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Brief in support of a provincial Ombudsman

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The B.C. Human Rights Council has proposed that the provincial Government appoint an Ombudsman for the province. The B.C. Civil Liberties Association agrees that an Ombudsman could effectively resolve many of the problems that confront an individual citizen who believes he has been treated unfairly by a government official or agency. We therefore support the proposal of the Human Rights Council. We do believe, however, that the Council’s proposed Ombudsman legislation should he changed in two respects to assure greater effectiveness.

The Ombudsman statute proposed by the Human Rights Council is an exact copy of the New Brunswick Ombudsman Bill (passed May 19, 1967). That legislation was in turn greatly influenced by the New Zealand Ombudsman Act. In essence, the proposed Act creates an Ombudsman, to hold office for ten years, who “may investigate the administration by a department or agency or officer thereof of any law of British Columbia, whereby any person is aggrieved or, in the opinion of the Ombudsman may be aggrieved, either on a written petition made to him or on his own motion” [sec. 12(1)]. The proposed Act does not apply to courts or the provincial cabinet, and its application to municipal agencies is questionable. The Ombudsman has the power to investigate, to criticize and to recommend corrections of administrative errors on a very broad scale; he does not have the power to reverse administrative decisions or to prosecute for maladministration. If his recommendations are not followed, he has the further power to publicize his findings and recommendations to the Cabinet and to the Legislative Assembly.

Our Association believes the proposed Act is basically sound except in two areas:

  1. the procedure for appointing an ombudsman and
  2. an unjustifiable limitation imposed on the ombudsman’s jurisdiction. We therefore suggest that the relevant sections of the proposed Act be changed in line with the following recommendations:

 

1. Procedure to Appoint an Ombudsman

An essential feature of an ombudsman is his independence. He must be independent from the Provincial powers that be so that he can objectively investigate and criticize them when necessary. He must be seen by the public as independent or the public will not use his office as a channel for their grievances. We do not believe an ombudsman would be independent or be seen to be independent if he were merely “appointed by the Lieutenant Governor in Council or the recommendation of the Legislative Assembly”, as originally proposed by the Human Rights Council. Stronger provisions are needed to assure the Ombudsman’s independence from the provincial executive and legislative leaders. We suggest that an Ombudsman be chosen in the following manner:

  1. Candidates for the position of Ombudsman should be selected by a non-legislative commission under the chairmanship of the Chief Justice of the B.C. Court of Appeal. and including:
    1. the provincial Attorney-General, and
    2. a President of a B.C. University, and
    3. one Appointee of each of the following groups or persons:
      1. B.C. Law Society
      2. Provincial Premier
      3. Leader (or Leaders) of the opposition party (or parties) represented in the Legislative Assembly. (If more than one party is represented. The appointee would have to be a joint appointee of all opposition parties.)
  2. From among the candidates thus selected, the Lieutenant-Governor in Council shall nominate an Ombudsman.
  3. The nominee shall be appointed by resolution of two-thirds of the Legislative Assembly.

2. Jurisdiction of the Ombudsman

The bill originally proposed by the Human Rights Council limits the jurisdiction of an ombudsman by prohibiting him from investigating any decision under an act which contains a right of appeal or review, “whether or not” that right has been exercised or the time limit on its use has expired [sec. 12(2)(a) of the proposed Act].

This section is clearly interpreted by the ombudsman in New Brunswick as meaning “the Ombudsman shall hot investigate if the Act complained against has a right of appeal or review” (see p. 23, B.C. Human Rights Council Report on the Ombudsman).

This provision is inequitable in that it prohibits the Ombudsman from investigating numbers of Complaints which may deserve recognition and correction. This section does not let him decide if the appeal process under the Act is an effective one. As long as the Act contains a right to Appeal—no matter how imaginary or ineffective that right may be in practice—the Ombudsman is cut off from any contact with the complaint.

In B.C., those who propose an ombudsman often indicate that the plan is an excellent one for channelling the grievance of welfare recipients. Yet the Social Welfare Regulations set out a clear right of appeal and the procedure to be followed. Under the proposed bill, complaints involving social welfare would be confined, as now, to procedures under the Social Welfare Act and the Ombudsman would be powerless to help.

