Andre Marin: “Hitting the Investigative Jackpot”

“Hitting the Investigative Jackpot”

André Marin

Ombudsman of Ontario

Forum of Canadian Ombudsman
May 28, 2007
Montréal

  1. Distinguished delegates: It’s an honour to speak to you today on the occasion of your third biennial conference. I must confess I have a particular affection for the theme of this conference, “Unique solutions to universal problems.” As you will hear throughout my presentation today, I believe strongly that the best solutions to problems of injustice and inequity are not found in form letters or preconceived ideas, but are found in a flexible approach inspired by the unique needs of each individual.
  2. It is a great pleasure for me to be here today with so many Ombudsman colleagues to share information and insights about our work. Two years ago, in just my second month as Ombudsman of Ontario, I had an opportunity to address this same conference. At that time, I stressed how vital it is for our offices to demonstrate our value. My own Office is a case in point. Two years ago, our Office was celebrating its 30th birthday – but behind the scenes, some senior government bureaucrats were plotting its demise. They felt it was just another government “program” that could be eliminated to save money, and the public would never know the difference. It was clear to me that if my Office was going to stay alive – and better yet, to thrive – it desperately needed to shake off its own bureaucratic complacency. It was critical for us to demonstrate that the money spent on Ombudsman oversight in Ontario was money well spent.
  3. Two years later, our Office has undergone a renaissance – and I can say with confidence that the public definitely does know the difference. With a clear focus on returning our Office to its rightful place as a strong and tenacious watchdog over government administration, we have refocused our entire operation. The plan was simple – to concentrate our resources on issues that resonate with the people of Ontario. While we still deal with at least 20,000 complaints a year, we pick about half a dozen to become the subject of full field investigations, using our new Special Ombudsman Response Team, known as SORT for short. SORT investigations focus on complaints that involve broad systemic issues and strong evidence of administrative malfeasance – cases where ordinary shuttle diplomacy has failed.
  4. Our new approach has enabled us to solve problems affecting not just a few thousand individual complainants, but literally millions of Ontarians. The results have been dramatic – in two short years, we have tackled a wide variety of significant problems, touching Ontarians in just about every aspect of their lives. We have helped parents of special-needs children, and parents desperately seeking child support. We have sparked policy reforms in drug funding and improvements to Ontario’s program for screening newborn babies for potentially fatal disorders – to the point that the Government now boasts that it has gone from having one of the worst programs in the world to one of the best. Our investigations have led to significant changes in the province’s handling of property taxes, support for the disabled, compensation for crime victims and, of course, the lottery business.
  5. We have accomplished all of this, I should add, despite the fact that our mandate in Ontario is severely limited compared to other provinces in some respects. For instance, I cannot investigate children’s aid societies, hospitals, municipalities or school boards – even though many of my counterparts can. My Office is continuing to push the envelope on this, because we receive thousands of complaints every year about these organizations, which deliver important public services and administer huge amounts of public money. It simply isn’t right that Canadians in some parts of the country enjoy independent, investigative oversight of these institutions, while others do not. That is something that should concern all of us.
  6. Having said that, the key to our Office’s vision has been to see our mandate for its possibilities, not its limitations. Every time we do a major investigation and achieve a positive result, the public is alerted to the tangible benefits of our Office, and its potential to do even more. This is why we no longer shroud our investigations in secrecy, but routinely publish full reports – and we make sure to do it in language that is meaningful and readily understood. Our straight-shooting, forthright style is often characterized by the media as “scathing,” but that would be meaningless if we did not also have a reputation for thorough and accurate fact-finding. Our reports have gained respect not only from the public, but also from those we oversee. We advocate for fairness and the public interest. And I’m happy to say, in all of the major cases I’ve mentioned, the government has accepted all of our recommendations.
  7. This doesn’t necessarily make me the most popular figure with Government authorities, however. I must confess to sometimes feeling like the skunk at the proverbial garden party – journalists have even told me that no one in the provincial cabinet wants to admit they had anything to do with my appointment. That’s fine with me – it’s a sign that I am doing my job, as it should be to any ombudsman. The “bud” in “ombudsman” isn’t supposed to mean you’re everyone’s “buddy.” We have enormous powers, and we need to exercise them with prudent judgment. For me, that means not just waiting for people to come to me with complaints – there are also times when I may take the initiative to investigate issues “on my own motion” if an important public concern is at stake.
