Ombudsman Act, R.S.O. 1990, c. O.6

Citation:	Ombudsman Act, R.S.O. 1990, c. O.6
Information about this text:	Consolidation: Amended to: 1996, c. 6, ss. 4, 5; 1999, c. 5, s. 4.
Enabled Regulation:	GENERAL RULES, R.R.O. 1990, Reg. 865
URL:	http://www.canlii.org/on/laws/sta/o-6/20030327/whole.html
Version downloaded by CanLII on 2003-03-27

Warning: This document predates the last update of the collection. It might have been modified or omitted since this last update.

Ombudsman Act

R.S.O. 1990, CHAPTER O.6

Notice of Currency:* This document is up to date.

*This notice is usually current to within two business days of accessing this document. For more current amendment information, see the Table of Public Statutes (Legislative History).

Amended to: 1996, c. 6, ss. 4, 5; 1999, c. 5, s. 4.

Definitions

1. In this Act,

"governmental organization" means a Ministry, commission, board or other administrative unit of the Government of Ontario, and includes any agency thereof; ("organisation gouvernementale")

"minister" means a member of the Executive Council. ("ministre") R.S.O. 1990, c. O.6, s. 1.

Ombudsman

2. There shall be appointed, as an officer of the Legislature, an Ombudsman to exercise the powers and perform the duties prescribed by this Act. R.S.O. 1990, c. O.6, s. 2.

Appointment

3. The Ombudsman shall be appointed by the Lieutenant Governor in Council on the address of the Assembly. R.S.O. 1990, c. O.6, s. 3.

Term of office and removal

4. (1) Subject to subsection (2), the Ombudsman shall hold office for a term of five years and may be reappointed for a further term or terms, but is removable at any time for cause by the Lieutenant Governor in Council on the address of the Assembly. R.S.O. 1990, c. O.6, s. 4 (1); 1999, c. 5, s. 4 (1).

Note: The term of office of the person who holds the office of Ombudsman on October 28, 1999 is determined in accordance with this Act as it read immediately before October 28, 1999. See: 1999, c. 5, s. 4 (2).

Retirement

(2) The Ombudsman shall retire upon attaining the age of sixty-five years but, where the Ombudsman attains the age of sixty-five years before having served five years in office, he or she shall retire upon serving five years in office. R.S.O. 1990, c. O.6, s. 4 (2).

Nature of employment

5. (1) The Ombudsman shall devote himself or herself exclusively to the duties of the Ombudsman's office and shall not hold any other office under the Crown or engage in any other employment. R.S.O. 1990, c. O.6, s. 5 (1).

Non-application

(2) The Public Service Act does not apply to the Ombudsman. 1996, c. 6, s. 4.

Salary

6. (1) The Ombudsman shall be paid a salary to be fixed by the Lieutenant Governor in Council.

Idem

(2) The salary of the Ombudsman shall not be reduced except on address of the Assembly.

Expenses

(3) The Ombudsman is entitled to be paid reasonable travelling and living expenses while absent from his or her ordinary place of residence in the exercise of the Ombudsman's functions under this Act. R.S.O. 1990, c. O.6, s. 6 (1-3).

Pension

(4) The Ombudsman is a member of the Public Service Pension Plan. 1996, c. 6, s. 5.

Temporary Ombudsman

7. In the event of the death or resignation of the Ombudsman while the Legislature is not in session or if the Ombudsman is unable or neglects to perform the functions of his or her office, the Lieutenant Governor in Council may appoint a temporary Ombudsman, to hold office for a term of not more than six months, who shall, while in such office, have the powers and duties and perform the functions of the Ombudsman and shall be paid such salary or other remuneration and expenses as the Lieutenant Governor in Council may fix. R.S.O. 1990, c. O.6, s. 7.

Employees

8. (1) Subject to the approval of the Lieutenant Governor in Council, the Ombudsman may employ such employees as the Ombudsman considers necessary for the efficient operation of his or her office and may determine their salary and remuneration and terms and conditions of employment.

