Public Commons

• Summary of law and by-laws re: Ombud

Part of Ombudsman

The law, as set out in the City of Toronto Act, [see updated electronic version at http://www.e-laws.gov.on.ca/html/statutes/english/elaws_statutes_06c11_e.htm requires City Council to appoint an "Ombudsman" (referred to as an Ombud below - which is the original, genderless Swedish word).

The Ombud's job is defined first in this provincial law, and is further defined by City Council by-law. Toronto Municipal Code Oct 2009 The City of Toronto Act says that the Ombud's job is to "investigate any decision or recommendation made or any act done or omitted in the course of the administration of the City,its local boards and city controlled corporations". It adds that the Ombud cannot, however, investigate a complaint about a decision, recommendation act or omission by someone who provides legal advice provided to Council.

The Ombud is to investigate complaints about City administration and then report back to City Council and to the citizens.

The "Act" gives City Council the power to define the Ombud's actual powers and duties by passing a by-law.

In this by-law, City Council specifies the types of citizen complaints that the Ombud can cannot investigate: citizens' complaints and report to City Council on the following matters:

In conducting an investigation, the Ombud has far-reaching powers to investigate any decision made by the city administration even where another law states that these decisions are not reviewable, cannot be appealed or challenged.

The Ombud cannot become involved in any investigation until all of the available steps and recourse have been taken (e.g. if a decision can be appealed, it must first be appealed. if the applicant loses the appeal,at this point she can ask the Ombud to investigate the matter.)

The Ombud may delegate (in writing)any of the Ombud's powers and duties under this Part to anyone other than a Councillor.

When she makes her reports, the Ombud can disclose any information she considers necessary to found her conclusions/recommendations, even where the Municipal Freedom of Information would require that the information be kept confidential.

In the law setting out the Ombud's powers, the Provincial Legislature is giving clear notice that the Ombud's decisions are not to be scrutinized by the courts. This avoids undermining the Ombud's powers and provides, at least in theory, for a much more flexible and potentially thorough, far-reaching approach to a complaint. For example, no one can challenge the way the Ombud proceeds with an investigation or challenge any of her decisions unless they can establish that she investigated a matter outside her mandate as set by Council. Nor can the Ombud or anyone else acting under her instructions be called into court on any matters s/he has heard. Further, no information, documents or anything else supplied during an Ombud's investigation can be revealed in court.

The Toronto Municipal Code

The Ombud is appointed for a five year term that can be renewed once.

The Ombudsman is responsible for setting up her office and the procedures to be followed by her office and for "investigating public complaints about decisions, actions or recommendations made or omitted in the course of implementing City policies and administering City services." She can also take on other responsibilities that Council may assign.

The Ombud can start an investigation regarding any matter where she reasonably believes that a person or a group of people have been personally "adversely affected" by "a decision, recommendation, act or omission made in the course of implementing City policies and administering City services" by City staff, city board or city-controlled corporation or by a person or company that does contract work for the City.

She reports to Council but has no authority to investigate decisions made by Council or Council committees.

In addition to investigating individual or group complaints, the Ombudsman may investigate a matter at Council's request or on her own initiative.

She can, but does not have to, refuse to investigate in the following cases:

- if she believes that a complainant has not taken all of the steps available to him/her to address the problem

- if the issue is trivial or the complaint is not made in good faith

- if the complainant cannot show sufficient personal interest in the issue complained of

- if she feels that the circumstances do not warrant further investigation

- if the complaint is made more than a year after the complainant learned of the facts behind the complaint, unless there are exceptional circumstances

If the Ombudsman decides not to investigate, or to discontinue an investigation, she must inform the complainant in writing of the decision and the reasons for the decision.

Before the Ombud starts an investigation, she must must notify the parties affected, hear from them, and provide the parties an opportunity to rectify the problem that led to the complaint.

When considering whether or not to investigate a complaint, the Ombud must consider whether the decision, recommendation, act or omission in question fits into one of these categories:

- against the law;

- "unreasonable, unjust, oppressive or improperly discriminatory";

- based wholly or partly on a mistake about the law law or facts ; - whether or not someone has used his/her discretionary power in an improper way or

- the decision is wrong

Once the Ombud has completed her investigation, she must advise the complainant and the affected parties of her findings, in writing.