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| This archived statute consolidation is current to September 15, 2003 and includes changes enacted and in force by that date. For the most current information, click here. |
[Current to B.C. Regulations Bulletin
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Contents |
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Section |
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Appointment of acting Ombudsman without recommendation of Legislature | ||
If investigation is refused or discontinued or complaint is not substantiated |
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1 In this Act, "authority" means an authority set out in the Schedule or added under section 35 and includes members and employees of the authority.
2 (1) On the recommendation of the Legislative Assembly, the Lieutenant Governor must appoint as an officer of the Legislature an Ombudsman to exercise the powers and perform the duties assigned to the Ombudsman under this Act.
(2) The Legislative Assembly must not recommend a person to be appointed Ombudsman unless a special committee of the Legislative Assembly has unanimously recommended to the Legislative Assembly that the person be appointed.
3 (1) The Ombudsman must be appointed for a term of 6 years and may be reappointed in the manner provided in section 2 for further 6 year terms.
(2) The Ombudsman must not hold another office or engage in other employment.
4 (1) The Ombudsman is entitled to be paid, out of the consolidated revenue fund, a salary equal to the salary paid to the chief judge of the Provincial Court.
(2) The Ombudsman must be reimbursed for reasonable travelling and out of pocket expenses necessarily incurred in discharging duties.
5 (1) Subject to subsections (2) and (3), the Public Service Pension Plan, continued under the Public Sector Pension Plans Act, applies to the Ombudsman.
(2) When calculating the amount of a pension under the Public Service Pension Plan, each year of service as Ombudsman must be counted as 1 1/2 years of pensionable service.
(3) Despite the accrual of 35 years of pensionable service, contributions to the Public Service Pension Plan must continue for each additional year of service up to 35 years of contributory service.
6 (1) The Ombudsman may at any time resign the office by written notice
(a) to the Speaker of the Legislative Assembly, or
(b) to the Clerk of the Legislative Assembly if there is no Speaker or if the Speaker is absent from British Columbia.
(2) On the recommendation of the Legislative Assembly, based on cause or incapacity, the Lieutenant Governor must, in accordance with the recommendation,
(a) suspend the Ombudsman, with or without salary, or
(b) remove the Ombudsman from office.
(3) On the recommendation of the Legislative Assembly the Lieutenant Governor must appoint an acting Ombudsman if
(a) the Ombudsman is suspended or removed,
(b) the office of Ombudsman becomes vacant for a reason other than by operation of subsection (4) (c), or
(c) the Ombudsman is temporarily ill or temporarily absent for another reason.
(4) The appointment of an acting Ombudsman under subsection (3) terminates
(a) on the appointment of a new Ombudsman under section 2,
(b) at the end of the period of suspension of the Ombudsman,
(c) immediately after the expiry of 30 sitting days after the commencement of the next session of the Legislature, or
(d) on the return to office of the Ombudsman from the temporary illness or absence
whichever occurs first.
(5) If the Legislature is not sitting and is not ordered to sit within the next 5 days, the Lieutenant Governor in Council may suspend the Ombudsman from office, with or without salary, for cause or incapacity, but the suspension does not continue in force after the expiry of 30 sitting days.
7 (1) The Lieutenant Governor in Council may appoint an acting Ombudsman
(a) if
(i) the Ombudsman is suspended or removed, or
(ii) the office of Ombudsman becomes vacant for a reason other than by operation of subsection (2) (c),
when the Legislature is sitting but it does not make a recommendation under section 2 or 6 (3) before the end of that sitting or before an adjournment of the Legislature exceeding 5 days,
(b) if the Ombudsman is suspended or the office of Ombudsman becomes vacant when the Legislature is not sitting and is not ordered to sit within the next 5 days, or
(c) if the Ombudsman is temporarily ill or temporarily absent for another reason.
(2) The appointment of an acting Ombudsman under subsection (1) terminates
(a) on the appointment of a new Ombudsman under section 2,
(b) at the end of the period of suspension of the Ombudsman,
(c) immediately after the expiry of 30 sitting days after the day on which the Ombudsman was appointed,
(d) on the appointment of an acting Ombudsman under section 6 (3), or
(e) on the return to office of the Ombudsman from temporary illness or absence,
whichever occurs first.
