as enacted by SM 1987-88, c. 9 on July 17, 1987.
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R.S.M. 1987, c. O45
The Ombudsman Act
HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Manitoba, enacts as follows:
In this Act,
"agency of the government" means any board, commission, association, or other body of persons, whether incorporated or unincorporated, all the members of which or all the members of the board of management or board of directors of which,
(a) are appointed by an Act of the Legislature or by order of the Lieutenant Governor in Council, or
(b) if not so appointed, in the discharge of their duties are public officers or servants of the Crown, or for the proper discharge of their duties are, directly or indirectly, responsible to the Crown; ("organisme gouvernemental")
"department" means a department or branch of the executive government of the province; ("ministère")
"minister" means a member of the Executive Council. ("ministre")
The Lieutenant Governor in Council shall, on the recommendation of the Standing Committee of the Assembly on Privileges and Elections, appoint a Canadian citizen as Ombudsman for the Province of Manitoba.
Recommendations of committee on privileges and elections.
(a) the office of Ombudsman is vacant; or
(b) the term of the Ombudsman in office will expire within 12 months; or
(c) the Ombudsman has tendered his resignation to take effect within 12 months;
the President of the Executive Council shall convene a meeting of the Standing Committee of the Assembly on Privileges and Elections which shall consider persons suitable and available to be appointed as Ombudsman and shall make recommendations in respect thereto to the President of the Executive Council.
Meetings of Standing Committee.
The Standing Committee of the Assembly on Privileges and Elections may, for the purposes of performing its functions under this section, meet during session of the Legislature or during recess after prorogation.
The Ombudsman is an officer of the Legislature and is not eligible to be nominated for, elected as, or sit as, a member of the Assembly.
The Ombudsman shall not hold any other public office or carry on any trade, business, or profession.
Unless he sooner resigns, dies or is removed from office, the Ombudsman shall hold office for six years from the date of his appointment, and a person may be re-appointed for a second term of six years, but not for more than two terms of six years.
The Ombudsman may resign his office in writing addressed to the Speaker of the Assembly, or, if there is no Speaker or the Speaker is absent, to the clerk of the Assembly.
The Lieutenant Governor in Council, on a resolution of the Assembly carried by a vote of 2/3 of the members of the Assembly voting thereon, may remove the Ombudsman from office or suspend him.
Suspension when Legislature not sitting.
At any time the Legislature is not in session, the Lieutenant Governor in Council may suspend the Ombudsman for disability, neglect of duty, misconduct or bankruptcy proved to the satisfaction of the Lieutenant Governor in Council, but the suspension shall not continue in force beyond the end of the next ensuing session of the Legislature.
Where the office of the Ombudsman is vacant, or the Ombudsman is suspended under subsection (1), the Lieutenant Governor in Council shall appoint an acting Ombudsman to hold office until another Ombudsman is appointed under section 2 or the suspension has been dealt with in the Assembly.
The Ombudsman shall be paid a salary fixed by the Lieutenant Governor in Council, which shall be charged to and paid out of the Consolidated Fund.
The salary of the Ombudsman shall not be reduced except on resolution of the Assembly carried by a vote of 2/3 of the members of the Assembly voting thereon.
The Ombudsman shall be paid such travelling and out of pocket expenses incurred by him in the performance of his duties as may be approved by the Provincial Auditor.
Application of Civil Service Superannuation Act.
The Ombudsman, and all persons employed under him, are employees within the meaning of The Civil Service Superannuation Act.
Application of The Civil Service Act.
The Ombudsman is not subject to The Civil Service Act except section 44 thereof which applies to him but he is entitled to the privileges and perquisites of office, including holidays, vacations, sick leave and severance pay, of a member of the civil service who is not covered by a collective agreement.
The Civil Service Act applies to persons employed under the Ombudsman.
Before beginning to perform his duties, the Ombudsman shall take an oath before the Speaker of the Assembly or the Clerk of the Assembly that he will faithfully and impartially perform the duties of his office and that he will not, except as herein provided, divulge any information received by him under this Act.
Every person employed under the Ombudsman shall, before he begins to perform the duties, take an oath before the Ombudsman that he will not, except as herein provided, divulge any information received by him under this Act.
The Ombudsman and every person employed under him shall maintain secrecy in respect of all matters that come to their knowledge in the exercise of their duties or functions under this Act.
Notwithstanding subsection (1) or any oath taken under this Act, the Ombudsman may disclose in a report made by him under this Act any matters which he considers necessary to disclose in order to establish grounds for his conclusions and recommendations.