The Ombudsman should have the power to investigate complaints that, in his opinion, have been inadequately handled by the appeal procedures under existing statutes. Where time limits under existing appeal procedures have run out, the Ombudsman should have the power to investigate a complaint if lie believes the delay in complaining is justifiable. Therefore, we suggest that sec. 12 (2)(a) of the proposed bill be changed to read as follows:

12(2) Notwithstanding subsection (1), the Ombudsman shall not investigate (a) any decision, recommendation, act or omission in respect of which there is under any Act a right of appeal or objection or a right to apply for a review on the merits of the case to any court or to any tribunal constituted by or under any Act, until after that right of appeal or objection or application has been exercised in the particular case, or until after the time prescribed for the exercise of that right has expired:

With the inclusion of the above recommendations, we support the following act to establish an Ombudsman for the Province of British Columbia:

 

AN OMBUDSMAN ACT for the
PROVINCE OF BRITISH COLUMBIA
Her Majesty, by and with the advice and consent of the Legislative Assembly of British Columbia, enacts as follows:

1. In this Act,
(a) “department or agency” means any department, agency or organization of the Government of the Province;
(b) “Minister” means a member of the Executive Council; and
(c) “officer” means any official, employee or member of a department or agency.

2. (1) Notwithstanding the Human Rights Act, there is to be an Ombudsman of the Province of British Columbia. He shall be appointed in the following manner:
(a) Candidates for the position of Ombudsman shall be selected by a non-legislative commission under the chairmanship of the Chief Justice of the B.C. Court of Appeal, and including
(1) the provincial Attorney-General, and
(2) a President of a B.C. University, and
(3) one Appointee of each of the following groups or persons:
a. B.C. Law Society
b. Provincial Premier
c. Leader (or Leaders) of the opposition party (or parties) represented in the Legislative Assembly. (If more than one party is represented, the appointee shall be a joint appointee of all opposition parties.)
(b) From among the candidates thus selected, the Lieutenant-Governor in Council shall nominate an Ombudsman.
(c) The nominee shall be appointed by resolution of two-thirds of the Legislative Assembly.

(Note: The proposed act originally read:

2. (1) Notwithstanding the Human Rights Act, there is to be an Ombudsman appointed by the Lieutenant-Governor in Council on the recommendation of the Legislative Assembly.)

(2) Unless his office sooner becomes vacant, the Ombudsman is to hold office for ten years.
(a) from the date of his appointment under subsection (1); or
(b) from the date of his appointment under section 4; and if otherwise qualified, is eligible to be reappointed.
(3) The Ombudsman may resign his office by notice in writing addressed to the Speaker of the Legislative Assembly, or, if there is no Speaker or if the Speaker is absent from British Columbia, to the Clerk of the Legislative Assembly.
(4) The Ombudsman is to receive the same salary and pension as a Judge of the Supreme Court of British Columbia.

3. (1) On the recommendation of the Legislative Assembly, the Lieutenant-Governor in Council may remove or suspend the Ombudsman from his office for cause or incapacity due to illness or any other cause.
(2) When the Legislative Assembly is not in session, a Judge of the Supreme Court of British Columbia may suspend the Ombudsman from his office for cause or incapacity due to illness or any other cause upon an application by the Lieutenant-Governor in Council.
(3) Where the Lieutenant-Governor in Council makes an application under subsection (2) the practice and procedure of the Supreme Court of British Columbia respecting applications applies.
(4) Where a Judge of the Supreme Court of British Columbia suspends the Ombudsman under subsection (2) that Judge
(a) shall appoint an acting Ombudsman to hold office until the suspension has been dealt with by the Legislative Assembly; and
(b) shall table a report of the suspension within ten days following the commencement of the next ensuing session of the Legislative Assembly.
(5) A suspension under subsection (2) is not to continue beyond the end of the next ensuing session of the Legislative Assembly.

4. (1) Where the Ombudsman dies, retires, resigns or is removed from office, the vacancy is to be filled in accordance with subsection (2) and (3).
(2) Where
(a) the office of Ombudsman becomes vacant when the Legislative Assembly is in session but no recommendation is made by the Legislative Assembly before the close of that session, or
(b) the office of Ombudsman becomes vacant when the Legislative Assembly is not in session;
the Lieutenant-Governor in Council may appoint an Ombudsman to hold office, unless his office sooner becomes vacant, until his appointment is confirmed by the Legislative Assembly in accordance with subsection (3).
(3) Where an appointment under subsection (2) is not confirmed within 30 days of the next ensuing session of the Legislative Assembly, the appointment terminates and the office of Ombudsman is vacant.

