Re: The Yukon Ombudsman, 2023 YKSC 26

SUPREME COURT OF YUKON Citation: Re: The Yukon Ombudsman , 2023 YKSC 26 Date: 20230530 S.C. No. 20-A0108 Registry: Whitehorse THE YUKON OMBUDSMAN PETITIONER Before Justice E.M. Campbell Counsel for the Petitioner Joan M. Young Counsel for the Government of Yukon, the Attorney General of Yukon, Minister of Health and Social Services and the Director of Family and Children’s Services I.H.

Fraser REASONS FOR DECISION INTRODUCTION [ 1 ] The Yukon Ombudsman (the “Ombudsman”) commenced an investigation involving the Government of Yukon, Department of Health and Social Services (the “Department”), specifically, the Family and Children Services Branch (“FCS”). In the course of the investigation, a number of issues arose between the Ombudsman, the Department, and the Government of Yukon, Department of Justice, Legal Services Branch (“Legal Services”) regarding the Ombudsman’s power to compel full disclosure of information and documents from FCS.

As a result, the Ombudsman petitions the Court and seeks three declarations which, the Ombudsman argues, are related to its jurisdiction to investigate matters under the Ombudsman Act , RSY 2002, c. 163 (the “ Act ” ). The Ombudsman contends that these declarations are necessary to carry out its mandate properly and effectively. [ 2 ] The Attorney General of Yukon, the Minister of Health and Social Services, and the Director, Family and Children Services (collectively referred to as “Yukon”) oppose the petition and seek an order dismissing the Ombudsman’s application with costs.

BACKGROUND FACTS AND ISSUES [ 3 ] The facts in this matter do not appear to be in dispute. On November 18, 2019, a complaint was made to the Ombudsman by the father of a child alleging that FCS had failed to follow its procedures when being involved with his child and the child’s mother.

Specifically, the father complained that despite the FCS’ longstanding involvement with the child and the child’s mother, FCS had failed to advise him of the risk of violence associated with the mother’s partner which, in his view, created safety risks for both him and his child. [ 4 ] Commencing in November 2019, the Ombudsman contacted the Department to obtain documents regarding this complaint. At the same time, the Ombudsman advised the Department of its Informal Case Resolution Process. The Ombudsman also sought to meet with a representative of the Department to discuss the complaint.

The Ombudsman was then referred to legal counsel for the Department.

In response to repeated requests between November 2019 and August 2020, including two notices to produce records, legal counsel for the Department took the position that disclosure of information and documents sought by the Ombudsman was prohibited by ss. 178 and 179 of the Child and Family Services Act , SY 2008, c.1 (the “ CFSA ”), without an order from the Supreme Court of Yukon, to which the Director, Family and Children Services (the “Director”) was prepared to consent provided the Ombudsman agreed to a number of conditions, including the redaction of third parties’ names.

The Director also sought to narrow the scope of the Ombudsman’s disclosure demand based on relevance. In addition, legal counsel insisted the Ombudsman communicate with the Department and FCS only through legal counsel.

While the Ombudsman did not object to the documents being redacted to protect the identity of third parties, it took the position that a disclosure order from the Supreme Court was not required because the CFSA did not preclude the Director and FCS from disclosing the requested information and documents to the Ombudsman. [ 5 ] As a result of the refusal by the Department (more specifically FCS and the Director) to comply with its notices to produce, the Ombudsman filed a Petition with the Supreme Court seeking three declarations pursuant to s. 12(3) of the Act , which permits the Ombudsman to seize the court with a question regarding the scope of its jurisdiction. [ 6 ] First, the Ombudsman seeks a declaration that its jurisdiction to investigate an authority, including the Department, includes a

right to question the authority directly, and the Ombudsman is not required to communicate through an authority’s legal counsel(Requested Declaration #1). [7] Second, a declaration is sought that the Ombudsman has the jurisdiction to require the disclosure of full and unredacteddocuments from a person or authority, except: (

i) to the extent ss. 18 and 20 of the Act provide otherwise; and (ii) to the extent a court may, upon application of the authority, order otherwise (Requested Declaration #2). [8] Third, a declaration is sought that the Ombudsman’s jurisdiction to investigate complaints related to FCS includes a right toaccess documents in the possession of the Department and a Director appointed under the CFSA, which right is not precluded by ss. 178and 179 of the CFSA (Requested Declaration #3). [9] After the petition was filed by the Ombudsman, the parties filed a consent order allowing the Ombudsman to obtain disclosurefrom FCS on agreed upon terms to pursue its investigation.

The consent order was entered into on a without prejudice basis to theparties’ respective positions in this matter. Nonetheless, a decision from the Court is sought to clarify, among other things, the statutorypower of the Ombudsman to compel full disclosure of FCS’ records. BRIEF CONCLUSION [10] For the reasons expressed below, I am not prepared to grant Declarations #1 and #2. I find it appropriate to grant onlyDeclaration # 3. Also, considering the nature of this case and the mixed results, both parties will bear their own costs with respect to thispetition.

THE ROLE AND POWERS OF THE OMBUDSMAN [11] The Ombudsman plays an important role and carries out an important mandate as an independent officer of the YukonLegislative Assembly.

The Ombudsman has the power to receive, inquire into, settle, and report upon complaints from members of thepublic who believe they have been treated unfairly by territorial government departments and other territorial administrative authoritiesidentified in the legislation (ss. 1 & 11 of the Act and British Columbia Development Corporation v Friedmann (Ombudsman), (SCC), [1984] 2 SCR 447 (“Friedmann”) at 450). [12] The institution of Ombudsman dates back to Sweden more than 200 years ago.

In Friedmann at 450, the Supreme Court ofCanada explained that the term Ombudsman comes from a Swedish word which may be loosely translated as “citizens’ defender” (seeNova Scotia (Office of the Ombudsman) v Nova Scotia (Attorney General), 2019 NSCA 51 (“Nova Scotia (Office of the Ombudsman)”)at paras. 27-28). Friedmann is the leading case in Canada with respect to matters of statutory

interpretation involving the role andjurisdiction of the institution of Ombudsman. [13] The Supreme Court of Canada further noted in Friedmann that the institution of Ombudsman has, since its inception in Sweden,been adopted in many jurisdictions around the world, including Canada.

At the time of the Friedmann decision, in the mid-80s, mostprovinces had established their own Ombudsman’s office, with similar jurisdiction and investigative powers. [14] In Friedmann, at 459 and 461, the Supreme Court of Canada described as follows the role the institution of Ombudsman plays ina democratic society in providing for an independent means of oversight and accountability over the actions of governmentadministration entities: The factors which have led to the rise of the institution of Ombudsman are well-known.

Within the last generation or two the size andcomplexity of government has increased immeasurably, in both qualitative and quantitative terms. Since the emergence of the modernwelfare state the intrusion of government into the lives and livelihood of individuals has increased exponentially. Government nowprovides services and benefits, intervenes actively in the marketplace, and engages in proprietary functions that fifty years ago wouldhave been unthinkable.

As a side effect of these changes, and the profusion of boards, agencies and public corporations necessary to achieve them, has come theincreased exposure to maladministration, abuse of authority and official insensitivity. And the growth of a distant, impersonal,professionalized structure of government has tended to dehumanize interaction between citizens and those who serve them. See L.Hill, The Model Ombudsman (1976), at pp. 4-8.

The traditional controls over the implementation and administration of governmental policies and programs—namely, the legislature, theexecutive and the courts—are neither completely suited nor entirely capable of providing the supervision a burgeoning bureaucracydemands. … … The Ombudsman represents society’s response to these problems of potential abuse and of supervision. His unique characteristics renderhim capable of addressing many of the concerns left untouched by the traditional bureaucratic control devices. He is impartial. Hisservices are free, and available to all.

Because he often operates informally, his investigations do not impede the normal processes ofgovernment. Most importantly, his powers of investigation can bring to light cases of bureaucratic maladministration that would

otherwise pass unnoticed. The Ombudsman “can bring the lamp of scrutiny to otherwise dark places, even over the resistance of thosewho would draw the blinds”: Re Ombudsman Act (1970), (AB KB), 72 W.W.R. 176 (Alta. S.C.), per Milvain C.J., atpp. 192-93. On the other hand, he may find the complaint groundless, not a rare occurrence, in which event his impartial andindependent report, absolving the public authority, may well serve to enhance the morale and restore the self-confidence of the publicemployees impugned.

