government. Historically, Ombudsmen in Nova Scotia have worked to maintain positive relationships with public servants and have relied on these networks when persuading government departments to adopt their non-binding recommendations. Current Ombudsman Dwight Bishop recognizes the importance of building relationships of trust not only with government officials but also with members of the public. His logic is that if people do not get to know him and trust his compe-

160 Lori Turnbull

tence, they are not likely to come to him with complaints about service delivery. The Ombudsman’s mandate has widened over the years, as has its impact. The Nova Scotia OmbudsOffice has expanded to include Youth and Seniors’ Services divisions, and since 2004 it has also been responsible for investigating certain types of complaints under the Civil Service Disclosure of Wrongdoing Regulations. As a result, the Ombudsman is playing a key role in preserving fairness and integrity not only in service delivery but within the public service itself. This chapter explores the unique features of Nova Scotia’s OmbudsOffice and how its work contributes to both policy formation and service delivery in Nova Scotia. It has five sections. The first summarizes the evolution of the Ombudsman’s mandate and functions in Nova Scotia. The second shows how the office’s budget and staff have grown over the years, albeit very gradually. The third outlines the proactive strategies the office has adopted that have broadened its role beyond the Ombudsman’s traditional one of complaint investigation. In the fourth section, statistical data are provided to illustrate trends in citizens’ calls to the OmbudsOffice. The fifth and final section focuses on the challenges inherent in assessing the Ombudsman’s impact on service delivery and on public attitudes towards government. It seems that as Nova Scotia’s Ombudsmen have employed more proactive strategies, the office has become a more useful and utilized resource for citizens. Thus it might serve as an example for others across the country. The findings in this chapter are based on interviews with the Ombudsman and staff members and on the annual reports the office has published over the years. Mandate and Functions In 1964 the Government of Nova Scotia tasked a legislative committee with weighing the pros and cons of creating an Office of the Ombudsman. That committee concluded that the office would be ‘of some value’; even so, it recommended against establishing one. There was some resistance to the idea among provincial politicians. Some felt that an Ombudsman was unnecessary because politicians themselves were the appropriate people to handle complaints and inquiries about government services. In 1969, under pressure from the opposition, the government appointed a new committee to revisit the issue. Following

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the committee’s positive recommendation, the Ombudsman Act took effect in 1971.1 As elected public representatives, politicians have a special responsibility to address constituents’ concerns; that said, an OmbudsOffice’s independence from government and from partisan politics makes it uniquely suited to the task of resolving disputes between the general public and public servants. Partisan representatives can hardly escape their political agendas. Opposition politicians might be inclined to use complaints about service delivery as ammunition against the government during partisan battles. For their part, government MLAs might feel obliged to defend public employees and services or to downplay complaints so as to keep them out of the public eye. Such scenarios are hardly ideal for resolving disputes between public officials and individuals or for improving service delivery. The Ombudsman is a neutral actor without a party-related incentive to either publicize or conceal maladministration. The provincial Cabinet appoints the Ombudsman for a five-year term, after which the appointee is eligible for renewal. Under Nova Scotia’s Ombudsman Act, the office is authorized to receive and investigate people’s complaints and questions about public officials in all provincial and municipal departments, agencies, boards, and commissions. Its mandate extends to arm’s-length organizations and to those foundations and corporations (as statutorily defined) that are supported by or that direct the expenditure of public funds by the province. The OmbudsOffice does not deal with complaints against cabinet ministers, elected officials, private entities, federal government departments or agencies, or judges. All inquiries to the Ombudsman are kept confidential and are not subject to freedom-of-information requests.2 Not all Ombudsmen in Canada have jurisdiction over municipal public servants, but Nova Scotia’s does. There are two reasons for this. First, municipalities and the province have parallel jurisdiction in several policy areas. For instance, while some municipalities have responsibility for policing, the province oversees it in other areas. The Ombudsman’s jurisdiction over both orders of government helps ensure a comparable level of service quality throughout the province, regardless of which order of government is providing the service. Second, it is likely that citizens have more frequent contact with municipal officials than with any other level of government.3 If the OmbudsOffice’s authority did not extend to municipal officials, a sig-

162 Lori Turnbull

nificant percentage of public services in Nova Scotia would escape its scrutiny. Besides responding to citizens’ complaints, the Nova Scotia Ombudsman has the authority to launch ‘own-motion investigations’ of government services even when no specific complaint has been received about them. If any department has become a frequent target of complaints from citizens, this authority gives the Ombudsman the ability to do a thorough investigation of its service delivery. In 2006–7 a total of six ‘systemic’ and/or own-motion investigations were launched.4 Section 14 of the Ombudsman Act gives the office the right to refuse to act on a complaint or inquiry in any of the following circumstances: • An adequate right of appeal already exists within the department

against which the complaint is being made. • The complaint is trivial or not made in good faith. • The Ombudsman decides that, due to the circumstances of the

case, further investigation is unnecessary. • The complaint relates to a situation, decision, or set of circum-

stances of which the complainant was aware for more than one year. • The complainant does not have a personal interest in the subject matter of the grievance. • The Ombudsman determines that upon a ‘balance of convenience’ between the complainant and the public interest, the grievance should not be investigated.5 The available data suggest that historically, the OmbudsOffice has rarely resorted to Section 14. Unfortunately, most annual reports do not include data on the number of times the Ombudsman refused to investigate a complaint. Records from 1990 to 1995 indicate that in 1990 the office refused to investigate 8 per cent of the complaints that came in.6 Between 1992 and 1995 it refused to investigate between 1 and 4 per cent of complaints each year.7 These percentages speak to the office’s commitment to the public and its willingness to confront allegations of maladministration. In other words, it has not used Section 14 as an escape route. Even when calls to the OmbudsOffice reached their highest levels in 1993 and 1995, and the office complained of inadequate budgetary resources (see below), it continued to investigate the vast majority of inquiries and did not resort to Section 14 as a way of lightening its workload.

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From its creation in 1971 until 1996, the Nova Scotia Ombudsman’s defining function was to investigate complaints and answer inquiries about government service delivery and to help complainants and the responding government departments resolve disputes. In 1996 the office was expanded to include a Children’s Services Branch. This branch receives calls and letters from youth, parents, and employees regarding youth-serving facilities.8 Its staff do much more than respond to complaints: they play an important role in overseeing child protection and custody facilities. They also make regular visits to these facilities to monitor conditions and make recommendations for improved service delivery.9 The year 2004 was an eventful one for the office, as the provincial government expanded its mandate in three directions. First, it created the Seniors’ Services Branch, modelled after the Youth Branch discussed above. Also that year, it assigned the OmbudsOffice responsibility for handling complaints under the Civil Service Disclosure of Wrongdoing Regulations. Then in December it amended the Ombudsman Act to give the office the authority to investigate inquiries about arm’s-length organizations, including school boards, child welfare agencies, licensed child-care facilities, and nursing homes, homes for the aged, and residential care facilities for seniors, as well as hospitals and community colleges. The Ombudsman Act now includes a list of the boards and agencies over which the Ombudsman has jurisdiction.10 At this writing (June 2008) the Nova Scotia OmbudsOffice divides its attention and resources among three main branches: Investigation and Complaint Services, Civil Service Disclosure of Wrongdoing, and Youth and Seniors’ Services. Next, this chapter discusses the basic activities of the OmbudsOffice under the first two of these branches. Investigation and Complaints Services Though every complaint is unique, the OmbudsOffice takes the same approach to each. The first stage is now called ‘intake’ (before, it was referred to as ‘initial screening’). The officer who receives the call determines whether the subject matter is within the Ombudsman’s jurisdiction. Calls outside the office’s jurisdiction are called ‘referrals’ because the officer refers the person to the appropriate authority to deal with the complaint. The first step in dealing with a jurisdictional complaint is to advise the caller of any avenues of appeal available

164 Lori Turnbull

within the department against which the complaint is made. If internal appeal procedures are in place, the complainant is to exhaust those before consulting the Ombudsman. If the officer determines that further service from the OmbudsOffice is required, the matter is referred to an Ombudsman representative. At the second stage, called ‘administrative review,’ the representative gathers facts and researches the policies and legislation relevant to the complaint. She tries to reach a solution through informal disputeresolution procedures. Reviews usually take between one and four weeks to complete, but most are wrapped up within seven days. The vast majority of inquiries and complaints are dealt with quickly via administrative review. If this process is unsuccessful, the OmbudsOffice moves to the final stage, ‘investigation.’ Investigations involve comprehensive research of the situation that led to the complaint and of the relevant legislation and policies. Also, the OmbudsOffice conducts interviews with the complainant, public officials, and witnesses. If it is thought necessary, the OmbudsOffice makes recommendations to the responding department aimed at improving service delivery. Though these recommendations are non-binding, they are usually followed. By the end of the 2006–7 fiscal year, fifteen of the eighteen recommendations that the Ombudsman had been monitoring at the beginning of the year had been implemented.11 If a recommendation is rejected, the Ombudsman has the option to table it with the Speaker of the House so as to raise its public profile and pressure the department to reconsider. This was done only a few times in the years immediately after the OmbudsOffice was established.12 Since 1971 the province’s Ombudsmen have tended to pursue a non-adversarial approach in their relations with government officials, relying on persuasion to encourage – not demand – compliance with their suggestions for improved service delivery. The province’s first Ombudsman, Dr Harry Smith, believed that ‘confrontation is not the way’ and that the OmbudsOffice is most productive when its staff are ‘tactful, gentle, forcefully persuasive, and reasonable.’13 The current Ombudsman, Dwight Bishop, believes that the way to ensure that his recommendations are adopted is to build positive relationships with public servants so that they come to respect him and to trust his advice. To this end, the OmbudsOffice now holds regular meetings with department officials and deputy ministers. Since government departments in Nova Scotia tend to cooperate with the OmbudsOffice on most of its recommendations, it would not seem to be in the

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Ombudsman’s best interest to risk jeopardizing this relationship by exposing occasional non-compliance. The rare occasions when department officials have not cooperated have been documented in the office’s annual reports. In 2005–6 as well as 2006–7, Bishop noted in his report that some departments were more cooperative than others, but he did not go into more detail. Ombudsman Douglas Ruck in his 1994–5 report wrote that provincial and municipal officials in a number of departments had taken an uncooperative attitude towards his investigations. In some cases the responding departments had been quick to involve their legal staff in their dealings with him, which made the Ombudsman’s work more time consuming as well as costly. Because the Ombudsman’s services are free of charge to the public, the financial burden of departments’ litigiousness is borne solely by the office. As well, the fact that investigations were drawn out meant that complainants were forced to wait longer for their issues to be resolved.14 In the same report, Ruck mentioned that on very rare occasions some of the people who had complained to the Ombudsman had been retaliated against by the departments against which they had complained.15 However, the report did not specify the nature of these retaliations. Ruck proposed that the Ombudsman Act be amended to include a clause that would make it an offence to take action against a person who complains to the Ombudsman. The House of Assembly has yet to make that change. Civil Service Disclosure of Wrongdoing Regulations In 2004 the Ombudsman’s jurisdiction was expanded to include investigating complaints under the Civil Service Disclosure of Wrongdoing Regulations. If a government employee at the provincial or municipal level believes she is being asked to commit wrongdoing, or if that wrongdoing has occurred or is likely to occur, she may inform her supervisor, the deputy minister, and/or the OmbudsOffice. In preparation for the adoption of these regulations, a Nova Scotia Ombudsman representative was trained at the Public Service Integrity Office in Ottawa. Also, the OmbudsOffice held consultations with the provincial Public Service Commission and helped the Workers’ Compensation Board develop its own disclosure-of-wrongdoing procedures.16 There is now a toll-free Wrongdoing Inquiry Line that government employees can use to telephone the OmbudsOffice and be connected with the representative responsible for complaints under the regulations.17

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The new rules have enhanced transparency and accountability in the public service by assigning to the Ombudsman the fundamental role of acting as a voice for public officials who are prepared to blow the whistle on inappropriate conduct.18 Government employees might be hesitant to confide in their superiors about wrongdoing in their departments, perhaps suspecting that the complaint will not be dealt with appropriately. For instance, when federal public servant Allan Cutler complained to Charles Guité in the mid-1990s about irregularities in the awarding of contracts in the Public Works Department, his complaints were not investigated and he found himself shuffled out of his job.19 As will be explained more fully below, the regulations give the Nova Scotia Ombudsman the responsibility to report complaints of wrongdoing to the Public Service Commissioner and, when appropriate, to investigate these complaints. In other words, once an issue has been brought to his attention, there is no chance that it will be swept under the rug. The regulations make it clear that the Ombudsman is meant to be a last resort, to be approached after alternative appeal procedures have been exhausted. Section 10 states that before complaining to the Ombudsman, an employee must have already brought the issue to the attention of the deputy minister and concluded that the matter was not being ‘appropriately addressed.’ Or the employee must reasonably believe that it would be inappropriate to bring the matter to the immediate supervisor or deputy head because of the subject matter of the alleged wrongdoing. Especially in light of the lessons learned from the Gomery Inquiry into the federal sponsorship program, it is vital for public servants to have access to an effective procedure for disclosing wrongdoing, especially if the department’s highest-ranking officials are involved.20 The Ombudsman may refuse to investigate an allegation of wrongdoing on the same grounds as those on which he may reject complaints from the general public. Also, the Ombudsman must ensure that the complainant has at least considered dealing with the issue through internal appeal procedures. An Ombudsman who refuses to investigate a complaint must indicate the reasons in a report to the complainant, the Public Service Commissioner, and perhaps the deputy minister if it was appropriate for the matter to be brought to the deputy minister in the first place. An Ombudsman who decides to investigate must file a written report with the complainant, the Public Service Commissioner, and the

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deputy head of the department that is to be investigated. Section 13 of the regulations states that after an investigation, the Ombudsman must send a report to the above individuals containing the information and evidence gathered, a conclusion regarding whether wrongdoing had occurred, and any additional relevant information. The Ombudsman must also recommend to the appropriate deputy minister how to correct the problem and is permitted to ask for updates on the department’s progress in this regard. If the deputy minister does not act within a reasonable amount of time, the Ombudsman is to report the situation to a member of the executive, most likely the cabinet minister responsible for that department. Each year the Ombudsman must submit a report to the Public Service Commissioner indicating the number of complaints and inquiries received under the disclosure-ofwrongdoing regulations, the number of investigations pursued, the number of recommendations made in response to wrongdoing, and any evidence of systemic conditions that might give rise to wrongdoing.21 In the 2006–7 period the OmbudsOffice received eighteen complaints under the disclosure-of-wrongdoing regulations.22 Staffing and Funding Between 2000 and 2004 the Ombudsman position in Nova Scotia was a part-time job. Mayann Francis held the post while serving as the province’s Human Rights Commissioner as well. Her appointment as Ombudsman was meant to be interim; it lasted until Dwight Bishop’s full-time appointment in January 2004. Her simultaneous occupancy of these roles stirred controversy. Some believed it could result in a conflict of interest – after all, if someone who complained to the OmbudsOffice about services received through the Human Rights Office, how could Francis respond objectively? In March 2001 the OmbudsOffice published a set of guidelines indicating that if it received a complaint about the Human Rights Office, the staff would investigate without involving the Ombudsman herself.23 Now that the Ombudsman’s job is full-time, these guidelines are no longer necessary. Nova Scotia’s first Ombudsman, Dr Harry Smith, had a staff of only one secretary. Over the years the office’s budget and staff have grown, but only very gradually. Between 1977 and 1995 the office had only four staff in addition to the Ombudsman. In 1985 the Ombudsman contended in his annual report that his staff complement had been too

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small to deal with the 1,000 complaints and inquiries the office received that year. In the 1993–5 report the office issued another plea for funds. It is little wonder why: the office complement had not changed, but calls had peaked at around 4,000 per year!24 The 1993–5 period stands out as the most antagonistic in the history of the Nova Scotia Ombudsman’s relationship with the provincial government. During those years, complaints were at their highest levels ever, the Ombudsman’s budget was strapped, and several government departments were unwilling to cooperate with the office’s investigations. Also, 1993 was the first year of John Savage’s tenure as provincial premier – years that were famous for drastic cuts to social spending, including the salaries of provincial civil servants.25 In the resulting political climate, frustration among civil servants was intense, so it is not surprising that the Ombudsman’s telephone lines were constantly busy. The office’s staff complement increased dramatically in 1999. Investigators, field officers, and a research assistant were all added. By 2001 there were eleven staff positions, though eight of these remained parttime or casual for several years. One result has been that the office has suffered from very high turnover.26 This has made it difficult for the office to build on the on-the-job experiences of its staff members. In 2000 the office added a Children’s Ombudsman for youth issues. However, because this branch had few staff and very few full-time positions, the first Children’s Ombudsman also served as Assistant Ombudsman responsible for office administration. In 2002 one employee held concurrently the positions of Assistant Ombudsman, Children’s Ombudsman, and Director of Investigations! On the positive side, multitasking allows staff to develop a broad understanding of the workings of the OmbudsOffice and its components. However, the workload was onerous and would not allow this employee to commit herself entirely to any of the portfolios, and this threatened to compromise the office’s long-term efficiency and effectiveness. During the 2004–5 fiscal year the OmbudsOffice was able to convert several casual and part-time positions to stable and/or full-time ones, which brought multitasking to an end. The office now has sixteen fulltimers.27 All staff have been trained in ethics, administrative justice, investigation techniques, conflict resolution, Aboriginal perceptions, diversity, and employment equity. Job descriptions for investigators were revised around 2004 to reflect the different approaches that are appropriate when dealing with specific populations, such as youth

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and seniors. Several of the permanent staff have formal training in law and policy, human rights, and conflict resolution – all useful skills when it comes to investigating disputes, analysing policies and legislation, and writing reports. In 2001, staff members worked with a consultant to improve their writing skills in order to make their reports more accessible.28 The office has employed interns from Nova Scotia Community College, Dalhousie Law School, and (recently) a graduate student from the Netherlands, who wrote a thesis on the OmbudsOffice’s impact in the province. Apparently the office sets its own goals and monitors its own progress and effectiveness. It does not receive much attention from the legislature, and it has never been investigated by the province’s auditor general. Staff rely on a standardized investigation protocol to monitor the time frames in which complaints are dealt with.29 In 2007 the office introduced an internal quality assurance program. Under this, the executive director and other senior employees select files randomly to check that complaints are being handled expeditiously and comprehensively and that time-frame targets are being met.30 Efficient use of time and resources helps the office to stay within its budget, which has been growing recently. From 2000 to 2004 the annual budget of the OmbudsOffice was about $800,000. It was increased to $915,000 in 2004–5, to $1,152,000 the following year, and most recently to $1,384,000 in 2006–7. In almost every year for which fiscal reports are available, the office has underspent its budget owing to overestimations in projected expenses. About 70 per cent of each annual budget goes to staff salaries and benefits.31 Ombudsman Bishop says that the office’s current staff complement is adequate and that the budget reflects the government’s strong support of his office’s work. He believes that the current budget is sufficient for his office to complete its work effectively and efficiently. This is essential. An officer of Parliament can be granted vast statutory powers, but those powers will be meaningless without the resources to back them up. In 1994–5 the OmbudsOffice was forced to cancel trips around the province because of a shortage of funds. That compromised the office’s accessibility and visibility, especially in those areas that are farthest from the Ombudsman’s Halifax office. The Ombudsman Act protects the Ombudsman’s independence by guaranteeing his term of office and his right to table reports in the House of Assembly if the government rejects his recommendations. However, this independence is compromised by the fact that the polit-

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ical executive sets the office’s budget. Legislative committees have taken over this task in some provinces, but in Nova Scotia it is possible for a government to undermine the office’s work by depleting its resources. This vulnerability could encourage an Ombudsman to try to maintain cordial relations with the government, even if it means downplaying evidence that suggests maladministration. There is no evidence that this has happened in Nova Scotia, but to prevent such an occurrence, a legislative committee could be given the task of setting the Ombudsman’s annual budget. Proactive Measures In the past decade, the Nova Scotia OmbudsOffice has expanded its activities. Besides the traditional functions – investigating complaints and inquiries about service delivery – the Ombudsman’s tasks now include the following: • Monitoring youth and seniors’ residential, care, and custody/cor-

rectional facilities. • Consulting with legislative committees, government agencies, and

boards. • Establishing relationships of trust with public servants, including

deputy ministers. • Educating Nova Scotians about the roles and responsibilities of the

Ombudsman. The Youth Services Branch reviews and investigates concerns articulated by youth, parents, guardians, and youth workers regarding service delivery in youth-serving systems. Most complaints and inquiries relate to the procedures and policies in place in youth care facilities, but youth have also complained about food services, social workers, access to health care, and conflicts with other youth.32 Besides investigating complaints, the OmbudsOffice monitors conditions by making regular visits to youth correctional and secure care facilities, holding cells, sheriff services, and residential child care facilities. These visits assess the quality of service delivery; they also ensure that youth in care are aware of the OmbudsOffice and its services. Whenever a minor is taken into custody in Nova Scotia, she is informed of her right to contact the OmbudsOffice. In all youthserving facilities in the province there are pamphlets published in

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English, French, and Mi’kmaq that provide the Ombudsman’s contact information, including a toll-free number at which an Ombudsman representative can be reached at any time. The staff who answer this line are trained specifically to deal with youth-related issues. When given the Ombudsman’s contact information, youth are informed that their discussions and exchanges with the Ombudsman representative will be kept confidential.33 Bishop believes that he must build a relationship of trust with youth in care or else they will not feel comfortable talking with him about problems they encounter while in custody.34 He has made a point of becoming a familiar face in youth care and detention facilities across the province. In 2006–7, Ombudsman representatives made 110 official site visits to these centres as part of their commitment to monitor the quality of services for youth. Also during that year, OmbudsOffice staff held 489 information and outreach sessions in youth care and custody facilities.35 It seems that the office’s efforts to gain young people’s trust have succeeded. In the May 2006 Voice of Youth in Care, a monthly bulletin produced by current and former youth in care, Tina Doucette wrote an article titled ‘The Ombudsman’s Office Is Listening.’ She explained that the OmbudsOffice had invited youth who work at the newsletter to help to put together a survey that would be distributed to those who are entering group homes. The purpose of their input was to help make the survey as ‘youth friendly’ as possible. Participants in this session reported feeling that the OmbudsOffice staff ‘valued their opinions.’36 The OmbudsOffice works with municipal and provincial departments, agencies, and boards that serve youth to ensure that their policies are designed with attention to children’s rights. Nova Scotia’s police and hospital and school board personnel recognize the OmbudsOffice’s expertise in children’s issues and seek its advice on how to deal with youth. The Ombudsman plays an important role in setting standards for service delivery in youth-serving systems. For example, the IWK Children’s Hospital in Halifax has invited an Ombudsman representative to sit on the hospital’s board. Also, when a youth facility acquired an electric wand, the facility’s staff asked the OmbudsOffice for advice on how the device should be used in a youth detention facility.37 These consultation exercises enable the Ombudsman to affect policy formation instead of merely responding to policy outputs (i.e., complaints). Because the OmbudsOffice’s staff interact regularly with youth in care and custodial facilities, they are acutely aware of

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young people’s needs and can communicate them to government officials. One might expect these consultations to reduce the number of complaints to the Youth Services Branch of the OmbudsOffice, given that that office improves services and programs. Actually, the opposite has been happening in recent years – complaints to the Youth Services Branch have risen with each passing year. This, however, might well indicate that young people are more comfortable bringing their concerns to the Ombudsman. In recognition of Nova Scotia’s growing seniors population, the OmbudsOffice has developed a Seniors’ Services Branch that is similar to the Youth Branch. Ombudsman representatives have consulted with the Department of Health, advisory councils, and the Seniors’ Secretariat; all three are key players in the seniors policy community. Also, OmbudsOffice staff make regular visits to seniors’ residential care facilities in order to spread awareness about their complaint-resolution services and to monitor conditions.38 The OmbudsOffice tries to meet regularly with department officials, including all deputy ministers, so that public servants understand the office’s mandate and its dedication to improved service delivery.39 A trusting relationship between the Ombudsman and government officials is important for at least two reasons. First, it encourages officials to report to the Ombudsman when they suspect wrongdoing. Second, it makes for positive relations between the two, which in turn makes it more likely that recommendations will be implemented. The Ombudsman Act does not grant the Ombudsman the authority to make binding recommendations, which means that the public service could ignore the office if it chose to do so. That is less likely when officials respect the Ombudsman’s expertise. Bishop has tried to overcome the geographical barriers for those who do not live near Halifax. Besides making presentations to seniors, government employees, police, and youth newly admitted to provincial care facilities, the Ombudsman has begun visiting communities across the province on a regular basis. One consequence of a betterinformed public is that the number of ‘referrals’ or non-jurisdictional calls to the Ombudsman’s office has dropped. In 2003–4 only half the calls that came into the office related to matters within its jurisdiction. That number rose to 62.47 per cent in 2004–5, then 72.4 per cent the following year. In 2006–7, 82.6 per cent of calls were within the Ombudsman’s mandate.40

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Annual Statistics Statistics are an important but inadequate yardstick for measuring the office’s impact. Annual records of calls to the office provide an empirical indication of the Ombudsman’s visibility and opportunity for influence in the province, and of the extent to which citizens know about the office and consider it a resource. But telephone records do not tell the whole story. The OmbudsOffice’s contacts with the public go beyond calls and letters to include public meetings and information sessions, the results of which are hard to track. When staff members respond effectively to citizens’ concerns and questions at community meetings, the office’s accessibility and utility may increase, but these informal contacts will not be reflected in annual records of calls to the office. Statistical comparisons between provincial OmbudsOffices show interprovincial variations in the rates at which people resort to the Ombudsman as a dispute resolution mechanism and information source. However, researchers must be attentive to differences among provinces in terms of how statistics are compiled. For instance, some OmbudsOffices may not include in their calculations those complaints and inquiries that fall outside their jurisdiction. The Nova Scotia office does include these ‘referrals’ in its annual calculations. Furthermore, as Bishop points out, each call that comes in at his office is counted as one complaint, even if a number of issues arise from it. That is to say, the investigation process for some calls goes beyond the scope of the initial complaint. Some complaints have broad repercussions for service delivery, especially if the Ombudsman recommends substantial reforms that are then adopted by the public service. On the other hand, many complaints have virtually no implications except for the individuals who brought them forward. Another factor that could skew statistical comparisons is that provincial OmbudsOffices vary in their mandates. For instance, many offices do not have a Youth Services Branch, while the Nova Scotia office makes a special effort in this area. This part of the chapter identifies the trends that have emerged in calls to the Nova Scotia OmbudsOffice, specifically in response to the following questions: • Which years were the busiest for the OmbudsOffice, and why?

174 Lori Turnbull • Which government departments are the most frequent ‘targets’ of

complaints and inquiries? • Who is most likely to contact the Ombudsman? Specifically, what

are the demographic trends in complaints and inquiries to the office? As mentioned at the beginning of the chapter, the number of inquiries per year to the Nova Scotia Ombudsman has hovered at around 2,000 since 2000. The number of calls increased each year between 2000 and 2003, then decreased slightly for a few years, then began climbing again in 2006. The office’s busiest years were between 1993 and 1995, when about 4,000 calls came in each year. The Ombudsman’s staff attributed this rise in calls to two factors: the economic recession that was hitting the province at the time, and the public’s growing willingness to assert its rights and entitlements vis-à-vis the government.41 This goes to show that while the Ombudsman’s outreach programs can help increase the number of calls from the public, political circumstances play a role as well. Unfortunately, the Nova Scotia OmbudsOffice does not have reliable statistics for the years 1995 to 2000. This is because the computer system in use at the time was not up to the task of tracking and recording contacts. In December 1999 the office worked with the Department of Finance to develop a new software system tailored to the specific needs of an OmbudsOffice. The new system, called Complaint Handling and Organization System (CHAOS), enables officials to more easily retrieve information on the status of investigations and to recognize patterns and trends in complaints over time.42 The report for 1995–2000 does not contain statistics; it does, however, note that the number of calls to the office spiked briefly during this period. In 1995 the towns in Cape Breton County amalgamated to form the Cape Breton Regional Municipality. In 1997, Bedford, Sackville, Dartmouth, Halifax, and the surrounding county followed suit with the creation of the Halifax Regional Municipality (HRM). These events coincided with a dramatic increase in the number of calls to the Ombudsman.43 The report does not detail the ways in which amalgamation affected service delivery, but it is easy to make assumptions about why this change led to more frequent complaints about service delivery. Part of the rationale behind municipal amalgamation is to consolidate services so as to avoid or decrease duplication.44 To achieve this goal, incoming ‘super-city’ governments

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often close several small service centres and replace them with a larger one that is centrally located. The problem with this, from the public’s perspective, is that services may be more difficult to access, at least for some people. The increase in calls to the OmbudsOffice in the amalgamation era is somewhat vexing in light of the results of a survey conducted in the HRM in 1999. When asked whether services such as library services, playgrounds and parks, and recycling had improved, stayed the same, or declined since amalgamation, more than twothirds of respondents said that service quality had stayed the same.45 These results do not suggest that HRM residents were disappointed with post-amalgamation service delivery. However, this survey was conducted in 1999, two years after the consolidation. It is likely that complaints about service delivery were more frequent in the months immediately following amalgamation and that services had improved by the time the survey was held. Below are tables to indicate the activity levels in the Nova Scotia OmbudsOffice in recent years. The first one sets out the total number of calls to that office over the past four years. Each subsequent table focuses on the number of calls in a given year, breaking them down into subcategories. The numbers indicate that while there have been no major changes as of late, the Ombudsman’s outreach and educational activities are having a noticeable effect. The data in these tables cover the years 2004 to 2007. Over the previous four years, calls to the OmbudsOffice under the traditional ‘investigations’ section had been increasing each year. The slight decrease in 2004–5 coincided with the beginning of Dwight Bishop’s tenure and the proactive, hands-on strategy the office has pursued under his leadership. The OmbudsOffice has been more visible and accessible in Nova Scotia’s communities, and at first this may have reduced the need for individuals to actually place telephone calls to get information. That said, the Ombudsman and his staff are able to deal only with relatively straightforward questions during community visits. A person who wishes to launch an official complaint must contact the office to start the process. It is not surprising that now that more people are aware of the OmbudsOffice and its services, there have been more calls to the office each year and a greater percentage of them fall within the Ombudsman’s mandate. However, the connection between the Ombudsman’s proactive measures and the increase in queries is based on reasoned speculation rather than empirical evidence: there is no proof of a causal relationship. The office’s calcula-

176 Lori Turnbull Table 7.1 Number of calls per year 2006–7 2005–6 2004–5 2003–4

1,801 1,698 1,788 1,901

Table 7.2 Breakdown of calls, 2006–7 Investigation and Complaints Services Youth Services Senior Services Non-jurisdictional

881 574 32 314

Table 7.3 Breakdown of calls, 2005–6 Investigation and Complaints Services Youth Services Senior Services Non-jurisdictional

703 500 25 470

Table 7.4 Breakdown of calls, 2004–5* Investigation and Complaints Services Youth Services Senior Services Non-jurisdictional

1439 328 16 673

*The annual report for this year includes the non-jurisdictional inquiries in the totals for the calls received by each of the three branches. In the other reports, they are recorded separately.

tions for the past two years indicate that the number of calls seems to have stabilized at between 1,700 and 1,900 annually. Every year, as it has the authority to do, the OmbudsOffice pursues ‘own motion’ investigations. Some of these stem from public complaints that might have seemed minor or one-dimensional at first but

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eventually revealed other issues demanding attention. Or, the Ombudsman can choose to conduct a systemic investigation of a certain department once it has become the subject of an increasing or extraordinary number of complaints.46 This is one way for the Ombudsman to make a meaningful contribution to policy development and improved service delivery. Most complaints are filed by individuals who know only their own experience. The Ombudsman, as the recipient of all these complaints and queries, is in a unique position to assess trends and detect problems. The report that comes out of a systemic analysis is given to the department or agency that was investigated and may include recommendations for reform. If a systemic investigation originated with a public complaint or query, the complainant receives a copy of the report as well. As mentioned earlier, questions and complaints filed with the Ombudsman are confidential, as are the office’s responses to them. Results are released to complainants and respondents only and cannot be obtained via accessto-information requests. However, at least one such report made headlines after being leaked to the press by its recipients. In 2006, Sydney resident Paul Burrell wrote a letter to the Ombudsman to complain that the staff at the local casino had not been following procedure. He had dumped over $500,000 into the slot machines and casino employees had done nothing to stop him, despite provincial laws that authorize them to ban problem gamblers. The OmbudsOffice looked into the issue and released a report containing a number of recommendations for the Alcohol and Gaming Division of the province’s Department of Labour. Bishop and his staff suggested, among other things, more training for employees to help them recognize problem gambling. A representative from the Labour Department spoke to the press after receiving the report, indicating willingness to implement the recommendations and to submit to a progress review by the Ombudsman after six months. Burrell was happy with the positive response to the report, telling the media that it seemed as though the Ombudsman had ‘facilitated some kind of a conscience’ in the government.47 This case had an unusually high profile owing to the sensitive subject matter and to the fact that the resulting report was released to the media. According to various newspapers’ excerpts from the report, the Ombudsman believed that the government had a responsibility to protect problem gamblers from themselves. His words lent support to those individuals and social groups who were pressuring the government to intervene in addictive behaviour when it got out of control,

