OCTOBER 3, 1974
The Citizen's Protection Against Bureaucracy
AN ADDRESS BY Dr. Randall E. Ivany,
OMBUDSMAN FOR THE PROVINCE OF ALBERTA
CHAIRMAN The President,
Sir Arthur Chetwynd
SIR ARTHUR CHETWYND:
Distinguished head table guests, ladies and gentlemen: It is most appropriate and in keeping with the best traditions of The Empire Club of Canada that the Reverend Dr. Randall Ivany should be here as the speaker to open our seventyfirst season. One of the important traditions of our club is our support of the concept of the Commonwealth, derived from two old English words "common weal", or in today's language the common good.
In his capacity as the recently appointed Ombudsman for the Province of Alberta, Dr. Ivany's life is deeply involved in the common good of the citizens of that province.
As government and business grow bigger and more complicated, individual human needs and rights often become lost in the plethora of computers, buttons, electronic gear and other marvelous inventions of human technological ingenuity. This, coupled with an increasingly impersonal and bureaucratic way of life, tends to engulf and confuse many of us.
We can fly to the moon--and back. Team Canada '74 can play hockey in Moscow and we can see and hear it instantaneously in Canada. But our wisdom and our ability to deal compassionately and justly with those persons in our society less fortunate than ourselves is far from perfect.
The function of an Ombudsman is to speak for, and to act on behalf of, individuals who are being dealt with unfairly due to some of the inflexibilities in our system. The Province of Alberta (known to some as the "Sheikdom" of Western Canada or the land of the "blue-eyed Arabs"!) supports the office of an Ombudsman. At present, our own Province of Ontario does not. I am not quite sure whether this means that Alberta is more progressive and sees the need, or that Ontario is all pure Christian good will! We will have to leave this decision to government leaders, the legal profession, and public conscience.
Dr. Ivany is ideally trained and gifted for the position of an Ombudsman. Born in Newfoundland, he received his high school and university education in Toronto. In 1961 he moved to Alberta. He started where Canada started, gathered his educational goodies in "Toronto the Good", and then heeded the call of "Go West Young Man, Go West!"
His academic training and experience is wide and varied. After obtaining his Bachelor's Degree in Electrical Engineering, he spent three years in the business world with Canadian Westinghouse.
In 1958 he returned to Wycliffe College at the University of Toronto to read theology, graduating in 1961 with a Bachelor of Theology degree. Then followed a period at St. Augustine's College in Canterbury, England, for special studies in Anglican theology. After his ordination he served parishes in Calgary, Red Deer, and Oklahoma City. He was elected Dean of Edmonton and Rector of All Saints' Cathedral in 1970. In 1973, the University of Toronto conferred on him the degree of Doctor of Divinity.
Dr. Ivany has a deep concern for community service. Most recently he has been President of the Edmonton and District Council of Churches, a board member of the YMCA, and a member of the Planning Advisory Committee, Alberta Rehabilitation Council for the Disabled. He still serves the Anglican Church in Canada on its General Synod Organization Committee and was an initiating force for the Canadian College of Preachers. As well, he pioneered the development of a senior citizens' high rise complex in downtown Edmonton.
Chosen from a large list of distinguished applicants, he assumed his present office as Legislative Ombudsman for the Province of Alberta on May 1st, 1974, for a term of five years. A family man, Dr. and Mrs. Ivany are the proud parents of three daughters.
I am honoured to welcome the Reverend Dr. Randall Ivany and call on him at this time to address The Empire Club of Canada. His subject is "The Citizen's Protection Against Bureaucracy".
Mr. President. May I express to you my pleasure at your warm invitation, which has brought me here today. I remind you that the last and probably only time you have ever heard me speak in public was in delivering a sermon at St. Paul's Church, Bloor Street, Toronto, when I was the Anglican Dean of Edmonton. Perhaps it was the freedom of the gospel, which I preached that day and still believe fervently, that has enabled me to move into the office of Ombudsman for the Province of Alberta. From Dean to Ombudsman is not such a strange jump really. My present job may have one compensation. As you know, in the Anglican Church we tend to be strong Royalists. Each Sunday we pray for the Queen's Majesty. Some years ago I had an assistant who was rather nervous. One of the prayers for Her Majesty refers to her as our dear Queen. The curate managed to say instead, "Lord bless our queer Dean."
