Tag Archives: Supreme Court of Canada

Saskatchewan ombudsman fights for your rights

By Sheryl Smolkin

Click here to listen
Click here to listen

Today I’m interviewing Saskatchewan Ombudsman and Public Disclosure Commissioner Mary McFadyen for savewithpsp.com. She assumed these positions on April 4th, 2014.

Prior to returning to her home province of Saskatchewan to serve in this capacity, Ms. McFadyen was Deputy Registrar of the Supreme Court of Canada and before that, Director General Legal Services for the office of the Ombudsman for the Department of National Defense and Canadian Forces.

She has a Law Degree from the University of Saskatchewan and an LLM. from the University of London, the London School of Economics.

Today we’re going to talk about her role as Ombudsman, when her office can and can’t help you, and some examples of cases and investigations conducted by her office, including a recent report about the care provided to Mary Warholm.

Thank you for joining me today, Mary. 

Thank you very much for having me.

Q: Now what exactly is an Ombudsman?
A: Well, an Ombudsman is an independent, impartial public official who has the authority and the responsibility to receive and investigate or formally address complaints about government actions, omissions and decisions. When appropriate they can also make findings, recommendations and publish reports.

Q: So tell me a little bit about the mandate of Ombudsman Saskatchewan and the problems your office can help provincial residents resolve.
A: Well, the mandate of Ombudsman Saskatchewan is to take complaints about government actions, decisions or omissions that affect people personally. Most of the government institutions like the Ministries, the Crown corporations, the agencies and the boards fall under our jurisdiction.

We have very wide powers of investigation and we have the ability to talk to anybody to get any documents to determine whether or not the decision was fair or if we can recommend or suggest that it be changed because it was not fair.

Q: You’re primarily provincial. What complaints and government concerns can you not deal with?
A: We can’t deal with anything that’s in the federal jurisdiction or private interest between citizens of a private nature. That’s for the courts. There are very few provincial organizations that do not fall under our jurisdiction but there are some. Rural and urban municipalities are examples of areas that do not fall under our jurisdiction.

Q: If a Saskatchewan resident wants to file a complaint with your office, what is the process they have to follow and is there anything they should do first?
A: Usually an Ombudsman office is one of last resort, which means that people should try to work out the problem that they have with the institution that they have issues with. For example, most organizations have some kind of customer service or complaint resolution office already in their office and those offices are there to hopefully resolve people’s problems to their satisfaction so they don’t need to call us. Those situations should work themselves out. Otherwise we can help.

Q: So do all complaints get investigated and resolved?
A: Out of the complaints that we get (about 2,500 a year) we estimate that about 80% we deal with at the first instance, within a couple weeks. Sometimes it’s just a misunderstanding between what someone heard and what they think someone said to them. About 20% of complaints would actually go on to be investigated in our office.

Q: And how long would they take?
A: Well, our objective is to get 90% of our files closed within 90 days and we’re pretty good at meeting that. We try to do the big investigations within six months like we did with the recently Margaret Warholm case. Sometimes, depending on a lot of circumstances it can take longer. But we do try to be timely.

Q: So you’ve got offices in Regina and Saskatoon, but I notice you took a road trip to Kindersley and Meadow Lake at the beginning of the year. Was there a particular reason you traveled to these towns or do you regularly set up appointments throughout the province to meet complainants?
A: Well, one of the goals when I was appointed is I wanted to have a look at where complaints come from throughout the province because not everybody lives in Regina and Saskatoon. That was the reason for our road trips to Meadow Lake and to Kindersley.

Q: Interesting. In April of this year, you filed your first annual report. Can you give me examples of a few cases of unfairness that your office investigated and resolved?
A: This year there was a case that very much attracted the public’s interest. It was a senior citizen who had a direct debit to pay her SaskEnergy account.

Every month the bill came and it was paid directly from her checking account. And this went on for ten years. She didn’t really pay much attention to it but she just knew that it got paid. And then after ten years she got a letter from SaskEnergy saying that she now owed $13,000 immediately.

Q: Wow…
A: So that was a lot and as a result she contacted us. What had happened was the pre-authorized payments had been coming out of somebody else’s account for over ten years.

The other person died and when his estate was settled the executor found this mistake and contacted SaskEnergy realizing that this money had been paid someone else’s bills. So we looked at it and we agreed that it was obvious that this person did owe the money and that SaskEnergy did have the right to collect it.

But we tried to resolve the problem in the best way possible for her. It ended up that SaskEnergy agreed to a smaller lump sum because they understood that they had some responsibility as well because it had been going on for ten years. So the complainant who came to our office paid the lump sum and was very happy to have the issue resolved.

