Foundations of Ombudsman Law

Foundations of Ombudsman Law

Laura Pettigrew

Senior Counsel

Ombudsman Ontario

The question “What is an Ombudsman?” may lead to some debate. Some would argue that only Parliamentary Ombudsman in Canadian society meet the definition of Ombudsman. In some jurisdictions, such as New Zealand, the use of the title is controlled by legislation. For the purposes of our discussion today, I will use the term Ombudsman in a very broad sense to reflect the various public and private complaint resolution mechanisms that operate in today’s society and are reflected in the membership of the Forum of Canadian Ombudsman. There are four “essential and universally recognised features of ombudsmanship” : independence, flexibility, accessibility and credibility. Using these features as a guideline, I propose to briefly address how they can be incorporated into different Ombudsman models.

  • independence

Independence is often referred to as a hallmark of Ombudsmanship. There are, however, varying degrees of independence, for instance, while administrative tribunals display elements of independence, they are fundamentally distinct from Superior Courts, which are constitutionally required to possess objective guarantees of both individual and institutional independence.

Parliamentary Ombudsman are usually structurally independent of the political process and government administration. They generally are officers of and report directly to the Assembly/Parliament. The appointment of the Ombudsman is commonly on the address, recommendation or approval of the Assembly/Parliament. Some Ombudsman may appoint their own staff, who are not civil servants and have the authority to lease premises and contract for services. Budgets may also be approved by a process governed by the Assembly/Parliament rather than by government administrators. There are often statutory safeguards ensuring that the Ombudsman can only be removed for cause on the address of the Assembly/Parliament. The term of office of the Ombudsman may also extend beyond the term of a particular government. These and other features tend to separate Ombudsman from the organizations over which they have jurisdiction.

Statutory Ombudsman, who report through a Minister, may display some of the same indicia of independence as parliamentary Ombudsman. However, there may be less structural separation between such Ombudsman and the administration they investigate. For instance, a statutory Ombudsman may report to a Minister rather than directly to the Assembly/Parliament. However, the Minister’s ability to exert influence over the Ombudsman may be limited, for instance, the Minister may be required to table the Ombudsman’s reports with the Assembly/Parliament.

Public sector, private sector and college and university Ombudsman are often a part of the administration that they investigate. However, there are ways of developing relationships and processes to attain a degree of independence, even when this is not entrenched in legislation.

Reporting Relationships

To the extent possible, the Ombudsman should not be reporting directly to an individual or body whose conduct the Ombudsman is responsible for reviewing. For example, if there is a Chief Operational Officer responsible for administration and that official is accountable for most of the conduct that the Ombudsman reviews, it may be more appropriate for the Ombudsman to report directly to the Chair of a Board of Directors. In the case of the Ombudsman for a government department, the Ombudsman may be directly accountable to the Minister rather than the operational management.

Conflict of Interest

Conflict of Interest policies can also be developed to ensure that the Ombudsman is not involved in investigating matters that may give rise to a conflict of interest. In the event of a conflict, it may be necessary for another individual to review a matter.

Avoiding Undue Influence

In order to avoid opportunities for or the perception of undue influence of the organization, it is also useful to ensure that salary, benefits and other terms of the Ombudsman’s engagement are set according to objective standards.

Budget

Even in cases in which the Ombudsman is funded directly from within an organization, independence can be fostered by ensuring that the Ombudsman is responsible for submitting his/her own budget and monitoring his/her own expenditures. The Ombudsman’s budget can also appear as a separate line item in the organization’s estimates.

Exclusivity

Most Ombudsman are exclusively responsible for carrying out complaint investigation and resolution.

Physical Location

Many Ombudsman offices are physically separate from those of the organizations they investigate. Complete physical separation may not be possible in the case of an internal Ombudsman in a small organization. However, careful consideration should be given to placing the Ombudsman’s office in an area that is not in close proximity to individuals who are directly accountable for the conduct the Ombudsman is responsible for reviewing.

Impartiality

Another aspect of independence is impartiality. Ombudsmanship does not involve advocacy in the traditional sense. Ombudsman must ensure that their processes are balanced. The investigation and complaint resolution process must be fair and provide equal opportunity to both sides to know the information against them and respond. The Ombudsman should ensure that each complaint is assessed on its merits. However, to foster consistency and fair application of discretion, it may be useful to establish general decision-making criteria and define terms that the Ombudsman uses to describe an organization’s conduct, for example, wrong, unreasonable. Legislation governing Ombudsman often sets out specific terms that the Ombudsman can apply and a number of Ombudsman have taken steps to define these and describe the circumstances under which they are typically used.