8 (1) In accordance with the Public Service Act, the Ombudsman may appoint employees necessary to perform the duties of the office.
(2) For the purposes of the application of the Public Service Act to this section, the Ombudsman is a deputy minister.
(3) The Ombudsman may make a special report to the Legislative Assembly if the Ombudsman believes
(a) the amounts and establishment provided for the office of the Ombudsman in the estimates, or
(b) the services provided to the Ombudsman by the Public Service Employee Relations Commission
are inadequate to enable the Ombudsman to fulfil the duties of the office.
9 (1) Before beginning to perform the duties of the office, the Ombudsman must take an oath before the Clerk of the Legislative Assembly
(a) to faithfully and impartially exercise the powers and perform the duties of the office, and
(b) not to divulge any information received under this Act, except if permitted by this Act.
(2) A person on the staff of the Ombudsman must, before beginning to perform duties, take an oath before the Ombudsman not to divulge any information received under this Act except if permitted by this Act.
(3) For the purposes of subsection (2) the Ombudsman is a commissioner for taking affidavits for British Columbia.
(4) The Ombudsman and every person on the staff of the Ombudsman must, subject to this Act, maintain confidentiality in respect of all matters that come to their knowledge in performing their duties under this Act.
(5) The Ombudsman or a person holding an office or appointment under the Ombudsman must not give or be compelled to give evidence in a court or in proceedings of a judicial nature in respect of anything coming to his or her knowledge in the exercise of duties under this Act, except
(a) to enforce the Ombudsman's powers of investigation,
(b) to enforce compliance with this Act, or
(c) with respect to a trial of a person for perjury.
(6) An investigation under this Act must be conducted in private unless the Ombudsman considers that there are special circumstances in which public knowledge is essential in order to further the investigation.
(7) Despite this section, the Ombudsman may disclose or authorize a member of his or her staff to disclose a matter that, in the opinion of the Ombudsman, is necessary to
(a) further an investigation,
(b) prosecute an offence under this Act, or
(c) establish grounds for conclusions and recommendations made in a report under this Act.
10 (1) The Ombudsman, with respect to a matter of administration, on a complaint or on the Ombudsman's own initiative, may investigate
(a) a decision or recommendation made,
(b) an act done or omitted, or
(c) a procedure used
by an authority that aggrieves or may aggrieve a person.
(2) The powers and duties conferred on the Ombudsman may be exercised and performed despite a provision in an Act to the effect that
(a) a decision, recommendation or act is final,
(b) no appeal lies in respect of it, or
(c) a proceeding or decision of the authority whose decision, recommendation or act it is must not be challenged, reviewed, quashed or called into question.
(3) The Legislative Assembly or any of its committees may at any time refer a matter to the Ombudsman for investigation and report.
(4) The Ombudsman must
(a) investigate the matter referred under subsection (3), so far as it is within the Ombudsman's jurisdiction and subject to any special directions, and
(b) report back as the Ombudsman thinks fit.
(5) Sections 23 to 26 do not apply in respect of an investigation or report made under subsection (4).
11 (1) This Act does not authorize the Ombudsman to investigate a decision, recommendation, act or omission
(a) in respect of which there is under an enactment a right of appeal or objection or a right to apply for a review on the merits of the case to a court or tribunal constituted by or under an enactment, until after that right of appeal, objection or application has been exercised or until after the time limit for the exercise of that right has expired, or
(b) of a person acting as a solicitor for an authority or acting as counsel to an authority in relation to a proceeding.
(2) The Ombudsman may investigate conduct occurring before the commencement of this Act.
(3) If a question arises about the Ombudsman's jurisdiction to investigate a case or class of cases under this Act, the Ombudsman may apply to the Supreme Court for a declaratory order determining the question.
12 (1) A complaint under this Act may be made by a person or group of persons.
(2) A complaint must be in writing.
