here - OSUM 2015

Bill 8: Extending the Ontario
Ombudsman’s Oversight Powers –
What it Means for Municipalities
John Mascarin
OSUM Conference and Trade Show
“Building Better Communities”
May 1, 2015
Introduction
“Quis custodiet ipsos custodes?”
Juvenal, Satires (Satire VI, lines 347-8)
Introduction
Mayoral mischief: Canada’s growing cities
face a problem of oversight
DAKSHAN ABASCARAMURTY
The Globe and Mail
Sunday, January 12, 2014
Fraud, nepotism, conflict of interest, questionable expense claims. In almost
any workplace, these alleged transgressions would have led to one of two
bleak prospects: resign or get fired. But in city council chambers across the
country, some of those cloaked in scandal keep marching onward.
Last month, Ontario Ombudsman André Marin released a scathing report
highlighting the lack of accountability in the local governments of cities and
towns across the province.
“To me, some municipalities are like gangrenous limbs,” Mr. Marin said in
an interview. He’s dealt with all manner of scandals in Ontario, but says
municipal mayors and councillors “make provincial politicians look like
choirboys.”
Bill 179
• the Public Sector and MPP Accountability and
Transparency Act, 2014 was originally introduced
into the Legislature on March 24, 2014, as Bill 179
• prior to being tabled, Andre Marin, Ontario’s current
Ombudsman, gave his strong approval to Bill 179:
The new legislation comes in the wake of years of
public demonstrations, rallies and calls to expand
Ombudsman oversight to all or part of the MUSH
sector. Since 2005, there have been more than 130
petitions and 15 private member’s bills tabled in the
legislature to this effect, supported by members of
all parties.
Bill 179
• AMO strongly opposed the legislation:
It represents duplication and inefficiency, and importantly,
it suggests that Wynne’s Government does not trust in the
capacity of municipal government to expose and address
questions about performance and integrity.
• AMCTO concurred in advocating against Bill 179:
We are further concerned that these new municipal
accountability measures are not reflective of the Municipal
Act recognition of municipal governments as a responsible
and accountable order of government.
• Bill 179 expired when the Legislature was dissolved on
May 2, 2014
Bill 179 Resurrected as Bill 8
• Bill 8 (Bill 179 redux) was introduced on July 8, 2014
• second reading given to Bill 8 on October 29, 2014
• Bill 8 debated on November 3 & 6 and hearings before
Standing Committee held on November 24 & 26, 2014
• third reading given to Bill 8 on December 8, 2014
• Bill 8 passed on December 8, 2014
• Royal Assent given on December 11, 2014
• majority of Bill 8 not yet proclaimed in force (including
Schedule 9)
Ombudsman’s Jurisdiction Pre-Bill 8
• currently, the jurisdiction, power and capacity of
the Ontario Ombudsman’s to review, question or
investigate the affairs of any municipality or the
City of Toronto is limited to:
• considering whether the councils may have
contravened the open meeting rule pursuant
to s. 239.1(b) of the Municipal Act, 2001 and
s. 190.1(1)(b) of the City of Toronto Act, 2006
• Ontario Ombudsman has a very limited power to
review and investigate municipal matters
Municipal Transparency & Accountability
• Bill 130 created new Part V.1 of the Municipal Act, 2001
and empowered municipalities to:
• establish codes of conduct
• appoint integrity officials
• integrity commissioners
• auditors general
• ombudsmen
• closed meeting investigators
• create lobbyist registries and appoint registrars
Ombudsman’s Jurisdiction Post-Bill 8
• Bill 8 will significantly expand the powers of the Ontario
Ombudsman to review public entities in the MUSH sector
with amendments to be made to, amongst others, the
Ambulance Act, the Broader Public Sector Accountability
Act, 2014, the Legislative Assembly Act, the Lobbyists
Registration Act, 1998 and the Public Sector Expenses
Review Act, 2009
• Ontario Ombudsman will have vast oversight relating to
the MUSH sector when Bill 8 has been proclaimed
• Ontario Ombudsman cannot exercise any of his enhanced
powers yet
Ombudsman’s Municipal Oversight
• Bill 8 amends Ombudsman Act , Municipal Act, 2001
and City of Toronto Act, 2006, etc.
• Schedule 9 of Bill 8 – not yet proclaimed
• new definition of “municipal sector entity” added to
s. 13 of the Ombudsman Act (means a municipality,
local board and a municipally-controlled
corporation)
• the Ombudsman Act will be amended to expand the
Ontario Ombudsman’s investigative authority to
encompass “public sector bodies” (which includes
“municipal sector entities”)
Decision, Recommendation, Act or Omission
• proposed amendment to s. 14(1) of the Ombudsman Act
effectively provides the Ontario Ombudsman with the
jurisdiction to investigate any decision, recommendation
or act done or not done by a municipality
• expansive broadening of Ombudsman’s oversight
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 public
sector body and affecting any person or body of persons
in his, her or its personal capacity.