In short, the powers granted to the Ombudsman allow him to address administrative problems that the courts, the legislature and theexecutive cannot effectively resolve. [15] More recently, in Nova Scotia (Office of the Ombudsman), the Nova Scotia Court of Appeal made similar comments regardingthe important role played by the Nova Scotia Ombudsman and the broad investigative powers it was given by the provincial legislatureto properly perform its supervisory and review responsibilities: [65] As previously discussed, the legislative purpose of the Ombudsman is remedial.

His broad statutory jurisdiction enables him to actas a watchdog over the operations of government. He has legislative authority to provide an impartial and independent review of theconduct of provincial and municipal government departments in properly and fairly administering the law. These responsibilities areachieved by recognizing the Ombudsman’s considerable powers to investigate, subpoena, question under oath, compel production, makerecommendations, publicly report, and when considered necessary, expose abuse and misconduct. [16] Nonetheless, the office of the Ombudsman is a creature of statute.

Therefore, the Ombudsman’s authority, powers, andjurisdiction emanate from the legislation (Nova Scotia (Office of the Ombudsman) at para. 34). As is the case in other Canadianjurisdictions, the Yukon Ombudsman’s statutory powers to investigate matters of administration are significant. [17] The function and duty of the Yukon Ombudsman are found at s. 11 of the Act which stipulates that:

(1) It is the function and duty of the Ombudsman to investigate on a complaint any decision or recommendation made … or any act doneor omitted, relating to a matter of administration and affecting any person or body of persons in their or its personal capacity, in or by anyauthority, or by any officer, employee, or member thereof in the exercise of any power or function conferred on them by any enactment. [18] The Ombudsman may, upon receiving a complaint referred to in s. 11(1), investigate a decision or recommendation made; an actdone or omitted; or a procedure used by an authority that aggrieves or may aggrieve a person (s. 11(2)).

An authority includes, amongother entities, all departments of the Government of Yukon, hospitals and boards of management of hospitals governed by the HospitalAct, RSY 2002, c. 111, schools other than private schools governed by the Education Act, RSY 2002, c. 61. It also includes any membersor employees of the authority (s. 1 and

Schedule A of the Act). The Ombudsman also has the authority to refuse to investigate acomplaint in certain circumstances (s. 14). [19]

Section 10 of the Act imposes an obligation of confidentiality on the Ombudsman and its staff regarding the information theyreceive while performing their duties under the Act. They may not disclose that information except when permitted by the Act. Also, theOmbudsman must conduct its investigation in private unless the Ombudsman is of the opinion there are special circumstances in whichpublic knowledge is essential to further the matter or is required to carry out its mandate. In addition, the Ombudsman must take an oathto act in an impartial manner while performing its mandate. [20] There are certain limitations to the Ombudsman’s jurisdiction to investigate a matter.

Section 12 of the Act precludes theOmbudsman from investigating conduct that occurred before the coming into force of the Act. It also precludes the Ombudsman frominvestigating any matters in respect of which the merits of the case can be, and have been, properly brought to a court or a tribunal fordetermination, or until the time prescribed for the exercise of the right to appeal, object, or to a review of the merits of the case to a courtor a tribunal has expired.

In addition, the Ombudsman cannot investigate a decision, recommendation, act, or omission of legal counselfor an authority. [21] If the Ombudsman determines that it should launch an investigation into a complaint, “the Ombudsman shall notify the authorityaffected and any other person considered appropriate to notify in the circumstances” (s. 15(1) of the Act). [22] During or after an investigation, the Ombudsman has the power to “consult with an authority to attempt to settle the complaint, orfor any other purpose” (s. 15(2) of the Act). [23]

Section 16 of the Act sets out the Ombudsman’s broad investigative powers to demand production of relevant documents; to enterand inspect premises occupied by an authority; and to summon and examine persons under oath. It stipulates: 16 Power to obtain information

(1) The Ombudsman may receive and obtain information from the persons and in the manner considered appropriate, and in theOmbudsman’s discretion may conduct hearings.

(2) Without restricting subsection (1), but subject to this Act, the Ombudsman may

(

a) at any reasonable time enter, remain on, and inspect all of the premises occupied by an authority, converse in private with anyperson there and otherwise investigate matters within the Ombudsman’s jurisdiction; (

b) require a person to furnish information or produce a document or thing in their possession or control that relates to an investigationat a time and place the Ombudsman specifies, whether or not that person is a past or present member or employee of an authority andwhether or not the document or thing is in the custody or under the control of an authority; (

c) make copies of information furnished or a document or thing produced under this section; (

d) summon before the Ombudsman and examine on oath any person who the Ombudsman believes is able to give informationrelevant to an investigation, whether or not that person is a complainant or a member or employee of an authority; (

e) receive and accept, on oath or otherwise, evidence, the Ombudsman considers appropriate, whether or not it would be admissiblein a court.

(3) When the Ombudsman obtains a document or thing under subsection (2) and the authority requests its return, the Ombudsman shallwithin 48 hours after receiving the request return it to the authority, but the Ombudsman may again require its production in accordancewith this section. [24] Pursuant to s. 17 of the Act, if it seems to the Ombudsman that there may be sufficient grounds for making a report or arecommendation that may adversely affect an authority or a person, the Ombudsman must inform the authority or person of thosegrounds and give them the opportunity to make representations before the Ombudsman makes a determination on the complaint. [25] After receiving and investigating a complaint, the Ombudsman reports its findings, as well as any recommendations, to theauthority being investigated.

If it finds that the complaint is substantiated, the Ombudsman has the authority to make recommendationsto the authority on how to remedy the situation and may seek that the authority report back on how it will implement or not therecommendation(

s) it made.

If the Ombudsman finds the authority has not responded adequately or appropriately to itsrecommendation(s), it may decide to report to the Commissioner in Executive Council and, after that, to the Legislative Assembly (ss.23-25 of the Act). [26] Also, after an investigation is completed, the Ombudsman must, within a reasonable time, inform the complainant of the result ofthe investigation (ss. 22 and 26 of the Act). [27] Finally, the Ombudsman may, in addition to its annual report to the Legislative Assembly, make a special report to theLegislative Assembly, or comment publicly on a matter relating generally to the exercise of its duties or on a particular case itinvestigated (s. 31 of the Act).

PRINCIPLES OF STATUTORY

INTERPRETATION [28] The declarations sought by the Ombudsman require a determination of the meaning of, and interaction of, provisions of severalstatutes that relate to the scope of the Ombudsman’s investigating powers over the Department and more specifically FCS. [29] When determining the meaning of statutory provisions, Canadian courts apply the modern approach to statutory

interpretation.This approach requires that the words of a statute be read in their entire context and in their grammatical and ordinary senseharmoniously with the scheme of the act, the object of the act, and the intention of the Legislature. R v McColman, 2023 SCC 8(“McColman”) states: [35] Under the modern approach to statutory

interpretation, “the words of statute must be read ‘in their entire context and in theirgrammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention ofParliament’”: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, at para. 117, citing Rizzo& Rizzo Shoes Ltd. (Re), (SCC), [1998] 1 S.C.R. 27, at para. 21, and Bell ExpressVu Limited Partnership v. Rex, 2002SCC 42, [2002] 2 S.C.R. 559, at para. 26, both quoting E.

Driedger, Construction of Statutes (2nd ed. 1983), at p. 87; see also Canada v.Alta Energy Luxembourg S.A.R.L., 2021 SCC 49, at para. 37. In determining the meaning of the text, a court cannot read a statutoryprovision in isolation, but must read the provision in light of the broader statutory scheme: Rizzo, at para. 21.