(3) If a communication written by or on behalf of a person confined in a federal or Provincial correctional institution or to a hospital or facility operated by or under the direction of an authority, or by a person in the custody of another person for any reason, is addressed to the Ombudsman the person in charge of the institution, hospital or facility in which the writer is confined or the person having custody of the writer must immediately, mail or forward the communication, unopened, to the Ombudsman.
(4) A communication from the Ombudsman to a person confined or in custody as described in subsection (3) must be forwarded to that person in a similar manner.
(5) Subsections (3) and (4) apply despite any other enactment.
13 The Ombudsman may refuse to investigate or cease investigating a complaint if, in the opinion of the Ombudsman, any of the following apply:
(a) the complainant or person aggrieved knew or ought to have known of the decision, recommendation, act or omission to which the complaint refers more than one year before the complaint was received by the Ombudsman;
(b) the subject matter of the complaint primarily affects a person other than the complainant and the complainant does not have sufficient personal interest in it;
(c) the law or existing administrative procedure provides a remedy adequate in the circumstances for the person aggrieved, and, if the person aggrieved has not availed himself or herself of the remedy, there is no reasonable justification for the failure to do so;
(d) the complaint is frivolous, vexatious, not made in good faith or concerns a trivial matter;
(e) having regard to all the circumstances, further investigation is not necessary in order to consider the complaint;
(f) in the circumstances, investigation would not benefit the complainant or person aggrieved;
(g) the complainant has abandoned the complaint
(i) by failing to advise the Ombudsman of a current address or telephone number at which the Ombudsman can contact him or her, or
(ii) by failing to respond after a reasonable number of attempts by the Ombudsman to contact him or her in writing or verbally;
(h) the complaint is withdrawn by the complainant by notice to the Ombudsman;
(i) the complaint is settled under section 14.
14 (1) If the Ombudsman investigates a matter, the Ombudsman must notify the authority affected and any other person the Ombudsman considers appropriate to notify in the circumstances.
(2) At any time during or after an investigation the Ombudsman may consult with an authority to attempt to settle the complaint, or for any other purpose.
(3) If before making a decision respecting a matter being investigated the Ombudsman receives a request for consultation from the authority, the Ombudsman must consult with the authority.
15 (1) The Ombudsman may receive and obtain information from the persons and in the manner the Ombudsman considers appropriate, and in the Ombudsman's discretion may conduct hearings.
(2) Without restricting subsection (1), but subject to this Act, the Ombudsman may do one or more of the following:
(a) at any reasonable time enter, remain on and inspect all of the premises occupied by an authority, talk in private with any person there and otherwise investigate matters within the Ombudsman's jurisdiction;
(b) require a person to furnish information or produce, at a time and place the Ombudsman specifies, a document or thing in the person's possession or control that relates to an investigation, whether or not that person is a past or present member or employee of an authority and whether or not the document or thing is in the custody or under the control of an authority;
(c) make copies of information furnished or a document or thing produced under this section;
(d) summon before the Ombudsman and examine on oath any person who the Ombudsman believes is able to give information relevant to an investigation, whether or not that person is a complainant or a member or employee of an authority, and for that purpose may administer an oath;
(e) receive and accept, on oath or otherwise, evidence the Ombudsman considers appropriate, whether or not it would be admissible in a court.
(3) If the authority requests the return of a document or thing obtained under subsection (2), the Ombudsman must return it to the authority within 48 hours after receiving the request, but the Ombudsman may again require its production in accordance with this section.
16 A person must not discharge, suspend, expel, intimidate, coerce, evict, impose any pecuniary or other penalty on or otherwise discriminate against a person because that person complains, gives evidence or otherwise assists in the investigation, inquiry or reporting of a complaint or other proceeding under this Act.
17 If it appears to the Ombudsman that there may be sufficient grounds for making a report or recommendation under this Act that may adversely affect an authority or person, the Ombudsman must, before deciding the matter,
(a) inform the authority or person of the grounds, and
(b) give the authority or person the opportunity to make representations, either orally or in writing at the discretion of the Ombudsman.
