Ontario’s Ombudsman has been the default municipal closed meeting investigator since January 1, 2008. On January 1, 2016, Bill 8, the Public Sector and MPP Accountability and Transparency Act, amended the Ombudsman Act and the Municipal Act, 2001, expanding the Ombudsman’s broad investigative powers beyond governmental organizations to include municipalities. Municipal administrations have since been adjusting to the Ombudsman’s expanded oversight role. Often, staff in the Ombudsman’s Office will call front line municipal staff directly. When the Ombudsman calls, what are some key issues to consider?
First, the Ombudsman’s jurisdiction to investigate is defined very broadly: “The function of the Ombudsman is to investigate any decision or recommendation made or any act done or omitted in the course of the administration of a [municipality] and affecting any person or body of persons in his, her or its personal capacity.”1 The “Ombudsman may make any such investigation on a complaint made to him or her by any person affected or by any member of the Assembly to whom a complaint is made by any person affected, or of the Ombudsman’s own motion.”2 The courts have interpreted the Ombudsman’s jurisdiction very broadly including the jurisdiction to investigate the merits of decisions made in an adjudicative capacity.3 If the Ombudsman determines to investigate alleged municipal maladministration, the Ombudsman has broad jurisdiction to do so.
However, the Ombudsman is a creature of statute and the Ombudsman’s jurisdiction is scoped accordingly. For example, the Ombudsman lacks jurisdiction to “investigate a complaint respecting any decision, recommendation, act or omission that is within the jurisdiction of the municipal Ombudsman for the City of Toronto.”4 Further, the Ombudsman lacks jurisdiction “to investigate any decision, recommendation, act or omission […] of any person acting as legal adviser to the [municipality].”5
Perhaps the most important point is that the Ombudsman’s jurisdiction is to “investigate.” It is, therefore, important to determine whether and when the Ombudsman is “investigating.” The Ombudsman is not investigating unless the Ombudsman has given notice of the intention to investigate: “Before investigating any matter, the Ombudsman shall inform the head of the [municipality] of his or her intention to make the investigation.”6
What is the “head” of a municipality? For all local municipalities, the “head” is its Council.
How does one communicate with a municipal Council? One communicates with a municipal Council via the municipal Clerk who places the correspondence on the agenda of a properly constituted meeting of the Council. Accordingly, unless the Ombudsman has given an investigation notice to the Council via the municipality’s Clerk, the Ombudsman has not commenced an “investigation” for the purposes of the Ombudsman’s otherwise broad jurisdiction.
The Ombudsman’s investigation notice is important for at least three reasons.
First, municipalities are already the level of government considered closest to the citizens they serve.7 Municipal citizens’ engagement includes attending and addressing their Council at open Council meetings, direct access to individual Councillors, access to municipal records and standing to lodge complaints respecting alleged members’ pecuniary interests and contraventions of municipal Codes of Conduct. This proximity distinguishes municipal governments from other “public sector bodies” to which the Ombudsman’s jurisdiction applies. Accordingly, if additional municipal and provincial resources are to be consumed by the Ombudsman’s oversight, it is in taxpayers’ interests that those resources are deployed efficiently.
Second, the Ombudsman’s practice of making inquiries directly of individual municipal staff and councillors in advance of an investigation notice is a potential legal risk to the individual and to the municipality to the extent that the protections afforded by subsection 19(3.1) of the Ombudsman Act are scoped to disclosures of personal information relating to a “matter that is being investigated.”
Third, the Ombudsman’s General Rules8 scope “preliminary investigations” to “cases wherein further information is required by the Ombudsman […] either to confirm a complaint or wherein immediate assistance of a complainant is required and the circumstances of the complaint make the immediate implementation of the procedural requirements of the Act impossible.”
Interestingly, the Ombudsman’s Annual Report for the period ending March 31, 2022, describes significant involvement in resolving “cases” rather than investigations or preliminary steps within the scope of the General Rules to confirm a complaint:9
“This past year, we dealt with 2,877 cases about general municipal issues – up from 2,281 in 2020-2021. None of these resulted in a formal investigation, as we resolve the vast majority of cases by working closely with municipalities to facilitate resolutions and share best practices to help them improve their processes. Since the Ombudsman’s mandate was first expanded to this area in 2016, we have received more than 20,000 complaints and inquiries, and conducted 6 formal investigations.”
For at least these reasons, consideration should be given to establishing guidelines or directives that will assist or direct municipal staff in their communications with the Ombudsman’s office. Staff and individual members of Council will also wish to ensure that they are acting within the scope of their responsibilities including for purposes of insurance or compliance with the terms of an indemnity by-law, as applicable. At a minimum, municipal staff and members of Council may consider it advisable to refer Ombudsman inquiries to the municipal Clerk who, in turn, can receive an investigation notice or assist the Ombudsman with any municipal information to confirm a complaint within the scope of the Ombudsman’s General Rules.
The article was previously published on the OBA Municipal Law Section’s articles page on February 21, 2023.
David J. Potts is the City Solicitor for The City of Peterborough, Ontario, and the Regional Coordinator for the Ontario Bar Association Municipal Law Section Executive. David is certified by the Law Society of Ontario as a Specialist, Municipal Law (Local Government).
1 Ombudsman Act, R.S.O. 1990, c. O.6 (O Act), s. 14(1).
3 See, for example, Re Ombudsman of Ontario and Ontario Labour Relations Board (1986), [1987] O.J. No. 7 (C.A.); aff’d (1987), [1987] S.C.C.A. 174.
6 O Act, s. 18(1) (underscoring added).
7 Toronto (City) v. Ontario (Attorney General) (2021), [2021] S.C.J. No. 34 at ¶118.
8 R.R.O. 1990, Reg. 865, s. 4(1).
9 Office of the Ombudsman of Ontario, Annual Report 2021-2022, (Toronto: Office of the Ombudsman of Ontario, August 2022), at p. 24, online. Bolded text in original.