See also R v JD, 2022 SCC 15 at para. 21; R v Breault, 2023 SCC 9 at paras. 25-26. [30] Also, in Friedmann, the Supreme Court of Canada gave specific guidance regarding the appropriate analytic approach to take inmatters involving the investigatory role of an Ombudsman: “Any analysis of the proper investigatory role the Ombudsman is to fulfill

must be animated by an awareness of [the] broad remedial purpose for which the office has traditionally been created” (at 450). [31] However, the Supreme Court of Canada also noted in Friedmann that the analysis regarding the scope of an Ombudsman’sjurisdiction and powers must be grounded in the specific language of an Ombudsman’s enabling legislation. At the same time it must be emphasized that the Ombudsman is a statutory creation. It is elemental that the nature and extent of thejurisdiction which may be exercised by the Ombudsman in this case turns upon the

interpretation to be given the specific language of theBritish Columbia legislation. (at 450) [32] The Supreme Court of Canada went on to find, at 463, that “the Ombudsman Act of British Columbia provides an efficientprocedure through which complaints may be investigated, bureaucratic errors and abuses brought to light and corrective actioninitiated.’’ It also found the British Columbia Ombudsman’s legislation “represents the paradigm of remedial legislation’’, and that “[i]tshould therefore receive a broad, purposive

interpretation consistent with the unique role the Ombudsman is intended to fulfil” (at 463). [33] The guiding principles enunciated in Friedmann have been applied consistently by courts across the country when tasked withdetermining the scope of the authority and powers given to an Ombudsman in their respective jurisdictions (Nova Scotia (Office of theOmbudsman) at para. 58). The statutory role, jurisdiction and powers of the Yukon Ombudsman are very similar to the British ColumbiaOmbudsman (now the Ombudsperson).

Therefore, the guiding principles set out in Friedmann apply and must guide the statutoryanalysis required to answer the questions raised by this matter. [34] In addition, s. 10 of the

Interpretation Act, RSY 2002, c. 125 (“Interpretation Act”), must be considered and applied wheninterpreting territorial statutes. Its wording aligns with the principles enunciated by the Supreme Court of Canada in Friedmann: 10 Every enactment remedial Every enactment and every provision thereof shall be deemed remedial and shall be given the fair, large, and liberal

interpretation thatbest insures the attainment of its objects.

THE DISCRETIONARY NATURE OF THE DECLARATORY RELIEF SOUGHT BY THE OMBUDSMAN [35] The Ombudsman seeks three declarations, which are judicial statements or determination, from the Court regarding the scope ofthe Ombudsman’s statutory jurisdiction, and, more specifically, the scope of some of its investigative powers (s. 12 of the Act; Reid vManufacturers Life Insurance Co, 2010 ONSC 4645 at paras. 18-22; Solosky v The Queen, (SCC), [1980] 1 SCR 821 at830- 831 (“Solosky”)). [36] There is no dispute the Supreme Court of Yukon has jurisdiction to hear the Ombudsman’s petition (see Judicature Act, RSY2002, c. 128, s. 32; s. 12 of the Act). [37] The granting of a declaration is discretionary.

A court may refuse to grant a declaration even if the case for it has been madeout. In Daniels v Canada (Indian Affairs and Northern Development), 2016 SCC 12, referring to Canada (Prime Minister) v Khadr,2010 SCC 3, the Supreme Court of Canada restated the test for when a declaration may be granted is as follows: [11] … The party seeking relief must establish that the court has jurisdiction to hear the issue, that the question is real and nottheoretical, and that the party raising the issue has a genuine interest in its resolution.

A declaration can only be granted if it will havepractical utility, that is, if it will settle a “live controversy” between the parties: see also Solosky v the Queen, (SCC),[1980] 1 S.C.R. 821; Borowski v Canada (Attorney General), (SCC), [1989] 1 SCR 342. [38] In addition, there are a number of factors to consider when determining whether to exercise the court’s discretion to issue adeclaration. I will address those that are relevant under each of the declarations sought by the Ombudsman.

REQUESTED DECLARATION #1 [39] The Ombudsman seeks a declaration that its jurisdiction to investigate an authority includes a right to question the authoritydirectly, and that it is not required to communicate through an authority’s legal counsel.

Positions of the Parties The Ombudsman [40] The Ombudsman submits that while performing investigative and settlement functions, it possesses significant powers to engagein communications and seek information. [41] The Ombudsman contends that these powers include a right to question an authority, including the Department, directly, asopposed to communicating through the authority’s legal counsel, when directed by the authority or its legal counsel. [42] The Ombudsman maintains that its powers to directly gather information from, and to speak directly with, individuals withingovernment goes to the core of its function and mandate.

The Ombudsman submits that its ability to fulfill its functions and mandate

would be materially impaired if it were to be prevented from engaging directly with individuals in its discretion while performing its investigative and settlement functions. [ 43 ] The Ombudsman argues that no legislative provision in the Act allows an authority to restrict these expansive powers by refusing to engage with the Ombudsman except through legal counsel. [ 44 ] As a result, the Ombudsman maintains that it has the right to question a representative of an authority without communicating through the authority’s legal counsel. [ 45 ] The Ombudsman submits that, contrary to what Yukon contends, this is not a right to counsel case, and s. 10(

b) of the Canadian Charter of Rights and Freedoms ,

Part 1 of the Constitution Act, 1982 (the “ Charter ” ) is not engaged in the context of its investigations. [ 46 ] Finally, the Ombudsman submits there are no facts before the Court that could suggest the Ombudsman ever precluded anyone from seeking timely legal advice in the context of its investigations.

Yukon [ 47 ] Yukon objects to the Court issuing any of the three declarations in the form sought as, according to Yukon, it would not resolve any substantive legal issue in dispute and would serve no practical purpose. [ 48 ] Nonetheless, Yukon, through its counsel, formally acknowledged at the hearing that the Ombudsman has the right to speak with an authority directly and is not required to communicate solely through an authority’s legal counsel.

Yukon added there is no suggestion that the Ombudsman has ever tried to bypass counsel in the past. [ 49 ] However, Yukon submits the declaration sought by the Ombudsman is broadly worded and could be interpreted in a manner that affects or interferes with an authority’s or a person’s right to obtain legal advice and have legal counsel represent them in their interactions with the Ombudsman.

Yukon submits the declaration, as worded, could be misinterpreted as a judicial pronouncement on three related, but distinct, issues involving the rights of various persons, upon which the parties disagree. [ 50 ] First, Yukon contends a person the Ombudsman seeks to question has the individual right to assistance by counsel of choice to represent and advise them during questioning. [ 51 ] Second, Yukon contends there is a statutory authority for Department of Justice’s counsel to be present on behalf of the Attorney General whenever the Ombudsman seeks to gather information or documents from any person who may possess information or documents subject to certification under s. 18 of the Act . [ 52 ] Third, Yukon contends the Minister (or Deputy Minister) of Health and Social Services has the statutory authority to direct that persons employed by the Department refrain from communicating with the Ombudsman unless counsel for the Department of Justice are involved, both to represent the interests of the Government of Yukon and to subsequently be in a position to provide informed legal advice to the Minister (or Deputy Minister). [ 53 ] Yukon maintains that, assuming for the purposes of this petition, the Ombudsman has the power to compel persons to answer its questions, two aspects arise from an entitlement to have counsel present for the purposes of representation.

First, whether there is a right to counsel under the Charter , and, alternatively, whether the Act should be interpreted with Charter values so as to prevent a person from being compelled to answer questions from the Ombudsman without first retaining counsel to represent them in the course of such questioning. [ 54 ] In terms of the Charter right, Yukon contends that the Ombudsman’s questioning of a representative of an authority amounts to testimonial compulsion, thus engaging a liberty interest. It is argued that this amounts to a “detention” within the meaning of the Charter .

According to Yukon, such questioning by the Ombudsman may well result in the person being interviewed requiring assistance from counsel in terms of how, or even whether, to answer a question. Yukon submits the Ombudsman’s authority to investigate is not unlimited, and the scope of any investigation is constrained by the nature of the complaint and the provisions of the Act . [ 55 ] Yukon submits that even where the Charter does not have direct application, its values should inform a court’s

interpretation of both statutory provisions and common law rules and serve as a constraint on any exercise of administrative discretion. [ 56 ] Yukon argues that the Charter value stemming from s. 10(

b) is that those individuals compelled to answer questions by a state authority should have the ability to choose whether to have counsel present to represent their interests and advise them as required.

