Businesses and professional practices by and large are sovereign in their relationships with clients, subject only to the constraints of civil or criminal law and – where applicable – their own governing professional bodies.
If they behave with integrity and respect, they are rewarded with the approbation of their market. If they behave poorly, they can expect to have the market turn its back on them.
But the market is a fickle and imprecise taskmaster. Some businesses and professional practices have the ability to flourish regardless of how they behave – a situation that might be brought about by the proprietor’s “street smarts” or a scarcity of the goods or services provided.
And when natural justice cries out for relief, self- governing bodies do not always perform in an effective, appropriate manner.
Institutional myopia, inertia or politics can prevent a fair outcome, leaving the client to vent to his or her own political representative. Complaints make politicians unhappy and this translates into dyspepsia for their staff.
In recent years, the British Columbia and Alberta governments have seized upon a solution: They have expanded the jurisdiction of the ombudsman beyond the provincial departments, agencies and commissions to which their authority has traditionally been confined.
The concept of having an officer of the people resolve complaints about government acts, omissions or improprieties originated in Sweden, which appointed the world’s first ombudsman in 1809.
Independent of government, provincial ombudsmen are appointed by the legislative assembly to investigate complaints and recommend solutions.
The ombudsman cannot become involved in a complaint until the complainant has exhausted all other avenues of appeal.
An ombudsman enjoys the trust and respect of the public and government. B.C.’s and Alberta’s ombudsmen receive thousands of complaints each year.
When they conclude an investigation and tell a department to jump, public servants ask “How high?”
In Alberta, which established Canada’s first ombudsman office in 1967, the ombudsman’s jurisdiction has been expanded to include accounting professionals, veterinarians, foresters and forest technologists, all of whom have their own self- regulating professional bodies.
Today, the ombudsmen are expanding into the health professions, where 28 “colleges” (self-regulating bodies) regulate 30 different professions. Eventually, an ombudsman’s jurisdiction will also be extended to the province’s regional health authorities.
“I have the authority to recommend a course of action that I think will remedy the problem,” says Ombudsman Gord Button, who has offices and a staff of 19 in Edmonton and Calgary. “My power is one of moral suasion.”
In B.C., the government led the way in the 1990s in giving its ombudsman the power to investigate complaints beyond an ombudsman’s traditional confines, and the B.C. ombudsman continues to have a broader area of coverage than his Alberta counterpart.
Unlike in Alberta, B.C. Ombudsman Howard Kushner has the authority to investigate complaints about school boards, colleges and universities, the provincial law society and municipal governments.
However, Kushner’s office has had to wrestle with spending cutbacks totalling 35 per cent over the past three years.
Kushner says his office now is making do with 31 staff compared with the previous 50, and as a result is declining to accept complaints about professional bodies (such as the B.C. College of Physicians and Surgeons and the Law Society of B.C.) and local governments.
Kushner also has created a three-month queue in other areas such as colleges and universities, hospitals and health authorities, and schools and school boards. “People aren’t getting the same degree of (service) that our office previously provided,” he said.
“I think that’s a loss for the citizens of B.C.”
Unfettered by such constraints in oil-rich Alberta, Button says his office is assuming jurisdiction over the health professions as their colleges complete administrative procedures under the new Health Professions Act.
Nine of the 30 have come under his jurisdiction so far, including dentists, optometrists and licensed practical nurses. More will be added in the future, including psychologists, pharmacists and physicians.
In years past, a profession’s power over the public has been virtually unassailable. One patient I met years ago described a governing body’s review process as a “star chamber.”
But now, finally, governments have fashioned a solution of sorts through the ombudsman.
This is not to say that B.C.’s and Alberta’s ombudsmen are empowered to judge a professional’s competence, however. “I wouldn’t have the expertise to get into those areas,” says Button. “That’s the jurisdiction of the college.”
Instead, they will review how a body has addressed an administrative issue, such as a billing dispute.
The question now is how far governments will go in extending their ombudsman’s powers into the private sector.
Professional practices are small businesses that sell services – the differences between them and other businesses being that they are required to have high levels of education and training, they must be licensed and they are accountable to their professional bodies.
So where will it end?
Provincial governments likely will continue extending the powers of the ombudsman as budgets permit, and one day, ombudsmen may even have jurisdiction over sectors such as automotive and real estate, whose governing bodies have been deputized to regulate themselves.
Given the ombudsman’s original mandate of reviewing the actions of government departments and agencies, I believe this evolution is finite.
The extension of his or her powers likely will hit a solid wall in any private sector where there is no self-regulating body.
This means that a large portion of private enterprise can sleep soundly in the sure knowledge that its actions will continue to be governed only by business practices statute and the marketplace rewards – or punishments – that its behaviours inspire.
(Brock Ketcham can be reached at brock@businessedge.ca)
