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Annual Members’ Meeting
Ontario's Ombudsman uses moral suasion
to push accountability and the public interest
When you don't have authority to make direct change, you do what André Marin does. Ontario's ombudsman resorts to "moral suasion" – backed by extensive data drawn from exhaustive investigations and research – to persuade others what's in the public interest.
"At the end of the day, the only thing I can do is to make a recommendation," Marin told attendees at the College's annual meeting of members in June. The guest speaker brought his message to a standing-room-only audience at the College's first annual meeting at its new location.
The Ontario ombudsman is an officer of the legislative assembly who oversees more than 500 provincial ministries, agencies, corporations, boards, commissions and tribunals. He has strong powers of investigation but no power to enforce.
Moral suasion, said Marin, is using strong evidence, sensible recommendations and political pressure to create change. "I have to convince people in power to move in my direction."
The ombudsman said that the world of social media, including Twitter and Facebook, is forcing governments across the world to be much more transparent. "If governments want to survive, they will have to face the reality of a new degree of openness that has never been seen before."
It helps to have compelling stories to tell. Marin does. His office manages 15,000 cases a year.
Fraud at the Ontario Lottery and Gaming Corporation (OLG). Rule adherence at the Criminal Injuries Compensation Board. The "sneaky" use of old legislation during the G20 summit. Marin makes legends out of the messes his office confronts daily.
For example, the ombudsman detailed the case of the late Bob Edmonds, a Coboconk man who complained to the OLG about being defrauded of lottery prize money by a convenience store owner who claimed his winning ticket as her own in 2001. Edmonds, who had played the same numbers for years, went in one week to ask the retailer if he'd won, was told no, and then a week later saw her on television holding up a cheque. She had won with his numbers. Marin said that Edmonds's complaint to the OLG met with disinterest. They told him that if he had a problem he could sue the store owner and that the OLG wouldn't intervene.
"It appeared to us that the lottery corporation was more concerned about protecting the reputation of the lottery system and not creating doubt rather than dealing with a situation brought forward by a citizen of Ontario," said Marin.
Through interviews and investigation, the ombudsman's office found that lottery officials knew there was good reason to distrust their system.
"We found an e-mail from a senior official to the CEO asking, 'What do we do about this?' And we found the reply from the CEO saying, 'Sometimes you just hold your nose.' "
Following the ombudsman's investigation, report and recommendations, the province fired the CEO. Audits revealed that more than $198 million had been won in suspicious circumstances by insiders over 13 years. The Ontario Provincial Police laid charges. The OLG itself said the most noteworthy change to follow was a shift in culture, "a shift that has moved the OLG away from being driven by profits only."
"A lot of these cases seem like no-brainers in retrospect," Marin said. "We often find a lot of entrenched resistance. It's not easy to convince people to look beyond that."
Marin's office also investigated the Criminal Injuries Compensation Board (CICB) after receiving complaints that the organization was making it impossible to receive claims. The CICB is the body responsible for dispensing funds to victims of violent crime. A maximum one-time allowance of $25,000 is possible. But Marin said his investigation unearthed an organization so fixated on bureaucracy that his office coined a word for it: "Rulitis – the slavish adherence to rules at the expense of common sense."
Marin said the CICB had 56 forms to fill out before a single penny could be disbursed. "One claim was returned because the individual had failed to dot an 'i' in his name. The details are in our report. It's quite unbelievable."
Another person died before his claim was processed, Marin said. And parents whose child had been raped and murdered were treated like criminals when they applied for funeral expenses.
On top of that, the provincial government, which collected money from offenders to pay the victims, used the money for other purposes. "Bit of a disaster, if you ask me," Marin said.
The ombudsman's intervention freed up more than $20 million for CICB and resulted in more adjudicators, less red tape and new leadership for the administrative tribunal that is governed by the Compensation for Victims of Crime Act.
The OLG is a Crown corporation. The CICB is an independent, quasi-judicial tribunal. Marin said that these arms-length agencies with loose reporting lines to the government sometimes run afoul because they think they are in business for themselves. "Except that they run a monopoly run by the government," he said.
Launching an investigation in the wake of the G20 Summit in Toronto was another matter. It was a federal event, and Marin doesn't have jurisdiction over federal responsibilities. But because Toronto police sought additional powers from Ontario's Ministry of Community Safety and Correctional Services, Marin had licence to probe.
He found that, at the request of the Toronto police, the provincial government used 1939 legislation intended to protect Ontario from Nazi infiltration to force people to identify themselves in public areas outside the gated conference. Enforcing the Public Works Protection Act – akin to the War Measures Act – led to the detention of thousands of people and the arrest of hundreds.
However, between 1939 and 2010, Canada's Charter of Rights and Freedoms was passed. It prevents arbitrary detention.
Marin's office concluded that the province had relied on what was likely unconstitutional legislation and, further, that it had not properly discharged its duty to publicize its use.
"Not only was that an oversight, but the government decided to keep the whole thing under wraps," the ombudsman said.
The province has since agreed that the outdated legislation should be repealed and that it will publicize any future requests or measures to extend police powers.
"It's important that you challenge staff and yourself to be critical to find creative solutions," Marin advised. "It's very easy to hide behind procedures, especially in this day and age.
"We have a very powerful societal audit function in the Auditor General, provincial and federal. It's easy to let the pendulum swing the other way and seek comfort from rules, guidelines and regulations and to walk back from common sense. It's my job to challenge people to say, 'This rule doesn't make sense.' It's great to seek shelter in a rule that's consistent, but it has to make sense."
View the ombudsman's speech on the College's YouTube channel at youtube.com/OCTvideoOEEO.