November 5, 2003 - 2 — Le Protecteur du citoyen

33rd Annual Report of the Québec Ombudsman (2002-2003)

"Going the extra mile"

Here are examples of failing to go the extra mile:

Disregarded evaluation reports

1. The Société de l'assurance automobile du Québec refused to re-examine the compensation case file of a victim of a car accident, after his relapse, inferring that there was no link between the man's health problem and the car accident he had been involved fifteen months earlier. After futile attempts to appeal this decision, the citizen lodged a complaint with the Québec Ombudsman, who was astounded to find that the SAAQ had on file two extensive neuropsychological evaluations, which had been written following no less than 13 interviews with the citizen. The experts had concluded that the man's problems were indeed related to his accident and that, consequently, the case had to be reviewed. How could the SAAQ render a decision in direct opposition to experts' opinions? The inquiry later revealed that these reports had been sent to the Société's Rehabilitation Branch (Direction de la réadaptation). The decision to recommend or not any compensation for the citizen stemmed from the Claims Adjudication Branch (Direction de l'Indemnisation), which knew nothing of these evaluation reports, an oversight that was obviously corrected following the Québec Ombudsman's invervention. Therefore, it is clear that the compartmentalization among administrative units can be the source of numerous headaches. Citizens' best interests demand that we “go the extra mile” to improve internal communications. (page 142)

Bank fees upset a modest budget

2. An advisor working at the Public Curator's office established an incompetent man's budget for “small expenses” at $20 to be paid to him by the bank every week. During one of his weekly visits, he was given only $14 and an explanation that an amount of $6 had been deducted to cover monthly banking fees. This loss compromised his modest budget, so he appealed to the Québec Ombudsman. Upon contacting the advisor, the latter informed the Québec Ombudsman that this issue was not within the Ombudsman's jurisdiction, but within the Estate Management's (Direction des patrimoines), in a different administrative unit. The Québec Ombudsman had therefore no other choice but to contact the Estate Management to resolve the matter. The advisor's position also led the Québec Ombudsman to believe that other similar situations existed, since there were no open “lines of communication” between the two units regarding this type of problem. The investigation showed that this was indeed the case. The Québec Ombudsman recommended that the relevant departments should contact each other in the future to avoid such situations. The Public Curator concurred. (page 121)

Three days too soon?

3. The federal law on bankruptcy and insolvency states that you must still repay a student loan, incurred pursuant to a provincial law, if you declare bankruptcy less than two years after your studies are completed. In this context, an ex-student found himself having to pay $26 000, while having declared bankruptcy on May 29, 1998. The Ministère de l'Éducation, which had lent him the money through the loans and bursaries programme, alleged that he had completed his studies on May 31st, 1996. Therefore, as far as his student loan was concerned, he could not be discharged of the said debt by declaring bankruptcy before June 1st, 1998, since the Ministère de l'Éducation believed that the ex-student had declared bankruptcy less than two years after having completed his studies. The ex-student lodged a complaint with the Québec Ombudsman who noted that the Ministère de l'Éducation had never confirmed the exact date on which the ex-student had quit his studies. In fact, the Ministère had made a standard practice of entering May 31st, 1996 in the computer system as the semester end date, for the purpose of calculating financial assistance payments. This practice does not generally have any adverse effect for students. However, such was not the case with this ex-student. The registrar's office confirmed that the ex-student had dropped out at the beginning of March 1996 and therefore was entitled to be discharged of the debt, to which the Ministère concurred. Considering the serious impact of such a situation for the ex-student, the Ministère should have looked beyond common practice and proceeded to verify the specific drop out date. (page 41)

Self-evident but not evident enough…

4. A worker, whose job it was to press strongly on a pedal with the sole of his foot, sustained an employment injury. The medical report stated that the worker was unable to walk barefoot because of the intense pain he felt each time he put pressure on his foot. An orthesis was also prescribed to reduce pressure on the foot. In his report to the Commission de la santé et de la sécurité du travail, the physician neglected to fill out a section of the form covering the worker's functional working limitations. The CSST agent concluded from this omission that the worker was capable of performing the same duties again and thereby cancelled his compensation benefits. After the matter was brought to the Québec Ombudsman's attention, the latter found that the medical report suggested clearly that the worker could not perform the same duties as he once had. Despite the attending physician's “omission”, the CSST's decision was much too hasty. Effort should have been made to obtain additional information. The physician confirmed the worker's functional limitations, which prevented him from returning to the same job. His benefits were reinstated. (page 108)

A case of psychological fragility

5. A single mom with two kids had to abandon her studies following a major depression. She left her area to settle in Montréal where she hoped to improve her fate. She lived with a friend in a cramped apartment and a religious community provided her with food. She visited the local job center to request social welfare benefits. Her depression and distressing circumstances had made her extremely irritable. She did not understand why she had to answer so many questions and provide so many documents while she was experiencing such dire circumstances. She became overwhelmed with anger and reacted violently so the agent ended the meeting… and the benefits that she needed were denied. She appealed to the Québec Ombudsman who, after having listened to her explain her case, believed it that she was very likely entitled to benefits. The woman was probably reassured by the Québec Ombudsman's listening to her story and accepting to be present at a new meeting with the agent, since she was calm and able to answer all of the agent's questions clearly and precisely. She was thereafter granted the benefits that she was entitled to receive. The Québec Ombudsman believes that the Ministère should have given her the assistance and guidance that was required in such a situation. (page 52)

