In his 2011-2012 Annual Report, Ontario Ombudsman André Marin is calling on the government of Ontario to protect the public interest in tough economic times by ensuring citizens have the opportunity to complain to his office – as more than 18,500 of them did in 2011-2012 (up 27% from the previous year).

As the province grapples with the deficit and looks for ways to reduce costs, the Ombudsman can help ensure accountability and fairness in public services, as long as those services fall within his mandate, the Ombudsman says in his latest Annual Report, released on June 19.

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Ombudsman's remarks
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2011-2012 Annual Report - Video

Ombudsman André Marin discusses the 2011-2012 Annual Report.

Ombudsman's Message: Limit Spending, Not Fairness

As I write this message, I am acutely aware that Ontario’s public service and its citizens are bracing for the impact of new cost-containment measures. To their immense credit, parliamentarians and senior government officials have continued to show support and respect for the work of my Office. They have recognized the value of Ombudsman oversight, even in tough times, as a means to ensure accountability and spur increased efficiency and fairness in the provision of public services.

Through the dedicated efforts of my staff, my Office has been able to return good value for public dollars spent. As we close the books on our operating year 2011-2012, we have seen a significant increase in complaints and inquiries (27%), with 18,541 cases opened.

The Operations Overview and Case Summaries sections of this report contain ample evidence of how our Office has helped Ontarians navigate the complexities of government bureaucracy – and flagged problems to the bureaucracy before they mushroomed. We have helped severely disabled children and adults obtain access to necessary resources, such as home care, medical assessments, residential placements, assistive devices and drug funding. We have ensured money improperly collected is returned and charges arising from bureaucratic bungling reversed. We have prompted corrective action where there has been only delay, inattention, or defensiveness. And we have served as a catalyst for better communication, improved policies, and more common sense and compassion in public administration.

With its latest budget, the province has signalled that we are moving to a new level of austerity in public spending, as it grapples with a deficit of some $15 billion. Fiscal restraint will undoubtedly affect the citizens of Ontario, as services and programs are scaled back or eliminated. While Ontarians understand the need for belt-tightening, it is crucial that efficiencies and savings are not achieved at the expense of fairness and good public administration. My Office can help ensure that, despite spending cuts, citizens continue to be treated reasonably, fairly and justly. This is why I recently sounded a public warning about proposed shifts, through the budget and other means, of the delivery of public services to private agencies, private-public hybrids and/or “delegated administrative authorities.” The issue is not privatization, but the spectre of these services – without proper legislative safeguards – being removed from Ombudsman scrutiny, leaving Ontarians no recourse to complain about them or have them independently investigated. We do not want to go down that slippery slope of oversight erosion.

This past year, throughout our Office, we employed innovative, cost-effective and efficient ways to communicate with Ontarians, including pioneering the first Ombudsman mobile “app” and conducting training and confidential interviews using Internet video messaging (Skype). We hope to encourage government through our example to embrace modern interactive technology to improve the accessibility and effectiveness of public services.

“My Office can help ensure that, despite spending cuts, citizens continue to be treated reasonably, fairly and justly.”

We also continued to focus attention on significant systemic issues, achieving maximum benefit from our investigative resources – a model that has been emulated by other ombudsmen around the world (as noted in this report’s Consultation and Training section). Our Special Ombudsman Response Team investigation into non-emergency medical transportation services led to a government commitment to regulate this industry to better ensure the health and safety of Ontario’s citizens. And just months into our review of Herceptin funding for breast cancer patients, the
government agreed to increase access for patients with small tumours. Legislation was also introduced in February 2012 to do away with the archaic Public Works Protection Act – which featured so prominently in the policing of the 2010 G20 summit in Toronto – as I recommended in my 2010 report, Caught in the Act.

Investigating the investigators

In September 2008, I issued Oversight Unseen, my first investigative report relating to the Ministry of the Attorney General’s Special Investigations Unit (the SIU). Aside from some recent backsliding, when some SIU investigators displayed signs of pro-police bias, since that time, the SIU has generally demonstrated greater investigative rigour
in its dealings with police. However, the Ministry of the Attorney General’s failure to follow through on my recommendations was the focus of my second investigation, reported in Oversight Undermined, issued in December 2011.

