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First
Session, 51st General Assembly 3 Charles III, 2026 |
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AN ACT RESPECTING THE
DISABILITY ADVOCATE |
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Received and Read the First Time................................................................ |
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Second
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Committee..................................................................................................... |
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Third
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Royal Assent................................................................................................. |
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HONOURABLE JOEDY WALL Minister of Social Supports and Well-Being |
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Ordered to be printed by
the Honourable House of Assembly |
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EXPLANATORY NOTES This Bill would establish the Office of the Disability Advocate and establish a process to appoint a person to act as an advocate for the interests of persons with disabilities, both individually and collectively. A BILL AN ACT RESPECTING THE DISABILITY ADVOCATE Analysis 1. Short title 2. Definitions 3. Office of Disability Advocate established 4. Appointment of Disability Advocate 5. Status of advocate 6. Term of office 7. Removal or suspension 8. Suspension when House of Assembly not sitting 9. Acting advocate 10. Salary, pension and benefits 11. Expenses 12. Advocate's staff 13. Oath of office 14. Confidentiality of information 15. Delegation 16. Powers and duties of advocate 17. Restriction on jurisdiction 18. Minister may restrict investigation 19. Reference by Lieutenant-Governor in Council 20. Communication by a person with a disability 21. Refusal to investigate 22. Report of refusal to investigate 23. Notice of investigation 24. Evidence 25. Restrictions on disclosure 26. Application of certain rules 27. Admissibility of evidence 28. Defence for certain offences 29. Right of entry 30. Notice of proposed steps 31. Report to complainant 32. Proceedings against advocate 33. Advocate not to be called as witness 34. Annual report to House of Assembly 35. Publication of reports 36. Offence and penalty 37. Regulations 38. Schedule 39. SNL2007 cH-10.1 Amdt. 40. SNL2016 cI-2.1 Amdt. 41. SNL2022 cP-3.02 Amdt. 42. 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 Disability
Advocate Act. Definitions 2. In this Act (a) "advocate" means the Disability Advocate appointed under section 4; (b) "agency of the government" means a board, commission, association or other body of persons, whether incorporated or unincorporated, included in the Schedule; (c) "barrier" means barrier as defined in the Accessibility Act; (d) "clerk" means the Clerk of the House of Assembly; (e) "department" means a department created under the Executive Council Act or a branch of the executive government of the province; (f) "disability services" means the programs, services or systems of support that are related to health care, personal care, housing, transportation, finances, education, training, legal or employment that are accessed or used by persons with disabilities with the exception of the programs, services or systems of support prescribed in the regulations; (g) "House of Assembly Management Commission" means the commission continued under section 18 of the House of Assembly Accountability, Integrity and Administration Act; (h) "person with a disability" means an individual with a physical, mental, intellectual, cognitive, learning, communication or sensory impairment or a functional limitation that is permanent, temporary or episodic in nature, that, in interaction with a barrier, prevents an individual from fully participating in society; (i) "record" means a correspondence, memorandum, form, paper, parchment, manuscript, map, plan, drawing, painting, print, photograph, magnetic tape, computer disc, microform, electronically produced document and other documentary material regardless of physical form or characteristic; (j) "service providers" means a person or a category of persons, prescribed in the regulations, that engage in the delivery of health care, personal care or supported living; (k) "speaker" means the Speaker of the House of Assembly; (l) "statutory office" means the office of a statutory officer; and (m) "statutory officer" means (i) the Information and Privacy Commissioner, (ii) the Auditor General, (iii) the Child and Youth Advocate, (iv) the Chief Electoral Officer, (v) the Citizens' Representative, (vi) the Commissioner for Legislative Standards, and (vii) the Seniors' Advocate. Office of Disability Advocate established 3. The Office of the Disability Advocate is established to (a) identify, review and analyze issues related to the rights and interests of persons with disabilities; (b) investigate matters relating to disability services provided by a department, agency of the government or service provider on behalf of a person with a disability or persons with disabilities; (c) work collaboratively with organizations of and for persons with disabilities, community-based organizations, departments, agencies of the government and service providers to identify and address individual and systemic issues related to persons with disabilities; and (d) make recommendations to a department, agency
of the government, service providers, communities, organizations of and for
persons with disabilities and community-based organizations respecting changes
