This is page numbers 4571 - 4620 of the Hansard for the 18th Assembly, 3rd Session. The original version can be accessed on the Legislative Assembly's website or by contacting the Legislative Assembly Library. The word of the day was yellowknife.

Topics

Committee Report 10-18(3): Report on the Review of Bill 20: Ombudsperson Act
Reports Of Standing And Special Committees

Page 4590

R.J. Simpson Hay River North

Thank you, Mr. Speaker.

Call for a Mandatory Review Provision

Some Northwest Territories statutes contain provisions requiring a mandatory review of the legislation at set intervals of time, usually every five or ten years.

  • Ms. Wendy Bisaro suggested that Bill 20 "is missing a clause requiring a review of the Act every 10 years."

The merit of including such a provision in legislation is that it sends a public message about the importance of keeping the legislation up to date and suitable for current circumstances. Unfortunately, such provisions can tie an Assembly to an expensive and time-consuming review, when one may not be necessary and there are other, more pressing, legislative priorities. Given that the Legislative Assembly has the prerogative, at any time, to review and amend its legislation, such a provision is not strictly necessary. For these reasons, committee did not adopt this suggestion.

What We Did

In addition to the general themes identified above, the committee was fortunate to receive detailed input on a number of specific clauses contained in Bill 20. Committee addressed many of these issues raised by stakeholders in motions to amend Bill 20.

Clause by Clause Review

The clause-by-clause review of Bill 20 was held on was held on October 25, 2018. The committee thanks the honourable Louis Sebert, Minister responsible for Public Engagement and Transparency, and members of his staff for their appearance before the committee.

At this meeting, the committee moved 19 separate motions to amend Bill 20. These motions, and the purpose of each, are identified below.

Minister Sebert concurred will all but three of the committee's motions. The motions for which there was no concurrence are also identified below.

Motion 1: To amend the English version of Bill 20 to change the word "Ombudsperson" to "Ombud" wherever it appears in the bill.

This makes "Ombud" the official title of the position.

Motion 2: To amend clause 6(3) of Bill 20 specify that any suspension of the Ombud occurring when the Legislative Assembly is not in session will only remain in effect until the conclusion of the next sitting of the Legislative Assembly.

As pointed out by the NWT Branch of the Canadian Bar Association, "the Commissioner, on recommendation of the Board of Management, should not be able to suspend the Ombudsperson without accountability to the Legislative Assembly." This amendment allows the Assembly to deal with the suspension at the next sitting, and is consistent with Ombud legislation in other jurisdictions such as Manitoba and Ontario.

Motion 3: To amend subclause 7(3) to change "Speaker" to "Board of Management."

Clause 7(3) provides for the appointment of an Acting Ombud, due to the resignation or absence of the incumbent Ombud. Committee received input from Ms. Bisaro suggesting that any appointments should be done only by the Legislative Assembly, and by the NWT Seniors' Society suggesting that any decision be made by way of a "supermajority" of votes, meaning a majority that is larger than fifty percent plus one.

The Legislative Assembly votes on appointments, such as the Ombud, Acting Ombud or Special Ombud, according to the Rules of the Legislative Assembly, which require a simple majority. Consequently, it would be outside the scope of Bill 20 for the committee to seek an amendment requiring a supermajority vote. Committee feels, however, that appointment by the Board of Management, rather than the Speaker alone, would require consideration of a number of viewpoints, rather than just one. That is the rationale for this amendment to the bill.

Committee notes that input on this provision was received from the Office of the Clerk of the Legislative Assembly, which has an interest in this legislation because it is responsible for the management of the Legislative Assembly's statutory officers. The Office of the Clerk indicated a preference for subclause 7(3), as originally drafted, for consistency with other statutory officer legislation and to allow the Speaker alone to appoint an acting Ombud when it is a matter of urgency. Given that acting and special appointments for the Languages Commissioner and Equal Pay Commissioner are made on the recommendation of the Board of Management, while others like the Information and Privacy Commissioner are made by the Speaker, and to be responsive to public concerns about the independence of the Ombud, committee decided to proceed with Motion 3.

Motion 4: To amend subclause 8(1) to change "Speaker" to "Board of Management."

Subclause 8(1) provides for the appointment of a Special Ombud. The rationale for this motion is the same as for Motion 3.

Motion 5: To amend subclause 15(1), which sets out the mandate of the Ombud.

Committee found this important clause densely worded and difficult to understand. Almost all Ombud legislation across Canada has a similar clause, and committee had seen examples in which the Ombud's mandate was more clearly communicated. Committee proposed a motion to improve the readability of the clause. Committee also wanted the mandate clause to contain a specific reference to policy. Committee holds the view that it is fully within the Ombud's mandate to consider and make recommendations on the application of GNWT policy. The reference was meant to add clarity by making this explicit.

Minister Sebert did not concur and the motion was defeated.