5. The Ombudsman may not be a member of the Legislative Assembly and shall not hold any office of trust or profit, other than his office as Ombudsman, or engage in any occupation for reward outside the duties of his office without prior approval in each particular cage by the Legislative Assembly or the Lieutenant-Governor in Council when the Legislative Assembly is not in session.

6. (1) Before entering upon the exercise of the duties of his office the Ombudsman shall take an oath that he will faithfully and impartially perform the duties of his office and will not divulge any information received by him under this act except for the purpose of giving effect to this Act.
(2) The Speaker of the Clerk of the Legislative Assembly shall administer the oath referred to in subsection (1).

7. Notwithstanding section 6, the Ombudsman may disclose in a report made by him under this Act any matters which in his opinion are necessary to disclose in order to establish grounds for his conclusions and recommendations.

8. (1) The Ombudsman may appoint such assistants and employees as he deems necessary for the efficient tarrying out of his functions under this Act.
(2) Before performing any official duty under this Act a person appointed under subsection (1) shall take an oath, to be administered by the Ombudsman, that he will not divulge any information received by him under this Act, except for the purpose of giving effect to this Act.

9. (1) The Ombudsman, by writing under his signature, may delegate to any person any of his powers under this Act except the power of delegation and the power to make a report under this Act.
(2) A person purporting to exercise power of the Ombudsman by virtue of a delegation under subsection (1) shall produce evidence of his authority to exercise that power when required to do so.

10. For the purposes of this Act, the Ombudsman is a Commissioner under the Public Inquiries Act.

11. This Act does not apply
(a) to Judges and functions of any court of British Columbia; and
(b) to deliberations and proceedings of the Executive Council or any committee thereof.

12. (1) Subject to subsection (2), the Ombudsman may investigate the administration by a department or agency or officer thereof of any law of British Columbia, whereby any person is aggrieved or, in the opinion of the Ombudsman may be aggrieved, either on a written petition made to him or on his own motion.
(2) Notwithstanding subsection (1), the Ombudsman shall not investigate
(a) any decision, recommendation, act or omission in respect of which there is under any Act a right of appeal or objection or a right to apply for a review on the merits of the case to any court or to any tribunal constituted by or under any Act, until after that right of appeal or objection or application has been exercised in the particular case or until after the time prescribed for the exercise of that right has expired; and

(Note: The proposed Act originally used the words “whether or not,” where we have inserted the words “until after.”)

(b) any decision, recommendations, act or omission of any person acting as a solicitor for the Crown or acting as counsel for the Crown in relation to any proceeding.
(3) Where a question arises as to the jurisdiction of the Ombudsman to investigate a grievance under this Act, he may apply to the Supreme Court of British Columbia for a Declaratory Order determining the question.

13. (1) A person may apply by written petition to the Ombudsman to investigate a grievance.
(2) Notwithstanding sections 15, 21 and 22, a committee of the Legislative Assembly may refer any petition that is before the committee for consideration or any matter relating to such petition to the Ombudsman for investigation and report.
(3) Notwithstanding sections 15, 21 and 22, where a matter has been referred to the Ombudsman under subsection (2), the Ombudsman, subject to any special directions of the committee, shall investigate the matter as far as it is within his jurisdiction and shall make such report to the committee as he thinks fit.
(4) Notwithstanding any Act, where a letter written by a person in custody on a charge or after conviction of any offence or by any inmate of any private sanatorium or mental hospital is addressed to the Ombudsman, it shall be forwarded immediately, unopened, to the Ombudsman by the person for the time being in charge of the place or institution where the writer of the letter is detained or of which he is an inmate.

14. Notwithstanding any other Act providing that a decision, recommendation, act or omission is final or that no appeal lies in respect thereof or that no proceeding, decision, recommendation, act or omission of a department or agency or officer thereof is to be challenged, reviewed, quashed or called in question, the Ombudsman may exercise the powers of his office.

15. (1) The Ombudsman, in his discretion, may refuse to investigate or may cease to investigate a grievance if
(a) an adequate remedy or right of appeal already exists whether or not the petitioner has availed himself of the remedy or right of appeal; or
(b) it is trivial, frivolous, vexatious or not made in good faith; or
(c) having regard to all the circumstances of the cage, further investigationis unnecessary; or
(d) it relates to any decision, recommendation, act or omission which the petitioner has had knowledge of for more than one year before petitioning; or
(e) the petitioner does not have a sufficient personal interest in the subject of the grievance; or
(f) upon a balance of convenience between the public interest or the person aggrieved the Ombudsman is of the opinion that the grievance should not be investigated.
(2) Where the Ombudsman decides not to investigate or to cease to investigate a grievance he shall Inform the petitioner and any other interested person of his decision and may state his reasons therefor.

