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The Ombudsman: A Little Bit Country (Sweden) and a Little Bit Rock and Roll (Or Not)

When most lawyers think of administrative law, we think of administrative decision makers and tribunals, or the judicial review process. However, there is an adjunct to the administrative law process that is not technically an administrative tribunal or traditional decision-making body, yet which shares many of the concerns of administrative law. This is the Ombudsman, an administrative agency that may seem obscure to or misunderstood by some.

The Ombudsman is often a place of last resort for citizens who have exhausted all decision making remedies or for whom there is no administrative or legal process that can address their concerns in relation to the processes and decisions of a governmental body. The Ombudsman is not an adjudicative body in the traditional sense and does not make merit decisions regarding a party’s entitlement to governmental benefits or entitlements. It is primarily an investigatory agency that has the power to scrutinise the processes and decisions of other administrative bodies and to make recommendations. It also has no power to initiate proceedings, prosecute matters, or enforce any decisions. Its authority to make change is strictly through whatever clout, ethical weight, or persuasion it can bring to a matter.

As stated in Lavigne v. Canada (Office of the Commissioner of Official Languages), [2002] 2 SCR 773, 2002 SCC 53 at 39: “An ombudsman is not counsel for the complainant. His or her duty is to examine both sides of the dispute, assess the harm that has been done and recommend ways of remedying it. The Ombudsman’s preferred methods are discussion and settlement by mutual agreement.”

The Ombudsman is a creature of statute, imported to Canada from Scandinavia. “Ombudsman” originates from the Old Norse “umboðsmaðr”, roughly meaning “representative”. In British Columbia Development Corporation v. Friedmann (Ombudsman), [1984] 2 SCR 447 (“BCDC”) at p. 450, Dickson J., as he then was, noted that the Swedish term “jusitieom-budsman” loosely translated as “citizens’ defender”. However, as noted in BCDC, similar offices existed several thousand years ago in China and in the Roman Empire. In modern times, the Ombudsman has its origins in early 18th century Sweden. At the time, its king was out of the country fighting in a decades-long war in eastern Europe and needed a representative to oversee the civil service and judiciary. This evolved into what is now the “Chancellor of Justice” in several Nordic countries and is tied to the executive branch of government.

During the Napoleonic Wars and shortly before its union with Norway, Sweden created a parallel office attached to the legislative branch. This second institution is what evolved into the agency that has been adopted around the world, including Canada. Nine provinces and one territory have an office of the Ombudsman. All but three use the term “Ombudsman”. British Columbia uses the term “Ombudsperson”, Newfoundland and Labrador uses the term “Citizens’ Representative”, while New Brunswick simply refers to the “Ombud”. While that term might seem odd, in Swedish the word equates to “proxy” or “attorney”. Quebec uses the term “Le Protecteur du citoyen”, but in its official English communications it too uses the term “Ombudsman”.

PEI, Nunavut, and the Northwest Territories do not have an Ombudsman. The federal government also does not have a national Ombudsman covering the entire scope of its domain, but many of its departments, agencies, and Crown corporations do. Other than to note the nomenclature and jurisdictions with an Ombudsman, the purpose of this article is not to serve as a comparative analysis of the similarities and differences between all the “Ombudsoffices” in Canada.

Given its common use, I will generally refer to the “Ombudsman” in this article. My favourite term, however, remains a malapropism I heard over a number of years from one particular individual: the “Osmond-budsman”.

As stated in BCDC, the adoption of the Ombudman in Canada is a response to the exponential growth in the size of government and the bureaucracy and the increased involvement of government in the daily lives of citizens. The increased size and scope of government and its multitude of agencies brought with it “increased exposure to maladministration, abuse of authority and official insensitivity”. The adoption of the Ombudsman is one response to the growing problems of potential abuse and supervision. “In short, the powers granted to the Ombudsman allow him to address administrative problems that the courts, the legislature and the executive cannot effectively resolve”: BCDC at page 461.

BCDC provides a useful primer as to the history, powers, and role of the Ombudsman, noting that the legislation in each of the provinces was similar in those regards, but cautioned that the nature and extent of what an Ombudsman could do was subject to interpretation of the governing statute of the province in question. The Ombudsman is generally an independent statutory agency of the legislature. Like any other statutory body, the Ombudsman is limited to the authority set out in its governing legislation. This includes the scope of what it can investigate, which public bodies it can investigate, its powers of investigation, its procedures, and what it may do upon completing its investigation. Its proceedings are generally not open to challenge or review in court, other than on matters regarding the scope of its jurisdiction; that was the core of the dispute in BCDC.

A key principal to take away from BCDC is that, notwithstanding the fact a government administrative body might have made a final decision, an Ombudsman generally has the power to scrutinise the processes and decisions of other administrative bodies.

While the various offices of the Ombudsman across Canada are no strangers to court proceedings, often in relation to the scope of their authority, what I want to highlight is an object of the Ombudsman’s focus that will be very familiar to practitioners of administrative law. In reviewing many of the publications and other materials prepared by various Ombudsmen’s offices, they put a significant emphasis on factors that lawyers would include under the rubric of procedural fairness and natural justice.

These principals are encaptured in what the Saskatchewan Ombudsman calls “The Fairness Triangle”, with the three sides consisting of questions relating to process, decision, and service. Among others, the British Columbia Ombudsperson has adopted The Fairness Triangle and has a useful plain-language explanation of it. Among the many principals The Fairness Triangle describes, they include concepts of impartiality, reasonable notice, the right of a party to know the case they have to meet, the ability to present one’s case, the legal authority of the decision maker, the need for decisions to have a proper factual foundation, and decisions made in accordance with relevant and fair rules.

To laypeople – and even many lawyers who practice in other areas of the law – Administrative law can be arcane and esoteric. When dealing with clients or providing advice to parties who are unfamiliar with administrative law matters affecting them, it might be useful to review materials prepared by an Ombudsman’s office. They can provide useful language and concepts that might enable clearer communication of what can be a complex or technical legal matter.

 

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