1 The independence in the role of the Ombudsman or Public Protector

• A role created by the National Assembly, is part of the parliamentary power;
• Led by an independent public official, appointed by the National Assembly, to which he exclusively reports;
• The Public Protector appoints his own staff;
• See:
  • Public Protector Act, c. P-32, ss. 1-11 (the PPA);
  • Ontario Ombudsman Act, c. O.6 (hereinafter, the Ontario Act) s. 2-11;
  • British Columbia Development Corporation v. Friedmann (Ombudsman) [1984] 2 S.C.R. 447, pp. 450-462;
  • Brun et Tremblay, pp. 693-698.

2 His role: to monitor and correct errors and injustices

• Some history and political science (Friedmann, pp. 458-467);
• "remedial" nature of the PPA, an act which is "favourable," subject to a directive of broad interpretation (Friedmann, P.-A. Côté);
• section 13, PPA: the Public Protector intervenes:

  • "whenever he has reasonable cause to believe that a person or group of persons has suffered or may very likely suffer prejudice as the result of an act or omission of a public body"
  • "on his own initiative or at the request of any person;"

• Ontario Act, s. 14: the Ombudsman investigates: "any decision or recommendation made or any act done or omitted in the course of the administration of a governmental organization and affecting any person or body of persons in his, her or its personal capacity."

3 His power: intervention, investigation, access to documents

• Jurisdiction over the "public bodies" of the Government of Quebec (ss. 14-17, PPA);
• Ontario Act, ss. 1 and 14: jurisdiction over "governmental organizations;"
• accessibility: free, without any red tape, assistance from staff (s. 21, PPA);
• when he intervenes, he invites the public body to "be heard," that is, to give the necessary information and provide its point of view and "where appropriate, shall invite it to remedy the prejudicial situation" (s. 23, PPA); Ontario Act, s. 18(1), (2) and (4);
• "intervention by the Public Protector shall be in private," both with the government and with regard to the citizen (s. 24, PPA); Ontario Act, s. 18(2);
• the intervention may include an investigation (s. 24, PPA); Ontario Act, s. 19;
• pursuant to his power as inquiry commissioner, the Public Protector may require any document, information or file held by the public body and obtain answers to all of his questions (s. 25, PPA and the Act Respecting Public Inquiry Commissions; s. 171, the Act Respecting Access to Documents Held by Public Bodies and the Protection of Personal Information, the AAI); the Ontario Act, s. 19;
• with respect to interventions, he does not have to use the application procedure for access to documents set out in the Act Respecting Access (s. 171, AAI).

4 His action: beyond what is strictly legal, based on fairness and reasonableness

4.1 Nature of his action
• One of the [Translation] "great critics of the government" (Patrice Garant), he is [Translation] "neither a parliamentarian nor a minister nor a judge, but merely a citizen…whose powers of inquiry and recommendation have been acknowledged legislatively, institutionalized and organized in a new way" (Louis Marceau, first Public Protector);
• He does not possess coercive power and thus cannot force a public body to right a wrong;
• He does not exercise judicial control, but does exercise [Translation] "a control over the exercising of the executive role which differs from the traditional parliamentarian approach, likely to satisfy the grievances of isolated individuals" (Brun et Tremblay, Droit constitutionnel, p. 698);
• His sole power is to recommend. He acts by persuasion, exercising a [Translation] "power of persuasion" (Patrice Garant);
• [Translation] "situations likely to justify his intervention fall into two categories: strictly legal behaviour of the governmental authority (violation of the law, error of law or of fact, discrimination, abuse of discretionary power) and the more flexible concept of fairness in governmental action and more specifically expresses the Public Protector's mission (unreasonable, unfair or arbitrary behaviour of the governmental authority." (Issalys, Lemieux, p. 291);
• with regard to the grounds for intervention, see s. 26.1, PPA; Ontario Act, s. 21
• The concept of fairness: Fairness is [Translation] "built on the natural feeling of what is fair and not substantive enforceable standards." The Mediator of the French Republic defined it as follows:

