November 7, 2002 - 3 — Le Protecteur du citoyen

32nd Québec Ombudsman Annual Report (2001-2002)

"Above and Beyond the Law"

A Few Examples

Effects of blind application of administrative rules on citizens

1. Some time after she had been in an automobile accident, the Société de l'assurance automobile (SAAQ) required an 81-year old woman to submit to a medical examination. In order to do so, she had to travel 500 kilometres in one day. As she could not drive this distance by herself, she requested that a driver assist her. Upon her return, she claimed from the SAAQ the expenses she incurred for a person to accompany her, as provided by law. The SAAQ refused to reimburse these costs as the victim's medical file did not show that accompaniment was "medically necessary". In order to authorize payment of this allowance, the SAAQ must legally take into account the physical or psychological condition, or the age of the accident victim. SAAQ administrative guidelines outline the provisions of the law, but add that the age of accident victims who are under 16 is a sufficient reason to require accompaniment. As a result, the SAAQ only reimbursed victims under 16 years of age. The Québec Ombudsman's inquiry revealed that the law did not imply such a strict interpretation. According to the Ombudsman, the SAAQ's interpretation unreasonably infringed upon citizens' rights. Pursuant to the intervention, the lady received the reimbursement she requested, plus interest. The SAAQ acknowledged that the law allowed for a larger interpretation and altered its guidelines as a result. (Page 14)

2. The aim of the Shelter-Allowance program administered by the Ministère du Revenu is to provide financial assistance to low-income families to help them pay their rent. One of the requirements of the program is that a copy of the lease must be provided or, if none is available, a statement from the landlord regarding the rent paid. A citizen who wished to benefit from the program for a second consecutive year asked her landlord for a statement similar to the one she had received the year before. However, despite numerous attempts, the landlord ignored the citizen's requests. She submitted her application to the Ministère regardless, and included a letter explaining why she could not provide the required document. The Ministère ignored the woman's comments and rejected her application. She then appealed to the Québec Ombudsman. An inquiry revealed that her rental situation was identical to that of the preceding year. The Ministère thus already had on file all the information it needed to process her application. In the Ombudsman's opinion, the Ministère should not have penalized the citizen for the landlord's negligence, which was beyond her control. Faced with the Ombudsman's argument, the Ministère reconsidered the decision and instead requested a photocopy of a cashed rent cheque as proof of the cost of the rent. (Page 54)

3. Two students appealed to the Québec Ombudsman because the Ministère de l'Éducation's Student Financial Assistance program (SFA) refused to give them the aid payments they required. The reason given was that their father could not provide his "exact" income for the year 2000, since he had declared bankruptcy that year. The sisters stated that their father would like to co-operate with SFA, but it was impossible for him to provide precise information. He sent a letter to the Ministère, explaining in writing why he could not provide this information. The Ministère chose to ignore the father's explanation. The Ombudsman's office did not agree with the Ministère's decision in this case. It felt that the reasons given by the father were valid and that the students should not be penalized for a situation that was beyond their control. It therefore intervened with the Review Board and requested that the file be re-opened, and that an "estimate" based on the father's 1999 income be accepted for the year 2000. The Review Board accepted this solution and the students could therefore concentrate on their studies. (Page 34)

4. Twenty years ago, a citizen had a stroke that left him with severe psychological damage. He is on welfare and, for medical reasons, cannot return to work. Following a change of address, the officer in charge of his file with the Ministère de l'Emploi et de la Solidarité sociale (MESS) asked him to provide a copy of his lease, for verification purposes. Believing that he was on a Mafia hit-list, the man refused to provide the required document. Aware that the Ministère already had his address, he nonetheless wanted to prevent as much personal information as possible from being leaked. Because of his refusal, the Ministère issued a warning that his payments would be cancelled. After checking with the Ministère, who acknowledged that the citizen was well-known to them, the Ombudsman requested that they forego the requirement to produce a lease and continue to make payments. The Ministère agreed. (Page 41)

5. An alcoholic drug-addict was the victim of a past sexual assault. She was regularly hospitalized for mental problems. She uses public transportation to get to her therapy sessions. She is on welfare, however, and the MESS requires her to show up at their offices every month to justify the cost of the bus pass. She is already in poor health and these checkpoint measures make things worse and increase her anxiety. She even suspects the welfare officer of following her everywhere she goes. Frantic, she contacted the Québec Ombudsman, who intervened. Considering the woman's fragile state, the Ombudsman requested that the Ministère reduce the number of times required for her to submit to these checks. The request was granted. (Page 42)

