The Ombudsman’s Equitable Intervention
“That the Ombudsman’s powers of investigation and reporting were meant to extend beyond those cases in which the complaining party asserts a cause of action is evident […] it was, at least in part, the lack of any remedy at law for many administrative injustices that gave rise to the creation of the office of Ombudsman.”[1. British Columbia Development Corporation c. Friedmann (Ombudsman), [1984] 2 R.C.S. 447, pp. 468-469]
The Quebec Ombudsman is entrusted by the National Assembly with supervising the administration of government, protecting rights and strengthening the rule of law and the democratic values that underpin relations between the government and its citizens.
Under section 26.1 of its constitution act[2. Public Protector Act, R.S.Q., c. P-32],
the Public Protector shall notify in writing the chief executive officer of a public body where he is of opinion that the public body (…) has acted in an unreasonable, unjust, arbitrary or discriminatory manner (…).
In the words of Professor Pierre Issalys: “More than any of the other terms used in section 26.1, the word ‘unreasonable’ appeals to the discretionary authority of Le Protecteur du citoyen.”[3. Pierre Issalys, Observations sur le document de travail “L’intervention en équité,” (PDF) prepared for the Public Protector by the Committee on Equity and Reasonableness, May 2003, p. 10 (our translation).]
The rule of law normally guarantees justice, yet in individual cases, strictly enforcing the law may upset human conscience in creating injustice or disproportionate consequences. The notion of equity hence refers to the imperatives of conscience proper to our individual values. Drawing on the spirit of the law, it seeks the just application of legal standards in accordance with their purpose.
In practice, the equitable intervention by the Ombudsman can fulfill a triple role by helping correct excessively rigid rules, flesh out rules that are incomplete, and interpret rules that are insufficiently clear.
Equity issues are exceptions, and certain precautions must be taken to avoid arbitrariness and ensure that an intervention is appropriate. These criteria are threefold: respecting the legislator’s intent, evaluating the seriousness of harm, and determining the appropriateness of the recommendation.
Equitable intervention is often the only option available to a certain category of citizens struggling with problems beyond their control or experiencing special situations. In this light, equity provides a unique and indispensable recourse that is part of our obligation of mutual solidarity toward each other.
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