Powers under Part V of The Evidence Act.
The Ombudsman has the protection and powers of a commissioner appointed under Part V of The Manitoba Evidence Act; but section 85 of The Manitoba Evidence Act does not apply to the Ombudsman and no notice of appointment, of the purpose and scope of inquiries to be made by the Ombudsman, or of the time and place of the holding of any hearing or inquiry by the Ombudsman, need be published as required under section 86 of The Manitoba Evidence Act.
The Ombudsman may in writing delegate to any person any of his powers under this Act except the power of delegation under this section and the power to make a report under this Act.
A person purporting to exercise the power of the Ombudsman by virtue of the delegation under subsection (1) shall produce evidence of his authority to exercise that power when required to do so.
The Ombudsman may, on a written complaint or on his own initiative, investigate any decision or recommendation made, including any recommendation made to a minister, or any act done or omitted, relating to a matter of administration in or by any department or agency of the government, or by any officer, employee or member thereof, whereby any person is or may be aggrieved.
Reference by committees of Assembly.
A committee of the Assembly may at any time refer to the Ombudsman, for investigation and report by him, any petition or matter that is before that committee for consideration; and the Ombudsman shall
(a) subject to any special directions of the committee, investigate the petition or matter referred to him so far as it is within his jurisdiction; and
(b) make such report to the committee as he thinks fit.
Reference by Lieutenant Governor in Council.
The Lieutenant Governor in Council may at any time refer to the Ombudsman, for investigation and report by him, any matter relating to administration in or by any department or agency of the government, or by any officer, employee or member thereof; and the Ombudsman shall,
(a) subject to any special direction of the Lieutenant Governor in Council, investigate the matter referred to him so far as it is within his jurisdiction; and
(b) make such report to the Lieutenant Governor in Council as he thinks fit.
The Ombudsman may exercise and perform the powers, duties and functions conferred or imposed on him under this Act notwithstanding any provision of any other Act of the Legislature
(a) that any decision, recommendation, act or omission that he is investigating is final; or
(b) that no appeal lies in respect thereof; or
(c) that no proceeding or decision of the department, agency of the government, officer, employee, or person whose decision, recommendation, act or omission it is shall be challenged, reviewed, quashed or called in question.
Nothing in this Act authorizes the Ombudsman to investigate
(a) any decision, recommendation, act, order or omission of the Legislature, the Assembly, the Lieutenant Governor, a committee of the Assembly, the Lieutenant Governor in Council, the Executive Council, or a committee of the Executive Council; or
(b) any order, decision or omission of a court, a judge of a court, a referee or master of a court, a magistrate or a justice of the peace made or given in any action or proceeding in the court, or before the judge, referee, master, magistrate or justice of the peace; or
(c) any award, decision, recommendation or omission of an arbitrator or board of arbitrators in an arbitration to which The Arbitration Act applies; or
(d) any 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 review on the merits of the case to any court or tribunal constituted by or under an Act of the Legislature, whether or not that right of appeal, objection or application has been exercised in the particular case and whether or not any time prescribed for the exercise of that right has expired, unless the Ombudsman is satisfied that in the particular case it would have been unreasonable to expect the complainant to resort to the tribunal or court, but in that case investigation shall not commence until after the time prescribed for the exercise of that right to appeal, object or apply, has expired.
Restriction on investigation by minister.
Where the Attorney-General certifies in writing to the Ombudsman that the investigation of a matter would be contrary to the public interest under the circumstances, the Ombudsman shall not investigate that matter, or, if he has commenced an investigation of that matter, he shall discontinue the investigation.
Where a certificate is given under subsection (1), the Ombudsman shall include that fact and a brief description of the circumstances of the matter in his next annual report to the Assembly.
Questions relating to jurisdiction.
Where a question arises as to the jurisdiction of the Ombudsman to investigate any case or class of cases under this Act, he may apply to the Court of Queen's Bench for a declaratory order determining the question.
Every complaint to the Ombudsman shall be made in writing.
Privacy of communication to Ombudsman.
Notwithstanding any Act, where a letter written by a person in custody on a charge or after conviction for an offence, or by an inmate in any hospital, mental hospital, home or institution operated by or under the direction of the government, or by any person in custody of another person for any other reason, is addressed to the Ombudsman, it shall be forwarded immediately, unopened, to the Ombudsman by the person for the time being in charge of the place or institution where the writer of the letter is detained or in which he is an inmate, or by the person having custody of the writer.
