Mr. Speaker, your Standing Committee on Government Operations is pleased to provide its report on Bill 61, An Act to Amend the Ombud Act, and commends it to the House.
Bill 61, An Act to Amend the Ombud Act, (Bill 61) received second reading on November 2, 2022 and was referred to the Standing Committee on Government Operations for review.
Bill 61 is a private Member’s bill, sponsored by the Member for Yellowknife North, to amend the Ombud Act. Many of the proposed changes derive from recommendations in the Ombud’s 20192020 Annual Report and in committee’s review of that annual report. Specifically, Bill 61:
Allow residents to make complaints about a wider range of public bodies;
Allows the Ombudsman to investigate complaints going back further in time, to 1999;
Allows the Ombud to provide more notice of investigations to Indigenous organizations; and
Clarifies the Ombud’s mandate.
This report outlines key events leading up to the introduction of Bill 61, describes committee's engagement with stakeholders, and summarizes stakeholders' positions and committee's decisions on key issues.
I will now turn the report over to the MLA for Kam Lake, MLA Cleveland.
Thank you, Member for Thebacha. Member for Kam Lake.
Thank you, Mr. Speaker.
In October 2020, the Speaker tabled the Ombud’s firstever annual report for 20192020. The Ombud’s report made 14 recommendations for legislative changes to the Act. The recommendations were informed by:
The Ombud’s review of legislation in other jurisdictions;
The advice she received from other Ombuds and legal professionals; and
The issues that arose when responding to individual complaints in her first year in the role.
The Ombud made her recommendations "with the intent of ensuring that my office is fully enabled to fulfill the purpose and vision with which the Legislative Assembly created it."
Committee endorsed many of the Ombud’s recommendations in our subsequent review report. That report was tabled in May 2021 and discussed in Committee of the Whole. The Legislative Assembly ultimately adopted seven motions that recommended changes to the Act.
At the time, Members hoped the Government of the Northwest Territories would put forward amending legislation in the remaining two years of the 19th Assembly. In this regard, the GNWT’s November 2021 response was disappointing. The GNWT declined to pursue any legislative changes in the life of the 19th Assembly, agreeing only to consider committee's recommendations in the context of a "future review."
In June 2022, committee followedup on the GNWT’s response in a meeting with the government House leader. Committee wanted to learn more about the GNWT’s position and, more importantly, make one more appeal for changes to the Act in the 19th Assembly. Shortly before, the government House leader and committee had collaborated successfully to incorporate recommendations from the Languages Commissioner, another statutory officer, into legislation in the life of the 19th Assembly. Committee had hoped for a similar process and outcome for the Ombud. Ultimately, the Government maintained its position and declined to make changes.
Committee is dissatisfied that efforts to craft recommendations that would improve government operations – which were endorsed as motions in the Legislative Assembly – are disregarded without meaningful and timely action. Our disappointment grows greater when our recommendations build on recommendations from our statutory officers. The statutory officers provide great expertise and effort in their work yet, in some instances, their recommendations have gone unmet with legislative changes for up to 20 years.
Committee therefore welcomes Bill 61. In particular, committee commends the Member for Yellowknife North for bringing forward these changes on his own initiative. The changes will improve the ability of the Ombud to carry out her mandate for the people of the Northwest Territories.
Committee sought public feedback on Bill 61 with a public notice and targeted engagement letters to key stakeholders. Committee received written submissions from:
The Member for Yellowknife North
The Ombud
The Minister of Justice
The NWT Human Rights Commission.
The Human Rights Adjudication Panel
The Equal Pay Commissioner
The Languages Commissioner The Integrity Commissioner
And one member of the public.
All written submissions are included in an appendix to this report.
Committee also held a public review of Bill 61 on December 9, 2022. At that meeting, committee received oral comments from the Member for Yellowknife North and the Ombud. Committee also met with the NWT Human Rights Commission and the Human Rights Adjudication Panel to hear their concerns on January 16, 2023.
Committee extends our sincere gratitude to everyone who contributed their thoughts, concerns, and advocacy for the review of Bill 61. The engagement in the review process demonstrated a strong commitment to protecting and reinforcing our territory’s institutions and governance. The input helped us to understand the benefits of the proposed changes and put forward amendments to further strengthen the bill.
