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 [email protected] 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.
© Copyright 2024