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even if it meant less revenue from government-owned casinos and video lottery terminals. Unlike some of his colleagues in other provinces, Nova Scotia’s Ombudsman is used to flying under the radar. It is unusual for Bishop and his staff to make provincial news. Though Ombudsman’s reports are meant to be confidential, the publicity around this one can be interpreted positively. It portrayed the Ombudsman as one of the ‘good guys’ who was willing and able to shine a light on government negligence and get results for vulnerable addicts. Historically, most citizens’ complaints have targeted the following departments: Community Services, the Justice Department, Service Nova Scotia and Municipal Relations (called Social Services prior to amalgamation), the Workers’ Compensation Board, and the Health Department. These trends can be attributed not to substandard service delivery in these departments, but to the frequency of contact they have with Nova Scotians who are facing highly stressful circumstances – for example, who are waiting too long for a child support or benefit payment.48 Even when there is no maladministration per se, the Ombudsman can use the information received to make recommendations on how approaches to service delivery can be adjusted to improve public satisfaction. No matter how high the quality of service delivery in a department, it can always be improved. The Ombudsman is an important source of information for public officials who want to better serve their clients. The OmbudsOffice is an important vehicle of information and communication between the government and the governed. The Ombudsman collects the public’s reactions to government services, or policy outputs, and then delivers them back to the legislature and the public service in the form of annual reports and recommendations.49 That being said, as a form of political participation, complaining to the Ombudsman has its limitations. The most highly regarded form of civic engagement is, quite simply, deliberation between informed individuals and government officials, especially during the early stages of policy development. Filing a complaint with the Ombudsman is no substitute for that approach, but it does provide valuable information on how people receive and experience government services. An Ombudsman’s hope is that public servants will pay attention to the information gathered throughout the year and that service delivery will improve as a result. To gain an accurate picture of how the public feels about govern-

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ment service delivery, it is important for an Ombudsman to get feedback from different types of citizens – for instance, urban and rural residents, members of ethnic and linguistic minorities, men and women, and people of various socio-economic backgrounds. This allows the Ombudsman to pick up on any differences that exist in public expectations and in the quality of service delivery across regions and languages. Furthermore, if certain sectors of the public do not contact the Ombudsman, it may be that the office needs to enhance its visibility and accessibility for those residents. Of course, it could also mean that these individuals are generally satisfied with services and do not feel the need to complain. This suggests another limitation to relying on the Ombudsman as a source of public input: the office, as a rule, receives only negative feedback about government services. Over the years, most complaints have come from individuals in the Halifax area and in the urban districts of Cape Breton. This is not surprising, given that these are the province’s most densely populated areas and have the highest concentrations of government service venues. As noted earlier, Bishop and several staff members often make day trips outside the HRM in order to encourage people in outlying areas to use his office. These visits are broadcast in advance so that people can take advantage of Bishop’s accessibility.50 In the Ombudsman’s annual reports there is almost no mention of the demographic characteristics of callers, except for their place of residence. The exception to this rule is the 1983 report, which stated that 70 per cent of callers were men.51 Bishop estimates that most callers from the general public are between the ages of thirty and sixty, and that most callers from adult correctional facilities are between twenty and thirty.52 Assessing the Ombudsman’s Impact and Effectiveness For the most part, the Ombudsman is his own keeper. The OmbudsOffice receives almost no attention from the media, the legislature, the public, or other legislative officers. This means that the Ombudsman can set his own goals and monitor progress towards them. For instance, the office sets time frames for case completion and keeps track of how well those time frames are met. Senior staff do random checks of files to ensure that all complaints are being handled fairly and comprehensively. These are important mechanisms by which the Ombudsman’s efficiency can be measured, but they are focused on the

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internal operations of the OmbudsOffice. There are few reliable indicators of the Ombudsman’s impact on public policy and service delivery. One that is available is the rate at which government departments comply with the office’s non-binding recommendations. As noted earlier, Nova Scotia’s Ombudsmen have tended to take a non-combative approach with governments when issuing reports and responding to complaints. They have practised pressure politics only as a last resort, preferring to maintain a positive dialogue with public servants. This approach seems to be working, as the vast majority of the office’s recommendations are adopted within a reasonable time frame. Some of these recommendations have led to substantial change, others to minor changes. It is not enough to tally up the number of accepted recommendations as an indicator of the Ombudsman’s overall impact; attention must be paid to the nature or weight of the changes. One major reform that resulted from the Ombudsman’s intervention was documented in the 2004–5 annual report. A number of significant complaints had been made about a private company that had been operating in the province since 1996. The complaints were on environmental and financial grounds and were directed not only at the company but also at two government bodies that had significant dealings with the company. After an in-depth investigation that lasted several years, the Ombudsman made thirteen recommendations affecting service delivery. Among them were recommendations for procedural standards and quality assurance reviews; for a communication policy, including a public brochure on the relevant legislation and compliance methods; and for a site evaluation report. These would have been substantial reforms for any department, as they included time-consuming procedural changes. Following these recommendations, the Ombudsman continued to work with the departments involved to ensure compliance.53 Annual reports document the Ombudsman’s activities, goals, and priorities over the years. However, it is difficult for a researcher to determine the Ombudsman’s actual impact on either service delivery or public attitudes towards services. In theory, an Ombudsman’s intervention should catalyze improvements to service delivery, given that his role is to investigate complaints about services and, when necessary, recommend reforms. It is logical to assume that the Ombudsman’s recommendations for improved service delivery, if followed, would enhance public satisfaction with government services, for his

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recommendations are based on information he receives from the public about how services are delivered. However, the Ombudsman’s effect on public attitudes towards services is not just the result of the recommendations he makes; it also depends on the dispute resolution process itself. People complain when they feel they have somehow been wronged. The Ombudsman’s intervention may prevent the complainant from viewing public servants as indifferent or unresponsive, which might have happened had the situation never been addressed. When a complaint has been found ‘unwarranted,’ or when it turns out that the public servant in question acted appropriately, at least the complainant has benefited from having the applicable rules explained. Because the Ombudsman’s work targets the quality of service delivery as well as public attitudes about government (and government services), his office could be part of the solution to the ‘democratic deficit.’ This phenomenon exists when there is a discrepancy between what the public expects from the government and what it experiences as reality.54 A long-term goal of any Ombudsman is for his interventions and recommendations to improve service delivery. Success on this front would help close the gap between expectations and reality. However, affecting public attitudes – especially in terms of the public’s expectations of government services – is just as important a goal. There may be times when the public’s expectations of government services are unrealistic or unattainable. For instance, the public’s expectations of how quickly they should expect snow removal following a major storm can be completely out of touch with the government’s resources. If someone complains to the Ombudsman, who then puts him in contact with the appropriate official, that complainant may become aware of the scarcity of resources and taper his expectations in the future so that they are more realistic. If service delivery improves, and if at the same time public expectations move closer to what government officials can realistically do with the resources they have, the democratic deficit should gradually shrink. It will never disappear entirely, nor should it: a ‘healthy’ gap between expectations and reality provides a constant source of motivation for improvement. In a democracy, this gap is necessary if governments are to be kept accountable. Bishop reports that most people who seek his help report feeling satisfied with the outcome he helps produce. This information is helpful but not concrete. If the Ombudsman’s work leads to improvements in service delivery, this should encourage positive attitudes towards gov-

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ernment services among the public as a whole, even among those who have never complained personally. However, it is likely that the greatest positive changes in attitudes towards government would be seen among those who actually contacted the Ombudsman. There are several obstacles to assessing the Ombudsman’s impact on public attitudes, both in general and among complainants. Levels of trust and confidence in government have been declining across the country. Even if the OmbudsOffice’s work is helping reverse this trend, the impact must be too small to detect. Furthermore, even if public attitudes were to improve, it would be very difficult to attribute this change to the Ombudsman’s work. The best way to determine the Ombudsman’s impact on attitudes is to focus on the people who have contacted him. A discrepancy between the general public’s attitude and the complainants’ might reveal the Ombudsman’s impact. However, this is more easily said than done. Complaints to the Ombudsman, and the procedures that arise from those complaints, are kept confidential, so it is impossible for a researcher to contact complainants to ask whether their attitudes about government service delivery changed as a result of their interactions with the OmbudsOffice. Another indicator of the Ombudsman’s potential effect on service delivery – one that has been discussed at length already – is the annual number of calls to the office. It could be argued that if the office receives fewer complaints each year that passes, this must mean that services are getting better. The problem with using statistics in this way is that it is difficult to know what they actually mean. It could be that there are fewer complaints because service delivery is improving, but it could also be that nothing has changed and that people feel that complaining will do no good. And even if calls decrease in frequency because service delivery is improving, there is no direct proof that the Ombudsman had anything to do with it. If the annual total of calls to the office increases, it is not necessarily because things have gotten worse. It could be because of heightened awareness of the Ombudsman’s services. In Nova Scotia, calls have remained steady since 2000, with slight variations in either direction in the past several years. Conclusion The Nova Scotia OmbudsOffice performs the traditional function of receiving public complaints about government services, but it is also unique among its peers in a number of ways. Perhaps most notably, it has carved out a highly active role for itself as a protector of the rights

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of youth who are in the province’s custody or care. The office’s work on this issue since 1996 – which has included regular visits and consultations with youth in provincial facilities – has allowed it to accumulate a significant amount of knowledge and information. Among the province’s departments and agencies, the Ombudsman is known for its particular expertise in designing policies and services so that they accommodate young people’s rights and needs. The Nova Scotia OmbudsOffice is committed to building relations of trust with government officials, public servants, and the general public. Bishop believes that this is the best way to encourage Nova Scotians and their public servants to come to him with concerns about service delivery. The office’s outreach program, which includes visits to youth and seniors’ facilities, government departments, and communities across the province, has helped increase the public’s knowledge of the Ombudsman’s responsibilities and seems to have led to an increase in the percentage of ‘jurisdictional calls’ the office receives each year. OmbudsOffice staff consult with government departments, as well as public boards and agencies, on issues such as how to adjust policies and services to accommodate the specific rights and needs of youth. Their participation in policy formation and development in this regard means that their office’s impact is not limited to those issues brought to its attention through the complaints process. Instead, their office’s input can be said to have broad effects and implications for policy and service delivery in Nova Scotia.

NOTES Note: Annual Report always refers to that of the Nova Scotia Office of the Ombudsman. http://www.gov.ns.ca/ombu/publications 1 Ulf Lundvik, The Ombudsmen in the Provinces of Canada (Edmonton: International Ombudsman Institute, 1981), 20. 2 Ombudsman Act, R.S., c. 327, s. 1. 3 Lundvik, The Ombudsmen in the Provinces of Canada, 88. 4 Annual Report 2006–2007. 5 Ombudsman Act. 6 Annual Report 1990, 10. 7 Annual Report 1993–1995, 20. 8 Annual Report 1995–2000, 19.

184 Lori Turnbull 9 10 11 12 13 14 15 16 17 18

19

20

21 22 23 24 25

26 27 28 29 30 31 32 33

http://www.gov.ns.ca/ombu/Child_Ombud/default.asp Annual Report 2004–2005, 4. Ibid., 11. Interview with Dwight Bishop, Janet MacKinnon, and Sonya Ferrara of the Nova Scotia Office of the Ombudsman, 26 May 2006. Lundvik, The Ombudsmen in the Provinces of Canada, 53. Annual Report 1993–1995, 13. Ibid., 15. Annual Report 2004–2005, 15. Nova Scotia Office of the Ombudsman, ‘Disclosure of Wrongdoing.’ http://www.gov.ns.ca/ombu/discOfWrongdoing.asp For a general discussion of ‘whistle-blowing,’ see Ken Kernaghan, ‘Whistle-blowing in Canadian Government: Ethics, Political and Managerial Considerations,’ Optimum: The Journal of Public Sector Management 22, no. 1 (1991): 34–43. CBC News, ‘Guité ‘Real Culprit’ in Sponsorship Scandal: Whistle Blower,’ 11 March 2004. http://www.cbc.ca/story/canada/national/ 2004/03/11/cutler_20040311.html Ian Greene and David Shugarman, ‘Commission of Inquiry into the Sponsorship Program and Advertising Activities, Phase I Report and Phase II Report,’ Canadian Public Administration, 49, no. 2 (2006): 220–32. Civil Service Disclosure of Wrongdoing Regulations, 16 September 2004. Enacted under Section 45 of the Civil Service Act, R.S.N.S. 1989. Annual Report 2006–2007, 18. ‘Guidelines to Minimize Conflict,’ Annual Report 2001–2005, 36–7. Annual Report 1993–1995, 9. For an account of Premier Savage’s term, see Peter Clancy, James Bickerton, Rodney Haddow, and Ian Stewart, The Savage Years: The Perils of Reinventing Government in Nova Scotia (Halifax: Formal, 2000). Nova Scotia Office of the Ombudsman, ‘Annual Accountability Report for the Fiscal Year 2003–2004,’ Halifax, 8 November 2004, 11. Annual Report 2006–2007, 5. Annual Report 2001–2003. Annual Report 2004–2005, 4. Annual Report 2006–2007, 6–7. Nova Scotia Office of the Ombudsman, ‘Accountability Reports, 2001–2005.’ Annual Report 2004–2005, 8. Nova Scotia Office of the Ombudsman, ‘We Have Time to Talk.’ http://www.gov.ns.ca/ombu/publications/ChildOmbudComServ.pdf

Nova Scotia’s Ombudsman 185 34 Interview with Dwight Bishop, Janet MacKinnon, and Sonya Ferrara, 26 May 2006. 35 Annual Report 2006–2007, 20. 36 Tina Doucette, ‘The Ombudsman’s Office Is Listening.’ Voice of Youth in Care, 6 May 2006, 3. 37 Interview with Dwight Bishop, Janet MacKinnon, and Sonya Ferrara, 26 May 2006. 38 Annual Report 2006–2007, 14. 39 Annual Report 2003–2004, 5. 40 Annual Report 2006–2007, 6. 41 Annual Report 1993–1995, 7–12. 42 Annual Report 1995–2000, 17–18. 43 Ibid., 14. 44 For a discussion of the history of municipal amalgamations in Canada, see Andrew Sanction, Merger Mania (Montreal and Kingston: McGillQueen’s University Press, 2000). 45 Dale H. Poel, ‘Amalgamation Perspectives: Citizen Responses to Municipal Consolidation,’ Canadian Journal of Regional Science 33, no. 1 (2000): 31–48. 46 Interview with Dwight Bishop and Janet MacKinnon of the Nova Scotia Office of the Ombudsman, 26 May 2006. 47 ‘Nova Scotia Ombudsman Report Says Changes Needed at Casinos for Problem Gamblers,’ ISA – Worldwide Entertainment Guide, 2 August 2007. http://www.isa-guide.de/articles/17170_nova_scotia_Ombudsman_report_says_changes_needed_at_casinos_for_problem_ gamblers.html 48 Annual Report 1990, 10. 49 For more information on the various stages of public involvement, see Lori Turnbull and Peter Aucoin, ‘Fostering Canadians’ Role in Public Policy: A Strategy for Institutionalizing Public Involvement in Policy,’ Canadian Policy Research Networks, March 2006. http://www.cprn.org 50 Interview with Dwight Bishop, Janet MacKinnon, and Sonya Ferrara, 26 May 2006. 51 Nova Scotia Office of the Ombudsman, Annual Report 1983, 14. 52 Interview with Dwight Bishop and Janet MacKinnon, 29 November 2005. 53 Annual Report 2004–2005, 10. 54 Peter Aucoin and Lori Turnbull, ‘The Democratic Deficit: Paul Martin and Parliamentary Reform,’ Canadian Public Administration 46, no. 4 (2003): 427–49.

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8 Ontario Ombudsman: A Game of Trust stewart hyson and gary munro*

As a general rule, the work of an Ombudsman occurs completely behind closed doors in order to guarantee the anonymity and privacy of those involved with respect to an impugned decision. But on the odd occasion, a particular case is thrust into the public spotlight, as happened with the Ontario Ombudsman’s March 2007 special report on the Ontario Lottery and Gaming Corporation.1 Some details of this case had first come to light on 25 October 2006, when the public’s attention was riveted on CBC television’s the fifth estate report of how an elderly man (Bob Edmonds) had been deprived of his rightful lottery winnings. It was one of those stories that would not go away because so many people could relate to the simple act of purchasing a lottery ticket at a local convenience store, and then being told it was not the winning ticket when in fact it was. After the CBC report, other people in Ontario and across Canada raised similar concerns that they had been deprived of their rightful lottery winnings. Consequently the Ontario Ombudsman decided to investigate. So it was serendipitous for us that the Ombudsman’s report and its aftermath should be in the forefront at the time that this chapter was being written. The report’s title – ‘A Game of Trust’ – serves to remind us of the vital role played by the Ombudsman institution in terms of ensuring trust in democratic administration. Admittedly, inclusion of the word ‘game’ is somewhat misleading; after all, the work of an Ombudsman is far from being a game. No doubt the Ontario Ombudsman allowed himself to be carried away by the novelty of the case, though the novelty has since been dissipated as a result of similar lottery misplays in Ontario and other provinces. On the other hand, there is no denying the centrality of the notion of ‘trust.’ The research question then

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becomes: How can the Ombudsman best ensure trust in Ontario’s public institutions? Is trust embedded in the institution’s structural attributes? Or is trust the result of the Ontario Ombudsman’s investigative powers, including the use of Special Ombudsman Response Teams (SORTs)? To what extent does the incumbent Ombudsman’s personality and leadership style contribute to the building of trust? Before proceeding, it should be quickly noted that another report at about the same time employed the word ‘trust.’ David A. Brown’s report on the RCMP pension and insurance plans (June 2007), titled ‘A Matter of Trust,’ led to the appointment of the Task Force on Governance and Cultural Change in the RCMP. Later, a report commissioned by the Task Force recommended the creation of an RCMP Ombudsman.2 We will return in the following section to the concept of trust and its significance to the Ombudsman’s role. This chapter examines the history and statutory provisions of the Ontario Ombudsman, its procedures for resolving individual public complaints, its exercise of systemic investigations, and its use of SORTs. It discusses the leadership styles of its office holders over the years (especially that of the current incumbent, André Marin), paying particular attention to how their styles have affected the office’s performance. Empirical evidence relating to the Ombudsman office and its caseload is analysed in an effort to detail its performance. In a later section, consideration is directed at the contributions of the Ontario Ombudsman to ‘Ombudsmanship’ in the early years of the twentyfirst century. Before proceeding, however, we need to clarify the notion of trust in terms of the role of the Ombudsman. Trust in Democratic Administration and the Role of the Ombudsman Ethics in modern governance has been one of the more enduring themes in the study of government at least since the time of Machiavelli. This is especially true with democratic governance, where so much depends on mutual trust between the general public and its elected politicians and appointed administrators. According to Ian Greene and David Shugarman, mutual trust requires public officials to act impartially in the administration of law, to be accountable for their activities and decisions, and to fulfil a fiduciary responsibility not to abuse the trust placed in them.3 They go on to state: ‘Because public officials always act on behalf of the public, they are trustees of the

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public interest. A fiduciary relationship with the public is not a form of paternalism – we know what’s best for you and it’s too bad if you don’t understand our superior wisdom – but rather a responsibility to protect and promote the public’s best interests in ways the public is fully informed of and approves.’4 But what happens if and when a public official does not act in the public interest, or if a member of the public questions (or complains about) an administrative decision or action? In this context we can view the role of the Ombudsman as a type of oversight mechanism that can have the impact of ensuring trust in the administrative state. Ombudsman offices, however, are usually described in more specific terms, especially in terms of their structural attributes, mandated responsibilities, and administrative procedures for handling complaints. Just as Shugarman and Greene used the phrase ‘trustees of the public interest’ in the preceding quotation to describe the role of public officials, Larry Hill has specifically described the role of an Ombudsman in terms of being a trustee rather than a delegate.5 This distinction in representational role styles is crucial because an Ombudsman is not an advocate (or delegate) of those who lodge a complaint, but has a fiduciary trust to act as an impartial investigator of complaints.6 As such, the classical parliamentary Ombudsman has several defining attributes that have been commented on by several scholars. Hill’s list of ten main attributes, which other members of the Ombudsman research team have also referred to, is a most exhaustive list because he built on the contributions of other leading authorities. Accordingly, ‘the classical Ombudsman is (1) legally established, (2) functionally autonomous, (3) external to the administration, (4) operationally independent of both the legislature and the executive, (5) specialist, (6) expert, (7) nonpartisan, (8) normatively universalistic, (9) client-centered but not anti-administration, and (10) both popularly accessible and visible.’7 To ensure trust, statutory intent and design are not alone sufficient; they must be accompanied by effective administrative procedures to guarantee the impartial investigation of complaints. In addition, the leadership style of the office holder is of immeasurable importance. For example, office holders range from those who are reactive (or tend to be passive), in the sense that they primarily respond to specific individual complaints, to the proactive (or aggressive), who take the initiative to investigate and publicly comment on systemic problems.

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This reactive–proactive difference tends to be a matter of degree, as we will see below in the case of Ontario, where the various Ombudsman office holders have always publicly criticized their limited mandate. Still, it ought to be observed at this point that, since the 2005 appointment of André Marin, the Ontario Ombudsman has had a very high public profile that has generated considerable news coverage because the office has fulfilled its role expectations like never before. Marin has often been sharply critical of government; even so, the government has generally accepted his recommendations. Yet Marin has remained frustrated at the lack of what he refers to as a ‘complete’ or ‘modernized’ mandate in that the Ontario Ombudsman lacks jurisdiction in areas that other provincial Ombudsmen have. A favourite tactic used repeatedly by Marin in his annual reports is to include a simple table that compares the Ontario Office of Ombudsman with all of its counterparts in Canada. Consistent with the adage that a picture is worth a thousand words, the table in the 2007–2008 Annual Report effectively illustrates that the Ontario Ombudsman has the narrowest mandate in the country.8 Faced with this limited mandate, Ombudsman office holders in Ontario have always pushed the envelope in order to establish greater credibility. Some incumbents have concentrated externally on expanding the Ombudsman’s jurisdiction, which has occasionally resulted in conflict with the executive and legislative branches of government, while others have emphasized internal reforms to improve the efficiency and effectiveness of handling complaints. Marin has been active on both fronts, as we will see in a later section. First, however, we need to take a closer look at the statutory provisions that pertain to the Ontario Ombudsman. General Overview of Statutory Provisions Since being enacted in 1975, Ontario’s Ombudsman Act9 has established a parliamentary Ombudsman along the lines of the New Zealand model. This model creates an independent and impartial Ombudsman with the authority to investigate complaints about public administration. The 1975 legislation constituted the typical Ombudsman idea as we know it in Canada – that is, the Ombudsman has a mandate to resolve complaints through impartial investigation and gentle persuasion, or, if that fails, through public reporting. Though the legislation was statutorily rather typical, Ontario’s provincial government was initially very slow, if not reluctant, to establish the Ombudsman office.

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Private members’ bills proposing an Ombudsman office had been introduced in the provincial legislature regularly starting in 1965, with Vernon M. Singer (an opposition Liberal member) being the main proponent by proposing his Ombudsman bill ten times.10 The Progressive Conservative government, which saw the Ombudsman as an intruder, did not accept these private members’ bills coming from the opposition; as well, during the late 1960s these bills were rejected on the technical and procedural grounds that the Royal Commission Inquiry into Civil Rights (the McRuer Commission) was looking in part at the Ombudsman proposal. The McRuer Commission, which had been appointed in 1964 and reported in 1968–71, took a rather conservative and formalistic view that did not reflect a full appreciation of the intricacies of modern public administration, let alone the pith and essence of the Ombudsman idea. It did not believe there was an urgent need for an Ombudsman for provincial administration; instead it emphasized the need for a better legal framework (laws and procedures) to protect the rights of individuals. ‘The real safeguards of the rights of the individual lie in good legislation and good rules of procedure designed to guide and direct those who make decisions in the administrative processes of government.’11 This position was especially perplexing given that the Ombudsman idea had already by then been adopted in some provinces and was being considered elsewhere, and given that there was a rapidly growing literature and ongoing public discourse that supported the idea. Equally curious, however, McRuer then proceeded to recommend the Ombudsman idea for municipal administration; and in the event the government adopted the institution for provincial administration, he went on to outline the structural features it should have.12 During the early 1970s, more private members’ bills were introduced, though they were never passed. Yet the popularity of the Ombudsman idea continued to grow. In 1971 the Attorney-General finally announced that the government would introduce an Ombudsman bill during the next session, but he did not follow through with the promise. It was not until 1975, in its Speech from the Throne, that the government of Premier William Davis proposed the establishment of an Ombudsman office, based on the position that with the growing complexity of government, the Ombudsman would help protect the public against arbitrary judgments and practices. After the bill was introduced in the legislature on 27 May 1975, all who spoke in the ensuing debate supported the creation of an Ombudsman. The bill

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received Royal Assent on 3 July 1975.13 The government had announced on 22 May 1975 that Arthur Maloney would be its nominee as the province’s first Ombudsman. This was prior to the legislative debate and enactment; thus Maloney was able to observe the debate in order to gauge better what the politicians had in mind. He almost immediately began receiving complaints and recruiting staff, even though the office did not formally start operations until October.14 The Ombudsman Act empowers the Ombudsman by providing said office with strong investigative powers and by establishing a broad administrative justice code under which the Ombudsman is called on to report and make recommendations. These mandated attributes provide the Ombudsman with the authority to ensure trust in the Ontario administrative state. First, to ensure independence from executive government, the Ombudsman has been established as an officer of the legislature (s. 2) and has been given a measure of security with a fixed term of office and a salary that may only be reduced by a vote of the legislature (ss. 4 and 6). Originally, the act established an Ombudsman who would hold office for a term of ten years and who could be reappointed for further terms, but in 1999 the legislature changed the term to five years. Only Roberta Jamieson served the complete ten-year term; more recently, Claire Lewis served the full five-year term under the changed legislation (see Table 8.1). As well, Lewis was the first to be appointed through a public competition process. Some measure of impartiality has been achieved structurally by not allowing the Ombudsman to hold other offices or employment during his or her tenure (s. 5). Indeed Section 5 of the Ombudsman Act indicates that the ‘Ombudsman shall devote himself or herself exclusively to the duties of the Ombudsman’s office.’ The function of the Ombudsman is to investigate complaints about actions by provincial government entities, including ministries, commissions, boards, and other ‘administrative units’ – actions that affect individuals or groups (s. 14(1)). Ombudsman investigations are triggered by complaints by individuals or by members of the legislature (s. 14(2)). As well, and very significantly, the Ontario Ombudsman may investigate matters on his or her ‘own motion.’ Complaints to the Ombudsman are to be made in writing (s. 16(1)), though the legislation does not say in what circumstances complaints are to be written down or who is to do the writing. Thus, intake officers assist those who have difficulty in writing, and record complaints

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and inquiries received by telephone (64 per cent of all complaints and inquiries were received by telephone in 2007–8).15 Letters from provincial prisoners, from persons held under the Youth Criminal Justice Act (Canada), and from patients in a psychiatric facility must be sent to the Ombudsman unopened (s. 16(2)). Under Ontario’s Language Services Act, members of the public may communicate and receive service in English or French; publications, signage, and online websites are also in both languages. Given the linguistic diversity found in the large Ombudsman staff, communication may well be available in other languages.16 The Ombudsman’s jurisdiction is limited in a number of ways. Hence it cannot investigate every complaint on every issue that is submitted to the office. Some of these limitations are the same as found in other jurisdictions. The Ombudsman Act, for example, does not apply to judges or court functions, nor does it apply to deliberations of the executive council (i.e., Cabinet); thus the Ombudsman absolutely cannot investigate these entities or functions (s. 13). The Ombudsman also must not investigate where there is a right of appeal on the merits of a case to a court or tribunal and that right has not been exhausted (s. 14(4)(a)). The Ombudsman also is not empowered to investigate actions of legal advisers to the Crown (s. 14(4)(b)). If the Ombudsman is unclear as to his or her jurisdiction, the Ombudsman may ‘apply to the Divisional Court for a declaratory order’ to clarify the matter (s. 14(5)). Finally, the Ontario Ombudsman has no jurisdiction over administrative decisions of other jurisdictions, including the federal government, or over decisions made in the private sector. These limitations are not that unusual, but the Ontario Ombudsman stands out as having the most limited range of activities among Canadian Ombudsmen, as was noted earlier. This has been a constant source of frustration for office holders over the years. The acronym ‘MUSH’ is now used to refer to those public institutions that are outside the Ombudsman’s jurisdiction: municipalities, universities, school boards, public hospitals, nursing homes and long-term care facilities, police, and child protection services. To substantiate its request to the politicians for an expanded, broader mandate, the Ombudsman presented in the most recent annual report (2007–8) data on the number of complaints and inquiries in the MUSH sector that it could not examine. Specifically, out of a total of 16,754 contacts, 2,129 were with respect to MUSH targets: 939 were about municipalities; 431, Children’s Aid Societies; 373, police and the Ontario Civilian

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Commission on Police Services; 276, hospitals and long-term care facilities; 79, school boards; and 31, universities.17 Again, for the sake of clarity, the Ontario Ombudsman identified these figures because elsewhere in Canada the Ombudsman often has responsibility for these matters. Where it is appropriate to do so, the Ombudsman may refuse to investigate complaints that are trivial, frivolous, vexatious, or made in bad faith, or in which the complainant had insufficient interest, or which were more than twelve months old (s. 17(2)). The Ombudsman may also refuse to investigate where there is another avenue for a complainant to follow, and where there is another available and adequate remedy (s. 17(1)(a)). In other words, the Ombudsman is a service of last resort to be used when other appeal mechanisms have been exhausted. The Ombudsman is an investigator. Investigation lies at the heart of the parliamentary Ombudsman, for it is through investigation that the Ombudsman is able to understand the circumstances in which complaints arise and is able to assess their validity. Understanding the facts of government action enables the Ombudsman to form cogent opinions and make useful recommendations. The Ombudsman may take a systemic or individualistic approach to investigation. This role as an impartial investigator relates back to the earlier mention of Hill’s tenpoint description of the Ombudsman institution.18 The Ombudsman has been given very powerful investigative tools. The Ombudsman has the right to enter any government premises in the course of his duties (s. 25). The Ombudsman may summon complainants, officers of government organizations, and other persons to testify under oath (s.19). Those impeding the Ombudsman can be fined up to $500 or imprisoned up to three months (s. 27). Protections for the investigative process and for those engaged in it are embedded in the Ombudsman Act. For example, investigations are to be conducted in private (s. 18(2)). Government organizations are entitled to be notified of investigations (s. 18(1)) though the timing of notice is not prescribed. No person who is bound to secrecy by other acts can be required to disclose information to the Ombudsman (s. 19(3)). Witnesses have the same privileges they would have in a court (s. 19(5)). The outcome of an investigation is either a settlement or a report. Before reporting an adverse opinion respecting the actions of a government entity or individual, the Ombudsman must give the individ-

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ual and/or entity an opportunity to respond to the case that is being or has been built against him, her, or it (s. 18(3)). Ultimately where the Ombudsman finds a problem and is of the opinion that maladministration has occurred, he or she is bound to report it to the agency involved (s. 21).19 How the Ombudsman determines that there is a problem is through a dialectical process in which the meaning of the facts of situations comes to be understood in light of the administrative justice code embodied in Section 21(1).20 The Ombudsman forms an opinion on whether an administrative action was contrary to law, was unreasonable, unjust, oppressive, or improperly discriminatory, or was a mistake of law or fact (s. 21(1)). Finally, the Ombudsman reports that opinion and typically makes recommendations about how to rectify the situation. Because the Ombudsman does not exercise a statutory power of decision and is an investigator and opinion giver, his or her recommendations cannot be forced upon government bodies. If government departments and agencies do not respond to the Ombudsman’s recommendations in a manner the Ombudsman finds acceptable, a copy of the recommendations may be sent to the appropriate minister and then on to the premier (ss. 21(3) and (4)). The Ombudsman’s ultimate power, beyond the power of rational persuasion, is the power of publicity, which is exercised by bringing the matter/report to the attention of the legislature (s. 21(4)). Having briefly outlined the statutory basis of the Ombudsman plan in Ontario, it is instructive now to highlight the actions of those who have held the position of Ombudsman. It is the practical actions and practices of those who hold office that give life to the law and that determine whether the institution will ultimately have credibility with the public. All incumbents have pushed the envelope to enhance the presence and credibility of the Ombudsman institution in Ontario. In doing so, each has brought a different leadership style to the office. Office Holders: Chronological Perspective and Leadership Styles The first Ombudsman, Arthur Maloney (see Table 8.1), was a wellknown defence lawyer and human rights advocate with deep roots in the Progressive Conservative Party, including a stint as a Member of Parliament between 1957 and 1962.21 Though he served as Ombudsman for only three years, he was Ontario’s first, so it is worthwhile to

Ontario Ombudsman: A Game of Trust 195 Table 8.1 Ontario’s Ombudsman office holders Arthur Maloney Donald R. Morand Daniel G. Hill Roberta Jamieson Clare Lewis André Marin

1975–78 1979–84 1984–89 1989–99 1999–2005 2005–present

For a bibliographical synopsis of these individuals, see Annual Report 2004–2005, 16–23.

examine certain aspects of his tenure.22 Given his deep commitment to civil rights, Maloney was often frustrated with the Ombudsman office’s limited jurisdiction and with his failure to have it expanded.23 This frustration often resulted in open conflict with politicians – of the executive and legislative branches – despite his close personal and political friendship with Premier Davis. (Neither was the judicial branch spared – for example, when Maloney employed his extensive courtroom experience to advise a lawyer what tactics to pursue in helping his client. The trial judge was not amused.)24 To grasp Maloney’s conflicts with the politicians, it must be noted that the time (1975 to 1978) was a period of adjustment during which the role of the Ontario Ombudsman was being fleshed out. First, Maloney brought to the position his knowledge of and commitment to human rights as well as his firmly established status as one of the country’s leading defence lawyers, so he aimed to expand the Ombudsman’s limited role in Ontario. Yet some government ministers and senior public servants saw Maloney as an intruder and did not cooperate (e.g., regarding the expropriation of land for an airport in Pickering), and some legislators similarly felt that the legislature should have greater control over the direction of the Office of Ombudsman. Then a few journalists (such as Claire Hoy) took aim at Maloney’s entourage (with which he usually travelled) and other trappings of office to suggest that Maloney was too pompous, extravagant, and wasteful. Meanwhile, Maloney steadily gained recognition nationally and internationally as a leading advocate of the Ombudsman idea, and he had great success in promoting the Office of Ombudsman in Ontario through publicity and the use of mobile teams, which were sent to remote areas to take complaints.25 Public-

