Legislative Assembly
of British Columbia
OMBUDSMAN
8 Bastion Square
Victoria
British Columbia
V8W 1H9
Telephone: (604) 387-5855
Zenith 2221
May, 1982
The Honourable H. W. Schroeder
Speaker of the Legislative Assembly
Parliament Buildings
Victoria, British Columbia
Mr. Speaker:
I have the honour and duty to submit to you my Annual Report in accordance
with section 30 (1) of the Ombudsman Act, R.S.B.C. 1979, c. 306. This Third
Annual Report covers the period of January to December 1981.
Respectfully yours,
7
£^&l**+\m m\ >» >u-^
/
Karl A. Friedmann
Ombudsman
u_
British Columbia. Office of the Ombudsman.
Annual Report of the Ombudsman to the Legislative
Assembly of British Columbia— 1981-
Continues: Annual report of the Ombudsman to the
Legislature of British Columbia. ISSN 0226-8930
ISSN 0713-2921 = Annual report of the Ombudsman
to the Legislative Assembly of British Columbia
I. British Columbia. Office of the Ombudsman.
II. Title.
JL429.5.04B75 354.711TJ091
lights of 1981 Annual Report..
TABLE OF CONTENTS
I—General Comments
k. Developing a Code of Administrative Justice 3
. Establishing the Ombudsman's Effectiveness 6
1. The Child Abuse Registry 7
2. "Not Rectified" 111111.1.3 8
I 3. Litigation 9
4. Resources and Productivity g
5. Access to the Ombudsman for the Public 9
6. Reports and Public Statements 10
. Specific Issues for the Attention of the Legislative Assembly 10
1. Expropriation Procedures and Practices 10
2. Wildlife Damage 11
3. Land Use Decisions and Land Disposal Practices 12
4. Enforcement of Maintenance Orders 15
5. Protection of Personal Information... 16
6. Police Complaints 17
7. Ex gratia Payments 18
—Complaints: The Work of the Ombudsman Office in 1981
Complainants and Complaints 21
Jurisdictional Complaints 22
Non-Jurisdictional Complaints 22
Impact 23
II—Comments on Ministries and Complaint Summaries 25
lgriculture and Food 25 Provincial Secretary 71
Rorney General. „ _._. 28 Transportation and Highways 72
Risumer and Corporate Affairs 36 Agricultural Land Commission 78
Bucation 39 Assessment Authority of B.C 78
Bergy, Mines and Petroleum Resources 42 B.C. Board of Parole 80
Kvironment 42 B.C. Ferry Corporation 81
;hance 47 B.C. Housing Management Commission 82
Crests 49 B.C. Hydro and Power Authority 85
M;alth 53 Insurance Corporation of B.C 85
rliman Resources 57 Public Service Commission 88
l§our 61 Superannuation Commissioner 89
jnds, Parks and Housing 63 Workers' Compensation Board 89
Imicipal Affairs — 69 Non-jurisdictional authorities 96
■'—Changes in Practices and Procedures "
-Talkback 105
l-Tables
J)le 1 —Profile of Complaints and Complainants 19Z
file 2—Percentage of Complaints by Regional District 109
i)\e 3—Disposition of Complaints (Proclaimed Authorities) ■•••; ] ]°
Tile 4—Extent of Service—Unproclaimed Authorities B * >*
Tile 5—Extent of Service—Non-Jurisdictional Authorities y*
3iile 6—Reasons for Discontinuing Investigations J- 'Vi
;5>le 7—Level of Impact—Jurisdictional..-
is my Third Annual Report, about my sec-
IJEII year of operation: January to December
:iplaining was up again in 1981. A total of
15 new complaints reached my office in the
I year, an increase of 28% over 1980.
pffice closed 4,765 complaints in 1981 of
ih 2,757 (58%) were within jurisdiction, a
Meant increase of jurisdictional case clos-
I over 1980 when 1,888 (45%) of closed
Iplaints were within jurisdiction.
'81 I found it necessary to address three
R.ial Reports to the Legislative Assembly
Ixitstanding issues from those reports are
Id in this Third Annual Report. (See "Not
Bfied" and "Expropriation Procedures and
aices")
[ftober 1981 I published the first Public Re-
I The subject was East Kootenay Range
Is. One issue outstanding from that matter
|o discussed in this Annual Report. (See
Hi life Damage")
ivai changes in procedures and practices
ibrought about as a result of my recom-
aations to Ministries, Boards and Commis-
)1 (See Part IV and Table 7 in Part VI)
(B'.C. Development Corporation challenged
®irt the Ombudsman's right to investigate
sjactions and procedures. The B.C. Su-
9"! Court decided in B.C.D.C.'s favour. The
oion is under appeal.
helommission on Electoral Reform chal-
ral my jurisdiction to investigate the Com-
|i$£in's procedures and practices. I asked the
CaSupreme Court for a declaration on the
38 of jurisdiction. The case was scheduled
Fiflaring in January 1982 but was postponed
3T request pending the outcome of the
•'- C. appeal.
ns ber of issues are singled out in this Report
rjt Legislature's attention: expropriation,
n^3e and disposal practices, maintenance
d^, protection of personal information, and
>i© complaints.
^tg^O complaint summaries are presented
ft III. All are equally interesting. For the
afk in a hurry, I recommend the following:
"The case of the missing transcript"—CS 81 -
007; "Liquor impropriety"—CS 81-024; "Regulation on probationary teachers unfair"—CS
81-038; "Garbage in, garbage out"—CS81-
046; "Inspecting pesticide permits"—CS81-
047; "Double tax is hardship, Cabinet agrees"—
CS 81 -048; "Appeal information revisited"—CS
81-077; "Hearing on hearing-ear dog"—CS
81-086; "The battle of Buckley Bay"—CS81-
091; "One head lopped from many-headed
Hydro"—CS 81-092; and "Driver can rebut
claim he's unfit"—CS 81 -116; "It's not a farm if it
doesn't sell produce"—CS 81-124; "Unfair procedures cause blow to captain's honour"—CS
81-129; "Taxed patience"—CS 81-138;
"Speed shows compassion"—CS 81 -166.
• The Attorney General's Ministry has significantly improved working relations with my office. Unfortunately a few issues remain.
• The Ministry of Human Resources responded in
exemplary fashion to recommendations about
the child abuse registry. Significant improvements in fairness and effectiveness of child protection activities may be expected for the future.
(See "The Child Abuse Registry" in Part I.)
• The Ministry of Forests developed a model public involvement policy and actually practises it
successfully. Full marks to Forestry for openness and fairness. Now, if only Lands, Parks and
Housing followed the lead . . . (See respective
Ministry comments in Part III and "Land Use
Decisions and Land Use Practices" in Part I.)
• The Ministry of Health agreed to significant improvements in procedures and practices (See
Part IV). One disappointment during 1981: The
Ministry collects a lot of personal and private
information about all of us. But the Ministry refused my request that it study carefully its procedures and practices for protecting the safety
of this personal information against unauthorized use or release. (See "Protection of
Personal Information" in Part I.)
• ICBC has in typica
tempted to contain
by instructing fielt
stances" to answer
man. Instead they
bureaucratic fashion at-
oontrol the Ombudsman
staff "under no circum-
iquiries by the Ombuds-
supposed to give the
Ombudsman the run-around by referring him to
the l.C.B.C. Public Inquiries Department. What
could l.C.B.C. possibly wish to hide? Isn't everybody happy with l.C.B.C. practices? (For the
sorry details, see comments on page 85.)
• Kudos to the Motor Vehicle Branch of the Ministry of Transportation and Highways: good solid
work and reasonable improvements. Could be a
bit more open-minded on bilingualism. (See
"L'examen en frangais;'—CS 81-114.)
• W.C.B.: a long hard slog. We are inching cMf
to mutual understanding. Personnel change
helped, too.
• Sections3to11 of the Schedule to the Ombuds
man Act remain unproclaimed. While I am ce
tainly not under-employed the public keeps n
questing proclamation. I am ready to implemei
further sections of the Schedule should th
Government and the Legislature decide to pr<
claim. But as always: it will cost more. I
PARTI
GENERAL
COMMENTS
DEVELOPING A CODE OF ADMINISTRATIVE JUSTICE
EiiLTUdsman Act outlines in Section 22 (1) a
af opinions and judgements I may arrive at
HDleting complaint investigations. My opin-
prst be based on sound reasons, to facilitate
lince and compliance with recommend-
5 rely on the persuasiveness of my reasons
Isoning and on the authorities' sharing the
underlying these reasons and opinions.
xask for or expect blind acceptance of my
fiendations by authorities but I hope for
kd argument and informed consent. It is
pi I for me to make these reasons explicit to
iislligent debate and to banish suspicions
rr judgements are based on arbitrary or
ISteosyncratic considerations. I believe I
'le general community standards of fair-
ibitizen-government relations as seen by
dilative Assembly and the public. I empha-
pbitizen's perception of that relationship so
press the imbalance of power between the
[Bial and the collective authority of
latent.
p most public officials share these basic
pi fair administrative practices. Members
legislative Assembly (in whose name I
rate) and the general public may wish to
re led of how I interpret administrative jus-
N members of the public service need to
rTar with these standards.
Section 22 (1) provides as follows:
Where, after completing an investigation, the
Ombudsman believes that
(a) a decision, recommendation, act or
omission that was the subject matter of
the investigation was
(i) contrary to law;
(ii) unjust, oppressive or improperly
discriminatory;
(iii) made, done or omitted pursuant to a
statutory provision or other rule of
law or practice that is unjust, oppressive or improperly discriminatory;
(iv) based in whole or in part on a mistake of law or fact or on irrelevant
grounds or consideration;
(v) related to the application of arbitrary,
unreasonable or unfair procedures;
or
(vi) otherwise wrong;
(b) in doing or omitting an act or in making or
acting on
an authority
(i) did so ft
(ii) failed to
priate re
ture of tl
(iii) was net
or
cision or recommendation,
■ an improper purpose; I
give adequate and appro-
tsons in relation to the na-
e matter; or
ligent or acted improperly;
(c) there was unreasonable delay in dealing
with the subject matter of the
investigation,
the Ombudsman shall report his opinion and
the reasons for it to the authority and may
make the recommendation he considers
appropriate."
A number of these terms have been the subject of
interpretation by the courts for the purposes of
judicial review of administrative action. I find those
judicial interpretations most interesting and very
useful, but my mandate as Ombudsman is, I believe, broader: the Ombudsman was intended to
assist the public where judicial review of administrative action was not available. Through Section
22 the Legislature has imposed on me a duty to
formulate my own interpretations. The following is
therefore not intended as an explication of administrative law principles (for which reference should
be made to the many texts available), but as a
short guide to an Ombudsman code of administrative justice.
Contrary to Law
A public servant acts contrary to law when he
makes a decision or does an act which he is not
authorized by statute to make or do. He also may
act contrary to law where he continues a practice
or procedure which the courts have found to be
unlawful. (See, for example, CS 80-075 on pp.
57-58 in my 1980 Annual Report, in which the
Ministry had ignored an earlier Supreme Court
decision and continued to interpret the statute in
its own way.) In my opinion, if a public servant
disagrees with a judicial interpretation of a statute,
he is nonetheless bound by that interpretation
until the statute is changed or the judicial decision
is overruled. This approach is essential to the
maintenance of the rule of law, a fundamental
principle of democratic government.
Unjust
There are at least two kinds of injustice. The first
occurs where a particular rule of law is applied
inequitably or unfairly, so that its burden or benefit
does not reach all those to whom it was intended
to apply. The second kind of injustice occurs
where the rule or law itself is unjust or inequitable.
The former type of injustice is the primary concern
of the courts in their interpretation and application
of legal rules. It is also my concern. However, I
may also look at the substance of the rule and
determine whether it is a fair one or not. In such
cases I may request that a statutory provision or
regulation, practice or procedure be reconsidered in order to eliminate the injustice. I may
also recommend that an administrator use his
discretion to come to a different decision, w»
such is permitted by law, if I believe that thecS
nal decision was unjust.
Oppressive
An act or decision is oppressive which is inteSi
to bully a citizen or which has the effect of oveffii
dening him in the pursuit of his legal entitlemerr
For example, an authority may require compliSi
with preconditions that are only marginally reft
to the service being provided; or the citizerfi
be required to produce evidence which is beyoni
his reasonable capacity to obtain. If an authorit
uses its superior position or knowledge to placi
the citizen at an unreasonable disadvantage or ti
obtain compliance with its wishes in respect of ai
otherwise unrelated matter, it acts oppresSl^
Improperly Discriminatory
Discrimination is simply differential treatment. Nc
every discrimination is improper. An act of dis
crimination is improper if it is not reasonably re
quired for the attainment of the overall purposeo
objective of the administrative or legislapw
scheme which ostensibly governs the decisra o
act.
Mistake of Law or Fact, or Irrelevant
Grounds or Consideration
The complexity of modern legislation makes
inevitable that members of the public servici
make mistakes from time to time in ascertains o
interpreting the law. If an official has a questw ii
his mind as to the existence of, or proper intei
pretation of, a rule of law, he should seek legs
advice before making a decision. There is also;
more general duty on senior officials to ensure the
their staff are properly apprised of the law.^Sei
"Deciphering the governing statute" at p. 68of rrr
1980 Annual Report.)
Mistakes of fact can usually be avoided by a fu
and fair investigation of the situation before a deci
sion is made.
Sometimes I have found that government file
contain irrelevant remarks about a citizen, such a
his personal habits and character traits. For ex
ample a comment made early in a file that a pei
son "seems to have an alcohol problem" cai
translate itself, as the file progresses, into an as
sertion that the person is an alcoholic. The treat
ment the citizen receives from the agency may »
slanted by such remarks. Public servants shouii
take care that irrelevant remarks do not enter oiti
cial files and do not affect their attitude towards c
decisions on individuals.
I .
■ application of arbitrary,
seasonable, or unfair procedures
Mbitrary procedure is one which fails to permit
n ews of those who have a legitimate interest in
Itimate decision to be heard before the deals made. The degree of formality required for
la hearing will vary with the degree of impact
■ecision may have on the citizen. The greater
lipact on a citizen, or group of citizens, the
J3r the need for a hearing and formality of the
gig.
| etermination of whether a procedure is un-
Inable requires an examination of the pur-
jfor which the procedure was established. I
«ound a procedure for storing information to
■(reasonable because the safeguards for
Kintiality of that information were less than
Irate.
idural unfairness manifests itself in many
I and it encompasses an arbitrary pro-
Be. I have, however, gone beyond the crite-
W arbitrariness and found that a procedure
lnfair which failed to provide for an appeal
nanism. (See, tor example, "Grazing permits:
-jht to be 'herd'"—CS81-063 below.) The
jg Service Commission also engaged in an
a procedure by collecting secret information
informer employees which was kept on their
ainel files and used later. (See "No more
n ratings"—CS 81-149 below.)
■wise Wrong
■lading covers a wide variety of unaccepted inappropriate acts and conduct not cov-
fly the other headings in this code. In my
ti it refers to generally accepted standards
•nbehaviour in modern society, sensitivity to
asds of people served by public officials,
Idtual integrity, good judgement, etc Exam-
aacts or decisions that would be "otherwise
ti are: failure to live up to commitments; the
Jin inappropriate manner in dealing with the
ji rudeness; knowingly sending a member
public on a fruitless enquiry; failure to return
pine calls or failure to respond to enquiries
basts from the public.
xper Purpose
f9ie authority or an official is motivated by
kflsm or personal animosity towards those
|i|3 directly affected, or when there is an
nth to promote an object other than that for
pataO power has been conferred, I may find that
pour decision has been done or made for an
fqW purpose.
*pate and Appropriate Reasons
h|ew, giving reasons enhances public un-
>t4Jing of the administration of public policy,
thereby affording an opportunity for critical scrutiny, as well as providing a rational focus for public
debate, judicial review, and Ombudsman investigation. Moreover, the giving of reasons promotes
public acceptance of the legitimacy of administrative action; failure to give reasons leaves the
, administration open to suspicion of arbitrariness
and unfairness. I have developed the following
criteria for assessing the adequacy and appropriateness of reasons:
a. Whether the citizen's concerns are addressed directly and completely;
b. Whether assertions of fact are supported
by appropriate sources or documentation;
c. Whether statements of law are supported
by statutory or judicial authority;
d. Whether the reasons plainly state the rule
upon which the decision proceeds and
whether the rule as applied to the facts
logically produces the decision reached;
e. Whether the reasons are comprehensible
to the recipient; and
f. Whether the reasons are consistent with
reasons given in other cases dealing with
the same or similar issues.
Negligent
Negligence in administration may be defined as
failure to exercise proper care or attention in the
performance of a public duty, This is not identical
with judicial concepts of negligence. The Ombudsman may expect a level of care not currently
enforceable in the courts. I may find there has
been negligence, for example, where a decisionmaker fails to advise a citizen of his appeal rights
concerning the decision, or where a public servant gives out wrong information relating to procedures for pursuing a claim or entitlement.
Acted Improperly
This phrase implies an intention to bring about
adverse consequences, or a reckless disregard
for adverse consequences which the authority
ought to have known would arise from this act. It is
closely related to acting for an "improper purpose". An example would be using access to
confidential information in order to embarrass or
otherwise adversely affect the person about
whom the information was kept.
Unreasonable Delay
Delay is often inherent in the decision-making process. Whether delay is unreasonable or not will
depend upon the particular circumstances of
each case. It is difficult to lay down fixed rules.
However, I have found unreasonable delay in the
following situations: where a member of a1 appeal
5
Iw. az
Reprinted with permission—The Toronto Star Syndicate.
board had left his employment with the provincial
government after a hearing and one year late
efforts had been made by the authority to obtain
his signature on the order that was made by the
panel. I n my 1980 Annual Report (p. 46) I also said
this about unreasonable delay:
7 believe that a delay might be considered
unreasonable whenever service to a member of the public Is postponed improperly,
and unnecessarily, or for some irrelevant reason. Hence, lengthy delays caused by a
shortage of staff, administrative reorgan
ization, or policy revision are unreasonable.
If govemmeAltent requires that an indivWai
seek its approval in particular circuit)'
stances, it must ensure that sufficieime-
sources are allocated to administer Wch
procedures expeditiously. If MinistriesWm
to reorganize their personnel, they must ensure that such reorganization does nowh-
necessarily impede service to the public.
And, if policies are to be reexamined am
revised, such changes should be made
quickly, or alternatively, the previous rafficj
ought to remain in effect until replaced^
B. ESTABLISHING THE OMBUDSMAN'S EFFECTIVENESS
The present report covers the second full year of
operation of the Ombudsman, Last year I reported
". . . an extraordinary amount of goodwill and cooperation from ministry officials . . ." (p. 12). This
year (1981) I had to work hard to maintain that
cooperation and I must report several instances of
failure to achieve administrative justice. Yet I believe, taking an overview, my office has increased
its effectiveness for the public and increased its
impact on the public service over that achieved in
1980.
More complaints reached my office and more
problems were attended to during 1981. While we
must work hard, frequently in the face of something less than enthusiastic support, to convince
officials to change procedures, practices and decisions, our results as reported in Part II to IV of this
Report I believe demonstrate not only continuing
out increased effectiveness.
I have pointed out in my 1980 Annual Report (p.
12) that in order to be effective, I must look beyond
individual errors and seek changes in procedures, practices and regulations that repeatedly generate errors and injustice. Such general
improvements help the public more efficiently b}
removing ongoing causes of friction or annoyance
and also help public authorities to improve theii
own efficiency and effectiveness. I have main
tained this goal in 1981 as shown in Part III and W
of this Report, even though I have to expend i
great deal more effort and persuasion to get authorities to accept the more far-reaching changes
Authorities must, of course, look at all aspects o
changes I seek, including costs. While my initiation of such changes is originally motivated by the
desire to get administrative justice I will also take
other considerations, such as cost and efficiency
into account. After all, inefficiency is also aformo
injustice.
As Ombudsman I must rely mostly on moral sua
sion to achieve administrative justice for complai
nants. It is inherent in this that in order to bs
effective the Ombudsman must be prepared t<
live up to those same standards of conductsppui
ated for the public service in the Administrate
Justice Code.
I do, for example, risk my moral right to cnticizi
officials for unreasonable delay if my own orgam
nis fraught with unreasonable delay in hand-
|he public's complaints. To be sure, there are
i's explanations for delays, but the public and
als might easily and with justification think of
Kplanations as excuses. Similarly, as I de-
lypiat officials hear people affected by their
Hpns I must be sure to hear out officials be-
Igach conclusions critical of their conduct. In
■■believe that I as Ombudsman must set an
pie in living up to the code of administrative
!ss in order to be effective in achieving ad-
Ifative justice for the public.
Irontroversial case and the "not rectified"
jilaint are likely to draw more public attention
Ithe quiet and efficient changes in proles that we bring about in cooperation with
Hofficials. I will, though, highlight one such
next.
tively defined. This led to inconsistencies
in classifying the allegations as substantiated, unsubstantiated with reservations, and unfounded.
c. Some social workers forwarded to the
Registry information only on the more serious child abuse complaints. It became
clear that the interpretation of administrative procedures varied among the Ministry's district offices.
d. And finally, the Registry did not have an
administrative procedure for the removal
of parents' names even when an allegation was positively identified as unfounded. Parents' names were retained
on the Registry indefinitely, and parents
were often not aware that their names
were registered.
ie Child Abuse Registry
jfosl year and a half, I have received several
Kints from parents, some referred to me by
.C. Civil Liberties Association, about their
Ity to have their names removed (expunged)
ne Central Registry of Protection Complaints
■jk/linistry of Human Resources in Victoria.
I parents thought it was unreasonable for the
By to retain their names on the Registry be-
• the Ministry had investigated the allega-
Kchild abuse and had determined the alle-
3 were unfounded.
B&itral Registry of Protection Complaints,
Bnly called the Child Abuse Registry, is a
Ii listing for child abuse allegations, inves-
is reports, and abusers' names. Its purpose
assist the Ministry in its difficult task of pro-
ii powerless children from the abuses of
It
■any person suspects child abuse or ne-
j.ccording to the Family and Child Service
■at person must report the matter to the
Bitendent of Child Welfare. Usually, the Su-
Indent's representatives in the Ministry's
C offices, or the social workers responding
■ministry's Zenith Help Line for Children,
nchild abuse allegations. These are investi-
enmediately, and the complaint and follow-
? irt must be sent to the Registry within 30
h my investigation, I found several major
lis with the administration of the Registry:
II Information stored on the Registry was
II often incomplete. Also, it was not clear
|l who had access to this sensitive and
bj confidential information.
8 Some social workers had difficulty in
I classifying child abuse investigations
d because the categories were not effec-
U ^ -—
After long and careful investigation I brought my
concerns about these problems to the Ministry's
attention, and the Deputy Minister agreed to appoint a committee of administrative and field staff
to review the administrative procedures associated with the Registry.
As a result of the committee's work, the Ministry
proposed excellent modifications to the administration of the Registry, including a mechanism
for removal of names inappropriately placed on
the Registry.
Now, once a complaint of child abuse is investigated, if the allegation is substantiated, the Ministry will register the parents' names on the Registry.
The Ministry will also notify the parents in writing of
this, and outline the review procedure, in case the
parents want to challenge the Ministry's classification of the child abuse investigation.
In those cases where the allegation is unfounded,
the parents' names will not be registered. And for
those in-between cases, where the complaint is
not substantiated but the social worker can identify some risk, the parents' names will be registered. Again, the Ministry will notify the parents in
writing, and outline the review procedure. After
three years, if the Ministry does not receive any
subsequent allegations and determines that the
child is not in need of protection, the Ministry will
review the matter with a view to expunging the
parents' names from the Registry.
Besides these significant changes in administraj;'
five procedures, the Ministry has hired a social
worker to work for the Central Registry of Protection Complaints in Victoria. This social worker will
be responsible for dealing directly with field staff
about enquiries pertaining to child abuse allegations, for interpreting and implementing Registry
policy, and for reviewing and recommending policy changes.
7
I am satisfied that these measures will improve the
value of the Registry as an administrative mechanism for "tracking" children who are at risk, and for
protecting these children from abuse or neglect.
At the same time, I consider the Ministry's new
procedures for expunction, written notification,
and review will help protect the rights of adults,
especially parents, accused of child abuse. While
protecting the best interests of children, I think it is
necessary for the Ministry to be administratively
fair to parents.
2. "Not Rectified"
With great regret I must introduce a new concept
to my Annual Report: "Not Rectified" now appears
in my accounts and my statistical tables. That
requires an explanation.
Occasionally it happens that an injustice identified by my investigation cannot be rectified. All
help may come too late or it may not be possible to
undo the damage done. I must then with regret,
close that case. "Ministry remedy too late"—CS
81-078 illustrates such a case.
Some substantiated complaints cannot be rectified. Financial compensation might offer a measure of relief. I have, however, experienced difficulties getting compensation recommendations
accepted (discussed below under the heading
"Ex gratia payments"). Because of these difficulties I have on a few occasions closed cases as
"not rectified" rather than persisting with a futile
recommendation for financial compensation. Examples can be found in the following complaint
summaries: "Ministry and Land Commission"—
CS 81-001, and "Liquor impropriety"—CS 81-
024.
I am disturbed by abandoning a substantiated
complaint but until the problem identified below
(exgratia payments) has been resolved my hands
are tied.
Other substantiated complaints cannot be rectified, and financial compensation would not be
appropriate. I have to close them simply as "not
rectified". I brought one such case to the Assembly's attention in my 1980 Annual Report (pp.
49-51). Another case, also in the Ministry of
Municipal Affairs, is summarized in "Delaying inspection amounts to inaction"—CS 81 -105 of this
Report. Finally there are five such cases with the
Ministry of Education: as "Regulation on probationary teachers unfair"—CS 81-038 details, the
only rectification possible would be a change in
Regulations and even if those Regulations were
changed they could not remedy these particular
injustices retroactively. -
I have to report several occasions in which I have
been unable to persuade officials, Ministers and
Cabinet to accept measures to rectify injustices
8
determined afterthorough investigations. In some
of these cases I have not received a well-reasonec
answer whose logic I could accept even thofm
hold a different view. Where a case warrants it
bring those injustices to the attention of the Leaf
lative Assembly. But when that does not leadtc
corrective action I must with regret close that aft
as "not rectified".
Garibaldi
Perhaps the most important case investigSc
during 1981 concerned the complaints I rece'tvec
from residents and owners of property in ithe
Garibaldi area north of Vancouver. What was «e
a modest village is nowa virtual wasteland; alwsl
all of the houses have been moved or destrllc
and signs along the highway note the hazarc
posed by the Barrier, a high rock cliff lying -fp
kilometres to the east of Garibaldi. FollowirtMr
extensive study, the Government decided to hat
all further development of property in the areaanc
to offer to purchase most existing private property
The Ministry of Environment was authorized tc
administer this program.
Following the receipt of about 150 complaints
from owners of property in the Garibaldi affi
concluded that many of the terms of the MinisMQ'
Environment's acquisition program were ut»t
While on the one hand, the Ministry insisted tha'
no one was required to leave the area, the ternjso'
the Ministry's acquisition program were such tha
people were effectively forced out. For example
residents of the area were told that they mu|jsel
their property to the Ministry by June 30,1981, oi
they would never be permitted to sell their brop-
erty to anyone without the approval of the Minjstei
of Environment and the Minister of Municio^p
fairs. There was no assurance that these ap
provals would ever be given.
I concluded that this was unjust and recom
mended that the Ministry be willing to purchase
the properties at any time in the future when the
owner wished to leave the area. The Minister iej
fused to accept this recommendation but eventually agreed to extend the deadline for sale to the
Ministry until September 30,1981 when the Legislative Assembly considered my First Special Re
port. Most people have now sold their properties
to the Government.
Another injustice concerned people who owner-
unimproved and undeveloped property. While the
development or sale of all property had been pro
hibited, the Ministry refused to buy unimprovec
property. Persons who had purchased a lot witt
the intention of building a house were left holdinc
property upon which they were not allowed tc
build. Nor could they sell or lease it. I recom
mended that the Ministry offer to purchase these
properties. This recommendation was eventual,:
accepted, as communicated by the Minister KB
■I
iLegislative Assembly in June 1981 in re-
Jise to my Special Report,
lever, the Ministry refused to accept my re-
■Eiendation that the prices offered for proper-
|De based upon fair market value at the time of
Kale. Instead the Ministry arbitrarily selected
128,1980, as the date upon which the proper-
li/ould be valued.
Irequently, people who sold their property
I did not receive the current market value for
6 property. Even worse, the Ministry refused to
Ifinimproved properties until June 1981, yet
led to pay any more than what those proper-
liad been worth on May 28, 1980.
Iirby subdivision was developed by the Minis-
Rands, Parks and Housing to permit persons
tad been displaced from the Garibaldi area
Hquire a lot in the new subdivision. Yet again,
Hpdivision was restricted to people who had
Id improved properties. Recently I wrote to
Hmistry of Environment and suggested that
Ii the subdivision also be made available to
Bs who had owned unimproved property in
ualdi. I hope the Ministry will see fit to adopt
Ijggestion because I think that this may recline of the injustices created when fair com-
Hition was not paid for Garibaldi properties.
I the Honourable Stephen Rogers, Minister
■Environment, announced the Government's
■isposition of my recommendations I was
33 close many of the complaints as rectified
Ivory substantial number. 59 to be precise,
a be closed as "not rectified".
ligation
■hbudsman's jurisdiction was the subject of
Blication to the Supreme Court of British
Jbia for the first time in 1981. At issue was
Hjr the Ombudsman has the authority to in-
Bite a complaint against the British Colum-
Hvelopment Corporation, The complainant
Sieged that the Corporation had failed to
Hi in good faith concerning possible par-
resn in a development project.
Hpreme Court ruled that the Ombudsman
ti have jurisdiction because the particular
aiplained of was not "a matter of administra-
1 thin the meaning of the Ombudsman Act.
sjteal to the British Columbia Court of Appeal
[liated, and a decision is expected in 1982.
k so saw applications by the Ombudsman
p|' authority to the Supreme Court of British
|«>ia for declaratory orders concerning the
jtsman's jurisdiction to investigate a com-
fligainst a Royal Commission of Inquiry.
<t number of the issues will be dealt with in
K'.D.C. appeal, the applications have been
[died pending a decision in that case.
4. Resources and Productivity
Up to 1981 Treasury Board has authorized adequate staff resources for my office and had put
forward in my Estimates to the Legislative Assembly adequate proposals for funding the Ombudsman office. I very much appreciated the willingness of the Honourable Hugh Curtis, Minister of
Finance, to discuss the needs of my office openly
and fairly and I believe he in turn appreciated my
readiness to allow his staff full access to my office
to assess those needs on their own. Nevertheless
I have had to rely also on some additional labour
from student interns to assist me with the timely
investigation of the large and unexpected number
of complaints. In the past year I have also found
myself more frequently in the position of having to
refuse investigations that were beyond my current
resources. One case that troubled me is described below under the heading "Protection of
Personal Information".
The work of my office is very much subject to
fluctuations in popular demand. As I cannot expect unlimited resources for the functions performed by my office a great deal of energy was
spent in 1981 on increasing our efficiency and
productivity. I was anxious to achieve such increased efficiency and productivity without serious loss in the quality of investigations. I have
more frequently than in the past referred complainants to other available appeal channels and declined requests for investigations. My office is now
also reaping the benefits of experience. My investigators specialize in a limited number of authorities. Their familiarity with their Ministries' policies, procedures and personnel greatly increases our efficient handling of complaints and
incidentally also decreases our time demands on
Ministries relative to the number of complaints
investigated.
I had not asked for a staff increase for fiscal
1981/82 (other than a change in the status of four
auxiliary staff who became permanant). With
complaints increasing by nearly 30 percent in
1981 I must state, however, that my resources are
now severely taxed and it is beginning to show in
the large number of complaints that were open at
year end. I have requested a small staff increase
for fiscal 1982/83.
5. Access to the Ombudsman for
the Public
I have continued a small number of regional visits
in 1981, and asked my staff visiting specific areas
on investigations to make themselves available to
the public for interviews. In a small way these
visits help in making British Columbians familiar
with the Ombudsman and our proper jurisdiction.
IL
Reprinted courtesy Sharon Foster and The Times, Mackenzie.
My office has started specialized efforts to assist
two groups of citizens that appear to be in greater
need of attention. One staff member specializes
in the needs of senior citizens, another in those ol
children and youths. Both groups appear offer
much more dependent on public services and
also appear more helpless than the average cit]
izen in coping with red tape.
6. Reports and Public Statements j
During 1981 I had occasion to submit three Special Reports to the Legislative Assembly in addi
tion to my Annual Report. As will be readily apparent I will make such Special Reports to the
Assembly when in my opinion the Govemrnen,fi
response to a grievance is inadequate.
Section 30 (2) of the Ombudsman Act also allows
me, in the public interest, to comment publiclyor
my functions or on specific cases. Occasionally;
short release to the news media will be sufficien
on matters that are of public concern, often pub
licized by my complainant or by the authority involved. I have decided to release more length)
statements in the form of Public Reports. Theffsl
Public Report was released in October 1981 anc
dealt with my lengthy and complex investigew
of East Kootenay Range Issues.
SPECIFIC ISSUES FOR THE ATTENTION
OF THE LEGISLATIVE ASSEMBLY
As in last year's Annual Report I feel again the
need to draw a few specific issues to the attention
of Members of the Legislative Assembly for their
information.
1. Expropriation Procedures
and Practices
I have expressed my concern about existing expropriation procedures and practices in my 1980
Annual Report. Two of my three Special Reports in
1981 dealt with the consequences of what I can
only describe as an inadequate legislative framework for expropriation action. To ensure greater
procedural and substantive justice for those citizens whose property the government must take
away by force of law for the common good, a
statutory framework establishing basic and common standards, procedures and appeals would
be welcomed by all those affected by
expropriation.
My Third Special Report dealt with a complaint I
received from Roy and Maureen Cuthbert. The
Cuthberts owned a half-acre of land which was
expropriated by the British Columbia Harbours
10
Board in 1968 for purposes of the Roberts Bank
Superport. In total, four thousand acres of prime
farmland were expropriated. Most of this property
is currently leased back to the original owners as
farmland.
The Cuthberts had, over the years, consistently
refused to accept compensation for their Drop
erty, and instead petitioned government for the
return of their property. Their complaint was sub
stantiated. Since the Harbours Board has never
used the property and has no need for it in'lhe
forseeable future, I recommended that it be returned to the Cuthberts.
My Special Report was tabled in the Legislative
Assembly shortly before the House adjournec
last summer. Since then the Harbours Boarc
reinstated arbitration proceedings against the
Cuthberts, but in the early part of 1982, theap-j
pointed arbitrator resigned his position for health
reasons. The proceedings have remained ad I
journed. I now renew my appeal to the Legislative!
Assembly to resolve this long-standing grievance j,
My complainants, Roy and Maureen Cuthbert
anxiously await the Legislative Assembly-
response.
or
ser complaint involving an expropriation by
Iffistry of Transportation and Highways may
r to the attention of the Legislative Assembly
|i!2. In this case the Ministry expropriated a
l)f-way through the complainant's property
Ifeimple reason that her neighbour required
la right-of-way in order to subdivide his prop-
I concluded that the expropriation was done
IKnproper purpose. I do not think that the
\/ay Act authorizes the Ministry to use its
■ffiiation powers unless the expropriation is
[/ in the public interest.
ifcolumbia Hydro and the Ministry of Trans-
lion and Highways probably require the most
rom private owners of all government agen-
m the Province. Ordinarily, property is pur-
Id, rather than expropriated, by Hydro and
Wens. I am concerned, however, that these
tuition procedures are fair, that the property
Is are made aware of their right to refuse to
Ind that the threat of expropriation is not
Id to stampede owners into selling under
lions of duress. Sometimes people may not
lirmed of their rights and instead are led to
h that they must sell their property to the
liment: the power of expropriation can too
jibe used as a big stick.
Vildlife Damage
It necessary to draw to the attention of the
Bative Assembly a matter which I feel re-
Korrection, and on which I have been able
He little progress. The problem is one of a
Hi of complaints which I received from
i.rs in the East Kootenays shortly after my
cppened in the fall of 1979.
fltEast Kootenays, as in many other areas of
Btvince, officials of the various resource Min-
ework cooperatively with one another and
je various resource user groups to plan the
Bpment of Crown and private lands so as to
He and coordinate use for ranching, wildlife,
mi and recreational needs. This cooperative
Is called Coordinated Resource Manage-
ralanning (CRMP) and in theory is an efficient
Bach to the management of scarce reus in an area where there are competing
pds for these resources.
Bttice, however, there was a good deal of
Htent among both resource users and re-
■ managers about the administration of the
is I received complaints about wildlife/cattle
Mt, about the rejection, cancellation and
Bjof grazing permits, about crops damaged
Hlife, about overgrowth of the range by tim-
Utaut alienation of grazing ranges, and about
' y and unfair treatment of ranchers on the
■ government officials. Many of the com-
*i reflected a fear on the part of ranchers that
various government officials were combining
forces in an effort to squeeze the ranching industry out of the East Kootenays and to preserve the
area for wildlife.
My staff and I have spent a great deal of time on
these very complex issues. I provided the Ministries involved with a report of my preliminary findings in December 1980, and with a report of my
final conclusions and recommendations in July
1981. Many of the problems are such that solutions will require a great deal of time to materialize.
However, the response to my recommendations
has generally been quite good. Already, Ministries
have initiated a number of steps which will improve the situation over time. In October 1981 I
released my first Public Report, in which I detailed
the problems of the East Kootenay ranchers, and
outlined the changes which had been made, or
were being planned, to resolve these problems.
On one of those problems, however, I am not satisfied with the progress that has been made. This is
the issue of wildlife damage. I had received a
number of complaints from ranchers who had
suffered significant losses from elk and deer foraging on standing and stored crops and trampling both fences and crops. I was advised that
this problem had become particularly acute in
recent years, and many attributed the increase to
the importation of elk from National Parks and the
winter feeding of elk near ranches by the Ministry
of Environment's Fish and Wildlife Branch. It appears that many of the elk and deer have become
accustomed to consuming agricultural crops and
have now developed "homesteading" patterns
near the ranches rather than following their normal migratory patterns. There are certain wildlife
management methods which can help to discourage homesteader elk, although it seems
clear that in some cases management efforts
alone may not be sufficient to control the problem.
I recommended that the Ministry of Environment
attempt to improve the situation through increased and improved management efforts, or
through a program of financial assistance for affected ranchers, or through a combination of the
two approaches.
The Ministry of Environment's response has been
one of general agreement with respect to management efforts, and considerable disagreement
with respect to a compensation program. The
Ministry has undertaken an internal review in an
effort to quantify the damage caused by wildlife
throughout the Province; that review recommends
against a compensation program. Environment
officials have also had some discussion of the
matter with officials of the Ministry of Agriculture
and Food, and as a result a document has been
prepared for submission to Cabinet on the matter.
However, 21/2 years after I received the initial complaints, I see little evidence of any concrete action
11
on this matter. If there have been any increases or
improvements in management efforts, they do not
appear to be effective, for I have been receiving
reports of increased numbers of elk and deer
foraging on an increasing number of East Kootenay ranches. I have received similar complaints
from Vancouver Island.
Recently, the owner of an East Kootenay ranch,
Diversified Holdings, initiated legal action against
the Ministry of Environment because of damage
caused by elk. The Wildlife Act includes a clause
which states that no right of compensation exists
against the Crown for property damage caused
by wildlife. In deciding the case, Mr. Justice Wallace found:
"With considerable sympathy for his position
and with some regret, I find there is no basis
in law to award compensation." (p. 24)
Mr. Justice Wallace alsi ated:
"In the interest of developing the range lands
for the cooperative use of wildlife and cattle, I
would expect the Ministry would financially
and otherwise, assist those ranchers particularly exposed to loss as a result of ministerial policy to conserve and manage the
herd, so that one rancher would not be bearing the greater than average portion of the
cost of the loss incurred as a result of such
policy." (pp. 23-4)
As these statements imply, there may not be a
legal requirement under present legislation to
award compensation for damage caused by wildlife, but there is a responsibility on the part of
government to assist ranchers ". . . financially
and otherwise .. ." when the burden of damage
reaches disproportionate levels. I have no quarrel
with the Ministry of Environment's goal of improving wildlife herds, for this is surely consistent with
their mandate. It may even be that wildlife numbers could be increased without untoward effects
on ranching operations, if proper wildlife management methods were followed. However, with the
current management approach any increases or
improvements in the herd are likely to have increasingly detrimental effects on ranching.
I consider it imperative that the government recognize that a number of ranchers, very much
against their will and very much to their financial
detriment, are feeding the Crown's elk and deer
very expensive and nutritious meals. Where the
government cannot manage its elk and deer so as
0 discourage this foraging it is incumbent upon
government to provide financial assistance to
help ranchers protect their crops and to compensate for losses that could not be prevented.
1 recognize that there is resistance to a compensation program. There are fears that it would be
too expensive, or too difficult to administer.
However such programs are active in other
12
provinces, and can operate efficiently withoufHj
due expense. I should note that the MinistH
Agriculture and Food has recognized the proeR
and has supported the need for a compensaw
program.
In my view, the situation is one in which one pro
gram of government—the improvement of will!
herds—is having a significantly detrimental eft
on a selected number of ranchers, and I considei
it unfair that these selected few should bear £
disproportionately heavy burden resulting Iffi-
this government program. In some instancesfSe
increasing depredation over recent years is biting ranching operations to the brink of finaffi
disaster, and in such instances compensatitws
the only measure which can bring relief at this
point.
I am recommending that a three-part program be
used to improve the current situation:
a. improved and intensified wildlife management techniques;
b. a program of financial assistance to help
ranchers protect their stored crops; and
c. a compensation program to offset losses
due to damage to standing crops. I
The decision as to whether or not a Wildlife
Damage Fund will be introduced in B.C. will ultimately be a political decision, made by elected
representatives answerable to various intaSts
and the electorate. But I want to ensure that Members of the Legislative Assembly responsib^or
making that decision are aware of the background
of the problem, and for that reason I would urge
Members to give consideration to the points I
have raised when this matter is decided.
3. Land Use Decisions and
Land Disposal Practices
Publications of the Ministry of Lands, Parks and
Housing on the allocation of Crown land assert to
a receptive public that fifty percent of the Province
is unreserved Crown land belonging to every present and future citizen of British Columbia, vffl|h
will be managed and allocated for the indjpual
and collective public benefit. However, where individual citizens have accepted the Ministr»vi-
tation to seek out and apply for this land, or have
attempted to influence the Ministry's decisioSpn
sensitive land use decisions which are of concern
to them, they have at times experienced frustration, bewilderment and disillusion.
a. Land Disposition Practices
The Ministry of Lands, Parks and Housing has a
primary role in the allocation of Crown land in
British Columbia, and in 1981 received over5,000
new applications for land tenures of different
types. The commodity dispensed by this Ministry
ivaluable and finite resource. The decisions
Vlinistry makes are often complex and have
kind effects on the lives and aspirations of
;>iduals and groups. These decisions must
Bfore be made in a manner that stands up to
lie scrutiny. I have been presented with in-
Ifsing evidence that administrative fairness is
Hag in certain of the Ministry's land disposition
Ines, procedures and practices.
Ii major areas of concern have been identified
l|y office. The first and most common corn-
lit concerns the frequent changes in Ministry
lies; second, the arbitrary and inconsistent
Iner in which these policies are sometimes
lamented; the third is the inadequacy of the
Istry's commitment to providing appropriate
jfianisms and opportunities for public input
Irensitive land use decisions, at the request of
Red groups and individuals.
■ministry of Lands, Parks and Housing em-
Ijtwo different systems of disposing of Crown
^Disposition may be made either as a result of
Banned marketing initiated by the Ministry or
sa favourable adjudication of an ad hoc ap-
Bon for a parcel of Crown land sought out and
Ried by the applicant. Increasingly, prob-
Biave become apparent with respect to the
rand, traditional method of disposition, as a
■ of complaints from would-be landowners,
■opponents or competitors.
Bof these complaints allege unfairness in
•6 fie Ministry decisions and/or the method of
Kition chosen for a parcel of Crown land,
aa an ad hoc land application has received a
■rable adjudication. Investigation of a num-
plf complaints has demonstrated that these
plsions are not always manifestly just or
wstent.
Application decisions are normally made by
BjRegional Directors in the Ministry's Regional
l^wions Division, although an appeal is avail-
pito a central Ministry committee in Victoria
■ladvisesthe Minister. Legislation governing
apposition of Crown land is very broadly phra-
Heaving a great deal of discretion to the ad-
pftators in formulating and implementing pol-
MBvlinistry policies, land application pro-
bstes and disposition methods are centrally
BBshed but applied by Regional and District
plls to individual cases.
nji policies are frequently revised. Inconsis-
i*s between decisions are then explained as
Unavoidable consequence of such policy
l)es. I am sure such rationalizations appear
Tilintly reasonable to officials but the public
jiajjup confused, angry, disillusioned and sus-
|c|s. The rules for Crown land disposal ought
11 clear, ought to follow publicly acceptable
(loles and ought to be applied equitably and
consistently. Otherwise the Ministry fails in its public trust.
In adjudicating an ad hoc land application, several parallel processes must take place. Referral
approvals must be obtained from other agencies,
a status clearance must be obtained and a field
examination must be carried out before a land
application can be approved. The status clearance obtained by the Ministry contains information on any claims, reserves, or previous applications over the land.
Criteria used in arriving at a method of disposition
have included whether the land had previously
been held under reserve; whether there was considerable public interest in acquiring land in the
area; or if there had been previously disallowed
applications. However, there do not appear to be
any consistently applied guidelines in this area.
The following individual cases illustrate the
problem:
i. An unsuccessful applicant for Crown land
was advised that the lot which he had applied for would ultimately be made available
by public competition and that he would be
notified when arrangements were finalized.
Similar letters of disallowance were sent to
other applicants for lots in the same area.
The applicant later learned, without being
notified by the Ministry, that the lot had been
committed to another individual without any
public notice or competition. This decision
was apparently based on a new Ministry policy that applications be considered on a first
come, first served basis and be disposed of
directly to the first qualifying applicant. Information with respect to previous applications
and possible conflicts was available to the
Ministry from a status clearance report, but
did not seem to affect the Ministry's decision
in this case. (For more details refer to "He
lost a lot when they broke their promise"—
CS 81-095 in this Report.)
ii. A family man sought a homesite and small
agricultural operation in the Queen
Charlotte Islands and had advertised his intention to acquire the property, at the request
of the Ministry. His application was disallowed at the District level on the ground
that the land was not arable. He appealed
this decision to the Regional Director, who
upheld the finding of non-arability and
added that the land could not in any event
be made available without a public competition, as it had been previously held under
reserve.