18 (1) The Ombudsman must not enter any premises and must not require any information or answer to be given or any document or thing to be produced if the Attorney General certifies that entering the premises, giving the information, answering the question or producing the document or thing might
(a) interfere with or impede the investigation or detection of an offence,
(b) result in or involve the disclosure of deliberations of the Executive Council, or
(c) result in or involve the disclosure of proceedings of the Executive Council or a committee of it, relating to matters of a secret or confidential nature and that the disclosure would be contrary or prejudicial to the public interest.
(2) The Ombudsman must report each certificate of the Attorney General to the Legislative Assembly not later than in the Ombudsman's next annual report.
19 (1) Subject to section 18, a rule of law that authorizes or requires the withholding of a document or thing, or the refusal to disclose a matter in answer to a question, on the ground that the production or disclosure would be injurious to the public interest does not apply to production of the document or thing or the disclosure of the matter to the Ombudsman.
(2) Subject to section 18 and to subsection (4), a person who is bound by an enactment to maintain confidentiality in relation to or not to disclose any matter must not be required to supply any information to or answer any question put by the Ombudsman in relation to that matter, or to produce to the Ombudsman any document or thing relating to it, if compliance with that requirement would be in breach of the obligation of confidentiality or nondisclosure.
(3) Subject to section 18 but despite subsection (2), if a person is bound to maintain confidentiality in respect of a matter only because of an oath under the Public Service Act or a rule of law referred to in subsection (1), the person must disclose the information, answer questions and produce documents or things on the request of the Ombudsman.
(4) Subject to section 18, after receiving a complainant's consent in writing, the Ombudsman may require a person described in subsection (2) to, and that person must, supply information, answer any question or produce any document or thing required by the Ombudsman that relates only to the complainant.
20 (1) Subject to section 19, a person has the same privileges in relation to giving information, answering questions or producing documents or things to the Ombudsman as the person would have with respect to a proceeding in a court.
(2) Except on the trial of a person for perjury or for an offence under this Act, evidence given by a person in proceedings before the Ombudsman and evidence of the existence of the proceedings is inadmissible against that person in a court or in any other proceeding of a judicial nature.
21 (1) A person examined under section 15 (2) (d) is entitled to the same fees, allowances and expenses as if the person were a witness in the Supreme Court.
(2) If a person incurs expenses in complying with a request of the Ombudsman for production of documents or other information, the Ombudsman may reimburse that person for reasonable expenses incurred that are not covered under subsection (1).
22 (1) If the Ombudsman decides
(a) not to investigate or further investigate a complaint under section 13, or
(b) at the conclusion of an investigation, that the complaint has not been substantiated,
the Ombudsman must
(c) record the decision in writing, and
(d) as soon as is reasonable, notify both the complainant and the authority of the decision and the reasons for it.
(2) The reasons provided under subsection (1) (d) with respect to a decision referred to in subsection (1) (b) must be in writing.
(3) The Ombudsman may indicate with the notification under subsection (1) (d) any other recourse that may be available to the complainant.
23 (1) If, after completing an investigation, the Ombudsman is of the opinion that
(a) a decision, recommendation, act or omission that was the subject matter of the investigation was
(i) contrary to law,
(ii) unjust, oppressive or improperly discriminatory,
(iii) made, done or omitted under a statutory provision or other rule of law or practice that is unjust, oppressive or improperly discriminatory,
(iv) based wholly or partly on a mistake of law or fact or on irrelevant grounds or consideration,
(v) related to the application of arbitrary, unreasonable or unfair procedures, or
(vi) otherwise wrong,
(b) in doing or omitting an act or in making or acting on a decision or recommendation, an authority
(i) did so for an improper purpose,
(ii) failed to give adequate and appropriate reasons in relation to the nature of the matter, or
(iii) was negligent or acted improperly, or
(c) there was unreasonable delay in dealing with the subject matter of the investigation,
the Ombudsman must report that opinion and the reasons for it to the authority and may make the recommendation the Ombudsman considers appropriate.