  [Translation] a remedy for written legislation where its application results in clearly disproportionate consequences. It is also a supplement which allows gaps in the legislation and regulations to be filled when a specific case has not been provided for in the legislation. A standard of natural justice applied to a specific situation, fairness allows the impact of the legislation to be generally adapted to the complexity of the circumstances and the singularity of the concrete situation." (Taken from, "L'argument de l'équité," http://www.médiateur-de-la-république.fr/médiateur/role/equite.htm)

• From 1998-2000, the Quebec Ombudsman has benefited from two significant legislative instruments to support his action. They have codified the principles of procedural fairness, i.e. "duty to act fairly," as well as established the concepts of governmental transparency, accessibility and quality of services-principles and concepts recorded since 1994 in his "Social Contract" (http://www.ombuds.gouv.qc.ca/en/mandat/pacte/htm);
• In 1998, the Act Respecting Administrative Justice (R.S.Q., c. J-3) incorporated into the Quebec legislation, the "duty to act fairly," and recorded the main rules of procedural fairness, rendering the AAJ the fundamental Act for administrative justice, and resulting in all Quebec legislation being reviewed in order to conform to it;
• The Public Administration Act (S.Q. 2000, c. 8) sets out the "results-based management framework centred on transparency" and requires that "a department or body that provides services directly to the public shall publish a service statement setting out its objectives with regard to the level and quality of the services provided." This statement shall mainly specify the time frame within which services are to be provided and give clear information on their nature and accessibility.

  4.3 The different means of action

• The Public Protector uses notices, recommendations or reports (Division VI, ss. 26-29, PPA); Ontario Act, s. 21(3), (4) and (5);
• notices
• where the Public Protector is of the opinion that no prejudicial situation exists or that the prejudicial situation brought to his attention has not been adequately remedied, he shall promptly notify the interested parties, citizen and public body (s. 26, PPA); Ontario Act, s. 22 (1);
• the Public Prosecutor notifies in writing the chief executive officer of a public body every time he is of opinion that this public body:

  • compliance with the law:

    - "has not complied with the law" (s. 26.1(1), PPA);

    - "in the exercise of discretionary power, has acted for an unjust purpose, has been actuated by irrelevant motives or has failed to give reasons for its or his discretionary act when it or he should have done so" (s. 26.1(5), PPA);

    - "has committed an error of law or of fact" (s. 26.1(4), PPA);

  • fair and reasonable governmental action:
    - "has acted in an unreasonable, unjust, arbitrary or discriminatory manner" (s. 26.1(2), PPA);

    - "has failed in its or his duty or has been guilty of misconduct or negligence" (s. 26.1(3), PPA);

  • see the equivalent provision for Ontario: Ontario Act, s. 21;

• recommendations:
  
  
  • he may add any recommendation he deems useful and ask to be informed of the measures taken to remedy the prejudicial situation (s. 26.2, PPA); Ontario Act, s. 21(3);

• written reports:

  • after making a recommendation to a public body, and where no satisfactory measure has been taken within a reasonable time to adequately remedy the situation, the Public Protector may (Ontario Act, s. 21(4)):

    • notify the government in writing (s. 27, PPA); or
    • relate the case in a special report or in his annual report; (s. 27, PPA);
    • in his annual report (Ontario Act, s. 11) to the National Assembly, the Public Protector shall:

      - set out the case in respect whereof he has made a recommendation or issued a notice (s. 28, PPA);

      - where such is the case, set out the corrective measures taken by the authority concerned (s. 28, PPA);

      - transmit a summary report stating the number, nature and outcome of all interventions for each public body; (s. 27.2, PPA);

• public comments - the Public Protector may also, where he deems it to be in the public interest, comment publicly on a report he has submitted to the National Assembly or on any past intervention or even on any intervention in progress (s. 27.4, PPA); Ontario Act, s. 22(1).

