Veterans Affairs Committee on Nov. 1st, 2006

[The Chair, Conservative, Rob Anders]

Welcome, folks, to yet another meeting of the Standing Committee on Veterans Affairs. We're still doing our study on the veterans ombudsman.

Today we have as our witnesses André Marin, the Ombudsman of Ontario; and Barbara Finlay, the deputy ombudsman and director of operations.

We look forward to your comments, particularly with regard to the structuring of your role and what advice you may have to give us with regard to that in structuring one federally for the veterans.

Generally what happens is that I allow 20 minutes--10 minutes each, or 20 minutes in aggregate, however you wish to split that up--and then afterwards, according to our time allocations, questions by our members.

Monsieur Marin.

[André Marin, Ombudsman of Ontario]

Thank you very much, Mr. Chair. It's indeed an honour for me to be here this afternoon. It's a topic that I hold very close to my heart, and I want to say at the outset that I've been extremely impressed by the work this committee has conducted so far and the genuine concern for getting it right and for coming to terms with this position.

I'm the only one who will make an opening statement this afternoon. It will be about 10 or 15 minutes, and then we can go to questions.

I would like to thank the committee for inviting me here this afternoon to tell you my thoughts on the creation of a veterans' ombudsman position.

I have reviewed some of the transcripts of the hearings of this committee. I congratulate each and every one of you for your impartiality and your sincere concern for current and former members of our military forces.

The government's proposal to create such an office is an important one for our veterans, many of whom have grown disillusioned with their treatment, both at the hands of the Canadian Forces and the Department of Veterans Affairs. Although I appreciate the government's cautiousness in proceeding with the implementation of this commitment and its motivation to get it right from the get-go, I would respectfully submit to this committee that this initiative is, contrary to some of the self-serving testimony you've heard so far, mostly from Department of Veterans Affairs bureaucrats, neither a costly proposition nor a complex or legally problematic venture.

A bit of history might be useful to understand the evolution, or more appropriately the bastardization in some cases, of the term “ombudsman”. A good example of this testimony was when this committee heard the “expert” testimony of Keith Hillier, the assistant deputy minister at Veterans Affairs, who's in charge of the ombudsman file for the department, during which he professed to you that the term “ombudsman” has “yet to be defined”, as if frozen in a primitive state in a twilight zone somewhere. At times, he spoke of the term as if in flux, capable of morphing into different models, depending on people's competing views.

In fact, what an ombudsman is has been well established since the appointment of the first parliamentary ombudsman, Lars Mannerheim, in Sweden in 1809. It is the role of an ombudsman to investigate citizens' complaints against the administration and to make recommendations to fix maladministration. In order to effectively conduct business, the ombudsman must be independent, impartial, function confidentially, and enjoy a credible investigative process.

Following Sweden's lead, the appointment of an ombudsman became common in the Western world. Citizens and government administrations favouring democracy and good government rightly believed that the appointment of an ombudsman produced fairer and more equitable decision-making and policies.

The creation of Canadian ombudsman offices as checks and balances for bureaucracies started in the late 60s and continued until all but one province had their own offices.

In 1978, a bill was tabled in the House of Commons to create a federal ombudsman. The bill died as a result of an election call and was never revived. The federal government then proceeded with the establishment of commissioners with focussed and specialized jurisdiction, such as the Commissioner of Official Languages or the Information Commissioner. In effect, each acts as a specialized ombudsman overseeing a narrow field of jurisdiction.

Despite the goodwill that quickly amassed behind the notion of an ombudsman as an administration watchdog, the last decade has not been kind to ombudsmanship. In what some have described as the Americanization of the classical approach, universities and private and public sector organizations increasingly appoint ombudsmen concomitant with slick marketing campaigns as a sign that they care. These positions may have public relations value or be prized as human resources or customer relations assets, but ombudsmen they are not.

The umbrella organization for these entities that call themselves ombudsmen, ombudspersons, ombuds, ombuddies, or similar names is the International Ombudsman Association, the IOA. The IOA publishes standards of practice--which I will refer to as the “ombuddy” model--that in many respects are anathema to sound ombudsmen practices.

For example, the ombudsman, according to article 2.6 of these practice directives, does not recommend solutions, but rather “helps develop a range of responsible options to resolve problems and facilitate discussion to identify the best options”. Ombuds are also encouraged to develop “consistent and standard” practices of shredding and destroying records on a regular basis--article 3.6. The standards of practice admonish that they shall keep “no records containing identifying information on behalf of the organization”. That's in article 3.5. Another interesting prohibition is against formal investigations, which, according to article 4.5, are strictly forbidden. Not only is this type of ombudsman not in accordance with the classical notion of what it is to be an ombudsman, but it is an affront to all the basic tenets of ombudsmanship.

I suspect that when senior Veterans Affairs bureaucrats speak of the variety of different ombudsman models that exist, they are keeping a door open to the ombuddy model, a door I strongly submit ought to be slammed shut by this committee. Granted, it is tough medicine for bureaucrats to be told by elected representatives that they will be overseen by a watchdog, but to succumb to the ombuddy model would be seen by veterans as the ultimate betrayal of the sacrifices they made for this country.