The Ombudsman, in his discretion, may refuse to investigate or may cease to investigate a complaint if
(a) it relates to any decision, recommendation, act or omission of which the complainant has had knowledge for more than one year before the complaint is received by the Ombudsman; or
(b) in his opinion it is frivolous or vexatious or not made in good faith or concerns a trivial matter; or
(c) in his opinion, upon a balance between the public interest and the person aggrieved, it should not be investigated or the investigation should not be continued; or
(d) in his opinion the circumstances of the case do not require investigation.
Limitation on review of discretionary powers.
Where, in the course of or after an investigation of any decision, act or omission, done or omitted by a department or agency of the government, or any officer or employee thereof in the exercise of a discretion vested in that department, agency, officer, or employee, the Ombudsman is satisfied that the decision, act or omission is not clearly wrong or unreasonable, the Ombudsman shall make no further investigation of the matter and shall report to the complainant that he is so satisfied.
Report of refusal to investigate.
Where the Ombudsman decides not to investigate or to cease investigating a complaint he shall inform the complainant, and any other interested person, of his decision.
Before investigating a complaint, the Ombudsman shall inform the deputy minister or the administrative head of the department or agency of the government affected of his intention to make the investigation.
Every investigation by the Ombudsman under this Act shall be conducted in private.
The Ombudsman may hold hearings and hear or obtain information from any person and make inquiries as he thinks fit.
The Ombudsman is not required to hold a hearing and no person is entitled, as of right, to be heard by the Ombudsman; but, if at any time it appears to the Ombudsman that there is sufficient grounds for his making a report or recommendation in respect of any matter that may adversely affect any department, agency of the government, or person, he shall give to that department, agency, or person, an opportunity to make representations in respect of the matter, and the department, agency, or person may make representations in respect of the matter by counsel.
The Ombudsman may, at any time during or after an investigation, consult any minister who is concerned in the matter of the investigation.
Where, during or after an investigation, the Ombudsman is of the opinion that there is evidence of a breach of duty or misconduct by a department or agency of the government or any officer or employee thereof, he shall refer the matter to the deputy minister or administrative head of the department or agency of the government.
Subject to section 31, the Ombudsman may require any person 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 the department or agency of the government and whether or not the document, paper or thing is in the custody or under the control of a department or agency of the government.
The Ombudsman may summon before him and examine on oath
(a) any person who is an officer or employee or member of any department or agency of the government and who in the opinion of the Ombudsman is able to give any information relating to any matter being investigated by him;
(b) any complainant; and
(c) any other person who in the opinion of the Ombudsman is able to give any information relating to any matter being investigated by him.
Where the Attorney-General certifies that the giving of any information or the answering of any question or the production of any document, paper or thing might involve the disclosure of
(a) the deliberations of the Lieutenant Governor in Council, the Executive Council, or any committee thereof; or
(b) proceedings of the Lieutenant Governor in Council, the Executive Council, or any committee thereof; or
(c) matters of a secret or confidential nature, or the disclosure of which would be injurious to the public interest;
the Ombudsman shall not require the information or answer to be given or the document, paper or thing to be produced, but shall report the giving of the certificate and the matter in respect of which it was given in his next annual report to the Assembly.
Subject to section 31, a rule of law that authorizes or requires the withholding of any document, paper or thing, or the refusal to answer any question, on the ground that the disclosure or answering would be injurious to the public interest does not apply in respect of any investigation by or proceedings before the Ombudsman.
Provisions relating to secrecy.
Subject to section 31, no provision of any Act of the Legislature requiring a person to maintain secrecy in relation to, or not to disclose information relating to, any matter shall apply in respect of an investigation by the Ombudsman; and no person required by the Ombudsman to furnish information or to produce any document, paper or thing or summoned by the Ombudsman to give evidence, shall refuse to furnish the information, produce the document, paper or thing, or to answer questions on the ground of any such provision.
Except on the trial of a person for perjury, no statement made, or answer or evidence given by that or any other person in the course of an investigation by or any proceedings before the Ombudsman is admissible in evidence against any person in any court or at any inquiry or in any other proceedings, and no evidence respecting proceedings before the Ombudsman shall be given against any person.
No person is guilty of an offence against any other Act of the Legislature by reason of his compliance with any request or requirement of the Ombudsman to furnish information or produce any document, paper or thing, or by reason of answering any question in any investigation of the Ombudsman.
