Clause 15. Mr. Testart.
Mr. Chair, I move that Bill 20 be amended by deleting subclause 15(1) and substituting the following:
15.(1) The mandate of the Ombud is to investigate any decision, recommendation made, or any act done or omitted, by an authority or by any officer, employee, or member of an authority, in the exercise of any power or duty conferred on that person or body by any enactment, that
(a) relates to a matter of administration or the implementation of a policy; and
(b) aggrieves or may aggrieve any person or body of persons in the person's or its personal capacity.
Thank you, Mr. Chair.
Thank you, Mr. Testart. There is a motion on the floor. The motion has been distributed and is in order. To the motion, Mr. Testart.
Thank you, Mr. Chair. Mr. Chair, the Standing Committee on Government Operations developed this amendment based on its consultations and the feedback we received from the public that the mandate section of this bill was dense, overly legalistic, and difficult to understand. Standing committee set to work to make it more legible and to also clarify a concern that was also raised by the public that government policy was not explicitly referenced in the act itself, whereas it is a long-standing component of what an Ombud can do in the execution of their duties. So this amendment makes the mandate of the Ombud more readable, it clarifies the roles, powers, and duties of the Ombud, and we believe strongly as a committee that this was the right way to improve the bill. The committee passed this amendment; it was not concurred with by the Minister, so we bring it forward to the attention of the Committee of the Whole in this setting now, and I would ask that my colleagues support it for the reasons I've stated. Thank you very much, Mr. Chair.
Thank you, Mr. Testart. To the motion, Mr. O'Reilly.
Thank you, Mr. Chair. I, too, will support this. I think it helps clarify the mandate of the Ombud. I also wanted to say that this issue was brought to the attention of the committee by more than one presenter. I attended the public hearing that was held here in Yellowknife, and I did review the submissions, so this is responding to the public comments that were received by the committee, as well. For the average person reading this, I think this will help clarify the understanding that they can take away from this bill. I urge everyone to separate this. Thank you, Mr. Chair.
Thank you. Minister Sebert.
Yes, thank you, Mr. Chair. I do appreciate the work that the committee has done with respect to this motion. However, we cannot support it for the reasons that I'll now provide.
Like Ombud legislation across Canada, subsection 15(1) currently provides that the Ombud's mandate is to investigate any decision or recommendation made or any other act done or not done by government that relates to a matter of administration. Although a matter of administration is not defined in the act, or in other Ombud legislation, a matter of administration could include any practice, procedure, action, or decision that government makes, as it implements or administers its laws and policies.
The court has defined it as conduct engaged in by governmental authorities in furtherance of government policy. However, the motion proposed to amend section 15(1) to provide that the mandate of the Ombud is to investigate any decision or recommendation made or any act done or not done by the government that relates to a matter of administration or, or the implementation of a policy. That gives us some problem. Although the intention of Motion 5 may be to clarify the meaning of a matter of administration, we do not believe this motion accomplishes this by the right number.
For one, we are concerned that the inclusion of this additional phrase will confuse rather than clarify the Ombud's jurisdiction because a decision, recommendation, action, or omission made while implementing policies is an example of a matter of an administration. However, the motion as written, a decision, recommendation, action, or omission that relates to the implementation of a policy is not presented as an example of a matter of administration, but set as an alternative to a matter of administration.
The use of the word "or" appears to indicate that the phrase "implementation of a policy" is something different than a matter of administration. This means consideration must be given to the meaning of the term "policy" in the motion.
An Ombud is supposed to have jurisdiction in relation to administrative matters only, not political decision-making. Our concern is that the addition of the phrase "the implementation of a policy" may have the effect of expanding the Ombud's jurisdiction to include investigation of decision, recommendation, actions, or omissions made or taken in the implementation of public policy decisions.
For those reasons, we do not feel that we can support this motion. Cabinet will be opposing this motion. I'm sorry if I've misidentified it by number. Thank you.
Thank you, Minister. To the motion.
Question.
Question has been called. All those in favour? Could people please put their hands up a little higher. All those opposed? The motion is defeated.
---Defeated
Minister Abernethy.
Thank you, Mr. Chair. Mr. Chair, during this review of Bill 20, the standing committee on government operations identified concerns with the readability of subclause 15(1), the one that was just discussed. To improve readability of this provision, I would like to move a motion to amend Bill 20.
Go right ahead.
Thank you, Mr. Chair. I think some pinks have been provided. I will need my copy.
Thank you, Minister. To the motion. Mr. Testart.
Mr. Chair, I move that the Chairman of the Committee of the Whole leave the chair. Thank you, Mr. Chair.
Mr. Testart, could you please clarify? Would you like me to leave or would you like to report progress?
Mr. Chair, the motion is for the Chair to leave the chair, so yes, it would be to leave. No reporting of progress.
There is a motion on the floor. Please give me a moment while I confer with the clerks. Committee, we will take a brief recess while this is sorted out. Thank you.
---SHORT RECESS
Thank you, committee. I call Committee of the Whole back to order. Mr. Testart, your motion is out of order. There is no such motion referenced in the rules. We are still dealing with the motion put forward by Minister Abernethy. To the motion. Mr. Testart.
My apologies, Mr. Chair. I move the chair rise and report progress.