A new enthusiasm, almost a new religion, has been creeping through the democratic countries in recent years. This newness has been expressed as "ombudsmania". Twenty years ago the meaning of the word ombudsman was virtually unknown to anyone outside of Scandinavia, but today it is almost a household word, as familiar to the public-spirited citizen as "Tribune of the People" must have been in the Roman Republic two thousand years ago. The Ombudsman institution was established in Sweden in its modern form in 1809, then in Finland, Denmark and Norway. It passed into the English language and achieved statutory recognition in New Zealand in 1962, the first Commonwealth country to appoint an Ombudsman, followed by Britain, Alberta in 1967, Nova Scotia, New Brunswick, Quebec, Manitoba and Saskatchewan. The institution of Ombudsman has now spread as far as Tanzania in Africa, and Guyana. Many other countries, provinces, and states are in the process of working out some similar institution at this time.
In strict etymology, the word Ombudsman seems to be colourless. It means simply an officer or commissioner, but as everyone knows, it is now identified with the new constitutional device, new at any rate in the Commonwealth, by which, the state provides free service for investigating citizens' complaints against its own workings. The popular acceptance of the term "Ombudsman" cannot be doubted within English-speaking countries. In New Zealand, when that office was created, the Legislature entitled the act of incorporation "The Parliamentary Commissioner". In spite of the fact that the Act itself termed it "Parliamentary Commissioner", the office became popularly recognized as the "Ombudsman's Office".
An Ombudsman is regarded as the public's defender. Where bureaucracy hurts a person, he has the opportunity to beat it down. Professor Donald Rowat has noted:
"Throughout the Commonwealth countries there seems to be a general attitude of complacency about the protection of the citizens' rights, perhaps engendered by the strength of the tradition of 'the Rule of Law'. People do not realize that due to the modern growth of administrative powers the meaning of this tradition has lost much of its content. In Canada, one of the most frequently voiced objections to the Ombudsman proposal is that it is not needed: citizens' rights seem to be adequately protected already, and one doesn't 'hear about' very many cases of persons who have been dealt with unfairly by the administration. The objectors do not appreciate that, since administrative action is secret, the great majority of such cases do not come to light. Only some of the most serious ones are revealed and, since they concern isolated individuals, often they are not widely publicized by the press and are soon forgotten by the public."
Since the opening of the Ombudsman's Office in Alberta in 1967, to October 31, 1974, 4,534 complaints were received, and of those 1,551 were investigated. Three hundred and ninety of them were found to be justified, or 25.14 percent.
During the five-year period from the opening of the Ombudsman's Office in Quebec in 1969, he received 21,042 complaints. Of those, 10,434 were investigated. I believe his experience with justified complaints is comparable to my own, and that of the other Canadian Ombudsmen.
Besides the strong support given to the Ombudsman institution by these complainants that were so helped, there has been strong support from the news media, the Canadian Bar Association, and the International Bar Association throughout the years.
An Ombudsman compensates for his lack of direct revising authority with a political independence, which provides the persuasive tool in his negotiations and discussions with officials. When this fails, his main weapon to secure remedial action is publicity. He reports to the Legislature and the Press. Hence, as he fights city hall, his efficacy relies to a large measure on the public respect and confidence he enjoys. In most cases, the Ombudsman is a servant of the Legislature and not an appointment of the government in power.
At this juncture I would do well to point out that not all people in or out of political office were in agreement with the role of the Ombudsman, nor do all consider the office to be essential for the well-being of the public. One Member of Parliament in this country from Western Canada, has gone on record as saying, "If we as parliamentarians do our job properly and remember the real source of the problem is our own performance and if we get rid of so many of these boards of final decision and quasi-judicial bodies I think we will have eliminated many of the causes that might lead to the appointment of an Ombudsman."
The honourable gentleman was speaking, I am sure, for many who feel that the office is superfluous in a democratic society.