Benefits

(2) The employee benefits applicable from time to time to the public servants of Ontario with respect to,

(a) cumulative vacation and sick leave credits for regular attendance and payments in respect of such credits;

(b) plans for group life insurance, medical-surgical insurance or long-term income protection; and

apply to the permanent and full-time employees of the Ombudsman and where such benefits are provided for in regulations made under the Public Service Act, the Ombudsman, or any person authorized in writing by him or her, may exercise the powers and duties of a Minister or Deputy Minister or of the Civil Service Commission under such regulations.

Employees' pension benefits

(3) The Ombudsman shall be deemed to have been designated by the Lieutenant Governor in Council under the Public Service Pension Act as an organization whose permanent and full-time probationary staff are required to be members of the Public Service Pension Plan. R.S.O. 1990, c. O.6, s. 8.

Premises and supplies

9. The Ombudsman may lease such premises and acquire such equipment and supplies as are necessary for the efficient operation of his or her office. R.S.O. 1990, c. O.6, s. 9.

Audit

10. The accounts and financial transactions of the office of the Ombudsman shall be audited annually by the Provincial Auditor. R.S.O. 1990, c. O.6, s. 10.

Annual report

11. The Ombudsman shall report annually upon the affairs of the Ombudsman's office to the Speaker of the Assembly who shall cause the report to be laid before the Assembly if it is in session or, if not, at the next session. R.S.O. 1990, c. O.6, s. 11.

Oath of office and secrecy

12. (1) Before commencing the duties of his or her office, the Ombudsman shall take an oath, to be administered by the Speaker of the Assembly, that he or she will faithfully and impartially exercise the functions of his or her office and that he or she will not, except in accordance with subsection (2), disclose any information received by him or her as Ombudsman.

Disclosure

(2) The Ombudsman may disclose in any report made by him or her under this Act such matters as in the Ombudsman's opinion ought to be disclosed in order to establish grounds for his or her conclusions and recommendations. R.S.O. 1990, c. O.6, s. 12.

Application of Act

13. This Act does not apply,

(a) to judges or to the functions of any court; or

(b) to deliberations and proceedings of the Executive Council or any committee thereof. R.S.O. 1990, c. O.6, s. 13.

Function of Ombudsman

14. (1) 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.

Investigation on complaint

(2) The Ombudsman may make any such investigation on a complaint made to him or her by any person affected or by any member of the Assembly to whom a complaint is made by any person affected, or of the Ombudsman's own motion.

Powers paramount

(3) 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.

Decisions not reviewable

(4) Nothing in this Act empowers the Ombudsman to investigate any decision, recommendation, act or omission,

(a) in respect of which 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;

(b) of any person acting as legal adviser to the Crown or acting as counsel to the Crown in relation to any proceedings.

Application to Divisional Court to determine jurisdiction

(5) 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. R.S.O. 1990, c. O.6, s. 14.

Guidance rules

15. (1) The Assembly may make general rules for the guidance of the Ombudsman in the exercise of his or her functions under this Act.

Idem

(2) All rules made under this section shall be deemed to be regulations within the meaning of the Regulations Act.

Procedures

(3) Subject to this Act and any rules made under this section, the Ombudsman may determine his or her procedures. R.S.O. 1990, c. O.6, s. 15.

Mode of complaint

16. (1) Every complaint to the Ombudsman shall be made in writing.

To be forwarded

(2) Despite any provision in any Act, where any letter written by,

(a) an inmate of any provincial correctional institution;

(b) a person held in a place of secure or open custody designated under subsection 24 (1) of the Young Offenders Act (Canada); or

is addressed to the Ombudsman it shall be immediately forwarded, unopened, to the Ombudsman by the person for the time being in charge of the institution, place of secure or open custody or facility. R.S.O. 1990, c. O.6, s. 16.

Ombudsman may refuse to investigate complaint

17. (1) If, in the course of the investigation of any complaint within his or her jurisdiction, it appears to the Ombudsman,

(a) that under the law or existing administrative practice there is an adequate remedy for the complainant, whether or not the complainant has availed himself, herself or itself of it; or

(b) that, having regard to all the circumstances of the case, any further investigation is unnecessary,

the Ombudsman may in his or her discretion refuse to investigate the matter further.

