Bill 212 — An Act To Amend the Ombudsman Act (Legislature 17, Session 2)

L17 S2 5244

Alberta — Bills

1973 Bill 2~ Second Session, 17th Legislature, 21 Elizabeth II THE LEGISLATIVE ASSEMBLY OF ALBERTA BILL 212

An Act to amend The Ombudsman Act MR. LUDWIG First Reading .............................. . Second Reading ............................. . Third Reading . Printed by QUEEN'S PRINTER for the Province of Alberta, EDMONTON

Bill 212 Mr. Ludwig BILL 212 1973

AN ACT TO AMEND THE OMBUDSMAN ACT (Assented to , 1973) ~ MAJESTY, by and with the advice and c'Onsent 'Of the Legislative Assembly of Alberta, enacts as f'Ollows: 1. The Ombudsman Act is hereby amended.

Section 2 is amended (

a) by adding after clause (

a) the following clause: (a1) "c'Ouncil" includes, as the case may be, c'Ounty c'Ouncil 'Or a scho'Ol b'Oard; (

b) by adding after clause (

c) the following clauses: (d) "maJ71'Or" includes, as the case may be, the reeve of a muni(;ipal district, the reeve 'Of a c'Ounty 'Or the chalirman 'Of a sch'O'Ol b'Oard; (e) "munidpality" means a city, t'Own, village, summer village, municipal district, c'Ounty 'Or scho'Ol b'Oard; (f) "municipal agency" means an agency 'Of a municipality.

Section 11 is amended by striking out subsection (1) and by substituting the following therefor: 11. (1) lit is the functi'On and duty 'Of the Ombudsman to investigate (

a) any decisi'On 'Or recommendati'On made, including any rec'Ommendation made to a Minister, 'Or any act d'One 'Or 'Omitted, relating t'O a matter 'Of administra ti'On and affecting any pers'On 'Or b'Ody 'Of pers.ons in his 'Or its personal capacity, in 'Or by any depart ment 'Or agency, .or by any 'Officer, empl'Oyee 'Or member there'Of in the exercise 'Of any P'Ower 'Or functi'On c'Onferred 'On him by any enactment, and (

b) any decisi'On 'Or rec'Ommendati'On made, including any rec'Ommendation made t'O a may'Or, 'Or any act d'One 'Or 'Omitted, relating t'O a matter 'Of administra-

Explanatory Notes I. This Act will amend

chapter 268 of the Revised Statutes of Mberta 1970. 2. This amendment will define the enumerated terms. 3. This amendment will give the Ombudsman power ,to investi gate complaints against the admini,stration of a municipality.

ilion of the municipality and affecting any person Dr body of persons in his or its personal capacity, in lOr by any municipality or municipal agency, or by any officer, emplQyee, or member thereof in the exercise of any power or function conferred on him by any enactment, by-law or resolution. 4. ection 12, subsection (1) is amended by striking out clause (

b) and by sUbstituting therefor the following: (

b) any decisiQn, recommendatiQn, act or omission of any person (

i) acting as a solicitor to the Crown Dr acting as council for the Crown, lOr (ii) acting as a solicitor to a municipality or act ing as council for the municipality in relation to any proceedings.

Section 15 is struck out and the following is substitu ted therefor: 15.

(1) BefQre investigating any matter under this Act, the Ombudsman shall (

a) in respect of those matters referred to in sectiQn 11, subsection (1), clause (

a) inform the deputy minis ter of the department 'Or the administrative head of the agency affected, as the case may be, and (

b) in respect of th'Ose matters referred to in

section 11, subs1ect,ion (1), clause (b), inform the mayor lOr the administrative head of the municipality, or the ad ministrative head of the municipal agency, as the case may be, of his intention to make the investigatiDn.

(2) The Ombudsman may, in his discretion, at any time during or after an inv,estigation consult (

a) in respect 'Of ,those matters referred to in secti'On 11, subsection (1), clause (

a) any Minister who is con cerned in the ma;tter of the investigation, and (

b) in respect of those matters referred to in

section 10, subs'ection (1), clause (

b) any mayor who is con cerned in the matter Qf the investigation.