The complainant next appealed to the Land
Application Appeal Committee, which
found in his favour on the question of arability, but upheld the requirement of a public
13
competition. After further arguments presented by the complainant against the stipulation of a public competition, the Minister
compromised by publishing a further advertisement and announcing the Ministry's intention to dispose of the property. Respondents who were able to establish to the
satisfaction of the Ministry that they had previously expressed an interest in purchasing
property in the vicinity were entitled to participate in a closed auction.
The second advertisement was peculiar to
this case: the only advertisement normally
required is one of the applicant's intention to
apply for a disposition of Crown land. Individuals responding to this new Ministry advertisement claimed that they had ignored
the complainant's earlier advertisement in
the belief that his application would be unsuccessful as their own previous efforts had
been. (Complaint summary "Crown
land:with elusive rules"—CS 81-093 below.)
iii. On the understanding that their land application would be allowed if they met the
requisite eligibility requirements and resolved outstanding conflicts, a couple had
altered the size of their parcel and successfully persuaded several government
agencies to whom the application had been
referred to withdraw objections. They were
later advised that the land could not in any
event be disposed of without a public competition, because of a previous reserve.
As a resolution to this complaint, the Ministry
offered to give the complainants first choice
of a lot within any subdivision that might
ultimately be developed in the area by the
Ministry. (For more details refer to complaint
summary "Land is available—until you try to
buy"—CS 81-094.)
iv. In a recent case still under consideration by
my office, the Ministry decided to invite two
previously disallowed agricultural lease applicants who had long since abandoned
their attempts to obtain a disposition of
Crown land to participate in a closed competition with an individual who had tenaciously pursued and amended his various
agricultural lease applications, until his proposed plan complied with all existing Ministry policies. This complainant maintained
that his considerable effort was based upon
his understanding that a favourable adjudication of his application would result in a
direct disposition to him. My staff was able to
confirm that land dispositions with respect
to ad hoc applications are most frequently
made in this manner. This case is also noteworthy in that a complaint in respect of the
same intended disposition was recei',uu
from another individual who had unsuccessfully applied for a residential disposition of part of the larger agricultural parcel..
My second complainant felt that he wasf-
being unfairly excluded from participating in;
the limited auction for the larger agricultpl E
parcel.
The Ministry's response to the problems created [
by conflicting claimants for agricultural land; in f
May 1981, was to change its policy on certain!
agricultural lease dispositions by eliminating the [
discretionary requirement for advertising or afc-
tions and deciding to dispose of land directtfflp
the first qualifying applicant. I have advisedffii
Ministry of my serious concerns about the merifof
this policy, both on general principles of public
accountability in the disposition of public assets
and with respect to its possible unfairness tojB
viously disallowed applicants who had recefil
Ministry promises and commitments and cft
interested individuals. It would also appear Mi
current investigations that the "first come.m
served" method of agricultural lease disposjRi
has not been consistently employed by the MS-
try since its introduction.
It is incumbent upon me as Ombudsman to emphasize the apparent lack of an equitable and
consistent method of dealing with the disposition
of land as a result of ad hoc applications. Ratiajal
and fair criteria to determine the method of disposition of Crown land should be developed,
made clear to all Ministry staff and to the public,
and consistently applied.
While the Ministry has often suggested or agreed
to equitable resolutions in individual cases itcw
view that underlying deficiencies and incogp-
tencies remain, which are likely to generate further complaints. I hope that these recurring problems will be recognized and fully addressecffiy
the Ministry soon.
b. Public Involvement in Land Use Decisions
The Ministry has broad powers to affect land use
decisions in B.C. Groups and individual citizens
invariably demand opportunities from Lands,
Parks and Housing to present information and
advice before land use decisions are fina®-
The public essentially does not accept that the
public interest is adequately served if only the
land use applicant and the Ministry bureaucracy
have input into the decision-making process. Individuals and groups are also likely to be deeply
affected by such land use decisions and administrative fairness requires that they be heard, and
heard before a decision has been made. Two
lengthy and complex investigations on such issues are briefly summarized in "The battle oi
Buckley Bay"—CS 81-091 and "One head top-
14
■Ifrom many-headed Hydro"—CS 81-092
Iw.
Hmber of issues have continued to emerge in
■plaints where affected or interested members
lie public have demanded an opportunity to
■range the advisability of land use decisions
e e by the Ministry of Lands, Parks and Hous-
I One of the first problems which has been
Bftntered by complainants is the failure of the
■stry to mandate public advertising of land use
lications that may cause adverse effects to
BSivironment, before authorization to com-
e:e work on Crown land is granted. Com-
lants have also objected to the difficulty they
e experienced in obtaining full disclosure from
Bft/linistry of relevant information and
rumentation.
I be safely predicted that if the Ministry does
Bdopt adequate procedures to provide an
Hive opportunity for the public to scrutinize
Hpticize sensitive land use applications, com-
ats that the Ministry is wrongly precluding or
Ely restricting public participation in its deci-
■yiaking process can be expected to recur.
r nforcement of Maintenance Orders
is received several complaints affecting ini-
Ibnly the policies and practices of the Ministry
rlman Resources and the Workers' Compen-
.th Board. Closer examination reveals that un-
rting these agency-related problems is a
Ber concern with the adequacy or rather the
Bquacy of the Province's system for enforce-
ai of maintenance orders.
pis order individuals to pay certain sums of
'.ii y to maintain their former spouses and chil-
y The enforcement of these court orders is left
Ik usual civil procedures. Information ob-
n i by my office suggests that half or more of
U orders are not or cannot be enforced for a
Hy of reasons. The court system does not or
Hi respond quickly to enforce orders that
Hfallen in arrears.
lie party, usually a woman, who must rely on
.Ting regular payments to meet monthly ex-
3ss, the failure to enforce court orders quite
H results in serious financial hardship. The
avnment, in the form of the Ministry of Human
rairces, often picks up the tab as the victim
-!£ rely on social assistance to survive. The
Wlting ex-spouse is allowed to scoff at the
■Band to unload his obligations onto the
U cial taxpayer.
wlincern is principally with what happens to
plctim when she must rely on Human Re-
Hs or Workers' Compensation to get by. The
■■ordered maintenance is usually not enough
Women in this situation often receive income
Mance benefits. Their hardship is com
pounded by the present policy of the Ministry of
Human Resources of refusing to prorate backpay-
ment. If, for example, a woman receives maintenance payments of $100 per month and she receives that sum every month, present rules permit
her to keep the $100 without deduction from her
monthly income assistance benefits. Thus over a
six-month period she would receive and keep
$600 in maintenance payments on top of her income assistance benefits. If, however, the former
spouse defaults for six months and then suddenly
pays up the arrears as a lump sum of $600, the
Ministry will deduct $500 from the woman's income benefits in that month, as it counts the $600
as income in that one month and does not make
allowance for the woman's inability to control the
regular flow of her maintenance order.
The Workers' Compensation Board practices a
similar policy. When a worker is injured or killed in
an industrial accident the Board will only pay that
worker's dependents those amounts of maintenance payments that the dependents actually received from the worker before the accident, instead of the full amount ordered by a court. If the
worker was successful in evading his court-imposed responsibilities the Workers' Compensation Board, like the Ministry of Human Resources
in the above case, ends up being the beneficiary
of the irresponsible conduct of the former spouse
and the beneficiary of our inadequate system of
enforcing maintenance payments. Women and'
children end up shortchanged.
In both cases the respective authorities have
agreed that there is a problem but, although each
problem could be resolved by the authority agreeing to alter their policy on the consideration of
maintenance (in the case of M.H.R. by prorating
maintenance payments and in the case of W.C.B.
by considering maintenance entitlement as the
amount awarded by the courts) they have chosen
not to do so. Rather, each has suggested that the
problem lies in the inadequacies of the Ministry of
the Attorney General's system of enforcing maintenance, not with their system of calculating
maintenance.
Ministry of Attorney General officials have run hot
and cold on this issue. They alternate between
assuring me that a resolution to the whole problem
of maintenance enforcement is imminent and telling me that they are not pursuing the question at
all, referring me back to M.H.R. and/orW.C.B. fora
resolution.
In essence, everyone seems willing to recognize
the problem, but no one appears prepared to
resolve it. This is simply not good enough. In rjm.
view, a problem that raises the issue of unclear
jurisdiction (a problem that tends to "fall through
the cracks") should be considered the problem of
all, not the problem of none. Identifying the prob-
15
lem is an empty gesture if such identification does
not lead to resolution of the problem.
This problem can be resolved. Both the Ministry of
Human Resources and the Ministry of the Attorney
General have studied the problem extensively
and are fully aware of a range of approaches that
have been implemented, both across Canada
and in the United States, to address the problem.
What is needed now is commitment to a resolution, not excuses for perpetuating the problem.
The scope of the problem is enormous; thousands of women in this province are affected and
hundreds of thousands of dollars are at stake.
Which Ministry will take the lead in presenting a
resolution?
5. Protection of Personal Information
During 1981, a complaint was brought to my attention which I was not able to handle in a satisfactory manner. It involved a matter of privacy and
unauthorized access to information held by a government agency.
A young woman complained that the Medical
Services Plan had released personal information
about herself to a credit agency. She had received
a collection notice six days after informing the
Plan of her change of address. Several months
later the complainant again received a collection
notice, this time five days after the Plan was informed of a second change of address. The complainant alleged that the Plan personnel had released her change of address to a credit agency.
I informed the Medical Services Commission
about this complaint and the Chairman agreed to
look into it immediately. He found, to his consternation, that address information pertaining to
subscribers of the Plan could probably be obtained by unauthorized persons or agencies. He
then circulated a memo to all staff, Medical Services Commission and Medical Services Plan,
stating in part:
"The Office of the Ombudsman has brought
to the attention of the Medical Services Commission an instance in which it would appear
highly probable that address information pertaining to a subscriber has somehow been
obtained from the Plan's files."
The Chairman went on to remind staff of the oath of
secrecy sworn on entering the Public Service and
of the extremely sensitive nature of the information
contained in the Medical Services files. I appreci-
te the forthrightness and speed with which the
Chairman of the Medical Services Commission
handled this matter. However, I was not yet completely satisfied that the problem was resolved,
either in relation to this specific case or on the
broader issue of privacy.
On the specific complaint, the responses of the
credit agencies were so immediate, that it sug-
16
Wl!
gested to me that a member or members of the!
Plan's staff might have been initiating release©
personal information. If this were the case, a reminder of the oath of secrecy might not be suffi-1
cient to deter further abuses.
I considered then, and I continue to believe, that
allegations of violations of privacy interests on the
part of government agencies are extremely fe-
rious. Allegations of improper use of information
would, if left unresolved, undermine the publf's
confidence in the probity of our institutions and
officials. Many government agencies collectM-
tensive information on citizens. As I said in my
Public Report No. 2:
"Communications technologies have become very sophisticated further enhancing
the opportunities for unauthorized and improper use of the information collected by the
government about all of us."...
"I feel a special responsibility to worlcmw
government agencies to minimize thepof&n-
tial for error or abuse and to check exiswg
information practices to ensure that they do
not conflict with generally accepted sodal
values supporting the privacy interest of our
citizenry" (p. 3).
For these reasons, I decided to ask the MinisfKf
Health if it would conduct an internal investigtwi
into procedures and possible abuses relatirvBo
the question of the confidentiality of the MedWal
Services Plan and Medical Services CommisSh
files.
Unfortunately, the Ministry declined to undertake
this internal investigation stating:
"it is the position of the Medical Services
Commission that all reasonable steps have
been taken to prevent the possibility of leakage of confidential information from the Medical Sen/ices Plan files andthat sincetheisis
no evidence of a recurrence of the alleged
breach of confidentiality, no further adio^is
required by the Medical Services
Commission."
Clearly, my option under the circumstances was
to conduct my own investigation into the matter. I
considered this possibility, as allegations of unauthorized release of personal information are serious and strike at the heart of many people's
concerns about increasing loss of privacy.™
However, I had to decide to postpone such an
investigation as, at that time, my staff were fully
occupied on other investigations and I had insufficient financial resources to hire additional staff to
conduct this investigation.
I would like to emphasize, nonetheless, my continuing interest in the question of access to Medical Services Plan information and to state that
may decide to investigate this matter further on
my own initiative when I have the resources to do
so.
I
Police Complaints
1981, I received and considered complaints
p 66 people about municipal police officers
members of the Royal Canadian Mounted
be. In each case, I was required by the
budsman Act to refer the complainant to the
(plaint procedures set out in the Police Act.
limy opinion that the complaint procedures in
lp//ce/4cf are unsatisfactory in that they do not
lure that complaints about the police are dealt
Iftairly. Fairness in this case includes three
If elements: efficiency, accuracy and objec-
BProcedures which result in a decision which
f:ts a person or persons must be efficient in
Kie decision is made as quickly as accuracy
■objectivity permit. Accuracy simply means
*the procedures should result in the correct
igon being made in each case. Finally, objec-
Hfrequires that observers of the process will
le that all of the facts have been considered,
I the parties have had a chance to be heard.
rithat each of the parties' interests have been
lerly weighed and considered.
p not think that the procedures for resolving
fens' complaints about the police as found in
Hfc>//ce Act can be said to satisfy these ele-
as of fairness. The Act requires that a person
la grievance about either a municipal police
■table or a member of the R.C.M.P. first con-
;:he Chief Constable or the local R.C.M.P.
Khment who will attempt to resolve the com-
Hjinformally. This is fine; in complaints about
tiirities over which I have jurisdiction, I have
Kited my investigators to attempt to resolve
Bmplaint informally in the early stages of an
■figation. This permits the authority to review
i^reition and to resolve the complaint without
pr investment of resources by my office.
e ext stage in the police complaint process is
[ie complainant to submit his complaint in
t g to the Chief Constable of a municipal force
ffi- Commissioner responsible for the R.C.M.P.
■tish Columbia. At this point the Police Act
jres the responsible authority to "promptly"
Bigate the complaint, and to inform the com-
jiint of the results of the investigation. The
drrity must also inform the complainant at the
BB his right to request an inquiry.
Bpceipt of the results of the police investiga-
Hhe complainant may, in the case of com-
B involving municipal police, request a pub-
ltluiry by the municipal police board and such
■r uiry must be held. In the case of complaints
rang the R.C.M.P, the complainant may re-
di that the Attorney General order an inquiry.
Hltorney General has ordered very few such
pes. Last December, a decision of the Su-
-■) Court of Canada concluded that the provi-
Mipfthe Police Act, authorizing inquiries by the
Police Commission into complaints about the
R.C.M.P, were constitutionally invalid and were
therefore without legal authority. There is therefore
no current procedure for an investigation of a
complaint concerning the R.C.M.P. by any
agency other than the R.C.M.P.
I have five basic concerns about this process,
which I outline below:
a. The procedures are complicated and
perhaps unnecessarily so. For example,
when a person requested (prior to the
Supreme Court decision) that an inquiry
be held into his complaint about the
R.C.M.P., the Police Act required that he
submit his request in writing to the
R.C.M.P. Commissioner in Victoria. The
R.C.M.P. Commissioner was then required to send the request to the Attorney
General and to the B.C. Police Comis-
sion. In practice, the Attorney General
would then refer it to one of his staff lawyers for consideration. Following this, if
the Attorney General decided to hold an
inquiry, he could either ask the Commission to conduct the inquiry or he could
designate a different committee to hold
the inquiry. After this, the body chosen to
conduct the inquiry had to send a notice
to the complainant informing him of when
the inquiry would beheld. I am at a loss to
understand why all of this shuffling about
of the request is necessary. One of the
reasons the B.C. Police Commission was
created was to deal with citizens' complaints; why not have the complainant
send his request directly to the Police
Commission?
b. The process takes far too long. Each
transfer of the complainant's request for
an inquiry as outlined in the paragraph
above can take months. Of greater concern, however, is that the formal investigation of complaints by the police can
take many months. In one case which
came to my attention in 1980, the
R.C.M.P. spent 15 months completing an
investigation; the actual investigation
was completed within the first eight
months; the remaining time was spent
while R.C.M.P. headquarters in Victoria
reviewed the file.
c. No reasons are given to the complainant
at the end of the formal police investigation. Rather a form letter is sent to the
complainant which in most cases states
as follows: "Pursuant to section 39 (4) of
the Police Act, and the regulations made
thereunder, this matter was fully investigated, and a decision was made to take
no further action having regard to all the
17
circumstances of the case." Not only do I
doubt that this complies with the requirement of the Police Act (that complainants
be informed of the "results of the investigation"), but it is completely unsatisfactory. Complainants should have both the
right to know the decision and the reasons for it, and especially where the complaint is found unjustified.
d. The formal investigation should be conducted by an independent agency. Of
course, where there are allegations of
criminal conduct, the police may also
wish to investigate, but this should not
prevent or impede an investigation of the
complaint by an independent agency. In
suggesting that investigations should not
be conducted by the police, I do not
mean to impugn the integrity of the police
officers who currently investigate citizens' complaints. However, it is a fact of
human nature that members of any organization are disinclined to criticize the
actions of other members of the same
organization. This fact may result in investigations being less than thorough
and unbiased, which they must be if the
truth is to be found. Similarly, public confidence in the complaint procedures will
be undermined unless the process itself
not only is fair but is manifestly seen to be
fair.
e. Under the current procedures, in which
the police are required to investigate
themselves, sometimes the complainant's allegations find their way into the
hands of police constables being complained about. In one case, the police
constables threatened to sue the complainants for libel if the allegations were
not withdrawn. For details see complaint
summary CS 81-009 below. Obviously,
people will be discouraged from complaining if they feel that their complaints
may result in legal action against them.
This, then, is another reason why complaints should be made to an independent agency that should be required to
keep all such allegations confidential except to the extent necessary to conduct
an investigation.
In making these comments I am not suggesting
lat I, as Ombudsman, am anxious to be given the
authority to investigate complaints about the police. These complaints are typically difficult to investigate in that they frequently involve incidents
which are not documented, but rather depend
upon the reliability and credibility of witnesses to
the incident. Nevertheless, persons with grievances about the police should be able to have
18
their complaints thoroughly and expeditiousjM
vestigated by an unbiased agency, to have a fair
and reasoned decision made on the validity of
their complaints, and to be informed of the decision and the reasons for it. Where such complBi)
are found justified, complainants have the right to
expect that corrective action will be taken.B
It seems to-me that the current police comp-™
procedure as outlined above does not assuBI
that investigations will be handled expeditinwl
or that the correct decision will be made in each
case. Neither do these procedures strike meal
ensuring that all of the relevant facts will beW
covered, and that a fair and proper decisioi^B
be made in each case. In short, they do not meet
our expectations of fairness.
7. Ex gratia payments
A problem which arose early on in my operatw
continues to cause trouble to me and complainants. It involves the payments of funds by the
government in cases where I recommend that
compensation be paid. I have found a numb^B
complaints substantiated in which the only resH-
tion is the payment of money to the complaii™.
In some instances, compensation has been isR
However, in a number of cases, even thouglMe
Ministries involved may be in agreement with my
conclusion that the complaint is substantias
they have not paid compensation because tney
argue that they do not have "statutory authoritap
make such payments. Where such payments
have been made in the past they were callelpx
gratia payments. The Ministries point tome'
Financial Administration Act which states th™o
money shall be paid out of the consolidated revenue fund without the authority of an appropriation.
I cannot, of course, recommend that Minisros
breach the law.
There are a number of mechanisms through which
a person who has suffered loss because of bureaucratic error may receive compensation^
claimant may sue the government under the provisions of the Crown Proceeding Act and, if successful, may be awarded damages by the cc-Ws.
He may make a claim against the Crown andlhe
Attorney General may settle the claim pursualto
Section 14 of the Crown Proceeding Act iffie
Attorney General is of the opinion that, if pursued
in court, the claim could result in judgement
against the Crown and if he considers it to be in
the public interest to settle the claim.
There is also a provision for special warrants by
Order in Council when the Legislature is nip
Session, authorizing unforeseen expenditures required for the public good. I do not make useot
such a recommendation lightly because it i&p-
portant to retain legislative control over spending.
My suggestion to utilize this procedure in some
cases has met with little success. There is a|pa
lision in appropriate situations for remission of
Is, fees, penalties and the like under the
mncial Administration Act to minimize public
Invenience, injustice or great hardship.
If these mechanisms have serious limitations
at-will not assist in resolving many of the com-
e ts I find substantiated. One encouraging de-
Ijment has been the proclamation of Section
r the Financial Administration Act which al-
a person who received public money er-
busly through no fault of his own to argue in a
: of law his right to retain the money. I appreci-
Hlhe opportunity to express my views to the
liter of Finance on this provision (which had
I recommended by the B.C. Law Reform
[mission) prior to its being proposed to the
nmbly for consideration.
leve the Legislature intended in Section 22 (2)
I the Ombudsman Act that I have the authority
lake recommendations for compensation in
I'to resolve a complaint, and I had hoped that
■Bvernment would respond to such recom-
Mations. As the government has taken the
Ion that ex gratia payments are contrary to
II propose the following resolutions for
«tideration:
ia. Amendment to the Financial Administra-
Ition Act allowing for ex gratia payments
on recommendation of the Ombudsman,
or
_d. An appropriation provision under the
Supply Act giving the Minister of Finance
a vote designated for ex gratia
payments. The Supply Act has the force
of law and a vote approved pursuant to
the Supply Act would be sufficient authority for an ex gratia payment.
The problem of ex gratia payments has also
arisen with respect to interest payments. For example, if the government owes money to a citizen
and does not pay for a considerable length of time
or if the government retains funds of a citizen
when it has no statutory right to do so, I believe the
money should be returned with interest. The government can legally make interest payments in
very limited circumstances where an Act or Regulation allows it. But even in circumstances where
it can be shown that the government invested a
citizen's funds and reaped the benefit of interest,
the government will not pay interest except with
explicit statutory authority. The wish to stick
closely to statutory authorization is laudable but
members of the public always end up being
shortchanged.
One of my complainants paid $435 to the Ministry
of Lands, Parks and Housing on the request of a
Ministry official. This money represented the first
rent payment on Crown land she had applied for
and wished to lease. She was later notified that the
land was not available. She then asked for her
$435 back, with interest, and after receiving no
response contacted my office. Afterbeing notified
of the complaint, the Ministry quickly issued a
cheque for $435 but refused the payment of interest as "there is no legal authority for us to pay her
interest". The Ministry had the complainant's
money from May 1978 to February 1981. It is likely
that the funds were taken in as part of the consolidated revenue and invested.
I do not see the fairness of the government's position in this matter. If there is a statutory impediment preventing payment, it should be overcome.
The Legislative Assembly should be asked to
consider appropriate changes.
19
PART II
COMPLAINTS:
THE WORK OF
THE OMBUDSMAN
OFFICE IN 1981
COMPLAINANTS AND
COMPLAINTS
Bling on my office's work in 1981 I will follow
pe format as in my 1980 Report. Tables with
d statistical information are presented sep-
' in Part VI.
pre figures that show the overall workload of
Bice in terms of active and closed
aints.
SO complaints carried into 1981* 963
omplaints received in 1981 4,935
Etive complaints in 1981 . 5,898
pints closed in 1981 . 4,765
Biints still under investigation at
I end 1,133
11980 Report records 870 complaints under investigation at
M Another 93 complaint files were opened when it became
S' as some ol the 870 complainants had more than one sepa-
sfjlistinct complaint
1981 my office received 4,935 new com-
jthat represents 411 complaints per month
28 percent increase over 1980 when I re-
3,840 complaints per year or 320 per
J In addition my office responded to some
'lier requests for which no file was opened,
bSiich are not included in the above total of
'Complaints.
The results reported in the statistical tables are
based on all cases closed in 1981. A total of 4,765
complaints were investigated or otherwise disposed of during 1981.
Fewer non-jurisdictional complaints were closed
in 1981 than before: 2,008 as opposed to 2,309 in
1979/80. Relatively speaking this change is even
more significant: the share of non-jurisdictional
case closings went down from 55 percent in 1980
to 42 percent in 1981 and, of course jurisdictional
closings increased in proportion: now 2,757 complaints or 58 percent of all closed cases are within
jurisdiction, compared to 45 percent in 1979/80. It
seems that the public now has a better appreciation of what I as Ombudsman can investigate.
Complaints Closed by Jurisdiction and Year
1979/80
(15 months)
1981
(12 months)
Within Jurisdiction
Outside Jurisdiction
Total. ..^3 _...
Within Jurisdiction
Outside Jurisdiction..
Total —I
Number
Closed
1,888
2,309
4,197
2,757
2,008
4,765
Percent
45
55
100
58
42
100
Jurisdictional complaints, of course, require considerably more time and attention. The 46 percent
increase in jurisdictional case closings (an increase from 1,888 (1980) to 2,757 (1981) represents a major quantitative and qualitative improvement in the work of my office.
21
Despite all the effort and productivity increases
my office was not able to stay completely ahead of
complaints. There are now almost 20 percent
more open files in the office at any time, and, of
course, registered at the end of the year compared to 1980. I must view this increase in open
files and ongoing investigations with serious concern. This situation has several undesirable
consequences:
1. The time it takes to complete the investigation of a complaint is likely to be longer
when an investigator has to divide his time
among 80 complainants compared to 64
previously.
2. More time is wasted when an investigator
juggles an impossible caseload (through
activities like explaining delays to impatient complainants). A case overload generates it own inefficiencies.
3. My office may not have the time to analyze
the root causes of complaints. In other
words we risk being or becoming less
than thorough, and superficial.
Being aware of the potential problems that are
generated by a work overload my staff and I make
special efforts to avoid becoming "bureaucratic"
ourselves. We have, for example, cut down on our
own red tape by persuading Ministries and other
agencies of government to accept telephone notification of investigations instead of formal written
notification. We need to be more inventive yet in
1982.
B. JURISDICTIONAL
COMPLAINTS
As in 1980 we found again that a large proportion
of complaints do not need to be fully investigated
to the point where a finding on the merits of the
complaint is made. Some 1,220 complaints or 44
percent of all jurisdictional complaints were either
not investigated or an investigation was discontinued before a conclusion was reached. Table 7
gives a breakdown of the reasons for discontinua
tion. Of the remaining 1,537 jurisdictional cm
plaints 855 complaints (55.6 percent) were substantiated and/or warranted a correction of ?
decision, practice or procedure, although in 74o
these cases rectification was not possible oB
fused. In 682 cases or 44 percent of the S
investigated complaints I found no substancScB
the complaint and no action on the part of the
authorities was required. These figures are mk
close to my findings in 1980 as shown in the
summary of results below.
Jurisdictional Complaint Dispositions |
Discontinued
1979 Number 864
/80 Percent 45.8
1981 Number 1,220
Percent 44.3
Not Not Sub-
Resolved Rectified Rectified stanttated
506 59 0 459
26.8 3.1 0' 24.3
601 180 74 682
21.8 6.5 2.7 24.7 j
Totals
1,88!
10C
2.75.
tot
NON-JURISDICTIONAL
COMPLAINTS
Tables 4 and 5 show that 70 percent of people
with non-jurisdictional complaints receivSal
least some basic assistance from my officeJBgu-
allyto put them on the right track in pursuingjp
complaint with appropriate helping agetSs.
Some 18 percent of those with non-jurisditMal
complaints were assisted in a more detailed manner as warranted by the circumstances. Depending on the urgency of the matter or the helpjjss-
ness and desperation of the complainant my stall
intervened to facilitate a resolution of the complaint. A great deal of this help was possible be-|
cause of my staff's accumulated experience and
could be offered fairly efficiently thus freeing'fore
staff time for work on jurisdictional complaints. It
remains an important principle of operation in my
office that no citizen in need of help is turned away
merely because his complaint is non
jurisdictional.
JUST RU, CUT THIS
FfcJPW IN TKIPH<54T0
AW? I'UUT4I<& ITTcC?
THis- czmwnr&e- <4ND
L6T YOU KHOW IN
THpgaS W156SKS
THE WIZARD OF ID by permission of Johnny Hart and Field Enterprises, Inc.
22
rectified complaints (546) only my individual com-
IMPACT plainant was affected by the change in decision,
ii>irnv k^ jn 30 percent 0f a|| reso|vec( ancj rectified
complaints (that is 235 cases) some change in
tjain goal must always be to resolve individual practices or procedures was warranted and
plaints where that is warranted by the merits agreed to by the authorities. Table 7 shows a
at complaint. In 70 percent of resolved and breakdown.
23
COMMENTS
ON MINISTRIES
AND COMPLAINT
SUMMARIES
MINISTRIES
MINISTRY OF AGRICULTURE
AND FOOD
Eied, withdrawn, discontinued ... 7
tied: corrected during investigation 3
aiantiated: corrected after recommend. 18
■antiated but not rectified 1
pibstantiated _4
IlOSED—TOTAL 33
■er of cases open Dec. 31, 1981 H
■rge number of substantiated complaints in
BBistry can be explained by the fact that 21
Bwere received concerning raw milk policy.
■ complaints are summarized below.
Mmistry's assistance and cooperation in my
K investigation of the East Kootenay range
■must also be acknowledged. I found Minis-
Hsonnel in the field and at headquarters in
la most helpful (see Public Report No. 1).
501
ry and Land Commission
an complained to me because she felt that
d been discriminated against in her efforts
employment with the Agricultural Land
Commission. Referred through the Public Service
Commission, she applied for a position as an
Office Assistant with the Commission. She was
interviewed, and a job offer was made by the
Agricultural Land Commission. Three days later,
the Public Service Commission withdrew the job
offer. The complainant felt that she might have
been discriminated against for political reasons.
After I concluded my investigation, it appeared
that the complainant's suspicions of political interference were unfounded. Instead, the following
had happened.
An Office Assistant had resigned from the Agricultural Land Commission. The Commission, at
this point, decided that it wanted to restructure its
clerical workload. The Commission wrote a new
job description for the vacant position and wanted
to fill the vacancy with a person who had a good
background in agriculture; typing skills were less
important. The Agricultural Land Commission
phoned the Public Service Commission, attempting to fill the vacancy on the basis of the new job
duties. Subsequently, my complainant, a woman
who holds a degree in agriculture, was selected
for the position. However, it appeared that the
Agricultural Land Commission was closely tied to
the administration of the Ministry of Agriculture
and Food. The Ministry Personnel Office was un-
25
Reprinted with permission—The Toronto Star Syndicate.
willing to appoint the complainant to the position
because her typing skills were weak. The Ministry
was unaware of the new job duties and made its
decision on the basis of an old job description.
The Ministry Personnel Office insisted that new
interviews be held, and a different candidate with
better typing skills was selected for the position.
My office was unable to be of help to the complainant: when my investigation was completed, another person had been appointed to the position;
she, too, had applied in good faith, and her services were satisfactory. I could not see my way
clear to recommending that her services be terminated so that the position might be freed for the
complainant.
However, a larger question arose: is the Agricultural Land Commission an independent body
and as such responsible for its own personnel
decisions? Or is the Agricultural Land Commission merely a Branch of the Ministry of Agriculture
and Food, having to avail itself of personnel services provided by that Ministry? I met with the Deputy Minister of Agriculture and Food to discuss this
question and it was agreed that both the Ministry
of Agriculture and Food and my office would obtain legal opinions on the matter. Both legal opinions arrived at the same conclusion; the Agricultural Land Commission, pursuant to the
provisions of the Agricultural Land Commission
Act, is a body independent from the Ministry of
Agriculture and Food. The Deputy Minister of Agriculture and Food wrote to me as follows:
"I accept the fact that the A.L.C. has powers of
autonomy that places almost all matters within
their purview beyond administrative guidance or
control of the Ministry of Agriculture and Food.
Whether or not to pursue an administrative accommodation that better serves the taxpayers
cannot be answered at this point in time. Clearly,
the matter will be of interest to The Honourable
The Minister of Agriculture and Food. I shall look to
him for future direction in the matter."
26
I informed the Chairman of the AgriculturalH
Commission of the contents of the legal opiffir
had received and of the Deputy Minister's HI
Because this jurisdictional question exceede
the complaint I had originally received, I ditxn
pursue the matter further.
CS 81-002
A raw deal
In late 1980 and early 1981 my office received 2
complaints, two from farmers and 19 frorrffie
customers, about action taken by the MinisM
Agriculture and Food to prevent further sales
the public from raw milk dairy farms on VancjB)
Island. The two dairy farms affected had bee
selling raw milk to the public for many years witl
out Ministry intervention.
The issue considered by my office was whethi
the Ministry was acting in an arbitrary or ir
properly discriminatory manner with respect
the enforcement of provincial regulations reapc
ing the sale of raw milk. Investigation showed th
under similar circumstances an exception tij
istry policy to phase out all raw milk saleap
been granted to a dairy farmer on one of the Gi
Islands. The M.L.A. for the Gulf Islands had intf
vened. As a result, the Gulf Islands farmer wi
given a chance to state his case. Cabinet lat
passed an Order in Council as permitted by
Milk Industry Act, the farmer was able to continif
his operation.
I could find no reason for distinguishing betwef
that case and the present one. I therefore advisi
the Ministry of Agriculture and Food that a|p
istrative fairness required that the complaOf
farmers be given a hearing to present theiiffi
ments to the Ministry. The Minister of Agriegjj
and Food agreed to hear both complainagf
provided all complainants with a thorough rep
of my investigation. Though the farmers had t
hearing fairness demanded, they did notsuage
in persuading the Ministry that they should
permitted to sell the raw milk.
ill
11-003
be of hog disease unknown
: '8, a hog farmer bought a number of breed
■including one known as 68K, from a farm
j ted by the Ministry of Agriculture and Food.
■gpected that this sow had introduced a dis-
ipalled atrophic rhinitis to his herd. He com-
I d to my office, seeking compensation for
Bwisiderable losses he suffered. My inves-
(1 n of this case was extensive and included
■ews with a veterinarian, officials of the Min-
■BAgriculture and Food, the herdsman of the
■fiment farm in question, and the complai-
B|/I.L.A. One of my investigators travelled to
Implainant's farm to get a better understand-
c:he situation. Furthermore, we examined the
ry's files.
■eared that the farmer had purchased 68K in
ler 1978. The animal farrowed on December
l>78. Shortly thereafter, the herd began to
^symptoms of atrophic rhinitis.
hy 9, 1979, 68K was butchered. Her head
, e subject of a report prepared by the vets' laboratory in Abbotsford on May 9, 1979.
■port states that". . .there is slight atrophy of
ijht ventril turbinate." It concludes that
it3re is no evidence of atrophic rhinitis in this
Ben." Still, there was room for doubt. The
■atrophy of the right ventril turbinate may
■ have been an indication of atrophic rhi-
nn the other hand, it may just as well have
b aused by other factors.
||l 1979, the complainant butchered a piglet
ui according to the complainant, was part of
Sitter. The laboratory report on this piglet
a hat".. .the appearance of the nares alone
[■suggest a diagnosis of atrophic rhinitis."
Bar, the report states that the piglet under
aeration was three months old. 68K's pig-
lithe date of the report, would not have been
aionths but rather over four months old.
i|:he piglet was part of 68K's litter, and even if
dtrophic rhinitis, there would have still been
Klusive evidence that the piglet contracted
[isase from its mother. Apparently, 68K and
i't r were housed in the same facilities as the
Members of the herd. Any one of the other
Iw could have been a carrier of atrophic
■land the source of the outbreak.
bi30 informed by several sources that probate is no swine herd in the province that is not
a; the carrier of atrophic rhinitis. Apparently,
Ustablished herds tend to develop an inter-
liliunity against the disease, introduction of
l^imals into a herd quite often triggers an
Ilk.
rii/ investigation, I had to conclude that 68K
|| may not have been a carrier of atrophic
|ti the outbreak of the disease in the herd
II 1
may or may not have been attributable to the
animal purchased from the Government farm.
Based on the lack of any conclusive evidence, I
found myself unable to make a finding or a recommendation regarding this complaint.
CS 81-004
Happy ever pasture
A rural resident of the Cariboo Regional District
complained to my office that the ARDA (Agriculture and Rural Development Act) Branch of the
Ministry had unreasonably denied him information regarding a community pasture. The complainant required this information in order to apply to
the Agricultural Land Commission for a subdivision. He requested a cost benefit analysis of a
community pasture and a breakdown of the development costs.
Our investigation soon showed that the Branch
did not have the type of cost benefit analysis
requested. After many discussions with members
of the ARDA Branch and staff members from the
Agricultural Land Commission, the Director of
ARDA agreed to write to the complainant. The
letter provided what information ARDA did have
on the development cost of the pasture and explained the Branch's involvement.
As I stated in my annual report last year, citizens
often request my assistance in gaining access to
information. When I receive requests of this nature, I attempt to persuade officials to share information unless there are good reasons for withholding it, as I believe that many complaints to me
would not be necessary if the complainant had
had access to the information held by government
officials.
CS 81-005
Procedures beefed up
A beef rancher was denied participation in the
Farm Income Insurance Program. A prerequisite
to receiving benefits from the Program was that
the producer had to be a member in good standing of the B.C. Cattlemen's Association. The complainant had missed the deadline for annual payment for membership fees, not having received
his bill for the fees.
I informed the rancher of the appeal mechanism
provided under the Farm Income Insurance Act.
The appeal board consists of a Ministry official* a
representative of the B.C. Federation of Agriculture and a chairman mutually agreed upon.
The complainant had simply needed information
about his right to appeal, and once he had this
information he followed the procedure; no further
investigation was needed.
Providing information about a right to appeal is an
important principle of administrative fairness. I
27
recommended to the Ministry that it change its
procedure. The Ministry accepted my recommendation, so that now all individuals adversely affected by a decision under the insurance scheme
are informed at the time of the decision of their
right to appeal.
CS 81-006
Dropping of fine fine with farmer
An orchardist complained that he had not been
aware of the existence of the Ministry's Farm Income Insurance Program. When he became
aware and applied to participate, he was told he
would be penalized for not having applied when
he first became eligible. The Program is designed
to compensate farmers when the market price for
a crop is lower than it is possible to produce the
crop for.
We discussed the problem with Ministry officials
who said it was possible that the complainant had
thought the program was another name for a separate Crop Insurance Program that already covered his operation. This might have been the reason he had not applied. Because this was a
reasonable mistake, the Ministry used its discretion to drop the penalty. The complainant was
satisfied with the Ministry's resolution of the
complaint.
MINISTRY OF THE
ATTORNEY GENERAL
Declined, withdrawn, discontinued 157
Resolved: corrected during investigation 86
Substantiated: corrected after recommend. 9
Substantiated but not rectified 0
Not substantiated 106
CLOSED—TOTAL 358
Number of cases open Dec. 31,1981 113
The responsibilities of the Ministry of the Attorney
General include corrections, providing services to
courts and providing legal advice to the Government. The Ministry also administers the Film Classification Board, and regulates the registration of
land in the province, the horse racing industry,
and the licensing of private investigators and security employees.
Complaints about the Ministry which my office
investigated and closed in 1981 were more than
two and one half times the 1980 figures. A substantial number of the complaints closed—approximately two-thirds—were with respect to
provincial correctional institutions. The remaining
28
complaints mostly concerned court servicesBk
the land registration system.
A. Court and Support Services
These two areas of the Ministry include court ad \
ministration, the Court Reporting Services, m\\
iffs' services, the Public Trustee, the Land fjtli
Office and the Film Classification Board. 1
Complaints about court services ranged fromde!
lays and difficulties in obtaining transcriptacf
court proceedings, to criticism of sheriffs' acfe
in serving process. Complaints involving the Lam
Title Office often required extensive searcrS
title documents and land surveys. My staff Ifd
continue to receive good cooperation in infh|
tigating these latter complaints.
A large percentage of the complaints against thi|
Public Trustee concern delays either in the ha|dl
ling of the estates of persons who are deceased")
incapable of managing their affairs, or in respond
ing to requests for information on the part of thei
heirs or relatives or the patients themselves. Ii
"The Long Distance Solution" the Public Trusree'|
failure to provide a timely response to written corr j
munication cost the complainant long distanoj
telephone charges. However, most complaiffic
delay were resolved when the Public TrM&
agreed to our proposals for action. There are ce
tain built-in delays which cannot be avoided i
estate matters, but simple requests for infcfie
tion from me, patients or interested relatives am
heirs, should be handled expeditiously. I
Of the four complaints alleging improper manage!
ment of an estate, one was substantiated. It was
relatively minor matter and was rectified by th L
payment of compensation to the complainan
I have received no evidence which would suggei
that the Public Trustee has persecuted the publii
servant whose complaint was reported in myari
nual report for 1980 (pp.27-28).
B. Criminal Justice Division
The guidelines set out in my last annual repo
continue to be followed and the cooperation re
ceived from the Criminal Justice Division remair
high.
C. Legal Services to the government I
In my last annual report, I commented on th|
attitude which the Civil Law Section had exhibite
towards my investigations and requests foiwifc
mation. Soon after I submitted my report irfl*
1981, efforts were made by the Ministry to im§ro\
matters. A senior staff counsel was assigned
concentrate on overcoming the delays in ^|P I
responses and to work with my office in resolvir I
the major outstanding cases which stood
stalemate.
■ggsult, personnel in the various branches of
■ffinistry were charged with the responsibility
■reiving and expediting communications con-
ing investigations of complaints about the
Htry. With the agreement of the Ministry, the
jgdures used by my office for notifying the
■myof complaints were simplified. In addition,
I dual solicitors were identified as responsible
Iroediting requests by other Ministries of the
■jrnment for legal advice and consultation
lespect to Ombudsman investigations involv-
liose Ministries. It was also agreed that where
I was no prejudice to the Crown or public
Est. solicitor-client privilege could be waived
lit any legal opinions prepared by Ministry of
Rorney General solicitors for their client Minis could be released to my office.
Bpneral level of responsiveness and coopera-
ravithin the Ministry and among its solicitors
leen greatly improved by these efforts. Sev-
ibf the outstanding contentious cases from
■ have been resolved. However, a year later,
I; remain in dispute.
£ rrections Branch
K)rrections Branch has responsibility for all
sicial correctional institutions and programs,
till as probation services, and family court
t^rellors. The institutional services component
■ Branch's operation consists of the youth
■inment program (a short term custody pro-
ifor juveniles) and adult facilities (maximum
ffiedium security facilities and forestry camps
ttiults whose sentences are less than two
Bin length). Only a minimal number of com-
t; that come to me have to do with the Correc-
■ranch's community-related programs such
|i)bation services; most of the complaints
nfrom persons in institutions.
81, my office received almost 300 complaints
Hng the Corrections Branch. This is approx-
t / five times the number received the pre-
ll'ear, and suggests that inmates are becom-
H)re aware of my office.
rii) the year, my staff visited a number of
HDial penal institutions in order to investigate
■Bints and discuss new complaints with in-
'e The largest number of complaints this year
Ufrom inmates in two maximum security in-
Uns: the Lower Mainland Regional Correc-
raGentre and the Prince George Regional Cor-
.« al Centre. My staff also visited the minimum
Uy centres at Alouette River, Twin Maples
\> ie Chilliwack Forest Camps.
Ma complaint is received from an inmate, my
klsp is to ascertain whether the inmate has
feted to resolve the problem on a local level.
pltxt step is to consider whether the issue
it's the type of complaint that I might wish to
Hi the Corrections Branch's internal inves
tigative body, the Inspections and Standards Division. If such is the case, and the complainant
agrees, I make such a referral and then monitor
the result. Sometimes, however, the complainant
may not wish the matter referred in this manner,
and sometimes I may have reasons for proceeding with the complaint investigation directly.
The level of cooperation I have received from the
Corrections Branch in the last year has been high.
I feel that good communication has been maintained between my office and the Branch largely
through a number of formal and informal meetings
with personnel from the Inspection and Standards
Division.
More than one quarter of the corrections complaints I received were resolved during the investigation stage or rectified after investigation. A
number of general areas of concern resulting from
individual complaints have been raised with the
Corrections Branch and are outstanding at this
report. I anticipate a resolution of these issues
over the coming year. These include: the general
standard of dental care within provincial penal
institutions, the policy which governs the giving of
reasons for an inmate transfer, the accessibility of
a Justice of the Peace to inmates, the standard of
natural justice required in the conduct of internal
disciplinary panels, and the special needs of inmates who require protection from other inmates.
Loffmark complaint—the latest word
My last Annual Report provided details of my investigation of Mr. Ralph Loffmark's complaint
against the Superannuation Commissioner, and
the impasse reached with the Attorney General's
Ministry on this matter. Reproduced below are
excerpts from two letters which provide the latest
word on this case
It will be recalled that the problem arose as I was
investigating allegations of political influence in
the reduction of Mr. Loffmark's pension, and the
Attorney General refused to permit one of his staff
to answer my questions. In a letter to the Attorney
General dated 18 December 1981,1 reiterated the
background to the problem, and continued:
"The past correspondence on this issue has
covered many aspects, such as my authority
to question Mr. Feme, whether formulating a
legal opinion is an administrative procedure,
and whether the posing of such questions
impugns Mr. Feme's professional integrity. I
felt, therefore, that I should make one more
attempt to resolve the impasse by identify^
ing precisely the information I am seeking,
lest the problem be caused by a misunderstanding over the significance of words
used.
"The administrative action I am investigating
is the decision, taken by the office of the
Superannuation Commissioner about May
29
—n
THE WIZARD OF ID by permission of Johnny Mart and Field Enterprises, I
1979, to reduce the amount of Mr. Loffmark's
pension. It is not the legal opinion given by
Mr. Feme. This legal opinion, however, appears to have been the major factor in the
decision taken by the Superannuation Commissioner or his staff, and it is conceivable
that a person wishing to influence that decision might have attempted to do so indirectly, by bringing pressure to bear on Mr.
Feme. Such pressure might have been in the
form of a hint or subtle suggestion as to the
result desired, or of a direct order or instruction; it might have come directly from a Member of the Legislative Assembly, or indirectly,
from a Member's staff or party supporter.
There are many possibilities and I shall not
attempt to describe them all, though I hope
that by now the essence of my interest will be
clear.
"I am seeking an unequivocal answer as to
whether Mr. Feme, prior to his giving the
Superannuation Branch a legal opinion on
Mr. Loffmark's pension eligibility, received
from any person a hint, suggestion or instruction, that could be construed as an attempt at 'political intervention'.
