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This is an official version. Copyright © 2001: Queen's Printer, Important Information
Statutes of Newfoundland and Labrador 2001 AN ACT RESPECTING THE APPOINTMENT OF A CITIZENS' REPRESENTATIVE FOR THE PROVINCE WHO SHALL HAVE THE POWERS TRADITIONALLY CONFERRED ON AN OMBUDSMAN (Assented to May 24, 2001) Analysis 1. Short title 2. Definitions 3. Appointment of the Citizens' Representative 4. Officer of House of Assembly 5. Term of office 6. Removal or suspension 7. Suspension when House of Assembly not sitting 8. Salary and pension 9. Expenses 10. Citizens' Representative's staff 11. Oath of office 12. Oath of staff 13. Secrecy 14. Delegation 15. Investigation 16. Reference by Lieutenant-Governor in Council 17. Reference by House of Assembly 18. Exercise of powers 19. Restriction on jurisdiction 20. Restriction on investigation by minister 21. Questions relating to jurisdiction 22. Complaints in writing 23. Privacy of communication to Citizens' Representative 24. Refusal to investigate 25. Report of refusal to investigate 26. Notice of investigation 27. Private investigation 28. Hearings 29. Right to be heard 30. Consultation with minister 31. Evidence 32. Restrictions on disclosure 33. Application of certain rules 34. Admissibility of evidence 35. Defence for certain offences 36. Right of entry 37. Report on investigation 38. Notice of proposed steps 39. Report to complainant 40. Review of Citizens' Representative's decision 41. Proceedings against Citizens' Representative prohibited 42. Citizens' Representative not to be called as witness 43. Annual report to House of Assembly 44. Publication of reports 45. Rules 46. Offence and penalty 47. Additional remedies 48. Schedule 49. Commencement Schedule Be it enacted by the Lieutenant-Governor and House of Assembly in Legislative Session convened, as follows: Short title 1. This Act may be cited as the Citizens' Representative Act. Definitions 2. In this Act (a) "agency of the government" means a person, board, commission, association, or other body, included in the Schedule; (b) "Citizens' Representative" means the person appointed under this Act to perform the duties and exercise the powers traditionally conferred on an ombudsman; (c) "Commission of Internal Economy" means the commission established under the Internal Economy Commission Act; and (d) "department" means a department created under the Executive Council Act, or a branch of the executive government of the province. Appointment of the Citizens' Representative 3. (1) There is established the office of the Citizens' Representative to be filled by the Lieutenant-Governor in Council on a resolution of the House of Assembly. (2) Where (a) the Citizens' Representative is unable to perform his or her duties of office; (b) the office of the Citizens' Representative is vacant; or (c) the Citizens' Representative is suspended under section 6, the Lieutenant-Governor in Council shall appoint a person to act as the Citizens' Representative in a temporary capacity. Officer of House of Assembly 4. (1) The Citizens' Representative is an officer of the House of Assembly and is not eligible to be nominated for election as, elected as, or sit as, a member of the House of Assembly. (2) The Citizens' Representative shall not hold another public office or carry on a trade, business or profession. Term of office 5. (1) Unless he or she sooner resigns, dies or is removed from office, the Citizens' Representative shall hold office for 6 years from the date of his or her appointment, and he or she may be re-appointed for a second term of 6 years, but shall not hold office for more than 2 terms. (2) The Citizens' Representative may resign his or her office in writing addressed to the Speaker of the House of Assembly, or, where there is no Speaker or the Speaker is absent, to the Clerk of the House of Assembly. Removal or suspension 6. The Lieutenant-Governor in Council, on a resolution of the House of Assembly carried by a majority vote of the members of the House of Assembly actually voting, may, for cause, remove the Citizens' Representative from office or suspend him or her. Suspension when House of Assembly not sitting 7. (1) Where the House of Assembly is not in session, the Lieutenant-Governor in Council on the recommendation of the Internal Economy Commission may suspend the Citizens' Representative for incapacity, neglect of duty or misconduct, but the suspension shall not continue in force beyond the end of the next ensuing session of the House of Assembly. (2) Where the Citizens' Representative is suspended under subsection (1), the Lieutenant-Governor in Council, on the recommendation of the Internal Economy Commission shall appoint an acting Citizens' Representative to hold office until the suspension has been dealt with in the House of Assembly. Salary and pension 8. (1) The Citizens' Representative shall be paid a salary fixed by the Lieutenant-Governor in Council after consultation with the Commission of Internal Economy. (2) The salary of the Citizens' Representative shall not be reduced except on a resolution of the House of Assembly carried by a majority vote of the members of the House of Assembly actually voting. (3) The Citizens' Representative is subject to the Public Service Pensions Act, 1991 where he or she was subject to that Act prior to his or her appointment as Citizens' Representative. Expenses 9. The Citizens' Representative shall be paid the travelling and other expenses incurred by him or her in the performance of his or her duties that may be approved by the Commission of Internal Economy. Citizens' Representative's staff 10. (1) The Citizens' Representative may, subject to the approval of the Commission of Internal Economy and in the manner provided by law, appoint those