to improve access to disability services. Appointment of Disability Advocate 4. (1) On resolution of the House of Assembly, the Lieutenant-Governor in Council shall appoint a Disability Advocate. (2) A person appointed under subsection (1) shall satisfy one or more of the following criteria: (a) the person is a person with a disability; (b) the person is a parent, caregiver or guardian of a person with a disability; or (c) the person has experience working with persons with disabilities or with organizations of and for persons with disabilities. Status of advocate 5. (1) The advocate is an officer of the House of Assembly and is not eligible to be nominated for election, to be elected or to sit as a member of the House of Assembly. (2) The advocate shall not hold another public office or carry on a trade, business or profession. Term of office 6. (1) Unless the advocate sooner resigns, dies or is removed from office, the advocate shall hold office for 6 years from the date of the advocate's appointment, and the advocate may be reappointed for a second term of 6 years, but shall not hold office for more than 2 terms. (2) The advocate may resign as advocate in writing addressed to the speaker, or, where there is no speaker or the speaker is absent, to the clerk. Removal or suspension 7. The Lieutenant-Governor in Council, on resolution of the House of Assembly passed by a majority vote of the members of the House of Assembly actually voting, may suspend or remove the advocate from office because of an incapacity to act or for misconduct, cause or neglect of duty. Suspension when House of Assembly not sitting 8. When the House of Assembly is not sitting, the Lieutenant-Governor in Council may suspend the advocate because of an incapacity to act or for misconduct, cause or neglect of duty but the suspension shall not continue in force beyond the end of the next sitting of the House of Assembly. Acting advocate 9. (1) The Lieutenant-Governor in Council may, on the recommendation of the House of Assembly Management Commission, appoint an acting advocate where (a) the advocate is temporarily unable to perform the advocate's duties; (b) the office of the advocate becomes vacant or the advocate is suspended when the House of Assembly is not sitting; or (c) the office of the advocate becomes vacant or the advocate is suspended when the House of Assembly is sitting, but the House of Assembly does not pass a resolution to appoint an advocate before the end of that sitting. (2) Where the office of the advocate becomes vacant and an acting advocate is appointed under paragraph (1)(b) or (c), the term of the acting advocate shall not extend beyond the end of the next sitting of the House of Assembly. (3) An acting advocate holds office until (a) the advocate returns to the advocate's duties after a temporary inability to perform; (b) the suspension of the advocate ends or is dealt with in the House of Assembly; or (c) a person is appointed as advocate under section 4. Salary, pension and benefits 10. (1) The advocate shall be paid a salary fixed by the Lieutenant-Governor in Council after consultation with the House of Assembly Management Commission. (2) The salary of the advocate shall not be reduced except on resolution of the House of Assembly. (3) The advocate is subject to the Public Service Pensions Act, 2019 where the advocate was subject to that Act before appointment as advocate. (4) Where the advocate was not subject to the Public Service Pensions Act, 2019 before appointment as advocate, the advocate shall be paid, for contribution to a registered retirement savings plan, an amount equivalent to the amount which the advocate would have contributed to the Public Service Pension Plan were the circumstances in subsection (3) applicable. (5) The advocate is eligible to receive the same benefits as a deputy minister, with the exception of a pension where subsection (4) applies. Expenses 11. The advocate shall be paid the travelling and other expenses incurred by the advocate in the performance of the advocate's duties that may be approved by the House of Assembly Management Commission. Advocate's staff 12. (1) The advocate may, subject to the approval of the House of Assembly Management Commission, and in the manner provided by the Public Service Commission Act, appoint those assistants and employees that the advocate considers necessary to enable the advocate to carry out the advocate's powers and duties under this Act. (2) Persons employed under subsection (1) are members of the public service of the province. Oath of office 13. (1) Before beginning to perform the duties of the advocate, the advocate shall swear an oath, or affirm, before the speaker or the clerk to faithfully and impartially perform the duties of the office. (2) Every person employed in the Office of the Disability Advocate shall, before the person begins to perform the person's duties, swear an oath, or affirm, before the advocate that the person shall not, except as provided by this Act, divulge information received by the person under this Act. Confidentiality of information 14. (1) The advocate and every person employed in the Office of the Disability Advocate shall keep confidential all matters that come to their knowledge in the exercise of their powers and duties under this Act. (2) Notwithstanding subsection (1), the advocate may disclose in a report made by the advocate under this Act those matters which the advocate considers necessary to disclose in order to establish grounds for the advocate's conclusions and recommendations. (3) A report the advocate makes under this Act shall not disclose the name or identifying information about a person with a disability except and in accordance with the requirement of subsection 35(2). Delegation 15. (1) The advocate may in writing delegate to another person the advocate's powers under this Act except the power to make a report under this Act. (2) Notwithstanding subsection (1), where the advocate is in a conflict of interest with respect to a matter referred to the advocate, the advocate may in writing delegate to another person the advocate’s powers under this Act with respect to that matter, including the power to make a report. (3) A person purporting to exercise the power of the advocate by virtue of the delegation under subsection (1) or (2) shall produce evidence of the person's authority to exercise that power when required to do so. Powers and duties of advocate 16. (1) In