Thank you, Mr. Testart. There is a motion to report progress. The motion is in order and non-debatable. All those in favour, please raise your hands so I can see. All those opposed, please give me a show of hands. The vote is tied, so we will not report progress.
---Defeated
We will continue. To the motion. Minister Sebert.
Thank you. I believe that this motion improves the language that was originally in the act. It clarifies the issues that we were concerned about. For those reasons, I feel that the motion should be supported by all Members, but will be supported by Cabinet in any case.
As I said, there were issues that I raised with respect to the prior motion. We believe that this clarifies some of those issues. That is why we are supporting it. Thank you.
Thank you, Minister. To the motion. I will put the question to committee. All those in favour? All those opposed? We have another tie. The motion is defeated.
---Defeated
Clause 15. Does committee agree?
Agreed.
Clause 16.
Agreed.
Clause 17. Mr. O'Reilly.
Thanks, Mr. Chair. I would like to understand from the Minister what the intent of 17(3) is. Thanks, Mr. Chair.
Thank you. Minister.
Thank you. Much of our legislation does involve limitations. Put another way, there is a Limitation of Actions Act which does limit the ability to commence legal actions. It's not that a limitation period, if I can put it that way, referring to the section is that unusual in our law. The point of most limitation actions, among other things, is that it pushes a claimant with a legitimate claim to pursue it with reasonable diligence. A defendant or respondent may lose evidence necessary to dispute the claim if too much time has gone by.
That is the reason for this type of section in this legislation. As I say, the Limitation Act imposes limitations for many types of legal actions. Thank you.
Thank you, Mr. O'Reilly.
Thanks, Mr. Chair. I thought the whole purpose here of this bill was to try to avoid going to court and that this officer would help investigate, or perhaps resolve, what complainants perceive to be unfair administrative conduct. This is not a legal process. I'm trying to understand the rationale for setting, or basically restricting, the mandate of the Ombud to only be able to look at conduct that comes in after the commencement of this act. This really would have a very severe consequence in terms of limiting the ability of our residents to access the Ombud. Can the Minister provide some comments? Thanks, Mr. Chair.
Thank you. Minister.
Yes. As I mentioned earlier, it is not unusual to have limitations in proceedings. I know there has been a good deal of discussion back and forth with committee about this very section. I thought we were inching towards a compromise, but I will hear further from the Members. Thank you.
Thank you, Minister. Mr. O'Reilly.
Thanks, Mr. Chair. Yes, I am interested in hearing more about this compromise, but the way this has been written, you know, this bill is coming forward a year later than it should have under the mandate commitment. I think there are people out there expecting that they are going to be able to access the services that may be provided under this act.
Having this kind of restriction on the mandate of the Ombud is not helpful at all in terms of resolution of complaints that may come forward from our constituents. I have expressed this concern to the Minister. We are not even sure what the word "commencement" means in terms of the context of this bill; does it mean when the Ombud is appointed or when the legislation receives assent? I think there are some issues around that as well.
This is the bill that I really and probably will die on in terms of this bill. This is not good. We shouldn't have this kind of restriction on the mandate of the Ombud in the bill. The Ombud should have the ability to, and has discretion to, accept complaints. This matter of reaching back into time, that is something that the Ombud should be left with a discretion to do; to do that if necessary and make up his or her mind about whether there is a valid complaint. Putting in artificial restriction in here is not, I think, going to satisfy our residents. I don't think it's good drafting, and quite frankly, I think it's against open government and it's against transparency and public engagement, which this Minister stands for. Thanks, Mr. Chair.
Thank you. Minister.
Thank you, Mr. Chair. As I say, there has been a good deal of discussion back and forth. It seemed to us that it was necessary to choose some date and I would be interested in hearing from the Regular Members as to what date they think is reasonable. I thought we had had some discussions that were leading to an agreement with respect to that. Thank you.
Thank you, Minister. Right now, Mr. O'Reilly has the floor. Mr. O'Reilly.
Thanks, Mr. Chair. I don't want to drag this out. I think there is a real difference of approach and opinion here about this matter.
This is not just coming from me as a Member. We heard this from members of the public. We heard it from the godmother to this bill, Ms. Bisaro. This is not good drafting. I don't think it is consistent with what I had hoped for coming out of this bill. It is not what the public has said to the standing committee, and I think that this should not be supported. Thanks, Mr. Chair.
Thank you. Minister.
In discussions with members of committee, I thought we had come to some agreement with respect to this section. As I say, it is not unusual in law that there are limitations. In fact, although it is not quite the same kind of limitation, even section 22(1) talks about complaints, and section 22(1)(a), which is not a hard limitation in the same way, but I think that some limitation on the Ombud going back is reasonable. Thanks.
Thank you. Is there anything further from Mr. O'Reilly?
I think there may be a motion coming forward on this. The last point I want to make is that this kind of restriction on the mandate of the Ombud sends out all of the wrong signals to the public, and I think it will deter people from coming to this officer for trying to resolve their issues with our government. I just don't think it serves the public interest. Thanks, Mr. Chair.
Thank you, Mr. O'Reilly. Mr. Testart.
Mr. Chair, I move that Bill 20 be amended by deleting subclause 17(3) and substituting the following:
(3) The Ombud may investigate any decision, recommendation, act, order, or omission within the Ombud's mandate that occurred no earlier than January 1, 2016. Thank you.