(3) On the request of (

a) any Minister in relation to an investigation or in any case where an investigation relates to any re commendations made to a Minister, and (

b) any mayor in relation to an linvestigation 'Or in any case where an investigation relates to any reCQm mendation made to a mayor, 2

Section 12, subsection (1), clause (

b) presently reads: 12.

(1) Nothing in this' Act authorize,s the Ombudsman to investigate (

b) an~ dectsion, :r;e~ommendation, act or om'ission of any person a.ctmg as a solIcItor f'Or the Crown Dr acting as c'Ouncel f'Or the Crown in relati'On to any pl1oceedings.

Section 15 presently reads: 15.

(1) Before investigating amy matter under this Act, the Ombuds man shaH ~nform the deputy minister of the ,department or the admini trative head of the agency affected, as the case may be, of his inten tion t'O make the investigati'On.

(2) The Ombudsman may, in his dis'cretion, at any time during O'r after an investigaUon c'Onsult any Minister who is c'Oncerned in the matter of the investigation.

(3) On the request of any Minister in relatilon to' an investigati'On 'Or in any case where an ,invesUgation relates to' any rec'Ommendation made t'O a Mintister, the Ombudsman shall c'Onsult that Minister after making the invesltigati'On and bef'Ore fu~ming a final opinion 'On any of the mat ters refe,rred to' in secti'On 20, subsecti'On

(1) O'r (2).

(4) If, during or after an inve,stigation, the Ombudsman is' lof 'Opini'On that there is evidence of any breach of duty 0'1" misconduct on the part 'Of any 'Officer Dr employee 'Of any department 'or agency, he shall refer the matter t'O the deputy minister 'Of the department 'Or the adminis tratIve head of the agency. as the cas'e may be. 2

the Ombudsman shall consult that Minister or mayor, as the case may be, after making the investigation and hefore form'ing a final opinion 'On any of -the matters referred to in

section 20, subsection (1) or (2).

(4) If, during or after an investigation, the Ombudsman is of opinion that there is evidence of any breach of duty or m,isconduct on the part of (

a) any officer 'Or employee of any department or agency, he shall refer the matter to the deputy minister of the department or the administrative head of the agency, as the case may be, and (

b) any officer or employee of any municipality, or municipal agency, he shall refer the matter to the mayor of the municipality or the administrative head of the municipal agency, as the case may be.

Section 17 is amended (

a) as to subsection (1) by striking out the words "de partment 'Or agency" wherever they occur and by substituting therefor the words "department, agen cy, municipal,ity 'Or municipal agency", (

b) by striking out subsection (1.1) and by substituting therefor the following:

(1.1) Where the Ombudsman requires the pro duction 'Of a document, paper lOr thing under sub section (1), he may require it to be pr'Oduced at a place designated by him and may require that it be left in his possession for the purposes of his inves tigation but, upon the request (

a) of the deputy minister of the departm'ent or the administrative head Qf the agency, or (

b) the ma~or or administrative head 'Of the muni cipality 'Or the administrative head of the municipal agency, as the case may be, the Ombudsman shall return the document, paper or thing to that department, agency, municipality 'Or municipal agency as quickly as pos.sible, but not later than 48 hours after the receipt of the request, subject to his right to again require its production in accordance with this section. (

c) as to subsection (2), clause (

a) by striking out the words "department or agency" and by substituting therefor the words "departm-ent, agency, munici pality or municipal agency". 3

Section 17, subsections (1), (1.1) and (2) presently read: 17.

(1) Subject to this

section and

section 18, the Ombudsman may require any pers-on who, in his opinion, is able to give any information relating to any matter being investigated by him (

a) to 'furnIsh the information to him, and (

b) to produce any document, paper or thing that in his OpInIOn relates to the matter being investigated and that may be in the possession or under the control of that person, whether or not that person is an officer, employee or member of a de p&rtment lOr agency and whether or not the document, paper or thing i·s in the custody or under the control of a department or agency.

(1.1) W'here the Ombuds'man requires the production of a document, p·aper or thing under subsection (1), he may require it to be produced at a place designated by him and may require that it be left in his pOlssession for the purposes lof his investigation but, upon the request of the deputy minister of the department or the administrative head of the agency, ,the Ombudsman shall return the document, paper or thing to the department or agency as quickly as possible, but not later than 48 hours after the receipt of the request, subject to his right to again require its pl'loduction in accordance with this section.