Motion 6: To amend Bill 20 by deleting subclause 16(2).

Subclause 16(2) provides for the Executive Council (Cabinet) to refer matters relating to the administration of an authority to the Ombud for investigation and report. Committee propose to delete this provision. In doing so, committee's intention is not to be mean-spirited. Cabinet has considerable resources at its disposal for investigating administrative concerns within government, including the Internal Audit Bureau in the Department of Finance. Given that the resources of the Ombud will not be unlimited, committee feels that those resources are, as a first priority, best used assisting people of the Northwest Territories with their concerns. Committee also notes that under Clause 16(1), the Legislative Assembly may refer a matter to the Ombud, which means that any Member, including Ministers, may move a motion asking the Assembly to refer a matter to the Ombud.

Motion 7: To amend Bill 20 by adding two new provisions after subclause 16(2).

This motion introduces a provision that allows municipalities or Indigenous governments to refer matters to the Ombud on a cost-recovery basis and to receive the Ombud's report directly.

Motion 8: To amend subclause 17(2).

Paragraph 17(1)(d) provides that the Ombud may not investigate a matter where the complainant has an existing right of appeal, until after that appeal has been exercised. Subclause 17(2) provides for an exception to this rule where the Ombud determines that it would be unreasonable to expect the complainant to pursue the avenue of appeal. The amendment proposed by committee gives the Ombud broader discretion in making this determination with respect to past actions by the complainant.

Motion 9: To amend subclause 17(3) which provides that the Ombud cannot investigate conduct occurring before the coming into force date of the Act.

Committee feels strongly that this temporal restriction on the Ombud's jurisdiction is overly restrictive and inconsistent with public expectation. Committee is concerned that, if the Ombud cannot investigate any conduct occurring prior to the start of the office, then they are unlikely to address many complaints during their first year of operation. This would likely frustrate both potential complainants and the Ombud, and set the wrong tone for this new service.

Committee discussed with the Minister the possibility of making the Ombud's jurisdiction retroactive to a specific date, but the Minister was not in a position to make such a determination without Cabinet approval.

Committee thus moved a motion to delete this subclause entirely. The Minister did not concur and the motion was defeated.

I would like to hand the reading over to the Member for Kam Lake. Thank you, Mr. Speaker.

Committee Report 10-18(3): Report on the Review of Bill 20: Ombudsperson Act
Reports Of Standing And Special Committees

Page 4591

The Speaker Jackson Lafferty

Masi. Member for Kam Lake.

Committee Report 10-18(3): Report on the Review of Bill 20: Ombudsperson Act
Reports Of Standing And Special Committees

Page 4591

Kieron Testart Kam Lake

Thank you, Mr. Speaker. Thank you, colleagues.

Motion 10: To amend subclause 22(1) to allow the Ombud to discontinue acting on a matter where the complainant has abandoned the complaint.

Motion 11: To amend Bill 20 by deleting clause 23 and substituting new language.

Clause 23 provides that the Ombud cannot investigate any matter that falls under the jurisdiction of another statutory officer with Ombud-like powers. The amendment was proposed for clarity, to identify precisely which statutory officers are referred to.

Motion 12: To amend clause 24 by adding a new provision after subclause 24(5).

Subclause 24(5) provides that, if the Ombud finds evidence of any breach of duty or misconduct on the part of any officer or employee of an authority, the Ombud must refer the matter to the administrative head of the authority. As drafted, the bill did not specify to whom the Ombud must refer the matter if the administrative head of the authority is the subject of the misconduct or breach of duty. The amendment proposed by committee authorizes the Ombud to refer the matter further up the chain of command.

Motion 13: To amend clause 32 to specify that the Ombud must notify the complainant and the authority of the Ombud's decision and reasons for it in writing.

Motion 14: To amend subclause 33(1) to require the Ombud to report the findings of an investigation to the Minister as well as the head of the authority.

Motion 15: To amend subclause 37(1).

Subclause 37(1) provides that, where an authority fails to take appropriate action in response to a recommendation of the Ombud, the Ombud may submit a report to the Premier and subsequently to the Legislative Assembly. The amendment proposed by committee would have changed the provision to require that, where the Ombud reports to the Premier, a report must also be submitted to the Legislative Assembly, which is the body that the Ombud ultimately reports to.

The Minister did not concur with this amendment and the motion was defeated.

Motion 16: To amend subclause 39(3).

This subclause specifies that the Ombud cannot be compelled to give evidence in proceedings of a judicial nature. The committee's motion proposed, for clarity, that this prohibition on compellability be extended to include proceedings of an administrative or quasi-judicial nature, as well.

Motion 17: To amend the schedule to Bill 20 by deleting item 5.

This motion corrects a drafting oversight which included another statutory office, the Human Rights Commission, under the Ombud's jurisdiction. The Human Rights Commission is deleted from the schedule.