In Oversight Undermined, I found lack of police co-operation continued to frustrate the SIU in its efforts to investigate serious injuries and deaths of civilians and that the Ministry was undermining the SIU’s ability to function effectively. I again put forward recommendations for reform, including proposing penalties for non-compliance.

In the wake of that report, the SIU has observed a significant increase in notifications from police officials about incidents coming within its mandate – from 57 in the first quarter of 2011 to 101 in the first quarter of 2012. My report also resonated in a number of Ontario communities – for instance, in Windsor, where the police chief retired suddenly, and in Ottawa, where the police chief pledged to respond (though not necessarily substantively), to every SIU letter in future.

Ontario Ombudsman Andre Marin at the press conference for his December 2011 report, Oversight Undermined.

Ombudsman André Marin releases Oversight Undermined, his report on his second investigation involving the Special Investigations Unit and the Ministry of the Attorney General, on December 14, 2011

“The SIU has observed a significant increase in notifications from police officials about incidents coming within its mandate.”

Requests for leave to appeal and cross-appeal the Ontario Court of Appeal’s decision in the case of Schaeffer v. Ontario (Provincial Police), which put a stop to the thorny problem of lawyers vetting police notes, have been made to the Supreme Court of Canada. That court’s consideration of this matter has the potential to affect the integrity of future SIU investigations.

While modest progress has been made to date in the area of SIU oversight of police, I continue to monitor this situation closely, and if necessary, will launch a third investigation. Further details about my latest investigation and updates on others can be found in the Special Ombudsman Response Team section of this report.

Clear as MUSH

Unfortunately, there are many organizations that provide direct and vital public services to Ontarians, without the important check and balance of Ombudsman oversight.

Government continues to spend tens of billions of dollars each year funding the MUSH sector, comprised of municipalities, universities, school boards and hospitals, as well as children’s aid societies, long-term care homes and the police.

I have followed my Ombudsman predecessors in repeatedly calling for modernization of my mandate to include the MUSH sector. The reason is simple. MUSH organizations have a profound and immediate effect on the lives and welfare of individual citizens. They impact Ontarians where they work, live and play, and when they are at their most

This has been clear even in the one narrow area of this sector where my office has a sliver of jurisdiction: Investigating public complaints about closed municipal meetings. People care a great deal about openness at the local government level, and when doors are closed to them, they complain. We saw a substantial increase in these cases this year (to 119, up from 84 in 2010-2011). Because these investigations – handled by our Open Meeting Law Enforcement Team – involve important issues of transparency and open government, I have decided to devote a separate Annual
Report to them, to be tabled later this year.

Sadly, as the next section of this report details (Beyond Scrutiny: The Push for Mush), despite a succession of private member’s bills, public petitions, and the dedicated efforts of advocacy groups, Ombudsman oversight of MUSH bodies in general remains off the government agenda, and Ontario continues to rank dead last when it comes to giving its Ombudsman authority in these zones of immunity. Last year, my ombudsman colleagues across Canada were able to achieve concrete results, helping students get a fair shake at universities, looking into hospital and treatment wait
times, infection control protocols and billing issues, and assisting seniors in long-term care homes and parents dealing with child protection officials. However, we turned away a record 2,539 MUSH cases in 2011-2012 – up from 1,963 in the previous year.

“Ontario continues to rank dead last when it comes to giving its Ombudsman authority in these zones of immunity.”

Give us an “H” – Hospitals

Of particular concern to me this year is the “H” in MUSH.

Since 2005, there have been four private member’s bills, and more than a dozen petitions tabled, calling for the Ombudsman’s jurisdiction to be extended to hospitals. While the government spends some $15 billion annually on hospitals, and has recently indicated that it wants to increase efficiencies in the health-care sector, to date, it has resisted turning to the Ombudsman as a means of effectively resolving complaints about hospital administration.

Illustration of a walled hospital that the Ombudsman cannot access

It is hard to find someone in Ontario whose life hasn’t been touched by a local hospital. You may have had to wait for hours in a crowded emergency room to be seen by a doctor, or watched a family member die tragically of a hospital-acquired infection. Or you may simply have been mystified by hospital policies, practices or
procedures that appear to defy common sense.

When something goes wrong at a hospital, if you or your loved ones suffer because of unfair, unreasonable or negligent administration, where can you turn? In every other province, you can call on your Ombudsman for help. But not in Ontario.

