Casual Legal: Municipalities & the Ombudsman

By Shauna Finlay
Reynolds Mirth Richards Farmer LLP
Alberta Municipalities Casual Legal Service Provider

The Ombudsman Act was amended in 2018 to also apply to municipalities. Since then, the Alberta Ombudsman has worked on a number of cases involving municipalities.

The Ombudsman does not make legal findings or determine if a municipality is responsible for damages. Instead, the Ombudsman reviews circumstances to determine if a citizen or party has been treated fairly. Often a complaint is resolved by discussing what could have been done differently and, sometimes, asking the municipality to address any unfairness the Ombudsman finds, such as the provision of reasons for a particular decision.

The Ombudsman has released guidelines on what is considered when they assess whether, in a particular situation, a party has been dealt with fairly. These guidelines are as follows:

• Legislative authority. What does the legislation say about who and how a decision must be made?
• Duty of Fairness. Was the decision made in a manner that is consistent with a fair process?
• Participation rights. Was there an opportunity for a party to be heard before a decision was made and was there adequate disclosure of the case against a person before the opportunity to be heard?
• Adequate reasons. Did the person who made the decision provide reasons for their decision that drew a rational connection between what the decision-maker heard and what they decided – including reference to applicable legislation, regulations or policies.
• Reasonable apprehension of bias. Was the person who made the decision impartial and independent of the parties that were before them?
• Legitimate expectation. Did the decision-maker fail to honour a commitment or follow regular procedures?
• Exercising discretionary power. If discretionary power was used, was it exercised in good faith? This means it is exercised without malice, for a proper purpose (consistent with the legislation) and for relevant considerations.
• Reasonability of the decision. This fairness requirement means that the decision must be rationally connected to what the decision-maker heard or had before them in making their decision. Further, the conclusions the decision-maker arrived at must be able to be drawn from what was argued and placed before them. 

When making a decision, these guidelines are helpful to consider even before there is a complaint and serve as a good guide to ensuring a municipality’s decision-making process is fair. More on the Ombudsman and municipalities can be found in the report entitled “Building Relationships with Albertans – Municipality Report” found on the Ombudsman website.

To access Alberta Municipalities Casual Legal Helpline, Alberta Municipalities members can call toll-free to 1-800-661-7673 or send an casuallegal [at] abmunis.ca (email) to reach the municipal legal experts at Reynolds Mirth Richards and Farmer LLP. For more information on the Casual Legal Service, please call 310-MUNI (6864) or send an riskcontrol [at] abmunis.ca (email) to speak to Alberta Municipalities Risk Management staff. Any Regular or Associate member of Alberta Municipalities can access the Casual Legal Service.

DISCLAIMER: This article is meant to provide information only and is not intended to provide legal advice. You should seek the advice of legal counsel to address your specific set of circumstances. Although every effort has been made to provide current and accurate information, changes to the law may cause the information in this article to be outdated.