Idem

(2) Without limiting the generality of the powers conferred on the Ombudsman by this Act, the Ombudsman may in his or her discretion decide not to investigate, or, as the case may require, not to further investigate, any complaint if it relates to any decision, recommendation, act or omission of which the complainant has had knowledge for more than twelve months before the complaint is received by the Ombudsman, or, if in his or her opinion,

(a) the subject-matter of the complaint is trivial;

(b) the complaint is frivolous or vexatious or is not made in good faith; or

Complainant to be informed

(3) In any case where the Ombudsman decides not to investigate or further investigate a complaint, the Ombudsman shall inform the complainant in writing of that decision, and may if he or she thinks fit state the reasons therefor. R.S.O. 1990, c. O.6, s. 17.

Proceedings of Ombudsman

18. (1) Before investigating any matter, the Ombudsman shall inform the head of the governmental organization affected of his or her intention to make the investigation.

Investigation to be in private

(2) Every investigation by the Ombudsman under this Act shall be conducted in private.

Where hearing necessary

(3) The Ombudsman may hear or obtain information from such persons as he or she thinks fit, and may make such inquiries as he or she thinks fit and it is not necessary for the Ombudsman to hold any hearing and no person is entitled as of right to be heard by the Ombudsman, but, if at any time during the course of an investigation, it appears to the Ombudsman that there may be sufficient grounds for him or her to make any report or recommendation that may adversely affect any governmental organization or person, the Ombudsman shall give to that organization or person an opportunity to make representations respecting the adverse report or recommendation, either personally or by counsel.

May consult minister

(4) The Ombudsman may in his or her discretion, at any time during or after any investigation, consult any minister who is concerned in the matter of the investigation.

Must consult minister

(5) On the request of any minister in relation to any investigation, or in any case where any investigation relates to any recommendation made to a minister, the Ombudsman shall consult that minister after making the investigation and before forming a final opinion on any of the matters referred to in subsection 21 (1) or (2).

Breach of duty or misconduct

(6) If, during or after an investigation, the Ombudsman is of opinion that there is evidence of a breach of duty or of misconduct on the part of any officer or employee of any governmental organization, the Ombudsman may refer the matter to the appropriate authority. R.S.O. 1990, c. O.6, s. 18.

Evidence

19. (1) The Ombudsman may from time to time require any officer, employee or member of any governmental organization who in his or her opinion is able to give any information relating to any matter that is being investigated by the Ombudsman to furnish to him or her any such information, and to produce any documents or things which in the Ombudsman's opinion relate to any such matter and which may be in the possession or under the control of that person.

Examination under oath

(2) The Ombudsman may summon before him or her and examine on oath,

(a) any complainant;

(b) any person who is an officer or employee or member of any governmental organization and who, in the Ombudsman's opinion, is able to give any information mentioned in subsection (1); or

and for that purpose may administer an oath.

Secrecy

(3) Subject to subsection (4), no person who is bound by the provisions of any Act, other than the Public Service Act, to maintain secrecy in relation to, or not to disclose, any matter shall be required to supply any information to or answer any question put by the Ombudsman in relation to that matter, or to produce to the Ombudsman any document or thing relating to it, if compliance with that requirement would be in breach of the obligation of secrecy or non-disclosure.

Idem

(4) With the previous consent in writing of any complainant, any person to whom subsection (3) applies may be required by the Ombudsman to supply information or answer any question or produce any document or thing relating only to the complainant, and it is the duty of the person to comply with that requirement.

Privileges

(5) 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.

Protection

(6) 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.

Right to object to answer

(7) 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.

Prosecution

(8) 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.

Fees

(9) Where any person is required by the Ombudsman to attend before him or her for the purposes of this section, the person is entitled to the same fees, allowances, and expenses as if he or she were a witness in the Ontario Court (General Division), and the provisions of any Act, regulation or rule in that behalf apply accordingly. R.S.O. 1990, c. O.6, s. 19.

Disclosure of certain matters not to be required

20. (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 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.

Idem

(2) Subject to subsection (1), 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. R.S.O. 1990, c. O.6, s. 20.

Procedure after investigation

21. (1) This section applies in every case where, after making an investigation under this Act, 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;

(d) was wrong.

