OMBUDSMAN ACT

This is not an official version of the Ombudsman Act RSBC 1996, c. 340 and its related legislation. It is a current version for informational purposes only. September 19, 2000

SECTION 1

Definition

1 In this Act, "authority" means an authority set out in the Schedule or added under section 35 and includes members and employees of the authority.

SECTION 2

Appointment of Ombudsman

2 (1) On the recommendation of the Legislative Assembly, the Lieutenant Governor must appoint as an officer of the Legislature an Ombudsman to exercise the powers and perform the duties assigned to the Ombudsman under this Act.

(2) The Legislative Assembly must not recommend a person to be appointed Ombudsman unless a special committee of the Legislative Assembly has unanimously recommended to the

Legislative Assembly that the person be appointed.

SECTION 3

Term of office

3 (1) The Ombudsman must be appointed for a term of 6 years and may be reappointed in the manner provided in section 2 for further 6 year terms.

(2) The Ombudsman must not hold another office or engage in other employment.

SECTION 4

Remuneration

4 (1) The Ombudsman is entitled to be paid, out of the consolidated revenue fund, a salary equal to the salary paid to the chief judge of the Provincial Court.

(2) The Ombudsman must be reimbursed for reasonable travelling and out of pocket expenses necessarily incurred in discharging duties.

SECTION 5

Pension

5 (1) Subject to subsections (2) and (3), the Public Service Pension Plan, continued under the Public Sector Pension Plans Act, applies to the Ombudsman.

(2) When calculating the amount of a pension under the Public Service Pension Plan, each year of service as Ombudsman must be counted as 1 1/2 years of pensionable service.

(3) Despite the accrual of 35 years of pensionable service, contributions to the Public Service Pension Plan must continue for each additional year of service up to 35 years of contributory service.

SECTION 6

Resignation, removal or suspension

6 (1) The Ombudsman may at any time resign the office by written notice

(a) to the Speaker of the Legislative Assembly, or

(b) to the Clerk of the Legislative Assembly if there is no Speaker or if the Speaker is absent from British Columbia.

(2) On the recommendation of the Legislative Assembly, based on cause or incapacity, the Lieutenant Governor must, in accordance with the recommendation,

(a) suspend the Ombudsman, with or without salary, or

(b) remove the Ombudsman from office.

(3) On the recommendation of the Legislative Assembly the Lieutenant Governor must appoint an acting Ombudsman if

(a) the Ombudsman is suspended or removed,

(b) the office of Ombudsman becomes vacant for a reason other than by operation of subsection (4) (c), or

(4) The appointment of an acting Ombudsman under subsection (3) terminates

(a) on the appointment of a new Ombudsman under section 2,

(b) at the end of the period of suspension of the Ombudsman,

(d) on the return to office of the Ombudsman from the temporary illness or absence

whichever occurs first.

(5) If the Legislature is not sitting and is not ordered to sit within the next 5 days, the Lieutenant Governor in Council may suspend the Ombudsman from office, with or without salary, for cause or incapacity, but the suspension does not continue in force after the expiry of 30 sitting days.

SECTION 7

Appointment of acting Ombudsman without recommendation of Legislature

7 (1) The Lieutenant Governor in Council may appoint an acting Ombudsman

(a) if

(i) the Ombudsman is suspended or removed, or

(ii) the office of Ombudsman becomes vacant for a reason other than by operation of subsection (2) (c),

when the Legislature is sitting but it does not make a recommendation under section 2 or 6 (3) before the end of that sitting or before an adjournment of the Legislature exceeding 5 days,

(b) if the Ombudsman is suspended or the office of Ombudsman becomes vacant when the Legislature is not sitting and is not ordered to sit within the next 5 days, or

(2) The appointment of an acting Ombudsman under subsection (1) terminates

(a) on the appointment of a new Ombudsman under section 2,

(b) at the end of the period of suspension of the Ombudsman,

(d) on the appointment of an acting Ombudsman under section 6 (3), or

(e) on the return to office of the Ombudsman from temporary illness or absence,

whichever occurs first.

SECTION 8

Staff

8 (1) In accordance with the Public Service Act, the Ombudsman may appoint employees necessary to perform the duties of the office.