(2) Without restricting subsection (1), the Ombudsman may recommend that
(a) a matter be referred to the appropriate authority for further consideration,
(b) an act be remedied,
(c) an omission or delay be rectified,
(d) a decision or recommendation be cancelled or changed,
(e) reasons be given,
(f) a practice, procedure or course of conduct be altered,
(g) an enactment or other rule of law be reconsidered, or
(h) any other steps be taken.
24 (1) If a recommendation is made under section 23, the Ombudsman may request the authority
(a) to notify the Ombudsman within a specified time of the steps that have been or are proposed to be taken to give effect to the recommendation, or
(b) if no steps have been or are proposed to be taken, the reasons for not following the recommendation.
(2) If, after considering a response made by an authority under subsection (1), the Ombudsman believes it advisable to modify or further modify the recommendation, the Ombudsman must notify the authority of the recommendation as modified and may request that the authority notify the Ombudsman
(a) of the steps that have been or are proposed to be taken to give effect to the modified recommendation, or
(b) if no steps have been or are proposed to be taken, of the reasons for not following the modified recommendation.
25 (1) If within a reasonable time after a request has been made under section 24 no action is taken that the Ombudsman believes adequate or appropriate, the Ombudsman, after considering any reasons given by the authority, may submit a report of the matter to the Lieutenant Governor in Council and, after that, may make a report to the Legislative Assembly respecting the matter as the Ombudsman considers appropriate.
(2) The Ombudsman must attach to a report under subsection (1) a copy of the Ombudsman's recommendation and any response made to it under section 24, but the Ombudsman must delete from the recommendation and from the response any material that would unreasonably invade any person's privacy, and may delete material revealing the identity of a member, officer or employee of an authority.
26 (1) If the Ombudsman makes a recommendation under section 23 or 24 and no action that the Ombudsman believes adequate or appropriate is taken within a reasonable time, the Ombudsman
(a) must inform the complainant of the recommendation and
(b) may make additional comments the Ombudsman considers appropriate.
(2) The Ombudsman must in every case inform the complainant within a reasonable time of the result of the investigation.
27 A person is not entitled as of right to a hearing before the Ombudsman except as provided in this Act.
28 Proceedings of the Ombudsman must not be challenged, reviewed or called into question by a court, except on the ground of lack or excess of jurisdiction.
29 (1) Proceedings do not lie against the Ombudsman or against a person acting under the authority of the Ombudsman for anything done in good faith, reported or said in the course of the exercise or purported exercise of duties under this Act.
(2) For the purposes of any Act or law respecting libel or slander,
(a) anything said, all information supplied and all documents and things produced in the course of an inquiry or proceeding before the Ombudsman under this Act are privileged to the same extent as if the inquiry or proceeding were a proceeding in a court, and
(b) a report made by the Ombudsman and a fair and accurate account of the report in a newspaper, periodical publication or broadcast is privileged to the same extent as if the report of the Ombudsman were the order of a court.
30 (1) The Ombudsman may in writing delegate to a person or class of persons any of the Ombudsman's powers or duties under this Act, except the power
(a) to delegate under this section,
(b) to make a report under this Act, and
(c) to require a production or disclosure under section 19 (1).
(2) A delegation under this section is revocable at will and does not prevent the Ombudsman from exercising the delegated power at any time.
(3) A delegation may be made subject to terms the Ombudsman considers appropriate.
(4) If the Ombudsman by whom a delegation is made ceases to hold office, the delegation continues in effect so long as the delegate continues in office or until revoked by a succeeding Ombudsman.
(5) A person purporting to exercise power of the Ombudsman through a delegation under this section must, when requested to do so, produce evidence of the person's authority to exercise the power.
31 (1) The Ombudsman must report annually on the affairs of the Ombudsman's office to the Speaker of the Legislative Assembly.
(2) The Speaker must lay the report before the Legislative Assembly as soon as possible.
(3) If the Ombudsman considers it to be in the public interest or in the interest of a person or authority, the Ombudsman may make a special report to the Legislative Assembly or comment publicly about a matter relating generally to the exercise of the Ombudsman's duties under this Act or to a particular case investigated by the Ombudsman.