assistants and employees that he or she considers necessary to enable him or her to carry out his or her functions under this Act. (2) Persons employed under subsection (1) are members of the public service of the province. Oath of office 11. Before beginning to perform his or her duties, the Citizens' Representative shall swear an oath, or affirm, before the Speaker of the House of Assembly or the Clerk of the House of Assembly that he or she shall faithfully and impartially perform the duties of his or her office and that he or she shall not, except as provided by this Act, divulge information received by him or her under this Act. Oath of staff 12. Every person employed under the Citizens' Representative shall, before he or she begins to perform his or her duties, swear an oath, or affirm, before the Citizens' Representative that he or she shall not, except as provided by this Act, divulge information received by him or her under this Act. Secrecy 13. (1) The Citizens' Representative and every person employed under him or her shall maintain secrecy in respect of all matters that come to their knowledge in the exercise of their duties or functions under this Act. (2) Notwithstanding subsection (1) or an oath taken or affirmation made under this Act, the Citizens' Representative may disclose in a report made by him or her under this Act those matters which he or she considers necessary to disclose in order to establish grounds for his or her conclusions and recommendations. Delegation 14. (1) The Citizens' Representative may in writing delegate to another person his or her powers under this Act except the power to make a report under this Act. (2) A person purporting to exercise the power of the Citizens' Representative by virtue of the delegation under subsection (1) shall produce evidence of his or her authority to exercise that power when required to do so. Investigation 15. The Citizens' Representative may, on a written complaint or on his or her own initiative, investigate a decision or recommendation made, including a recommendation made to a minister, or an act done or omitted, relating to a matter of administration in or by a department or agency of the government, or by an officer, employee or member of the department or agency, where a person is or may be aggrieved. Reference by Lieutenant-Governor in Council 16. The Lieutenant-Governor in Council may refer to the Citizens' Representative, for investigation and report by him or her, a matter relating to administration in or by a department or agency of the government, or by an officer, employee or member of it, and the Citizens' Representative shall, (a) subject to a special direction of the Lieutenant-Governor in Council, investigate the matter referred to him or her so far as it is within his or her jurisdiction; and (b) make a report to the Lieutenant-Governor in Council that he or she considers appropriate. Reference by House of Assembly 17. The House of Assembly may refer to the Citizens' Representative, for investigation and report by him or her, any petition that is presented to it for consideration or any matter to which the petition relates, and, in that case, the Citizens' Representative shall, (a) subject to special directions of the House of Assembly, investigate the matters referred to him or her as far as it is within his or her jurisdiction; and (b) make a report to the House of Assembly that he or she considers appropriate, but nothing in section 24, 25 or 39 applies in respect of an investigation or report made under this section. Exercise of powers 18. The Citizens' Representative may exercise and perform the powers, duties and functions conferred or imposed on him or her under this Act notwithstanding a provision of another Act to the effect that a proceeding, decision, recommendation, act or omission that he or she is investigating is (a) final; (b) not subject to appeal; or (c) not subject to be challenged, reviewed, quashed or called into question. Restriction on jurisdiction 19. Nothing in this Act authorizes the Citizens' Representative to investigate (a) a decision, recommendation, act, order or omission of the House of Assembly, the Lieutenant-Governor, a committee of the House of Assembly, the Lieutenant-Governor in Council, the Executive Council, or a committee of the Executive Council; (b) an order, decision or omission of a court, a judge of a court, a master of a court, or a justice of the peace made or given in an action or proceeding in the court, or before the judge, master or justice of the peace; (c) an award, decision, recommendation or omission of an arbitrator or board of arbitrators in an arbitration to which the Arbitration Act applies; (d) a matter in respect of which there is under an Act 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 Act, until after the right of appeal, objection or application has been exercised or until after the time limit for the exercise of that right has expired; (e) a refusal to provide access to information under the Freedom of Information Act; or (f) an action, decision or proceeding taken under the Child, Youth and Family Services Act. Restriction on investigation by minister 20. (1) Where the Minister of Justice certifies in writing to the Citizens' Representative that the investigation of a matter would be contrary to the public interest under the circumstances, the Citizens' Representative shall not investigate the matter, or, where the Citizens' Representative has commenced an investigation of the matter, he or she shall discontinue the investigation. (2) Where a certificate is given under subsection (1), the Citizens' Representative shall include that fact and a brief description of the circumstances of the matter in his or her next annual report to the House of Assembly. Questions relating to