Doing so would in no way negatively impact the Ombudsman’s discharge of its statutory duties or constrain its discretion under the Act to respect the Charter value. [ 57 ] Yukon also submits that the Act ’s use of the term “in private” does not equate to a conversation or proceeding being held without the ability for counsel to be present. [ 58 ] Additionally, Yukon highlights s. 18 of the Act , which contemplates, in certain circumstances, the Minister of Justice making and delivering a certificate to prevent the Ombudsman from entering a premise or requiring anyone to furnish information or documents.

If counsel were unable to be present to determine if an entry, question, or demand for production should be covered by a certificate, the Minister of Justice would be prevented from discharging her duties under the Department of Justice Act , RSY 2002, c. 55 . [ 59 ] Finally, Yukon submits that an investigation by the Ombudsman may result in complex legal issues arising, requiring the Minister (or Deputy Minister) of Health and Social Services to seek legal advice and representation.

Allowing the Ombudsman to exclude legal counsel from aspects of an Ombudsman’s investigation may well result in unfairness and prejudice to the Minister. Analysis

[60] First, Yukon’s statement that the Ombudsman is not required to communicate with an authority solely through legal counsel doesappear to resolve a live issue that arose in this matter. [61] Nonetheless, Yukon’s acknowledgement coupled with its assertion there is no longer a dispute between the parties on this issueis not determinative of whether I should exercise my discretion to issue or not the first declaration sought by the Ombudsman.Considering Yukon’s lengthy submissions on the Charter rights concerns raised as a ground for opposing the declaration, I feelcompelled to address arguments Yukon made in that regard. [62] Yukon has referred to Supreme Court of Canada and other appellate jurisprudence in the criminal and quasi-criminal area insupport of its argument that a person questioned by the Ombudsman, in the course of its investigation, is detained in law.

As such, theyshould be provided with their right to counsel pursuant s. 10(

b) of the Charter. However, detention under ss. 9 and 10 of the Charteronly occurs when an individual’s liberty interests are suspended “by a significant physical or psychological restraint” (R v Grant, 2009SCC 32 at para. 44). An individual’s s. 10(

b) right to counsel arises immediately upon detention, even if the detention is only forinvestigative purposes (R v Suberu, 2009 SCC 33; R v Mann, 2004 SCC 52). [63] Yukon maintains that a person questioned during an Ombudsman’s investigation may face jeopardy based on responses given tothe Ombudsman’s questions. Yukon states the person may face negative employment or economic consequences or criminal orregulatory sanctions depending on their responses, and the ultimate conclusions of the investigation by the Ombudsman. [64] However, these submissions are based on hypotheticals that are not supported by the record before me. In any event, asmentioned, the case law interpreting s. 10(

b) of the Charter is in the criminal and quasi-criminal areas. [65] In British Columbia (Attorney General) v Christie, 2007 SCC 21, the Supreme Court of Canada held that s. 10(

b) of the Charteronly provides for a right to legal services in one specific situation, namely the right to retain and instruct counsel, and to be informed ofthat right, “on arrest or detention” (para. 24). [66] This jurisprudence relates to a person’s jeopardy in terms of a deprivation of liberty and the risk of self-incrimination. It does notsupport the hypothetical fact situations put forward by Yukon with respect to the interactions between a Government of Yukon employeeand the Ombudsman. The Ombudsman’s investigation is neither criminal nor quasi-criminal in nature.

The Ombudsman is not dealingwith a suspect or suspects; it is responding to a complaint from a member of the public in terms of their administrative dealings with thegovernment. This is clearly not a situation that triggers a duty for the Ombudsman to provide an employee of the government with their s.10(

b) right to counsel. [67] As mentioned, Yukon submits that the questioning of a representative of an authority amounts to testimonial compulsion, which,in turn, engages a liberty interest. I have already found such a scenario does not amount to a ‘detention’ within the meaning of theCharter. Nonetheless, Yukon maintains that even if s. 10(

b) is not directly applicable, Charter values should be considered to assist ininterpreting the Ombudsman’s powers, specifically the Ombudsman’s request for a declaration that it has the right to questionrepresentatives of an authority without going through counsel.

Yukon points to words of La Forest J. in Thomson Newspapers Ltd vCanada (Director of Investigation and Research, Restrictive Trade Practices Commission), (SCC), [1990] 1 SCR 425,where he states that the compulsion to testify results in a deprivation that triggers the right to life, liberty and security of a personprotected by s. 7 of the Charter. [68] The Thomson Newspapers Ltd decision concerned an investigation under the Combines Investigation Act, R.S.C. 1970, c.

C-23.Pursuant to s. 17 of the Combines Investigation Act, the Restrictive Trade Practices Commission had ordered Thomson Newspapers Ltd.,and some of its officers, to appear before the Commission to be examined under oath and to produce documents in the context of aninquiry as to whether an offence under the legislation had occurred.

A person who refused to comply with a s. 17 order was liable topunishment by the Commission. [69] The Supreme Court of Canada held that although there was a compulsion to provide oral testimony pursuant to the legislation,which constituted a deprivation of liberty, such compulsion, in and of itself, did not violate the principles of fundamental justice. TheCourt directed that when assessing whether a measure offends the principals of fundamental justice, it is necessary to consider thespecific context in which the measure operates.

In considering the context of the Combines Investigations Act, Laforest J. stated at 541-42: … Here it must be kept in mind that inquiries under s. 17 are inquisitorial rather than adversarial in nature, a distinction I have borrowedfrom E. Ratushny, Self-Incrimination in the Canadian Criminal Process (1979), at p. 21. They are investigations in which no finaldetermination as to criminal liability is reached.

As I pointed out in discussing s. 8 of the Charter, unlike standard criminal investigationswhere the question is whether X has committed offence Y, the questions confronting investigators under the Combines Investigation Actare more likely to take the form of whether offence Y has occurred, and if so, who is likely to be responsible for its commission. In otherwords, inquiries held under the Act do not focus on the conduct of a single individual in the way in which ordinary criminalinvestigations typically do.

They are more open ended, in the sense that the scope of the information gathering activity is not as narrowlydirected to the probability of any particular individual's legal culpability. Relative to ordinary forms of criminal investigations, theinvestigations conducted under s. 17 do not involve the use of state power in the interests of securing the conviction of a particularindividual.

I see a significant difference between investigations that are truly adversarial, where the relationship between the investigated andinvestigator is akin to that between accused and prosecution in a criminal trial, and the broader and more inquisitorial type ofinvestigation that takes place under s. 17 of the Act.

The lower probability of prejudice the latter represents to any particular individualwho comes within its reach, together with the important role such investigations play in the effective enforcement of anti-combines andpossibly other regulatory legislation, suggests that a more appropriate balance between the interests of the individual and the state can beachieved by retention of the power to compel testimony and the recognition of the right to object to the subsequent use of so much of thecompelled testimony as is self-incriminatory.

[70] Subsequently, in British Columbia Securities Commission v Branch, (SCC), [1995] 2 SCR 3, the SupremeCourt of Canada dealt with the question of whether compellability outside the criminal justice system of individuals who mightsubsequently be charged with a criminal or quasi-criminal offence breached s. 7 of the Charter. The Supreme Court of Canada stated thefollowing, at para. 35, regarding the nature of the British Columbia Securities Commission’s inquiries: Clearly, this purpose of the Act justifies inquiries of limited scope.

The Act aims to protect the public from unscrupulous tradingpractices which may result in investors being defrauded. It is designed to ensure that the public may rely on honest traders of goodrepute able to carry out their business in a manner that does not harm the market or society generally. An inquiry of this kind legitimatelycompels testimony as the Act is concerned with the furtherance of a goal which is of substantial public importance, namely, obtainingevidence to regulate the securities industry. Often such inquiries result in proceedings which are essentially of a civil nature.

The inquiryis of the type permitted by our law as it serves an obvious social utility. Hence, the predominant purpose of the inquiry is to obtain therelevant evidence for the purpose of the instant proceedings, and not to incriminate Branch and Levitt. More specifically, there isnothing in the record at this stage to suggest that the purpose of the summonses in this case is to obtain incriminating evidence againstBranch and Levitt. Both orders of the Commission and the summonses are in furtherance of the predominant purpose of the inquiry towhich we refer above.