(2) For the purposes of the application of the Public Service Act to this section, the Ombudsman is a deputy minister.

(3) The Ombudsman may make a special report to the Legislative Assembly if the Ombudsman believes

(a) the amounts and establishment provided for the office of the Ombudsman in the estimates, or

(b) the services provided to the Ombudsman by the Public Service Employee Relations Commission are inadequate to enable the Ombudsman to fulfil the duties of the office.

SECTION 9

Confidentiality

9 (1) Before beginning to perform the duties of the office, the Ombudsman must take an oath before the Clerk of the Legislative Assembly

(a) to faithfully and impartially exercise the powers and perform the duties of the office, and

(b) not to divulge any information received under this Act, except if permitted by this Act.

(2) A person on the staff of the Ombudsman must, before beginning to perform duties, take an oath before the Ombudsman not to divulge any information received under this Act except if

permitted by this Act.

(3) For the purposes of subsection (2) the Ombudsman is a commissioner for taking affidavits for British Columbia.

(4) The Ombudsman and every person on the staff of the Ombudsman must, subject to this Act, maintain confidentiality in respect of all matters that come to their knowledge in performing their duties under this Act.

(5) The Ombudsman or a person holding an office or appointment under the Ombudsman must not give or be compelled to give evidence in a court or in proceedings of a judicial nature in respect of anything coming to his or her knowledge in the exercise of duties under this Act, except

(a) to enforce the Ombudsman's powers of investigation,

(b) to enforce compliance with this Act, or

(6) An investigation under this Act must be conducted in private unless the Ombudsman considers that there are special circumstances in which public knowledge is essential in order to further the investigation.

(7) Despite this section, the Ombudsman may disclose or authorize a member of his or her staff to disclose a matter that, in the opinion of the Ombudsman, is necessary to

(a) further an investigation,

(b) prosecute an offence under this Act, or

SECTION 10

Powers and duties of Ombudsman in administrative matters

10 (1) The Ombudsman, with respect to a matter of administration, on a complaint or on the Ombudsman's own initiative, may investigate

(a) a decision or recommendation made,

(b) an act done or omitted, or

(2) The powers and duties conferred on the Ombudsman may be exercised and performed despite a provision in an Act to the effect that

(a) a decision, recommendation or act is final,

(b) no appeal lies in respect of it, or

(c) a proceeding or decision of the authority whose decision, recommendation or act it is must not be challenged, reviewed, quashed or called into question.

(3) The Legislative Assembly or any of its committees may at any time refer a matter to the Ombudsman for investigation and report.

(4) The Ombudsman must

(a) investigate the matter referred under subsection (3), so far as it is within the Ombudsman's jurisdiction and subject to any special directions, and

(b) report back as the Ombudsman thinks fit.

(5) Sections 23 to 26 do not apply in respect of an investigation or report made under subsection (4).

SECTION 11

Jurisdiction of Ombudsman

11 (1) This Act does not authorize the Ombudsman to investigate a decision, recommendation, act or omission

(a) in respect of which there is under an enactment a right of appeal or objection or a right to apply for a review on the merits of the case to a court or tribunal constituted by or under an enactment, until after that right of appeal, objection or application has been exercised or until after the time limit for the exercise of that right has expired, or

(b) of a person acting as a solicitor for an authority or acting as counsel to an authority in relation to a proceeding.

(2) The Ombudsman may investigate conduct occurring before the commencement of this Act.

(3) If a question arises about the Ombudsman's jurisdiction to investigate a case or class of cases under this Act, the Ombudsman may apply to the Supreme Court for a declaratory order determining the question.

SECTION 12

Complaint to Ombudsman

12 (1) A complaint under this Act may be made by a person or group of persons.

(2) A complaint must be in writing.

(3) If a communication written by or on behalf of a person confined in a federal or Provincial correctional institution or to a hospital or facility operated by or under the direction of

an authority, or by a person in the custody of another person for any reason, is addressed to the Ombudsman the person in charge of the institution, hospital or facility in which the

writer is confined or the person having custody of the writer must immediately, mail or forward the communication, unopened, to the Ombudsman.

(4) A communication from the Ombudsman to a person confined or in custody as described in subsection (3) must be forwarded to that person in a similar manner.

(5) Subsections (3) and (4) apply despite any other enactment.