jurisdiction 21. Where a question arises as to the jurisdiction of the Citizens' Representative to conduct an investigation or class of investigations under this Act, he or she may apply to the Trial Division for a declaratory order determining the question. Complaints in writing 22. Every complaint to the Citizens' Representative shall be made in writing. Privacy of communication to Citizens' Representative 23. Notwithstanding another Act, where a letter written by a person in custody on a charge or after conviction for an offence, or by an inmate or patient in a hospital, mental hospital or home, or an institution operated by or under the direction of the government, or by a person in custody of another person for another reason, is addressed to the Citizens' Representative, it shall be forwarded immediately, unopened, to the Citizens' Representative by the person in charge of the place or institution where the writer of the letter is detained or in which he or she is an inmate or patient, or by the person having custody of the writer. Refusal to investigate 24. (1) The Citizens' Representative, in his or her discretion, may refuse to investigate or may cease to investigate a complaint where (a) it relates to a decision, recommendation, act or omission of which the complainant has had knowledge for more than one year before the complaint is received by the Citizens' Representative; (b) in his or her opinion it is frivolous or vexatious or not made in good faith or concerns a trivial matter; (c) the complainant does not have a sufficient personal interest in the subject matter of the complaint; (d) in his or her opinion it should not be investigated or the investigation should not be continued because the public interest outweighs the interest of the person aggrieved; (e) in his or her opinion the circumstances of the case do not require investigation; or (f) the law, or existing administrative procedure provides an adequate remedy in the circumstances for the person aggrieved and, where the person aggrieved has not availed himself or herself of the remedy, there is no reasonable justification for his or her failure to do so. (2) Where, in the course of or after an investigation of a decision, act or omission, done or omitted by a department or agency of the government, or an officer or employee of it in the exercise of a discretion vested in that department, agency, officer, or employee, the Citizens' Representative is satisfied that the decision, act or omission is not clearly wrong or unreasonable, the Citizens' Representative shall make no further investigation of the matter and shall report to the complainant that he or she is so satisfied. Report of refusal to investigate 25. Where the Citizens' Representative decides not to investigate or to cease investigating a complaint, he or she shall inform the complainant, and other interested persons, of his or her decision and shall provide to them reasons for his or her decision. Notice of investigation 26. Before investigating a complaint, the Citizens' Representative shall inform the deputy minister, or the administrative head of the department or agency of the government affected, of his or her intention to make the investigation. Private investigation 27. Every investigation by the Citizens' Representative under this Act shall be conducted in private. Hearings 28. The Citizens' Representative may hold hearings and hear or obtain information from a person and make an inquiry that he or she considers appropriate. Right to be heard 29. The Citizens' Representative is not required to hold a hearing and a person is not entitled, as of right, to be heard by the Citizens' Representative, but, where it appears to the Citizens' Representative that there is sufficient grounds for his or her making a report or recommendation in respect of a matter that may adversely affect a department, agency of the government, or person, he or she shall give to the 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. Consultation with minister 30. (1) The Citizens' Representative may, during or after an investigation, consult a minister who is concerned in the matter of the investigation. (2) Where, during or after an investigation, the Citizens' Representative is of the opinion that there is evidence of a breach of duty or misconduct by a department or agency of the government or an officer or employee of it, he or she shall inform the deputy minister or administrative head of the department or agency of the government of his or her opinion. Evidence 31. (1) The Citizens' Representative may require a person who, in his or her opinion, is able to give information relating to a matter being investigated by him or her (a) to furnish the information to him or her; and (b) to produce a document, paper or thing that in his or her opinion relates to the matter being investigated and that may be in the possession or under the control of the person, whether or not the 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. (2) The Citizens' Representative may summon before him or her and examine on oath or affirmation (a) a person who is an officer or employee or member of a department or agency of the government and who in the opinion of the Citizens' Representative is able to give information relating to a matter being investigated by him or her; (b) a complainant; and (c) another person who in the opinion of the Citizens' Representative is able to give information relating to a matter being investigated by him or her. Restrictions on disclosure 32. Where the Minister of Justice certifies that the giving of any information or the answering of any questions or the production of any document, paper or thing might involve the disclosure of (a) the deliberations of the Executive Council or a committee of the Executive