Motion 18: To amend the English version of the title of Bill 20 from "Ombudsperson Act" to "Ombud Act."

CONCLUSION

The Review of Bill 20 is the culmination of work by the Standing Committee on Government Operations spanning two Assemblies. The standing committee wishes to again thank the Government of the Northwest Territories for fulfilling their mandate commitment to bring this legislation forward. The committee also thanks everyone involved in the review of this bill for their assistance and input.

Following the clause-by-clause review, a motion was carried to report Bill 20: Ombud Act, as amended and reprinted, as ready for consideration in Committee of the Whole.

This concludes the standing committee's review.

Committee Report 10-18(3): Report on the Review of Bill 20: Ombudsperson Act
Reports Of Standing And Special Committees

Page 4592

The Speaker Jackson Lafferty

Masi. Member for Kam Lake.

Motion to Receive Committee Report 10-18(3) and Move Into Committee of the Whole, Carried
Reports Of Standing And Special Committees

October 30th, 2018

Page 4592

Kieron Testart Kam Lake

Thank you, Mr. Speaker. Mr. Speaker, I move, seconded by the honourable Member for Hay River North, that Committee Report 10-18(3) be received by the Assembly and moved into Committee of the Whole for further consideration. Thank you, Mr. Speaker.

Motion to Receive Committee Report 10-18(3) and Move Into Committee of the Whole, Carried
Reports Of Standing And Special Committees

Page 4592

The Speaker Jackson Lafferty

Masi. The motion is in order. To the motion.

Motion to Receive Committee Report 10-18(3) and Move Into Committee of the Whole, Carried
Reports Of Standing And Special Committees

Page 4592

Some Hon. Members

Question.

Motion to Receive Committee Report 10-18(3) and Move Into Committee of the Whole, Carried
Reports Of Standing And Special Committees

Page 4592

The Speaker Jackson Lafferty

Question has been called. The motion is carried.

---Carried

Member for Kam Lake.

Motion to Receive Committee Report 10-18(3) and Move Into Committee of the Whole, Carried
Reports Of Standing And Special Committees

Page 4592

Kieron Testart Kam Lake

Thank you, Mr. Speaker. I seek unanimous consent to waive Rule 100(4) and move Committee Report 10-18(3) into Committee of the Whole for further consideration later today. Thank you, Mr. Speaker.

Motion to Receive Committee Report 10-18(3) and Move Into Committee of the Whole, Carried
Reports Of Standing And Special Committees

Page 4592

The Speaker Jackson Lafferty

The Member is seeking unanimous consent to waive Rule 100(4) and move Committee Report 10-18(3) into Committee of the Whole for consideration later today.

---Unanimous consent granted

The committee report is now referred to Committee of the Whole for further consideration later today. Masi. Reports of standing and special committees. Item 5, returns to oral questions. Item 6, recognition of visitors in the gallery. Member for Range Lake.

Recognition Of Visitors In The Gallery
Recognition Of Visitors In The Gallery

Page 4593

Caroline Cochrane Range Lake

Mr. Speaker, I'd like to recognize Ms. Arlene Hache, who is a good friend of mine and a mentor for many years, a lot of respect; and Ms. Katherine Underwood, who is here from Ryerson University. Welcome to the Leg.

Recognition Of Visitors In The Gallery
Recognition Of Visitors In The Gallery

Page 4593

The Speaker Jackson Lafferty

Masi. Recognition of visitors in the gallery. Member for Yellowknife North.

Recognition Of Visitors In The Gallery
Recognition Of Visitors In The Gallery

Page 4593

Cory Vanthuyne Yellowknife North

Thank you, Mr. Speaker. I, too, would like to take this opportunity to recognize Arlene Hache, a resident of the riding of Yellowknife North, and I would also like to recognize Ms. Wendy Bisaro, former MLA, thank her for her work and her previous efforts on the Ombuds legislation. Welcome and thank you to everybody for being here. Thank you.

Recognition Of Visitors In The Gallery
Recognition Of Visitors In The Gallery

Page 4593

The Speaker Jackson Lafferty

Masi. Recognition of visitors in the gallery. Item 7, acknowledgements. Member for Nahendeh.

Acknowledgement 16-18(3): Fort Liard Residents Amand Bertrand, 85, and Frank Loman, 90
Acknowledgements

Page 4593

Shane Thompson Nahendeh

Thank you, Mr. Speaker. Mr. Speaker, I would like to acknowledge two of my constituents from Fort Liard, Mr. Armand Bertrand and Mr. Frank Lomen.

Mr. Bertrand will be 85 years young on November 2nd, and Mr. Lomen will be 90 years young on January 1, 2019. I would like to extend my best wishes to Mr. Bertrand and Mr. Lomen as they celebrate their birthdays. Thank you, Mr. Speaker.