The proposed testimony thus falls to be governed by the general rule applicable under the Charter, pursuant towhich a witness is compelled to testify, yet receives evidentiary immunity in return: S. (R.J.), supra. [emphasis in original] [71] As pointed out in this decision, although a witness is compelled to testify in proceedings of this nature, the general rule, incompliance with the Charter, is that they receive evidentiary immunity in return. [72] Individuals who are questioned by the Ombudsman receive the protection against self-incrimination afforded by s. 20 of the Act,except in case of perjury or an offence under s. 32 of the Act for obstructing, making a false statement or misleading the Ombudsman oranother person in the exercise of power or duties under the Act; or refusing to comply with a lawful requirement of the Ombudsman oranother person under the Act. [73] The Ombudsman’s important function and duty is to investigate complaints relating to matters of administration.

Such aninvestigation or inquiry is clearly of a civil nature. It should be noted that, in the matter before me, there is no evidence that theOmbudsman prevented anyone from seeking legal advice or from communicating with counsel. The Ombudsman acted in accordancewith its enabling statute by providing the authority with proper notice of its investigation and seeking the authority’s cooperationthroughout the process. The facts also reveal the Ombudsman’s staff attempted to work with legal counsel, once appointed, in order toachieve a reasonable solution.

However, despite these efforts, at some point in the investigation, legal counsel prevented any directcommunication between the Ombudsman and the authority. Once counsel became involved, the authority essentially becameirresponsive to the Ombudsman’s requests and counsel directed the Ombudsman to speak only with them. Legal counsel essentially actedas a shield between the authority and the Ombudsman.

While reasonable parties may disagree on the effect of legislation, the way thismatter was conducted from the Department’s end is questionable. [74] While it was appropriate for the authority to contact counsel to ensure, for example, that proper privileges be claimed andconfidentiality be maintained, legal counsel cannot, and should not, act as a shield between the Ombudsman and an authority when theOmbudsman is exercising its powers and duties under the Act. Yukon acknowledges counsel went too far in this case by insisting legalcounsel be the Ombudsman’s only point of contact with the authority.

It concedes there are no grounds for an authority to take such aposition. [75] At least in this case, at the end of the day, the result might well have been the same in that the parties may have had to resolvetheir disagreement on the appropriate

interpretation of the legislation by way of recourse to this Court. [76] Nonetheless, I have some difficulty with the declaration sought by the Ombudsman. First, the Ombudsman seeks, as part of thedeclaration, that its jurisdiction to investigate an authority includes a right to question the authority directly.

I note that s. 16 of the Actalready stipulates that it has the right to “converse in private with any person”, and to require “a person to furnish information”. [77] The second part of the declaration being sought is that the Ombudsman is not required to communicate through an authority’slegal counsel during an investigation. I find that such a declaration would be overly broad.

Although, as stated earlier, legal counselshould not become the Ombudsman’s sole point of contact with an authority, there may well be situations where legal counsel’sinvolvement becomes necessary (e.g. a s. 18 certification by the Minister of Justice).

In such cases, one might expect directcommunication between legal counsel and the Ombudsman. [78] Also, while this is not what took place in this case, it is expected the Ombudsman would not attempt to use its power tocommunicate directly with an employee of the authority to get around an authority’s legal position, whether communicated through legalcounsel or not, with which the Ombudsman disagrees.

It is expected that, in such a case, discussions would take place between theOmbudsman and the authority’s representatives. [79] In addition, as there is no factual record in this regard, I am not in a position to pronounce on the issue of whether counsel may bepresent while an employee of an authority is being questioned. A general pronouncement as requested by the Ombudsman could result insome misunderstanding on the scope of the declaration or misinterpretation in that regard. [80] In the result, I decline to make the first declaration sought by the Ombudsman.

REQUESTED DECLARATION #2 [81] The Ombudsman seeks a declaration it has the jurisdiction to require the disclosure of full and unredacted documents from aperson or authority, except:

(

i) to the extent ss. 18 and 20 of the Act provide otherwise, and (ii) to the extent a court may, upon application of the authority, order otherwise. Positions of the Parties The Ombudsman [ 82 ] The Ombudsman submits that access to information and documents is key to its investigative and settlement functions.

The Ombudsman submits it must be able to gain access to documents it deems necessary or relevant to its investigation to carry out its mandate properly, not just those that an authority subject to an investigation is prepared to provide. [ 83 ] The Ombudsman submits its broad powers to gather information and documents are balanced by the very strong confidentiality obligations placed upon the Ombudsman and its staff pursuant to s. 10 of the Act . [ 84 ] The Ombudsman submits it is given significant powers to compel disclosure of information and production of documents pursuant to s. 16 of the Act , subject only to the specific and narrow limitations set out in ss. 18 and 20 of the Act .

The Ombudsman submits that even if s. 19 is not specifically mentioned in the wording of this declaration, it is included and covered by the declaration as worded because it is referenced in s. 20 of the Act . [ 85 ] The Ombudsman submits ss. 18 - 20 fully contemplate the interactions between the Ombudsman’s broad powers to compel disclosure under the Act and the provisions of other statutes regarding an authority’s or a person’s confidentiality and non-disclosure obligations.

They also provide for the application of the law of privileges as well as a process whereby the Minister of Justice may prevent the Ombudsman from requiring information revealing deliberations or proceedings of the Executive Counsel, or a committee of it, or information that might compromise a regulatory or criminal investigation or proceedings. [ 86 ] The Ombudsman submits that, considering the exhaustive nature of ss. 18 - 20 , an authority cannot redact or refuse to produce information other than in the limited circumstances provided for in those sections.

The Ombudsman argues there is no authority (including any provisions of the CFSA , Access to Information and Protection of Privacy Act , SY 2018, c. 9 (“ ATIPPA ”), or Health Information Privacy and Management Act , SY 2013, c. 16 (“ HIPMA ”) that supports Yukon’s position that the Department has the authority and obligation to screen out documents requested by the Ombudsman to determine what is relevant to the Ombudsman’s investigation. [ 87 ] The Ombudsman contends there are good reasons that support its position. The authorities are the ones under investigation.

As a result, they should not be the gate keepers of how the Ombudsman carries out its role and responsibilities. The Ombudsman submits there is a risk of mischief if the authority under investigation decides what documents or information the Ombudsman can obtain. [ 88 ] Finally, in response to one of Yukon’s arguments, the Ombudsman submits that paramountcy provisions in other statutes, that have the effect of imposing a duty of confidentiality or non-disclosure on a person or an authority, would be captured by the language of s. 19(2) of the Act . Therefore, there is no reason to refuse the declaration sought.

Yukon [ 89 ] Yukon submits the Court should not issue the declaration sought by the Ombudsman because ss. 18 and 20 of the Act provide an incomplete picture of the Ombudsman’s powers to compel disclosure of information and production of documents from an authority and little guidance regarding its scope in circumstances other than the specific case at bar.

Also, Yukon submits that s. 19 of the Act , which is central to the issues before the Court, is not specifically mentioned in the declaration sought by the Ombudsman. [ 90 ] Yukon submits the Act contains a deferral provision ( s. 19(2) ) that requires consideration and application of other territorial statutory provisions to determine the specific scope of the Ombudsman’s powers to compel disclosure of information and production of documents from a particular authority or person.

This means the statutory provisions to consider in any given case will vary depending on the specific legislation applicable to the authority subject of the Ombudsman’s investigation. As a result, Yukon submits the Court should not grant the declaration sought because there may be other statutes, not canvassed in argument, that would operate as a bar to disclosure in ways that are not captured by the language of s. 19(2) of the Act .

In addition, Yukon submits that other statutes, which may contain paramountcy provisions that would make them prevail over the Act in case of conflict, may provide restrictions on the disclosure of information or production of documents. [ 91 ] Yukon submits that, in this case, the CFSA , ATIPPA , and HIPMA all contain provisions that are relevant to determine whether the Ombudsman may compel the Department and, more specifically, the Director to produce documents.

According to Yukon, these statutes preclude the Director from producing the requested documents to the Ombudsman without a court order. [ 92 ] In addition, Yukon submits that ATIPPA and HIPMA are more recent and specific statutes than the Act that pertain to the collection, use, and disclosure by public bodies of certain types of information.