In the spring and summer of 2011, a C. difficile epidemic concentrated in the Niagara region swept the province, resulting in more than 30 deaths, and the appointment of a supervisor to take over the Niagara Health System hospital sites. While recourse to my Office wouldn’t obviate the need for government intervention in extreme cases, the experience of other provinces has shown that Ombudsman oversight can be an effective and efficient way to address improvement in hospital practices and protocols.

This past year, the media highlighted cases where hospitals required patients to call 911 for help getting to the emergency room, even though they were at the hospital already. While the affected hospitals committed to reviewing the incidents, resolving these types of administrative issues is the bread and butter of Ombudsman work. Instead of addressing such cases internally, institution by institution, on a piecemeal basis, Ombudsman oversight would allow for broader review and recommendations to improve the hospital system as a whole.

“The experience of other provinces has shown that Ombudsman oversight can be an effective and efficient way to address improvement in hospital practice.”

Whenever the subject of Ombudsman oversight over MUSH bodies comes up, MUSH sector administrators invariably protest that avenues of redress already exist. In the hospital sector, this argument is particularly weak. You can complain about medical professionals to their respective regulatory bodies. But if you have a concern about hospital administration, your only recourse is to contact the hospital’s own in-house patient relations officer, advocate or ombudsman. Whatever their title, these hospital officials are a poor substitute for impartial Ombudsman oversight. The bottom line is that these officials work for hospitals, not patients. They have no independent authority or formal powers of investigation. They cannot exercise moral suasion through public reporting to encourage systemic change. At best, they operate as internal customer relations departments – clearing houses for complaints. And as the cases noted in the next chapter demonstrate, at worst, they may be unresponsive, insensitive, and/or apologists for hospital interests.

In an article published this April in the Canadian Medical Association Journal, researchers promoted the adoption of patient charters of rights, including recourse to an independent complaints process, through an ombudsman or commissioner. With respect to the current reliance on internal complaint handling, they observed:

“[P]atients may question the independence of these internal processes given the institution’s interest in protecting its own reputation and its close relationship to medical staff…

“[M]oral suasion from a sufficiently resourced and independent ombudsman or commissioner can positively drive system change.”

While it is laudable that the hospitals must now comply with freedom of information measures, making public large amounts of previously inaccessible raw information, it remains just that – raw information. There is still no body that can connect the dots, investigate, review the evidence and determine whether problems in hospitals stem from a deeper systemic malaise – or recommend how they can be healed.

As budgets shrink, there is an even greater need to ensure that economy doesn’t trump fairness and common sense in the delivery of health care services. The government may wish to reflect on why Ontario remains the only province that has not given its Ombudsman the ability to help citizens with their hospital complaints.

Policing the police

This year, we continued to see a flood of concerns expressed publicly about another MUSH area – police. The credibility of police in this province is increasingly coming under scrutiny as citizens await the outcome of charges arising from the policing of the 2010 Toronto G20 summit and ponder recent media stories about officers caught
lying in court and a Windsor detective convicted in a brutal assault.

Police cannot effectively carry out their mandate “to serve and protect” unless they enjoy the confidence and trust of Ontarians. It is one of the reasons I have devoted considerable attention to the SIU, which plays a critical role in police oversight. Unfortunately, while the SIU comes under my authority, its cousin, the Office of the Independent Police Review Director (OIPRD), does not. The OIPRD reviews internal police investigations of public complaints, and, in some cases, conducts its own investigations. It has enjoyed a relatively low profile since it opened in October 2009.
However, in July 2010, the OIPRD announced a “systemic review of G20 police complaints” after receiving hundreds of complaints, including a number referred by my Office. On May 16, 2012, nearly two years after the G20 weekend, the OIPRD released its report. The Director found, based on hundreds of interviews with police and civilians, that many officers had “ignored the basic rights that citizens have under the ... Charter,” and used excessive force in several incidents over those days in June 2010. He also noted that there were long delays in police turning evidence over to his office. Aside from the recommendations in his review, the Director also recommended charges for misconduct in a number of G20-related incidents – but in at least some of the cases, the police union response was that too much time had passed.

