Beyond Scrutiny: Opening up the MUSH sector to oversight
Annual Report 2010-2011
Municipalities, Universities, School boards and Hospitals, together with other public bodies providing vital services such as long-term care homes, children’s aid societies and police, comprise the “MUSH sector.” None of these organizations are open to review by Ontario’s Ombudsman, whose oversight in this sector continues to be the most limited in Canada. The table below compares the jurisdiction of all provincial ombudsmen with respect to the MUSH sector.
Every year, the Ombudsman’s Office receives many compelling complaints about MUSH sector services that we are forced to turn away. In 2010-2011, 1,963 such cases were received, as detailed in the accompanying chart.
It has now been more than 35 years since Ontario’s first Ombudsman, Arthur Maloney, called for expansion of the Office’s authority to include this sector. In recent years, a host of private member’s bills, petitions and public demonstrations have appealed to government to change this, but none have been successful.
On November 15, 2010, NDP MPP Rosario Marchese introduced private member’s Bill 131, the Ombudsman Amendment Act (Designated Public Bodies), 2010, for first reading. The bill provides for the Ombudsman’s authority to be extended to apply to hospitals, long-term care and retirement homes, school boards and children’s aid societies. Mr. Marchese reintroduced his bill on April 19, 2011 as Bill 183, the Ombudsman Statute Law Amendment Act (Designated Public Bodies), 2011, adding universities and the Office of the Independent Police Review Director to the list of organizations that would fall under the Ombudsman’s expanded jurisdiction. On May 5, 2011, the bill was defeated at second reading.
Petitions have been circulated and public rallies have been held in support of Mr. Marchese’s efforts, including in Toronto, Sudbury, Cornwall, Kingston, London,
Owen Sound, Pembroke, Peterborough, Sault Ste. Marie, Timmins and Woodstock. Many supporters turned out to watch the vote in the Legislature on May 5. Trustees at the Bluewater District School Board in Bruce and Grey counties also voted unanimously to support the bill in a letter to the province in early May.
“There’s enormous frustration out there. When people with complaints about these public institutions try to get answers, they hit a wall. Ontarians need somewhere to turn to when no one else is listening.”
– NDP MPP Rosario Marchese, November 17, 2010
The MUSH sector is accountable for 50% of provincial government expenditures. The province has responded to growing concerns about spending practices in the broader public sector by increasing its financial transparency, requiring greater financial disclosure, subjecting these organizations to value-for-money audits, and providing more direction relating to expense practices. However, no progress has been made in opening these organizations to Ombudsman review of the policies and practices that directly affect Ontarians in their daily lives.
Since 2008, the Ombudsman has had the authority to investigate complaints about closed meetings in Ontario municipalities (more detail about this can be found in the Open Meeting Law Enforcement Team section of this report). But the Ombudsman has no authority to consider complaints about local government. Municipal issues affect citizens where they work and live – and not surprisingly, many spark complaints. The Office received 758 complaints and inquiries about municipalities on a wide range of topics in 2010-2011, including:
• problems with permits and licences;
• inconsistent, inadequate and inappropriate bylaw and building code enforcement;
• conflicts of interest involving municipal officials;
• unsafe conditions, evictions, and delays in obtaining public housing;
• errors and poor service in welfare administration; and
• billing errors and threats of disconnection relating to local utilities.
The City of Toronto is the only municipality in Ontario with its own ombudsman, established in 2009, and when appropriate, we refer complaints to that office. However, we must turn away hundreds of complaints about other municipalities.
The Ombudsman has jurisdiction over Ontario’s 24 colleges of applied arts and technology, and has resolved student complaints and initiated several systemic changes (some of these cases are included in the Case Summaries section of this report). Unfortunately, the Office is unable to achieve similar results for people complaining about Ontario universities. There were 39 complaints and inquiries about universities in 2010-2011, including allegations of poor service, inadequate handling of complaints, problematic program requirements and practices, and student suspensions. None of these complaints could be investigated.
In 2010-2011, the Ombudsman received 99 complaints and inquiries about school boards, involving such serious issues as inadequate responses to bullying of students, insufficient support of children with special needs, student transportation, and discipline, including student suspensions.