"If such an attempt had been made, I would
not propose to pursue the further question of
whether Mr. Feme's legal opinion was influenced by such intervention. However, in investigating the administrative action I mentioned, it is relevant for me to know whether
or not any attempt had been made to influence this action by either direct or indirect
means.
"I hope that this letter has clarified matters. I
would appreciate your informing me
whether I may expect to receive, before the
end of the year, the information I seek from
Mr. Feme. Since I reported on this matter to
the Legislative Assembly through my Annual Report for 1980, I feel an obligation to
inform the Assembly of any new developments, or lack of progress, in my 1981
report."
It would be difficult for me to express more clearly
the focus of my investigation, or to give greater
30
assurance that this focus was outside the soli«|
client relationship (between Mr. Feme andfhi
Superannuation Commissioner) that the Attdirie'
General has been so anxious to protect and wpi|
I did not propose to investigate. However, Bi|
letter dated 22 January 1982, the Attorney fjjn
eral responded:
"The portion of the August 27th letter rel
ceived by you from my staff dealing with thi
Loffmark matter was written in accordance
with my instructions. I have taken the time til
review this whole matter again, and j|anf
satisfied that the course of action setdlii
Mr. Hughes' letter of August 27th, 19M
fully meet the requirements of any pffle
inquiry which you may undertake.
"I suggest that you reconsider the matte
and acknowledge the impropriety offfiu
unwarranted attack on Mr. Feme anqjjiii
Ministry. If on the other hand you inteWi
persist on the present course of your irjft
I will have no alternative but to challengi
your right to do so."
It should be explained that the letter of 27 Augus
1981, to which the Attorney General refersjsuc
gests that if certain conditions are met Mr. Fern
might "detail in writing to you the entire proces
adopted by him in formulating the subject leg;
opinion". Although this offer and its implicwi
are surprising, unfortunately it is of no interst
me whatsoever. I have no doubt that any intelger
person who knows of this case must by now b
well aware of the information I am seeking, ipd
does not concern the adequacy of Mr. F||ie
professional training or work habits. It waldf
scribed in my last Annual Report, and it is setoi
again in the third paragraph of the excerpt of m
letter quoted above. I had hoped it would beery;
tal-clear from my letter that Mr. Feme is inwjve
because he may have relevant informatioiffin
not because he stands accused of anything.
At this point, it being obvious that the Attorne
General and I will continue to move endlessly i
unrelated dimensions in a sort of verbal Eschi
print, I feel I must end my investigation with th
further report to the Legislative Assembly (§tt>
matter. The frustration I have felt with the Ministry.
■wises in this case compares with James Is
■jsm of John Donne's poetry: "Dr. Donne's ver-
Igre like the peace of God; they pass all
Bstanding."
1007
lease of the missing transcript
Idividual complained that he could not obtain
Jnscript of a trial in which he had been in-
Ip. He needed the transcript in order to obtain
111 opinion on the possibility of a civil action
Kg from the conduct of the trial. He had been
s iy the Ministry that the transcript would not be
Heed because the court reporter who had
hi was no longer employed with the Ministry.
Kntacted Ministry staff and were informed
|ne shorthand notes taken by the reporter at
rial were available but that the notes were
Bpherable. The Ministry also had the tape
Kings which the court reporter had routinely
id of the court actions he reported. With the
■tance of a tape recording, the notes, it
aed, could be transcribed. However, we were
Eat staff at the local court registry had spent
■istening to these tapes but they could not
n tape of the trial in question.
m concerned that every effort be made to
Be the transcript for the individual who had
Hained to me. I was also concerned that
■situation be avoided in the future. In inves-
Hg the complaint I learned that court report-
HBritish Columbia is done by taking short-
H notes, or by using a machine or tape
3'er. It is only with the first method of reporting
■ problem of deciphering the record made
Raise. I also learned that in 1979 the Ministry
l^Eablished a policy that shorthand notes had
lain with the Ministry when a reporter left the
However, the Ministry did not require that re-
||s taking shorthand notes make backup
recordings.
Itch the Ministry agreed to implement a pol-
II supplying tapes to court reporters using
:rand and to require that these tapes remain
Hie Ministry. By this point the Ministry had
Managed to contact the former court reporter
Sfsk for his assistance in transcribing his
HHe was willing to assist but he required that
:>t of travelling to the local court registry be
rad. It seemed at first the Ministry expected
laliividual requesting the transcript to pay
Miosis. The Ministry had taken the position
Ms transcript had been requested an unreadily long period of time after the trial. Re-
H for transcripts were usually for the purpose
sg>3al and were, therefore, made within a few
it; of the trial.
I recognized that the passage of time might have
made the production of the transcript more difficult. However, as was true in this case, a transcript
could be required for purposes other than appeal.
I felt that it was the Ministry's responsibility to ensure that court hearings are accurately reported
and that transcripts are produced on request. It
seemed reasonable to expect the Ministry to keep
adequate records to do this. If the Ministry had
had procedures sufficient to guarantee that transcripts could be produced when a particular
court reporter was unavailable or unable to assist,
the extra expense in this case would not have
been necessary. I did not think the individual requesting the transcript should pay more than the
normal fees for its production. After further negotiations, the Ministry agreed to cover the travel
costs.
At about that time, the Minister assigned a senior
staff member to investigate the reasons for some
other delays and difficulties which had forced me
to make adverse comment, in my 1980 annual
report, on the Ministry of the Attorney General.
This staff member asked the local court registry to
pack up all the tapes and notes made by the
former reporter and to send them to Court Services headquarters in Victoria; there he could
make one last search. When, after a week, the
local court registry had not sent the tapes, the
senior staffer flew to the local registry and, in a
disturbingly short time, found the tape himself.
The complainant got his transcript without cost.
I was informed that the Ministry was as concerned
as I was by the course of events. The Deputy
Attorney General reviewed the matter and found
no evidence of deliberate intent to mislead. He
stated that the case did, however, reveal ineptitude on the part of managerial staff. I have been
told that steps will be taken with respect to staff
responsibility and managerial techniques to prevent such an incident's recurring.
At that point I closed the case. However, in preparing for this annual report, I learned that the policy
change implemented by Court Services was not
what I had assumed had been agreed upon in
March, 1981. The Deputy Attorney General had
said that a "new policy will provide for tapes to be
supplied to the Court Reporters to use as a backup to their notes and will be the property of Court
Services to be left with the Court Services along
with the shorthand notes". The policy circulated by
Court Services merely stated that if a backup
recording system is used by a court reporter, the
tapes as well as the shorthand notes must remain
with Court Services.
I raised the issue again with the Deputy Attorney
General. He has responded saying that the policy
implemented was as he intended and was meant
only to affect court reporters who choose to use a
tape as a backup system.
31
The problem presented by this case was how
could a transcript be produced if the court reporter is unavailable, the shorthand notes are indecipherable and backup tapes either don't exist
or can't be found. It appears to me that the problem has not been fully addressed. Therefore, 1 may
have to pursue the issue with the Ministry again in
1982.
CS 81-008
Benches and battering rams
A prisoner complained about the lack of
amenities in the Victoria Courthouse cell used to
hold individuals who are in custody, charged with
offences and appearing in court. The cell, which
holds from 10 to 20 people, had no chairs or
benches and no cups, towels or toilet tissue.
I was told by the Ministry that at one time the cell
had benches and a table. Two years ago,
however, there had been an incident in which the
benches and table had been broken and used as
battering rams. To prevent a repetition of the
event, the furniture had not been replaced by the
Ministry.
In reviewing the matter during the course of my
investigation the Ministry decided to have metal
benches installed and to ensure that cups, toilet
paper and towels be supplied as required.
CS 81-009
Complaint against police
Parents who had criticized the R.C.M.P. complained that their critical letter should never have
found its way into the hands of the constables
involved. Their letter, written to the Deputy Attorney General, had criticized R.C.M.P. handling
of their son during an arrest, and the offended
constables then demanded an apology. They
threatened a libel suit if no apology came.
The Attorney General had, I found, investigated,
and although he concluded that neither his office
nor the B.C. Police Commission was responsible
for turning the letter over to the constables, procedures concerning critical letters were as a result
changed. Under the new procedure, the local police detachment is given only a summary of the
complaint. In my judgement this is appropriate.
The complainant is protected, but the local detachment has the information needed to do the
irst-stage investigation required by the Police
Act. I
Since the complainant had suffered no damage
(no libel suit was launched) and the procedures
had been tightened, I discontinued my investigation into this complaint. However, I remain concerned about one feature of the complaint; it took
almost a year and a half to complete the investiga-
32
HjH
tion called for under the Police Act. The Act does i
not require speedy resolution of complaints. I rfjai I
in the future recommend changes in the Pom\
Act.
CS 81-010
Surveying the surveyors
The complainants, owners of a 19-acre hobbri
farm, had their property surveyed by a numbero!
land surveyors. They wanted a correct plan filel a
the Land Title Office as the latest filed plan was no
correct. I discovered that the problem lay witiffht
original survey plan which had been incorredtjpl
that the simplest way of correcting this error was t<
contact the original surveyor and have himrrffeil
statutory declaration to that effect; this was done I
and the plan in the Land Title Office was correfkecl
to reflect the true boundaries of the complaitBj,!
property.
CS81-011
Land Title Office: a lawyer's lament
A law firm complained that each time it conMteil
the Land Title Office concerning registratirMjfi
subdivision plan, it was told about extra reguire
ments. Sometimes the requirements contradieteil
each other. When the firm wrote to the responsibly
registrar and to the Director of Land Titles, ai
investigation was made. When I became invwecl
I reviewed the investigation.
The problem appeared to have arisen as ajpsu
of a substantial increase in the number of sub
division plans being presented to the Landiitlij
Office. In order to deal with this problem, ine>
perienced clerks were seconded from the general
office and in some cases failed to note defects i
applications; the applications were subsequentl
rejected by more experienced staff. The repjgral
had therefore instructed staff that hencefortwerj
would be no preliminary inspection of plansRin1!
that all plans would be dealt with once only by at
experienced plan examiner. He further stated the|
an applicant disagreeing with any requiremert
should discuss his concerns with senior Lan)
Title officials.
I told the law firm that the Land Title Office afl
peared to have dealt with the problem, but that B
would investigate if there were similar problems i I
the future.
CS 81-012
Time's up
A driver complained that he had been denied h
right to appeal a traffic violation report becaus
the court registry would not accept his notice i
dispute initiating the appeal. The registry receive
the notice after the appeal period had expire'
The driver had mailed the notice on the last day
I mm
lime period. He argued that the delay was
led by the post office and the notice of dis-
Itshould be accepted.
Ined that the limitation period is established
Itw and that the appeal period is clearly
Isd on the ticket given to a driver at the time of
■ffieged violation. I also learned that court
Imes use the date on the postmark to deter-
whether the notice was in time and that the
_|ark in this case was not within the appeal
id. I recognized that this was a reliable and
■Rive method of establishing the timeliness of
lopeal and found the complaint not sub-
Rated.
1-013
ll Claims and self help
■tail Claim Registry had refused to grant de-
Ijudgment to a complainant, saying that
[fr service of the summons had not been
Hon the defendant company. The complai-
nad served the summons by double regis-
? mail and receipt had been acknowledged.
Her, it was the Registry's position that under
Hivisions of the Small Claim Act, a plaintiff
3 not serve a summons, even by registered
Band the summons should have been mailed
Her the Sheriff's Office or the plaintiff's solici-
3ie complainant objected to this interpreta-
Hd felt that it was unreasonable and contrary
l^Belf-help spirit of Small Claim proceedings
te should be obliged to retain a solicitor or
tor the Sheriff's Office to mail the summons.
■judgment, this was correct. The restrictions
■ Small Claim Act on the service of a sum-
■ by a plaintiff appeared to relate only to
Hal service and not to service by registered
| Jl\ Ministry solicitor agreed with this position
Hent a memo to the appropriate officials to
ret the misapprehension, which appeared to
Hi more than one Registry.
Hmplainant had since obtained a court judg-
Imor part of his claim, but he felt that he should
llitled to the full amount which he would have
l^red if default judgment had been granted. A
at judgment may be set aside on the applica-
H a defendant who appears to have a valid
[l;e and provides an acceptable explanation
Hng to file a defence. It was therefore impos-
Ho speculate on what the outcome would
Hgen. if default judgment had been entered
I complainant.
More while I was unable to get the equivalent
■ttault judgment for the complainant, I was
■establish that his interpretation of the Small
pi; Act was correct; this interpretation will
lat simpler and cheaper for future plaintiffs to
p|3 Small Claim Registry system.
CS 81-014
Sheriff rides shotgun
A man called in distress over information he had
just received from the local Sheriff's office. He had
taken a Small Claims Action against a paving
company in order to recover the costs of an inadequate driveway repair job. A judge had awarded
him the claim, but later a Sheriff informed him that
he would have to pay to have the paving company's assets, such as a vehicle, seized and
stored. Since the man was on a fixed income, he
did not have the money to do this. He was distressed to learn that he would have to pay more
money to collect his award.
I called the local Sheriff's office to discuss the
problem. The Deputy Sheriff informed me that the
man could claim the costs of seizure and storage
in addition to his small claims award; however, the
Deputy Sheriff cautioned that the assets might
have liens against them and might therefore not
be worth seizing. He said he would do a brief
search of the company's assets and would advise
the man about the procedures available to him for
collecting his money.
CS 81-015
The long distance solution
The complainant, a Winnipeg resident, was the
sole heir of his father who died in B.C. without a
will. The Public Trustee, who was responsible for
administering the estate, asked the complainant
what should be done with his father's belongings,
which included a television set and some tools.
The complainant told the Public Trustee to send
these items to him because of their sentimental
value. Instead, by accident, these items were sold
at auction and the proceeds added to the estate.
The complainant spent more than $100 for long
distance charges in trying unsuccessfully to get
recompense and in objecting to certain fees
charged by the Public Trustee. He then complained that it was unfair that he should pay for
attempting to sort out a problem created by the
Trustee.
I found the complaint substantiated and recommended that the Public Trustee pay the complainant $100 as compensation for his loss of the
estate items. I also found that the complainant's
use of the long distance telephone to contact the
Public Trustee was partly justified because of the
Public Trustee's lack of a timely response to written communications. Where a complainant reasonably incurs expenses in an unsuccessful attempt to resolve his complaint on his own and the
complaint is later substantiated either in whole or
in part, the authority should reimburse the complainant in an amount reasonably attributable to
33
the authority's failure to resolve the complaint. I
therefore recommended that the Public Trustee
pay $50 as partial compensation for the complainant's telephone expenses. The Public Trustee
agreed to my recommendations.
CS 81-016
"Caligula" not banned in Boston ... or
Vancouver
The decision by the Film Classification Branch of
the Ministry of the Attorney General to permit the
showing of the controversial film "Caligula" resulted in public reaction consisting of the picketing of the theatre by concerned citizens, editorial
comment, hot line show discussions, and eventually a complaint to the Ombudsman.
Upon investigation of this complaint, I was impressed with the amount of research that went into
the decision of the Branch to permit the showing.
The Branch's staff followed the progress of the film
through the United States, where, in a Boston
court case, the film was ruled "not legally
obscene". Branch staff conferred with their colleagues in Quebec, the first Canadian jurisdiction
in which the film was shown, in order to ascertain
both that film board's rationale for passing the film
and the public's response to its showing in
Quebec Several members of the Branch consulted with academics on the subject of pornography. They then attempted to relate the information they had collected to their perception of
changing community standards. The Branch
considered cutting some shocking sections, but
concluded that cutting the film would remove the
impact of the film maker's statement that absolute
power corrupts absolutely. Instead, they required
theatre managers to enclose a very strong warning in their advertisements.
The Film Classification Branch kept a record of
complaints and comments received concerning
"Caligula". A telling comment came from one individual who stated that he did not intend to see the
film but supported the right of those who were
inclined to see it.
In investigating this complaint against the Film
Classification Branch, I was not attempting to set
myself up as a "super-censor". I had to make
certain that the process which led to the decision
to allow the film to be shown was comprehensive
and objective and gave fair consideration to all
points of view. If the Film Classification Branch
had not done its work in such a thorough fashion, it
might have left itself open to my finding that the
decision was arbitrary, and therefore subject to a
recommendation by the Ombudsman.
I concluded that the complaint was not substantiated.
34
CS 81-017
A duty to be fair: even in jails!
An inmate of a Regional Correctional Centre rSl
plained that the disciplinary panel of his institl||
used unfair procedures in investigating breatH]
of the rules of conduct. He had been charged fitl
fighting another inmate. He told me thatlfij
charge was quite valid, but that the methoGjH
proof were unfair. He had not been notified of thi
charge within 24 hours. He had not been gm
time to prepare his case for the disciplinary pane
And the panel, instead of looking only at thelrc
dent in question, had judged him guilty afterJSjr]
sidering other infractions of the rules of conSe
unrelated to the incident.
My investigation showed that he was right, j
that the prison in fact had rules that shouldffe
ensured fairness in disciplinary heariffis
However, the disciplinary hearing had follcWei
old printed forms, which contributed to unsuitabli
and unfair procedures. The Corrections Brand
agreed with my findings, and Inspection^
Standards are now preparing a disciplinary pre
cedures review, and new printed forms whicp/i
serve to guide fairer hearings.
In my opinion, both staff and future inmate^i
benefit when hearings are held fairly, usingBn
sistent procedures and improved forms. As for thi
complainant, he was given an apology by th
Director of the Institution.
CS 81-018
Music raises inmate's spirit
A young inmate complained that the CorreGjbn
Branch had refused his request to have acassett
brought into the institution. Inmates are permittei
to have radios, but he wanted a cassette in ordej
to listen to spiritual music.
The request was refused for security reasons. Sv,
curity in prisons requires that many objects ficl
are harmless on the street be forbidden. Priso
officials thought security might be endangered
inmates could make tape recordings injrofj
Since the inmate's request was, however, cwt
play tapes and not to record them, securityfflEe
not be endangered. A cassette player witlpt
recording head was available in the prisorHP1
Director agreed to allow the inmate use of th
player, interpreting security rules in the mostrei j
sonable way possible.
On the other hand another inmate complaint
that he was not allowed to make a late night phor
call to a radio station in order to request thi h
favourite tune be played on the radio. I foundtr
complaint unsubstantiated as the officeap
acted reasonably in refusing the request.
IP-019
win some, you lose some
(mate had two problems, one related to his
■ of 138 days of earned remission built up
Ig incarceration ("good time"), the second to
■tfdition of nearly four months to his sentence.
Inmate had had his short-term parole reed. Under prison rules, if a parole is revoked,
Id time" earned for previous good behaviour
■Bin most circumstances. However, some-
1 the revoking of parole is not the inmate's
■For example, if the inmate is granted a parole
Kb special training and the training school
I operating, the inmate is not at fault and
id not lose "good time". My office and Inspec-
Ind Standards both worked on the case and
lleded in showing that this was not a situation
s ch "good time" should be lost.
I ly, an inmate is informed that if his parole is
[3d he will lose "good time" credits. When this
ae accepted short-term parole, he was
lied a too-early release date. This error may
3 ed the inmate to believe that in accepting
'o he was not placing his "good time" in
isrdy. The Parole Board decided on the basis
Hiinistrative fairness to recredit the "good
■ Board later re-examined the process of
■ng short paroles, including the basis on
■ good time is lost if parole is revoked, and
narified its rules.
■mate's second claim, that concerning the
sfour months' sentence, was not substantiate inmate had been convicted of escape
iieing unlawfully at large. The Corrections
rh had the right to add four months to his
Bice.
■020
le owns confiscated cash
Bate complained that $20 was confiscated
He was in segregation, and the amount was
tidited to his institutional account.
Bs are prohibited from having cash on their
sis within the prison, so the inmate was in
|H>n of existing standards. His money was
ll;ated to be turned over to the Crown. The
ie investigated was whether the prison offi-
~S ad the authority to confiscate such funds
■gently. A review of the relevant regulations
MJ to the conclusion that they did not.
[■ore recommended the return of the inmate's
n on his release from the Correctional Centre,
Hggested that the Corrections Branch make
■guidelines to handle incidents of this sort.
CS 81-021
Chained to their error
While an inmate was being transferred between
prisons, his gold chains, which had been in the
prison safe, disappeared. The inmate took the
problem to Inspection and Standards. After seven
months, he wrote to me, complaining that Inspection and Standards had not resolved the complaint. I discovered that Inspection and Standards
had investigated, but that because the inmate
had signed for his personal effects at the time of
transfer and because of some inconsistencies in
his account, had concluded that the Corrections
Branch was not responsible for his chains.
On examining their file I discovered that the form
the inmate had signed referred only generally to
the inmate's personal effects and did not prove the
inmate had received the gold chains.
I concluded that the available evidence supported the inmate in his claim not to have received
the chains. As a result, Inspection and Standards
made further inquiry and met with the inmate, who
accepted a settlement of $1200 for the lost
property.
CS 81-022
Inmate buying time until court
communications corrected
An inmate was facing several penalties involving a
choice of fines or prison terms. If prison terms
were chosen, they could be served concurrently,
and the inmate applied in the ordinary way to do
so. Because of a communications breakdown between the Corrections Branch and the Courts, the
permission to serve concurrent time arrived just
prior to his release date and he was faced with a
fine of $644.89 before he was allowed to leave.
The problem came to my attention when a Correctional Centre guard asked me to help the inmate. I
discovered that Inspection and Standards were
already investigating. They recommended that
the fine be refunded, solving the inmate's
problem.
An examination of communication procedures
between Corrections and the Courts may prevent
similar problems in future.
CS 81-023
Director says pay; lost brogues reappear
An inmate claimed that at the time of his admission to an institution, he had been the proud owner
of an expensive pair of brogue shoes. Indeed, he
had worn these shoes to a number of subsequent
court appearances. However, as he was preparing to leave the institution for yet another court
appearance, it was discovered that the shoes
were missing. A nondescript pair was provided in
their place.
35
When the inmate wrote my office, he said that he
had complained about the loss of the shoes to the
Inspection and Standards Division of the Corrections Branch and that nothing had been done. My
office discovered that Inspection and Standards
had investigated and placed the matter in the
hands of the institution's Director. The Director
agreed to provide a voucher for $55 to the inmate.
Before a voucher was issued, however, the shoes
belonging to the inmate were found.
MINISTRY OF CONSUMER
AND CORPORATE AFFAIRS
Declined, withdrawn, discontinued
Resolved: corrected during investigation
Substantiated: corrected after recommend.
Substantiated but not rectified
Not substantiated
CLOSED—TOTAL
Number of cases open Dec. 31,1981.
119
52
3
2
36
212
71
luring 1981, my office dealt with 212 complaints'
directed against the Ministry of Consumer and
Corporate Affairs; 143 of these were against the
Rentalsman. As last year, many of these complaints dealt with the difficulty of access to the
Rentalsman's services: people can't get in touch
with the Rentalsman, and his phones are always
busy.
36
Other complaints are about the long delays com-
plainants encounter when dealing with the
Rentalsman. In landlord-tenant disputes, dejB
are irritating and expensive. If immediate actiqH
not taken, consequences often becomtH
creasingly serious. The dilemma in this situations
illustrated by the case "Justice delayed is jusjB
denied"—CS 81-031.
Unless the Rentalsman provides better actS
and speedier service, landlords and tenantsflB
have to resort to self-help. However, this is difficult
because adequate information services are lacking, and because the Residential Tenancy 4Hs
written in language that is difficult to understand;
The Rentalsman has assured me that he is maft
efforts to make his office more efficient. He 3w
require more funds to accomplish this goal.|
As was true last year, my working relationship with
the Rentalsman is good.
My office had 69 complaints against offir
branches of the Ministry, namely Consumeiffif-
fairs, Corporate Affairs, the Liquor Control™
Licensing Branch, and the Liquor Distribution
Branch. Although there were some difficultiesffe
cooperation I received from the MinistryHJs
satisfactory.
n 1977
CS 81-024
Liquor impropriety
The complainant, a corporation, applied irj
to the Liquor Control and Licensing Brancfc
preclearance for a neighbourhood public house
licence for a northern Vancouver Island community. The application was denied, and problems created by the denial were not cleared up
until 1981.
The company reapplied in February 1979. It took
the Branch until April 14, 1979, to acknowledge
the application, and until July 10,1979, to send an
inspector to the community. The inspector mel
with a number of individuals, including my com-j
plainant's competitor; the applicant, my complainant, was not invited to the meeting.
Subsequently, the Branch invited the comp||oi
to apply for preclearance for a neighbour|So
public house. The competitor, following this irgN
tion, filed an application on August 1,1979. The
complainant's application was denied on Octobei
16,1979. The competitor was ultimately grantee
preclearance.
The complainant then filed an appeal witflp
Minister of Consumer & Corporate Affairs.j|i>
appeal was heard by the Deputy Minister.Jp
Deputy Minister came to the conclusion thaf.trc
appeal should be allowed and that preclearjncf
should be granted. However, one of the condjjp
he imposed was that an independent survey k»
held of the residents within half a mile of the pro ■'
1!d site for the neighbourhood public house,
competitor, who had already been granted
liearance, had not been required to hold such
Hey. The complainant prepared for the survey
I anally did not complete it. He alleged that
| had been a campaign in the community
■hist him, and in any case he considered it
||ly that the local authorities would approve
|for a second neighbourhood public house
| small community.
Investigating, I found the company's com-
|was indeed substantiated. The procedures
ll by the Liquor Control and Licensing Branch
laling with the complainant's application had
|(s that were unjust and improperly discrimi-
|y; the Branch had acted improperly in in-
|ng a prospective competitor of the complai-
h application; it acted quite improperly in
Ing the complainant's competitor to make an
barton. In addition, there were unreasonable
Is
lomplainant now no longer wished to estab-
Ipublic house, but rather wanted a licence to
■iquor in a recreational facility furnished with
:s equipment. The complainant felt that a
Kjm seating capacity of 65 was necessary to
■this venture viable. The Liquor Control and
King Branch was not willing to approve the
led seating capacity.
mmmended that the Liquor Control and Li-
Ing Branch either approve the requested li-
Hor compensate the applicant for losses
led as a consequence of delays and unfair
mures used. The Branch did not accept ei-
pcommendation.
; met with the Minister of Consumer & Corpo-
Bfairs who undertook to review the issues
Bally. The Minister's involvement led to a
Hnstructive meeting between the complai-
Hnd representatives of the Branch. The
r h now agreed to approve the application to
Hiquor in the recreational facility; this had
bone of my recommendations.
icunately, because of the present economic
con affecting northern Vancouver Island
Hnities and because of the high interest
il! the complainant is no longer able to pro-
Kyith his plans to establish a recreational
SB 025
Hpry authority for wine policy?
Bved a complaint about Liquor Control and
•siing Branch requirements that all licensed
9 establishments carry a selection of British
Hbia wines.
Hing that I was not expressing an opinion on
Hlsirability of such a policy, I asked the
B|-i about its statutory basis. The Branch in
formed me that it considered the issue a matter of
policy, implying that "policy" was not a "matter of
administration" and was therefore outside my
jurisdiction.
I informed the Branch that my jurisdiction can
indeed include matters of policy, and that in any
case the issue was one of administration; a public
servant, the General Manager of the Branch, was
enforcing a policy which, on the surface, appeared to lack statutory authorization.
Further correspondence was exchanged between my office and the Ministry of Consumer and
Corporate Affairs. The Ministry persisted in claiming that policy was outside my jurisdiction. The
question became the subject of a discussion';
among Deputy Ministers. Side effects of this controversy began to be felt in other cases pending
against various ministries. I felt that the time had
come to have the limits of my jurisdiction clarified
and confirmed by the Supreme Court of B.C.
However, at this point the Ministry saw fit to provide
me with the information I had requested. Its Director of Legal Services informed me that the Ministry
was unable to determine exactly how this particular policy had originated. He drew my attention to
certain sections of the Liquor Control and Licensing /Acfwhich, together with the scheme of the Act
and the Liquor Distribution Act, supposedly
provided statutory authority for the policy in
question.
I once more examined the provisions of the two
above mentioned Acts and concluded that the
Liquor Control and Licensing Branch, in requiring
licensed dining establishments to carry a selection of British Columbia wines, is acting outside its
jurisdiction, and its actions are based on a mistake of law. I recommended to the Branch that it
not require licensed dining rooms to serve such
wines unless and until statutory authority exists for
such a requirement.
The Liquor Control and Licensing Branch then
informed me that its own legal sources disagreed
with my opinion.
I considered whether I should make the issue the
subject of a report to Cabinet and/or to the Legislative Assembly. Considering the nature of the
case and the nature of the policy involved, I decided not to devote any further resources to this
matter and not to exercise the above mentioned
options. However, I still feel that the Liquor Control
and Licensing Branch may be acting without statutory authority.
CS 81-026
Liquor store properly sited
When the Branch relocated its liquor store in an
interior community, it leased retail space for the
new store. A local corporation expressed to me its
37
suspicion that political considerations at the municipal level had influenced the site selection.
My investigation revealed that the Branch had
followed appropriate criteria in selecting the new
location. The requirement for retail space had
been advertised to the public. A Branch committee examined all offers received and made a recommendation to the General Manager of the
Branch. The General Manager acted upon the
committee recommendation received. The recommendation was based on appropriate site location, convenient service to residents and tourists, and lease costs. The site selected met all
criteria.
I found that the Branch used proper procedures in
arriving at its site selection decision and that the
complaint was not substantiated.
CS 81-027
Limit on mark-up of liquor
I received a complaint against the Branch concerning the fact that licensed establishments cannot mark up wine by more than 100%.
A regulation made pursuant to the Liquor Control
and Licensing Actrequires that all licensed establishments make available to the public a price list.
This list must be approved as to format and pricing formula by the General Manager or his authorized agent. I interpreted this to mean that the
General Manager is indeed empowered to determine the price of liquor sold in licensed establishments and to impose a limit on mark-up. I therefore
found this complaint unsubstantiated.
CS 81-028
A society's responsibility
A member of a society incorporated under the
Society Act, having been denied a financial statement by the society, turned for help to the Ministry.
Later he complained to me that the Ministry had
not helped him.
I am not empowered to investigate societies, but I
can investigate Ministries so I discussed the matter with Ministry staff. They informed the offending
society that it is obliged by statute to send financial information to members. Further, they offered
to provide my complainant with the financial statement he wanted from their own records.
CS81-029
Long wait for payout
In 1966 the complainants invested approximately
$1600 in certificates of a Mortgage Corporation.
The funds of the Corporation were frozen by the
Superintendent of Brokers in 1968. A Trustee was
appointed but he failed to take the necessary
steps to complete the payments to the investors.
38
For many years nothing was done until the complainants brought this matter to my attention and
contacted the Superintendent of Brokers. LM
receipt of the complaint the SuperintendernB
Brokers met with the Trustee of the CompanyHJ
agreed to make payouts to all the remaining investors. The Superintendent of Brokers undertooM)
supervise the payout to ensure that it wouldM
completed.
CS 81-030
Promises, promises . . .
A landlord complained that a Rentalsman Offfi
had failed to keep a promise to send her a cffl§-
sion letter within a specified period of timeH
The Rentalsman Officer acknowledged the oB-
sion and offered an adequate explanation. B-
ertheless, the cause of the further delay should
have been explained to the complainant when it
became clear that a decision could not be made
by the promised date.
I informed the Rentalsman that I had receMd
several complaints about the failure of Renral-
man Officers to return phone calls and mail lems
on the dates promised. While I had not inwp-
gated each of these complaints, I felt the prolfe
was serious enough to warrant preventive action. I
suggested that the Rentalsman issue a reminder
to his staff in the hope that this problem would
occur less often in the future. In response, a Depj
uty Rentalsman wrote a memorandum to his&
This suggested that staff members generally
avoid promising to do something by a specjSd
date, but that if they had made such a promise
and could not keep it, to let the landlord orttffit
know why. The memo also told staff to makagn
effort to return telephone calls quickly. Whilejffiis
was probably well-intentioned I am not satj^d
that this response will necessarily lead to appropriate service to the public.
CS 81-031
Justice delayed is justice denied
Two tenants from different parts of the province
complained that delays in the handling of their
respective landlords' applications for substantia
additional rent increases could cause them finan-|
cial hardship and considerable inconvenience.J
Staff at the Rentalsman's office had told the tenants that, because of Rentalsman backlog, a de
cision on the landlords' applications might not be
made until after the effective date of the proposec
rent increases. The tenants complained thatifthe
landlords' applications were approved they coulc
not afford to pay the rent and would have to seel'
other accommodation.
One of the tenants said that since she could no
budget for the increase, she felt compelled to give
her landlord a notice of termination without waitinc
for a decision from the Rentalsman's office. The
lalsman's office told me that the delays in
llling this type of rent increase application
Igresult in a tenant's receiving less than a one-
j h notice of the amount of rent increase. It was
Honfirmed that the Rentalsman's office cur-
r had no guidelines with respect to the exer-
of its discretion.
[Rentalsman agreed with me that tenants
: d not have to bear the cost of delays caused
s office's backlog of applications. He was
lared to issue a policy guideline to his staff to
re that tenants have the proper amount of
Ito decide whether to stay or go. He also
lid that, for this policy to be effective, dispu-
Hand applicants should be fully informed of
lolicy and advised of the delay they can ex-
iDefore a decision is made.
1-032
Idy inspection warming to tenant
Bant complained that the Rentalsman had
e to respond to his requests for an inspection
! suite.
Hiant had found his suite cold and had been
le to convince his landlord to provide more
■He applied to the Rentalsman to redirect his
b pay for a portable heater. A Rentalsman
crpromised to have the premises inspected.
Hwaiting more than four weeks, the tenant
Hained to me that his premises had not yet
Hispected and that his phone calls had not
returned.
Hpected the Rentalsman's file and dis-
td the matter with a Deputy Rentalsman who
Hied that because of high caseloads and
Hiortages, three-week inspection delays
Hot unusual. In this case, the file showed that
Kjtalsman Officer had in fact requested the
Bon of the complainant's suite but the re-
Hhad not been properly communicated to
t.iff reponsible for inspections. It was appar-
tit this was an isolated incident and was not
b any deficiencies in the procedures used.
Hjmplainant's file was referred back to the
Hsman Officer for completion and an inspects conducted. A hydrograph machine was
Hid to measure the suite's temperature and
rjity over a 48-hour period.
I MINISTRY OF EDUCATION
tji3d, withdrawn, discontinued 11
Bed: corrected during investigation 6
Hmtiated: corrected after recommend 1
H.ntiated but not rectified 5
Hostantiated _9
.OSED—TOTAL ^^r. 32
|r of cases open Dec. 31,1981 _3
The Ministry of Education has a wide range of
responsibilities relating to education and special
programs in the schools and institutions of British
Columbia. Local school boards set policy and
priorities within the framework established by
Ministry of Education policy following the School
Act.
I do not have the authority to investigate public
schools, colleges, and boards of school trustees.
However, I have found that the Ministry of Education has helped resolve some complaints and in
other cases has furnished information which has
helped the complainant to understand the problem better and seek a local solution. My staff and I
have found the Ministry of Education personnel to
be knowledgeable and cooperative.
I have attempted to arrange a meeting with the
Minister of Education but unfortunately he has not
found it possible to accede to my request. I have
pursued with the Minister several complaints received from teachers on probationary appointment who were terminated without the benefit of
an impartial review commission. These teachers
were concerned that they had not been afforded
natural justice and fairness. I have asked the Minister to consider a proposal for changing statutory
provisions so that probationary teachers are given
similar safeguards to teachers on permanent appointment. I believe, as the Minister does, that it is
imperative that competent teachers be placed in
the classroom. However, I believe it is regrettable
that the Minister apparently has decided that a
review commission not be mandatory. In my opinion, such a review procedure need not increase
the possibility that an incompetent probationary
teacher would be allowed to remain in his or her
position.
CS 81-033
Parlez-vous immersion? Non, says school
board
I received a number of complaints about education matters that arise where the Ministry creates a
policy or guidelines within which programs operate in the schools. In some instances, it is a decision of the local school board whether or not to
implement the program in the schools under its
jurisdiction; other programs are mandatory. A
good number of these complaints concerned
French immersion classes for elementary school
students.
Some parents aimed theircomplaints at the Ministry itself, arguing that since one fully French program, the Cadre de Francais, is available only to
children of francophone parents, there is discrimination against anglophone children. It is provincial government policy that the French population
have the right to be educated in their first language. Costs associated with the program are the
39
responsibility of the Ministry. It is my opinion that
the policy regarding the Programme-Cadre de
Francais is not improperly discriminatory as its
existence is founded on the laudable principle
that children from homes where parents use either
of the two official languages of our country may be
educated in that language.
Other parents aimed their complaints at local
boards of trustees, saying that they had not considered the wishes of parents in deciding not to
implement immersion programs.
Early French Immersion and Late French Immersion programs of the Ministry are available to children of any cultural origin but at this time, are
implemented only if the local school board
chooses to do so. Extra costs attributable to these
immersion programs must be borne by the school
district and therefore are phased in when an affirmative decision has been made at the local level.
The Ministry has developed the curriculum within
its policy and guidelines for French education of
anglophone children and it is a local option
whether that curriculum will be implemented.
At the moment, my jurisdiction extends only to
government ministries, crown corporations,
boards and agencies in which the majority of directors are appointed by Cabinet or a Minister, or
are in some way responsible to government. While
this enables me to inquire into decisions of the
Ministry of Education, it does not allow me to comment on the actions and decisions made by a
board of school trustees, nor on whether parents'
wishes should be taken into account when decisions are made against the implementation of a
French immersion program.
CS 81-034
Fairness for teachers
A teacher was disturbed about the decision by
the Board of Trustees of his school district to transfer him from a senior secondary to a junior secondary school. He formally appealed his transfer
to the Board of Trustees but was advised that the
Board had resolved to proceed with his transfer;
no reasons for this decision were given.
The School Act states that a teacher may appeal
to the Minister of Education against a transfer, and
the Minister may review the case and then make a
decision which is final and binding. This teacher
requested such an appeal. A representative of the
Minister asked the teacher if he had any additional reasons why his transfer should not take
-.lace. A letter was also sent to the Board of Trustees and asking for reasons for the transfer. Less
han a week later, the teacher was advised that the
Minister had decided to sustain the transfer.
The focus of my investigation lay with the procedures used in the "reviewing" of the transfer.
Impartiality and fairness should be observed in
40
the process being undertaken by the MiniR
who is acting more or less as a judge in a corf§|
vital to the complainant. Fairness often requires
that each party in a dispute have a chance to ifi
the argument the other is making, and havSa
chance to rebut it. In this case, neither the teacftr
nor the Board of Trustees had the opportunitH
be aware of the position presented by the other.
As a result of my intervention, the Minister agreed
to review again the teacher's transfer and as a part
of that process he agreed that both the Boarcfol
Trustees and the teacher will receive a copy offie
submission by the other and each will then fSl
the opportunity to refute, alter or agree withHe
points of the other submission. Following slT*
review by the Minister, a response with reasonfe
the final decision will be given to both parties. The
Minister has agreed that this procedure will a»
in all future transfer reviews carried out by flm.
It is my opinion that the inclusion of these pro
cedures will reflect the basic principles of nafffa
justice and fairness in such situations.
CS 81-035
Parent-school conflict
One parent complained about administrationMc
policies at her child's school, but it soon appeared
that many other parents had similar concMs,
and that the parents had been unsuccessMal
starting discussions that might have resolved the
problems.
A problem of special concern was that schoo
administrators had, without informing parentsT
quired some students to sign a 'contract' which
stated rules for behaviour. Violation of the 'contract' had resulted in the expulsion of one pupil.
Several others had dropped out as a resufol
dissatisfaction with methods used by teacjgrs,
principal, and School Board.
The parents wrote to the Minister of Education anc
asked for an inquiry. The Minister replied that he
believed that parents and school had met anc
resolved the problem; the parents did not believe
this had happened.
The Ombudsman does not have jurisdictlMtc
investigate school boards and their employees
The section of the Ombudsman Act proving
such authority remains unproclaimed. Therefore
my investigation focused on the actions of the
Ministry. I encouraged Ministry personnel to keef
watch on the situation. They discussed the matte
on several occasions with the superintendent.
Eventually, a committee composed of parents
teachers, administrators and trustees was former
and dialogue began. It appears that the useo
student contracts has now been stopped ant
other techniques for dealing with questions*
behaviour, acceptable to parents and students
are being implemented by school administrate
r
|jw3diation role played by the Ministry has had
lesired result of bringing about an improve-
I in communication and an attitude of trust.
-036
i the federal hand know what the
ncial hand is doing?
Lng woman wished to take training which
If help her in working with children. Early in
I she went to a Canada Employment Centre
:) counsellor and made application for spon-
(ip through CEC. Two months later, she was
|jy her counsellor that she was fourth on the
I be placed in the course of her choice. The
nn understood this to mean that she was
led of a space. This was very attractive to her.
■|her course was in a field where CEC pre-
Hpritical skill shortages, she would be given
Hiliving allowance, have her tuition paid and
fgible for UIC benefits.
Her, while she waited for her course to start
id fell through. The Provincial Government,
Eh the Ministry, has the right to set the fees to
!|iid by CEC. For the fall term in 1981, the
(iry substantially increased the fees in order
Bet the actual costs of educating each stu-
fiThe Federal Government did not allocate
H*tra dollars. In order to meet these new
Hints, CEC dropped its sponsorship for the
it3 the complainant was planning to take. This
jise to the complaint. My focus, because of
ihits of my authority, was on the role of the
■cial Ministn of Education.
Hi that the actions taken by the Ministry were
■ the framework of the Federal-Provincial
■ment. While the result was disappointing
=ne student's point of view, it did not come
U through any breach by the Ministry of its
rtctual obligations.
H3ld us that no person should assume that a
a is assured until final confirmation is given.
Htample clearly points out how the decisions
•9 level of government can affect the services
Sther level. Unfortunately, the cumulative
Hnay adversely affect members of the pub-
Mo are often not informed of decisions.
937
ked improvement
pr had been employed to grade papers
by students of the Correspondence
i of the Ministry of Education. His pay was
on the number of papers marked. He was
called a casual worker and as such was
njblic servant covered by Public Service
i :ts.
At issue was whether the marker was entitled to
holiday pay. If he was an "employee", legislation
required that he receive holiday pay. The Ministry
thought that the fee-for-service basis on which he
was paid showed that he was not an employee but
a self-employed individual. I was able to point out
to the Ministry that it had deducted income tax
and unemployment insurance premiums from the
complainant's pay, and therefore, in my opinion,
he was an employee and entitled to vacation pay.
The Ministry, upon obtaining legal advice, issued
a cheque for $379.91 to the complainant and also
'volunteered to search its records and determine
whether other course markers in similar circumstances should also receive vacation pay.
CS 81-038
Regulation on probationary teachers unfair
A teacher was appointed to the staff of an elementary school in September 1978, and in May 1979,
received notification that he was to be placed on
probationary appointment. In February 1980, his
employment was terminated. The termination was
based on assessments carried out by his supervisors but which the teacher believed were written
in an unfair manner and based on incomplete
information.
The teacher was granted an interview with the
School Board, the employers of the supervisors
who had made the allegedly unfair report on the
teacher's conduct. The Board upheld the termination of the probationary teacher's employment
with the school district.
Through the School Act and regulations, a
teacher who is terminated while on probationary
appointment does not have the right to request
that an impartial review committee be established
by the Minister of Education. There is no requirement that written reasons be given when a teacher
is either placed on probationary appointment, or
terminated, and therefore such a person would
have little remedy.
Some teachers with excellent records from former
school districts have been harshly treated by districts to which they move. A teacher hired with the
expectation of a continuing appointment may be
arbitrarily reclassified as a probationary teacher
and then, later, terminated. The reclassification is
used as a way of avoiding School Act requirements for hearings.
It is my belief that probationary teachers should
be allowed the same statutory rights of review as
teachers on a continuing contract so that probationary teachers' appointments cannot be arbitrarily terminated. However, the Ministry of Education has not effected changes which would
ensure at least this minimum of natural justice and
fairness and therefore the complaints which I have
received could not be rectified.
41
MINISTRY OF ENERGY, MINES
AND PETROLEUM RESOURCES
Declined, withdrawn, discontinued 1
Resolved: corrected during investigation 5
Substantiated: corrected after recommend. 2
Substantiated but not rectified 0
Not substantiated _3
CLOSED—TOTAL 11
Number of cases open Dec. 31,1981 9
CS 81-039
Holes in the seamless web of the law
A placer miner lodged a formal complaint with the
Chief Gold Commissioner concerning two placer
mining leases held by another miner, which he felt
should be cancelled. The Commissioner set a
date for a formal hearing on the matter under s.50
of the Mineral Act, but later cancelled the hearing
and informed the miner that s.50 of the Act did not
apply to matters involving placer leases. The
miner did not understand the reason for the cancellation, and despite many contacts, was unable
to obtain a comprehensible reason from the Ministry. Since a considerable period had elapsed
since his original complaint, he was afraid that any
further delay might legally preclude him from taking further action. He therefore brought his problem to me.
My investigation showed that placer leases were
affected by two separate statutes, the Mining
(Placer) Act and the Mineral Act. Until 1980 the
Ministry had relied upon the hearing procedure in
the Mineral Act to handle complaints involving
placer leases, but a legal opinion had then been
provided to the Chief Gold Commissioner that this
was a misuse of the legislation. In effect there was
no method provided by law for dealing with disputes concerning placer leases. The Ministry intended to rectify this situation by introducing appropriate amendments to the legislation as soon
as possible. If the amendments were made retroactive, the complainant's objections could be
heard at some time in the future.
Since the resolution of this matter must necessarily await the 1982 session of the Legislative
Assembly, when the "seamless web of the law"
will presumably be repaired, I have informed my
complainant of my findings, and have ended my
investigation.
CS 81-040
Major mistreatment of miner
The operator of a placer mine complained that his
mine had been shut down unfairly. He was informed by the local inspector of mines that several
complaints had been received regardingM
muddiness of the creek running past his operation, and as a result he was informed that the
operations could not be resumed until ponllf
and water clarification was adequate. He was also
told that a reclamation bond would be reqtm
from him before he could reopen.