carrying out the powers and duties of the office of the advocate, the advocate may (a) receive and review matters relating to a person with a disability or persons with disabilities, whether or not a request or complaint is made to the advocate; (c) advocate or mediate or use another dispute resolution process on behalf of a person with a disability or persons with disabilities, whether or not a request or complaint is made to the advocate; (d) where advocacy or mediation or another dispute resolution process has not resulted in an outcome the advocate believes is satisfactory, conduct an investigation on behalf of the person with a disability or persons with disabilities; (e) initiate and participate in, or assist persons with disabilities to initiate and participate in, case conferences, administrative reviews, mediations, or other processes in which decisions are made about the provision of disability services; (f) meet with persons with disabilities; (g) request information relating to a person with a disability, including personal information and personal health information; (h) conduct research related to persons with disabilities, including interviews and surveys; (i) make recommendations to a department, agency of the government, service provider, communities, organizations of and for persons with disabilities and community-based organizations about legislation, policies and practices respecting disability services or the rights and interests of persons with disabilities; and (j) educate and inform the public about the Office of the Disability Advocate and promote awareness of issues related to persons with disabilities. (2) Notwithstanding subsection (1), the advocate shall not do any of the following unless the advocate has first obtained the consent of the person with a disability or the parent or guardian of the person with a disability: (a) mediate or use another dispute resolution process on behalf of the person with a disability; (b) investigate a matter relating to the person with a disability; or (c) request the personal information or personal health information relating to the person with a disability. (3) The advocate may not act as legal counsel. Restriction on jurisdiction 17. (1) Nothing in this Act authorizes the advocate 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) 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; (d) a matter which is the subject of a review by the Child Death Review Committee under the authority of section 13.2 of the Fatalities Investigations Act until that review has been completed; (e) a matter which is the subject of an inquiry under the authority of section 26 of the Fatalities Investigations Act until that inquiry has been completed; (f) a matter which is the subject of an investigation under the Children, Youth and Families Act or the Adult Protection Act, 2021 until that investigation has been completed; (g) a matter which is related to the terms and conditions of employment of members of the public service of the province; (h) a matter which is the subject of a complaint under section 25 of the Human Rights Act, 2010 until the complaint has been withdrawn, settled or decided by a board of inquiry under Part II of that Act and either the right of appeal has been exercised or the time limit for the exercise of that right has expired; or (i) another matter prescribed in the regulations. (2) Nothing in this Act authorizes the advocate or the advocate's employees or assistants to investigate (a) a refusal to provide access to information under the Access to Information and Protection of Privacy Act, 2015; or (b) an act, omission, decision, recommendation, refusal of information, policy or procedure of a custodian in relation to personal health information under the Personal Health Information Act, or a matter falling within the office of the commissioner to which that Act applies. Minister may restrict investigation 18. (1) Where the Minister of Justice and Public Safety certifies in writing to the advocate that the investigation of a matter would be contrary to the public interest under the circumstances, the advocate shall not investigate the matter, or, where the advocate has commenced an investigation of the matter, the advocate shall discontinue the investigation. (2) Where a certificate is given under subsection (1), the advocate shall include that fact and a brief description of the circumstances of the matter in the advocate's next annual report to the House of Assembly. Reference by Lieutenant-Governor in Council 19. The Lieutenant-Governor in Council or a minister may refer to the advocate for review, investigation and report, a matter relating to the interests and well-being of persons with disabilities and the advocate shall (a) subject to a special direction of the Lieutenant-Governor in Council, investigate or review the matter to the extent that it is within the advocate's jurisdiction; and (b) make a report to the Lieutenant-Governor in Council or minister that the advocate considers appropriate. Communication by a person with a disability 20. (1) Where a person with a disability in a facility, personal care home, long-term care facility, caregiver's home, group home, or place in which the person with a disability is placed under an Act of the province or the Criminal Code, asks to communicate with the advocate, that request shall be forwarded to the advocate immediately by the person in charge of the place. (2) Where a person with a disability in a place referred to in subsection (1) writes a letter addressed to the advocate, the person in charge of the place shall forward the letter immediately, unopened, to the advocate. (3) Every place referred to in subsection (1) in which a person with a disability is placed under an Act of the province or the Criminal Code, shall be given information telling them about the office of the advocate, their right to bring any matter to the advocate, and how they may contact the advocate. Refusal to investigate 21. The advocate, in the advocate's discretion, may refuse to review or investigate, or