Q: Interesting. Now in mid May of this year, your report “Taking Care, An Ombudsman Investigation Into the Care Provided to Margaret Warholm While a Resident at the Santa Maria Senior Citizen’s Home” was tabled in the legislature and the report included 19 recommendations. What triggered this investigation? What was the issue here?
A: Well, what triggered this investigation is that back in November of 2014 Mrs. Warholm’s family actually went public with concerns about their mother’s care while she was a resident at Santa Maria. They had tried to get information after she died about her care and they found that the answers they received from Santa Maria were not satisfactory and they went to the legislature to express their concerns. The Minister of Health referred the matter to our office for investigation.

In Saskatchewan we have standards of care in the regulations that all long-term care homes must follow when they’re providing care. So we looked at the care Margaret care received when she was at the home and including her bed format, her pain management, nutrition and hydration.

We made ten recommendations directly to Santa Maria that they had to implement. One covered the care of bed sores, because her bed sores were very, very severe.

When we announced we were doing this investigation we got about 89 calls from all over the province, which led us to believe these were not issues for just one long-term care facility within just one health region.  People weren’t sure where to complain and if they did complain they were afraid that there may be reprisal against their loved ones and they wouldn’t be properly cared for.

When we looked at how the whole long term care system works in Saskatchewan we found about 100 care standards that the Ministry of Health has enacted that all long-term care facilities are to follow. Throughout this whole system there was actually nobody monitoring or making sure that the standards of care were actually being met.

Q: That’s frightening because we’re all going to be there eventually.
A: It is. That is a very good point because we did make recommendations that the Ministry of Health and the health regions have to make sure that people actually understand what it means and that the homes are actually putting processes in place to make sure that they are meeting the standards of care for each resident.

Because we had a really tight time frame for doing this investigation, there were lots of things that were mentioned to us that we just did not have an opportunity to look at, nor necessarily was my role to do so as an Ombudsman.

The last recommendation that we made was that they really have to determine what the future needs of long term care patients in Saskatchewan are and come up with a plan to address it because, you’re right, we’re all getting older and because this problem is not going to go away, it needs to be tackled.

Q: So how do you enforce your recommendations?
A: Well, as an Ombudsman we only make recommendations. But in this case, we notified the organizations, the Ministry, the health regions, and Santa Maria that we will follow up within six months to see how they’re progressing with the recommendations.

One of the benefits of being an Ombudsman is we do have the power to go public with what we recommend. Lots of times just shining attention on an issue is enough to get the government moving on something.

Q: That sounds like you’ve made a tremendous contribution to the province and if you can keep the heat on….
A: Yes, I think it was. We tried to write our report so that it was very reader-friendly.  Our goal was  to set out some very basic information about how long-term care works in the province to facilitate a good discussion about going forward and how we’re going to tackle this issue.

Q: Well, that’s really interesting. Thank you very much, Mary for talking to me today.
A: You’re welcome.

Canada needs more CPP says lawyer Ari Kaplan

By Sheryl Smolkin

Click here to listen
Click here to listen

As part of the ongoing series of podcast interviews on savewithspp.com, today I’m talking to lawyer Ari Kaplan, a partner in the Pension and Benefits Group of the Toronto law firm Koskie, Minsky, L.L.P.

Ari is the author of Canada’s leading textbook on pension law, and he has acted as counsel in some of Canada’s most widely known pension cases before the Supreme Court of Canada. In addition, he teaches pension law as an adjunct professor of law at both the University of Toronto and Osgoode Hall Law School.

In his spare time, Ari heads up licensing and publishing at Paper Bag Records, a leading, independent record label and artist management company also based in Toronto.

Today, we are going to talk about the Canada Pension Plan. In the ongoing national debate regarding how Canadians can be encouraged to save more for retirement, Ari is a staunch advocate for an expansion to the Canadian Pension Plan.

Welcome, Ari, and thanks for talking to me today.

My pleasure, Sheryl. Thanks for having me.

Q: How many Canadians currently have workplace pension plans?
A: Well, that’s a good question to put everything in perspective. Over 60% of working Canadians actually have no workplace pension plan, and they must rely solely on CPP and their own personal savings for their retirement income. 

Q: Why do you think that an enhanced Canada Pension Plan is the best way to give Canadians a more robust retirement income?
A: Very simple. It’s currently the only universal and mandatory savings scheme in the country. It’s portable from job to job. If you’re a student, you can work for the summer in British Columbia and then come back to a full-time job in Ontario, and your CPP credits will go with you. Also, it doesn’t just cover employees. It applies to self-employment, which most workplace pension plans don’t.