My Office has received complaints about the adequacy of the OIPRD’s investigative processes (37 this past year), but as it is outside of my mandate, I cannot intervene. I continue to believe – as I stated before the legislative amendments creating the OIPRD were passed – that making the OIPRD accountable to my Office would assist in
building public confidence in Ontario’s police community.

“Police cannot effectively carry out their mandate ‘to serve and protect’ unless they enjoy the confidence and trust of Ontarians.”

Putting the accountability squeeze on Ornge

Finally, I would like to address an organization that has recently served as a lightning rod for debate in the Legislature and that clearly demonstrates the need for Ombudsman scrutiny.

When Ontarians spot the air ambulance service’s signature orange helicopters hovering overhead these days, they are more likely to be reminded of Ornge’s service problems and spending abuses than its emergency patient transfers. In the fall of 2011, the public learned that the federally incorporated non-profit company, which has held a monopoly on administering air ambulance services in Ontario since 2005, and received some $150 million in public funding annually to do so, had played fast and loose with public funds and trust.

Ornge has been embroiled in a multi-million-dollar scandal that has seen its chief executive officer turfed, its board of directors replaced, a Ministry of Finance forensic audit, a scathing special report by the Auditor General, hearings by the Standing Committee on Public Accounts, and an ongoing police investigation into financial irregularities. This is an organization that is crying out for independent oversight.

“When an entity goes rogue, and its board goes AWOL, who safeguards the public interest? That’s the challenge [Premier Dalton] McGuinty’s government must wrestle with…

“McGuinty acknowledges losing sleep over the various agencies, boards, commissions – and quasi-public hybrids such as Ornge – that deliver major public services. It is a major topic of debate within his office…

“‘Why can’t we have people who see around corners?’ McGuinty continues. ‘We need to find a better way to anticipate these things and uncover these things in government before they take place.’”

Martin Regg Cohn, Toronto Star, May 7, 2012

Even though we have no jurisdiction to investigate Ornge, my Office has received 17 complaints about its operations since 2005, including allegations about misuse of funds. While we made inquiries and referrals where we could, we were unable to directly assist these complainants. The Auditor General reviews financial matters, but he does not investigate complaints, and typically, only conducts value-for-money audits periodically. Who knows? If we’d had the ability to investigate allegations about Ornge received from patients and their families, industry insiders and whistleblowers, we might have been able to prompt the government into taking action to rein in Ornge sooner. This is exactly the kind of proactive work we have done with many ministries and organizations, as the Operations Overview section of this report attests.

There have been remarkable turnarounds in the many Crown corporations, agencies, boards and commissions I have investigated since 2005. The Ontario Lottery and Gaming Corporation (OLG), the Municipal Property Assessment Corporation (MPAC) and the Criminal Injuries Compensation Board (CICB) – to name just three well-known examples – had all lost sight of the public interest. Lottery players, property owners and crime victims were all but abandoned to motives of profit, secrecy and inertia. But my recommendations, implemented by government, helped them get back on track – as the CICB chair notes in the Your Feedback section of this report. Similarly, in 2008, the OLG’s board of directors offered this summary of how my investigation into insider ticket theft and fraud changed the organization’s culture:

“The ‘shock’ of the Ombudsman’s report brought about deep and systemic change within the Corporation in very short order. It is unlikely that this could have been achieved through more conventional or traditional means of organizational reform.”

With the introduction of Bill 50, the Ambulance Amendment Act (Air Ambulances), 2012, the government has a unique opportunity to ensure that what happened with Ornge is never repeated. As Parliamentarians proceed with their consideration of Bill 50, I encourage them to consider adding a provision including air ambulance service providers under my authority, as has already been suggested by some Members of Provincial Parliament. Similarly, Parliamentarians should heed the lessons learned from the Ornge debacle when considering the measures proposed
in schedules 16 and 28 to Bill 55 – the budget bill. While alternative delivery of government services and regulatory programs might result in cost savings, it could also come at the heavy price of reduction of Ombudsman oversight.

Back to the future

Since 1975, the Ontario Ombudsman’s Office has served as an effective buffer between citizens and government administration, particularly during lean economic times. My Office is poised to take on the challenges in 2012-2013 of oversight in an environment of fiscal restraint. We will be on watch to ensure that fairness to Ontario’s citizens is not reduced, as administrators focus on limiting public spending.