  8. This year, I exercised that power for the first time when I launched my investigation into the Ontario Lottery and Gaming Corporation, or the OLG, as it calls itself. The OLG grosses about $2.4 billion a year from lottery revenue. It is a well-greased, government cash cow that generates income for a variety of worthy programs from sports activities to hospitals.
  9. Last October, the OLG hit the headlines when the CBC program the fifth estate featured the story of Bob Edmonds, an elderly man who had been cheated out of a $250,000 lottery jackpot by a dishonest lottery ticket retailer – and who then had to fight the OLG in court to get his winnings. The program also suggested that lottery retailers in Ontario – and possibly across the country – were winning far more than their rightful share of lottery prizes. This caught the attention of lottery players everywhere.
  10. Now, obviously, not every hot news story justifies an ombudsman’s intervention. But here was a case where extremely serious allegations were being levelled against a government organization responsible for billions of dollars in government revenue. Politicians from every party were expressing concerns in the Legislature about the integrity of the OLG. It was clear to me that if the thousands of Ontarians who spend their hard-earned toonies and loonies on lottery tickets every week were to lose trust in the system, the whole government funding structure based on lottery revenue was at risk. In other words, this issue didn’t just affect lottery players, it affected everyone in the province. So, within 24 hours, I notified the OLG of my intention to launch a full field investigation into how it protected the public from theft and fraud.
  11. One effective tool that I often employ when launching a systemic investigation is to tell the public what I am investigating and why. I publicly announced my investigation into the OLG on October 26, and encouraged anyone with relevant information to come forward. More than 400 people did so. Our investigators carried out extensive interviews with witnesses, including 26 complainants, 35 OLG staff, as well as other interested parties. We looked at the lottery systems in other jurisdictions and retained an independent statistician to provide an expert opinion on whether or not retailers were winning a disproportionate number of jackpots. We also went through thousands of pages of government documents, filling more than 53 bankers’ boxes.
  12. What we found was that Mr. Edmonds was far from alone. In fact, one month before his case surfaced in 2001, another consumer who had been cheated out of his winnings by a retailer took the OLG to court. That court ruled that the OLG had failed to take the appropriate steps when the retailer presented a suspicious ticket, and that the OLG owed a duty of care to the public, to better protect them in such circumstances.
  13. But the OLG clearly ignored that court judgment when Mr. Edmonds came along a month later. Instead of supporting him, it denied responsibility for the retailer’s actions – and then it proceeded to spend more than half a million dollars fighting Mr. Edmonds in court, over a quarter-million-dollar prize.
  14. Our investigation also found that in 2003 and 2004, the OLG identified five suspicious major wins by “insiders” but only denied one of them a prize. The rest took home anywhere from $250,000 to $12.5 million. Instead of strengthening security, the OLG considered relaxing its policies so anyone who presented a winning ticket could cash it in, no questions asked. Its attitude was essentially to pay the money and look the other way, or, in the words of an email we found from none other than the now-departed CEO, “hold your nose.”
  15. On top of this, the OLG had no reliable statistics about how often retailers won jackpots, or even how many people it employed as “retailers.” It went to great lengths to dispute the CBC’s statistical analysis that the chance of retailers winning so many prizes by pure luck was greater than a trillion trillion trillion trillion. But our expert found that the OLG’s own record-keeping and analysis of retailer wins was so poor that there was no way for it – or anyone else – to accurately determine whether or not they were winning too often. What was clear was that it had a far too cozy relationship with its retailers.
  16. The OLG is a slick marketer of entertainment products. It allowed practically anyone to sell its products, as long as there was a reasonable profit to be made. It didn’t want to offend would-be lottery sellers by conducting criminal record checks. After all, the retailers were both its sales force and some of its best customers. When consumers complained about retailers’ behaviour, the OLG systematically and often rudely ignored them. I concluded that this loyalty to retailers to the exclusion of the public was the OLG’s fatal flaw. It was in an inherent position of conflict of interest. It simply could not be trusted to protect consumers against the same retailers it depended on for its profits.