In my review of the transcripts of witnesses you've heard from, what is highlighted is the need to create an ombudsman as a mechanism of voice to give veterans a big group hug and a shoulder to cry on. I haven't heard of voices from the bureaucracy advocating an empowered statutory office overseeing all aspects of Veterans Affairs, reporting to Parliament or to one of its committees such as this one, with subpoena power, power of entry, and offences provided for lack of cooperation.

My office has enjoyed similar powers for over 30 years over 500 different provincial government ministries, agencies, tribunals, and crown corporations. Any person in Ontario can complain against these bodies to the Ontario ombudsman's office, and they will have the confidence that their complaint will be thoroughly, independently investigated. Why should we offer any less to the veterans?

What I've read of the transcripts of senior officials is a no-can-do, not in my back yard approach that raises imaginary barriers that, if allowed to stand, will defeat the Government's stated and important commitment to creating an ombudsman for veterans.

For example, you were told by the Chair of the Veterans Review and Appeal Board as well as the Associate Deputy Minister that the Ombudsman could not look at how the Board considers a given file or intervene with the Board as it is an independent, quasi-judicial board. That is a misunderstanding of the role of ombudsman.

There is nothing in our common law that would prevent that kind of intervention. In fact, I oversee all administrative tribunals in Ontario, from the Ontario Human Rights Commission and the Ontario Human Rights Tribunal to the Assessment Review Board. Our office has had all these powers since 1975.

How can the Ombudsman co-exist with the judicial system?

Quite simply, the Ombudsman has only a recommendatory function and not an adjudicative one. The last word will always go to the governmental body to agree or not with the recommendation, while a court decision is binding.

There also exist umbrella organizations supporting the ombudsman function. The United States Ombudsman Association, or USOA, and the International Ombudsman Institute, or IOI—of which I am North America vice-president, incidentally—pride themselves on being guardians of the legislated and effective ombudsman model.

I have consulted both presidents of these associations in preparation for this appearance. They have asked me to convey to this committee their strong support for a legislated model, with its key characteristics of independence, impartiality, confidentiality, and credible investigations. I have submitted to the clerk originals of letters from these presidents, to become exhibits for this committee. I have distributed to each member of this committee the original English letter, with a French translation.

I will conclude by submitting to you that you are the last ray of hope for veterans, many of whom have simply lost faith in government. The Department of Veterans Affairs has historically strongly opposed the establishment of an ombudsman to look over their shoulder. Now they're being told by their elected government that they will get one, notwithstanding their philosophical objections. It is now up to you, as a non-partisan committee of Parliament, to help the government shoulder this initiative so that veterans truly have an ally to slay administrative injustice. Do not be inadvertently swayed into supporting what could become a mere facade of an ombudsman's office.

Thank you, Mr. Chair.

[Voices]

Hear, hear!

[The Chair, Conservative, Rob Anders]

You used thirteen minutes. Is there anything Ms. Finlay would like to say at all?

[Barbara Finlay, Deputy Ombudsman, Director of Operations, Ombudsman Ontario]

No, I have nothing to add. Thank you.

[The Chair, Conservative, Rob Anders]

That's fine.

All right, we're going to go over to Mr. Cuzner, for the Liberals.

[Brent St. Denis, Liberal, Algoma—Manitoulin—Kapuskasing, ON]

My colleague Mr. Cuzner is going to start.

[The Chair, Conservative, Rob Anders]

He was the first one to indicate.

[Rodger Cuzner, Liberal, Cape Breton—Canso, NS]

Thank you very much for the presentation.

I have a couple of questions.

Earlier in the presentation you mentioned something about one of the significant roles and that it's imperative that there be a number or a spectrum. You said that once an offence is found or there's a problem, the ombudsman must have at its disposal a penalty or some type of recourse. What types of tools do you have at your disposal, and which ones have you exercised over the course of your experience?

[André Marin]

There are two aspects to that. First of all, you need robust investigative tools to get the job done. By “robust”, I mean power of entry, subpoena ability, the power to take testimony under oath, compulsion, cooperation, powers. You need those, on the one hand. I'm not advocating, however, that the role of the ombudsman for Veterans Affairs be anything more than recommendatory in nature.

So you have a robust, powerful investigative authority, backed up by offence provisions for lack of cooperation. Then, in classical ombudsman form, you make your recommendation, but that recommendation will be founded on the rich resources you are able to tap into. Those are the two things that I'm recommending.

The tendency in government, when they're looking at an ombudsman, is to say it's far too abrasive, it's far too offensive, that the people are nice guys, and so on. That's not the point. You don't want to put an ombudsman in the position of having to grovel, of having to arrive hat in hand, asking for you to please give them an answer.

