The Ontario Ombudsman An Overview Presentation for ALOC

The Ontario Ombudsman - An Overview Presentation for ALOC Conference 2012 by Shelley M. Hobbs Office of the Public Guardian and Trustee, Ministry of the Attorney-General

HISTORICAL BACKGROUND: § “Ombudsman” is an Old Norse word meaning “representative”. The role originated in Sweden in 1809. . An ombudsman is an independent official who acts as a trusted intermediary between the state and its citizens and whose job is to investigate complaints by individuals against their government. § In Ontario, the Ombudsman is an officer of the provincial legislature, independent of the government and all political parties, who is appointed for a five-year term. According to its website, the Ontario Ombudsman’s job is to: “ensure government accountability through effective oversight of the administration of government services. ” § Ontario’s Ombudsman’s Office was established in 1975. Since that time, there have been six persons appointed to the office. § André Marin has been Ontario’s Ombudsman since April 2005. He is in his second term which expires in June, 2015.

The Ombudsman’s Office oversees and investigates the provincial government, including about 500 government entities such as Ministries, Crown corporations, tribunals, agencies, boards and commissions. The Ombudsman receives more than 14, 000 complaints a year from individuals looking for help with a particular Ontario government service. § The function of the Ombudsman is to investigate any decision or recommendation made or any act done or omitted in the course of the administration of a governmental organization and affecting any person or body of persons in his, her or its personal capacity. [ss. 14(1) Ombudsman Act ] § The Ombudsman cannot investigate judges or the functions of any court nor the deliberations and proceedings of the Executive Council or any committee thereof. [ss. 13 Ombudsman Act ] § Investigations into municipalities are limited to whether or not certain meetings were improperly closed to the public. . [ss. 14(2. 2) Ombudsman Act ]

The Ombudsman Ontario has approximately 80 staff members, including: Operations ( Early Response team; Investigations team), Special Ombudsman Response Team [“SORT”], and Open Meeting Law Enforcement Team [“OMLET”]. Organization Chart taken from www. ombudsman. on. ca

SPECIAL OMBUDSMAN RESPONSE TEAM [‘SORT”] § Conducts specialized systemic investigations on high profile issues affecting large numbers of people. § Not necessarily initiated by an individual complaint § Entails extensive document review and witness interviews by an experienced team § Notice of the formation of a SORT team is given to the subject government organization, and the organization is given a chance to respond to the preliminary report and recommendations. § Usually results in a final public report on the subject matter Examples of SORT investigations: § § G 20 Policing Special Investigations Unit of MAG Use of force in jails Non-emergency medical transportation services.

THE PATH OF A COMPLAINT 1. The complaint must be made in writing. [ss. 16(1) Ombudsman Act ] although this includes telephone or personal interviews with the complainant as transcribed by an Ombudsman staff person. 2. The complaint is initially reviewed by the Early Resolution team to determine if it is within the Ombudsman’s mandate. 3. The subject of the complaint may be contacted in order to resolve the matter. 4. If the matter is not resolved, the complaint may be referred to the Investigations team or to the SORT. 5. If a formal investigation is launched, notice must be given to the subject government organization. 6. If the matter is still unresolved, the Ombudsman may issue findings in his annual report as well as recommendations.

THE NECESSARY ELEMENTS FOR AN OMBUDSMAN INVESTIGATION -1 The Ombudsman may make any investigation- § on a complaint made to him or her by any person affected § by any member of the Assembly to whom a complaint is made by any person affected, or § of the Ombudsman’s own motion. [ss. 14(2) Ombudsman Act ] “The powers conferred on the Ombudsman by this Act may be exercised despite any provision in any Act to the effect that any such decision, recommendation, act or omission is final, or that no appeal lies in respect thereof, or that no proceeding or decision of the person or organization whose decision, recommendation, act or omission it is shall be challenged, reviewed, quashed or called in question. ” [ss. 14(3) Ombudsman Act ]

THE NECESSARY ELEMENTS FOR AN OMBUDSMAN INVESTIGATION - 2 The functions of the Ombudsman are to be exercised once four elements are in place. : 1. The subject entity must be a `governmental organization” of the Province of Ontario save for the open meetings aspect of municipalities. `. 2. The investigation must relate to a `decision, recommendation, act, or omission`. 3. The `decision, recommendation, act, or omission` must have been made in the `course of the administration`` of the government organization. 4. The `decision, recommendation, act, or omission` must affect some person or body of persons in his, her or its personal capacity. [ss. 14(1) Ombudsman Act ]

THE ONTARIO OMBUDSMAN’S JURISDICTION DEFINITIONS “Governmental organization” means a Ministry, commission, board or other administrative unit of the Government of Ontario, and includes any agency thereof… “Minister” means a member of the Executive Council. [ss. 1 Ombudsman Act ] The Ontario Court of Appeal has accepted that the phrase “administrative unit of the Government” broadly incorporates all of “those functions of Government which are not performed by the Legislative Assembly and the Courts. ” Re Ombudsman of Ontario and Health Disciplines Board of Ontario (1978), 104 D. L. R. (3 d) 597 (Ont. C. A. ) at page 608. The Supreme Court of Canada affirmed this view in Re British Columbia Development Corporation and Friedmann. [1984] 2 S. C. R. 447 at pages 471 and 474.