Needless to say, I would disagree with the Honourable Member of Parliament from Western Canada, and would lean more towards the comment of Sir Guy Powles, Ombudsman for New Zealand, when he mentioned that he was once approached by a school girl who asked him, "Why do we have to have an Ombudsman in a democracy?" His reply was that we don't have to have an Ombudsman in a democracy, but it's good and democratic if you do. (Perhaps some of you heard Sir Guy speak when he came to Canada at the invitation of the Canadian Bar Association in 1964.) 1 believe that many people who have been hurt by the bureaucratic process would answer in a similar way. Alberta's first Ombudsman, Mr. George B. McClellan, refers to a question from a journalist which was put to him, "Is not the necessity for an Ombudsman a clear admission of government's failure to correct injustices to the citizen, and the failure of the administrators of government departments to deal properly with complaints when they are received?" Mr. McClellan states that in his view, and certainly in mine, it does not necessarily follow that the appointment of an Ombudsman is an admission of failure. Far from the appointment being an admission of failure by the government to correct injustices it is in fact an illustration of government and Legislature under the democratic system anticipating the impersonality which can arise from the government or big industry, and taking steps to set up additional safeguards against injustice and discrimination or other practices of government departments, or agencies which may be unreasonable or wrong.
There are, of course, other alternatives to the Ombudsman institution. I realize that you are familiar with one alternative, the Royal Commission approach. In fact, it was following the recommendation of the Clement Committee that the Ombudsman institution was established in Alberta. In Ontario, Mr. Justice McRuer has referred to the various alternatives, and in his final recommendation, suggested that the Ombudsman institution might best be established on a municipal basis.
By way of comparison, I would like to briefly mention two specific major situations that arose in Alberta, each of which involved a provincial Correctional Institution. In the one instance, the Government decided to convene a formal public inquiry. As you might well suspect, a number of lawyers participated in that inquiry. A great deal of attention was given by the news media throughout the entire public inquiry, and in due course, the Commissioner presented his report to the Government which, as I understand it, recommended certain procedural changes. The Solicitor General indicated publicly that the recommendations of the Commissioner for certain procedural changes would be taken into consideration and implemented as soon as possible.
Interestingly enough, at approximately the same time the inquiry was going on, my office was similarly conducting a thorough inquiry into another very delicate situation involving another provincial Correctional Institution. However, my inquiry was not a public inquiry. I feel I should point out that this particular investigation was the most significant and major investigation ever conducted by my office involving an inmate complaint. As a matter of fact, my office also made certain recommendations for certain procedural changes, and I have received assurances from the Solicitor General's Department that the procedural defects referred to would be corrected.
There has been absolutely no publicity given to date concerning my investigation. This is the first time that I have even publicly referred to the fact that such an investigation was carried out by my office. I mention this case solely to illustrate the Ombudsman's style in pursuing an investigation.
Apart from the cost factor, this particular Royal Commission I have just referred to resulted in constant daily attention by the news media. This caused considerable unrest not only in the minds of the public, but among the staff and inmates of this Correctional Institution. I cannot help but feel that the low-key approach is often times the better working style, which is a view shared by my colleagues across the country. Publicity is in some cases absolutely essential, and with the help of my friends in the news media, we have been able to settle some cases through that alternative.
It will be no secret to most of you here today that one of the sociological phenomena of the present age is the ever-increasing computerization, automation and bureaucracy of daily life. Not many citizens escape the weekly request not to bend, fold, staple or spindle some computer card, a card that probably imparts some information that will seriously affect him as a person.
There exists today a growing impersonality of the society in which we live, and particularly of government at every level. Conceding to government the best of intentions, it is nevertheless increasing in size in a more and more complex and rapidly changing society, and the channels through which a citizen may seek redress of an injustice caused by a bureaucratic system have become complicated and obscure. But today we have government which undertakes to provide for its people many of the necessary services of our daily lives, which our grandfathers, and for some of us, our fathers, provided for their own families from their own resources.
Such expansion carries with it the inevitable necessity of delegating decision-making authority to more subordinate levels. At the provincial level, with which this Ombudsman deals, Deputy Ministers can no longer make all the policy decisions. Many such decisions have to be left to public servants at other levels. It is important, too, to realize that legislation or policy does not always make it possible to delegate many of the discretions which should be available to those who make such decisions. Under such circumstances, decisions will be made by the book, and the case of natural justice may fall by the wayside.