One of the issues I used to have as ombudsman for the military was being told to put in an ATI request. Well, I'm not a member of The Citizen, I'm an ombudsman, but then I'd have to make some calls and so on. In the position I have now as ombudsman of Ontario, with subpoena ability, when I write to somebody and I say I require a statement on this, if there's any issue, I say they'll be subpoenaed. It's as simple as that.

So you need robust authoritative of power, but I'm not advocating any more than a recommendatory power in the end. The power of the ombudsman is one of moral suasion, nothing more, and that works.

[Rodger Cuzner, Liberal, Cape Breton—Canso, NS]

In your experience, have you found...? Has it been your experience that this power that's included in the legislation has been adequate, or has the Office of the Ombudsman had to go back and recommend changes in legislation in order to carry out your duties or to garner further support? Has that sort of grown, expanded, matured over the period of time that the ombudsman's office has been in place?

[André Marin]

No, we enjoy the exact same status as in 1975.

[Rodger Cuzner, Liberal, Cape Breton—Canso, NS]

In 1975.

[André Marin]

Yes.

As ombudsman, what you do is talk softly but carry a big stick. And the stick is the ability to blow the whistle publicly on maladministration. So there are no penalties involved. Your recommendations are merely recommendations, but they have authority because you've reached into an organization, grabbed the evidence and you are articulating it in a convincing fashion.

[Rodger Cuzner, Liberal, Cape Breton—Canso, NS]

Give me some references as to how many cases you would have ongoing each year. Sort of give me an accounting and the cost of the operation.

[André Marin]

First, on the costing of our operation, when I'm reading the transcripts and I see these costs that are thrown about and when you throw all these inflated numbers around, it scares people off and they don't want to provide any power to the office because we don't have the funds.

There was a suggestion that I read in the transcript, for example, that you need to fund the office with $8 million or $9 million, and then you'd have to create a parallel office in the department, which would be another $8 million or $9 million. I don't know what they're talking about. I oversee all the provincial government, 500 ministries and agencies. There's no shadow organization in the Ontario government to respond to me. So I don't know where....To me, that is again a defeatist approach. Are you going to have a shadow ombudsman's office in the department to keep an eye on the main office? Again, you'd have an overlap in bureaucracies.

We take 24,000 complaints a year in the Ontario ombudsman's office. We have a budget of $9.6 million to oversee all of those, including dozens and dozens of administrative tribunals. Of our case resolution, 90% is done by using diplomacy and soft skills. I call it the “soft glove” approach. You try to convince, informally, the vast majority of those.

Then we take about six out of the pile to conduct systemic field investigations. These are investigations where you investigate to the core. You interview witnesses. You build transcripts. You'll avail yourself of the formal authorities of the office. We do that in about six cases.

Right now, for example, we're investigating the lottery corporation in Ontario. That is a systemic investigation, because there are issues that have been raised about insiders padding their pockets with winnings that they've fraudulently acquired. So that is a systemic investigation involving billions of dollars in Ontario. That's an example of our formal ways.

Our phones are ringing every day, our Internet, to the tune of 24,000 cases a year.

[Rodger Cuzner, Liberal, Cape Breton—Canso, NS]

On the cases you're not able to arbitrate or to bring resolution to, or where you feel that due diligence or due process has been pursued, are there a fair number of cases where the client or the person putting forward the complaint would go beyond the Office of the Ombudsman and pursue litigation, or is your word final? In most cases, are you finding that your word is final?

[André Marin]

Normally, the Office of the Ombudsman is the office of last resort. It doesn't preclude legal action, though. Complainants are free to use the courts.

[Rodger Cuzner, Liberal, Cape Breton—Canso, NS]

Would you have any kind of sense that there has been much of that, or are they--

[André Marin]

To my knowledge, normally when they come to us they don't go to the courts afterward. We are really a last resort. We've gotten involved in cases where there were class action lawsuits. Then they come to us. We resolve it and there's no class action lawsuit.

A good example is an investigation we did in Ontario about special needs children, where the government was being sued for not supporting families with special needs children. It was a class-action lawsuit in which we got involved. So it doesn't preclude legal proceedings, but normally once we're involved it discourages proceedings before courts.

This is another advantage to having an ombudsman.

[Rodger Cuzner, Liberal, Cape Breton—Canso, NS]

Thank you.

[The Chair, Conservative, Rob Anders]

Mr. Perron, for seven minutes.

[Gilles-A. Perron, Bloc, Rivière-des-Mille-Îles, QC]

Good day, Mr. Marin. Thank you for being here. I appreciate your submissions because they are clear, straightforward and specific.

I’m going to start with a little criticism of your brochure. It says that, in Ontario, the Ombudsman is the watchdog of Ontario. You know the word “dog” is not allowed here in the forum of the Parliament of Canada. It’s a bad joke.

Seriously, Mr. Marin, who is your superior?

[André Marin]

The Legislative Assembly of Ontario.

[Gilles-A. Perron, Bloc, Rivière-des-Mille-Îles, QC]

So you recommend that the veterans' ombudsman report to the House of Commons?