While the title has evolved from “ombudsman” to “ombudsperson” to “ombud” and “ombuds”, the role remains a crucial one for mediating conflicts between citizens and the governments that serve them. Howard Sapers, who served as Correctional Investigator of Canada and federal inmate ombudsman for more than a decade, and Daniel Johns, Manager of Institutional Knowledge and Research, Alberta Ombudsman, report on how the job of the ombuds is evolving.

 

Howard Sapers and Daniel Johns

November 3, 2020

At a moment in history when trust in public institutions has been depleted by corruption and democracy is under siege in many parts of the world, the role of the public ombuds as mediator between citizens and their governments has never been more crucial.

Starting in 1967, all Canadian provinces but one established ombuds — the term we now use, evolved through “ombudsman” and “ombudsperson” — offices. Over time, several of the offices have acquired additional roles, as much as doubling their mandates. While there is no office of general jurisdiction, 14 sector-specific ombuds services operate within the federal government. The perceived legitimacy of the ombuds concept has motivated most universities and at least 40 Canadian public and private enterprises to establish offices under the ombuds umbrella. While a few have suffered budgets cuts in times of austerity, the only office to suffer an existential setback was Newfoundland, which closed for several years but re-opened in 2002.

Ombuds — from the Old Norse umboðsmaðr, meaning “representative” — generate headlines when they release public reports, but how they operate internally is seldom examined. A symptom of the lack of attention is the low priority given to updating the underlying legislation which, at the federal level, remains basically unchanged. But other changes have occurred. In the past 50 years, the political, technological and media environment has forced ombuds operations to evolve. Because the ombuds concept is still on the ascendancy, these adjustments attract little criticism. Ideally, change should be purposeful and conscious, involving all stakeholders, however, discussion about ombudship takes place almost solely within the community.

Among those founded through provincial or federal legislation, ombuds offices operate in the Yukon and every province but Prince Edward Island, even if they adopt names such Protecteur du Citoyen (Quebec) or Office of the Citizens’ Representative (Newfoundland). Federal examples are the Office of the Correctional Investigator and Office of the Taxpayers’ Ombudsman.

External signposts can assist in domestic self-assessment. Internationally, the Council of Europe’s Venice Commission for Democracy through Law released the Venice Principles in 2019. They attempt to codify protections for ombuds institutions around the globe from perceived threats to their independence and investigative powers. Canadian parliamentary ombuds offices mostly satisfy the 25 Venice Principles. However, a solid footing must not lead to complacency, warn British academics Richard Kirham and Chris Gill. Ombuds must adapt to changes in consumer behaviour, the policy environment and innovation in that environment.

A Symposium on the Future of Parliamentary Ombudship was held in Victoria in 2019 and a dominant topic, as in most ombuds conferences, was the debate over the choices ombuds make to stress either a “proactive” or “reactive” role. Canadian ombuds are granted the authority to initiate “own investigations” rather than simply wait for a complaint to be delivered. Originally conceived as a way to address a specific unfairness in absence of an individual complaint, own motions have evolved into large, systemic investigations. Often designed to attract media attention to hasten change, they can embarrass the subject of the investigation and sometimes the government in power.

On the proactive side, former solicitor to the British Columbia Ombudsperson Greg Levine argued in the book The Ombudsman Plan in Twenty-First Century Canada (2009) that an ombuds is a “watchdog” who should be an activist and outspoken. Otherwise, legislators select ombuds they anticipate will exercise their voices quietly, merely using their offices as a “safety valve for discontent, a place where complainants can be siphoned off and expended.”

The counter argument is that “gotcha moments” fail to motivate civil servants to work with the ombuds. Publicity might coerce a government into accepting an ombuds recommendation, but reluctant acceptance results in less than full realization. Once attention wanes, implementation is not easily monitored. Willing partners are more likely to diligently pursue the agreed change.

This perennial debate leaves most ombuds expressing the wish they had the resources to use own motion investigations more often, although not necessarily more loudly. The goal is to make government fairer. An ombuds has an inside track when offering practical recommendations. Investigators acquire expertise through constant exposure to public administration and can produce reports in a cost-effective manner. An own motion, even if offered in a tempered manner, ideally captures the public imagination, producing the secondary benefit of drawing attention back to the ombuds office, encouraging a welcomed jump in public awareness. If publicity brings additional complaints, the ombuds receives more opportunities to address maladministration.

No matter how proactive ombuds choose to become, resolving complaints from individuals remains the primary task. Attracting complaints from the public and maintaining support from legislators necessitates responding to private citizens.

No matter how proactive ombuds choose to become, resolving complaints from individuals remains the primary task. Attracting complaints from the public and maintaining support from legislators necessitates responding to private citizens. Although these complaints are investigated mainly in confidence, ombuds make many more important recommendations for systemic change based on individual complaints as they do from own motions. Nevertheless, own motions shine light on issues that might otherwise remain in the shadows.

Ombuds have moved towards an increasingly collaborative approach necessitated by another trend which Levine disparaged as the “call-centre ombudsman.” This approach uses alternative dispute resolution (ADR) techniques, which preclude the need for full investigation. Levine argued the motivation was a desire to quickly close cases, influenced by factors such as saving the costs of on-site visits. Nevertheless, the last provincial hold-out, Alberta, consciously accepted “early resolution” in 2018 to meet the challenge when assigned the responsibility to accept complaints against municipalities.