Q: As early as 2008, industry guru Keith Ambachtsheer wrote a C.D. Howe Institute commentary about the benefits of enhancing the Canada Pension Plan. Yet, in December 2013, the conservative government in several Canadian provinces voted against this proposal. Why do you think this occurred?
A: Every respected economist in the country supports a CPP expansion. The reason why the current government did not support it is political, not principled.

There was political pressure from business lobby groups who did not want to be forced to contribute employer revenue toward their employees’ retirement. There was political pressure from the financial services lobby, because they do not benefit at all when the retirement savings of Canadians is held in the CPP Trust Fund.

And finally, there’s fear among Canadian voters, who’ve been led to believe that anything opposed by business must be bad for them, too. Some of them also don’t want to be forced to save for retirement.

Q: Instead of expanding the CPP, the late finance minister, Jim Flaherty and the provinces endorsed pooled registered pension plan legislation as the way to encourage Canadians to save more for retirement. What are the key features of PRPPs?
A: Good question. PRPPs are basically like voluntary employer-sponsored group RRSPs. The funds are locked in, so it resembles a registered defined contribution plan. Your funds can also be ported to another plan and there are survivor benefits. So, it’s basically like an “RRSP-plus.”

Q: Why do you think that PRPP’s are not the answer?
A: Well, I think PRPPs are just a prime example of what I said earlier ­­­– political lobbying by business and the financial industry.

  1. The employer is not required to contribute a dime even if the company voluntarily sponsors a PRPP.
  2. An employee can opt out, or voluntarily set their contribution rate to zero, which gives zero benefit to the employee.
  3. There’s very little benefit security. Like I said, it’s like a DC plan, so you get to choose member-directed investment funds. If you don’t invest your money well, then you won’t get a good pension.
  4. The cost structure is really not that much different than a 500-member group RRSP. The management expense ratio (MER) will be much higher under a PRPP than under a large workplace pension plan or, for that matter, under CPP, where the efficiencies of scale are such that the costs are very, very, very low.
  5. It will create a huge windfall to insurance companies and other financial institutions who manage these funds, because there’s very few cost controls. There are lots of problems in group RRSPs with so-called “hidden fees” and there’s no indication that that will change with PRPPs.

I can go on, but I think you get the idea.

Q: Groups such as the Canadian Federation of Independent Business say that required employer contributions to an expanded CPP would amount to a significant payroll tax that could slow down economic growth. How would you respond to this statement?
A: To be quite blunt, this is a false and misleading statement. Anyone who tells you it’s a tax is not telling you the truth. This is employee money. It goes into a pension fund. It then goes back to the employee.

Q: Ontario Premier, Kathleen Wynne’s government is currently holding consultations on the design of an Ontario Retirement Pension Plan. What are some of the key features of that plan?
A: At the end of December of last year, the Ontario government introduced the first reading of the bill for the Ontario Retirement Pension Plan intended to commence at the beginning of 2017. The reason for the delay period is because there’s hope that the next federal government may agree enhance CPP, which could make the ORPP redundant.

But the key features are that it’s a mandatory plan. It’s like an adjunct to CPP. So, it would be mandatory in all Ontario workplaces, except where the employer already has a workplace pension plan for its workforce, and it would be integrated with the CPP.

Q: Several other provinces, like PEI, may jump on the same bandwagon, so why do we still need a national CPP enhancement?
A: Well, it would better if the federal government came on board to make it nationwide. I mean if we just have it province by province, then it’ll be more of a patchwork. This could influence inter-provincial mobility. We don’t want to discourage full inter-provincial mobility by Canadians.

Q: Well – and, of course, the other issue is – just like pension legislation across the country, which is similar, but actually very different when it comes to the details – we run the risk of getting ten or 11 completely different plans.
A: And that would result in over-regulation and an increase in transaction costs although the whole point of this is to minimize and optimize the costs of running the fund — which is why CPP is good model.

CPP is viewed as one of the best universal, mandatory state-sponsored pension plans in the world. It would be a shame for us to have to rely on province-by-province, patchwork participation in such a scheme.

Also, you know, at the end of the day, this is really something that benefits all Canadians, regardless of what age or generation they are in. One way or the other, taxpayers will be taking care of older Canadians who are poor. It’s better that Canadians have their own resources to take care of themselves; and that’s an optimal use of taxpayer resources.

So, I just really think it’s a good idea, and I really think that this is the ballot question for the upcoming federal election this year. We saw this 50 years ago when CPP was introduced. I believe this year there will be a renaissance of that issue.

Q: Thanks, Ari. It was great to talk to you.
A: My pleasure, Sheryl. Be well.

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This is an edited version of the podcast posted above which was recorded on February 3, 2014.