Council; (b) proceedings of the Executive Council, or committee of the Executive Council, relating to matters of a secret or confidential nature and would be injurious to the public interest; or (c) interfere with or impede the investigation or detection of an offence, the Citizens' Representative 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 to the House of Assembly. Application of certain rules 33. (1) A rule of law that authorizes or requires the withholding of a document, paper or thing, or the refusal to answer a question, on the ground that the disclosure or answering would be injurious to the public interest does not apply in respect of an investigation by or proceedings before the Citizens' Representative. (2) A provision of an Act requiring a person to maintain secrecy in relation to, or not to disclose information relating to, a matter shall not apply in respect of an investigation by the Citizens' Representative, and a person required by the Citizens' Representative to furnish information or to produce a document, paper or thing or summoned by the Citizens' Representative to give evidence, shall not refuse to furnish the information, produce the document, paper or thing, or to answer questions on the ground of that provision. Admissibility of evidence 34. Except on the trial of a person for perjury, a statement made, or answer or evidence given by that or another person in the course of an investigation by or a proceeding before the Citizens' Representative is not admissible in evidence against a person in a court or at an inquiry or in another proceeding, and no evidence respecting a proceeding before the Citizens' Representative shall be given against a person. Defence for certain offences 35. A person is not guilty of an offence under another Act by reason of his or her compliance with a request or requirement of the Citizens' Representative to furnish information or produce a document, paper or thing, or by reason of answering a question in an investigation of the Citizens' Representative. Right of entry 36. (1) For the purpose of this Act, the Citizens' Representative may enter the premises occupied by a department or agency of the government and carry out an investigation within his or her jurisdiction. (2) Upon entering a premises under subsection (1), the Citizens' Representative shall notify the deputy minister or administrative head of the department or agency of the government that occupies the premises. Report on investigation 37. (1) Where, after making an investigation under this Act, the Citizens' Representative is of the opinion (a) that a decision, recommendation, act or omission that is the subject matter of the investigation appears to be (i) contrary to law, (ii) unreasonable, (iii) unjust, (iv) oppressive, (v) improperly discriminatory, (vi) in accordance with a practice or procedure that is or may be unreasonable, unjust, oppressive, or improperly discriminatory, (vii) based wholly or partly on a mistake of law or fact, or (viii) wrong; (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, (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 Citizens' Representative shall report his or her opinion and his or her reasons and may make those recommendations that he or she considers appropriate to the appropriate minister and to the department or agency of the government concerned. (2) In making a report under subsection (1), the Citizens' Representative may recommend (a) that a matter should be referred to the appropriate authority for further consideration; (b) that an omission should be rectified; (c) that a decision should be cancelled or varied; (d) that a practice on which a decision, recommendation, act or omission was based should be altered or reviewed; (e) that a law on which a decision, recommendation, act or omission was based should be reconsidered; (f) that reasons should be given for a decision, recommendation, act or omission; or (g) that other steps should be taken. Notice of proposed steps 38. (1) Where the Citizens' Representative makes a recommendation under section 37, he or she may request the department or agency of the government to notify him or her within a specified time of the action it has taken or proposes to take to give effect to his or her recommendations. (2) Where within a reasonable time after a request respecting recommendations is made under this section, no action is taken which seems to the Citizens' Representative to be adequate and appropriate, the Citizens' Representative, in his or her discretion, after considering the comments 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 mention the report in the Citizens' Representative's next annual report to the House of Assembly. (3) A report made under subsection (2) shall include comments made by or on behalf of the department or agency of the government upon the opinion or recommendation of the Citizens' Representative. Report to complainant 39. Where the Citizens' Representative makes an investigation on the basis of a complaint received by him or her, he or she shall report to the complainant, in the manner and at the time that he or she considers appropriate, the result of the investigation. Review of Citizens' Representative's decision 40. A proceeding of the Citizens' Representative is not void for want of form and, except on the ground of lack of jurisdiction, a proceeding or decision of the Citizens' Representative shall not be challenged, reviewed, quashed or called into question in a court. Proceedings against Citizens' Representative prohibited 41. An action does not lie against the Citizens' Representative or against a person employed under him or her for anything he or she may do or report or say in the course of the exercise or performance, or intended exercise or performance, of his or her