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ity, accessibility, and the use of mobile teams are items within the office holder’s discretion, and Maloney chose to emphasize them because they were vital to establishing the Ombudsman’s legitimacy. It is interesting that Maloney rarely chose to initiate investigations, preferring instead to establish the Ombudsman’s credibility by focusing on individual complaints.26 We thus see the situation in Ontario during the 1970s: a new public institution was being led by a very strong leader dedicated to its mission, but it was faced with established political elites who were equally committed to traditional practices of governing. Though the aforementioned Pickering case is now not much more than a ‘hiccup’ in Ontario’s political history, it was the major battle of Maloney’s career as Ombudsman – the one during which the conflict between the ‘new’ and the ‘old’ unfolded. There were many twists and turns to this case over several months, with numerous private conversations and meetings, legislative committee meetings, and exchanges of memoranda, all of which led to Maloney’s decision (announced in August 1978) to resign. Of particular interest to us, however, is how the Pickering case raised the issue of the proper role of the legislature with respect to one of its officers. To grasp the time sequence of this matter, it is first necessary to observe that, following the passage of the Ombudsman Act and the appointment of Maloney, a legislative committee was appointed to set guidelines for the Ombudsman. In December 1975 this committee recommended the creation of a permanent legislative committee to maintain a legislative link with the Ombudsman. Before the proposed committee was created, however, the Ombudsman presented ‘a report to the Assembly highly critical of the methods and amount of compensation paid by the Ministry of Housing to expropriated landowners’ in Pickering.27 Since there was no existing legislative committee to review this report, a committee was struck on 15 July 1976. This newly struck committee set the precedent for a Select Committee on the Ombudsman that, according to Graham White, despite being called a ‘select committee,’ was a permanent committee.28 The salience of this committee was greatly strengthened by the presence of a private-sector lawyer (John Bell), who competently led the questioning of witnesses, including Maloney.29 While the Pickering case was the major story, some members of the legislative committee used this forum to probe other matters, including personal peeves about Maloney and members of his staff. For example, there was the infamous conflict from the late 1970s when one committee member

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complained about the supposedly partisan activities of some Ombudsman staff. Maloney responded that this matter was outside the committee’s jurisdiction. Then he walked out of the committee room.30 Beyond the sensationalism of walking out, the conflict was really about clarifying the ill-defined relationship between the legislature and the Ombudsman.31 Yes, as an independent officer of the legislature, the Ombudsman is assigned a statutory mandate and granted a budget, so the Ombudsman is ultimately accountable to the democratically elected legislature. The Ombudsman, in effect, assists the legislature in fulfilling an oversight function of administration. But the parliamentary Ombudsman is also characterized by the crucial element of ‘official independence.’ This takes us back to Hill’s ten-point checklist, especially the point about being ‘operationally independent of both the legislature and the executive.’ It is a fine balance, to be sure. The legislature and its committee are there to set the Ombudsman’s mission and broad parameters of operation; at the same time, the Ombudsman must have the requisite independence to act in a fiduciary manner to protect the public from administrative wrongdoing. Maloney maintained that for the most part he had a good working relationship with the legislature – as have his successors, despite the occasional flare-ups.32 Eventually, except for a couple of legislators, most members of the legislature were turned off by the frequent bickering over personal and internal administrative matters, and lost interest in scrutinizing the Ombudsman’s reports and general activities.33 Maloney tended to push the boundaries in defining the new office’s role, and this led to some public conflicts. His successor, Donald Morand, tended to be more conciliatory. This was in a way understandable, in that Morand came from the bench and ‘provided the calming effect of judicial solemnity’; in effect, Morand ‘would sit back and weigh things.’34 Still, Morand did strive to expand the Ombudsman’s presence by creating regional offices. For example, since a disproportionate number of complaints on a per capita basis at that time came from Northern Ontario, by 1984 regional offices had been established to handle complaints in Thunder Bay, North Bay, and Ottawa.35 Daniel Hill, the third Ombudsman, was a mediator with service as director and then chair of the Ontario Human Rights Commission.36 He quietly but innovatively rearranged the regional offices, created smaller district offices, and used field officers. He stressed the notion of community outreach, and in that regard he took a proactive approach that involved identifying the most vulnerable groups in

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society and then seeking a contact person within each group who would refer complaints to the Ombudsman.37 According to Charles Pullen, Morand and Hill were unlike Maloney in that they ‘took a more clinical approach and were not inclined to personal outrage or to look for trouble.’ Furthermore, Maloney ‘had grand ideas for the office; his successors were content to keep it operating.’38 Following Hill’s retirement, Eleanor Meslin, who had been Executive Director of the Ombudsman office for five years, served as Temporary Ombudsman for one year.39 Roberta Jamieson then assumed the office on a full-time basis in 1989. She would serve for ten years – the longest tenure of any Ombudsman office holder in Ontario (see Table 8.1). Though Jamieson had been a lawyer for only eight years prior to her appointment, hers had been a very active career working on Native rights issues.40 Unfortunately, during her tenure the Progressive Conservative government of Mike Harris was elected in 1995. It introduced the ‘Common Sense Revolution’ – a program of substantial income tax cuts and reductions in the size of government. Those reductions were directed at the public sector in general and not specifically at the Ombudsman. Just the same, the Ombudsman’s office felt the full impact of the cutbacks: its budget decreased from $9.1 million to $7.3 million, and it had to lay off twenty-seven employees (about one-quarter of its complement) and curtail the regional/district offices. Another consequence of the budget cuts was a reduction in the Ombudsman’s public education and outreach activities starting in the 1995–6 fiscal period, which no doubt reduced the public’s level of awareness about Ombudsman Ontario and its services.41 Besides trying to promote greater public awareness of her office, sometimes through visits to rural communities, Jamieson tended to be non-adversarial in approach and to ‘engage in preventive Ombudsmanship’ on the premise that ‘the Ombudsman could serve as an early warning sign to the government.’42 Clare Lewis – a former defence counsel, Crown attorney, and provincial court judge – was appointed the next Ombudsman in 1999. His approach, too, can be characterized as conciliatory. He generally emphasized the need for a strong and mutually respectful working relationship between the Ombudsman and all elected members.43 Lewis noted a decline in the number of complaints to his office, but he attributed this to a reduced public education program. At the same time, he suggested that the decline ‘may also reflect a positive change within the Ontario Public Service [and] the implementation over the

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past few years of the Common Service Standard.’44 His position may be best summarized as follows: ‘Most Ontario public servants when made aware of error or unfairness are anxious to remedy the matter.’45 He also noted that ‘one approach I have adopted … is to raise issues directly with the responsible minister rather than engaging in formal investigations which can be extremely time and resource consuming.’46 We thus see that, except for Maloney, Ontario’s Ombudsman office holders have favoured a more conciliatory and managerial orientation. The current office holder, André Marin, however, has brought a much more proactive and confrontational style – one that has been productive while also introducing equally significant managerial reforms. A fascinating contrast thus emerges between Maloney and Marin in terms of both being confrontational. Maloney, even though he was personally and politically close to Premier Davis (and to AttorneyGeneral Roy McMurtry), had major run-ins with the government and legislators that were distracting and that undermined the Ombudsman’s potential. Marin, in contrast, seems not to suffer any drawn-out, confrontational delays, but has had all of his recommendations (except for broadening the office’s mandate) accepted by Premier Dalton McGuinty’s government. 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, so we need to take a closer look at Marin’s style. Marin and Taking the Ombudsman Idea into the Twenty-First Century: From ‘Puffery’ to ‘E-Government’ to ‘SORTs’ A clear change in style was ushered in with the appointment of André Marin in 2005 (see Table 8.1). This change was first evident at a symbolic level with the adoption of the Ombudsman’s motto of ‘Ontario’s Watchdog’ and the move to new headquarters that were a bit farther away from Queen’s Park. More substantively, however, Marin has brought a proactive 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. Marin’s position is captured by the title of the keynote address he gave to the U.S. Ombudsman Association in September 2006: ‘Innovate or Perish.’47 Along with his other statements,48 Marin’s position is that the Ombudsman institution needs to adjust

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constantly to changing circumstances in order to remain effective. As an institution that originated in the nineteenth century and that blossomed in the late twentieth century, the Ombudsman will need to expand innovatively during the early years of the twenty-first century in order to remain viable. Unlike most Ombudsmen in Canada, Marin came to the office with prior experience as an Ombudsman, having served six-and-a-half years as Canada’s first Military Ombudsman. This differentiated him from the rest, most of whom had been lawyers, judges, academics, and activists and had assumed office with good intentions but little or no practical experience. Marin also had related experience as Director of the Special Investigations Unit of the Ontario Ministry of the AttorneyGeneral (1996–8), a post that involved investigating police actions that had resulted in serious injury or death.49 It is pertinent to reflect on Marin’s previous experience, because it goes to the heart of the attributes an effective Ombudsman needs. Maloney once stressed the ambiguous notion of being an ‘expert in humanity,’50 and many Ombudsmen in Canada have been chosen largely for their impartiality. In contrast, Marin was chosen mainly because he was already an experienced Ombudsman-style investigator. This represented a major change in direction. His and other recent appointments, such as that of Bernard Richard in New Brunswick, suggest a possible shift away from people known for their impartial credentials towards proactive people who combine a commitment to human rights with experience in investigating alleged maladministration. The impact of Ontario’s change is not limited to the province; it is affecting the rest of the country. Marin was chosen in May 2007 as president of the Forum of Canadian Ombudsman and has been the North American Regional Vice-President of the International Ombudsman Institute since July 2006; thus he has become the model for Ombudsmanship in Canada. The Ontario Ombudsman office also now provides training sessions with respect to investigative techniques for staffs from other Canadian and foreign Ombudsman offices. It is one thing to consider Marin’s background and to conclude that he is more proactive, but what precisely does this really mean? What has Marin done specifically to distinguish himself from his predecessors? There are three areas where he has been pushing the envelope: (1) his choice and use of words and communication strategy; (2) his use of the Internet; and (3) his use of Special Ombudsman Response Teams (SORTs).

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Choice and Use of Words, Communication Strategy, and Education Marin is not given to understatement, and his critical comments about government are eagerly received by the mass media. Annual reports and SORT reports usually receive page-one coverage in daily newspapers and are among the lead stories on evening TV news programs. The Ombudsman’s organizational chart includes a ‘Communications and Media Relations’ unit that reports directly to Marin; that unit coordinates the publication of reports and nurtures relations with the media.51 Marin has been a ‘media favourite’ in large part because of his choice and use of colourful words to criticize the government. ‘Puffery’ was such a term; it was used and popularized in the 2006–7 annual report to direct attention to the fact that some government departments and agencies have often used self-flattering descriptions to mask their failures to deliver.52 When asked whether Marin’s use of words like ‘puffery’ was a calculated risk that might backfire by causing resentment on the part of those in positions of authority, Deputy Ombudsman Barbara Finlay was not worried. As she pointed out when interviewed, the Ombudsman’s reports are based on thorough investigation and documented evidence, and the Ombudsman’s opinions are reached through a fair and impartial process.53 Finlay went on to stress that the Ombudsman has been balanced in his reports and public statements in that he has not only noted cases of puffery but also praised the administration where it has improved its service. Finally, the Ombudsman has been very successful at having his recommendations accepted and has maintained the premier’s support for his efforts.54 There is a bit of trivia worth observing here because it reveals how high the status of the Ombudsman has risen in Ontario since the 1970s: despite his personal friendship with Premier Davis and Attorney-General McMurtry, Maloney never publicly received the kind of support he needed; Marin, by contrast, has seen McGuinty attend the Ombudsman’s headquarters for a ‘meet and greet’ reception for visiting national and international Ombudsmen and investigators and has had the secretary of Cabinet speak to the same group in a training session. The position of both the premier and the secretary was that ‘far from being adversaries, the Ombudsman and government staff share the same duty to the Ontario public and the same goal of making government work better.’55

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Marin’s communication strategy is centred on the Internet, whether it involves launching reports and press releases or connecting with community groups and journalists (see next section). Like many of his predecessors as well as his colleagues in other jurisdictions, Marin and his staff also devote considerable time to face-to-face discussions with (1) senior administrators, to deal with emerging trends and systemic issues, and (2) some groups, to keep abreast of their concerns. As noted earlier, this was known as ‘preventive Ombudsmanship’ during Jamieson’s tenure. ‘Education’ in the broadest sense of the word is key to the Ombudsman’s role in Ontario. As other chapters in this book observe, one should not focus solely on the quantitative number of cases (see Table 8.2) – there is much more to the Ombudsman’s work. Another example of ‘education’ was the four-day training session in December 2007 (and to be held again) for administrative investigators with respect to sharpening their investigative techniques.56 Use of the Internet In response to the Cyber-Age, the Ontario Ombudsman office has developed one of the most complete Ombudsman websites in the country. Its portals allow ready access to a plethora of information; also, it is a ‘user friendly’ site that is easy to navigate. The number of ‘hits’ (or visits to the Ombudsman website) has often exceeded 15,000 per month; in March 2007 it was over 25,000.57 March 2007, by the way, was the month the report ‘A Game of Trust’ on the Ontario Lottery and Gaming Corporation was released. No doubt, as is often the case, people accessed the online report after first being made aware of it through the news media. Unfortunately, when analysing website hits, we cannot know who is accessing the site (journalists, community activists, the general public) or for what purpose. Nevertheless, 15,000plus people per month is far more than can be served by mobile teams and regional offices. A second use of the Internet relates to how complaints and inquiries are made. Despite the enthusiasm that proponents have for electronic communication, most people who contact the Ombudsman still prefer the telephone (64 per cent in 2007–8), followed by letter or fax (19 per cent); only 16 per cent use the online complaint form or e-mail.58 Does this suggest that people prefer the more personal touch of communicating by talking and writing to a human being instead of filling out an online form? If so, the Ontario Ombudsman may wish to renew its

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emphasis on regional and mobile intake offices, perhaps by locating intake kiosks in shopping malls. As people become more computer literate over time, they may feel more comfortable making complaints and inquiries over the Internet; but even here, there could be a more effective advertising campaign to make the public better aware of the availability of the Ombudsman website and services. For the moment and into the foreseeable future, however, a multipronged approach to connect with the public is required. Finally, Marin has moved into another area of e-government by conducting online chats with the public – for example, on the day after the release of the 2006–2007 Annual Report.59 The Ombudsman received questions from people scattered across the province; it is not known, though, how many people engaged in/followed the ‘chat’ or have since read the transcript. Even so, it was an honest and inexpensive effort to be in contact with and accountable to the general public. As such, it was a way to build trust. Use of Special Ombudsman Response Teams (SORTs) Marin’s proactive style has been evident in his choice of words, in his communication and education strategies, and with regard to egovernment. In addition, and most significantly, it has been evident in the use of SORTs. Special Ombudsman Response Teams (SORTs) were pioneered during Marin’s time as Military Ombudsman. Each SORT usually consists of five or six investigators (more when necessary) chosen from a pool of twenty-plus investigators, and each team is assigned a systemic issue to investigate. The investigations are usually based on the intensive examination of information gleaned from documents and field interviews and are conducted over a short time frame set by the Ombudsman.60 SORTs have been a viable option in Ontario, in part because of the large staff complement; other jurisdictions with very small staffs and fewer resources can only envy Ontario’s SORTs. In any case, SORTs have been used in a number of high-profile cases including ones involving spousal support, victims of crime, ‘insider’ lottery wins, municipal property assessment, children’s aid societies, children with severe disabilities, drugs to treat rare diseases, counselling for schoolchildren at the military base at Petawawa, and screening for newborn infants. There is yet another lesson to be learned from SORTs, besides that they are a novel investigatory technique. To reiterate a point made

204 Stewart Hyson and Gary Munro Table 8.2 Total complaints and inquiries received, by fiscal year Fiscal year

Total

1998–1999 1999–2000 2000–2001 2001–2002 2002–2003 2003–2004 2004–2005 2005–2006 2006–2007 2007–2008

29,278 22,849 26,495 21,539 21,757 22,753 23,395 23,922 20,226 16,754

Table 8.3 Actual (or net) expenditures, by fiscal year Fiscal Year

Actual expenditures ($)

2001–2002 2002–2003 2003–2004 2004–2005 2005–2006 2006–2007 2007–2008

7,984,869 8,470,070 8,927,626 9,003,869 10,553,000* 9,451,000 9,613,000

*This figure is out of line with the others because it includes the one-time office relocation expense of $1,370,000.

earlier (and in the other chapters of this book), there is more to the Ombudsman’s work than simply investigating individual complaints. Tables 8.2 and 8.3 show the number of individual complaints and inquiries received and the actual expenditures in the early years of the twenty-first century. These data, however, do not depict the totality of the Ombudsman’s role. The Lottery SORT It was noted earlier that the Ombudsman office plays a key role in a democracy: it serves as a watchdog of administration. To that end, on

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the public’s behalf, it clarifies cases of uncertainty, settles individual cases of administrative wrongdoing, corrects systemic problems, educates the public about their rights, and improves administration generally. In Marin’s terms, the Ombudsman institution works to put ‘serve’ back into public service.61 So let us observe the case of the SORT on lottery gambling. When Bob Edmonds had his case broadcast on the CBC’s the fifth estate, viewers immediately connected with his story. Today, gambling is no longer the taboo subject it was for much of Canada’s history; no longer (with a few exceptions) is it prohibited under the Criminal Code. Various forms of gambling are now legal, usually through a provincial Crown corporation, with a percentage of gambling revenues going to provincial coffers. Lottery tickets are broadly advertised and are available ubiquitously at shopping-mall kiosks, local convenience stores, and other retail outlets. Many Canadians purchase a ticket or two on impulse or on a regular basis. Admittedly, to win the grand prize is a dream. When, then, if the dream comes true and we are illegally denied the prize and the lottery corporation – a Crown corporation – refuses to respond? This was the context of the Edmonds story and why it resonated so deeply with the Ontario public and indeed across Canada. Within days, similar stories were being heard, making the issue a high-profile systemic one. In consultation with Gareth Jones, his Director of SORTs, Marin assigned seven investigators and other support staff to investigate ‘the Ontario Lottery and Gaming Corporation’s protection of the public from fraud and theft.’ That was how the investigation was described on the title page of the report.62 Gambling, of course, is based on trust that the operators will adhere to the rules. The fact that the Ontario Lottery and Gaming Corporation (OLG) is a Crown corporation intended to serve the public interest made the matter of trust even more paramount. This SORT on lotteries was able to proceed quickly and thoroughly through intensive investigation, using in-depth interviews of many individuals and a detailed examination of the documents to reach its findings and recommendations in a fair and impartial manner. It was able to identify the lottery corporation’s failure to protect the public and recommend how trust could be restored to the corporation. It would be too peripheral for us to examine this SORT’s report in detail, though it is worth noting the following passage from the 2006–2007 Annual Report: ‘The Ombudsman found that the OLG had become fixated on profit rather

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than public service and that it had failed to treat the potential for retailer theft and fraud seriously. It was hampered by a corporate culture exemplified by an internal e-mail written by its CEO in response to concerns about suspicious retailer wins: “Sometimes you hold your nose.”’63 The twenty recommendations made by the lottery SORT were accepted by the provincial Minister of Public Infrastructure and Renewal, as well as by the OLG’s CEO. They have since been implemented.64 With the spread of government into ‘new’ areas of activity such as gambling, and with the advent of alternative administrative arrangements such as public–private partnerships, the challenges ahead are many. In this administrative climate, the Ombudsman needs to be proactive in order to ensure trust in government. As was noted earlier, Marin’s position is that the Ombudsman needs to be innovative in terms of how it conducts its investigations and serves the public in order to ensure fairness and accountability in the modern administrative state. Conclusion Arthur Maloney stated in his final report in 1978 that the ‘Ombudsman’s job is a lonely one’65 – a curious yet revealing comment. On the one hand, the Ombudsman deals with the public, politicians, and administrators, which suggests heavy involvements with many people. Yet to handle complaints and deal with administrative wrongdoing, the Ombudsman must maintain a certain distance from others in order to make fair and impartial decisions. At the start, the Ontario Ombudsman faced a severely restricted mandate. Since then, each office holder has pushed the envelope either by publicly challenging the executive and the legislature with respect to jurisdiction, or by launching internal structural reforms in order to reach and serve the public more efficiently and effectively. Pushing the envelope has preoccupied Ontario Ombudsmen since the days of Maloney. Some have been more in the public spotlight in their efforts, while others have preferred to work quietly and internally. The Ontario Ombudsman now has one of the largest (and certainly most prestigious) offices in the country, notwithstanding its limited mandate. Despite the cutbacks of the 1990s, it now – at the end of the 2007–8 fiscal year – has eighty-three staff and a budget of about $9.6

Ontario Ombudsman: A Game of Trust 207

million; it has an elaborate office structure and serves the public in both English and French; it usually handles over 20,000 complaints and inquiries per year (see Tables 8.2 and 8.3);66 it has a first-class website; and its reputation is national and international. But perhaps the Ontario Ombudsman’s greatest success has been immeasurable (i.e., non-quantifiable): it overcame the early delays in being recognized and accepted in the 1960s and 1970s; it established solid credentials during the 1980s and 1990s; and it is now expanding innovatively in new directions as a mature public institution.

NOTES * The authors would like to acknowledge the contribution by Professor Donald C. Rowat of his research file on the Ontario Ombudsman office that he had prepared prior to his retirement. Thanks also go out to colleagues Lorna Stefanick and Gregory J. Levine for commenting on an earlier draft of this paper. In addition, as a barrister and solicitor, Greg made a major contribution to the writing of the law section of this paper – see his website: http://www.bmts.com/~greg.levine. 1 Ombudsman of Ontario, ‘A Game of Trust: Ombudsman Report: Investigation into the Ontario Lottery and Gaming Corporation’s Protection of the Public from Fraud and Theft’ (Toronto: March 2007). http://www.ombudsman.on.ca 2 Stewart Hyson, ‘RCMP Ombudsman Model,’ report prepared for the Task Force on Governance and Cultural Change in the RCMP/Groupe de travail sur la gouvernance et la changement cultural a la GRC, November 2007. http://www.publicsafety.gc.ca 3 Ian Greene and David P. Shugarman, Honest Politics: Seeking Integrity in Canadian Public Life (Toronto: Lorimer, 1997), 22. 4 Ibid., 24. 5 Larry B. Hill, ‘The Citizen Participation-Representation Roles of American Ombudsmen,’ Administration and Society 13, no. 4 (1982): 429. 6 Ibid., 428. 7 Larry B. Hill, ‘Institutionalization, the Ombudsman, and Bureaucracy,’ American Political Science Review 68, no. 3 (1974): 1077. 8 Ombudsman Ontario, Annual Report 2007–2008 (Toronto: 2008), 10. http://www.ombudsman.on.ca 9 The Ombudsman Act, R.S.O. 1990, Chapter O.6.

208 Stewart Hyson and Gary Munro 10 Charles Pullen, The Life and Times of Arthur Maloney: The Last of the Tribunes (Toronto: Dundurn, 2004), 256. 11 Ontario, Royal Commission Inquiry into Civil Rights, Report No. 2, vol. 4 (Toronto: Queen’s Printer, 1969), 1383. 12 Ibid., 1337–90. 13 Ulf Lundvik, The Ombudsmen in the Provinces of Canada (Edmonton: International Ombudsman Institute, 1981), 21–2. 14 Arthur Maloney, ‘The Ombudsman Idea,’ University of British Columbia Law Review 13, no. 2 (1979): 382; and Pullen, The Life and Times of Arthur Maloney, 256–9. 15 Annual Report 2007–2008, 53. 16 Barbara Finlay, Deputy Ombudsman, personal interview, 27 August 2007. 17 Annual Report 2007–2008, 10. 18 Hill, ‘Institutionalization, the Ombudsman, and Bureaucracy,’ 1075–85. See also the following general sources on the ombudsman idea: Gerald E. Caiden, ed., International Handbook of the Ombudsman, vol. 1: Evolution and Present Function (Westport: Greenwood, 1983); idem, International Handbook of the Ombudsman, vol. 2: Country Surveys (Westport: Greenwood, 1983); and Donald C. Rowat, ed., The Ombudsman Plan: Essays on the Worldwide Spread of an Idea, rev. 2nd ed. (Lanham: University Press of America, 1985). 19 This obligation is explored in the following sources by Gregory J. Levine: ‘Administrative Justice and the Ombudsman – Concepts and Codes in British Columbia and Ontario,’ Canadian Journal of Administrative Law and Practice 17, no. 3 (2004): 239–54; and The Law of Government Ethics: Federal, Ontario, and British Columbia (Aurora: Canada Law Book, 2007), 47–72. 20 For a discussion and comparison of the Ontario and B.C. administrative justice codes, see Levine, ‘Administrative Justice and the Ombudsman.’ 21 Pullen, The Life and Times of Arthur Maloney, 244–323. 22 Ibid.; see also Maloney, ‘The Ombudsman Idea,’ 380–400. 23 Pullen, The Life and Times of Arthur Maloney, 252; and Maloney, ‘The Ombudsman Idea,’ 384. 24 Pullen, The Life and Times of Arthur Maloney, 265–7. 25 Ibid., 389–90. 26 Ibid., 385. 27 Graham White, ‘Ontario’s Select Committee on the Ombudsman,’ The Table 50 (1982): 53. 28 Ibid.

Ontario Ombudsman: A Game of Trust 209 29 Anonymous source, personal e-mail exchange, 10 September 2007; and Pullen, The Life and Times of Arthur Maloney, 299–303. 30 Robert W. Runciman, ‘Ombudsmen and Legislatures: Allies or Adversaries?’ Canadian Parliamentary Review 7, no. 3 (1984): 16. 31 For other accounts of Maloney’s relationship with the legislature, see Maloney, ‘The Ombudsman Idea,’ 380–400; Pullen, The Life and Times of Arthur Maloney, 244–323; White, ‘Ontario’s Select Committee on the Ombudsman,’ 52–61; and Boris Sirskyi, ‘The Role and the Function of the Ontario Ombudsman,’ MA thesis, McMaster University, 1978, 40. 32 Maloney, ‘The Ombudsman Idea,’ 380–400. 33 Pullen, The Life and Times of Arthur Maloney, 304–5. 34 Ibid., 320. 35 Daniel G. Hill, ‘Regionalization – The Ontario Experience,’ Occasional Paper no. 36, International Ombudsman Institute (Edmonton: October 1986), 3. 36 Pullen, The Life and Times of Arthur Maloney, 322. 37 Hill, ‘Regionalization,’ 5–10. 38 Pullen, The Life and Times of Arthur Maloney, 320. 39 Equal Times, Ombudsman Ontario Equal Times 7 (1989): 1 and 3. 40 ‘Roberta Jamieson: A Profile,’ Canadian Woman Studies 10, nos. 2–3 (1989): 37. 41 Ombudsman Ontario, Annual Report 1998–1999, 4. 42 Annual Report 2004–2005, 16–23. 43 Annual Report 1999–2000. 44 Annual Report 2001–2002, 5. 45 Ibid., 3. 46 Ibid., 2. 47 ‘Innovate or Perish,’ keynote address by Andre Marin, Ombudsman of Ontario, presented to the 27th Annual Conference of the United States Ombudsman Association, Des Moines, 12–15 September 2006. http://www.ombudsman.on.ca 48 Various publications, speeches, and presentations by Marin as well as transcripts of his interviews are available online at the website on the Ontario Ombudsman. http://www.ombudsman.on.ca. 49 Ombudsman Ontario, ‘Ombudsman Biography.’ http://www.ombudsman.on.ca 50 Maloney, ‘The Ombudsman Idea,’ 400. 51 Annual Report 2006–2007, 71. 52 Ibid., 5.

210 Stewart Hyson and Gary Munro 53 Barbara Finlay, Deputy Ombudsman, personal interview, 27 August 2007. 54 Annual Report 2006–2007, 4–10; and transcript of the press conference under the ‘What’s New’ portal of Ombudsman Ontario. http://www.ombudsman.on.ca 55 Annual Report 2007–2008, 9. 56 Ibid., 21. 57 Annual Report 2006–2007, 69. 58 Annual Report 2007–2008, 53. 59 ‘Ombudsman Online.’ http://www.ombudsman.on.ca 60 Finlay, personal interview; and Ombudsman Ontario, Annual Report 2006–2007, 24–43. 61 Ibid., 8–9. 62 Ombudsman Ontario, ‘A Game of Trust,’ title page. 63 Annual Report 2006–2007, 31. 64 Annual Report 2007–2008, 28. 65 Annual Report 1977–1978. 66 It should be noted that by the early to mid 1990s prior to the budget cutbacks of the Harris government, the Ombudsman office was handling over 30,000 inquiries and complaints annually.

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9 Quebec Ombudsman’s Evolution: Assessment of Reactive and Proactive Roles in the Context of Administrative Reforms isabelle fortier1

The concept of Ombudsman has gained solid credibility as a complaint-handling mechanism that helps members of the public protect their rights before a powerful and complex administrative state. Beyond this principal mandate, several Ombudsmen have broadened their role by taking on related educational and monitoring tasks. Attention in the literature has focused mainly on complaint-handling processes, with less attention accorded to other matters such as the organization’s own administrative processes, its monitoring of legislation, and its being an agent of change via its systemic investigations. At one time, scholars of the Ombudsman institution mainly embraced a prescriptive orientation, focusing on its origins and advocating for it as a new way to address maladministration. This was followed by a descriptive phase of research that compared institutional and constitutional differences. Today many scholars focus on evaluating Ombudsmen’s performance and effectiveness. Evaluative studies may draw from Ombudsmen’s self-reporting of performance and examine the social demographics of the complainants. Barbara Male has observed that there are many other ways to assess Ombudsman activities.2 According to her, evaluative research subjects Ombudsman offices to outside verification, which makes this approach more ‘sensitive.’ Evaluative studies also draw attention to the activities of Ombudsmen and stimulate a debate about the institution and its mandate. Similarly, as Aufrecht and Hertogh3 have emphasized, when researchers ask whether what the Ombudsman does is ‘good,’ it is important that the evaluation’s purpose be explicit: is it to offer sound analysis to administrators, decision makers, and civil society. It is with the latter perspective in mind that we have undertaken this research

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study, in which we consider not only how the Ombudsman office fulfils its mandated goals but also how it is affected by administrative reforms. This chapter is mainly about the evolution of Quebec’s provincial Ombudsman. It identifies the activities and roles – both reactive and proactive – that office has conducted over time. We also consult the literature in order to examine the current issues facing the institution and to identify strands for future research. It is difficult to set aside the positive image of the Ombudsman as ‘the fighter for the underdog, for the victim of the uncaring, or even malevolent, governmental bureaucracy’;4 but we need to take a critical stance while looking at this institution and its leadership. So in this chapter we raise issues while analysing the Ombudsman’s resources and activities through the data available in the office’s annual reports, especially those published between 1988 and 2007.5 Over those years the Ombudsman institution seems to have stabilized and new administrative reforms6 have been leaving their marks. In the context of these reforms, some instruments such as result-based management, citizen charters, and internal complaint-handling mechanisms have offered new ways to assess the empirical data. We will be examining statistical data, paying particular attention to the Ombudsman’s classification categories and to how the definitions of these categories have changed over time. As well, comments by the different incumbents in their annual reports will be utilized as a ‘discourse’ allowing us to trace how Ombudsman office holders have defined their role. To this same end, we have interviewed a former incumbent in order to better understand her views about the institution’s roles and the specifics of the Quebec context. Ombudsman as an Institution One of the first scholars to examine the Ombudsman idea was Larry Hill,7 who stressed the main characteristics of the institution: legally established; functionally autonomous and operationally independent from executive and legislature; external to administration; specialist and expert; non-partisan; normatively universalistic; client-centred but not anti-administration; and both accessible and visible to the public. Unlike administrative courts, however, the Ombudsman lacks coercive power, so this question remains open: How can he or she affect public administration, and what range of effects can the

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Ombudsman have? As Hill explains, the Ombudsman’s interactions with departments are the basis for a collaborative dialogue: ‘His accomplishments are not flashy, but in addition to his substantive and psychological public impact, he has affected administration in subtle ways. The ombudsman is not a panacea; it is probable that those who will be the most disappointed with ombudsman experiments are those who expect too much.’8 Before launching our analysis, we will first identify the main features of the Public Protector (PP) – Quebec’s provincial Ombudsman – to show how it corresponds to the office as described by Hill.9 At the same time, we will consider the notion of a flexible and accessible office with extended powers, as has been portrayed by GammeltoftHansen.10 Note well that the incumbent office holder has broad leeway to explore and develop the institution. This is why individual leadership is so important to the institution. The Public Protector in Brief The Quebec Ombudsman is formally called the Public Protector (PP). Since 1967 the PP’s mandate has been set by Chapter 32 of the province’s Public Protector Act. The PP ‘is responsible for protecting citizen’s rights by intervening with departments and agencies of the Government of Québec, including [since 1 April 2006] those in the health and social services network, to correct any prejudicial situations affecting citizens individually or as a group.’ The Incumbent Quebec’s PP is nominated by the premier but must be approved by two-thirds of the members of the legislature. The PP’s term is five years, with the possibility of reappointment. The same ratio is required in order to dismiss an incumbent. As indicated in Table 9.1, there have been six office holders over the years, with Daniel Jacoby having served the longest tenure. The PP must take an oath of office and must engage exclusively with the assigned functions. The government sets the salary and cannot reduce it. The PP’s mandate does not coincide with legislative elections. Each year, the PP submits a summary report to the chief executive stating the number of interventions and the nature and outcome of each intervention. The PP also produces an annual report to the legislature describing some cases and making

214 Isabelle Fortier Table 9.1 Quebec’s Public Protector office holders Louis Marceau Lucie Patenaude Yves Labonté Daniel Jacoby Monique Champoux-Lesage Raymonde St-Germain

1969–1976 1976–1982 1982–1987 1987–2001 2001–2006 2006–present

recommendations for changing problem situations. The Ombudsman can also comment publicly when he or she considers it necessary. The Office The Controller General reviews the PP’s annual financial statements, and the provincial Auditor-General audits those statements independently. The government appoints no more than two Deputy PPs on the recommendation of the PP, and fixes their salaries. The PP, though, is responsible for assigning their duties. The PP also appoints and assigns the other staff members, but again, the government determines their number and their salaries. One Deputy PP serves as the PP when the latter is away or temporarily unable to act. Jurisdiction and Powers The PP has jurisdiction over departments and agencies whose staff are appointed under the Public Service Act, and also over any organization placed under its jurisdiction by special legislation. This includes (1) every person, except the Chief Electoral Officer, designated by the legislature to hold an office accountable to it, where the law provides that the person’s staff are appointed in accordance with the Public Service Act; (2) the staff of the Secretariat of the Conseil du Trésor; (3) the Public Curator; (4) the Autorité des marches financiers. Under the Public Protector Act, the Ombudsman has the power to intervene at the request of any person or group that appears to have suffered prejudice as the result of an act or omission by a public body. The PP can also intervene on his or her own initiative. The PP and its staff have the powers and immunity of commissioners appointed

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under the act respecting public inquiries. No legal proceedings may be taken against the PP, the Deputy PP, or the office’s staff for acts done in good faith in the performance of their duties. The PP has no coercive power but can make recommendations to public bodies. As well, the PP can comment on draft bills and regulations and appear before parliamentary commissions. The Complaining Process On receiving a complaint either orally or in writing, the PP must first verify that the office has jurisdiction over the body that is the target of the complaint and that the complainants have exhausted all other administrative and judicial remedies. Even then, the PP may still decline to investigate if (1) more than one year has passed since the complaint, (2) the person who requires the intervention refuses to provide the appropriate documentation, (3) the complaint is frivolous, vexatious, or made in bad faith, or (4) an intervention is not expedient in the circumstances. PP investigations are always conducted in private. The complainant is guaranteed that the PP will intervene confidentially, that he or she will be notified as to why the request for intervention was accepted (or refused), and that the results will be explained. The Public Protector through the Annual Reports: Quantitative and Qualitative Data To understand Quebec’s PP as an organization and how it has evolved, and to gain insight into the leadership factor, we analysed the office’s annual reports. Particular attention was paid to what the categories mean (as defined by the PP), to statistical trends, and to the general comments from the office holders as to how they view their role. Like Aufrecht and Hertogh, we acknowledge that the data are ‘fuzzy’ – a problem that cannot be resolved simply by asking for ‘better numbers.’11 After all, the question of measurement always brings us back to the philosophical question of what is being measured. Our analysis, then, will consider the available data while also pointing out what is being overlooked, what has changed over time, what organization members insist on, and what is being underemphasized.