For the purposes of this Act, the Ombudsman may at any time enter upon the premises occupied by any department or agency of the government and, subject to section 31, carry out therein any investigation within his jurisdiction.
Upon entering any premises under subsection (1), the Ombudsman shall notify the deputy minister or administrative head of the department or agency of the government that occupies the premises.
Where, after making an investigation under this Act, the Ombudsman is of opinion
(a) that a decision, recommendation, act or omission that is the subject matter of the investigation appears to have been
(i) contrary to law, or
(ii) unreasonable, or
(iii) unjust, or
(iv) oppressive, or
(v) improperly discriminatory, or
(vi) in accordance with a practice or procedure that is or may be unreasonable, unjust, oppressive, or improperly discriminatory, or
(vii) based wholly or partly on a mistake of law or fact, or
(viii) wrong; or
(b) that in making a decision or recommendation, or in doing or omitting an act, a power or right has been exercised
(i) for an improper purpose, or
(ii) on irrelevant grounds, or
(iii) on the taking into account of irrelevant considerations; or
(c) that reasons should have been given for a decision, recommendation, act or omission that was the subject matter of the investigation;
the Ombudsman shall report his opinion and his reasons therefor to the appropriate minister and to the department or agency of the government concerned, and may make such recommendations as he thinks fit.
Without limiting the generality of subsection (1), in making a report under subsection (1), the Ombudsman may recommend
(a) that a matter should be referred to the appropriate authority for further consideration: or
(b) that an omission should be rectified; or
(c) that a decision should be cancelled or varied; or
(d) that any practice on which a decision, recommendation, act or omission was based should be altered or reviewed; or
(e) that any law on which a decision, recommendation, act or omission was based should be reconsidered; or
(f) that reasons should be given for any decision, recommendation, act or omission; or
(g) that any other steps should be taken.
Where the Ombudsman makes a recommendation under section 36, he may request the department or agency of the government to notify him within a specified time of the steps that it has taken or proposes to take to give effect to his recommendations.
Further report on recommendations.
If within a reasonable time after a request respecting recommendations is made under this section, no action is taken which seems 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 of the government affected, may report the matter, including a copy of the report containing the recommendations, to the Lieutenant Governor in Council, and may thereafter mention the report in his next annual report to the Assembly.
Any report made under subsection (2) shall include any comments made by or on behalf of the department or agency of the government upon the opinion or recommendation of the Ombudsman.
Where the Ombudsman makes an investigation on the basis of a complaint received by him, he shall report to the complainant, in such manner and at such time as he thinks proper, the result of the investigation.
Review of Ombudsman's decision.
No proceeding of the Ombudsman is void for want of form and, except on the ground of lack of jurisdiction, no proceedings or decisions of the Ombudsman shall be challenged, reviewed, quashed or called in question in any court.
Proceedings against Ombudsman prohibited.
No proceedings lie against the Ombudsman or against any person employed under him for anything he may do or report or say in the course of the exercise or performance, or intended exercise or performance of his functions and duties under this Act, unless it is shown he acted in bad faith.
Ombudsman not to be called as witness.
The Ombudsman and any person employed under him shall not be called to give evidence in any court or in any proceedings of a judicial nature in respect of anything coming to his knowledge in the exercise or performance of his functions and duties under this Act.
The Ombudsman shall report annually to the Assembly through the Speaker on the exercise and performance of his functions and duties under this Act.
In the public interest, or in the interest of a person, department or agency of the government, the Ombudsman may publish reports relating generally to the exercise and performance of his functions and duties under this Act or to any particular case investigated by him, whether or not the matters to be dealt with in the report have been the subject of the report made to the Assembly under this Act.
The Assembly may make general rules for the guidance of the Ombudsman in the exercise and performance of his functions and duties under this Act.
Subject to this Act and any rules made under subsection (1), the Ombudsman may determine his procedure.
Every person who
(a) without lawful justification or excuse wilfully obstructs, hinders, or resists the Ombudsman or any other person in the exercise or performance of his functions and duties under this Act; or
(b) without lawful justification or excuse refuses or wilfully fails to comply with any lawful requirement of the Ombudsman or any other person under this Act; or
(c) wilfully makes any false statement to or misleads or attempts to mislead the Ombudsman or any other person in the exercise or performance of his functions and duties under this Act;
is guilty of an offence and liable, on summary conviction, to a fine of not more than $500. or to imprisonment for a term not exceeding three months, or to both.
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.