OUTSIDE THE ONTARIO OMBUDSMAN’S JURISDICTION -1 § The so-called MUSH* sector : • Municipalities; except for the limited purpose of reviewing decisions by municipalities to hold closed meetings. • Universities, • School boards, • hospitals, (*Note that some municipalities, hospitals, and universities have their own Ombud offices e. g. Toronto, Mc. Master University) § The decision, recommendation, act or omission of any person acting as legal adviser to the Crown or acting as counsel to the Crown in relation to any proceedings. ( A Crown counsel may not be protected if providing non-legal advice or acting in an administrative role)

OUTSIDE THE ONTARIO OMBUDSMAN’S JURISDICTION - 2 § The Ombudsman is not empowered to investigate where there is, under any Act, “a right of appeal or objection, or a right to apply for a hearing or review, on the merits of the case to any court, or to any tribunal constituted by or under any Act, until that right of appeal or objection or application has been exercised in the particular case, or until after any time for the exercise of that right has expired. ”. [ss. 14(4) Ombudsman Act ] • Judges or “the functions of any court” Re: Ombudsman of Ontario and Health Disciplines Board of Ontario (1978), 104 DLR (3 d) 597 (Ont. CA) at page 612 : ``is little doubt as to the normal scope of the word ‘court’ and I do not think that it embraces administrative tribunals, even those exercising powers with a substantial judicial component`but only at a provincial level. § “Deliberations and proceedings of the Executive Council or any committee thereof. ” [ss. 13(a) Ombudsman Act ] § Private businesses. § Politicians § Federal government

CABINET AND COMMITTEE MATTERS Where the Attorney General certifies that the giving of any information or the answering of any question or the production of any document or thing, (a) might interfere with or impede investigation or detection of offences; (b) might involve the disclosure of the deliberations of the Executive Council; or (c) might involve the disclosure of proceedings of the Executive Council or of any committee of the Executive Council, relating to matters of a secret or confidential nature, and would be injurious to the public interest, the Ombudsman shall not require the information or answer to be given or, as the case may be, the document or thing to be produced. The rule of law which authorizes or requires the withholding of any document, or the refusal to answer any question, on the ground that the disclosure of the document or the answering of the question would be injurious to the public interest does not apply in respect of any investigation by or proceedings before the Ombudsman [ss. 20(1) (2) Ombudsman Act]

OMBUDSMAN MAY REFUSE TO INVESTIGATE The Ombudsman may refuse to investigate a complaint, or to investigate it further, if: § There is an adequate alternative remedy for the complainant whether or not the complainant has availed himself or herself of it. § The subject matter of the complaint is trivial § The complaint is frivolous, vexatious, or is not made in good faith. § The complainant has not a sufficient personal interest in the subjectmatter of the complaint. § “Having regard to all of the circumstances of the case, any further investigation is unnecessary. ” [ss. 17(1) (2) Ombudsman Act ]

“ADEQUATE ALTERNATIVE REMEDY” = § Application for judicial review § Application to a tribunal for reconsideration § Civil action § Contractual or statutory right to arbitration / mediation § Pending or ongoing police investigation § Referral to investigative agency eg. OPGT § Appeal to appellate court § The subject matter is already being heard by the court or a tribunal and no decision has been reached. § The subject matter has already been investigated by the Ombudsman.

POWERS OF THE OMBUDSMAN POLICIES AND PROCEDURES If any question arises whether the Ombudsman has jurisdiction to investigate any case or class of cases under this Act, the Ombudsman may, if he or she thinks fit, apply to the Divisional Court for a declaratory order determining the question. [ss. 14(5) Ombudsman Act ] While the Legislature may make general rules for the “guidance” of the Ombudsman, the Ombudsman may determine his or her own procedures. [ss. 15(1)(2)(3) Ombudsman Act] The Ombudsman may refer any evidence of a breach of duty or of misconduct on the part of any government officer or employee to “the appropriate authority” but it is not mandatory. [ss. 18(6)Ombudsman Act]