SECTION 13

Refusal to investigate

13 The Ombudsman may refuse to investigate or cease investigating a complaint if, in the opinion of the Ombudsman, any of the following apply:

(a) the complainant or person aggrieved knew or ought to have known of the decision, recommendation, act or omission to which the complaint refers more than one year before the complaint was received by the Ombudsman;

(b) the subject matter of the complaint primarily affects a person other than the complainant and the complainant does not have sufficient personal interest in it;

(c) the law or existing administrative procedure provides a remedy adequate in the circumstances for the person aggrieved, and, if the person aggrieved has not availed himself or herself of the remedy, there is no reasonable justification for the failure to do so;

(d) the complaint is frivolous, vexatious, not made in good faith or concerns a trivial matter;

(e) having regard to all the circumstances, further investigation is not necessary in order to consider the complaint;

(f) in the circumstances, investigation would not benefit the complainant or person aggrieved.

g) the complainant has abandoned the complaint

(i) by failing to advise the Ombudsman of a current address or telephone number at which the Ombudsman can contact him or her, or

(ii) by failing to respond after a reasonable number of attempts by the Ombudsman to contact him or her in writing or verbally;

(h) the complaint is withdrawn by the complainant by notice to the Ombudsman;

(i) the complaint is settled under section 14.

SECTION 14

Ombudsman to notify authority

14 (1) If the Ombudsman investigates a matter, the Ombudsman must notify the authority affected and any other person the Ombudsman considers appropriate to notify in the circumstances.

(2) At any time during or after an investigation the Ombudsman may consult with an authority to attempt to settle the complaint, or for any other purpose.

(3) If before making a decision respecting a matter being investigated the Ombudsman receives a request for consultation from the authority, the Ombudsman must consult with the

authority.

SECTION 15

Power to obtain information

15 (1) The Ombudsman may receive and obtain information from the persons and in the manner the Ombudsman considers appropriate, and in the Ombudsman's discretion may conduct

hearings.

(2) Without restricting subsection (1), but subject to this Act, the Ombudsman may do one or more of the following:

(a) at any reasonable time enter, remain on and inspect all of the premises occupied by an authority, talk in private with any person there and otherwise investigate matters within the Ombudsman's jurisdiction;

(b) require a person to furnish information or produce, at a time and place the Ombudsman specifies, a document or thing in the person's possession or control that relates to an investigation, whether or not that person is a past or present member or employee of an authority and whether or not the document or thing is in the custody or under the control of an authority;

(d) summon before the Ombudsman and examine on oath any person who the Ombudsman believes is able to give information relevant to an investigation, whether or not that person is a complainant or a member or employee of an authority, and for that purpose may administer an oath;

(e) receive and accept, on oath or otherwise, evidence the Ombudsman considers appropriate, whether or not it would be admissible in a court.

(3) If the authority requests the return of a document or thing obtained under subsection (2), the Ombudsman must return it to the authority within 48 hours after receiving the request, but the Ombudsman may again require its production in accordance with this section.

SECTION 16

Protection

16 A person must not discharge, suspend, expel, intimidate, coerce, evict, impose any pecuniary or other penalty on or otherwise discriminate against a person because that person

complains, gives evidence or otherwise assists in the investigation, inquiry or reporting of a complaint or other proceeding under this Act.

SECTION 17

Opportunity to make representations

17 If it appears to the Ombudsman that there may be sufficient grounds for making a report or recommendation under this Act that may adversely affect an authority or person, the

Ombudsman must, before deciding the matter,

(a) inform the authority or person of the grounds, and

(b) give the authority or person the opportunity to make representations, either orally or in writing at the discretion of the Ombudsman.

SECTION 18

Attorney General may restrict investigative powers

18 (1) The Ombudsman must not enter any premises and must not require any information or answer to be given or any document or thing to be produced if the Attorney General certifies that entering the premises, giving the information, answering the question or producing the document or thing might

(a) interfere with or impede the investigation or detection of an offence,

(b) result in or involve the disclosure of deliberations of the Executive Council, or

(c) result in or involve the disclosure of proceedings of the Executive Council or a committee of it, relating to matters of a secret or confidential nature and that the disclosure would be contrary or prejudicial to the public interest.

