CASUAL LEGAL: So You’ve Just Received a Call from the Ombudsman’s Office

So You’ve Just Received a Call from the Ombudsman’s Office

By Carol M. Zukiwski

Reynolds Mirth Richards Farmer LLP

AMSC Casual Legal Service Provider

The role of the Provincial Ombudsman has been expanded to include investigating complaints against municipalities. The Ombudsman assumed this responsibility as of April 1, 2018.

The Ombudsman’s scope of authority is set out in the Ombudsman Act fairly broadly. The Ombudsman has authority under section 12 of the Ombudsman Act, to investigate any decision or recommendation made, including any act done or omitted, relating to a matter of administration and affecting any person or body of persons by a municipality, or by any officer or employee. Section 12(3) further provides that the Ombudsman’s powers and duties apply despite any provisions in the MGA that a decision is final.

The Ombudsman does have authority to decline to investigate a complaint in certain circumstances. The Ombudsman can decline to investigate:

1. while an appeal process to the Court is underway;
2. if the decision under complaint was made more than 12 months before the complaint was received by the Ombudsman;
3. if the subject matter of the complaint is trivial, frivolous or vexatious, or not made in good faith; or
4. if the complainant does not have a sufficient personal interest in the subject matter of the complaint.

If the Ombudsman accepts the complaint and begins an investigation, the CAO will be contacted and advised of the complaint. During an investigation, the Ombudsman Act provides that the investigation shall be conducted in private. The Ombudsman has a wide scope to investigate and obtain information from any persons that the Ombudsman thinks fit. The Ombudsman has the power to compel production of documents and to require any person who is an officer or employee of the municipality to appear before the Ombudsman to be questioned under oath.

During the investigation, the Ombudsman is looking to determine whether the decision, act or omission of the municipality:

1. appears to have been contrary to law,
2. was unreasonable, unjust, oppressive or improperly discriminatory,
3. was based wholly or partly on a mistake of law or fact;
4. was wrong;
5. exercised discretion for an improper purpose or irrelevant grounds;
6. exercised discretion by taking into account irrelevant considerations; or
7. that in the case of an exercise of discretionary power, reasons should have been given for the decision.

After concluding an investigation, the Ombudsman has a wide range of options, including referring the matter for further consideration, or requiring reasons for the decision. The Ombudsman’s direction is provided to the complainant, the municipality and the Minister of Municipal Affairs. The Ombudsman is primarily concerned about ensuring that the municipality followed a fair process for making the decision under complaint.

Note from AUMA: For additional information, visit AUMA’s MGA Change Management Webpage for a series of articles on the relationship between Municipalities and the Ombudsman.

To access AMSC’s Casual Legal Helpline, AUMA members can call toll-free to 1-800-661-7673 or email casuallegal [at] amsc.ca (casuallegal[at]amsc[dot]ca) and reach the municipal legal experts at Reynolds Mirth Richards and Farmer LLP. For more information on the Casual Legal Service, please contact Will Burtenshaw, Senior Director, Risk & Claims, at 780-431-4525, or toll-free at 310-AUMA (2862) or via email at wburtenshaw [at] auma.ca (wburtenshaw[at]auma[dot]ca). Any Regular or Associate member of the AUMA 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.