Countering Levine’s criticism, ADR addresses a need identified by Gill in a 2013 British study. “The most frequently cited change in consumer expectations… was that consumers expected speed and simplicity when using an ombudsman scheme.” An ADR approach often resolves complaints in days, rather than weeks and months. In cases involving social benefits or health and safety, speed can significantly impact someone’s life. In addition to wanting to serve the public, investigated authorities cooperate because they know any matter that is not resolved could end up being fully investigated, imposing a significant burden to provide access to files and formally respond to the issues. Not every case is suitable for ADR techniques, such as those suggesting a systemic problem. These should properly go directly to full investigation.

Levine suggested the ADR approach requires fewer investigation skills. True or not, the broader job requirements have changed since 1967. In an earlier era, with a less evolved understanding of administrative fairness, ombuds offices applied “common sense” which was understood to develop as a person matured. Traditionally, ombuds hired staff with advanced investigation skills such as former police officers.

In post-Charter of Rights and Freedoms Canada, common sense is replaced by a conscious understanding of fairness principles based on experience, academic writing and landmark cases such as the Supreme Court decision in Baker v Canada (Minister of Citizenship and Immigration) (1999). Two examples of the new understanding are published on the Alberta Ombudsman website: Fairness by Design, a collaboration by several provinces other than Alberta; and Alberta’s own pamphlet called Administrative Fairness Guidelines. These works supply new investigators with a measuring stick by which to judge fairness without having to rely on less quantifiable elements such as common sense.

Participants in Victoria discussed the continuing struggle to make the public aware of the services offered by an ombuds. Surveys show most people are not aware of their existence, let alone the benefits of seeking redress for complaints. The battle is not getting easier. Traditional methods of reaching people, such as print advertising, are losing their effectiveness because of the diversification of information sources. Online sources reach some, but many ombuds clients are “outliers” who are not internet connected or computer literate. Ombuds recognise the need to reach disadvantaged and marginalized groups, but struggle to find inventive ways of doing so.

Demonstrating that the offices have value is a constant theme. Stewardship is inevitably raised by legislative committees at budget time. Good numbers are sought in areas such as: phone calls, emails and letters received; number of cases closed; times to close; and recommendations generated and accepted. In the end, however, running a tight ship is not the purpose of the office. The effect on government and complainants is what matters. Measuring the primary purpose of the ombuds is a difficult proposition.

Many ombuds investigations do not alter an individual’s treatment but result in recommendations that significantly alter future government practice. For some complainants, that is satisfactory. Often complainants say all they want is to be heard, vindicated and “to prevent the same thing happening to other people.” Surveys of complainants have been tried, but how much credence can be given to the respondent whose complaint has not been supported and now wishes to protest the result? Supporting complaints is actually the exception, not the rule. Canadian governments are relatively high functioning. Ombuds offices traditionally support 25 to 30 per cent of the complaints received.

The ascent of artificial intelligence means more decisions will be delegated to computers. In the future, it might fall to the ombuds to test the assumptions on which the algorithms are based.

When it comes to showing value, ombuds often talk about systemic change. In her article, The Organizational Ombudsman as Change Agent, Marsha L. Wagner described a bias in the ombuds world where ombuds who merely respond to complaints are denigrated as “wannabes” while “real” ombuds consider a complaint to be merely a catalyst to be used to affect organizational change in government. Real change does occur. A good example of an effective investigation is the Ontario ombudsman’s report on lotteries titled “A Game of Trust.” It led to major reforms across Canada because other ombuds picked up the issue and conducted their own investigations.

Discussion in Victoria took on a futuristic tone in relation to technological change. The ascent of artificial intelligence means more decisions will be delegated to computers. In the future, it might fall to the ombuds to test the assumptions on which the algorithms are based. For example, will computers stress efficiency over fairness? It may seem expedient for the computer to accept a few unfair results for a greater good. Certain populations might end up disadvantaged if the algorithms prefer criteria that favours specific groups. This bias may be completely unintentional, but the differential outcomes clearly unfair.

Technology will no doubt further alter the relationship citizens have with their governments including with respect to the ability of governments to raise revenues to support public service and the devolution of the role of the public sector in the protection of the privacy and regulation of online transactions and information sharing. For ombuds, these concerns could easily manifest in challenges to jurisdiction and capacity. How will agents of parliament compete with private-sector exploitation of our daily activities? In this scenario, individual liberty could be at risk. How do Canadian ombuds provide oversight or accountability in a globalized digital economy?

The Canadian ombuds plan may be a victim of its own success. When government downsized in Ontario, it folded several independent offices into the existing provincial ombuds. Government did not seem to be particularly concerned whether all the new roles were compatible with the ombuds concept.  How can an ombuds be a neutral arbiter of fairness and an advocate at the same time?

As legislative offices, by design, ombuds are outside of politics. The prerogative for legislative change belongs to elected officials. Neutral third-party officers are limited in their ability to lobby for legislative change affecting themselves. Legislative change might help in several areas:

• Ombuds should retain jurisdiction even when a government service is privatized.
• Jurisdiction could be clarified in many areas. For example: does a municipal authority include decisions of elected councillors and all the boards, contractors and multi-municipal services offered by municipalities?
• Venice Principles could be enshrined in law guaranteeing independence and investigative powers.
• Are all responsibilities assigned to ombuds offices compatible with the concept? An example, some offices have an advocacy role, such as for children. Does this detract from the ability to conduct neutral, third-party investigations?

Like all institutions, Canadian ombuds have adjusted over the past 50 years. Effectiveness in the future will require an understanding of the evolution of the concept and an awareness that ombuds must anticipate the political, administrative, technological and consumer trends that will shape the future.

Howard Sapers is former Correctional Investigator of Canada and Daniel Johns is Manager, Institutional Knowledge and Research, Alberta Ombudsman.