The complainant had been afforded no opportunity by the Ministry to answer the "complaiw
against him. In fact, investigation showedHt-
only one complaint had ever been receiveH
neighbour had stated that he had seen mJl-
ness in the creek the previous fall. Regular insgffi-
tions of the operation had been conducteeB
Ministry staff, and the fall inspection report had
noted that the operation was going well andffit
no reclamation permit was required. The complaint that the Ministry had used unfairfljl-
cedures was therefore substantiated.
The mine operator also was concerned about the
length of time taken by the Ministry to approvSs
permit application. This aspect of the complaint
was substantiated as well, as the mine operator
had applied for a permit in May but did not re<8e
his permit until July.
On the basis of my findings, I recommended that
the Ministry apologize to the complainant for Siting down his operation without a Ministry-conj
ducted inspection, and that where new forms or
bonds are required for the first time, notice ol
these requirements be given to the party well before the start of the mining season. Lastly, I recommended a procedure to minimize the timare-
quired for obtaining permits during the miffng
season.
The Ministry fully implemented my recommffld-
ations and sent the complainant a letter of a
ogy. As well, a directive was issued by the Chie'
Inspector of Mines to all inspectors and resideni
engineers in the Ministry, implementing,/
recommendations.
MINISTRY OF ENVIRONMENT
(The figures below include complaints against the
Pollution Control and Pesticide Control Appea
Boards.)
Declined, withdrawn, discontinued *'* I
Resolved: corrected during investigation Hj|
Substantiated: corrected after recommend. 8
Substantiated but not rectified :—
Not substantiated 1
CLOSED—TOTAL
Number of cases open Dec. 31,
il!
21*
1981. -J
11981 figures for complaints involving this Min-
lare dominated by the large number related to
Ifearibaldi Case" which was the subject of my
ISpecial Report to the Legislative Assembly
i in 1981. Because I closed that matter after
||g that nearly all of these 153 Garibaldi corn-
Its were substantiated, the bald statistics
l/ that almost three-quarters of the complaints
Inst the Ministry of Environment were
Igantiated.
sver, in order to maintain some kind of per-
tive I feel I should provide a second list for
Ministry, with the Garibaldi cases excluded,
my comments below are based on this list:
ned, withdrawn, discontinued 30
Ived: corrected during investigation 16
tantiated: corrected after recommend 2
lantiated but not rectified 1
libstantiated „.11
BLOSED—TOTAL 60
per of cases open Dec. 31, 1981 46
n be seen that much the same number of
jgations was closed in 1981 and in 1980,
3 slightly higher proportion of the 1981 clos-
being resolved by the Ministry (i.e., before I
reached any final conclusions) or being
i "not substantiated".
Ugh I did not discern any trend of complaints
ted towards one specific area of this Minis-
responsibilities, there is one word which
ably arose in a considerable proportion of the
flaints during 1981: flooding. Following di-
His floods in various parts of the Province in
Imber 1980 and in 1981, people complained
It the procedural guidelines, the delays, and
Bsic policy involved with flood relief (Provin-
Bnergency Program). Others complained
ic: the inadequate funding of the River Protec-
Essistance Program (Water Management
Hi), which offers government/citizen cost-
aig on preventive measures such as the build-
Bjykes and strengthening of river banks. Yet
Homplainants were unhappy about the way
Ministry handled its responsibilities under
JJ 1) of the Land Title Act, by which a restrictive
[giant may be required prior to subdivision
pval of land in a flood plain.
Hyithout my elaborating on development pat-
rr in flood plains, or on the climatic conditions
iii regularly bring enormous precipitation to
■parts of the Province, I feel it is well known
Hany of our citizens live in the shadow of flood
e:s which are more severe than those facing
I other Canadians. It is equally clear to me
ahnder the present legislation people can—
and frequently do—buy properties whose Certificates of Title give no indication that they lie in flood
plains. Purchasers are often unaware either of the
likelihood of flooding or of the possible need for
restrictive covenants should they wish later to subdivide. Hence I receive complaints from people
who are convinced (even if I cannot substantiate
their complaints' against administrative actions)
that they are the innocent victims of traps and
shortcomings in "the system". The key phrase
seems to be "If only I'd known that before!".
I believe this situation provides much room for
initiative on the part of this Ministry. Residents
need to know how to prevent or minimize flooding.
They also need to know what government help is
available if aflood does occur. If residents had this
information there might be several benefits; I
would receive fewer complaints, government
would need to pay less disaster compensation,
and citizens would experience less despair, distress and financial hardship.
In my last Annual Report I mentioned some public
concern about pesticide use permits and the decisions of the Pesticide Control Appeal Board.
Individuals and groups contacted me again
about these matters in 1981. In such cases, I often
must explain that I cannot become involved in
technological or scientific arguments. The use of
a herbicide or other chemical substance on a
large tract of land inevitably involves some risks or
adverse effects alongside the anticipated benefits. The comparison of such risks and benefits is
essentially a scientific exercise. I do not foresee
circumstances in which my involvement would be
useful in making an assessment of this kind.
However, it is my role to investigate procedures
and administrative methods. I might, for example,
verify whether Ministry officials have considered
all relevant information and insisted on necessary
precautions before issuing a permit, or whether
the Board has observed procedural fairness in
hearing objections to a permit.
The complaints I received did lead me to feel that
the Board's procedures could be improved. For
instance, some complainants pointed out that the
Board never gave reasons for its decisions, so that
on the few occasions that objections were successful it was impossible to know what factor had
been the crucial one. Others complained that
since transcripts of the hearings were never
made, it was impossible for them to demonstrate
later their case that the procedures were slanted
in favour of the permit holder.
Early in 1981 this Ministry was preparing the statute and the regulations for the Environment Management Act, under which an Environmental Appeal Board would be established to take over the
functions of both the Pollution Control Board and
the Pesticide Control Appeal Board. My staff
43
J
therefore met with a senior official of the Ministry
and with the Ministry's solicitor, to go over all the
procedural complaints that had arisen, and I was
pleased to see that the recent Environmental Appeal Board Procedure Regulation had addressed
some of the problems which were identified.
Finally, there remains the problem of the Garibaldi
complaints. I believe my original investigation uncovered all the relevant facts, and these were included in my Special Report. Having gone the full
distance permitted by the Ombudsman Act, I was
obliged to close these cases in 1981. To the best
of my knowledge at the time of writing, many of
them have not yet been rectified.
CS 81-041
Impossible deadline
The owner of a IO-acre property beside a creek
complained that the Ministry had ordered her to
clean up a mess for which she was not responsible, and had set an impossible deadline for completion of the work.
Investigation revealed that the complainant had
made an oral agreement with a contractor, by
which the contractor removed 30,000 cubic yards
of gravel from the property in order to provide fill
for another job he was doing. However, after he
removed the gravel, the contractor failed to complete the job. Winter rains turned the partly-excavated property into a "moonscape", and much
mud was washed into the nearby creek. In an
effort to put pressure on the contractor the complainant contacted a number of agencies, including her Regional District office. That office contacted the Ministry of Environment, which sent an
engineer to inspect the site. Noting the condition
of the property, the contamination of the creek,
and the fact that a downstream neighbour used
the creek water for domestic purposes, the official
ordered my complainant to clean up the creek
within six weeks, and to take steps to prevent
further contamination.
The complainant felt that the Ministry should pursue not her but the contractor who had caused the
problem. She could not afford the $10,000 it
would cost to restore the property. Further, the
ground was soaked and would not support the
heavy machinery needed for the job. The complainant felt sure the Ministry would fine or otherwise punish her if she did not meet the deadline.
We discussed the problem with all parties involved except the elusive contractor. The complainant finally accepted that it was reasonable for
the Ministry to address its order to her as the
owner of the property, and not to become involved
in the dispute between her and the contractor. The
Ministry, recognizing her problems, withdrew its
44
deadline and agreed that the work could be completed later in the year, when weather and ground
conditions were suitable. Also, it clarified that it I
was requiring only about $500 worth of work, M \
sufficient to prevent further contamination of the I
stream.
The contractor had used the gravel he had removed on a job he was doing for the federal government. In an attempt to help the complainw
further, my investigator contacted federal government officials, to see whether the contractor hap
been required to post a labour and materials bond
which might be used to repay the complainant. A
bond had been posted, but unfortunatelythetJii|
limit for claims had expired months earlier, so tie
dispute with the contractor remained. HowevE
the part of the dispute which was within my jurisdiction, that involving the impossible deadline imposed by the Ministry, was resolved.
CS 81-042
Water pressures
A single parent contacted my office with two com-
plaints. The Ministry of Environment was, she
said, delaying issuing her with a water licence,
thus depriving her and her family of a water supply. The Ministry of Human Resources was, she
felt, harassing her in an attempt to prove that she
was incapable of caring for her son.
As lack of water was the more urgent concern, I
decided to focus my investigation on this matter
first. The water problem hinged on the issue of
access to her water supply as the souce of tfie
water was not on the complainant's land, but on
land owned by MacMillan Bloedel and leased by
a neighbour. The neighbour was denying the
complainant the right to cross the lease to reach
the water supply. Therefore, simply issuing awater
licence would not have provided her with access.
Consequently, while arranging for the licence to
be processed quickly, my office informally m-
preached MacMillan Bloedel in an attempt to||-
solve the problem. As a result of their cooperation,
she was issued a formal access permit. The co|n-
plainant now has a clear legal right to the water.
With the water problem resolved, the household
pressures that were aggravated by lack of water
were relieved and the complainant decided not to
pursue her complaint with the Ministry of Human
Resources.
Resolving this complaint involved the voluntary
cooperation of a range of authorities—from the
R.C.M.P. to the school board to MacMillan
Bloedel. Their recognition that the complainants
difficulties with her water line warranted their time
and attention is commendable.
111-043
1 to inform
/y spring, the river next to a complainant's
Hrty burst its banks and damaged his prop-
Hfhe property owner applied to the Ministry of
pronment for financial help in controlling the
■ Under the River Protection Assistance Pro-
|t, Ministry staff may approve government
Big of up to 75% of the cost of works needed
■event damage caused by a flooding river,
lis is, however, a long waiting list, and the com-
llant was told that his project was eligible but
Id not be funded immediately.
lar and another flood later, the complainant
Ided he must go ahead on his own. He as-
led he would eventually be reimbursed 75% of
Hosts, but apparently did not check this as-
Ktion with the Ministry. In fact, the Ministry had
Hey against sharing in projects already com-
E'd and assumed the complainant was aware
Its. The property owner complained to me that
Hry officials should have made this policy
picluded that both parties had acted upon
Bsonable assumptions. It seemed to me that
Homplainant ought to have first obtained a
Biitment from the Ministry that he would be
llequently reimbursed if he went ahead on his
HSimilarly, I concluded that Ministry officials
R unreasonably in assuming that the complai-
Iwas aware that if he went ahead on his own,
||ould not be subsequently reimbursed. I ap-
eate that it can be argued that it is not the
Visibility of Ministry officials to ensure that
Hbers of the public are aware of all relevant
Hjation so that they may conduct their affairs
blrdingly.
Ber, it is my view that when a public servant
iHlformation that he knows is needed by a
Hber of the public and is contacted by that
3ioer of the public, the public servant should
Hde that information.
case, it appeared that the works which the
ilainant had constructed were not of a suffi-
guality to provide long-term protection from
hg. I therefore recommended that the Minis-
:her pay half of the 75% which they would
'ordinarily contributed to the complainant's
if the works, or pay the entire cost of bringing
Drks up to the necessary standard in order to
e its durability. Although the Ministry did not
■ with my conclusion that Ministry officials
icted upon unreasonable assumptions, the
try did agree to accept my second recom-
fetion, and I thereby considered the com-
«rectified.
1
CS 81-044
Clean-up
The complainant lives near a mill in the northern
interior of the province. The mill uses a beehive
burner to get rid of wood waste. The complainant
was concerned that waste material around the
burner and prevailing winds created a serious fire
hazard to his home, workshop and property.
I notified the regional office of the Ministry of Environment. The next day, the mill was issued an
order under the Pollution Control Act to clean up
the area and provide sufficient cover material near
the burner. The order was not complied with and
the mill was held in contravention of the Pollution
Control Act. The Ministry, recognizing the seriousness of the situation, then met with regional Crown
Counsel to discuss bringing legal action against
the company.
As the Ministry took the steps provided by the
legislation for the investigation and resolution of
this matter, I discontinued my investigation. I
found the regional staff cooperative and sympathetic in a situation where the threat of a fire was a
vital concern to the complainant.
CS 81-045
Brewer's sewer worries neighbour
A homeowner became worried when he was told
that a nearby brewery had received approval to
construct a storm sewer on an easement which
crossed his property, to a river behind. He had
heard that the brewery would be able to discharge
warm water or industrial waste into the sewer, and
he was concerned about the potential environmental effects, such as enhanced algal growth in
the river. Also, he was afraid that construction of
the sewer might increase the likelihood of flooding
on his land. He felt the government should not give
the necessary approvals for this sewer until his
concerns were addressed, but he was uncertain
how he should proceed.
I found that the brewery's pollution control permit
allowed the discharge only of uncontaminated
cooling water into the new storm sewer, which
would flow into the river where the brewery's discharge would be diluted about 100 times. This
made it unlikely that any significant water temperature rise or algal growth would result. The
discharge of any other industrial waste by the
brewery would contravene the Pollution Control
Act. These and other facts were explained to the
complainant by Ministry officials and by my investigator. The complainant was satisfied by the explanations, and agreed that he would contact the
Ministry immediately if he had reason to believe
improper discharges were being made into the
new sewer.
45
CS 81-046
Garbage in, garbage out
A man complained to my office about the manner
in which his application to operate a landfill site
had been treated by the Ministry of Environment
and the Pollution Control Board. He said the Ministry's Waste Management Branch had taken into
consideration irrelevant factors when evaluating
his application, and that the Pollution Control
Board had delayed unduly in deciding on his
appeal of the Branch's decision, and had finally
issued an order which the Branch could not or
would not implement.
The man and his partner had applied for a permit
. in June of 1979, and were turned down in September of the same year. The Director of Pollution
Control stated that the application was being rejected because of technical problems associated
with the site.
My complainant then appealed the Director's decision to the Pollution Control Board. The appeal
was heard in December 1979, and the resulting
order was issued in September 1980. The Board
ordered the Director to accept an amended application, but the Director refused on the grounds
that he had no legal authority to do so. Neither the
Director nor the Board held public hearings into
the matter, although there were 95 objectors to the
application, some of whom wanted to present
conflicting technical information.
My investigation revealed that although the Director of Pollution Control had cited technical reasons
for rejecting the application, other factors were
influential in the decision. These other factors included representations made by local and provincial elected representatives, doubts about the co-
operativeness of the applicant, and the vigour of
local protests.
I also found that the Pollution Control Board had
failed to provide the applicant with file documentation priortothe appeal, had delayed unreasonably in issuing its order, and had issued an order
which I believe to be contrary to law. I found that
both the Director and the Board had erred in not
holding a public hearing into the matter, and that
through this failure both the applicant and the
objectors were denied adequate opportunity to
know and to respond to the other parties'
arguments.
The result was a situation in which both applicant
and objectors were placed in limbo, with neither
party given certainty that the landfill application
would or would not ultimately be approved. To
remedy this situation I recommended that the Pollution Control Board consider and properly determine the appeal, and that a public hearing be
held as part of the Board's consideration of the
matter. I also recommended that either the Ministry or the Board incur the costs of the parties
46
involved in the hearing.This recommendationlHl
accepted, and the Board heard the appeal Mi
public hearing on June 25-26, 1981. On June 29,
1981 the Board issued its decision denyingjB
appeal and upholding the Director's SepterrW
1979 decision.
My concern in this matter was not the issue of
whether or not the site in question was suitable for
a landfill operation, but rather that fair adminiH|
tive procedures be followed in arriving at a decision on the application. I am satisfied that the
holding of a public hearing resulted in a clan^H
tion of some matters, but I was not satisfiecB)H
the general administrative procedures folloJHj
by the Pollution Control Board. The Board at that
point was being replaced by the new EnvirontSH
tal Appeal Board, and I am monitoring the development of procedures by the new Board. I
CS 81-047
Inspecting pesticide permits
The complainant, an environmental group^H
concerned that the Pesticide Control Appeal
Board had upheld a permit for use of 2,4-D on a
tract of forest land. The grounds upon which they
complained of this decision were twofold. First,
there appeared to be a discrepancy between the
amount of 2,4-D applied for and granted, and the
amount accounted for in the applicant's treatnHt
plan and map. Secondly, the applicant hadEj;
legedly failed to comply with some of the ct^ffi
tions outlined in the same permit during the previous year's pesticide treatment period.
My investigation revealed that while the appliiant
(a large forest products corporation) had been
granted permission to treat 750 hectares over a
three-year period, their treatment plansjp-
counted for application of pesticide to only 498
hectares. In response to this finding the Pestii»
Control Branch amended the permit and notited
the corporation that the total area to be treated
under the permit would be 498 hectares. FurM-
more, I found that the following two conditions of
the permit had been violated:
Condition 2: That the contractor hired to carrfflt
the project possess a current BrB
Columbia Pest Control Service
Licence.
Condition 6: That the effective date of this pitt
is March 26,1981, and that the object be carried out within the period
June 1 to September 15 in each of
the years 1981,1982 and 1983.
As a result of these findings, the Pesticide CdjHJ
Branch suspended this permit. In additionlES'
investigation has had a significant impact on the
Ministry in that it has prompted the Pesticide Control Branch to make a number of changes in its
procedures which are outlined as follows:
j
Icences pertaining to various permits will be
laced in a separate file to verify that the li-
|{pce is valid during the period that the permit
in effect.
(he permit is for a number of years, the valid-
j of the licence will be verified for each effec-
fe period of the permit.
the licence is found to be invalid during the
fective period of a permit, the permit will be
litomatically revoked by headquarters.
ie following guidelines for inspecting a
bsticide permit site have been inserted into
e Ministry's policy and procedure manual. An
■specter of the Branch as defined by the
hsticide Control Act, will endeavour to verify
Is following points when inspecting a permit
le, either before, during or after treatment:
Idate of inspection
Ipermitholder's name & address
Ipermit number
■name of employee contracted & certificate
number
[date & time of pesticide use
■location of permit area
■total treatment area
■pesticide and its registration number under
[the Pest Control Products Act (Canada)
Irate of application & method of application
Itarget pest species
lithe prevailing meteorological conditions, including temperature, precipitation and approximate velocity and direction of the wind
■special problems unique to the target area &
iapplication equipment
iany other relevant information such as prox-
Kpnity of area to domestic water supplies or
Bsh-bearing waters
Hiew, these steps constitute an acceptable
■rise. I found the Ministry staff very coopera-
Besolving this matter and interested in mak-
Bprovements in its procedures which will
Ho improve internal audits on permits and
■Dy ensure that in future, permits are utilized
ily as specified.
Else was technically closed in early 1982. It
Bided here as an exception to the general
because of its general information value
MINISTRY OF FINANCE
Bed, withdrawn, discontinueas 19
Bed: corrected during investigation. 9
Hntiated: corrected after recommend. 2
Hntiated but not rectified 0
Hbstantiated IZ
liLOSED—TOTAL 47
Her of cases open Dec. 31,1981 .24
tt
The Ministry of Finance is responsible for the administration of the financial affairs of the government and the management of public revenues
and expenditures. As was true in 1980, the complaints I received about the Ministry in 1981 primarily involved the Consumer Taxation Branch
and the Real Property Taxation Branch. The concentration of complaints in these areas of the Ministry probably stems from the fact that the taxation
statutes which these branches administer directly
affect the public.
The Consumer Taxation Branch administers,
among other statutes, the Social Services Tax Act
Complaints for the most part concern the application of the charging provisions or exemptions under this Act. Complaints about the Real Property
Taxation Branch involve questions about eligibility
for home owner grants and penalties for late payment of property taxes.
Most of the complaints I have received seem to
involve disputes over whether the facts of an individual case fall within or outside a given statutory
provision. However, an area of general concern
has emerged. It involves the procedures used in
the forfeiture of land to the Crown for the nonpayment of property taxes and the relief available
once forfeiture has occurred.
Ministry staff continue to be cooperative and responsive to requests from my office.
CS 81-048
Double tax is hardship, Cabinet agrees
A newly-formed paving company objected to paying sales tax twice, once when it purchased a
trailer, and again when it leased the same vehicle
back from a finance company.
Because the Social Service Tax Act defines "sale"
to include lease arrangements, the Ministry was
allowed to collect sales tax on the trailer twice. In
this case, the complainant made the purchase
only because he was unable to arrange a lease;
only a month later, he succeeded in transferring
the trailer to the finance company and leasing it
back. This is probably not the situation the definition of "sale" was intended to cover.
In my opinion, the company had a valid complaint. Although there are no statutory provisions
for the return of taxes paid in this situation, the
Financial Administration Act allows the Cabinet to
remit a tax in order to avoid public inconvenience,
hardship or injustice to individuals. This provision
is used very infrequently. The Ministry is reluctant
to amend the statute to provide for repayment as
that may allow abuse of the tax system.
I recommended that the Ministry apply to Cabinet
so the tax paid on the lease transaction could be
refunded. The Ministry accepted my recommendation, and Cabinet approved a refund.
47
CS 81-049
Ministry does its best for religious objector
An employee of the Ministry of Finance was dismissed from the public service because her religious convictions forbade her joining the B.C.
Government Employees Union. The Public Service Labour Relations Act makes union membership a condition of employment.
It is possible for a person with a religious objection
to union membership to seek an exemption from
membership, and to authorize payment to the
union of money equivalent to the union dues. The
complainant successfully applied to the Labour
Relations Board for an exemption from membership. However, the complainant was unwilling to
authorize payment to the union, and the legislation does not allow exemption from this requirement. Although an officer of the Ministry made
sure the employee understood that if she refused
she might lose her job, she could not authorize
payment because of religious scruples. As a result, the Ministry had no choice but to end her
employment.
The Ministry made further efforts to help the complainant. It looked unsuccessfully for a job for
which union membership was not required. Further, she was given several short-term positions
for which union membership was not necessary,
with the hope that this action would give her time
to find a new job outside the public service.
I did not find that this complaint against the Ministry was substantiated.
CS 81-050
Tax tangle
An individual complained to me that his 1981
property tax notice had shown 1980 taxes in arrears. He stated that he had never been advised
by the Surveyor of Taxes in 1980 that any taxes
were owing.
I learned that before the complainant bought the
property, an error had occurred. In registering the
property, the mortgage holder, a lending institution, had switched the legal description of the
48
Fteprinted courtesy King Features Syndicate!
property with another on which it also held a mortgage. The registration error went undetected unti
early 1980 when one mortgage was discharger]
on the sale of the property to the complainant. The
lending institution agreed to notify the Surveyors
Taxes of the mistake, but did not.
The result was that both the lending institution and
the complainant's mortgagee forwarded 1980 ta
payments for the same property. The taxes on thi
second property were not paid at all. The Surveyo
of Taxes returned one of the payments as an ovei
payment. When, some time after this, the Surveyo
of Taxes was notified of and corrected the origliE
error, the arrears and penalties surfaced as owini
against the complainant's property.
After following the tangled course of events, thi
first lending institution agreed to accept respfin
sibilityforthe problem. The complainant withdrev
his complaint against the Surveyor of TaxesHj
CS 81-051
A house or a home?
An individual applied for a homeowner's grantor
property he owned. In addition to owning thi;
property, he also rented an apartment close to hid
place of work. He was denied the grant by the
Surveyor of Taxes because it appeared, giveriiN
use of the apartment, that the property in questiorj
was not his principal residence.
As the Surveyor of Taxes suggested, the homeowner submitted a statutory declaration stating
that the property was in fact his permanent residence and that he resided there for "by fame
greater part of the year". The Surveyor of Taxli
however, asked that he fill in and have notari.Sp
form outlining in more detail the number of Igp
he spent in each location. The complainarap-
fused; the Surveyor of Taxes continued to insist
this point the individual complained to mem
I found that the complainant had already submitted an affidavit, and had perhaps not been to®c
include the more detailed information. When
pointed this out to the Surveyor's staff, theyaffi&
to meet the complainant and hear his evidffl*
r than insisting on a further affidavit. This
le approach satisfied the complainant,
b grant was then approved.
i-052
nee makes tax collector no fonder
dividual complained to me that he had been
ed a penalty for the late payment of his
irty taxes. He stated that he fished commer-
in the summer and only returned to his home
l/hen he had a full catch. Normally, this was
or July, but that year the fishing had been
and he had not returned until August. He
bis taxes as soon as he returned.
iroperty tax notice sent to taxpayers each
tates that a penalty will be charged if taxes
(are not paid by the end of July. The complai-
ivas not a new property owner and he had
in contact with his family during the time he
Ben away. In these circumstances, I did not
it unreasonable to expect the taxpayer to
ge his affairs so that his taxes were paid on
053
ile catches fisherman's motor
rtsman complained to me that he was being
for social services tax that he did not owe.
d bought an outboard motor some three
sarlier, and had not paid tax at that time. He
ed the salesman had said his outboard
was not subject to tax.
fthe complainant wrote to us, social serv-
ix collectors had tried on three occasions to
j from him. At one point, they had even
i formal debt-collection proceedings. Re-
he had been notified once more that he
$118.23.
[investigated, I could not support the comfit's stand. Clearly, his outboard motor was
Htotax. Social Services Tax Branch records
t suggest the salesman had said that the
ase was tax-free. I told the complainant that
ajfing to the Social Services Tax Act he still
B118.23.
054
>4
t on lake is home, taxman grants
ily moved to their lake resort home in
i|978 and lived there until the end of 1979.
fe (co-owner of the property with her hus-
phoned to the Victoria office of the Surveyor
ss in April 1979 to inquire about eligibility for
e Owner Grant. She was told that the house
pot be eligible for a grant and so did not
or a grant for the year 1978. However, she
d for the year 1979. The Surveyor of Taxes
the application. The home owner com
plained to us that the Surveyor of Taxes had unreasonably refused the application.
On investigation, I discovered that the Surveyor of
Taxes had assumed that lake houses are necessarily summer houses, not permanent residences. I succeeded in convincing him that the
assumption was wrong in this case. The Surveyor
of Taxes then reconsidered the rejection of the
grant for both the years. Ultimately he awarded
the grant for each year. Thus the family received
their lawful entitlement.
CS 81-055
Timber tax
An individual complained that several years earlier he had been improperly assessed logging tax
on the sale of three parcels of land. The appeal
period had now passed. I discovered that payment of tax was indeed required, and concentrated on whether the assessment had been fairly
done.
When land with timber is sold, vendor and purchaser usually state what portion of the price is for
the land and what portion for the timber. As they
had not done so in this case, the Ministry had
,done its own apportionment, using a fair market-
value formula.
On being notified that I had received the complaint, the Ministry reviewed the assessment and
found errors, including the use of timber market
values for the wrong year. The Ministry corrected
this error and made a refund of $3,106. Because
this reassessment was made, the complainant's
right to question other features of the assessment
revived. The Logging Tax Act now gave him appeal mechanisms including a right of review by
the courts, and I discontinued my investigation.
MINISTRY OF FORESTS
Declined, withdrawn, discontinued 17
Resolved: corrected during investigation ... 6
Substantiated: corrected after recommend. 2
Substantiated but not rectified 0
Not substantiated 24
CLOSED—TOTAL 49
Number of cases open Dec. 31, 1981 -_i^sf
In my last Annual Report I was able to note that
despite its size and importance, I had received
relatively few complaints about the Ministry of Forests. During the first fifteen months after my office
opened, I closed 27 complaints pertaining to the
Ministry. This year I completed 49, and carriecfa|j§
more forward into 1982. Thus the number of complaints investigated and closed has almost doubled, and the indications are that there will be a
further increase in 1982.
49
There are a number of possible explanations for
this increase. It may be that more people involved
in forestry matters are becoming aware of the existence of my office, it may be that they have been
given more cause for complaint, or it may be that
the Ministry's public involvement program has
raised public expectations and awareness. I am
not concerned about this increase. I would emphasize that the number is still not high given the
large number of people whose lives are in significant ways touched by the Ministry of Forests.
One important trend has emerged: almost a third
of the complaints closed in 1981 pertain to public
input. In some cases the complainant expressed
the need for some means of providing public
comment on Ministry plans. In other cases complaints concerned lack of public information or
dissatisfaction with the available public input
process.
The Ministry of Forests is one of the few Ministries
to have initiated an approach to planning and
management which includes a formal mechanism
for public input. The public involvement program
is a new one. One could expect that until it has
been in operation for a while, wrinkles and inadequacies will appear. Some complaints appear to
arise because people are not aware in what circumstances the Regional Director will be likely to
choose a complex form of involvement such as a
joint planning team, and in what circumstances
only a consultation, such as a position paper, will
be allowed. I commend the Ministry for its initiatives in the area of public involvement, but I would
urge the Ministry to use the complaints about the
process to develop and improve it. I would also
urge the Ministry to distribute more widely information on how to provide public input.
Eight of the 49 closed complaints dealt with delay
on the part of the Ministry. Many concerned delay
on timber sale applications under the Small Business Program. The Small Business Program is a
new one, and again I recognize that some difficulties can be expected. But delay on such sales
can cause small operators to go under. Their livelihood consists of cutting timber, and if they have to
wait months to learn whether an area of timber will
be put up for sale, their cash flow suffers. I have
been told that the recent decentralization within
the Ministry is responsible for a number of delays.
By next year the new organization will have been
in place long enough that decentralization cannot
reasonably be blamed for such delays. I hope that
this, coupled with refinements in the Small-Business Program, will result in fewer delay complaints
next year.
I had become concerned about the Ministry's policy of not notifying individuals of their appeal
rights under the Forest Act. The Act contains a
significant number of appeal provisions; however
50
the Act is long and its wording difficult. As a reS
large forestry companies armed with theirjH
lawyers are in an excellent position to appeaB
cisions which they feel are unfair or detrimentaB
their interest, but small operators are at a dism
disadvantage.
The Ministry appeared to fear an avalanclXf
appeals 'if it were to provide notice of apjjlal
rights. It also appeared to feel that it wouloB
administratively difficult to inform the public about
appeal rights. I do not agree. It has been my
experience that notification encourages offjgBi
to make more considered and careful decisigP.
This in itself decreases the number of appeal.
Other large Ministries have found that administer
ing an appeal notification system is notW-
possible.
I consider it important that individuals be notified
of their appeal rights, and I recommended thataffi
Ministry adopt a policy whereby notice of aplal
rights is given each time the Ministry maksH
decision or issues an order which can be ap
pealed under the Forest Act.
. After much deliberation, the Ministry of Forests
has agreed to implement my recommendaw,
and has prepared a detailed notification form
which will be provided to all those who might He
occasion to appeal Ministry decisions.
CS 81-056
To log or not to log
Early in 1981 I received a number of compjMs
about the Ministry's plans to permit log™)
around Quesnel Lake. Some complainants '0p:
posed logging the area altogether. Others were
concerned about possible clearcutting as opposed to selective logging. Still others were concerned about plans to remove the timber and the
possible contamination of the lake as a result.
Some of the complaints came from individuals,
while others came from groups.
I learned that the Ministry had not made any decisions to permit or to reject logging the Quay
Lake area. A proposal for logging had been drafted, and the Ministry had organized "storefi^if
information sessions in two communities to advise
the public about the proposal and to received
comments on it. The Ministry stated that it wfflc
not make any decisions respecting logging iiffire
area until it had received and considered public
comment on the proposal.
Since the Ministry had not yet made a decisiojfr
this matter, and since it had established a mean;;
through which public comment could be recede
and considered, I concluded that these com j
plaints were unsubstantiated. I provided each o
the complainants with information on the time anc
location of the "storefront" sessions.
•^
1-057
sarch of a supply of wood
owner of a small sawmill complained to me
delays and apparent indecision on the part of
Hry employees were preventing him from ob-
<\g an adequate supply of timber for his mill.
jnan had established the sawmill with the
Stance of a Department of Regional Economic
insion grant. After his initial supply of timber
©diausted, he applied for additional timber
(S under the Small Business Program.
_S/er, he found that long periods elapsed be-
n application and auction, or that proposed
es were rejected, even when the initial sugges-
Hgrthe proposal had come from Ministry em-
8;es. He managed to obtain some small direct
■■but because the volume of wood was low,
Mind his sawmill running continually short of
■f and his bankbook continually short of
ns.
nd that there was no means by which the
l;try could guarantee him a supply of wood,
tn fact no such guarantees had been made,
■also found, as he had stated, that his relation-
.i] with the Ministry seemed plagued with de-
Hand rejections of proposals and applications.
Hronse to my initial inquiries, Ministry officials
s;ed that they had met with the sawmill owner,
■had agreed to proceed with a Category II
■Business Sale in the area by October, 1980.
[staff monitored the progress of this commit-
Band found that the sale was delayed to Janu-
■/ 981. However, at that point the sawmill owner
ifhe sole bidder and was awarded the sale at
aft price.
11 this was a fairly large timber sale and would
Bie sawmill a supply of wood for some time, I
bred to discontinue my investigation of the
■Saint.
B-058
x ige arithmetic in log salvage regs.
Tan complained on behalf of log salvors
Hghout the Province that Gulf Log Salvage Co-
Btive Association had refused membership
11| salvors and that this refusal contravened the
■Salvage Regulations. The Ombudsman's ju-
Btion does not extend to non-governmental
as such as Gulf Log. However Gulf Log holds
Having station licence issued by the Ministry
Bests, and if the Association contravened the
HSalvage Regulations, its licence could be
tended or cancelled by the Minister of
tats.
o my investigation of the matter it appeared
a he Log Salvage Regulations did grant log
Hrs the right to membership in Gulf Log. One
Bn of the regulations stated that any person
who is engaged in or who has an interest in a
business which manufactures, uses or deals in
timber "is entitled to own not more than 10% of the
shares in a log receiving station business". Certainly log salvors are engaged in a business which
deals in timber, and Gulf Log is the only organization in B.C. to be issued a log receiving station
licence.
It became clear that the regulation was poorly
worded. It could be interpreted as meaning that
everyone in the province engaged in a business
which deals in timber is entitled to 10% of the
shares in Gulf Log; this would mean thousands of
people were each entitled to 10% of the shares.
The Ministry took the position that the intent of the
regulation was to ensure that no one could acquire
more than 10% of the shares of the organization.
Since the regulation was absurdly worded, I concluded that it was reasonable for the Ministry of
Forests to interpret the section according to the
intention of the regulation. The Ministry therefore
said Gulf Log had not contravened the regulations. The Ministry also advised that the clause in
question would be corrected.
The complainant had originally asked for my help
in promoting the view that it is in the public interest
to grant iog salvors membership in Gulf Log. In
fact, I investigated only whether the regulations
required that salvors be admitted as members. I
told the complainant that the issue of whether
regulations should grant membership to log salvors was one which should be decided by the
Legislature.
CS 81-059
Tree-spacing contracts clarified
A man complained to my office that the Ministry of
Forests had refused to return his deposit on a tree-
spacing contract although a Ministry employee
had stated that the deposit would be returned.
The man, a contractor, had partially completed a
tree-spacing contract when his employees demanded more money. The contractor discussed
the matter with a Ministry employee and was advised that the Ministry could not provide additional funds, but that the contract could be cancelled with full return of the deposit. However, after
the contract was cancelled, the Ministry refused
to return the deposit; the contractor appealed the
matter to the Regional Manager, but still was
refused.
My investigation revealed that the Ministry had
acted properly in refusing to return the deposit,
and that the Ministry employee who had said that
the deposit could be returned had exceeded his
power in doing so. The Ministry's silviculture manual clearly states that the deposit is not to be
returned in cases where the cancellation is the
result of the contractor's underbidding the con-
51
tract. The Ministry employee who had said the
deposit could be returned was considered by the
contractor to be responsible for the administration
of contracts. However, although the employee was
responsible for certain aspects of contract administration, it was not within his power to determine
whether o,r not a deposit would be returned. His
statement exceeded the powers of his position,
and although apparently well intended, seemed
to have stemmed from a lack of experience and a
lack of knowledge of Ministry policies.
Although the Silviculture Manual contained a
clear statement of the circumstances under which
deposits may and may not be returned, the contract document itself was considerably less enlightening, if not confusing. The Manual, a rather
thick and very detailed document, is available to
the public for a fee but since the contract is the
basic document pertaining to the relationship between the Ministry and the contractor, it too should
contain a clear and complete statement regarding the return of deposits.
I recommended that tree-spacing contracts be
amended to include information regarding the circumstances under which deposits will be returned, and the Ministry has advised that staff
have been instructed to incorporate such a clause
in contracts. I also recommended that the Ministry
apologize for inadvertently supplying incorrect information, and the Ministry advised that the Regional Manager had conveyed his regrets to the
contractor.
CS81-060
Wrong either way in expropriation wrangle
A man complained to me that the Ministry had
expropriated a road through his deeded property,
and had offered him an amount which he thought
represented only a fraction of the value of the land
The man returned the Ministry's cheque, had an
independent appraisal done, and indicated a
willingness to negotiate; however, the Ministry
refused.
The land was originally acquired in 1963 through a
Crown Grant to the previous owner. There was at
that time a trail through the property, and the terms
of the Grant reserved all existing trails to the
Crown. In 1974, the Ministry expropriated a right
of way through the property. Before doing so, the
Ministry advised the owner that under the terms of
the Crown Grant, the Crown could resume 1 /20th
of the total acreage without compensation. The
Ministry offered the owner $1,500 compensation
for his road, and later increased the offer to
$1,700 In the meantime the land was expropriated. The owner subsequently had an appraisal
done and retained two lawyers in an effort to reach
an acceptable settlement; however, he did not
succeed.
52
In response to his requests for negotiation*!
Ministry took the position that because the Crown
Grant reserved the existing trail to the Crown at the
time the Grant was issued, the road was in facta
public road and no compensation was duetojflsf
owner. The Ministry again offered $1,700 in recognition of minor deviations from the original trail.
Because of the passage of time, I was not able'jb
determine whether or not the road expropriiH
by the Ministry in 1974 was in the same locatiJM
the trail noted on the Crown Grant. It certaiiy
appeared that during the expropriation prociM
ings in 1973-1974 the Ministry did not conH|
the road to be in the same location as the AH
since if it were, there would have been no need to
expropriate.
However, I concluded that whichever positipt^B
Ministry took, some compensation was due to the
owner. If the road were in the same location as the
trail, there was no need for an expropriation™^
the owner was misinformed of his legal righfHJ
the Ministry. If so, the owner should be paid for
deviations from the original trail, and for his |f
and appraisal expenses. If the road were in a
substantially different location, the owner shHj
receive compensation for his improvements^
interest.
Since I was unable to establish which positioi^H'
correct, I offered the Ministry two alternatives^©
Ministry chose the position that there was a need
to expropriate the road in 1974, and offere^H
owner a total award of approximately $3.2®B,
which included interest calculated from 1974 to
the end of 1980.
The owner was willing to accept this settlengjm;
however, as it happened he sold the land at the
beginning of 1981, when the offer was made. So
after a six-year battle with the Ministry, the oww
was unable to benefit from the final settlement.
CS 81-061
Roadblock removed
An Indian Band complained to me about the Min
istry's inaction on a promise to assume reswi-
sibility for a private logging roadsothatitcoui»e
adeq uately maintained to serve the needs of |p
residents. The road links several small comff-
nities, and is at present privately owned byaffl-
ging company. The logging company main«is
the road to suit its own needs, with the resultjgP
the road can become impassable when thtaHj-
ging company is not using it. My complainlp
said the Ministry had agreed to take over the road
a year earlier, but had done nothing.
I learned that there had been a number of rapt-
ings concerning the road and involving thejgg-
ging company, area residents and representatives of several Ministries. The Ministry of Forep
i I indeed indicated a willingness to assume
ponsibility for the road. They stopped working
lis direction when one of the Indian Bands
|se reserve the road crosses, stated that it was
(prepared to allow a right of way for the road,
discussed this matter with the Chief and
ned that the Band had reconsidered its posi-
and was now prepared to enter into negotia-
3 for rights of way. At his request we provided
with the name of a person in the Ministry who
jld be responsible for negotiations, and we
ised the Ministry that the barrier which had
rented them from taking over the road now
[eared removable.
111-062
access, no exit, but no fault found
an complained about the refusal of the Minis-
f> gazette a "Fire Access" road so that he could
the road for access to his property.
man had spent his life's savings to buy a
e of land and build a house. The seller had
him that the road to the property was a Minis-
if Forests Fire Access road and was available
ublic use. However, during the winter the road
ame impassable, and when he approached
Ministry of Transportation and Highways about
jitenance, he learned that at least part of the
f was privately owned; the Ministry of Forests
jirmed this. Further, the owner of the road reel to grant the complainant permission to use
oad.
Segal access could only be used if a 110 foot
|je was built over a river. I learned that the
{pus owner of the property (who had since
B knew that this was the only legal access,
knew that the owner of the private road had
jed permission to use the road. Further, the
had been deeded to the previous owner
jgh a Crown Grant, which clearly stated that
and was granted on the condition that the
irn was under no obligation to provide access,
lawyer who had represented my complainant
ft he purchased the property had not advised
B this condition, nor of documents on file with
and Commissioner stating that the owner of
private road had refused permission to use the
as access to the property.
B the jurisdiction of the Ombudsman does not
nd to disputes between private individuals,
b actions taken or omitted by lawyers in repre-
ng their clients, I confined my investigation to
Dropriety of the actions of the two Ministries
bed. Both had refused to gazette or expropri-
tie road on the grounds that to do so would
ititute taking land from one private citizen to
m another. As a general policy, I found this
onable.
Thus through a combination of misinformation
and possible misrepresentation, the complainant
finds himself in the situation of having to choose
between building a 110 foot bridge or continuing
to sneak through a poorly maintained and privately owned section of road in order to get to the
home which represents his life's savings. As unfortunate as this situation is, I do not find that it was
due to the actions of either Ministry involved.
CS 81-063
Grazing permits: the right to be 'herd'
The complainant alleged that the Ministry had
unfairly refused to renew her grazing permit. The
permit had enabled her to graze her cattle on
Crown range lands; without it, her ranch was no
longer a viable enterprise. The Ministry had not
provided the complainant with an opportunity to
present her case before an impartial individual
prior to the decision not to renew her grazing
permit. Before making such vital decisions a Ministry should allow individuals a full and fair
hearing.
The Ministry consulted with us and a new practice
guide was drafted. Before a decision is made not
to renew an individual's grazing permit, that individual will have made available to him all information in the Ministry's possession concerning his
situation and will have the opportunity of a full and
fair hearing before the Regional Manager of the
Ministry and representatives of the local livestock
association. The rancher will select at least one
representative. The Regional Manager will make
his decision only after he has heard the individual
in full and has received the recommendation of the
livestock association. I intend to monitor the development of this new procedure.
MINISTRY OF HEALTH
Declined, withdrawn, discontinued . 51
Resolved: corrected during investigation 21
Substantiated: corrected after recommend. 12
Substantiated but not rectified 0
Not substantiated 25
CLOSED—TOTAL 109
Number of cases open Dec. 31, 1981 _53
The Ministry of Health covers a wide range of
activities which includes registering a birth, inspecting a sewage system and making payment
for surgery. Its budget, and number of employees,
are among the largest in the province. When this is
considered, the fact the Ministry accounted for
only six percent of the files I closed is a pleasant
surprise.
53
While I am able to investigate most areas of health
care, I am not able to investigate the people we
most commonly associate with health—doctors.
When section 11 of the Schedule to the
Ombudsman Act is proclaimed I will be able to
investigate the B.C. College of Physicians and
Surgeons, which is responsible for the standards
of practice doctors maintain.
I continue to receive many complaints against the
Medical Services Commission. The Commission
has been helpful in resolving these complaints
quickly and fairly. Several complaints involved
coverage for unusual medical services obtained
outside the province. Refusal to pay in these
cases often involves severe financial hardship.
The Commission has agreed to provide a method
whereby a person denied coverage can have the
case reviewed. This process is described in the
case report called "Surgery denied? Review now
possible"—CS 81-068.
I note that the dental plan is relatively new, and I
have received few complaints about it.
I received a number of complaints about the Ministry's telephone system. Frustrated callers could
not get through until problems with the new phone
system were identified and corrected.
The Long Term Care Program was the focus of
several complaints. Some involved allegations of
inadequate procedures in the selection of home-
maker agencies; "Homemaker rules need polishing"—CS 81-066 was one of these. The Ministry
agreed with my suggestion that explicit
guidelines be formulated on criteria for selecting
homemaker agencies. I am also pleased that the
Ministry has established an informal review mechanism for clients concerned with reductions in
their hours of homemaker service.
In the 1980 Annual Report I mentioned the need
for changes to the Name Act and the Vital Statistics Actio reflect today's concern for the equality
between men and women. I am anxious to see
legislative changes in this area and have made
the Ministry aware of my concern.
Throughout 1981 the Ministry's staff has given my
office a high degree of cooperation and
assistance.
CS 81-064
Nobody home
We had several complaints that callers got no
answer when they dialled the Ministry's toll-free
telephone number. My investigation showed three
reasons. First, during the postal strike, clients had
made increased use of the phone. Second, the
Ministry's new system still had technical problems, and the switchboard operator could not tell
whether there were incoming calls. Third, the Ministry had a new toll-free number and it was not
commonly known.
54
The two Ministries involved, Universities, Scieni
and Communications (responsible for the projl
cial phone system) and Health, • establishes,
team to install more lines, publicize the new pljlH
number, and look after future problems.
CS 81-065
Privacy v. access to information
A spokeswoman wrote to my office on behalf of £
local study action group, to complain that residents of the Salmon Arm area were unable tHjfl
written confirmation of the results of certain tests
done on their approved water supplies. The residents had provided samples of the local waremp
the Ministry.
I found the Ministry did not give written con
firmation of the results, and residents waffim
these results so that they could have a basisHi
which to compare future results. I considered their
request a reasonable one.
The Ministry suggested that it would provideH-
ten confirmation of test results to the residerHf
the residents put the request in writing. Sinceffie
Ministry considered the test results to be confidential information, a resident could obtain con-
firmation of the test results pertaining to his oBr
own water supply, and then could decide whether
to make this information public or pass it on to the
local study action group.
This seemed to me a reasonable approach tdlne
legitimate right of individuals to privacy andMe
equally legitimate right of those same individuals
to have access to information about matteijgpf
direct concern to them.