(2) The Ombuds'man may summon before him and examine on oath (

a) any person who is an officer or employee ,or member of any de partment or agency and who in the Ombudsman's opinion is able to give any information mentioned n subsecton (1), (

b) any complainant, and (

c) any o,the·r person who in the Ombudsman's opinion is able to give any information mentioned in subsection (1), and for that purpose may administer an oath. 3

Section 20 is amended (

a) by striking out subsection (3) and by sUbstitut.ing therefor the follo1,Ving:

(3) If, where this

section applies, the Ombuds man is of opiniQn (

a) that the matter should be referred to the ap propriate authority fQr further consideration, or (

b) that the omission should he rectified, 'Or (

c) that the decision should be cancelled 'Or varied, Dr (

d) that any practiee on which the decisiQn, re commendation, act or omission was based should be altered, or (

e) that any law 'On which the decisiQn, recom mendation, act or omission was based should be reconsidered, or (

f) that reasons should have been given for the decision, or (

g) that any other steps should be taken, the Ombudsman shall report his 'Opinion and his reasons therefor to the (

h) appropriate Minister and to the department or agency cQncerned, or (

i) the mayor and the administnttive head of the municipality or municipal agency concerned, and may make such recommendations as he thinks fit and in that casle he may reques1t the department, agency, municipality Dr municlipal agency, as the case may be, to notify him within a specified time of the steps, if any, that it propDs'es to take to give effect to his recommendati'Ons. (

b) by striking out subsection (4) and by substituting therefor the following:

(4) If within a reasonable time after the report is made no action is taken which seem,s to the Om budsman rto be adequate and appropriate, the Om budsman, 'in his discretion, after considering the comments, if any, made by 'Or on behalf of (

a) the munkipality or municipal agency affected, may send a copy 'Of the report and recommen dati'Ons to the mayor and council of the municipality, and (

b) the department, agency, municipality or municipal agency affected, may send a copy 9f the report and recommendations to the Lieutenant Governor in Council and may 4

Section 20 presently reads: 20.

(1) This

section applies where, after making an investigation un der this ,Act, the Ombudsman is lof opinion that the decision, recom mendation, act or omission that was the subject matter of the investigation (

a) appears to have been contrary to law, ,or (

b) was uru:-easonahle, unju~t, oppress.ive, improperly discriminatory or was In acc?1'dance :VIth a rule of Iaw or a provision of any ~ct or l3; practICe th~,t IS. o~ may be unreasonable, unjust, oppresSIve or lmproperly dIs·criminatory, or (

c) was based wholly or partly on a mistake of law or fact, or (

d) was wrong.

(2) This

section also applies where the Ombudsman is of opinion (

a) that in the making·of the decision ,or reoommendation, or [n the doing orr omission of the act, a discretionary pow,er has been exerci,sed (

i) for an improper purpose, or (ii) on irrelevant grounds, or (iii) on the taking into account of irrelevant oonsiderations, or (

b) that, in the case of a decision made in the exercise of a dis cretionary power, reasons should have been given for the de cision.

(3) If, where this

section applies, the Ombudsman is of opini'On (

a) that the matter should be referr,ed to the appropriate authority for further consideration, or (

b) that the omission shouId be reotified, or (

c) that the decision should be canoelled or varied, or (

d) that any practice on which the decision, recommendation, act or omission was 'based should be altered, or (

e) that any law on whlch the decision, recommendation, act or omissi'on was based should be re,considered, OT (!) that reas'ons should have ;been given for the decision, or (

g) that any other steps should be taken, the Ombudsman shall report his opinion and his reasons therefor to the apPflopriate Minister and to the department or agency concerned, and may make such re·commendations as he thinks fit and in that case he may request the department or agency to notify him within a specified time of the ·step's, if any, that it propo'ses to take to give effect to his recommendations.

(4) If within a reasonable time after the report is made no action Is taken which s'eems to the Ombudsman to be adequate and appropriate, the Ombudsman, in his discretion, after considering the comments, if any, made by or on behalf of the department or agency affected, may send a copy of the report and recommendations to 'the Lieutenant Gov ernor in Council and may thereafter make ,such report to the Legi,sla ture on the matters as he thinks fit.

