A primer on federal specialty OmbudsOffices.

Author:Hyson, Stewart
Position::Report
 
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Many studies have focused on the various Officers of Parliament even though there is little agreement about the classification of such Officers. Less has been written about Canadian OmbudsOffices which include some Officers of Parliament and others that are part of the Executive. Speciality OmbudsOffices encompass a range of variations as demonstrated by the eight chosen for consideration in this article. The heads of these offices and other senior officials were interviewed in May 2010.

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At the outset there is need to clarify usage of the term Ombudsman". Statutes and other official references usually pertain to the position of the Ombudsman, while common usage may either be to the position or to the current incumbent who occupies that position. It is thus necessary to be cognizant of the context in which the term is used. We will often use the term "OmbudsOffice" where appropriate because the staff in the Ombudsman's office usually plays a key role in processing and deciding public complaints.

The Classical Model

To revisit an old idea, Parliament's task is not to govern but to make certain that Government does govern in the public interest, fairly, and impartially according to law. This task includes the monitoring of administrative decision-making--a task that has become more difficult with the growth of the welfare state following World War II, as more administrative decisions of an increasingly complex and technical nature were implemented by specialists in the public bureaucracy. Not surprisingly, with this growth of the modern administrative state, there was an accompanying increase in complaints of alleged administrative wrong-doings with no efficient means for their resolution. It was in this context that Sir Guy Powles, New Zealand's first Ombudsman, expounded for his Canadian audience in the mid-1960s how and why the Ombudsman was the best mechanism to investigate complaints of administrative wrong-doing. (1)

This notion of being an independent officer of Parliament is fundamental. We may immediately recall R. MacGregor Dawson's pioneering work on official independence, The Principle of Official Independence. (2) In addition, there have been more recent works on the respective roles of some of the independent officers of Parliament. (3) Together, these sources provide disparate examples of official independence in Canada including crown corporations, regulatory commissions and tribunals, Office of the Auditor General, Elections Canada, the judiciary, royal commissions and other commissions of enquiry, Public Service Commission, Canadian Human Rights Commission, and the Royal Canadian Mounted Police. Within the liberal-democratic context of Canada, each of these entities has acquired for unique reasons a degree of independence from electoral-partisan political direction. The need for an arms-length relationship from both the executive and Parliament is intended to guarantee impartiality in operations and derision-making, such as the need for crown corporations to operate along businesslike lines or for regulatory agencies to exercise quasijudicial derision-making powers. When it comes to the Ombudsman institution, however, it is so relatively new to Canada that it received no coverage by J. E. Hodgetts in his 1973 classic study of the physiology of the Canadian public service. (4)

Thus, we need to turn to the experience of the provinces--where Alberta and New Brunswick were the first to adopt the Ombudsman in 1967 for guidance as to the nature of the particular arms length relationship found with the Ombudsman. It is from these provincial (and one territorial) examples spanning over forty-plus years of experience that we may glean the essential attributes of the classical Ombudsman. (5)

Typically, the independence associated with the classical Ombudsman model stems initially from its mandate. This is not to suggest that the process of creating an OmbudsOffice is always free from hassle nor devoid of partisan politics. For example, four of Canada's ten provincial and territorial OmbudsOffices were enshrouded in some controversy when initially established. (6) Rather, by being mandated by statutory law to investigate public complaints of alleged administrative wrong-doings, the classical OmbudsOffice is granted a degree of legitimacy not necessarily found with complaint resolution mechanisms established by executive discretion. By being established through open, public debate, involving all parties in the legislature, the classical OmbudsOffice usually has the appearance of being an independent institution from the get-go. At the same time, there is the annual reporting back to the all-party legislature, as well as the annual funding process once again by the legislature that serves the same purpose of ensuring transparency, accountability, and legitimacy. It is also worth noting that the mandate assigns the classical OmbudsOffice jurisdiction over the whole public service where administrative decisions impact the populace. Even though the definition of what constitutes the "whole public service" varies from one jurisdiction to another, (7) the classical OmbudsOffice's wide and diverse scope indirectly enhances its independence by ensuring that it does not develop too close a relationship with a single clientele group.

We also see the independence of the classical model with the appointment process. As is generally the case with government in Canada, the executive has the legal responsibility to appoint the Ombudsman. But as with the appointment of other officers of Parliament (and provincial legislatures), the convention is usually for the executive's decision to be preceded by agreement of the parliamentarians. The Ombudsman normally has security of tenure by being appointed for a fixed term as specified in the enabling statute and can only be removed for cause before the expiration of that term. Structurally, the independence of the classical OmbudsOffice is also evident with the incumbent being in full charge of recruiting staff members and organizing the office to process the handling of public complaints. One source of potential difficulty, however, is that the OmbudsOffice's budget depends upon the Government's Budget, and each year the Ombudsman must approach the executive with a budget request. The Ombudsman's annual reports (and other reports) are submitted to the Speaker of the legislature, and thereby to all elected representatives and the populace at large.

If we take a closer look at how the classical OmbudsOffice works in respect to dispute resolution, as Gregory Levine has done, (8) its decision-making style stands in sharp contrast to that of the judiciary. Whereas the latter is adversarial in nature and relies upon the power to issue binding orders, the OmbudsOffice relies upon a combination of investigative and persuasive skills, and, ultimately if necessary, the possibility of making the case public through its reports to Parliament. Yet another characteristic is that the OmbudsOffice only considers a grievance once all existing administrative grievance-handling appeal options have been exhausted. That is, since most administrative entities in the public sector have their own internal grievance-handling mechanisms, an aggrieved individual must first follow exhaustively that route before approaching the OmbudsOffice.

There is great variation in staff resources among Canada's ten provincial and territorial OmbudsOffices that has a bearing on the institution's capacity, but most complaints are handled quickly usually within a month. (9) This quickness of service is one of the more attractive qualities of the Ombudsman institution. Besides responding to individual complaints of alleged administrative wrong doing, with the exception of the Yukon office, Canada's provincial and territorial OmbudsOffices have the power on their own motion to initiate an investigation of a systemic problem. In fact, there seems to be a greater willingness today for these OmbudsOffices to exercise this power--to be more proactive rather than simply responding to individual complaints. In a similar fashion, OmbudsOffices frequently reach out to certain demographic groupings--youth, seniors, imprisoned inmates--that have common concerns in order to listen to them and to educate them as to the OmbudsOffice's availability. It is also not uncommon for OmbudsOfficers to meet administrators in a preventive fashion to discuss and "iron-out" recurring types of problems. Finally, we also see today the use of modem technology by OmbudsOffices as in the use of web sites (10) in order to be more readily available in serving the public, as well as a maturing of the Ombudsman profession such as in the use of Special Ombudsman Response Teams (SORTs) by the Ontario OmbudsOffice (11) and the refinement of investigative techniques. (12)

When it comes to investigating specific complaints, the classical Ombudsman is not part of the public service and does not take direction through the executive's chain of command. Rather, within his/her mandate, the Ombudsman has full operational independence to handle as it wishes the public's complaints; indeed, if necessary in order to investigate a complaint, the OmbudsOffice has the authority...

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