CS 81-066
Homemaker rules need polishing
Two homemaker agencies in Greater VancoHr
expressed concern about the allocation of home-
maker contracts for service to Long Term ®fe
patients in their area. One agency felt thatip-
sessors, who decided what agency shoukage
assigned contracts, were too powerful and cffld
decide arbitrarily not to give contracts to a Sp-
pany. The other agency felt it was being discffii-
nated against in favour of others, and wanted to
know why it was not receiving contracts, j
Investigation indicated that there was a lack of
explicit guidelines for assessors. New asse3jls
were apparently trained by experience, ortpe
job, and orientation was left up to the adminilg-
tor in each Health Unit. This could lead to lacko
coherent policy, as well as to the type of complaint
I had received. Accordingly, I met with the Assistant Deputy Minister in charge of Long Term Care.
This official recognized that my concerns were
d, and thought it advisable to formulate
blelines for the assessors. The Ministry agreed
ake the lead in drawing up these criteria with
jt from program officials in Vancouver. Finally,
[Ministry agreed to circulate these to all home-
Iker agencies, with the help of homemaker as-
iations, and to send them to all Long Term
|e administrators, with instructions to draw
Inn to the special attention of their assessors.
[suggested to the complainant that they give
[[new criteria a chance to work and then, if
|ner difficulties arose, to contact us again.
B1-067
nfusion and misunderstanding
■raves of an elderly woman complained on her
lalf that she should be getting more govern-
11 services. When we called the woman, she
■ she needed more homemaker services and
i in paying for expensive medical dressings
| stockings not covered by Pharmacare.
■spoke with the District Supervisor of Human
sources, the Long Term Care Administrator,
■ the Administrator of the organization which
lolied homemakers. It was agreed the woman's
ids should be re-assessed. The Long Term
p Administrator visited her for this purpose,
■informed her of the result. We also referred her
rn officer at the nearest Human Resources
i e who could determine whether she qualified
lielp with medical purchases.
iHvoman later called back for help in under-
Eding her re-assessment. It seemed to her that
Had been allotted many extra hours of home-
■er care and then been denied them. We
Hd out this misunderstanding and also sug-
jed she have a discussion with the Long Term
HAdministrator on how the new arrangement,
■ided as a result of re-assessment, was work-
■ The Administrator also promised to put in
ng an analysis of the woman's situation and
■j Term Care's work on her behalf, and to send
Ii copy of the analysis. We told the woman that
leal procedures were available if her care was
■satisfactory, and that if necessary we would
■ her set an appeal in motion. Later, the com-
lliant asked our help in sorting out approval of
Hfjal extra homemaker help.
■des helping the woman to get re-assessment
ti o make contact with a financial aid officer, we
■ed her understand appeal mechanisms. Funis in response to her needs we made informal
biact with a Director of her Regional District
Bjpnal Districts are not within our jurisdiction)
Hpassed to him information showing the need
uius services in the area.
CS 81-068
Surgery denied? Review now possible
The Health Ministry makes decisions vital to the
well-being of individuals, and often needs complex, technical knowledge to make them well. In
some cases, the citizen helps to educate the Ministry, rather than the reverse. In such circumstances, the role of appeal or review is important.
The complainant, raised as a male, had been
living as a woman for five years. Work associates,
doctors and specialists affirmed a healthy transition in lifestyle had taken place. Now surgery was
required to complete the change. The surgery
was only available in Ontario, and there was no
universal agreement among doctors as to its
merits.
The complainant had applied for coverage by the
Medical Services Plan. Coverage was denied because the treatment was not considered "medically required." However, this surgery is considered "medically required" by the health insurance
systems of some other provinces.
I was concerned that the procedures for assessing eligibility for coverage were arbitrary and unreasonable. I suggested that applicants denied
insurance coverage for unusual or unorthodox
treatment should be afforded an appeal. The
Medical Services Commission agreed to establish an internal review mechanism and to notify
persons denied benefits of its existence. I recommend that the Legislature provide an appeal
mechanism in future legislation.
In this case, the complainant successfully appealed and her surgery was covered.
CS 81-069
Sewage system rejected
A manager of a resort complained that Ministry
officials refused to give him permission to install a
package treatment plant for sewage disposal
near the boundary of a lake. The manager thought
the officials' decision was unreasonable because
the package treatment plant was a sophisticated
and effective way of treating sewage.
Under the sewage disposal regulations a sewage
disposal system must be at least 100 ft. away from
the natural boundary of a lake. In this case, the
complainant could not meet the 100 ft. requirement. Also, because of pervious soil conditions
and a high water table, the local medical health
officer asserted that the 100 ft. buffer between the
sewage disposal system and the boundary of the
lake was not sufficient. Finally, because the resort
had a kitchen, the daily sewage flow would include grease. Sewage disposal regulations
placed the responsibility for determining the conditions for the sewage disposal system with the
medical health officer.
55
The medical health officer maintained that it was
in the best interests of public health for the sewage
disposal system to be located more than 100 ft.
from the natural boundary of the lake. However, a
citizen like the resort manager had the right to
appeal the medical health officer's decision to the
local board of health. He did this but the local
board of health upheld the medical health officer's
decision.
As a result of my findings, I concluded the resort
manager's complaint was not substantiated, because the Ministry officials had acted within their
authority, pursuant to the sewage disposal regulations. Furthermore, the Ministry made its decision
fairly, properly, and on the basis of relevant
information.
CS81-070
Ministry finds a way
A physiotherapist presented a complaint on behalf of her patient. The patient had recently undergone a radical mastectomy and needed to use a
special piece of medical equipment (a Jobst
pump) on a regular basis to relieve the severe
discomfort she experienced as a result of the operation. Unfortunately, the equipment was unavailable for loan in her area. She approached
Pharmacare for assistance in buying the pump
but found it would not provide coverage for medical equipment. The patient (a senior citizen with
limited income) had to purchase the equipment
with her own funds. The physiotherapist felt it was
unreasonable for people to have to purchase expensive medical equipment.
I contacted the Ministry of Human Resources to
see why Pharmacare could not cover the expense. The Ministry explained that equipment
used for the medical management of a chronic
condition does not fall within the funding mandate
of the Pharmacare Program. I then took the problem to the Ministry of Health. Officials there informed me that while the Ministry does not fund
the purchase of equipment for individuals, it does
sometimes fund equipment for hospitals or nonprofit societies such as the Canadian Cancer Society. I then contacted the local Cancer Society.
The executive expressed interest in having the
equipment available to loan to clients and said
they would apply to the Ministry of Health for assistance in purchasing the equipment.
In reviewing the Society's request for funding, the
Ministry of Health recognized that others who
have undergone similar surgery appear to need
increased access to such equipment. In response
the Ministry has funded the Cancer Control
Agency's purchase of several pumps for loan
throughout the province.
56
Tl
CS 81-071
. . . and get me to the church on time
A complainant wanted a new marriage licencB
her maiden name. Since her lawyer had used her
ex-husband's name on her divorce decreelH
new licence would ordinarily be issued with this
last name on it.
The wedding ceremony was a week awavBB
investigator contacted the officials at the DivlH
of Vital Statistics. After hearing the particulajH
cumstances of this case, the director authorial
an amendment to the marriage licence if tlffi
was a sworn affidavit and support documents!!,
ifying that the complainant had regularly usedifr
maiden name.
The documents were quickly supplied and wedding bells rang.
CS 81-072
No-nonsense nuns and the fine print
A brother in a religious order, acting as spoHj
man for nuns in a second order, complained that
the sisters had had their Medical Services Plan
premium assistance wrongly terminated.
Premium assistance was available in 1981 toiS'
pie whose taxable income was below $17Jii'
was not, however, available to people whose "Wat
cial status" exempted them from paying any income tax. The Ministry had discovered thafJEe
Income Tax Act granted an extra deductioMo
members of religious orders who, like these nps,
were under vows of poverty, and had concl'f|
that they had "special status". We showed the
stry that they had misunderstood the Income
\i\ct. The nuns were liable to pay some income
|and were eligible for premium assistance.
J Ministry changed its general interpretation
Kerning people under vows of poverty. Further,
Instated the nuns and refunded the premiums
lhad been wrongly charged.
llNISTRY OF HUMAN RESOURCES
Ined, withdrawn, discontinued 174
lived: corrected during investigation 126
i.tantiated: corrected after recommend. 5
;tantiated but not rectified 1
[substantiated 85
CLOSED—TOTAL .... 391
ber of cases open Dec. 31, 1981 99
|81 I received 391 new complaints about the
try of Human Resources. Considering the
e of services provided by Human Resources,
umber of employees (approximately 5,000)
he number of people who use the Ministry's
bes (as many as 500,000 at any given time), I
|t consider this number excessive.
i of the complaints are "crisis complaints"
ring immediate action. In such cases I must
i>n the prompt attention and cooperation of
an Resources' field staff. Generally I have
wed this cooperation and complaints are
Scly resolved. However, for complaints that
issues beyond individual concerns (for ex-
jb, the right to information about appeals), the
bss of arriving at a resolution has been much
ar and more difficult. I attribute this at least in
0 the complexity of the issues involved. Oc-
jnally there are significant cost implications,
blaints against this Ministry fall into three
1 categories:
Come Assistance
jst year, the Ministry's income assistance pro-
is accounted for about half the complaints.
s ranged from denial of a benefit to access
prmation. Complaints about the extent of an
idual's financial benefits can be appealed
gh the Ministry's appeal system. Therefore,
ly providing the complainant with information
b appsal process often allows me to discon-
piy investigation because an adequate re-
is available,
wss by clients to information on the Ministry's
Hal process continued to be a problem this
■While the Ministry agreed in 1980 to take
Rto improve the flow of this information, the
Der of complaints I received in 1981 because
Hmplainant was unaware of appeal rights
lated that further action was required. I pro-
Id that the Ministry display in all district offices
;;
a simple, readable poster describing the appeal
process (see "Appeal information revisited"—
CS 81-077). The Ministry has since implemented
my proposal and I look forward to finding that a
greater number of clients can understand and
exercise this appeal option.
B. Family and Support Services
About one quarter of the complaints involved family and support services, from daycare subsidies
to family counselling or child protection matters.
For these complaints the Ministry has no formal
appeal mechanism, although an administrative
review of some decisions can be requested by the
client. Several of the complaints I have received
this year have focused on the need for a formal
appeal mechanism in this sensitive area. Following my request, the Ministry has now established
a review procedure for foster parents who disagree with the Ministry's decision about the care of
a foster child. Further, the Ministry will now develop a review procedure for people who find their
names are on the Ministry's Central Registry of
Protection Complaints as detailed earlier in this
report.
I have found Ministry representatives sensitive to
family needs, especially those of children. Complaints generally arise when the Ministry's assessment of the family's needs differ markedly from the
family's own assessment. Particularly when the
issue is one of child protection, the complaint may
already be before the courts, with family members
looking for extra help from me or seeking clarification of the Ministry's procedures or mandate.
When the problem is before the courts I do not
intervene except to provide information and
referral.
C. Health Services
I received a number of complaints about the Ministry's Health Care Services and Pharmacare Programs. The issues ranged from the criteria used
to define a "handicapped person" to the denial of
coverage for essential medical equipment or sup-
plies (see "Hearing on hearing-ear dog"—
CS 81-086). The denial or reduction of a health
care service is appealable (in the same way as an
income assistance decision). I normally refer
complainants to the appeal process first.
However, I have some concerns about the procedures used in the appeal process, particularly
as they relate to issues of health care, and I am
presently discussing those with the Ministry. I
hope to be able to report some improvements in
this area for 1982.
CS 81-073
Fostering fairness
The foster parent of a special-needs child complained that the child had been taken away from
her suddenly and without reason.
57
Community service workers had complained to
the Ministry concerning the level of care provided
to the child. There was some truth to the concerns
about the youngster's physical surroundings, although the foster parent's home provided satisfactory emotional support for the child. Accordingly, the foster parent's case worker started to
prepare her for the eventual removal of the child
and began a search for a different foster home.
While that worker was away on holiday for a few
weeks, the Ministry suddenly removed the child
from the foster parent and placed the child in an
institution.
My investigation supported the Ministry's decision
to remove the child, but found the manner of removal to be arbitrary and unfair The hurried decision did not consider the efforts of the social
worker who was preparing all parties for the
change. The Ministry's undue haste created bad
feelings
On my recommendation a Ministry repressntative
apologized to the foster parent for removing the
child so abruptly. The Ministry also agresd to send
a representative to discuss the possibility of some
continuing relationship with the child.
I also acknowledge a very useful contribution by
the B.C. Civil Liberties Association to this case.
CS 81-074
Care bill paid twelve years too late
A foster father complained that the Ministry of
Human Resources reneged on an offer of an additional $500 to settle his claim in providing care. He
further complained that the child was ap-
prehendsd and hs was denied access.
The complainant and his wife are Indian. In 1964,
a mother gave them her non-Indian baby to raise
as their own. He and his wife say they firmly believed the child was now theirs according to Indian adoption custom.
When the Ministry learned that a white child was
living on an Indian reserve, it ordered her into the
care of the Superintendent of Child Welfare.
However, the child remained in the complainant's
home on a "free home basis" for almost seven
months; the complainant did not receive payment
for her care.
When the child was removed from the home, the
foster father requested compensation in the
amount of $9,120.30 for expenses incurred for the
care of the child. Since he had voluntarily assumed custody without legal basis and since he
did not ask the Ministry for their endorsement of
the placement, they took the position that they
could pay only for the seven months after the
committal. The Ministry paid $1,060.30 and promised a further $500, which the father never
received.
58
Although there was a further complaint that access to the child was denied, the child was
adopted in 1968. The Ministry can no longer gH
access; we limited our work to investigatingft
question of the missing $500.
I considered the Ministry negligent in not prbw-
ing full payment. The matter was rectifiedlfe
Ministry issued a cheque to the complainanjp
$500 plus twelvB years' interest.
CS 81-075
Rule change keeps family together
A mother of three young children complained that
because of a clause in the Community Care Faciei
ties Licensing Act, she might be forced to send
one child to a separate daycare home, or haSp
three walk two miles along a highway to the ffii-
est licensed daycare resource.
The children were currently in a suitable but un
licensed daycare home. Ministry staff toldBe
mother that under the Act, unless a care-giwms
licensed, she can take only two children. The
mother argued that this clause should not applyto
children all from one family. In her case, a subsidy
was also at stake; the Ministry of HumanMe-
sourcss could only provide this subsidy iffle
children were in a form of daycare allowed by the
Act.
I spoke with Human Resources and with thefti-
istry of Health, which has responsibility foiffiie
Community Care Facilities Licensing Act. I found
that people in the ministries had the same concern as my complainant, and had arranged to
have an amendment to the Act proposed.
However, they believed the amendment had not]
yet come into force. I called the Attorney General's |
Ministry and found the amendment had come into
force the day it was passed.
Human Resources and Health immediate™i-
formed their staffs of this change. The mother, ano
other parents of more than two children, had their,
problem solved.
CS 81-076
Daycare office cares for parents too
A parent complained that because she wcfflec
during office hours and had no car she wa^n
able to keep an appointment with the Ministry!
Daycare office to have her eligibility for a daycare _
subsidy reassessed. As a result, she believed she
would not receive the subsidy and felt thiafe
unfair. On inquiry I found that her subsidy woult
be honoured if she made another appoinyiP
within the month.
This resolved the individual complaint, but I con
tinued to be concerned about the more genera
question of accessibility to the daycare office.
Ignized that many government offices are
Ikble only during normal working hours and
agenerally people can adapt to this limitation.
over, it seemed to me that every effort should
Itade to snsure maximum accessibility within
m hours. In this case, accessibility was ham-
In in several ways.
1 the office was not in a central location.
Bid, staff at the office were only available on a
■time basis.
sly, lunch appointments could be booked only
112.00-12.30.
Ised these issues with the Ministry. They
wed that there was a problem with accessibility
■said they were making a number of improve-
lis. They had hired an extra worker. Further,
■would now accept appointments through the
hi hour. Finally, they were searching for a new,
d centrally located office,
le steps satisfied me that the Ministry was
■ipting to resolve the problem.
tt -077
Hal information revisited
H1980 Annual Report I described a complaint
irived in which an income assistance recip-
Bas not told of his right to appeal a Ministry
Bon on the extent of his income assistance
Bits. On investigation, I found that the pro-
leres used to notify clients of their right to ap-
Hwere inadequate. I therefore made several
Bjmendations to the Ministry on ways which I
jould increase client access to information on
pal rights. The Ministry agreed to implement
llcommendations and I therefore considered
Batter resolved.
1131 I again received a number of complaints
[■■aich Income Assistance recipients appeared
Be no knowledge of their right to appeal deci-
[I on eligiblity or benefits. In investigating
Ik new complaints, I found that the rec-
■■endations on access to appeal information I
Meade in March, 1980 had not been fully im-
Bented though it was more than a year since I
wnade them.
Tin raised the issue with the Ministry, which
ajnded that because of Human Resources'
Haing rate structures, they had found it difficult
pblement my earlier recommendations. I then
IHmended that the Ministry design a poster
IHning the appeal process and that this pos-
m hung in all district offices. The Ministry
id to implement this recommendation.
pleased that the Ministry acknowledges the
lance of clients having full access to infor-
n on their rights. I will continue to watch to
friether use of this poster gives clients the
foiation they need on appeals.
CS 81-078
Ministry remedy too late
A single parent's 16-year-old daughter ran away
from home and the mother immediately reported
the daughter's absence to her social worker. The
worker informed her that her income assistance
benefits would be immediately reduced by over
$200 because the daughter had left the family
home. The complainant felt this was unreasonable
because with $320 (the amount she would receive
after the reduction) she could not maintain her
apartment, thereby virtually ensuring that her
daughter could not return home.
A member of my staff discussed the complainant's problem with several Ministry officials. All
agreed that she was in an extremely difficult position, particularly as she had just moved from
Prince Edward Island and was realistically concerned about her daughter's safety in the "big
city". With this in mind, the Ministry agreed to
extend the complainant's shelter allowance at the
rate of two people for another month, to give the
family time to sort out their situation.
Unfortunately, the complainant had already given
the required 30 days' notice to vacate her apartment by the time this decision was made and was
therefore forced to move, despite the Ministry's
change of position. Thus, although the Ministry
offered an ordinarily acceptable remedy for the
complaint, circumstances dictated that the remedy could not rectify this complainant's problem. I therefore consider that, in this case, rectification of the complaint was not possible.
CS 81-079
Which bureaucracy takes responsibility?
A non-Indian family which had been living on an
Indian reserve and receiving income assistance
for ten years complained of injustice when the
Ministry refused further benefits to them and to
anyone else living on reserve land.
The background to the problem was that the Ministry does not generally fund social programs on
Indian land; that is the responsibility of the Federal.
Government's Department of Indian and Northern
Affairs, or of the Indian Bands themselves.
However, this family had been receiving income
assistance at the same location for a number of
years. Our discussions with the Ministry convinced them to reinstate the assistance because a
1978 Federal-Provincial agreement could be applied. According to that agreement, status Indians living off the reserve could receive benefits as
though on the reserve, while non-Indians living on
the reserve could receive benefits from M.H.R. as
though off the reserve.
59
CS 81-080
Income assistance wrongly assessed
A retarded girl who moved from Woodlands
School into the community complained that she
received less Handicapped Person's Income Assistance than she was entitled to receive when
living under Community Living Board
sponsorship.
After discussions between my staff and the Ministry, it was determined that the assessment of her
eligibility was incorrect and that she had been
underpaid.
The problem was resolved when the Ministry arranged through the local office to make up the
underpaymsnt.
CS 81-081
Computers are only human
A mother involved in a custody dispute contacted
my office in alarm. Her social assistance cheque
had been discontinued because she had been
reclassified as employable. Her concern focused
on the possibility that she might be forced to give
up custody of her child if it were establishsd that
she could not support the child properly.
I encouraged the woman to make use of the appeal method provided in the Ministry. When she
did so it was discovered that she had been re-
classifiBd incorrectly by the Ministry's computer.
She should have been classified as unemployable
and granted a higher amount of assistance. The
error was quickly rectified and a supplementary
cheque was issued to the relieved mother.
CS 81-082
Religious beliefs and income assistance
A young man contacted my office to find out what
rights he would have if his income assistance were
discontinued. He said his financial assistance
worker had said that his benefits might be discontinued if he refusBd work on the grounds of religious beliefs which prevent him from working on
Saturdays.
The complainant was informed of the requirements under the GAIN Act that an applicant actively seek work and of his right to appeal if his
assistance were discontinued. Further, since he
was alleging discrimination on the basis of religious beliefs, I provided information on the role of
the Human Rights Branch in looking at allegations
of discrimination. The complainant later contacted my office to report that the Ministry has
since indicated that his benefits would not be
discontinued.
We have had a number of Human Resources complaints similar to this one in which complainants
60
ask us not to intervene but rather to confirm »
understanding of Ministry policy and procediigs,
Once the "rules of the game" are provided, the
complainant is often able to resolve the problem
on his or her own initiative.
CS 81-083
New procedure safer for clients
An elderly man came to my office with a lettertie
had received from the Shelter Aid for Elderly
Renters Program (SAFER). The letter said heflti
received an overpayment of $517.50 but he tSc
not understand how this was possible.
SAFER records showed that the overpayment was
made based on information they had fronrBhe
complainant's original application; he reportef he
was living in a hotel. Since then he had moved and
he was not aware that he should have reportegfiis
change in rental costs to SAFER.
I arranged a meeting between the complaSnl
and SAFER where officials explained to hirrwiy
he was not recsiving SAFER benefits. SAFER was
in fact reclaiming the overpayment. Ordinarily
SAFER would have cut his benefit cheque by a
few dollars a month until the repayment was complete. Since the renter was now spending lessfoi
rent than he had in the hotel, he was entitled only
to $15 a month from SAFER. SAFER found impractical to hold back a sum smaller than $15.
The renter could expect his cheques to begir
again when the $517.50 was repaid if his s®us
remained the same. Inthisway, too, SAFER hopec
to avoid a further misunderstanding during the
course of repayment if the complainant's sratui
changed again. The complainant was satoec
with this explanation.
During discussions with SAFER and the complainant, it became apparent that certain elderly clients do have problems in giving SAFER acclpte
current information. At the same time, it wa^b-
vious that SAFER was not equipped to checKpc
re-check all client's statements. The officeilp.
SAFER was like Revenue Canada Taxation, ilpa
it accepted clients' reports of income and exj
penses and only occasionally verified them, (©is
a year, of course, each client had to make a re
application and supply up-to-date informatior
about income and rent.
Partly as a result of these discussions, the Mirjstr,
of Human Resources began to review someo
SAFER's procedures. Clients likely to have prob ,
lems were identified so that SAFER officials cot* (
pay more attention to their statements. SAFEF
also reviewed some of its correspondence anc
practices, in order to suit them more closely to the
needs of its elderly clients.
JJ
IS1-084
ret directive spoils job chances
Jjicial worker, a former employee of the Ministry,
■plained that a secret "do not rehire" directive
1 spoiling his chances of re-employment with
■Ministry and that this was unjust treatment,
■lough the complainant had had disagree-
ints with one supervisor, his five years of service
llbeen adequate overall. But when he applied
iDermanent re-smployment, he was unsuc-
Kful, and he was finally told that his file con-
led the negative directive. He then complained
le
By opinion the complaint was valid. The practi-
Bjfect of a directive such as this one is that no
Her how questionable the information it is
led on may be, or no matter how much the
licant has improved his skills since, he is shut
forever from re-employment.
Bier, there is a problem of procedural fairness
■secret directive. This complainant never knew
nhis applications were rejected.
In I pointed out this unfairness, the Ministry
Bed to attach a memo to the personnel file
liting selection panels to consider not just the
Bliqible judgment, but the whole work record.
[^Ministry also agreed to make sure that if the
Iplainant applied for a job in his field, he would
Bvited to an interview.
rl3 were several similar complaints. I recom-
Hded to the Public Service Commission that it
tte the question concerning eligibility for rehire
I its personnel form, and the PSC agresd.
-085
je benefits of Ombudsman investigation
^sociation for physically handicapped peri-complained about a contractual problem
|he Ministry of Human Resources. Though we
| the complaint to be unsubstantiated there
an interesting sidelight to the episode.
investigator who handled the complaint is
dated with a church funding group and
I C during the course of his investigation, he
led of the work being done by the associate brought it to the attention of the funding
j %. As a result, the church group made a grant
100 to the association.
£ -086
< ing on hearing-ear dog
n come assistance recipient who is deaf and
itlicomplained that Human Resources had re-
is jl to provide her with a special allowance for
Be of her dog. She said her dog is vital to
J ^_
maintaining her independence and fills a function
similar to that of a seeing-eye dog. Income Assistance recipients can receive a $35 monthly allowance for maintaining their seeing-eye dogs.
Therefore, she felt it was unfair that she was not
eligible for a similar allowance.
The complainant, who was unaware of her right to
appeal this decision, was referred to the appeal
process. Further, I arranged for a lawyer to represent her in that appeal.
The appeal tribunal unanimously decided to
grant the allowance to the appellant.
MINISTRY OF LABOUR
Declined, withdrawn, discontinued 18
Resolved: corrected during investigation... 8
Substantiated: corrected after recommend. 1
Substantiated but not rectified 0
Not substantiated I _8
CLOSED -TOTAL 35
Number of cases open Dec. 31,1981 15
Excluding those complaints registered against
the Labour Relations Board and the Workers'
Compensation Board, I received during 1981
thirty complaints against boards and branches of
the Ministry of Labour. Reports on the boards of
review, the tribunals that hear appeals from decisions of the Workers' Compensation Board, are,
for convenience, included in my section on the
61
Workers' Compensation Board, although the
boards of review are in fact responsible to the
Ministry of Labour and are independent of the
Workers' Compensation Board.
An amendment to the Employment Standards Act
which specifically permits disclosure of documents to the Ombudsman has overcome the inconvenience I earlier experienced in conducting
investigations in this area.
Cooperation by officials of the Labour Ministry has
generally been good, although there have been
isolated cases in which I have had difficulty in
obtaining responses to queries. I feel that these
difficulties were not the result of negligence or
indifference on the part of Ministry staff so much
as a consequence of heavy caseloads within certain areas of the Ministry.
CS 81-087
Credit where credit is due
When a complainant tried to get credit from a local
department store, he was surprised to discover
that he was not considered credit-worthy A check
with the Credit Bureau disclosed that the root of
the problem was an outstanding certificate registered against a company he had once owned. The
certificate alleged failure to pay the wages of two
employBBs. Ths irony was that neither employee
had ever worked for his company; they had
worked for a company with a name very similar to
that owned by the complainant.
As he had not yet contacted the Employment
Standards Branch directly, the complainant was
advised to do so. When the error was brought to
that authority's attention, corrective measures
were quickly taken, and the complainant's good
credit rating restored.
CS 81-088
Labour is sorry
The complainant was attempting to claim wages
be believed were owed him by his employer. He
contacted the Ministry to assist him but was, he
said, given conflicting information by Ministry
peopls. He was also treated in a discourteous
manner.
Investigation showed that the complainant was
given unclear information and that the complainant had been the recipient of uncomplimentary
remarks from one of the employees of the Ministry.
The Ministry sent an apology to the complainant
and processed his claim.
CS81-089
You can't contract out of this law
A woman operating a stone quarry'business negotiated ah agreement with an employee. She
agreed to pay him a certain amount for his labour
62
plus a percentage to cover fringe beneM
However, when the employee terminated his employment after several months he complaineaB
the Employment Standards Branch that heW
not received sufficient vacation or holiday pay
from his former employer. The Branch invjjfi
gated the matter and supported his claim.181
woman was required to pay the ex-employee tjm
$1,000 and complained to me about ai
decision.
The woman's error lay in her belief that because
she had a verbal contract with the employee, she
was free to make whatever arrangement seemed
mutually agreeable. Although I sympathized with
the woman's plight I found the Branch was correct
in determining that the quarry worker was an "S
ployee", not an independent contractor Under
statute, an employee must be paid general B
day and vacation pay.
According to Court decisions an employee h^
contract "of service". An agent or indepenSt
contractor has a contract "for service". A raw
layer who is employed by a bricklaying firfB
work on its various contracts and under its ^»
eral superintendence has a contract of sen/m
whereas a bricklayer hired to construct a specific
wall for a fee has a contract for services.
The structure of this employee's work situation
made him the holder of a contract of servffi,
entitled by statute to holiday pay. For a well-intentioned businesswoman, this incident provided a
costly lesson in labour standards.
CS 81-090
Human Rights Code and harassment
A woman complained that the six-month limitation
on reporting allegations of discrimination tame
Human Rights Branch, particularly when the allegation is of sexual harassment, is unreasonable.
She argued that it often takes victims of sexnal
harassment a long time to recognize that they
have been subject to such harassment andffiat
once recognized, it takes a further period to decide to take action.
Her point was well-taken. However, I found thafjhe
six-month limitation is imposed by the Human
Rights Code itself, not the Branch. Therefore||p-
islative change will be necessary to alter theme
period or to waive it in cases that require special
consideration.
As ths Human Rights Commission has responsibility for reviewing the Code to ensure that its
provisions effectively meet its intent, I referred the
matter to the Commission for their considerawi.
The Chairperson of the Commission has sjjjce
informed me that the Commission has unanimously agreed to request legislative review and
change.
I
n very pleased with the Commission's re-
lise, and look forward to the implementation of
I;hange.
[MINISTRY OF LANDS! PARKS
AND HOUSING
Bned, withdrawn, discontinued 17
.(jived: corrected during investigatiofiL 26
Istantiated: corrected after recommend. 3
Ktantiated but not rectified 0
(substantiated 31
JCLOSED - TOTAL ... 77
Hber of cases open Dec. 31, 1981 56
Us, Parks and Housing is a large, diverse Min-
■with a number of programs and objectives. In
icising its mandate, which includes the man-
Hient and allocation of Crown lands in British
Hmbia, it is involved in nearly all resource use
b;s in the Province.
Inr the largsst proportion of complaints ware
[led against the Regional Operations Division,
Hh is responsible for the adjudication of land
B-ations and for the administration of existing
itres. in accordance with established Ministry
ily. The operations of this Division are de-cen-
aied. Decisions affecting existing tenures and
Bpjudication of land applications are normally
Bsponsibility of the eight Regional Directors,
Hugh an appeal of the decision of the Regional
He on a land application is available to ag-
Hed applicants. In most cases, an applicant
ie requested to exhaust his available appeal
He within the Ministry before an investigation is
pfi:ed by this office.
H| may be sevsral reasons advanced for the
[loportionate number of complaints received
Hf the Ministry's land management and alloca-
IHecisions and procedures carried out by the
Hpnal Operations Division. In recent years
|J has been an increased public demand for
re n land and over five thousand new land ap-
jijjtions were received by the Ministry in 1981.
IBer, this factor alone cannot account for the
IBbant proportion of complaints about the Re-
pa! Operations Division. For example, sub-
■Hally more applications were received in 1981
L.ie Home Purchase Assistance Branch, al-
103h considerably fewer complaints were
■as against this Branch than against the Re-
■dil Operations Division.
Several reasons for this discrepancy are immediately apparent. The Home Purchase Assistance
Branch, which provides financial assistance to
new homeowners, is constrained to adjudicate
applications under the provisions of the Home
Purchase Assistance Act and regulations. This
legislation is quite specific and affords little room
for discretion in the adjudication of applications.
Legislation governing the allocation and management of Crown land, which is the function performed by the Regional Operations Division, allows considerable discretion for the establishment and implementation of policy by the
administrators. Specific recurring problems involving the Ministry's land application policies and
procedures are fully addressed in an earlier section of this report.
My office has had good cooperation from the
Home Purchase Assistance Branch and all complaints received against the Branch were either
resolved, abandoned, or not substantiated. Both
the Manager of the Home Purchase Assistance
Branch and the Eligibility Committee established
under the Home Purchase Assistance Act have
demonstrated their readiness to discuss fully outstanding complaints.
Future investigations involving this Branch of the
Ministry may lead to a suggestion that greater
discretion be provided to the Eligibility Committee
established under the Home Purchase Assistance Act to determine eligibility for benefits
where unforeseen or extenuating circumstances
are shown to exist. This suggestion was considered but not pursued in an investigation summarized below ("Homeowners get their grant"—
CS 81 -100), as another acceptable resolution was
negotiated.
Mobile Home Registry complaints have involved
the Registrar's refusal to effect registration of two
mobile homes. However, the refusal in these
cases was based on the applicants' inability to
provide a satisfactory record of title to the mobile
homes back to April 1, 1978, the date when the
Mobile Home Registry Act came into effect,
providing for the registration of mobile homes.
I am pleased to report that this year the Ministry of
Lands, Parks and Housing has initiated a program
designed to meet the commitment for replacement land given to individuals displaced by the
Libby pondage 10 years ago. I had addressed the
problem of Libby pondage displacees specifically in my 1980 annual report. While the fact that
the Ministry has initiated such a program is encouraging, it remains to be seen whether a satisfactory resolution will be obtained for remaining
displacees, as there are serious disputes about
conflicting resource use which will have to be
resolved with other Ministries for the program to
be a success. The benefit of the program to remaining displacees will depend largely on how
63
committed the Ministry of Lands, Parks and Housing is to promoting their interests with other
Ministries.
Other Ministry action which was the subject of
several complaints involved requests that compensation be paid because of losses suffered by
the complainant as a result of a change in Ministry
policy, restricting commercial activity in designated provincial parks. As a result of a recent
decision of the Court of Appeal of British Columbia it appears that some of these complainants,
who had mining claims within provincial parks
which they were later prohibited from exploring,
will now be in a position to claim compensation for
their demonstrated losses.
-Ministry personnel at all levels have been prompt
in providing required information and are readily
accessible to discuss and consider resolutions of
complaints.
CS 81-091
The battle of Buckley Bay
Buckley Bay lies close to the centre of Baynes
Sound, which is a sheltered 25 km stretch of water
between Vancouver Island and Denman Island,
yielding about 60% of this Province's oyster production. Many people were therefore pleased by a
news release of July 1980, in which the Minister of
Lands, Parks and Housing announced a three-
year moratorium on the establishment of new
shoreline log-dumping sites on Buckley Bay.
However, the release also announced a "review
and approval by the Minister of an application by
MacMillan Bloedel for log dump and storags facilities at Buckley Bay".
The announcemsnt of this approval was the first
that many area residents had heard of the matter.
Dissatisfied with the information they were able to
obtain from the Ministry, a number of them formed
the Baynes Sound Protection Committee
(B.S.P.C), which petitioned the Minister to hold a
public hearing to review the reasons for and
against the proposed facility. This was refused.
I received complaints from B.S.P.C. and others
that the Minister had made his decision without
requiring that the lease application be advertised
first, and that there had been no prior opportunity
either for public discussion or for objection to the
proposal. Many people, including neighbouring
oyster growers, felt they would be adversely affected by the presence of the dump site.
Does procedural fairness require that a Ministry
inform such persons of the proposal and hear
their objections before it makes a decision?
My investigation revealed that under its existing
policy, the Ministry should have required the applicant to advertise the basic proposal. When the
Minister's decision was announced in July 1980,
64
the application had already been under con™
eration for 19 months without the Ministry's requiring the applicant to advertise. Hearings (under
what is now s.59 of the Land Act) had been held in
the past on similar issues, where there were similar grounds for objection and where the numbjM
objectors was far smaller. One Branch of the Ministry of Environment had strenuously opposeqH
application, and some other agencies had expressed concern. A senior official in the Ministry
had apparently ignored a report from the District
Land Managerwhich predicted public oppotsmH
and concern, and which recommended that Mate-
Millan Bloedel be requested to advertise its application. MacMillan Bloedel had been refused a
similar application a few years before, becaujHa
the environmental degradation which had previously occurred as a result of the firm's operat^H
at the same location.
I concluded that procedural fairness had not been
observed towards the complainants wheraB]
Ministry made its decision to approve the MacMillan Bloedel application, and I recommendeB
January 1981 that the Ministry take appropH^
steps to rectify this omission. Several accept^H
courses of action were suggested, but the Ministry's eventual response was to require the firm, in
April 1981, to advertise its proposal in the local
press, to hold a public viewing of its plans, and to
recalculate the costs of certain alternatives to the
Buckley Bay facility. In my opinion the adverti^p
was by now a mere formality, and the other steps
taken did not really address the basic problem,
yet the Ministry appeared unwilling to do anyttB
more.
As I was considering further steps, MacMillan
Bloedel resolved the matter by withdrawing its
application. According to a news releaseffll
withdrawal was due solely to economic conditions, and was completely unrelated to myinsgi
tigation. If that is the case, I must humbly ackrgH
edge the support of Higher Powers in bringing™
matter to an acceptabls conclusion!
CS 81-092
One head lopped from many-headed Hydro
In January, 1981,1 received a complaint froimjjg
president of an environmsntal protection gw|
that the Ministry was refusing to provide his g|K
and a number of other interested organizafW
and individuals with an effsctivB opportunraffi
oppose a B.C. Hydro application. B.C. HydrdKj
applied to construct a road for access into the
Stikine area in connection with exploratory work
for a proposed dam. The complainant alsoKj
jected to the Ministry's refusal to force Hydro tc
provide an environmental impact assessffl
study.
The concerns of these individuals and groups
were substantial. They claimed that the proposec
|to a wilderness area would have a detri-
effect on local food supply, trapping and
g income, Native land claims, and on the
3 environmsnt in general.
bted unsuccessfully to arrange for the Min-
I participate in a forum in which objectors
bice their concerns. Then I informed the
t Minister that I was considering a recom-
fion that representatives of the Ministry's
al staff call or attend a public meeting to
! objectors with an effective opportunity to
Hrd.
bruary 26, 1981, B.C. Hydro's only out-
g access application - for a "cat-trail" to
posed dam site - was disallowed by the
|l Director of the Ministry's Skeena Reg ion.
is givsn by the RBgional Director included
I environmental impact and strong public
l|on.
fiistry has an internal review body which
; the Minister. Known as the Land Applica-
peal Committee, it was established to
an independent review of Regional Oper-
jecisions on land applications. As it ap-
jikely that B.C. Hydro would appeal the
i /ance to this body, I wrote to the Deputy
r and recommended that the objectors
i also be given an opportunity to be heard
i Appeal Committee. I also recommended
[Ministry hold a public hearing or provide
b Iher suitable opportunity for the hearing of
d|ns, if Hydro re-applied for access.
i Duty Minister declined to commit the Min-
"public review in considering a new ap-
laiTi by B.C. Hydro. He told me that the Chair-
he Appeal Committee had been informed
v BWS.
May, 1981, the complainant told me that
dro had appealed the Regional Director's
H fance and that a hearing of the appeal was
it. We met the Chairman of the Appeal
fee and sent a letter to the Deputy Minis-
| recommended that the Appeal Commit-
[consider reversing or modifying the Re-
pecision without giving the objectors an
| opportunity to be heard. I emphasized
jllowance had been largely based on en-
ntal impact and public interest concerns
{natural justice demanded that persons
elng these concerns be given an oppor-
ytl defend them.
Iputy Minister replied that only an ag-
Iapplicant was entitled to be heard in a
•k y the Appeal Committee. If public input
■sn considered advisable, the procedure
(lave called for public meetings before an
idit was permitted to act on a land use
iiion.
On June 4,1981, the Minister decided to disallow
B.C. Hydro's appeal and required the corporation
to meet certain conditions before a new application would be entertained. There was no requirement among these conditions that Ministry personnel hear objectors, despite the fact I had
recommended that objectors be given an opportunity to challenge the accuracy of Hydro's information and otherwise express their concerns. I
therefore informed the Deputy Minister of my continuing dissatisfaction and advised him that I
would be reopening the case in the event of a new
application by B.C. Hydro. However, since the
Minister had rejected the application by Hydro
that was the immediate concern of the environmental protection group, I suspended my investigation until I got another complaint.
Another application was subsequently submitted
by B.C. Hydro and a further investigation is now
being conducted on this issue, and in respect of
several new complaints lodged by the residents'
group.
CS 81-093
Crown land: battle with elusive rules
The issue in this complaint was whether the Ministry was acting unreasonably or unfairly by permitting other individuals to participate in a competition for a parcel of land staked out and applied for
by the complainant.
This complainant had been engaged in a long,
eventful struggle with the Ministry in an attempt to
obtain a parcel of unsurveyed Crown land in the
Queen Charlotte Islands for a homesite and small
agricultural operation. After he had exhausted all
his available appeals within the Ministry and 15
months after his original application, he complained to my office that the decision made by the
Minister to hold a closed competition for the
Crown land was unfair.
Seven months after his original application, the
complainant was told by the Regional Director
that the land which he had applied for was previously under reserve and could not therefore be
made available without a public competition. The
complainant had been advised by the District
Manager that the application was disallowed because the land was not considered arable and
had informally appealed this determination to the
Regional District of the Ministry's Skeena Region.
The second letter of disallowance, from the Regional Director, was based on both the finding of
non-arability and on the requirement for a public
competition.
The complainant next appealed to the Land Application Appeal Committee, which is an internal
review body that advises the Minister. It is intended to provide an independent review of land
65
THE- >
CO \l eRMMENT
BOR&AUCRACY
HALS B£COl^M
a A /v\oiJSTe.R.'
■N»a?MaS.6.NS|3.
&>/£Ryaa'ME WEa.
EA/\Pt-oy is
aS.-SSie.MTl JaU TO
This. Sjvm-'oth
Ru INl Ol I 1-1 a3 OF
Th?-- ISuAH !-»_,:
■■'''•©t
a/.t-Llaa-
Reprinted with permission—The Toronto Star Syndicate.
application adjudications. The Minister found in
the complainant's favour on the question of arability, and decided to dispose of the land. He gave
two reasons for requiring the public offering. During a time while other would-be landowners were
forced to wait for completion of a Crown land plan
which would permit the parcelling of land for sale,
it seemed inappropriate to sell this one parcel
directly. Also, the land had once been under
reserve.
The complainant argued that the requirement for
further advertising and public bids was unfair as
he had previously advertised his intention to acquire the parcel at the request of the Ministry and
there had been no response at that time. The
Ministry compromised by advertising its intention
to dispose of the land and by requiring all respondents to establish that they had previously
expressed an interest in purchasing property in
the area, in order to establish their eligibility to
participate in the auction.
I was unable to conclude that the Ministry's requirement for a closed competition in this case
was unfair. However, I informed the Ministry that I
was concerned that the complainant was not informed of the necessity of a public competition
until approximately seven months after his application for the parcel was received.
My assistant was advised by the Assistant Deputy
Minister that the vast majority of ad hoc land applications are disposed of directly to a qualifying
applicant and not by way of public competition.
The only public notice required in most applications of this type is a published notice of the applicant's intention to acquire the Crown land. Even
this requirement is discretionary under the Land
Act.
At the time of the application the complainant had
not been given to understand that a public competition might be required. Although I was not able
to agree with the complainant's view that the parcel should be disposed of directly to him, this
complaint brought to light problems in the Minis-
66
try's procedure for making application for Crown
land, particularly for agricultural uses.
CS 81-094
Land is available—until you try to buy
Six months after the complainants had applieBr
a parcel of land and after they had gone to ccw-
erable trouble to obtain the necessary approft
of various referral agencies, they were adviseaBv
the Ministry that the land could only be dispBd
of by public competition as it had been previcHy
held under a reserve from alienation.
During the processing of their applicationlne
complainants had been informed by a Mirny
representative in the local office that they should
be able to purchase the property as long as approval for the disposition of the land was giveffiiy
all referral agencies. On the strength of this in
standing, the complainants had enthusiastic
involved themselves in the land referral process,
and had successfully resolved the objections and
impediments presented by several referral
agencies.
Aftertheir enterprise and success in obtaining the
necessary approvals, the complainants weredis- j
mayed to learn that the Ministry had decided to |
hold a public competition, if and when a decision ]
was made to dispose of the land.
The complainants had written to the Minister to
object. The Minister affirmed the Region's decision and added that the policy of requiring a public competition was designed to afford an equal
chance to any interested persons who might p*
applied in the past for the previously reserved
lands. I was concerned. The complainantsjlp-
plication was underway for almost six monthsbe-
fore they were advised that the land would have to
be disposed of by public competition, and during
this time the complainants had, on the strengjo'
inaccurate information, gone to considerable
trouble to obtain the necessary approvals. I there
fore suggested that in future applicants be notified at an early date when the land applied tor
must be disposed of by public competition^
(Deputy Minister replied that the local office
r learned about the reserve on getting status
■ irance information from Victoria. The Ministry
led to install a computerized information ac-
ts system in regional offices in the future.
I] Ministry has a goal of deciding whether to
lept a land application within 120 days. There-
K they begin several processes - field examina-
:s, land statusing, and referrals to other agen-
I; - all at once. In order to prevent future
llicants from being frustrated as this one was,
(Deputy Minister instructed staff to discourage
llicants from trying to get approvals from refer-
■agencies before the Regional Director had a
j)rt on the status of the land. He also decided to
■[this complainant first choice of lot in any
■division developed. This was his own idea; I
I not suggested it.
■Instructions issued to field staff and the pro-
Isd computer land statusing in Regional Of-
|> appeared to provide an adequate remedy to
sissues of procedural fairness raised in this
D plaint. I therefore decided that a satisfactory
lilution of the complaint had been reached and
x;omplainants were happy to learn that they
[it yet benefit from their efforts.
h-095
ost a lot when they broke their promise
rmer B.C. resident complained that the Minis-
f Lands, Parks and Housing had failed to live
sits commitment to give him a chance to buy a
pific lot of Crown land in the Kootenays. He
recently learned that the lot in question had
p promised to another individual, contrary to
irances given to him by the Ministry that lots in
area would be disposed of by public
petition.
complainant had originally applied for the lot
J74 and his application was disallowed. The
r of disallowance stated that the area was
iously held under reserve. In accordance with
artmental policy, Crown lands previously held
it reserve must be disposed of by way of
iiiic auction. The complainant was advised that
1 spection of the lots was being undertaken at
if me and that if the report were favourable, due
: ;e of the auction would be given and the de-
\ pent would attempt to contact the complai-
personally.
■complainant subsequently moved to Oregon,
I fig a forwarding address. During a visit to the
r_ in 1979, he learned that commitments had
i made to sell several lots, including the one
a! anted, to individuals who had made ad hoc
i ications. He quickly expressed his objections
|nistry personnel and eight of the outstanding
i Ications were disallowed, including the ap
plication for the lot for which the complainant had
previously applied.