(5) The Ombudsman shall attach to every report sent orr made under subsection (4) a copy of any oomments made by or on behalf of the department or agency concerned. 4

thereafter make such rep'Ort to the Le~isla ture on the matter as he thinks fit. (

c) as to subsection (5) by striking out the words "de partment or agency" and by substituting therefor the words "department, agency, municipality or municipal agency".

Section 24 is amended (

a) as to subse,ction (1); by st,riking out the words "de partment O'r agency" and by substituting therefor the words "department, agency, municipality or munkipal agency", (

b) by st,riking orut subsection (2) and by substituting therefar the following:

(2) Before ent'ering upon any premises pursuant to. subsection (1), the Ombudsman Ishall no.tify (

a) the deputy minister of the department, or (

b) the administrative head O'f the agency, or (

c) the mayor o.r the administrative head of the municipality, or (

d) the' administrative head of the municipal agency, as the cas'e may be, that 'Occupies the premises of his intenti'On to' dO' so.

Section 26 is amended (

a) as to subse.ction (2) by striking out the words "or department or agency" and by sUbstituting therefor the words ", department, agency, municipality or municipal agency", (

b) by striking o~tt subsection (3) and by substituting therefor the following:

(3) The Ombudsman shall n'Ot, in any rep'Ort made under this section, express any opinion or make any comment that is adver1se to (

a) any depar1tment or any officer O'r employee of a department, or (

b) any agency o.r any member or employee of an agency, 'Or (

c) any municipality, or any O'fficer or employee o.f the municipaUty, (

d) any munidpal agency or any member or em ployee O'f a municipal agency, and (oe) any 'Other person or gr'OUp 'Of persons, unless, prior to making the repo.rt to the Legisla- 5

Section 24 presently reads: 24.

(1) For the purposes of this Act, the Ombudsman may at any time enter uPQn any premLses Qccupied by any department Qr agency and inspect the premises' and, subject to. sectiQns 17 and IS,carry out therein any investigaUon that is within his jurisdiction.

(2) BefQre entering UPQn any premises pursuant to' subsection (1), the Ombudsman shall nQtify the deputy minister of the department Qr as' the case may require, the administrative head Qf the agency that occupies the premis.es Qf his intentiQn to. do. so.

Section 26 presently reads: 26.

(1) The Ombudsman shall in each year make a repQrt to. the Legis lature on the exercise of his functions under this Act.

(2) The Ombudsman may, frQm time to. time, in the public interest Qr in the interests of any perSQn Qr department Qr agency publish re PDrts relating (

a) generally to the exercise Qf his functiDns under this Act. or (

b) to. any particular case investigated by him. whether Qr nDt the matters to be dealt with in any such report have been the subject Df a repDrt to. the Legislature.

(3) The Ombudsman shall nQt, in any repQrt made under this sectiQn, express any 'opiniQn Qr make any cQmment that is adverse to. (

a) any department or any .Q1)ficer or emplQyee of a department. Qr (

b) any agency Qr any member Dr employee of an agency. or (

c) any other perSQn Qr gI'loup of persDns, unless. priQr to making the repQrt to the Legislature Qr publishing the report pursuant to subsection (2). as the case may be. the Ombudsman had given that department, agency. Qfficer. member. emplQyee. person :or group of persons an opportunity to know the nature of the opinion or CQmment and to make representations to him in respect of it either persQnally or by CQunsel. 5

ture, municipal council or publishing the report pursuant to subsection (2), as the case may be, the Ombudsman had given that department, agency, municipality, municipal agency, officer, member, employee, person or group of persons an oppor tunity to know the nature of the opinion or com ment and to make representations to him in respect of it either personally or by counsel. 10. This Act comes into force on the day upon which it is assented to. 6 Title: 1973 (17th, 2nd) Bill 212,

An Act to amend The Ombudsman Act

Document details

Collection	Alberta — Bills
Citation	L17 S2 5244
Type	bill
Volume / chapter	L17 S2 5244
Language	en
Format	json
Source	PROVINCIAL
Identifier	1bb324bca56c3161edb483f152ea4208c671b58c

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