(2) The Ombudsman must report each certificate of the Attorney General to the Legislative Assembly not later than in the Ombudsman's next annual report.

SECTION 19

Application of other laws respecting disclosure

19 (1) Subject to section 18, a rule of law that authorizes or requires the withholding of a document or thing, or the refusal to disclose a matter in answer to a question, on the ground that the production or disclosure would be injurious to the public interest does not apply to production of the document or thing or the disclosure of the matter to the Ombudsman.

(2) Subject to section 18 and to subsection (4), a person who is bound by an enactment to maintain confidentiality in relation to or not to disclose any matter must not 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 confidentiality or nondisclosure.

(3) Subject to section 18 but despite subsection (2), if a person is bound to maintain confidentiality in respect of a matter only because of an oath under the Public Service Act or a

rule of law referred to in subsection (1), the person must disclose the information, answer questions and produce documents or things on the request of the Ombudsman.

(4) Subject to section 18, after receiving a complainant's consent in writing, the Ombudsman may require a person described in subsection (2) to, and that person must, supply information, answer any question or produce any document or thing required by the Ombudsman that relates only to the complainant.

SECTION 20

Privileged information

20 (1) Subject to section 19, a person has the same privileges in relation to giving information, answering questions or producing documents or things to the Ombudsman as the person would have with respect to a proceeding in a court.

(2) Except on the trial of a person for perjury or for an offence under this Act, evidence given by a person in proceedings before the Ombudsman and evidence of the existence of the proceedings is inadmissible against that person in a court or in any other proceeding of a judicial nature.

SECTION 21

Witness and information expenses

21 (1) A person examined under section 15 (2) (d) is entitled to the same fees, allowances and expenses as if the person were a witness in the Supreme Court.

(2) If a person incurs expenses in complying with a request of the Ombudsman for production of documents or other information, the Ombudsman may reimburse that person for reasonable expenses incurred that are not covered under subsection (1).

SECTION 22

If investigation is refused or discontinued or complaint is not substantiated

22 (1) If the Ombudsman decides

(a) not to investigate or further investigate a complaint under section 13, or

(b) at the conclusion of an investigation, that the complaint has not been substantiated,

the Ombudsman must

(d) as soon as is reasonable, notify both the complainant and the authority of the decision and the reasons for it.

(2) The reasons provided under subsection (1) (d) with respect to a decision referred to in subsection (1) (b) must be in writing.

(3) The Ombudsman may indicate with the notification under subsection (1) (d) any other recourse that may be available to the complainant.

SECTION 23

Procedure after investigation

23 (1) If, after completing an investigation, the Ombudsman is of the opinion that

(a) a decision, recommendation, act or omission that was the subject matter of the investigation was

(i) contrary to law,

(ii) unjust, oppressive or improperly discriminatory,

(iii) made, done or omitted under a statutory provision or other rule of law or practice that is unjust, oppressive or improperly discriminatory,

(iv) based wholly or partly on a mistake of law or fact or on irrelevant grounds or consideration,

(v) related to the application of arbitrary, unreasonable or unfair procedures, or

(vi) otherwise wrong,

(b) in doing or omitting an act or in making or acting on a decision or recommendation, an authority

(i) did so for an improper purpose,

(ii) failed to give adequate and appropriate reasons in relation to the nature of the matter, or

(iii) was negligent or acted improperly, or

the Ombudsman must report that opinion and the reasons for it to the authority and may make the recommendation the Ombudsman considers appropriate.

(2) Without restricting subsection (1), the Ombudsman may recommend that

(a) a matter be referred to the appropriate authority for

further consideration,

(b) an act be remedied,

(d) a decision or recommendation be cancelled or changed,

(e) reasons be given,

(f) a practice, procedure or course of conduct be altered,

(g) an enactment or other rule of law be reconsidered, or

(h) any other steps be taken.

SECTION 24

Authority to notify Ombudsman of steps taken

24 (1) If a recommendation is made under section 23, the Ombudsman may request the authority

(a) to notify the Ombudsman within a specified time of the steps that have been or are proposed to be taken to give effect to the recommendation, or

(b) if no steps have been or are proposed to be taken, the reasons for not following the recommendation.

(2) If, after considering a response made by an authority under subsection (1), the Ombudsman bel