Yukon submits these two statutes have strong paramountcy provisions that make them prevail over the Act because the Act does not contain an express and specific provision providing otherwise. [ 93 ] Yukon submits ATIPPA and HIPMA impose the obligation on public bodies (custodians) to disclose only what is necessary to the purpose for which disclosure is sought. Therefore, Yukon argues when disclosure or production is permitted, the determination of

what is relevant to the Ombudsman’s investigation falls on the public body, more specifically FCS whose documents were being sought in this case, not the Ombudsman. Analysis [ 94 ] It is not disputed the Ombudsman has jurisdiction to investigate complaints against the Department, and more specifically FCS, including the investigation that brings the parties to court.

They are an authority as defined in the Act . [ 95 ] As stated previously, s. 16 of the Act confers upon the Ombudsman broad powers to compel disclosure of information and production of documents from an authority or a person in the course of an investigation. Nonetheless, the Act also sets out limits to those investigative powers. These limitations are set out in ss. 18 - 20 of the Act . [ 96 ] I accept the Ombudsman’s submission that s. 19 is incorporated by reference in the declaration it seeks.

Therefore, the declaration sought by the Ombudsman raises the question of whether the limitations set out in ss. 18 - 20 of the Act are all encompassing or, stated differently, are the only limitations that can be invoked or relied upon by any authority to refuse to comply with a disclosure or production demand from the Ombudsman. [ 97 ]

Section 18 of the Act provides the Minister of Justice has the authority to prevent the Ombudsman from entering a premise, requiring that a person or an authority answer questions, provide information, or produce documents in certain circumstances.

Section 18 reads as follows: 18 Executive Council proceedings If the Minister of Justice certifies that the entry on premises, the giving of information, the answering of a question, or the production of a document or thing might (

a) interfere with or impede the investigation or detection of an offence; (

b) result in or involve the disclosure of deliberations of the Executive Council; or (

c) result in or involve the disclosure of proceedings of the Executive Council or a committee of it, relating to matters of a secret or confidential nature and that the disclosure would be contrary or prejudicial to the public interest, the Ombudsman shall not enter the premises and shall not require the information or answer to be given or the document or thing to be produced, but shall report the making of the certificate to the Legislative Assembly not later than in the Ombudsman’s next annual report. [ 98 ]

Section 20 of the Act provides that, subject to s. 19 of the Act , the powers of the Ombudsman to compel disclosure from an authority are subject to the law of privileges. Section 20(1) reads as follows: 20 Privileged information

(1) Subject to

section 19 , a person has the same privileges in relation to giving information, answering questions, or producing documents or things to the Ombudsman as that person would have with respect to a proceeding in a court. [ 99 ] There is no dispute between the parties regarding the Minister of Justice’s authority to preclude disclosure of information or production of documents to the Ombudsman in specified circumstances listed in s. 18 .

Also, there is no dispute between the parties that, subject to s. 19, the law of privileges can be invoked by an authority or a person to refuse to answer a question, give information or produce documents to the Ombudsman. It is not disputed an authority can also invoke a recognized privilege such as, solicitor-client privilege, to redact documents prior to providing them to the Ombudsman. [ 100 ] The issue between the parties revolves around the scope and application of s. 19(2) of the Act , which addresses the interaction between the Act and the provisions of other statutes regarding disclosure.

More specifically, the issues between the parties are as follows: (

a) whether s. 19(2) of the Act encompasses all the circumstances where other statutes could operate as a bar to the disclosure of information or production of documents to the Ombudsman; and (

b) whether an authority has the duty to not disclose information or documents to the Ombudsman based on relevance or lack thereof.

[ 101 ]

Section 19 reads as follows: 19 Application of other laws respecting disclosure

(1) Subject to

section 18, a rule of law that authorises or requires the withholding of a document or thing, or the refusal to disclose a matter in answer to a question, on the ground that the production or disclosure would be injurious to the public interest does not apply to production of the document or thing or the disclosure of the matter to the Ombudsman.

(2) Subject to

section 18 and to subsection (4), a person who is bound by an enactment to maintain confidentiality in relation to or not to disclose any matter shall not be required to supply any information to or answer any question put by the Ombudsman in relation to that matter, or to produce to the Ombudsman any document or thing relating to it, if compliance with that requirement would be in breach of the obligation of confidentiality or nondisclosure.

(3) Subject to

section 18 but despite subsection (2), if a person is bound to maintain confidentiality in respect of a matter only because of an oath under the Public Service Act or a rule of law referred to in subsection (1), the person shall disclose the information, answer questions, and produce documents or things on the request of the Ombudsman.

(4) Subject to

section 16 , after receiving a complainant’s consent in writing, the Ombudsman may require a person described in subsection (2) to, and that person shall, supply information, answer any question, or produce any document or thing required by the Ombudsman that relates only to the complainant. [my emphasis] [ 102 ] Sections 19(1), (3), and (4) are not at issue in this case. They do not provide a basis for an authority or a person to refuse to answer questions, disclose information or produce documents to the Ombudsman.

Only s. 19(2) provides a ground for an authority or a person to refuse to disclose information or produce documents to the Ombudsman.

Section 19(2) provides that a person who is bound to confidentiality or to non-disclosure by another statute, on grounds other than those excluded by ss. 19(1), (3), and (4), may refuse to comply with an Ombudsman’s disclosure demand, if compliance would result in the person being in breach of their confidentiality or non-disclosure obligation. [ 103 ] Both parties agree the expression “is bound” contained in s. 19(2) means the person is obliged or has no choice but to maintain confidentiality or to not disclose.

If the statutory provision in question gives an authority or a person discretion to disclose, then the exception does not apply, and the person must disclose to the Ombudsman. The parties’ views on this question are consistent with the

interpretation given by the Nova Scotia Court of Appeal to the same expression found in s. 17(4) of the Nova Scotia Ombudsman Act , R.S.N.S. 1989, c. 327 .

Section 17(4) of the Nova Scotia Ombudsman Act serves the same purpose as s. 19(2) of the Act and is worded similarly. [ 104 ] The question the Nova Scotia Court of Appeal was asked to determine in the Nova Scotia (Office of the Ombudsman) case is similar to the one that arises in this case, which is whether the Nova Scotia Ombudsman has the statutory authority to compel production of full and unredacted records from a government department – in that case the Nova Scotia Department of Health and Wellness.

After considering the specific language of the statutory provisions at issue, the Court of Appeal concluded it did. [ 105 ] In answering the

interpretation issue between the parties, the Nova Scotia Court of Appeal stated the following on the meaning of the expression “is bound by” in s. 17(4) : [89] In its written and oral submissions the respondent says that FOIPOP and PHIA prohibit disclosure of the unredacted record sought by the Ombudsman and that therefore the Minister had no choice but to refuse the Ombudsman’s request.

The argument begins with an emphasis upon a portion of a particular provision of the Ombudsman Act where, in s. 17(4) it says: … where a person is bound by any law … to maintain secrecy … or not to disclose any matter, the Ombudsman shall not require that person to supply any information … or to produce any document … which would be in breach of the obligation of secrecy or non- disclosure. [90] My rejection of the respondent’s reliance upon these provisions turns on the words “is bound by”.

Interpreting those three words in their grammatical and ordinary sense leads me to conclude that they mean “obliged”, “compelled”, “forced to”, and “no choice but to comply”. Applying such a meaning to these words, and informed by the statutory scheme, object and purpose of the relevant enactments, exposes the flaws in the Attorney General’s position. [ 106 ] The Ombudsman contends that s. 19(2) is clear. A person can refuse to comply with the Ombudsman’s disclosure demand only if

they are obliged by another statute to maintain confidentiality or to not disclose the information or document sought by the Ombudsman. [ 107 ] In response to Yukon’s argument about the non-exhaustive nature of s. 19(2) of the Act , the Ombudsman contends that if a paramountcy provision, or any other type of provision in another statute, has the effect of compelling a person or an authority to maintain confidentiality or to not disclose, it will necessarily be captured by s. 19(2) .

According to the Ombudsman, ss. 18-20 of the Act are comprehensive and clearly meant to cover all the situations limiting the Ombudsman’s power to compel disclosure and the declaration should be issued by the Court. [ 108 ] I disagree with the Ombudsman. While ss. 18-20 of the Act are indeed comprehensive, I am of the view it would not be prudent to issue a declaration of general application, such as the one sought by the Ombudsman, based only on a review of the four territorial statutes at issue in this case.