Giving the Ombudsman power over school boards would allow parents to hold the school boards and the provincial government accountable. We must demand accountability and transparency.
– Dominic Peluso, Letter to the Editor, Mississauga News, September 17, 2010
“I think everyone needs an area where they can go and have someone further investigate.”
– Linda Steel, trustee, London District Catholic School Board, quoted in the London Free Press, May 10, 2011
There is one exceptional circumstance when a school board is open to Ombudsman scrutiny: When it is directly taken over by the government, through the appointment of a provincial supervisor. This occurred in 2009 with the Toronto Catholic District School Board. The Ombudsman received two complaints relating to the board, which were resolved informally. On January 28, 2011, an elected board of directors replaced the supervisor, meaning the Ombudsman no longer has oversight of this board.
Hospitals and long-term care homes
The Ombudsman received 325 complaints and inquiries about hospitals and long-term care homes in 2010-2011 (291 for hospitals; 34 for long-term care homes). Many complainants raised serious issues including allegations of unsafe conditions, inadequate care, neglect and abuse of patients.
While the Ombudsman cannot investigate long-term care homes directly, he is able to review the Ministry of Health and Long-Term Care’s involvement in this area. In December 2010, the Ombudsman announced the results of his investigation into the province’s monitoring of long-term care homes. Details of this investigation are contained in the Special Ombudsman Response Team section of this report.
“We get thousands of complaints a year, so we would welcome the addition of the Ombudsman looking at some of these issues and providing some remedies.”
– Judith Wahl, Advocacy Centre for the Elderly, as quoted by CBC News, November 14, 2010
Provincial expenditure in the health care sector continues to grow rapidly, with hospitals and long-term care homes receiving about $18 billion a year. These organizations have become increasingly subject to greater financial scrutiny. As a result of amendments ushered in by Bill 122, the Broader Public Sector Accountability Act, 2010, hospitals will become subject to the Freedom of Information and Protection of Privacy Act on January 1, 2012. However, an amendment introduced in the provincial budget and passed on May 12, 2011 will further restrict access to information relating to assessing or evaluating quality of health care.
Significant administrative decisions and omissions affecting the health and welfare of millions of Ontarians remain immune from Ombudsman oversight. Ontario continues to be the only province whose Ombudsman has no authority to investigate hospitals. In Saskatchewan, for example, the government allocated close to half a million dollars in additional funds in 2010-2011 to support its Ombudsman’s oversight of health care complaints.
Ontario’s Ombudsman is only able to consider complaints about hospitals in the exceptional case when they are directly taken over by the province, through the appointment of a supervisor. In 2010-2011, Cambridge Memorial Hospital was under supervision until October 22, 2010, and Hotel-Dieu Grace Hospital in Windsor was placed under supervision on January 4, 2011. The Ombudsman reviewed 22 complaints about these hospitals in the past fiscal year, ranging from billing issues to service delays to inadequate conditions. Complaints about treatment by medical practitioners were directed to the appropriate professional regulating body, as these are not within the Ombudsman’s mandate. All complaints were quickly assessed and resolved.
Children’s aid societies
Ontario’s children’s aid societies (CASs) are responsible for protecting thousands of the most vulnerable members of our society. Ontario is unique. No other province outsources child protection, and no other provincial ombudsman is prevented from reviewing allegations of maladministration relating to child protection.
The cost of publicly funding this system has tripled over the last decade, and at present, CASs spend about $1.4 billion annually in carrying out their crucial task. CASs are powerful agencies that have serious impact on the lives of children and families, and each year, the Ombudsman receives hundreds of complaints about them. Unfortunately, our Office is powerless to assist these people, even in the most egregious cases.
In 2010-2011, the Ombudsman received 386 complaints and inquiries about Ontario’s child protection services (more than the previous year’s 296; less than 2008-2009’s total of 429). These included concerns about:
• opaque investigation and complaint processes, including refusal to investigate allegations of abuse, neglect or CAS staff misconduct;
• biased and incompetent investigations;
• apprehension of children and the care of children in CAS custody;
• inaccurate CAS records and misrepresentation of information to the courts;
• failing to disclose information to parents, or placing unreasonable demands on parents seeking visitation and access; and
• staff misconduct towards parents, including threats and harassment or reprisal actions against parents who challenged CAS decisions.