The Ministry subsequently advised the complainant in writing that it now intended to dispose of
the lots by public lottery and that he would be
notified when the arrangements for the lottery had
been completed.
In August, 1980, an exchange took place and the
lot which the complainant had applied for was
committed to one of the individuals who had been
promised a lot in 1979. The complainant learned
of this and contacted my office to object to the
arbitrary and unfair manner in which he had been
treated by the Ministry.
I discussed these findings with the Regional Director, who claimed any suggestion that the Ministry had acted unfairly or had any obligation to
apologize to the complainant. It was therefore
necessary to pursue the matter formally at a more
senior level. I advised both the complainant and
the Deputy Minister of my findings and my recommendations that an apology be sent to the
complainant and that the Ministry notify him of any
future sale of similar Crown land. The Deputy Minister agreed that the complainant had been
treated unfairly and instructed all Regional Offices
not to promise personal contact in future, to prevent this problem from recurring. He also expressed his hope that a letter of apology would
suffice and requested that I be more specific in
my second recommendation. The complainant,
on the other hand, felt that my recommendations
were inadequate and considered that he should
be entitled to buy a lot of his choosing at a reduced price.
While the complainant's position was understandable, I decided to limit my recommendation to a
letter of apology and a commitment by the Ministry to notify the complainant of land in the area he
was interested in. The complainant had lost a
promised opportunity to participate in a public
competition for the lot but it is quite possible he
would not have won the lot at the auction even if
the Ministry had kept its promise to him. The thrust
of my second recommendation was therefore to
restore to the complainant the opportunity he had
lost.
However, after the end of 1981, when I had completed my investigation and submitted my recommendations to the Deputy Minister, the Ministry
made my complainant an offer he is pleased with:
another suitable property in the area he wanted,
and at 1979 prices.
CS 81-096
Saving sea-park proper, refusing reasons not
A man who was trying to acquire unsurveyed
Crown land was told to advertise this intent in his
local newspaper and The British Columbia Ga-
67
zette. While his advertising was underway, he contacted the District Land Commissioner who told
him his application had been denied. On the complainant's request, the Commissioner promised to
forward reasons for refusal and information on the
method of appeal. A month and a half later, the
information had not arrived, and the would-be
landholder complained to us.
The Commissioner agreed to send us and our
complainant the information. We asked our complainant to get in touch again if he had further
problems.
Incidentally, the reason his application had been
rejected was that the land he wanted was part of a
marine recreational area reserved for public use.
CS 81-097
You pay your money, and they forget your title
A man in Sardis complained that the Ministry had
delayed in providing him with title to land he was
buying from the Crown. The complainant had sent
the purchase price, at the Ministry's request, on
August 15, 1980. His subsequent letters to the
M i n i stry's Regional Off ice to ask when the transaction would be completed went unanswered and
on May 25, 1981, he wrote to my office about his
problem.
We telephoned the Regional Office on June 2,
1981 and were told the office would speed up the
complainant's Certificate of Purchase and the
preparation of the Crown Grant. A letter was sent
by the Regional Office to the complainant the
same day, confirming this information and apologizing for the delay.
We were told by the Regional Office that the Crown
Grant could only be issued from Victoria and that
this could take from four to six weeks. We discussed the delay with the Regional Office. Then
the individual responsible for issuing the complainant's Crown Grant agreed to push the grant
through within two or three days of receiving the
necessary documents from the Regional Office.
We told the complainant what we had done to
remedy the problem; he was satisfied with the
solution.
CS 81-098
Taking the land into your own hands
I received a complaint that the Ministry of Lands,
Parks and Housing was acting unfairly by refusing
to grant the complainant a recreational lease of
Crown land on Hudson's Bay Mountain and by
requiring him to move the cabin which he had
erected on the property.
The complainant felt that the Ministry had wrongly
refused, for many years, to comply with a public
demand to release Crown lots in the area for recreational purposes. Based on this belief, he had
68
constructed a cabin on the area without obtaining
authority to do so.
My staff learned that development in the area had
started about 15 years ago, when persons occupying the land on mining claims began unlawfully constructing cabins. Action was taken
with respect to these unlawful occupations in
1973, but through the intervention of their MlJ|
the cabin owners were successful in obtainirlt
recreational leases to legalize this occupation of
Crown land.
Reasons given by the Ministry for declining to start
orderly development of the area related to health
and pollution problems associated with the very
shallow soils in the area, lack of access in winw
and the need for an overall plan for development
of the ski hill as a recreational area. The complainant did not accept these explanations and felt
that the Ministry should have marketed the land.
On the basis of these beliefs and in light of the
government's previous legalization of unauthorized occupations of Crown land in the area,
he started construction of the cabin. Several days
after construction started, he was told by the Regional Office of the Ministry to stop constructicHj
face legal action under the Land Act. The complainant was originally given a 30-day deadline to
remove the cabin. The time was later extenM
nine months through the intervention of the complainant's M.L.A. The complainant continue^H
feel that the Ministry should lease him the property
and contacted my office for assistance sewB
months before the expiry of the second deadffi
set by the Ministry.
No suggestion was ever made to the complainant
that his occupation would be legalized and the
Ministry took action soon after it learned of his
activities. As the Ministry had not misled the complainant and as he had no legal authority to occupy Crown land, I concluded that his compHE
was not substantiated. The Ministry had nowffi
cided to consider restricted marketing of land in
the area, and agreed to make whatever arrangement was possible to relocate the complainants
cabin if lots were sold.
CS 81-099
Almost doesn't count for First Home Grants
An individual complained that his application fora
First Home Grant had been unfairly refused bythe
Ministry's Home Purchase Assistance Branch.
The complainant had bought his first home for
$71,500 and the price limit in effect at the dated
purchase was $70,000.
Price limits for homes eligible for grants and loans
under the Home Purchase Assistance Acme
established by regulation, and are subjecljo
periodic review. The complainant had arguedtpat
the price limit imposed by regulation was \_W
II unfair, as he could not have bought a home
hat amount. In view of the small difference
Iveen the price of the complainant's home and
■ maximum price limit, I disagreed with this
liment, and concluded that the complaint was
■5ubtantiated.
|H-100
r, leowners get their grant
■complainants, a native couple, had been re-
sd a Family First Home Grant because the
lie Purchase Assistance Branch received their
lication 10 days after the one-year deadline
Bribed under the Home Purchase Assistance
(According to the Act and its regulations, an
Hcation must be received by the Minister
Bin a year after the homeowner takes
sipancy.
He complainants' home was on an Indian re-
K the Home Purchase Assistance Branch re-
Hd that their Band Council confirm that the
H| was entitled to the land and occupied the
B. The complainants had submitted their ap-
x tion to the Band Council office soon after they
Bccupied their home, but as a result of errors
Bnisinformation on the part of the Band Coun-
Hce, the application was not forwarded to the
>.3 Purchase Assistance Branch on time. Nine
II before the expiry of the one-year limitation,
Bomplainants took matters into their own
ts and sent in a second application, without
Rquired Band Council resolution. Since the
Be had done everything in their power to com-
ai'ith the one-year limit, it appeared unfair to
Hi them their grant.
Bet with the Manager of the Home Purchase
Htance Branch and the Director of Housing
Tarns. I suggested that the Band Council
Hi be deemed an agent of the Ministry for the
ttnses of receipt of an application. Under this
Bretation, the complainants would have
w application well within the one-year time
Bon.
■eligibility Committee agreed to approve re-
wand processing of the application.
IHomplainants were very pleased to learn of
secision and were finally issued a grant.
I-JNISTRY OF MUNICIPAL AFFAIRS
Hied, withdrawn, discontinued 7
?sved: corrected during investigation 4
Mantiated: corrected after recommend. 1
IHantiated but not rectified ... 2
pjjbstantiated.. „.- H
LwLOSED—TOTAI 25
pf >er of cases open Dec. 31,1981 .18
Local government probably affects directly a
larger number of'people than any other level of
government. The Ministry of Municipal Affairs has
varied responsibilities concerning cities, districts,
towns, villages, regional districts and the boards
and commissions related to these bodies.
The Ministry of Municipal Affairs is divided into
two Departments: Deputy Minister for Planning,
Policy and Ministry Services and Inspector of Municipalities who has Deputy Minister status. In the
case summaries which follow, I will explain my
limited authority in local government matters (see
"Rezoning blocks view; lack of authority blocks
Ombudsman"—CS 81-101).
A high percentage of the complaints I received
related to the office of the Inspector of Municipalities and the investigations carried out under
his direction. Complaints about the lack of proper
investigative techniques seem to have been
caused by an increased work load. The reason for
the increased load is that more citizens, believing
their local governments have treated them unfairly, have demanded intervention by the Inspector of Municipalities. The Inspector of Municipalities assures me that he will have more trained
investigation officers in 1982. This should help
alleviate the problems.
Throughout 1981, the Ministry of Municipal Affairs'
staff has given my office a high degree of cooperation and assistance.
CS 81-101
Rezoning blocks view; lack of authority blocks
Ombudsman
A husband and wife complained that Municipal
Council had failed to follow the steps demanded
by the Municipal Act tor rezoning land. They and
their neighbours opposed the use of nearby land
for multiple-unit buildings. They believed there
would be traffic congestion, a change in the
character of the neighbourhood, and a blocked
ocean view. The Municipal Act requires public
hearings when rezoning is planned. Notice is
given to nearby owners and newspaper ads are
placed. The complainant told me there were mistakes in the advertisements and in the notices
they were given and that therefore the rezoning
violated the requirements of the Municipal Act.
They were not satisfied with later attempts to correct these deficiencies.
Although the Ombudsman Act designates municipalities as an "authority" subject to investigation,
the Legislature has not yet proclaimed this part of
the Act in force. Therefore, I have so far no juris^,
tion to investigate the decisions of municipalities
or comment on the fairness of their actions.
When a complaint that is beyond my jurisidction
comes to me, I try to suggest an alternate remedy.
69
In this case, I suggested the complainants take
their grievance to the Inspector of Municipalities.
They asked him to overturn Council's rezoning
decision.
The Inspector investigated and replied that despite the mistakes in the notice and advertisements, no one lost the chance to be present and
be heard at the public hearings. Therefore, his
office would not act.
I am powerless to help except by reviewing the
investigation carried out by the Inspector, and
considering the restricted jurisdiction vested in
his office in matters of this kind, I accepted the
results of his investigation. If the portion of the
Ombudsman Act concerning municipalities had
been proclaimed, I could have conducted an investigation myself, and not have had to rely on the
efforts of another party.
CS 81-102
Restructure of boundaries
After a poll to approve restructuring of the boundaries of a town, some voters complained that the
poll had been designed to support the opposite
decision from the one they wanted. Their complaint was based on a misunderstanding which
good communication might have prevented.
The town council had received several requests
from rural land owners that the water distribution
system (which was owned by the town but situated in the rural area) be upgraded in order to
serve their needs better. A committee was appointed by the town and the Regional District to
study the question of restructuring the boundaries
of this town in order to meet the wishes of the rural
residents. The committee comprised six voting
members (three from the town and three from the
rural area) with Ministry of Municipal Affairs' representatives acting in an advisory capacity.
The committee sponsored public meetings in
order to answer questions from the public. After a
year of deliberations, the committee requested
that the Minister of Municipal Affairs hold a referendum in the area described by the committee,
with a view to establishing a new, incorporated
community. The Minister complied with the request of the Committee by appointing a Returning
Officer and directing that a poll be taken in the
area designated by the committee.
The Minister has the legislative authority to direct
the procedures for the poll that is taken and he
directed that the area be divided into two polling
divisions. The Returning Officer, who had authority to make local arrangements for the vote,
then decided that the voting for both divisions
should be held in one room in the Town Hall and
70
that a different colour of ballot would be used for
each polling division. The ballots cast by the town
voters and the rural voters would be unmistakaW
separate.
The Returning Officer did not explain to the public
the procedural decisions she and the MinM
had made. As a result, some residents interprgH
the procedures at the polling station as indicami
that a majority in each of the two polling divisions
must separately vote in favour of the propoH
extension of boundaries before incorporalB
would take place.
My investigation revealed that the Ministry of Municipal Affairs acted according to legislativt^B
quirements in the holding of the referenduirnB
I have suggested to the Ministry that in the future,
the public be clearly informed of the rules under
which a vote is being taken so that there will be no
misunderstanding of the procedures used in the
process of restructuring boundaries.
Because of this and other complaints, I have begun a separate study into the problems associated with municipal restructure and boundary extension and I will be reporting the outcome of the
investigation.
CS 81-103
Inspector's investigations inspected
Through my investigation, I substantiatecHfl
complaint of a B.C. resident that the Ministry- of
Municipal Affairs did not properly investigate the
problem which she had brought to its attenB
Under the provisions of the Municipal Act, a«
son who is not able to obtain a supply of water
from an irrigation or water district may appeal to
the Inspector of Municipalities, Ministry of Municipal Affairs, who, after investigating the complaint,
may intervene on behalf of the aggrieved party. If
the person is not satisfied with the investigam
procedures utilized by the Inspector, my o®
may then examine this aspect of a complaint.'
The chief deficiency in the procedure adopted by
the Ministry was that the complainant wasfB
interviewed at the time that the Ministry contacH
the irrigation district officials.
The Ministry accepted my recommendation Mm
implement a fair investigative procedure policy.
Such a policy would establish three rights for a
complainant. First, the complainant must begijpn
the opportunity to be heard or interviewed be®re
a determination is made. Second, reasons for decisions must be given and each complaint 'e(wt
an answer from the Ministry. Third, there must not
be unreasonable delay in carrying out the
investigation.
lis case, subsequent contact with the com-
iant revealed no new evidence that the irriga-
district had treated her differently than others
milar circumstances.
i the new policy in place, future complainants
tow assured of a fair hearing as the Ministry of
licipal Affairs meets its statutory investigative
lonsibilities.
|1-104
itenance of fire hydrants
Hiseholder informed me that her Fire District
Ithe several Water Districts within it were argu-
:about whose job it was to maintain fire
[rants. As a result the hydrants had been left
■paired for two years. The Ministry knew about
[squabble but had not done anything to get it
Isd. The complainant was, of course, worried
.her hydrantless district would be in serious
I)le if a major fire broke out.
Insulted the Ministry, the Fire District and the
H Districts. All agreed a solution must be
Id, so I arranged for them to meet. A member
B staff attended the meeting and it was soon
Bed who should service and maintain the
Bnts.
■-105
sying inspection amounts to inaction
arson wrote to the Inspector of Municipalities
■77 and asked the Inspector to investigate an
«ed conflict of interest on the part of an elec-
jfficial. The allegation concerned the conduct
Member of a Municipal Council as it related to
Kid holdings in the municipality and the sur-
j jing area. The Inspector of Municipalities did
answer the letter which requested that a pub-
[quiry be held into the matter.
^frequently, the person complained to my of-
[eibout the delay in obtaining an answer from
a specter. My investigator discussed the mat-
r) th the complainant and with the Ministry of
Jicipal Affairs officials. I found the complaint
Ilfantiated. However, I concluded that be-
|k of the extended delay in receiving a re-
Be from the Inspector, it would be difficult to
avan inquiry which would ensure that all facts
:i be accurately recalled.
■■.particular complaint could not be rectified.
H|er, the Inspector of Municipalities has as-
ftl my office that now practices within the Min-
[rjiave been changed so that the public will no
Hr be required to wait an unreasonable period
tie prior to having action taken.
IJ
MINISTRY OF PROVINCIAL
SECRETARY AND
GOVERNMENT SERVICES
(Not including PSC, Superannuation,
and GERB)
Declined, withdrawn, discontinued 6
Resolved: corrected during investigation 2
Substantiated: corrected after recommend 0
Substantiated but not rectified^ 1
Not substantiated _4
CLOSED—TOTAL 13
Number of cases open Dec. 31, 1981 9
CS 81-106
"First Citizen" gets bursary
A young non-status Indian complained that he
had been unreasonably denied a bursary from the
First Citizens' Fund Student Bursary program.
He had come to work in British Columbia from
Manitoba in 1973. Later, he enrolled in post-secondary institution and was from 1977-1981 a full-
time student. He believed that he would be able to
receive repayment of his Canada student loan
through the First Citizens' Fund Student Bursary
Program. However, when he applied to the Advisory Committee, he was granted repayment only
for the 1980-1981 academic year.
In 1969, the Legislature made provision for the
Minister of Finance to use the interest on the First
Citizens' Fund to pay amounts for the purpose of
"the advancement and expansion of the culture,
education, and economic circumstances and
position of persons of the North American Indian
race who were born in and are residents of the
Province".
My investigation revealed that in 1979 Provincial
Government and Indian people began to consider it discriminatory that Indian students who
were born outside the province but become residents of British Columbia were ineligible to be
considered by the First Citizens' Fund Advisory
Committee. Some exceptions were made during
and after 1979. By the 1980 school year a new
policy was in effect allowing bursaries to be paid
on the basis of B.C. residency.
I suggested a relaxation to allow the young man to
receive the assistance he had expected. The Ministry of Provincial Secretary and Government Services agreed and his student loan for 1979-80 was
repaid for him on compassionate grounds.
71
CS 81-107
Innocent until proven guilty
A junior stenographer had been suspended without pay from her job in a cabinet minister's office
after criminal charges were laid against her. After
the charges were dropped, over a year passed
and, still jobless, she complained to me.
The complainant's lawyer wrote to her former employing Ministry and informed the Ministry that
charges against her had been dropped; he also
inquired about the complainant's employment
status. The Ministry replied that a reorganization
of the public service had taken place and that the
complainant's position was now part of the Ministry of Finance. The Ministry also advised that copies of the lawyer's letter had been sent to the
Ministry of Finance and to the Chairman of the
Public Service Commission.
Five months later, the complainant had heard neither from the Chai rman of the Public Service Commission nor from the Ministry of Finance. She
wrote to the Public Service Commission and once
more inquired about her employment status. After
another six months she was interviewed by a personnel officer with the Ministry of Finance. She
was told that, because she had been away from
the job for so long, she would have to undergo a
typing test. No prospects for a job were held out.
Finally, the complainant contacted my office, and I
made preliminary inquiries. It turned out that the
complainant's position, following government
reorganization, was not with the Ministry of Finance, but with the Ministry of the Provincial Secretary and Government Services. It became evident that the position had never been filled with a
permanent incumbent since the date of the complainant's suspension. The Ministry of the Provincial Secretary and Government Services interviewed her and offered her work.
I conducted no formal investigation into this matter and I am therefore not making a formal finding.
However, after the complainant was re-employed,
two problems remained.
The complainant was unemployed and without an
income for almost 17 months while criminal
charges were pending against her. The provisions
of the Public Service Act permit suspension of a
public servant while criminal charges are pending
against him or her. However, there is some discretion as to whether such a suspension should be
with or without pay. Because this complaint was
settled without a formal investigation, I am not sure
what criteria are applied by the Public Service in
deciding on whether a suspension should be with
or without pay, or indeed whether criteria exist at
all. I intend to make this question the subject of a
separate investigation.
The complainant was also unemployed and without an income for another 16 months after criminal
72
charges against her had been dropped. THJ
appeared to be no reason for not re-employingH
complainant immediately. I was able to negoffi
a settlement of $11,000 to compensate the elf
plainant partially for loss of income she suffered
during this period.
MINISTRY OF TRANSPORTATION!
AND HIGHWAYS
Declined, withdrawn, discontinued 88
Resolved: corrected during investigation..... 48
Substantiated: corrected after recommend^R
Substantiated but not rectified o
Not substantiated _..» 50
CLOSED—TOTAL 192
Number of cases open Dec. 31, 1981 78
I again received a substantial number of complaints involving the Ministry of Transportation™
Highways in 1981, About two-thirds of the complaints received involved the Highways Division of
the Ministry, while most of the remaining thirdSt-
cerned the Motor Vehicle Branch.
Complaints about decisions of the Motor Veffie
Branch are often resolved, due in large part tame
excellent cooperation received from the Branch.
A number of cases which remain open concern
the procedures employed by the Branch in suspending, or refusing to issue, drivers' licenctBn
medical grounds. The Superintendent of Motor
Vehicles has a statutory duty to satisfy himself that
every person given a driver's licence is medically
fit to drive safely. Under current procedures, the
Branch makes these decisions on the basis of the
guidebook published by the B. C. Medical Association. I am concerned that where a person and
his doctor believe that he is an exception to the
general rule, that his particular medical condign
will be reviewed by a panel of medical speciaHs.
The Branch has agreed with this principle and is
currently undertaking substantial changes in its
procedures for dealing with these cases. ■
I would like to emphasize the high degree of coop
eration and assistance I have received from the
Superintendent of Motor Vehicles and his staff.
Responses to my findings and/or criticisms are
candid and well-reasoned. As might be expected, it is much easier to resolve compia|s
and issues which arise out of my investigatps
where the agency actively participates in fineffia
solution.
Complaints involving the Highways Division oBe
Ministry have been more difficult to investigate
and resolve. Much of the difficulty in this area
arises from the fact that the Ministry's respon-
lities to construct, repair and maintain the pub-
highways network are not defined by statute
rather, are left at the discretion of the Ministry,
s a complaint that the Ministry has refused to
Irade a certain public road is difficult to find
[er substantiated or not substantiated. The
istry has no statutory responsibility to do such
k, yet one must presume that the Legislature
Wdes the Ministry with its sizeable budget at
t partly for the purposes of upgrading and
■htaining the public road network. Generally
Baking however, Ministry officials and, in par-
liar, local staff have sought to provide the pub-
Ivith good service and resolve those com-
Ihts which do arise.
Brticularly difficult problem which is currently
iter investigation involves claims by the Ministry
I certain roads are public roads. According to
WHighway Act, if public money has been spent
Ii private road for purposes other than snow-
It ghing, that road automatically becomes a
S ic road. Did the Legislature really intend that
i s be expropriated without compensation be-
3;e, for example, they were graded a few times
sy years ago? I have written to the Ministry as a
sit of receiving many complaints on this issue,
■ I may be making recommendations in the
lie
1-108
ight to buy back land freely sold
eband and wife had sold their property to the
Stry of Transportation and Highways almost
ty years ago. At that time, the Ministry be-
id that the property would be required for
ways purposes and had approached the
plainants to acquire the property. The prop-
had never been used and the complainants
plained to me that the Ministry refused to sell
iroperty back to them.
other part of this Report, I discuss the Cuth-
case which involved very similar circum-
ces. But in that case, the Ministry had actually
opriated the property, whereas in this case,
omplainants had voluntarily sold their prop-
D the Ministry. Because of this, I did not feel
; ne Ministry was under any moral obligation to
he property back even if it was no longer
r fed, and I concluded that the complaint was
Instantiated,
property had been expropriated, or if the
i|try had led the complainants to believe that
had no choice but to sell their property, I
i have probably concluded that the property
id be returned.
lase raises another issue. Do property nego-
JMor the Ministry of Transportation and High-
a| always properly inform persons from whom
fwish to purchase property of their legal
rights? Until a property has been expropriated,
the owner retains the right to refuse to sell the
property. Is the owner advised of this or is he led to
believe that he has no choice but to sell his property to the Ministry? I hope to investigate this issue
in the coming year.
CS 81-109
Ministry cleans up mess
During a visit to Nelson I received a complaint that
the Ministry of Transportation and Highways had
failed to restore the complainant's ranch to a usable condition after expropriating some gravel for
highway construction. We contacted the Director
of the Construction Division of the Ministry and
brought these complaints to his attention. The
Director told us that he was planning a visit to the
Kootenays and that he would visit the complainant's ranch and take a first-hand look at the situation. He said he would ensure that all commitments made to the complainants were kept, and
that the property would be returned to an acceptable condition.
We discussed this proposal with the complainants, who agreed with the suggestion. I encouraged the complainants to contact me if they were
unable to work out a suitable settlement with the
Ministry. As it appeared the Ministry was willing to
negotiate a settlement, further investigation was
not necessary.
CS 81-110
Smoothing out the bumps
An individual had owned a small rural property for
some years, but had great difficulty in gaining
access to the property because of the condition of
the adjacent public road. A sawmill used a portion
of the road and heavy machinery had caused the
road to deteriorate to such a state that it was
impassable. The individual complained that the
Ministry of Transportation and Highways had not
properly maintained the road.
The Ministry of Transportation and Highways has
an obligation to ensure that all public roads are
both safe and passable. Obviously, the standard
to which a road is maintained is a matter of discretion and depends very much on the amount of
traffic using it. However, where a public road
provides the only access to an individual's property, I believe the Ministry has an obligation to
ensure that the road is usable.
In this case, I brought the complint to the attention
of the District Highways Manager and Highways'
crews did the needed work in the few weeks
following.
73
CS 81-111
Water, water everywhere
During 1981, I received three similar complaints
about flooding to the complainant's property
caused by water running under or adjacent to a
public road. Each complainant told me that the
Ministry of Transportation and Highways had not
taken the necessary steps to ensure that this
water did not flood the complainant's property.
I worked on the principle that the Ministry had an
obligation not to divert a natural watercourse in
such a way that it damaged private property, but
had no obligation to divert a watercourse from its
natural location to prevent such damage.
In two of these cases, I discovered that the watercourse had flooded the complainant's property
during heavy rain even before the construction of
the public road. In constructing the public road,
the Ministry of Transportation and Highways had
not altered the natural watercourse, but had instead merely placed culverts under the public
road in order to let the water course follow its
natural route. In these cases, I concluded that the
Ministry had no obligation to prevent the flooding
of the complainant's property.
In the third case, the public road had been constructed along the base of a large hill. It acted as a
collection device for natural runoff flowing down
the hill. The road had collected all of these small
streams and rivulets, and channelled them
through a single culvert under the public road and
onto the complainant's property. As a result, the
complainant's property had been eroded. It was
my tentative opinion that the complainant had a
legitimate claim to the Ministry for compensation
for the damage caused to her property, but because the Ministry of Transportation and Highways Act provided the complainant with the statutory right to arbitrate the Ministry's refusal to pay
her compensation, I concluded that I had no jurisdiction to investigate her complaint. I was required
by the Ombudsman Act to refer her to the arbitration procedure.
CS 81-112
Heads Crown wins: tails you lose
A young couple had bought a half section of
Crown land in the Peace River area some years
ago. As a condition of their purchase, they were
required to construct a road on the public right of
way which provided legal access to their property.
This they did at considerable expense. Recently
they tried to divide their half section into quarters
so that they would be able to sell half at some
future time. The Minister of Transportation, acting
as the approving officer, refused to permit the
subdivision until they had constructed another
public road to provide access to the other quarter.
74
The complainants argued that they were gettHj
stuck at both ends: both as buyers and as sellers
they were made to build roads.
I found that the complaint was not substantial
First, it was not unfair that the Crown had origifjH
required the complainants to construct a public
access road to their property, since the price they
paid was low because the property did not have a
public access road. Second, the fact that the
Ministry now required them to construct a public
access road to the second quarter was not unfair;
because this was a requirement placed upon all
subdividers (except the Crown) and the cost
could be passed on to the purchaser. It has IB
been policy in this province that individuals who
wish to subdivide their property must provideH|
cess to all newly created parcels. In this fashion,
the persons who benefit from the access road,
pay for that access road.
The Crown historically has not been requireHJ
provide lands sold with a public access road. This
has created problems as is illustrated by the next
complaint.
CS 81-113
Private dispute not solved with public funds
A farmer had for years obtained access to his
property, which had originally been bought without access from the Crown, via a private road
across his neighbour's land. As a result of a dispute, the neighbour had withdrawn his permission for the complainant to use the road. Consequently, the complainant had asked the Ministry of Transportation and Highways to creatHI
public road to his property, and the Ministry^p
refused.
I discovered that there were really only three people who would be affected and that two of trig
people did not want a public road. I therefflg
agreed with the Ministry that it was not in the
public interest that a public road be constru^B
at the taxpayers' expense.
It seemed to me that if the complainant wanted
unrestricted access to his property, he should be
prepared to buy the necessary right of wayfflE
one of his neighbours and pay for the co^EE
constructing a road. This would increase therm|
ket value of his property, and he would probably
be able to recover the cost of construction when
he sold the property. For the above reasons, I
concluded that the complaint was M
substantiated.
CS 81-114
L'examen en francais
We dealt with two similar complaints involving
problems experienced by French-speakingopsi-
dents of the province. The first case was brought
I is by the concerned acquaintance of a fran-
none who had been unable to obtain his air-
i :e driver licence during the two years since he
I come to live in B.C. He had worked in Quebec
(professional truckdriver, but was now forced
brk at a lower-paid job, because he had been
■ale to pass the written airbrake licence exam
jiglish. My staff arranged with the Superinten-
II of Motor Vehicles for the man to take the
In orally with the aid of a French/English
lonary.
lie second case, the B.C.-born wife of a
Ich-speaking immigrant from Europe con-
lid my staff to complain that no service was
Ig provided in French. She said that immigra-
■officials abroad had assured her husband
■he would be able to function quite well in
lada if he spoke French or English in addition
Is native tongue. She had offered to act as
I later during the written exam, but had been
led. After some discussions with the Superin-
b=nt's and the local Motor Vehicle Branch of-
kit was arranged that a local French-speaking
ttiolteacher would act as translator The
pch obtained references, was assured that the
lie did not know the teacher personally, and
flthat the couple would have to pay any fees
■red.
aliscussed with the Branch various ways of
jig with such problems. The Superintendent
othat translators had been used in the past,
lad not been satisfactory: they tended to over-
3je licence applicants and they influenced
3;sults. Finally, I recommended that the driver
a ai and the written exam be provided in a
llual edition. Since the MVB was concerned
1st cost factors, we obtained estimates for
mating and printing; these were quite reason-
ilf However, the Ministry referred the matter to a
biet Committee, rather than implementing the
pnmendations, suggesting alternatives, or
a refusing to accept them. After several
ans of waiting and following up with the MVB, I
:3ed to close my files. I am not satisfied with
?)jtcome of the overall issue, but appreciate
f|jperintendent's efforts on behalf of the indi-
liul francophones who originated the com-
ii3. especially in this time of nationalism and
lldian unity.
115
: I gets foreign licence back
11 complained that he had been required to
der his foreign driver's licence to the Motor
e Branch upon application for a B.C. one.
id the Motor Vehicle Branch staff had indi-
that he could make an appeal for a return of
ence to the Superintendent of Motor Vehi-
pd that he would probably have it returned to
him. He wrote to the Motor Vehicle Branch in Victoria, but was refused his old licence. He said that
he had various reasons for wanting the old licence. For example, it entitled him to drive both
cars and motorcycles. He was not sure he c6"$a*'
get a B.C. motorcycle licence in time for a planned holiday. Furthermore, the licence served as a
source of identification in his country of origin and
enabled him to rent vehicles and get driving insurance more easily there. He was also not sure
whether he would remain in Canada permanently,
and so wanted to keep the old licence.
We did a full investigation on this complaint. The
Motor Vehicle Branch cited the Motor Vehicle Act
which stated that a driver's licence held prior to
application for a B.C. licence should be surrendered unless the Superintendent dispensed with
the surrender. The Superintendent informed the
Ombudsman that he rarely exercised this discfe^
tion and usually only in the case of B.C. residents
working in a neighbouring province or in the
United States but residing in a border area in B.C.
The Branch felt returning foreign licences would
not be in keeping with B.C.'s "one licence concept". We did research on other provinces' treatments of foreign driver's licences and found that
some were as stringent as B.C. but that a number
were less stringent.
After numerous discussions and various letters to
and from the Motor Vehicle Branch, I recommended that the Motor Vehicle Branch institute a
new procedure, whereby holders of foreign
driver's licences would be able to request their
return.
The Motor Vehicle Branch agreed to institute this
new procedure. Form letters were drawn up to
deal with requests for return of foreign driver's
licences, as well as to explain the use of the B.C.
driver's licence and the international driving permit and including a list of countries in which these
were usable. The Branch also stated that individuals surrendering their foreign driver's licences
would be informed that they would be held for up
to five years or until expiry, whichever date came
first, and that they had the right to apply to have
the licence returned in the future. This would apply
only to new cases of surrender of foreign driver's
licences as, prior to institution of the Ombudsman's recommendation, driver's licences had either been returned to their home jurisdictions or
destroyed.
CS 81-116
Driver can rebut claim he's unfit
A driver told me that the Branch had refused to tell
him the details of a complaint received by the
Branch about his fitness to drive. Since the Board
had used the complaint as reason to require him to
take a driver re-examination, he felt it unfair that he
75
was not told the details and was not given a
chance to respond.
The Superintendent of Motor Vehicles has the authority under the Motor Vehicle Act to require a
driver re-examination. Once the Motor Vehicle
Branch has received a complaint about a driver's
fitness or ability to drive, and it is satisfied that the
complaint is legitimate, the Branch sends a
standard notice asking the driver to comply with
the item(s) indicated in the notice. In the usual
course of events, the Motor Vehicle Branch does
not inform the driver of the reasons for the notice. If
the driver questions the Branch's notice, he may
be given details about the complaint, but he will
not be given the complainant's name or an opportunity to repond to the complaint.
While I acknowledged the Branch's need to keep
the complainant's name confidential, I was concerned about their administrative procedure,
which did not give the driver the reasons for the
request for the re-examination, the details of the
complaint, or an opportunity to respond to the
complaint.
The Motor Vehicle Branch agreed to amend its
administrative procedure. Now, the Motor Vehicle
Branch sends a letter requesting the driver to
appear for a re-examination and saying that the
Branch has received a complaint about his fitness
to drive. The letter gives the driver the name of
someone to contact for information. If the driver
can show the complaint is unjustified, the Branch
will withdraw its request for a re-examination. In
my opinion, the Branch procedure is no longer
arbitrary or unfair.
CS 81-117
Restriction Invalid, amputee finds
The complainant's left leg had been amputated
immediately below the knee and a prosthesis fitted. In 1977 he purchased a logging truck, and
applied to obtain a Class 1 driver's licence. He
passed the driver's test, but the Motor Vehicles
Branch would only grant him a Class 1 licence
which restricted him to driving in British Columbia.
The complainant said this affected his opportunities for work.
My investigator contacted the Motor Vehicle
Branch, and was told that individuals with a be-
low-the-knee amputation did not meet the medical standards for a Class 1 driver's licence. The
Motor Vehicle Branch said that while it could permit such an individual to drive within British Columbia, it was contrary to reciprocal agreements
with other provinces to grant him a B.C. licence to
drive Class 1 vehicles in other provinces.
I contacted the Alberta Motor Vehicles' Division,
and received a letter from the Division indicating
that if B.C. was prepared to grant the indi ridual a
76
restricted Class 1 operator's licence, Alberta
would be prepared to honour such a licendai
that province. It appeared to me that notwitli-
standing this letter, the individual would be without a valid driver's licence upon crossing the Alberta border.
I contacted the Motor Vehicle Branch again. The
Branch agreed to seek a legal opinion as to
whether or not it could expand the restrictiojH
the individual's Class 1 licence to permit him to
drive in British Columbia and Alberta.ffli
Branch's solicitor subsequently advised thai,
while the Branch had no authority to restrHH
person to driving in British Columbia and Alberta
only, neither did it have authority to restridHH
individual to operate a vehicle in British ColuffB
only. Subsequently the Motor Vehicle BraWt
agreed to lift this restriction from the individall
licence and the complaint was thereby resolH
CS 81-118
Tell 'em like it is!
The complainant had been convicted four timtB
four years of alcohol-related driving offences and
had had his licence suspended indefinitely. SB
the past two years, the Motor Vehicle Branch had
sent him a number of letters requesting that he
provide a letter from Alcoholics Anonymous or a
similar organization attesting to his sobriety for the
previous six-month period. The complainant®
sent in two such letters but the Branch did;not
reinstate his licence.
Upon investigation, I concluded that the Branch
had misled the complainant into believing thaMe
needed only to provide the Branch with a letter of
attestation and his licence would be automatically
returned. In fact, the Branch was quite properly
more concerned that the complainant had solved
his alcohol problems and for that reason had telephoned the people who had written the letteepi
behalf of the complainant. These people had
stated that while the complainant was progressing, he had clearly not resolved his problems with
alcohol. I concluded that the Branch had acted
properly in continuing to refuse to reinstate the
licence.
However, while I did not think the Branch had
acted improperly in telephoning the authors of the
letters of attestation, I did conclude that the
Branch had acted unfairly in leading the complainant to believe that he would get his licence back
if he sent in such letters. I therefore proposed that
the Branch make it clear that when it received a
letter attesting sobriety, it might telephone the
author for more information. The Branch agreed,
and promised to make this clear in any future
letters to such persons.
-1
111-119
[pensions suspended during labour strife
fcmplainant had received a notice from the
lirance Corporation of British Columbia which
Eid that because he had not paid money owing
i= Corporation, l.C.B.C. had asked the Super-
bident of Motor Vehicles to suspend his motor
lble licence. The complainant pointed out that
I if he paid, l.C.B.C. might not be able to
■jess his payment because l.C.B.C. em-
lees were, at that time, on strike. The suspen-
I request might not be counteracted.
Icomplainant was finally able to contact the
lager of customer collections for l.C.B.C., and
■manager made sure that the complainant's
Inent was processed and the suspension
Bed.
■3 this individual's problems were thus re-
Hd, I remain concerned that other residents in
HBovince might find themselves in the same
■tion.
Sals in the Motor Vehicle Branch agreed that
Bnsion notices received from l.C.B.C. would
tie processed during a labour dispute, al-
jijh this directive did not apply to people who
f previous debts to l.C.B.C.
120
ate transfers
Was an investigation that I initiated on my
after receiving six individual complaints
ng with the same issue. Each of the complai-
had owed money to the Insurance Corpora-
if British Columbia as a result of receiving
Ity points on their driver record. In each case
pmplainant had failed to pay at the required
and his or her motor vehicle licence had
quite properly, suspended. Each of these
lainants had wanted to sell his or her vehicle
imily member, but the Motor Vehicle Branch
efused to permit the sale. The Branch be-
that the sale was probably a fraudulent
action and that the complainant would con-
to use the vehicle. The complainants
d to sell their cars quickly so they paid the
| they owed and thus solved their problems.
ilfer, I initiated my own investigation.
I was unable to find any statutory authority which
would permit the Superintendent of Motor Vehicles to refuse to transfer a motor vehicle on the
grounds that the owner owed money to l.C.B.C.
Furthermore, it was my opinion that this policy was
unfair for two reasons. First, there is no logical
relationship between owing money to l.C.B.C. and
being prohibited from selling one's vehicle. Second, these individuals were being deprived of
their right to sell their property without having received an opportunity to be heard. The Board
arbitrarily assumed a sale to a relative must be
fraudulent, and did not give the complainant a
chance to explain the reasons.
The Motor Vehicle Branch agreed with my conclusion that the policy was without statutory authority, and the policy was subsequently
abolished.
CS 81-121
The pleasures of purple gas
In order to buy inexpensive coloured gasoline for
her Ford "Bronco", which she used to haul feed
and farm equipment, the complainant needed
commercial plates. She had been denied these.
The reason given by the Motor Vehicle Branch for
the refusal was that the Bronco had a removable
back seat. This meant that the vehicle did not fall
within the provisions of the Commercial Transport
Act, which says that a commercial vehicle is a
motor vehicle having permanently attached to it a
truck or delivery body.
I understood that the Bronco's cargo-carrying
area was comparable to or greater than the area
provided in other vehicles which were classified
as commercial vehicles, and that the rear seat
was readily removable for large loads. I therefore
concluded that the vehicle had a permanently
attached delivery body and that the presence of
the removable rear seat was not relevant. On the
basis of this conclusion, I recommended that the
complainant be provided with commercial plates
and that the Motor Vehicle Branch reverse its
practice of denying commercial plates to vehicles
with removable rear seats, if they are in other ways
commercial vehicles.
The Superintendent of Motor Vehicles accepted
my recommendation and the complainant was
able to obtain her commercial plates.
77
BOARDS, COMMISSIONS, TRIBUNALS
AND CORPORATIONS
AGRICULTURAL LAND COMMISSION
CS 81-122
Lease arrangement means second house
possible
The complainant and his father-in-law purchased
ten acres of property in the Thompson-Nicola Regional District with the intent of using the land for
market gardening. He applied to the Commission
for subdivision approval as both he and his father-
in-law wanted to construct homes on the property.
The application was refused on the grounds that
the property was capable of supporting a wide
range of crops and that its agricultural potential
should be preserved. It was the Commission's
opinion that a ten acre parcel was the minimum
size practical for vegetable or market gardening
purposes. The complainant felt that the Commission had not been consistent, having made the
opposite ruling for other applications in the
vicinity.
The Commission provided my office with a summary of how applications for subdivision in the
immediate vicinity had been disposed of. I concluded that the decision did not involve any discrimination or impropriety towards this individual's
application and that it was in keeping with the
intent of the Agricultural Land Commission Actto
preserve agricultural land intact.
During my investigation, it became clear that what
the complainant really wanted was permission to
build a second residence. I therefore advised him
that he could re-apply to the Commission for subdivision by a lease with an explanatory plan. The
Commission tends to look more favourably on this
type of application as it does not involve the creation of further land title parcels in the Land Title
Office. The complainant agreed to proceed with
this new application.
CS 81-123
Waterslide approved; objectors take dunking
A number of Okanagan residents complained
about the Commission's approval of a waterslide
within the Agricultural Land Reserve. Any change
in land use must be approved by the Commission.
Waterslides are composed of sections of molded
fibreglass strung together in a snaking fashion
and then waxed to make them slippery. Water
pours down each slide creating a wet ride of approximately 400 feet. Opponents had used a
78
court challenge before coming to the OmbiHJ
man. I investigated the Commission's procedure^
in granting approval.
The waterslide operators had obtained all the
necessary approvals in order to operate the s|H
The property was in an area zoned tourist/^H
mercial and the application was recommended
for approval by the Board of the Regional District.
An on-site inspection of the facility was arranplB
and several local orchardists were interviev|Hj
I concluded that the Commission had actedffl
cording to law in approving this application, that it
had imposed appropriate controls on the de-
velopers, and that the complaint was not
substantiated.
A side issue in this complaint was the concetHj
surrounding orchardists that the spray drift from
chemicals used in their orchards would pose a
health hazard. Although orchards and camps^H
exist side by side throughout the Okanag™
these orchardists complained that it is not a good
rationale for increasing a health hazard to sayffi
the same hazard exists elsewhere.
Members of my staff who visited the property
noted that the waterslide is constructed as far as
possible away from orchards on the ten acre lot.
The Commission made it a condition of approval
that a chain-linkfence be erected along the p&W
erty line bordering on orchards. I noted that BE
ists camp in or near orchards throughoutw
Okanagan and it was my opinion that any conditions imposed on the operators of this partitM
waterslide and campsite should also be imposed
on other Okanagan campsite operators. I broOM
the question of the potential health hazard to
campers to the attention of the Minister of Agriculture and Food, the Minister of Health, and the
Minister of Tourism.
ASSESSMENT AUTHORITY OF
BRITISH COLUMBIA
Declined, withdrawn, discontinued
Resolved: corrected during investigation..-.!
Substantiated: corrected after recommend!
Substantiated but not rectified .
Not substantiated
CLOSED—TOTAL
Number of cases open Dec. 31,1981
1 assessment of property is the basis for pay-
it of tax, I find it surprising that I have received
twenty-one complaints involving the Assess-
it Authority. Perhaps property owners are
jre that my authority to deal with these prob-
s is limited. Property owners have a right to
pal their assessment to the Court of Revision,
iwhere such a statutory right of appeal exists I
■hot investigate.
[plaints I did receive involved the Assessment
Bority's determination of actual value, its clas-
[ation of a complainant's property for assess-
It purposes, and the procedures employed by
Assessment Authority. Where the complainant
I a right to appeal I explained the appeal
ledures.
Imber of substantial achievements were made
Is area of farm classification, as a result of an
ntigation I undertook on my own initiative as a
I of a diversity of individual complaints deal-
Bth a variety of aspects of farm assessment,
•standards which a property must meet in
Ir to be classified as a farm, though at face
I; quite simple, are in fact complicated, and
■irimary concern was that farmers and as-
lors alike be properly informed. I very much
■eciated the Assessment Commissioner's
■gness to review my concerns and to take
Hi as recommended.
- -124
Hot a farm if it doesn't sell produce
Bived in both 1980 and 1981 a number of
Blaints concerning the manner in which the
Bssment Authority determines whether or not
llperty is classifed as a farm for assessment
Irises. Prior to 1979, an individual's property
s:ied as a farm if he produced roughly $1,600
H of agricultural produce, while after 1979, the
ndual was required to produce and sell pro-
i in order to receive farm classification. Since
Berty which is classified as farm is taxed at a
1rate, people who lost farm classification as a
H of the change in definition felt unfairly
id.
2nd the change was neither unjust nor im-
Brly discriminatory. Cabinet intended that
■classification be given only to those land
c's whose agricultural production benefitted
Hty as a whole.
liiducting these investigations I came across
Ifcber of other issues concerning the manner
vch farm classification is determined. These
IHincluded both apparent ambiguities in the
Bribed standards for farm classification and
-lent inequities in the procedures employed
Hi Assessment Authority in classifying such
■lies. I subsequently wrote to the Assess-
1 Commissioner and proposed seven
H
changes to both the farm classifications standards and the administrative procedures used in
implementing the standards. I found the Commissioner and his staff to be most cooperative in
resolving these concerns, and each of my suggestions was either implemented or resolved after
further discussion.
CS 81-125
No proof unweighed apples are underweight
After completing a college program in agricultural
studies, a young man returned to his parents'
property on one of the northern islands in Georgia
Strait. He attempted over a number of years to
farm the property, but despite his best efforts the
Assessment Authority declined to classify the
property as a farm for assessment purposes. The
young man complained to me.
I found that the Assessment Authority had arbitrarily assumed that the crop of apples which
the complainant had produced and sold was
smaller than what he had stated. In the absence of
evidence to support this presumption, I concluded that this action was procedurally unfair
and contrary to law. Furthermore, the Assessment
Commissioner had tentatively classified the property as a farm, subject to a further review by his
staff. This review was not conducted yet the property was not given farm classification. I concluded
that this was contrary to the regulations for farm
classification. Farm classification had been tentatively approved by the Commissioner; it was the
responsibility of the Authority's staff to complete
the review, and their failure to do so ought not to
have prejudiced the complainant.
I informed the Assessment Authority of my conclusions, but I did not make any recommendations in this case. The complainant had not suf-
ered by not receiving farm classification because
the taxes paid on the property were already so low
that farm classification would not have affected
them. Furthermore, it was impossible in law for the
classification of the property in prior years to be
changed retroactively. I closed the complaint as
not rectified.