Faulty information passed on to citizens leads to unfortunate consequences

6. A citizen was leaving on a trip in a few weeks. In order to obtain a passport, she first had to request a birth certificate from the Registrar of Civil Status. She was greatly surprised when the clerk informed her that she could not obtain a birth certificate, since there was no family name listed for her in the Civil Status registry. This was because the woman had been born prior to the establishment of adoption legislation and as per common practice at the time, her new parents never officially registered her adoption. She had always used her adoptive father's family name, although the name does not appear in the Civil Status registry. She asked that her birth certificate be issued regardless. The clerk told her that this was impossible. When the woman insisted, the clerk flippantly answered that in order to get her birth certificate, she would have to have her family name added to her Act of Birth by officially changing her name, which is a very long procedure. He added that she should therefore get used to the idea that she would have to take her trip some other time. Following the Ombudsman's intervention, the citizen was finally able to obtain her birth certificate, even without a family name on it. She was therefore able to present the document, plus a sworn statement attesting to the use of her surname, and receive her passport. The Ombudsman advised the Registrar of the importance of providing proper information. It was in fact possible for the Registry to issue the birth certificate, despite the missing surname. If it hadn't been for the Ombudsman's intervention, the woman would not have received her passport, which would have naturally led to unfortunate and costly consequences. Following this intervention, the Ombudsman was informed that the Registry is actively working on setting up the necessary measures for citizens to receive accurate information upon their first contact with the agency. (Page 46)

7. In October 2000, a worker was acknowledged by the CSST as having an occupational pulmonary disease. The severity of his illness entitled him to a lump-sum payment of $63,161. Following this decision, CSST advised the citizen that that the sum would be paid out once the decision had been finalized, i.e. after the 45-day appeal period had expired. The worker, however, died from his illness during the waiting period. As he was not married and had no dependent children, the regional office of the CSST refused to pay the agreed-upon compensation to the man's estate. His heirs therefore requested a review of the case and also appealed to the Québec Ombudsman. This intervention enabled the Ombudsman to remind the regional office of a 1995 inquiry on the same matter, where the CSST issued a provincial directive indicating the policies to be followed by regional offices in exceptional cases such as this one. Despite the Ombudsman's arguments and the existence of the provincial directive, the civil servant upheld his initial refusal. It was only after speaking with the reviewer responsible for the case, who agreed with the Ombudsman, that the man's heirs received the amount due them, plus interest. (Page 93)

8. In 1999, Canada's Finance Minister introduced legislation on measures allowing large mutual insurance companies to "demutualize". This process allowed some of them to become public corporations, and a number of citizens received benefits in the form of shares in the new companies. As soon as these shares were sold, these citizens would have to declare a capital income gain, which is normally equal to the sale price less the purchase price. As the cost of the share after demutualization is presumed to be zero, the resulting gain would be equal to the sale price. Pursuant to a citizen's complaint, the Québec Ombudsman determined that the information regarding demutualization was only available on the Web site of the Ministère du Revenu du Québec. Neither the Guide to the Income Tax Return nor the brochure on capital gains and losses made any mention of it. Thus, some taxpayers were now being charged for undeclared capital gains. At the request of the Ombudsman, the Ministère agreed to have this information added to the Guide to the Income Tax Return as well as to the brochure on capital gains and losses for the following year, as the Ombudsman pointed out to the Ministère that not all citizens have Internet access. (Page 51)

9. An article published by the Régie de l'assurance maladie du Québec (RAMQ) in a seniors' magazine read that "In order to benefit from free optometry services, which consists of one regular or more specialized examination per year, you must be over 65. If you are between the ages of 60 and 64 and are receiving a spouse's allowance under the Old Age Security Act, you are also eligible, as well as if you are residing in a health-care facility…" [liberal translation]. Thus, after having read the article, a woman contacted the Régie, which confirmed the information and sent her a refund application form. The woman filled out the form and shortly thereafter received a refusal of her request for reimbursement. The Québec Ombudsman's office read the article and then consulted the RAMQ Web site. It determined that the two texts were identical and that the wording was confusing. Following the Ombudsman's intervention, the Régie modified the text to reflect the proper requirements. From now on, it clearly indicates that "persons 60 to 64 years of age who have received a spouse's allowance under the Old Age Security Act for at least 12 consecutive months and who, without this allowance, would be entitled to employment assistance" may benefit from the free optometry service program. The Ombudsman believes that information published by governmental departments and agencies must be accessible, intelligible and complete. (Page 108)

Other regrettable situations:

10. In accordance with the applicable laws, a business owner submitted his first-quarter tax returns to the Ministère du Revenu and attached a cheque for the amount due. Some time later, he noted that the Ministère had not yet cashed the cheque. He double-checked and was told by an agent that the delay was probably due to the fact that it was the peak period for processing tax returns for individuals. For the second quarter, the citizen brought his tax returns to the Ministère in person, along with the cheque for that period, as well as a second cheque, to replace the first one that had still not been cashed. Some time later, he was contacted by the Ministère, who informed the citizen that both cheques had been lost. He was asked to re-submit his tax returns, and issue two new cheques. The citizen, wishing to avoid any misunderstandings, first issued a stop payment on the cheques already held by the Ministère, and went in person to bring in the new documents. When the time came to produce the third-quarter returns, the citizen again went in person to the Ministère to hand in his tax returns, for which, this time, he was entitled to a refund.