Mr. Speaker, I would like to pass the reading of this report on to the Member for Inuvik Twin Lakes. Thank you.
Thank you, Member for Kam Lake. Member for Inuvik Twin Lakes.
Thank you.
Bill 61 would mean residents could make complaints to the Ombud about a wider range of public bodies, including housing associations and the Human Rights Commission. In verbal testimony, the Ombud indicated that she has had to turn down complaints because certain public offices are outside her mandate. For example: While the Ombud can investigate a public housing complaint from a tenant in Inuvik, where the local housing organization is defined as an "authority", she cannot investigate the same complaint if it came from Fort McPherson (Teetl'it Zheh), where the LHO is defined as an "association."
The legislative changes would add other public organizations to the mandate of the Ombud that are currently excluded, such as:
the chief rental officer;
the Assessment Appeals Tribunal;
the Social Assistance Appeal Board; and
staffing appeal officers.
According to the Ombud, other Canadian legislation does not typically exclude these types of offices from an Ombud’s mandate. Committee requested a jurisdictional scan from the sponsoring Member, who provided one. The scan confirms the Ombud’s assertion.
Committee previously recommended this change in 2021. Committee continues to support this change and hopes that the Northerners' complaints are treated the same way in each community and as they would be in other provinces and territories.
Bill 61 would allow the Ombud to investigate complaints into matters that have come up since April 1, 1999. Right now, the Ombud can only investigate complaints into matters that have come up since January 1, 2016. The Ombud has reported that the temporal restriction of her authority has prevented her from looking into a small number of cases. She has conveyed that complainants have found the cutoff "arbitrary and unfair" and "hard to accept." The committee has agreed that the Ombud should not have to refuse complaints from 2015 while being able to investigate complaints from 2016.
The Minister of Justice expressed concern at the potential for an "overwhelming number of requests." The Ombud, by contrast, does not share this concern, saying that the legislation gives her many ways to turn down complaints. Committee is satisfied with the Ombud’s explanation and believes any increase in complaints will be manageable. One member of the public also expressed support for the change. They noted that the Ombud’s current restriction to reference information predating 2016 may distort the outcome of an investigation. Committee believes this change will help the Ombud make better, more informed recommendations.
Committee previously recommended this change in 2021 and continues to support this change. Committee finds the April 1, 1999, date appropriate as it is the date on which the modern Northwest Territories came into being. Committee further notes that this new date more closely aligns with the standard in Yukon. Yukon’s Ombudsman Act links the temporal change restriction with the law’s coming into force date, which was July 1, 1996.
Committee is pleased that the Ombud will be able to investigate complaints that predate 2016, and that she can consider all relevant information going further back in time.
Bill 61 would allow the Ombud to provide more notice of investigations, including Indigenous organizations, where the public body being investigated is created from an agreement between the Government of the Northwest Territories and an Indigenous government.
These changes are consistent with two previous committee recommendations. Committee believes these changes will better serve complainants and the authorities subject to a complaint.
Clause 3 of Bill 61 updates section 15(1) of the Act, which defines the Ombud’s mandate. The goal of the clause is to provide clearer wording. The existing wording for the mandate is awkward and was the subject of considerable debate when the Act was first debated in the Legislative Assembly. The new, proposed wording is similar to that of a previous committee recommendation, which itself was based on a motion from the then Committee Chair in the 18th Assembly.
Originally, clause 3 of Bill 61 read:
3. Subsection 15(1) is repealed, and the following is substituted:
15.(1) The mandate of the Ombud is to investigate any decision or recommendation made, or any act done or omitted to be done by an authority or by officers, employees or members of an authority in the exercise of their powers or duties, 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 their personal capacity.
However, the Ombud was concerned with the phrase "or the implementation of a policy." She cautioned that specifically identifying one category type of matter of administration could lead to a narrower reading of the Ombud’s mandate in the future.
The Minister of Justice was concerned with the same phrase, for a different reason. The Minister thought the wording could be interpreted as expanding the Ombud’s mandate beyond matters of administration, to the potential impact on public policy decisionmaking.