  • Finality

Ombudsman offices are often considered a recourse of last resort. Typically, the decisions and opinions of parliamentary and legislative Ombudsman are protected from judicial review by privative clauses. This means that in the absence of a jurisdictional or other significant error, a court is unlikely to interfere with such an Ombudsman’s conclusions. An organization may not accept an Ombudsman recommendation and an Assembly/Parliamentary may not support the Ombudsman’s report. However, the Ombudsman is free to arrive at his/her views and report them without interference.

In the context of other Ombudsman models, the independence of Ombudsman is strengthened if their decisions, opinions and reports cannot be reconsidered, changed or altered by another official. There should also be a process in place to ensure that presentation of the Ombudsman’s reports to an organizational head, committee or other body responsible for considering them, is not delayed or otherwise interfered with.

  • flexibility

I believe that flexibility in the Ombudsman context refers typically to the nature of the Ombudsman process and its ability to adapt to change.

Parliamentary and Statutory Ombudsman usually have the authority to inspect premises, compel testimony and obtain documentary disclosure. They may be able to hold hearings and issue formal reports to the Assembly/Parliament. However, the benefit of the Ombudsman model is that it can be adapted, as circumstances require.

A review of the caselaw relating to challenges to provincial Parliamentary Ombudsman jurisdiction, suggests that Ombudsman may have to rely more on their formal investigative authority while their offices are becoming established. Initially, an Ombudsman may have to spend a lot of time educating officials regarding his/her role and function. As government administrators become more familiar with the Ombudsman and the institution becomes more entrenched, the Ombudsman’s need to rely on formal investigative procedures and court intervention may decrease and more cooperative relationships may emerge. In the case of the Ombudsman of Ontario, it has been over a decade since the Ombudsman has had to seek the assistance of the courts in resolving a jurisdictional matter. Most of the Ontario Ombudsman’s cases are now resolved informally, through telephone and other contacts, within a very short time frame.

In addition, as an Ombudsman’s relationship with those he/she investigates evolves over time, the Ombudsman may be able to undertake preventative and proactive Ombudsmanship e.g., working with organizations to review policies before complaints are received to ensure that problems are anticipated and avoided.

The Ombudsman process is adaptable to individual complaints as well as systemic review. Many Ombudsman have the ability to initiate an investigation on an own motion basis. This is very useful in a number of circumstances, for instance, when many complainants raise the same issue or when a complainant raises an important issue but does not want to pursue the matter further.

The Ombudsman model can often achieve positive results for complainants who have been subject to maladministration. However, the model can also be used to identify broader problems that may be perpetuated if creative solutions are not achieved. Ombudsman can assist organizations by viewing the larger picture and making recommendations for legislative, policy or procedural change.

Ombudsman may make very specific recommendations to address a problem or they can make broader recommendations that challenge organizations to come up with their own solutions. The Ombudsman may also adopt an ongoing monitoring role to ensure that undertakings given by administrators are fulfilled and that proposed solutions achieve the intended results.

  • accessibility

An Ombudsman’s effectiveness will depend to a large extend on whether persons with complaints are aware of the Ombudsman’s existence. It is important for Ombudsman offices to have sufficient resources to ensure that community outreach/public education can be conducted.

There are various ways that Ombudsman can get the message out about the services they provide e.g., posters, advertisements, brochures, public service announcements, intake clinics. Ombudsman can tailor their communications to the audiences they intend to reach.

Physical access must also be considered. Offices should be located in areas where they are visible and accessible to the public (barrier-free). Ombudsman may employ various resources e.g., toll free numbers, TDY lines, multi-lingual translation and interpretation, to ensure that those most in need of their services can access them.

  • credibility

An Ombudsman’s ability to achieve sound results will depend to a large extent on the credibility of the Ombudsman personally and of his/her office. Complainants must perceive the Ombudsman to be a real complaint resolution mechanism and not just another department within a larger whole. Credibility is often linked to independence.

Ombudsman do not adjudicate. They do not make orders and enforce judgments. The Ombudsman’s authority is typically recommendatory in nature. The Ombudsman’s strength is in the ability to persuade. An Ombudsman who follows a fair and consistent procedure for the investigation and resolution of complaints, who makes realistic recommendations and works with the organization subject to review to improve services, is much more likely to win trust and respect and to achieve positive results.

Forum of Canadian Ombudsman