Bill 102 2008

An Act to establish the Seniors' Ombudsman

Her Majesty, by and with the advice and consent of the Legislative Assembly of the Province of Ontario, enacts as follows:

Definitions

   1.  In this Act,

"public body" means a provincial public body and includes a Ministry, commission, board, health care facility or any administrative unit or agency of the Government of Ontario; ("organisme public")

"senior" means a resident of Ontario who is at least 65 years old. ("personne âgée")

Purpose

   2.  The purpose of this Act is to create the office of Seniors' Ombudsman to investigate complaints and make recommendations respecting the impact on seniors of the administration of public bodies in Ontario.

Seniors' Ombudsman

   3.  (1)  There shall be appointed, as an officer of the Legislature, a Seniors' Ombudsman to exercise the powers and perform the duties set out in this Act.

Guiding principles

   (2)  In exercising the powers and performing the duties set out in this Act, the Seniors' Ombudsman shall be guided by principles that affirm the dignity and independence of all seniors, regardless of their income, including the following:

    1.  Seniors are entitled, to the fullest extent that their health and capacity permit, to exercise freedom of choice, independence and initiative in planning and managing their lives.

    2.  Seniors are entitled to services and programs, including community based long-term care services, that are accessible, culturally and linguistically sensitive, affordable and flexible.

    3.  Community based long-term care services should support the independence of seniors and assist them, in appropriate circumstances,

            i.  to remain in their communities and in their homes as they age, and

           ii.  to move between various forms of long-term care with minimal disruption and maximum attention to quality of life.

    4.  Seniors are entitled to protection against abuse, neglect and exploitation.

Appointment

   4.  The Seniors' Ombudsman shall be appointed by the Lieutenant Governor in Council on the address of the Assembly.

Annual report

   5.  The Seniors' Ombudsman shall report annually upon the affairs of the Seniors' Ombudsman's office to the Speaker of the Assembly who shall table the report in the Assembly if it is in session or, if not, at the next session.

Oath of office and secrecy

   6.  (1)  Before beginning the duties of his or her office, the Seniors' Ombudsman shall take an oath, to be administered by the Speaker of the Assembly, that he or she will faithfully and impartially exercise the functions of his or her office and that he or she will not, except in accordance with subsection (2), disclose any information received in that capacity.

Disclosure

   (2)  The Seniors' Ombudsman may disclose in a report made under this Act matters that, in his or her opinion, should be disclosed in order to establish grounds for conclusions and recommendations in the report. 

Application of Act

   7.  This Act does not apply,

  (a)  to judges or to the functions of a court; or

  (b)  to deliberations and proceedings of the Executive Council or its committees.

Investigations

   8.  (1)  The Seniors' Ombudsman may, on a written complaint or on his or her own initiative, investigate a decision or recommendation made, or an act done or omitted, relating to a matter of administration in or by a public body, or by an officer, employee or member thereof, whereby a senior is or may be aggrieved.

Powers paramount

   (2)  The powers conferred on the Seniors' Ombudsman by this Act may be exercised despite any provision in any Act to the effect that a decision, recommendation, act or omission referred to in subsection (1) is final.

Decisions not reviewable

   (3)  Nothing in this Act empowers the Seniors' Ombudsman to investigate,

  (a)  a decision, recommendation, act or omission in respect of which there is, under any Act, a right of appeal or objection, or a right to apply for a hearing or review on the merits of the case to any court or to any tribunal constituted under any Act, until that right has been exercised in the particular case, or until after any time for its exercise has expired; or

  (b)  a decision, recommendation, act or omission of any person acting as legal adviser or counsel to the Crown.

Application to Divisional Court to determine jurisdiction

   (4)  If a question arises about the Seniors' Ombudsman's jurisdiction to investigate a case or class of cases under this Act, the Seniors' Ombudsman may apply to the Divisional Court for a declaratory order determining the question.