At this point, the Ministère found the lost cheques and attempted to cash them. The citizen, meanwhile, received statements of account requiring payment of taxes due, a penalty for non-payment, plus interest, for a total of $3,000. At his wits' end, the citizen asked the Québec Ombudsman for assistance. An inquiry revealed that the replacement cheques had been applied to the first quarter only. The result, according to the Ministère, was an overpayment for the first quarter and a debt for the second. Furthermore, the system programming listed other similar refunds, as well as a number of balances to be paid, which led to the file being transferred to the collections department. Because of the confusion, the Ombudsman requested that the audit department take charge of the file and have it analysed by an employee rather than allowing the computer system to keep making more errors. One week later, the problem was solved and the penalties and interests cancelled. (Page 56)

11. A young woman appealed to the Ombudsman because the Ministère du Revenu, on behalf of the Ministère de l'Emploi et de la Solidarité sociale, was claiming $2,500 from her. This money was equivalent to the support payments that her father, now deceased, should have paid ten years before, when her mother was on welfare. The woman did not understand why the money was being claimed from her, since at the time, the payments were meant to support her needs as a dependant child. During an inquiry, the Ombudsman discovered a ruling stating that alimony payments must be made when the father is working, but when he is unemployed, they are waived. Despite the best efforts of the young lady, it was impossible to gather the documents showing in which periods the man had been unemployed, since all the relevant data had been destroyed. The Ombudsman believed that it was unreasonable to claim old debts when the relevant proof was unavailable. In light of these facts, the Legal Department of the Ministère agreed to waive the debt. (Page 62)

12. On May 14, 2001, two days after being incarcerated, a citizen met with the detention centre physician for a medical examination. After the examination, the doctor recommended psychiatric care, and specified that it should begin before May 17, 2001. He prescribed some medication and referred the file to the attending psychiatrist. Appointments were made but continually put off, without the prisoner knowing the reasons why. He finally decided to use the complaints handling system available to inmates. He had to wait until June 18, 2001 before being told that an appointment with the psychiatrist was scheduled for June 21. To his great surprise, on June 21, he was met not by the psychiatrist, but by the general practitioner. The latter renewed his prescription and once again recommended that the citizen be examined by a psychiatrist, before June 27, 2001. Increasingly nervous and anxious, the citizen stopped taking his medication on June 22, hoping to get an appointment faster. He also appealed to the Québec Ombudsman, who immediately intervened and insisted that the man be seen right away, as he had threatened suicide. Despite this fact, the man was finally seen by the psychiatrist only on July 4, 2001. Overall, the Ombudsman discovered that court-ordered psychiatric evaluations are processed first, because when the Court orders a psychiatric evaluation, it also specifies the time and date when the person must reappear before the tribunal with the results of the examination. Thus, to avoid having prisons cited for not respecting a court order, such cases are treated first, at the expense of those requiring care. The Ombudsman's office is aware of the lack of resources but it is crucial for any inmate whose state requires immediate care to also be treated as a priority. It has therefore continued to appeal to the Ministère de la Sécurité publique, since the issue has yet to be resolved. (Page 74)

13. For the third year in a row, the Ombudsman must decry the number of difficulties encountered by citizens in obtaining the interest due them following a revision or appeal of SAAQ decisions. When interest is finally paid, the amount acknowledged is often insufficient because of the narrow application of the guidelines respecting the date from which the interest is calculated. Thus, in one case brought to the Ombudsman's attention, the interest start date should have been the anniversary date of the citizen's right to compensation and not the date the decision was reversed. Thanks to the intervention of the Ombudsman in one case, the victim received an additional $4,200 in interest. The Québec Ombudsman is therefore recommending for the third year in a row that the SAAQ review its procedures for calculating and paying interest, in accordance with the provisions of the law. (Page 126)

14. A private guardian was caring for his mother, who lived at home but whose physical health was deteriorating. The son was so worried about the state of his mother's health that he agreed to a temporary placement in order to allow health and social services professionals to evaluate the situation. Shortly after his mother was admitted to the centre, the professionals informed the man that a permanent placement was required, but did not forward him an evaluation report. The centre then insisted that the guardian immediately sign a consent form for the permanent placement, told him that a home had been found and that his mother had to move within the next few days. The guardian refused to sign in such a hurry, since he had not received an evaluation report, had not been able to visit the centre in question, and, most importantly, had not been able to prepare his mother for the transfer. He knew that she did not wish to be placed and just wanted to go home. The Public Curator thereupon decided that the guardian was not acting in the best interest of his mother and threatened to go to court to have him replaced as tutor, to place his mother under public protective supervision and to have all court costs and expenses related to the request charged to the private guardian, as long as he maintained his refusal. In this case, the Québec Ombudsman reminded the Public Curator that a tutor could not be dismissed simply because he did not share the same opinion as the agency or the health services network. The dismissal was therefore not requested, but the private guardian meanwhile reconsidered the possibility of renouncing his role, as he felt that the Public Curator was not respectful of his wishes. The Public Curator is now in the process of reviewing its supervisory regulations for private guardianships in order to improve the way it exercises its supervisory duties. The Québec Ombudsman continues to monitor the situation. (Page 102)

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