Decision, Recommendation, Act or Omission
• Ontario Ombudsman can investigate any recommendation,
decision, action or omission of a municipality except:
•
•
not until rights of appeal or objection have been exercised
– including any rights established under by-law, or
•
not for any matters under the jurisdiction of any other
municipal integrity officer until:
•
complaint is filed but matter is not investigated,
•
investigation has concluded, or
•
time for bringing a complaint has expired
Ontario Ombudsman can investigate on his own motion
In the Course of the Administration…
• Ontario Ombudsman can investigate “in the course of the
administration of a public sector body”
•
courts have interpreted the Ombudsman’s jurisdiction
very broadly
•
AMO requested clarification and pointed out that it is
often difficult to distinguish between legislative and
administrative functions
•
AMO requested amendments to narrow the scope of
the Ontario Ombudsman’s ambit of investigation but
the modifications were not accepted
Ombudsman’s Oversight (I)
• Ontario Ombudsman will be able to investigate and
overrule any decision made by:
•
municipal ombudsman
•
integrity commissioner
•
lobbyist registrar
•
auditor general
•
but only if integrity officials do not investigate
complaints, have concluded their investigation or
the time for bringing a complaint has expired
Ombudsman’s Oversight (II)
• Ontario Ombudsman will be not be able to investigate
and overrule any decision made by a closed meeting
investigator
• first and second reading versions of Bill 8 contained
additional power allowing Ontario Ombudsman to
overrule a municipally-appointed closed meeting
investigator but it was removed at third reading
• Ontario Ombudsman remains the default closed meeting
investigator under s. 239.1(b) of the Municipal Act, 2001
but he does not have a general right to review a closed
meeting investigation and report
Ombudsman Power of Entry
• Ontario Ombudsman has power of entry onto premises
under s. 25 of Ombudsman Act
•
proposed amendment to provide for power of entry
“at any time upon any premises occupied by any
public sector body” for investigation purposes
• entry right subject to notice and opportunity to give
reasons as to why entry is not appropriate
• no entry to private dwellings unless a warrant is
obtained
Questions re Ombudsman’s Jurisdiction
• “any person who is directly affected” by the exercise
of the Ontario Ombudsman’s jurisdiction has the right
to have the question judicially considered by the
court
• application to have the question judicially determined
by the Ontario Divisional Court
•
amendment made to s. 18(5) of the Ombudsman
Act at third reading to add this provision
Legal Advisers
• Ontario Ombudsman is not empowered to investigate
any decision, recommendation, act or omission of any
person acting as a legal adviser to the public sector
body or as counsel to the public sector body
• amendment to s. 14(4)(b) of the Ombudsman Act
• extends the same protection to legal advisers of
and counsel to public sector bodies which has
historically been granted to legal advisers of the
Crown
Mandatory Closed Meeting
• a meeting will now be required to be closed to the
public if the subject matter of the meeting concerns an
“on-going investigation of the municipality, local board
or municipally-controlled corporation” by:
• Ontario Ombudsman
• municipal ombudsman
• closed meeting investigator
• all other exceptions to the open meeting rule remain
discretionary (except for a consideration of a MFIPPA
request where council is head of the institution)
Confidentiality - Ombudsman’s Documents
• every record in the custody or under the control of a
municipality may be subject to disclosure under MFIPPA
• ”Pirating Our Property” – Ontario Ombudsman criticized
the City of Oshawa for not maintaining the confidentiality
of his draft closed meeting investigation report
• new ss. 18(3.1) and (3.2) added to Ombudsman Act to:
• ensure that any documents provided to a public sector
body or person shall be maintained in confidence and
are not disclosed and are not retained or copied
• expressly overrides FIPPA and MFIPPA
Records Retention & Preservation
• MFIPPA is amended by the addition of new s. 4.1:
Measures to ensure preservation of records
4.1 Every head of an institution shall ensure that
reasonable measures respecting the records in the
custody or under the control of the institution are
developed, documented and put into place to preserve
the records in accordance with any recordkeeping or
records retention requirements, rules or policies,
whether established under an Act or otherwise, that
apply to the institution.
• redundant - s. 254 of Municipal Act, 2001
Conclusions
Ombudsman eager to probe local complaints
RICHARD J. BRENNAN The Toronto Star Wednesday, January 28, 2015
… the provincial Ombudsman expands his oversight powers to 444
municipalities in Ontario. Currently, he’s limited to investigating
municipalities where he is invited to look into allegations of wrongdoing.
“Many of them will defy the legislation,” Marin told reporters Tuesday at
Queen’s Park, where he also noted that he will be seeking a third term.
…
Marin told reporters some municipalities will go to unbelievable lengths
to hide what they are doing – even on matters of life and death.
…
Marin said even with his new powers, the fact remains that there is no
penalty for holding secret meeting – just “public shaming” by his office.
Conclusions
• Ontario Ombudsman now has new and sweeping
oversight and investigation powers over
municipalities
•
will municipalities continue to hire their own
integrity officials?
•
will the Ontario Ombudsman follow municipal
rules of engagement or will he create his own?
•
how will councils and municipalities protect their
interests?
Conclusions
~ fin ~
John Mascarin
Partner
T
E
416.865.7721
jmascarin@airdberlis.com
The content of this presentation is provided to you for informational purposes
only and should not be construed as legal advice on any subject matter.
Please consult a legal professional on the particular issues that concern you.