Mode of complaint

   9.  (1)  Every complaint to the Seniors' Ombudsman shall be made in writing. 

To be forwarded

   (2)  Despite any Act, if a letter addressed to the Seniors' Ombudsman is written by a senior who resides in a prescribed institution, the letter shall be immediately forwarded, unopened, to the Seniors' Ombudsman by the person in charge of the institution.

Seniors' Ombudsman may refuse to investigate complaint

   10.  (1)  The Seniors' Ombudsman may refuse to investigate a matter further if, in the course of the investigation of a complaint, it appears to him or her that,

  (a)  under the law or existing administrative practice there is an adequate remedy for the complainant; or

  (b)  having regard to all the circumstances of the case, further investigation is unnecessary.

Same

   (2)  The Seniors' Ombudsman may decide not to investigate or not to further investigate any complaint if, in his or her opinion,

  (a)  the complaint relates to any decision, recommendation, act or omission of which the complainant has had knowledge for more than 12 months before the complaint is received by the Seniors' Ombudsman;

  (b)  the subject matter of the complaint is trivial;

   (c)  the complaint is frivolous or vexatious or is not made in good faith; or

  (d)  the complainant does not have a sufficient personal interest in the subject matter of the complaint.

Complainant to be informed

   (3)  The Seniors' Ombudsman shall inform the complainant in writing of a decision not to investigate or further investigate a complaint and may provide reasons.

Proceedings of Seniors' Ombudsman

   11.  (1)  Before investigating any matter, the Seniors' Ombudsman shall inform the head of the public body of his or her intention to investigate. 

Investigation to be in private

   (2)  Every investigation by the Seniors' Ombudsman under this Act shall be conducted in private. 

May hold hearing

   (3)  Subject to subsection (4), the Seniors' Ombudsman is not required to hold a hearing but may hear or obtain information from persons and may make inquiries as he or she thinks fit.

Where hearing necessary

   (4)  If at any time during the course of an investigation, it appears to the Seniors' Ombudsman that there may be sufficient grounds to make any report or recommendation that may adversely affect a public body, he or she shall give to the public body an opportunity to make representations respecting the adverse report or recommendation, either personally or by counsel.

Evidence

   12.  (1)  If an officer, employee or member of a public body is, in the opinion of the Seniors' Ombudsman, able to give information relating to a matter that is being investigated, the Seniors' Ombudsman may require that person to,

  (a)  provide the information to him or her; and

  (b)  produce any documents or things which in the Seniors' Ombudsman's opinion relate to the matter and which may be in the possession or under the control of that person.

Examination under oath

   (2)  The Seniors' Ombudsman may summon and examine on oath any person who, in the opinion of the Seniors' Ombudsman, may have information relating to the investigation, and for that purpose may administer an oath.

Secrecy

   (3)  Subject to subsection (5), no person who is bound by any Act, other than the Public Service of Ontario Act, 2006, to maintain secrecy in relation to, or not to disclose, any matter shall be required to supply any information to or answer any question put by the Seniors' Ombudsman in relation to that matter, or to produce to the Seniors' Ombudsman any document or thing relating to it, if compliance with that requirement would be in breach of the obligation of secrecy or non-disclosure. 

Providing personal information despite privacy Acts

   (4)  A person who is subject to the Freedom of Information and Protection of Privacy Act or the Personal Health Information Protection Act, 2004 is not prevented by any thing in those Acts from providing personal information to the Seniors' Ombudsman, when the Seniors' Ombudsman requires the person to provide the information under subsection (1) or (2).

Same

   (5)  With the previous consent in writing of any complainant, the Seniors' Ombudsman may require any person to whom subsection (3) applies to supply information or answer any question or produce any document or thing relating only to the complainant, and it is the person's duty to comply with that requirement. 

Privileges

   (6)  Every person has the same privileges in relation to giving information, answering questions, and producing documents and things as witnesses have in a court.