There is, at least, one situation where another statute could preclude disclosure to the Ombudsman that would not fall under the circumstances provided by ss. 18-20 , and that is through an exemption. If, for example, another statute were to exempt certain types of information or documents from the Ombudsman’s power to compel their disclosure under s. 16 , the other statute would not be creating or imposing an obligation of confidentiality or non-disclosure on a person or an authority covered by s. 19(2) .

Nonetheless, the other statute would provide a basis or a ground for an authority to refuse disclosure based on the Ombudsman’s lack of jurisdiction. [ 109 ] In addition, as it became clear during the submissions of the parties on this issue, the wording of ss. 18 - 20 of the Act is not the source of the legal dispute in this case. The issue revolves around their differing

interpretation of the other statutory provisions at play (the CFSA , ATIPPA , and HIPMA ) and the limits they placed on FCS and its Director’s discretion to disclose information and documents.

Therefore, the broad declaration sought by the Ombudsman is of very limited utility because, even if granted, the declaration would not resolve the dispute between the parties, nor would it help resolve any future disagreements over the scope of another authority’s confidentiality and non-disclosure obligations emanating from the wording of statutory provisions other than the ones at issue in this matter. [ 110 ] As a result, I am of the view it would not be appropriate to exercise my discretion to grant this declaration. [ 111 ] I will address the issue raised by Yukon regarding which entity is responsible for determining what information or documents are relevant to an investigation by the Ombudsman under the third declaration sought by the Ombudsman.

REQUESTED DECLARATION #3 [ 112 ] The Ombudsman seeks a declaration that its jurisdiction to investigate complaints related to FCS includes a right to access documents in the possession of the Department and a Director appointed under CFSA , which right is not precluded by ss. 178 - 179 of the CFSA . Positions of the Parties The Ombudsman [ 113 ] The Ombudsman contends that, pursuant to ss. 178 - 179 of the CFSA , the Director is not bound to confidentiality or non- disclosure.

As a result, the Director cannot rely on s. 19(2) of the Act to refuse to comply with the Ombudsman’s disclosure demand. [ 114 ] The Ombudsman acknowledges that s. 179 of the CFSA contains a general prohibition against disclosure of any document kept by the Director that deals with the personal history of a child or an adult and has come into existence through a proceeding under the CFSA or the former statute. However, the Ombudsman argues that s. 179 grants the Director discretion to consent to disclosure.

As the Director has a choice to consent to disclosure under s. 179, FCS is not bound to confidentiality or non-disclosure, and FCS has to provide to the Ombudsman the disclosure it requested. [ 115 ] Also, the Ombudsman submits the exercise of the Director’s discretion under s. 179 is not constrained by the circumstances set out in s. 178 , as argued by Yukon. The Ombudsman contends that, if it were the case, the legislature would have expressly stated so in s. 179. However, there is no reference to or mention of s. 178 in s. 179.

According to the Ombudsman s. 178 does not constitute a prohibition against disclosure, but simply sets out purposes for which the Director may disclose information in its records.

The Ombudsman submits another difference between the two provisions is that s. 178 pertains to the disclosure of the Director’s information in general, whereas s. 179 deals specifically with the disclosure of a certain type of information and documents kept by the Director. [ 116 ] In addition, the Ombudsman submits the Director’s paramount consideration in carrying out its responsibilities under the CFSA , including those that pertain to the Director’s authority to consent to disclosure under s. 179(2)(b), is the “best interests of the child”.

The Ombudsman argues disclosure to the office of the Ombudsman is in line with that paramount consideration. [ 117 ] The Ombudsman submits the Department and the Director are subject to the investigative role of the Ombudsman regarding matters of administration pursuant to s. 11 of the Act . The Ombudsman points out that one of the Minister’s responsibilities under the CFSA is to ensure that it is administered in a fair manner.

The Ombudsman contends that reading territorial statutes harmoniously, and as a code, makes the investigative powers conferred to the Ombudsman under s. 16 of the Act a necessary component to the administration of all territorial statutes, including the CFSA . The Ombudsman further submits that its work is an essential component of the Minister’s ability to meet the Minister’s fairness obligations under the CFSA . The Ombudsman argues that interpreting s. 179(2)(

b) as suggested by Yukon would prevent the Ombudsman from investigating a matter of administration regarding FCS and frustrate the Minister’s ability to meet their statutory obligation. [ 118 ] In addition, the Ombudsman submits the Director has failed to consider the important role of the Ombudsman as well as the factors relevant to the exercise of the Director’s discretion to disclose under the CFSA , including the best interests of the child, in refusing to provide to the Ombudsman the documents it requested. [ 119 ] The Ombudsman also submits that neither ATIPPA nor HIPMA prohibits or restricts the Ombudsman’s right to access FCS’

information or documents in the context of an investigation. [ 120 ] The Ombudsman submits that s. 7 of ATIPPA is a complete answer to Yukon’s argument that ATIPPA restricts the information or documents the Ombudsman has the authority to compel under the Act . The Ombudsman is an officer of the Legislative Assembly and s. 7 clearly states that ATIPPA does not affect or limit the power of an officer of the Legislative Assembly to compel a witness to testify or compel production of documents in accordance with their authority to do so.

The Ombudsman argues that, as there is no inconsistency or conflict between the CFSA , the Act , and ATIPPA , the paramountcy provision of ATIPPA ( s. 8 ) is not engaged. [ 121 ] The Ombudsman submits that the specific exceptions from the general prohibition against disclosure found at s. 25 of ATIPPA , which include the Privacy Commissioner (who is also an officer of the Legislative Assembly) but not the Ombudsman, serve another purpose than s. 7. The Ombudsman submits that s. 25 specifically permits disclosure to those officers in cases where their authority to compel testimony or production is not engaged.

According to the Ombudsman, there is therefore no conflict between the application of ss. 7 and 25 of ATIPPA . [ 122 ] The Ombudsman submits that, in any event, s. 180 of the CFSA stipulates that ss. 177 - 179 of the CFSA apply despite any provision of ATIPPA . According to the Ombudsman, this means the discretion afforded to the Director to consent to disclosure under s. 179 of the CFSA applies despite any provisions of ATIPPA .

The Ombudsman submits that, when read together, these provisions give the Director authority to produce documents containing personal information, without a person’s consent, in circumstances where such disclosure might otherwise be prohibited under ATIPPA . [ 123 ] In addition, the Ombudsman submits Yukon did not provide any specific roadmap to support its broad assertion that HIPMA prohibits disclosure of the personal health information or record of a person, in possession of the Department, to the Ombudsman, without a person’s consent. [ 124 ] The Ombudsman acknowledges that ss. 13 , 15 - 16 of HIPMA impose restrictions and limitations on the Department and the Director, regarding the collection, use, and disclosure of personal health information.

However, the Ombudsman submits s. 17 of HIPMA makes it clear those limitations and obligations do not apply when the Ombudsman exercises its statutory authority under the Act to compel the production of personal health information. Further, ss. 13, 15-16 of HIPMA do not provide a basis to refuse to comply with the demand.

Consequently, as there is no prohibition against disclosure emanating from HIPMA , the Department and the Director are required by the Act to produce to the Ombudsman the documents containing personal health information it requested. [ 125 ] The Ombudsman acknowledges there is a limitation requirement built in s. 17 of HIPMA , which means that the Department is only required to provide the personal health information requested by the Ombudsman pursuant to its statutory authority.