16. Before investigating a grievance the ombudsman shall inform the deputy minister or the administrative head of the department or agency administering the law of British Columbia whereby any person is aggrieved or, in his opinion, may be aggrieved, of his intention to investigate.

17. (1) Every investigation under this Act is to be conducted in private.
(2) Subject to this Act, the Ombudsman may hear or obtain information from any person and may make inquiries.
(3) The Ombudsman may hold hearings under this Act but, subject to subsection (4), no person is entitled as of right to be heard by the Ombudsman.
(4) Where during an investigation the Ombudsman is satisfied that there is prima facie evidence that a department or agency or officer thereof administered a law of British Columbia so as to cause a grievance or to give cause for a grievance he shall so advise the deputy minister or the administrative head of the department or agency and officer thereof and shall give them an opportunity to be heard.
(5) Where a department or agency or officer thereof appears at a hearing under subsection (4) they are entitled to counsel.
(6) The Ombudsman may at any time or after an investigation consult any Minister who is concerned in the matter of the investigation.
(7) On the request of any Minister in relation to an investigation or in any case where an investigation relates to a recommendation made to a Minister, the Ombudsman shall consult that Minister after making the investigation and before forming a final opinion on any matter referred to in subsection (1) of section 21.
(8) Where during or after an investigation the Ombudsman is of the opinion that there is evidence of a breach of duty or misconduct by a department or agency or officer thereof, he shall refer the matter to the deputy minister or the administrative head of the department or agency.
(9) Subject to this Act and any rules made under section 26, the Ombudsman may regulate his procedure.

18. (1) Subject to subsections (2), (3), (4), (5), (6) and (7) and section 19, where the Ombudsman requests a person who in the opinion of the Ombudsman is able to furnish Information relating to a matter being investigated by the Ombudsman to furnish such information, that person shall furnish that information, and produce any documents or papers that in the opinion of the Ombudsman relate to the matter and that may be in the possession or under the control of that person whether or not that person is an officer of a department or agency. and whether or not the documents and papers are in the custody or under the control of that depart mentor agency.
(2) The Ombudsman may summon before him and examine on oath
(a) any officer of a department or agency who in his opinion is able to give any information referred to in subsection (1);
(b) any petitioner; and
(c) with the approval of the Attorney General, any other person who in the opinion of the Ombudsman is able to give any information referred to in subsection (1).
(3) The oath referred to in subsection (2) is to be administered by the Ombudsman.
(4) Subject to subsection (5), where a pardon is bound by an Act to maintain secrecy in relation to, or not to disclose any matter. the Ombudsman shall not require that person to supply any information or to answer any question in relation to that matter or to produce any document or paper relating to the matter which would be in breach of the obligation of society or non-disclosure.
(5) With the prior consent in writing of the petitioner the Ombudsman may require a person to whom subsection (4) applies to supply information or answer questions or produce documents or papers relating only to the petitioner and that person shall do so.
(6) The rules for taking evidence in the Supreme Court of British Columbia apply to evidence given by a person required to give information, answer questions and produce documents or papers under this Act.
(7) Any person required to attend a hearing under this Act is entitled to the same fees, allowances and expenses as if he were a witness in the Supreme Court of British Columbia.
(8) Except on the trial of a person for perjury, evidence given by any person in proceedings before the Ombudsman and evidence of any proceeding before the Ombudsman is not admissible against any person in any court or in any proceedings of a judicial nature.
(9) No person is liable for an offence against any Act by reason of his compliance with any requirement of the Ombudsman under this Act.

19. (1) Where the Attorney General certifies that the giving of any information or the answering of any question or the production of any document or paper may disclose
(a) deliberations of the Executive Council; or
(b) proceedings of the Executive Council or 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 the document or paper produced, but shall report the giving of such certificate to the Legislative Assembly.
(2) Subject to subsection (1), a rule of law that authorizes or requires the withholding of any document, paper or thing, or the refusal to answer any question on the ground that the disclosure of the document, paper or thing, 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.