Protection

   (7)  Except on the trial of any person for perjury in respect of the person's sworn testimony, no statement made or answer given by that or any other person in the course of any inquiry by or any proceedings before the Seniors' Ombudsman is admissible in evidence against any person in any court or at any inquiry or in any other proceedings, and no evidence in respect of proceedings before the Seniors' Ombudsman shall be given against any person. 

Right to object to answer

   (8)  Before a person gives a statement or answer in the course of an inquiry or proceeding before the Seniors' Ombudsman, the Seniors' Ombudsman shall inform the person of the right to object to answer any question under section 5 of the Canada Evidence Act. 

Prosecution

   (9)  No person is liable to prosecution for an offence against any Act, other than this Act, because of complying with a requirement of the Seniors' Ombudsman under this section. 

Restriction on powers

   13.  The Seniors' Ombudsman may not require the provision of information, the giving of an answer or the production of a document or thing if the Attorney General certifies that doing so,

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

  (b)  might reveal the substance of deliberations of the Executive Council or any of its Committees without authority to do so.

Procedure after investigation

   14.  (1)  This section applies whenever the Seniors' Ombudsman is of the opinion, after making an investigation under this Act, that,

  (a)  the decision, recommendation, act or omission which was the subject matter of the investigation,

           (i)  appears to have been contrary to law,

          (ii)  was unreasonable, unjust, oppressive, or improperly discriminatory, or was in accordance with a rule of law or a provision of any Act or a practice that is or may be unreasonable, unjust, oppressive, or improperly discriminatory,

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

         (iv)  was wrong;

  (b)  the decision, recommendation, act or omission involved the exercise of a discretionary power for an improper purpose or on irrelevant grounds or on the taking into account of irrelevant considerations; or

   (c)  in the case of a decision made in the exercise of any discretionary power, reasons should have been given for the decision. 

Seniors' Ombudsman's report and recommendations

   (2)  The Seniors' Ombudsman shall report his or her opinion, with reasons, to the appropriate public body in the circumstances described in subsection (3).

Same

   (3)  Subsection (2) applies if, in the opinion of the Seniors' Ombudsman,

  (a)  the matter should be referred to the appropriate public body for further consideration;

  (b)  the omission should be rectified;

   (c)  the decision or recommendation should be cancelled or varied;

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

  (e)  any law on which the decision, recommendation, act or omission was based should be reconsidered;

    (f)  reasons should have been given for the decision or recommendation; or

  (g)  any other steps should be taken.

Same

   (4)  The Seniors' Ombudsman may make such recommendations as he or she thinks fit and may request that the public body notify him or her, within a specified time, of the steps, if any, that it proposes to take to give effect to his or her recommendations.

Same

   (5)  The Seniors' Ombudsman shall send a copy of his or her report and recommendations to the minister concerned.

Where no appropriate action taken

   (6)  If, within a reasonable time after the report is made, no action is taken that seems to the Seniors' Ombudsman to be adequate and appropriate, the Seniors' Ombudsman may, after considering any comments made by or on behalf of a public body affected, send a copy of the report and recommendations to the Premier, and may make a report to the Assembly on the matter. 

Same

   (7)  The Seniors' Ombudsman shall attach to every report sent or made under subsection (5) a copy of any comments made by or on behalf of the public body affected.

Complainant to be informed of result of investigation

   15.  (1)  Where, on any investigation following a complaint, the Seniors' Ombudsman makes a recommendation under subsection 14 (4), and no action that seems to the Seniors' Ombudsman to be adequate and appropriate is taken within a reasonable time, the Seniors' Ombudsman shall inform the complainant of his or her recommendation, and may make any comments on the matter that he or she considers appropriate. 

Same

   (2)  The Seniors' Ombudsman shall in any case inform the complainant, in the manner and at the time that he or she considers appropriate, of the result of the investigation. 