  17. My report, entitled A Game of Trust, came out in March. I recommended that an independent body take over the policing of the lottery system, and that it implement strict new controls, such as registration of retailers, zero tolerance of retailer fraud, and random integrity tests using “secret shoppers.” I am often asked why I didn’t recommend a total ban on retailers playing lotteries. The fact is, we did research this option, and we could find no other jurisdiction that bans retailers outright – except Argentina, which has a very different lottery structure from ours. Also, given the huge turnover in the retail business, such a ban would be almost impossible to police, and unfair to the vast majority of honest retailers. It seemed to me that rather than resort to such a sweeping, impractical measure, there were other steps that could be taken that could quickly and effectively improve the integrity of the lottery system.
  18. The response that I received from the OLG and the Government was extremely positive. They immediately committed to implement all of my recommendations, and have kept me apprised of the status of their implementation. But the impact of the investigation did not end there. It continues to resonate to this day. My report was raised every day in the Legislature for several weeks straight as politicians grappled with the issues of accountability it presented. In the media, it was the subject of well over 1,000 print, radio and TV stories – and counting. Just before the report was published, the OLG’s CEO – he of “hold your nose” fame – resigned. A few days later, its Vice-President of Corporate Security and Surveillance, who was a seconded chief superintendent from the Ontario Provincial Police, resigned his police job and took a leave of absence from the OLG pending a Toronto Police review of the potential conflict of interest posed by his secondment.
  19. Beyond all this, though, the story of the OLG is a cautionary tale with wide applications. This is a corporation that lost its way. It became so caught up in the profit motive that it forgot that its primary purpose was to serve the citizens of Ontario. Its response to concerns about retailers was to use positive reinforcement, encouragement and polite incentives. But retailer fraud is not a situation that calls for gentle methods, or the back-patting, gladhanding, touchy-feely approach. It has been said that “Quiet persuasion will usually produce one result – quiet inaction.” This phrase aptly describes what happened with the OLG. It also serves as a warning to all of us as Ombudsmen. We have no powers to enforce change, we cannot make orders or compel compliance with our recommendations. We rely solely on moral suasion to achieve justice for those we serve. However, sometimes watchdogs have to bark to get attention, and sometimes they have to bite.
  20. I’d like to illustrate this by reviewing just a few other cases where our Office took a bite out of bureaucratic bungling. The first case tackled by our SORT investigators in April 2005 was actually the continuation of one that had been addressed by a previous Ombudsman. It involved severely disabled children who needed institutional care. The only way their parents could get that kind of care was if they surrendered custody of the kids to children’s aid societies. The first time this issue was investigated was in 2001. At that time, the Government took some steps to address it, and a year later, it committed to update the Ombudsman on its further progress. The Ombudsman duly reported this in the Office’s annual report. From then on, the responsible Ministry sent my predecessor an update every six months, supposedly documenting how it was improving access to residential facilities for severely disabled children.
  21. When I came to the Office in 2005, I reviewed the Ministry’s latest status update. I realized that what I was looking at was the mother of all bureaucratic euphemisms: “We’re continuing to study the issue.” When I looked back through the file, I noticed that the Ministry had been sending virtually the same letter every six months for three years. There had been no progress at all. The “quiet persuasion” approach had predictably yielded quiet inaction. Meanwhile, families were still being subjected to the humiliation and degradation of giving up their children just to get them the care they needed.
  22. We launched an intensive field investigation that took just 18 days and published the results within a month, in a report titled Between a Rock and a Hard Place. In response to my recommendations, the Ministry announced an additional $10 million to help children with severe special needs. Another $10 million was announced in the 2006 budget, with $4 million more being committed to Children’s Treatment Centres in 2007. As of last August, 65 children had been returned to their parents’ custody. We will continue to actively monitor this issue, as we do with all of our completed systemic investigations.