POWERS OF THE OMBUDSMAN DISCLOSURE OF INFORMATION The Ombudsman may obtain the disclosure of any information, documents, or “things” which may be, in the opinion of the Ombudsman, relate to any such matter under investigation and which may be in the possession of any government organization’s officer, employee, or member. A government organization cannot knowingly withhold relevant information merely because it has not been specifically requested by the Ombudsman. The Ombudsman is also expected to make reasonably diligent efforts to locate and consider all relevant evidence from other sources before coming to a conclusion about the issue. The Ombudsman may also summon before him or her and examine under oath any complainant, any government organization officer, member, or employee, or “any other person” who is able to provide relevant information. [ss. 19(1)(2) Ombudsman Act].

DISCLOSURE AND ACCESS TO FILES This means the Ombudsman investigator has almost unlimited access to your client’s electronic and hard copy files if the content is relevant to the complaint. Exemptions are difficult, but not impossible to defend “Every person has the same privileges in relation to the giving of information, the answering of questions, and the production of documents and things as witnesses have in any court. ” [ss. 19(5) Ombudsman Act] No privilege for lawyers acting as managers or administrators. Privilege as between government agency client and government lawyer hard to define, but should include legal advice about the Ombudsman investigation and potential liability matters.

POWERS OF OMBUDSMAN – DISCLOSURE OF INFORMATION - 2 If an officer, member, or employee of a government organization is required to maintain secrecy under any other statute other than the Public Service Act, they are not required to disclose information or answer questions or produce documents or things if such action would be in breach of that other statutory obligation. [ss. 19(3) Ombudsman Act] However, if the “other statute: ” is FIOPPA or PHIPA, the officer, member, or employee is “not prevented…from providing personal information to the Ombudsman when the Ombudsman requires. . . ” the information in the context of an investigation. [ss. 19(3. 1) Ombudsman Act] If the complainant consents in writing, information and documents relating to the complainant may be disclosed to the Ombudsman. [ss. 19(4) Ombudsman Act]

ACCESS TO PREMISES On notice to the government organization of the Ombudsman’s purpose, the Ombudsman may at any time enter upon any premises occupied by any governmental organization and inspect the premises and carry out therein any investigation within his or her jurisdiction. [ss. 25(1)(2) Ombudsman Act ] The Attorney General may by notice to the Ombudsman exclude the application of subsection (1) to any specified premises or class of premises if he or she is satisfied that the exercise of the powers mentioned in subsection (1) might be prejudicial to the public interest. [ss. 25 (3), Ombudsman Act] Where a notice is given under subsection (3) and in the opinion of the Ombudsman it is necessary to take an action apparently prevented by the notice, the Ombudsman may apply to a judge of the Superior Court of Justice for an order setting aside the notice in respect of such action and, where the judge is satisfied that such action would not be prejudicial to the public interest, he or she may make the order. [ss. 25 (3)(4) Ombudsman Act ]

“PRELIMINARY INVESTIGATIONS” VERSUS “FIELD / FULL INVESTIGATIONS” The Regulations permit the Ombudsman to undertake “preliminary investigations” for the purpose of confirming the substance of a complaint. This also permits oral inquiries and telephone interviews with the subject organization’s staff without the nature of the complaint being put in writing. Once a “field” or “full” investigation is commenced, the Act requires that the Ombudsman must notify the head of the government organization of the intention to make the investigation. This usually takes the form of a letter that outlines the nature of the complaint and which invites a response by the organization. The full powers of the Ombudsman to obtain records and information, in theory, should only be exercised after the notice of investigation has been delivered but, in practice, any resistance to a preliminary investigation would simply result in notice being given to compel disclosure. [O. Reg. 865/90 ss. 4; 5]

OMBUDSMAN’S DUTIES OF CONFIDENTIALITY The Ombudsman must take an oath, on being appointed to the office, , that he or she will not, except the context of his or her reports to establish grounds for his or her conclusions and recommendations, disclose any information received by him or her as Ombudsman. [ss. 12 Ombudsman Act] Investigations shall be conducted in private. [ss. 18(2) Ombudsman Act] “The Ombudsman and his or her staff shall not, except where permitted by the Act in carrying out functions thereunder, disclose to any third party any information received by the Ombudsman or his or her staff while carrying out any of the functions of the Ombudsman under the Act. ” Ombudsman staff are also not to express to anyone other than the Ombudsman or his or her delegate the staff member’s opinion, recommendation, etc. [O. Reg. 865/90 ss. 2 and 3. ]