Idem

(2) This section also applies in any case where the Ombudsman is of opinion that in the making of the decision or recommendation, or in the doing or omission of the act, 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.

Ombudsman's report and recommendations

(3) If in any case to which this section applies the Ombudsman is of opinion,

(a) that the matter should be referred to the appropriate authority for further consideration;

(b) that the omission should be rectified;

(d) that any practice on which the decision, recommendation, act or omission was based should be altered;

(e) that any law on which the decision, recommendation, act or omission was based should be reconsidered;

(f) that reasons should have been given for the decision or recommendation; or

(g) that any other steps should be taken,

the Ombudsman shall report his or her opinion, and the reasons therefor, to the appropriate governmental organization, and may make such recommendations as he or she thinks fit and 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.

Where no appropriate action taken

(4) If within a reasonable time after the report is made no action is taken which seems to the Ombudsman to be adequate and appropriate, the Ombudsman, in his or her discretion, after considering the comments, if any, made by or on behalf of any governmental organization affected, may send a copy of the report and recommendations to the Premier, and may thereafter make such report to the Assembly on the matter as he or she thinks fit.

Idem

(5) The Ombudsman shall attach to every report sent or made under subsection (4) a copy of any comments made by or on behalf of the governmental organization affected. R.S.O. 1990, c. O.6, s. 21.

Complainant to be informed of result of investigation

22. (1) Where, on any investigation following a complaint, the Ombudsman makes a recommendation under subsection 21 (3), and no action which seems to the Ombudsman to be adequate and appropriate is taken thereon within a reasonable time, the Ombudsman shall inform the complainant of his or her recommendation, and may make such comments on the matter as he or she thinks fit.

Idem

(2) 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. R.S.O. 1990, c. O.6, s. 22.

Proceedings not to be questioned or to be subject to review

23. 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. R.S.O. 1990, c. O.6, s. 23.

Proceedings privileged

24. (1) 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.

Idem

(2) 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.

Idem

(3) 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. R.S.O. 1990, c. O.6, s. 24.

Power of entry of premises

25. (1) For the purposes of this Act, 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.

Notice of entry

(2) Before entering any premises under subsection (1), the Ombudsman shall notify the head of the governmental organization occupying the premises of his or her purpose.

Notice to desist

(3) 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.

Order of judge

(4) 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 Ontario Court (General Division) 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. R.S.O. 1990, c. O.6, s. 25.

Delegation of powers

26. (1) The Ombudsman may in writing delegate to any person holding any office under him or her any of the Ombudsman's powers under this Act except the power of delegation under this section and the power to make a report under this Act.

Delegation is revocable

(2) Every delegation under this section is revocable at will and no such delegation prevents the exercise by the Ombudsman of any power so delegated.

Restrictions and conditions

(3) Every such delegation may be made subject to such restrictions and conditions as the Ombudsman thinks fit.

Continuing effect of delegation

(4) In the event that the Ombudsman by whom any such delegation is made ceases to hold office, the delegation continues in effect so long as the delegate continues in office or until revoked by a succeeding Ombudsman.

Evidence of obligation

(5) Any person purporting to exercise any power of the Ombudsman by virtue of a delegation under this section shall, when required so to do, produce evidence of his or her authority to exercise the power. R.S.O. 1990, c. O.6, s. 26.

Offences and penalties

27. Every person who,

(a) without lawful justification or excuse, wilfully obstructs, hinders or resists the Ombudsman or any other person in the performance of his or her functions under this Act; or

(b) without lawful justification or excuse, refuses or wilfully fails to comply with any lawful requirement 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 or her functions under this Act,

is guilty of an offence and liable on conviction to a fine of not more than $500 or to imprisonment for a term of not more than three months, or to both. R.S.O. 1990, c. O.6, s. 27.

Rights under Act do not affect other rights, etc.

28. The provisions of this Act are in addition to the provisions of any other Act or rule of law under which any remedy or right of appeal or objection is provided for any person, or any procedure is provided for the inquiry into or investigation of any matter, and nothing in this Act limits or affects any such remedy or right of appeal or objection or procedure. R.S.O. 1990, c. O.6, s. 28.