20. (1) For the purposes of this Act the Ombudsman may enter upon any premises occupied by any department or agency and, subject to sections 18 and 19, carry out any Investigation within his jurisdiction.
(2) Before entering any premises under subsection (1) the Ombudsman shall notify the deputy minister or administrative head of the department or agency of his intention.

21. (1) Where upon investigation the Ombudsman is of the opinion that a grievance exists or may exist because a department or agency or officer thereof administered or is administering a law of British Columbia.
(a) unreasonably, unjustly, oppressively or in a discriminatory er, or pursuant to a rule of law, enactment or practice that so results; or
(b) under mistake of law or fact, in whole or in part; or
(c) wrongly; or
(d) contrary to law; or
(e) by using a discretionary power for an improper purpose, or on irrelevant grounds, or by taking irrelevant considerations into account, or by failing to give reasons for the use of a discretionary power when reasons should have been given;
and if the Ombudsman is of the opinion that
(f) the grievance should be referred to the department or agency or officer thereof for further consideration; or
(g) an omission should be rectified; or
(h) a decision should he cancelled or rectified; or
(i) a practice by reason of which the grievance arose or may arise maybe altered; or
(j) a law by reason of which the grievance arose or may arise should be reconsidered; or
(k) reasons should be given for the use of a discretionary power; or
(l) other steps should be taken as he may advise;
the Ombudsman shall report his opinion, his reasons therefor and any recommendation to the appropriate Minister or the deputy minister or administrative head of the department or agency concerned.
(2) Where the Ombudsman makes a recommendation under subsection (1) he may request the department or agency to notify him within a specified time of the steps it proposes to give effect to his recommendations.
(3) Where, after the time stated under subsection (2), the department or agency does not act upon the recommendation of the Ombudsman, refuses to act thereon, or acts in a manner unsatisfactory to the Ombudsman, the Ombudsman may send a copy of his report and recommendation to the Lieutenant-Governor in Council and may thereafter make a report to the Legislative Assembly.
(4) The Ombudsman shall include with any report made under subsection (3) a copy of any comment made by the department or agency upon his opinion or recommendation.
(5) In any report made by him under this Act the Ombudsman shall not make any finding or comment that is adverse to any person unless he gives that person an opportunity to be heard.

22. (1) Where the ombudsman makes a recommendation under subsection (1) of section 21 and the department or agency does not act upon such recommendation to his satisfaction . the Ombudsman shall inform the petitioner of his recommendation and may add any content.
(2) The Ombudsman shall in any case inform the petitioner in the manner and time he deems proper of the result of the investigation.

23. No proceeding of the Ombudsman is void for want of form and, except on the grounds of lack of jurisdiction, no proceedings or decisions of the Ombudsman are to be challenged, reviewed, quashed or called in question in any court.

24. (1) No proceedings lie against the Ombudsman or against any person holding any office or appointment under, the Ombudsman for anything he may do or report or say in the course of the exercise or intended exercise of his functions under this Act, unless it is shown he acted in bad faith.
(2) The Ombudsman and any person holding any office or appointment under the Ombudsman 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 knowledge in the exercise of his functions under this Act.

25. (1) The ombudsman shall report annually to the Legislative Assembly on the exercise of his functions under this Act.
(2) The Ombudsman, in the public interest or in the interests of a person, department or agency, may publish reports relating generally to the exercise of his functions under this Act or to any particular case investigated by him, whether or not the matters to be dealt with in the report have been the subject of a report made to the Legislative Assembly under this Act.

26. The Legislative Assembly may make general rules for the guidance of the Ombudsman in the exercise of his functions under this Act.

27. Every person who
(a) without lawful jurisdiction or excuse wilfully obstructs, hinders or resists the Ombudsman or any other person in the exercise of his functions under this Act;
(b) without lawful justification or excuse refuses or wilfully fails to comply with any lawful requirements of the Ombudsman or any other person under this Act; or
(c) wilfully makes any false statement to or misleads or attempts to mislead the Ombudsman or any other person in the exercise of his functions under this Act;
is guilty of an offence and on summary conviction is liable to a penalty not exceeding $500.00 and in default of payment thereof to imprisonment for a term of not more than 90 days.

28. This Act does not affect, abrogate, abridge or infringe or authorize the abrogation, abridgement or infringement of any substantive or procedural right or remedy existing elsewhere or otherwise than in this Act.

29. This Act or any section thereof comes into force on a day to be fixed by proclamation.