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A Few Numbers: A Rather Stable Overall Picture (1988–2007) but Many Trends during the New Public Management Era Our empirical observations in this section will allow us to comment on the following issues: organizational capacity; the general decrease in complaints; the construction of data by adjusting categories, and the links this has to reform issues; the confusion as to what constitutes a public service; the issue of comprehensive mandate and the risk of erosion under new approaches to service delivery; and the challenging question of how the Ombudsman’s data can shed some light on the extent and nature of maladministration. In doing so, we will observe how the Ombudsman office itself, while outside the reach of the Public Administration Act (2000), has been affected by the features and norms of New Public Management. Agency’s Capacity Over the years, PP’s reports have often expressed concerns about the loss of capacity to meet demand. An Ombudsman’s effectiveness at contributing to the accountability of public administration depends on its capacity: specifically, does it have sufficient staff and funding to fulfil its tasks?12 Capacity also depends on the scope and clarity of the office’s statutory mandate and on effective powers of implementation. Table 9.2 shows the PP’s expenditures and human resources over the years; these statistics can be related to the number of complaints and inquiries shown in Appendix 9A. The table indicates that after a steady increase in the number of complaints until 1988, the situation stabilized in terms of the numbers and nature of complaints.13 Resources have also stabilized in recent years, after rounds of downsizing that affected the entire public sector.14 A simple connection can be drawn between resources and the processing of individual complaints; however, these data do not tell us about the PP’s capacity to conduct preventive, systemic, and proactive activities. The Hypothesis of a General Decrease in Complaints Examined In this research project, the idea that there has been a general decrease in the number of complaints was a hypothesis we wanted to examine. So, what do the data in Appendix 9A tell us?15 We see an increase in contacts over the second half of the 1990s, followed by a decrease over

Quebec Ombudsman’s Evolution 217 Table 9.2 Public Protector’s expenses ($ 000) and personnel, 1988–2006/2007 Years

Expenses

Personnel

1988–1989 1989–1990 1990–1991 1991–1992 1992–1993 1993–1994 1994–1995 1995–1996 1996–1997 1997–1998 1998–1999 1999–2000 2000–2001 2001–2002 2002–2003 2003–2004 2004–2005 2005–2006 2006–2007*

2,756 3,060 4,319 5,065 5,262 5,535 5,285 4,880 4,994 5,123 5,531 5,604 6,452 6,786 7,212 7,744 7,934 8,774 11,356

59 84 84 88 90 90 88 81 81 82 81 82 84 84 85 94 94 94 132

*The reason why the figures for this fiscal year are so different from the preceding is that, as is noted below and in note 24, about thirtythree employees and the budget of the former Health and Social Services Ombudsman were transferred to the PP’s office.

the past few years. On dividing these data into subcategories, it is useful to note that general inquiries and referrals account for most of the change, whereas the numbers of accepted complaints have generally remained constant. So we cannot talk about an actual decrease in complaints in Quebec. With regard to referrals, departments and agencies have recently come under pressure to develop their own complaint-handling offices. Since the establishment of these offices, the PP has applied a referral procedure whereby complaints are first referred to the internal complaint-handling mechanisms within the departments and agencies concerned. Today, then, the PP considers complaints only after the existing complaint-handling mechanisms have been exhausted. Finally, with regard to the changes in general inquiries, the explanation may simply be that people today know more about what the PP actually does, which has led to a consequent reduc-

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tion in general information requests. But it may also be that people have other recourses for their complaints or have easier access to other sources of information, such as websites, for their general inquiries. Thus to interpret these data in a meaningful way, we need to take into account how the numbers have actually been compiled. The Construction of Categories under the Effects of Result-Based Management and Citizen Charters Larry Hill has drawn our attention to what to look for when characterizing an Ombudsman’s activities.16 We need to observe what ‘counts’ as a complaint; the nature of the complaint (e.g., grievance, malfeasance, error, abuse, or injustice); the judgment reached about the complaint after investigation; the outreach of the Ombudsman (e.g., as it relates to decentralization, mobile offices, and branch offices); the existence of a toll-free line and Internet availability; the contact mode and the protocol requirements; the distribution of clients (according to gender, age, class, and ethnic origins); and the government agencies that are the targets of complaints. Table 9.3 provides an overview of the situation found in Quebec. Before proceeding, however, a glance at Appendix 9A and especially Appendix 9B should point to the difficulties awaiting those who wish to trace precisely the evolution of the Ombudsman’s caseloads and complaint-handling activities.17 Changes in the categories used for classifying data pose a methodological challenge18 when it comes to monitoring and assessing the activities of the Ombudsman’s office over time. That said, classification changes are interesting in themselves for they reveal the degree to which complaint data are constructions that reflect how they are interpreted. They also suggest how the PP’s understanding of its mandate and activities has changed over time. First Overall Picture: The Public Protector as an Exemplary Organization As shown in Table 9.3, requests for information have regularly accounted for close to 20 per cent of total contacts and historically have been classified as ‘outside’ the scope of complaint-handling activities. Since 2003–4, however, the PP’s annual reports with very few exceptions have been presenting all information requests as actual activities, which implies intervention by the PP. Also, the category ‘rejected’ –

Quebec Ombudsman’s Evolution 219 Table 9.3 Overview of the complaint-handling process Complaining process: what to pay attention to

Public Protector

What counts as complaints (information, referrals, rejected, suspended, etc.)

See Appendix A. Until 2004: about 15–18% information/83–85% interventions. From 2003–2004: modifications to classification make almost all requests count as interventions. Former categories ‘informations,’ ‘rejections,’ and ‘referrals’ are amalgamated to form the now above 50% ‘ineligible.’

Nature of complaints (error, abuse, injustice, inefficiency, etc.)

See Appendix B, which lists the 4 main causes of complaints each year. Many changes in categories over the years. Until 1993 mainly delays, neglect, factual errors, and system problems. From 2004 on, 4 categories remain: unreasonable/unfair actions, non-conformity, illegal act, and factual errors.

Validity of complaints

See Appendix A. Around: 30% justified/70% unjustified. Among justified, around 90% of recommendations are applied by the government department (or organization), a ratio that is presently decreasing, however.

Outreach of office

Two offices in the province (Montreal and Quebec).

Toll-free line

Available.

which may appear as a negative action taken – is now a smaller portion than it used to be (15 per cent, instead of the previous 40 to 50 per cent or more). This drop is due to the fact that many complaints are no longer listed as ‘rejected’ but are treated as not receivable owing to their ‘ineligibility.’ This is a subtle but significant change: where once the PP seemed to ‘decide’ to reject a complaint, the new ‘ineligibility’ category in effect blames the complaints for their own rejection. Note also that the category ‘referrals’ – which had included mainly the redirection of complaints to other complaint-handling mechanisms – has recently been included in the ‘ineligible’ category. In light of these changes, it would seem that the PP is under pressure to act like other public organizations, and also to be an exemplary one. The PP has not been directly affected by the Public Administration Act (2000), which requires ‘management by results’ and enhanced trans-

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parency in public organizations; even so, we can see that the former PP (2001–6) made a serious effort to update management practices in line with those new requirements. It is worth noting that Monique Champoux-Lesage arrived in the position in 2000, right after the office and her predecessor had been sharply criticized by the Auditor-General. Consequently, she applied to her office managerial tools such as a strategic plan, a service statement, and an internal complaint-handling mechanism. We can see, then, how the data as presented are more attuned to this performance orientation. Categories of Substantiated Complaints: From Citizens’ Rights to Citizens’ Expectations? Turning to substantiated complaints, the most striking change is the disappearance of the ‘delays’ category, which at one time had been one of the four main causes of substantiated complaints. Since 2003 these complaints have been assigned to the ‘non-conformity’ category. This makes sense, since according to the Public Administration Act,19 each department and agency providing direct public services must ‘publish a service statement setting out its objectives with regard to the level and quality of the services provided.’ This statement must specify the time within which the public can expect service. When we consider the new categories in Appendix 9B,20 we find that factual errors and illegal acts together account for around 22 per cent of substantiated complaints. At the same time, non-conformity and unreasonable (or unfair) actions account for around 40 per cent each. The latter of these last two categories declined from a high of 43 per cent to 35 per cent by 2005, while the former increased (from 36 to 43 per cent). The increase in the ‘non-conformity’ category reflects the movement towards the use of stated targets by departments and agencies, which indirectly allows the Ombudsman to substantiate complaints. It is worth noting the shift of attention from citizens’ rights to clients’ service expectations under the new contractual arrangement that was launched by the management-by-results trend. Some researchers have commented on the Ombudsman’s expanding role with respect to the quality of public service.21 Borgeat and Mockle, for example, examined the complaints received by twenty-one government complaints offices in Quebec between 1994–5 and 1997–8. They found that the quality issue accounted for about 55 per cent of all complaints handled in 1994–5; this had increased to 83 per cent in

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1997–8. This is evidence of a ‘social accountability mechanism’ that allows ordinary, ‘non-organized’ citizens to have a direct impact on the administration of public policy. That said, the shift toward a ‘softer’ complaint-handling process is centred on the concept of quality more than on the legalities of maladministration, in that the citizens’ charter is not enforceable.22 Are the new explicit targets to which the administration has committed itself through management-by-results techniques and service charters enhancing the capacity of individuals to have their own direct impact on administrative processes? Or is this approach contributing to the emergence of ‘management of satisfaction’ or ‘management of information,’ to borrow terms from New Public Management? These are questions of great interest for future research. What Is a Public Service? The Jurisdiction Battle and Alternative Service Delivery When we examine the statistics we cannot overlook the great proportion of requests that the PP receives every year for which the office cannot provide assistance. Each year around 10,000 complaints to the PP are rejected or considered ineligible; 40 to 50 per cent of these concern the private sector, and about 15 per cent public services outside the PP’s jurisdiction (i.e., they target health and social services, education, municipalities, and a few other agencies). This large number of ‘non-jurisdiction’ refusals suggests that the public has limited knowledge of the PP’s mandate, especially when it concerns complaints about the private sector. That said, the public is confused in part because certain public services were excluded from the PP’s original mandate. Certain basic public services have been excluded mainly because, to be under the PP’s aegis, an organization must employ civil servants acting under the Public Service Act.23 This has long not been the case for the domains of health care, education, and municipalities. In April 2006, however, Health and Social Services were brought under the PP’s jurisdiction, and this will surely have an impact on complaint figures. It is striking that under a different act relating to Health and Social Services, the PP has long had jurisdiction over private organizations such as residences for the elderly and private nursing homes.24 When considering the PP’s scope of activities, as well as its performance, we should not forget the importance of the ‘administrative

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culture and governmental environment within which the office operates.’25 Ideally, people would first know that the PP exists (visibility), and then find it accessible, as well as credible in terms of independence and impartiality. It is apparent that the broader an Ombudsman’s jurisdiction, the more visible it will be and the more accessible to the public. No surprise, then, that successive PPs have focused so strongly on the inclusiveness and comprehensiveness of their office’s mandate. The growth in alternative service-delivery systems such as outsourcing and public–private partnerships with the advent of New Public Management26 threatens to seriously erode the PP’s jurisdiction unless the present legislation is not appropriately amended. The aforementioned inclusion of the health sector may set an example for the future. How Bad Is Public Administration? The PP handles complaints about administrative decisions. It follows that the office holder establishes his or her credibility by being neutral and impartial. Indeed, when public officials are found to have acted properly, the PP must help the complainant understand and accept the decision. To get a better idea of the amplitude of maladministration (see Table 9.4), let us note that of the approximate 25,000 contacts the PP receives annually, about 15 per cent are general inquiries and 85 per cent are seen as requiring intervention.27 Of that 85 per cent, 30 to 40 per cent are investigated. Of those 30 to 40 per cent, about 30 per cent end up being substantiated. In the end, then, 8 to 10 per cent of all contacts received are related to an actual injury (i.e., around 2,000 out of 25,000). The figures in Table 9.4 suggest the degree of actual maladministration; even so, it is difficult to draw straightforward conclusions. Recall that the categories are not always clear as to what they include and exclude. Moreover, the numbers say nothing about whether people know in the first place that the PP exists. Nor is it clear how many people who have been harmed by administrative decisions have turned to the PP for help. A recent Belgian study28 found that the profile of those who complain to the Ombudsman is skewed: the socially disadvantaged are less likely to use the Ombudsman. This reminds us how important it is for an Ombudsman to be proactive, especially in terms of publicizing the office and its work among disadvantaged groups. Annual reports list the departments and agencies that are the main targets of complainants and that have the highest ratios of substanti-

Quebec Ombudsman’s Evolution 223 Table 9.4 Typical ratios of the investigation process

Total requests: 25,000 General queries 15% Intervention demands 85%

Not investigated 60–70% Investigated 30–40%

70% not substantiated 30% substantiated

Substantiated complaints: 2,000; 8% of 25,000 initial requests

ated complaints. It is not surprising that these are the departments and agencies with the most sensitive contacts with the public. In an interview, a former PP noted that higher rates of complaints tend to occur when a program is first implemented. By handling specific complaints, the Ombudsman thus contributes in important ways to the improvement of public programs. The office has another positive impact: it interacts with and educates the public in the cases of the 90 to 92 per cent of inquiries that turn out not to be substantiated. Role of the Ombudsman: Fostering Citizens’ Participation and Contributing to Trust Complaining can be viewed as an important feedback loop for public policy. Put another way, an Ombudsman is a public entry point to the administrative system.29 This is usually forgotten by political scientists, who focus mainly on direct modes of participation. GammeltoftHansen has pointed out that an Ombudsman fosters public participation in three ways: (1) through the informal complaint-lodging process and universal access to the office, which helps people protect their rights; (2) through the office’s extensive powers (i.e., those extending beyond inquiries), which allow the Ombudsman to go as far as ‘to prepare explanations of practice, consider questions of interpretation,

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and make statements on which criteria must be regarded as legal and obligatory/mandatory in connection with decisions on discretionary matters’;30 and (3) through its own-motion investigative powers. Overall, an Ombudsman’s flexibility ensures that the public has at least some influence over the state’s administrative processes. It is worth examining how an Ombudsman helps the public strengthen its influence over policy. According to Hertogh,31 the Ombudsman’s impact on policy is felt by agencies when it launches reviews that extend beyond particular cases. But to understand how the Ombudsman enables the public to affect policy, we must shift focus from compliance to implementation. Gregory and Giddings note that in order to be effective, the Ombudsman should ‘try instead [of reaching for compliance] to create a “winner/winner outcome” in which the governmental body concerned can itself take some satisfaction from remedial action and negotiated systemic improvements following the Ombudsman’s intervention.’32 Unfortunately, it is difficult to evaluate an Ombudsman’s impact as a simple matter of cause-andeffect, because many factors affect administrative change.33 Trust in the Administrative Process In an opinion-based study of parliamentary and executive Ombudsmen in the United States, Hill found that an important function of a complaints office is to increase public confidence in government by impartially investigating criticisms of the administration.34 Trust is important for government since it enables authorities to implement their decisions without coercion. Jarl Kampen and colleagues35 have demonstrated empirically that, when attempting to increase trust in the public sector, it is more effective to reduce the number of disappointed clients than to increase the number of happy ones. This is certainly an area where the Ombudsman can play a crucial role. Note also that when politicians ‘bash the bureaucracy’ as a political strategy, this can reinforce the public’s negative opinions. These authors argue that where information is lacking, a predisposition towards government can do much to forge opinion: ‘In short, perceptions and evaluations of performance are influenced by political strategy and ideological considerations. Stereotypical images of civil servants may play an even more important role. The negative image of the bureaucracy is constantly perpetuated … These negative judgments are (at least partially) isolated from service encounters and experience with public service

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delivery and form an important source of bias regarding the causal link between service quality and trust in government.’36 The Kampen study demonstrated that it is the general attitude towards government, and not the specific experience of service delivery, that explains the correlation between satisfaction and trust. These authors have left the door open for explanations why this general predisposition develops. They do, though, suggest that the literature points to a gap between satisfaction with service delivery on the one hand and trust in government on the other. More research is needed as well as more public discussion about the role of institutions such as the Ombudsman in fostering democratic values, including trust.37 It is pertinent to link the Ombudsman’s role to the idea of participation as expressed by Lawrence Scaff, who has distinguished participation as ‘instrumental action’ from participation as ‘interaction.’ Hill has summarized this: On the one hand, for those who view participation as a competitive process in which elites are influenced, interests maximized, and rights protected, the ombudsman does cause some values to be reallocated in the course of helping clients. On the other hand, for those who view participation as an interactive process in which such values as sharing, reciprocity, communication, justice, and self-realization are prominent, the ombudsman promotes a sense of political community by resolving some grievances, by explaining seemingly inexplicable decisions, and by existing as a symbol of government’s concern for citizens.38

In light of the statistical data analysed above, what can we conclude? It can be argued that data of this sort are not very useful as a means for assessing an Ombudsman’s activities. Yet in a way, the data are revealing with respect to the meanings assigned to the categories, and with respect to how different Ombudsman office holders have translated their vision of their role. To go deeper into this line of thought, the next section considers how the leadership factor has modulated the PP’s accomplishments. Leadership Factor Larry Hill has noted the difference between passive and active Ombudsman activities.39 Specifically, he has emphasized the various ways in which Ombudsmen have defined themselves: as impartial

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investigators; enabler-facilitators; broker-negotiators; arbitrators; advocates; or political activists. It is important, then, to observe the traits each incumbent brings to office. Related to this, we must also note how the Ombudsman complements the work of parliamentarians, who also handle a great number of complaints. Remember here that parliamentarians cannot replace the Ombudsman since they lack impartial investigative powers and are subject to the power dynamics of the executive as well as of their own political party. Many scholars have underscored the importance of the leadership style that every Ombudsman brings to the office. This style affects the office holder’s capacity to influence and persuade. Some scholars have stressed that the Ombudsman’s power can atrophy as a result of timidity or co-optation by the administration;40 remember, though, that this risk is present in the very process of interacting with public servants. Other observers, such as Hertogh,41 have highlighted the Ombudsman’s need to establish the distance and attitude that will allow for an ongoing dialogue that ultimately enhances understanding among the parties involved. Research will be required to document the possible risks of reflexive control, such as ‘capture’ or co-optation of the Ombudsman by agencies or departments. A parallel concern is the other extreme – that is, the expansion of the Ombudsman’s role into the political sphere. This is why we propose to (1) critique the Ombudsman’s political role, notably with respect to administrative reforms, and (2) consider the office’s legitimacy at different points in time and places of intervention. Ombudsman’s discourses in annual reports reveal that the priority of the first few PPs was to publicize their office and establish its credibility with the public. Each office holder left his or her mark on the evolving institution. For example, the first PP, Louis Marceau, made it clear that he was not there to comment on legislative matters, but rather to monitor how laws were implemented.42 In 1976, Lucie Patenaude was appointed the province’s second PP. She actually investigated bills, including the Loi électorale and the Loi sur la langue officielle.43 As well, she was the first PP to launch systemic investigations44 – something her successors have done since. The third PP, Yves Labonté, succeeded in having the act amended so as to broaden the PP’s mandate beyond the quasi-judiciary domain, and to include not only the body causing an injury but also the public servant performing the function.45 This new formulation introduced the concept of pre-

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ventive initiative and emphasized the importance of systemic investigations. The same set of amendments allowed the PP to voice concerns publicly and to enforce the confidentiality of the office’s interventions. Daniel Jacoby also made a significant mark on the PP’s office, as a result of his long tenure and the impact of his personality and leadership style. Jacoby came to see his role as an agent of change in support of New Public Management reforms.46 To encourage the amiable resolution of conflicts between the administration and the general public,47 Jacoby stressed preventive action and a systemic approach. Previous PPs had inaugurated this corrective approach to rules, policies, and laws to deal with common, repetitive injustices, and Jacoby continued down this path. In his Annual Report 1988–89 he declared that public servants were applying rules too rigidly and needed to know when and how to make exceptions in order to support equity. In 1990–1, while the province’s Budget and Administration Committee was reviewing the Public Service Act, he made these recommendations: (1) citizens should be treated as clients, and the administrative process should be adjusted to meet clients’ needs; (2) every department and agency should have a complaint-handling mechanism; and (3) clients should be assessed regularly as to their satisfaction with respect to service delivery. By 1990–1, accepted complaints had increased by 16 per cent and information requests by 13 per cent. Jacoby explained this growth as part of a general increase in complaints among all complaint-handling processes, including administrative courts and appeal tribunals. In his view, this overall increase in discontent was the result of difficult economic times. According to him, the interventionist state was heightening expectations – in other words, individuals were now better educated as to their rights and thus tended to be more aware of their power to express dissatisfaction and effect change. The culture of consumerism was pervading society, including its public services, with the income tax perceived as the price paid for those services.48 While these comments tended to cast complainants’ motives in a negative light, Jacoby also expressed concern that administrators lacked legitimacy when laws and regulations were being implemented – a view he expressed most emphatically, perhaps, in a long quasi-sermon in Annual Report 1997–98. At this point, one can ask what happened with the Ombudsman’s education role – that of promoting values with respect to public service and commitment to the common good.

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In 2000, as a successor to Jacoby, the legislature chose Monique Champoux-Lesage, a career public servant from the managerial ranks. Up until then, the PP had always been someone with a background in the law. Her successor, Raymonde St-Germain, was appointed in 2006 and is another career civil servant. On her appointment, Champoux-Lesage felt that as a former public servant, she had to respond to those who worried that she lacked the necessary ‘distance’ to criticize her former colleagues. The fear was that she shared the public administration’s cultural values and as a result might indulge their errors.49 Her response was that, on the contrary, her capacity to understand public servants would help her persuade them to implement her recommendations.50 Furthermore, she was already respected by the bureaucratic elite, and she had the conciliation skills that a PP needed.51 In her first annual report (2000–1), her personal comment was short and direct. This sent the message that she would be focusing on core issues; in effect, she was signalling the end of the flamboyant and pontifical style that had characterized Jacoby. Champoux-Lesage sought to restore the traditional role of public servants in democratic administration in terms of implementing policies and programs: ‘Government choices are carried out, implemented by public service staff-specialists who translate the decisions of the elected into programs, who write the laws and the regulations that must account for political commitments.’52 Certain that prevention was the best approach to take, she pointed out that every implementation has difficulties and that as PP she would have a role to play in ensuring that the public was not trapped in unforeseen situations. She took a proactive stance but without offering guidance for better administrative practices in governmental departments and agencies. Instead, as part of her efforts to encourage departments and agencies to ‘own’ their own processes, she conducted an assessment of these offices and produced a guide devoted specifically to the ethos and techniques of complaint handling. The present PP, Raymonde St-Germain, has had to confront the challenge of integrating Health and Social Services with the PP’s office. We have yet to see the imprint she will make. Since the strategic planning was done by her predecessor, with a focus on monitoring, it will be interesting to see to what extent the new appointee follows her predecessor’s path.

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The Proactive Challenge of Entering the Political Arena Paul Thomas has maintained that the role of independent officers of Parliament is to protect and serve the public. This role is linked to a scrutiny and accountability function – that of exposing ‘mistakes and misconduct, [which] reinforces the “fire alarm” approach to parliamentary scrutiny.’53 A parliamentary Ombudsman is an independent office of Parliament, which means that its organizational capacity has a direct impact on its performance as a monitor. A.J. Brown and Brian Head54 have analysed the institutional capacity of integrity organizations in general. In this section we emulate their work with respect to Quebec’s Public Protector. Here, it is instructive to consider the priorities the PP specified in Strategic Plan 2004–2008 (see Table 9.5).55 These priorities were based on observed trends in modern governance in response to changes in Quebec society. Socio-economic developments had created pressure for more diversified government services to meet various needs. At the same time, the government was proposing major transformations to render the state less interventionist; to reform its structure and programs; to stress tighter control of spending; to promote public–private partnerships; and to reorganize the health and social services sectors. In the strategic plan, the PP took care to mention that her role was not to comment on political choices; nevertheless, she added, the office was ‘responsible for monitoring their impact on the quality of services.’ Moreover, ‘when change occurs, the Public Protector’s primary role is to make sure that the modifications do not unduly affect citizens, particularly those in society in most need. At the same time, the organization must continue to watch out for the quality of public services. In periods of change, we must pay attention to transparency in the decision-making processes, communication of information, continued availability of services, and existence of avenues of recourse.’56 The PP is constantly challenged to make the office and its services better known by the entire population, to maintain its expertise, and to be exemplary and innovative as an organization. The strategic plan’s conclusion reaffirmed that the righting of wrongs would remain the PP’s core mission, but it also underscored that ‘the objectives we have set stress the Public Protector’s mission of prevention given the government’s current focus on redefining its role and reviewing its programs.’57 To this end, the office has established two oversight commit-

Table 9.5 Main items of the Strategic Plan 2004–2008

Objective 1 Ensure citizen rights are upheld in this time of change

Areas of action

Main actions

Ensure that the established rules of democracy are followed transparently and that the values of social justice and solidarity are upheld

Online Government Project Oversight Committee

Promote the quality of relations between the government and the general public, in whatever forms this might take

Active legislative monitoring Government Modernization Oversight Committee

Objective 2 Raise awareness of the Protecteur du citoyen and promote the values it advocates

Raise awareness of the Protecteur du citoyen among the general public and such multiplying agents such as community organizations and associations

Annual communications plan aimed at target groups

Promote the values of justice, fairness, transparency, respect, and integrity in government/citizen relations Objective 3 Be a model, state-of-the-art organization focused on serving citizens

Develop expertise to face new challenges and bolster staff dedication

Annual training plan Mentorship program

Improve work methods for studies, analyses, and surveys Be an organization focused on meeting the needs of all citizens

Development of a new investigative file management system Institutional approach on ethics

Source: Public Protector, Strategic Plan 2004–2008. http://www.protecteurducitoyen.qc.ca/en/mandat/plan.asp

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OBJECTIVES

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tees to monitor the modernization process and the development of online government. Active monitoring of legislation will now be a crucial part of the PP’s work. Champoux-Lesage’s priorities for 2004–858 were the monitoring of the legislative process and of the systemic transformations proposed by the government in its modernization plan. As an example of monitoring intervention, she had highlighted in her 2003–4 report the ‘excessive use of the notion of emergency in order to bypass the requirements of the Regulations Act with regard to the prepublication of regulation and its consequences of having to hear citizens’ comments. The government can also invoke the same notion of urgency to avoid BAPE59 evaluation of projects.’60 She also noted that the shortening of time frames for parliamentary committees had reduced the time available for participants to prepare well-documented interventions: ‘In 2003, before the Christmas break, no less than eight bills were adopted during debates that lasted less than 20 hours. I am aware that the game of the parliamentary institutions is such that the opposition will use all means at their disposal in accordance to rules of procedures to delay the adoption of a bill and that in this context, the government sometimes resorts to the notion of suspension of the rules of procedure to adopt one or several bills.’61 Champoux-Lesage predicted other changes as a result of the state modernization project, and she expressed her hope that the democratic process would be protected: ‘During the past few months, the government has announced important policy changes aimed at modernizing the State. The administrative structure as well as existing programs and their management will apparently undergo major changes. Most citizens’ concerns regarding this upheaval, which is still nebulous at present, are tangible. The respect for democracy and the concern for social stability require, now more than ever, that the government be transparent in its actions.’62 Like other observers, Champoux-Lesage was concerned about the impact of New Public Management and alternative service-delivery approaches, especially with respect to the PP’s complaint-handling role. She maintained that the right to complain is a basic feature of democracy that must be preserved.63 Under the trend towards alternative service delivery, new institutional arrangements are being introduced that will ‘artificially’ separate implementation from policy development and planning. This will sharply reduce the feedback effects of complaints and adjustments as inputs into policy. These new developments are wrapped in the rhetoric of quality and client-oriented service; even so, the right to complain

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must be preserved as a basic feature of democracy.64 The new ‘delivery partners’ of the state may end up outside the PP’s jurisdiction unless the necessary legislative changes are adopted. For example, despite the office’s efforts to have its jurisdiction expanded,65 Quebec’s newly created Public–Private Partnership Agency – under which PPP projects are studied and developed – is not under the aegis of the PP. Champoux-Lesage deplored this: ‘The Bill does not mention principles and values that government departments and agencies must follow while implementing public–private partnership projects. She therefore recommended that these principles and values be included in the bill in order to ensure citizens that principles of transparency, fairness, quality of services, accountability, and protection of public interest are observed.’66 The Proactive Role of the Ombudsman in the Context of Administrative Reform The administrative reform discourse in Quebec poses a major dilemma for the Public Protector. Politicians have often blamed public administrators for ‘poor’ performance while promising reforms adopted from private-sector practices to improve efficiency in public administration. Though these reforms are presented as (and reduced to) technical fixes, they have important political implications, especially for institutions such as Ombudsman offices. Paul Thomas, for instance, has commented that ‘officers of Parliament must walk a fine line in their dealings with the public service: issuing criticism where it is deserved but also working collaboratively with public servants to achieve improvements. [In addition], exposing mistakes brings publicity and praise from a cynical media and a frustrated public … This means that only errors and unwanted developments are noticed, contributing to the public’s impression that nothing works in the bureaucracy.’67 By taking a proactive role, the Ombudsman may be drawn into judging and commenting on the legislature’s political position, which may throw the office’s legitimacy into question. As well, there are indirect consequences when the Ombudsman’s public comments are repeated in the media or used in partisan debates. Faced with the government’s neoliberal reform agenda, what is the place for the Ombudsman’s arguments in favour of social justice and equity, especially when expressing worries about the consequences of new policies for the public?

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The public sector’s contracting out of managerial tasks to the private sector, through the New Public Management approach, may have a serious impact on public services and values. This approach emphasizes efficiency; it also focuses on what can be counted and measured, to the detriment of more elusive dimensions of public administration. It gives public-sector managers greater managerial freedom in which to manoeuvre, in exchange for reinforced accountability for results. What happens to the transparency of public administration under these new arrangements? Earlier, we demonstrated empirically the methodological challenges inherent in applying data on complaint-handling processes to assess an Ombudsman’s performance. Though we did not provide clear answers to the question of how to assess Ombudsmen, we did raise important questions that deserve to be discussed and supported by further critical research. On the one hand, we have highlighted the fact that Quebec’s PP, having to act as an exemplary organization, has aligned itself with the new explicit organizational commitments of departments and agencies. While we acknowledge that this may give the PP practical experience with these managerial tools, we wonder if in doing so the PP has reduced its critical capacity to take stock of the effects of these transformations on public administration, thereby becoming unwittingly an instrumental promoter of the changes. How can the PP criticize changes that he or she also promotes? Should the PP take these managerial features as given, or remain aware of their social construction and ideological component and monitor their impact? How are managerial ‘best practices’ linked to clients’ satisfaction and administrative fairness and justice? Are citizens’ service charters becoming the new ‘truth’ to be monitored by the PP? In describing the institutionalization of an internal regulatory movement in government, Christopher Hood and colleagues have described how regulators have come to represent competing values such as economy and efficiency on the one hand and fairness and probity on the other.68 More specifically, with respect to the auditing function performed by Auditors-General, Michael Power69 has demonstrated how the obsession for control has distorted evaluations of performance, with the result that organizations focus on what is auditable and will be subjected to audit. Furthermore, what are the legitimate proactive means by which an Ombudsman may act to support the rights and values that he or she is mandated to protect?