• He cannot intervene:

  • where the person affected by the intervention "has a legal remedy that can adequately correct the prejudicial situation within a reasonable time"; Ontario Act, s. 17(4); the Public Protector, not the public body, has discretion to determine whether there is a "legal remedy" and whether it is adequate (ss. 18(1) and (2) PPA);
  • in respect of a public body or a person who or which, in the particular case, is bound to act judicially (s. 18(3) PPA), which includes the jurisdictional function of the government; however, he retains jurisdiction over the administrative aspects of the public body; Ontario Act, s. 13(a);
  • in the course of labour relations with the person whose interests are affected (s. 18(5) PPA);

• he shall refuse to intervene:

  • where a remedy exercised in a court of law by a person affected by the intervention pertains to the facts on which the intervention is based (s. 19 PPA); Ontario Act, s. 14(a);
  • where more than one year has elapsed since the person affected had knowledge of the facts on which the intervention is based, unless he considers that the circumstances are exceptional (s. 19 PPA); Ontario Act, s. 17(1)(a);

• he can refuse to intervene:

  • where the person refuses or neglects to furnish the necessary information (s. 19.1 PPA);
  • where the application for intervention is frivolous, vexatious or made in bad faith (s. 19.1 PPA); Ontario Act, a. 17(2)(a);
  • where, in his opinion, an intervention is not expedient in view of the circumstances (s. 19.1 PPA); Ontario Act, s. 17(1)(b).

• Scrutiny of legislation - The Public Protector examines bills and draft regulations, analyzes them to identify their administrative, economic or social repercussions or the effects that are prejudicial to the public. He can communicate directly with the National Assembly or the government, by brief or letter, to propose amendments to improve a bill and prevent "harm" to citizens;
• Interventions in the system - The Public Protector may, in order to remedy prejudicial situations he has noted, call to the attention of a chief executive officer or the government such legislative, regulatory or administrative reforms as he deems to be in the public interest (s. 27.3 PPA); [Ontario Act, s. 22(3), (4) and (5)]. These interventions can lead to legislative and social changes (e.g. the sharing of housing for social assistance recipients in Quebec) or the remedying of serious injustices, over and above the strictly legal obligations of the government (e.g. compensation for the Duplessis orphans).

• The Public Protector has immunity from prosecution by reason of official acts done in good faith in the performance of his duties (s. 30 PPA); Ontario Act, s. 24;
• he is also protected by a full privative clause (ss. 31 and 32 PPA); Ontario Act, s. 23;
• he is bound, as are his assistant and staff, by obligations of confidentiality (ss. 5, 11, 24, 33 and the oath of confidentiality); Ontario Act, ss. 12 and 18(2);
• he cannot be compelled to give evidence obtained in the performance of his duties or to produce any document containing such information (s. 34 PPA); Ontario Act, s. 24(2);
• notwithstanding section 9 of the Act Respecting Access to Documents Held by Public Bodies and the Protection of Personal Information, no person has a right of access to such a document obtained in the course of the Protector's duties (s. 34 PPA);
• however, a person affected by nominative information kept on him by the Public Protector has the right to obtain such information; in this case, the restrictions on the right to access in the AAI apply (ss. 83 and 87 AAI);
• the Public Service Act does not apply to the Protector, his assistant or his staff (s. 36 PPA). However, the Protector has adopted, through policies, the terms and conditions of employment in the public service. The government determines the number of employees and the rates of pay (s. 11 PPA); Ontario Act, s. 8.

• British Columbia Development Corporation v. British Columbia (Ombudsman) [1984] 2 S.C.R., 447, pp. 449-461;
• BRUN, Henri and TREMBLAY, Guy, Droit constitutionnel, 4th edition, Éditions Yvon Blais, 2001, pp. 693-698.
• CÔTÉ, Pierre-André, The Interpretation of Legislation in Canada, 3rd edition, Les Éditions Thémis, 1999, pp. 629-633.
• GARANT, Patrice, Droit administratif, 4th edition, Les Éditions Yvon Blais Inc., Cowansville, 1996, p. 698.
• ISSALYS, Pierre and LEMIEUX, Denys, L'action gouvernementale - Précis de droit des institutions administratives, 2nd edition, Les Éditions Yvon Blais, Cowansville, 2002, p. 321;
• MARCEAU, Louis "Le Protecteur du citoyen, les institutions publiques traditionnelles et les tribunaux administratifs", [1970] Revue du barreau, volume 30, no. 1, p. 67.
• MOCKLE, Daniel, "Justice administrative et équité", Revue du Barreau canadien, volume 78, June 1999, p. 146.