CS 81-126
An (un)appealing case
In 1979, a property owner appealed his assessment to the Assessment Appeal Board arguing
that the actual value as determined by the Area
Assessor was too high. The Appeal Board agreed
and reduced the actual value. The property
owner, on the basis of this decision, argued that
the actual value figure on his 1978 assessment,
which had been determined by the same assessor, should be lowered and a refund of taxes
recommended. When this was refused, the property owner complained to me.
79
In British Columbia, the Court of Revision andjhe
Assessment Appeal Board review the decisions
of the Assessment Authority assessors with respect to the actual value of properties. These
tribunals only review such decisions when appeals are brought to them. The property owner in
this case had not appealed his 1978 assessment
and because of that, the Court of Revision and
Assessment Appeal Board were precluded from
reviewing and amending that assessment.
In my view, the fact that the Board had reduced
the assessment in 1979 was not conclusive evidence that the 1978 assessment was in error. The
assessor insisted it was correct and without further evidence I could not decide the matter.
The property owner could have appealed the matter in 1978 at very little cost. If successful, he
would have saved only $55 in taxes. As a result I
was unwilling to expend a great deal of my resources in resolving the matter. I therefore suggested that the property owner obtain, at his own
cost, an opinion from an accredited real estate
appraiser on the actual value of the property in
1978.
He was unwilling to do this and I discontinued my
investigation.
CS 81-127
Tax battler gets method of oil company
assessment
A complainant had been trying to prove that an oil
company was not paying enough property tax
and that as a result he and his neighbours were
paying more than their share. He came to me with
three complaints about the Assessment Authority
and the Assessment Appeal Board. He complained that he had been denied information concerning the method used in arriving at the assessment of certain properties of the oil company and
the facts obtained to support the assessment. He
also complained that the Assessment Appeal
Board in hearing the appeal of his own assessment was wrong in refusing to require that the
Assessor provide him with details about the as-
80
*^ ...MAY05 ^B &lk>ULP PAY
-~ QUIZ PZOPBRTY. TAiBS...
Reprinted courtesy King Features Syndicate.
sessment. In addition, he felt the Board had acted
unfairly in refusing to state a case, that is, to ask
B.C. Court of Appeal for an opinion about whether
people like himself were entitled to the
information.
I decided that the Authority had acted properM
not disclosing the supporting data about the oil
company's assessment. The Assessmennffl
provides that no member of the Assessment^
thority may release information obtained under
the Act to a person not legally entitled to it.,lit
appeared to me that any disclosure in this case
would have been contrary to law. However, in my
view this restriction did not apply to details about
the method used in arriving at the assessnHj
The Area Assessor agreed with this view and
stated he would provide this information to the
complainant.
With respect to the complainant's own appeal, I
felt that it was not unreasonable for the complainant after reading the rules to assume that the
particulars would be produced. The Appeal
Board's rules of procedure seemed to me to be
ambiguous on the point. However, the Board's
interpretation of the rules was not an unreas|E
ble one either, so I was unable to conclude thatthe
Board had acted unfairly. However, at my suggestion, they have changed the wording of the rules*)
end some ambiguities.
B.C. BOARD OF PAROLE
CS 81-128
One-liner answer won't do, says Parole Board
An inmate at the Prince George Regional CorJej-
tonal Centre complained that he had been given
no reasons for the denial of his parole applicaffi|
Investigation confirmed that the inmate's application was denied by the Board. During the heap
interview, the inmate had been given oral reasjgs
for the denial of parole. The obligation to inform
the inmate in writing, as required by the Regulations of the Parole Act (Canada), had been met by
r
one-line statement that the inmate "has not
bived maximum benefit from incarceration."
hy opinion, the complaint was substantiated,
igeneral and opaque statement given was not
jquate from the standpoint of administrative
hess. Adequate reasons should refer to the
jmation upon which denial was based or to the
ngs upon which the decision rests. An ade-
|te reason must have specific content which
[ be refuted, or which will help the inmate to
\ specific steps before he next applies for pa-
i The Board agreed with my position, coned the members involved, and issued a reel decision. This complaint also served as the
lis of discussion at a General Membership
llting of the Board where the provision of writ-
leasons was considered in depth. The cooper-
la attitude of the Board was further evidenced
is invitation to address the Board on develop-
a code of administrative fairness.
B.C. FERRY CORPORATION
■lined, withdrawn, discontinued 4
lolved: corrected during investigation 10
Istantiated: corrected after recommend. 0
Btantiated but not rectified 0
■substantiated _5
I CLOSED—TOTAL 19
Hber of cases open Dec. 31, 1981 _6
Ing the latter part of 1981, a reorganization
"isome new appointments in B.C. Ferry Corpo-
tn resulted in delayed communications from
Corporation to my office. I anticipate that this
fculty will be resolved when all positions have
In filled. I have found that in most situations,
I Ferry Corporation personnel have been
Iterative.
are received complaints from both the ferry-
;ig public and employees of the Corporation.
Eg a field trip in the summer of this year, I saw
lystem first hand and heard the comments of
mem residents who rely on these vessels.
le northern residents fear that their needs may
Herlooked in an effort to accommodate large
Ibers of tourists. Since my return, I have dis-
■ed these concerns with the Chairman of B.C.
i Corporation Board. I will report later in 1982
It the actions taken by the Board.
1-129
ir procedures cause blow to
ain's honour
eived a complaint from the captain of a B.C.
Corporation motor vessel that he had been
rly found 70% at fault for a collision between
two Corporation vessels. After the collision, an
inquiry into the cause of the accident was held by
the Ferry Corporation and the complainant was
advised of the allocation of fault arrived at by the
inquiry panel. He had pursued every means available to vindicate himself, and had finally sought
my help.
The initial, informal inquiry into the cause of the
accident had taken place the day following the
collision. A further inquiry, in which both captains
were represented by legal counsel, was set for a
month later. That hearing was adjourned so the
Corporation could get legal advice on questions
raised by the lawyers for the captains. Approximately one month later, further evidence was
heard.
We conducted an extensive investigation into the
procedural fairness of the inquiry conducted by
the Ferry Corporation. The complainant is a master mariner with a lifetime career in navigation. It
was indisputable that a finding of 70% responsibility for a marine accident was a serious blot on
his honour. In light of the importance to the complainant of the decision made by the Corporation,
it was my view that an adverse decision should
only have been made after an inquiry in which the
principles of procedural fairness and natural justice were strictly observed.
Several aspects of the inquiry were of concern to
me. Although the other captain and all crew members of both vessels were union members, the
complainant was not. A union representative was
present to represent the others during the evidence given by the other captain and by the
crews of both vessels. However, the complainant
did not hear the evidence of the other crew, and
only heard the evidence of his own crew by insisting on doing so.
The second time the inquiry was convened, a
month after the accident, a new member had
been added to the panel. This member was integrally involved in making the ultimate decision on
fault, although he had not heard the evidence
given the day after the collision, when the events
would have been most fresh in the minds of the
witnesses. Further, this member did not hear all
the witnesses, as some only spoke on the first day.
Further, counsel for both captains requested
notice of any alleged error or misconduct on the
part of their clients, but the panel declined to
provide this notice and stated that the intention of
the panel was solely to determine the facts and
not to allocate fault.
As a response to the complainant's persistence, a
review panel composed of three Ferry Corporation
captains was later constituted. However, no notice
was given to the complainant and he was therefore denied the opportunity to present his argu-
81
ments and evidence to the review panel before it
rendered its decision.
I advised the General Manager and the Chairman
of the Board of the B.C. Ferry Corporation of my
concerns and informed them that I had under
consideration a recommendation that the complainant be given an effective opportunity to present his case to a fairly constituted review panel,
empowered to vary the decision if indicated. I also
suggested that the Ferry Corporation modify its
practice of excluding persons who may be adversely affected by a decision from hearing all the
evidence, they need to hear all the evidence if
they are to defend themselves effectively.
The Chairman of the Corporation told me that he
would have the General Manager review the procedures I had found fault with and keep me informed. He also decided to wipe references to the
accident from the personnel files of both captains,
and to make adjustments to the complainant's
salary.
As it was my view that the Chairman had acted
promptly and fairly to resolve the complaint, it was
not necessary to make any formal recommendation.
CS 81-130
Instructor unjustly ejected
An engine-room instructor complained that B.C.
Ferries, which had at one time laid him off from
work with the Corporation, was now improperly
interfering with his employment chances
elsewhere. The instructor had been hired by a
training institute to teach students how the engine
room of a ferry works. The training required that
the students spend a short part of their course in
an actual engine room. The training institute had
made an agreement with B.C. Ferries which allowed the students to spend time in the engine
room but required that they be accompanied by
an instructor. Two days after the students came on
board, a Corporation official told the principal of
the institute that the instructor was not welcome on
the ship. The principal was forced to place his
students on ships not operated by the Corporation. No instructor was needed there, and the
instructor therefore worked a shorter time than he
had expected.
I discovered that the Corporation had violated its
agreement with the training institute by refusing
admittance to the instructor, and that this violation
had caused the unjust termination of his
employment.
Although B.C. Ferries refused to accept responsibility for the instructor's loss of his job, it did
accept my recommendation that it issue him a
cheque for the amount he would have earned if
the job had lasted the proper length of time.
82
B.C. HOUSING MANAGEMENT
COMMISSION
CS 81-131
Right tenant gets suite
A single mother of three children, who was receiving income assistance, applied for a subsidlM
apartment in a B.C. Housing Management CbH
mission building. When she was unsuccessful
her application, she complained to me thatftH
Commission had granted the apartment to a
woman who was better off financially thanfflj
was.
We reviewed the material available at the ComM
sion. We found that the correct priority had been)
allotted to each applicant. The tenant in the designated unit had actually been worse off than the
complainant and, through no fault of her own, had
been given notice to vacate her previous resi-
dence. Consequently, the complaint wasjH
substantiated.
B.C. HYDRO AND POWER AUTHORITY
Declined, withdrawn, discontinued 19
Resolved: corrected during investigation 20
Substantiated: corrected after recommend. 1
Substantiated but not rectified 0
Not substantiated J
CLOSED—TOTAL 49
Number of cases open Dec. 31,1981 34
Hydro has a wide-ranging role in the Province,
and as a result the year's 49 complaints concerning Hydro have been equally wide-ranging. I
have looked into complaints about disconnected
service, a pole placed on private property,
damage caused by a poorly maintained railway
crossing, delay in dealing with a request to transfer a water licence, and illegally collected taxes.
When I have found a complaint justified Hydro has
responded favourably to my recommendations. In
one case, Hydro could not correct an inequity
itself, but provided information to a regional district, which could and did correct it.
I found one recurring problem: separated couples
had no way of knowing whether Hydro would bill
both members, or only the account holder, for
overdue accounts. I suggested that Hydro develop a formal policy and have all credit officers
apply it. I am happy to report that Hydro now hasa
policy based on this suggestion.
181-132
lick is a pawn in Band-Hydro chess-game
llative Indian Band complained that B.C. Hydro
1 announced its intention to remove the line
intenance truck from their island Reserve. This
lild inevitably reduce the quality of service to
! id members. The Band Manager said that the
Id was currently negotiating with Hydro for the
Ig-term lease of a parcel of Reserve Land to
lablish a permanent collections office and
Intenance yard. He believed that Hydro had
Iposed removing the truck in an effort to pres-
lethe Band in the negotiations and complained
I the decision was not consistent with negotiat-
i in good faith and, in any event, was unfair to
Id members.
I:iuested a statement of B.C. Hydro's position.
Ite a good number of people would have been
Icted by the removal of the truck from the is-
iil. I also requested that the move be postponed
1 we had finished our investigation. Hydro staff
Inowledged that the decision to remove the
Ik from the island was an attempt to bring
Itsure on the Band to recognize Hydro's stated
Ids and to speed negotiations. Hydro staff exiled that they had been trying for four years
lout success to negotiate the purchase or
Be of half an acre of land.
■Band Manager confirmed that the Band had
I;ulty reaching agreement on the exact condi-
Bunder which land should be made available
Hydro. He explained that the approval process
I complicated by the requirements of the
akn Act (Canada), the Department of Indian
Mrs and the Band Council itself. Our approach
ins problem involved ensuring that the level of
pice to the community was not reduced by
ilval of the Hydro truck. At the same time we
iBuraged the Band Manager to clarify the
|[ad's intentions and to keep Hydro informed of
■Sand's progress in getting approval to release
Hfor Hydro's use.
IB months after I received the complaint, the
I Manager reported that he had met with
Bg Regional Manager and was now satisfied
lithe level of service to the community would
deteriorate. Soon afterward the Band reached
i greement with Hydro on the terms of a lease
■Hydro replaced the existing maintenance
-; with one in better condition.
-133
i ing bill not Hydro's fault
jdent of the Interior complained that he had
owed a notice from B.C. Hydro stating that his
t= ficity would be disconnected unless he paid
s ierdue account of over $200 within one week,
e wnplained that he had not received a bill from
Hydro for this amount and was therefore unable to
set the money aside.
We found the reason he had not received a bill was
that there had been a postal strike. The complainant had a previous history of overdue accounts
with B.C. Hydro and had been presented earlier
with the option of paying his Hydro bill on the
equal monthly payment plan. He chose not to do
this and did not set any money aside in anticipation of the inevitable bill.
Given the length of time the complainant had lived
in his present home, it was my opinion that he
should have been able to estimate the amount he
would be billed for electricity. The complainant
found it annoying to receive a disconnection
notice without having received a prior statement
of his account. However, under the circumstances
I did not think that B.C. Hydro could be held
responsible for his financial difficulties.
Therefore, I was unable to substantiate the complaint and, considering that it was summer, I concluded that B.C. Hydro had not acted unfairly in
advising this individual of their intention to disconnect his power if the account was not paid. I suggested to the complainant that he seek financial
assistance and counselling through the Ministry
of Human Resources if he was unable to resolve
the matter on his own.
CS 81-134
Drawing water from Hydro
The complainant owned several acres of land in
the Interior and several years ago B.C. Hydro had
expropriated a portion of the land for a hydro
electric project. The complainant had had a licence to draw water from a creek running through
the property but it had gone with the expropriated
portion. The man complained that B.C. Hydro had
not responded to his requests that the water licence be transferred to the adjacent land which
he still owned.
We discussed the complaint with Hydro personnel and examined Hydro's file. It became apparent that no action was being taken on the complainant's long-standing request and, judging from
notes on the file, it appeared possible the licence
would be cancelled instead of transferred.
Hydro personnel readily agreed to review the
complainant's request and subsequently wrote to
the Comptroller of Water Rights, requesting the
transfer of the water licence.
CS 81-135
Hydro solution enlightens woman
I received a complaint from a woman who was
being asked by B.C. Hydro to pay an overdue
electricity account which had accrued at a former
83
residence. The account at that residence had
been registered in the name of the woman's common-law husband and, as she was no longer living with him, she felt that it was unfair of Hydro to
ask her to pay the bill. She complained to my
office when Hydro threatened to disconnect her
electricity if she did not pay the account.
I contacted the Credit Officer at Hydro who stated
that according to policy, if the couple were still
living together, Hydro would attempt to collect the
bill from either party. He believed that the couple
was still living together.
The Credit Officer informed me that if the complainant could prove that she had not been living with
her common-law husband since the bill became
overdue, she would not be asked to pay the account. He suggested that she could obtain letters
from her two previous landlords to bolster her
position.
This remedy appeared reasonable. The complainant agreed to collect the necessary evidence
and present it to Hydro, ending the problem.
CS 81-136
Who's In charge of the charge?
A man complained that he was being charged the
non-residential transit levy rate of $4 21 per month
on his Hydro bill. As the power pole for which he
was being charged was located on the site of his
future residence, the complainant felt that the residential rate of 61 tj per month should apply.
Imagine-i-ha-i-l
Vafe offered him HIO-
compe-nsa-tionafld
he's still notsa+ieafiiaj.
m
Although Hydro is authorized by the Urban TrahA
Authority Act to collect transit levies on behalf o
municipalities and regional districts, it could riol
adjudicate this type of complaint. However, Hydra
informed us that the complainant's electricity Ul
count did not qualify for the non-residential rate
On examining the definition of "residential dwelling unit" in the Act, I found that the complainant's
situation was not specifically covered. As I haveal
this time no authority under the Ombudsman Ac.
to investigate complaints involving regional cfl]
tricts or municipalities, I could not recommend
that the Greater Vancouver Regional District!?!
interpret the Act.
However, Hydro did provide information on the
status of the complainant's nearly-completed!
house to the regional district. On the basis of tra
information, the regional district agreed that the
residential levy should be applied to the complainant's account and the complaint was thus resolved without my direct intervention.
CS 81-137
Anchors away
A resident of a small municipality in the interior
complained to me that Hydro had placed a popf
pole? anchor on his recently purchased property
without his permission. He also complained that
the $10 compensation offered by Hydro was not
satisfactory. The complainant's attempts toj&
solve the matter on his own and with the asas-
tance of a lawyer had been unsuccessful, a
I contacted Hydro and was informed that Hjft
and the municipality had each assumed theoffir
had registered an easement for the anchorffljl
the Land Registry Office. Hydro staff was apparently under the impression that Hydro hajaa
blanket easement over the subdivision ||d
thought that it was the municipality's responsibility
to notify prospective purchasers; the municipality
was under the impression that it was HydroaS-
sponsibility to notify purchasers of the easenmit.
As a result of my involvement, Hydro statfEP-
knowledged the error and the inconveniewe
caused to the complainant and moved the ancjor
to a location more acceptable to him.
CS 81-138
Taxed patience
An Indian Band complained that Hydrate
charging social service taxes on its electriciraB-
The Band was informed that if it failed to pay the
taxes, electricity would be cut off. The Band complained that the imposition of the tax was illegal on
a federal Reserve.
I contacted the Hydro office and pointed out thata
court decision had decided the issue 18 months
84
■jr. In that case, a taxpayer argued that she
Bexempt from tax under section 87 of the
cn Act (Canada), as electricity delivered to
r it her home on the Reserve was "personal
Herty situated on a Reserve." The court ruled in
Ur of the taxpayer and effective December 4,
1, registered Indians living on Reserves were
Eipt from paying social service tax.
living a consultation between the local Hydro
lager and the Commissioner of Taxation, the
It advised that no action was to be taken
Inst the Band. The Manager was to supply the
In Band with social service tax exemption
Is. Any taxes previously imposed on the Band
|d be refunded.
If139
■rated couples treated separately
e'esult of several complaints which I received
burning B.C. Hydro's collection procedures in
let to separated couples, I initiated an inves-
l}n of the matter.
■pmplaints which I had received suggested
■that the credit and collection policy respect-
Ifeiarated couples was not uniformly applied
■Hydro's offices. I suggested to Hydro that
Hpicy in this area be written out formally and
Bated to all credit officers. Hydro later in-
Hd me that they had done just that, and
: Jed me with a copy.
140
repaired
itorcycle driver stated that B.C. Hydro's
', to maintain properly the railway crossing at
Duth end of the Queensborough Bridge in
Vestminster caused his motorcycle to slip on
acks. He complained that when he brought
foblem to B.C. Hydro's attention, Hydro re-
to compensate him for the damage to his
Jlcycle and did not agree with him that repairs
crossing were necessary. The complainant
■articularly concerned that corrective action
jten because he had seen other motorcycles
1^ the crossing.
Hranged for an inspection of the crossing by
Jpector from the Railway Inspection Branch
ti Elinistry of Transportation and Highways. He
t mined that the difference in height between
.Banking and the track was greater than the
ich allowed under the Railway Act. The in-
ifcr advised B.C. Hydro of the problem and
: immediately dispatched a work crew to
It the level of the planking. We then visited
fe with the inspectors and adjusters. On the
s of this joint inspection, the Hydro adjuster
i ed that it would be appropriate to offer par
tial compensation for the damage to the complainant's motorcycle.
Inspection showed that the design of the approach to the railway crossing could be improved
from the point of view of safety and maintenance.
However, any relocation or redesign of the crossing would fall within the responsibility of the City of
New Westminster. The representative of B.C.
Hydro Railway agreed to discuss the problem with
the city engineers with a view to eliminating the
crossing in question altogether. In the meantime,
he gave his assurance that the problem crossing
would continue to be monitored to ensure that it is
maintained at an acceptable standard. The complainant was told that if he had any complaint in
the future about the quality of this crossing, or any
other railway crossing under provincial jurisdiction, he should contact the Chief Inspection Engineer of the Railway Inspection Branch, Ministry of
Transportation and Highways.
REPAIR THETRACKS
THERE'5 NCTJJiaja* U/RON6
WITH THE. TRACKS.
PO VLXJ THINK VOUCAU
B1AHE us FOR EVERY J-ITDLE
TWN6T(iAT«JaaS la/ROHEL
WITH YOUR BJKE?
INSURANCE CORPORATION
OF BRITISH COLUMBIA
Declined, withdrawn, discontinued 112
Resolved: corrected during investigation^ I 74
Substantiated: corrected after recommend. 0
Substantiated but not rectified I 0
Not substantiated __§!
CLOSED—TOTAL . 237
Number of cases open Dec. 31, 1981 .193
My progress with l.C.B.C. was severely hampered
this year by I.C.B.C.'s five month strike. This not
only impeded I.C.B.C.'s operations, but also
thwarted my ability to investigate complaints
against the Corporation. l.C.B.C. complaints
85
comprised the second largest group of complaints to my office.
I regret to report that the working relationship between my office and l.C.B.C. has deteriorated
since last year. I had accepted a procedure
whereby virtually all complaints against the Corporation would first be referred to I.C.B.C.'s Public
Enquiries Department and that I would subsequently conduct an investigation of my own if I was
not satisfied with the response.
Unfortunately, the Public Enquiries Department
has taken my willingness to cooperate as an
agreement to relinquish my powers to contact
other Corporation staff directly. I became aware of
this when a copy of an internal l.C.B.C. bulletin
was delivered anonymously to my office. The bulletin was directed to all claims staff and read:
"Further to our Bulletin Number 602 of July
22,1980, this is to re-enforce our instructions
to the field that under no circumstances are
Ombudsman enquiries to be dealt with in the
Claims Offices. The procedure is to refer all
enquiries to the office of Mr. Murray T. Rogan,
Manager, Public Enquiries."
In compliance with this bulletin l.C.B.C. staff have
refused to provide my investigators with information when contacted directly. Consequently, a procedure which was originally intended to facilitate
the investigation and resolution of complaints has
become a serious form of obstruction.
The Ombudsman Act makes it an offence for anyone to obstruct, hinder, or resist the Ombudsman
in the exercise of his powers or duties. The bulletin
counsels Corporation staff to commit this offence.
It also places Corporation staff in the dilemma of
choosing whether to disobey the law or their
superiors.
I am not prepared to tolerate this situation and
have initiated discussions with l.C.B.C. to establish a more acceptable arrangement.
I.C B.C. has a legitimate interest in ensuring that
Ombudsman investigations do not unduly burden
its staff. I appreciate this concern and will accommodate l.C.B.C. as much as possible consistent
with my duty to conduct effective investigations. I
should emphasize that the Public Enquiries Department has proved helpful in resolving many
individual complaints, and I will continue to rely on
its assistance in handling the bulk of the complaints against the Corporation. However, it is essential that I maintain control over my own investigations and preserve my independence. I
cannot delegate my responsibility to the Public
Enquiries Department where, in my opinion, this is
not the most effective or appropriate way to deal
with a complaint.
There have, however, been a few improvements in
l.C.B.C. procedure during 1981. Among them is a
change in the salvage disposal form; (see
86
"Salvage form repaired"—CS 81-147). Further, I
mentioned last year that clients often saw l.C.B.C.
adjusters as rude. This year, I.C.B.C.'s Public Enquiries Department has undertaken to investigate
complaints of rudeness. Also during 1981,
l.C.B.C. finally provided me with a copy of the
Policy Manual I had asked for much earlier.
I am concerned about I.C.B.C.'s attitude towards
claimants who have retained legal counsel for the
purpose of settling an accident claim. The Corporation will not provide advice to a claimant with
counsel. I do not feel I.C.B.C.'s obligations to the
insured end when a lawyer is retained. This is one
area where I hope to effect change.
l.C.B.C. has in typically bureaucratic fashion set
out to try to contain or control the Ombudsman. I
know the public is most disturbed about I.C.B.Cs
practices and procedures and I would fail the
public and the Legislative Assembly if I allowed
l.C.B.C. to continue its efforts to keep the Ombudsman at bay. I am looking for a quick and
profound change in I.C.B.C.'s attitudes towards
my office.
CS 81-141
Dust gathers on homemaker service
The Corporation's policy during its strike was to
give accident benefits high-priority treatment, but
the policy was not always followed. A woman W®
injured in a car accident and the Corporation ^K
accident benefits to her for seven months, ft also
agreed to pay for 10 hours a week of homemaj|j
services. In February 1981 the compair||'
moved to another area of the Province. She,#
ceived written assurance from the Corpora®
that it would continue to pay her for homemap
rices. However, in May she received a letter
ing that her homemaker services had been
ninated retroactive to March 1. The woman
amassed $669 in homemaker bills during this
pd, and complained that it was unfair to termi-
E funds retroactively, thus leaving her to pay
bills personally.
3n I contacted Corporation officers, they
bed that the complainant was entitled to the
lemaker service and that her service should
itinue. They told the complainant her cheque
lid be sent promptly, but some time later, she
I me it had not arrived. Once again I contacted
Corporation. At my request, the Corporation
sed to issue the complainant a cheque for the
amount. Unfortunately this was not the end of
complainant's difficulties for when she asked
adjuster for confirmation, she was told that no
:ision had been made. After several more
ne calls over a considerable time the matter
I straightened out and the Corporation relased
leque for the full amount.
B1-142
■ance prevents eviction
Hmplainant needed an advance payment on
Bairns settlement in order to prevent eviction
H-his residence. He had only 10 days to secure
■necessary funds. Previous attempts by his
E'er to secure an advance from l.C.B.C. were
Ijccessful. We contacted the Corporation and
Hosed payment of an advance. Our proposal
1 accepted and an advance was released
tin three days.
■1-143
c eeze play
tause of the length of the strike two employees
pie Corporation were unable to terminate their
soil Deduction Plan and collect a refund of the
Biey they had invested in Canada Savings
Ids. The employees needed to cash their
ids in order to meet their financial obligations.
b bank claimed that it was unable to release the
-His without authorization from the Corporation.
6 Corporation would not provide the necessary
Hbrization during the strike.
||k representatives advised my office that the
rer of Canada-Savings Bonds has the right to
aiinate the Bonds at any time, and that labour
■Kilties should not interfere with that right,
".fcgave this information to the Corporation. It
ife ded to authorize the Bank to cancel the plan
ifrny employee who gave written notification,
.ibloyees were, therefore, able to cash their
Wis. .
CS 81-144
What's sauce for the goose . . .
As a result of the l.C.B.C. strike, a complainant
was unable to obtain a refund for his cancelled
insurance. The complainant had cancelled his
policy in February, 1981 and had been waiting
three months for his rebate. Because of what the
complainant perceived as an unreasonable
length of time in issuing refund cheques, he felt
that l.C.B.C. should pay interest on outstanding
rebates (my office received a total of 12 complaints dealing with this issue). l.C.B.C. initially
refused interest payments to these complainants.
We pointed out to the Corporation that according
to a recent amendment to the Insurance (Motor
Vehicle) Act, it may charge interest to insureds on
the balance of outstanding debts at 18%. It therefore would not be unreasonable to expect the
Corporation to pay interest on its own overdue
refunds.
In July 1981 l.C.B.C. agreed to make an "inconvenience payment" to motorists who had cancelled
their insurance and, because of the strike, were
kept waiting for refunds. Interest was 15% per year
and commenced 30 days after the cancellation of
the insurance. The Corporation did not advise me
directly of this decision and did not explain its
decision to pay only 15% when it is at fault, but
charge 18%.
Further, the Corporation refused to extend the policy to late payments not caused by the strike. I
initiated an investigation into this refusal as it appeared unfair of the Corporation to charge 18% on
funds overdue but to pay no interest at all when it
was at fault. At year's end, the Corporation had not
accepted my proposal that it pay 18% interest on
all overdue refunds.
CS 81-145
Hidden damage
A young man was involved in an accident during
the l.C.B.C. strike. His claim for repairs to his
vehicle was approved by the Corporation. In repairing the car the mechanic discovered hidden
damage. The complainant himself paid for extra
repairs, and later asked to be reimbursed.
l.C.B.C. refused the reimbursement.
We contacted l.C.B.C. and were told that the Corporation would not pay for extra repairs, as the
cost of repairs would then exceed the value of the
car. The local office told us the complainant had
been informed of this but had no notes on file to
prove the complainant had been informed. Although the Corporation thought the reason for the
lack of notes was the pressure caused by the
strike, it approved the claim and reimbursed the
complainant.
87
CS 81-146
Termination without notice
A car accident victim complained to me that her
total disability benefits had been terminated without notice and that l.C.B.C. refused to respond to
her calls and letters.
In view of the woman's difficulty in contacting the
Corporation, I relayed her request for an advance
payment and a cheque was issued to her for
$7,000. l.C.B.C. may terminate benefits if a claimant has not followed the Corporation's rehabilitation program. However, the law requires l.C.B.C. to
give at least 120 days notice in writing. In this
case, benefits were terminated without notice.
Therefore, I proposed that the Corporation reinstate the woman's benefits immediately and that
the Corporation pay all benefits to which the
woman was entitled retroactive to the date of her
last benefit. Further, I proposed that all claimants
be informed of the notice requirement when their
first benefit is paid.
In response, the Corporation reinstated the
woman's benefits, as I had proposed. In addition,
the President of the Corporation agreed to distribute a bulletin to all adjusters reminding them of
the importance of providing notice where it is required by law. These measures satisfied my concerns in the particular case and decreased the
likelihood of the problem occurring again.
CS 81-147
Salvage form repaired
Every year I.C B.C. sells for salvage thousands of
vehicles which have been damaged beyond repair. Before a vehicle can be sold as salvage
l.C.B.C. must first obtain the owner's permission in
the form of a release. I.C.B.C. wishes to dispose of
wrecked vehicles as quickly as possible in order
to minimize storage charges. But sometimes
owners disagree with the amount offered as compensation for the vehicle and refuse to sign the
release, even though the release does not commit
the insured to accepting I.C.B.C.'s offer. This delays the disposal of the wreck.
In order to speed things up, some l.C.B.C. adjusters have misrepresented the nature of the salvage release form by telling the insured that it was
"for towing purposes", or that the insured would
be responsible for storage charges if he did not
sign the release. Other adjusters have refused to
process the claim until the release was signed.
This situation led to a number of complaints, and I
found that these practices were improper. l.C.B.C.
then agreed to revise the standard salvage release form to make it clear to claimants that they
had the option of disputing the amount offered
while at the same time authorizing l.C.B.C. to dispose of the wreck. A bulletin to all adjusters ex-
88
plains the new form. I expect that this will eliminate
deliberate misrepresentation by l.C.B.C
personnel.
PUBLIC SERVICE COMMISSION
CS 81-148
Too late for job appeal: Another method found
A public servant applied for a different positm
He was not successful in his application and decided to appeal to the Public Service Commission. When he inquired about time limits for his
appeal, Ministry staff advised him that, because
of the postal strike, the time limit had been extended from fourteen days to twenty-one days. On
the fourteenth day he phoned the Public Service
Commission and was advised that no such extension had in fact taken place. He immediately file*
his appeal by telegram. Unfortunately, the telegram reached the Public Service Commission on
the next day, i.e., outside of the time limit for the
appeal period. The Public Service Commission
was not willing to accept his late appeal.
The Public Service Commission informed me that,
in addition to the appeal procedures, the complainant could also ask the Public Service Commission to reconsider its decision regarding the filling
of the position for which the complainant had applied. I informed the complainant of this possibility. The Public Service Commission agreed to
hold a hearing about the job the complainant had
competed for.
CS 81-149
No more secret ratings
Whenever a Government employee leaves the
public service, his Ministry issues a document
called Separation Report. The report, consisting
of a form prepared by the Public Service Commission, contains some standard and routine information. Until recently, it also included information
regarding the former employee's job performance
and whether the Ministry would be willing to rehire.
In most cases, the employee concerned was not
aware of the existence of the form. If the fojTji
contained negative information, the employee
was unaware and had no recourse. Yet the Separation Report became a permanent part of the
employee's personnel file.
I had received a number of complaints from former employees with difficulties in obtaining reemployment with the public service. It became
obvious that, in some cases, negative information
in the Separation Report barred re-employment.
I recommended to the Public Service Commission
that the Separation Report form be changed and
that it should not contain information about job
performance and a Ministry's willingness to rehire.
Iggested that job performance is more appro-
Ifttely assessed in annual performance appals, involving a dialogue with the employee
licerned and giving the employee an oppor-
Ity to comment.
I; Public Service Commission accepted my rec-
linendation and redrafted its Separation Report
t.
JPERANNUATION COMMISSIONER
p1-150
natter of interest
individual joined the public service after he
reached the age of 55 years. According to the
I'sion (Public Service) Act, he was not eligible
liontribute to the Public Service Pension Plan
il to receive a pension upon retirement.
Ivever, pension contributions had been de-
Ited from his pay cheque throughout his five
Irs of employment.
Ion retirement, he learned that he could receive
■pension. Furthermore, the Superannuation
iinmissioner was only willing to refund the com-
Bnant's actual pension contributions plus 6%
krest as prescribed by the pension legislation.
las my argument that, since the complainant
R not entitled to contribute to the pension fund,
contributions never became a part of that fund
ft therefore should not be subject to the 6%
srest restriction. I recommended that the com-
ainant's return should include interest actually
Hied by his contributions. The Superannuation
Iinmissioner accepted my recommendation
■ the complainant received approximately
■0 more than he would have otherwise.
Udrkers' compensation board
■ined, withdrawn, discontinued 223
.solved: corrected during investigation 33
it stantiated: corrected after recommend. 16
■stantiated but not rectified 0
■ substantiated 91
CLOSED—TOTAL . 363
iber of cases open Dec. 31, 1981 139
W.C.B. BOARDS OF REVIEW
Sined, withdrawn, discontinued 27
olved: corrected during investigation 6
stantiated: corrected after recommend. 5
stantiated but not rectified 1
substantiated 7
CLOSED—TOTAL 46
Jnber of cases open Dec. 31,1981 11
This year I received 410 complaints against the
Workers' Compensation Board and the boards of
review who provide an independent appeal from
Workers' Compensation Board decisions. Complaints came both from workers who felt their
claims for compensation had been unjustly dealt
with, and from employers who felt they had been
improperly assessed by the Board.
The Board has been fairly receptive to the procedural changes which I have recommended;
some of these changes are summarized in the
cases below. Not all of my procedural recommendations have been accepted. The Board
has refused to advise employers of their right to
appeal assessment decisions to the Commissioners in all cases. In addition, the Board has
refused to reconsider the enactment which prevents it from extending the 90 day time limit for
Medical Review Panel appeals. The rigidity of the
90 day limit results in injustice to claimants, who
for legitimate reasons, fail to appeal within the
time allowed.
The Board has been very reluctant to accept my
recommendations in cases where I conclude that
a decision was unjust based on the available evidence. The Commissioners balk at recognizing
my authority to make recommendations based on
the Board's weighing of evidence despite the fact
that the Ombudsman Act permits me to recommend that a decision be changed where I believe
that it is unjust. Over time, I have succeeded in
having almost all my recommendations accepted, however, a large proportion of them were
not accepted until after I had included them in a
report intended for presentation to the Cabinet
and Legislative Assembly.
I have continued to receive cooperation from the
Board's staff in the investigation of complaints this
year. I have had exemplary cooperation from the
Industrial Health and Safety Department and in
particular I commend that department's informal
approach to problem solving. Information Services has also exhibited a commendable attitude
towards accepting my suggestions.
I continue to be concerned about the lack of procedural fairness displayed by the Assessment
Department. In addition, I am increasingly concerned about complaints against the Rehabilitation Department. Complainants often refer to instances of rehabilitation staff rudeness or insen-
sitivity as well as to specific procedural problems.
Overall, I hope that I will receive increased acceptance of my role and recommendations from the
Board's new Chairman and Commissioners in
1982.
Appeals to the boards of review have been subject to extremely lengthy delays throughout the
year. These delays have created extreme hardship for injured workers whose claim or part of it
89
was rejected by a W.C.B. adjudicator and who
must now establish their claim through a complicated appeal system. I have encountered such
claimants who could not return to work because of
injury. To get their appeal decided takes often a
year or longer. In the meantime, they are forced to
rely on social assistance. It is readily apparent that
the long delays inherent in the present appeal
system create manifest hardship and injustice. I
know that the Minister of Labour is aware of the
problem and I hope that he will succeed in bringing about changes soon to alleviate this problem.
The boards of review, like the Workers' Compensation Board, have been reluctant to accept my recommendations where I have concluded that their
weighing of the evidence was unjust.
In retrospect, I have been fairly successful in having my recommendations to the Workers' Compensation Board and the boards of review accepted this year. However, lengthy correspondence is invariably required before success is
achieved. The resulting delay is an added frustration for claimants who have already been engaged in years of appeal. I hope to address this
problem by developing with the W.C.B. Commissioners and the boards of review a more informal
and expeditious approach to handling these
complaints in 1982.
CS 81-151
Controlled disease no bar to first aid work
A first aid attendant complained to my office that
she disagreed with the decision of the First Aid
Section of the Industrial Health and Safety Division of the Board not to recertify her as an industrial First Aid Attendant. This decision was upheld
by the Commissioners.
In reviewing the Board's file, I found that the decision to deny the complainant recertification was
based on the fact that she had not been free from
epileptic seizures over the last twelve months. The
complainant disputed this reasoning as she felt
that the seizures had resulted from an unsuitable
dosage of medication. This situation had ended.
A neurologist's findings on this point had not been
sent to the Board, and we told the complainant to
have the neurologist send in his report. The report
would be considered by the First Aid Section as
further medical evidence.
As a result of investigating this complaint, I became aware of various problems with the procedures of the First Aid Division. These were that:
1. Persons applying for Industrial First Aid
Certificates were not informed that if they
suffered from specific medical conditions,
they might not be eligible for certification.
They sometimes did not discover this until
after the course was completed.
90
w
2. Although all relevant medical evidence is
considered and each case is decided on
its own merits, the usual letter sent to applicants when they apply for initial certification says that applicants must be free
from seizures for twelve months prior to
examination. The applicants were not told
that they could submit medical evidence
on the reasons for the seizures and on
whether the condition was now controlled.
3. If the Board has suspended or cancel^
a first aid certificate, applicants are not
advised of their right to appeal. The Industrial First Aid Regulations provide a right of
appeal to the Commissioners.
As a result of my staff's discussions with the
Board's First Aid Division, the following changes
to the above procedures were implemented: I
1. Application forms will note that further
medical information may be required even
though all the standard medical forms are
completed.
2. Letters sent to persons applying for inifM
certification, and subsequent acceptance letters, will note that failure to meet
the criteria will not necessarily result in
disqualification; if provided, reasons for
not meeting the criteria will also be
considered.
3. Decision letters will include a paragraph
advising applicants of their rights of
appeal.
CS 81-152
Board agrees to think ahead
An employee of a municipality was injured while
participating in a mandatory exercise program
required by his employer. The employee, whose
job required a high level of physical fitness, had
been following his employer's exercise program at
work and at home. His injury occurred at home.
The Board refused compensation, saying that the
injury did not occur during the course of his
employment.
Representatives of the municipality maintained
that the Workers' Compensation Board had given
oral approval of the exercise program prior to its
implementation. I investigated the complaint and
discovered that the employee had received full
wage reimbursement by his employer for the time
he had missed work due to his injury. Therefore,
the complainant had a remedy which solved his
individual complaint. However, I was concerned
that the matter which he had brought to my attention might affect many other employees in the
province, as mandatory or voluntary exercise programs are becoming more frequent. In fact, my
investigation revealed that the Board had made
feral decisions concerning injuries during work
jsrcise programs over the past several months
luding one in which one of the Board's own
ployees had been injured. None of these deci-
hs had been made public.
lerefore suggested that the Commissioners re-
iv the whole area of coverage of sporting ac-
ies during work and publish a decision in the
Iborter Series outlining their policy so that all
Iployers and unions in the province would be
lire of it.
las also concerned that only oral approval of a
Inplicated thirty-page exercise plan had been
Ibn to the employer by a representative of the
Ittrd. I recommended that the Board institute a
Item of advance rulings similar to that provided
iRevenue Canada. This would enable employ-
oor unions or their physicians to develop a plan,
ll submit it to the Board for advance approval of
Activities which would be covered. Situations
I'hich workers are injured and find themselves
liout coverage would then be avoided.
1 Board agreed to include a statement in the
lorter Series that advance rulings will be avail-
lb to employers throughout the province.
Brever, rulings should only be viewed as
Itelines and will not be binding on the Board; it
[still be necessary to determine whether the
Hific accident being investigated fits an ad-
ace ruling.
■1-153
■per accounting
injured worker's pension was being seized by
liBoard in order to recover a debt. The debt had
fan when he previously owned a business and
I not paid his assessments. The Board is en-
tlj to seize a subsequent pension in these cir-
listances. The worker complained that despite
Bfact that his pension had been seized for over
ifiar, he was unable to discover the outstanding
Wince of his account, whether cost of living
leases were being applied to his pension, and
represent monthly rate of his pension,
ristigation showed that the Collections Branch
t e Board could not provide this information to
rlcomplainant since the Branch was not given
ri information by the Pensions Branch. There
If no procedure for informing workers of the
iDiunt of the funds credited to their accounts or
II of the fact that such transfers of funds had
Hh made.
sggested the Board adopt a new practice for
riming this worker and others in his position.
Hy six months when the pension is adjusted
HPensions Branch should advise the Collec-
11; Branch of the amount of the pension and the
EO'Unt of the cost of living increase. The Collec
tions Branch could then give the complainant this
information and also tell him of the amount credited to his account and the outstanding balance.
The Board adopted this proposal and advised the
complainant of the relevant information.
CS 81-154
Board re-reads Act, makes award to children
A woman complained that the Board had denied
her application for compensation for herself and
her three children after the death of her former
husband in 1972. The woman had been divorced
from her husband but then had resumed living
with him for seven years until three years before he
died. At the time of divorce, she had obtained a
Family Court order requiring her husband to pay
support to her and her children. However, she had
made no effort to enforce this order. The Board
denied her application for benefits, stating that
neither she nor her children were dependent on
the deceased.
The woman was, however, named as beneficiary
in an insurance policy taken out by her husband
one week before he died. Further, the Board had
not considered a section of the Workers' Compensation Act which provides for compensation to
children, widows or parents who, though not dependent on the deceased worker's earnings at the
time of his death, had a reasonable expectation of
pecuniary benefit from the continuation of his life.
I proposed that the Board consider whether the
woman and her children had a reasonable expectation of pecuniary benefit. The Board accepted
my suggestion but maintained that the woman
was not eligible as she was not the deceased's
wife and therefore could not be his widow. In addition, the provisions concerning compensation for
common-law spouses were not applicable to her
situation. The Board agreed to pay compensation
to the children in the amount of $1500, together
with interest on that sum.
CS 81-155
We find no cause, but pain persists
I received a complaint from a worker concerning
the Board's refusal to reopen his claim. The Board
did not consider him disabled and the symptoms
which he experienced were deemed not to be
related to his compensable injury.
From a review of the available medical evidence, it
appeared that the Board's decision not to award
this worker further benefits was correct. None of
the many doctors who had examined him overthe
years was able to find objective evidence to account for his complaints of severe pain "and disability. These were slight residual deformities but
these were not considered to be of sufficient magnitude to cause the worker severe pain or to be in
any way disabling. This decision was affirmed in
91
appeals to the boards of review, the Commissioners of the Board, and a Medical Review Panel.
Despite the fact that I was unable to substantiate
the physical aspect of this worker's complaint, I
wrote to the Board pursuant to Section 14 (2) of
the Ombudsman Act which permits me to consult
with an authority at any time during or after an
investigation in an attempt to settle a complaint. In
view of the lack of medical evidence to account for
the worker's complaints, and his insistence that he
was suffering pain to a disabling degree, it occurred to me that "chronic pain syndrome" might
be a factor in his delayed recovery. In view of this
possibility, I suggested that the Board refer the
worker either to a psychologist at the Board or to a
specialist outside the Board for a psychological
examination to determine whether there was any
psychological disability related to his injury.
The Commissioners had the worker's claim reviewed by a Board psychologist to determine
whether he might have a chronic pain syndrome
or other psychological disability arising from his
injury. The psychologist was unable to find any
such indication. I concluded that the Board had
exhausted possible solutions to the complaint.
CS 81-156
Full disability, full pension
I received a complaint from an injured worker who
felt that the permanent pension awarded to him by
the Board was not a fair reflection of his disability.
Although the memo written by the Disability
Awards Officer stated that the worker was totally
unemployable, the Board found that 30% of his
disability was due to noncompensable factors.
These factors were not specified. Board files suggested that the worker had personality traits
which predisposed him to a tension-stress reaction to his compensable injury. I pointed out that
the worker had enjoyed good health and had had
a good work record before being injured. I concluded that the Board's decision to accept only
70% responsibility for the worker's total unem-
ployability might be unjust and, moreover, appeared to be contrary to the Board's policy as
outlined in the Claims Adjudication Manual.
The Commissioners agreed that whatever his personalty type, the man had shown no evidence of
being disabled before his injury. Therefore, they
decided that the worker's permanent disability
should be assessed at 100% and that his pension
should be recalculated accordingly.
CS 81-157
Damage didn't start with Review Board finding
I received a complaint from a worker who disagreed with the Board's decision not to backdate
disability benefits prior to the date of a favourable
Medical Review Panel decision.
_92
,
The worker injured his lower back while woritH
Wage loss benefits were terminated one year lata
as the worker was no longer considered disabled;
This decision was confirmed by a Medical Review
Panel. A year later, new evidence became available as a result of surgery. However, the Board
refused the worker's request to reconvene the
Medical Review Panel as it considered this evj;
dence did not justify a reconvening of the Panel.