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These issues must be discussed openly and critically. The point Thomas made about the Canadian political arena raises the issue of the role played by independent officers of Parliament in changing parliamentary culture: ‘Accountability as learning, as opposed to accountability as blaming, should become a stronger emphasis within the Canadian parliamentary process. Officers of Parliament are in a unique position and are particularly qualified to contribute to such a shift.’70 To conclude: the reform discourse claims to strengthen simultaneously the powers of the system’s three poles: the public (or ‘consumers’), the administrators (through decentralization and delegation of authority), and the politicians (owing to politicians’ control over administration).71 There are acute tensions among these three groups of actors; there is also increasing pressure on those who are responsible for the success (or failure) of day-to-day operations in governmental services. This is the very area that ministers, through New Public Management, want to abandon by distancing themselves from technocratic and bureaucratic realities.72 As Pollitt and Brouckaert have commented: ‘On the one hand we see policy-makers using administrative reform to displace accountability for public policy; on the other hand we see the very same policy-makers trying to increase their control over bureaucracy. Whilst this appears to be two inconsistent developments, they may in fact reflect a general desire among elected politicians to increase their influence over bureaucracy while at the same time avoiding responsibility for the bureaucracy’s actions.’73 What is the place of an institution such as the Ombudsman in this sort of power dynamic? As a watchdog of government and as an intermediary between the public and the administration in cases of alleged injustice and injury, there is no doubt that the Ombudsman should monitor and investigate administration and try to have maladministration rectified. But where should the Ombudsman take the lead in the reform discourse and in the transformation of administration, especially if such transformation dilutes the institutional accountability of the elected in the democratic loop between citizens and the state without replacing it by proper accountability mechanisms? Is the Ombudsman not a guardian of these values as well?

Quebec Ombudsman’s Evolution 235 NOTES 1 I wish to thank Stewart Hyson for useful comments on earlier versions of this text, and Christine Métayer and Sylvain Bédard for their assistance in gathering and processing the data and documentation used in this paper. This research was made possible with the funding of FQRSC and IPAC. 2 Barbara Male, ‘Assessing Ombudsman Performance,’ in International Ombudsman Yearbook 4 (2000): 59–77. 3 Steven E. Aufrecht and Marc Hertogh, ‘Evaluating Ombudsman Systems,’ in Righting Wrongs: The Ombudsman in Six Continents, edited by Roy Gregory and Philip Giddings (Amsterdam: IOS, 2000), 389–402. 4 Aufrecht and Hertogh ‘Evaluating Ombudsman Systems,’ 399. 5 It is important to note that the 2006–7 report now includes Health and Social services, to be discussed later. 6 Gouvernement du Québec, ‘Moderniser l’État: Pour des services de qualité aux citoyens. Plan de modernisation 2004–2007’ (Québec: Conseil du trésor, 2004). 7 Larry Hill, ‘Institutionalization, the Ombudsman, and Bureaucracy,’ American Political Science Review 68, no. 3 (1974): 1075–85. 8 Hill, ‘Institutionalization, the Ombudsman, and Bureaucracy,’ 1085. 9 Ibid., 1075–85. 10 Hans Gammeltoft-Hansen, ‘The Ombudsman as a Non-Traditional Tool for Citizen Participation,’ in International Ombudsman Yearbook 2 (1998): 189–97. 11 Aufrecht and Hertogh ‘Evaluating Ombudsman Systems,’ 398. 12 A.J. Brown and Brian Head, ‘Institutional Capacity and Choice in Australian Integrity Systems,’ Australian Journal of Public Administration 64, no. 2 (2005): 84–95. 13 The increase in number of resources and budget in the 2006–7 Annual Report appears at the time that Health and Social services were added to the Ombudsman’s jurisdiction. 14 It has been commonly observed that, since the election of the Quebec Liberal government in 2003, the size of the state has diminished by attrition. Roughly one of every two civil servants who retire is not being replaced. 15 For some comparisons among Canadian Ombudsman offices, see Wendy Bernt and Stephen Owen, ‘The Ombudsmen in Canada,’ in Righting Wrongs: The Ombudsman in Six Continents, edited by Roy Gregory and Philip Giddings (Amsterdam: IOS, 2000), 127–41.

236 Isabelle Fortier 16 Larry B. Hill, ‘The Citizen Participation-Representation Roles of American Ombudsman,’ Administration and Society, 13, no. 4 (1982): 405–33. 17 For example, the 2006–7 Annual Report has changed the way data are compiled and presented, which makes it very difficult to follow the structure of presentation of this appendix. We have done our best to place figures in the right places, but we recommend that the reader refer to the actual reports for precise information. 18 A note found in a press release accompanying the 2005–6 Annual Report indicates additional changes and challenges: ‘Since April 1, 2006, the Protecteur du citoyen has been able to break complaints down by subject matter, i.e., why citizens have complained about a particular department or agency. A single case may therefore count for more than one complaint.’ http://www.protecteurducitoyen.qc.ca/en/publications/ communique/0606142.asp 19 S.Q. 2000, c. 8. 20 The data from the 2006–7 report are not classified under that format. 21 Louis Borgeat and Daniel Mockle, ‘Les plaintes des citoyens: une revendication de « qualité » des services publics,’ Administration publique du Canada 42, no. 2 (1999): 215–39. 22 Philip Giddings, ‘The Future of Ombudsman,’ in Righting Wrongs: The Ombudsman in Six Continents, edited by Roy Gregory and Philip Giddings (Amsterdam: IOS, 2000), 127–41. 23 L.R.Q., F-3.1.1. 24 Act respecting the health and social services ombudsman, R.S.Q., chapter P-31.1. It may also be noted that the thirty-three employees of the former Health and Social Services Ombudsman are joining the Public Protector’s Office following amendments to the Act respecting Health Services and Social Services. http://www.protecteurducitoyen.qc.ca/en/publications/ communique/060406.asp 25 Roy Gregory and Philip Giddings, ‘The Ombudsman Institution: Growth and Development,’ in Righting Wrongs: The Ombudsman in Six Continents, edited by Roy Gregory and Philip Giddings (Amsterdam: IOS, 2000), 5. 26 Ibid., 425–40. 27 This separation has not existed since 2003. 28 Steven Van Roosbroek and Steven Van de Walle, ‘The Relationship between Ombudsman, Government, and Citizens: A Survey Analysis,’ Negotiation Journal (forthcoming). 29 Hill ‘Institutionalization, the Ombudsman, and Bureaucracy,’ 405–33. 30 Gammeltoft-Hansen, ‘The Ombudsman as a Non-Traditional Tool,’ 191–2.

Quebec Ombudsman’s Evolution 237 31 Marc Hertogh, ‘The Policy Impact of the Ombudsman and Administrative Courts: A Heuristic Model,’ in International Ombudsman Yearbook 2 (1998): 63–85. 32 Gregory and Giddings, ‘The Ombudsman Institution,’ 16. 33 Aufrecht and Hertogh, ‘Evaluating Ombudsman Systems,’ 389–402. 34 Hill, ‘Institutionalization, the Ombudsman, and Bureaucracy,’ 405–33. 35 Jarl K. Kampen, Steven Van De Walle, and Gert Bouckaert, ‘Assessing the Relation Between Satisfaction with Public Service Delivery and Trust in Government,’ Performance and Management Review 29, no. 4 (2006): 387–404. 36 Kampen, Van De Walle, and Bouckaert, ‘Assessing the Relation,’ 392. 37 Isabelle Fortier, ‘Multiple Roles of the Ombudsman in Fostering Democratic Values: Evolution and Emergent Issues of the Quebec Provincial Ombudsman,’ Liz Hoffman Research Award, Forum of Canadian Ombudsman, May 2007. 38 Quoted in Hill, ‘Institutionalization, the Ombudsman, and Bureaucracy,’ 429. 39 Hill, ‘Institutionalization, the Ombudsman, and Bureaucracy,’ 405–33. 40 Ibid., 1078. 41 Hertogh, ‘The Policy Impact of the Ombudsman,’ 63–85. 42 Public Protector, Annual Report 1969, 38. 43 Annual Report 1976, 17. 44 Annual Report 1982–83, 13. 45 Annual Report 1987, 8. 46 Isabelle Fortier, ‘The Québec Ombudsman (Public Protector) as Watchdog or Agent of Change’ (forthcoming). 47 Public Protector, Annual Report 1988. 48 Daniel Jacoby, ‘Le citoyen-client,’ in rapport annuel 1990–91, 23. 49 La Presse, 11 janvier 2001, A13. 50 La Presse, 13 janvier 2001, A9. 51 Le Soleil, 21 décembre 2000, A13. 52 Public Protector, Annual Report 2000–2001, 12. 53 Paul G. Thomas, ‘The Past, Present, and Future of Officers of Parliament,’ Canadian Public Administration 46, no. 3 (2003): 292. 54 Brown and Head, ‘Institutional Capacity and Choice,’ 84–95. 55 Public Protector, Strategic Plan 2004–2008. http://www.protecteurdu citoyen.qc.ca/en/mandat/plan.asp 56 Public Protector, Annual Report 2004, 8. 57 Annual Report 2004, 15.

238 Isabelle Fortier 58 She terminated her mandate in January 2006. 59 BAPE: Bureau des audiences publiques en environnement (Environmental Bureau of Public Hearings). 60 Public Protector, Annual Report 2003–2004, 11. 61 Referring to and translated for the PP report: La procedure parlementaire au Québec, 2e edition, National Assembly, 2003, 351. 62 Public Protector, Annual Report 2003–2004, 12. 63 Roy Gregory and Philip Giddings, ‘The Ombudsman and the New Public Management,’ in Righting Wrongs: The Ombudsman in Six Continents, edited by Roy Gregory and Philip Giddings (Amsterdam: IOS, 2000), 425–40. 64 Gregory and Giddings, ‘The Ombudsman Institution,’ 1–20. 65 The Public Protector tabled a brief including her recommendations regarding Bill 61, An Act respecting the Agence des partenariats publicprivé du Québec, 29 October 2004. 66 Public Protector, communication, 29 October 2004. http://www. protecteurducitoyen.qc.ca/en/publications/communique/041029.asp 67 Thomas ‘The Past, Present, and Future of Officers of Parliament,’ 312–13. 68 Christopher Hood, Colin Scott, Oliver James, George Jones, and Tony Trawers, Regulation Inside Government: Waste-Watchers, Quality Police and Sleaze-Busters (Oxford: Oxford University Press, 1999). 69 Michael Power, The Audit Society: Rituals of Verification (Oxford: Oxford University Press, 1997). 70 Thomas, ‘The Past, Present, and Future of Officers of Parliament,’ 313. 71 Isabelle Fortier, ‘From Skepticism to Cynicism: Paradoxes of Administrative Reform,’ Choices 9, no. 6 (2003): 3–19. 72 Christopher Pollitt and Geert Bouckaert, Public Management Reform: A Comparative Analysis (Oxford: Oxford University Press, 2000), 137.

Quebec Ombudsman’s Evolution 239 Appendix 9A Data of the Public Protector’s Office Operations and Activities over the Years, 1988–2006/2007 Data/ years

1988– 1989

1989– 1990

1990– 1991

1991– 1992

1992– 1993

Requests Information Intervention Completed Rejected Referrals Suspended Ineligible Unjustified Justified Rectified

22,389 5,274 17,110 6,429 10,681

21,970 3,255 18,715 6,925 11,790

21,703 2,485 19,218 8,228 10,990

23,516 2,798 20,718 9,582 11,136

25,393 4,306 21,087 8,657 12,430

1,471

1,161

1,302

1,303

1,738

Data/ years

1993– 1994

Requests Information Intervention Completed Rejected Referrals Suspended Ineligible Unjustified Justified Rectified

25,857 3,906 21,951 9,343 10,489 2,119

1994– 1995

1995– 1996

1996– 1997

1997– 1998

1998– 1999

1999– 2000

27,737 4,189 22,246 10,029 10,019 2,198

25,986 4,790 21,196 7,546 10,622 1,565 1,463

27,976 5,340 22,636 7,906 11,675 1,406 1,649

27,834 5,355 22,659 8,751 10,318 1,510 2,080

24,362 4,693 19,669 7,543 8,620 1,714 1,792

4,912 2,634 2,535

5,547 2,359 1,958

5,991 2,580 2,355

5,330 2,213 2,045

2,750

Data/ years

2001– 2002

2002– 2003

2003– 2004

2004– 2005

2005– 2006

2006– 2007

Requests Information Intervention Completed Rejected Referrals Suspended Ineligible Unjustified Justified Rectified

24,275 3,308 20,015 6,281 11,980 1,623 1,314

25,249 4,022 21,123 5,980 12,331 1,618 1,194

21,763 3,750 18,110 5,316

20,158 783 19,596 6,112 2,675

18,171 640 18,092 5,546 2,702

20,487 3,064 17,423

4,502 1,779 1,622

4,200 1,780 1,718

1,293 9,516 4,367 1,745 1,511

1,362 8,482 3,980 1,566 1,236

1,348 11,446 3,881 1,435 1,321

1,323 2,669 11,763 3,319 1,189

Appendix 9B Main Causes of Substantiated Complaints (4 Most Frequent Causes Each Year – %) 1988– 1989

1989– 1990

1990– 1991

1991– 1992

1992– 1993

1993– 1994

1994– 1995

1995– 1996

1996– 1997

Delays Simple neglect Factual error System problem Not in accordance Illegal act Services not available Non-conformity Neglect or inaction Unreasonable or unfair actions Others

40 16 14 9

38 15 15 12

24 14 12 12

26 16 12 13

22 15 12

22 15 12

27

21

21

12

12 24

25

25

Data/ years

1997– 1998

1998– 1999

1999– 2000

Delays Simple neglect Factual error System problem Not in accordance Illegal act Services not available Non-conformity Neglect or inaction Unreasonable or unfair actions Others

16

24

28

23

12

11 12

14 12

14 10

2000– 2001

2001– 2002

2002– 2003

2003– 2004

2004– 2005

2005– 2006

26

29

25

25 19 5

5

17

17

10

36

43

19

43

35

18

12 11

24 10

12

16

14 15

26

12 13

12 12

11 11

240 Isabelle Fortier

Data/ years

Recto Running Head 241

10 Saskatchewan’s Ombudsman Office: Reflections on Organizational Mandate and Capacity at the Turn of the Millennium joseph garcea*

In Saskatchewan, the Ombudsman is one of six independent officers of the Legislative Assembly. The other five are the Chief Electoral Officer, the Children’s Advocate Officer, the Conflict of Interest Commissioner, the Information and Privacy Commissioner, and the Provincial Auditor. For more than three decades Saskatchewan’s Ombudsman has performed a key role in safeguarding principles that are considered fundamental to democratic governance, including fairness, equity, responsiveness, responsibility, and accountability in relation to the policies and management practices of the agencies and agents of the provincial government. Its performance of that role has silenced initial questions regarding the need for such an office. The questions at the turn of the millennium are not about the need for the office, but the needs of the office in terms of its organizational mandate and its capacity to fulfil that mandate. These questions persist even though, since its creation, Ombudsman Saskatchewan has experienced substantial institutional development. This includes development of its case management practices as well as its management of the human and financial resources allocated to it. Since its creation the office has been transformed from a fledgling institution with relatively limited resources and faced with a steep learning curve into a relatively mature institution with more extensive resources that carries out its functions effectively. This chapter provides an overview and assessment of the mandate and capacity of Ombudsman Saskatchewan at the turn of the millennium. Sections are devoted in turn to its genesis; its relations with governments over time; its appointment, removal, and suspension processes; its powers, rights, and responsibilities; its human and finan-

242 Joseph Garcea

cial resources; its caseload; and contemporary challenges and potential directions for reform. The concluding section raises questions regarding what is likely to happen in the future to the various aspects of the office – including its caseload and its relations with the executive and legislative branches of government – and whether it is time to systematically review its mandate and capacity in order to ensure that it performs the appropriate functions well in the context of changing governance frameworks in the twenty-first century. Genesis Ombudsman Saskatchewan can be traced back to the final term of the Co-operative Commonwealth Federation (CCF) government. Between 1960 and 1964 Premier Tommy Douglas and Premier Woodrow Lloyd indicated that they wanted to establish such an office in the province. Several factors prompted the CCF government to examine the merits of a provincial Ombudsman at that particular juncture. First, it recognized that its administrative activities were becoming increasingly complex and were having much stronger negative effects on some people than was often assumed. Thus it viewed an Ombudsman as necessary in order to protect the public’s rights against governments and their administrations.1 Second, the CCF government had been working over the previous decade to improve the Human Rights Act, which it had implemented in 1947. That statute protected people in Saskatchewan from human rights abuses but did not sufficiently protect them from maladministration. Third, the provincial government was swayed by Donald C. Rowat, who through his scholarly articles of 1961 and 1962 pioneered the idea of Ombudsman offices in Canada.2 Fourth, New Zealand’s experiment with an Ombudsman office had demonstrated that the concept could be transplanted from Scandinavian countries to Commonwealth ones. Indeed, New Zealand’s Ombudsman Act would become the model for provincial Ombudsman acts in Canada.3 After convincing themselves that an Ombudsman would be a valuable addition to effective and accountable public administration in Saskatchewan, CCF government officials began examining the four Ombudsman offices that by then existed (in Sweden, Denmark, Finland, and New Zealand). In September 1963 the Secretary of the Planning Board, Tom Shoyama, produced a report on the matter. On 6 February 1964, in its last Throne Speech prior to its electoral defeat two

Saskatchewan’s Ombudsman Office 243

months later, Premier Lloyd’s government announced that based on its analysis of the Ombudsman office in Scandinavian countries and New Zealand, the provincial government would be establishing a special legislative committee to examine the merits of such an office in Saskatchewan.4 Had the CCF government been able to establish the Ombudsman office at that particular time, it would have been one more notable accomplishment to add to its celebrated legacy for innovation in governance.5 That the CCF government did not establish the office has been attributed to the fact that by then, it had expended most of its energy and political capital enacting what was arguably its most significant innovation – Medicare.6 The historic battle to enact Medicare over the objections of most doctors and their supporters had drained the CCF government of the energy and political capital it would have needed to pursue other initiatives on its reform agenda, including the creation of an Ombudsman. Though the CCF lost the election of April 1964, its proposal for an Ombudsman had not died. Over the next four years, members of that party (since renamed the New Democratic Party or NDP) introduced three separate resolutions to establish a legislative committee to consider the founding of such an office. The Liberal majority government, headed by Premier Ross Thatcher, rejected all three resolutions. The first of these, introduced on 5 February 1965 by Allan Blakeney, read as follows: ‘That this Assembly recommends to the consideration of the Government the appointment of a committee, composed of Members of the Legislative Assembly, to conduct an enquiry following prorogation of the Assembly and during the intercessional period into all matters relating to the appointment of a Legislative Commissioner or Ombudsman, in order to provide further means of redress for grievances of citizens against administrative injustices.’7 The Liberals’ decision not to support that resolution was articulated by Attorney General Darrel Heald, who in 1964, at the annual meeting of the Canadian Bar Association, had heard New Zealand’s first Ombudsman, Sir Guy Powles, speak about the merits of such an office.8 Heald’s view was that, while an Ombudsman did have the potential to redress citizens’ grievances, such an office might also interfere with ministerial responsibility. He added that in any case, the Ombudsman’s tasks were already being performed by the MLAs, the press, and (through question period) the legislature.9 This reasoning partly explains why the Thatcher government did not support the above-mentioned resolutions. Undoubtedly, however, there was

244 Joseph Garcea

another explanation: the Liberal government was not prepared to let two things happen. First, it was not about to experiment with a new legislative office with potentially substantial investigative powers – an office, moreover, that could prove politically embarrassing at election time. Second, it had other priorities for its first term in office and was not receptive to efforts by the opposition to dictate the legislative agenda. So the Thatcher government maintained its stance against an Ombudsman office throughout its two terms in power. It has also been suggested that the government’s decision to oppose those resolutions was strongly influenced by Thatcher’s personal views.10 He has been characterized as a proponent of small government; he also had a propensity for concentrating management power and responsibility in the Office of the Premier and the Cabinet. He has also been characterized as comfortable with traditional approaches to governance and management; thus he doubted that an Ombudsman would yield positive results. The NDP’s electoral win in 1971 provided the new premier, Allan Blakeney, with an opportunity to act on his belief that the province needed an Ombudsman. He decided to expedite matters. Thus, instead of creating a committee to examine the merits, as he had proposed while in opposition, he skipped that step and on 8 March 1972 introduced legislation to create the office. This decision was rooted in both policy and politics. The policy rationale was that the public needed to be able to appeal bureaucrats’ decisions, just as the government needed to improve its administration. The political rationale was that the NDP needed to demonstrate that it was much more open and accountable than its predecessor.11 During the ensuing debate, members of the Liberal opposition criticized the NDP’s Ombudsman bill for being too narrow. Most notably, they raised these points: the law would not apply to municipalities and school boards; it would not apply to decisions of Cabinet, cabinet ministers, or deputy ministers; it would permit the Attorney-General to issue certificates prohibiting the Ombudsman from investigating matters that were not in the public interest; and time frame for launching complaints would be limited to twelve months. The NDP government acknowledged that the bill would not apply to municipal governments and school boards, but it denied that the bill was overly restrictive. The Attorney-General pointed to the similarities between the bill and the statutes of other provinces, noting that what seemed to be differences disappeared when all the provisions in the statutes were

Saskatchewan’s Ombudsman Office 245

compared. The government also argued that the legislation could be broadened in the future by expanding the powers of the Ombudsman and by reducing the restrictions that the Attorney-General could impose.12 The bill passed second reading, supported by all NDP members present (40) and opposed by all Liberal members present (11).13 It received Royal Assent in the spring of 1972. After the bill passed, the government looked for the province’s first Ombudsman. That person would have to be a competent manager and politically non-partisan. A year later it chose Ernie Boychuk, a highly respected judge. Before nominating him, the government consulted the Liberals for their views on him. The Liberals continued to be critical of the statute but decided to support Boychuk’s nomination, ostensibly so as not to taint him as a partisan appointment, which would have compromised his legitimacy as a non-partisan officer of the legislature. Boychuk’s nomination received unanimous approval.14 Appointment, Removal, and Suspension Processes The Saskatchewan Ombudsman is appointed to a five-year term, renewable for no more than one additional term. The Lieutenant Governor in Council makes the appointment on the recommendation of the legislature. The Ombudsman can be removed only by a resolution of the legislature executed by the Lieutenant Governor in Council. When the legislature is not sitting, the Lieutenant Governor in Council may suspend the Ombudsman on the grounds of ‘incapacity to act, neglect of duty or misconduct.’ However, the suspension is only valid until the next legislative session, and removal can only occur if recommended by a resolution of the legislature. To date, no Ombudsman has been removed or suspended. Since 1973, five individuals have served as Ombudsman: Ernie Boychuk (1973–77); David Tickell (1977–87); Gerald McLellan (1987–93); Barbara Tomkins (1994–2004); and Kevin Fenwick (2004–present). All were appointed without much controversy, with one notable exception: McLellan, a Progressive Conservative appointee. The NDP and Liberals, in opposition at the time, openly criticized that appointment throughout five hours of legislative debate. The criticisms focused on the government’s decision not to consult with the opposition before choosing him. McLellan’s appointment was eventually approved, 27 to 17, with the Liberal leader abstaining.15 The partisan nature of McLellan’s appointment did not

246 Joseph Garcea

make him less effective, as had been predicted by opposition MLAs. Indeed, he turned out to be relatively vigilant and even critical of some government policies and processes. Nevertheless, when his five-year term ended, instead of granting him another five-year term, the NDP (now back in power) merely gave him a one-year extension until it found a replacement. Before that year was over, McLellan retired.16 The enabling statute fixed the Ombudsman’s salary at a particular level and required any changes to be by statutory amendment. Recognizing that salary negotiations involving the legislature and the Ombudsman could be political dynamite, a decision was later made to tie the Ombudsman’s salary to that of provincial court judges; still later, it was tied to the average salary of deputy ministers. Also, the Ombudsman’s salary is paid out of general revenues rather than the legislature’s budget or that of any government department. Powers, Functions, and Duties Most of the powers, functions, and duties contained in the original statute (The Ombudsman Act, 1972), and the one that supplanted it (The Ombudsman and Children’s Advocate Act, 1978), are similar to those in other provinces. These acts are all quite similar largely because they have all been modelled largely on the Ombudsman laws in New Zealand and Denmark.17 Besides these similarities, however, there are some notable differences. Saskatchewan’s Ombudsman is not authorized to handle cases involving municipal government; Ombudsmen do have that authority in several other provinces. Also, Saskatchewan’s Ombudsman at one time did not have the authority to investigate cases involving certain provincial officials or agencies as their actions related to the federal government, other provincial governments, or municipalities or school boards. Over time, however, as a result of the office’s own lobbying efforts, the power of the Saskatchewan Ombudsman has expanded into those areas, especially since the Ombudsman and Children’s Advocate Act was passed in 1978.18 The key powers, rights, and responsibilities of the Ombudsman are outlined in Article 12 of the 1978 act. None of the key provisions of that act are unique to Saskatchewan. Subsection 12(1) states that the Ombudsman can investigate any decisions, recommendations, and actions done or omitted ‘in or by a department or agency of the gov-

Saskatchewan’s Ombudsman Office 247

ernment or by any officer, employee or member thereof’ in which any person or group of persons has been or may be aggrieved. The words ‘may be aggrieved’ suggest that the Ombudsman has the right to conduct ‘own-motion’ investigations; in other words, the office has the authority not only to rectify problems caused by ‘sins of commission or sins of omission,’ but also to prevent or preclude such potential ‘sins.’ Subsection 12(2) authorizes the Ombudsman to launch an investigation into any matter that is referred to it by a complainant or that the Ombudsman chooses to investigate on his or her own. Subsection 12(3) permits a legislative committee to refer to the Ombudsman for investigation and report any petition or matter that is before the committee. Similarly, Subsection 12(4) permits the Lieutenant Governor in Council to refer any matter to the Ombudsman for investigation and report relating to administration. Subsection 12(5) empowers the Ombudsman to use various means in resolving complaints, including negotiation, conciliation, mediation, and other non-adversarial approaches. Over time the Ombudsman has shifted focus from investigating cases to actually resolving them. The office today educates government employees on the fairness value and on ways to manage (and minimize) complaints before they reach the Ombudsman.19 This amounts to a drift away from the New Zealand model, which focuses on investigating complaints, towards the Scandinavian model, which focuses on preventing problems and promoting higher administrative standards.20 Subsection 12(6) empowers the Ombudsman to launch public education initiatives. Subsection 15(1) states that the Ombudsman cannot investigate Cabinet decisions or those of the courts. Note, however, that though Cabinet lies outside the Ombudsman’s authority, the decisions and actions of individual ministers relating to the federal government, the government of any province, a municipality, or a school board do fall within the scope of that authority. This subsection respects Cabinet’s confidentiality on policy and political matters while holding individual ministers accountable for their administrative decisions and actions. Note also that (as in most other provinces) the Ombudsman does not have the authority to investigate a complaint before the complainant has exhausted all other available appeal mechanisms. The 1978 act has several other notable provisions. It gives the Ombudsman the right to do the following:

248 Joseph Garcea • Refuse to investigate a complaint, or cease investigating one at any

time for justifiable reasons. • Access information needed for investigations within its jurisdic-

tion, and gain access to premises for that purpose occupied by any government department or agency (ss. 29(1) and 29(2)). • Ask any government department or agency to notify it within a specified time as to what actions it has taken with regard to the Ombudsman’s recommendations. • Submit a report to the department or agency as well as to the Lieutenant Governor in Council regarding any cases where, according to the Ombudsman, insufficient action has been taken; and refer to lack of progress on such cases in the next annual report (ss. 25(1) and 25(2)). • Publish special reports regarding the exercise of the office’s powers, functions, and duties, or any particular case it has investigated, regardless of whether such cases have been the subject of a report to the legislature (s. 30(3)). A notable court case touched on one of the aforementioned limits on the Ombudsman’s power – specifically, the power to access information in cases involving relations between a provincial agency and a municipality. The case involved a complaint that Saskatoon police officers had denied a man’s request for medical treatment while he was incarcerated. In the decision, handed down on 3 January 1979, the Saskatchewan Queen’s Bench judge ruled that though the Ombudsman could not investigate the activities of municipal officials per se, he was acting within his powers when he asked municipal officials to provide information that was pertinent to understanding whether the Saskatchewan Police Commission had dealt with the matter appropriately.21 Under the 1978 act, the Ombudsman has the following responsibilities: • To notify the appropriate cabinet minister that an investigation is

being conducted. • To notify the appropriate deputy minister or department head of

the intent to enter their premises. • To not disclose information relating to Cabinet deliberations or

proceedings if doing so would harm the public interest. • To produce an annual report and submit it to the Speaker of the

Saskatchewan’s Ombudsman Office 249

Legislature, who must then table it in a timely manner (ss. 30(1) and 30(2)). Subsection 24(1) of the 1978 act requires the Ombudsman to consider several criteria when reviewing the conduct of government agencies. Essentially, these criteria relate to the principles of administrative law, such as whether the decision, action, or omission was contrary to the law, unreasonable, unjust, oppressive, improperly discriminatory, ultra vires, or based on an improper purpose or irrelevant considerations. Subsection 24(2) outlines the following seven options available to the Ombudsman when making recommendations. The Ombudsman can recommend (a) that the matter be referred to the appropriate authority; (b) that an omission be rectified; (c) that a decision be cancelled or varied; (d) that a practice be altered or reviewed; (e) that a law be reconsidered; (f) that reasons be given for any decision, recommendation, act or omission; or (g) that other steps be taken. Sections 27 and 28 of the act provide the Ombudsman and its staff with some protection against legal proceedings. Section 27 stipulates that the proceedings and decisions of the Ombudsman are not subject to judicial review except on the grounds that they are ultra vires. Section 28 is devoted largely to the protection of the Ombudsman and its staff against personal liability and to the protection of their documents. It states that they cannot be: • subjected to any legal proceedings for anything they do in relation

to their powers, functions, and duties, unless it is shown that they ‘acted in bad faith’ (s. 28(1)); • called into any judicial proceedings regarding any knowledge they may have gained in exercising their powers or in performing their functions and duties (s. 28(2)); • sued for libel or slander for any report that they produce (s. 28(4)); or • compelled to hand over certain types of documents in their possession that are ‘privileged in the same manner as if the investigation or proceedings were proceedings in a court’ (s. 28(3)). The act also contains an important provision regarding offences and penalties in relation to the Ombudsman’s work. It states that anyone who is found guilty of obstructing the work of the Ombudsman office, of refusing or failing to comply with its lawful requests or require-

250 Joseph Garcea

ments, of making any false statements to it, or of misleading or attempting to mislead it, is liable to a fine not exceeding $500, or to imprisonment for a term not exceeding three months, or to both fine and imprisonment. Finally, the act makes it clear that it is not intended ‘to limit the rights of individuals to seek remedies through other judicial, quasi-judicial, and administrative processes pursuant to any other statute or rule of law’ (s. 34). This overview of the powers, functions, and duties of Saskatchewan’s Ombudsman suggests that broadly speaking, they are not dissimilar to those found in other provinces. Human and Financial Resources In 1973, when the office was established, the Ombudsman had a staff of four, all of whom were located in the Regina office, and a budget of $90,000.22 The budget has increased over the years, rising to $1.935 million for 2007–8 (Table 10.1). Increases have not been steady or predictable. Indeed, Ombudsmen have at times had to lobby hard for them. The Ombudsman staff has also grown over time. In October 1975 the Ombudsman opened a satellite office in Saskatoon to raise its profile and improve access.23 The Saskatoon office consisted of two investigators, which raised the total complement to six. More than thirty years later, the Ombudsman still operates out of the two offices in Regina and Saskatoon, but its staff has increased to around two dozen – twothirds full-time, one-third part-time. The rather high number of parttime and term positions is the result of a management strategy to keep personnel costs within the parameters established by the legislature. Caseload In its first five months the Ombudsman received more than three hundred complaints; by the end of its first year it had received more than six hundred.24 Since then the total caseload (i.e., ‘within jurisdiction’ plus ‘outside jurisdiction’) has ranged as high as 4,856 (in 2003). The most rapid increase, however, occurred in the ten years between 1983 and 1993, when the number of complaints increased by 59 per cent.25 Total cases declined slightly in 1999 and 2000, then steadily increased over the next four years (2001, 2002, 2003, 2004) before falling again, slightly in 2005 and more dramatically in 2006 and 2007

Saskatchewan’s Ombudsman Office 251 Table 10.1 Ombudsman budget

Salaries Other expenses Total

2003–2004

2004–2005

2005–2006

2006–2007

2007–2008

$1,238,000

$1,255,000

$1,292,000

$1,442,000

$1,529,000

$326,000 $1,564,000

$326,000 $1,581,000

$374,000 $1,666,000

$374,000 $1,816,000

$406,000 $1,935,000

Source: Saskatchewan Ombudsman office, Annual Reports, 2004–2007.

(Table 10.2). Indeed, in 2006 the total caseload dropped by 15 to 20 per cent from what it had been for most of previous decade, and in 2007 it dropped by 25 to 30 per cent. The caseload ‘within jurisdiction’ also increased steadily from 1996 to 2003 before declining over the next four years to the point where in 2007 it was essentially the same as it had been in the late 1990s. The office’s annual report of 2007 indicated that recent declines in total caseloads and cases ‘within jurisdiction’ were consistent with what other Ombudsman offices in Western Canada were experiencing. This is likely a sign of, among other things, the work of the Ombudsman office to educate civil servants on the importance of fairness in administrative practices and to educate the general public on what falls within and outside its mandate. The 2007 report also suggested that the caseload decrease might be a function of the healthier economy.26 The suggestion that economic conditions affect Ombudsman’s caseloads is a hypothesis worth investigating in Saskatchewan and in other jurisdictions as well. The vast majority of complaints involve justice and social services. These are followed on the list by the provincial insurance sector, the provincial Crown utilities, and the health and education sectors (Figure 10.1). By far the most complaints are filed by prisoners. In 1999, for example, prisoners filed 22 per cent of all complaints.27 This is not surprising. After all, people who are seeking ‘legal justice’ and ‘social justice’ are likely to be subject to an array of discretionary decisions or actions that affect their lives. Consequently, prisoners are likely to explore all avenues in order to remedy any adversity they experience as a result of such decisions or actions. Moreover, the Ombudsman office is especially attractive in this regard because its services are free. The above data suggest that the more discretion administrators enjoy, and the stronger the impact of their decisions on people’s lives,

Year

1996

1997

1998

1999

2000

2001

2002

2003

2004

2005

2006

2007

Total files Files within jurisdiction Files outside jurisdiction

3,625 1,904 1,721

4,304 1,940 2,364

4,472 2,283 2,189

4,292 2,298 1,994

4,307 2,327 1,980

4,474 2,435 2,039

4,575 2,647 1,928

4,856 2,988 1,868

4,373 2,913 1,460

4,106 2,601 1,505

3,728 2,533 1,195

3,128 2,119 1,009

Source: Saskatchewan Ombudsman’s Annual Reports, 1996–2007.