  23. I also want to mention another investigation from this past year that was at least as important, if not quite as widely known, as that of the OLG. This case is also a cautionary tale, and like the OLG, it involves money and the appalling treatment of ordinary people by a callous bureaucracy. In fact, I believe it is the most deplorable government agency our Office has looked into in 32 years.
  24. I’m talking about Ontario’s Criminal Injuries Compensation Board, which was the subject of a report we published in February, and the most backward-oriented, performance-averse government body I have ever seen. We called our report Adding Insult to Injury because we found that this agency, which was supposed to assist victims of crime, was actually causing them further harm. It was making them wait an average of three years for compensation and burying them with paperwork. The CICB suffered from an official document fetish. In one case we looked at, a victim literally died waiting for compensation. His claim sat idle for more than three years. And after his death, the Chair of the Board had the audacity to write his family a letter, saying it had actually handled his case more quickly than usual.
  25. We also talked to a blind senior whose daughter had been strangled, who had to battle with the Board for reimbursement of funeral expenses. First, the Board’s staff berated her for forgetting her file number. Then they insisted that a certified copy of the funeral bill wasn’t good enough for their files; she would have to go back to the funeral home and get an original document.
  26. In another case, a father of a five-year-old girl who had been abducted and murdered was traumatized by having to fill out the Board’s endless forms, which forced him to repeat the horrific details of his daughter’s death over and over. When he applied for reimbursement of funeral expenses, the Board gave him the third degree over news stories that said people in the community had donated money to his family to help them through the tragedy. Even though he was fully entitled to the money under the Board’s own rules, its staff treated him as though he was somehow using the child’s funeral to defraud them.
  27. We launched this investigation because we had noticed an increasing number of complaints about this Board to our Office. Once we announced the investigation, even more complaints flowed in. We found that the Board’s problems dated back more than a decade. Successive governments had starved the Board of funding, forcing it to pay compensation out of an inadequate budget, while its workload and backlog skyrocketed.
  28. Because of this, its overworked staff developed an extreme case of what I call “rulitis” – the slavish enforcement of rules even in the face of human suffering, and at the expense of common sense. They put crime victims through a gruelling bureaucratic maze. They demanded perfection in every application – we even found one case where one of the reasons they sent an application back was because – wait for it – the victim had forgotten to dot an “i” in his name. I’m not making this up!
  29. We also discovered that the Ministry of the Attorney General had pressured the Board to delay processing compensation claims so it wouldn’t go over budget – even though it had tens of millions of dollars sitting untouched in a separate pool in its coffers, ironically called the Victim Justice Fund. The Board in turn started arbitrarily limiting compensation amounts, instead of considering each claim on its merits. Even after a victim challenged this in court and the court determined the Ministry was acting contrary to law, virtually nothing changed.
  30. The Ministry was well aware of how bad the problem was. It had studied all kinds of proposals for reforming the compensation system but hadn’t acted on any of them. I recommended the one solution it hadn’t considered: Giving the Board the money piling up in a bank account that it needed to settle claims quickly and efficiently. I also recommended the Ministry immediately stop pressuring the Board to delay compensation awards, and that it consult crime victims and other stakeholder groups about any further reforms. As for the Board, I recommended a number of ways it could humanize its processes, including training its staff to deal with vulnerable people and setting up an advisory board of actual victims.
  31. The Ministry agreed with all of my recommendations and committed to fully supporting the Board. It immediately committed an additional $5.2 million to its budget and will provide almost $15 million more over the next year. The Board, however, had a different reaction. Initially, it did not agree to my recommendations and seemed oblivious to its own insensitivity to victims. Clearly, serious therapy was required to wean the CICB from its officialdom fetish. So, serious therapy it got. I announced I was holding a press conference to release my report. Suddenly, the Board did an about-face and agreed to everything. As the saying goes, the approaching hour of the execution focuses the mind! Both the Ministry and the Board will be reporting to me on their progress as the changes are implemented.
  32. This case also holds lessons for all of us. While inadequate funding played a substantial role in the Board’s degeneration and decay, it was ultimately responsible for its own choices. I believe that we all have a responsibility to review our own operations to ensure that they are not only efficient but providing the best service possible to the public. Too often, a lack of resources becomes an excuse for a lack of vision.