Other unfortunate situations

A serious snag in the democratic process

6. Regarding the bill restricting pig farming, the Québec Ombudsman had to intervene, although unsuccessfully, with the Minister for Environment so that the normal democratic process, which included the passing of bills and by-laws, be observed. The Québec Ombudsman was and remains convinced that withholding information created a serious breach in the rules of democracy. First of all, elected officials were required to vote on a bill which covered mainly the passing of a by-law having a retroactive application, while its content remained unknown to legislators since the said content was simultaneously subject to a secret study by civil servants and select groups. Secondly, the bill circumvented the requisite notice period regarding such by-laws. Citizens or group of citizens had therefore no means of expressing their comments, objections or suggestions. The Québec Ombudsman believed such behaviour clearly violated the privileges of elected representatives, as well as citizens' rights. One must remember that such procedures constitute a setback with regard to the transparency that must prevail in a democracy. (page 57)

Urgency of situation justified exemption

7. A citizen living in Outaouais had to undergo major surgery. A few days before the procedure, she fell ill. The illness had to be treated before the surgery could take place. A drug was prescribed for her, however she was told that the medicine was not readily available in all pharmacies. She had to wait. Time was wasting. Her spouse tried without success to get the drug in Quebec. Finally, he found it in an Ottawa pharmacy. The woman was treated and the surgery was conducted as planned. Afterwards, the Régie de l'assurance maladie du Québec refused to reimburse the drug under the provisions of the government's drug insurance programme since it was bought outside Quebec. The lady filed a complaint with the Québec Ombudsman. The Québec Ombudsman's investigation revealed that the urgency of the situation fully justified going “above and beyond the law”, according to the expression used in last year's annual report. The Régie agreed to reimburse the drug bought in Ontario, after having received confirmation from a Quebec pharmacist that he had been unable to provide the prescribed drug on time. (page 127)

The judgment was clear and left no room for interpretation

8. In the spring of 2001, an unemployed citizen obtained a ruling to the effect that he did not have to pay alimony while unemployed. The Ministère du Revenu, which oversees the collection of support payments, therefore stopped collecting payments from him. The citizen found a job during the summer and began making support payments again. In the fall however, he found himself unemployed again and was dismayed to learn that the Ministère persisted in demanding support payments. The unemployed citizen lodged a complaint with the Québec Ombudsman regarding the matter. During the Québec Ombudsman's inquiry, the Ministère contended that the ruling was to be interpreted as referring only to the one period of unemployment in the spring, and not several such periods. Hence the ruling did not apply to the fall period of unemployment. After reading the terms of the judgment, the Québec Ombudsman concluded that the Ministère's interpretation was clearly unreasonable. The decision was very straightforward and specific: support payments were to be interrupted whenever he was unemployed, and brooked no other interpretation. The Ministère finally concurred with the Québec Ombudsman's decision. The problem was corrected and $1 900 in alleged arrears were cleared. (page 87)

Despite supporting jurisprudence, the CSST refused a worker's claim

9. In May of 1998, a citizen filed a claim for compensation with the Commission de la santé et de la sécurité du travail due to a work-related illness. The CSST rejected the claim. However, the citizen was to be re-examined in two years' time. The citizen presented his case before the appropriate administrative tribunal, which is the Commission des lésions professionnelles (CLP) in this case. As planned, the citizen was re-examined in 2002 by CSST experts who then found that the citizen's illness was indeed work-related. The CLP agreed and stated that the citizen was entitled to an income replacement indemnity as of May 1998. Nonetheless, the CSST refused to comply, arguing that the citizen was retired since the end of 1997. Thus informed, the Québec Ombudsman noted that the caselaw on this issue was clear and extensive: compensation had to be paid since it was to make up for the loss of one's ability to gain income, and not for the lost income per se. The Québec Ombudsman found that the CSST was well aware of the precedents and yet persisted in refusing the citizen's claim, which forced the parties to return before the CLP. The Québec Ombudsman deemed this position to be clearly unreasonable and unfair and requested that the CSST put an end to this practice. The benefits of the citizen were reinstated and he also received over $126 000 in arrears. (page 105)

Terminal stage cancer must be viewed as a “serious employment constraint”

10. A citizen receiving welfare benefits was suffering from cancer, now in its terminal phase. With a medical report substantiating his claim, he requested special benefits for people who have “serious employment constraints”, which means that they are unable to work for a long period of time, or permanently. The Ministère de l'Emploi et de la Solidarité, instead granted him the customary amount for those having “temporary employment constraints”. Besides the fact that citizens with “temporary employment constraints” were allowed allowed $130 less than the amount granted to those experiencing “serious constraints”,they were also required to undergo more frequent check-ups in order to monitor the changes in their state of health. The citizen attempted to appeal the decision and provided an even more detailed medical report to support his position, to no avail. The citizen therefore lodged a complaint with the Québec Ombudsman. The inquiry revealed that the last report had not been forwarded to the appropriate department. After having reviewed the said report, the government finally acknowledged the seriousness of citizen's illness and granted the desired benefits. (page 54)

Residual liberty still reduced

11. A citizen incarcerated at the Tanguay prison filed a complaint with the Québec Ombudsman. She objected having to return to her prison cell several times in a day, sometimes for 3 hours a day. The authorities of the detention center, which falls under the jurisdiction of the Ministère de la Sécurité Publique, explained to the Québec Ombudsman that confinement cells are located in the same area. Since inmates placed in solitary confinement cannot have any contact with other prisoners, they had to lock the complainant up in her cell until the other inmates had entered or left the area. The inquiry revealed that apart from those under confinement, the other inmates were not subject to any restrictions as to their movements around the area. This situation therefore decreased their residual liberty. The Québec Ombudsman considered this practice unfair and informed accordingly the director of the establishment who implemented new methods regarding the ins and outs of confined prisoners in order to limit the restriction on the movements of the other inmates to only a few minutes at a time. (page 94)

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