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Table 10.2 Complaints within and outside jurisdiction, 1996–2007

Saskatchewan’s Ombudsman Office 253 Table 10.3 Formal investigations conducted, 1996 to 2005 Year

1996

1997

1998

1999

2000

2001 2002

2003

2004

2005

Files

320

342

307

398

368

442

315

368

307

303

Source: Saskatchewan Ombudsman’s Annual Reports, 1996–2005.

the greater the likelihood of complaints. It is quite possible that caseload levels in a given sector are also a function of two other factors: the extent to which there are alternative appeal mechanisms; and the financial resources available to those who have a complaint. These are hypotheses that must be tested. Most complaints seem to originate in the south of the province, between Prince Albert and the American border. Few cases originate in the northern half of the province, especially in the Northern District consisting of all the land between Prince Albert National Park and the Northwest Territories. This is not surprising, given that only 30,000 people (0.03 per cent of the provincial population) live in the Northern District, with another 30,000 to 50,000 in nearby communities north of Saskatoon. As will be discussed later in this chapter, the Ombudsman has been concerned about the disproportionately low number of cases originating in northern Saskatchewan. Most complaints received by the Ombudsman do not result in a full investigation. Indeed, only about 15 per cent of all complaints within jurisdiction and 7 to 8 per cent of all complaints submitted have involved a formal investigation (Tables 10.2 and 10.3). This is true even of the corrections and social services sectors. To work its way through the large volume of complaints, the Ombudsman relies on its staff to do two things: first, identify which complaints are within its jurisdiction; and second, identify which can be resolved without a full formal investigation (Figure 10.2).28 In recent years the Ombudsman has been making special efforts to process cases more efficiently.29 This focus on efficiency is part of its effort to lead other government organizations by example. The office maintains that efficiency is an important element of procedural fairness. Indeed, it has identified this as one of the three dimensions of fairness (see Figure 10.3).30

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Figure 10.1: Total complaints reviewed, 1991–2000, and top ten agencies Provincial Ombudsman 2000 Annual Report Total Complaints Received

1991–2000

Number of Complaints

6000 5000 Total Complaints 4000

Complaints Not Against Government

3000 2000 1000

Complaints Against Government

0

1991 1992 1993 1994 1995 1996 1997 1998 1999 2000 Year 1998–2000

Top Ten Agencies 800 Number of Complaints

700

1998

600

1999

500

2000

400 300 200 100 0 Justice

SGI Social Services

SaskPower

Workers’ Compensation Board

SaskEnergy

SaskTel

Agencies

Health Boards

Health Post-Secondary Education and Skills Training

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Figure 10.2: Framework of complaints and processing of complaints How Complaints Are Processed

General Complaint Types

Not Substantiated

Resolved Files may be resolved before, during or after an investigation. The government organization may have resolved them voluntarily or as the result of a formal recommendation.

Unresolved

Alternate Case Resolution (ACR)

Initial Support

Assistance Rendered

Investigation

Other – Process stopped. This may occur at any stage.

Source: Saskatchewan Ombudsman, Annual Report 2005.

Relations with Governments Relations between the Ombudsman and successive governments have fluctuated over time, from positive and productive in some instances to negative and counterproductive in others. The precise nature of the relations tends to be a function of the issues broached rather than the particular government or Ombudsman in office. There have been no major public battles between the Ombudsman and the government as a whole, or any particular minister, or any governmental official; that said, disagreements and tensions are not uncommon.31 Invariably, these disagreements and tensions have revolved around four key issues. (1) The Ombudsman’s mandate. The Ombudsman has sometimes complained that its mandate has been inadequate for dealing with certain important matters. (2) The human and financial resources allocated to the Ombudsman. The Ombudsman has sometimes had to cajole and/or plead with ministers and MLAs for additional financial and human resources. (3) The handling of particular cases. In Saskatchewan, as in other jurisdictions, the Ombudsman has encountered variable cooperation on case investigations. (4) The government’s responsiveness to the recommendations in the Ombudsman’s annual reports in terms of altering policies, pro-

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Figure 10.3: Fairness triangle Three Aspects of Fairness: The Fairness Triangle Procedural

Relationship

• Was the citizen given sufficient information to know what was required? • Was the citizen given an appropriate forum to present his or her views? • Did government take the time to listen? • Did government provide reasons for its decisions?

• Was government approachable? • Was confidentiality respected? • Was the government agency honest and forthright? • Was an apology offered if a mistake was made?

• Was the decision delivered within a reasonable time? Substantive • Did government have the legal authority to make the decision? • Was the decision based on relevant information? • Was the decision-maker unbiased? • Was the decision wrong in fact or law? Source: Saskatchewan Ombudsman, Annual Report 2007.

grams, and procedures. Especially disconcerting in this regard has been the government’s outright rejection of some recommendations. Other times, it delays acting for years on end. Two key factors have shaped relations between the Ombudsman and government officials. One is the amount of agreement (or disagreement) relating to the four issues identified above. The other is the Ombudsman’s political style, especially as it relates to the handling of individual cases, the crafting of annual reports, and resort to the media to publicize problems and potential solutions. Relations between the

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Ombudsman and the government tend to deteriorate when the government perceives the Ombudsman to be unduly critical and demanding, and/or when the Ombudsman perceives the government as disinterested in or unresponsive to systemic problems. Several factors were cited by those interviewed to explain the tendency of various governments to ignore the Ombudsman’s recommendations or requests. One is that some of those recommendations or requests deal with issues that do not generate much interest among the media, the opposition parties, or the general public. This is especially true for issues perceived as relatively mundane, for which there is small likelihood that the government will face legal challenges or negative political and electoral fallout. In those circumstances, there is no rallying cry to support the Ombudsman in a way that would compel the government to be more responsive. This problem is compounded by the fact that even when the Ombudsman profiles some issues repeatedly in annual reports, interest in them tends to wane rather than increase. Perhaps more important, governments may not respond adequately because the Ombudsman tends to be reluctant to engage in highprofile campaigns to compel governments to be more responsive. The government and the Ombudsman seem to have a tacit understanding that the latter should not engage in such campaigns lest the line be crossed between advocating good administrative practices and ‘politicizing’ the office. These constraints, and other challenges faced by the Ombudsman, tend to restrict how many problems and reform initiatives the Ombudsman tackles each year. Challenges Faced and Reforms Recommended by Ombudsman A content analysis of the Ombudsman’s annual reports produced since 1999 reveals ten persistent challenges along with several approaches to dealing with them.32 These are all discussed below. Heavy Caseload The first major challenge is the heavy caseload relative to the limited staff and financial resources. The heavy caseload is reflected in the total number of complaints the office receives (which may fall within or outside its jurisdiction) as well as, ultimately, in the number of cases that must be investigated. The Ombudsman’s 1999 report noted that

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many of the complaints referred to it actually fell within the aegis of the federal or municipal government.33 The Ombudsman recommended that to address this challenge, federal and municipal Ombudsmen should be created. Regarding a federal Ombudsman, it noted that there was a consensus on this matter among members of the Canadian Ombudsman Association, which was already promoting the idea.34 Two other suggestions have been made in some reports regarding cases that fall outside the Ombudsman’s mandate. The first is to expand the office’s jurisdiction to deal with matters involving the provincial government that are currently outside that mandate. The second is to establish advocates in various governmental and non-governmental sectors to deal with such cases. The 1999 report stated that while the Ombudsman wanted to see such offices established, it did not want them to have the title ‘Ombudsman’ because this would create confusion among the public between the existing Ombudsman and the new advocate offices.35 In more recent reports the Ombudsman has suggested another strategy for reducing caseloads: a preventative approach, one that would entail conducting sectoral or crosssectoral reviews and recommending ways for government to eliminate problematical policies and procedures.36 Inadequate Resources Successive Ombudsman’s reports have observed that the office does not have sufficient financial and human resources to deal as efficiently and effectively as it could with the caseload or to do any of the following: • Undertake systemic investigations of governmental processes that

cut across sectors.37 • Undertake systemic investigations of problems within various government sectors comparable to those it has undertaken for the correctional services and for services to northern residents.38 • Undertake promotional and educational initiatives to raise awareness among governmental officials and the general public of the Ombudsman’s existence, functions, and processes. The 2002 report addressed this particular issue extensively, noting that the original budget request for the following year, which included

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$70,000 for a Communications Coordinator, had already been declined. The report asked: ‘Has the value of the Ombudsman been overlooked or underestimated?’39 This has been a long-standing issue for the Saskatchewan Ombudsman. Indeed, when the office was being established in 1973 it was recognized that its work would be strongly affected by the financial resources it was assigned and by who controlled those resources.40 At that time, concerns were expressed regarding the partisan nature of the budget-setting procedure, and it was debated whether a more independent budget allocation process would be necessary. That debate continues to this day, even though, at the turn of the millennium, responsibility for dealing with appropriations for the Ombudsman has been shifted from Treasury Board to the legislature’s Board of Internal Economy. Questions remain as to whether, in majoritygovernment situations, the Executive can still exert strong influence on the decision-making process, since only two of the seven members are opposition members; the other five are the Speaker, two Executive Council nominees, and two government caucus nominees. It might be possible to establish a balanced bipartisan or multipartisan legislative committee to deal with appropriations for the Ombudsman, but the likelihood that any majority government would be willing to move in that direction is rather low. Inadequate Powers, Rights, and Responsibilities The Ombudsman confronts a lack of clarity in terms of its functions, powers, and privileges. In three particular areas the office has requested expansion and clarification of its powers. In light of the recent proliferation of public and private agencies, the most important of these areas relates to the term ‘agency of government.’41 The second relates to the office’s explicit statutory authority to engage in three important functions that are now only implicit at best – namely, commenting publicly and advising government on issues of public interest; conducting and contracting research; and launching public education initiatives. The third relates to clarification of the extent to which the Ombudsman is exempt from the provincial Freedom of Information and Protection of Privacy Act. The 1999 annual report suggests that the Ombudsman would be more effective if it were clarified the extent to which it was exempt from that act.42 The point seems to be that information and documents required for dealing with various

260 Joseph Garcea

cases would be more readily available if the various stakeholders did not have to fear that any sensitive confidential information would be released. Inadequate Length of the Ombudsman’s Term Since 1999 the Ombudsman has been arguing that the current five-year term, though renewable at least once, is not ideal. The office’s annual reports have generally recommended that the five-year renewable term be changed to an eight- or ten-year non-renewable term.43 This would be helpful in two ways: first, the position would attract more qualified people, of the sort who are unlikely to make a major career change for an appointment that only guarantees a single five-year term; and second, it would improve the continuity of the Ombudsman’s work and encourage bolder initiatives. Inadequate Appreciation of the Principle of Fairness by Some Government Officials Some government officials do not fully appreciate the principle of fairness. Specifically, as some annual reports have noted, some of them emphasize ‘lawfulnesss’ over ‘fairness.’ The 2000 annual report noted: ‘Lawfulness and fairness are two equally important requirements.’44 To heighten awareness of the fairness principle, in 2004 the Ombudsman produced a brochure with a quote by Potter Stewart on the front cover: ‘You cannot have justice without fairness.’45 The brochure made it clear that notwithstanding the fact that the statute explicitly requires the Ombudsman to determine whether a decision, action, or omission is unreasonable, contrary to the law, unjust, oppressive, improperly discriminatory, based on a mistake of law or fact, or wrong, ‘the Ombudsman will also consider whether the process used by government was fair.’46 That brochure was distributed as the basis for what the Ombudsman hoped would become a Fairness Training program to be provided by government with the overall goal of reducing the number of complaints.47 According to the 2005 annual report and the corresponding press release, the problem of fairness within government tends to be compounded by the challenge of striking the right balance between fiscal accountability and fairness in service delivery.48 This theme was echoed in the 2006 and 2007 annual reports. For example, on the day he submitted the 2007 annual report, Kevin Fenwick flagged and cogently articulated what may well be one of the

Saskatchewan’s Ombudsman Office 261

most significant recurring issues in public administration – namely, balancing accountability with fairness. He noted that highly publicized incidents of fraud in recent years were creating a stronger focus on accountability, one that was often leading to ‘too strict an application of the rules that could cause more harm than good.’ He added: ‘Policy is generally created to help government do a better job of serving people … But if government is bowing at the altar of accountability to the exclusion of common sense and fairness, then the policies are going to fail the very people they are meant to serve.’49 In recent years the Ombudsman has focused on identifying ways that the government can improve fairness. To that end the office has been encouraging government to use best practices as benchmarks for pursuing fairness in administration. For example, it has offered workshops designed to encourage government officials to ‘examine their services through a fairness lens and adopt best practices for fair practice.’50 Besides sensitizing officials to this important issue, the workshops have helped establish Fair Practices offices in some government organizations. When the 2006 annual report was released the Ombudsman noted that as part of the ‘raising the bar’ effort, his office was making many more formal recommendations to government than it had in previous years regarding the need for changes in administrative policies, procedures, and culture on either a sectoral or a systemwide basis. Recently the Ombudsman launched two key initiatives aimed at improving fairness in government administration. One was a special review and report on the province’s fifty-five administrative tribunals, which make thousands of rulings each year. In that report, which was based on a sample of six such tribunals, the Ombudsman noted that people who present their cases to them deserve clear and timely decisions; it made twenty-seven recommendations for improving timeliness in that sector. The report also noted that the problem of timeliness stemmed from a lack of uniform operational standards across and within such organizations and asserted that the challenge faced by many tribunals is ‘finding a balance that weighs the competing interests of responsibly managing limited resources and delivering timely decisions.’51 The second key initiative was an undertaking to review and improve its own case-processing policies and practices to ensure that it was meeting the timeliness and fairness standards that it was encouraging other governmental organizations to adopt.52 As noted earlier in this chapter, this was a deliberate effort to lead by example and preclude potential criticisms that it should practise what it preaches.

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Inadequate Responsiveness by Some Government Officials There is a lack of adequate responsiveness by some government officials. Evidently some of them are not very aware of the precise powers, functions, and duties of the Ombudsman. Some are not very responsive to requests from the Ombudsman for facts about complaints; also, some are slow to help the Ombudsman identify and implement remedies related to those complaints. The 2000 annual report noted that government officials should appreciate that the Ombudsman’s conclusions and recommendations are the product of the office’s particular expertise and should be accepted and acted on unless it can be demonstrated that errors were made regarding either the facts or the likely effects of the recommendation.53 This point was reiterated essentially verbatim in the 2004 report: ‘Recommendations from the Ombudsman are not just another opinion and should carry great weight; barring exceptional circumstances recommendations should be followed.’54 One tool available to the Ombudsman in its efforts to foster responsiveness is the issuing of special reports. Besides special reports on select issues, such as the 2002 report on problems in the prison system,55 the Ombudsman can issue reports on settled or unsettled cases that profile the challenges in resolving certain issues. One example was a 2000 special report that profiled nine cases. These included six cases that generated what are technically known as Ministers’ Reports (cases pursuant to Section 24 of the act), and three cases technically known as Ministers’ Advice (cases pursuant to Section 20(3) of the act).56 Inadequate Responsiveness by Executive Council and the Legislature The Cabinet and the legislature are insufficiently responsive to the Ombudsman’s work. The Ombudsman’s 2001 and 2002 annual reports made this point in the strongest terms. Both were especially critical that while many statutory, organizational, and procedural reforms had been requested over the years, only a few had been adopted (in 1978, 1994, and 2000).57 The 2003 report even suggested that there should be a process for the Ombudsman to submit and pursue legislative amendments as well as a mechanism to speak to proposed amendments if they did not proceed in the legislature.58 The 2001 annual report contained two lists of proposed reforms. The first consisted of reforms the Ombudsman had previously advocated.

Saskatchewan’s Ombudsman Office 263

The second consisted of new reforms. The former list involved these: • Creation of an all-party committee to receive and review the

office’s annual and special reports. • Reconsideration of the term ‘agency of government.’ • Provision of confidentiality protection for documents issued from

the Ombudsman to departments. • Provision of a more practical time frame for tabling the annual

report (i.e., two weeks after the start of the spring legislative session). • Appointment of the Ombudsman for a fixed, non-renewable term of eight to ten years. • Creation of a municipal Ombudsman. • Protection of the term ‘Ombudsman’ from indiscriminate use, which could lead to confusion among the public. The new recommended reforms involved the following: • The authority to call in Ombudsmen staff from other provinces

when any staff member in the Ombudsman office is in a position of conflict respecting a complaint involving members of his or her family or a past coworker. • The authority to launch mandatory and extended public education initiatives. • The authority to conduct or contract research. • The authority to comment to or advise any ministers on issues of public interest. The Ombudsman concluded that the proposed reforms would enable the office ‘to move gracefully into the 21st century and to embrace evolving expectations of democratic government.’59 These reports may have served their intended purpose, for subsequent reports have indicated that in recent years the provincial government and its officials have become more responsive to individual cases as well as to general recommendations advocated by the Ombudsman. Even so, the Ombudsman has noted that provincial officials still tend to take a defensive or adversarial stance when responding to appeals. This suggests a greater concern with protecting the government than with achieving fairness for citizens.60 This tendency may well account for the fact that to date, successive

264 Joseph Garcea

provincial governments have been unwilling to implement any of the recommendations noted above that were articulated in the 2001 annual report. Inadequate Use by Executive Council and the Legislature Neither Cabinet nor the legislature uses the Ombudsman office enough. Several Ombudsman reports have noted that neither uses all available opportunities to refer important matters for review and recommendations. The Ombudsman is well equipped for such a role, if only government and legislative bodies were willing to request its assistance. One Ombudsman’s report suggests that some problems discussed in the legislature or the media could be resolved more effectively by the Ombudsman.61 Another notes that unfortunately, the legislature has never referred any matter for review by the Ombudsman, and adds that this situation has persisted because legislators have overlooked the office’s value to them.62 Inadequate Reporting Frameworks The Ombudsman’s annual and/or special reports receive little attention. There needs to be a forum for reviewing these reports.63 One report noted that reporting is an important element for accountability purposes. After all, for there to be accountability there must be public knowledge of decisions. So it is important that reports provide a fair reflection of what is done both by the Ombudsman and by the government.64 Inadequate Awareness of the Existence and Functions of Ombudsman There is a lack of awareness regarding the existence and functions of the Ombudsman. About 61 per cent of Saskatchewan residents are aware that the province has an Ombudsman, but knowledge of the Ombudsman’s jurisdiction and responsibilities is relatively low. Those who know the least about the provincial Ombudsman are young people, those with lower incomes, and northern residents.65 Moreover, the precise functions of the office are neither well known nor well understood by some legislators, government officials, and most

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members of the public. The office is viewed merely as a mechanism for reviewing and resolving public complaints, not one that is also mandated to promote fairness and accountability in the provision of government services.66 The Ombudsman has made special efforts to raise awareness of the office among northerners. In 1977, during his first year in office, David Tickell conducted a northern tour to investigate possible communication barriers with northern residents. It was felt that the low number of complaints the Ombudsman was receiving from that region did not reflect the problems faced by many northern residents, who might not have the means to access the Regina and Saskatoon offices. The Northern Municipal Council (NMC) argued for the creation of a northern Ombudsmen office.67 In 2000 the Ombudsman travelled north again and received many complaints, which proved that northern residents were interested in accessing the office’s services. In 2001 the Ombudsman again travelled twice through the North in order to identify the kinds of services that would be most valuable to northerners and the best means by which to provide them.68 Soon after, the Ombudsman concluded that the office would do the following: (a) send staff to northern communities more often in order to receive and deal with complaints; (b) ensure that such staff met with northerners to develop awareness of the office and to develop partnerships with community members; and (c) identify and assess various alternatives for providing services effectively and efficiently in the North.69 In subsequent years the Ombudsman, in partnership with the Children’s Advocate Office and the Saskatchewan Human Rights Commission, participated in a series of northern dialogues, officially known as the Northern Exchange, designed to help all three offices better understand the unique needs of northern Saskatchewan and to help service providers there better understand the functions of these three offices and how to access their services.70 Several of the Ombudsman’s annual reports note that public education is important for ensuring that the office is used effectively and efficiently. Towards that end the Ombudsman has articulated several reforms: (a) including units on the role of the Ombudsman in the school curriculum; (b) undertaking public education programs about the Ombudsman; and (c) funding the position of Communications Coordinator.71

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Conclusions The foregoing analysis of Saskatchewan’s Ombudsman has revealed that over the past several years it has undergone major developments in addressing an increasingly large and diverse caseload. It has also revealed that the Saskatchewan Ombudsman has faced limitations owing to suboptimal financial and staff resources. For the Ombudsman to maximize its service value in the twenty-first century, it will need to implement the reform agenda as embodied in its annual reports since the turn of the millennium. In 2005 the Ombudsman indicated four priorities: (a) providing fair-practices training for government employees; (b) providing more recommendations related to procedural fairness in the treatment of complaints; (c) monitoring the balance between fiscal accountability and fairness and effectiveness within service delivery systems; and (d) increasing investigations on how to deal with perennial systemic problems.72 These priorities are again quite evident in the annual and special reports produced in 2006 and 2007, which outline what has been done and what remains to be done. Several questions arise regarding the future of the Ombudsman and its work. The first question is this: What is its status likely to be in the future? Regardless of how anyone feels about the office, there is no notable debate at this time about eliminating the office, and it is unlikely that such a debate will emerge in the near future. The questions that were asked about the need for the office when it was first established are no longer heard today. Instead, the questions asked today relate to the challenges the Ombudsman faces and what should be done to address them to ensure that the office can fulfil its mandate in advancing fairness and justice in the provincial administrative system. The second question is this: What is likely to happen to relations between the Ombudsman and the provincial executive and legislature? Relations in recent years have been relatively cordial and constructive, but some improvements could be made in order to develop those relations, with the goal of improving administrative policies and procedures within government as well as efficiency and effectiveness in the Ombudsman office. Towards that end, consideration may have to be given to developing the Ombudsman’s capacity not only to liaise with senior officials in all government agencies and with legislators from all parties, but also to provide orientation sessions regarding the mandate and work of the Ombudsman.

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The third question is this: What will happen to the Ombudsman’s caseload? The prudent answer to this question is that its future caseload will be affected by these three issues: (1) Will its mandate be expanded to deal with cases involving Executive Council at the provincial level, municipal governments and health authorities at the local and regional levels, and possibly even some self-regulated professional bodies? (2) Will any client ‘appeal’ or ‘advocate’ offices be established either to deal with complaints that arise or to promote good administrative practices? Such appeal and advocacy mechanisms would have two effects on the Ombudsman: they would likely reduce the number of complaints to the Ombudsman; and they would provide the Ombudsman with more places to refer complaints to. It would be even more significant if more such bodies were established in the municipal sector. Though the Cities Act requires each of Saskatchewan’s thirteen cities to appoint an administrative appeal officer on a full or part-time basis, the prevailing view is that this is not working very well yet and that it may be beneficial to establish a single appeal office for the entire municipal sector. (3) Will the Ombudsman employ a ‘reactive remedial’ approach that focuses on dealing with complaints, or will it adopt a ‘proactive preventative’ approach that focuses on identifying and eliminating systemic problems and also on enhancing the understanding of all government officials as to the importance of operating according to administrative principles that reduce the incidence of complaints – especially complaints that could lead to time-consuming full and formal investigations? The approach taken will depend on the financial and human resources the Ombudsman has at its disposal and on the extent to which its efforts are supported by the provincial legislature, by Cabinet, and by the public service commission. The fourth question is this: Should the mandate and capacity of the Ombudsman be reviewed? In the present day the Ombudsman, the legislature, and the people of Saskatchewan have some important decisions to make regarding the future of that office. Such decisions must be made not because there is anything fundamentally wrong with that office, but because there is a growing sense that special efforts are needed to ensure that both its mandate and its capacity are appropriate to the changing needs and preferences of the people of Saskatchewan in the twenty-first century. In making those decisions it may be prudent to launch a systematic review of the Ombudsman in

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relation to, rather than in isolation from, other existing and potential administrative review officers and advocates in various governmental and non-governmental sectors. In the absence of such a review, any of the efficiency, effectiveness, and legitimacy challenges the Ombudsman has been experiencing in the recent past will likely increase rather than decrease over time. Those close to the Ombudsman share the hope that was articulated by the Ombudsman in the 2002 report: ‘I am hopeful that … my successor may find a legislative base and resources adequate to enable him or her to take a respected Office of the Provincial Ombudsman gracefully into the 21st century, if a little late.’73

NOTES * The author thanks the current and former Ombudsmen, their staff members, and his research assistants, as well as provincial officials, for their valuable insights and assistance in producing this paper. 1 Ulf Lundvik, The Ombudsmen in the Provinces of Canada (Edmonton: International Ombudsman Institute, 1981), 6. See also Hing Yong Cheng, ‘The Emergence and Spread of the Ombudsman Institution,’ Annals of the American Academy of Political and Social Science 377 (1968): 24–5. 2 Early influential publications by Donald C. Rowat include ‘We Need a New Defense against So-Called Justice,’ Maclean’s, 7 January 1961, pp. 10, 82–3; ‘Finland’s Defender of the Law,’ Canadian Public Administration 4. no. 3 (1961): 316–25; and ‘An Ombudsman Scheme for Canada,’ Canadian Journal of Economics and Political Science 28, no. 9 (1962): 543–56. 3 Lundvik, The Ombudsmen in the Provinces of Canada, 5. There was also a broader discourse at that time; see, for example, Stanley V. Anderson, Canadian Ombudsman Proposals (Berkeley: Institute of Intergovernmental Negotiations, University of California, 1966); and Donald C. Rowat, ‘Canada’s Provincial Ombudsmen,’ in The Ombudsman Plan: The Worldwide Spread of an Idea, 2nd ed. (Lanham: University Press of America, 1985), 107–16. 4 Saskatchewan, Legislative Assembly, Debates and Proceedings, 6 February 1964, 3. 5 For a detailed account of the CCF legacy for innovation in governance, see A.W. Johnson, Dream No Little Dreams: A Biography of the Douglas Government of Saskatchewan, 1944–1961 (Toronto: University of Toronto Press, 2004). 6 Ibid., 259–310.

Saskatchewan’s Ombudsman Office 269 7 Saskatchewan, Legislative Assembly, Debates and Proceedings, 5 February 1965, 11. 8 Anderson, Canadian Ombudsman Proposals, 10. Attorney General Heald and his officials were undoubtedly also aware of a series of lectures on the ombudsman that Sir Guy Powles delivered in seven Canadian cities (Montreal, Halifax, Ottawa, Toronto, Winnipeg, Regina, and Vancouver), including Regina, in February and March 1966. The lecture was published as Sir Guy Powles, ‘Some Aspects of the Search for Administration Justice with Particular Reference to the New Zealand Ombudsman,’ Canadian Public Administration 10, no. 2 (1966): 133–57. 9 Saskatchewan, Legislative Assembly, Debates and Proceedings, 18 March 1965, 1229. 10 Confidential interviews with former government officials. 11 Ibid. 12 This section is based on the second reading debate on Bill 9. See Saskatchewan, Legislative Assembly, Debates and Proceedings, 8 March 1972, 422–31; 22 March 1972, 1057–69; 28 March 1972, 1295–300; 29 March 1972, 1301–11; and 30 March 1972, 1327–39. 13 Saskatchewan, Legislative Assembly, Debates and Proceedings, 30 March 1972, 1339. 14 See Saskatchewan, Legislative Assembly, Debates and Proceedings, 12 March 1973, 1557–69; and ‘All Support Ombudsman Choice,’ Leader Post (Regina), 13 March 1973, 10; ‘Liberals Agree to Choice: Boychuk to Be Ombudsman,’ Leader Post (Regina), 9 March 1973, 11; and Hank Goertzen, ‘Provincial Ombudsman Appointed in 1973,’ Star Phoenix (Saskatoon), 3 January 1974, 4. 15 See Saskatchewan, Legislative Assembly, Debates and Proceedings, 20 August 1987, 1947–69, and 21 August 1987, 1975–92. 16 See ‘Ombudsman Nominee Faces Opposition,’ Star Phoenix (Saskatoon), 4 April 1987, A1; ‘Ombudsman Appointment Claimed Political Patronage,’ Star Phoenix (Saskatoon), 9 April 1987, A11; ‘Ombudsman Stays,’ Leader Post (Regina), 17 September 1992, A8; ‘McLellan Retires as Ombudsman,’ Leader Post (Regina), 2 December 1993, A7. 17 See Donald C. Rowat, ‘The Case for the Plan in Canada,’ in The Ombudsman Plan: Essays on the Worldwide Spread of an Idea (Toronto: McClelland and Stewart, 1973), 98; and idem, ‘Canada’s Provincial Ombudsmen,’ in The Ombudsman Plan: The Worldwide Spread of an Idea, 2nd ed. (Lanham: University Press of America, 1985), 111, 115. 18 ‘Provincial ombudsman to get extended powers,’ Star Phoenix (Saskatoon), 4 July 1992, A7.

270 Joseph Garcea 19 Saskatchewan, Ombudsman, Annual Report 2002, 2; Annual Report 2004, 4. 20 Lundvik, The Ombudsmen in the Provinces of Canada 29. 21 Forum of Canadian Ombudsman, Case Law. http://www.ombudsman forum.ca/documents/caselaw/saskatoon_police_commissionerstickell_e.asp 22 Goertzen, ‘Provincial Ombudsmen Appointed in 1973.’ 23 ‘Ombudsman to Open City Office,’ Star Phoenix (Saskatoon), 4 October 1975, 3. 24 Goertzen, ‘Provincial Ombudsman Appointed in 1973.’ 25 Saskatchewan, Ombudsman, Annual Report 2003, 3. 26 Saskatchewan, Ombudsman, Annual Report 2007, 7–8. 27 Annual Report 1999, 6. 28 Annual Report 2004, 4. 29 Annual Report 2001, 1. 30 Annual Report 2007, 7. 31 This section is based on confidential interviews gleaned from former and current officials of the provincial government and provincial Ombudsman’s Office. 32 Many of the points raised in those reports were echoed in confidential interviews conducted by the author with former and current ombudspersons and other government officials. 33 Saskatchewan, Ombudsman, Annual Report 1999, 18–19. 34 Ibid., 25. 35 Ibid., 23. 36 Saskatchewan, Ombudsman, Annual Report 2007, 8. 37 Annual Report 2003, 4. 38 Annual Report 2002, 2. 39 Ibid., 2–4. 40 See Fred Harrison, ‘Power of the Purse-Strings: Ombudsman Passes First Obstacle,’ Leader Post (Regina), 6 June 1973, 28; and Earl Fowler, ‘Budget Cuts Cause Length Inquiry Delays,; Star Phoenix (Saskatoon), 18 April 1986, A3. 41 Saskatchewan, Ombudsman, Annual Report 1999, 13. 42 Ibid., 14. 43 Ibid., 13. 44 Annual Report 2000, 8. 45 Saskatchewan, Ombudsman, Fairness: A Brief Explanation, 2004. 46 Ibid., 2. 47 Ibid., 7. 48 Annual Report 2005, 5.

Saskatchewan’s Ombudsman Office 271 49 Saskatchewan, Ombudsman, ‘Ombudsman Says Government Should People Ahead of Policy,’ press release, 23 April 2008. 50 Saskatchewan, Ombudsman, ‘Ombudsman Looking to ‘Best Practices Approach’ to Fairness,’ news release, 26 April 2007. 51 Saskatchewan, Ombudsman, ‘Hearing Back: Piecing Together Timeliness in Saskatchewan’s Administrative Tribunals,’ 2007, 3. 52 Saskatchewan, Ombudsman, Annual Report 2007, 8. 53 Annual Report 2000, 7. 54 Annual Report 2004, 8. 55 Saskatchewan, Ombudsman, Locked Out: Special Report on Inmate Services and Conditions of Custody in Saskatchewan Correctional Centres, November 2002. 56 Saskatchewan, Ombudsman, Special Report, June 2000, 1–22. 57 Annual Report 2001, 10; Annual Report 2002, 5. 58 Annual Report 2003, 5. 59 Annual Report 2001, 16. 60 Annual Report 2007, 9. 61 Annual Report 2002, 5. 62 Annual Report 2003, 5. 63 Ibid., 4. 64 Annual Report 1999, 12. 65 Annual Report 2004, 7. 66 Annual Report 2003, 4. 67 ‘Ombudsman Debates Northern Office,’ Star Phoenix (Saskatoon), 8 September 1977, 5; and ‘North Tour a Success,’ Leader Post (Regina), 3 October 1977, 5. 68 Annual Report 2000, 3. 69 Annual Report 2001, 23. 70 Annual Report 2007, 8. 71 Annual Report 2002, 2–3. 72 Annual Report 2005, 7. 73 Annual Report 2002, 6.