As an illustration, one particular investigation we handled resulted in the government agreeing to build a bridge for a farmer, spanning an irrigation canal that ran through his property. Besides having a bridge built, we also arranged to have the farmer's taxes adjusted, for it turned out that he had been paying property taxes for even that portion of his land that comprised the bottom of the irrigation canal. For some reason or another, no right-of-way had been obtained for this irrigation canal that had been serving the necessities of the complainant's neighbours. Although my office was not in a position to investigate the local government's decision to impose the taxes, we were in a position to work closely with the Alberta Assessment Commissioner, a provincial civil servant, and that portion of the complaint was also rectified.
The jurisdiction of the Alberta Ombudsman extends to the investigation of complaints against departments or agencies of the Provincial Government, including officers and other officials of those departments or agencies. I may not investigate matters which are entirely within jurisdiction of local governments, cities, municipalities, counties, school boards, etc. I may not investigate complaints about private businesses or commercial organizations. I may not investigate matters which are before the courts, or the actions of solicitors acting in any proceedings for the Crown. I am not a substitute for existing avenues of review and appeal which are available to the citizen. In fact, the Act specifies that all other existing avenues of review and appeal must have been pursued by the citizen before he comes to the Ombudsman, unless of course, the time for such appeals has lapsed.
What is the Ombudsman's function? I shall confine myself to the Alberta Act as an example. There are a few differences in other Provinces.
Primarily, he has the authority to investigate administrative decisions made by Government officials, and acts or omissions of such officials, where he receives a complaint that such act or omission was illegal, unreasonable, unjust, oppressive, or even wrong.
He may also commence an investigation on his own initiative, without a complaint being made, if he believes it to be in the interest of an individual, or in the public interest to do so. Our office has initiated such investigations on several occasions, particularly with regard to Provincial Mental Hospitals.
An article appeared a few years ago in Weekend Magazine, condemning conditions in one of the Alberta Mental Hospitals. The author of the article had herself admitted as a voluntary patient under false identity, and in the end, challenged any responsible official to investigate the authenticity of all of her accusations. This challenge was accepted by the Alberta Ombudsman's office, and the accusations referred to in the article were, as a result of our investigation, proven to be groundless.
To carry out his duty, the Ombudsman is given very wide powers indeed.
He may require the production, in his office, of any departmental file. These, I have found, to be my best tools and sources of information. Sometimes what the Department says publicly and what is on the file are not synonymous. The file will sometimes reveal that a Departmental decision taken in a case was a compromise, or an arbitrary decision, taken over the objections of some Departmental officers. Such a situation may well give the Ombudsman a lever.
The Ombudsman may, by summons, require any person to appear before him, with pertinent documents, and testify. To date, the invitation alone from the Ombudsman has been sufficient.
The Ombudsman is protected from legal action, or a review of his actions by the courts, except in matters of jurisdiction, or unless it can be shown that he acted in bad faith.
These are wide powers indeed, but they are countered by safeguards. In my view the genius of the thinking which brought about the institution of the Ombudsman is that it provides great authority to obtain the evidence he needs, and while he has access to any desk in the government, up to and including that of the Premier, he cannot enforce his findings.
He can, of course, carry his opinions and recommendations to very high levels, and he can publicize them.
Better than ninety-nine per cent of the cases in my office have been settled at the Departmental level. If not, I would take it to the Minister concerned. If we could not agree at that level, I could then refer the matter to the Executive Council or Cabinet. I believe this has been done only in a few cases.
Probably the case that had the most far-reaching results was one of our investigations directed against the Workers' Compensation Board. As far as the complainant was concerned, the results meant that the Cabinet ordered the Board to pay to the complainant $4,570. What it meant, however, for other complainants was the fact that from that time the Cabinet would have authority to implement the recommendations of the Ombudsman, and order the Workers' Compensation Board to pay certain monies out of the Accident Fund. An alternative procedure was provided in the compensation legislation, to enable the Cabinet to order the Board to refer the entire matter to the courts for assessment. Alberta is the only jurisdiction, to my knowledge, where the Cabinet can so intervene in a previous final decision made by the Workers' Compensation Board.
If I fail at the Cabinet level, I can still submit a report on my recommendation to the Legislative Assembly. There my report is tabled and becomes a public document, available to the news media, and open to the debate of the Assembly. There was, in fact, one case that the Ombudsman took to the Legislative Assembly, which he did not win at any level. An Alberta University Professor has done a survey, and I have been rather surprised by the amount of support that the public has given to the Ombudsman's fight in that case--apparently appreciating the fact that the Ombudsman did not buckle under.