Proceedings not to be questioned or to be subject to review

   16.  No proceeding of the Seniors' Ombudsman shall be held bad for want of form, and, except on the ground of lack of jurisdiction, no proceeding or decision of the Seniors' Ombudsman is liable to be challenged, reviewed, quashed or called in question in any court. 

Proceedings privileged

   17.  (1)  No proceedings lie against the Seniors' Ombudsman, or against any person holding any office or appointment under the Seniors' Ombudsman, for anything he or she may do or report or say in the course of the exercise or intended exercise of his or her functions under this Act, unless it is shown that he or she acted in bad faith. 

Same

   (2)  Neither the Seniors' Ombudsman nor any person described in subsection (1) shall be called to give evidence in any court, or in any proceedings of a judicial nature, in respect of anything coming to his or her knowledge in the exercise of his or her functions under this Act. 

Same

   (3)  Anything said or any information supplied or any document or thing produced by any person in the course of an inquiry by or proceedings before the Seniors' Ombudsman under this Act is privileged in the same way as if the inquiry or proceeding were a court proceeding. 

Power of entry

   18.  (1)  For the purposes of this Act, the Seniors' Ombudsman may at any time enter any premises occupied by a public body for the purpose of carrying out an investigation. 

Notice of entry

   (2)  Before entering any premises under subsection (1), the Seniors' Ombudsman shall notify the head of the public body occupying the premises of his or her intention. 

Notice to desist

   (3)  The Attorney General may by notice to the Seniors' Ombudsman exclude the application of subsection (1) to any specified premises or class of premises if he or she is satisfied that the exercise of the powers mentioned in that subsection might be prejudicial to the public interest. 

Order of judge

   (4)  If it is necessary in the opinion of the Seniors' Ombudsman, he or she may apply to a judge of the Superior Court of Justice for an order setting aside a notice given under subsection (3) and, if the judge is satisfied that the exercise of the Seniors' Ombudsman's powers of entry would not be prejudicial to the public interest, he or she may make the order.

Delegation of powers

   19.  The Seniors' Ombudsman may in writing delegate to any person holding any office under him or her any of the Seniors' Ombudsman's powers under this Act except the power of delegation under this section and the power to make a report under this Act. 

Offences

   20.  (1)  A person is guilty of an offence if the person,

  (a)  without lawful justification or excuse, wilfully obstructs, hinders or resists the Seniors' Ombudsman or any other person in the performance of his or her functions under this Act; or

  (b)  without lawful justification or excuse, refuses or wilfully fails to comply with any lawful requirement of the Seniors' Ombudsman or any other person under this Act; or

   (c)  wilfully makes any false statement to or misleads or attempts to mislead the Seniors' Ombudsman or any other person in the exercise of his or her functions under this Act.

Penalties

   (2)  A person who is guilty of an offence under subsection (1) is liable on conviction to a fine of not more than $500 or to imprisonment for a term of not more than three months, or to both. 

Rights under Act do not affect other rights, etc.

   21.  The provisions of this Act are in addition to the provisions of any other Act or rule of law under which any remedy or right of appeal or objection is provided for any person, or any procedure is provided for the inquiry into or investigation of any matter, and nothing in this Act limits or affects any such remedy or right of appeal or objection or procedure.

Regulations

   22.  The Lieutenant Governor in Council may make regulations,

  (a)  prescribing or respecting any matter that this Act refers to as a matter prescribed by the regulations or as otherwise dealt with by the regulations;

  (b)  governing the nature of the Seniors' Ombudsman's employment;

   (c)  governing the functions, practices and procedures of the Seniors' Ombudsman;

  (d)  respecting any matter necessary to the enforcement and administration of this Act.

Commencement

   23.  This Act comes into force on the day it receives Royal Assent. 

Short title

   24.  The short title of this Act is the Seniors' Ombudsman Act, 2008.

 

EXPLANATORY NOTE

The Bill creates the office of Seniors' Ombudsman to investigate complaints and make recommendations respecting the impact on seniors of the administration of public bodies in Ontario.