Once again the worker asked for a reconsiders
tion. This time the Commissioners agreed that the
report based on the surgery was valid new evidence, but they allowed the worker's claim without
reconvening a Panel. The worker received a letter
from the Board stating that the benefits awarded
him as a result of the Commissioners' decisis
could not be backdated prior to the Medical Review Panel Certificate as the Certificate was, by
law, binding on the Board.
In my judgment, the condition found at surgery
must have existed since the time of the worker^
injury and, as the worker had consistently complained of pain and disablement since the timed
his injury, it was unjust and unfair to uphold the
Medical Review Panel decision that the worker
was not disabled during the period from the date
benefits were terminated until the Medical Review
Panel decision.
The Board agreed that they should have reconvened the Panel rather than making the decision
themselves, and agreed that there was some inconsistency in agreeing to pay benefits for the
period afterthe Medical Review Panel's Certificate
but not the period prior to it. Finally, they agreed to
my recommendation that the Panel be reconvened. However, the results are not yet known as
the implementation of my recommendation has
been postponed pending the results of an appeal
to the boards of review by the worker on another
issue.
CS 81-158
Who's making the decisions here anyway?
A man complained to me that although his appeal
to a board of review had been successful, the
Workers' Compensation Board persisted in refusing to pay him compensation.
My investigation revealed that the Board's original
decision was that, as of March 1978, the worker
would receive no more compensation for his knee
injury. A board of review panel concluded that the
worker remained partially disabled from March
1978 until September 1978 and stated that he
should receive wage loss benefits for that period.
Following the decision of the boards of review, the
complainant was informed by his Claims Adjudicator that, as he could have found employment paying more than wage loss benefitiaH
would not receive compensation for that period.
bcluded that the Board had acted improperly
jfusing to pay benefits as the boards of review
1 already reviewed the evidence concerning
(availability of employment to the worker, and
i concluded that he was entitled to
hpensation.
j Commissioners agreed with me that there
; no authority under the Workers' Compensa-
i Act for refusal to implement a board of rev's decision without first referring the decision
he Commissioners. The result of my investiga-
■ was the payment to the worker of full wage
s benefits for the period from March to Septem-
■ 1978.
131-159
hical Review Panel answer reviewed
his case we explored the difficult question of
Irelationship between Medical Review Panels
■ the rest of the Board. The complainant said
I the Board had refused to accept respon-
I ity for an operation which he believed was
fctly related to a prior compensable injury and
fcery. The Board, stated that it was bound by
Handings of a Medical Review Panel which
■id the worker fit.
I/ever, the doctor who performed the second
Iration stated that there was a direct causal
fconship between the first and second opera-
K. We brought this to the attention of the Board
and pointed out Board policy that a decision of a
Medical Review Panel is conclusive unless new
evidence becomes available. The Commissioners reconsidered the claim and resolved the
complaint by also accepting responsibility for the
second operation.
CS 81-160
New evidence on old knee damage
I received a complaint from a worker who had
injured his knee at work in 1953. Although he
received some wage loss benefits from the Board
at that time, he was denied continuing benefits on
the basis that there was no medical evidence of
any permanent knee damage.
The complainant had suffered from knee pain and
stiffness from the time of his accident until 1978, at
which time an orthopedic surgeon operated on
his knee, discovered the cause of his problems,
and repaired the damage. On submitting this new
medical evidence to the Board, the worker was
told that there was no authority to review a decision previously made.
We obtained a letter from the complainant's doctor indicating that the damage which he had repaired was very likely caused by his 1953 work
injury. I then proposed to the Board that the
worker's 1953 claim be reopened and reconsidered. The Commissioners quickly notified me
WCt>
ssessment
APPEALS
We HAVE A BEAUTIFUL
STRUCTURE. HERE
AT WCS.
...FINE DECISJON-HAk
IN&
fROCpSSES... A WELL-
ORGANIZED '
SYSTEM OF APPEA1
1
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a
O.Jj
f 4 \
m
-f£.
w
■\
v<
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1
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&
!% A PITY THAT We CAN'T SHARE
JE pEAUT/OF OUR APPEAL
T STffM WITH THE PuBUC.
BUT YOU KNOW WHAT
THE" PUBUC IS J-lkE-.
ONCE PEOPLE KNOW
ABOl/T THE PROCEDURE...
They'll vwwtto
USE |T I
93
that they acknowledged the error made in his
claim, and agreed to refer the complainant back
to a Claims Adjudicator for reconsideration.
CS 81-161
Minimum error
A motel operator who had purchased a business
in December was assessed a $25 minimum assessment for the calendar year by the Board's
Assessment Department. The complainant was
unable to persuade the Board to have this minimum reduced to reflect the fact that he had only
operated the business for one month of the year.
A regulation made following the Act provided for a
minimum assessment of $10 for a calendar year
or portion of it. A "Board Authorization", however,
increased this amount to $25. The Board's actions
were contrary to law.
I proposed successfully that the Board vary their
assessment of the motel to comply with the regulation and refund $15 to the complainant. Other
employers in the same position were not refunded
$15 as the cost of processing would be unjustifiably high. As a result of this investigation the Board
also agreed to publish changes concerning assessments in the W.C.B. News and W.C.B. Reporter Series.
ered the manager's husband to be an employeec.
the owner due to the fact that the husband's services were required as a prerequisite to the owner's
contract with the manager.
The final question was whether the employee's
injury arose out of and in the course of his employment. The Board concluded that it had for several
reasons. The injury occurred on the premises of
the employer. The injury occurred in the process of
doing something for the benefit of the employejf
Finally, the injury occurred in the course of actir»
in response to instructions from the employer. As
the evidence relating to the instructions given by
the owner to his employee was conflicting, the
Board was guided by one of its former decisions
which states that where it is found that the actions
taken by a worker were unauthorized, the most
appropriate test to follow is whether or not the
actions of the worker resulting in injury appear to
have been done bona fide to advance the employer's interests. In this case, it appeared that the
actions of the worker did advance his employer's
interests.
I found this complaint unsubstantiated as there
was no administrative error or injustice in the
Board's decision to charge the owner of the apartment block with the costs of his employee's injuffl|
CS 81-162
Owner foots the bill
The owner of an apartment block complained
about the Assessment Department's decision to
charge him with the costs of his employee's husband's work related injury.
The owner of the apartment block employed a
woman as manager, on the condition that her
husband would assist with maintenance of the
building. After several attempts to have a broken
lock repaired by a locksmith, and then by a carpenter, the manager's husband attempted to repair the door himself and, in the process, injured
his foot. The owner was not aware that he was
operating a firm within the scope of the Workers'
Compensation Act and therefore was obliged to
register Since he had not registered, he was
charged with the costs of the injury.
The Act requires an employer who has defaulted
on his coverage to repay the Board's expenditures
on behalf of an employee injured during the
period of default. The Act further provides that the
Board may relieve the employer of his liability
where the default was excusable. The Board did
not feel that the failure to register in this case was
excusable as the owner had operated the firm for
six years and it was felt that this afforded ample
time to discover and fulfill his responsibilities under the legislation. In addition, the Board consid-
94
CS 81-163
Is a gas bar a service station?
I received a complaint concerning the Assessment Department's classification of a service station. The operator said his firm should not be
charged the rate for a full fledged service station
as his firm only sold gas.
It is the Board's policy to classify firms by the
industry in which the firm is engaged. In this case,
both gas bars and service stations fall under the
general category of automotive industry and are
charged a common rate. The Board does not
classify by occupations and is reluctant to proceed to a system of classification by occupation
as it is felt that, although this system might be
more equitable, the high cost of administration
would eliminate any economic benefits which
might result from a change in systems. However, in
1980 the Board instituted a new system of clas|-
fication called industry rating. The change was
based on the premise that certain industries
within the same subclass do not create similar
compensation costs. Therefore, the Board decided to base the contribution from each industry
on its individual payroll and previous year's claims
cost. A subclass average will still be calculated.
However, individual industry rates will vary from
the average according to the previous years
claims cost. Very similar industries such as those
engaged in the manufacturing of envelopes and
1'e manufacturing of stationery will continue to
.are a common rate.
I hough the Board's new rating system will come
lo effect gradually, at some point in the future
Is bars may be assigned a rate separate from
Irvice stations.
lonsidered this complaint to be substantiated.
Ijwever, since the Board is in the process of
Inedying the inequity complained of, I decided
It to make a recommendation to the Board.
J81-164
r meowner nailed by the Board
I'omeowner who had had his house framed by a
lour contractor was afraid that he would be
[arged with the cost, or a portion of the cost, of a
|rker's accident. The Board had decided that
I homeowner was the prime contractor and em-
Iyer of the labour contractor. The homeowner
Ited that he had been advised by the labour
jitractor that he had coverage through the
lard, but this proved not to be the case. In this
a ation, the Board regards the labour contractor
ka worker of the prime contractor who in this
s.e is the homeowner. The Workers' Compensa-
hi Act provides that an employer who neglects
hnake a payroll return to the Board or who re-
ass to pay an assessment is liable to pay the
Inpensation costs. As the homeowner was
ong to appeal and had hired a lawyer, he did not
need our help himself. However, we asked the
Board to clarify its requirements so that other
homeowners would understand their obligations
towards their construction crews.
My office contacted the Information Services Department of the Board, and suggested that as the
general public entering contracts would not be
aware of their obligations, it would be a good idea
to communicate this information, perhaps
through the Yellow Pages.
Information Services agreed to place advertisements in the Yellow Pages throughout the Province
under appropriate headings such as Contractors,
Plumbers, Roofers. Below is a sample of the
advertisement.
ARE ALL THE WORKERS COVERED?
OR ARE YOU LIABLE FOR THE
COST OF COMPENSATION?
If a worker is injured on your job—and
you do not have W.C.B. coverage—you
may be liable for any claims cost.
Be safe. Be sure all workers are covered.
For more information, contact the Assessment
Pepartment in the nearest W.C.B. office.
®
WORKERS'
COMPENSATION
5255 Heather Street, Vancouver, B.C.
266-0211
lU-165
»y
orker complained that he had been waiting
en months for a decision from the boards of
&w on an appeal from an adjudicator of the
<ers' Compensation Board. His lawyer had
acted the boards of review a number of times
irding the delay, but the decision had not yet
i sent to him.
I notified the Administrative Chairman of the
boards of review that, in my opinion, the complaint
was substantiated and the worker had suffered
undue delay in receiving his decision. I also asked
that every effort be made to deliver the decision to
the complainant immediately.
The Chairman replied that the decision had been
delayed pending the signature of a former board
member and informed me that the decision had
95
just been completed and mailed to the
complainant.
The Chairman also explained that although he
was personally concerned about delays at the
boards of review, he did not feel that this case was
typical as the issues involved had required an
especially thorough investigation by the Panel.
CS 81-166
Speed shows compassion
A man needed a quick decision from the boards
of review. His family was on welfare in Ontario. He
had arranged to return to Ontario that week, but
he felt certain that the Panel's decision would not
be available in the immediate future.
We contacted the Chairman of the Panel hearinS
the appeal. Because of the complainant's imperil
ding return to Ontario and the desirability of having a hearing before his departure, she arranges
a special hearing early the following week. TwS
hours after the hearing, the complainant received
a telephone call, saying a favourable decisioj
had been made. Hats off to a speedy resolutidj
and compassionate handling of a problem by all
authority having to deal with requests for priorifl
every day.
FUTURE JURISDICTION & NON-JURISDICTIONAL
AUTHORITIES
During 1981, 284 people brought me complaints
against unproclaimed authorities listed in Sections 3-11 of the Schedule to the Ombudsman
Act.
Where I am able to help reverse grave injustices
brought to me, I do so. I have two basic methods.
First, my staff have information on private agencies and other resources equipped to solve special kinds of problems. Sometimes I have directed
complainants to government agencies able to
deal with their grievance, or to their Member of
Parliament, M.L.A., or local officials.
A lack of space prevents me from giving a wider
sampling of interesting non-jurisdictional complaints. Five cases will provide some insight.
CS 81-167
A real lemon
A self-employed man bought a second-hand
long-distance hauling truck from a major car
dealer. He was told that the truck had been repossessed from the previous owner for failure to
keep up with payments and that he was entitled to
inherit the two months remaining on the new-vehicle warranty. Shortly after purchase the complainant became aware of numerous serious defects
in the truck. Some repairs were made under the
terms of the warranty but these were never done to
the complainant's satisfaction. Once the warranty
expired, the manufacturer denied all responsibility. The complainant was very frustrated and
angry. By the time he came to my office, he had
amassed some $11,000 in repair costs and had
learned that the original owner had refused to
96
make payments because of the defects in tha
truck.
Because the complainant had purchased the
truck for business purposes, he was not protected
by provincial consumer legislation. My assista™
contacted several consumer groups who were
unable to offer him any assistance. The Ministry of
Industry and Small Business Development exS
pressed an interest in helping the complainarH
resolve his problem informally, but did not feel in a
position to be of real benefit to him when presented with a list of defects and repairs. We twice
heard the suggestion that the complainant shoula
paint yellow lemons all over his truck and park it in
front of the car dealer's office. My only alternatiwl
was to refer the complainant to a lawyer to brinM
suit against the car dealer. The previous owner
had already done so and had won some money in
an out of court settlement.
This complaint is a fairly typical example of horn
small businessmen are not protected by existing!
consumer legislation. It is an area that I hope wffl
be addressed in the near future by government
CS 81-168
Revenue Canada: SIN nightmare
A young man came to my office to discuss ttil
ongoing difficulties he was having with the federal
government and with private agencies: these related to a case of mistaken identity. The complainant had immigrated to Canada in 1973 and had
applied for a social insurance number. Unfortunately, when Health and Welfare Canada issued
him his card, an identical card was mistakenly
sent to another man with the same name. The
her man assumed he had been assigned a new
iicial insurance number and began to use it ac-
|>rdingly. Despite an attempt to resolve the prob-
m in 1976, Revenue Canada continued to as-
fss our complainant for the other man's earn-
jgs. In addition, several private insurance
Smpanies and one medical benefits plan had
e identical social insurance number on file for
>ch of the two men and continued to confuse
eir contributions.
b contacted representatives from Revenue Can-
fa who separated the two taxation files and Can-
la Pension Plan contributions. They ensured
lat the other man was using his correct (first)
Icial insurance number. Revenue Canada repre-
Intatives also contacted each of the two men's
rmer employers and private insurance complies to ensure that they had the correct num-
I rs on file. We also spoke to the chief of social
[surance numbers issuance and control in
Ithurst, New Brunswick, who was willing to
iDvide our complainant with a letter saying that
I was the only legitimate holder of the number in
lestion.
le Ombudsman Act does not provide me with
I authority to investigate complaints against the
■eral government. However, Revenue Canada
■sonnel gave prompt attention to my questions
I this matter and I would like to thank them,
■spite federal safeguards to ensure that infor-
■tion gathered by the use of social insurance
■nbers is kept confidential, human or computer
pr can still result in an invasion of privacy and
lonvenience.
1181-169
Hiding assistance
■ny report last year I discussed the problem of a
Brian who was denied a student loan on the
psis of residency requirements between B.C.
Uj Alberta. The problem has arisen more than
ere in the past year also. In one case, a young
Uman was accepted as a student in the Faculty
nDentistry at the University of Alberta. She made
■Kiiries about her eligibility for a student loan
mwas told that as a B.C. resident, she would
tplify for a B.C. student loan but not for one from
Herta. She was distressed to learn this, as British
tlumbia has a$3,800 ceiling on all student loans
vie Alberta has a $6,800 ceiling for students
Boiled in professional programmes. Although
Pl.ious to enroll in the University, she felt that she
bid not be able to meet the expenses,
quired about provincial student loan applica-
s and found the complainant's information to
: correct. Applicants who have not been living
=pendently for at least four years are consid-
d to be residents in the same province in which
r parents reside.
However, although technically a British Columbia
resident, the complainant had only actually lived
in British Columbia for one year. She had been
educated in Alberta until her last year of high
school, moved with her parents to British Columbia at that time, and then, after graduation, moved
back to Alberta to complete a two year pre-dental
programme.
We spoke to the head of the Student Finance
Board at the University of Alberta. He agreed to
consider her application on the basis of her extensive residence in Alberta. When the complainant
provided him with proof of residence, she was
delighted to learn that her loan application would
be accepted.
CS 81-170
Mayor uses muscle to bend rule on suites
A woman wanted to build for her disabled father
an in-law suite in her house in a single family
dwelling zoning area. She felt that if this was not
permitted, her father would have no choice but to
move into a nursing home. When she approached
the municipality, she was told that this would be
impossible as the municipality no longer approved in-law suites.
The complainant was willing to sign an affidavit
that the suite would only be used by her parents,
but municipal officials were not willing to consider
this.
The complainant had already contacted her
M.L.A. who discussed the problem with the Mayor
of the Municipality. The Mayor saw to it that the inlaw suite was allowed with the proviso that it only
be used by the complainant's parents.
CS 81-171
Registered Nurses Association of B.C.
A registered nurse from Newfoundland applied for
registration with the Registered Nurses Association of British Columbia and was rejected on the
ground that she did not have sufficient psychiatric
training. She was advised that she would have to
complete a 10-week course in psychiatry at the
British Columbia Institute of Technology. The next
available course was not scheduled to begin for
eight months. The nurse felt that the requirements
of the Registered Nurses Association of British
Columbia were unfair. She further complained that
she could not understand why she could not work
as a "graduate nurse" pending registration.
The Registrar of the Nurses Association told us
that the Association requires all applicants for registration to have completed a course in psychiatry.
The Registrar offered to meet with the complainant to review her qualifications and to assist her
in understanding the requirements of the
Association.
I passed this information on to the complainant.
97
PART IV
CHANGES IN
PRACTICES AND
PROCEDURES ACCEPTED
BY AUTHORITIES
MINISTRY OF AGRICULTURE
AND FOOD
1. The Ministry agreed to inform individuals
adversely affected by decisions of the
Farm Income Insurance Program of their
right to appeal (see "Procedures beefed
up"—CS 81-005).
MINISTRY OF THE
ATTORNEY GENERAL
1. The Ministry of the Attorney General
agreed to provide tapes to court reporters
to use as backup to their shorthand notes.
The tapes will be the property of the Ministry and when a reporter leaves the Ministry's employment the tapes as well as the
notes will remain with the Ministry (see
"The case of the missing transcript"—
CS 81-007).
2. The Court Services Division accepted
and adopted as policy a solicitor's opinion
that the Small Claim Act does not preclude a plaintiff from serving a summons
by registered mail (see "Small Claims and
self help"—CS 81-013).
3. The Corrections Branch agreed to develop a statement of policy and procedures for disciplinary hearings. Included will be new forms designed to
guide the questions asked at the hearings. The result should be fair, consistent
decisions based on complete, accurate
facts (see "A duty to be fair: even in
jails!"—CS 81-017).
ASSESSMENT AUTHORITY OF
BRITISH COLUMBIA
1. The Assessment Authority agreed to seek
amendment to the prescribed standards
for farm classification in order to end ambiguities in the standards. The Authority
also agreed to take steps to resolve apparent inequities in the administration of the
farm classification system.
MINISTRY OF CONSUMER AND
CORPORATE AFFAIRS
1. The Rentalsman issued a policy guideline
so that if he is slow in approving a rent
increase, tenants will still get the notice of
increase they are entitled to (see "Justice
delayed is justice denied"— CS 81-031).
2. The Rentalsman reminded his officers to
keep their promises and, when unable to
do so, to communicate their inability to
complainants (see "Promises, promises . . ."—CS 81-030).
99
MINISTRY OF ENERGY, MINES AND
PETROLEUM RESOURCES
1. The Chief Inspector of Mines issued a directive to all the Ministry's mine inspectors
and resident engineers, stating that
a. where new forms or bonds are required
for the first time, notice of these requirements should be given to affected
miners well before the start of the mining season, and
b. a simplified procedure should be used
for issuing mining permits during the
mining season, in order to minimize
delays.
2. The Ministry agreed to seek amendment
to the Mining (Placer) Act to allow for formal hearings on matters concerning
placer mining leases. If these are approved, a provision for retroactivity will be
included so that current problems and
complaints can be heard (see "Holes in
the seamless web of the law"—
CS 81-039).
3. On the Ombudsman's recommendation,
the Mediation and Arbitration Board obtained legal advice on the interpretation of
s.11 of the Petroleum and Natural Gas Act.
The result was that a complainant now has
a more suitable length of time to renegotiate a lease.
MINISTRY OF FORESTS
1. The Ministry of Forests agreed to correct a
provision in the Log Salvage Regulations
which had been poorly worded, and
which appeared to have the effect of allowing thousands of people each to hold 10%
of the shares in an organization (see
"Strange arithmetic in log salvage regs."—
CS 81-058).
2. The Ministry of Forests agreed to add a
clause to a standard tree-spacing contract which would explain the circumstances under which a contractor's deposit could be returned (see "Tree-
spacing contracts clarified"—
CS 81-059).
3. The Ministry of Forests revised its practice
relating to decisions not to renew grazing
permits. The Ministry will now provide individuals in danger of losing their permits
with information held by the Ministry and
the opportunity of a full and fair hearing
(see "Grazing permits: the right to be
'herd'"—CS 81-063).
ll
GOVERNMENT EMPLOYEE
RELATIONS BUREAU
1. The Government Employee Relations Bi|
reau (G.E.R.B.) decided to pay fee-forf
service accounts of psychologists providi
ing assessments for the Forensic Psychil
atric Services Commission. Originally, it
was decided that since the fee-for-servicti
fee was higher than the negotiated sessional fee, those accounts would not be
processed. G.E.R.B., after represents!
tions from the Ministry of Health and as a
result of my investigation, paid the out}
standing accounts.
MINISTRY OF HEALTH
1. The Ministry of Health changed its policy
to allow a resident access to the resuH
of water tests pertaining to his or her
specific approved water supply (see
"Privacy v. access to information''^
CS 81-065).
2. The Ministries of Health and Human Resources informed their staffs that an
amendment to the Community Care Facilities Licensing Act was in force. This
amendment permits an unlicensed day
care facility to provide care to more tha
two children if the children are siblirM
(see "Rule change keeps family together"—CS 81-075).
3. The Ministry of Health provided funds for
the Cancer Control Agency to purchase
several Jobst pumps. These relieve discomfort of patients recovering frorrH
radical mastectomy operation (see
"Ministry finds a way"— CS 81-070). I
4. The Ministry of Health formulated
guidelines for assessors to use in evaluating and assigning contracts to horrH
care agencies. These guidelines weiel
circulated to homecare agencies and
Long Term Care administrators (see
"Homemaker rules need polishing1™
CS81-066).
5. A task force was established for the MI
istries of Health and Universities, Science and Communications to help resolve problems with the telephone sM
tern at the Ministry of Health (see
"Nobody home"— CS 81-064).
6. The Ministry of Health changed its polif
so that members of religious orders who
had taken vows of perpetual poveH
would not be disqualified for premM
assistance on the basis of those vom
(see "No-nonsense nuns and the fine
print"—CS 81-072).
100
ll
7. The Ministry of Health and the Public
Service Commission agreed to clarify
the requirements for community care
nurses in job advertisements. It was also
agreed to apply the same recruitment
and selection standards to auxiliary and
regular employees.
8. The Medical Services Commission established an informal review mechanism
for persons denied medical insurance
for unusual or unorthodox medical
treatment.
9. The Medical Services Commission
changed its policy to include as a benefit under the Medical Plan the costs
of gender reassignment surgery for
patients completing the Gender Identity
Clinic Program at the Clarke Institute of
Psychiatry or other equivalent programs
(see "Surgery denied? Review now possible"—CS 81-068).
10. The Division of Vital Statistics stopped
requiring a court order to prove legal
custody of a child for an application to
change a child's name. An affidavit is
now sufficient.
11. The Ministry of Health agreed to recommend several changes to the Vital Statistics Act and the Name Act. These include changes to allow for the registration at a child's birth of a hyphenated last
name. Further a married couple could
choose to register their child under the
mother's last name rather than the
father's. Also to be considered for revision is the provision that permits a married woman to change her name only to
her husband's surname, her maiden
name, or her surname prior to marriage.
A further request was that a change be
made in the Act to allow a remarried
woman to apply to change the surname
of her children of whom she has custody.
Also included was a change to allow an
unmarried father who has custody of his
children to change their names.
MINISTRY OF
HUMAN RESOURCES
1. The Ministry established an internal committee to review policy on provision of Income Assistance Benefits to transient applicants. As a result, policy on the
question was re-written to provide clarification on eligibility.
2. The Ministry altered its daycare policy to
allow for the provision of subsidized day
care by aunts, uncles, cousins, and other
family members.
3. The Ministry developed and distributed a
"GAIN-Appeal Procedures" poster which
outlines the applicant's/recipient's right to
appeal decisions on eligibility for income
assistance. The Ministry assured me that
these posters would be prominently displayed in the waiting areas of all local offices (see "Appeal information revisited"—
CS 81-077).
4. The Ministry agreed to monitor some
S.A.F.E.R. recipients who appeared to
misunderstand the program, to personalize collection procedures when an overpayment occurs, and to gear correspondence to the needs of the elderly (see
"New procedure safer for clients"—
CS 81-083).
5. The Ministry of Human Resources agreed
to add a section to its Family and Children's Service Field Manual, outlining a
complaint procedure to be used by foster
parents. The complaint procedure will
also be included in the Foster Parents'
Manual which is being developed in cooperation with Ministry staff by the B.C.
Federation of Foster Parents Associations.
6. The Ministry agreed to revamp the reporting form on income assistance cheque
stubs so that it would be clear what action
and what information the Ministry expected from the recipient.
7. The Ministry restated several policies in an
effort to promote consistent practice
across the Province. In particular, the Ministry reminded staff that:
a. each case must be assessed individually before denying income assistance
because the applicant has quit his or
her job or is not actively seeking work;
b. people must be notified of their right to
appeal the income assistance decisions; and
c. there is provision for extraordinary assistance to people in hardship.
8. The Ministry agreed to attach explanatory
memoranda to separation reports, directing selection panels to consider an applicant's total record of service with the Ministry in making any personnel selection
decisions and to disregard notations on
old personnel files like "Not to be rehired"
(see "Secret directive spoils job
chances"—CS 81-084).
101
MINISTRY OF LANDS,
PARKS AND HOUSING
1. The Eligibility Committee established under the Home Purchase Assistance
Branch agreed to consider a Band Council Office an agent of the Minister for the
purposes of receiving a grant application.
An applicant would not then be denied
assistance if, because Ministry policy requires that the Band Council attest to the
applicant's eligibility, the application did
not reach the Committee within the time
limit (see "Homeowners get their grant"—
CS 81-100).
2. The Deputy Minister told field staff of the
Regional Operations Division to inform
applicants for Crown land that they should
not become involved in the land referral
process until a full report of the availability
of the land had been prepared by the Ministry. This would prevent applicants from
wasting time and effort in attempting to
persuade other agencies consulted by
the Ministry not to object to the disposition
requested by the applicants.
3. The Deputy Minister decided to review a
recent Ministry policy which provides that
the first qualifying applicant for an agricultural lease of Crown land is entitled to
purchase the land without participating in
an auction. I had expressed concern that
the new policy could improperly discriminate against previously disallowed
applicants.
MINISTRY OF MUNICIPAL AFFAIRS
1. The Inspector of Municipalities agreed to-
ensure that the policies and guidelines
for carrying out investigations of citizens'
complaints will adhere to rules of procedural fairness (see "Inspector's investigations inspected"— CS 81-103).
MINISTRY OF TRANSPORTATION
AND HIGHWAYS
1. The Motor Vehicle Branch (M.V.B.) agreed
to abolish its practice of refusing to permit
the transfer of a vehicle from an individual
to a relative. The policy had applied to
individuals who owed l.C.B.C. premiums
for driver penalty points (see "Intimate
transfers"—CS 81-120).
2. The M.V.B. agreed to inform people required to take a driver's re-examination
that they have the right to know the real
sons why they have been asked for a rel
examination, and an opportunity to com!
ment (see "Driver can rebut claim he's unl
fit"—CS 81-116).
3. The Ministry agreed to consider reconH
mending amendments to the Motor VehS
cle Act so that personal driver record infol
mation would only be available to person!
with a legitimate right to obtain such
information.
4. The M.V.B. agreed to change letters sen!
to drivers suspended because of tha
abuse of alcohol. Letters will now show
what action will be required before the III
cence is reinstated (see "Tell 'em like it
is"—CS 81-118).
5. The Ministry undertook to seek amencH
ment to the Motor Vehicle Act Regulation
so that persons who used the "T" type of
spare tire, now commonly issued witll
North American automobiles, would not
be in violation of the Regulation.
6. The M.V.B. agreed to retain for five years
foreign drivers' licences surrendered to
the Branch. A person returning to his naf
tive country could then obtain his drivera
license for use during his visit home (see
"Driver gets foreign licence back"H
CS 81-115).
7. The M.V.B. agreed that, before refusing a
licence on medical grounds, the Branca
would inform the applicant of its tentativa
opinion that the applicant was not medl
cally fit to drive and the reasons for thai
opinion. The Branch will also invite such
persons to provide further informal™
concerning their medical condition, if the
licence is needed for work, and the physical demands of their job.
8. The M.V.B. agreed that the presence of a
removable rear seat in a motor vehm
which would otherwise be eligible for a
commercial classification was not a suitable basis for refusing commercial plates
(see "The pleasures of purple gas"—
CS 81-121).
B.C. HYDRO AND
POWER AUTHORITY
1. B.C. Hydro formalized its policy corf
cerning collection procedures as they apply to separated couples (see "SeparalM
couples treated separately™
CS 81-139).
102
ISURANCE CORPORATION OF B.C.
1. The Insurance Corporation of B.C. agreed
to pay an inconvenience payment to
motorists who, because of the strike, were
kept waiting more than 30 days for refunds
on cancelling their insurance. The rate of
interest will be at 15% per year prorated
(see "What's sauce for the goose . . ."—
CS 81-144).
2. In order to prevent release of confidential
driving record information by l.C.B.C. to
parties other than the party to whom the
information pertains, the Corporation issued a directive to the Driver Penalty Point
Premium Department to request the birth-
date of the caller in addition to his/her
name and driver's licence number.
/ORKERS' COMPENSATION BOARD
1. The Workers' Compensation Board established a new practice in cases where pension payments are being seized by the
Board in order to recover debts. The Pensions Branch will now advise the Collections Branch when the pension is adjusted, or a cost of living increase is made.
The Collections Branch will keep pensioners informed of how much they still
owe and how much has been credited to
pay off the outstanding overpayment (see
"Proper accounting"— CS 81-153).
2. The Workers' Compensation Board has
agreed to clarify the present policy of issuing advance rulings on proposals for exercise programs. They will include a statement in the Reporter Series that such
rulings will be available to employers
throughout the province (see "Board
agrees to think ahead"— CS 81-152).
3. The Workers' Compensation Board has
agreed to the following changes in the
area of appeal notification:
a. The Board will now advise workers that
decisions made by Legal Officers are
appealable;
b. The appeal paragraph in decision letters will be revised to improve advice
and clarity; and
c. The Board will include an explanation
of how to obtain a Medical Review
Panel appeal in the general appeals
pamphlet.
The Information Services Department of
the Workers' Compensation Board agreed
to place advertisements concerning the
contractual obligations of the general
public with respect to workers' compensation. The advertisements will appear in the
yellow pages throughout B.C. under
headings such as Contractors, Plumbers,
and Roofers (see "Homeowner nailed by
the Board"—CS 81-164).
The Workers' Compensation Board
agreed to alter its practice of charging a
minimum assessment of $25 per year; the
Regulation lists the minimum assessment
as $10 per year. The Board also agreed to
publish this and similar changes in the
W.C.B. News and W.C.B. Reporter Series
(see "Minimum error"— CS 81-161).
The First Aid Section of the Industrial
Health and Safety Division of the Workers'
Compensation Board agreed to the following procedural changes:
a. The Division agreed to advise applicants for certification that further medical information may be required even if
all the standard medical forms are
completed.
b. The Division agreed to add a sentence
to the letters sent to persons applying
for initial certification, and to subsequent acceptance letters, advising
that failure to meet medical criteria will
not necessarily result in disqualification, as reasons for noncompliance will
also be considered when provided.
c. The Division agreed to add a paragraph to decision letters advising applicants of their rights of appeal (see
"Controlled disease no bar to first aid
work"—CS 81-151).
103
PARTY
TALK BACK
CORRESPONDENCE
FROM COMPLAINANTS
would advise anyone having trouble with the
blic servants, don't go to the Ombudsman, it's
me getting bit by a rattlesnake, and then going to
mother rattlesnake to complain about the
We."(letter to a newspaper)
mwas interested to know that my complaint was
WI being considered .. . and look forward to a
opy ending. I think your office is a very neces-
my institution in our highly bureaucratic society."
mankyou for all the time and effort that you have
m forth on our behalf. It certainly has been a great
wisolation just speaking with you.. . . It is unformate that the Ombudsman does not as yet have
Wsdiction over local government. We personally
ml that his intervention at this level could avoid
mny of the frustrations and complications that we
! sure many residents of British Columbia have
-:ommon with ourselves."
i<ank you for everything you have done for us so
\nevermind we haven't been successful but still
I> have tried in everywaypossible. Funny isn't it?
w don't know me and vice versa, but seems as
tugh throughout all of our phone conversation
il little chit-chat, I feel as though we've met and
•j'w one another."
I. if the ministry did not bother to check this out,
wily substantiates my complaint about theirlack-
tvisical approach to the whole matter. I am terri-
Hdisappointed about your office taking the Min-
m/'s statement rather than that of the complaint. But then this is what bureaucracies are all
itut—lots of pompous verbosity but little action."
M.
"Excellent work. You have succeeded in squeezing information out of the Branch that they would
not provide me. Now I can see the proper action to
take. . . . You have done much more than I ever
expected, or that my own case probably deserved.
This is responsive government and democracy at
work. . . . Please convey my thanks to those on
your staff who did any leg-work. You have my
heartfelt thanks."
"The first part of the complaint was dealt with fairly
quickly and in a letter dated 23rd January 1981,
you informed me that the remainder of our concerns would be investigated. On 10th March 1981,
I made a further submission. . . We have not
heard from your office since.. . . fortunately I am
not paranoid or I would doubtless believe that multinationals controlled every department of government including yours."
"I am dismayed at your opinion yet not discouraged, justice will prevail—eventually—It
merely takes time, perhaps I shall not live to see it
yet I shall have done my part."
"I would also like to say thank you to your staff who
never let me give up hope that things could be
changed slowly but surely. We always got a call
when our family needed it the most."
"Perhaps you are disappointed in not obtaining
equity on all matters, but you certainly assisted a
great deal in removing the worst obstacles that
originally faced Garibaldi property owners in their
negotiations with the Government."
105
"A lawyer whose first name was Judith helped us
and I am glad to say that a small boy has a chance
even the freedom to become the best person he is
capable of being."
"Your conclusion that my complaint has merit
pleases me, but I am concerned that the strength
of your two recommendations is inadequate under
the circumstances. You have already advised the
Deputy Minister of the content of these recommendations, and I fear that there is no likelihood of their being changed. I am surprised that
your office would express its recommendations to
the appropriate ministry before seeking the opinion of the complaining party. Is the function of the
Ombudsman more that of a mediator rather than a
representative of a complaining party .. ?"
"We concur with your assessment that the specifics of our complaint have been satisfied and that
the ministry policy represents some effort to avoid
the kind of problems experienced at Buckley Bay
.. . The Baynes Sound Protection Committee!
wishes to express its thanks and appreciation Urn
you for the service you have rendered the public in
investigating our complaint in this matter. It is our
feeling that your perseverance in the case hasnm
only resolved the particular difficulties at Buckleyi
Bay, but also gone some way towards improving!
similar land-use decisions in British Columbiam
"You helped me hang on to my money
And I sure do thank you Honey;
Now my kid can stay in school a while
Thanks to you and your work on my file.
You took my complaint and went to work
From your duties, you didn't shirk;
Phone calls here and letters there
You saved my cupboards from staying bare.
Heather is happy—day care is paid—
/ hope you know the difference you made.
Thanks Sue for all that you did,
I thank you and so does my kid!!!"
"Bless the Ombudsman."
106
.BLE1
ofile of Complainants, and Complaints
osed Between January 1,1981 and December 31,
5MPLAINANT/
lOUP
1981
IMPLAINT
TIATOR
lATOR'S GENDER
i CONTACT
l/IPLAINT
IATED AT
Number
Percent
Individual/Family
4,347
91.23
Business
201
4.22
Union
9
0.19
Group
148
3.11
Public Servant
12
0.25
Others
48
1.00
TOTAL
4,765
100.00
Aggrieved Party
4,219
88.54
Relative/Friend
331
6.94
MLAand MP
27
0.57
Professional
76
1.60
Ombudsman
44
0.92
Public Servant
17
0.36
Others
51
1.07
TOTAL
4,765
100.00
Male
2,752
57.76
Female
1,788
37.52
Family
113
2.37
Group/Other
112
2.35
TOTAL
4,765
100.00
In Person
1,012
21.24
Letter
801
16.81
Telephone
2,915
61.17
Not Applicable
37
0.78
TOTAL
4,765
100.00
Victoria Ombudsman Office
2,016
42.31
Vancouver Ombudsman Office
2,395
50.26
Local Visit
354
7.43
TOTAL
4,765
100.00
107
BRITISH COLUMBIA REGIONAL DISTRICTS
Regional Districts
10. Cowichan Valley
20. North Okanagan
1. Alberni-Clayoquot
11. Dewdney-Alouette
21. Central Coast
2. Bulkley-Nechako
12. East Kootenay
22. Okanagan-Similkameen
3 Capital Region
13. Fraser-Cheam
23. Peace River-Liard
4. Cariboo
14. Fraser-Fort George
24 Powell River
5. Central Fraser Valley
15. Greater Vancouver
25. Skeena-Queen Charlotte
6. Central Kootenay
16. Kitimat-Stikine
26. Squamish-Lillooet
7. Central Okanagan
17. Kootenay-Boundary
27. Stikine Region (unincorporated) J
8 Columbia-Shuswap
18. Mount Waddington
28 Sunshine Coast
9. Comox-Strathcona
19. Nanaimo
29. Thompson-Nicola
108
BLE2
rcentage of Complaints
osed by Regional District as of December 31,1981
Percentage of
Percentage of
Total B.C.
Total Ombudsman
Population
Complaints Closed
Regional Districts
(October 1980)
(as of Dec. 31.1981)
1.
Alberni-Clayoquot
1.2
.7
2.
Bulkley-Nechako
1.4
1.2
3.
Capital Region
9.2
16.2
4.
Cariboo
2.2
1.7
5.
Central Fraser Valley
4.1
2.9
6.
Central Kootenay
2.0
1.9
7.
Central Okanagan
2.9
1.5
8.
Columbia-Shuswap
1.4
1.7
9.
Comox-Strathcona
2.5
1.9
10.
Cowichan Valley
1.9
1.5
11.
Dewdney-Alouette
2.2
1.9
12.
East Kootenay
2.0
1.7
13.
Fraser-Cheam
2.0
1.3
14.
Fraser-Fort George
3.3
5.9
15.
Greater Vancouver
42.8
41.2
16.
Kitimat-Stikine
1.4
1.1
17.
Kootenay-Boundary
1.2
.8
18.
Mount Waddington
.6
.6
19.
Nanaimo
2.7
1.9
20.
North Okanagan
1.9
1.3
21.
Central Coast
.2
.0
22.
Okanagan-Similkameen
2.1
2.0
23.
Peace River-Liard
2.1
1.9
24.
Powell River
.7
.5
25.
Skeena-Queen Charlotte
.9
1.1
26.
Squamish-Lillooet
.7
.9
27.
Stikine Region (Unincorporated)
.1
.1
28.
Sunshine Coast
.6
.4
29.
Thompson-Nicola
3.7
2.9
Out-of-Province
N/A
1.3
TOTAL
100.0
100.0
I
109
TABLE 3
Disposition of Complaints (Proclaimed Authorities)
Closed Between January 1981 and December 1981
Declined
Withdrawn
Discontinued
Resolved:
Corrected
during
Investigation
Substantiated:
Corrected
after
Recommendation
Substantiated
but Not
Rectified
Not
Substantiated
A. MINISTRIES
Agriculture and Food
7
3
18
1
4
33
Attorney General
157
86
9
0
106
358
Consumer and Corporate Affairs
119
52
3
2
36
212
Education
11
6
1
5
9
32
Environment
36
17
85
59
11
208
Energy, Mines and Petroleum
Resources
1
5
2
0
3
11
Finance
19
9
2
0
17
47
Forests
17
6
2
0
24
49
Health
51
21
12
0
25
109
Human Resources
174
126
5
1
85
391
Industry and Small Business
Development
1
-'®L
0
0
2
3
Labour
18
8
1
0
8
35
Lands, Parks and Housing
17
26
3
0
31
77
Municipal Affairs
7
."'.' 4 •*•«
1
2
11
25
Provincial Secretary
6
2
0
1
4
13
Tourism
1
0
0
0
1
2
Transportation and Highways
88
48
6
0
50
192
Universities, Science and
Technology
2
1
0
0
0
3
420
150
71
427
1,800
PERCENT
40 67
8.33
3 95
23 72
100.0 1
110
VBLE 3—continued
Resolved:
Corrected
Substantiated:
Corrected
Substan
Declined
during
after
tiated
Not
Withdrawn
Investi
Recommen
but Not
Substan
Discontinued
gation
dation
Rectified
tiated
TOTAL
BOARDS, COMMISSIONS, ETC.
Agricultural Land Commission
8
2
0
0
17
27
Alcohol and Drug Commission
4
1
0
0
0
5
Board of Industrial Relations
3
0
0
0
0
3
B.C. Assessment Authority
12
0
1
1
7
21
B.C. Assessment Appeal Board
1
0
0
0
4
5
3.C. Board of Parole
1
2
0
0
0
3
3.C. Buildings Corporation
2
0
0
0
1
3
B.C. Ferry Corporation
4
10
0
0
5
19
3.C. Housing Corporation
3
0
0
0
1
4
3.C. Hydro and Power Authority
19
20
1
0
9
49
3.C. Housing Management
Commission
4
2
0
0
4
10
3.C. Police Commission
3
0
0
0
1
4
3.C. Railway
3
0
0
0
2
5
3.C. Systems Corporation
2
0
0
0
0
2
Compensation Consultant
0
2
0
0
1
3
Emergency Health Services
Commission
1
0
0
0
1
2
Employers' Advisor
1
0
0
0
1
2
1 government Employee Relations
1 Bureau
2
0
0
0
0
2
Insurance Corporation of B.C.
112
74
0
0
51
237
labour Relations Board
4
1
0
0
14
19
■rtedical Services Commission
4
11
2
0
12
29
l/lilk Board
0
0
3
0
1
4
Motor Carrier Commission
6
1
0 3a
0
0
7
fccean Falls Corporation
0
0
0
0
2
2
Jesticide Control Appeal Board
4
1
f,-jD-»«
1
0
6
■Dilution Control Board
1
0
^0 -,
0
1
2
■rovincial Capital Commission
2
0
0
0
1
3
I'ublic Service Commission
8
3
1
0
9
21
Kent Review Commission
2
• 2 .
0; '■'
0
0
4
Superannuation Commission
5
6
-i-£«
0
7
19
workers' Compensation Board
223
33
16
0
91
363
B/CB Boards of Review
27
6
5
1
7
46
BTHERS
17
|pfF
■ 0
0
5
26
SUB-TOTAL
5
253
957
0.52
26,44
100.0
TOTALS A and B
1,220
601
180
74
682
2,757
PERCENT
44.25
21.80
6.53
2.68
24.74
100.0
111
TABLE 4
Extent of Service
Complaints Against Unproclaimed Authorities
(Sections 3-11 Schedule of the Ombudsman Act)
Closed between January 1981 and December 1981
Extent of Service
Information
Inquiries
No assistance
provided/
made and
necessary or
Referral
resolution
possible
arranged
facilitated
TOTAL 1
Government Corporations
(excluding Boards and Commissions)
0
0
1
1
Municipalities (Section 4)
24
115
27
166
Regional Districts (Section 5)
7
35
9
51
Islands Trust
1
0
0
1
Public Schools (Section 7)
3
17
5
25 1
Universities (Section 8)
2
3
1
6
Colleges and Provincial
Institutes (Section 9)
0
2
1
3
Hospital Boards (Section 10)
1
4
1
6
Professional and Occupational
Associations (Section 11)
7
11
7
25 j
TOTAL
45
187
52
284 j
PERCENT
15.85
65.85
18.30
100
TABLE 5
Extent of Service
Non-Jurisdictional Complaints
Closed Between January 1981 and December 1981
Extent of Service
Information
Inquiries
No assistance
provided/
made and
necessary or
Referral
resolution
possible
arranged
facilitated
TOTAL
Federal, other provincial territorial and foreign
governments
35
243
103
381
Marketplace matters-
requests for
personal
assistance
90
597
141
828
Professionals' actions
11
87
9
107
Legal and Court matters
31
190
40
261 |
Police matters
8
49
9
66
Miscellaneous
16
55
10
81
TOTAL
191
1,221
312
1,724
PERCENT
11.08
70.82
18.10
100
112
J
TABLE 6
Reasons for Discontinuing Investigations
All Jurisdictional Closed Complaints
Reasons Number Percent
1. No Jurisdiction
2. Abandoned by Complainant
3. Withdrawn by Complainant
4. Statutory Appeal (Section 11 (1) (a))
"" Solicitor (Section 11 (1) (b))
Discontinued by Ombudsman (Discretionary)
a) Over 1 year old 6
b) Insufficient personal interest 9
c) Other available remedy 290
d) Frivolous 0
e) Investigation unnecessary 124
f) Investigation not beneficial
to complainant 76
46
3.77
269
22.05
201
16.48
197
16.15
2
0.16
505
41.39
TOTAL 1,220 100.00
ABLE 7
evel of Impact
esolved and Rectified (Jurisdictional) Complaints
losed Between January and December 1981
Level of Impact
Individual
Only
Practice
Procedure
Regulation
Statute
TOTAL
ksolved
emplaints
notified
bmplaints
491
55
56
97
49
19
1
1
4
8
601
180
TOTAL
546
153
68
2
12
781
Queen's Printer for British Columbia $
Victoria. 1982
113
BC Sessional Papers
1981 ANNUAL REPORT OF THE OMBUDSMAN TO THE LEGISLATIVE ASSEMBLY OF BRITISH COLUMBIA British Columbia. Legislative Assembly 1982
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