One of the major reasons that the Ombudsman institution has received such favourable support from the public stems from the great gulf of impersonality that has arisen between government and the people it is supposed to serve. This is a situation not only with government, but with industry and the professions. If you have ever had to fight a computer, you will know what I mean!
The ballooning size of the Government apparatus in this age of the welfare state has, by its size and complexity, brought about a state of impersonality that was never intended or wanted. Furthermore, its existence often goes undetected by government. It is the Ombudsman's responsibility to balance the odds weighted against the citizen in his dealings with bureaucracy.
Many of the cases we investigate involve what can be classified as the gut issues of society. I am referring to those issues that appear to raise the greatest emotion-issues such as refused adoption applications.
In one such case, a couple contacted their lawyer to fight a Government decision that resulted in the removal of a child that had been left with them for a little over a year for the purposes of adoption. The lawyer in private practice was unsuccessful and he contacted my office to ascertain whether or not we might be able to assist. Our investigation involved a thorough examination of the Department's entire file, meetings with all the witnesses the social workers had interviewed and others besides. We soon learned that the complainant actually had a large amount of support among a number of the Government employees who had been working on the case. Certain errors of fact which had been presented to the Provincial Child Welfare Director were clarified, and within a reasonably short period of time, the matter was fully rectified and the child was returned to the adoptive parents.
It is my belief that one reason for the expansion of the Ombudsman institution so quickly and universally in recent years stems from the realization that the offices of government have become less and less accessible to the average person. The Ombudsman is just one more source in the maintenance of the democratic process. It is important to point out that he is a servant of the Legislature, not bound to the government in power. He is by no means the final answer, for there is no substitute for a concerned civil service and a vigilant public. The latter very often, I am sorry to say, leaves very much to be desired.
It has been a source of surprise to many civil servants that the Ombudsman can assist them in their personal disputes with government, over such matters as salary, reclassification, and ultimate pension benefits. As a matter of fact, our office has just concluded a very lengthy investigation concerning two demoted civil servants in the Liquor Control Board. The demotions have been lifted, salaries have been retroactively paid, and their pensions adjusted. This has lifted the morale not only of the civil servants in question, but also of their peers.
Many people consider the Ombudsman to be only the advocate of the complainant. In fact, one learned Chancellor in Eastern Canada has recently indicated that he hoped the new Ombudsman in Alberta would be more impartial in his new job than he was previously in the church, in the matter of church union. 1 took the occasion to write the Chancellor and advise him that the Ombudsman is indeed impartial up to the point where he has concluded an investigation, which determines whether or not he will become an advocate on behalf of the complainant. At that point, he is no longer impartial, but indeed, the advocate of the complainant, or a supporter of the government, depending on the outcome of his investigation. Sir Guy Powles expressed this thought on the question of the Ombudsman's independence:
"It seems to me that the Ombudsman must carve and tread his own path, being careful to maintain his independence both of the executive and the judiciary so as to be able to build a tradition of strong and impartial criticism of Government administration on the one hand and of helpfulness to citizens in their dealings with the administration on the other. If this is achieved justice will be better served, and efficient and humane administration will be promoted."
Sometimes there have been confrontations, not only with respect to the relative merits of the complaint, but as to whether or not the Ombudsman was authorized to proceed with a particular investigation. One of these particular issues was referred by the Ombudsman to the Supreme Court of Alberta. Chief Justice J. V. H. Milvain has stated in his Judgment:
"I am satisfied that the basic purpose of an Ombudsman is provision of a 'watch-dog' designed to look into the entire workings of administrative laws. I am sure this must involve scrutiny of the work done by the various tribunals which form a necessary part of such administrative laws.
"It is to be noted that the Ombudsman has no power of reversing any decision, or of compelling an action or prohibition of any action. His function is to investigate and report, with necessary recommendations to an agency, the Minister, the Legislature and the Lieutenant-Governor . . .
"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."
Dr. Ivany was thanked on behalf of The Empire Club of Canada by Mr. Peter Hermant, 2nd VicePresident.