DISCLOSURE TO OMBUDSMAN NOT TO BE USED IN OTHER PROCEEDINGS Except on the trial of any person for perjury in respect of the person’s sworn testimony, no statement made or answer given by that or any other person in the course of any inquiry by or any proceedings before the Ombudsman is admissible in evidence against any person in any court or at any inquiry or in any other proceedings, and no evidence in respect of proceedings before the Ombudsman shall be given against any person. A person giving a statement or answer in the course of any inquiry or proceeding before the Ombudsman shall be informed by the Ombudsman of the right to object to answer any question under section 5 of the Canada Evidence Act. No person is liable to prosecution for an offence against any Act, other than this Act, by reason of his or her compliance with any requirement of the Ombudsman under this section. [ss. 19(1)(2)(3) Ombudsman Act]

OMBUDSMAN’S REPORT ON COMPLETION OF INQUIRY OR INVESTIGATION - 1 If an investigation has been completed by the Ombudsman, a written report shall be made of the opinion and recommendations of the Ombudsman is of opinion that the decision, recommendation, act or omission which was the subject-matter of the investigation, (a) appears to have been contrary to law; (b) was unreasonable, unjust, oppressive, or improperly discriminatory, or was in accordance with a rule of law or a provision of any Act or a practice that is or may be unreasonable, unjust, oppressive, or improperly discriminatory; (c) was based wholly or partly on a mistake of law or fact; or (d) was wrong. -or- a discretionary power has been exercised for an improper purpose or on irrelevant grounds or on the taking into account of irrelevant considerations, or that, in the case of a decision made in the exercise of any discretionary power, reasons should have been given for the decision. [ss, 21(1) (2) Ombudsman Act]

OMBUDSMAN’S REPORT ON COMPLETION OF INQUIRY OR INVESTIGATION -2 The Ombudsman’s report following an investigation may: (a) Refer the matter to the appropriate authority for further consideration; (b) Recommend that the omission should be rectified; (c) Recommend that the decision or recommendation should be cancelled or varied; (d) Recommend that any practice on which the decision, recommendation, act or omission was based should be altered; based should be reconsidered; (e) Recommend that reasons should have been given for the decision or recommendation; or (f) Recommend that “any other steps should be taken” [ss, 21(3)Ombudsman Act]

OMBUDSMAN’S REPORT ON COMPLETION OF INQUIRY OR INVESTIGATION -3 The Ombudsman may request the governmental organization to notify him or her, within a specified time, of the steps, if any, that it proposes to take to give effect to his or her recommendations and the Ombudsman shall also send a copy of his or her report and recommendations to the minister concerned. If no action is taken as recommended, the report may be sent to the Premier and, ultimately, tabled in the house. There is usually a concurrent publication of the report in the media in the latter circumstance. A copy of any comments made by or on behalf of the subject government organization are to be attached to the report. [ss. 21(4)(5) Ombudsman Act] The Ombudsman shall in any case inform the complainant, in such manner and at such time as he or she thinks proper, of the result of the investigation. [ss. 22 Ombudsman Act]

STATUTORY PROTECTION OF OMBUDSMAN No proceeding of the Ombudsman shall be held bad for want of form, and, except on the ground of lack of jurisdiction, no proceeding or decision of the Ombudsman is liable to be challenged, reviewed, quashed or called in question in any court. [ss. 23 Ombudsman Act] No proceedings lie against the Ombudsman, or against any person holding any office or appointment under the Ombudsman, for anything he or she may do or report or say in the course of the exercise or intended exercise of his or her functions under this Act, unless it is shown that he or she acted in bad faith. The Ombudsman, and any such person as aforesaid, shall not be called to give evidence in any court, or in any proceedings of a judicial nature, in respect of anything coming to his or her knowledge in the exercise of his or her functions under this Act. Anything said or any information supplied or any document or thing produced by any person in the course of any inquiry by or proceedings before the Ombudsman under this Act is privileged in the same manner as if the inquiry or proceedings were proceedings in a court. [ss. 24 Ombudsman Act]

OMBUDSMAN’S ANNUAL REPORT TO THE SPEAKER The Ombudsman must make an annual report to the Speaker of the Assembly. [ss. 11, Ombudsman Act ] The annual report usually covers: § A review of the past year’s work by the Ombudsman and any changes in its policies and procedures; § A summary of cases and SORT matters investigated by the office during the reporting period; § A summary of all of the cases in which the subject governmental organization has either rejected the Ombudsman’s report or failed to take the action recommended by the Ombudsman (commonly referred as “recommendation denied” cases); and § A chart illustrating all of the cases where the Ombudsman’s recommendations have not been implemented. The report and its charts are also published on the Ombudsman website. The Ombudsman also publishes special reports from time to time about its SORT projects, eg. “Caught in the Act” re: the G 20.