may cease to review or 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 advocate; (b) in the advocate's 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 the advocate's opinion, upon a balance between the public interest and the person aggrieved, the complaint should not be investigated or the investigation should not be continued; (e) in the advocate's opinion the circumstances of the complaint do not require investigation; or (f) the law, or existing administrative procedure, provides a remedy adequate in the circumstances for the person aggrieved and, where the person aggrieved has not availed of the remedy, there is no reasonable justification for the person's failure to do so. Report of refusal to investigate 22. Where the advocate decides not to review or investigate or to cease reviewing or investigating a complaint, the advocate shall inform the complainant, and other interested persons, of the decision and shall provide to them reasons for the decision. Notice of investigation 23. (1) Before commencing an investigation, the advocate shall inform the following persons of the advocate's intention to conduct the investigation: (a) the deputy minister of the department affected or the administrative head of the agency of the government or service provider affected; and (b) any statutory office the advocate determines necessary. (2) Where notice is given to the administrative head of an agency of the government or a service provider under paragraph (1)(a), the advocate shall also give notice to the deputy minister of any department affected by that investigation. Evidence 24. (1) Where the advocate has provided notice in accordance with section 23 and commenced an investigation, the advocate may require a person who, in the advocate's opinion, is able to give information relating to a matter being investigated by the advocate to (a) provide the information to the advocate; and (b) produce a record or thing that in the advocate's 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 a department, an agency of the government or a service provider and whether or not the record or thing is in the custody or under the control of the department, agency of the government or service provider. (2) The advocate may summon and examine, on oath or affirmation, a person who, in the opinion of the advocate, is able to give information relating to a matter being investigated by the advocate. (3) The advocate has the right to information respecting a person with a disability where (a) the advocate commenced an investigation; and (b) the person with the disability or the parent or guardian of the person with a disability consents to the disclosure of the information. (4) Notwithstanding subsection (3), the advocate does not have a right to information respecting a person with a disability where one or more of the following apply: (a) the information is not permitted to be made public by section 37 of the Adoption Act, 2013; (b) the information could reasonably be expected to reveal the identity of a person who has made a report under section 11 of the Children, Youth and Families Act; (c) the information could reasonably be expected
to reveal the identity of a person who has made a report under section 12 of
the Adult Protection Act, 2021; (d) the disclosure of the information is prohibited under the Youth Criminal Justice Act (Canada); or (e) the disclosure of the information is prohibited under the Young Persons Offences Act. (5) A person who has custody or control of information to which the advocate is entitled under subsection (1) shall disclose the information to the advocate. (6) This section applies despite another Act or a claim for privilege, except a claim based on a solicitor-client relationship. Restrictions on disclosure (a) involve the disclosure of (i) the deliberations of the Executive Council or a committee of the Executive Council; or (ii) proceedings of the Executive Council, or a committee of the Executive Council, relating to matters of a secret or confidential nature and would be injurious to the public interest; or (b) interfere with or impede the investigation or detection of an offence, the advocate shall not require the information or answer to be given or the record or thing to be produced, but shall report the giving of the certificate to the House of Assembly. Application of certain rules 26. (1) A rule of law that authorizes or requires the withholding of a record 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 the advocate. (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 advocate, and a person required by the advocate to give evidence, shall not refuse to provide the information, produce the record or thing, or to answer questions on the ground of that provision. (3) Subsection (2) shall not apply in respect of (a) the provisions referred to in paragraph 24(4)(a) to (c); and (b) the Acts referred to in paragraphs 24(4)(d) and (e). Admissibility of evidence 27. Except on the trial of a person for perjury, a statement made or answer or evidence given by that person or another person in the course of an investigation by the advocate is not admissible in evidence against the person in a court or an inquiry or in another proceeding. Defence for certain offences 28. A person is not guilty of an offence under another Act by reason of the person's compliance with a request or requirement of the advocate to provide information or produce a record or thing, or by reason of answering a question in a review or an investigation conducted by the advocate. Right of entry 29. (1) For the purposes of this Act, the advocate may enter a premises occupied by a department, agency of the government or service provider in connection with an investigation within the advocate's jurisdiction. (2) Upon entering a premises under subsection (1), the advocate shall notify the deputy minister of the department or the administrative head of the agency of the government or service provider that occupies the premises. Notice of proposed steps 30. (1) Where, after conducting a review of the disability services