The Ombudsman contends that, as there is no conflict, the paramountcy provision in s. 11 of HIPMA is not engaged. [ 126 ] In addition, the Ombudsman submits that the sole purpose of the paramountcy provisions in ATIPPA and HIPMA is to establish a legislative hierarchy that applies when a provision in another act conflicts with a provision in these two statutes. When this occurs, ATIPPA and HIPMA prevail to the extent of the conflict. [ 127 ] The Ombudsman submits that, contrary to what Yukon contends, the purpose of s. 25(

e) of ATIPPA and s. 58 (

o) of HIPMA is to allow a public body or custodian to exercise their authority to disclose personal information or personal health information as permitted by another statute, or an arrangement or agreement created by another statute. [ 128 ] The Ombudsman submits that, when enacting ATIPPA and HIPMA , the Legislature could not possibly have considered all laws of the Yukon, or all agreements in existence at the time ATIPPA and HIPMA were drafted, where there is a legal requirement or authority to disclose personal information. The Ombudsman submits that ss. 25(

e) and 58 (

o) exist solely for the purpose of allowing ATIPPA and HIPMA to work together with other statutes and agreements made thereunder allowing public bodies and custodians to disclose personal information or personal health information in accordance with these other laws or agreements. [ 129 ] The Ombudsman submits it would be absurd to interpret these provisions as requiring that every other law in Yukon, where disclosure of personal information is authorized or required, contain a provision(

s) expressly stating that it prevails over ATIPPA or HIPMA . It would also be absurd to interpret the authority to disclose as authorized or required by a Yukon law differently from the authority to disclose under a federal law, which is also included in ss. 25(

e) and 58 (o). [ 130 ] The Ombudsman recognizes that the declaration it seeks does not provide a complete answer with respect to the Ombudsman’s authority to compel production of documents from the Department, and more specifically FCS. However, the Ombudsman submits the declaration would, at least, settle the dispute between the parties with respect to the

interpretation of ss. 178 and 179 of the CFSA . Yukon [ 131 ] Yukon submits that ss. 178 - 179 of the CFSA expressly prohibit the Director from disclosing its information and documents, without the consent of another person or a court order, except for the specific purposes set out in s. 178. Yukon submits ss. 178 - 179 must be read together in light of the statutory scheme as a whole.

Yukon submits the disclosure restrictions contained in ss. 178 - 179 recognize the very sensitive and personal nature of the records and information collected by FCS. [ 132 ] Yukon submits the Director has no discretion to disclose unless it falls within the limited circumstances listed at s. 178 .

Yukon further submits that, as disclosure to the Ombudsman does not fall within any of the specific and limited purposes listed in s. 178, the Director is prohibited from doing so without the consent of the person to whom the personal information relates or a court order. [ 133 ] According to Yukon, the prohibition against disclosure contained in the CFSA triggers the application of s. 19(2) of the Act .

Therefore, the Ombudsman cannot compel the Director to disclose its information and produce its documents without a court order. [ 134 ] Yukon argues it would be illogical for the Legislature to prohibit the Director from disclosing its information except for the very narrow purposes prescribed by s. 178, if the Director could, without any limitations, consent to the disclosure of its documents

containing the same information under s. 179. [ 135 ] In addition, Yukon submits that, generally, the information and documents in the possession of the Director fall under the CFSA , ATIPPA , and/or HIPMA statutory regimes. [ 136 ] Yukon submits that, even if the court were to find that disclosure to the Ombudsman is permitted under the CFSA , the obligation to determine what information and documents are relevant and what can be disclosed to the Ombudsman would fall on the Director.

According to Yukon, both ATIPPA and HIPMA impose an obligation on the public body, in this case FCS and its Director, to restrict disclosure to no more than the information that is actually required to fulfill the purpose for which it is disclosed (s. 23(

b) of ATIPPA and ss. 15 - 17 of HIPMA ) . [ 137 ] Yukon also submits that both ATIPPA and HIPMA contain a general statutory prohibition against disclosure, subject to specific exceptions. According to Yukon, neither ATIPPA nor HIPMA , permit the Director to disclose to the Ombudsman information and documents, that fall under their statutory regimes, without a court order. [ 138 ] Yukon submits that there are several reasons why the provisions of ATIPPA and HIPMA ought to prevail over the Act .

There are no exceptions in HIPMA and ATIPPA that would permit disclosure to the Ombudsman despite the general prohibition against disclosure in these statutes. The Ombudsman does not appear in the list of offices that are specifically permitted to obtain information from government departments under ATIPPA and HIPMA .

The Legislature did not amend the deferential provision s. 19(2) in the Act . [ 139 ] Yukon submits the Legislature has specifically and expressly provided, at s. 180 of the CFSA , that the disclosure prohibition contained in ss. 178 - 179 of the CFSA applies notwithstanding any provisions to the contrary in ATIPPA . According to Yukon, this provision makes it clear that the prohibition against disclosure contained in the CFSA continues to apply despite any provision in ATIPPA that could be found to allow disclosure.

Yukon submits that the enactment of s. 180 was rendered necessary due to the very strong paramountcy provision contained in ATIPPA . Yukon submits there is no need for a similar provision in the CFSA regarding its interaction with the Act because the Act does not contain a paramountcy provision, it contains a deferral provision ( s. 19(2) ). Yukon also submits that the CFSA , ATIPPA , and HIPMA should prevail over the Act because they are more recent and specific statutes than the Act . [ 140 ] In addition, Yukon submits that the general language found in s. 25(e)(

i) of ATIPPA and ss. 17 and 58 (

o) of HIPMA permitting disclosure in accordance with another statute does not authorize disclosure to the Ombudsman. Yukon submits that these provisions allow for disclosure to take place only where another statute has an explicit provision stating it prevails over ATIPPA and/or HIPMA . Yukon argues that, in such a case, disclosure may take place only (

i) to the extent the disclosure is explicitly required by the other enactment; (ii) in the manner explicitly prescribed by the other enactment; and (iii) subject to the requirement that disclosure be restricted to no more than the information that is actually required to fulfill the purposes of that other enactment (s. 23(

b) of ATIPPA and ss. 15 - 17 of HIPMA ) .

Yukon submits that finding otherwise would effectively make the paramountcy provisions in ATIPPA and HIPMA entirely ineffective. [ 141 ] Yukon submits that, in any event, these provisions are of no utility to the Ombudsman because the disclosure sought in this case is not permitted by another act considering the prohibition against disclosure found in ss. 178 - 179 of the CFSA . [ 142 ] Yukon also submits that s. 7 of ATIPPA is of no use to the Ombudsman because ss. 178 and 179 of the CFSA and s. 19(2) of the Act make it clear the Ombudsman does not have the power to compel disclosure of information and documents from the Director.

According to Yukon, s. 7 was not intended to extend the Ombudsman’s power to compel disclosure it has under its own Act .

Section 7 was designed to address quasi-judicial proceedings, not to deal with situations such as the one before the court. [ 143 ] In addition, Yukon submits that disclosure to the Ombudsman does not fit within any of the specific exceptions to the general disclosure prohibition contained in ATIPPA and HIPMA . [ 144 ] According to Yukon, there is no statutory authority upon which the Ombudsman can rely to compel disclosure from the Director in this case and there is no basis for the Court to issue Declaration #3. [ 145 ] Finally, Yukon submits the Director recognizes the important role of the Ombudsman.

It is the reason why the Director has agreed to consent to a court order that authorizes the Director to disclose its documents to the Ombudsman for the purpose of its investigation. However, the Director’s consent is subject to certain conditions that are consistent with the Director’s obligations to protect privacy interests of third parties and established privileges as well as its obligation to restrict disclosure to only what is necessary. According to Yukon, it was appropriate in this case for the Director to consent to court ordered disclosure.

Analysis [ 146 ] Considering the arguments raised by the parties, a determination of this issue requires that I consider the provisions of four territorial statutes: the Act , which contains provisions regarding the Ombudsman’s powers to compel production of documents and disclosure of information from an authority; the CFSA , which contains provisions regarding disclosure of the Director’s information and documents; ATIPPA , which contains provisions regarding the collection, use, and disclosure of personal information by public bodies; and HIPMA , which contains provisions regarding the collection, use, and disclosure of health information by public bodies (custodians). [ 147 ] As previously stated, the Ombudsman has broad statutory powers to compel production of records and disclosure of information from an authority, which are in line with its important mandate.

The Department, including FCS and the Director, is an authority whose actions are subject to the Ombudsman’s power to investigate complaints. [ 148 ] However, as stated earlier, the Ombudsman’s broad powers are limited by s. 19(2) of the Act , which prescribes that the Ombudsman cannot compel disclosure from a person or an authority where another act requires a person to maintain confidentiality or is bound by an obligation of non-disclosure. [ 149 ] In addition to the principles of

interpretation I mentioned earlier in my decision, I must interpret the provisions of the CFSA in

accordance with the principles set out in s. 2 of the CFSA

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