Committee therefore agreed to and passed a motion to amend clause 3. The amendment effectively dropped the problematic phrase from the clause. The Member for Yellowknife North concurred. Committee believes that this deletion addresses the risk for confusion and ensures that the Ombud’s mandate to investigate "a matter of administration" remains intentionally broad.
I'd like to turn it over to the MLA for Thebacha. Thank you, Mr. Speaker.
Thank you, Member for Inuvik Twin Lakes. Member for Thebacha.
Section 23 of the current Act prevents the Ombud from investigating complaints that are within the mandate of certain statutory officers, unless that officer agrees. The current Act applies this restriction to six (6) offices:
The Languages Commissioner;
The Information and Privacy Commissioner;
The Integrity Commissioner;
The chief electoral officer;
The director of Human Rights; and
The Equal Pay Commissioner
Clause 6 of Bill 61, as originally drafted, would have continued to exclude these three statutory officers of the Ombud’s jurisdiction: The Information and Privacy Commissioner, the Integrity Commissioner, and the chief electoral officer. But the bill would have added the three other officers to the Ombud’s jurisdiction: The Languages Commissioner, the Human Rights Commission, and the Equal Pay Commissioner.
All three statutory officers affected by the potential change expressed concern about overlapping jurisdiction with undesirable implications. The Minister of Justice voiced similar concerns and recommended more consultation with all three affected statutory officers.
Committee reviewed and sought to resolve these concerns. Committee wanted to ensure guardrails to ensure that the Ombud cannot override decisions of the Human Rights Commission or the Adjudication Panel.
Committee consulted the Law Clerk on a couple of approaches to amend clause 6. Committee ultimately settled on the cautious approach that would maintain the exclusion of all six statutory officers covered in the existing Act. Committee also decided to expressly exclude the Human Rights Commission and the Adjudication Panel from the Ombud’s jurisdiction.
Committee agreed to and passed a motion with such an amendment at the clausebyclause review. The Member for Yellowknife North concurred.
In a written submission, the Ombud offered three suggestions to further amend Bill 61:
Clarify and make more inclusive the definition of "administrative head";
Remove the phrase "the implementation of a policy" from the Ombud’s mandate; and
Remove the phrase "and any administrative policies of the Clerk" from subsection 42(2).
Committee agreed to and passed an amendment that addresses the Ombud’s second suggestion. Committee did not consider the Ombud’s first and third suggestions, as these were out of scope for Bill 61. Committee believes there’s merit to reviewing both outstanding suggestions in the context of a fuller review of the Ombud Act. Committee has previously recommended that the Government of the Northwest Territories conduct a holistic review of the Ombud Act within the first two years of the 20th Assembly.
Committee believes the issue whether, how, and to what extent the Ombud can investigate other statutory officers of the Assembly merits further study, as part of a broader review. Committee notes that inconsistencies may exist between these statutory officers' jurisdiction – for example, while the Languages Commissioner may investigate a complaint against the Ombud, the converse is not allowed, at least not without the agreement of the Languages Commissioner.
The Standing Committee on Government Operations therefore recommends:
That the Government of the Northwest Territories, in consultation with the Board of Management, lead a holistic review to examine and clarify the jurisdiction of each statutory officer of the Assembly to investigate:
Other statutory officers of the Assembly;
Public bodies that exercise statutory authority on behalf of the Executive; and
Public bodies that provide statutory advisory services to the Executive.
The review should identify areas of over and underlapping jurisdiction and make recommendations to address discrepancies based on best practices.
The Standing Committee on Government Operations recommends that the Government of the Northwest Territories provide a response to this report within 120 days.
On January 25, 2023, committee held a clausebyclause review. Committee passed a motion to report Bill 61, as amended, to the Legislative Assembly as ready for consideration in Committee of the Whole.
This concludes the Standing Committee on Government Operations' review of Bill 61.
Mr. Speaker, I move, second by the Member for Kam Lake, that Committee Report 4019(2) Standing Committee on Government Operations Report on Bill 61, An Act to Amend the Ombud Act, be received by the Assembly and referred to the Committee of the Whole. Thank you, Mr. Speaker.
Thank you, Member for Thebacha. The motion is in order. To the motion?
Question.
Question has been called. All those in favour? All those opposed? Any abstentions? The motion is carried. Bill 61 will be deferred into Committee of the Whole.
Carried