Some parents also alleged they had been pressured by CASs to relinquish custody of their severely disabled children in order to obtain necessary residential care for them. The Ombudsman has been monitoring this serious, persistent issue since his 2005 report, Between a Rock and a Hard Place. More information on this can be found in the Special Ombudsman Response Team section of this report.
CASs have persistently opposed opening up their operations to Ombudsman oversight. They argue that CASs are already subject to multiple layers of review; by the Ministry of Children and Youth Services, the Provincial Advocate for Children and Youth (which lacks investigative powers), the Auditor General (which may only conduct value-for-money audits), the Office of the Chief Coroner and Pediatric Death Review Committee (which can only become involved after a child has died), the Child and Family Services Review Board, and the courts. None of these organizations has the broad general authority of an Ombudsman to investigate complaints about serious allegations relating to the administration of CASs and to make remedial recommendations. And no effective mechanism exists to investigate and address serious problems before a crisis occurs.
“Ombudsman oversight is vital to ensuring the best interest of Ontario’s vulnerable children and youth.”
– Michele Farrugia, Foster Care Council of Canada, as quoted by the Canadian Press, November 10, 2010
“I can’t think of any area more ripe for oversight than child welfare. Children die and no one takes responsibility, no one answers the important questions. It’s just so sad.”
– Ombudsman André Marin, as quoted in the Toronto Star, February 23, 2011
In 2006, the mandate of the Child and Family Services Review Board was expanded to consider complaints about services provided by CASs. However, the board’s authority extends only to procedural issues, and standing to make a complaint is limited to those actually “seeking or receiving service” from a CAS, often leaving grandparents and other concerned relatives without recourse to complain. The board cannot address serious concerns about the conduct, policies and practices of CASs. Its authority is restricted to dismissing a complaint or ordering a CAS to process or respond to a complaint, comply with the complaint review procedure, or provide written reasons.
This very limited oversight was confirmed in a recent court case. On July 20, 2010, in a case known as Children’s Aid Society of Waterloo v. D.D., the Divisional Court found that the Child and Family Services Review Board had exceeded its authority when it considered a mother’s complaint about CAS conduct during a period covered by an interim court order (the decision is currently under appeal). Our Office received 14 complaints about the board in 2010-2011. Many of those who complained expressed frustration over the limited powers of this agency.
The Commission to Promote Sustainable Child Welfare, established by the government in November 2009, is due to issue recommendations in September 2012 on ways to make Ontario’s child welfare system, including CASs, more accountable, efficient and sustainable. Based on the many supportive submissions we have received from citizens, adding Ombudsman oversight to the accountability framework for child protection would go a long way to satisfying public concerns about the present complaint process.
As with other MUSH sector institutions, the one rare circumstance where a children’s aid society can be subject to Ombudsman oversight is when it is directly taken over by the province through the appointment of a supervisor. On October 13, 2010, the Huron Perth CAS came under supervision after it threatened to close due to a funding shortfall. As of March 31, 2011, the Ombudsman had received 33 complaints regarding this agency. Many raised serious concerns about the treatment of children in care, and inappropriate conduct on the part of child protection officials. All were assessed and resolved quickly.
The Ombudsman received 356 complaints about police conduct in 2010-2011. These were referred to the Ministry of the Attorney General’s Office of the Independent Police Review Director (OIPRD), where appropriate. The Ombudsman also received 15 complaints about the OIPRD itself, relating to its service delivery and treatment of public complaints about police. Unfortunately, the Police Services Act bars the Ombudsman from overseeing this agency.
The Ombudsman provided the OIPRD with information on 112 complaints our Office received about police behaviour during the G20 summit in Toronto in June 2010. These complaints were received in connection with the Ombudsman’s investigation into the Ministry of Community Safety and Correctional Services’ decision to expand police powers during the summit. (That investigation is summarized in the Special Ombudsman Response Team section of this report.) They included allegations of aggressive or inappropriate comments and excessive force by police, wrongful detainment and arrest, aggressive behaviour, police use of the tactic known as “kettling” to control demonstrators, and conditions in the temporary detention centre. At the time this report was written, the OIPRD was preparing a report on the policing of the G20.