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11 Yukon’s Ombudsman: An Evolutionary Step Forward kirk cameron

This chapter will provide the reader with an understanding of the political context in which the Yukon legislature established the Office of Ombudsman and in which the Ombudsman now operates. In keeping with this, an analysis of the office and its contribution to good government in Yukon will be provided. The reader will also be offered some thoughts on how the office can become even more important to Yukon’s institutional ‘arsenal’ of checks and balances. Appreciating the historical, political, and institutional evolution of Yukon is essential to understanding the Yukon Ombudsman (YO). As Steve Smyth has noted, ‘Yukon Territory was an internal colony of the federal government in 1959.’1 Over the past two or three decades, Yukon has evolved from a weak jursdiction very much under Ottawa’s direction into a sophisticated ‘proto-province’ with a high level of political autonomy.2 A main theme of this chapter is that the creation of the YO in 1996 was very much part of dramatic (some would say ‘revolutionary’) changes in Yukon governance in recent decades. The territory has seen broad ‘constitutional’ changes, including these: in 1979, the patriation of executive government, which had long been controlled by the federally appointed Commissioner of Yukon (the executive today in based in Yukon, which has a party system of government); in 1985, the establishment of Formula Financing arrangements with Canada (similar to equalization payments made to the provinces), resulting in fiscal autonomy; beginning in 1993, the devolution of all land and resources from Canada to the Yukon government (oil and gas in 1993; Crown lands and surface and subsurface ‘administration and control’ over mining, forestry, agriculture, etc., in 2003); and in 2003, a major

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rewrite of Yukon’s constitution (the federal Yukon Act has recast ‘public government’ there so that it closely resembles that of a province). Over this same period, significant domestic initiatives have further redefined Yukon as a ‘proto-province.’ One such initiative has been the Yukon Ombudsman. As reflected in the Second Reading speech by John Ostashek, the Government Leader (the term used before ‘Premier’ became common): ‘The purpose of the Ombudsman is to protect the public from the administrative powers of government. While our democratic system gives the public the ability to hold elected officials accountable through the ballot box, the same does not apply to non-elected administrators and employees who make up the government bureaucracy. As we all know, the size of modern government puts a large amount of interpretative and discretionary power in the hands of government managers as they work to apply the laws and policies created by this legislature.’3 The Government Leader pointed to the ‘modern government’ paradigm as the context for this legislative initiative. Under that paradigm, good government is measured by the checks and balances created to ensure the accountability of both elected politicians and public servants. This fits neatly with the territory’s advance towards provincehood. A second theme of this chapter is that the office was established in a political and cultural context very different from that of the provinces. About one-quarter of Yukoners belong to a First Nation. Eleven of Yukon’s fourteen First Nations have signed land claim agreements (i.e., treaties) and/or self-government agreements with Yukon and Canada. The other three First Nations have not reached settlements but have their own forms of government under the federal Indian Act. In other words, each First Nation has its own system of government, which has been established either through a self-government agreement or under the Indian Act. In practice this means that a significant amount of Yukon’s governance ‘business’ (e.g., social programs, and in some cases land and resource management) falls under the aegis of First Nations, with a direct impact on one-quarter of Yukon’s people. Moreover, these First Nations have their own administrations and can be similarly challenged under fairness principles, just as can ‘public government’ bodies (i.e., territorial ones). It is noteworthy in this regard that the territory’s Ombudsman Act provides for a relationship between that office and Yukon’s First Nations:

274 Kirk Cameron (5) A Municipality or a Yukon First Nation government may at any time refer a matter to the Ombudsman for investigation and report and the Ombudsman shall (a) subject to being able to recover the costs of the investigation from the municipality or the Yukon First Nation government, investigate the matter referred; and (b) report back as the Ombudsman thinks fit.4

Though the statute defines a Yukon First Nation in relation to a selfgovernment agreement, there is nothing in the act specifically preventing the Ombudsman from taking up a matter relating to an Indian Act band in the territory. A third theme here is that the success of the Yukon Ombudsman (YO) has much to do with the style of the individual holding the position. Despite a somewhat difficult first decade, the YO has succeeded, largely owing to the style and character of its first office holder, Hank Moorlag. After Moorlag indicated that he would not accept reappointment for a third five-year term if it were offered, the territorial legislature, on 2 March 2007, announced his replacement, which it had chosen from among twenty-nine applicants. Tracy-Anne McPhee is a long-time Yukon resident with strong credentials. She is a barrister and solicitor with her own private legal practice and has served in various positions with the Yukon Law Foundation, the Maddison Chair in Northern Justice, the MacBride Museum Society Board, and the Canadian Bar Association. She was the first female president of the Law Society of the Yukon and the first Yukoner to serve as president of the Federation of Law Societies of Canada. Moorlag set Yukon’s bar at a considerable height regarding the YO, but Yukoners can expect to be well served by his replacement.5 This chapter has five sections. The first provides a brief history of the YO office and the challenges it faced during its first decade. The second discusses the mandate and functions of that office as well as Moorlag’s perspective on changes he recommended to the Yukon legislature regarding the Ombudsman Act. The third discusses the office’s organization, budget, and workload. The fourth analyses its success relative to its legislative mandate and public expectations and provides observations on its future role in Yukon’s culture and governance. The chapter ends with a few concluding remarks.

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History The matter of establishing a YO office was part of the public record by the late 1980s. Indeed, the YO’s First Annual Report notes that this debate began in the early 1970s.6 In 1989 the territory’s opposition leader, Willard Phelps, told the legislature: ‘I have for some time been asking that Members here consider the establishment of the office of an Ombudsman.’7 The Yukon Party (formerly the Progressive Conservative Party) under John Ostashek took power in the fall of 1992 having committed itself to establishing a territorial Ombudsman. In 1994, Commissioner J. Kenneth McKinnon (‘Commissioner’ and ‘Lieutenant Governor’ were by 1994 synonymous), reading the Speech from the Throne to the Yukon legislature, announced: ‘My government promised to provide open and accountable government in its four-year plan. In order to meet this commitment, my government will be tabling major pieces of legislation. The Ombudsman Act will establish a Yukon Ombudsman to protect the rights of individual Yukoners from the power of the government.’8 Subsequently, Bill 99 was given First Reading on 5 December 1994. The legislative debate commenced at Second Reading. There was no argument over whether the office should be established. Discussion instead focused on the office’s structure and responsibilities. The matter of efficiency was discussed, including whether to align the office’s administrative arrangements with those of the Human Rights Commission, and whether it might be more efficient to combine the role of Conflict of Interest Commissioner with that of the Ombudsman. Ultimately the decision was made to link the Ombudsman’s responsibilities with those of the Access to Information and Privacy Commissioner (hereafter ‘Privacy Commissioner), also set out in territorial legislation. The issue of greatest concern during the debate was the YO’s independence. Discussions about the office’s reporting relationship to the legislature (through the Members’ Services Board of the legislature, analogous to the House of Commons Board of Internal Economy), the appointment of the Ombudsman (and likewise dismissal) by order-incouncil on the recommendation of the legislature, the appointment for a five-year term so that no single government would be in power to appoint or renew appointment of the Ombudsman (at the time, the maximum term of a legislative assembly was four years, pursuant to

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the Yukon Act), and the legislature’s right to reduce the Ombudsman’s remuneration all reflected an interest in ensuring the YO’s impartiality, as well as the government’s desire to shield the office from political influence. One other key matter debated at the time was the apparent overlap between a legislator’s role in addressing constituents’ complaints and that of the Ombudsman. It was generally concluded that these two roles would complement each other, with the Ombudsman having greater capacity to gain access to government records, including those protected under the territory’s privacy legislation. Finally, the Ombudsman’s capacity to launch investigations was debated. We will return to this power later in the chapter, since from the Ombudsman’s perspective it is important to that office’s effectiveness. On 2 May 1995, Commissioner McKinnon assented to several pieces of legislation, including the Ombudsman Act. The determination of a budget for the office – and, more significantly, the appointment of the first Ombudsman – took some time following assent. Initially, to ensure that the office began on a strong footing and with solid expertise, the government arranged for the Alberta Ombudsman, Harley Johnson, to take on the duties on an interim basis. This arrangement lasted until a thorough recruitment process was concluded. That process resulted in a recommendation to the Executive Council that Hendrick K. (Hank) Moorlag be appointed the first Yukon-based Ombudsman. That appointment took effect on 8 April 1997. Later, on the legislature’s recommendation, Moorlag would be appointed by order-in-council for a second five-year term. Towards the end of that second term, as previously observed, TraceyAnne McPhee was chosen as Moorlag’s successor. The first ten years of the YO’s operations can be characterized as somewhat difficult. At the outset, interest in ensuring the office’s real and perceived independence resulted in a ‘hands off’ attitude among both the public service and the legislative ‘masters’ on the Members’ Services Board. For instance, it took until November 2005 for the board – following repeated recommendations from the Ombudsman – to agree that the staff of the YO office should have access to the Group Insurance Benefits Program. The minutes of the board’s 15 November 2005 meeting suggest that there was concern even then that access to government benefits (and similar arrangements) might compromise the YO office’s independence. Fortunately, reason prevailed, with the

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eventual decision reflecting the argument that ‘the independence issue did not interfere with judges of the Territorial Court, Members of the Legislative Assembly and persons employed pursuant to the Cabinet and Caucus Employees Act having access to the Group Insurance Benefits Program.’9 This reluctance to despoil the sanctity of the YO’s office can also be seen in the unwillingness of the Members’ Services Board and the legislature to seriously consider amendments to the act. The statute requires that the act be renewed every five years (Order-in-Council 2006/27 confirms the second renewal from 1 July 2006 to 30 June 2011). A series of board meetings took place between June 2000 and December 2001 regarding amendments to the act as well as Moorlag’s reappointment. Despite considerable deliberation on issues raised by the Ombudsman and various board members, there was no apparent movement to embrace Moorlag’s recommendations for amending the act. According to the minutes of the 15 November 2005 meeting, the Members’ Services Board decided that it would ‘not give further consideration to amendments to the Ombudsman Act during the term of the 31st Legislative Assembly.’ That assembly was dissolved in September 2006 for the general election held on 10 October 2006. It remains to be seen whether the 32nd Assembly will pursue the amendments recommended by Moorlag in his 2001 report and subsequent annual reports. The following section discusses Moorlag’s recommendations. Mandate and Functions Except as they relate to First Nations governments, the YO office’s mandate and functions are fairly consistent with those of its provincial counterparts. The act does not have a preamble or a section on principles or objectives to illuminate the reader as to the YO’s philosophy; even so, it is fairly simple to grasp the lawmakers’ intent. They meant the YO’s office to be independent of government influence. Also, when complaints were made to the YO that a government body had acted unfairly and/or unreasonably, they wanted the YO to investigate regarding that body’s decisions or recommendations, its actions (or failures to act), and its procedures. Indeed the tenthanniversary theme of the office is ‘10 Years – Promoting Fairness, Openness and Accountability.’10 The Ombudsman’s authority to investigate covers the following:

278 Kirk Cameron • Departments of the Government of Yukon. • A person, corporation, commission, board, bureau, or authority

• • • •

who is or the majority of the members of which are, or the majority of the board or board of directors of which are (a) appointed by an Act, Minister, or the Commissioner in Executive Council; (b) in the discharge of their duties, public officers or servants of the Yukon; or (c) responsible to the Government of the Yukon. Schools other than private schools governed by the Education Act. Colleges and college councils established under the Yukon College Act. Hospitals and boards of management of hospitals governed by the Hospital Act. Governing bodies of professional and occupational associations established or continued by an Act.11

Complaints concerning these bodies are typical of those encountered by Ombudsmen in other jurisdictions – they tend to involve administrative delays, inadequate reasons for a decision, uncertainty with respect to eligibility criteria, and factual errors. The main statutory section outlining the YO’s authority is Section 11(1): It is the function and duty of the Ombudsman to investigate on a complaint any decision or recommendation made, including a recommendation made to a Minister, or any act done or omitted, relating to a matter of administration and affecting any person or body of persons in their or its personal capacity, in or by any authority, or by any officer, employee, or member thereof in the exercise of any power or function conferred on them by any enactment.12

The act is clear that the Ombudsman is to ‘investigate on a complaint’ – in other words, the YO cannot initiate investigations. The intent of legislators is reflected in Section 11(4), where the authority to instruct the Ombudsman to launch an investigation rests with the legislature or one of its committees. There is no provision for the Ombudsman to conduct ‘own-motion’ investigations, though as we will see, this authority has been discussed in recent times. The act is also clear that the YO’s role is to analyse the complaint; to attempt to remedy the situation with the ‘offending’ agency of gov-

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ernment; and, if action is not taken to the satisfaction of the Ombudsman, to provide a written report to the Commissioner in Executive Council and, if the YO thinks it appropriate, to the legislature. Power to do more is not granted to the Ombudsman. Section 11(3) of the act contemplates the YO’s ability to investigate even when other territorial statutes describe actions taken pursuant to them as final. Some of these statutes lack appeal mechanisms, or the act states that an authority’s decision or proceeding is not to be challenged, reviewed, quashed, or called into question. The Ombudsman Act makes the YO the last resort, in the sense that the YO cannot investigate a complaint if other appeal mechanisms are provided for in law (s. 12(1)) and if these mechanisms have not been exhausted. There are other restrictions on the YO. The office cannot investigate a complaint regarding an action that took place before the act came into force in 1996; nor can it investigate complaints against the courts, the legislature, the Elections Office, legal counsel acting for the territorial government, or the federal government. Disputes between individuals are also not part of the Ombudsman’s mandate. On the other hand, the act gives the YO the right to hold information in confidence, and the office and its staff are protected from attempts to make it divulge information by applying to the courts. A large portion of the act is devoted to procedural matters. Duties to notify, consult, and report are set out in the act; so is the YO’s right to enter public premises and review documents as required in order to fully understand the complaint at hand. Several concerns have been raised with regard to the mandate and responsibilities of the YO; none of these have been acted on by the Yukon legislature. The most sweeping commentary to date on the current act is found in a 27 June 2001 report to the Clerk of the Legislative Assembly, Patrick Michael. In that report, Moorlag identified a number of concerns about the act and recommended changes to it. Given the nature of these recommendations, and given that they came directly from Moorlag, they are worth reviewing closely. Two of Moorlag’s recommendations related to changes in authority. He asked the legislature to consider an addition to the act that would clarify the relationship between it and the Human Rights Act. Specifically, he asked that the YO’s activities and recommendations not be made subject to complaints under the Human Rights Act. He noted that the lack of clarity in the two statutes regarding their relationship ‘has the potential to set up an absurd result: the Human Rights Com-

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mission could investigate the conduct of the Ombudsman, who in turn could investigate how the Commission carried out its investigation.’13 The amendment he was proposing would in effect elevate the Ombudsman Act above the primary rights-based legislation protecting citizens in Yukon. This may well have been what the legislators had in mind in 1995, when the Ombudsman Act was being drafted; if not, any change will need careful consideration. At this writing, there could well be an action of the Ombudsman that is perceived by a citizen as a human rights violation. That being so, legislators must consider whether it would be appropriate for the Human Rights Commission to hear an argument on such a matter. The second issue with respect to change in authority related to the YO’s power to launch ‘own-motion’ investigations (i.e., investigations when no complaint has been made). Most jurisdictions in Canada give the Ombudsman this authority; the argument for it is that otherwise, the Ombudsman could become aware of an unfair process or practice but be unable to look into it because it is not the subject of a formal complaint. Perhaps the individuals involved need to protect their identity; perhaps the aggrieved is a minor who cannot articulate the complaint; perhaps the individual cannot complain owing to a disability; perhaps the aggrieved died before the complaint could be made. The YO’s office continues to be concerned about this significant difference in its role relative to other Canadian jurisdictions.14 However, the position of the Members’ Service Board has remained consistent: the YO should respond only to formally submitted complaints.15 Regarding the independence and permanency of the YO’s office, Moorlag made five recommendations. Regarding remuneration, he recommended that the act be amended to tie the level of remuneration to that of an official holding a reasonably comparable role, such as the Chief Justice of the Territorial Court. Failing this, remuneration might be set by the Legislative Assembly – in any event, not by the Commissioner in Executive Council, as under the current act. Though not secured in the statute, the order-in-council setting the level of remuneration for the Ombudsman does set it at 40 per cent of the salary of the Chief Territorial Court Judge. Under the current statute, this salary can be reduced only with the agreement of two-thirds of the legislature. The second recommendation in this category related again to the conditions placed on the YO. The act currently allows the Ombuds-

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man, whose position is considered a half-time appointment, to hold other offices ‘of trust or profit,’ but only with the prior approval of the Commissioner in Executive Council. The resulting perception is that the government in power could choose to exercise indirect control over the Ombudsman by rejecting consideration of other employment for that person (ironically, a matter that would not fall within the purview of the Ombudsman to investigate as an unfair practice!). Moorlag recommended that this responsibility be given to the Members’ Services Board, where all parties in the House would be involved in the decision. The third matter raised by Moorlag related to staffing. Currently the territorial Cabinet must approve the Ombudsman’s decisions on contracting and staffing. Moorlag recommended that this approval be transferred to the Members’ Services Board so as to achieve maximum independence for the office. Under the current act, staffing rules are set in part by the government through Cabinet. Regarding permanency, Moorlag recommended removing the need for the act to be renewed every five years. He considered this ‘sunset’ clause repugnant to the efficacy of the office, as well as an implied threat to its operations; it was as if the legislature viewed the office as an experiment requiring periodic reappraisal. In any event, as with all ordinary statutes, the Ombudsman Act can be repealed at any time by the legislature that created it. Moorlag recommended that the sunset clause be replaced by a periodic review of the act. Moorlag made one recommendation relating to enhanced protections for complainants. Specifically, he argued for legislated protections for those who raise issues. At this time the act is strong in terms of protecting information from abuse, but it does not provide for an individual’s protection against reprisals. Administration of the YO’s office was the fourth category that Moorlag addressed in his June 2001 report. Here he advocated that the Ombudsman and its staff be eligible for government benefits under the Public Service Superannuation Act and the Public Service Group Insurance Benefit Plan Act. As noted earlier, not until November 2005 did the Members’ Services Board feel comfortable that this would not compromise the office’s independence. In addition, Moorlag expressed concern about the YO office’s ability to access expert human resources. He recommended that consultation occur whereby the Public Service Commission, the Department of Justice, and the Members’ Services Board would discuss how this

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support could be secured while maintaining the YO’s independence. He anticipated that this consultation might require legislative action in order to be implemented. A number of clarifications and corrections were also recommended. These would have involved changing some wording to improve the act’s clarity, as well as repairing inadvertent inconsistencies between the act and other statutes, such as the conflict between the Privacy Act and Section 19(2) of the Ombudsman Act regarding disclosure of information. Moorlag further recommended that the act be clarified to expressly allow the Ombudsman to administer an oath to staff or individuals to whom he delegated authority under the act. Similarly, the act presented a conundrum to officials regarding the legal principle of functus officio. This principle requires officials to honour those legislated provisions stating that a decision is full and final; yet the Ombudsman Act states that, whatever the finality of a decision, the Ombudsman may investigate and make recommendations that might call into question the ‘full and final’ decision. A ‘notwithstanding’ provision was recommended to remove the conflict. One matter of considerable importance to the future value of the YO to Yukon’s people relates to Section 11(5) of the act. That section gives the Ombudsman the authority to investigate a complaint raised with respect to a municipality or a Yukon First Nation. As noted earlier, a theme of this chapter is the unique set of institutions that interact in the territory to provide public administration. A considerable amount of government ‘business’ now rests with First Nations, whose governments legislate and provide programs and services to around onequarter of the territory’s population. The weave of jurisdictions binding the territorial and First Nations governments is complex. In addition, municipalities play a significant role in Yukoners’ lives, especially in the capital, Whitehorse, where two-thirds of the population resides. There, treaties and self-government agreements have created a fascinating jurisdictional ‘dance’ among territorial, First Nation, and municipal governments. One example is the Kwanlin Dun First Nation’s self-government authority respecting its lands within Whitehorse city limits. Both of these jurisdictions in turn connect with the territorial government, which controls undeveloped lands (Commissioner’s Lands)16 until planning is concluded and basic municipal infrastructure (water, sewer, roads, etc.) is built. All of this has brought three governments together to make decisions on how to harmonize their activities.

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This ‘dance’ means that professional standards in administration must apply to all levels of government, with a consequent impact on the majority of Yukoners. It can be argued that the Ombudsman’s services should blanket all of these jurisdictions and that, given the office’s importance in ensuring fairness and equity, it should be a service free of charge to the municipalities and First Nations. In discussions with Moorlag, this seems to have been his preference. During his time as YO, he had been approached on occasion, but neither First Nations nor municipalities had secured his services.17 In the analysis section below, discussion of this potential change to the act will be expanded on, given the capacity and consistency challenges facing First Nations and municipalities. It can be argued that this one change in the act could go far to bring about ‘good government’ in the territory. A second amendment not raised in the Ombudsman’s 2001 review touches on the relationship between the Ombudsman and the Privacy Commissioner. In 1995, when the act was being debated in the legislature, the argument was made that in order to achieve efficiencies, the two offices should be linked. Cost containment being an ever-popular theme in the legislature, the argument found expression in the merger of the two roles within the one Office of the Legislative Assembly. Because of the differences in the ‘styles’ of the two mandates, however, it may be appropriate to reconsider this linkage. The Privacy Act is highly prescriptive regarding how much time the government is allowed when producing information for the Privacy Commissioner. There is also a formal process of review; there are also highly exacting requirements as to what is reviewed, what is produced, and when. Conversely, the Ombudsman’s role is at its heart conciliatory, which makes that office’s work significantly different from what the Privacy Commissioner does. Also, the procedural detail in the Ombudsman Act requires strong communication between the office and the government agency that is the subject of the complaint – which underscores the YO’s interest in finding solutions. The YO makes every effort to ensure that the government agency will cooperate in solving problems. Thus no deadlines are imposed on either the office or the government agency implicated in the complaint, which is contrary to the strict deadlines required under the privacy statute. What used to happen – and this was of particular concern to the Ombudsman between 1997 through 2001 – was that owing to the legislated deadlines, and resource limitations, the Ombudsman had to dedicate people to fulfilling the office’s obligations under the Privacy Act. In a

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2001 interview with the Yukon News, Moorlag expressed his concern this way: ‘Because the ATIP reviews are required to be done within a time frame that is legislated, then the resources of the office get expended because you have to meet those legislative time frames, and that’s all at the expense of the Ombudsman’s complaints … Another reason for the drop in the number of complaints, however, appears to be that public confidence in the ability of the Ombudsman to complete investigations within a reasonable time frame has been eroded.’18 Moorlag expressed concern at that time that consideration should be given to making both the YO and the Privacy Commissioner full-time positions in order to address the workload challenges. Given the incompatibility in the respective mandates, it might be appropriate at this juncture to instead consider separating the two responsibilities by appointing two part-time officers, each with half-time status. Budget, Staff, and Caseload In the early years of the YO’s office leading to 2001, the Ombudsman expressed concern about the fall-off in the number of complaints made to the office. He had two interpretations of this: (1) it might be positive, if it meant that public administration was improving significantly; and (2) it might be negative, if it meant that public confidence in the YO was eroding because of a legislated imbalance between the YO and the Privacy Commissioner. The data suggest that there has been a somewhat erratic utilization of the office (see Table 11.1). The number of complaints received fluctuated greatly during the office’s first five years (1996 to 2000); then there was a dramatic decline over the next five. Note, however, that the data in the last three columns are only in regard to formal investigations. Most complaints during those years did not result in a formal investigation. This was for a variety of reasons: perhaps the matter lacked sufficient information, or the complaint was withdrawn, or another remedy was available. At this writing (June 2008), the last available annual report is for 2006 (which was Moorlag’s last report as Ombudsman). We do not have McPhee’s first report so that we can examine whether the data have changed under her leadership. The figures for ‘new investigations’ and ‘completed investigations’ over the years have been rather modest. Moreover, the steady increase in the number of files ‘carried over’ from one year to the next suggests that the caseload has not been sustainable. In 2001, at the crest of this

Yukon’s Ombudsman 285 Table 11.1 YO’s caseload over the years

Year

Total complaints received

Total new investigations

Completed

Carried over

1996* 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006

92 226 144 121 86 83 58 79 70 53 37

21 19 14 25 12 11 12 11 16 29 13

10 12 8 17 17 18 9 16 11 50 36

11 18 24 32 27 20 23 18 21 32 33

*Because the YO started operations on 1 July 1996, the reported data for 1996 are only for the period from 1 July to 31 December; subsequently, the data are for the full calendar year.

trend, Moorlag told the media that he was unable to meet the caseload and called for additional resources. He had faced challenges to meeting the backlog in the latter part of the 1990s; by September 2006, however, he was maintaining that there had been a levelling out of the workload to a point that the staff complement now seemed sufficient to meet it.19 This, however, is certainly a positive spin on the situation. In the early 2000s the figures for complaints and new and completed investigations have remained relatively low, while the number of carried-over files has remained persistently high. No doubt, if the Ombudsman had more staff and a higher budget, there would be a quicker turnaround rate for investigating and processing complaints. The position of Ombudsman has remained half-time, and moreover, that person has covered both the YO’s office and the Privacy Commissioner. Staffing has not increased significantly. Since 2000 the combined office has had two full-time staff – one to support the privacy activities, the other to conduct Ombudsman’s investigations. As noted earlier, however, when there is pressure to meet deadlines under the Privacy Act, the resources normally focused on YO work are redirected to that end. Another important note: Moorlag’s actual commitment of time far exceeded the half-time position to which he had been appointed. In a

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frank exchange in September 2006, he made it clear that he had been putting in full-time hours. When he took a weekday away from the office, this was in part offset by longer hours on the days he was working (see the Analysis section below). Analysis and Observations At the outset it is important to reflect on whether the YO provides appreciable value to Yukon. In all interviews conducted to date – with politicians, deputy ministers, and Moorlag himself – it has been held consistently that the office has contributed greatly to good government in the territory. Yet the belief remains that the YO could evolve into an even stronger presence as a ‘checks and balances’ agent in Yukon’s institutional framework. The Ombudsman Act reflects an implicit bias towards accommodation and reconciliation. The procedures established under the act are weighted in favour of maximum discovery through investigation. This requires extensive interaction between the Ombudsman (or his/her agent) and government officials so as to allow the latter to bring forward solutions to the problem at hand, be it through legislation or policy/procedural changes. No arbitrary deadlines or rigid rules have been set out restricting the YO’s capacity to work with the agency in question. Throughout, communication is key so that at the end of the day the complainant and the government can move beyond the dispute. The Ombudsman’s style and character can enhance or undermine this process. Yukon was lucky to find a highly capable individual as its first Ombudsman – someone with the ‘soft hands’ needed to build effective relationships with government officials. This required determination on Moorlag’s part because, during at least the first six years of the office, there was a lack of understanding among government agencies as to the YO’s role and responsibilities. This was exacerbated by the deliberate efforts of consecutive governments in the 1990s and early 2000s to distance government from the office so as to ensure its independence. This had the unintended consequence of leaving senior administrators confused as to the role’s importance. From personal experience as Cabinet Secretary from 2000 through 2002, I can attest to the low priority given to the office by some of my colleagues. I personally admit to having had limited understanding of the Ombudsman’s role and importance to good government during

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my early months on the job. Moorlag’s quiet determination and exceptional communications skills resulted in a significant change in the relationship between the YO and many departments and agencies of government. During interviews with deputy ministers in 2005, it became apparent to me that knowledge of the Ombudsman’s role had definitely increased and that the relationship between the YO and public servants had strengthened considerably. Among the community of deputies there seemed to be genuine interest in building a working relationship with the Ombudsman. Similarly, Moorlag’s interest in collaboration is reflected in the 2004 annual report, which notes that throughout that year, he took the personal initiative to meet with individual deputy ministers ‘as a means of fostering and maintaining the kind of working relationship that maximizes our ability to settle complaints informally.’20 This position was reiterated in June 2007, when Moorlag submitted his final annual report. He used the opportunity to reflect on his ten years in office, which, except for a few months, constituted most of the institution’s existence. Instead of measuring the YO’s success in statistical terms, he emphasized how he had worked with administrators to ‘promote fairness, openness, and accountability in public administration.’21 This meant helping government bodies apply procedural fairness standards, improve their writing of decisions, and develop internal complaint-handling mechanisms. Still, Moorlag was perturbed by the lack of public awareness of the Ombudsman, suggesting that schools could play a role in introducing the public to its work.22 As a footnote to this discussion, the Ombudsman’s unique position in relation to the legislature and government administration means that the office holder has a different set of tools than a legislator in finding solutions to issues raised by the public; in effect, the YO can fill a void that MLAs cannot. Neutrality, objectivity, and non-partisanship are important requirements of the office, and these are further strengthened by an act that gives the Ombudsman avenues into the bureaucracy that MLAs simply do not have. An MLA’s central role is to represent the interests of his or her constituents, but it is difficult for the relationship between members and public servants to overcome the political/non-partisan divide separating the two. The public servant, ever mindful of the interests of his or her minister and premier, must tread carefully when engaging with politicians, especially where they belong to an opposition party. A matter of importance to the member can very well end up in Question Period, eroding

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the possibility of resolving the matter discretely and informally. There is nothing wrong with this; it is a feature of the Westminster system. However, it is counterproductive to the collaborative settlement of complaints. The Ombudsman stands outside both the public service and the ‘cut and thrust’ of politics, and therefore can inject a greater likelihood that disputes will be settled amicably. As was noted earlier, there is an increasing ‘cultural’ disconnect between the principles of the Ombudsman Act and those of the Privacy Act. The goals of the former are accommodation and reconciliation. The goal of the latter is to protect the right of individuals to access information on government while also protecting the private interests of individuals. Thus there is a formality and rigour to the privacy legislation that is not found in the Ombudsman statute. That is, the specified procedures and time frames in the privacy statute make the settling of disputes more resolvable, whereas the reliance on persuasion under the Ombudsman statute can allow a case to drag on seemingly interminably. A special report on CBC radio on 13 December 2004 is illustrative of this potential for controversy. Wearing his Privacy Commissioner’s ‘hat,’ Moorlag argued at the time that the government was not meeting the purposes and intent of the privacy legislation. At the same time, the 2004 report amounted to an endorsement of the YO in terms of its capacity to settle complaints between citizens and government agencies; in that year, sixteen new investigations were started and eleven complaints were resolved. Despite the obvious efficiencies of combining the roles of Ombudsman and the Privacy Commissioner (especially where the incumbent is willing to work well beyond his remuneration), the two are a poor fit. The legislature may wish to revisit the question of this linkage, and to bring focus to both these roles by establishing a separate half-time Ombudsman and half-time Privacy Commissioner. The YO’s focus on mediation and accommodation could be useful when it comes to relations with Yukon First Nations. As noted earlier, ‘governance’ in the territory can no longer be defined without an appreciation of the weave of roles, jurisdictions, and responsibilities among the territorial government, First Nations, and municipalities. These linkages are now set in the context of modern treaties and selfgovernment agreements. It is also apparent that, as emerging governments, First Nations could benefit from the support of the YO. Many First Nations find themselves trying to meet a broad range of governance challenges with finite resources, and they often lack capacity at

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the local level. They face disputes between their officials and the citizenry as a consequence of these major challenges. By way of example, Chief Darin Isaac of the Selkirk First Nation has identified building an effective administration as one of his highest priorities. He has discussed creating an office akin to that of the Ombudsman for Pelly Crossing as a way to help build a fair, accountable, and professional government service for his community. An initiative by the Yukon government to extend the services of the Ombudsman to First Nations without the requirement for cost recovery would be highly beneficial for First Nations leaders. There is also a question of cultural compatibility. The underlying premise of the Ombudsman Act is to find accommodation, and this is consistent with the consensus decision making found in First Nations societies. In an examination of the key elements of good governance important to First Nations, the Harvard Project on American Indian Economic Development identified ‘cultural match’ as an important characteristic for success in the design or implementation of governance institutions in First Nation communities.23 The capacity of First Nations to strengthen their institutions could well be increased by having such a working relationship with the Ombudsman. Public education regarding the role and responsibilities of the Ombudsman is key to the future development of the office and its effectiveness in the Yukon context. Moorlag is to be lauded for his efforts to educate Yukoners through the media when opportunities arise, and to work with Yukon College and public schools. It is important for this work to continue. As admitted earlier in this chapter, even those with reasonable knowledge of how government works in today’s world are less than sure of the Ombudsman’s importance when it comes to maintaining principles of fairness and accountability. It will be especially important to increase the awareness among Yukon municipalities and First Nations regarding how this office can foster good government in their communities. Conclusion Yukon’s Ombudsman was late in arriving in Canada, which is understandable given Yukon’s constitutional status as a territory and the delayed maturing of its governmental institutions. As well, the large First Nations community is a factor not experienced by other Ombudsman offices. In addition, the YO’s inability to launch investigations is

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a serious limitation, as are some of the office’s structural attributes. Moorlag admitted in his interview of September 2006 that he regretted not having taken a more aggressive role in some areas falling within his mandate. In hindsight he reflected on how he might have had more success if he had sometimes applied greater pressure. It is always worthwhile to reflect on one’s efforts in order to determine whether a change of course would be the better way to go. However, in the case of the Yukon Ombudsman, it would seem that the style and tone established by the first Yukon-based Ombudsman was the correct approach. It has given reason for legislators to drop the ‘sunset’ clause in the Ombudsman Act if for no other reason than that the office is now part of the fabric of ‘good government’ that Yukoners have come to respect – and expect.

NOTES 1 Steve Smyth, ‘Responses to Internal Colonialism in the Yukon Territory: 1959-2004,’ Studies in Folk Culture (2005): 184. 2 Kirk Cameron and Graham White, Northern Governments in Transition: Political and Constitutional Development in the Yukon, Northwest Territories, and Nunavut (Ottawa: Institute for Research on Public Policy, 1995), 9. 3 Yukon Hansard, 28th Legislature, Session 2, December 8, 1994, Bill no. 99, 2nd Reading. 4 Ombudsman Act, Revised Statutes of Yukon, 2002, s. 11. 5 ‘Potential New Ombudsman Relishes the Challenge,’ WhitehorseDaily Star, 12 March 2007, Online. http://whitehorsestar.com 6 Office of the Ombudsman, First Annual Report (Whitehorse: 1997), 1. 7 Yukon Hansard, 27th Legislature, Session 1, 13 March 1989, Address in Reply to the Speech from the Throne. 8 Yukon Hansard, 28th Legislature, Session 2, 1 December 1994, Speech from the Throne. 9 Extract from Minutes of Members’ Services Board, 15 November 2005, Item no. 3, Issues Relating to the Ombudsman Act. 10 Office of the Ombudsman, Annual Report 2005, 2. 11 Ombudsman Act, Schedule A, RSY, 2002. 12 Ombudsman Act, s. 11(1). 13 Correspondence from Ombudsman Moorlag to the Clerk of the Legislative Assembly, 27 June 2001, 1–4.