of a department, agency of the government or service provider, or an investigation, the advocate makes a recommendation, the advocate may request the department, agency of the government or service provider to whom the recommendation is made to notify the advocate within a specified time of the steps that it has taken or proposes to take to give effect to the advocate's 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 advocate to be adequate and appropriate, the advocate, in the advocate's discretion, after considering the comments made by or on behalf of the department, agency of the government or service provider 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 advocate's next annual report to the House of Assembly. (3) A report made under subsection (2) shall include any comments made by or on behalf of the department, agency of the government or service provider on the opinion or recommendation of the advocate. Report to complainant 31. Where the advocate conducts a review or an investigation on the basis of a complaint received, the advocate shall report to the complainant, in the manner and at the time that the advocate considers appropriate, the result of the review or investigation. Proceedings against advocate 32. An action does not lie against the advocate or against a person employed in the Office of the Disability Advocate for anything the advocate or person may do or report or say in the course of the exercise or performance, or intended exercise or performance, of the advocate's or person's powers and duties under this Act, unless it is shown the advocate or person acted in bad faith. Advocate not to be called as witness 33. The advocate and a person employed in the Office of the Disability Advocate 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 the advocate's knowledge in the exercise or performance of the advocate's powers and duties under this Act. Annual report to House of Assembly 34. The advocate shall report annually to the House of Assembly through the speaker on the exercise and performance of the advocate's powers and duties under this Act. Publication of reports 35. (1) In the interest of persons with disabilities or in the public interest, or in the interest of a person, department or agency of the government, the advocate may publish reports relating generally to the exercise and performance of the advocate’s functions and duties under this Act or to a particular case investigated by the advocate, 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. (2) The advocate shall not include the name or other identifying information about a person with a disability in a report under subsection (1) unless the advocate has first obtained the consent of the person with a disability or the parent or guardian of the person with a disability. Offence and penalty 36. A person who (a) obstructs, hinders or resists the advocate or another person in the exercise or performance of the advocate's powers and duties under this Act; (b) refuses or fails to comply with a lawful request under this Act; or (c) makes a false statement to or misleads or attempts to mislead the advocate or a person employed in the Office of the Disability Advocate in the exercise or performance of the advocate's powers and duties under this Act, is guilty of an offence and liable, on summary conviction, to a fine of not more than $1,000 or to imprisonment for a term not exceeding 3 months, or to both. Regulations 37. The Lieutenant-Governor in Council may make regulations (a) prescribing the programs, services or systems of support for the purposes of paragraph 2(f); (b) prescribing the persons or category of persons for the purposes of paragraph 2(j); (c) prescribing a matter for the purposes of paragraph 17(1)(i); (d) re-defining or further defining a word or expression defined in the Act; (e) defining a word or expression used but not defined in this Act; and (f) generally, to give effect to the purpose of this Act. Schedule 38. (1) The Lieutenant-Governor in Council may, by order add a board, commission, association or other body of persons, whether incorporated or unincorporated, to the Schedule. (2) An order made under subsection (1), is subordinate legislation for the purpose of the Statutes and Subordinate Legislation Act. SNL2007 cH-10.1 Amdt. 39. (1) Paragraph
2(r) of the House of Assembly Accountability, Integrity and Administration
Act is amended by deleting the word "and" at the end of
subparagraph (v.1) and by adding immediately after that subparagraph the
following: (v.2) Disability Advocate, and (2) Subsection 32(2) of the Act is amended by
deleting the word "and" at the end of paragraph (e), by deleting the
comma at the end of paragraph (f) and substituting a semi-colon and the word
"and" and by adding immediately after that paragraph the following: (g) subsection 12(1) of the Disability Advocate Act, SNL2016 cI-2.1 Amdt. 40. The
Schedule to the Independent Appointments Commission Act is amended by
adding immediately after the statutory reference "College
Act, 1996, subsection 7(1) and section 10 except
subsections 10(2), (3) and (4)" the statutory reference "Disability
Advocate Act, section 4". SNL2022 cP-3.02 Amdt. 41. Paragraph 2(1)(v) of the Pay Equity and Pay Transparency Act is amended by deleting the word "and" at the end of subparagraph (vi), deleting the period at the end of subparagraph (vii) and substituting a comma and the word "and" and by adding immediately after that subparagraph the following: (viii) the Disability Advocate. Commencement 42. This Act comes into force on a day to be proclaimed by the Lieutenant-Governor in Council. Schedule College of the North Atlantic Conseil scolaire francophone provincial Mental Health Care and Treatment Review Board Memorial University of Newfoundland Newfoundland and Labrador Housing Corporation Newfoundland and Labrador Legal Aid Commission Provincial Health Authority Workplace Health, Safety and Compensation Commission A board, commission or other body added to this schedule by order of the Lieutenant-Governor in Council ©King's Printer |