  33. Rules can serve a useful purpose in ensuring consistency, but they must be applied flexibly, without losing sight of the human element. This is particularly important when dealing with vulnerable individuals. As Ombudsmen, we must be prepared to challenge rules, not just those applied by the organizations we oversee, but those that we have adopted ourselves.
  34. When I first arrived at the Ontario Ombudsman’s Office, I was astounded by the volume of procedures that staff were expected to follow. As part of our streamlining we jettisoned most of these, and have simplified our processes. We have tried to instill a mindset that focuses on individuals as well as the nature of the issues that they bring forward. Where, in the past, we would routinely dismiss calls about any issue that technically fell outside of our jurisdiction, now we probe to see if we can find a jurisdictional hook. Even if there isn’t one, if we feel the issue is serious, we will try to take some form of action, even if it is simply to draw public attention to the fact that an important matter is beyond the scope of our oversight.
  35. In many other cases, our investigations have yielded important results without the publication of a formal report. I am convinced that this is due to the positive impact of our field investigations. Today, when we contact government organizations about problems, we find they are more open to finding ways to resolve them quickly. For instance, this past winter, we investigated the case of Suzanne Aucoin – a young cancer patient who was forced to pay $76,000 for chemotherapy in upstate New York because the drugs she needed weren’t available in Ontario. The Ministry of Health was paying for other patients to go to New York to take the same drugs. But Ms. Aucoin’s request was denied, for reasons that made no sense. The Ministry was basically handing Suzanne and other desperately ill patients a “Rubik’s Cube” and leaving them to figure out the convoluted rules of its out-of-country drug funding program for themselves. When we completed our investigation, I notified senior Ministry officials of my findings. They quickly agreed to reimburse Ms. Aucoin for her drug costs and all the legal fees she incurred in her fight against them. Not only that, they committed to overhauling the rules of the out-of-country program to make them fairer and clearer for all Ontario patients.
  36. We had a similar positive result this spring, in our investigation into a severe shortage of mental health services for children of soldiers based at Canadian Forces Base Petawawa. These children had been traumatized by the heavy casualties suffered by their parents and friends in Afghanistan – but they were having to wait up to six months for treatment at the only mental health centre in the area. Provincial and federal officials were at a standoff, with each saying it was the other’s responsibility to help these kids. Given that this was a crisis situation, we decided to speak to key people in both levels of government – because even though these children were definitely Ontario’s responsibility, the federal government had a moral obligation to the families of its troops. In the end, the Premier himself stepped in to increase funding for children’s mental health, and the federal Defence minister freed up some funds as well. We were able to announce a successful resolution in a matter of weeks, all without publishing a formal report.
  37. Whether or not a report is published, however, in all of these cases, we managed to actively and creatively resolve important systemic issues and communicate the results to the public. In all of these cases, by identifying an underlying issue instead of trying to tackle the problems one complainant at a time, we were able to magnify our Office’s impact a thousandfold, while informing the public of gross maladministration that otherwise might never have been exposed.
  38. In the past two years, my Office has consciously undertaken to demonstrate the value of an Ombudsman to the citizens of Ontario. At times, this has meant taking risks and stepping beyond our organizational comfort zone. It has meant taking a strong stand on important issues, and using strong language to express our findings. But above all, it has meant committing to thorough, accurate, professional, intensive and efficient field investigations. These changes have not always been easy, but I must tell you, the results so far have been immensely rewarding. Our staff have the undeniable sense that their work is making a difference, and the achievements of each new investigation build upon the last. While as Ombudsmen we will always be there for individuals, presenting them with a helping hand instead of faceless bureaucracy, we can never lose sight of the bigger accountability picture. When we are not afraid to tackle issues of substance and broad relevance, we really can move mountains. And each time we succeed, we earn the growing confidence of the public we serve, as well as those we oversee.
  39. To put it in terms that I’ve become quite familiar with lately, if we demonstrate our value in this way, the odds are in our favour and the payoff can be priceless. It’s a win-win in the real sense – the kind you can’t get with any lottery ticket.
Forum of Canadian Ombudsman