Yukon’s Ombudsman 291 14 Interview with Hank Moorlag, Yukon Ombudsman, 20 December 2005 and 19 September 2006. 15 Interview with the Honourable Ted Staffen, Chair of the Members’ Services Board, 7 February 2006. 16 The term ‘Commissioner’s Lands’ is equivalent to the provincial term ‘Crown lands.’ 17 Interview with Moorlag, 19 September 2006. 18 ‘Ombudsman Overwhelmed by Caseloads,’ Yukon News, 24 October 2001, 6. 19 Interview with Moorlag, 19 September 2006. 20 Annual Report 2004, 5. 21 Annual Report 2006, 4. 22 Ibid., 6. 23 David C. Hawkes, ‘Rebuilding the Relationship: The “Made in Saskatchewan” Approach to First Nations Governance,’ in Reconfiguring Aboriginal–State Relations, edited by Michael Murphy (Kingston: McGillQueen’s University Press, 2005), 126.

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12 Recapturing the Spirit, Enhancing the Project: The Ombudsman Plan in Twenty-First-Century Canada gregory j. levine

Concerned as it is with rectifying administrative wrongs and with promoting administrative justice, the Ombudsman plan carries profound potential for genuine public service in its manifold complexity. As the chapters in this book attest, the parliamentary Ombudsman plan has had varied histories, successes, and failures since its introduction to Canada in the late 1960s. It has survived and may yet thrive such that it is widely understood, broadly utilized, and appreciated by those who encounter it. This closing chapter assesses and explores the potential of the Ombudsman plan by appraising the contemporary role of the parliamentary Ombudsman, the administrative justice standards that inform the plan, and the challenges faced by Ombudsmen today. Among these challenges are the effects of privatization on the right of complaint as well as threats to the credibility of Ombudsmen, which include the quieting of Ombudsman activism; the retreat from investigations and the rise of call centre Ombudsmanship; the proliferation of Ombudsman forms; and the relevance of persuasion in a litigious age. Finally, the chapter considers the prospects for the Ombudsman plan – in particular, the potential expansion of Ombudsman jurisdiction and the possibility of creating more parliamentary Ombudsman offices of limited jurisdiction. Role of the Parliamentary Ombudsman The parliamentary Ombudsman of general jurisdiction as exemplified by those in place in nine Canadian provinces and one territory is an investigator and resolver of administrative problems great and small. The Ombudsman is called on to address individual complaints to help

The Ombudsman Plan in Twenty-First-Century Canada 293

ameliorate the powerlessness of the individual vis-à-vis the state. The Ombudsman does this not by advocating a position for the individual but by providing thorough and impartial investigation into the circumstances that give rise to grievance and by reporting both where administrative power has been misused in some way and where it has not. The Ombudsman in this country is also called on to be a watchdog of the administration and to inquire into problems that he or she has determined may have aggrieved some person or group, or that may aggrieve some person or group in the future. Typically the parliamentary Ombudsman is empowered to receive and investigate complaints about administrative activity in the public sector.1 The provenance of the Ombudsman in Canada has been explored and decisively established in the famous case British Columbia Development Corporation v. Friedmann.2 Administrative acts are those that implement government policy. ‘Authorities’ (and the equivalent terms in each jurisdiction) are public-sector entities and their subsidiaries. Ombudsman jurisdiction over specific entities in the public sector – indeed, over general categories of entities – varies from province to province. Thus the B.C. Ombudsman has a very wide jurisdiction – one that includes, among other entities, municipalities and professional regulatory bodies. In the more minimalist provincial approaches, the Ombudsman may investigate provincial bodies such as ministries, administrative tribunals, and Crown corporations. Complainants may be individuals or corporate or associative entities. In Canada, the parliamentary Ombudsman of general jurisdiction is also usually empowered to launch investigations on his or her own motion.3 This power implies two things about parliamentary Ombudsmanship in Canada – the Ombudsman is expected to be an active watchdog of the administration over which he or she has jurisdiction, and moreover is expected from time to time to actually investigate matters that may give rise to grievance. This latter aspect implies that the Ombudsman is to think and appraise matters systemically. It also indicates an active, even activist, role. Both this role and the role of Ombudsman as a responder to complaints are underpinned by a profound moral duty to try to right wrongs.4 Administrative Justice Standards Parliamentary Ombudsman legislation throughout Canada contains standards according to which Ombudsmen are to assess and formulate opinions about administrative actions. The standards sections

294 Gregory J. Levine

in each Ombudsman statute are essentially codes of administrative justice. Typically the codes contain a list of misbehaviours on which the Ombudsman must opine and report along with an itemization of the matters about which the Ombudsman may make recommendations in an attempt to resolve problems. The moral obligation to opine and report when wrongdoing is uncovered is profoundly important and is a great responsibility.5 While a detailed exegesis of codes is not possible here,6 it is important to note that the misbehaviours listed run the gamut of potential human behaviour ranging from simple mistake through acting contrary to law to oppressive conduct.7 Moreover, where wrong – simple, profound wrong – is found, the Ombudsman is to comment. The recommendation sections of the codes are important because they indicate the breadth of issues on which reform may be sought. The Ombudsman typically can recommend everything from the cessation of a practice to a change in a practice to amendment of legislation. Potential recommendations are limited only by the imagination of the Ombudsman. Ombudsman offices from time to time have offered statements of the codes that outline their current understandings of terms such as ‘improperly discriminatory,’ ‘mistake of law,’ and the like.8 These statements are important because they allow those about whom the Ombudsman opines an insight into the standards by which they will be ‘judged’ and because they are statements through which the public may ‘judge’ the actions of the Ombudsman. There is little debate about them in the Ombudsman and administrative law literature,9 and this is unfortunate because they represent potential contributions to understanding Ombudsman itself as well as potential methods for helping Ombudsman law contribute to understandings of administrative fairness and administrative justice in the legal community more generally and among the public at large.10 The codes represent a deeply moving and broadly constructed rendering of the excesses, travails, and traumas of organizational and human wrong coupled with an outline of potential plans of fundamental and widely construed redemption. These codes provide the potential not only to right wrongs but also to reconceptualize rights and wrongs and to inform debate about administrative justice and law formation in the administrative state.

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Challenges to the Ombudsman Project Privatization and the Diminishing of the Right of Complaint The office of Ombudsman was created during an era of a burgeoning welfare state. It was to be a tool for redressing grievance, championing justice, and reducing the individual’s alienation from government. As such, the Ombudsman idea followed a long tradition of the right to petition government about grievances by providing a vehicle to complain. The philosophy of governing and administering has changed, however, since the advent of the Ombudsman institution. Twin trends, making government more like business and privatizing government functions, have affected the right of complaint and the scope of Ombudsman activity. The trend towards making government more like business and embracing ‘New Public Management’ represents a great challenge for Ombudsmen.11 Results-based management has little regard for due process and for necessarily fair results. The challenges relating to attitude and practice are truly enormous. With the emergence of the ‘new public service’ one may see a revived concern with proper process that may favour or make more understandable the work of the Ombudsman.12 Privatization holds the potential to diminish the right of complaint by shifting institutions outside the jurisdiction of the Ombudsman.13 If an institution is taken away from government it will likely be taken out of the Ombudsman’s orbit. However, where the government maintains the ultimate obligation to provide a service the Ombudsman still may be able to assert jurisdiction so that he or she may investigate and report on the service provided by a private entity. The Quieting of Ombudsman Activism In the beginnings of the Ombudsman plan in Canada, there was much optimism and much zeal. This zeal has given way to a technocratic understanding of the role and behaviour of the Ombudsman. The sense that the parliamentary Ombudsman is an active investigator of administration, an aggressive proponent of fairness in public administration, and a champion of right behaviour who is not afraid to voice opinions about wrongdoing and wrongdoers has too often given way

296 Gregory J. Levine

to the notion that Ombudsman is one among many governmental helpers who avoids publicity and not only rarely speaks truth to power but also hesitates to even harbour such a thought. Too often, the Ombudsman has emerged as a safety valve for discontent, a place where complaints can be siphoned off and expended. The historic stars in the Ombudsman firmament, the Jacobys and the Maloneys, are few and far between. To be sure, many have been valiant in their attempts to right wrongs. One need only look at the work of McCallum in B.C. or Jamieson in Ontario to know this is so. Mostly, though, especially beginning in the late 1990s, Canadian Ombudsfolk have moved along, content to funnel complaints through their own bureaucracies, effecting little change and often losing credibility. The tendency to simply funnel complaints and act as a safety valve for discontent is evidenced by the very few major public reports on critical issues of administration or on major administrative grievances in the larger provinces in the period 1999 to 2005.14 The low-key approach has been justified in part by the argument that to be genuinely effective an Ombudsman must have a good relationship with the bureaucracy he or she is investigating. To be sure, constantly battering the public service, while making good press, can ultimately be destructive of efforts to effect reform. Yet it is a far cry from constant abrasion and battering to speaking out only rarely or to seldom finding any problems in terms of the justice codes embedded in the Ombudsman legislation of each province. The rise in Ontario of an activist Ombudsman hopefully signals a turnaround as well as a turn away from technocratic Ombudsmanship. André Marin’s work has angered some and no doubt alienated others, but it has also electrified Ontarians and challenged complacency in the public service.15 But this is not solely about individuals and the choices they have made. Ombudsmen are independent officers of the legislature. While the appointment process varies from province to province, the legislature in most cases has some input into the choosing of the Ombudsman as well as a clear interest in the Ombudsman’s activities.16 That quiet, ineffectual Ombudsmen have often been chosen may reflect political choices geared to avoiding controversy and not necessarily to helping individuals and groups with regard to their grievances against the state, or to helping public administration become more responsive to the people it serves. Choosing a critic, indeed an active critic, of the administration requires genuine commitment to the Ombudsman plan. It also requires maturity in the face of potential criticism. It is to

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be hoped that future legislatures will act in the interests of the public and administration and not appoint Ombudsmen on the basis of shortterm expediency. While not necessarily achieving the full potential of the Ombudsman plan, Ontario’s appointment of André Marin has recaptured some of the vision of what an Ombudsman can do. It remains to be seen whether Ontario legislators will maintain their resolve to reinvigorate the Ombudsman plan and whether other jurisdictions will have the courage to follow suit by appointing active champions of administrative justice. The Retreat from Investigation and the Advent of Call Centre Ombudsmanship Most provincial Ombudsman offices have toll-free numbers, and most, after periods of retrenchment, have reduced the presence of the Ombudsman in communities by closing or trimming ‘branch’ offices. While there is no doubt a telephone and a computer in every investigating officer’s office in every Ombudsman’s office in Canada, it would be a safe bet that very few have a copy of any book on investigative skills or any document extolling the benefits of on-site investigation. Offices across the country receive thousands of complaints. It is unreasonable to expect that those offices will be able to meet with every complainant and every public administrator face-to-face on every complaint. Many complaints are relatively straightforward and may be dealt with expeditiously by quick phone calls and faxing or emailing information back and forth. Increasingly, though, this is typifying Ombudswork, and there has been little evaluation of how well this serves the public, the administration, or Ombudsman practices. There has been criticism of call centre governance generally because it can be alienating and often ineffective.17 Parliamentary Ombudsmen faced with budgetary cuts often fall back on technologies that allow for phone intake and ‘investigation.’ As a corollary, there has been little discussion of investigation and investigative capacity. To be sure, Ombudsman offices and the Forum of Canadian Ombudsman engage in various levels and forms of investigative skills development.18 No doubt as well, various offices have engaged in various forms of ‘strategic’ planning in which skills development is promoted and supported.19 Ombudsman investigation is about seeking out information, about knowing the facts that underlie the complaint. At a minimum, investi-

298 Gregory J. Levine

gation must entail defining a plausible allegation that accurately characterizes the complaint and that falls within the jurisdiction of the Ombudsman; obtaining information material to the allegation; and analysing the information in order to establish a case that either refutes the allegation or establishes its merits. Accessing information is not always easy, nor is understanding the information once retrieved. Obtaining relevant or material information requires skill and analysis. Most Ombudsworkers and offices readily accept that skill is an issue and usually encourage training if they cannot provide it themselves. There is less acknowledgment of, and far less literature on, the analytics of Ombudsman investigation.20 Each complaint must be analysed in terms of jurisdiction to be sure, but also in terms of what the core issues are and what will be the subject of investigation if the jurisdiction threshold is met. If it is to be refused at the outset, the complaint must be analysed also in terms of the codes of refusal embedded in most Ombudsman legislation in Canada.21 If the complaint is actually investigated it must be understood within the concepts and standards of administrative justice embedded in Ombudsman legislation. If investigation is undertaken, the way it is approached and what is actually done will very much reflect the attitudes and beliefs of the Ombudsman of the day and his or her stated policies. When complaints are treated as unique, to be resolved as quickly as possible – as opposed to potentially holistic, rooted in an administrative system – the information gathered will be different, and similarly the results of investigation will differ. Philosophies of investigation have seldom been articulated in the work of parliamentary Ombudsmen or in the literature about Ombudsmen. For example, the meanings of systemic investigation are seldom canvassed, nor are systemic approaches to investigation.22 Ombudsmen often see systemic investigations as large-scale by definition. However, systemic approaches are not really about scale; rather they are about apprehending and understanding grievances in terms of administrative systems minimally and within the larger society maximally. The nature and ideals of Ombudsman investigation bear further exploration and discussion. Beyond this consideration of the meaning of investigation, assuming that each office attains an explicit understanding of investigation, is the question of investigative capacity. The ability to investigate complaints hinges on intellectual and worldly resources. The intellectual abilities include the ability not only to think critically but also to foster

The Ombudsman Plan in Twenty-First-Century Canada 299

critical thinking about administrative activity. To be effective, Ombudsman investigators should also have at least a modicum of curiosity about the administrative world, a minimal understanding of how administrations operate, and some savvy regarding and compassion for the people the Ombudsman’s office encounters. There is nothing magical about Ombudsman investigation; with training, people can acquire the skills to critically appraise evidence and can learn to usefully and compassionately encounter people. Training of course brings up the worldly side of the equation. Resources, be they locational or financial or related to staffing, underlie investigative capacity. Having personnel who are knowledgeable about administration and committed to seeking administrative justice is critical. Just as technocratic Ombudsmen have emerged, so have technocratic staff who are committed to closing files but not necessarily to promoting justice. The loss of experienced and committed personnel that occurred in the Canadian Ombudsman world during the cutbacks of the 1990s and early 2000s23 has been a tremendous loss to the Ombudsman plan. Location and place are simply part of being, though their effects are seldom appreciated by Ombudsmen. The location dynamic in Ombudsmanship awaits serious analysis. Ombudsmen in Canada have by and large bought into the geographic notion of time-space compression – that is, the notion that technologies such as the Internet have significantly reduced the effects and meanings of time and space.24 But this buying in has largely been notional, ideological, and tied to financial contraints in a commonsensical way. Decisions on locations of offices or on cutting offices (because people can complain by phone and officers can investigate using phones, e-mail, and the Internet) appear to have been made based on fairly superficial understandings both of technology and geography. To be sure, some Ombudsman offices provide geographic statistics such as regional sources of complaints and types of complaints,25 but how many have used such statistics to make decisions about office location? Beyond office location, how many offices have analysed their investigative work in terms of their ability to actually investigate on the ground? That is, how easy is it to get investigators into the field or to attend meetings? No Ombudsman’s office in Canada has ever published an econometric or location analysis of its work or of its location decisions based on research techniques that are well understood in social science.

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Having the financial wherewithal to carry out investigations is critical. Of course, if one has a diminished notion of investigation, one may not need many resources at all. If an investigation simply involves asking a bureaucrat for his or her ‘side’ of the story and then assessing that story on the basis of intuition, an office can do thousands of investigations at very little cost. If an investigation actually entails gathering documentary and oral evidence and thoroughly apprehending the facts of a case, it will cost more in both time and money. Investigation is an elastic term, and what it takes to understand the circumstances of complaint varies. Some complaints may be appropriately handled with little effort, but others will require much expenditure of resources. Adequate funding has been an issue for Canadian offices, probably since they first opened but certainly since the 1990s. To meet demands given limited resources, Ombudsmen have turned to call centre Ombudsmanship. Complaints are taken in by phone or increasingly over the Internet; investigation is similarly handled. Call centre complaint handling can be highly alienating, and call centre investigation can be very ineffectual, naively affirming of the status quo. The Proliferation of Ombudsman Forms The past thirty years have seen a burgeoning Ombudsman movement, with an array of Ombuds types emerging in the private and public sectors. By and large these entities are organizational or executive Ombudsmen rather than parliamentary Ombudsmen, though there has been an increase in specialty Ombudsmen of various types whose offices are parliamentary in nature.26 In the public sector many organizations have adopted Ombuds forms to deal with a wide range of complaints. Universities, workers’ compensation boards, and various agencies have adopted Ombudspersons. The functions of such Ombudsmen are many and varied and may not be directly analogous to the functions of parliamentary Ombudsmen. Such Ombudsmen may be mediators and problem solvers primarily rather than investigators. In addition, those who do investigate usually do not have the full panoply of powers for obtaining information that parliamentary Ombudsmen enjoy. And typically, such Ombudsmen have fewer protections for witnesses and for information. The common law of Ombudsman privilege is in a primordial state in Canada.27

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Among parliamentary Ombudsmen worldwide there has been a concern for many years that the use of the term Ombudsman to describe offices that do not fulfil the functions of or have the powers of a parliamentary Ombudsmen is creating problematic, even false, expectations for people who complain to such offices. Indeed, some Ombudsmen in other countries have sought to control the use of the title ‘Ombudsman.’28 No such control or law exists in North America, however, and there has been considerable use of the terms ‘Ombudsman,’ ‘Ombudsperson,’ and even ‘Ombuds.’29 One parliamentary Ombudsman has recommended that a WCB Ombudsman be retitled a ‘fair practices commissioner.’30 The challenge for parliamentary Ombudsmen, though, is not ultimately about names. Rather, it is about helping institutions form complaint mechanisms for the people they serve. To this end, these institutions should be encouraged to work with organizations such as the Forum of Canadian Ombudsman, which provides training for Ombudspersons of all types. The Use of Persuasion in a Litigious Age The work of parliamentary Ombudsmen hinges on the power of persuasion, which itself needs to be based on a thorough understanding of the facts and circumstances of complaints as understood within broad notions of administrative justice. Ombudsmen apply understanding and common sense to persuade public agencies to effect change where change is necessary, as well as to persuade complainants when complaints appear to be unfounded. In a rights-based age, in the Charter era, when people are attuned to the courts’ power to order people and agencies to change, persuasion seems less important and perhaps even less credible. If an agency can tell the Ombudsman that his or her ideas and recommendations simply do not matter, and if the Ombudsman cannot force the agency to change, what use is the Ombudsman? Interestingly, this question has arisen less in the provincial sphere than with the federal specialty Ombudsmen, in particular the Privacy Commissioner. Privacy advocates have called for the federal commissioner to be given the power to make orders and not simply recommendations. Their belief is that this will allow for genuine adherence to privacy rules.31 There are Ombudsmen in Britain who issue orders, but this has not been the model in Canada. Ombudsmen here must use their powers of

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persuasion, which include rational argument and increasing levels of publicity. Ombudsmen are thus challenged in a way that courts and tribunals are not. But they are challenged too by the nature of the age, in which the power of courts and tribunals may be seen as necessary to get matters dealt with finally and forcefully. The Ombudsman project is different – it is about rational discussion and about faith in humanity. Beyond this, though, it is about the judicious use of publicity and knowing when to act. It is about the knowledge, character, good sense, and goodwill of the Ombudsman. By acting forcefully – that is, with sound judgment and forthrightness – by being active and visible, and by effecting meaningful resolutions, the Ombudsman will gain credibility.32 The litigious age is a profound challenge for the Ombudsman movement, but one that is not insurmountable, for the very reasons that the Ombudsman was created remain its strength. The Prospects for the Ombudsman Plan To thrive in the new century the Ombudsman plan will have to regain stature and prominence by actively engaging with public agencies requiring active investigation. Also, by cogent reporting to the public at large through educational initiatives and media-savvy actions.33 Two issues loom for the Ombudsman plan: expanded jurisdiction, and the creation of more parliamentary Ombudsmen. Expanded Jurisdiction There is considerable variation among public-sector agencies regarding the Ombudsman’s jurisdiction. Most Ombudsmen have jurisdiction over provincial ministries, tribunals, and agencies. Some have jurisdiction over municipalities.34 One provincial Ombudsman has jurisdiction over schools, hospitals, and universities as well.35 The expansion of jurisdiction amounts to an expansion of the right of complaint throughout the public sector. There is potential to expand, but that expansion will depend on the will of the legislatures, which in turn will depend on the political and financial climate of the day. Recent attempts by the Ontario Ombudsman to obtain jurisdiction over municipalities – something that is long overdue36 – have failed. Expanding jurisdiction will require maturity on the part of both governments and legislators. It will require understanding that the right of

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complaint is an important part of democracy and that criticism of executive government by a public protector is an important element of ensuring administrative fairness and promoting meaningful administrative change. Creating Ombudsmen Despite its many challenges, the Ombudsman form may provide opportunities for new agencies to solve new problems as well as old problems newly understood. New Ombudsmen, likely specialty Ombudsmen, may well appear on the scene. There remains scope for a federal Ombudsman of general jurisdiction, but even after decades of calls for such an Ombudsman, there is not one on the horizon. Still, the federal government is finding utility in the form, as the recent creation of a Veterans’ Ombudsman attests.37 At other levels, parliamentary or legislative types are likely to emerge as well. Provision has been made in Ontario’s Municipal Act and in Quebec’s Municipal Code to allow municipalities to create Ombudsmen. While not a substitute for extending full jurisdiction to the provincial Ombudsman, there is potential here to create Ombudsmen that will give some right of complaint to residents of municipalities.38 Conclusion The Ombudsman plan has survived turbulent and trying times. To fulfil the promise of the Ombudsman idea, though, parliamentary Ombudsmen must move beyond survival to engagement. Through a revival of the spirit that informed the creation of the Ombudsman offices, the development of investigative capacity, and the sound exercise of Ombudsman powers, the offices may yet thrive in such a way as to enhance their presence in the lives of Canadians and to ensure that a meaningful right of complaint about administration may be exercised by all.

NOTES 1 See Ombudsman Act R.S.A. 2000, c. O-8, s. 12; Ombudsman Act R.S.B.C. 1996, c. 340, s. 10; The Ombudsman Act C.C.S.M. c. O45, s. 18; Ombudsman

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2 3 4

5 6

7

8

9 10 11

Act R.S.N.B. 1973, c. O-5, s. 12; Citizens’ Representative Act S.N.L. 2001, c. 14.1, s. 15; Ombudsman Act R.S.N.S. 1989, c. 327, s. 11; Ombudsman Act R.S.O. 1990, c. O.6, s. 14; Public Protector Act R.S.Q. c. P-32, s. 13; The Ombudsman and Children’s Advocate Act R.S.S. 1978, c. O-4, s. 12; Ombudsman Act R.S.Y. 2002, c. 163, s. 11. [1984] 2 S.C.R 447. See note 1. Note that only the Yukon Ombudsman lacks the power to investigate on his or her own initiative. Morality and activism as facets of Ombudsmanship are explored in Greogry Levine, ‘The Engaged Ombudsman – Morality and Activism in Attaining Administrative Justice,’ in the International Ombudsman Yearbook (forthcoming). Ibid. For a discussion of the codes in British Columbia and Ontario, see Gregory Levine, ‘Administrative Justice and the Ombudsman – Concepts and Codes in British Columbia and Ontario’ (2004) 17 Canadian Journal of Administrative Law and Practice 239. See also Nova Scotia’s ‘Tools of the Trade – An Ombudsman’s Dictionary,’ in Ombudsman of Nova Scotia, Annual Report 1995–2000. See Ombudsman Act R.S.A. 2000, c. O-8, s. 21; Ombudsman Act R.S.B.C. 1996, c. 340, s. 23; The Ombudsman Act C.C.S.M. c. O45, s. 36; Ombudsman Act R.S.N.B. 1973, c. O-5, s. 21; Citizens’ Representative Act S.N.L. 2001, c. 14.1, s. 37; Ombudsman Act R.S.N.S. 1989, c. 327, s. 20; Ombudsman Act R.S.O. 1990, c. O.6, s. 21; Public Protector Act R.S.Q. c. P-32, s. 26.1; The Ombudsman and Children’s Advocate Act R.S.S. 1978, c. O-4, s. 24; Ombudsman Act R.S.Y. 2002, c. 163, s. 23. See Nova Scotia’s ‘Tools of the Trade – An Ombudsman’s Dictionary,’ in Ombudsman of Nova Scotia Annual Report 1995–2000. See also Ombudsman of British Columbia, Administrative Justice Code, 2003. Note that the Opinions and Recommendations statement of Ombudsman Ontario, completed in the mid-1990s, is no longer available on the Ombudsman Ontario website. Because it was such a straightforward yet profoundly supple outline of the meaning of s. 21 of Ontario’s Ombudsman Act, it is to be hoped that the current Ontario Ombudsman will make it or something similar publicly available. One example of a discussion of the codes is found in Levine, ‘Administrative Justice and the Ombudsman.’ For example, see Peter Bonnor, ‘Ombudsmen and the Development of Public Law,’ 9 European Public Law 237. See Roy Gregory and Philip Giddings, ‘The Ombudsman and the New

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12

13

14

15

16

17 18

Public Management,’ in Righting Wrongs – The Ombudsman in Six Continents, ed. Gregory and Giddings (Amsterdam: IOS, 2000), 425–40. For a discussion of ideals of public service and the emergence of the new public service, see Janet V. Denhardt and Robert G. Denhardt, The New Public Service – Serving Not Steering (Armonk: Sharpe, 1999). For a discussion of privatization and the Ombudsman, see Brent Parfitt, ‘The Effect of Privatization on Ombudsman Jurisdiction’ (2000) v. 4 International Ombudsman Yearbook 78. For example, in Ontario between 2000 and 2004 there were only two reports to the legislature. In 1999 there had been four such reports. In B.C. between 1999 and 2005 there were seven public and special reports that might be termed investigative (one was a follow-up to an investigation completed by a previous Ombudsman; several appear to have been reports on investigations that had begun under the previous Ombudsman’s watch). Two other reports were general in nature and to a certain extent theoretical. In B.C. there were a number of other reports related to planning and budgeting, and of course in both provinces there were annual reports each year. For example, see Ombudsman Ontario, Getting it Right (2006) – an investigation into the transparency of the Property Assessment Process and the integrity and efficiency of decision making at the Municipal Property Assessment Corporation; Losing the Waiting Game (2006) – an investigation into the unreasonable delay at the Ministry of Social Services’ Ontario Disability Support Program’s Disability Adjudication Unit; It’s All in the Name (2006) – an investigation into the complaint of the Family Responsibility Office’s ineffective enforcement using a Writ of Summons; Adding Insult to Injury (2007) – an investigation into the treatment of victims of crime by the Criminal Injuries Compensation Board; and A Game of Trust (2007) – an investigation into the Lottery and Gaming Corporation’s protection of the public from theft and fraud. See Ombudsman Act R.S.A. 2000, c. O-8, s. 2; Ombudsman Act R.S.B.C. 1996, c. 340, s. 2; The Ombudsman Act C.C.S.M. c. O45, s. 2; Ombudsman Act R.S.N.B. 1973, c. O-5, s. 2; Citizens’ Representative Act S.N.L. 2001, c. 14.1, s. 3; Ombudsman Act R.S.N.S. 1989, c. 327, s. 3; Ombudsman Act R.S.O. 1990, c. O.6, ss. 2, 3; Public Protector Act R.S.Q. c. P-32, s. 1; The Ombudsman and Children’s Advocate Act R.S.S. 1978, c. O-4, s. 3; Ombudsman Act R.S.Y. 2002, c. 163, s. 2. For example, see Roderick MacDonald, ‘Call-Centre Government: For the Rule of Law’ (2005) 55 University of Toronto Law Journal 449. The Forum of Canadian Ombudsman puts on investigative skills work-

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19

20

21

22

23 24

25

26 27

28 29

shops as well as workshops on the ‘basics’ of Ombudsmanship each year. See Ombudsman of British Columbia, Strategic Plan 2001–2005, Special Report no. 22, 2001, 14. (Interestingly, the most recent plan, Strategic Plan 2006–2010, Special Report no. 29, 2006, does not have the same thrust with respect to investigation, though it does refer to training for all staff.) To be sure, the International Ombudsman Institute and the U.S. Ombudsman Association have promoted and published materials involving the analysis of investigations, but there remains a gap in the literature. See Ombudsman Act R.S.A. 2000, c. O-8, s. 15; Ombudsman Act R.S.B.C. 1996, c. 340, s. 13; The Ombudsman Act C.C.S.M. c. O45, s. 23; Ombudsman Act R.S.N.B. 1973, c. O-5, s. 14; Citizens’ Representative Act S.N.L. 2001, c. 14.1, s. 24; Ombudsman Act R.S.N.S. 1989, c. 327, s. 14; Ombudsman Act R.S.O. 1990, c. O.6, s. 17; Public Protector Act R.S.Q. c. P-32, s. 19, 19.1; The Ombudsman and Children’s Advocate Act R.S.S. 1978, c. O-4, s. 18; Ombudsman Act R.S.Y. 2002, c. 163, s. 14. For an example of some discussion of these concepts, see Dean A. Gottehrer, ‘Investigative Skills Workshop’ presented to joint USOA/COA meetings in San Francisco, 1999, and Victoria, 2000. Also see Stephen Owen, ‘The Expanding Role of the Ombudsman in the Administrative State’ (1990) 40 University of Toronto Law Journal 670. For example, there were cuts in the offices in Ontario and Quebec in the 1990s and in B.C. in the early years of this century. For a discussion of time–space compression, see David Harvey, The Conditions of Post Modernity – An Enquiry into the Origins of Cultural Change (Oxford: Blackwell, 1989). For example, see Ombudsman of Ontario, Annual Report 2005–2006, 68, which shows complaints by provincial riding; and Annual Report 2006–2007, 63, and Annual Report 2007–2008, which show regional groupings of complaints. Or see Ombudsman of British Columbia, Annual Report 2005, 39, and Annual Report 2006, 43, which show files opened by region. Such as the Environmental Commissioner of Ontario. One recent case involving mediation information gives hope for the growth of Ombudsman privilege or something analogous that will protect executive Ombudsman confidentiality. See Rudd v. Trossac Investments Inc. [2006] O.J. No. 922 (Ont.S.C.J.). Ombudsmen Act S.N.Z. 1975, c. 9, s. 28A. Donald C. Rowat, ‘The American Distortion of the Ombudsman Concept and Its Influence on Canada,’ Canadian Public Administration 50, no. 1

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30 31

32 33 34 35 36

37 38

(2007): 42–52. Note that Rowat’s concerns are varied and include concern both about the name transformations using ‘Ombud’ and about the nature of the new ‘Ombuds’ forms. See Ombudsman of British Columbia, Fair First – An Ombudsaudit of the WCB Ombudsman, Public Report no. 37, 1999. For a discussion of the Ombudsman model and some concerns about it as well as a tribunal, order power approach, see Privacy Commissioner of Canada, Government Accountability for Personal Information – Reforming the Privacy Act (Ottawa: 2006), Pt III, Section A. See GLevine ‘The Engaged Ombudsman.’ Ibid. For example, Nova Scotia and New Brunswick have such jurisdiction. B.C.’s Ombudsman has the widest jurisdiction. Note that in the Report of the Royal Commission Inquiry into Civil Rights (1969), Justice McRuer recommended that there be an Ombudsman for municipalities. This Ombudsman is appointed pursuant to paragraph 127.1(1)(c) of the Public Service Employment Act S.C. 2003, c. 22. See Municipal Statute Law Amendment Act, 2006 S.O. 2006, c. 32, and Municipal Code R.S.Q. c. 27.1, Title XXVII. Note that Ontario municipal Ombudsmen have the function of investigating complaints about administration, whereas the Quebec version of municipal Ombudsman in the Municipal Code is very open ended as to the actual duties of the Ombudsman.

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The Institute of Public Administration of Canada Series in Public Management and Governance Networks of Knowledge: Collaborative Innovation in International Learning, Janice Stein, Richard Stren, Joy Fitzgibbon, and Melissa Maclean The National Research Council in the Innovative Policy Era: Changing Hierarchies, Networks, and Markets, G. Bruce Doern and Richard Levesque Beyond Service: State Workers, Public Policy, and the Prospects for Democratic Administration, Greg McElligott A Law Unto Itself: How the Ontario Municipal Board Has Developed and Applied Land Use Planning Policy, John G. Chipman Health Care, Entitlement, and Citizenship, Candace Redden Between Colliding Worlds: The Ambiguous Existence of Government Agencies for Aboriginal and Women’s Policy, Jonathan Malloy The Politics of Public Management: The HRDC Audit of Grants and Contributions, David A. Good Dream No Little Dreams: A Biography of the Douglas Government of Saskatchewan, 1944–1961, Albert W. Johnson Governing Education, Ben Levin Executive Styles in Canada: Cabinet Structures and Leadership Practices in Canadian Government, edited by Luc Bernier, Keith Brownsey, and Michael Howlett The Roles of Public Opinion Research in Canadian Government, Christopher Page The Politics of CANDU Exports, Duane Bratt Policy Analysis in Canada: The State of the Art, edited by Laurent Dobuzinskis, Michael Howlett, and David Laycock Digital State at the Leading Edge: Lessons from Canada, Sanford Borins, Kenneth Kernaghan, David Brown, Nick Bontis, Perri 6, and Fred Thompson The Politics of Public Money: Spenders, Guardians, Priority Setters, and Financial Watchdogs Inside the Canadian Government, David A. Good Court Government and the Collapse of Accountability in Canada and the U.K., Donald Savoie Professionalism and Public Service: Essays in Honour of Kenneth Kernaghan, edited by David Siegel and Ken Rasmussen Searching for Leadership: Secretaries to Cabinet in Canada, edited by Patrice Dutil Foundations of Governance: Municipal Government in Canada’s Provinces, edited by Andrew Sancton and Robert Young Provincial and Territorial Ombudsman Offices in Canada, edited by Stewart Hyson