functions and duties under this Act, unless it is shown he or she acted in bad faith. Citizens' Representative not to be called as witness 42. The Citizens' Representative and a person employed under him or her shall not be called to give evidence in a court or in a proceeding of a judicial or quasi-judicial nature in respect of anything coming to his or her knowledge in the exercise or performance of his or her functions and duties under this Act. Annual report to House of Assembly 43. The Citizens' Representative shall report annually to the House of Assembly through the Speaker on the exercise and performance of his or her functions and duties under this Act. Publication of reports 44. Where it is in the public interest, or in the interest of a person, department or agency of the government, the Citizens' Representative may publish reports relating generally to the exercise and performance of his or her functions and duties under this Act or to a particular case investigated by him or her, whether or not the matters to be dealt with in the report have been the subject of the report made to the House of Assembly under this Act. Rules 45. (1) The Commission of Internal Economy may make rules for the guidance of the Citizens' Representative in the exercise and performance of his or her functions and duties under this Act. (2) Except where rules respecting it are made under subsection (1), the Citizens' Representative may determine his or her procedure. Offence and penalty 46. A person who (a) without lawful justification or excuse wilfully obstructs, hinders, or resists the Citizens' Representative or another person in the exercise or performance of his or her functions and duties under this Act; (b) without lawful justification or excuse refuses or wilfully fails to comply with a lawful requirement of the Citizens' Representative or another person under this Act; or (c) wilfully makes a false statement to or misleads or attempts to mislead the Citizens' Representative or another person in the exercise or performance of his or her 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 3 months, or to both. Additional remedies 47. The provisions of this Act are in addition to the provisions of another Act or rule of law under which a remedy or right of appeal or objection is provided for a person, or a procedure is provided for the inquiry into or investigation of a matter, and nothing in this Act limits or affects that remedy or right of appeal or objection or procedure. Schedule 48. (1) The Lieutenant-Governor in Council may, by order, add or remove a person, board, commission, association or other body to or from the Schedule. (2) An order made under subsection (1) is subordinate legislation for the purpose of the Statutes and Subordinate Legislation Act. (3) Notwithstanding subsection (1), a person, board, commission, association or other body shall not be removed from the Schedule unless the removal is recommended by the Commission of Internal Economy. Commencement 49. This Act comes into force on a day to be proclaimed by the Lieutenant-Governor in Council.
Schedule The Agricultural Products Marketing Board The Board of Commissioners of Public Utilities Business Investment Corporation The C.A. Pippy Park Commission The Cancer Treatment and Research Foundation The College of the North Atlantic Criminal Code Mental Disorder Review Board (section 672.38 Criminal Code) The Dairy Farmers of Newfoundland and Labrador Day Care and Homemaking Services Licensing Board Edge Corporation Evaluation Board The Egg Producers of Newfoundland and Labrador Enterprise Newfoundland and Labrador Corporation A health care corporation incorporated under the Hospitals Act A health and community services board incorporated under the Hospitals Act Insurance Adjusters, Agents and Brokers Appeal Board The Labour Relations Board An adjudicator appointed under section 67 of the Labour Standards Act Livestock Owners Compensation Board The Memorial University of Newfoundland Mental Health Review Board Mineral Rights Adjudication Board Mining Tax Review Board Multi-Materials Stewardship Board Municipal Assessment Agency referred to in the Assessment Act The Newfoundland Chicken Marketing Board Newfoundland Crop Insurance Agency The Newfoundland Human Rights Commission The Newfoundland Industrial Development Corporation Newfoundland Legal Aid Commission The Newfoundland Liquor Corporation The Newfoundland Liquor Licensing Board The Newfoundland Municipal Financing Corporation Newfoundland and Labrador Arts Council Newfoundland and Labrador Centre for Health Information Newfoundland and Labrador Education Investment Corporation Newfoundland and Labrador Geographical Names Board The Newfoundland and Labrador Housing Corporation Newfoundland and Labrador Student Investment and Opportunity Corporation The Private Training Corporation Provincial Apprenticeship Board The Provincial Information and Library Resources Board The Public Service Commission Royal Newfoundland Constabulary Public Complaints Commission A school board, including the conseil scolaire francophone elected under the Schools Act, 1997 Social Assistance Appeal Board Timber Scalers Board An appeal board established under section 40 of the Urban and Rural Planning Act, 2000 Workers' Compensation Review Division The Workplace Health, Safety and Compensation Commission A corporation, the ownership of which, or a majority of the shares of which is vested in the Crown A corporation, commission or board the majority of the members of which, or the majority of the members of the board of directors of which are appointed by the Lieutenant-Governor in Council A board, commission or other body added to this Schedule by order of the Lieutenant-Governor in Council
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