32 A person commits an offence who does any of the following:
(a) without lawful justification or excuse, intentionally obstructs, hinders or resists the Ombudsman or another person in the exercise of a power conferred or a duty imposed under this Act;
(b) without lawful justification or excuse, refuses or intentionally fails to comply with a lawful requirement of the Ombudsman or another person under this Act;
(c) intentionally makes a false statement to or misleads or attempts to mislead the Ombudsman or another person in the exercise of a power conferred or a duty imposed under this Act;
(d) violates an oath taken under this Act;
(e) contravenes section 16.
33 The provisions of this Act are in addition to the provisions of any other enactment or rule of law under which
(a) a remedy, right of appeal or objection is provided, or
(b) a procedure is provided for inquiry into or investigation of a matter,
and nothing in this Act limits or affects that remedy, right of appeal, objection or procedure.
34 (1) On its own initiative or on the recommendation of the Lieutenant Governor in Council the Legislative Assembly may make rules for the guidance of the Ombudsman in exercising the powers and performing the duties of the office.
(2) Subject to this Act and any rules made under subsection (1), the Ombudsman may determine the Ombudsman's procedure and the procedure for the members of the Ombudsman's staff in exercising of the powers conferred and performing the duties imposed by this Act.
35 The Lieutenant Governor in Council may, by order, add authorities to the Schedule.
Authorities
1 Ministries of the government.
2 A person, corporation, commission, board, bureau or authority who is or the majority of the members of which are, or the majority of the members of the board of management or board of directors of which are,
(a) appointed by an Act, minister, the Lieutenant Governor in Council,
(b) in the discharge of their duties, public officers or servants of the government, or
(c) responsible to the government.
3 A corporation the ownership of which or a majority of the shares of which is vested in the government.
4 Municipalities.
5 Regional districts.
6 The Islands Trust established under the Islands Trust Act.
7 Improvement districts as defined in the Local Government Act.
8 The Capital Improvement District under the Capital Commission Act.
9 Boards, committees, commissions or similar bodies established under the Local Government Act or Vancouver Charter;
10 The Resort Municipality of Whistler and the Whistler Resort Association.
11 A local trust committee, the Trust Council, the Trust Fund Board and the executive committee and persons to whom their powers are delegated under the Islands Trust Act.
12 Library boards as defined in the Library Act.
13 Regional parks boards established under the Parks (Regional) Act and the Cultus Lake Park Board.
14 A greater board as defined in the Local Government Act.
15 Development districts, water users' communities, comptroller and regional water manager under the Water Act.
16 The commissioners of a district defined in section 58 of the Drainage, Ditch and Dike Act and an engineer, commissioner, inspector of dikes or land settlement board acting under that Act.
17 The British Columbia Diking Authority and a diking authority under the Dike Maintenance Act.
18 The Okanagan Kootenay Sterile Insect Release Board.
19 Regional transit commissions established under the British Columbia Transit Act.
20 A corporation
(a) more than 50% of the issued voting shares of which are owned by one or more of the authorities listed in section 4 to 19 or this section, or
(b) that is controlled by one or more of the authorities listed in section 4 to 19 and, for the purposes of ascertaining control, a corporation is controlled by one or more of these authorities if a majority of the members of the corporation or of its board of directors or board of management consists of either or both of the following:
(i) persons appointed as members by the authorities;
(ii) officers or employees of an authority acting as such.
21 Schools and boards as defined in the School Act.
21.1 Francophone education authorities as defined in the School Act and francophone schools operated by francophone education authorities.
22 Universities as defined in the University Act.
23 The University of Northern British Columbia.
24 Royal Roads University.
25 Institutions as defined in the College and Institute Act.
26 Hospitals and boards of management of hospitals as defined in the Hospital Act.
27 Governing bodies of professional and occupational associations that are established or continued by an Act.
28 Regional Health Boards established under the Health Authorities Act.
29 Regional Hospital Districts under the Hospital District Act.
30 [Repealed 2002-35-11.]
31 The Greater Vancouver Transportation Authority established under the Greater Vancouver Transportation Authority Act.
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